Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    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) (the s 43B Defence) by:

(a)    inserting paragraphs 11(b1), 14(b1), 17(b1), 24A(a1), and 24A(a2) of the draft Second Further Amended Defence attached to the respondents’ interlocutory application dated 29 January 2025; and

(b)    amending paragraph 24A(b) in terms of paragraph 24A(b) of the draft Second Further Amended Defence.

2.    The dates of 28 and 29 April 2025 be set aside for cross-examination on the s 43B Defence.

3.    On or before 3pm on Monday 10 February 2025, the parties are to provide draft minutes of order, agreed if possible, proposing a timetable for the filing of evidence and other steps to be taken consequential on orders 1 and 2 above.

4.    Costs are reserved.

THE COURT NOTES THAT:

5.    The respondent has served, but not yet filed, its expert and lay evidence in chief in support of the s 43B Defence.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Save Wallum Incorporated, seeks a permanent injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to restrain the first and second respondents from carrying out or authorising the carrying out of development works on land at 15 Torakina Road, Brunswick Heads, NSW (the Land). The objects and purposes of the applicant include the preservation and conservation of the environment. Its primary aim since incorporation has been the conservation and protection of the natural environment of the Land. The applicant’s standing to bring the present proceeding under s 475 of the Act is not in dispute.

2    The first and second respondents, Clarence Property Corporation Limited and Bayside Brunswick Pty Ltd, which are related companies, seek to develop the Land pursuant to a development approval issued by the Byron Shire Council (Local Council) on 16 May 2023 creating 123 residential lots, three medium density lots, one public reserve, and associated vegetation management works, earthworks, and construction of infrastructure.

3    This matter is currently set down for trial from 21 to 28 February 2025 (the February trial dates), with a further three days for closing oral submissions from 30 April to 2 May 2025 (the closing trial dates).

4    By an interlocutory application dated 29 January 2025 the respondents seek leave to file and serve a Second Further Amended Defence (SFAD) attached to the interlocutory application which is substantially in the form served on the applicant on 24 December 2024. The respondents’ interlocutory application is supported by the affidavit of Julien Castaldi, solicitor, sworn on 29 January 2025.

5    The applicant opposes the proposed amendments to insert paragraphs 11(b1), 14(b1), 17(b1) 24A(a1), and 24A(a2) of the SAFD and the proposed amendments to paragraph 24A(b). These amendments seek to raise a new defence under s 43B of the Act to the injunctive relief sought with respect to so-called “slashing works” (defined below) (the s 43B Defence). However, the parties are agreed that the question of whether leave to amend the further amended defence to delete paragraph 10B(b) should be deferred until the “housekeeping” case management hearing on 11 February 2025. The proposed amendments are otherwise not opposed.

6    For the reasons set down below, I find that leave should be granted to the respondents to amend the Further Amended Defence to raise the s 43B Defence.

2.    BACKGROUND

7    It is important to set out the background with some care. This is because the applicant relies upon the lateness of the interlocutory application, and the alleged absence of a sufficient explanation for the respondents’ delay, in support of its submission that leave to amend to include the s 43B Defence should be refused. The respondents, however, contend that an adequate explanation has been given for the late stage at which the interlocutory application is made and that they have acted in a timely fashion to investigate and raise the s 43B Defence in all of the circumstances.

8    The originating application was filed on 3 July 2024, together with a statement of claim. Subsequently, an amended statement of claim was filed on 29 July 2024 in which the applicant expanded the relief sought to include injuncting the respondents from carrying out slashing, mowing and whipper snipping of the Land (slashing works) on the basis that the slashing works constitute an action likely to have a significant impact on the Wallum Sedge Frog and the Long-nosed Potoroo. The respondents filed an amended defence responding to the new claim about the slashing works on 31 July 2024. As at this time, the parties were preparing for a further hearing of the applicant’s interim injunction application which was heard on 16 August 2024, and for an expedited trial to be held in October. By orders made on 30 August 2024, an interim injunction was granted by Bromwich J restraining the respondents and their agents from undertaking all but limited works on the Land which resolved a dispute as to the appropriate width of an interim injunction pending the determination of the applicant’s permanent injunction application: Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967.

9    By an amended originating application and further amended statement of claim filed on 30 September 2024, the applicant expanded its allegations to contend that the slashing works were also likely to have a significant impact on the Mitchell’s Rainforest Snail, the Koala, and the South-Eastern Glossy Black Cockatoo.

10    Each of these species are a listed threatened species under the Act and are included in the following categories:

(1)    the Wallum Sedge Frog, the Long-nosed Potoroo and the South-Eastern Glossy Black Cockatoo are in the vulnerable category under the Act;

(2)    the Koala is a listed threatened species in the endangered category under the Act; and

(3)    the Mitchell’s Rainforest Snail is in the critically endangered category under the Act.

