Al Maha Pty Ltd v Huajun Investments Pty Ltd

Court of Appeal (NSW)|2018-06-18|Before: Mr J

Solicitors: Project Lawyers (Applicant) Dentons Australia (First Respondent) Crown Solicitor's Office (Second Respondent) Hall & Wilcox (Third Respondent) File Number(s): 2018/164491 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Citation: [2018] NSWLEC 1087 Date of Decision: 26 February 2018 Before: Smithson C File Number(s): 2017/131433

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Applicant's motion

On the same day as it filed the Original Summons, the applicant filed a motion seeking an order pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) transferring the proceedings from the Common Law Division to the L & E Court. Sections 149B and 149E of the Civil Procedure Act provide as follows: "149B Transfer of proceedings between Supreme Court and Land and Environment Court (1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court. (2) … (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section. … 149E Jurisdiction of transferee court The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings."
The applicant's motion also sought an order relieving it of the requirement under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.45(3) to provide the documents referred to in sub-rules 45(3)(d) and (e). UCPR 51.45 relevantly provides as follows: "(3) The summons must, on filing, be accompanied by 4 copies of a folder containing the following: (a) a copy of the summons, (b) a statement of any orders or decision in respect of which relief is sought, (c) the reasons for the decision (if any), (d) the written submissions of the applicant, (e) any other documents that the applicant is seeking to rely on. … (5) The applicant must, on the filing of the summons, file and serve written submissions which must: (a) … (b) contain an outline of the procedural history of the matter, and (c) briefly set out, by reference to the grounds contained in the summons, the applicant's contentions in support of the relief claimed, and … (f) not exceed 20 pages …"
The basis of the transfer application was explained in an affidavit sworn by the applicant's solicitor on 25 May 2018: "In my opinion, it would be in the interests of the just, quick and cheap disposal of the proceedings if they were transferred to and heard by the LEC [Land and Environment Court] because: (a) the issues raised by this application concern issues of planning law that Judges of the LEC have occasion to deal with frequently; (b) appeals on questions of law from decisions of Commissioners of the LEC are heard by judges of that Court, pursuant to s.56A of the Land and Environment Court Act 1979 (LEC Act). In this case, the Applicant has no right of appeal because it was not a party to the proceedings below; and (c) that was the course adopted in another case in which prerogative relief was sought by a non-party to challenge a decision by a Commissioner: see V'Landys v Land and Environment Court of NSW (2012) 193 LGERA 47 at [1 ]."

The "slip" rule

The next step in this moveable feast came on 7 June 2018. On that date the Commissioner added "Amendments" to his decision of 26 February 2018 as follows: "07 June 2018 - Pursuant to rule 36.17 of the UCPR, [6] the slip rule, by consent of the Parties, I amend Annexure A, being the Conditions of Consent of to the orders of 26 February 2018, at the introduction, Condition 1 and Condition 115, and revise the title of approved plan DA2.11D as revision 13, shown at a new Annexure B. These amendments confirm that the consent and approved plans do not authorise the carrying out of any development on 36 Leicester Avenue Strathfield."
On 7 June 2018 a document headed "Notice of Orders Made" recorded the "Amendments" made to the Commissioner's original decision. The present applicant was not a party to the consent orders apparently filed or handed up by Huajun and the Council in the L & E Court.

Judgment of Fagan J

The applicant's motion for transfer of the proceedings to the L & E Court came before Fagan J on 8 June 2018. Although his Honour did not say so in the judgment he delivered, it seems that Huajun consented to or at least did not oppose the applicant's motion.
In a judgment delivered on 12 June 2018 his Honour directed that the Common Law proceedings be removed into the Court of Appeal. [7] Fagan J pointed out, correctly, that the judicial review proceedings should have been commenced in this Court. This conclusion follows from the terms of s 48 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). Section 48(2)(d) of the Supreme Court Act assigns to the Court of Appeal proceedings in the Court for (among other things) an order commanding or otherwise requiring the removal into the Court of any matters before a "specified tribunal", whether for the purpose of quashing or otherwise. [8] A "specified tribunal" is defined to include the "Land and Environment Court or a Judge of that Court". The decision of the Commissioner in the present case is deemed to be a decision of the L & E Court. [9]
It appears that the applicant may have been mistakenly advised by the registry to file the judicial review proceedings in the Common Law Division. Fagan J accepted that despite the proceedings incorrectly having been commenced in the Common Law Division, the proceedings could be continued and disposed of in the Division. [10] Nonetheless, his Honour considered that it was appropriate to make an order removing the proceedings into the Court of Appeal. [11]
Fagan J gave two reasons for removing the proceedings into this Court. First, is the policy of Parliament, reflected in s 48 of the Supreme Court Act, that the Supreme Court's supervisory jurisdiction should be exercised by the Court of Appeal and not a single Judge of a Division. [12] Secondly, any decision his Honour made on the application to transfer the proceedings to the L & E Court would not be subject to appeal. [13] His Honour thought it appropriate that the applicant have the opportunity to have the transfer application determined by the Court of Appeal. [14]
Fagan J nonetheless observed that he did not think that the case for a transfer to the L & E Court was clear-cut, for three reasons:

