Maule v Liporoni & Anor

The applicant and the first respondent have filed points of claim and points of defence in respect of the first respondent's motion to dismiss the proceedings.

Written submissions in respect of the motion to dismiss the proceedings have been filed and the Court has also heard oral arguments.

The second respondent has chosen to rely upon the written submissions made by the first respondent supplemented by a short oral submission by Mr Fraser who appears for the council.

The parties have proceeded on the basis that the observations made by the then Chief Justice in General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 are an appropriate summary of the correct approach the Court should take where a party seeks an order that proceedings be dismissed pursuant to pt 13 r 5 of the Supreme Court Rules 1970 ("the SC Rules"). Pt 13 applies in this Court pursuant to pt 6 r 1 of the Land and Environment Court Rules 1996. The Chief Justice said at p 129:- It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 9. The first respondent moves the Court pursuant to pt 13 r 5(1)(a) of the SC Rules on the ground that no reasonable cause of action is disclosed.

10. The Further Amended Points of Claim now filed is a comprehensive document.

11. The relevant basis for the applicants claim for relief can be conveniently identified in part as :- (1) the development application was not endorsed with the consent of the owner of the subject land; (2) the first respondent and the council failed to comply with the requirements of s 5A of the Environmental Planning and Assessment Act (1979) ("the EP&A Act") which requires the application of an eight part test to decide whether there is likely to be a significant effect on threatened species populations or ecological communities or their habitat; (3) that the first respondent and the council failed to comply with the special procedure for integrated development provided in Part 4 Division 5 of the EP&A Act; (4) a failure to give proper consideration to merit planning issues; (5) that the grant of consent was ultra vires as a consequence of manifest jurisdictional error by the council's delegate; and (6) the granting of the development consent was infected and tainted by mala fides on the part of the council by the actions of its officers, employees and agents. 12. On 12 August 1999 public notice of the grant of development consent was published pursuant to s 101 of the EP&A Act and the Environmental Planning and Assessment Regulations (2000).

The proceedings were commenced by the filing of a class 4 application on 14 February 2001 which is outside the period of 3 months specified in s 101 of the EP&A Act.

The first respondent contends that s 101 of the EP&A Act operates so as to prevent the validity of the consent from now being questioned in these proceedings.

In R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 the High Court considered the effect of a privative clause. The application of the reasoning of Dixon J to the circumstances of the present case means that the effect of s 101 is that decisions by a council are not considered invalid if they do not upon their face exceed the authority conferred by the EP&A Act, and if they do amount to a bona fide attempt to exercise the powers conferred in relation to the determination of applications for development consent and relate to the subject matter of the legislation. The regulations considered by the High Court in Hickman provided that the decision "shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any Court on any account whatsoever". By way of contra-distinction, s 101 provides that "the validity of the consent...cannot be questioned in any legal proceedings".

In Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168 at 206 - 207, Dean and Gaudron JJ recognised that a privative clause can protect against "some procedural defect which would otherwise result in invalidity" . In the same case Mason J (at p 180) said that privative clauses are also effective against "a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order" .

Privative clauses are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied" ( Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch & Anor (1991) 173 CLR 132 at 160).

A clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error or that it exceeded the jurisdiction of the decision-maker ( Darling Casino Limited v New South Wales Casino Control Authority & Ors 191 CLR 602 at 633 - 634)( "Darling Casino" ).

In the joint judgment delivered by Gaudron and Gummow JJ their Honours indicated that the first step is to determine what, if any, errors were made by the consent authority before it is necessary to consider the conditions of the exercise of the power and any immunising effect of the privative clause. In Darling Casino the privative clause provided that the relevant decision under challenge there was final and not subject to...review.

Dixon J has identified the Hickman principle as a rule of construction ( R v Murray & Ors; Ex parte Proctor & Ors (1948) 77 CLR 387)( "Murray" ). He explained at p 399 that it is a matter of reconciling the prima facie inconsistency "between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says the validity of its decrees shall not be challenged or called into question on any account whatever".

A provision such as s 101 of the EP&A Act is ineffective when the decision-maker transgresses inviolable limitations or restraints upon its jurisdiction or powers ( The Queen v Coldham & Ors; Ex parte The Australian Workers' Union (1982) 153 CLR 415).

Accordingly, the first step in the interpretation process is to apply a privative clause so that it is inapplicable unless there has been an honest attempt to deal with the subject matter that might reasonably be regarded as falling within its jurisdiction. An expressed specific intention to limit the power of the authority and specific requirements as to the manner in which it shall exercise its power does not give way to a more general provision as that contained in s 101 of the EP&A Act ( Murray at 400).

Stein J pointed out in Londish v Knox Grammer School & Ors (1997) 97 LGERA 1 ( "Londish" ) (at p 6) that the test discussed in the joint judgment in Darling Casino makes it clear that in certain circumstances, including jurisdictional error, a decision will still be reviewable by a Court notwithstanding the privative clause. However, he went on to observe that other errors which do not deprive the tribunal of the power to make the award or order will not be sufficient to overcome an ouster clause. These errors include a failure to take account of relevant considerations or the taking into account of an irrelevant consideration. There was no allegation of mala fides in Londish .

The courts have therefore left open the prospect of a challenge, notwithstanding a privative clause, in circumstances where the decision must be treated as though it was never made.

The Court of Appeal has considered the effect of failing to comply with the mandatory requirements of the EP&A Act in a number of recent cases. Handley JA has expressed the view that s 77(1) of the EP&A Act which, before the recent amendments, provided that a development application in relation to private land "may be made only by" the owner or a person with his written consent "prohibited other persons from making such applications and any consent thus obtained would probably be void" ( Helman v Byron Shire Council and Anor (1995) 87 LGERA 349 at 355). In that case the Court decided that the determination of a development application which was not accompanied by a fauna impact statement where such a document was required by s 77(3)(d1) of the EP&A Act was invalid, even where the development application was ultimately determined in an appeal to this Court.

In Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 at 73 ( "Timbarra" ) the Chief Justice concluded that the decision as to whether or not a species impact statement is required played such a significant role in the legislative scheme that it is appropriate to describe it as an "essential condition" ( Craig v South Australia (1995) 184 CLR 163 at 179) or an "essential preliminary" ( Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 443; Ex parte Toohey; Re Butler (1934) 34 SR (NSW) 277 at 283; Manahan v Ballcock (1951) 84 CLR at 11) and accordingly was a jurisdictional fact which the Land and Environment Court was obliged to decide for itself.

The question of whether a decision-maker has erred as to jurisdictional fact must be determined by the court hearing the dispute. The Court is obliged to determine the "jurisdictional fact" issue upon the evidence before it ( Corporation of the City of Enfield v Development Assessment Commission & Anor (1999) 199 CLR 135 at 151).

In Darling Casino Gaudron and Gummow JJ noted the wider use of the expression "jurisdiction" referred to in Anisminic Ltd v Foreign Compensation Commission & Anor (1969) 2 AC 147 per Lord Reid at 171 and Lord Pearce at 195).

It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had not power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list be exhaustive.

Lord Pearce referred to the lack of jurisdiction as follows:-

Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity.

The case pleaded by the applicant in these proceedings

The first respondent starts with the simple proposition that s 101 of the EP&A Act operates so as to prevent the grant of relief claimed by the applicant by way of a declaration to the effect that the development consent was obtained by the first respondent and granted by the second respondent in breach of the EP&A Act. Because the applicant is not entitled to that primary relief then none of the other relief which the applicant seeks and which depends on the declaration of invalidity can be given.

Mr Stevens QC, appearing for the applicant, (the respondent on the motion) submits that the applicant will rely on a plethora of facts that lead to the ultimate conclusion of fact upon which a finding of mala fides on the part of officers, employees and agents of the second respondent council is based. He says that if the facts are not otherwise explained then the proof of those facts will be sufficient to disclose the mala fides. Furthermore, the applicant relies upon positive acts of commission and omission which manifest the ultra vires action of the council's delegate or that the decision was made in bad faith. According to Mr Stevens, if the Court determines that the decision was ultra vires or void then it is void ab initio ( Calvin v Carr & Ors (1979) 1 NSWLR 1; (1980) AC 574). Mr Stevens relies upon the judgment of the Chief Justice in Timbarra and the provisions of s 123 of the EP&A Act to reiterate that the Court retains a discretion to determine how an adverse finding in respect of the determination of a jurisdictional fact should be remedied. If I understand Mr Stevens correctly the applicant proffers the view that, notwithstanding the effect of s 101 of the EP&A Act, the Court can still examine whether the first respondent is in breach of the EP&A Act by acting on an invalid consent.

It is the applicants' position that the challenge to the validity of the development consent is clearly precluded by s 101 but for the Hickman proviso.

Furthermore, Mr Stevens refers to a degree of uncertainty in respect of the scope of the effect of s 101 (see the observations made by Power JA in Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66 at 67 - 68). It is not appropriate therefore for the question to be readdressed in a final way in a strike out motion.

Although the further amended points of claim do not clearly stipulate that the applicant is seeking relief against the actions of the first respondent, contrary to the terms of the development consent, Mr Stevens nevertheless has indicated that these issues will arise.

Finally, it is appropriate to note that the applicant proposes to argue that the record of the council is not confined to the final document of consent and that the Court in the circumstances of this case will be entitled to examine the whole of the council's files in so far as they are relevant to the issues raised.

In the light of subsequent decisions by the Court of Appeal and the High Court it may be necessary to revisit the decision of the Chief Judge in Coles Supermarkets Australia Pty Ltd & K-Mart Australia Ltd v Minister for Urban Affairs and Planning & Wagga Wagga City Council (1996) 90 LGERA 341 and P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417 and the Court of Appeal in Londish (see also Donnelly v Delta Gold Ltd & Ors [2001] NSWLEC 55). Nothing further needs to be said in that respect for the purpose of the present motion.

Although the further amended points of claim is a detailed and lengthy document it is amorphous in form to the point where it is difficult to separate out parts of it which deal with claims that are either outside the jurisdiction of this Court altogether or claims that are clearly within the prohibition of s 101 of the EP&A Act. In any event, the applicant proposes to argue that many of these matters, for example, whether there has been a breach of the terms of a restrictive covenant, may be resolved by the Court within the ambit of the provisions of s 16(1A) of the Land and Environment Court Act 1979.

In the circumstances it is not inevitable that the claims of the applicant are entirely untenable as a consequence of the effect of s 101 of the EP&A Act.

The case, as explained by Mr Stevens, at least admits of argument. Although in many respects the case can be regarded as a weak one the proposed arguments are in some respects novel and raise issues which have either not been previously decided or there remains sufficient doubt to allow the claim to proceed.

It may be that after the applicant gives consideration to the matters dealt with in this judgment and in particular the lack of clarity of the applicants claim, as presently expressed in the points of claim, a further refinement of the issues may lead to the prospect that some determinative issues could be the subject of a preliminary hearing on those points. However, I am not presently convinced that this would be an appropriate course to take.

At this stage, I am not satisfied that it is imperative to strike out the applicants claim and accordingly the notice of motion by the first respondent will be dismissed.

The question of costs on the notice of motion is reserved.

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