C M Hairis Architects v Waverley Council

Land and Environment Court (NSW)|2003-10-21|Before: Pain J, Kirby P

The Applicant further argued that leave should not be granted to argue grounds 4 and 5, relying on the decisions of Suttor v Gundowda (1950) 81 CLR 418 , Coulton v Holcombe (1986) 162 CLR 1 , University of Wollongong v Metwali (No 2) (1985) 59 ALJR 481 and Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1194 (21 October 2003). Essentially these cases held that if a party seeks to advance for the first time on appeal a new ground not taken at trial it will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. In Coulton it was held that it is fundamental to the due administration of justice that the issues between the parties are ordinarily settled at the trial. If this were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court.

The Applicant argued that had the point now sought to be raised by the Council been raised at the hearing before the Commissioner or earlier, it is likely that additional evidence would have been called, or sought to be called, and additional issues based on that evidence aired before the Commissioner or before a judge of the Court if the matter had been argued as a preliminary point of law. Furthermore, the Commissioner simply addressed the issue in the way the Council asked him to. The Applicant contends that this ground is not open on appeal and no error of law is disclosed. Finding 18. The first hurdle the Council must overcome is that this is a s 56A appeal before me. That is an appeal against a finding of the Commissioner's decision. There has been no reference to any relevant finding in the Commissioner's judgment as a basis on which to found grounds 4 and 5. Arguably there is no error of law identified in the Commissioner's decision in relation to grounds 4 and 5 as there is simply no reference to those issues in the Commissioner's decision.

Even if the section of transcript relied on by the Council is considered, putting aside the issue whether that forms in any way part of the Commissioner's determination for the purposes of this appeal, there is arguably no relevant finding by the Commissioner at all in that transcript. Consequently the Council falls at the first hurdle in that there is no identifiable error of law.

Assuming that I could consider there was an identifiable error of law against which to appeal, I agree with the Applicant that it is not appropriate in the circumstances before me to give leave to the Council to raise grounds 4 and 5 in this s 56A appeal. Firstly, even the authorities relied on by the Council (to which I was referred in the Ritchie Supreme Court Procedure Service) suggest that such an approach should only be allowed in exceptional circumstances. While the Council argued that the notation on the subdivision plan was clear on its face and no further evidence or enquiry was necessary in order for this issue to be determined by this Court, I consider it is highly likely that different evidence and different arguments would have been presented to the Commissioner or, indeed, a judge if this matter had been considered as a preliminary point of law, which is not able to be canvassed before me. It is not appropriate for the Court to entertain fresh evidence on a s 56A appeal even if the Applicant had been in a position to proceed and the Court exercised its discretion to allow the matter to proceed.

I also reject the Council's submission that, because there is no evidence as to prejudice put on by the Applicant in an affidavit, it should be assumed that there is no prejudice. Given the recent notice to the Applicant by the Council of the arguments to be put I do not consider the Applicant is under any obligation to put on such an affidavit.

As I consider it is not appropriate to grant leave to raise grounds 4 and 5 as a matter of discretion I do not need to deal with the merits of whether or not there is an error of law by the Commissioner. Indeed, as I have already stated, it does not appear on the face of his judgment that there is such an error given there is no reference at all to the issues raised in grounds 4 and 5.

I observe, however, that it is not clear to me on the arguments, to the limited extent they were aired before me, that the error of law is as manifest as the Council submitted. The Court has before it a 1921 subdivision approval which was intended to permit the registration of a subdivision under the Conveyancing Act 1919. The cases of Rutland and Moss relied on by the Council are not necessarily conclusive on the question of law before me. These cases arguably deal with different circumstances and I am not convinced that the issues of law raised are as straight forward as the Council's argued.

I also note that in relation to one of the arguments put forward by the Applicant that, once there is compliance with s 327(2) of the Local Government Act 1919 and a plan of subdivision is registered, the approval is arguably spent and therefore does not apply in the year 2003.

There were additional arguments raised by the Applicant which were not, I think, fully explored before me and which would require further attention before this Court could reach a concluded view on these matters. I make no finding whatsoever on the merits of the issues raised in grounds 4 and 5.

The Council has advised the Court that it is considering commencing Class 4 proceedings if I do not give leave in this s 56A appeal to argue grounds 4 and 5. It says these proceedings will raise the same issues and will seek orders and declarations in relation to the Commissioner's decision. It is a matter entirely for the Council as to whether it wishes to proceed on that path and I make no finding as to whether or not such a course is even open to the Council. Given that Commissioner Watts' decision now stands as I am dismissing the s 56A appeal so that the Applicant has a valid development consent issued by the Court, such a course is novel to say the least.

I was also asked to consider the matter of costs. The Applicant is seeking indemnity costs in the event that it is successful, which it is, on the basis that the Council embarked on a hopeless application. The Council opposed such an order being made and argued that indemnity costs are not appropriate where it has not been demonstrated that the Council's action is frivolous, an abuse of process or waste of the Court's time. I intend to apply the decision of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 to which I have been referred. His Honour held: Whenever it appears that an action has been commenced or continued in circumstances where the Applicant properly advised should have known that he had no chance of success, in such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law. 28. I do not think in this case that the Council's pursuit of this s 56A appeal warrants an award of costs on an indemnity basis. I will make an order that the Council is to pay the Applicant's costs of this s 56A appeal.

Order 29. The Court orders that: 1. The Respondent's s 56A Appeal is dismissed. 2. The Respondent pay the Applicant's costs.

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.

CITATION : C M Hairis Architects v Waverley Council [2003] NSWLEC 404 PARTIES : C M Hairis Architects Waverley Council FILE NUMBER(S) : 10157 of 2003 CORAM: Pain J Appeal :- Section 56A of the Land and Environment Court Act (1979) Whether errors of law disclosed in the Commissioner's judgment KEY ISSUES: Should leave be given to argue grounds not raised at merits hearing Should leave be given to raise new evidence Appeal dismissed LEGISLATION CITED: Land and Environment Court Act (1979) s 56A Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR; Coulton v Holcombe (1986) 162 CLR 1; Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1194 (21 October 2003); Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; CASES CITED: Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127; Moss v Kiama Municipal Council (2003) 127 LGERA 83; Progress Securities Pty Limited v North Sydney Council (1988) 66 LGRA 23; Rutland v Shoalhaven City Council (1997) 94 LGERA 370; Suttor v Gundowda (1950) 81 CLR 418; University of Wollongong v Metwali (No 2) (1985) 59 ALJR 481 DATES OF HEARING: 17/12/2003 EX TEMPORE JUDGMENT DATE : 12/19/2003

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