Australia YMCI Ltd v Secretary of the Department of Customer Service [2021] NSWSC 1114 | Case summary

Supreme Court of NSW|2021-06-29|Before: Walton J

Solicitors: Colin Biggers & Paisley Pty Ltd (Plaintiff) Department of Customer Service (Defendant) File Number(s): 2021/120521

Judgment

HIS HONOUR: On 12 February 2021, an authorised delegate of the Secretary of the Department of Customer Service ("the Secretary"), the Building Commissioner, Mr David Chandler, issued a building work rectification order ("the order") under s 33 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) ("the Act") in relation to the residential apartment building identified as the "Ovation Quatre" under construction on land described as Strata Plan 101328 in Lidcombe, New South Wales ("the building"). By the order, Australia YMCI Ltd ("YMCI") was required to rectify certain defects said to exist in the building as specified in Schedule A to the order.
The order identified YMCI as the developer of the building for the purposes of s 4 of the Act. It also identified that notices of a proposed building work notification had been given on 18 November 2020 and 18 January 2021 and that the initial response from YMCI was to express an intention to undertake remedial rectification work. However, YMCI's subsequent response provided a rectification proposal which did not address, according to the Building Commissioner, all of the defects identified in Schedule A to the order.
As recorded in the order (at para 4), the Building Commissioner made the order having formed the view that "[d]uring inspections, the Compliance Officers observed building work that had been carried out that could result in serious defects" in relation to waterproofing and adhesion of wall tiles. On that basis, the Building Commissioner decided, pursuant to s 33(1) of the Act, that he held a "reasonable belief that building work was or is being carried out in a manner that could result in a serious defect in relation to a residential apartment building".
On 5 March 2021, the solicitor for YMCI communicated to the Department of Customer Service ("the Department") an application by YMCI for the revocation of the order ("the revocation application"). One of the grounds of the application was that the order was invalid.
On 9 March 2021, the Building Commissioner modified that period specified for compliance with the order. The order was modified to extend the time for compliance to 15 September 2020.
On 10 March 2021, YMCI filed an appeal in a form entitled "Application Class 2" under s 49(3)(a) of the Land and Environment Court Act 1979 (NSW) ("the LEC Act") in the Land and Environment Court of NSW ("the LEC") with respect to the order. The appeal was in the Class 2 jurisdiction of the LEC pursuant to s 18 of the LEC Act. . No grounds were stated in the appeal. The relief sought by YMCI in the appeal was expressed in the following terms: "an order pursuant to s 49(3)(a) of [the Act] revoking [the order] that was purportedly made under s 33 of the Act".
YMCI subsequently amended the revocation application, although the revocation application maintained that the order was invalid.
Prior to the determination of the amended revocation application, YMCI commenced judicial review proceedings in this Court by a summons filed on 30 April 2021 ("the judicial review proceedings").
YMCI sought prerogative writ relief in the judicial review proceedings included an order in the nature of certiorari quashing the order and a declaration that the order was invalid. The grounds upon which it was suggested that the order was invalid included that the preconditions for the exercise of power to give the order had not been satisfied at the time the order was given, that the decision to give the order was legally unreasonable and the order did not, contrary to s 39(1) of the Act, specify a reasonable period within which the order must be complied with.
In response to the judicial review proceedings, and in support of the dismissal of the summons, the Secretary relied upon two primary propositions: 1. That YMCI had a right of appeal to the LEC against the order pursuant to s 49(1) of the Act and had filed such an appeal. Hence, the Court should withhold relief on discretionary grounds. 2. As to grounds 1 and 3, the decision of the Building Commissioner to make the order was not affected by jurisdictional error by the non-compliance with Pt 5 of the Act or by reason of non-compliance with s 39(1) of the Act.
The Secretary indicated, on 12 May 2021, that it intended to make an application to transfer the judicial review proceedings in this Court to the LEC.
On 13 May 2021, the judicial review proceedings were adjourned to 25 June 2021, pending the outcome of its request to the Building Commissioner that the Secretary (or its delegate) revoke the order using a purported separate administrative power under s 33(6)(a) of the Act.
On 18 June 2021, the Secretary filed a notice of motion in this Court seeking that "the judicial review of the Secretary's decision that was commenced by way of Supreme Court summons be transferred to the Land and Environment Court pursuant to s 72 of [the LEC Act]". At the commencement of the proceedings in the Court's Duty List, leave was granted to amend the motion so as to permit reliance on both s 72 of the LEC Act and s 149B of the Civil Procedure Act 2005 (NSW). (That motion, as amended, shall hereinafter be referred to as "the transfer motion").
On 21 June 2021, YMCI filed a notice of motion seeking, inter alia, expedition of the judicial review proceedings and, alternatively a stay of the orders ("the stay motion").
On 25 June 2021, YMCI sought a referral to the Duty Judge so that the transfer motion and, if appropriate, the stay motion could be heard urgently.
The transfer motion was referred but not the stay motion (although both parties made submissions as to the stay).
This judgment concerns the transfer motion.

THE EVIDENCE

The Secretary relied upon the affidavit of Phillipa Jew Long, sworn 12 May 2021 (filed 18 June 2021).
The YMCI relied upon the affidavits of James Andrew Neal sworn on 21 June 2021 ("the first Neal affidavit") and 28 June 2021 ("the second Neal affidavit"), together with an exhibit JAN-1.

