Concerned Citizens of Canberra Inc v Chief Planning Executive

4. The plaintiff is to provide security for the defendant's costs:

1. By paying into court the sum of $25,000.00 or by otherwise providing security for that amount in a manner satisfactory to the defendant.

2. Security is to be provided by 4 pm on 30 April 2013. The matter is to be listed before the court for further management of the proceedings on 1 May 2013 with a view to fixing a date for the hearing of the substantive issues.

3. In the event that the security is not provided the court will, on 1 May 2013, consider any application made by the defendant for an order for the dismissal of the proceedings.

1. These proceedings were instituted by way of originating application filed on 9 August 2012.

2. The subject of the proceedings was a development application lodged on behalf of the Canberra Muslim Community Inc (CMCI). CMCI, under development application No. 201221881, sought approval to a proposed development at Block 2, Section 235, Gungahlin for the purpose of a place of worship, namely a mosque and associated buildings.

3. The proceedings concerned two decisions made by the defendant, the Chief Planning Executive of the Planning and Land Authority. In the first decision, made on 6 August 2012, the defendant refused the plaintiff's application for an extension of the public notification period in respect of the development application. In the second decision, made on 29 August 2012, the defendant conditionally approved the development application under Section 162 of the Planning and Development Act 2007.

4. The originating application sought orders under the Administrative Decisions (Judicial Review) Act 1989 for a review of the first decision. The plaintiff in that application was described as Concerned Citizens of Canberra. The originating application was amended on 21 August 2012 to reflect the fact that the plaintiff obtained the status of an incorporated association on 13 August 2012 under the Associations Incorporation Act 1991. The parties agreed that this amendment remedied the nullifying defect that arose through the commencement of proceedings by an unincorporated association.

5. On 15 February 2013 I heard argument in respect of four interlocutory applications, The parties agreed that the four applications should be dealt with in the following order:

1. The application filed by the plaintiff on 31 October 2012 to amend further the amended originating application and associated orders.

2. The application filed by the plaintiff on 12 February 2013 to join Irwin Ross to the proceedings as a second plaintiff.

3. The application filed by the defendant on 15 October 2012 for an order dismissing the originating application.

4. The application filed by the defendant on 25 October 2012 for an order that the plaintiff provide security for the defendant's costs in the sum of $25,000.00.

6. A number of affidavits were read. It was difficult to discern to which of the applications the affidavit related. I therefore list the following affidavits that I read for the purpose of reaching my conclusions as to the orders to be made:

Affidavits of Robert Balzola, solicitor for the plaintiff, dated 22 October 2012, 11 February 2013 and 14 February 2013;

Affidavits of Irwin Ross dated 11 February 2013 and 20 February 2013;

Affidavit of Pamela Mathie, solicitor for the defendant, dated 15 October 2012 and 25 October 2012.

7. The proposal to amend rose out of the second decision. It faced three hurdles:

1. An extension of time was required since the application to amend was lodged outside the time limit provided for in s 10 of the Administrative Decisions (Judicial Review) Act.

2. Leave of the court was required for the amendment.

3. The applicant for the development consent, CMCI, was not before the court at the time the application was heard.

8. Section 10 of the Administrative Decisions (Judicial Review) Act required that an application for judicial review of the second decision should have been made within 28 days of 29 August 2012, a period that expired on 26 September 2012.

9. On 14 September 2012 the plaintiff lodged an application with the ACT Civil and Administrative Tribunal in respect of the second decision.

10. On 21 September 2012 the defendant's solicitor objected to the application to ACAT because the second decision was exempt from merit review under Part 3.2, Schedule 3 to the Planning and Development Regulation 2008.

11. The plaintiff accepted that the objection was well founded and discontinued the ACAT proceedings on 27 September 2012.

12. On 11 October 2012 the plaintiff advised the defendant that it was considering a further amended application with a view to filing and serving the application to amend within 21 days. The application to amend was filed on 31 October 2012.

