Hoxton Park Residents Action Group Inc. v Liverpool City Council

Land and Environment Court (NSW)|2014-04-15|Before: Craig J

Judgment 1Hoxton Park Residents Action Group Inc., an incorporated association, is opposed to development of land at 210 Pacific Palms Circuit, Hoxton Park (the land) for a school and associated facilities. In support of its opposition to the proposed development of the land, it has brought proceedings in both this Court and in the Supreme Court of New South Wales. 2By notice of motion filed on 1 April 2014, the applicant seeks an order "that there be a joint hearing of this matter with proceedings number 289796 of 2009 in the Equity Division of the Supreme Court". In the alternative, it seeks an order that these proceedings be transferred to the Supreme Court to be heard together with the proceedings in the Equity Division of that Court. An application to have the latter proceedings transferred to this Court was refused by Young AJA last Friday (Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 433). The orders sought by the applicant in the present motion are opposed by all respondents. 3The proceedings in this Court challenge the validity of the decision made on 28 February 2013 to grant development consent, subject to conditions, for an educational establishment on the land (the February 2013 Consent). That Consent was granted by the Sydney West Joint Regional Planning Panel (the second respondent) exercising the function of Liverpool City Council, as consent authority, to determine the development application under the relevant planning instrument. The development application for that consent was made jointly by the Australian Federation of Islamic Schools Inc, the third respondent as owner of the land, and by Amjad Mehboob, a director of the third respondent. Malek Fahd Islamic Schools Limited, the fourth respondent, is joined in its capacity as lessee of the land. 4In its Further Amended Summons, to which are appended what I will describe as points of claim, the applicant challenged the February 2013 Consent on five grounds. However, at the hearing conducted before me, Mr P King, who appeared for the applicant, indicated that Ground 5 in those points of claim would not be pressed and that the points of claim should be amended to delete that ground and the matters pleaded in respect of it. The remaining four grounds are of a kind that regularly arise in proceedings brought in this Court by way of judicial review. The Court's jurisdiction to determine those claims is, as the applicant acknowledged, founded in s 20(2) of the Land and Environment Court Act 1979 (NSW) (the Court Act). 5Proceedings in the Equity Division of the Supreme Court were commenced in July 2009. Since commencement, the pleaded claims, either in the form of points of claim or latterly in a statement of claim, have been amended on a number of occasions and parties have been added. As presently framed, Hoxton Park Residents Action Group Inc., as first plaintiff in those proceedings, challenges the validity of actions of the Commonwealth in three ways. As I understand the claims articulated by Mr King, challenge is made to the decision of the Commonwealth Minister to provide funding for the school proposed for the land; challenge is also made to the intergovernmental agreement entered into by the Commonwealth to provide funding for the school and further, the validity of Commonwealth legislation by which funding has or will be provided to the operator of the school is also challenged. These challenges have their foundation in s 116 of the Constitution. 6A local resident, Marella Harris, is a second plaintiff in the proceedings. It would appear that Ms Harris, as a taxpayer, has been joined as a plaintiff in order to provide standing for the plaintiffs to make the challenges to the Commonwealth legislation and the Commonwealth actions that I have briefly described. 7Although the Council was joined as the first defendant in those proceedings, it has long since filed a submitting appearance. No orders are presently sought against it. Malek Fahd Islamic School Pty Ltd and Australian Federation of Islamic Councils Inc. are the second and third defendants respectively. They are said not to be active parties but their joinder is necessary because they are the beneficiaries of the Commonwealth funding that is challenged by the plaintiffs. The State of New South Wales and the Commonwealth are the fourth and fifth defendants respectively. The Commonwealth is the only active defendant in the proceedings, given the manner in which the case is presently pleaded. 8Under the heading "Relief claimed", the orders sought by the plaintiffs in their Amended Statement of Claim are declaratory orders directed to the invalidity of the Commonwealth laws and decision of the Commonwealth Minister. A declaration is also sought to the effect that any intergovernmental agreement or informal agreement or arrangement between the Commonwealth and the defendants in respect of the school project is invalid or unlawful by reason of it being in contravention of the Constitution. 9The Supreme Court proceedings have been fixed for a four day hearing commencing in June next. The proceedings in this Court have not yet been fixed for hearing. On three separate occasions directions have been made requiring that the applicant file and serve its evidence, both documentary and by way of affidavit. 