The Secretary

In summary, the Secretary made the following submissions in support of the transfer motion and, for the purposes of s 149B of the Civil Procedure Act, contentions as to why the respective LEC proceedings and judicial review proceedings in this Court were related and that it is more appropriate for those proceedings to be heard together: 1. The LEC is the specialist court given jurisdiction by Parliament to entertain appeals and challenges against building work rectification orders made under the Act. This is the effect of s 49 of that Act. The Parliament's intention to make the LEC the forum for challenges to decisions made under the Act extends to the LEC's jurisdiction in proceedings under ss 10, 30, and 52 of the Act (see s 18(l) of the LEC Act). The LEC's powers under s 49(3) of the Act are broader than the powers of this Court in an application for judicial review. 2. The YMCI will face a significant obstacle in obtaining relief in the judicial review proceedings in this Court that would likely fall away were these proceedings heard in conjunction with the LEC proceedings. There is a strong prospect that this Court would exercise a discretion to refuse to exercise the judicial review proceedings jurisdiction for prerogative relief where there exists an alternative avenue of appeal; namely, giving recognition to a legislative scheme provided for by Parliament for internal appeals before a specialised tribunal. The tribunal has an advantage of the development in jurisprudence and has a wide armoury of remedies. The statutory jurisdiction of the LEC and the discretionary obstacles which YMCI will inevitably face in the judicial review proceedings, point powerfully in favour of transfer to the LEC. 3. YMCI has commenced two different sets of proceedings in two different courts in relation to what is in essence the one controversy. Given the relief sought under s 49(3)(a) of the Act, there is virtually a complete overlap between the proceedings. Further, s 49 of the Act provides YMCI with a "full review of the [challenged decision]". An appeal under s 49 in the Class 2 jurisdiction of the LEC incorporates an examination of whether the decision made had exceeded the power of the decision maker and allows a full review of the "legal metes and bounds" of the exercise of power including procedural irregularities. The LEC cannot exercise a power in a Class 2 appeal brought under s 49 of the Act without making an assessment as to the scope of power. To the extent the decision of the Building Commissioner was said to be illogical or irrational or that no reasonable decision maker could have made the order, the issues can be addressed in the merits appeal. 4. The proceedings in this Court and in the LEC are clearly "related" in the sense used in ss 149A and 149B(2) of the Civil Procedure Act. The weight of authority outlined below supports the "highly desirable" outcome that determination of two related proceedings be "in a single Court" (People for the Plains Incorporated v Santos NSW (Eastern) [2015] NSWSC 1792 ("People for the Plains") at [6]; see also Vincent Land Pty Ltd v Maitland City Council [2017] NSWSC 719 ("Vincent Land") at [6]). This is particularly so in the present context because if both courts exercise jurisdiction, there is a very serious risk of inconsistent judgments. The preferable course is to allow one court, the LEC, to case manage both proceedings in the most appropriate way as determined by that Court. 5. It is accepted that the Parliament has chosen not to give judicial review power to the LEC, with respect to an appeal under s 49 of the Act, and that a contention may be advanced that the Parliament decided, therefore, that such cases are to be determined in this Court. There are, however, a number of countervailing considerations, which are as follows: 1. The reason no express power was given to the LEC for judicial review proceedings under Class 4 in the instant case is that it was unnecessary because the right of appeal afforded under s 49 of the Act and the relief available therein. It was submitted that "there is this breadth of scope for review under section 49 means it would have been wholly unnecessary for the Parliament to have separately given the LEC power to hear in Class 4 of its jurisdiction that which it already had power to hear in Class 2 of its jurisdiction". 2. If there was a discrete jurisdictional error point and no debate on the merits, an applicant may still able to bring that argument under s 49. Hence, YMCI could bring that challenge irrespective of the absence of merit issues. 3. The basis for this conclusion was that YMCI is provided a right of appeal within certain time constraints which confers power in the LEC pursuant to s 49(3)(a) and (f) of the Act, namely, a power to revoke the decision under review where there was no power to make it and a power to make "any other order" with respect to the order "as the Court thinks fit". 4. An illustration provided by the Secretary was that, in reviewing a decision to make the order under s 49 of the Act and in granting relief under s 49(3), the LEC could not disregard something which could have the effect of rendering it impossible to have exercised the power. 5. YMCI's case ignores the substantial body of authority, namely, NSW Breeding & Racing v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494 ("Breeding & Racing") and Lindsay v NSW Medical Board [2008] NSWSC 40 ("Lindsay") which stand for the proposition that where the Parliament has decided there is a right of appeal to a particular body, there are powerful discretionary factors weighing against the grant of prerogative relief. The Parliament may be presumed to have taken those authorities into account in sense that Parliament would not have provided a choice between Class 2 and Class 4 appeals. 6. The Court should not infer, therefore, that because Parliament has decided that the particular type of appeal would not fall under Class 4, the power should reside in this Court. YMCI should first exhaust domestic appeals. 7. Upon transfer, the LEC would not lack jurisdiction to hear "the dispute" on foot on this Court because of the power of s 149E of the Civil Procedure Act. The Parliament has expressly recognised that the LEC may exercise any power transferred. 8. Section 149D of the Civil Procedure Act provides that the grant of the transfer motion would mean the respective proceedings are heard together. 9. The determination of whether some aspect of administrative decision is ultra vires is, even in a merits review, central to the decision maker's power including a power to remake the decision. 10. The question of the illogical or irrationality of a decision must overlap factually and logically with a merits review. 11. Having appealed against the order to the LEC, YMCI had excited the jurisdiction of that Court even as to YMCI's contention that the order is affected by jurisdictional error. 1. Once it is accepted that the two proceedings may be determined in a single court, the desirability of transferring the judicial review proceedings to the LEC is clear; a transfer in the opposite direction is not a suitable option. This is because the LEC has the power under its Class 2 jurisdiction to conduct a full review of the defendant's decision (including on the merits) because of the conferral of power under s 49(3) of the Act. This can be done in the LEC by a Commissioner or by a Commissioner sitting with a judge (see s 37 of the LEC Act). This Court cannot adopt the same procedure and lacks the assistance of Commissioners. Instead, a judge of the Common Law Division would, if the LEC proceedings were transferred to this Court, have to deal with both the merits and the legal issues raised by YMCI. The ability of a judge of the LEC to sit with a Commissioner in this case is one available option that allows for the issues of law and fact to be resolved in one proceeding in a manner that best utilises the available judicial and quasi-judicial resources. 2. In circumstances where there is any likelihood that this Court will refuse YMCI relief in the judicial review proceedings on discretionary or other grounds, the hearing of this matter first will merely result in further delay and wasted costs. This is because, if the Court refuses relief and dismisses YMCI's summons, then YMCI's challenge to the order on its merits will still need to be heard in the LEC. Even if the judicial review proceedings were to succeed, the possibility of a subsequent decision being made and challenged on its merits could not be excluded; in this sense, the merits review would merely have been delayed by the determination of a dispute which could and should have been determined at the same time as that review. 3. Another relevant factor which makes the LEC the more appropriate forum, is the fact that the parties will likely be required to participate in a conciliation conference under s 34 of the LEC Act. This can be done promptly and could help resolve the dispute or narrow the issues in dispute. The same mechanism is not available in a judicial review proceedings in this Court. 4. Another factor favouring transfer at this moment to the LEC and allowing that Court to exercise its statutory jurisdiction is that it can potentially provide more flexible interim relief under s 49(3) of the Act for YMCI, if appropriate. This consideration is particularly relevant because, of the stay motion. In this context, a transfer to the LEC is more desirable and of greater benefit to YMCI because the LEC can "make any order with respect to compliance with the building work rectification order as the Court thinks fit", pursuant to s 49(3)(e). In other words, the LEC has power to simply extend the time for compliance with the order or otherwise craft an appropriate interim remedy rather than having to resort to the more blunt remedy of a stay of the order. This could be done as part of, or in conjunction with, the compulsory conciliation under s 34 of the LEC Act. This is potentially beneficial to YMCI. Ordinarily a stay of an administrative decision requires the applicant for the remedy to provide an undertaking as to damages: see Mohamed t/as Billan Family Day Care v Secretary, Department of Education, Skills & Employment [2020] FCA 900 at [22]-[27] (per O'Bryan J). Such an undertaking would potentially extend to third parties, including owners and future or prospective owners. 5. A single court appraised of all issues across both sets of proceedings, is the most efficient means of resolving the controversy. Only when YMCI have told the Court what is truly in issue in relation to the merits will it be possible to know whether carving out issues is more efficient. The Secretary is content to work out with YMCI the most efficient means of resolving the controversy in the LEC including the use of a conciliation conference. 6. YMCI has overestimated the time and cost of hearing the proceedings together, particularly as Class 2 proceedings must be conducted with as little formality and technicalities and with as much expedition as the LEC Act, and the proper consideration of the matters in dispute, permits. Section 38(1) of the LEC Act, together with practice notes issued under that Act, would facilitate this end. 7. If YMCI loses in this Court, a hearing on the merits in the LEC would follow, which, in any event, could still deal with the metes and bounds of power, overlapping what may have occurred in this Court. If YMCI succeeds in this Court, the decision is referred back to the decision maker who may make a decision which is again challenged on the merits. 8. This Court should not stay the order if the proceedings are transferred to the LEC by reason that the LEC has a wider range of powers to furnish relief which are less "blunt" than a stay order. 9. There are various policy reasons in favour of granting the transfer motion as follows: 1. The need for finality in the administration decision making powers which favours the determination of the related proceedings in the LEC. 2. The effect of an order by the LEC under s 49(3) of the Act will be to bring administrative finality to the subject matter of these proceedings because the LEC's decision can only be further appealed on a question of law, thus, bringing the administrative decision making process to an end. By contrast, a writ of certiorari from this Court will only result in the matter returning to the Building Commissioner who has power to make a new building work rectification order, which can (and likely will) then be challenged again in the LEC under s 49 of the Act. This is not only undesirable from an administrative law point of view, but it would also be a waste of money for the parties, and an inefficient allocation of judicial resources. 3. The LEC's wider powers to deal with the underlying substance of YMCI's challenge of the order allows it to consider the broad public interest at issue, namely, the interest of residents in the building, lot owners, and consumers who may be purchasing lots in the building which the Building Commissioner has found to have serious defects.

YMCI

In summary, YMCI made the following submissions: 1. These proceedings are not proceedings that "could or should" have been commenced in the LEC for the purposes of s 72 of the LEC Act. 2. If this Court were satisfied in relation to the proceedings before it that it is appropriate to transfer the proceedings to the LEC under s 149B of the Civil Procedure Act, the Court should not exercise its discretion to transfer these proceedings for following reasons. 3. Parliament could have, but did not, confer "Class 4" jurisdiction on the LEC in relation to orders purportedly made under s 33 of the Act: see s 20 of the LEC Act. 4. The effect of granting the transfer motion is to confer on the LEC a jurisdiction it does not otherwise have. 5. The Secretary needs, therefore, to convince this Court that the Court should confer a jurisdiction in the LEC which it does not otherwise have. 6. In an appeal under the Class 2 jurisdiction of the LEC, the YMCI must assume, contrary to the case in this Court, that the purported decision is valid and challenge it on a merits basis. That is why the appeal is expressed in the manner that it is. 7. The question of validity is logically anterior to the question of the merits of the dispute. That issue should be determined first. 8. This Court is clearly an appropriate forum for hearing the noting its constitutionally entrenched jurisdiction to review purported decisions of administrators such as the purported order under review: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 ("Kirk") at [96]-[100]. 9. The judgment of this Court in the judicial review proceedings would create an issue estoppel in any further LEC proceeding and, in any event, YMCI gave an undertaking that, if this Court determined the order to be valid, it would make no inconsistent submission in the LEC. There is, therefore, no risk of inconsistencies in judgments of different Courts. 10. There is only one controversy about validity and it is in this Court. 11. A transfer would cause delay, additional cost, prejudice to YMCI and (probably) result in additional interlocutory disputation for no corresponding benefit: Civil Procedure Act s 56-60 (reference in that respect was also made the second Neal affidavit at paras 15-29 and the first Neal affidavit at para 32). The following factors are relevant in that respect: 1. In the event of a transfer, YMCI would be seeking to have the judicial review proceedings heard first which, if accepted, would potentially render the effect of the transfer nugatory (potentially after an interlocutory hearing on the procedure to be adopted). 2. Alternatively, if the proceedings were heard together, there would be significant additional time and cost as deposed by Mr Neal in his affidavits. He estimated a one day judicial review hearing in contrast to a merit hearing in the LEC in the order of 4.5 days. 1. If the Court made an order transferring these proceedings, despite the YMCI's submission, the Court should make an order staying the operation of the order until further order of this Court or the LEC. The application for judicial review has strong prospects of success and the balance of convenience supports a stay being granted, particularly in the circumstances where the judicial review proceedings could largely be rendered nugatory if a stay is not granted.

