These proceedings concern a long running dispute between the plaintiff ("Macquarie") and the defendant (the "Health District") concerning the construction of a car park and private hospital adjacent to the Royal Prince Alfred Hospital in Camperdown. The circumstances of the dispute are well known to the parties. However, for the assistance of any reader of these reasons who is unfamiliar with that dispute, I will set out briefly how the present application has arisen.
In the late 1990s Macquarie and the Health District agreed that Macquarie was to build a car park and private hospital adjacent to the campus of Royal Prince Alfred Hospital. For the purposes of constructing the car park and the hospital, appropriate development consents had been sought by Macquarie, with the consent of the Health District, from the council then responsible for that part of Sydney. One of those development consents, which bears number D/1997/154, was ultimately granted by the Land and Environment Court on 19 June 1997 (the "Consent"). The present application relates to the Consent.
As a result of disputes which it is not necessary for me to particularise in these reasons, the Health District purported to terminate the agreements (constituted primarily by leases over land) and re‑enter the car park (which had been built and was operating) and the proposed hospital site. I say "proposed hospital site" because the hospital had not been completed and only some work had been done in relation to it. The legal effect of that work is very much in issue and in referring to "some work" I am not to be taken as drawing any conclusions.
The Health District's purported termination of the leases and re‑entry gave rise to extensive litigation in this Court. It culminated in a decision of the Court of Appeal which, in very broad terms, determined that the Health District had wrongfully terminated the leases and by re‑entering the premises had committed a trespass. The Court of Appeal remitted to a judge of this Division the task of inquiring as to Macquarie's damages, if any, occasioned by that trespass.
For approximately 100 days of hearing, spread over more than a year, I have been conducting that inquiry. The hearing concluded on 31 July 2015 and the Court's judgment is reserved.
For a number of years since the Court of Appeal proceedings, up to and including relatively recently, the Health District had remained in possession of the car park and proposed hospital sites. The circumstances of the Health District remaining in possession and their impact, if any, on the assessment of damages is an issue before me. However, before the conclusion of the damages inquiry hearing, steps were taken between the parties for Macquarie to go back into possession of the car park and proposed hospital sites. That has now occurred. On the evidence before me on this application - and only for the purposes of this application - I infer that Macquarie wishes to get on with building a private hospital in accordance with the agreements with the Health District which, despite their now antiquity, remain on foot.
One of the issues that was very much alive and debated before me in the course of the damages inquiry hearing was whether the Consent remained on foot. I received considerable evidence (including expert evidence) and submissions on the question. The issue, as it was then presented to me, was important as one of many integers with which the Court has to grapple in the course of the damages inquiry. What is important for present purposes is that, at that time, the question of the status of the Consent, while relevant to the damages inquiry, did not have an impact, putting the matter colloquially, in the "real world". The status of the Consent has now assumed importance in the "real world" precisely because it appears that Macquarie wishes to get on with building the private hospital.
Because the Consent was granted by the Land and Environment Court, insofar as the status of that Consent now has "real world" implications it is entirely logical and appropriate for its status to be determined by the Land and Environment Court. If this Court's damages inquiry was not extant there would be no doubt that the status of the Consent should be determined in the Land and Environment Court.
In order to bring the question to a head in the "real world", Macquarie has filed a summons in the Land and Environment Court which is in evidence before me. The principal relief claimed in that summons is this declaration:
A declaration that development consent D/1997/154 granted by the Land and Environment Court on 19 June 1997 for a private hospital at 35-43 Carillon Avenue, Camperdown, has not lapsed.
That summons is returnable for directions in the Land and Environment Court tomorrow, Friday 20 November 2015.
Pursuant to general liberty to apply which I reserved at the conclusion of the damages inquiry hearing, the Health District has relisted the matter and made an application before me under s 149B of the Civil Procedure Act 2005 NSW (the "Act") for the proceedings commenced by the summons in the Land and Environment Court, being case number 15/40944, to be transferred to this Court with the intention that I should determine Macquarie's entitlement to the declaration in the course of determining the result of the damages inquiry.