10On 27 March 2014 a short affidavit sworn that day by Marella Harris was filed and served on behalf of the applicant in this Court. Exhibited to that affidavit were a number of documents. The affidavit stated that the applicant, of whom Ms Harris is the president, did not seek to file any further affidavit evidence in the proceedings. When Mr King was asked whether the totality of evidence to be relied upon in this Court had now been served, his initial response was to indicate that it had. However, he then added the qualification that a notice to produce documents was yet to be served upon the second respondent and that subpoenas to produce documents were proposed to be issued to two councillors of the first respondent who were also members of the second respondent at the time of the decision to grant development consent in February 2013. In short, it was readily apparent that the documentary evidence to be relied upon by the applicant had not yet been served in accordance with the Court's direction. This conclusion is supported by the affidavit sworn on 14 April 2014 and filed in support of the notice of motion in which the applicant's solicitor states at [14] that further documentary evidence "remains to be martialled" in support of the applicant's case. 11Although, as I have earlier indicated, the first order sought in the applicant's notice of motion is for "a joint hearing" of the proceedings in this Court and the Supreme Court proceedings, that application was not addressed in oral submissions. Given the capacity for either Court to exercise jurisdiction in both matters, conformably with the statutory provisions to which I will next refer, no basis is identified for there to be such a hearing independent of the application of those statutory provisions.

Transfer of proceedings between courts 12Section 149B of the Civil Procedure Act 2005 (NSW) relevantly provides: "149B Transfer of proceedings between Supreme Court and Land and Environment Court (1) ... (2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. (3) ...". 13Once proceedings have been transferred, the power of the transferee court is found in s 149E which provides: "149E Jurisdiction of transferee court The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings." 14The only other statutory provision that presently needs to be noticed is s 149A. Relevantly, it identifies proceedings as being "related" for the purpose of s 149B(2) "if the matters with which they deal are so closely associated as to form part of the same controversy." 15All parties acknowledge that for the purpose of engaging the provisions of s 149B(2), it is necessary to determine: (i)that the proceedings in this case and the proceedings pending in the Equity Division of the Supreme Court are so closely associated as to form part of the same controversy; and (ii)that it is more appropriate for the proceedings in this Court to be heard together with the Supreme Court proceedings. The parties also acknowledge that although both elements of the subsection must be determined in favour of an applicant before a transfer order can be made, the Court retains a discretion as to whether such an order should be made.

Same controversy 16As is readily apparent, the purpose of each proceeding is to challenge the validity of different and independent decisions that together sanction and facilitate the development of the land in the manner intended by the third and fifth respondents. While in that sense there is a commonality of purpose in commencing the two proceedings, the fulfilment of purpose expressed at that level of generality does not demonstrate to me the "close association" required by the statutory provision. A closer examination of the case propounded in each proceeding is required. 17Mr King contends that determination of the validity of the development consent is antecedent to and integral with the determination of the validity of both the funding determination made by the Commonwealth Minister and the validity of the Commonwealth legislation under which that determination was made. Reliance was placed upon the decision of Basten JA (Allsop P and Beazley JA agreeing) in Hoxton Park Residents Action Group Inc. v Liverpool City Council (No 2) [2011] NSWCA 363. 18The summons filed by the plaintiffs in the Equity Division of the Supreme Court had initially been summarily dismissed. The plaintiffs appealed from that decision. Their appeal was upheld by the Court of Appeal, although the causes of action that they were entitled to pursue were limited by orders then made by that Court. It is the decision in that appeal to which Mr King refers. 19In his judgment at [10], Basten JA summarised the elements of the claim then pleaded. Relevantly, he describes the first element as being - "a Constitutional challenge to Commonwealth legislation providing for funding of the Federation and the School". That element is described by His Honour as being "of high public importance". It was one of two elements upon which the plaintiffs were permitted to proceed with their claim in the Equity Division. 20The Constitutional challenge was further discussed in the judgment. As His Honour recorded at [27], the argument was focused upon the construction of s 116 of the Constitution. His Honour then referred to "an antecedent question" involving the construction of the Schools Assistance Act 2008 (Cth) and other Commonwealth legislation. 