LEGISLATION AND LEGAL PRINCIPLES

The order was issued pursuant to s 33 of the Act. Section 33, relevantly, provides: 33 Power to order rectification (1) If the Secretary has a reasonable belief that building work was or is being carried out in a manner that could result in a serious defect in relation to a residential apartment building, the Secretary may give an order under this Part to a developer in relation to building work (a building work rectification order). (2) A building work rectification order is an order that requires the developer in relation to building work to carry out building work or refrain from carrying out building work, or cause building work to be carried out or refrained from being carried out, as specified in the order to eliminate, minimise or remediate the serious defect or potential serious defect. (3) A building work rectification order - (a) is to be made by notice in writing given to the developer, and (b) may be unconditional or subject to conditions. (4) Without limiting subsection (3)(b), a building work rectification order may be subject to a condition requiring notification to the Secretary of compliance with the order. (5) The Secretary may, by written notice given to a developer who is subject to a building work rectification order, impose a condition on the order or revoke or vary a condition of the order. (6) A building work rectification order remains in force until one of the following occurs - (a) the order is revoked by the Secretary, (b) the term (if any) of the order ends. …
An appeal lies to the LEC against such an order pursuant to s 49(1) of the Act. Section 49 is extracted below: 49 Appeals concerning orders (1) A developer who is given a building work rectification order may appeal to the Land and Environment Court against the order. (2) The appeal may only be made within 30 days after the building work rectification order is given to the developer unless the Court grants leave for it to be made after that time. (3) On hearing an appeal, the Court may - (a) revoke the building work rectification order, or (b) modify the building work rectification order, or (c) substitute for the building work rectification order any other order that the Secretary could have given, or (d) find that the building work rectification order is sufficiently complied with, or (e) make any order with respect to compliance with the building work rectification order as the Court thinks fit, or (f) make any other order with respect to the building work rectification order as the Court thinks fit.
In general terms, the jurisdiction of the LEC to hear such an appeal made under s 33 is provided by s 16(1) of that LEC Act. Division 1 of Part 3 of the LEC Act provides a jurisdiction in the LEC to hear particular classes of appeal (see ss 17-21C).
As mentioned the appeal brought by YMCI under s 49(3)(a) falls within the Class 2 jurisdiction of the LEC pursuant to s 18(l) of the LEC Act.
The Class 2 jurisdiction of the Court primarily involves appeals under various Acts including, inter alia, appeals with respect to the following: 1. approvals, particulars of work and annual charges under the Local Government Act 1993 (s 18(a) of the LEC Act); 2. directions under the Roads Act 1993 (NSW) (s 18(a1) of the LEC Act); 3. compliance certificates under the Water Management Act 2000 (NSW) (s18(a2) of the LEC Act); and 4. strata certificates under the Strata Scheme Development Act 2015 (NSW) (s 18(c) of the LEC Act).
The Class 2 jurisdiction also concerns certain proceedings and actions: 1. for an order prohibiting registration of the transfer of an access licence or holding in an access licence under s 71X(5) of the Water Management Act (s 18(a3) of the LEC Act); 2. the refusal of an amendment of a strata development contract under s 85 of the Strata Schemes Development Act (s 18(c) of the LEC Act); and 3. the provision assistance to authorised officers under the Design and Building Practitioners Act 2020 (NSW) (s 18(k) of the LEC Act).
As to the Act, in addition to an appeal under s 49, s 18(l) of the LEC Act provides jurisdiction with respect to the following: 1. appeals from a prohibition order (s 10 of the Act); 2. appeals against a stop work order (s 30 of the Act); and 3. appeals concerning compliance cost notices (s 52 of the Act).
The Class 2 jurisdiction of the Court may be exercised by a judge of the LEC (Pt 2, Div 2) or a Commissioner of the LEC (Pt 2, Div 3) (see as to the arrangement of business of the Court by the Chief Judge, s 20 of the LEC Act). The proceeding may be the way of a Conciliation Conference (s 34 of the LEC Act) and may be dealt with by a Panel (see s 34C(1) of the LEC Act).
Some of the appellate provisions referred to in s 18, confer power to the LEC to revoke an order (see s 180(4) of the Local Government Act; s 120L(3) of the Heritage Act 1977 (NSW); and s 52(3) of the Act) in a manner akin to the powers conferred under s 49(3)(a) of the Act. The Roads Act provides a power to "confirm or quash" a direction (see s 105(4)(a)). Other appellate provisions do not.
It may be noted that s 39 of the LEC Act also concerns the power conferred upon the LEC on appeal. Section 39(1)-(3), relevantly, provides: 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
The word '"functions" in s 39(2) is defined in s 4 of the LEC Act as including "powers, authorities, and duties".
In Trust Company Ltd ATF Opera House Car Park Infrastructure Trust No 1 v The Valuer-General (No 2) (2011) 182 LGERA 110; [2011] NSWLEC 34 ("Opera House Car Park") at [22], Pain J identified that the operation of s 39(2) in conjunction with a Class 3 appeal (in that matter) was relevant to discerning difference between Classes 1, 2 and 3 appeals and judicial review proceedings as it represented as "an important distinguishing feature of the role the Court plays in Class 3 appeals compared to the role of a judge in judicial review proceedings".
Reference may also be made to s 38 of the LEC Act, which concerns Classes 1, 2 and 3 appeals. Section 38(1) and (2) provides: 38 Procedure (1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.
The LEC is given a Class 4 jurisdiction to hear and dispose of proceedings and exercise the civil jurisdiction of this Court under various pieces of legislation pursuant to s 20 of the LEC Act.
The Class 4 jurisdiction may only be exercised by a judge of the LEC.
Under s 20(1) of the LEC Act, the LEC has a Class 4 jurisdiction which is a jurisdiction as to the proceedings under the provisions of various specified statutes.
The jurisdiction variously extends to: 1. an injunction or orders to remedy or restrain a breach or threatened breach of an Act, a regulation, a notice or an undertaking or work/activities constituting a risk to public health or safety; 2. the recovery of costs or expenses associated with the prevention, control or abatement of various offences or resulting damage; 3. appeals against a notice, direction of Minister or interim protection order; 4. enforcement proceedings such as conservation agreement; 5. the retention or return of seized property; 6. orders with respect to controlling the use of restricted premises and powers regarding entry to premises; and 7. applications for the transfer of jurisdiction to this Court.
The Act is a statute referred to in s 20(1) but only with respect to proceedings under s 31 which concerns a jurisdiction to make orders to remedy or restrain a breach of the Act or regulations to the Act (see s 20(dea) of the LEC Act). It follows that the order made upon s 33 of the Act is not caught by s 20(1) of the LEC Act.
The LEC is also conferred, by s 20(2), the civil jurisdiction of this Court by which the LEC is invested with a judicial review jurisdiction for matters arising under specific Acts. For present purposes the relevant provisions of the LEC Act appear at s 20 (1)(e) and 0(2)(b), which provisions are extracted below: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - … (e) proceedings referred to in subsection (2). … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - … (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan,
The expression "a planning or environmental law" in s 20(2)(b) is defined in s 20(3) of the LEC Act; the provision specifies the provisions or classes of proceedings under various Acts as well as statutory instruments caught by that expression: see s 20(3)(a) and (b). None of the statutes listed include the Act.
Given the subject matter in which the parties confined there attention, namely, the review of a function conferred by a planning or environmental law (the exercise of a power by the Building Commissioner pursuant s 33 of the Act), it follows that the LEC does not have a power to exercise a Class 4 jurisdiction with respect to the order, or more specifically, a power for judicial review of the order.
It may also be noted at this juncture, that s 20(2) refers to that a limitation in the jurisdiction of this Court under s 71 of the LEC Act, which is expressed in the following terms: 71 Proceedings in Supreme Court (1) Subject to section 58, proceedings of the kind referred to in section 20(1)(e) may not be commenced or entertained in the Supreme Court. (2) The jurisdiction conferred on the Court in respect of proceedings referred to in section 20(1)(e) is not limited by any provision of the Civil Procedure Act 2005 or the uniform rules under that Act.
Notwithstanding the absence of a judicial review jurisdiction in the LEC, with respect to orders made under s 33 of the Act, the Secretary contended, that the LEC may nonetheless entertain the issue YMCI wishes to raise in the judicial review proceedings in this Court in its Class 2 jurisdiction (exercised with respect to an appeal under s 49(3) of the Act) including issues of invalidity in the exercise of power by the Building Commissioner.
When invited to do so, the Secretary did not refer to any authority in support of that contention. However, Mr S Robertson SC who appeared with Ms C Winnett for YMCI referred the Court to the judgment of Pain J in Opera House Car Park and Charara v Ku-ring-gai Council [2019] NSWLEC 183 ("Charara").
In Opera House Car Park, the applicant had contended that the LEC did not have jurisdiction in a Class 3 appeal to determine whether the reascertainment of land value was authorised by s 14A(6) of the Valuation of Land Act 1916 (NSW) ("VL Act").
Section 14A(6) of the VL Act was in the following terms: 14A Valuer-General to ascertain land values … (6) The power to ascertain a land value includes the power to reascertain that land value, and references in this Part to the ascertainment of land value are taken to include references to the reascertainment of land value.
Section 34(1) of the VL Act was also relevant in that matter. That provision stated a number of exclusive grounds upon which objection might be taken under that Act including that the values assigned were too high or too low: s 37(1)(a). Section 37(1) of the VL stated: 37 Right of appeal (1) Any person entitled under Part 3 to object to a valuation may appeal to the Land and Environment Court if the person is dissatisfied with the Valuer-General's determination of any such objection to the valuation concerned (whether or not the person was the objector).
The power conferred on the LEC under the appeal was provided in s 40 of the VL Act as follows: 40 Powers of Land and Environment Court on appeal (1) On an appeal, the Land and Environment Court may do any one or more of the following - (a) confirm or revoke the decision to which the appeal relates, (b) make a decision in place of the decision to which the appeal relates, (c) remit the matter to the Valuer-General for determination in accordance with the Court's finding or decision. (2) On an appeal, the appellant has the onus of proving the appellant's case.
