Boomerang & Blueys Residents Group Inc v New South Wales Minister for the Environment, Heritage and Local Government and MidCoast Council

Evidence

1. In support of the application for amendment, the applicant reads an affidavit of Karen Coleman, the solicitor on the record for the applicant, sworn 9 April 2019. Ms Coleman's evidence may be briefly summarised: 1. In Council's written submissions filed 1 March 2019, under the heading "A preliminary point", the following was stated: ...in the absence of challenge to any of the anterior steps leading up to the certification by the Minister, the grounds upon which the CZMP may be amenable to judicial review are very limited indeed, and do not include any of the four Grounds raised by the Summons. The submissions below are advanced only in the event that the Court decides this preliminary point against the Council. 1. This was the first occasion on which this point was raised by Council. It was not pleaded in the response of Council which was filed on 24 April 2018 or in Council's amended response. 2. The applicant wishes to amend the summons in order to challenge the two anterior decisions made by Council in circumstances where this matter was not brought to the applicant's attention; it was believed that no new evidential issues would arise; the date and timetable for the hearing would not be affected; and Council would not be prejudiced if leave was granted. 3. Upon receipt of Council's submissions, the applicant's solicitors sent a letter to Council's solicitors, noting that the submission raised for the first time that the absence of any challenge to the antecedent steps taken by Council now meant that Council's decision to make the CZMP in December 2017 could not be reviewed by the Court.

Submissions

1. In its reply submissions filed on 27 March 2019, the applicant again stated that Council suggested for the first time in its summary of argument dated 1 March 2019 that the final decision made by Council in December 2017 to bring the CZMP into force was not reviewable and that certain antecedent decisions of Council were the ones that should have been subject to the claim for judicial review. The applicant noted that Council had not raised that matter previously and in the circumstances, the applicant sought leave at the commencement of the hearing to amend the summons having regard to the "late notice" given by Council.
2. Mr Lazarus, on behalf of Council, made detailed submissions opposing the application to amend which may be summarised as follows: 1. Given that r 59.10(1) of the UCPR requires that proceedings for judicial review of a decision must be commenced within three months of the date of the decision, the application to amend is well out of time. As the decisions were made in November 2015 and August 2016 respectively, the proceedings had to have been brought by February 2016 or November 2016 respectively. The delay (in excess of two and a half years) by the applicant is lengthy and unexplained in circumstances where the applicant had the benefit of legal advice for some period of time. 2. The application would be rejected in limine because there is no application to extend time under r 59.10 of the UCPR. While the Court has the power to extend time under subr (2), there is no application before the Court to do so, and the matters of consideration in subr (3) militate against leave being granted. In particular, there is no evidence about the precise interest of the applicant in challenging the decision, Council seeks to put on evidence concerning prejudice as a result of the delay in circumstances where Council was labouring for some time under the apprehension that those earlier decisions were not liable to challenge, and the applicant was aware of the decision "almost from the get go", but in any event, there is no evidence in this regard. 3. In considering applications for an extension of time, the Court has distinguished between deliberate inaction and delay which is merely the result of a bona fide mistake, blunder or near oversight. There is no evidence before the Court as to the reason for the applicant's delay. 4. Pursuant to the Coastal Protection Act 1979 (NSW), once the Minister certifies that a draft coastal zone management plan has been prepared in accordance with the requirements of the Act, Council must make the plan. The decision is therefore not capable of challenge on the usual administrative law basis because it was not a discretionary decision. The same submission is made with respect to the decision made in August 2016 to resubmit the plan. 5. The grounds presently pleaded in the summons do not apply (even if the amendment is made) to the earlier decisions, being those made in November 2015 and August 2016. That is, the grounds do not relate to the decisions now sought to be the subject of attack. 6. Council does not accept that the evidence can "simply be the same", as suggested in Ms Coleman's affidavit given that the basis upon which the challenge has been brought is unknown. 7. If the amendment was allowed, Council would want the opportunity to amend its defence to raise a series of discretionary matters concerning the steps it has taken in the intervening period to support the proposition that the applicant should have brought the proceedings earlier, failed to do so, and had the means at their disposal to do so. 8. If the amendment was allowed, Council would need to assess the earlier reiterations of the documents which were the subject of the earlier decisions, and Council would want the opportunity to put on evidence concerning the prejudice or detriment resulting from delay as a discretionary matter (that is, the fresh evidence would only deal with a discretionary defence).
3. Mr Hutley, on behalf of the applicant, made the following submissions: 1. Council's "original pleading" made no reference to the matter raised in its submissions in circumstances where pleadings are supposed to elucidate the substance of the matter and any matter which is apt to take a party by surprise. There has been a significant derogation from that obligation on the part of Council. 2. What is sought to be raised is essentially "a pure legal point" and the earlier drafts of the CZMP are to be in evidence before the Court in any event. Further, the various drafts of the CZMP are "essentially the same" and the applicant's complaints in relation to the earlier plans are identical to the complaints made in relation to the plan as made. Put simply, the earlier decisions were deficient because the documents to which they related (all of which are in evidence) bear a "striking resemblance to the ultimate plan". In the circumstances, the law required the plan to be prepared in accordance with the Guidelines for Preparing Coastal Zone Management Plans ('Guidelines') and the earlier plans did not comply with the Guidelines for exactly the same reasons as the ultimate plan did not. 3. The applicant is not seeking to advance new factual or legal material and is merely seeking to address a point raised "extraordinarily late" by Council which should have been in its pleading from the outset. To the extent that there is a requirement for the Court to grant leave pursuant to r 59.10 of the UCPR to challenge the decisions out of time, as stated above, the applicant relies upon the affidavit of Ms Coleman sworn 9 April 2019. Absent any cross-examination of Ms Coleman, the Court would accept her evidence. Ms Coleman only became aware of this "point" upon receipt of Council's submissions on 1 March 2019. Put simply, all the applicant seeks to do is meet a point raised "very late" by Council which is "ultimately of no substance". 4. The Court would grant the amendment and allow the matter to proceed. In the event that the Court finds that Council should be given an opportunity to put on evidence as to prejudice, Council should pay costs as the "point" could have been pleaded over a year ago.
4. In reply, Mr Lazarus made the following submissions: 1. It was not incumbent on Council to inform the applicant that it had challenged the wrong decisions. All that was required was for Council to say in its response (which is not a pleading), the grounds upon which relief was opposed. 2. To avoid taking the applicant by surprise, Council raised the issue squarely in its submissions of 1 March 2019 and nothing was done for a period of approximately three or four weeks. 3. There seemed to be a suggestion that the Court could deal with the application to amend on the first day of the hearing, and the application for an extension of time orally, without a notice of motion or any evidence. The applicant has not made submissions to defend the delay in bringing the challenge forward given that it should have been brought in 2015 or 2016.

