Joseph v Kiama Municipal Council and Ors

Land and Environment Court (NSW)|2023-11-02|Before: Robson J, Bryson J, Commission J

Introduction and outcome

Evidence

Each of the active parties, Council and Mr Joseph, marshalled affidavit and documentary evidence and provided written and made oral submissions at the hearing of the motion.
Council read the affidavit of its solicitor, Patrick Holland, sworn 26 September 2023. Mr Holland deposed to the background of Council's consideration of DA 2023 including earlier development applications made by or on behalf of the Spencers, and various Class 4 proceedings previously commenced by Mr Joseph.
Mr Joseph read his affidavits affirmed 20 and 28 September 2023, and provided a bundle of documents (which became Ex 1) comprising various documents and emails in relation to his concerns regarding Council's past conduct, and a part of a transcript of proceedings conducted before the NSW Civil and Administrative Tribunal ('NCAT') on 6 July 2023.

Background

Given the orders sought in the motion and to provide context to the detailed submissions made by each of the active parties, some understanding of the salient background facts, which for present purposes are largely uncontroversial, is appropriate.
Mr Joseph resides in a property adjacent to the Spencers on North Kiama Drive, Kiama Downs. For a number of years, he has had concerns regarding various development applications lodged by the Spencers. DA 2023 was lodged on 2 August 2023 and placed on public exhibition by Council from 11 August to 10 September 2023 and is currently undergoing assessment by Council. Mr Joseph and Mr Leftwich, the fourth respondent, have each lodged objections to DA 2023.
DA 2023 is the third development application lodged with Council by or on behalf of the Spencers. The first application was lodged in November 2017 (DA 2017) and was withdrawn in May 2020 after Class 4 proceedings in this Court were commenced by Mr Joseph.
A second development application was lodged with Council by Ms Spencer on 22 March 2021 ('DA 2021') seeking approval for development described in not dissimilar terms to DA 2023. Class 4 proceedings were thereafter commenced on 17 June 2021 by Mr Joseph against Council and Ms Spencer ('2021 proceedings'). The summons filed in the 2021 proceedings sought orders that Council cease its consideration of DA 2021 forthwith; engage an independent town planner to evaluate DA 2021; and that Council "accept the evaluation by the independent town planner".
The 2021 proceedings were resolved between the parties by settlement signed 2 September 2021 which provided, inter alia, that Council would engage an independent consultant town planner to assess and make a recommendation to full Council in relation to DA 2021 and that certain named members of Council's staff who had been involved with the assessment process would have no further involvement with the assessment of DA 2021 ('Terms of Settlement'). The 2021 proceedings were discontinued on 6 September 2021.
Despite the resolution of the 2021 proceedings, DA 2021 was withdrawn by Ms Spencer on 11 March 2022 apparently after the independent consultant town planner (Paul Mitchell) appointed pursuant to the Terms of Settlement had prepared an assessment report recommending refusal of DA 2021 ('Mitchell Report'), but prior to its determination by Council.
Mr Joseph and Mr Leftwich have each lodged objections to DA 2023.
Mr Joseph was informed by Council on 28 August 2023 that an employee, Ms Lappin, would be evaluating DA 2023, and that submissions in relation to that application would close 14 days thereafter.
These proceedings were commenced on 28 August 2023.