The competing contentions of the parties in Opera House Car Park are encapsulated in paragraphs [4] and [12], respectively, as follows: [4] The Applicant argues that the four valuations appealed against under s 37(1) of the VL Act were issued without power to do so. This is an issue that can be dealt with in the course of the appeal in Class 3 because it is one of the issues which the Court has to determine in relation to the Applicant's objection under s 34(1)(a) that the valuations are too high. That appeal will require the Court to consider questions such as whether there is already a conclusive determination of land value for the base date years as found in the Register of Land Values referred to in s 14CC(2)(a) of the VL Act and whether the Court can correct land values determined erroneously by virtue of its powers and functions under s 39(2) of the Court Act. The question of law arises of whether there can be two land values for one base year. … [12] The Respondent argues that whether the reascertainments of land value the subject of the four appeals are beyond power cannot be raised in these Class 3 valuation proceedings as the Court lacks jurisdiction to do so. The appropriate court to determine this issue is the Supreme Court of New South Wales Common Law Division - Administrative Law. The scheme of the VL Act in s 29(3A), s 34, s 35B and s 37 provides for appeals by a person following the lodging of objections with the Valuer-General. Appeals under s 37(1) are within Class 3 of the Court's jurisdiction with specific practice and procedures established for merit appeals in that class. Section 39(2) of the Court Act is not a basis for conferring power on the Court acting in these Class 3 proceedings as judicial valuer to undertake judicial review proceedings. The Court can exercise the powers that the Valuer-General exercised but the Class 3 appeal does not provide a judicial review mechanism. If the Applicant's argument is correct there can be no appeal under s 37(1) because the relevant valuations the subject of the appeal have no effect. That is a question which should be determined in judicial review proceedings. [Emphasis added.]
As in the present matter, the applicant accepted this Court's supervisory jurisdiction with respect to the impugned order/valuation, and that there was no power to review the valuation in "Class 4 judicial review proceedings" because the VL Act was not referred to in s 20(3) of the LEC Act (the counterpart of the order in the instant case).
Pain J referred to authority distinguishing "Class 3 appeals" from judicial review proceedings, citing Mine Subsidence Board v Australian Gas Light Company (2007) 152 LGERA 73; [2007] NSWCA 100 ("Mine Subsidence Board"). The passage of her Honour's judgment dealing with those issues was as follows (Opera House Car Park at [20]-[22]): [20] The important distinction between Class 3 appeals and judicial review proceedings was identified in Australian Gas Light Company where in a Class 3 appeal in relation to s 12B of the Mine Subsidence Compensation Act Biscoe J held at [7]: The jurisdictional issue is not arid. For the purposes of hearing and disposing of a s 12B appeal, this Court, if it has jurisdiction, has all the functions and discretions which the Board had: s 39(2) of the Court Act. Hence, a s 12B appeal is a merits appeal. If this Court does not have jurisdiction, then jurisdiction rests with the Supreme Court but it has only a judicial review jurisdiction. Relief by way of judicial review is ordinarily discretionary and is not, as such, concerned with the factual merits but with observance of legality: Griffith University v Tang (2005) 221 CLR 99 at 153 [155]. [21] It was also identified on appeal in Mine Subsidence Board per Tobias JA (Handley AJA concurring, Hodgson JA dissenting) at [94] (i) - (k): (i) Accordingly, I see no justifiable basis upon which s 12B(b) should be construed to extend an appeal on the merits of the refusal of the Board to be satisfied that any departure from or contravention of the relevant conditions is such that it need not be rectified as distinct from leaving any relevant relief to the more limited grounds of challenge permitted by judicial review proceedings. The same comments apply, in my opinion, to that part of s 12(1A) which I have emphasised in [30] above. In that provision the Board has a discretion and any challenge to the exercise of that discretion should be confined to judicial review proceedings. (j) If AGL's submissions were accepted then it would follow that every decision of the Board, whether direct or indirect, which in some way could be related to or linked to a claim for compensation including any decision required to be made by the Board antecedent to a determination of such a claim on its merits, would be subject to a merit appeal under s 12B(b). In my view it is not possible to so construe that provision. Limb (b) is concerned with a decision of the Board as to whether there should be any payment of any amount from the Fund. It is a reference to a determination of that issue by the Board on its merits as is made plain by s 12(2)(b). (k) Had the legislature wished to provide an uncontained right of appeal against every decision of the Board which touched or concerned a claim for compensation, it could easily have done so in simple language. Consistent with the limited appeal rights which existed prior to 1989, the legislature has, in my view, been at pains to maintain limits to appeals to the LEC against a decision of the Board to issues of causation and quantum relating to a claim for compensation under ss 12 and 12A. There is nothing in the Second Reading Speech or in that part of that speech upon which AGL relies which would justify any different conclusion. AGL's construction of s 12B(b) seeks to give the unambiguous wording of the provision a reach which the words, in their context, simply cannot bear. [22] Tobias JA was considering the scheme for Class 3 appeals under a different Act but his statements underline the importance of distinguishing between those matters which can be properly brought within a Class 3 appeal with matters that should be the subject of judicial review proceedings. Each statutory scheme which provides for Class 3 appeals must be considered individually. While there is no general description of Class 3 appeals pursuant to s 37(1) of the VL Act either in the Court Act or in any case law to which I have been referred as merit appeals, that broad description is a useful label to apply in that it aids in distinguishing Class 3 appeals from judicial review proceedings. It is also relevant because the Court is exercising powers pursuant to s 39(2) of the Court Act, an important distinguishing feature of the role the Court plays in Class 3 appeals compared to the role of a judge in judicial review proceedings. [Emphasis added.]
Pain J identified that the issue in the matter concerned the scope of the LEC's powers under a Class 3 appeal where the power of the LEC conferred by s 40(1)(a) of the VL Act included a power to confirm or revoke the decisions to which the appeal related. Her Honour stated (Opera House Car Park at [23]): [23] The Applicant has sought to emphasise that because the Court's power under s 40(1)(a) of the VL Act includes confirming or revoking the decision to which the appeal relates, it is not properly characterised as a merit appeal but provides the Court with wider powers to find that valuations issued by the Valuer-General the subject of an appeal are beyond power. Such a power is akin to those that might be exercised in judicial review proceedings. That wording in s 40(1)(a) does not change the usual valuation function the Court exercises in a Class 3 appeal. [Emphasis added.]
The resolution of that issue was given in [24] of the judgment which runs parallel with the issues raised here (there being no relevant distinction for the present purposes between Class 2 and Class 3 appeals). That passage of Opera House Car Park is extracted below: [24] While the Applicant's counsel went to some lengths to characterise the challenge to the statutory basis for the four reascertainments of land value as part of the necessary issues that arise in the appeal under s 37(1), that issue is not a step along the way in the Applicant's argument within the Class 3 appeal. It raises more fundamentally whether there is a relevant valuation in relation to which an appeal under s 37(1) can be commenced at all in this Court. The Court is not being asked to consider whether the Valuer-General appropriately exercised his discretion under s 14A(6) but rather whether there is an essential legal basis for doing so. All the questions raised by the Applicant as being necessary to address within the appeal arise from that fundamental issue. It is not correct to classify the issue as one which arises in the course of a matter otherwise within the Court's jurisdiction. Stables Perisher does not assist the Applicant on this occasion to found the Court's jurisdiction. Nor is it a matter ancillary to the Court's jurisdiction under s 16(1A). [Emphasis added.]
Reference might also be made to her Honour's observations at [25]: [25] Reliance on Calvin v Carr and Bhardwaj to the effect that the Valuer-General's decision is valid until declared void to argue the issue can arise within this appeal does not recognise the fundamental argument that is sought to be put in relation to the Valuer-General's power under the VL Act to issue reascertainments. If successful in that argument there can be no decision of the Valuer-General to found a Class 3 appeal.
Further, at [27], her Honour referred to the nature of the proceedings the subject of the appeal: [27] Section 34 limits the grounds of objection which can be raised in a Class 3 appeal. The Applicant's sole ground of objection is that the values are too high (s 34(1)(a)). I agree with the Respondent's submission that to extend that ground of objection to encompass a fundamental issue of whether a valuation issued by the Valuer-General is within power is a tortuous application of the language in s 34(1)(a). These words cannot found an appeal encompassing the issue of whether a valuation exists as a matter of law to appeal against.
Ultimately, her Honour found (at [32]): [32] My finding is that the Court does not have jurisdiction in these Class 3 appeals to determine whether the reascertainments out of which the proceedings arise were not authorised by s 14A(6) of the VL Act.
Pain J returned to similar questions in Charara, albeit with respect to Class 1 proceedings under s 8.18(4) of the Environmental Planning and Assessment Act 1979 (NSW), in which the applicant challenged a stop work order.
After referring to Class 1 appeals being in the nature of a merits review of the decision under appeal (at [38]), her Honour discussed the scope of proceedings under Class 1 and Class 4 as follows (Charara at [40]): [40] … Such issues are best considered in Class 4 proceedings for the reasons given by the Applicant identified in the previous sentence. Whether the construction certificates should be declared invalid in the circumstances is also best considered by a judge in Class 4 proceedings for the same reasons. Findings which may be able to be made in Class 1 proceedings will not address the legal complexity arising from the circumstances identified by the Applicant's SOFAC and no declaration of nullity or invalidity can be made in them.
Although not contending the judgments of Pain J in Opera House Car Park and Charara were in error, the Secretary contended that the judgments did not alter the "proposition" that the LEC had the power to deal with jurisdictional error under s 49 of the Act in its Class 2 jurisdiction because: 1. It is central to an exercise of power by a decision maker in a merits review to deal with the question of whether the order was ultra vires when invited to make that inquiry. Evaluating the metes and bounds of legislative power is "central" to the decision making power in a merit review. 2. The contention that the decision to make the order was so irrational that no reasonable decision maker could have made it involves an overlap between the Class 2 jurisdiction of the LEC and the judicial review conducted by this Court (both factually and logically). 3. To the extent the judgment of Pain J suggested a lack of power in the LEC, s 49(3)(a) and (f) of the Act are broad enough to encompass all of the relief sought.
I will return to the question of the scope of the Class 2 jurisdiction of the LEC with respect to an appeal under s 49(3) of the Act including the issues raised by the Secretary, in the immediately preceding paragraph, in my further considerations, after reviewing the jurisdiction of this Court with respect to the transfer motion.

