Hoxton Park Resident's Action Group Inc. v Liverpool City Council

Supreme Court of NSW|2014-03-11|Before: Mr P, Pembroke J, Hallen J

Judgment 1This is a notice of motion filed by the plaintiff for leave to further amend the statement of claim. The proceedings were commenced in 2009 and have had a slow but bumpy ride through this court in the last five years. They are fixed for hearing, probably before Justice Pembroke, on 5 May to take a week. They were set down on 27 September 2013 on the application of the defendants, but with the acquiescence of the plaintiff. 2Mr King, who has appeared for the plaintiff today and who has appeared on most previous occasions, acknowledges that, although that date was asked for by the defendants, his side acquiesced in it, but he says that both sides appreciated as at last September that they were not ready. 3The next major matter was that the plaintiff asked for discovery and interrogatories. It was thought that that would be dealt with in December 2013, but apparently through no fault of anybody it could not have been dealt with in December. It was heard by Justice Hallen recently and his Honour has reserved judgment. If that decision goes a certain way it will be clear that the case cannot proceed on 5 May. On the other hand, if it goes the other way then one would have thought it still could proceed. 4There are five respects in which the plaintiff seeks to amend the statement of claim. It is necessary to keep this case moving smoothly, if it ever can, that I give my decision as to the five key areas in which amendments are sought. I regret that there is not enough time to give the decision in detail so I will do the best I can and if any party wishes supplementary reasons if they ask in the next seven days I will provide those on the next occasion. The five areas are: (a)That the claim by the second plaintiff in respect of private and public nuisance and negligence should be reinserted in the statement of claim. (b)That paragraph 25A in the revised statement of claim MIO1 should be inserted which expands the allegation in paragraph 25. I will give more details later. (c)That clauses 27A to 27C should be inserted to give more clarity and detail as to part of the public law claims. (d)That new clauses 32A, 32B and amendments to 34 should be made to emphasise a second reason for the payment being attacked being invalid on the basis that the funding virtually here is to establish a new network of religious institutions which is incompetent for the Commonwealth to do because it is solely a matter for the States because of section 106 and following of the Australian Constitution. (e)To add paragraphs 49 through to 52 that the works on the site using funds provided by the Commonwealth were unauthorised. 5I am sorry that unless one has a full appreciation of the background facts probably some of that does not make sense. The background facts are that the first plaintiff is an association of local Hoxton Park residents, duly incorporated, and that the second plaintiff is a lady who lives a couple of doors away from where a substantial project is being erected for an Islamic school organised by the second and third defendants with moneys supplied by the State Government, the fourth defendant, because grant moneys were made available conditionally under s 96 of the Commonwealth Constitution by the fifth defendant, the Commonwealth of Australia. 6I now turn to consider briefly the amendments classes A through E.