13. In his affidavit of 22 October 2012, Mr Balzola put forward the following explanation for the delay in bringing the application to amend further the originating application.

1. The plaintiff enquired of counsel which was the more appropriate forum to deal with its concerns arising out of the second decision.

2. On 4 September 2012 counsel confirmed the availability of the ACAT jurisdiction, based on the notification set out on page 24 of the Notice of Decision (Annexure H).

3. The plaintiff was satisfied having received this advice that ACAT had jurisdiction and therefore lodged its application in good faith on 19 September 2012.

4. The ACAT application was discontinued on 27 September 2012 after receiving the information provided by the defendant's solicitor and upon receiving further advice.

14. The following appeared on page 24 of the Notice of Decision:

The following notes are provided in accordance with Regulation 7 of the ACT Civil and Administrative Tribunal Regulation 2009. Refer to the Review by the ACT Civil and Administrative Tribunal (ACAT) section of the Notice of Decision for information about its relevance to this development application.

15. The material to which this part of the notice referred appeared on page 21 of the Notice of Decision. It read as follows:

REVIEW BY THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (ACAT)

Decisions that are reviewable by the ACAT are identified in schedule 1 of the Planning and Development Act 2007 except for those precluded under schedule 3 of the Planning and Development Regulation 2008 - Matters exempt from third party ACAT review.

16. It was apparent from Mr. Balzola's affidavit and from submissions of its counsel that the plaintiff claimed that it was mislead by the wording that appeared on page 24 of the Notice of Decision to understand that the appropriate course of action was to apply to ACAT for a review of the merits of the second decision.

17. I was not informed of the information provided to counsel when asked to advise on the appropriate forum or of the precise nature of the advice received. However, the wording on page 24 of the Notice clearly directed the reader to the information set out on page 21. A reader of that information could be left in no doubt that certain decisions were exempt from third party ACAT review. Perusal of schedule 3 of the Planning and Development Regulation 2008 would have revealed that a development on land in a town centre was exempt from third party ACAT review. The site of the proposed development was in the Gungahlin Town Centre.

18. I did not accept that the information concerning review rights provided in the Notice of Decision was misleading and I did not accept this explanation for the delay in bringing the application to amend.

19. It was apparent that the real reason for the delay was that the proceedings were commenced in ACAT in error. I was not concerned to lay blame for the error, merely to make it clear that the attempt to avoid acknowledging the error by diverting responsibility to unnamed counsel and to allegedly misleading information was unimpressive.

20. In submitting that the court should not allow the amendments, the defendant argued that in claiming a right of review of the second decision, the amendment sought to plead a new cause of action. Paragraph 12 of the amended originating application dealt with review of the second decision. This paragraph was drafted so that it claimed only an extension of time within which to make that amendment without specifying the relief sought. In such circumstances, the defendant argued that there appeared to be little point in allowing the plaintiff an extension of time to proceed.

21. The plaintiff's response was that the declarations and orders sought in paragraphs 7 - 11 inclusive were framed in terms that reflected the relief provided for in s 17(1) of the Administrative Decisions (Judicial Review) Act.

22. I accepted this explanation of the somewhat confusingly drafted amended originating application.

23. The defendant conceded that paragraphs 5 -11 of the proposed amended originating application sought relief that was available at general law and that the application to amend was commenced within the 60 day period provided for in Court Procedure Rules 2006, r 3557. He maintained however that to the extent that the proposed amendments created a new cause of action they could be permitted only in exceptional circumstances which were not present in this case.

24. The defendant relief on r 503(4) and the authority of Weldon v Neal (1887) 19 QBD 394 in which Lord Esher MR said:

We must act on the settled rule of practice, which is that amendments are not admissible when they prejudice the rights of the opposite part as existing at the date of such amendments. If an amendment were allowed setting up a cause of action which, if the write were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be in my opinion improper and unjust. Under very peculiar circumstances the court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so.