The Foundation for the Transfer Motion

The transfer motion was originally founded upon s 72 of the LEC Act.
Section 72 of the LEC Act is in the following terms: 72 Transfer of proceedings from Supreme Court (1) Where the Supreme Court is of opinion that any proceedings commenced or purporting to have been commenced in the Supreme Court could or should have been commenced in the Court, the Supreme Court may, on the application of any party or of its own motion, order that those proceedings be transferred to the Court. (2) This section does not apply to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction.
In view of the statutory scheme discussed above, in my view, YMCI is correct to submit that s 72 does not apply to these proceedings. The proceedings are not proceedings which "could or should" have been commenced in the LEC. The answer would have been different had the LEC had a Class 4 jurisdiction with respect to the order.
Further, there is force in the YMCI's submission that, even if the LEC had jurisdiction to determine these proceedings and power to grant the relief sought, the proceedings would be in Class 2 of the LEC's jurisdiction with the result that this Court has no power under s 72 of the LEC Act to transfer the proceedings to the LEC: see s 72(2) of the LEC Act.
In that light, in my view, that part of the transfer motion relying upon the provisions of s 72 of the LEC Act must be dismissed for want of jurisdiction.
However, as earlier mentioned leave was granted to amend the transfer motion to permit the Secretary to rely upon, another head of power s 149B of the Civil Procedure Act. I will turn to that provision and the relevant principles in relation to the provision. The provisions of ss 149A, 149D and 149E of the Civil Procedure Act will also be relevant to later discussion.
Sections 149A, 149B, 149D and 149E of the Civil Procedure Act are extracted below: 149A Definitions (1) In this Division - transfer order means an order referred to in section 149B (1) or (2). transferee court means the court to which proceedings are to be transferred pursuant to a transfer order. transferor court means the court from which proceedings are transferred pursuant to a transfer order. (2) For the purposes of this Division, proceedings are related if the matters with which they deal are so closely associated as to form part of the same controversy. 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) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that - (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, 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 and heard together with the related proceedings. (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section. … 149D Proceedings after transfer (1) Subject to the rules of court applicable in the transferee court - (a) any proceedings with respect to which a transfer order takes effect continue in the transferee court - (i) as if the proceedings had been duly commenced in the transferee court on the date on which they were commenced in the transferor court, and (ii) as if any cross-claim in the proceedings had been duly made in the transferee court on the date on which it was made in the transferor court, and (b) any proceedings with respect to which a transfer order under section 149B (2) takes effect are to be heard together with, and are taken to form part of, the related proceedings in the transferee court. (2) For the purposes of any proceedings continued in the transferee court - (a) any admission duly made in the transferor court is to be treated as if it had been made in the transferee court, and (b) in the case of proceedings affected by a transfer order under section 149B (2), any process or other documentation before the transferee court may be amended so as to reflect the merger of the proceedings concerned. (3) Subject to the rules of court applicable in the transferee court, the power of the transferee court to make orders as to costs includes a power to make orders with respect to the costs of - (a) the application for, and the making of, the transfer order, and (b) any step taken in the proceedings before the transfer order was made. 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.
Mr E C Muston SC with whom Mr T Liu appeared referred to a line of authority which establishes that the power extends to transfer proceedings from the Court to the LEC exists where the Court is satisfied of two pre-conditions: first, there are related proceedings pending in the LEC and secondly, it is more appropriate for the proceedings to be heard together with the related proceedings in the LEC.
In Vincent Land, Davies J (at [4]) summarised the operation of s 149B as follows: [4] …That section provides two bases for transfer: The first in subsection (1) is that it is more appropriate for the proceedings to be heard in the Land and Environment Court. The second in subsection (2) is that there are related proceedings pending in the Land and Environment Court, and that it is more appropriate for the Supreme Court proceedings to be heard with those related proceedings.
In Young v King [2016] NSWCA 282 ("Young"), Basten JA (with the agreement of Gleeson JA and Emmett AJA) stated at [15]-[18]: [15] There are significant issues as to when it is "more appropriate" for the proceedings to be heard in the other court. Two factors to be considered are the nature of the proceedings and the relief sought. Unlike s 44 of the Judiciary Act 1903 (Cth), which provides for the High Court to remit a matter to another court "that has jurisdiction with respect to the subject-matter and the parties", the Civil Procedure Act, s 149E expressly confers on the transferee court the jurisdiction of the transferor court: 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. [16] It does not follow, however, that it is appropriate to transfer to the Land and Environment Court proceedings brought under s 69 of the Supreme Court Act seeking relief in the nature of a prerogative writ, setting aside a decision of a judge of the Land and Environment Court. Thus, in Re Jarman; Ex parte Cook, [2] in considering whether to remit to the Industrial Relations Court an application for mandamus directed to that Court, Brennan CJ stated in uncompromising terms: [3] "That Court could not command one of its own Judges to exercise the power which it had held it did not have. It is ludicrous [4] to contemplate a superior court having jurisdiction to determine in proceedings for mandamus or prohibition directed to itself whether its own decision as to its jurisdiction is correct." [17] Brennan CJ then referred to the observations of Isaacs J in The King v Murray and Cormie; Ex parte The Commonwealth, [5] that "the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it". As was the case with respect to the jurisdiction of the Industrial Relations Court in Jarman, the Land and Environment Court has no appellate jurisdiction with respect to a decision of one of its judicial members. [18] Regardless of the scope and effect of s 149E, it was not "appropriate" to transfer the s 69 proceedings to the Land and Environment Court, whether by consent or not. Similarly, it would not be "appropriate" to transfer to that Court an appeal from a judgment of that Court pending in this Court. There does not appear to be any other case in which a summons invoking relief under s 69 of the Supreme Court Act has been transferred to the very court whose orders are the subject of the relief sought.
Further, in Young, Emmett AJA (with Basten and Gleeson JJA agreeing) made the following observations about s 149B(2) (at [42]): [42] Section 149B(2) of the Civil Procedure Act 2005 relevantly provides that, if the Supreme Court is satisfied, in relation to proceedings before it, that if there are related proceedings pending in the L&E Court and it is more appropriate for the proceedings to be heard together with the related proceedings in the L&E Court, the Supreme Court may order that the proceedings be transferred to the L&E Court and heard together with the related proceedings. Under s 149E, the L&E Court has, and may exercise, all of the jurisdiction of the Supreme Court in relation to any proceedings to which a transfer order under s 149B relates, including jurisdiction to determine any question arising in any such proceedings.
Further, s 149A of the Civil Procedure Act provides that the term "related", in the context of s 149B(2), applies "if the matters with which they deal are so closely associated as to form part of the same controversy".
In J K Williams Staff Pty Ltd v Sydney Water Corporation [2020] NSWSC 220 ("J K Williams Staff"), Robb J at [51] observed that there is "limited guidance in the case law as to when it will be "more appropriate" for proceedings to be heard in another court for the purposes of s 149B(2)". However, Robb J (at [53]) referred with approval to the following statement of principle (citing Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33 ("Pierce") at [37]): [53] In Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33, Pepper J stated as follows at [37]: Logically, and having regard to the overriding purpose contained in s 56 of the CPA (as informed by ss 57-60 of that Act), the following factors are likely to be relevant, but few will be wholly determinative: (a) whether an issue concerning the jurisdiction of either court to hear and dispose of the proceedings exists; (b) whether either court has the power to grant the relief sought; (c) whether one court is better placed to determine the issues raised by the proceedings, having regard to each court's expertise and skill; (d) whether the transfer will result in a saving of time and cost to the parties; (e) whether the transfer will result in in a more efficient allocation of judicial resources; and (f) whether in all the circumstances the transfer is just.
Reference should also be made to the judgment of Barrett J in Breeding & Racing. In particular, his Honour's observations at [16], [17] and [19] warrant reference. They appear below: [16] The Boral case concerned an application for judicial review by way of prerogative relief in respect of a decision of a judge of the Industrial Court of New South Wales in circumstances where remedies available to the applicant by way of appeal to the Full Industrial Court constituted by three judges had not been sought. Kirby P surveyed treatment of the subject in the English Court of Appeal and the House of Lords, including Ex parte Waldron [1986] QB 824, Re Preston [1985] AC 835 and R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424. The message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by "exceptional circumstances". It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the "general rule" should not be approached as if it were a statutory prescription. [17] Kirby P then turned to the position in New South Wales, drawing particular attention to the judgments of Hutley JA in Ultra Tune (Aust) Pty Ltd v Swann (1983) 8 IR 122 and McHugh JA in Ballam v Higgins (1986) 17 IR 131. In each case, there was acceptance of the general approach taken in the English cases. The considerations supporting that approach were stated by Kirby P himself in Ballam as follows: "1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals … 2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer; 3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction; 4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and 5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction." … [19] King CJ also referred to one particular and important instance where the general rule might be ignored in favour of the Supreme Court's entertaining and determining an application for judicial review even though avenues of appeal have not been exhausted: "I envisage that if this Court felt that an erroneous decision in the Industrial Court on an important question of principle, not being in excess or want of jurisdiction, required correction, it might be inclined to review the decision notwithstanding that appellate rights within the Industrial Court had not been exhausted. Such an exercise of discretion would be more likely if previous decisions of the Full Industrial Court were to indicate that correction of the error was unlikely in that Court."
In Lindsay, the Court (at [232]) affirmed the same principles concerning discretionary relief, and added (at [238]) that "allowing the statutory appeal process to take its course results in additional benefits" such as "the fact that decisions of specialist Tribunals increases the body of decisions produced within the statutory system established by the legislature".