21Mr King relied upon this paragraph as, in some way, supporting a contention as to the need for an antecedent determination of validity of the development consent. I do not derive any such understanding from [27] of the judgment. The absence of any such assistance from that paragraph is supported by Order (5) of the orders made by the Court of Appeal which was in the following terms: "(5) Set aside the orders made by the Court on 12 November 2010 insofar as they dismissed claims alleging the Constitutional invalidity of the Commonwealth legislation providing for the funding of the Federation and the School and insofar as they dismissed claims in nuisance and negligence without liberty to replead such claims." 22The current Amended Statement of Claim filed in the Supreme Court proceedings does not, in terms, plead matters directed to the invalidity of the February 2013 Consent. At [25] the plaintiffs plead the purchase of the land by the third respondent and the proposed construction on the land of development that includes a place of public worship and a faith-based educational facility "as part of a national network of that and similar projects." The following paragraphs of the pleading refer to a development application made in September 2008 for development of the land and the subsequent determination by this Court that the development consent granted in response to that application was invalid (Hoxton Park Residents Action Group Inc. v Liverpool City Council (No 3) [2012] NSWLEC 43). 23Paragraph 27B pleads the making of the development application in 2012 that resulted in the grant of the February 2013 Consent, being the Consent challenged in the current proceedings in this Court. In the Supreme Court pleading, the 2012 development application is identified as part of a national network of that and similar projects "being for the establishment of religion and for an exclusively religious purpose". 24Paragraph 27C of the Amended Statement of Claim pleads that declaratory and other relief has been sought in the proceedings commenced in this Court. These are averments pleaded as part of the claim that funding of "the project" involves Constitutional invalidity on the part of the Executive and Legislature of the Commonwealth. The "project" to which the claim is directed is defined in [25] of the pleading. It is not defined by reference to any particular development consent but rather by reference to the purpose for which the third respondent intends to use the land. 25None of these paragraphs demonstrate to me the close association between the Constitutional claim brought in the Supreme Court proceedings and challenge to the validity of the February 2013 Consent that is the subject of the proceedings before this Court. However, in response to that observation Mr King makes reference to [51] of the Amended Statement of Claim in the Supreme Court proceedings. That paragraph is in the following terms: "51 All of the works on the site carried out by the Second and Third Defendants prior to October 2013 and since October 2013 using funds provided by the Fifth Defendant were unauthorised and contrary to law." 26While, at first blush, that paragraph seems to assert invalidity of works on the site, the clear intent of the pleading is to identify the invalidity of funding provided to the named defendants for the "project". There are indicia for so concluding within the pleading itself. First, [51] is in part of the pleading headed "Funding of the project by the fifth defendant". Secondly, the particulars given for the averment in [51] identify the absence of statutory authority for funding under nominated Commonwealth legislation. No reference is made to any breach of State legislation. Moreover, the matter pleaded in [51] reflects a conclusion which, if intended to assert invalidity of the development consent, should be preceded by averments of the kind found in the points of claim attached to the Amended Summons filed in this Court by which facts said to establish invalidity are identified. As I have earlier said, no such matters are pleaded in the Amended Statement of Claim filed in the Supreme Court proceedings. 27Further, there are two judgments of Young AJA that are relevant to the proper understanding of the plaintiffs' pleading at [51]. His Honour has been case managing the proceedings in the Supreme Court. In a judgment delivered on 11 March 2014 (Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 322) his Honour was required to consider an application for leave to amend the Statement of Claim in a number of respects. Among others, the plaintiffs had applied to add additional paragraphs 49 to 52 to their pleading in a form that does not reflect the present form of those numbered paragraphs. The matters then sought to be pleaded are described by his Honour at [27] as being an allegation that funding provided for the project was invalid "because the subsequent development consent was invalid". His Honour then recorded that the validity of the February 2013 Consent was before this Court for determination "and properly so under section 71 of that Court's statute." He continued by acknowledging the sole jurisdiction of this Court to decide that question. For reasons later stated, his Honour refused to allow the amendments by addition of paragraphs 49 to 52 in the form then sought by the Plaintiffs. 28The Supreme Court proceedings were again before Young AJA on 31 March (Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 403). At that time his Honour considered proposed amendments to the Statement of Claim in the form of paragraphs 49 to 52 as presently framed. In allowing those amendments, his Honour said at [5]: "Mr King says that paragraphs 49 through to 52 are merely there to plead as a matter of law another argument that supports paragraphs 25 to 28 and does not go further ... it seems to me that with one exception I should allow these pleadings to stay but on the basis that I dispense the defendants from having to plead to them and note that apart from the factual question as to whether the works were carried out using funds provided by the fifth defendant which were unauthorised and contrary to law no factual issue arises." 