Summons filed 28 August 2023

As the summons is lengthy and discursive, being over 25 pages and comprising some 220 variously (sometimes non-consecutively) numbered paragraphs (a large number of which are subparagraphs and/or repeated as particulars of claims), it is difficult to discern the precise relief sought by Mr Joseph. To provide context for the parties' detailed submissions, a summary of the document is necessary.
Although Mr Joseph originally sought expedition of the substantive proceedings as well as an interlocutory order that Council's further assessment of DA 2023 be stayed, at the hearing of Council's notice of motion, Mr Joseph informed the Court that he no longer pressed such relief. As such, I will not refer to those parts of the summons.
Essentially, the "Relief Claimed" (in par (4) and following of the summons) is in a form (often repeated) that the Court "declares" that, by reason of detailed past conduct, Council (including "its councillors, servants and agents") is "biased" and/or has given rise to a perception of bias "to favour" the Spencers and/or "disfavour the interests of [Mr Joseph]". The summons thereafter lists (at 4(a)(i-vii)) seven instances of conduct of Council said to substantiate this contention, including Council's consideration of earlier development applications lodged by the Spencers; Council's failure to adhere to the Terms of Settlement; Council's conduct in relation to its determinations of various earlier applications made by Mr Joseph under the Government Information (Public Access) Act 2009 (NSW) ('GIPA Act') for production of documents lodged with Council by the Spencers; and, Council's subsequent conduct in various appeals brought by Mr Joseph before NCAT pursuant to the GIPA Act.
In par (4)(a)(viii) of the summons, a further declaration is sought that the conduct of Council "…as to the manner of the assessment of the [DA 2023]…" is "biased to favour" the Spencers and then lists a number of (overlapping) instances of the conduct of Council including, first, Council's adopted position that DA 2023 would not be assessed by an independent town planner; second, Council's failure to consult Mr Joseph (or Mr Leftwich) concerning the appointment of an independent assessor; third, Council's refusal to assess DA 2023 in the same manner as it had agreed in the Terms of Settlement of the 2021 proceedings (by an independent town planner); fourth, Council's failure in relation to DA 2023 "without good reason" to reappoint the town planner (Mr Mitchell) who had earlier been appointed in accordance with the Terms of Settlement; and in par (4)(a)(ix), that Council's failure to appoint an independent town planner amounts to a "new process" that has been "crafted by [Council] against the interests of [Mr Joseph]".
In par (4)(b) of the summons, a further declaration is sought that "by reason of the conduct of the [Council] (its councillors, servants and agents) … there exists a real apprehension that [Mr Joseph] and Mr Leftwich will be denied procedural fairness if the [Council] is permitted to undertake the evaluation of [DA 2023]".
In par (4)(c) of the summons, a further declaration is sought that Council's conduct has been "…legally unreasonabl[e] and … to the detriment of the interests of [Mr Joseph] … to favour the interests of the [Spencers]".
In par (4)(d) of the summons, a further declaration is sought that "…there exists a reasonable apprehension of bias because of the conduct identified … and that such bias will continue in respect to [Council's consideration of] DA 2023".
In par (4)(e) of the summons, a further declaration is sought that Council's non-appointment of an independent town planner (Mr Mitchell) in respect of DA 2023, is conduct that "would be either an act of bias or give rise to a perception of bias against [Mr Joseph]".
In par (4)(f) of the summons, a further declaration is sought to the effect that Mr Mitchell in preparing his report in relation to DA 2021 "complied" with both the expert witness code of conduct and his retainer with Council.
In par (4)(g) of the summons, a further declaration is sought that the Mitchell Report does not demonstrate "either bias or a perception of bias towards any of the parties … to the [Terms of Settlement]".
In par (4)(h) of the summons, a further declaration is sought that Council (and the Spencers) is "estopped by its consensual and fully informed conduct to deny the remedies [Mr Joseph] seeks" by reason of five matters including its consent to orders made in this Court in 2019 (in relation to the setting aside of the grant of development consent to DA 2017); its consent to the Terms of Settlement (in relation to the appointment of an independent assessor); its consent (previously denied) to production of documents (to Mr Joseph) in the NCAT proceedings; and its conduct in relation to the GIPA determinations.
In par (4)(i) of the summons, a further declaration is sought that the findings made by a commissioner of this Court in Class 2 proceedings (Joseph v Spencer (No 7) [2022] NSWLEC 1085), create "estoppels or binding facts … when [Council] gives consideration in relation to [DA 2023]".
Apart from the above nine instances of declaratory relief sought (in par (4) through to (4)(a)(i)), par "(2)" (on p 7) of the summons seeks an order that Council "make every reasonable effort to re-engage [Mr Mitchell] to evaluate on behalf of Council [DA 2023]".
Paragraph "(3)" (on p 7) of the summons, seeks a further order that the "evaluation and assessment of [DA 2023] shall be in accordance with the same substantive terms as those agreed to in [the Terms of Settlement]".
Subjoined to par (3) and continuing for over 17 pages, the summons then, under the heading "Particulars of Conduct of [Council] its servants and agents" details numerous matters (under various headings) relating to "conduct" of Council "since October 2017" and under various further subheadings including "DA 2017…" which lists 43 particulars relating to Council's conduct in relation to its consideration of DA 2017 with regard to Council officers' conduct and dealings with DA 2017 and with other parties including the Spencers and, in effect, its failure to assess DA 2017 on its merits and its decision to allow the Spencers to withdraw DA 2017 "without good reason". The paragraph then raises the later appointment of various Council officers to assess DA 2021 despite their "biased conduct" (favouring the Spencers) in the assessment of DA 2017 including not making certain material available to the public.
After the above particulars, the summons then contains numerous paragraphs (from p 12) with further particulars in relation to the applications made by Mr Joseph under GIPA and the consequential "need to appeal" (to NCAT). These particulars are listed under the heading "Particulars of further conduct by [Council]…" and in a paragraph numbered "(2)", "conduct supporting orders sought" and relates to three GIPA applications lodged with Council in 2021 by Mr Joseph requiring him thereafter to lodge an appeal to NCAT to overcome "biased acts" of Council. This aspect is further subparticularised to raise conduct including the making of false statements; failure to undertake searches; asserting wrongful and misleading grounds to prevent access to documents; and seeking to advance the interests of the Spencers over Mr Joseph's interests by refusing access to documents.
The next heading in the summons is "Terms of Settlement of 2021 proceedings…" and a further paragraph (again numbered "(3)" on p 13) particularises eight matters relating to Council's "non-compliance" with the Terms of Settlement including claims that Council acted "in bad faith" in failing to comply with such terms; that Council wrongly allowed an amendment to the Spencers' plans; and Council's failure to provide Mr Joseph (and Mr Leftwich) with a copy of the Mitchell Report.
In a further paragraph numbered "(4)" (on p 14) of the summons under the heading "2021 DA and [Council] public meetings…", the summons raises conduct at meetings on 14 and 15 February 2022 where the mayor and the general manager called upon Mr Joseph to "speak first", thereby "undermining the merit of the independent assessor[']s report" and was illustrative of Council's refusal to accept "past biased conduct" and gave a perception of bias "by officers and staff and councillors".
Further conduct particularised under par (4) (on p 15) again refers to failure on the part of Council to abide by the Terms of Settlement; failure of "some councillors" to disclose "assistance" provided to the Spencers; failure of the mayor to seek details of such "assistance", resulting in a breach of Council's Code of Conduct; further instances where councillors "failed to reveal their 'interests'" in granting DA 2021; failure of a particular councillor to disclose relevant political support; and Council's conduct in not immediately accepting the Mitchell Report which was "contrary to the Terms of Settlement".
Paragraph "(5)" (on p 16) of the summons (which repeats many earlier particulars of the primary claims), again lists the conduct of Council in refusing or not supporting the recommendations of the Mitchell Report and thereby "undermining his report" (in respect of DA 2021) which is evidence of Council officers' "ongoing bias". The paragraph further provides that the Terms of Settlement are "admissions as to the legal and [sic] justification for the need for [an] independent assessor"; that the only rational basis for not consenting to the same terms (as to the appointment of an independent assessor) in relation to the consideration of DA 2023 is "some bias or error"; noting that Ms Spencer alleged before Council that Mr Mitchell "was biased" and one councillor "openly accepted this allegation".
Paragraph "(6)" (on p 17) of the summons (which again appears to compromise particulars of primary claims), again refers to three GIPA applications made to Council by Mr Joseph in 2022 which were respectively determined on 12 April, 6 May and 18 August 2022, the assessment of which was said to be "demonstrative of bias in favour of [the Spencers]" because Council officers accepted an assertion of the Spencers that the release of certain of their documents would expose them to "risk", without providing Mr Joseph with an opportunity to respond; unnecessary and unjustified redactions were made to documents to "protect the interests" of the Spencers; Council's failure to undertake reasonable searches for the documents or to make enquiries as to the proper application of the GIPA Act; and, contrary to the Model Litigant Policy, Council officers undertook a course of conduct which denied and frustrated Mr Joseph's rights including the making of false allegations concerning Mr Joseph's conduct; falsely relying upon legal professional privilege; and refusing to respond to reasonable requests for particulars.
The summons then deals (in a further unnumbered paragraph) with Council's attempt to have the "review applications lodged" in NCAT by Mr Joseph dismissed, and then provides 22 paragraphs (including nine further sub-subparagraphs) of particulars concerning Council's conduct in relation to Mr Joseph's applications to NCAT for review of GIPA determinations and Council's conduct in the NCAT proceedings (described as "pernicious" and seeking to "besmirch" his reputation). These paragraphs also particularise that Council made false and misleading statements concerning Mr Joseph's motives in bringing the NCAT proceedings.
The summons thereafter deals with conduct of Council under the heading "2023 DA Assessment" and sets out 17 particulars including repeat reference to the Mitchell Report; previous conduct of Council (including its servants, agents and councillors) in supporting DA 2021 "regardless of the Terms of Settlement"; Council's failure to reveal "assistance" given to the Spencers; illogical and irrational reasons proffered by councillors and their failure to disclose "interests" in favour of the Spencers; the refusal to comply with GIPA requests; Council's decision not to appoint an independent assessor and to allow the Spencers to lodge alternative and "biased" assessments of DA 2023; Council's refusal to "re-adopt" the Terms of Settlement; councillors' support for DA 2021 being approved despite the Mitchell Report; and some councillors' "political connections" with the Spencers.
In addition to the above, Mr Joseph seeks (at p 24 of the summons), his costs on an indemnity basis.

