Fred Caterson Champions Inc. v The Hills Shire Council (No 2)

Category: Procedural rulings

Parties: Fred Caterson Champions Inc. (Applicant)
The Hills Shire Council (Respondent)

Representation: Counsel:
C Collett (Applicant)
I King (Respondent)
Solicitors:
Stringybark Legal (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2025/00340555-003; 2025/00340555-006

JUDGMENT

1. The Applicant commenced judicial review proceedings challenging the approval of a Review of Environmental Factors (REF) and Addendum Review of Environmental Factors (AREF) by the Hills Shire Council (the Council) as part of the development of three rugby union fields in Fred Caterson Reserve (Reserve) by the Council on 4 September 2025. The Council is a Crown Land manager of part of the Reserve. The REF and AREF were approved by the Council on 30 September 2024 and 9 May 2025 respectively. Four grounds of judicial review are identified in the amended summons.

2. On 29 October 2025 the Applicant issued a Notice to Produce to the Council.

3. On 31 October 2025 the Applicant filed a Notice of Motion (NOM 002) seeking leave to extend the time to commence proceedings under Rule 59.10(2) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and leave to rely upon expert evidence of an owl biologist.

4. On 21 November 2025 Pritchard J listed the matter for a two-day hearing on 23-24 February 2026 and made orders for hearing preparation such as the filing of evidence.

5. Justice Pritchard heard NOM 002 on 3 December 2025. Her Honour delivered judgment on 4 December 2025 in Fred Caterson Champions Inc. trading as Fred Caterson Champions v The Hills Shire Council trading as The Hills Shire Council [2025] NSWLEC 139 (Caterson No 1) granting leave to extend the time to commence proceedings under UCPR r 59.10(2). Her Honour dismissed the application to rely upon the expert evidence.

6. On 12 December 2025 the Applicant filed a Notice of Intention to Appeal Caterson No 1 and served the notice on the Council by email.

7. On 12 December 2025 the Applicant issued a second Notice to Produce (NTP) to the Council.

8. On 17 December 2025 the Council received the Applicant’s evidence in chief in relation to the final hearing.

9. On 23 January 2026 the Council filed a Notice of Motion (NOM 003) seeking orders that the Applicant’s NTP dated 12 December 2025 be set aside in part.

10. The Applicant filed two Notices of Motion (NOM 004 and NOM 005) on 23 January 2026. NOM 004 seeks copies of documents subject to the NTP dated 29 October 2025. NOM 005 seeks copies of documents subject to the NTP dated 12 December 2025. (I note the Council has produced documents in response to the Notices to Produce. The issue is gaining access to commercial in confidence material).

11. On 30 January 2026 the Applicant filed a summons in the NSW Court of Appeal seeking leave to appeal Caterson No 1. On 30 January 2026 the Applicant’s solicitor wrote to the Council’s solicitor serving the summons. The summons is listed for directions in the Court of Appeal on 9 March 2026.

12. On 30 January 2026 the Applicant filed a Notice of Motion (NOM 006). NOM 006 seeks a stay of the substantive proceedings to allow the appeal to the Court of Appeal to proceed first. On 30 January 2026 the Applicant’s solicitor wrote to the Council’s solicitor serving NOM 006.

13. On 4 February 2026 the Council’s solicitor wrote to the Applicant stating that works are scheduled to commence on 20 February 2026. The Council served its evidence in relation to the final hearing on 4 February 2026.

14. Notices of Motion 003, 004, 005 and 006 were listed for hearing on 9 February 2026. This judgment considers Notices of Motion 006 and 003 only.

NOM 006 stay application by Applicant

15. In support of NOM 006 the Applicants read two affidavits of James Ryan, the Applicant’s solicitor, affirmed on 30 January 2026 and 5 February 2026. In his 30 January 2026 affidavit, Mr Ryan outlined a chronology of proceedings and stated that a plan of management which permits the development works has not yet been adopted by the Council. Mr Ryan annexed a bundle of correspondence to this affidavit, which was marked Exhibit A.

16. In his 5 February 2026 affidavit Mr Ryan identified steps taken by the Applicant to obtain legal advice about appeal prospects in relation to Caterson No 1. Mr Ryan stated that the Applicant is an incorporated community association with a democratic structure requiring major decisions, such as the decision to appeal, to be made by a majority vote. Mr Ryan stated in his affidavit that a motion for expedition of the appeal proceedings has been prepared. Mr Ryan stated orally that the Applicant is of limited means and had to carefully assess whether the appeal was feasible and appropriate.

