[2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
[2006] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[1964] HCA 69
News Ltd v Australian Rugby Football League Ltd (1996) 64 FLR 410
[2014] NSWCA 50
Shaw v New South Wales (2012) 219 IR 87
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256[2006] HCA 27
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125[1964] HCA 69
News Ltd v Australian Rugby Football League Ltd (1996) 64 FLR 410[2014] NSWCA 50
Shaw v New South Wales (2012) 219 IR 87[2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Spencer v Commonwealth (2010) 241 CLR 118[2010] HCA 28
Victoria v Sutton (1998) 195 CLR 291
Judgment (6 paragraphs)
[1]
Ex TEMPORE Judgment
On 31 October 2016, by way of Summons, Bayside Council ('the Applicant Council') commenced these Class 4 proceedings against Toplace Pty Ltd ('Toplace'), the First Respondent, and JKN Australia Pty Ltd ('JKN'), the Second Respondent.
These proceedings concern the development of land known as 'New Street 1' or 'Mahroot Street' and the surrounding areas ('the Land') which has, relevantly, the benefit of three development consents: known as DA 12/195 (granted on 17 July 2013), DA 13/209 (granted on 7 April 2014 and modified on 1 October 2015), and DA 13/278 (granted on 20 November 2014 and modified on 17 February 2016). These development consents approve development on the Land; namely, inter alia, the construction of New Street 1, the subdivision of the Land, and the erection of apartments respectively.
JKN is the owner of the Land, and Toplace - for the purpose of hearing and disposing of the Notice of Motion presently before the Court - is accepted to be the applicant for these development consents and a legal person who has carried out a considerable amount of development on the Land. It should also be noted that, on 7 April 2014, the Applicant Council and JKN (and not Toplace) entered into a Dedication of Land Deed concerning New Street 1 and land known as 'the Pocket Park'.
It appears that the development the subject of these consents has now been completed. However, the critical issues in these proceedings concern the dedication of Lot 4 in Deposited Plan 1203451 ('Lot 4'), being New Street 1. Lot 4 has not been dedicated to the Applicant Council. In essence, these Class 4 proceedings have been commenced by the Applicant Council to effect the dedication of Lot 4 as a public road.
In full, the relief claimed by the Applicant Council in the Summons is as follows:
1. A declaration that the Respondents, by themselves, their servants or agents, have carried out development otherwise than in accordance with the following conditions of development consent:
a) condition 54(a) of DA 13/278 as modified by the City of Botany Bay Council, now Bayside Council (Council), on 17 February 2016 (DA 13/278), a copy of which is annexed hereto and marked "A";
b) condition 3 of DA 13/209 as modified by Council on 1 October 2015 (DA 13/209), a copy of which is annexed hereto and marked "B"; and
c) condition 4 of DA 12/195 granted by the Joint Regional Planning Panel - Sydney East Region on 17 July 2013 (DA 12/195), a copy of which is annexed hereto and marked "C" (collectively the Consents),
in breach of section 76A(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), in circumstances where:
d) the said conditions of development consent required inter alia that the land identified as Lot 4 DP 1203451 (the Land), and known as New Street 1 and Mahroot Street, be dedicated as a public road; and
e) the Land has not been dedicated as a public road.
2. A declaration pursuant to the Court's jurisdiction under s 16(1A) of the Land and Environment Court Act 1979, that the Second Respondent has breached the terms of the Deed of Dedication of Land between the Second Respondent and the Council executed on or about 7 April 2014 (the Deed), a copy of which is annexed hereto and marked "D", which required inter alia that the Land be dedicated as a public road prior to 31 December 2014 without cost to the Council.
3. An order that the Respondents, by themselves, their servants or agents, dedicate the Land as a public road in accordance with the Consents within 28 days of the date of these orders.
4. An order that the Second Respondent, by itself, its servants or agents, dedicate the Land as a public road in accordance with the Deed within 28 days of the date of these orders.
5. Such further or other order as the Court thinks fits.
6. Costs.
The proceedings have come before the Court today for the Court to hear and dispose of a Notice of Motion filed by Toplace on 8 June 2017. In essence, Toplace seeks to be excised from these proceedings by the Court making the necessary orders so to do under the Uniform Civil Procedure Rules 2005. In full, the order sought by Toplace in its motion are as follows:
1. An order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) that the proceedings be dismissed in so far as they are brought against the First Respondent.