Council's position

Council submits the summons discloses no reasonable cause of action and should be dismissed in circumstances where judicial review for bias or apprehended bias requires consideration of the administrative process of a decision-maker in its entirety. The test for bias must take into account the type of decision-maker and is displaced if its operation would frustrate the intended operation by statute. Actual bias requires a finding that Council had a state of mind that is actually biased, and in the present circumstances, it is material to note that Council had informed Mr Joseph that Ms Lappin is the relevant officer responsible for the assessment of DA 2023.
Council submits that although Mr Joseph is entitled to make submissions (presumably by way of objection) in relation to the merits of DA 2023, he has no standing to commence any merits appeal and, further, there is nothing pleaded in the summons (or evidence marshalled) that impugns the state of mind of Ms Lappin, and in circumstances where Mr Joseph's concerns relate to Council as a corporate body, these matters cannot lead to a finding of actual bias in relation to full Council.
In relation to the allegation of apprehended bias, Council submits that it must be shown that the decision-maker might not be open to persuasion in the mind of a fair-minded observer: McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 ('McGovern') at [80]). Moreover, it is difficult to establish bias and/or apprehended bias where the source of bias is not held by the actual decision-maker: Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 ('Calardu') at [140] (Biscoe J).
In the above circumstances, where there is no pleading alleging actual bias or apprehended bias in relation to the identified decision-maker (Ms Lappin), the case which is otherwise brought generally against Council is misconceived. Further, the fact that certain employed officers may have dealt with GIPA applications (or dealt with previous applications) cannot lead to a finding of apparent or actual bias in relation to the actual decision-maker of DA 2023. There is no case pleaded in relation to bias or apprehended bias brought against Ms Lappin (or any councillors).
Council further submits that the declarations sought in par (4) of the summons are again misconceived because they are not sought against a particular officer, and again, the conduct of other persons in relation to past development applications or GIPA applications is irrelevant. The same applies to allegations that there is some form of contractual breach of the Terms of Settlement. In any event, such a breach would be by Council and not against the actual decision-maker, Ms Lappin. Further, many of the matters involving declaratory relief are not put in any form that could constitute a proper declaration.
As for Mr Joseph's allegations in relation to the GIPA decisions, Council emphasises that they have been the subject of merit appeal in NCAT and that review of GIPA decisions is outside the jurisdiction of this Court. In any event, Council submits that the allegations involving GIPA are convoluted, based upon unfounded assertion, and contain serious allegations (for example, bad faith), and matters in relation to "damaged reputation", akin to defamation, and could not ground any declaratory relief as sought.
Council also submits that the various complaints about non-production of documents (in the GIPA process) clearly concede that the documents that had not been initially produced were, in fact, produced, and as such cannot possibly support the declarations sought.
Council submits there are concerns in relation to form in relation to all declaratory relief sought in the summons. For example, in par (4)(a)(viii), the declaration in relation to actual bias relates to a statutory process that has not yet been completed, and the decision as to whether to grant approval to DA 2023 (or not) may in any event cure any alleged bias. These matters indicate that Mr Joseph's application is otherwise premature.
Council submits that there are a number of other allegations in relation to bias and the like, and declarations in relation to Council not "consulting" with Mr Joseph in relation to the appointment of an independent assessor and/or in relation to the conduct in relation to the preparation of the Mitchell Report in circumstances where there is no legal basis for the declaratory relief otherwise apparently sought. The same concern applies to an alleged duty to consult with Mr Joseph and/or the failure to comply with the Terms of Settlement in relation to a past dispute creating some form of estoppel when it is trite law that a council or any consent authority is not estopped or fettered in the exercise of its statutory discretion.
Council submits that the nature, style and wording of the declaratory relief would never be adopted by the Court and cites by example, par (4)(e) of the declarations sought in the summons, that not reappointing Mr Mitchell would amount to an "act of bias" or give rise to a perception of bias against Mr Joseph.
Council submits that the declarations sought in 4(f), 4(g) and 4(h) of the summons relate to matters well in the past in relation to Council's consideration of DA 2021 (and the Terms of Settlement). In any event, Council submits its conduct could not be a matter that would raise some form of estoppel (either by convention or promissory) and any claim to that effect is misconceived.
Council submits that a proposed order in par (2) (on p 7) of the summons interferes with the method of assessment of DA 2023 and has no basis.
Council submits that in relation to a proposed order in par (3) (on p 7) of the summons and the particulars subjoined thereto, where reference is made to the conduct of Council officers (Mr Herbert and Mr Leo) who are no longer with Council, in accordance with the affidavit of Mr Holland, has no basis.
Council submits that the proceedings should be dismissed, and such relief is consistent with the just, quick and cheap resolution of proceedings which Council submits are manifestly hopeless in conception; and further, that the pleadings are so convoluted, confused and misconceived to legal principle as that they can only waste time and Council's resources. As such, Council seeks its costs on an indemnity basis.

