Campbelltown City Council v Galluzzo

CONSIDERATION 11The Uniform Civil Procedure Rules 2005 relevantly provide: 2.1 Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 6.19 Proceedings involving common questions of law or fact (1) Two or more persons may be joined as plaintiffs or defendants in any originating process if: (a) separate proceedings by or against each of them would give rise to a common question of law or fact, and (b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. (2) Leave under subrule (1) may be granted before or after the originating process is filed. 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant. 12G8 submits that there should be no joinder or amendment at this stage because, first, if either of the pending class 1 proceedings in this Court or its pending modification application is successful, that will resolve the proceedings; and secondly, it is willing to undertake (inter partes) to reduce the numbers of children attending the centre until such time as the intersection works are undertaken or the numbers of children attending the centre is otherwise approved. 13In Ross v Lane Cove Council [2014] NSWCA 50 at [51] Leeming JA, with whom Meagher JA and Tobias AJA agreed, held: It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. 14In that case Mr Ross made alterations and additions to a property contrary to a development consent. The council obtained orders from this Court that Mr Ross demolish unauthorised works and reinstate the property in accordance with the consent. During the proceedings in this Court, it became apparent that he was no longer the registered proprietor of the property. The Court of Appeal held that the new owner ought to have been joined to the proceedings even though the new owner was not in breach nor threatened to breach. In my opinion, the current case is even stronger for the joinder of G8 because it is alleged in the proposed amended summons that it is in breach and relief is sought against it. I do not understand G8 to contest the applicability of the principle expounded in Ross. Rather, as I have earlier indicated, the burden of its submission is that it is not appropriate to join it as a party at this stage. 15The motion should be approached from the standpoint articulated in Ross that there is an obligation on Council to join G8 in order to advance the case in the proposed amended summons (if not the case in the existing summons). The fact that the respondent's class 1 proceedings and G8's modification application are pending do not seem to me to be of sufficient weight to resist joinder and amendment. They may be more significant on any later application to adjourn further progress of these proceedings (after joinder and amendment have been effected) in order to see whether either is allowed such as to resolve these proceedings (cf s 124(3) Environmental Planning and Assessment Act 1979). But that is another matter. I therefore propose to make orders for the joinder of G8 as a respondent to the proceedings and for leave to amend the summons along the lines proposed by Council. It emerged in discussion during the hearing this morning that the precise terms of the proposed amended summons which is annexed to the Council's notice of motion may require some reworking. I therefore propose not to be prescriptive as to its precise content, thus affording Council an opportunity to give further consideration to its content in light of that discussion.

COSTS 16Council does not seek any costs order for its notice of motion except for a costs order for today's hearing against G8 on the basis, it contends, that G8 unreasonably opposed joinder. The respondent Mr Galluzzo seeks his costs of Council's notice of motion (including the hearing today); I think that is reasonable. As between Council and G8, I consider that there should be no order as to the costs of Council's notice of motion, including the hearing today. On the one hand, those costs would have been avoided if Council had structured its case at the outset in the way that it now proposes and I do not think that G8 was unreasonable in raising the matters that it did in opposition to joinder at this stage. On the other hand, Council succeeded on the motion. On balance, a fair outcome is as I have proposed. 17G8 seeks an order insulating it against the costs of the proceedings to date. At the end of the day, it may well be that it is entitled to insulation against costs to date or some of them. However, it is possible, as suggested by Council, that some of those costs will be shown to be fairly referable to the case against G8. I am therefore disinclined at this stage to make the insulation costs order G8 proposes.

ORDERS 18The orders of the Court are as follows: (1)G8 Education Limited be joined as the second respondent to these proceedings. (2)The applicant be granted leave to file an amended summons along the lines annexed to its notice of motion filed on 1 September 2014. (3)The applicant file and serve its amended summons in respect of which leave is granted by 4pm on 18 September 2014. (4)The applicant pay the first respondent's costs of its notice of motion. (5)As between the applicant and the second respondent, no order as to costs of the applicant's notice of motion to the intent that each of those parties will pay its own costs thereof. (6)The matter will be listed for directions before the list judge on 3 October 2014. 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 2014