CONSIDERATION

Upon the dismissal of that part of the transfer motion reliant upon s 72 of the LEC Act, the central issue in these proceedings concerns whether, for the purposes of s 149B(2) of the Civil Procedure Act, it is more appropriate for the judicial review proceedings to be heard with related proceedings, being an appeal under s 49(1) of the Act under the Class 2 jurisdiction of the LEC.
The issue may be confined in that manner as there does not seem to be any real dispute as to whether the proceedings in this Court and the LEC were related. In any event, I consider that conclusion may be reached having regard to provisions of s 149A(2) of the Civil Procedure Act. Both proceedings concern the orders which were made with respect to alleged defects in the building.
The fact that YMCI brought an appeal in the Class 2 jurisdiction of the LEC pursuant to s 49 of the Act is a relevant but not determinative consideration in the exercise of the Court's discretion with respect to the transfer motion. The significance of that appeal in the determination of the transfer motion will, as both parties seem to have accepted, be affected by the status of the appellant body, the nature of the appeal and the ground or grounds on which the appeal is brought, when considered in light of invocation of the jurisdiction of this Court for judicial review the grounds for judicial review and the relief ultimately sought in these proceedings. In the latter respect, this Court has the judicial review jurisdiction with respect to the prerogative relief and declaratory relief sought by YMCI, that is, relief in the nature of certiorari and declarations as to invalidity. That is a constitutionally entrenched jurisdiction to review purported decisions of administrators: Kirk at [96]-[100].
That approach is consistent with the approach of Robb J in J K . Williams Staff (at [53]) (applying Pierce at [37]) and the judgment of Basten JA in Young where his Honour considered the "two factors" to be considered in determining the question raised by s 149B(2)(b) were "the nature of the proceedings the relief sought" (at [15]).
The Secretary contended that the Court should not limit its consideration, of the jurisdiction of the LEC, to whether the LEC may undertake the judicial review proceedings in the Class 4 jurisdiction of that Court, but rather should consider first, whether the LEC Class 2 jurisdiction in hearing the appeal under s 49 of the Act empowered the LEC to effectively traverse the same legal grounds as this Court may do in judicial review proceedings, and secondly, the operation of s 149E of the Civil Procedure Act.
As to the Class 2 jurisdiction of the LEC, the Secretary, in that respect, essentially raised the question as to whether, having regard to the LEC's lack of a Class 4 jurisdiction with respect to the appeal under s 49 of the Act, the LEC's Class 2 jurisdiction was confined to the hearing and determination of only valid decisions made under s 33 of the Act. The Secretary responded to that question by submitting that the LEC's Class 2 jurisdiction permitted examination of questions of the invalidity of the order made by the Building Commissioner and that the decision of the Building Commissioner was legally unreasonable. The Secretary's further and counterpart submission was that it was conceivable that, in the event the LEC had such a jurisdiction available to it in the hearing of a merits appeal, this Court, in the exercise of its discretion may refuse prerogative relief because of the existence of an alternative avenue of appeal (see Breeding & Racing and Lindsay).
In my view, there are two reasons for rejecting the Secretary's submissions as to the scope of LEC's Class 2 jurisdiction with respect to an appeal under s 49 of the Act for the purposes of these proceedings.
First, a fundamental difficulty is that there is authority of the LEC standing for the contrary position: see Opera House Car Park and Charara.
It is true that Pain J was careful to find in Opera House Car Park that each statutory scheme which provides for Class 3 appeal must be considered individually (an observation that may readily be extrapolated to appeals under Classes 1 or 2). However, I do not consider that the judgment in Opera House Car Park may be distinguished from the present matter and none was attempted by the Secretary in this case.
Applying the reasoning in Opera House Car Park (adopting the approach in Mine Subsidence Board including the reference to s 39(2) of the LEC Act), results, as I have mentioned, in a conclusion being comfortably available that an appeal under s 49 of the Act is, in substance, a merits appeal. The reasoning of Pain J as to why the Class 3 appeal did not extend to a consideration as to "whether there is an essential legal basis" for the Valuer-General in that case extends, in my view, to the appeal under s 49 of the Act in the Class 2 jurisdiction of the LEC. There is no relevant distinction between the LEC's Class 2 and Class 3 jurisdictions. Nor is there any relevant distinction in the nature of the appeal or the relief available under the Act and the VL Act. In Opera House Car Park at [23], Pain J found the exercise of power to revoke did not alter her Honour's decision.
As to the power to revoke under s 49(3)(a) of the Act, Pain J was of the view in Opera House Car Park that it did not change the usual valuation function of the LEC in Class 3 appeals. There is nothing before the Court in this matter as to whether the functions of the LEC referrable to this type of Class 2 appeal may be described in the same way. Nonetheless, the nature and the subject matter of the appeals under s 18 of the LEC Act do not suggest a capacity in the LEC to grapple with jurisdictional error under that class of appeal.
Thus, the existence of a power to revoke does not warrant a different conclusion to that reached in Opera House Car Park with respect to a Class 3 appeal. The expression "revoke" may again mean rescind or replace another instrument, coinciding with the power to "substitute" in s 49(3)(c), although it would seem YMCI employed the word in the appeal under s 49 of the Act as meaning the revocation of an invalid order.
Further, I do not consider jurisdiction of the LEC under s 49(3)(f) assists the Secretary. A general power of that kind provides an unsuitable basis to find a jurisdiction akin to a judicial review jurisdiction.
There is a potential for argument, in this respect, that there may be a distinction between the nature of the administrative act under appeal with s 34 of the VL Act (where there are limited grounds for objection) and a determination made by the Building Commissioner under s 33 of the Act but no issue of that kind was raised in these proceedings and the administrative act under the VL Act does not seem to have featured as a predominant part of her Honour's reasoning in Opera House Car Park (see at [27]).
Ultimately, despite some suggestion that the Court should consider a number of factors might otherwise suggest that the powers of the LEC in a merits review appeal extended to the review of a purported decision, no challenge was expressly brought as to the correctness of Opera House Car Park and Charara.
Thus, the contention of the Secretary that the powers of the LEC in its Class 2 jurisdiction under a s 49 appeal would incorporate the equivalent of a judicial review jurisdiction is not a proposition which sits well with the authorities of that Court. Opera House Car Park and Charara cast doubt on the proposition advanced by the Secretary that the ascertainment of the statutory basis for the making of the order was necessarily a step along the way in dealing with Class 2 appeals before the LEC.
In Charara, Pain J went further (with respect to exercise of a Class 1 jurisdiction) and suggested that issues (in that matter) such as whether the relevant development consents and construction certificate were void ab initio or voidable or whether the Court should make declarations as to a nullity were "best" considered in "Class 4 proceedings" before a judge of the LEC. Her Honour observed that Class 1 proceedings (which presumable extend to Class 2 proceedings) do not normally address matters of that complexity and no declaration was available with respect to questions of invalidity.
Secondly, the rejection of the Secretary's submission as to the powers residing in the Class 2 jurisdiction of the LEC may be arrived at on a wider basis.
There can be little doubt that, as a general proposition, and as submitted by the Secretary, administrative tribunals may, in some merits review proceedings, give comprehensive relief based not only a review of the facts and relevant policy but the legal criteria for decisions, including setting aside decisions which are unlawfully made. So too may a tribunal theoretically remake the decisions to cure legal error or otherwise decide that, on all the facts and circumstances, an administrative decision was correct. Generally, the Administrative Appeals Tribunal ("AAT") has such powers.
In the case of the Migration Act 1958 (Cth), as amended by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the AAT was found to have power to consider a purported decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [39]-[41].
However, as observed by Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [25], the determination of the jurisdiction and power of an administrative tribunal conducting a review of administrative decision will depend upon the a consideration of the inter-related statutes bearing upon the question, in this case, the general provisions of the LEC Act affording a power with respect to a merits review appeal and the particular provisions of the Act. Those issues received little attention by the Secretary.
What is meant by "appeal" is a matter of statutory construction: Victoria Legal Aid v Kuek (2010) 26 VR 700 at [24]. In the immediate case, as I have mentioned, the appeal under s 49 of the Act is an appeal on the merits as to the determination of the Building Commissioner to make the order. The appeal is by way of a rehearing in which fresh evidence or evidence in addition to or substitution for, the evidence given on the making of the decision (s 39(3) of the LEC Act). Section 39(2) provides that the LEC has all the functions and discretions available to the Building Commissioner.