Mr Joseph's position

Mr Joseph provided detailed written and oral submissions provided. I now summarise the matters which he submits militate against the orders sought in Council's motion. 1. Mr Joseph places significant weight upon the fact that no challenge was made by Council in relation to the pleadings and/or the affidavit evidence filed in the 2021 proceedings where that summons sought various declarations of rights, and submits that the fact that there is now a "second" summons based on similar misconduct (and in this case further misconduct) would be a matter going to the Court's ultimate exercise of discretion and not a matter for consideration under either rr 13.4 or 14.28 of the UCPR. 2. Mr Joseph submits that r 14.28 has no application because it is limited to proceedings commenced by way of a statement of claim (as opposed to a summons) and reiterates that, at final hearing, it will be alleged that Council is at fault because it refuses to undertake the "same process" as it had agreed to adopt in the settlement of the 2021 proceedings (and in particular, the fact that it will not appoint an independent assessor is "unacceptable"). 3. While accepting that a different Council employee (Ms Lappin) is now assessing DA 2023, Mr Joseph submits that this is not relevant as he intends to issue interrogatories in relation to those people providing instructions to Jessica Rippon, Council's Director of Planning, Environment and Communities. 4. Council has not complied with the Model Litigant Policy in its dealings in relation to DA 2023 and various earlier applications (including its failure to appoint an independent assessor) and its notice motion is also contrary to the Model Litigant Policy as is Council's claim for indemnity costs. Such conduct is also inconsistent with s 56 of the Civil Procedure Act 2005 (NSW) ('Civil Procedure Act') and constitutes further evidence of bias on the part of Council. 5. Council has not sought particulars of Mr Joseph's allegations including the nature of estoppels (and his cause of action based upon equitable estoppel) and has impermissibly changed its earlier reliance from r 13.4(1)(b) of the UCPR to reliance upon r 13.4 generally. 6. The Terms of Settlement (agreed between Mr Joseph, Council and Ms Spencer) provided that there should be "one recommendation", the appointed independent assessor was to comply with the expert witness code of conduct and was, thereby, an attempt to limit any further involvement of Council employees and to limit councillors' considerations. 7. The details of the allegations of bias which were the basis of the 2021 proceedings were detailed in a 68-page letter dated May 2021 to Council. That letter dealt with the specific allegations against various officers as well as "institutional bias" which included conduct of the general manager and various named Council officers; 8. Mr Joseph intends to issue subpoenas, interrogatories and undertake discovery which will enable further articulation of the claims he makes in relation to bias, apprehended bias, and the like; 9. Certain planners on Council's staff (named in the Terms of Settlement) who had recommended approval of DA 2017 had "permitted false and misleading plans to be lodged by [the Spencers]" and their conduct has resulted in a "perception" of bias that continues to affect the "planning section" of Council despite the fact that a number of those officers having retired. The summons is a "response" to this bias which "operates at different past and present operational levels" of Council because Council has "many decision-making players" other than certain named planners. 10. In circumstances where Council accepted and consented to the Terms of Settlement (conduct which also gives rise to bias), its conduct gives rise to issue estoppel (or estoppel by conduct). Such conduct is not "legally expunged" by the retirement of some planners; 11. Council had been complicit in denying Mr Joseph procedural fairness by keeping from him certain documents that had been made available to Council by Ms Spencer in relation to DA 2021; 12. Council's conduct since the Terms of Settlement provides further evidence of the "same biased conduct" which requires the intervention by this Court, including Council's failure to comply with the Terms of Settlement; its conduct in relation to the GIPA applications; and its "egregious conduct before NCAT"); 13. The declaratory orders sought raise consideration of "mixed questions of fact and law" and, if made, provide "utility and flexibility" not otherwise available. Such relief will have the effect of reducing Court time over contested matters; 14. There is no requirement that a summons give rise to justiciable action when seeking declaratory orders; 15. The state of the present pleading reflects the state of known evidence, and the Court must assume that this will be changed by Mr Joseph's use of subpoenas, interrogatories and discovery. As such, the uncertainty of the ultimate evidence to be relied upon is not determinative of the present motion; 16. Mr Joseph's allegations of bias are not limited to the planners previously in the employ of Council, but rather target "the [Council], itself, regardless of any change in personnel" and the [Council] remains "legally accountable" for its former employees' and agents' conduct; 17. The summons relies on "mixed legal and factual assertions", including first, breach of Terms of Settlement; second, admissions by conduct of Council; third, estoppel by conduct and representation; fourth, acts of bias; fifth, acts causing "apprehension of bias"; sixth, findings made in other proceedings in this Court based upon the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('Trees Act') where the Spencers were parties; and seventh, estoppels arising from NCAT decisions. 18. The law governing the relief sought in Council's notice of motion is that set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 ('General Steel Industries'). The requirement for dismissal is "demanding" and, in the present circumstances, summary dismissal is inappropriate because there is a serious conflict as to matters of fact such that the Court would refuse summary judgment; 19. Declaratory relief is sought in relation to a judgment by the Senior Commissioner of the Court which establishes an "issue estoppel" on both Council and the Spencers. 20. The Court should not assume (as Council appears to have assumed) that the "pleadings" are the final state of evidence to be relied upon when that is not the case. Mr Joseph submits that people other than a particular planner can be relevantly biased and the fact that proof is "difficult" is a matter to be considered at the substantive hearing and not during a dismissal motion. 21. There is clearly jurisdiction for this Court to find that a failure to comply with the Terms of Settlement (and consent orders) can give rise to pleas of issue estoppel, and the declarations as to facts to which the estoppel is said to be based would support the present claim of bias and apprehended bias which is not limited to certain planners now not employed by Council but applies to Council itself. 22. The declaratory orders as to the nature and extent of issue estoppel and/or admissions arising from the litigation before NCAT are of forensic significance in the proof of the present claim. Those decisions are referenced and identified at pp 19-22 of the summons. 23. The summons also complains about the conduct of councillors at pp 14-15 and 23-24 of the summons who remain in office and who will consider DA 2023 and a declaratory order as sought would provide a "legal statement" as to whether those same councillors should recuse themselves in respect of DA 2023. 24. Despite the above submissions, Mr Joseph suggested that the Court may consider it appropriate to await the determination of DA 2023 by standing the matter over generally to such future time.