Consideration

1. Pursuant to r 59.10(1) of the UCPR, proceedings for judicial review of a decision must be commenced within three months of the date of the decision. However, under r 59.10(2), the Court may, at any time, extend the time for commencing proceedings. Subrule (3) then provides: 59.10 Time for commencing proceedings … (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. …
2. The principles relevant to an application to extend time under r 59.10 have been stated in a number of recent decisions and were recently summarised by Pepper J in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 ('Turgeman') at [34]: ... (a) the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour; (b) the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include: (i) the length of the delay; (ii) the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and (iii) whether the applicant has a fairly arguable case; (c) the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise; (d) the question of potential prejudice to a party caused by the delay is a significant consideration; (e) the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced; (f) in considering r 59.10 of the UCPR, it should be borne in mind that a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about (Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7] and Moorebank Recyclers at [14]); (g) in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay (Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [56], that is, delay caused by "deliberate inaction" (IPM at [82]) or "an intentional decision to delay" (Moorebank Recyclers at [52]), and delay which is merely the result of a "bona fide mistake or blunder" (Tomko at [56]), mere "oversight" (IPM at [82]), or caused by seeking to clarify rights and trying to solve the matter without litigation (Yves Deyris at [13]); and (h) there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case. It is not necessary nor appropriate to demonstrate in any detail the prospects of success (Tomko at [58]).
3. I accept Council's position that the adoption by Council of the CZMP on 20 December 2017 is not reviewable unless certain antecedent decisions are the subject of the claim for judicial review.
4. I do not find Mr Lazarus' submission that the application was not supported by evidence of the usual requirements in r 59.10(3) of the UCPR to be compelling. This is particularly so in circumstances where subr (3) states that the Court "…should take account of such factors as are relevant in the circumstances of the particular case…" (emphasis added).

Delay

1. Although the period for judicial review of the decisions made in November 2015 and August 2016 expired some two to three years ago, I do not find this matter to be determinative. Although not without some concern, I consider that the applicant's delay in bringing the application to amend is explicable and justified in circumstances where these antecedent decisions had not been raised by Council prior to 1 March 2019, when Council filed its submissions. I accept the unchallenged evidence of Ms Coleman that this issue was not pleaded in Council's response to the summons filed on 24 April 2018 or in Council's response to the amended summons. Further, as noted in Turgeman at [34], there is a distinction between intentional or deliberate delay and bona fide delay. For the reasons stated above, I find the applicant's delay to fall into the latter category.

Fairly arguable case

1. I do not find that the application is "hopeless" as submitted by Mr Lazarus. In any event, courts have cautioned against placing undue emphasis on prospects of success in determining an application under r 59.10 of the UCPR and it is neither necessary nor appropriate for the applicant to demonstrate in any detail the prospects of success. I am conscious that the application for an extension of time to amend the summons should not be treated as a "dress rehearsal" for the substantive proceedings: Turgeman at [34] and Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [9]. Having regard to these principles, I consider that the applicant has a fairly arguable case.

Prejudice

1. Unlike a number of the earlier cases, the matter of the dispute in relation to the CZMP has been on foot for some period of time. Of course, that is not to say that Council would have been aware that the applicant was intending to challenge the two decisions the subject of the amendments. As properly put by Mr Lazarus, the fact that the applicant's attention was twigged to those two earlier decisions was apparently a matter that had been set out in the written submissions filed by Council in March 2019.
2. In circumstances where there is scope to extend time for commencing judicial review proceedings under r 59.10 of the UCPR, I do not consider Council's submission that it was labouring under the apprehension that the anterior decisions were not amenable to challenge to be either compelling or determinative.
3. In all the circumstances, and noting that the applicant is not seeking to advance new legal or factual material, I do not find the prejudice to Council in granting leave to the applicant to rely upon the amended summons sufficient to militate against allowing the application.

Conclusion

1. As I noted at the time of my ex tempore determination of this matter, I was prepared to allow Council to marshal further evidence if required.
2. For the reasons given above, after balancing the relevant factors, I am satisfied that the applicant has discharged its onus and established that the Court should exercise its discretion to extend time in its favour. Accordingly, leave is granted to the applicant to rely upon the Amended Summons attached as Annexure "A" to the Notice of Motion filed on 10 April 2019.

Orders

1. The orders of the Court are: 1. Leave is granted to the applicant, Boomerang & Blueys Residents Group Inc, to rely upon the Amended Summons attached as Annexure "A" to the Notice of Motion filed 10 April 2019.

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: 24 December 2019