It should be noted that the Health District is not a party to the Land and Environment Court proceedings. There is nothing unusual in that. The respondent to the Land and Environment Court proceedings is the City of Sydney Council (the "Council"). There is evidence before me that the Council both consents, subject to there being jurisdiction, to the transfer of the Land and Environment Court proceedings to this Court and that the Council has filed a submitting appearance in those proceedings, thereby making it clear that it wishes to play no active part in the determination of the ultimate question of Macquarie's entitlement to the declaration it seeks.
Not only does the Council consent to the transfer of the Land and Environment Court proceedings to this Court, Macquarie itself consents to the Health District's application for the transfer of the Land and Environment Court proceedings to this Court.
Against that background, the very real question has arisen as to whether this Court has the power to transfer the Land and Environment Court proceedings from that court to this Court. The answer to that question depends upon the proper construction of s 149B of the Act:
149B Transfer of proceedings between Supreme Court and Land and Environment Court
(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard 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.
(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) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.
I have heard preliminary submissions from the parties on the question of this Court's power under s 149B. Mr Kanagaratnam of Counsel, who appears for Macquarie, has submitted that, on its proper construction, no part of s 149B gives this Court the power to transfer the Land and Environment Court proceedings from that court to this Court. Mr Burton of Senior Counsel, who appears for the Health District, has submitted to the contrary. At this point it is sufficient for me to observe that there is a very real question not capable of an instant or simple answer raised by the arguments of the parties.
While there may be a very real doubt about this Court's power to transfer the Land and Environment Court proceedings from that court to this Court, neither of the parties suggested (correctly in my view) that there was any difficulty in the Land and Environment Court transferring the proceedings that are presently before it to this Court. That, however, is of course a matter for that court and will depend upon an application being made to that court for a transfer of the proceedings to the Supreme Court. As far as this Court is concerned, because of the doubt as to this Court's power I can see no difficulty with an application being made to the Land and Environment Court while the present application is before me. All parties recognise that if such an application was made and acceded to by the Land and Environment Court, it would make the present application before me otiose.
Having said that, I should make it clear that I have no doubt that the issues raised in the Land and Environment summons will require consideration of exactly the same questions which have been the subject of extensive evidence and argument before me. Speaking only for myself and without in any way seeking to bind any judicial officer of either this or any other Court, I am well satisfied that it would be both sensible and convenient for the issues raised by the Land and Environment Court summons to be determined at the same time as I am looking at the same questions in the course of deciding the damages inquiry.
Because the matter is not straightforward, Mr Burton SC has applied for a short adjournment so that the Health District can provide me with further submissions which I have no doubt will be of assistance in determining the proper construction of s 149B. There will then have to be an opportunity for Macquarie to respond to those submissions and, if necessary, a further hearing will be required.
The appropriate course is to allow time for an application to be made to the Land and Environment Court for the transfer of the proceedings before it to this Court, which I understand could be made as early as tomorrow when the matter is before the Land and Environment Court for directions, and for the parties to have an opportunity to file further submissions in the meantime to assist me in determining whether I have the power to transfer the Land and Environment Court proceedings.
Accordingly, the only directions I make today are:
1. Direct the defendant to file by provision to my associate a notice of motion seeking the transfer of Land and Environment Court proceedings 15/40944 to this Court, such motion to be filed by 5pm today.
2. Any additional submissions by the defendant in support of that motion are to be filed by email with the associate to Kunc J and served on or before Wednesday 25 November 2015.
3. Any submissions in response from the plaintiff are to be filed on or before Monday 30 November 2015.
4. List the motion for hearing before me at 9.30am on Tuesday 1 December 2015.
5. The existing liberty to the parties to apply also operate in relation to this motion.
[2]
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: 19 November 2015