Healthscope Limited v Minister for Planning and Infrastructure [2011] NSWLEC 237 | Case summary

The Second Respondent Seeks Expedition of the Proceedings 1This is an application by the second respondent, Aesthete No 3 Pty Limited ("Aesthete"), for expedition of Class 4 judicial review proceedings that were commenced by Healthscope Limited ("Healthscope") on 17 November 2011 against the Minister for Planning and Infrastructure ("the Minister") and Aesthete. 2In the proceedings the applicant claims relief by way of declarations that determinations made by the Minister on 17 August 2011, to give a concept plan approval for the Nepean Health Precinct Mixed Use Development and to give project approval for stage one of that development are void. Injunctive relief has also been sought in respect of the implementation of the approvals. 3The background to the proceedings and to this notice of motion is contained in the judgment of Biscoe J in Healthscope Pty Ltd v Minister for Planning and Infrastructure [2011] NSWLEC 225. I gratefully adopt, without repeating, that description for the purpose of this decision. 4Aesthete relied in support of the motion seeking expedition on two affidavits of Mr Farshad Amirbeaggi, the first affirmed on 24 November 2011 and the second affirmed on 1 December 2011. Neither affidavit was the subject of challenge or rebuttal evidence by Healthscope. 5In the affidavits the following facts were revealed. Aesthete is the developer that has obtained the benefit of both the concept plan approval and the project approval. It has entered into options with third parties for the third parties to purchase parts of the property the subject of the approvals. These options will expire on 7 and 16 December 2011 respectively. The evidence discloses that it is likely that the sale negotiations will collapse if the options cannot be extended or if the Class 4 proceedings are not determined before Christmas of this year. To date, the parties that Aesthete is in negotiations with are not aware of the proceedings. 6The second affidavit of Mr Amirbeaggi indicated, in particular, that while there has been a short extension obtained in relation to the first option (expiring on 7 December 2011), to date, and despite attempts, there has been no extension offered in respect to the second option (expiring on 16 December 2011). The affidavit reiterated the position, however, that if a decision is handed down prior to Christmas, the second respondent's position will not be fatally prejudiced. 7Expedition will entail the Court hearing and determining the proceedings prior to 24 December 2011. Suffice it to say that at this time of year this imposes a considerable, but not wholly insurmountable, burden on the Court's limited resources.

Applicable Legal Principles Governing Expedition in the Court 8In Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122 I discussed the legal principles applicable to the grant of expedition in the Court (at [35]-[37]): 35 There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56-58 and ss 61-63 of the CPA. 36 In Vaughan v Dawson [2005] NSWSC 33 Campbell J quoted (at [8]) the following passage from Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (at 42-43 per Young J): 8 In Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said: ...when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account. These are: (1) Is this the appropriate Court for the litigation, in particular: (a) does the litigation fall into the work normally done by this Court; and (b) is there a sufficient nexus with New South Wales. (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted. Then there are two factors dealing with the exigencies of the list, viz: (5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing. (6) Any "right" to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported). The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim. I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative." 37 It was the opinion of Campbell J that these principles remained applicable (at [8]). I agree with his Honour's assessment. 9Applying these principles to the present application: (a) first, if expedition is not granted, based on the uncontested material contained in Mr Amirbeaggi's affidavits there can be no doubt that Aesthete will suffer real commercial hardship if it loses the benefit of its options and the sale negotiations cease as a consequence of the uncertainty created by the ongoing litigation. Healthscope, by contrast, will suffer no such prejudice; (b) second, it cannot be said that Aesthete proceeded with anything but alacrity in bringing this application. If there can be any suggestion of delay, it is in respect of Healthscope's relatively late filing of the summons; (c) third, it was agreed by all parties that the matter is limited in compass and can be heard in less than one day. No affidavit evidence is required and the evidence that will be relied upon by the parties comprises a small bundle of documents, most of which have already been provided by the Minister, and which largely encompass the Director-General's reports in relation to the approvals; and (d) fourth, as stated above, although it will impose a considerable burden on the Court, it is not impossible for the Court to accommodate an expedited hearing. 10On these bases, I am of the opinion that expedition is warranted. The Court is reinforced in this conclusion by the fact that Healthscope, while not consenting to the expedition, does not oppose it.

Healthscope Limited v Minister for Planning and Infrastructure

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