Australia, March 31 -- New South Wales Land and Environment Court issued text of the following judgementon March 4:

1. THE COURT: Stephen Haigh and Dimitrios Kikiras (the applicants) seek leave to appeal against orders made on 26 July 2024 by Weinstein J (the primary judge) in Haigh v Haddad [2024] NSWSC 904, of which the most significant was an order that the proceedings brought by the applicants in the Common Law Division of the Supreme Court be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. Leave to appeal is required under s 101(2)(e) and s 101(2)(l) of the Supreme Court Act 1970 (NSW). Leave to appeal will only be granted if the applicant demonstrates that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the authorities referred to in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).

3. The procedural history which led to the current application is, in summary, as follows. By notice of motion filed 28 May 2021, Sam Haddad (an officer of the Department of Planning) and the State of New South Wales (the State), together "the respondents", sought orders that the statement of claim be dismissed as an abuse of process under r 13.4 or, alternatively, struck out under r 14.28 of the UCPR. The application was heard by Harrison AsJ, who struck out the whole of the statement of claim but granted Mr Kikiras limited leave to replead in relation to a claim for psychiatric injury: Haigh v Department of Planning NSW [2022] NSWSC 1434. The applicants' appeal from those orders was dismissed by the primary judge, who allowed the respondents' cross-appeal (against the limited leave granted to Mr Kikiras to replead) and dismissed the proceedings.

4. In submitting that leave to appeal to this Court from the primary judge's orders ought be granted, the applicants identified the following four questions which they contended arise from the grounds of appeal:

(i) Whether the Applicants' case should have been summarily dismissed by the Primary Judge without a hearing on the merits by reason of reflective loss;

(ii) Whether alternatively the proceedings are an abuse of this Court's process as unjustifiably vexatious and oppressive having been brought twice before;

(iii) Whether the issues of loss and causation are triable issues of fact and law which along with 20 identified like issues should have been resolved at trial; and

(iv) Whether the Primary Judge correctly applied the principles of summary dismissal.

5. These questions arise in the following context. The applicants are joint venturers in a business known as the Haigh Group which develops small to medium density housing, mainly in the Randwick and Botany Bay Council areas. They operated the business through various corporate entities, including Jazabas Pty Ltd (Jazabas), which were ultimately owned by the applicants and their wives.

6. In 1985, the Department of Planning prepared a Risk Assessment Study for the Botany/Randwick Industrial Complex and Port Botany (the RAS) which identified a risk reduction zone, which fell within the City of Botany Bay Council (the Council) area.

7. In 1994, Jazabas completed the purchase of a property at Hillsdale (the Hillsdale property) which fell within the risk reduction zone identified in the RAS. In 1998 it sold the Hillsdale property for a profit.

8. The applicants allege that, in November 1998, the Minister for Urban Affairs and Planning, on behalf of the State, decided to approve a replacement chlorine plant proposed by Orica Australia Pty Ltd (Orica) to be located near those developments, without regard to the hazardous transportation risks, as required by State Environmental Planning Policy 33 and Hazardous Industry Planning Advisory Paper 6. They allege that they suffered loss as a result of the acts and omissions of the respondents.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1954968931b7dafac5456987)

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