(The relevant listed threatened species.)

11    The respondents filed a Further Amended Defence responding to the new claims in the further amended statement of claim on 4 October 2024, being 10 days before the trial was to commence.

12    On 9 October 2024, the applicant served additional affidavits in relation to the locations of sightings of the relevant listed threatened species.

13    By consent, the trial dates were vacated on 10 October 2024, and the trial was listed instead for final hearing from 21 to 28 February 2025, with an additional three days for closing oral submissions to be fixed. Subsequently, closing oral submissions were listed for hearing from 30 April to 2 May 2025.

14    Since the Further Amended Defence was filed, therefore, the trial has been deferred by six months. In addition, the Local Council has advised the respondents that an additional three months of monitoring the works will be required to be carried out before the Subdivision Work Certificate for Early Stage II of the development can be issued.

15    In the period between October and December 2024, the respondents undertook investigations to identify and obtain the relevant evidence required to support a defence under s 43B of the Act with respect to the Slashing Works.

16    The respondent provided the draft SFAD to the applicants on 24 December 2024 and sought the applicant’s consent for the filing of the SFAD. Correspondence then ensued between the parties through January 2024. On 28 January 2025, the applicant advised that it opposed leave being granted to file the SFAD. As a result, the respondents filed the present interlocutory application on 29 January 2025. This was served on the applicant, together with four of the five affidavits on which the respondents intend to rely in order to establish the s 43B Defence. The fifth affidavit was served on 3 February 2024. That evidence comprises:

(1)    four lay affidavits from owners of the Land over the period 1994 to 2021, together with the affidavit of a slashing contractor who was engaged by the owner of the land over that period;

(2)    one expert report of a vegetation and aerial image expert.

17    By an interlocutory application dated 29 January 2025 the respondents seek leave to file and serve a Second Further Amended Defence which is substantially in the form served on the applicant on 24 December 2024.

3.    LEGAL PRINCIPLES: LEAVE TO AMEND

18    Rule 16.53 of the Federal Court Rules 2011 (Cth) (FCR) confers a broad discretion on the Court, among other things, to grant leave to a party to amend their pleadings.

19    The Court must exercise its discretion to grant leave to amend in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 (Tamaya Resources (FCA)) at [125] (Gleeson J). Section 37M provides:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

20    I recently summarised the relevant principles in Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821 at [52]–[56], explaining that, after referring to s 37M of the FCA Act:

The application of like case management principles was considered by the High Court in the context of a late application to amend pleadings in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In particular, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the question of whether leave to amend should be granted did not simply require consideration of whether the party seeking to amend has an arguable case: at [114]. Rather, “serious consideration” must be given to other matters: at [114]. The factors to be considered were summarised by Gleeson J in Tamaya Resources (FCA) at [127] (in a passage accepted on appeal in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 (Tamaya (FCAFC)) at [125]), and include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

As to the fifth of these considerations, the plurality in Aon Risk emphasised (at [112]) that:

limits will be placed upon [the parties’] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

(Emphasis in the original.)

In line with this, the plurality had earlier accepted at [102] that the objectives under the Court Procedures Rules 2006 (ACT) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, “[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked.”

With respect to the considerations referred to by Gleeson J at [125](6) and (7) above, French CJ explained in Aon Risk at [5] that “the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.” Similarly, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, the Court held (at [51]) that:

In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

(Citations omitted.)

Moreover, while Aon Risk concerned the application of the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings, the High Court pointed out in Expense Reduction at [51] that “the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.” That the philosophy which informed their Honours findings in Aon Risk applies equally to s 37M of the FCA Act was confirmed by the Full Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [43]. As such, the same considerations inform the question of whether leave should be granted to amend the notice of appeal.

4.    DISPOSITION OF THE APPLICATION

21    Section 43B of the Act provides that:

(1)    A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.

(2)    However, subsection (1) does not apply to an action if:

(a)    before the commencement of this Act, the action was authorised by a specific environmental authorisation; and

(b)    at the time the action is taken, the specific environmental authorisation continues to be in force.

Note:    In that case, section 43A applies instead.

(3)    For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:

(a)    an enlargement, expansion or intensification of use;

(b)    either:

(i)    any change in the location of where the use of the land, sea or seabed is occurring; or

(ii)    any change in the nature of the activities comprising the use;

that results in a substantial increase in the impact of the use on the land, sea or seabed.

22    The Act commenced on 16 July 2000. It follows that the respondents would not be in breach of the Act by engaging in slashing works on the Land if that conduct was a lawful continuation of a use of land which was occurring immediately before 16 July 2000, notwithstanding that the respondents do not have an approval under Part 9 of the Act to engage in the slashing works.

