Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56

Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56

Leave to amend is granted: the s 43B Defence is arguable and important; any delay or prejudice to the applicant can be ameliorated by setting aside dedicated days for cross-examination, and the respondents acted promptly in the circumstances. The balance of factors favours granting leave, having regard to the principles of case management, the explanation for delay, and potential prejudice to both parties.

Parties
Applicant: Save Wallum Incorporated; First Respondent: Clarence Property Corporation Limited; Second Respondent: Bayside Brunswick Pty Ltd
Jurisdiction
Australia
Judgment Date
06 February 2025
Procedural Posture
Application for Leave to Amend Defence in Environmental Injunction Proceedings / Interlocutory Leave to Amend Defence Granted
Outcome
Application for leave to amend granted
Legal Topics
Leave to Amend Pleadings, S 43 B Defence, Injunctions, Case Management, Prejudice and Delay
Practice and Procedure Environmental Law Leave to Amend Pleadings S 43 B Defence Injunctions Case Management Prejudice and Delay

Case Brief

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Parties

Save Wallum Incorporated

Applicant

Clarence Property Corporation Limited

First Respondent

Bayside Brunswick Pty Ltd

Second Respondent

Procedural Posture

Application for Leave to Amend Defence in Environmental Injunction Proceedings / Interlocutory Leave to Amend Defence Granted

Legal Issues

  1. 1 Whether leave should be granted to the respondents to amend the Further Amended Defence to raise a defence under s 43B of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
  2. 2 Whether the applicant would suffer prejudice as a result of the amendment
  3. 3 Whether there was delay in raising the s 43B Defence and whether delay was justified

Ratio Decidendi

Leave to amend is granted: the s 43B Defence is arguable and important; any delay or prejudice to the applicant can be ameliorated by setting aside dedicated days for cross-examination, and the respondents acted promptly in the circumstances. The balance of factors favours granting leave, having regard to the principles of case management, the explanation for delay, and potential prejudice to both parties.

Court Disposition

Application for leave to amend granted

Orders

  • The respondents be granted leave to amend the Further Amended Defence to raise a defence under s 43B of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by inserting specified paragraphs and amending one paragraph per the draft SFAD.
  • The dates of 28 and 29 April 2025 be set aside for cross-examination on the s 43B Defence.