Amendment A 7Originally there was a claim in the statement of claim for an injunction and, alternatively, for damages for public and private nuisance and negligence because of problems arising from the excavation of the site for the Islamic school. After those claims were made the Land and Environment Court or the Court of Appeal considered that the development approval pursuant to which the activities were carried out was void. 8I should say there was an application to strike out the statement of claim. That came before Justice Rein who struck out the claim (see Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWSC 1312), a judgment delivered on 12 November 2010. The plaintiffs appealed to the Court of Appeal, which is reported as Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363, a judgment delivered on 26 November 2011. The court ordered that leave to appeal from Justice Rein's decision be granted and the appeal be allowed, but on grounds limited to the challenges to the constitutional validity of the Commonwealth legislation providing for funding of the Australian Federation of Islamic Councils Inc and the Malek Fahd Islamic School Limited (the second and third defendants) and the claims in nuisance and in negligence. That was remitted to the Equity Division for orders for the further conduct of the proceedings. 9The words "the claims in nuisance and negligence" must refer to the then existing claims in nuisance and negligence, that is, for the activities that had occurred under the first invalid development application. Those claims were still on the books. 10However, the matter came before Registrar Musgrave and on 11 December 2012, by consent, the proceedings by the second plaintiff against the second and third defendants, insofar as it makes claims in nuisance negligence or trespass, were dismissed. The court also noted by consent the agreement of the second plaintiff and the second and third defendants that: The second plaintiff agrees not to sue the second and third defendants and each of them in respect of: (a) The subject matter of the claims now or that have been made in proceedings in nuisance (private or public) negligence, trespass or action on a case. (b) The matters pleaded in the paragraphs 7 to 20 of the document described as proposed further amended points of claim and filed on 7 September 2012. (c) Any matters in connection with or arising out of any works carried out, or that may be carried out at 612 Hoxton Park Road, Hoxton Park, as described in the document described as Proposed Further Amended Points of Claim and filed on 7 December 2012. 11Mr Cheshire for the second and third defendants says that that was a promise not to sue in respect of any damage that may have taken place either before or at any time after on the site. Mr King said that on the proper construction of the short minutes it only refers to past damage and not to any damage that might be caused in the future. 12Mr King's submissions could be strengthened if I could take notice of the words that had been inserted and crossed out, but I think the authorities show that I cannot. Notwithstanding that, probably the argument that there is no contract to sue with respect to future damages is the stronger one, but I purposely do not decide it because it should be dealt with in due course on full argument. 13However, it is clear that the remission of the negligence nuisance aspects by the Court of Appeal either does not cover future causes of action in negligence or nuisance or, alternatively, if it did, then they were dismissed by Registrar Musgrave in December 2012. 14Accordingly, the issues that I am now dealing with in the proposed amendments are not those remitted by the Court of Appeal. Should they be allowed on the basis of a new case? There are a number of reasons why I think they should not be allowed. 15One is that if it is a valid claim it can be brought in new proceedings, either in this court or the District Court or perhaps the Land and Environment Court. 16Secondly, if it is allowed at this late stage almost certainly, in my view, the hearing date will have to be vacated. There will have to be a whole host of further discovery and interrogatories applied for and the costs will be greatly increased. The first plaintiff has no assets, the second plaintiff limited assets, so any expansion of the hearing times of the case will probably be to the prejudice of the defendant. 17There is no adequate reason given as to why the application was made so late. Mr King says that everyone expected that the discovery and interrogatories would be dealt with in December, but an application could have been made in October or November last year and there is no reason given as to why it was not. It also raises difficulties in that it is more likely than not that one of the defences put on will be a defence of statutory justification. That will require investigation into the validity of the latest development consent. 18I should say that a subsequent development application was allowed by the State Planning Panel and there is a challenge to the validity of that which is before the Land and Environment Court, though from what I have been told from the bar table that litigation has not progressed very far so it would not be appropriate that the issue, which would almost certainly be raised on the statutory defence, could be run in this court and in the Land and Environment Court concurrently. Further, one would also have to take into account section 71 of the Land and Environment Court Act 1979 (NSW) which gives exclusive jurisdiction over that sort of matter to that court. For all those reasons I do not allow the amendment A.

Amendment B 19Clause 25 pleads that funding was provided for the purpose of the faith based educational facility as part of the national network, that and similar projects. The aim of the allegation is to see if the case can be brought in what the plurality said or at least hinted in the Attorney General (Vic) EX Rel Black v Commonwealth [1981] HCA2; 146 CLR 559 that it may be that a religion is established by providing funds for a series or network of religious institutions which are funded by the Government. Accordingly, what must be demonstrated is that not only is there one institution which has a religious flavour which has been funded by Government, but that is part of a series or network. 20Paragraph 25A seeks to flesh out the terminal network in clause 25, but taking: The national network referred to in paragraph 25 includes two other campuses or second and third defendants in NSW owned and administered by them since 31 January 2005 including at Greenacre and Beaumont Hills, and campuses in other States and territories affiliated with the second defendant or its affiliates, full particulars of which the plaintiffs will provide after discovery herein. 21That, to my mind, is something I should not allow. First of all, it smacks of being particulars rather than an allegation which can be pleaded to by either a traverse or confession or avoidance. Secondly, it is very vague. It is referring to two campuses that are both affiliated with the second defendant or affiliated with its faith. This is too vague. It is not allowed at this stage. Not only would there need to be a whole lot of particulars sought, it would take time and delay in interrogatories and discovery and answering allegations and in any event, the allegation that these parts of a national network is already in paragraph 25 which is remitted by the Court of Appeal, so I disallow 25A.

Amendment C 22Paragraphs 27 to 28 do not seem to me to do anything but they do not do any harm and I would be prepared to allow them, so at least the Court of Appeal is spared one argument.