17. The Applicant additionally read an affidavit of Susan Sandercock, a member of the Applicant, affirmed on 4 February 2026. In her affidavit Ms Sandercock outlined the Applicant’s concerns relating to the Council’s failure to complete an environmental assessment of the impact of the development on adjacent forests and owl species and their habitat. Ms Sandercock specifically described concerns relating to the impact of light spill from the playing fields on owls.

18. In reply, the Council read two affidavits of Mr Brew, the Council’s solicitor, sworn on 23 January 2026 and 6 February 2026. Mr Brew’s 23 January 2026 affidavit outlined correspondence between the parties relating to the NTP dated 12 December 2025.

19. In his 6 February 2026 affidavit Mr Brew outlined a chronology of proceedings. Mr Brew states that the Council did not receive any notification from the Applicant of their intention to vacate the February hearing dates until 30 January 2026. At that time, the Council’s evidence was in an advanced state of preparation and they have continued to prepare for the final hearing. Mr Brew outlined the Council’s current Sportsgrounds Generic Plan of Management (Plan of Management) which was released in November 2014. Mr Brew stated that the Management Plan includes Fred Caterson Reserve. Mr Brew annexed a bundle of documents to this affidavit, which was marked Exhibit 1.

20. The Council read an affidavit of Ms Coburn, corporate lawyer of the Council, sworn on 30 January 2026 where she described the efforts and time taken to respond to the Notices to Produce dated 29 October 2025 and 12 December 2025. Ms Coburn described concerns regarding the confidentiality of the material sought by the Applicant.

21. The Applicant seeks a stay of proceedings so that it can appeal the decision in Caterson No 1. If a stay is granted that means that the hearing dates must be vacated (noting that ‘adjournment’ is referred to in NOM 006).

Applicant’s Submissions

22. The Applicant submitted that it need not demonstrate special or exceptional circumstances to obtain a stay. It must demonstrate that an appropriate use of the court’s discretion is the grant of a stay. The Applicant has the onus of demonstrating that a proper basis for a stay exists that is fair to all parties. The filing of an appeal alone does not provide a reason or demonstrate an appropriate case and does not discharge the onus it bears. A court must weigh the balance of convenience and the competing rights of the parties. If there is a risk that the appeal will prove abortive if the stay is not granted, courts will normally exercise their discretion in favour of granting a stay. The court will not generally speculate on the prospects of success although is not precluded from doing so. The appeal on interlocutory orders concerning the adducing of expert evidence is particularly appropriate for a stay.

23. No prejudice to the Council is occasioned by the appeal proceedings. No Plan of Management is in place which is necessary before work can commence. Work has not commenced on the project. The Council has recently given notice that it intends to commence work on 20 February 2026.

24. Any legal costs incurred by the Council will not be wasted as the hearing is simply being postponed and the same work will apply again.

25. The summons identifies potential significant environmental harm to vulnerable owl species inter alia. If a stay is not granted the hearing of the Applicant’s case will have little utility in relation to grounds 3 and 4. Further, if no stay is granted the utility of the Applicant’s application for leave to appeal is voided.

Council’s Submissions

26. The motion is opposed by the Council. The application should be considered as a vacation of hearing dates not simply a stay of proceedings. Prejudice to the Council, and the Applicant if refused, circumstances of the application, and case management considerations are relevant, see Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13] (Ward JA). Case management considerations in ss 56, 57 and 58 of C**ivil Procedure Act 2005 (NSW) (CP Act) must also be considered.

27. There is prejudice to the Council and the Court if the hearing dates are vacated, see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon Risk) at [101], [103].

28. Further the Applicant delayed in confirming its intention to appeal in filing the notice dated 30 January 2026 and not earlier. Consequently, the Council has incurred substantial legal costs in preparing for the imminent hearing by filing all its evidence on 4 February 2026 as it was required to do by court orders. The Applicant relied on its actions as outlined in Mr Ryan’s affidavit dated 5 Feb 2026 to argue it acted as swiftly as it could given the timing of the decision appealed against and impending holiday period. That affidavit lacks detail about why the Applicant took so long to notify and commence the appeal as time was of the essence given the looming hearing date.

29. The Council does not accept that a Plan of Management is required before work can commence on the project approved by it.