There are, however, indicators in the LEC Act which point against the LEC having power with respect to purported decision. The terms of s 49 of the Act do not squarely reflect such an intention (similarly to s 37 under the VL Act in Opera House Car Park). Further, the provisions allowing for the Building Commissioner to revoke the order (see Div 2 of Pt 5 of the Act and in particular s 33(6)) are not suggestive of a ground of objection which would include a challenge for want of power or invalidity in decision made by the Building Commissioner to make an order even if submissions by YMCI to the Building Commissioner may have apprehended such a possibility. The word "revoked" in s 33(6) seems to be used in the sense of one instrument revoking or replacing another, rather than where a subsequent order renders the earlier wholly inoperative or a nullity.
There are further considerations bearing upon the questions of power under the Class 2 jurisdiction of the LEC as raised by the Secretary.
This is not merely a case where the legislature has determined that the Class 4 jurisdiction of the LEC would not be conferred with respect to proceedings under Pt 5 Div 1 of the Act or, more generally, under the Act. The legislature carefully delineated between proceedings under the Act which would fall under the Class 4 jurisdiction of the LEC and those which could not. Hence, the legislature conferred a Class 4 jurisdiction with respect to proceedings under s 31 of the Act (see s 20(1)(dea) of the LEC Act) but excluded from that jurisdiction all other proceedings under the Act. Further, the Act does not appear under s 20(3) and is, therefore, not subject to the Class 4 jurisdiction of the LEC. In contrast, the LEC Act provides comprehensively for appeals under the Act in the Class 2 jurisdiction of the LEC pursuant to s 18(l) of the LEC Act (see ss 10, 30, 49 and 52 of the Act).
Further, the legislature delineated the jurisdiction for judicial review between this Court and the LEC by excluding judicial review proceedings in the Court for matters arising under s 20(1)(e) of the LEC Act (see 71(1) of the LEC Act).
I accept the submission of YMCI that the absence of a jurisdiction in the LEC for judicial review of the order or a power to address the validity of the order in the Class 2 jurisdiction of the LEC in hearing an appeal under s 49 of the Act is, as previously discussed, relevant to the exercise of the Court's discretion to refuse the transfer motion.
The counterpart contention advanced by the Secretary was that YMCI would face a significant obstacle in obtaining relief in judicial review because of the prospect that this Court would exercise a discretion to refuse to exercise judicial review proceedings where there exists an alternative avenue for appeal, namely, an appeal before a specialised tribunal, the LEC.
Strictly speaking, the Secretary has not prosecuted, as yet, that contention before the Court. However, I will nonetheless consider that question after turning to the consideration of some further factors bearing upon the exercise of the Court's discretion, including the implications of the provisions of s 149E of the Civil Procedure Act for the transfer motion. Those considerations will be conveniently introduced by a review of the following authorities of this Court relied upon by the Secretary in support of the transfer motion, namely: J K Williams Staff, Vincent Land and People for Plains. Each concerns the transfer of the civil jurisdiction of this Court to the LEC under s 149B of the Civil Procedure Act.
In view of my findings as to the absence of a Class 4 jurisdiction in the LEC, with respect to the order (and the related finding as to the limit of power in the LEC to consider the invalidity of the order under its Class 2 jurisdiction under s 49 of the Act), the judgments in J K Williams Staff and People for Plains need to be approached with some caution in the present matter. Vincent Land would seem to have little bearing on the determination as it considers quite different circumstances to those found here.
In J K Williams, Robb J considered whether it was more appropriate for this Court to transfer to the LEC rather than a reverse transfer to be made (at [60]). His Honour found the determination of the transfer motion to be finely balanced (at [59]).
His Honour's judgment clearly considered the existence of a Class 4 jurisdiction for the LEC in the matter to be relevant to the exercise of his discretion. An action in tort had been commenced in this Court. His Honour concluded that the outcome of the dispute was more likely to be determined on the basis of application of environmental protection laws in the LEC than by that action concerning the tort (at [61]). However, it is clear that his Honour considered that the LEC had a common law jurisdiction pursuant to its Class 4 jurisdiction (at [63]). In that respect, the Court rejected any argument comparing specialisation between the Courts (in the case of this Court, tort and in the case of LEC, environmental protection laws) (at [63]).
In People for the Plains, this Court had an application for judicial review of an approval granted by a delegate of the Secretary of the Department of Industry under the Petroleum (Onshore) Act 1991 (NSW) ("the Petroleum Act'). Judicial review proceedings were brought in the Class 4 jurisdiction of the LEC under the LEC Act, but the LEC did not have that jurisdiction with respect to the proceeding under the Petroleum Act, which was within this Court's jurisdiction. The transfer of the proceedings meant that the LEC was then seized with judicial review powers with respect of all of the proceedings before it and that there were not, therefore, judicial review proceedings being undertaken in two courts over broadly the same subject matter.
Her Honour's observations (at [6]) that it was highly desirable that the two proceedings be determined in a single Court need to be understood in that light.
In Vincent Land, Davies J observed (at [6]) that, where there are "related" proceedings, s 149B(2) of the Civil Procedure Act is the appropriate basis for transfer, and that a transfer order in that case was supported by "the possibility [that] if the proceedings are conducted separately in two courts, that there may be inconsistent judgments".
Like this matter, the LEC in Vincent Land lacked a judicial review jurisdiction in the proceedings before it. However, the LEC also lacked a power to deal with a common law action in trespass (see Vincent Land at [3]). The transfer was by consent and concerned related proceedings as to the plaintiff's land and the effect on the land by reason of waste and recycling facilities (at [6]). There was a risk of inconsistent judgments which was understandable given the related issues and an action in trespass in this Court.
However, it is appropriate to have regard to other factors influencing the exercise of the Court's discretion in those matters.
In J K Williams Staff, it was held that weight should be given "to the fact that the LEC is a specialist court with great expertise in determining disputes based upon the application of environmental protection laws" (at [62]).
It was also found that there was no procedural advantage in terms of cost and time resulting from the proceedings being heard in one court or another (at [54] and [58]). Further, the preponderance of issues raised in the two proceedings, in terms of complexity and expertise, were issues raised in the LEC proceedings rather than the tort proceedings in this Court (at [64]).
His Honour also found that "if the plaintiff succeeds in establishing the basis of its complaint in the two proceedings, it is unlikely that the most effective and appropriate remedy will lie in damages or the granting of injunctions" (at [65]).
In People for the Plains at [6], Adamson J observed that "[i]t appears to me highly desirable that these two proceedings be determined in a single Court". Her Honour added that it would be "inimical to the interests of justice were parallel proceedings to be conducted in different courts to determine, by judicial review, challenges to separate, but related, decisions". It was correctly submitted that, in People for the Plains, Adamson J dealt with a similar situation to the present - where a plaintiff commenced both a judicial review proceeding in this Court as well as related proceedings in the LEC.
YMCI submitted that the Court should be reluctant to confer a jurisdiction of the LEC that it does not possess, unless there are exceptional circumstances warranting that course. It is unnecessary to pronounce upon the merits of that characterisation or test as, in my view, there are, in fact, some powerful discretionary factors in favour of the transfer motion. Those are as follows: 1. The LEC is the specialist court given jurisdiction by Parliament to entertain appeals and challenges against building work rectification orders made under the Act. This is the effect of s 49 of that Act. The Parliament's intention to make the LEC the forum for challenges to decisions made under the Act extends to the LEC's jurisdiction in proceedings under ss 10, 30, and 52 of the Act (see s 18(l) of the LEC Act). The LEC's powers under s 49(3) of the Act are broader than the powers of this Court in an application for judicial review. 2. It is true that the jurisdiction of the LEC, with respect to the order, does not extend to judicial review proceedings (or the conferral of powers of that character in the appeal under s 49 of the Act) but that jurisdiction would be wholly conferred upon the LEC, upon transfer, by s 149E of the Civil Procedure Act (Young at [42]). Basten JA did not consider the operation of s 149E as a barrier to a transfer in Young. However, in that matter, the transfer would have involved the power to set aside, in judicial review proceedings, a decision of a judge of the LEC which was a jurisdiction that could never have been exercised by the LEC itself (just as it would not have been appropriate to transfer to the LEC on appeal from a judgment of the Court pending in this Court). That situation, however, is not comparable with the circumstances of this matter. The LEC has a Class 4 jurisdiction which includes judicial review. The legislature did not confer that jurisdiction with respect to orders made under s 33 of the Act but it did grant a right to appeal in the Class 2 jurisdiction of the Court, which YMCI has exercised, and permitted the conferral of the civil jurisdiction of this Court upon the LEC by the combination of ss 149B(2) and 149E (see Young at [42] (per Emmett JA)). 