29Clearly, his Honour allowed the amendment on the basis that (relevantly) [51] was not directed to an allegation of invalidity of the February 2013 Consent but rather was directed to invalidity of the funding provided by the Commonwealth to allow development to be carried out. It is inconceivable that, by allowing [51] in its present form, his Honour was permitting the plaintiffs to run a case of invalidity of the present development consent when less than three weeks earlier on 11 March he had refused to allow an amendment that, in direct terms, sought to raise the very same issue. 30This analysis of the plaintiffs' claim, as pleaded in the Supreme Court proceedings, demonstrates that the claimed invalidity of the February 2013 Consent has no close association with the claimed invalidity of the Commonwealth legislation and invalidity of actions of the Executive of the Commonwealth. Expressed succinctly, the Supreme Court proceedings remain accurately described as they were by Basten JA in the earlier Court of Appeal proceedings, namely a Constitutional challenge to the validity of Commonwealth legislation. (Claims in negligence and nuisance, also remitted by the Court of Appeal to the Equity Division for consideration, had since been resolved by agreement among the parties.) 31In contrast, the grant of development consent does no more than remove a prohibition upon the development of land imposed by the Environmental Planning and Assessment Act 1979 (NSW). Such a consent, if valid, is available to be acted upon for five years. It authorises the form of land use identified in the consent. The grant of development consent does not impose any obligation to commence the development that it sanctions. Importantly, the consent attaches to the land, not to the grantee of the consent. The challenge to the validity of the February 2013 Consent in this Court can therefore be seen to have no close association with the challenged financial grants pleaded in the Supreme Court proceedings. The land may be sold with the benefit of the consent, if valid, or an alternate source of funding may be found to enable the development to be implemented. 32The issues raised in the two proceedings are logically separate and distinct. While they may be directed to achieving the same goal, they are not so closely associated that they form part of the same controversy (cf 363 Military Road Mosman Pty Ltd v The Owners Strata Plan 72814 [2012] NSWSC 263 at [22]). 33The first element of s 149B(2) founding a claim for transfer to the Supreme Court is not established.

The more appropriate court 34If I am wrong in this regard, I am not persuaded that it is more appropriate for the proceedings in this Court to be heard together with the plaintiffs' proceedings in the Equity Division of the Supreme Court. My reasons for so concluding may be stated succinctly. 35First, the issues in each case are clearly different and separate. 36Secondly, the Supreme Court proceedings have been fixed for hearing on 10 June next. The Constitutional issue raised in those proceedings is, as earlier described, of "high public importance". Through no fault of the respondents, the proceedings in this Court are not ready for hearing and could not reasonably be made ready for hearing by 10 June. For reasons earlier expressed, the evidence to be relied upon by the applicant in these proceedings has not yet been served, contrary to the directions made by this Court. 37Thirdly, I have earlier identified the parties to each proceeding. That description demonstrates that there are parties who are not common to both proceedings. 38Fourthly, the evidence which is relevant to be considered in one proceeding is quite separate and discrete from the evidence to be considered in the other. The actions of the Commonwealth in providing funding to any of the respondents to the proceedings in this Court is wholly irrelevant to the validity of the development consent. Likewise, by way of example, evidence of the qualification of persons to sit as members of the second respondent (see ground 3 of the applicant's challenge in this Court) is wholly irrelevant to the validity of Commonwealth grants to or agreements with any of the respondents to the proceedings in this Court. These are but examples of the lack of any commonality in the evidence to be tendered in each proceeding. 39Although not decisive, I cannot let pass the apparent inconsistency in approach by the applicant to the " more appropriate court" element of s 149(2). As the judgment of Young AJA of 11 April (Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 433) clearly demonstrates, less than one week ago the applicant, as the plaintiff in the Supreme Court proceedings, sought to invoke s 149B(2) to found an order for transfer of those proceedings to this Court. That application necessarily involved the contention that this Court was the more appropriate Court to determine both proceedings. Although his Honour rejected that application, there is nothing either explicit or implicit in the judgment suggestive of a preference that both matters be heard in the Supreme Court. 40For these reasons I do not consider that the second element of s 149B(2) has been satisfied.