Finding on stay

30. The Court has broad discretion to order a stay of proceedings under s 67(1) of the CP Act. As the Council identified Ritchie’s Uniform Civil Procedure NSW at [51.44.40] (online at 10 February 2026) states:

a stay will not normally be granted, nor will expedition be ordered, where the contemplated appeal against an interlocutory order or ruling would delay the hearing of the substantive proceedings: Partnership Pacific Ltd v Killen (NSWCA, Moffitt P, Reynolds and Hutley JJA,10 April 1979,CA No 112/79, unreported).

31. The Applicant wishes to pursue its appeal of an interlocutory order as the basis for its stay application. The Applicant bears the onus of demonstrating that a stay order ought to be made. As the Council submitted this is effectively an application to vacate the hearing dates of 23-24 February 2026 and relevant considerations include case management principles as identified in Aon Risk concerning the efficient dispatch of a court’s business, as identified in important case management principles in ss 56-58 of the CP Act.

32. Leave to appeal on interlocutory matters is required. That appeals from a court on discretionary interlocutory matters of practice and procedure face a difficult task was identified in Botany Bay City Council v Minister for Planning and Infrastructure [2014] NSWCA 141 at [14]-[15] which the Council referred to. Beyond identifying that the Applicant’s appeal faces such hurdles, I am not able to form a view about the prospects of success of such an appeal on the argument I heard. Given that the appeal has been prepared by an experienced barrister I will assume that it is arguable for present purposes. That the appeal may be difficult for the Applicant to succeed in is not otherwise material to my consideration of the stay application. The Applicant does have a right to seek leave to appeal on interlocutory decisions in practice and procedure.

33. The Applicant is an incorporated association. The summons states that its objectives are to maintain full community access to the Reserve while also preserving the endangered ecological bushland, flora and fauna in the Reserve. Ground 3 in the amended summons alleges unconsidered impacts on three vulnerable owl species due to lighting spill impacts resulting from the installation of 100 lux lighting on all three playing fields. Ground 4 alleges that the potential to upgrade lighting to 500 lux strength (TV broadcast quality according to the Applicant) constitutes future activities which should have been assessed at the time the REF and AREF were approved. The necessity of relying on evidence of an owl expert is submitted to be essential to grounds 3 and 4 of the summons.

34. As identified by the Applicant circumstances need not be exceptional. I accept the submission of the Applicant that it considers the expert evidence is essential to its appeal grounds 3 and 4 consisting of half its case.

35. Contrary to the Applicant’s submission that no prejudice will be occasioned to the Council if the stay is granted, I accept the evidence of the Council’s solicitor(s) Mr Drew and Ms Coburn that considerable work has been done in preparation for the hearing. Final evidence was filed by the Council on 4 February 2026. Time has been spent and costs incurred responding to the two notices to produce issued by the Applicant. If the hearing dates are vacated it is inevitable that some of those costs will be thrown away even if all issues prepared for to date proceed at a subsequent final hearing.

36. To the extent that the Applicant submitted that the Council suffered no prejudice in relation to commencement of the project as a Plan of Management was required before work could commence, I am not able to simply accept that submission. It is contested by the Council. It is not appropriate that I determine a less than straightforward issue in this NOM hearing on a matter that is not the subject of a ground of review in the summons filed by the Applicant. The Council’s evidence is that construction establishment works are likely to commence on 20 February 2026. No interlocutory injunction is in place to prevent work commencing.

37. Was there delay by the Applicant in advising the Council about its intention to appeal on 30 January 2026 and not earlier? The Applicant relied on its filing of a notice of intention to appeal on 12 December 2025 which was served on the Council on that date as adequate notice. As the Council submitted relying on Eliezer v The Owners - Strata Plan No 51682 [2017] NSWSC 581 at [10] (Johnson J) such a document can be viewed as a ‘place holder’ preserving the opportunity to appeal. No application to vary court orders in effect requiring preparation for the hearing was made by the Applicant in December 2025 or January 2026. The summons commencing an appeal was filed on 30 January 2026 and served on the Council the same day. The Applicant through its solicitor Mr Ryan submitted that it was necessary to obtain legal advice about the prospects of success of an appeal and for the Applicant to follow its decision-making processes in determining that an appeal should proceed, all of which had to be done during the court vacation. While that can be accepted the Council was nevertheless in the position of having to continue to prepare for the hearing. The decision Caterson No 1 on 4 December 2025 was two weeks before the end of court term. Arguably faster action should have been taken to alert the Council to the Applicant’s intention to appeal beyond filing the notice of intention to appeal on 12 December 2025 so that the Council did not continue to incur legal costs in preparation for the hearing. Ultimately I accept the Applicant did the best it could as an incorporated association of limited means in the circumstances it was placed in leading up to the court vacation.

