Lahoud v Willoughby City Council

Lahoud v Willoughby City Council - [2022] NSWLEC 125 - NSWLEC 2022 case summary — Zoe

[12]

Is joinder mandated by r 59.3(4)?

I turn, first, to summarise Mr Norton's submissions concerning the first of the propositions advanced on behalf of the Applicant, namely, that r 59.3(4) of the UCPR mandates the joinder of the Panel.
Mr Norton took me through all the relevant provisions of the EPA Act that apply to panels such as the Panel. This included how the Panel was established; how it stood in the shoes of the Council for the purposes of deciding development applications which fell within its purview; and, particularly, the broader process (which included the Panel) by which development applications were determined. In this latter regard, Mr Norton took me to s 4.8 of the EPA Act, a provision that made it clear that development applications lodged with the Council were to be determined by the Panel or, if they were not ones to be determined by the Panel, were to be determined by an officer of the Council to whom the power to determine such applications had been delegated.
In either instance, as I understood his submission, the Council was responsible for decisions made by both the Panel and any officer to whom such determinations were delegated. In part, this was because the formal notice of determination was issued in the name of the Council and, in part, because, to the extent that there were consequential obligations imposed arising from such a determination (whether made by the Panel or by an officer of the Council), those obligations fell on the Council for all relevant purposes, making it responsible for all such decisions, whether those of the Panel or of a delegated officer.
Mr Norton drew particular attention, as well, to the fact that local panels (as is here the position) differ in a significant statutory respect from other bodies such as the Independent Planning Commission or regional planning panels to whom various decision‑making powers concerning proposed developments are delegated. This distinction, as I understood him, makes it clear that those delegated bodies (other than local planning panels) did fall within the scope of r 59.3(4) of the UCPR, and invariably were made a party to the proceedings for that reason.

[15]

The operation of r 59.3(4)

It is appropriate to note that the ordinary principles of statutory construction for considering the text of r 59.3(4) are engaged for my assessment of whether the case advanced for the Applicant establishes that the test there posed is satisfied. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [70] and [71], made it clear that the meaning of the provisions of a statute (or here, statutory rule) is to be ascertained by examining the language of the rule and seeking to give effect to its purpose.
The High Court has said that it is permissible to read additional words into a statutory rule (see Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9) if it is necessary to do so to enable giving full effect to the operation of the rule. What might here be necessary that would require such an importation of additional words differs between the Applicant's case and that of the Council.
Whilst Mr Robertson resisted the necessity to read any additional words into r 59.3(4) to reach the conclusion for which he advocates, I am not satisfied that this is the correct position. Effectively, the position for which Mr Robertson advocates is one which would have the rule read: (4) The body or person responsible [making] for a decision to be reviewed.
The insertion of the word "making" would be necessary to distinguish it from the version of the rule, that would correctly reflect its intention, on Mr Norton's case. This version of the rule would read: (4) The body or person responsible for [giving effect to and administering] a decision to be reviewed.
Decision‑making bodies, whose decisions are subject to judicial review proceedings such as these, usually file submitting appearances and play no active role in the hearing and determination of the proceedings for the most part, and the active respondent (here the Company) takes the positive role of being the contradictor to the case advanced on behalf of the applicant for judicial review. Occasionally, this will mean that there is no active contradictor (unless, as was the position I was required to address in KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38, some additional individual or entity seeks actively to be joined to the proceedings to play that role). To the extent that, from time to time, such a decision‑making body does participate in the proceedings, that role is in the circumscribed fashion addressed by the High Court in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 (Hardiman).
The constraints imposed by the High Court in Hardiman, as to the extremely limited circumstances in which the statutory decision‑maker should take part in judicial review proceedings, were described by the High Court, at [54], in the following terms: 54 There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.
The body which fits this confined procedural role, in the present context, is the Council. This is because it is responsible for all relevant functional activities arising from the Panel's decision and not for the merits of the Panel's decision. To seek to serve interrogatories on the Panel would, even if it did not appear and take any active part, require it to take a role significantly outside that rendered appropriate by Hardiman. This would necessitate matters potentially going to the merits of the Panel's decision in a fashion not contemplated by Hardiman.
As a consequence, the necessary outcome of the Applicant's seeking to join the Panel to these proceedings pursuant to r 59.3 (4) is that the Panel is not to be joined as a respondent to these proceedings.
It therefore follows that the proposition that r 59.3(4) mandates the joinder of the Panel must be rejected.

[16]

Is it necessary that the Panel be joined as a party?

As earlier noted, the basis upon which the Applicant seeks to have, in the alternative, the Panel joined as a party pursuant to r 6.24(1) of the UCPR is because it is "necessary" that the Panel should be joined so as to ensure that the Panel is bound by any orders that might be made arising out of the substantial hearing of the matters raised in the Applicant's Further Amended Summons filed on 10 March 2022.
Whilst it is true that the decision in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross v Lane Cove) mandates that an individual or entity be joined if that individual or entity is directly affected by any mandatory injunctive relief sought by the Applicant in any proceedings (per Leeming JA at [49]), that proposition has no relevance to these proceedings. This is because the orders sought in the Applicant's Further Amended Summons (earlier set out at [5]) do not seek any order that mandates any future course of conduct on behalf of the Panel, nor does it interfere, in any fashion, with the rights or obligations of the Panel. Indeed, Order 2A seeks to have the Company's development application refused by this Court as an outcome of these Class 4 proceedings without the development application reverting to the Panel for reconsideration and redetermination.
Under those circumstances, that which is sought by the Applicant in these proceedings expressly excludes any future activity by the Panel concerning the Company's development application.
The necessary consequence of that is that Ross v Lane Cove creates absolutely no basis why it would be necessary to join the Panel as the Third Respondent to the proceedings.
It is also to be noted that r 6.24 (1) of the UCPR is also sought to be invoked by the Applicant for the subsidiary purpose of enabling interrogatories to be served on the Panel to require it to respond to matters raised by the Applicant in the grounds pleaded in support of the orders sought in the Further Amended Summons.
I have carefully read all the detailed grounds upon which the Applicant relies for the purposes of seeking the orders earlier set out (and as set out in the Further Amended Summons).
To the extent that those grounds plead matters of substance (and I accept that they are potentially matters giving rise to matters of substance - detailed consideration of these must await the trial), I am not satisfied that any of the grounds as pleaded provide any proper basis for me to exercise, as a matter of discretion, the power of joinder pursuant to r 6.24(1). This is because I am not satisfied that any material which might be provided by the Panel, or any of its members, if interrogatories were permitted, would be necessary to advance consideration at trial of any of the matters pleaded in the grounds set out in support of the Applicant's Further Amended Summons.
Under the circumstances, I am satisfied that the Panel should not be joined as a party pursuant to r 6.24(1) of the UCPR.

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