23    As the applicants contend, factual matters relevant to the establishment of the s 43B Defence include:

(a)    the use of the Land that “was occurring immediately before the commencement” of the EPBC Act, the respondents having investigated records dating back “more than 30 years”, as well as witnesses “no longer involved with the Land”;

(b)    whether there has been “an enlargement, expansion or intensification” of the use of the Land resulting “in a substantial increase in the impact of the use” on the land such that the use is not a “continuation” (s 43B(3)); and

(c)    whether continuity of use has been broken, such that the s 43B protection is lost (Huon Aquaculture Group Ltd v Minister for the Environment [2018] FCA 1011 at [185]).

24    In opposition to the application for leave to amend to include the s 43B Defence, the applicant contends that:

(1)    the evidence to be given by the three expert witnesses called by the applicant and the respondents’ five expert witnesses are directly relevant to the question of whether the slashing works are a “lawful continuation” of a use of the Land for the purposes of s 43B of the EPBC Act;

(2)    as the triggering action in the Biodiversity Conservation Act 2016 (NSW) (BC Act) (“damage any habitat”) is different from that under s 18 of the Act (“significant impact” on the relevant species), it will be necessary for the applicant to adduce additional evidence in chief and undertake additional cross-examination;

(3)    the Wallum Froglet, which is not listed under the Act but is present on the Land, is listed under the BC Act, and the applicant may also seek to adduce further expert evidence in relation to the question of whether the slashing works damage the Wallum Froglet habitat;

(4)    in order to establish a breach of s 2.4(1) of the BC Act, the applicant must also establish that the respondents knew that the allegedly damaged habitat was the habitat of the relevant species, which will require investigation and collation of evidence;

(5)    given that the respondents took two months to investigate and prepare their evidence with respect to the proposed defence, the applicant should be afforded at least an equivalent opportunity to collate the evidence on which it seeks to rely in opposition to the proposed defence;

(6)    while the respondents propose the setting aside of an additional day for cross-examination with respect to the s 43B Defence, “[i]t is impractical in the extreme” to require up to 8 expert witnesses to be recalled for further examination and cross-examination in April 2025.

25    As a consequence, the applicant contends that the grant of leave to amend will “unavoidably necessitate vacation of the trial date”. Yet, as French CJ said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]:

there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not been allowed.

26    The applicant further contends that no satisfactory explanation has been given for the delay in raising the s 43B Defence although, as the plurality in Aon stated at [102], such an explanation is “invariably” required where there is delay in seeking leave to amend.

27    For the reasons set out below, I consider that leave to amend to raise the s 43B Defence should be granted on the basis that 28 and 29 April 2025 are set aside for cross-examination on the s 43B Defence. While these days immediately precede closing submissions, it may well be that cross-examination on this issue will take only the first day, given the relatively discrete nature of the question, potentially allowing the parties a day before commencing closing submissions to factor the cross-examination on the s 43B Defence into those submissions.

28    First, the s 43B Defence directly responds to the applicant’s pleaded case as amended on 29 July 2024, when the applicants first sought injunctive relief with respect to the slashing works, and as expanded by further amendments on 30 September 2024. It follows that, on any view, the earliest date at which the inquiries could have been commenced by the respondents into the s 43B Defence was 29 July 2024. Furthermore, those inquiries would have had to be expanded after 30 September 2024 to include at least a consideration of whether historical slashing works may have damaged the habitat of additional species.

29    Secondly, I accept the respondents’ submission that the deferral of the hearing date on 10 October 2025 gave them “their first practical opportunity to carry out those investigations, which time did not permit earlier as the matter was moving quickly to final hearing.” (RS at [8]) In this regard, it was not in issue on the interlocutory application that the respondents did not own the Land before 2021 and therefore did not have knowledge as to whether slashing works had taken place on the Land before that time. Nor was it in issue that the investigation required significant work to be undertaken in order to ascertain the facts and obtain the lay and expert evidence necessary to address the elements of s 43B before the respondents’ legal representatives could be satisfied that it was appropriate to plead the s 43B Defence. It can readily be accepted that the question of whether slashing works had occurred before the Act came into force, the nature and extent of those slashing works, and the question of whether they were lawfully undertaken, required investigations to be undertaken into issues of some factual and legal complexity. I also accept the respondents’ evidence that the historical evidence of slashing was not within their knowledge and it was necessary for them to make enquiries with previous owners of the land stretching back over 30 years which could not feasibly be undertaken in the context of preparations for an urgent trial listed for October 2024.