25. In researching the decision of Weldon v Neal I noted several decisions of the courts of the United Kingdom where this principle was not applied. In Roberts v Gill & Co Solicitors & Ors [2010] UKSC 22; [2010] 2 WLR 1227 Lord Collins in the UK Supreme Court referred to Weldon v Neal and at [24] described the principle as: the old rule of practice. At [25] Lord Collins referred to the relevant UK rule of practice that allowed the addition or substitution of a new cause of action if it arose out of the same or substantially the same facts as a cause of action in respect of which relief had already been claimed in the action.

26. These words were essentially similar to those appearing in r 503(4) which provides:

The court may give leave to make an amendment to include a new cause of

(b) the new cause of action arises out of the same facts or substantially

the same facts as a cause of action for which relief has already been

claimed in the proceeding by the party applying for leave to make the

27. I disagreed with the defendant that this rule encompassed the principle expressed in Weldon v Neal. In my view it allowed a discretionary judgment to be arrived at providing the proposed new cause of action arose out of the same or substantially the same facts. It was clear in this case that the applications for review of both the first decision and the second decision arose out of substantially the same facts.

28. I concluded also that s 10 of the Administrative Decisions (Judicial Review) Act allowed the court in its discretion and without the restriction contained in r 503(4)(b) to allow further time within which to make an application for review of an administrative decision.

29. For these reasons I considered that, if the justice of the case required it, the period provided for in s 10(2) of the Administrative Decisions (Judicial Review) Act should be extended to allow for the amendments proposed in the further amended originating application filed on 25 October 2012.

30. In this respect, the delay was of relatively short duration and, as already noted, it was the result of error on the part of the plaintiff in the selection of the forum to which the application was to be made.

31. The challenge to the second decision arose out of substantially the same facts as those that were the basis for the challenge to the first decision. Further, the defendant was made aware within the limitation period of the plaintiff's intention to challenge the second decision and could point to no actual prejudice arising from the proposed amendment.

32. In ordinary circumstances therefore, I was satisfied that the required extension of time should be granted and that the application to amend should be allowed.

33. Before making such an order, however, I considered it necessary that the court be provided with direct evidence that the developer, CMCI, did not wish to be joined in the proceedings because the relief sought at general law, if granted, would substantially affect the property rights and interests of CMCI which was not a party to the proceedings.

34. For that reason, I directed the parties to notify CMCI of the nature of the proceedings and of its right to be joined as a defendant if it wished to participate. I adjourned the matter to 21 March 2013 to allow CMCI to consider its position.

35. On 21 March 2013 Mr Borhan Ahmed, the President of CMCI, appeared and handed the court a written statement of its submissions (Exhibit 2). The submissions clearly indicated that CMCI was aware of the proceedings and understood that its interests might be affected by the outcome of the litigation. Its representatives had observed the court process from time to time but CMCI did not wish to be joined as a party to the proceedings.

36. The orders that I make on the application to amend are:

1 The time for commencement of proceedings in respect of the second decision is extended to 4 pm on 30 April 2013.

2 The plaintiff is granted leave to file a further amended originating application in the form of the draft filed on 25 October 2012. The further amended originating application is to be filed and served by 4 pm on 30 April 2013.

37. The defendant objected to the joinder of Mr Ross of a number of bases.

38. He argued that the application to join Mr Ross was an attempt to circumvent the consequences of an order for security for costs that the defendant sought to be made against the current plaintiff.