The effect of a transfer to the L & E Court would allow the applicant to argue a question of law arising from the Commissioner's decision when the applicant, as a non-party, had no right of appeal to the L & E Court from that decision. [15]
Such authority as there is suggests that an order for transfer to the L & E Court is not appropriate where the effect of the order to enable the L & E Court to exercise the power of judicial review over a decision of that Court. [16]
In any event his Honour did not consider the applicant's arguments favouring transfer carried any weight.

It does not appear from Fagan J's judgment that his Honour's attention was drawn to the "Amendments" made to the Commissioner's decision pursuant to the slip rule.

Amended Notice of Motion

On 13 June 2018, the applicant filed an amended notice of motion. The amended motion deleted the proposed order transferring the judicial review proceedings to the L & E Court. Instead the amended motion sought the following relief: "2 The applicant be relieved of the requirement under r 51 45(3) of the Uniform Civil Procedure Rules 2005 to provide the documents referred to at sub-rule 3(d) and (e) until 14 days after each of the First and Third Respondents has fully complied with the notice to produce issued to it on 12 June 2018. 3 The applicant be granted leave to amend the Summons (Judicial Review) in the form of annexure 'A' to this notice of motion."
The draft amended summons (Amended Summons) seeks additional relief as follows: "Pursuant to sections 65 and/or 69 of the Supreme Court Act 1970, an order in the nature of certiorari quashing the decision purported to have been made on 7 June 2018 on behalf of the Registrar of the Second Respondent to amend the conditions of the Development Consent."
The draft additional grounds are as follows: "3 The decision to grant the Development Consent was affected by jurisdictional error, or alternatively error of law on the face of the record, in that the Commissioner failed to satisfy herself that the Third Respondent's written request to justify contraventions of development standards prescribed by the Canada Bay Local Environmental Plan 2013 (LEP) adequately demonstrated that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case, and that there were sufficient environmental planning grounds to justify contravening the development standard, or alternatively, if the Commissioner was satisfied of those matters, she failed to record in writing the reasons for arriving at that conclusion. Particulars (a) The development the subject of the DA (as amended) infringed the development standard in the LEP for height (clause 4.3). (b) Pursuant to clause 4.6(3) of the LEP, development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. (c) Pursuant to clause 4.6(4) of the LEP, development consent must not be granted for development that contravenes a development standard unless the consent authority is satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. (d) In her reasons for judgment, the Commissioner stated at [3] that she was not required to make, and did not make, any merit assessment of the issues that were originally in dispute between the parties. (e) Whether the First Respondent's clause 4.6 variation request adequately justified contravening the development standard in clause 4.3 of the LEP was one of the issues raised by the Council in its Amended Statement of Facts and Contentions. (f) In the premises, the Commissioner failed to form the requisite state of satisfaction required by clause 4.3(4), and therefore the decision to grant consent was not a decision that the Court could have made in the proper exercise of its functions under s.34(3) of the LEC Act. (g) Further or in the alternative, if the Commissioner was satisfied of those matters, she failed to record in writing the reasons for arriving at that conclusion, and failed to set out in writing the terms of her decision in that regard, in breach of s.34(3)(b) of the LEC Act and/or her common law duty to give reasons for her decision. 4 The decision to amend the conditions of the Development Consent was affected by jurisdictional error because it was not authorised by rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR) or otherwise. Particulars (a) The decision to amend the condition was purported to have been made pursuant to rule 36.17 of the UCPR. (b) Rule 36.17 of the UCPR provides that if there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. (c) The amendments purported to have been made to the introduction, conditions 1 and 115 and approved plan DA2.11D were substantive amendments requiring the exercise of discretion by the Court, and did not merely correct a clerical mistake or an error arising from an accidental slip or omission. 5 The decision to amend the conditions of the Development Consent was affected by jurisdictional error because it was made without first giving the Applicant a right to be heard in relation to those proposed amendments, and the Applicant was thereby denied procedural fairness. Particulars (a) These proceedings had been commenced at the time the purported decision was made. (b) The decision purported to have been made by the Registrar could (if valid) potentially affect the rights and interests of the Applicant by removing its land from the development approved by the Development Consent, and also because it could impact on the Applicant's right to relief in these proceedings. (c) As such, the Registrar could not validly amend the Conditions without first affording the Applicant a right to be heard."
For reasons that are not clear I did not receive the applicant's amended notice of motion or the draft amended summons until the morning of the hearing. To add to the flavour of a moveable feast, at the outset of the hearing Mr Leggat SC, who appeared for Huajun, indicated that in view of the applicant's change of heart Huajun now wished to file its own motion seeking an order pursuant to s149B of the Civil Procedure Act that the judicial review application be transferred to the L & E Court. Huajun was given leave to file in court a motion seeking such an order. In his oral submissions Mr Leggat indicated that Huajun opposed the relief sought in the applicant's amended motion.