Legal principles

Council relies upon r 13.4 of the UCPR to seek an order that the proceedings be summarily dismissed, and in the alternative, Council applies to strike out the whole of the summons pursuant to r 14.28 of the UCPR.
Rule 13.4 of the UCPR provides: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Although the power to summarily dismiss the proceedings is discretionary, it must be attended with caution, and it is usually only exercised in the clearest cases where it is plain and obvious that there is no issue to be tried: General Steel Industries Inc at 129-130 (Barwick CJ); Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ('Agar v Hyde') at [57]. The test has been framed as to whether the matter is "so obviously untenable that it cannot possibly succeed", is "manifestly groundless" or "would involve useless expense": General Steel Industries at 129.
Summary disposal therefore requires the Court to turn its mind to whether the applicant has more than a "fanciful" prospect of success: O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]. In doing so, the Court must consider whether there is an underlying cause of action, rather than simply whether one is pleaded. The Court must also take the case of the party resisting the application for summary dismissal at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200]. Proceedings will not be summarily dismissed once it appears that there is a real question to be determined and that the rights of the parties depend upon it. This is so even if the applicant's prospects of success might be characterised as slim.
Rule 14.28 of the UCPR provides: (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Similarly to applications for summary dismissal, the fatal defects in a plaintiff's case must be very clear before the Court will intervene to strike out a pleading under r 14.28 of the UCPR: Shaw v State of New South Wales [2012] NSWCA 102 at [30].
Council submits that Mr Joseph's summons is embarrassing and should thereby be struck out. In this context, "embarrassing" relates to whether the pleading can serve the function of a pleading, namely, to put a defendant properly on notice of the real substance of the claim made against it and of the case it is required to meet: Lucantonio v Benscrape Pty Ltd [2020] NSWSC 579 at [118].
A pleading will be embarrassing and liable to be struck out if it is unintelligible, ambiguous or vague in its identification of the material facts alleged, and leaves doubts as to what is referred to: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 413. However, the Court will be reluctant to strike out a pleading where a defect can be cured by an amendment.
The need to consider whether a defect in a pleading can be cured by an amendment is particularly important in matters involving self-represented litigants. While a self-represented litigant is not entitled to advantages which, if represented, that party would not have, care must be taken to ensure that unfamiliarity with the rules of pleadings and the drafting of statements of claim does not deprive a party of the opportunity to have its claim determined according to law: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536.
Noting that Mr Joseph appeared without legal representation, I have been careful to examine what he has put to the Court with a view of ascertaining the substance of his grievances. However, Mr Joseph's significant experience practising law, including his appointment as senior counsel, mitigates in my view any risk of his right to present a case before this Court being lost because of a lack of legal knowledge.
Finally, I am mindful that, in exercising the power under rr 13.4 and 14.28 of the UCPR, I must also give effect to the overriding purpose stated in s 56(1) of the Civil Procedure Act, namely, to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings and in this regard, I am conscious of Hammerschlag J's words in Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [62] and [64], that it ought not be sufficient that a claim meets "the bare threshold of not being certain to fail" for the claim to not have reasonable prospects of success.
To the extent that Mr Joseph submitted that reliance on r 14.28 of the UCPR is predicated upon the proceedings having been initiated by way of pleadings, it is noted that the summons is in fact drafted as it were a pleading or statement of claim. However, I accept that r 14.1 of the UCPR has the effect that r 14.28 only applies to proceedings commenced by way of statement of claim and may not apply to these proceedings. To the extent that this provision was only relied upon by Council in the alternative, I do not find this determinative of the motion presently before me. Further, the Court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedure in the same way as if the proceedings were conducted on pleadings in the strict sense: cf. Global Partners Fund Limited v Babcock & Brown Limited (In Liquidation) [2010] NSWSC 270; (2010) 267 ALR 144 at [77].