39. This submission was well supported by material set out in the affidavit of Mr Ross of 11 February 2011 where, in paragraph 7(1)(vi), he said:

My application to enter as a party to these proceedings only comes

after long deliberation as to the consequences to myself and my

family and in a bid to keep the application alive in light of

application by the defendant as to standing, security for costs

40. Mr Balzola, in his affidavit of 11 February 2013, also made it clear that the purpose in seeking to join Mr Ross as a second plaintiff was primarily to respond to the defendant's request that the current plaintiff provide security for his costs. In particular I note that Mr Balzola stated that he was instructed by Mr Ross that he was willing to be a party; in answer to the orders sought by the defendant as to security for costs and that in joining Mr Ross: I declare that the issues of security for costs and standing are now rendered nugatory.

41. The defendant argued that there was no interest arising from the pleadings as currently drafted that could not be addressed by the plaintiff and that required the separate representation of Mr Ross, who was not only a member of the existing plaintiff, but its President.

42. The plaintiff noted that there was some indication that the defendant might as a preliminary point in the substantive proceedings argue that the current plaintiff did not have standing to raise the issues that were pleaded. It was submitted that the joinder of Mr Ross would overcome any challenge on the basis of standing.

43. In his affidavit of 14 February 2013 Mr Balzola described the primary object and interest of the plaintiff as the protection of the environment of Canberra and upholding the Constitution of the Commonwealth, especially s 116. He stated that Mr Ross had concerns as a tax payer related to the proceedings and that he had an interest in the environmental issues as to traffic, parking and amenity: ... also as president of the plaintiff.

44. The plaintiff's counsel submitted that there was High Court authority to the effect that a taxpayer had standing to challenge matters that were allegedly constitutionally invalid. I did not accept this proposition.

45. The authority on which the plaintiff relied to support this proposition was Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559. I noted that in Black the challenge was to the validity of legislation that appropriated consolidated revenue and provided grants of funds to be paid by the States to non-government schools, some of which were operated by religious bodies.

... as at present advised, I gravely doubt whether the other plaintiffs have standing to sue; I hardly think that the fact that they are taxpayers, and in some cases parents of children at government schools, gives them a special interest in the subject matter of the action within the principles stated in the cases collected in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at pp 526-528.

47. Before proceeding to refer to those cases, Gibbs J, at p 526 of his reasons in Australian Conservation Foundation, said:

It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. .... A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

48. In the other authorities cited, the plaintiff's standing was either conceded or not raised as an issue: Pape v Commissioner of Taxation [2009] HCA 23; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363; Wurridgal v The Commonwealth of Australia [2009] HCA 2.

49. No material was placed before the court in the current proceedings to establish that, merely as a taxpayer, Mr Ross' standing to argue the constitutional issues was greater than that of the plaintiff.

50. From this point there followed the question of whether the pleadings in fact articulated any basis for the claimed breach of s 116 of the Constitution. The defendant argued that the court should be reluctant to find that the real purpose of the proceedings was to test the law in relation to constitutional issues. He argued that there was nothing by way of evidence to indicate that the Commonwealth had agreed or proposed to fund the project and pointed out that the current constitution of CMCI contained no provision indicating that it was affiliated with the Australian Federation of Islamic councils. It could not be inferred, therefore, that it would be the beneficiary of any funding that flowed from the Commonwealth to that organisation.

51. Thus it was argued that these proceedings could be distinguished from those which came before the Court of Appeal of NSW in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) in which Justice Basten said at [35].

... the proposition (if made out in fact) that the Commonwealth can pass a valid law permitting the funding of a religious institution for religious (not educational) purposes, is a proper matter for challenge.

52. The reference in the proposed amended originating application to constitutional issues appeared in the following paragraphs:

9. The second decision was an improper exercise of power in that the defendant exercised the power in a way that is abuse of the power, and in particular have regard to the decision of the Commonwealth of Australia to fund the project which decision has been made in contravention of the Constitution section 116;

10. The second decision was otherwise contrary to law, and in particular the defendant had regard to the decision of the Commonwealth of Australia to fund the project which decision has been made in contravention of Constitution Section 116.

