Gibbs v Ballina Shire Council [2020] NSWLEC 72

Gibbs v Ballina Shire Council [2020] NSWLEC 72

Leave was appropriate because the Second Respondent notified its change of position promptly, within about 24 hours, so no prejudice arose from delay; the Second Respondent was the beneficiary of a development consent constituting a valuable right and should have the opportunity to defend it; and two active respondents, although unusual in such circumstances, was not exceptional. To address case management concerns, the Respondents were to be collectively limited to a single expert witness on any contention raised in a joint Statement of Facts and Contentions in Reply, subject to leave for a different regime where good reason is shown.

Jurisdiction
Australia
Judgment Date
16 June 2020
Procedural Posture
Class 1 Proceedings by a Third Party Objector to a Development Consent for a Waste Transfer and Recycling Plant / Application by the Second Respondent for Leave Under Uniform Civil Procedure Rules 2005, R 6.11(2) to Withdraw a Submitting Appearance and Take an Active Part in the Proceedings
Outcome
Second Respondent permitted to withdraw its submitting appearance and take an active part in the proceedings, with expert evidence limitations; matter adjourned to the Registrar on 13 July 2020.
Legal Topics
['development Consent' 'third Party Objector Proceedings' 'submitting Appearance' 'case Management' 'expert Evidence']
['planning and Environment' 'civil Procedure'] ['development Consent' 'third Party Objector Proceedings' 'submitting Appearance' 'case Management' 'expert Evidence']

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Procedural Posture

Class 1 Proceedings by a Third Party Objector to a Development Consent for a Waste Transfer and Recycling Plant / Application by the Second Respondent for Leave Under Uniform Civil Procedure Rules 2005, R 6.11(2) to Withdraw a Submitting Appearance and Take an Active Part in the Proceedings

Legal Issues

  1. 1 ['Whether the Second Respondent should be granted leave to withdraw its submitting appearance and substitute an active appearance.' 'Whether any leave should be conditional on the First Respondent filing a submitting appearance.' 'Whether conditions should be imposed to avoid duplication of evidence and expert witnesses by the two Respondents.']

Ratio Decidendi

Leave was appropriate because the Second Respondent notified its change of position promptly, within about 24 hours, so no prejudice arose from delay; the Second Respondent was the beneficiary of a development consent constituting a valuable right and should have the opportunity to defend it; and two active respondents, although unusual in such circumstances, was not exceptional. To address case management concerns, the Respondents were to be collectively limited to a single expert witness on any contention raised in a joint Statement of Facts and Contentions in Reply, subject to leave for a different regime where good reason is shown.

Court Disposition

Second Respondent permitted to withdraw its submitting appearance and take an active part in the proceedings, with expert evidence limitations; matter adjourned to the Registrar on 13 July 2020.

Orders

  • ['The Second Respondent is granted leave pursuant to Uniform Civil Procedure Rules 2005, r 6.11(2) to withdraw its submitting appearance and substitute a formal appearance permitting it to take an active role.' 'The Respondents collectively are limited to a single witness on any contention raised by them in a joint...