Findings

The summons seeks disparate relief, primarily under the umbrella of judicial review with claims made in relation to bias and the "perception" of bias (noting that injunctive relief is now not sought), denial of procedural fairness and consequential orders seeking the Court's oversight of the internal assessment process relating to DA 2023 (including the appointment of personnel).
Bearing in mind the legal principles summarised above and accepting Council's submissions noted at [43]-[56] above, and generally, I consider there are a number of fundamental deficiencies both in the summons relating to claims (and relief) based on bias and denial of procedural fairness, and I consider that most of the presently pleaded claims should be dismissed, and that limited leave should be granted to replead these two base allegations. As will become clear, while I have a doubt as to whether those deficiencies can be addressed, I have been conscious to take Mr Joseph's claims "at their highest" (and with some understanding that the evidence to be relied upon by Mr Joseph has not been completed), and I consider that it is not the function of the Court to draw or settle a party's pleadings.
In summary, the Court has received extensive argument in relation to Mr Joseph's claim of bias and/or apprehended bias and denial of procedural fairness in Council's past (and possibly present) conduct and, for reasons that follow and accepting Council's submissions specifically those noted above at [46]-[48] and [52]-[53], I am not satisfied that these claims are so clearly untenable that they cannot possibly succeed. I am also conscious of the frequent cautions that a party is not to be denied the opportunity to present their case before the Court despite my preliminary view that Mr Joseph's claims are likely to be unsuccessful if pursued.
It is appropriate to first make a number of observations before turning to my consideration of the terms of the summons.
First, the statutory framework for the assessment by local councils of development applications (and, in particular, the procedure for the consideration of submissions) must be kept in mind when considering Council's notice of motion. To the extent that there is an underlying concern that Mr Joseph "will be" denied procedural fairness, it must be remembered that consent authorities, including councils and this Court in merits review appeals, must give consideration to submissions made by interested parties. That is, Mr Joseph, and to the relevant extent, Mr Leftwich, are entitled to expect that their submissions regarding DA 2023 will be properly considered by Council.
In addition to, and leaving aside my view that there is a concern that these proceedings are brought prematurely, Mr Joseph maintains that Council will not bring an unbiased view to the consideration of DA 2023 and, more specifically, that his concerns will in some way be subjugated to those of the Spencers because of Council's bias against him.
Secondly, given Mr Joseph's concerns regarding Council's conduct, and having regard to the applicable scheme for determination of development applications which involves a multi-step decision-making process, I note that procedural fairness in the present circumstances will have been afforded where an interested party (such as Mr Joseph) is given the opportunity to make submissions and those submissions are duly considered. The question for the Court is whether "the decision-making process, viewed in its entirety, entails procedural fairness: South Australia v O'Shea (1987) 163 CLR 378 at 389; [1987] HCA 39; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578; [1992] HCA 10.
"Bias" indicates some propensity, or predisposition towards a certain view, irrespective of its cause: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 ('Minister v Jia') at [183]. As such, assessment of allegations of bias or of reasonable apprehension of bias, requires consideration of the identity of the decision-maker and nature of the decision-making process. The standard expected of a decision-maker will depend upon the nature of the function performed: Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 ('Hot Holdings') at [134].
Actual bias requires a finding that Council had a state of mind that is actually biased, and in relation to a claim for apprehended bias what must be demonstrated is that a fair-minded observer would not consider the decision-maker to be open to persuasion: McGovern at [80]. As I have noted, nothing in the summons alleging actual bias or apprehended bias has identified the decision-maker (Ms Lappin).
In addition to the above, it is well-established that bias is displaced if its application would frustrate the intended operation of a statute such as the Environmental Planning and Assessment Act 1979 (NSW): Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [4], citing Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 ('Laws v Australian Broadcasting Tribunal') at 98.
As Council is a multi-member body, it may be difficult to establish apprehended bias on the part of the Council as a whole (McGovern at 60-62) and it is therefore clear that a distinction must be drawn between a person in a decision-making authority with a determinative function, and a person whose involvement in the mechanics of a decision-making process is not determinative. In the latter case the test of apprehended bias is not met, particularly if the person is an officer who had no more than a peripheral role: Hot Holdings at [8]; Calardu at [140]. Given Mr Joseph's repeated reliance on Council's earlier conduct, I am also conscious that a decision-maker such as a local council does not have to be free from prior involvement in a particular decision to avoid a finding of bias and/or apprehended bias: Laws v Australian Broadcasting Tribunal at 90.
The evidence on this motion, as noted above, is that although a decision in relation to the development application has not been made, Mr Joseph has been informed that Ms Lappin is Council's assessment officer allocated to the consideration of DA 2023. Again, Mr Joseph is entitled to make submissions (as he has done) and it is clear that he has concerns in relation to the proposed works the subject of DA 2023. Despite this, as Council submits, the demonstration of actual bias requires the demonstration of the state of mind of actual bias: Minister v Jia at [111]. There is nothing in the summons (or the present evidence) that impugns the state of mind of Ms Lappin and Mr Joseph's concerns, in any event, appear to be directed at Council as a corporate body. I have difficulty accepting that the presently available evidence is sufficient to ground a finding of actual bias in relation to either full Council or Ms Lappin.
The same comments may be said in relation to Mr Joseph's claim of apprehended bias and the requirement that the decision-maker (however defined) might not be open to persuasion in the mind of a fair-minded observer.
In addition to the difficulty inherent in making a claim against Council as a corporate body, Mr Joseph's case is further limited by the fact that much of the summons raises concerns about the conduct of employed (and previously employed) officers who may have dealt with GIPA applications, or earlier development applications, but are apparently (even if they remain on Council's staff) not, on any view, the "decision-maker". Again, as Council submits, there is no case of bias or apprehended bias brought against Ms Lappin or indeed individual councillors.
Further, as will be seen, I consider that most (if not all) of the declaratory relief is sought in a form that the Court would simply not make. I also note that a number of the 'arguments' relied upon by Mr Joseph are simply not relevant for the purposes of the claims he is seeking to make. For example, Mr Joseph's reliance upon the GIPA-related matters (being both Council's decisions in relation to Mr Joseph's GIPA applications and Council's conduct in the review proceedings before NCAT) and indeed Council's past conduct, appears to be of little relevance to Council's present consideration of DA 2023. Further, I consider that, to the extent that Mr Joseph seeks to litigate past conduct of Council through DA 2023, this is not justiciable.
Similarly, a decision of a commissioner of this Court in earlier Class 2 proceedings (being proceedings under the Trees Act) and the conduct of the parties therein, cannot, in my view, be relevant to any reasonable claim sought to be maintained by Mr Joseph in these Class 4 proceedings.
I also consider that Council's conduct in relation to the Terms of Settlement cannot create either some form of (subsequent) contractual claim and/or create any form of estoppel known to law. In relation to estoppel, considering par (4)(h) of the summons and Mr Joseph's submissions, the basis upon which estoppel is said to arise is unclear, whether it be common law or conventional estoppel or equitable estoppel (or equitable promissory estoppel).
