The Lidstones' submissions
55Mr To submitted that the question before the Court is one of practice and procedure, and that Ms Duggan had relied upon Tomko without considering the "qualifying remarks" of Hodgson JA, with which Ipp JA concurred, and which the Chief Judge of this Court repeated in Groeneveld (at [12]).
56On a question of practice and procedure, a review has to rely on a demonstrated error of law, or a "House v The King" ([1936] HCA 40, 55 CLR 499) error in the exercise of a judicial discretion. In House v The King (at 504-5), Dixon, Evatt and McTiernan JJ said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
57Mr To then pointed (T p 17) to the "more subtle" contention, as put before me, cf to the Acting Registrar, regarding the ouster of r 6.24 because of the nature of the s 121ZK appeal. He submitted that some of the remarks of Meagher JA in Tweed, upon which Ms Duggan relied, need to be viewed in the wider context to them, provided by Bignold J's decision at first instance -Tweed Byron LALC v Minister Administering the Crown Lands Act [No 3] (1995) 89 LGERA 220 - in which his Honour held that he had no power to join the local shire council, but would have refused to do so, as a matter of discretion, if he had the power.
58Bignold J's decision turned on (1) the particular terms of s 36 of the Aboriginal Land Rights Act 1983 ("ALRA") at the time, limiting the "persons involved in the making, and the determination of a land claim" (at 223); (2) the Court's limited function in an appeal under that section, and (3) the consequential displacement of the normal joinder principles (at 224).
59Mr To acknowledged (T p 18) that only Council and the Leimroths were involved in the giving of the order, and the bringing of the appeal against it, but, once that appeal is commenced, the considerations facing the Court are more diverse, and because the order is "against use", the impacts of that use must be considered: see s 38, and Chriss v Williams (1988) 4 BCL 276. Rule 6.24 is not excluded, and should be applied in the two-step process I have earlier described ([42] above), in line with the principles conveniently summarised by Craig J in CTI, when he joined parties against whom no relief was claimed by the initiating party.
60Craig J referred (at [10]) to Pegang, and then (at [11]) to Super League, and then noted (at [12]) that Lord Diplock's test and the Full Federal Court's observations "were adopted as appropriate" by McHugh J in Sutton, where his Honour said (at 316):
The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court.
61The interests of the Lidstones are more than "a mere curiosity". They have a right of "quiet enjoyment", "to enjoy their land in an unaffected state" (T p 19, LL 22-26), and that right is impacted by the continued, and expanding, illegal use of the neighbouring land, which the proposed s 34 agreement would extend for a further three years. If not joined, they will have to bring expensive and time-consuming Class 4 proceedings, in which the consequences of that agreement will squarely arise on the question of discretion, and against them, if they have not participated in the s 34 process.
62Mr To said he could rely on the power in s 38 to seek joinder, independently of r 6.24. In Humphrey & Edwards Pty Ltd v Woollahra Municipal Council [1998] NSWLEC 285, Cowdroy J relevantly said (at [7] - [10]):
7. The Environmental Planning and Assessment Act 1979 enables a person who are not parties to the litigation to be joined or at least heard. It is obvious that Mr & Mrs Caridad, as adjoining land owners to the land the subject of the development application, have an interest in the matter which is now the subject of proposed consent orders. The question is whether such interest can be adequately addressed by the Council.
8. Where a party has a legal right to be heard in any proceedings, it would be a travesty if such hearing were compromised in any way. It is fundamental to the confidence in the administration of justice that rights of this kind be properly and fully exercised. Not only must there be actual exercise of such rights in this way, but justice must also be seen to be done. Lord Hewart in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at p 259 said that is was of fundamental importance:
that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Such principle has been the cornerstone of numerous decisions of the High Court of Australia concerning the administration of justice.
9. Mr & Mrs Caridad are entitled to have the concern that the Council, having agreed upon a compromise, may not advance their submissions as forcefully as they might have done had they been opposed to the development. By virtue of the agreement that has been reached between the Applicant and the Council, there is obviously a degree of consensus which may not necessarily be in the interests of Mr & Mrs Caridad. This reason, of itself, justifies independent representation in order to eliminate any apprehension or suspicion that an objective member of the public may reasonably entertain, akin to the principles enunciated in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 (see esp p 264) and Livesey v The New South Wales Bar Association (1983) 151 CLR 288 (esp at 299).
10. There is another reason for concern. In Oshlack v Richmond River Council (1997) 96 LGERA 173 two justices of the High Court of Australia have stated that a Council, at least in contested injunctive proceedings, should take a neutral role. If such principle is to apply and to be considered applicable to other contested proceedings generally in which a Council is a party, Mr & Mrs Caridad would have every cause for concern that Council may not advance their interests. These considerations, pertaining to fundamental issues of the perception of justice, override the basis upon which representation was granted in Double Bay Marina Pty Limited v Woollahra Municipal Council (1985) 54 LGRA 313.
63True it is in this case that Mr Lidstone has had the opportunity to express his concerns; but he has had no opportunity to comment on the length of the proposed grace period, nor on the conditions to be imposed.
64The "just, quick and cheap override" applies not simply to the Class 1 proceedings, but, in terms, to the "real issues in the dispute or proceedings"(emphasis mine), and I note that, for the purposes and context of s 56, "party to a civil dispute" is defined to embrace any person "involved" in the dispute. In that context, a situation demanding separate Class 4 proceedings (argued by the Leimroths to be the only remedy the Lidstones really have) adds substantially to the costs involved in fully addressing "the dispute". Shutting the Lidstones out of the s 34 process in the Class 1 proceedings, Mr To submits, might be quick and cheap, but it is hardly just, and, in the long run, will not prove to be quick or cheap either (T p 21, LL 23-29).
65Mr To (T p 23) argues that there was no House v The King error made, and the joinder power is available because none of the ALRA limitations in Tweed are present. Tomko makes clear (at [8]) that a deficiency in reasons should not necessarily lead to a review of an outcome otherwise demonstrated to be correct.
66In the context of s 56, the Lidstones are a "necessary" party, and discretionary principles favour their joinder - they must be entitled to an opportunity to "contradict" the position agreed between Council and the Leimroths, namely that the Court, in the proper exercise of its functions, has the power to sanction an unlawful use for such a long period, a question left open by Bonner. The principles in Morrison regarding "meaningful" contradiction are not, and should not be, limited to, the context of that particular decision.
67If the Lidstones are joined, some consensual resolution of the dispute, rather than the simple termination of the process, may be the outcome (a slightly different position adopted by Mr To than that earlier adopted by Ms Hemmings).