Amendment D 23Clauses 32A and 32B are said by Mr King to be necessary as the plaintiffs are not relying on Melbourne Corporation Case (1947) 74 CLR 31 or even Austin & Anor v Commonwealth (2003) 215 CLR 185, but rather on the argument that the exercise of the power of the Commonwealth under the Schools Assistance Act 2008 (Cth) and s 106 of the Commonwealth Constitution has the direct consequence of depriving the State of control over matters of religion, which under the Constitution devolve solely on the States. 24Clause 32A makes it clear that the State of New South Wales had at 1901 and has sole legislative power on and concerning religion and education. If it stopped there I would allow it, but 32B goes, to my mind, too far and not only refers to the exercise of the alleged power of the Commonwealth under the Schools Assistance Act 2008 (Cth) with respect to Hoxton Park, but it also refers to Greenacre and Beaumont Hills. Mr King assures me that was not meant to challenge the funding with respect to any school other than Hoxton Park, but it is probably embarrassing to leave those words in. 25In paragraph 34, which is part of the original statement of claim, the allegation has been expanded to alleging it as wrongly funded, managed and directed the Hoxton Park project "and the national network of faith based educational projects conducted by the second and third defendants of which it forms part." To my mind, that expands the allegations unduly. The allegation that there is a network of which Hoxton Park is part is already part of 25. It is not necessary and it is awkward and embarrassing to include it in the way it is in 34. 26Accordingly, with section D, I would allow the amendments other than the words "Greenacre and Beaumont Hills" in 32B and the words "and the national network of faith based educational projects conducted by the second and third defendants of which it forms part" in 34.

Amendment E 27The pleader seeks to add new paragraphs 49 to 52. The allegation is that the funding provided for a project which is still invalid because the subsequent development consent was invalid. This is an issue that is in the Land and Environment Court and properly so under section 71 of that Court's statute. Whether, as I believe the situation is, that Court has the sole jurisdiction to decide the matter unless it is referred from that Court to this Court or it is a matter which this Court would leave primarily to be dealt with by that Court before making any decision is of little moment. The inclusion of new 49 - 52 is not a matter remitted from the Court of Appeal. If it is allowed at this stage, when there is no chance at all that the Land and Environment Court would be deciding the key question before 5 May, then it would hold up the hearing of this case which the Court of Appeal says on constitutional grounds is an important one which should be dealt with. 28In view of sections 56 and 58 of the Civil Procedure Act 2005 I would not be justified in allowing those amendments. Accordingly, the only amendments that I allow are category C and the limited parts of D which I have allowed. In summary, a lot will depend whether this case can go on 5 May on what Justice Hallen decides in the discoveries and interrogatories. 29Another point is that Mr King says the case was not ready. There are a number of documents to be put into evidence and also his affidavits are not complete. He will need 14 days to complete them and he is prepared to consent to an order that those affidavits are served and filed within 14 days. 30The result of my decision is that there will be some tidying up needed of the statement of claim. By tidying up, I mean consequential amendments so far as my judgment is concerned, not adding new slabs. 31It seems to me that also this case should be case managed because strict requirements on the parties to make sure the case is ready sooner rather than later is in the public interest. There may well be someone seeking leave to appeal from these rulings. That is their right, but unfortunately if that happens it will further hold the case up. 32What I propose is that I will make orders that any evidence by way of affidavit that the plaintiff intends to file be filed and served no later than 25 March 2014 at 4pm, filed by leaving with my Associate. 33I will stand the matter over to a date suitable to counsel on perhaps 26 or 27 March at 9.30. What I would like is short minutes to be brought in of the present decision and the absolutely final version of the statement of claim and we will then see whether Justice Hallen has been able to give his decision and any other matter which may affect the hearing date. 34At present, I will retain the hearing date of 5 May. However, I have asked counsel to keep their diaries free on 10, 11, 12 and 13 of June and if the case cannot be ready on 5 May but could be heard on those days, either I or some other judge will hear it on 10 June. The short minutes should also deal with the costs of present application. 35I have been reminded I have not dealt with Mr King's application made orally for an adjournment. I do not grant that at this stage. I will reconsider it on the next occasion and counsel will tell me 31 March at 9.30 would be a date when they or their solicitors can be here and we can take the next step forward. 36I might confer with the Chief Judge to see whether we can have one judge dealing with the matter from now on. Whether that be me or someone else, it will easier for everybody who has got the same historical knowledge.

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: 24 March 2014

Constitution Land and Environment Court Act 1979(NSW)

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