I further note that there are a number of allegations raised in Mr Joseph's written and oral submissions that do not, on any view, appear as claims in the summons. For example, his submission that the fact that Council refuses to adopt the "same process" as it had agreed to adopt in relation to the 2021 proceedings is because that process did not provide a "favourable outcome" to the Spencers "and their enablers in and on Council".
I have the same concerns in relation to the claim repeated on a number of occasions in the summons and Mr Joseph's submissions that Council is biased because it "settled" earlier proceedings and/or that it did not appoint an independent assessor in relation to the assessment of DA 2023. I also note that references throughout the submissions (and in the summons) to a "68 page letter of May 2021" are of no assistance as that correspondence is not in evidence before the Court.
The concerns and difficulties I have referred to above must now be applied to the various paragraphs of the summons which I will consider seriatim.
Paragraphs numbered (1), (2) and (4) (up to and including (4)(a)(vii)) of the summons do not disclose any reasonable cause of action and potentially cause prejudice and embarrassment. I find that the claims in these paragraphs should therefore be dismissed. Further, the declaration in par (4) of the summons is not in a form which the Court could (or would) make. I further dismiss par (2) (on p 2) of the summons (although Mr Joseph indicated that he did not seek a stay of Council's assessment of DA 2023), as it discloses no reasonable cause of action and, as such, the order sought therein has no reasonable prospects of success because it is simply not an order either in form or substance that could or would properly be made by the Court (even if other matters sought to be established by Mr Joseph were so established).
In relation to relief sought in both pars (4)(a)(viii) and 4(b), again the Court could not, and would not, make declarations in the form sought. Despite this, to the extent that Mr Joseph seeks to make out a claim (albeit noting my concerns in relation prematurity) that the conduct of Council in the assessment of DA 2023 is biased or that there is a "real apprehension of bias", and in relation to denial of procedural fairness, noting my view that based upon the material presently before the Court, the prospects of these claims, even if properly pleaded, are at most slim, I consider that Mr Joseph should be given leave to replead (only) the claims otherwise in pars (4)(a)(viii) (in relation to DA 2023) and (4)(b) (in relation to denial of procedural fairness) of the summons. For clarity, I therefore strike out par (4)(a)(viii) (and all subparagraphs subjoined thereto) and (4)(b).
I also find that none of pars (4)(c), 4(d) and 4(e) (on p 6 of the summons), are in a form that could or would be made by the Court, nor do they disclose any reasonable cause of action and, therefore, that each of these claims should be dismissed with the effect that these paragraphs are struck out.
As to par 4(c) of the summons, accepting that the gravamen of the claim may be encapsulated in the repleading of pars 4(a)(viii) and 4(b), it is also unclear which conduct of Council (including when such conduct took place) is being referred to in the expression "including that particularised".
The content of par 4(d) of the summons may also be encapsulated in the repleading of pars 4(a)(viii) and 4(b) however, Council may appoint an independent decision-maker and/or it may exercise its statutory functions through an officer with no prior involvement in the matter. In these circumstances, the Court could not, and would not, declare that the "bias will continue".
In relation to par 4(e) of the summons, again the declaration sought could not, and would not, be made by the Court. Council could not be compelled to appoint a particular consultant of Mr Joseph's choosing.
In relation to pars 4(f) and 4(g) of the summons, both seek declarations in relation to matters relating to Council's consideration of DA 2021 (some years after the event). It is unclear how the Court could ever consider granting such relief irrespective of my view as to the form of the relief sought.
Par 4(h) of the summons raises historical intercourse between Council and Mr Joseph (and others) and seeks a declaration involving estoppel (apparently by convention). More specifically, par (4)(h) relates to the determination of proceedings in this Court in relation to DA 2017; the Terms of Settlement (in relation to the 2021 proceedings); consent to the production of documents in the NCAT proceedings; and findings made by a commissioner of this Court in Class 2 proceedings under the Trees Act. Although there is a distinction between different forms of estoppel, and while it appears that that which is relied upon here is some form of estoppel by convention, the very basis for any estoppel, namely that one party has adopted an assumption as to the terms of its (legal) relationship and that the other has adopted the same assumption in circumstances where both had conducted their relationship on the basis of a mutual assumption and where departure therefrom will occasion detriment to the first party, simply has not been properly raised in the summons. It is clear that no estoppel can arise from the prior decision made under the Trees Act or pursuant to the Terms of Settlement and, again, the form of the declaration is such that the Court could not, and would not, entertain such relief. Further, and importantly, Council simply cannot be fettered in attending to its statutory duties, and as such, I consider that it is misconceived to challenge the present ongoing (but not completed) process of consideration of DA 2023.
I also consider it appropriate to dismiss par (3) (on p 7) of the summons as the order or injunction otherwise sought in that paragraph has no prospects of success as it discloses no reasonable cause of action and it has a tendency to cause embarrassment or delay in the proceedings. The Court would not order the Council to re-engage Mr Mitchell.
Given my finding that Mr Joseph should have limited leave to (attempt to) replead (if possible) a claim based upon bias and/or apprehended bias in par 4(a)(viii) of the summons in relation to Council's consideration of DA 2023 (again a matter about which I have concerns), I strike out all the material under the heading "Particulars of Conduct of [Council] its servants and agents" on p 7 through to par (17) on p 24 of the summons. My reasons for this ruling may be shortly stated.
First, the length, nature and detail of the matters listed do not put Council properly on notice of the substance of any claim it is to meet. The relationship between the multiplicity (and discursive nature and confusing numbering) of particulars and paragraphs and discrete claims made earlier in the summons is unclear and is apt to limit Council's capacity to provide any sensible response and as such cannot be allowed to stand. Council is entitled to face a summons or pleading which it can comprehend and which accords with the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings. A properly pleaded document is in my view a prerequisite for this to be achieved.
Secondly, my concerns relate to more than a failure simply to comply with technical requirements of pleading rules because, to the extent that the multiplicity of paragraphs allege facts, they are couched in expressions which lead to difficulties or doubts about recognising or piecing together what is precisely being referred to: Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep) at 5-6.
While I accept that a pleading may be embarrassing even though it contains allegations and material facts sufficient to constitute a cause of action, in the present circumstances I consider that, to the extent that material facts are raised (a matter about which I have some doubt), in circumstances where these facts are couched in expressions rendering comprehension difficult, it is appropriate to grant Council the relief it had sought but to allow Mr Joseph an opportunity to properly articulate what I discern are his primary claims.
Further, Mr Joseph's submission that the determination of this motion (and indeed the substantive proceedings) should stand over to abide Council's determination of DA 2023 (a matter specifically raised in his written submissions at [61]), where he submits that "the Court may consider it appropriate to await the determination of the development application by standing the matter over generally to this time", reflects an understanding of what I consider to be the prematurity of a number of the claims and orders otherwise sought (on the assumption that they could properly be made). Moreover, it is clear that a refusal of DA 2023 may sufficiently address some, or most, of Mr Joseph's concerns.
I have also taken into account Mr Joseph's submissions, that the Court must give weight to the fact that further evidence will be sought to be gathered from interrogatories, discovery, the issue of subpoenas and notices to produce, and that "new and further pleadings and particulars could flow from this further evidence", in reaching my view that Council is entitled to much of the relief if has sought in the notice of motion.