Amended Summons

Mr Leggat did not claim that Huajun would suffer any prejudice in a relevant sense if leave was given to the applicant to file the Amended Summons. Mr Leggat's main contention, as I understood it, was that draft Grounds 3, 4 and 5 have insufficient prospects of success to warrant granting leave to amend at this stage of the proceedings. In addition Mr Leggat submitted that the object of UCPR r 51.45(3) and (5) is to ensure that an applicant has formulated its case at the time the summons seeking judicial review is filed and that caution should be exercised before permitting substantive amendments to be made.
Ground 4 of the draft amended summons raises an issue that may be of some significance and in my view is reasonably arguable. It is hardly surprising that Ground 4 was not included in the Original Summons since the "Amendments" to the Commissioner's decision had not been made at that point.
Ground 5 is perhaps of more doubtful merit because the applicant was not a party to the proceedings in the L & E Court and had not sought to be joined to the proceedings. Nonetheless, Ground 5 is closely related to Ground 4 and, in the absence of prejudice to Huajun, the applicant should be permitted to rely on it in the proceedings.
Ground 3 raises quite separate issues. Mr Leggat submitted that Ground 3 is essentially an attempt to canvas the merits of the Commissioner's decision and does not identify anything that can be characterised as a jurisdictional error or error of law on the fact of the record (both of which are now relied on by Huajun).
In my opinion it is at least arguable that Ground 3 raises a genuine question suitable for determination on an application for judicial review, namely whether the Commissioner's decision was one that the Court could have made in the proper exercise of its functions within the meaning of s 34(3) of the L & E Court Act. It undoubtedly would have been better if the applicant had identified this ground in the Original Summons. However in the absence of prejudice to Huajun, I do not think that the applicant should be shut out from relying on Ground 3.
Accordingly, the applicant should be granted leave to file the Amended Summons.