30    Thirdly, that being so, I accept that the respondents acted promptly once that material had been ascertained to raise the defence with the applicants and seek their position with respect to the proposed amendments. In that correspondence, the respondents explained why the defence had not been pleaded earlier, consistently with their submissions on the interlocutory application. Further, the respondents could have filed the interlocutory application seeking leave to amend earlier in January before the applicants conveyed their opposition to the amendments at the end of January. However, I consider that it was reasonable for the respondents to take steps to avoid filing the interlocutory application by first seeking the applicant’s agreement to the proposed amendments and consider that the respondents acted promptly to file the interlocutory application once the applicants indicated their opposition to the proposed amendments.

31    Fourthly, it is not in issue that the respondents’ s 43B Defence is arguable.

32    Fifthly, if established, the s 43B Defence would be determinative of the application for a permanent injunction insofar as it is sought to permanently injunct the slashing works. It is not in issue that the application for a permanent injunction of the slashing works is an important aspect of the applicant’s claim; nor that the s 43B Defence would constitute an important aspect of the respondents’ defence. As such, I accept the respondents’ contention that the prejudice which they would suffer by being precluded from relying on a statutory defence otherwise available to them under the Act would be significant.

33    In the sixth place, I raised with the parties the question of whether it would be possible for the February trial dates to be shifted to dates in April (were I to defer my variable leave) so as to afford the applicant the opportunity to investigate and prepare its evidence in response to the s 43B Defence, while also maintaining the closing trial dates. However, the parties did not have availability to accommodate a two-week trial in April. That being so, I do not consider that it would be in accordance with the overarching purpose in s 37M of the FCA Act and the principles in Aon Risk to adjourn the whole of the trial to a later date, given that it had already been adjourned once for a six-month period and the detriment that deferring a trial of almost three weeks in total would cause to other litigants in the Court.

34    Finally, the respondents contend that any prejudice to the applicant by reason of the pleading of the s 43B Defence would be ameliorated by setting aside one, or if need be two, days for cross-examination with respect to the s 43B Defence close to the date for final oral addresses. In this regard, the parties have confirmed their mutual availability on 28–29 April for a further hearing, immediately before closing addresses.

35    Against this, as earlier explained, the applicant contends that the evidence given by the applicant’s three expert witnesses and the respondents’ five expert witnesses directly bear on whether the slashing works are a “lawful continuation” of a use of the Land for the purposes of s 43B of the Act. As such, the applicant contends that it will be confronted by tremendous difficulties in cross-examining the respondents’ experts on the s 43B Defence on the February trial dates before it has been able to investigate matters raised by the s 43B Defence. The applicant also rejects the respondents’ suggestion of setting aside separate and later dates for evidence on the s 43B Defence, alleging that it would be “impractical in the extreme” to require up to eight expert witnesses to be recalled for further examination and cross-examination in April 2025. The applicant therefore contends that the grant of leave to amend the respondents’ defence to raise the s 43B Defence will “unavoidably necessitate vacation of the trial date”.

36    I accept that it is likely that the applicant will adduce additional evidence in chief and undertake additional cross-examination in the event that leave to amend to raise the s 43B Defence is granted. I also accept that, in order to investigate matters relevant to meeting the s 43B Defence and prepare additional evidence, the applicant should be afforded essentially the same amount of time as the respondent took with respect to this aspect of its proposed case. I do not, however, accept that it is likely that all of the parties’ expert witnesses will need to be recalled if the s 43B Defence is raised because issues associated with the s 43B Defence are so closely intertwined with the issues otherwise addressed by the expert witnesses. As the applicant submitted, addressing the s 43B Defence involves “different Acts looking at different questions with different timeframes” (T18.3 (Mr Reynolds). Further, whether the applicant would be required to recall all of its experts to address that defence is largely speculative at this stage. Moreover, the respondents have sought to rely upon only one expert witness on the s 43B Defence, subject to whether a further expert might be required if the applicant leads evidence relating to damage to the Wallum Froglet’s habitat (as foreshadowed by the applicant). However, were the applicant to suffer substantial prejudice because of the need to recall expert witnesses for cross-examination, that could be addressed by the fashioning of appropriate orders as to costs in due course.

37    Accordingly, I consider on balance that the factors favouring the grant of leave to amend the Further Amended Defence to raise the s 43B Defence outweigh those against the grant of leave.

5.    CONCLUSION    

38    For these reasons, leave should be granted to the respondents to amend the Further Amended Defence to raise the s 43B Defence. I indicated at the hearing that the question of costs of the application to amend could be considered at the case management hearing on 11 February 2025. However, subject to hearing from the parties, in my view the respondents should pay the applicant’s costs of and associated with the interlocutory application to amend from 24 December 2024 when the respondents served the draft SFAD and the issue was first raised. The question of whether additional costs orders might be warranted to address prejudice suffered by the applicant, as foreshadowed in my reasons, falls to be addressed at a later stage of the proceeding should that prove necessary.

Associate:

Dated:    6 February 2025