Cuthbert v Moreton Bay Regional Council [2015] QPEC 41

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cuthbert v Moreton Bay Regional Council [2015] QPEC 41 PARTIES: Heather Lorraine Cuthbert (appellant) v Moreton Bay Regional Council (respondent) FILE NO/S: 2283/15 PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 31 July 2015 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 31 July 2015 JUDGE: Rackemann DCJ ORDER: The Application for further particulars is dismissed. The respondent to pay the appellant’s costs of the application for further particulars, to be assessed on a standard basis. CATCHWORDS: PLANNING AND ENVIRONMENT – PRACTICE AND PROCEDURE – PARTICULARS – whether particulars required where expert reports already provided – whether appropriate for particulars to incorporate, by reference, paragraphs of expert reports COUNSEL: AN Skoien for the appellant S Ure for the respondent SOLICITORS: Butler McDermott Lawyers for the appellant Thomson Geer for the respondent -- 1 of 7 -- 2 [1] HIS HONOUR: This is an application for the delivery of particulars which were originally ordered by the court to be provided on the 3rd of July 2015. The orders in that regard were made on the 18th of June 2015. Those orders, in addition to requiring particulars, also identified the issues in dispute in the proceeding, and required the respondent to file and serve its material on the 3rd of July, being the same date upon which it was required to give particulars. [2] The particulars that were required were particulars of the Environmental Protection Order, the issue of which resulted in this appeal. That Environmental Protection Order alleged harm, or potential harm, by way of detrimental impacts upon the acoustic amenity of surrounding residents, air quality, water quality and storm water, and aquatic ecology. It also asserted that requirements set out in section D of the EPO were required to secure compliance with the conditions of an environmental authority and with the general environmental duty. [3] The particulars which were required were particulars of the harm or potential harm, and particulars of the conditions with which it is alleged that there is a need to secure compliance. The particulars were required to specify, in relation to each aspect of alleged harm, whether the harm was actual or potential; the relevant environmental value that is allegedly affected or potentially affected; the alleged adverse effect or potential adverse effect on the environmental value; the connection between the alleged harm and the ERA conducted by the appellant; and the extent of the alleged harm, including whether it was alleged that it constitutes environmental nuisance and material environmental harm or serious environmental harm. [4] Particulars in relation to the conditions required a specification of each condition with which it is said there was non-compliance, the nature of the alleged non-compliance, -- 2 of 7 -- 3 and in respect of each identified condition, the requirement of the EPO which is alleged to be needed to secure compliance with that condition. [5] On the 3rd of July the respondent filed and served affidavit material from consultants which it had engaged in relation to matters of acoustic amenity, air quality, water quality and storm water, and aquatic ecology. They did not, however, provide the particulars in accordance with the order. Rather, they asserted in correspondence that, given the delivery of the affidavit material, there was now no utility in providing the particulars and sought the agreement of the appellant to vary the court order so as not to require particulars. That request was refused. The appellant continued to request particulars, as per the order. [6] Ultimately, on the day before the subject application was filed, a letter was sent from the solicitors for the respondent. That letter continued to assert that there was no utility in providing the particulars, but went on to identify, expressly as examples only, parts of the various affidavits from which one could discern the matters which were the subject of the order for particulars. In addition, there was an objection taken to the provision of particulars, as previously ordered, in relation to the extent of the alleged harm, including whether the alleged harm constitutes environmental nuisance, material environmental harm, or serious environmental harm. [7] It is quite right to say, as indeed the respondents’ solicitor alleged in earlier correspondence, that the need for and desirability of the provision of lengthy particulars and lengthy disputes about the scope of particulars is perhaps diminished in these days where a party is required to put on its evidence in advance of trial. In that regard, as had been pointed out in correspondence of the 16th of July 2015, the Federal Court in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty -- 3 of 7 -- 4 Ltd (No 3) (2011) FCA 531 quoted the decision of Police & Nurses Credit Society Ltd v Burgess Rawson (WA) Pty Ltd (2006) FCA 1395 as follows: “The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable.” [8] That is not to say, however, that a party who has been ordered