2. In the alternative to the order sought in paragraph 1 herein, an order pursuant to r 14.28(1)(a) of the UCPR that the Points of Claim be struck out in so far as the Points of Claim makes allegations against the First Respondent.
3. An order that the Applicant pay the First Respondent's costs of the proceedings, including its costs of this Notice of Motion.
4. Such other order as the Court thinks fit.
Relevant to the motion are the Applicant Council's Points of Claim and the Respondents' Points of Defence. In particular, paragraph 27 of the Points of Claim states:
The Respondents have, by themselves, their servants or agents (including each other) carried out development on Lot 4 and Surrounding Land otherwise than in accordance with DA 13/209 and DA 13/278 in breach of s 76A of the EPA Act.
In response, paragraph 14 of the Points of Defence states:
As to paragraph 27 of the POC:
(a) the Respondents deny the paragraph; and
(b) the First Respondent denies carrying out development on Lot 4 and the surrounding land.
Given that Toplace relies on r 13.4(1) and, alternatively, r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 as the basis for the primary orders which it seeks in the present motion, it is appropriate to set out these rules:
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
[2]
The legal principles
Usefully, the parties agreed on the relevant established legal principles with respect to the summary dismissal of proceedings: being those principles summarised by Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200]. I gratefully adopt his Honour's summary in that decision, which was as follows:
[196] It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).
[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
[198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].
[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:
"The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."
[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
Furthermore, both parties agreed that the established principles applying to the joinder of parties (although not technically activated here) are of some relevance to the present motion. In this respect, the parties drew attention to Ross v Lane Cove Council (2014) 86 NSWLR 34 and News Ltd v Australian Rugby Football League Ltd (1996) 64 FLR 410.
[3]
The respective positions of the parties
Although I have carefully considered the full written and oral submissions of the Applicant Council and Toplace, I consider it necessary only to concisely state the competing positions of the parties.
In essence, Toplace submitted to the Court that there is no reasonable cause of action against it because it is impossible for it to have breached the conditions of consent relating to the dedication of land. In short, the carrying out of development by Toplace (who does not own the Land) could not breach what it says are conditions of consent concerning the dedication of land that only JKN can comply with (as the owner of the Land).
Additionally, Toplace denied that it could reasonably be said that its rights, interests, or liabilities could be affected by the granting of relief in the substantive proceedings. As these proceedings concern the dedication of land which Toplace does not own, any resolution of this dispute could not sufficiently affect Toplace's interests for it to justifiably be a party to the proceedings.
Conversely, the crux of the Applicant Council's submissions is that there is a clear prima facie case that - because Toplace has carried out much of the development under the development consents (and is the relevant applicant for those consents) and, on the Applicant Council's case, conditions of consent concerning the dedication of the Land have been breached - Toplace has contravened the Environmental Planning and Assessment Act 1979 ('EPA Act') in the way alleged in the Summons and the Points of Claim.
Moreover, the Applicant Council submitted that - given the heavy involvement of Toplace in applying for the relevant development consents and carrying out much of the relevant development authorised under those consents - there is a strong prima facie case that the resolution of the present proceedings will (through the relief granted) considerably affect the rights, interests, or liabilities of Toplace.
In such circumstances, it was said that the Court would not excise Toplace from the proceedings. This was said to especially be the case given the very high bar that Toplace must clear in order to persuade the Court so to do.
[4]
Consideration
I have decided to dismiss the Notice of Motion filed on 8 June 2017 and, so, to not order that the proceedings be summarily dismissed in so far as they are brought against the First Respondent, Toplace. Nor will I order that the Points of Claim be struck out in so far as allegations are made against Toplace.
In making this ruling, I am mindful of the need to be cautious not to trespass into areas which will be the subject of submissions and evidence before the trial judge when the Summons filed on 31 October 2017 comes before the Court for final hearing. In this case, there appears to be considerable factual disagreement between the parties with respect to the status of the First Respondent and, in particular, as to the role and interrelationships of Toplace, primarily with respect to JKN. Counsel for the First Respondent confirmed that Toplace was both the builder and, with respect to at least two of the relevant development applications, the applicant for the required development consents.