53. The plaintiff's response was that it was not required at this stage to provide points of claim or any evidentiary basis for the constitutional challenges. I disagreed. In my view, if the court was to be persuaded that Mr Ross' joinder to the proceedings was necessary to ensure that a person whose standing in relation to the constitutional issues could not be challenged, it was necessary for the plaintiff to establish that there was a genuine basis for the constitutional arguments. I was not satisfied that this had been done at this stage.

54. A further basis for the defendant's objection to the joinder of Mr Ross was that the commencement of proceedings on his part was well beyond the period of time allowed under the Administrative Decisions (Judicial Review) Act and at general law under r 3557. No application for an extension of time in this respect was made and no satisfactory explanation for the delay in seeking to be joined was provided.

55. Mr Ross' affidavit of 11 February 2013 stated that he had been reluctant to enter into proceedings on a personal basis because of his concern that to do so would expose him to further unfavourable media attention. He appended to his affidavit copies of media publications in July and August 2012 that were the subject of his complaint to the Australian Press Council of September 2012. There was no explanation from Mr Ross that dealt with the delay between the dates of these publications and his application made in February 2013 to be joined as a plaintiff in the proceedings.

56. I was especially concerned that, while seeking to be joined as a party, Mr Ross also asked that his name, his occupation, his residential address and any means of identifying him to be suppressed for the purpose of avoiding further unfavourable media attention. Whilst one might have some sympathy for an individual who is harassed or threatened with physical violence, in Australia proceedings before courts, other than in very special circumstances, are operated in a public and open manner, so that the world at large can be confident that justice is being dispensed to the very high standard that Australian citizens are entitled to expect.

57. I did not accept that very special circumstances existed in this case to warrant the suppression of details concerning Mr Ross.

58. In deciding that I was not satisfied that the interests of justice demanded that Mr Ross be joined as a party to the proceedings I took into account the following considerations:

(a) the real purpose of his joinder was to circumvent any order for security for costs made against the plaintiff;

(b) the plaintiff did not establish that the joinder of Mr Ross was essential to the pursuit of the relief sought in the proceedings;

(c) it was not established that, merely as a taxpayer, Mr Ross' standing to argue the constitutional issues was greater than that of the plaintiff.

(d) the basis for the constitutional issues was not articulated in the application to join Mr Ross;

(e) the limitation period within which Mr Ross might commence proceedings has expired;

(f) no application for an extension of time was made;

(g) no satisfactory explanation for the delay in the commencement of proceedings by Mr Ross was supplied; and

(h) the suppression of details identifying Mr Ross would be contrary to court practice and the public interest.

59. The application to join Mr Ross as a plaintiff in the proceedings is dismissed.

60. This application was directed at the current originating application that sought to challenge the first decision. The defendant claimed that the first decision had been overtaken by the second decision and the issue of the Notice of Decision.

61. The plaintiff now has leave to amend in order to pursue its challenges to the second decision. In the circumstances the application for dismissal is dismissed.

62. The application for security for costs was brought under r 1901(a) that allows an order for security for costs to be made only if the court is satisfied:

(a) The plaintiff is a corporation and there is reason to believe that the plaintiff will not be able to pay the defendant's costs if ordered to pay them;

63. The defendant estimated the costs of the action to be in the region of $39,000 and sought security to the extent of $25,000. I accepted the defendant's submission that this estimate was modest having regard to the complexity and wide ranging nature of the grounds for relief set out in the further amended originating application. I agreed with this proposition.

64. The only evidence before the court concerning the plaintiff's financial status was contained in a letter from the plaintiff to the defendant of 4 October 2012 in which it stated that it had a membership of six persons and assets to the value of $2,159.66.

65. I was satisfied from this material that the plaintiff would not, if ordered to pay the defendant's costs, have the capacity to do so.

66. The plaintiff argued that its genuine concern at the decision making process of the defendant should not be frustrated by its lack of resource when challenging the decisions of a well resourced defendant. There was evidence, however, that there were individuals, such as Mr Ross, standing behind the plaintiff who had the means to provide security.