to provide both particulars and evidence can simply ignore the court order to provide particulars. [9] In circumstances where particulars are being provided with, or subsequently to, the provision of affidavit material, there would appear to be nothing in point of principle which would prevent a party from incorporating parts of that affidavit material, by reference, in its provision of particulars. However, the party who has requested the particulars should not be left in a position of having to speculate as to which part or parts of the evidence their opponent is proposing to rely upon as particularising an issue or an aspect of an issue, nor should they have to speculate upon whether the whole of what a witness says is going to be relied upon, or part only. Nor should they be required to speculate as to whether there is anything else, outside the delivered affidavit material, which is going to form part of the particulars of the case against them. [10] In my view it was neither compliant with the order nor appropriate simply to provide the affidavit material with nothing more. The letter of the 21st of July 2015 did attempt to provide some particulars in a way which incorporated aspects of the affidavit -- 4 of 7 -- 5 material by reference. However, part of the difficulty with that letter was that reference to parts of the affidavits were proceeded by the words “for example”, which left the solicitors for the appellant to speculate upon whether there were any other parts of the affidavits which were relevant to the particulars, and, indeed, whether there was some further or other aspect of the particulars that would be relied upon. [11] It should be noted that, subsequently to the affidavit material which was filed on the 3rd of July, further affidavit material continued to be filed, notwithstanding the fact that, pursuant to the court order, the appellant was intended to be put in a position, as at the 3rd of July, to know the parameters of the case, in terms of the particulars as well as the evidence. [12] Another difficulty with the letter of the 21st of July is that it objected to providing particulars which the respondent had already been ordered to provide in relation to the extent of the alleged harm. [13] Since this application first came on for hearing, the position has been advanced. An amended version of the earlier letter was provided yesterday. That amended letter deletes the reference to “for example”, and so now gives comprehensive references to those passages of the various affidavits which are incorporated by reference into the response to the request for particulars. It may be noted that, in addition to deleting the words “for example”, there has been some change to the paragraph numbers of the affidavits referred to. [14] It is quite right to point out, as did counsel for the appellant, that each response to the request for particulars simply gives a list of the affidavits without expressly relating them to particular issues. That matter was clarified in open court today, when the respondent advised that, insofar as the EPO related to a detrimental impact on acoustic -- 5 of 7 -- 6 amenity, it was relying only on the nominated paragraphs from the affidavit of Mr Goodfellow. Insofar as it alleged detrimental impact on air quality, it was relying only on the nominated paragraphs of the affidavit of Mr Galvin. Insofar as the alleged harm or potential harm related to detrimental impact on water quality or storm water, it was relying only on the nominated paragraphs of the affidavits of Mr Bristow. And insofar as it related to the harm or potential harm by way of a detrimental impact on aquatic ecology, it was relying only upon the nominated paragraphs of Mr Thorogood, and that the incorporation, by reference, of passages of their affidavits in respect of other aspects of the request for particulars, should similarly be read as being limited to those subject matters. [15] In addition to now providing a comprehensive list of those matters which are incorporated by reference in the response to the request for particulars, the respondent has now provided a response to the request in relation to the extent of alleged environmental harm. Further, it has now, by annotation to a copy of the Environmental Protection Order, specified those conditions which are relevant to each particular requirement listed in the EPO. [16] Whilst counsel for the appellant continued to contend that it would be better if particulars were provided in a more conventional way without the incorporation-by- reference mechanism, it seems to me, having looked at the structure of the affidavits, that the response from the appellant, as it now stands, enables the appellant to comprehend not only the evidence which is relied upon, but also the particulars of the case which must be met. [17] In the circumstances, then, having regard to what has happened since the application for particulars was made, I am not inclined to make any further order for particulars. -- 6 of 7 -- 7 However, given the deficiencies in the earlier response to which I referred, I consider that the respondent should pay the appellant’s costs. -- 7 of 7 --