Discretion 41Even if the essential statutory criteria for transfer had been satisfied, contrary to my determination, in the exercise of my discretion I would decline to make the transfer order that is sought. My reasons for so concluding may be shortly stated. 42First, for reasons earlier indicated, the proceedings in this Court are not ready for hearing. If transferred, almost certainly the respondent would, with apparent justification, seek to vacate the hearing date presently fixed in the Supreme Court. As I have earlier stated, the Constitutional issue raised in the Supreme Court proceedings is described as being significant and of high public importance. The hearing of that issue should not be delayed. 43Secondly, related to that matter is the lateness of the application for transfer. Proceedings were commenced by the applicant in this Court on 15 August 2013. At a directions hearing of the Supreme Court proceedings on 27 September 2013, the final hearing of those proceedings was fixed for 5 May 2014. That hearing date was changed to 10 June only on 31 March last. In the meantime proceedings in this Court were maintained with no indication from the applicant that transfer of the proceedings to the Supreme Court was in contemplation. The first intimation given by the applicant to the respondents that transfer would be sought was only on or shortly before 1 April when the present notice of motion was filed and served. 44Also relevant in this context are the earlier proceedings in this Court, instituted by the present applicant and which resulted in the declaration of invalidity of the earlier development consent for similar development on the land. While the present Supreme Court proceedings were being prosecuted during the currency of those earlier proceedings, no application was then made for transfer to the Supreme Court. In light of the events that have occurred, it is now too late to allow the present proceedings in this Court to be transferred. 45Thirdly, it is not oppressive, as the applicant claims, to allow proceedings to be undertaken in two courts. The applicant chose to commence proceedings in each court. In making the challenge that it does in this Court, it was bound to do so by operation of s 71 of the Court Act. However, if it truly wished to effect an economy of cost, the logical and appropriate course would have been to seek transfer very soon after proceedings in this Court were commenced. Instead, it has participated in three directions hearings before judges of this Court and availed itself of various interlocutory processes, including the issue of notices to produce and the filing of a motion for leave to adduce expert evidence, a course that it has only recently abandoned. 46Why it was that an application for transfer was not made until 1 April has not been explained. The absence of such an explanation is, to my mind, important to the exercise of discretion. It is a circumstance that weighs against the exercise in favour of the applicant. 47Moreover, it has not been established that the hearing time would be reduced if transfer was granted. I have earlier explained that there is no relevant commonality in the issues or evidence as between the two sets of proceedings. In principle, hearing of evidence and argument on the challenge to validity of the February 2013 Consent should occupy the same time, whether in this Court or in the Supreme Court. If there be any basis for difference, the hearing may involve less time in this Court, given the familiarity by judges of this Court with the legislation upon which the applicant's challenge is founded. 48In the circumstances, I do not find the applicant's argument directed to the oppressive impact of the two proceedings to be persuasive. 49For all these reasons, I make the following orders: (1)The applicant's notice of motion filed on 1 April 2014 is dismissed. (2)The applicant must pay the costs of the respondents in respect of that notice of motion. (3)I strike out from the applicant's amended summons Ground 5 of its claim together with the matters pleaded in support of that claim. (4)The applicant must pay the costs of the respondents thrown away by reason of the abandonment of Ground 5 of its claim. (5)Exhibits tendered on the hearing of this notice of motion may be returned. (6)I stand over the proceedings to the Class 4 List on Friday 2 May 2014 for directions.

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: 23 April 2014

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