Conclusion

As considered above, I have concerns that the summons discloses no proper cause of action and that, in its present form, it has a tendency to cause prejudice embarrassment and/or delay. Further, unless otherwise able to be properly structured and presented, it would amount to an abuse of process of the Court.
I am conscious that a high degree of certainty in the outcome is required for the exercise of the power to summarily dismiss: Agar v Hyde at [57]. Therefore, although I have concerns in relation to whether there even be a triable issue identified in the summons, and noting my concerns in any event as to the prematurity of these proceedings, and the fact that most of the declaratory relief sought is not in a form that the Court would (or could) make, and that much of the same can be said in relation to the orders as presently articulated, I consider that the proceedings in relation to the claims in pars 4(a)(viii) and 4(b) are not so fundamentally deficient that amendment is not able to place them in an appropriate form. Despite this, as Council is entitled to know precisely which claims are made against it, it is appropriate to strike out much of the summons in its present form and grant Mr Joseph leave to replead (only) the claims in relation to bias, and denial of procedural fairness, which are otherwise presently encapsulated (albeit somewhat inappropriately) in pars (4)(a)(viii) and (4)(b) of the summons.

Orders

The orders of the Court are: 1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the summons filed 28 August 2023 is summarily dismissed. 2. Leave is granted to the applicant to replead (only) the claims in paragraphs 4(a)(viii) and 4(b) of the summons. 3. Costs are reserved.

Amendments 22 December 2023 - Typographical error corrected on coversheet. 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: 22 December 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (29)

Cited By (3)