38. The exercise of discretion is very finely balanced in all these circumstances. Weighing up these various factors in relation to the balance of convenience and the competing interests of the parties, I will exercise my discretion to grant the stay sought by the Applicant which is effectively a vacation of the hearing dates. I note that an application for expedition of the appeal is to be lodged by the Applicant’s solicitor imminently.

39. Orders will be made in relation to NOM 006 after discussion with the parties. Costs are yet to be determined, and the Court will make timetabling orders in relation to written submissions as to costs.

NOM 003 filed by the council

40. NOM 003 filed by the Council seeks to set aside category 3 specified in the NTP dated 12 December 2025. Category 3 states:

A copy of contracts entered into in relation to T25-0215.

41. A separate issue of access to commercial in confidence documents specified in the NTP dated 12 December 2025 is being considered separately by the parties. (I note that the document in category 4 is no longer pressed by the Applicant.)

42. The Council relied on affidavits of Mr Brew dated 23 January 2026 and Ms Coburn dated 30 January 2023 in support of NOM 003. Both affidavits were previously read during the hearing of NOM 006 and are referred to above at [18],[20].

43. The Applicant relied on an affidavit of James Ryan affirmed 23 January 2026 outlining correspondence between the parties regarding an arrangement to produce the confidential material to the Applicant. A bundle of documents annexed to Mr Ryan’s affidavit was marked Exhibit 1 which he referred to in submissions concerning the legitimate forensic purpose of the category 3 document.

44. The Applicant additionally relied on the affidavit of Susan Sandercock affirmed on 4 February 2026, in relation to identifying material in the Council’s public tender document for the project concerning lighting inter alia. Lighting spill from the fields lit at 100 lux is identified which I understand is the lighting the Council intends to install. Also identified in the tender documents is a diagram showing the potential area of light spill from the use of 500 lux lighting. I was informed that the Council will provide lighting infrastructure such as poles and cabling which would enable installation by someone of 500 lux lighting in the future.

45. The Council alleges that no forensic purpose is demonstrated by the Applicant’s summons to underpin the production of the contract specified in category 3. It is an event (entry into a contract) well after the REF of September 2024 and the AREF of May 2025 to which the summons is directed. The Council’s state of mind at that time is relevant to the judicial review grounds specified, which is not informed by later events. The contract referred to in category 3 does not arise from ground 4 of the summons.

46. The Applicant submits that document 3 does serve a forensic purpose in identifying what the scope of future activity is. This underpins its arguments in relation to ground 4 of the summons. While a tender has been issued by the Council (document 2 in the NTP dated 12 December 2025 which I note has been produced by the Council and is dated after the REF) it is also necessary that the final arrangements in place as reflected in the agreed contract finalised after that date by the Council is known to the Applicant to better identify the scope of ‘future activity’ in contemplation. Further basis for the Applicant’s case underpinning ground 4 is identified in a letter from Mr Ryan’s solicitor to Ms Brew’s solicitor dated 10 November 2025 in Exhibit 1.

47. I accept the Applicant’s submissions summarised above that for the purposes of its argument in relation to ground 4, the subsequent contract entered into to give effect to the Council’s tender as specified in category 3 does have potential legitimate forensic purpose and should be produced. To the extent that it contains commercial in confidence material, appropriate access arrangements can be made.

ORDERS

48. In relation to Notice of Motion filed 23 January 2026 (003) the Court orders:

49. Notice of Motion is dismissed.

50. Notice to Produce dated 12 December 2025 to have a further return date of 2 March 2026.

51. In relation to Notice of Motion filed 23 January 2026 (006) the Court orders:

52. The proceedings are stayed until the determination of Court of Appeal proceedings 2026/41170.

53. The hearing dates of 23 and 24 February 2026 are vacated.

54. The matter is to be listed for directions within two weeks of the Court of Appeal determining appeal proceedings 2026/41170.

55. Respondent to file written submissions as to costs by Tuesday 3 March 2026.

56. Applicant to file written submissions as to costs by Tuesday 17 March 2026.

57. The submissions on costs are to be no more than three pages in length.

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