Transfer to the L & E Court

Mr Leggat essentially adopted the arguments advanced on behalf of the applicant when it sought an order transferring the proceedings to the L & E Court. Mr Leggat contended that the proceedings would be heard more quickly in the L & E Court which in any event had specialist expertise that made it the more suitable forum to determine the judicial review application.
Fagan J expressed the view that it was not appropriate for the matter to be transferred to the L & E Court. The position has changed since his Honour delivered judgment in that the applicant has withdrawn its motion and Huajun has filed its own transfer motion. Much of Fagan J's reasoning is, however, applicable to Huajun's motion.
I do not accept Mr Leggat's submission that the L & E Court has special expertise in relation to the issues raised by the amended summons such that it is the more appropriate forum to determine the judicial review application. This conclusion involves no disrespect whatsoever to the L & E Court. The issues raised by the amended summons are characteristic of judicial review applications. They include questions of statutory construction and the scope of a court's power to correct or modify its own judgments. These are matters which, as Fagan J pointed out, Parliament has directed ordinarily should be decided by the Court of Appeal. This is not a case, for example, where the Court of Appeal is asked to conduct a merits review of a decision to grant a development consent.
Grounds 4 and 5 of the Amended Summons raise potentially significant issues as to the circumstances in which parties to a Class 1 application can consent to an amendment to orders made by the L & E Court, in circumstances where the effect may be to prejudice a non-party. Again it involves no disrespect to the L & E Court to observe that there are reasons why it is appropriate for the Court of Appeal to exercise the jurisdiction conferred on it by statute to determine questions relating to the powers of the L & E Court rather than for an order to be made transferring the matters to that Court.
Nor do I accept Mr Leggat's argument that the L & E Court is the appropriate forum because it will provide an earlier hearing. The groundwork for that argument has not been laid. No evidence has been adduced as to why the matter is to be regarded as urgent and no application has been made to this Court to grant an expedited hearing. If and when such an application is made it will be decided on its merits.
Mr Leggat drew attention to V'Landys v Land and Environment Court. [17] In that case Biscoe J recorded that the Court of Appeal had made an order for the transfer to the L & E Court of an application for prerogative relief in the nature of certiorari quashing a decision of a Commissioner. Fagan J observed that he had been unable to determine whether the transfer in V'Landys had been made by consent or otherwise. Huajun's submissions on the present motion have not carried the matter further.
In Young v King, [18] Basten JA expressed the view that it would not be appropriate to transfer to the L & E Court an application for judicial review of "the very court whose orders are the subject of the relief sought". [19] The circumstances in Young v King were not identical to the present case in that the decision of the L & E Court in that case was made by a Judge of the Court rather than a Commissioner. Nonetheless in my opinion similar considerations apply to an application for judicial review of a decision of the Commissioner which is deemed by statute to be a decision of the Court. I do not suggest that there can never be circumstances in which it is appropriate to transfer proceedings seeking judicial review of a decision made by a Commissioner of the L & E Court. But the circumstances would need to be much more compelling than are present in this case.
I therefore I propose to dismiss Huajun's motion.

Rule 51.45

The applicant submitted that it should not have to provide a folder including its written submissions or the documents it relies on [20] until Huajun complies with a notice to produce issued by the applicant. I was informed that Huajun has filed a motion seeking to have the notice to produce set aside.
I expressed the view at the hearing that the applicant should comply with the requirements of sub-rr 45(3)(d) and (e) and 45(5)(c) as best it can. Once the dispute relating to the notice to produce is resolved the applicant can seek such leave as may be necessary to amend the documents it has filed and served.
I therefore made the following directions at the hearing:
Extending the time for the applicant to comply with the requirements of UCPR r 51.45(3)(d) and (e) and r 51.45(5)(c) until 25 June 2018.
Requiring the applicant to comply with the requirements of UCPR r 51.45(3)(d) and (e) and r 51.45(5)(c) by 25 June 2018.

Costs

Neither party disputed that the costs of the various motions should be the costs in the appeal.

Orders

Grant leave to the applicant to file an Amended Summons in the form of Annexure A to the amended notice of motion filed on 13 June 2018.
Note the directions made by the Court on 18 June 2018.
Dismiss the motion filed in Court by the respondent on 18 June 2018.
Costs of each motion to be costs in the appeal.

Endnotes

Such appeals are with the Class 1 jurisdiction of the L & E Court: Land and Environment Court Act 1979 (NSW) (L & E Court Act), s 17(d). The Environmental Planning and Assessment Amendment Act 2017 (NSW), which came into force on 1 March 2018, introduced decimal numbering into the EPA Act. This judgment retains the previous numbering.
Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087.
L & E Court Act, s 34(3).
See EPA Act, s 97A(1)(a).
L & E Court Act, s 56A(1).
UCPR r 36.17 provides as follows:

"Correction of judgment or order ('slip rule') If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 7. Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867 (Common Law Judgment). 8. Section 48(3) of the Supreme Court Act creates a presently irrelevant exception. 9. L & E Court Act, s 36(3). 10. Supreme Court Act, s 51(1)(a), (d). 11. Pursuant to Supreme Court Act, s 51(1)(b). 12. Common Law Judgment at [9]. 13. Civil Procedure Act, s 149B(3). 14. Common Law Judgment at [10]. 15. Common Law Judgment at [11]. The right of appeal conferred by s 56A of the L & E Court Act from a decision of the L & E Court made by a Commissioner in Class 1 proceedings is available only to a party to the proceedings. 16. Common Law Judgment at [12], referring to Young v King [2016] NSWCA 282 at [15]-[19] (Basten JA, Gleeson JA agreeing). 17. [2012] NSWLEC 218. 18. [2016] NSWCA 282. 19. Young v King at [18]. 20. UCPR r 51.45(3)(d)(e), 5(c) reproduced at [6] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2018

Environmental Planning and Assessment Amendment Act 2017(NSW)

Environmental Planning and Assessment Regulation 2000(NSW)

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