By a notice of motion filed on 22 February 2016 the applicant seeks to review the decision of the Registrar made on 17 February, fixing 7 April 2016 as the date for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW). She seeks to have 27 April 2016 fixed as the date for that conference in lieu of 7 April. The respondent does not oppose that course.
The power of a judge of this Court to review the decision of the Registrar is found in r 49.19 of the Uniform Civil Procedure Rules 2005. The rule provides:
"49.19 Review of registrar's directions, certificates, orders, decisions and other acts
If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."
That rule, which applies in this Court, has been the subject of consideration both in earlier decisions in this Court and in the Court of Appeal. The decision often cited, stating the principles to be applied when determining an application made under the rule, is that of the Court of Appeal in Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61. The leading judgment was delivered by Hodgson JA (Ipp JA agreeing) who stated at [6]-[9]:
"6 I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion.
7 In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so.
8 In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.
9 In the case of a decision which finally determines a party's rights or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing."
I should also refer to the observations of Basten JA in the same case where his Honour identified the relevant principles in the following terms (at [52]):
"52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows:
(1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and the Uniform Civil Procedure Rules, r 49.19;
(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;
(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review;
(4) nevertheless, similar policy considerations may arise in relation to a review, including:
(a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement;
(b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and
(c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review."
Tomko was considered by Preston CJ in Groeneveld v Wollongong City Council [2009] NSWLEC 149; 168 LGERA 260. At [12] his Honour said:
"12 What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights."
His Honour then cited Tomko and quoted [8] and [9] from the judgment of Hodgson JA. He continued (at [13]):
"13. Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)]."
The present proceedings seek to have the Court determine compensation payable to the applicant pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The applicant's land at Rossmore in south-western Sydney was acquired by compulsory process on 5 June 2015. It was acquired for the purpose of implementing what has been described as the Bringelly Road Upgrade, a significant infrastructure project by the respondent. That project has also involved the acquisition of a number of other properties in that area.
The applicant's proceedings were commenced on 2 December 2015. They were first listed for directions before Pain J on 5 February 2016 when her Honour made orders, by consent, that the proceedings be listed for a s 34 conference, with liberty given to the parties to approach the Registrar by e-Court to fix a date for that conference.
The Court file reveals that following her Honour's orders, the applicant's solicitor first approached the Registrar by e-Court, requesting that the s 34 conference be fixed for 27 April. The Registrar responded to that e-Court by indicating that it was "not generally acceptable to list a s 34 conference out of the range unless there are directions necessitating the same as this will generally delay the entire proceedings. In order to satisfy the Court that none of the relevant persons are available prior to the date proposed, please set out the unavailable dates for each parties' experts as well as for the solicitors."
The applicant's solicitor responded by indicating dates upon which the valuer retained on behalf of the applicant was available, the dates upon which he was available and the dates upon which counsel then retained in the matter was available. Likewise the solicitor for the respondent advised the Registrar of the dates available for the conference to its retained valuer, planner, instructing RMS officer, counsel and solicitor.
Following receipt of those responses, the Registrar fixed the s 34 conference for 7 April 2016. It would appear from the information provided to her that the only person who was not available on that date, among the various personnel who had been identified as intending to attend the conference, was the particular counsel retained for the applicant.
As I have earlier stated, it is the decision of the Registrar to fix 7 April 2016 that is the subject of the applicant's motion for review. In support of that motion the respondent read the affidavit of her solicitor who has identified two matters that found the order sought. First, it is said, that counsel retained by the applicant has held that retainer for some time, has conferred both with the applicant and with the applicant's valuer and has visited the land that is the subject of the proceedings. If retained counsel is not able to attend the s 34 conference, additional costs will be incurred in briefing other counsel to attend.
The second matter to which reference is made is the circumstance that there are a number of compensation proceedings before the Court brought by land owners whose lands have been acquired as part of the Bringelly Road Upgrade. Those other proceedings came before me after Pain J made her order for the s 34 conference in these proceedings. In respect of those other proceedings, I have directed that they all be listed for further directions on 13 May 2016. If those proceedings have not settled by that date, the Court will endeavour to control the listing of all proceedings arising from the acquisition of land for the Bringelly Road Upgrade to ensure that there is consistency in the directions given for hearing and, so far as is possible, that there is a single decision by the Court on issues common to all proceedings. In the meantime, directions have been given in each of those other proceedings requiring that a s 34 conference be held before 13 May.
Ordinarily, the unavailability of particular counsel provides no substantial reason to support an application for review of a date fixed by the Registrar. While such a reason might have more substance when particular counsel who has had a long association and involvement in the proceedings is unavailable for a date fixed for a final hearing, that position differs from a circumstance where, as in this case, little has happened beyond the filing of the application commencing the proceedings and directions given for the conduct of a s 34 conference. While it is understandable that an applicant would wish the desired counsel to attend such a conference, the necessity for that to occur, given the nature of such a conference, has not been demonstrated.
Mr Eastman, who appeared for the applicant, did not identify any error on the part of the Registrar in fixing the date for the s 34 conference. Having regard to the evidence adduced in support of the application for review, a challenge on that ground could not be sustained. Consistent with the authorities to which I have referred, the only matter to which Mr Eastman can point, apart from the inconvenience to his client in having to retain alternate counsel to attend the s 34 conference, is that the Registrar may not have appreciated that there were a number of matters in what may become the Bringelly Road List that have a common date fixed for a second directions hearing
To my mind, that is not a significant factor, given that there are a number of different dates upon which s 34 conferences are fixed for those other matters. If those conferences do not result in agreement upon compensation to be paid, they will all be listed on 13 May 2016. The fact that the conciliation conference in this matter is fixed for 7 April simply means that if agreement is then reached, the proceedings can be concluded by orders made sooner rather than later. If agreement is reached, steps can be taken to have the matter relisted in accordance with liberty reserved to the parties so to do, thereby enabling the Court to make appropriate orders.
For these reasons, I am not prepared to disturb the order of the Registrar fixing 7 April 2016 for the s 34 conference in these proceedings. The interests of justice do not require that to be done. The only change that I would make to the orders made by the Registrar on 17 February 2016 is to require that, if the s 34 conference does not result in agreement as to compensation, the proceedings be relisted for directions along with the other Bringelly Road matters on 13 May 2016. Otherwise, the applicant's notice of motion will be dismissed.
Accordingly, the orders that I make are as follows:
1. Vary the order made by the Registrar on 17 February 2016 by vacating the date of 15 April 2016 as the date for a directions hearing and substituting in its place the date for the second directions hearing as 13 May 2016.
2. Otherwise dismiss the applicant's notice of motion.
[3]
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Decision last updated: 03 March 2016