67. The question then became one of whether the public interest issues arising out of the litigation were such that the court should exercise its discretion against the making of such an order.

68. In Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157, Young JA at [33]-[34] said:

It must be remembered that so-called public interest groups may fall into five categories. First, there are genuine groups of people whose sole interest is the protection of the environment. Secondly, there are groups whose real aim is to preserve their existing amenities and are happy for the proposed development to proceed in another area. Thirdly, there are groups which are a facade for a competitor who wishes to protect its own commercial interests. Fourthly, there are groups which have been formed for the purposes of maintaining religious or ethical standards. Fifthly, there are groups which might contain representatives of all four categories of groups who have formed for some other purpose.

Clearly the third group cannot expect mercy on costs and the second group would have great difficulty. Thus, it is necessary for the court to look further than the name of the group and its professed aims.

69. I noted that Justice Young formulated the list of categories of public interest by reference to the purpose with which they pursued their litigation. The plaintiff maintained that its purpose in the litigation fell within the first and fourth of Justice Young's categories.

70. I was not satisfied that proceedings, based upon the proposition that the funding of any religious body for any purpose constituted a breach of s 116 of the Constitution, would necessarily qualify as public interest litigation. Litigation pursuing this proposition would suggest that its purpose was not directed at the public interest but rather at the promotion of a private view that of itself amounted to the prohibition of the free exercise of a religion, the very element of social justice that s 116 of the Constitution was designed to protect.

71. In this case, there was no evidence before the court that even hinted that the Commonwealth of Australia had made any decision to fund the development. Nor did the grounds that dealt with the constitutional issue identify the law made by the Commonwealth of Australia that offended the provisions of s 116 of the Constitution.

72. I therefore did not accept that, as currently articulated, the plaintiff established that its constitutional challenge contained the element of high public importance identified by Justice Basten in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2).

73. For these reasons I was not satisfied that these proceedings could be categorised as those brought with the purpose of maintaining religious or ethical standards.

74. The further amended originating application challenged the second decision on wide ranging environmental grounds. Nevertheless, I was not satisfied that the plaintiff represented a group of people whose sole interest was the protection of the environment. In my view, the conduct of the plaintiff to date suggested that the persons it represented were within the second group categorised by Justice Young, and, as such, there was no public interest basis upon which to deny the defendant an order for security for costs.

75. The plaintiff is to provide security for the defendant's costs by paying into court the sum of $25,000.00 or by otherwise providing security for that amount in a manner satisfactory to the defendant.

76. Security is to be provided by 4 pm on 30 April 2013. The matter is to be listed before the court for further management of the proceedings on 1 May 2013 with a view to fixing a date for the hearing of the substantive issues.

77. In the event that the security is not provided, the court will, on 1 May 2013, consider any application made by the defendant for an order for the dismissal of the proceedings.

78. On the application to amend further the amended originating application:

1. The time for commencement of proceedings in respect of the second decision is extended to 4 pm on 30 April 2013.

2. The plaintiff is granted leave to file a further amended originating application in the form of the draft filed on 25 October 2012. The further amended originating application is to be filed and served by 4 pm on 30 April 2013.

79. The application to join Mr Ross as a plaintiff in the proceedings is dismissed.

81. The plaintiff is to provide security for the defendant's costs:

1. By paying into court the sum of $25,000.00 or by otherwise providing security for that amount in a manner satisfactory to the defendant.

2. Security is to be provided by 4 pm on 30 April 2012. The matter is to be listed before the court for further management of the proceedings on 1 May 2013 with a view to fixing a date for the hearing of the substantive issues.

3. In the event that the security is not provided court will, on 1 May 2013, consider any application made by the defendant for an order for the dismissal of the proceedings.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.

Solicitor for the Plaintiff: Snedden Hall and Gallop

Solicitor for the Defendant: ACT Government Solicitor