3. Similarly, whilst Pain J passed upon the inappropriateness of questions of invalidity being entertained in Class 1 proceedings (which would apply with equal force to the Class 2 jurisdiction of the LEC), that problem could be overcome by the conferral of a judicial review power in the LEC upon transfer. The allocation of the member of the Court to hear the appeal under s 49 of the Act and the transferred proceedings would be a matter for the Chief Judge under s 20 of the LEC Act. Section 149D(1)(b) of the Civil Procedure Act provides that the grant of the transfer motion would mean that the related proceedings and judicial review proceedings would be heard together and that the judicial review proceedings would be taken as part of the related proceedings. 4. The LEC has the advantage of the development in jurisprudence and has a wide armoury of remedies. Upon transfer, the LEC would have the jurisdiction to conduct a full review of the decision of the Building Commissioner. Depending on the procedural course adopted in the hearing of the transferred and related proceedings, there is a capacity to use the flexibility afforded the LEC to resolve the dispute as to the order by, for example, sitting a judge with a Commissioner to attend to the issues of law and fact. Those procedures and similar flexible procedures are not available in this Court.
In addition to these considerations, I accept the submissions of the Secretary as to the appropriateness of the LEC in dealing with questions of interim relief pursuant to the powers conferred upon that Court under s 49(3) of the Act, which offer flexibility in crafting any interim relief granted. Section 49(3)(e) provides power to the LEC to "make any order with respect to compliance with the order as the Court thinks fit". This could include orders as to the extension of time to comply or other forms of interim relief. The scope for an interim remedy under those provisions is considerably wider than that of the stay sought by YMCI.
A further consideration bearing upon the transfer motion is the efficiencies or inefficiencies resulting from the transfer or non-transfer of the judicial review proceedings.
The Secretary submitted that a single court appraised of all issues across both sets of proceedings is the most efficient means of disposing of issues and that the informality and lack technicality in Class 2 proceedings (together with a statutory mandate to act expeditiously) would facilitate a quick resolution of the matter before the LEC.
It was also submitted that the appeal under s 49 of the Act would bring administrative finality because any decision may only be further appealed on a question of law. In contrast, a writ of certiorari would only result in the mater being returned, it was submitted, to the Building Commissioner for a final decision which may again be challenged in an appeal under s 49 of the Act.
YMCI further submitted: 1. In the event of a transfer, YMCI would seek that the judicial review proceedings be heard first. Whilst, senior counsel for the plaintiff made overtures that there may be some procedural accommodations, the Secretary's position remains, at least, unclear. Ms Long's evidence and the Secretary's submissions on the transfer motion leave the impression that a hearing in the LEC, consisting of a full review on the merits and legal issues, is preferred by the Secretary. 2. If there is a dispute as to the procedure to be adapted in the LEC proceeding after any transfer, an interlocutory hearing would be required, adding a further step in the proceedings. 3. If YMCI is successful in seeking to have the judicial review proceedings heard first in the LEC, the factors said to produce efficiencies in the LEC proceedings could be diminished and, in any event, the transfer would be rendered, in effect, nugatory. 4. On Mr Neal's uncontested evidence, a significant increase in the time and cost for the disposition of the dispute over the order would result if the transferred proceedings and the proceedings in the Class 2 jurisdiction of the LEC were heard together.
The prospect of Mr Neal's uncontested estimate for the disposition of a transferred proceedings coming to fruition would depend upon the manner in which any transferred proceedings are ultimately conducted. Plainly, the duration of the proceedings he estimated would not materialise if the judicial review proceedings were heard first or in a preliminary way (I do not consider the senior counsel for the Secretary should be taken as having rejected such an approach if it assisted in the efficient disposal of the proceedings). I agree with YMCI that this course may lead to some reduction in the efficiencies otherwise available in the LEC, because of a possible restriction on the range of procedural courses available to it, but those facilities would still remain if YMCI's challenge to jurisdiction failed and the LEC became immediately seized (in a procedural sense) of the power to review all outstanding issues. I do not consider that such a procedure would then render the transfer nugatory.
As to the judicial review and related proceedings being heard concurrently upon transfer, I do not consider that the procedures available to the LEC to expedite the resolution of the dispute should be underestimated, having regard to the prospect of conciliation conferences and other procedural measures to improve efficiency of proceedings once the issues YMCI wishes to ventilate are fully articulated. That said, there may be, as Mr Neal estimated, additional delay. I note, however, that which was summarised in Breeding & Racing from the judgment of Kirby P in Ballam v Higgins (1986) 17 IR 131 ("Ballam") (see at [75] of this judgment). Although in Ballam the Court declined to exercise its supervisory jurisdiction until the avenues of appeal were exhausted, Kirby P's observations as to the principles underpinning that approach are applicable here (at 132). The relevant passage of the judgment is extracted below: 2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer; 3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;
Overall, I consider the procedural consequences of the judicial review proceedings being conducted in this Court, as opposed to the LEC, by the transferred and related proceedings being heard together by one of the means discussed above, to range from that of a negligible difference or consequence to a modest delay and additional costs depending upon the procedures adopted upon transfer, including the use of the flexible procedures available to the LEC which are not available to this Court.
I also accept the submission of the Secretary, that the need for finality in the administrative decision making powers is a factor favouring the transfer motion being granted. The effect of a determination under s 49 of the Act, if necessary in conjunction with a determination as to invalidity, would bring administrative finality to the subject matter of the proceedings as appeals from the decisions of the LEC in its Class 2 jurisdiction can only be appealed on a question of law which could encompass in those proceedings or elsewhere issues as to jurisdiction (see s 57 of the LEC Act and s 149D(1) of the Civil Procedure Act).
Two further considerations should be addressed.
First, I do not consider the question of inconsistent judgments properly arises here because of, at the least, the undertaking given by YMCI. Secondly, and returning to the prospect of this Court dismissing the judicial review proceedings on discretionary grounds, it may well have been a consideration for this Court, in that respect, that the wider powers of the LEC are directed to the underlying substance of YMCI's challenge to the order. This would focus attention upon the broad issues invoked by the present dispute such as the interests of residents, lot owners, consumers as well as the developer and the related question of public safety in buildings if serious defects were found. These factors potentially play into the exercise of a discretion by the Court to refuse prerogative relief.

CONCLUSION

The balancing of those factors properly results, in my view, in the Court exercising its discretion in favour of the granting of the transfer motion. The Court considers that it is more appropriate for the judicial review proceedings to be heard, together with the related proceedings, namely, the appeal under s 49 of the Act in the Class 2 jurisdiction proceedings in the LEC.
The transfer motion is, therefore, granted.
As the stay motion was not strictly before the Court, the Court will not pass upon those questions. The Court also has in mind, in that respect, the powers and procedures available in the LEC to grapple with the questions of interim relief as discussed earlier in this judgment.
That past of the transfer motion moving upon the provisions of s 72 of the LEC Act is dismissed. In those circumstances, it is appropriate costs be reserved.
The Secretary should bring in short minutes of order reflecting this judgment.

DIRECTION

The Court directs that the Secretary shall bring in short minutes of order reflecting this judgment by 1pm on Friday, 3 September 2021.

Amendments 06 September 2021 - Typographical error corrected. 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: 06 September 2021

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014(Cth)

Strata Scheme Development Act 2015(NSW)

(2011) 182 LGERA 110

Australia YMCI Ltd v Secretary of the Department of Customer Service

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (24)

Cited By (1)