Application to exclude evidence at resumed hearing on application for declarations involving construction of a public accessway by Council allegedly without a development permit.
Facts: This judgment concerned the determination of numerous objections to evidence raised by the Respondent Council arising from the content of the Applicant's principal issues in dispute.
In May 2009, the Respondent (Council) constructed a path along Pacific Parade on the Gold Coast. The path was constructed contiguous with the eastern boundaries of the residential properties fronting Pacific Parade, as part of a network of paths along the beaches from the Gold Coast Seaway to Point Danger. The path was apparently constructed on the landward side of, and partly misaligned, discontinuous boulder walls buried under the coastal dune.
In April 2010, the Applicant sued the Council and sought declarations from the Planning and Environment Court that the path had been constructed unlawfully, without an effective development permit under the Integrated Planning Act 1997 (IPA). The Applicant also sought consequential orders, including an injunction requiring the Council to remove the path and restore the coastal dune to its original conditions, as near as practicable.
The litigation process was complex as a result of various amendments sought to the Originating Application (OA). The history of the litigation and the amendments were as follows:
- The OA was filed on 22 April 2010;
- On 20 August 2010 the OA was amended by the Amended Originating Application (AOA). The AOA abandoned some allegations and raised new allegations;
- On 10 September 2010, leave was granted to the Applicants to file a Further Amended Originating Application (FAOA);
- On 4 November 2010, the Applicants sought leave to deliver a Second Further Amended Originating Application (2nd FAOA). Some of the amendments were opposed and argued resulting in the Third Further Amended Originating Application (3rd FAOA) being delivered on that date;
- On 4 May 2011, the hearing of the matter commenced on the basis of the then current 3rd FAOA. At that hearing the Applicants sought further amendments to the pleadings with respect to the construction of the subject path. The application was opposed and the Court delivered its decision dismissing the application on that day;
- On 5 May 2011, the Applicants sought further amendments and produced a further proposed draft Fourth Further Amended Originating Application (Draft 4th FAOA). The Court refused leave to make the further amendments. Other issues were abandoned and the Fourth Further Amended Originating Application (4th FAOA) reflected the amended issues. The hearing was adjourned part heard;
- On 11 October 2011, the Applicants wrote to the Council and provided unsolicited particulars with respect to paragraphs 14 and 15 of the 4th FAOA alleging that the construction of the path increased the risk of erosion to the frontal dune and increased the risk of injury to persons and residential property during significant storm surge events.
- On 4 November 2011, the Applicants issued subpoenas against Council's CEO and various Councillors.
- The hearing of the matter was resumed on 14 November 2011. On that day the Court heard the Council's application to set aside the five subpoenas issued by the Applicants.
- On 16 November 2011, the Court set aside the subpoenas as an abuse of process and the Applicants were ordered to pay costs. The decision was appealed by the Applicants to the Court of Appeal.
- On 29 May 2012, the Court of Appeal dismissed the appeal and awarded costs.
- At the Court's instigation, the matter was set down for further hearing in December 2013.
The pleading before the Court was the Fifth Further Amended Originating Application (5th FAOA).
At the hearing, the Council raised objections to evidence proposed to be relied upon by the Applicants with respect to an Outline of Principal Issues which had been provided to the Council prior to the resumed hearing.
The primary objections raised were in relation to particulars 14(e) and (f) and 15(e) and (f) of the 5th FAOA which, among other things, concerned the malalignment and discontinuity of the path. It was alleged that the evidence related to the same particulars that had been previously dealt with by the Court of Appeal.
The Council's submissions were such that the only documents they considered were relevant to the boulder sea walls, were those that established the location of those sea walls and that they were malaligned and discontinuous.
The Applicants made submissions that the evidence relevant to the particulars in question were admissible on the basis that, among other things, the Court had wide discretion to allow the type of relief sought by the Applicant's and that evidence should not be confined to merely establishing that the boulder seawalls were malaligned and discontinuous but that it should extend to the actions of Council or other entities which caused the seawalls to be dangerous.
Decision: The Court held, in upholding the primary objections:
- There was no issue on the pleadings that the malalignment and discontinuous nature of the boulder wall under the path caused or contributed to the alleged environmental harm
- It would indeed be a highly undesirable and unacceptable situation if a party, being unsuccessful in amending its pleadings to agitate a particular issue, to then claim relief based on that rejected amendment to support an argument that it thereby becomes an issue and the Court should receive evidence to assist it in ordering that relief.
- There was no issue before the Court as to the history of the construction of the boulder walls or any environmental harm said to have been caused as a result of their construction including resulting from their malalignment or discontinuity.
- The function of particulars was not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficient detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial."
- The evidence the subject of successful objections by Council, should be excluded.
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