Although a firm of architects may have acted as an agent, Toplace is revealed in documents contained within the exhibited folder, BC‑1, to the affidavit of Brendon Clendenning as the applicant for consent. The summary table identified as an aide-memoire, produced to the Court on behalf of the Applicant Council, usefully directed the Court's attention to the multiplicity of 'mentions' (to use a neutral term) to Toplace in the evidence exhibited to both the affidavits of Mr Clendenning and Christopher Mackey. At the final hearing, the trial judge will necessarily analyse the evidence in detail and then interpret the relationship between the respondents and the relevance of that relationship, but, on this motion, it is sufficient for me to accept that there is a relevant nexus and that serious questions regarding that nexus cannot be summarily dismissed. Clearly, the Applicant Council has one view and the First Respondent has a differing view.
I am not satisfied that the Applicant Council's claim set out in the Summons is so clearly deficient or untenable that it would be inappropriate to allow it to continue with its case against the First Respondent. I am not satisfied that there is an absence of a reasonable cause of action against the First Respondent, given that, to dismiss a cause of action, I must be very clear that that would be an appropriate course: General Steel Industries Inc v Commissioner for Railways (NSW) at 129-130.
I accept the Applicant Council's submissions that my power to dismiss the claims against the First Respondent should only be exercised in exceptional circumstances. In my view, such exceptional circumstances are not present in this case. On the contrary, there are, in my view, sufficient indicators of relevant involvement in the subject matter of the proceedings on the part of the First Respondent to warrant it remaining a respondent in these proceedings.
In an interlocutory application, such as I have heard today, it is not for the Court to carry out an in‑depth consideration of the evidence or to analyse the full parameters of the legal arguments which arise or might arise from the Summons, such as would be the task of the trial judge. My task is to determine whether, on a prima facie basis, there are sufficient indicators in the Summons and Points of Claim to confirm that the Applicant Council may have an arguable case against the First Respondent. Of course, my task does require me to consider the three affidavits read into evidence (being the affidavits of the deponents Edward Davies, Mr Mackey and Mr Clendenning, respectively dated 8 June 2017, 2 August 2017 and 24 March 2017) and to consider the submissions prepared for today's hearing by counsel for each party. This material has been read, heard and considered.
I am of the opinion that the Applicant Council has an arguable case which would entitle it to obtain at least some, if not all, of the orders that it seeks against the First Respondent. That there might be an arguable case does not mean that the Applicant Council will ultimately be successful in part or in whole. That will be determined by the trial judge.
This is a case focused on a breach of s 76A of the EPA Act, primarily that various conditions in a succession of development consents relating to New Street 1 have been breached. The primary contention relates to the dedication of that road as a public road. The Court is unable to discern in these interlocutory notice of motion proceedings whether there is an interlocking interrelationship between these conditions and other conditions in the development consents relating to New Street 1 - presumably built or constructed by Toplace - which are related to, or predicated on, an acceptance that New Street 1 is to become a public road and is to be accessed and managed accordingly (perhaps giving rise to issues regarding barriers or physical design). These may or may not be relevant considerations, but, in the normal circumstances, a development consent and the conditions contained within it are to be read as a whole. Individual conditions may or may not be severable.
In short, if Toplace built New Street 1 to accord with an overall development concept, then there may be relevant considerations connected to the road dedication issue. Conditions may be predicated on an interrelationship. Given the accepted role of Toplace as the builder of New Street 1 and the associated abutting development, at this stage in the proceedings, I do not consider it appropriate for Toplace to be removed from the proceedings. It is for the trial judge to determine the parameters of the relevant consents and the relevant relationships or roles of the two respondents with respect to those consents.
There is no dispute between the parties as to the status of JKN as the owner of Lot 4, known as New Street 1. It was always to be the case that, irrespective of the outcome of the motion, JKN would remain a respondent to the proceedings. There is also no dispute that there is a relationship between JKN and Toplace, albeit counsel for the First Respondent disputed that there is a meaningful or relevant association with respect to the issues arising out of the Summons.
I am of the opinion that the decision of the Court of Appeal in Ross v Lane Cove Council (and the authorities stated therein) supports the reasonableness of the joinder of Toplace as a respondent. It is clear to me that there is "an arguable possibility that [Toplace] may be affected by the making of" the orders sought in these proceedings: Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77]. Likewise, there is a reasonably arguable case that Toplace has breached the materially relevant conditions of consent.
[5]
Orders
For the above reasons, the Court orders that:
1. the Notice of Motion filed on 8 June 2017 be dismissed; and
2. the First Respondent is to pay the Applicant Council's costs, as agreed or assessed.
[6]
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: 18 September 2017