Mbark FCG Retirement Pty Ltd v Friends of Federal Fairways Inc [2026] ACTSC 17

1. The dispute that forms the basis for the application before me arises out of a proposal for the construction of a retirement village on land forming part of the Federal Golf Course.

2. There are a number of separate development applications (DAs) relating to different aspects of the development proposal. This DA relates to a request for approval to construct a public road, associated infrastructure, landscaping and signage on Block 76, Section 10, Garran. The DA was originally approved by the Territory Planning Authority (the second defendant), subject to conditions, on 22 August 2025. Friends of Federal Fairways Inc (the first defendant) sought a review of the decision in the Tribunal, and the review is the subject of continuing proceedings before the ACT Civil and Administrative Tribunal (ACAT). On 12 November 2025 the Tribunal dismissed an interim application made by the plaintiff in those proceedings seeking their dismissal. The ground relied upon in the application for dismissal was that the subject DA was exempt from third party review on the basis that the development met the definition of public works for the purposes of the Planning Act 2023 (ACT).

3. The proceeding in this Court is in the form of an originating application lodged by the plaintiff, which is the developer of the retirement village, seeking various orders, by way of judicial review, of the interim determination of the Tribunal dismissing the plaintiff’s application. For present purposes, only order 2 is pressed, by which the plaintiff seeks interlocutory relief in the nature of a stay of the ACAT proceedings pending determination of the residue of the originating application.

4. The application for a stay is opposed by the first defendant and consented to by the second defendant.

5. The plaintiff reads an affidavit of Paige Hall affirmed on 28 January 2026. The first defendant reads an affidavit of Jiadi Liang affirmed on 2 February 2026, noting that par 23 of Ms Liang’s affidavit is not relied upon.

6. The third defendant is ACAT, and the fourth and fifth defendants are other persons with an asserted interest in the proceedings. The third, fourth and fifth defendants played no active part in the hearing of the application before me.

The proceedings before the Tribunal to date

7. The affidavit of Ms Liang contains a useful summary of the Tribunal proceedings to date at pars 3-12, which is reproduced below: 3. On 19 September 2025, the First Defendant filed an application for review with the ACT Civil and Administrative Tribunal (Tribunal). … 4. The First Defendant received the Tribunal Documents from the Second Defendant on 14 October 2025. 5. On 16 October 2025, the First Defendant received the Second Defendant’s Statement of Reasons. 6. On 17 October 2025, the First Defendant received the Plaintiff’s application to dismiss the application for review on the basis that the DA is exempt from third party review (the interim application). 7. On 17 October 2025, the Tribunal made various orders that primarily dealt with the interim application. 8. On 7 November 2025, a hearing was held before the Tribunal to determine the interim application. 9. On 12 November 2025, the Tribunal made an order to dismiss the interim application. 10. On 14 November 2025, the First Defendant made an application under section 22P of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) for the President of the Tribunal to extend the 120-day period for deciding the application for review until 27 March 2026 (22P Application). That application proposed an indicative timeframe that would enable the parties to sensibly prepare for the matter having regard to the complexity of the issues and the intervening summer holiday period. … 11. On 10 December 2025, a hearing was held by the Tribunal to determine the 22P Application. 12. The Plaintiff opposed the extension of time proposed by the First Defendant and agitated for a compressed timetable for all parties. The Tribunal granted an extension of time under section 22P of the ACAT Act for a decision to be made by the Tribunal by 9 March 2026 (being effectively a compromise between the positions advanced by both parties). (Emphasis in original.) The plaintiff’s submissions

8. The plaintiff says that it has a good arguable case that the Tribunal lacks jurisdiction to undertake its present review of the decision of the second defendant, because it is a review initiated by a third party and such review is impermissible pursuant to item 5 in Pt 6.2 of Sch 6 of the Planning Act.

9. That item is in the following terms: Part 6.2 Matters exempt from third party ACAT review … 5 public works, other than a significant development requiring an EIS or a subdivision design application, consisting of the building, alteration or demolition of— (a) electricity, water, gas or communication services; or (b) a floodway or sewerage or drainage works; or (c) a public road, public path, cycleway or car park

10. The plaintiff asserts that the works that are the subject of the DA are public works as described in that item and are thus outside the scope of the Tribunal’s power of review.

11. As to prospective matters of adversity that can only be avoided by the granting of a stay, the plaintiff identifies two matters. First, the plaintiff's position is that if a stay is not granted, it will be obliged to continue with the preparation required by the Tribunal pursuant to the directions it has made, and culminating in a contested hearing presently listed on 18 February 2026 with a three-day estimate. It anticipates incurring significant costs in satisfaction of those orders, and with no real prospect of recovery of costs regardless of the outcome in the Tribunal proceedings because of the operation of s 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).

12. Secondly, the plaintiff points to delay of the broader approval process as a relevant consideration. It asserts that the road the subject of this approval is an integral part of the development as a whole, and delay in the determination of the Tribunal proceedings will permit further delay in the progression of the development plan.

13. The plaintiff notes that it was not until the receipt of the first defendant’s evidence on 26 January 2026 that it was in a position to fully appreciate the nature of the defence case. It was by that time already at risk of non-compliance with the relatively tight directions timetable previously set by the Tribunal. In those circumstances, the plaintiff contends that it suffers significant prejudice in endeavouring to respond to the defence case where the preparatory work required of the first defendant is already done. The plaintiff says that the option of returning to the Tribunal for an extension of the existing timetable is not a realistic option because of the operation of s 22P of the ACAT Act. That section provides: 22P Time for deciding land, planning and environment applications (1) This section applies in relation to an application for review by the tribunal of a decision under any of the following Acts: • Heritage Act 2004 • Planning Act 2023 • Urban Forest Act 2023. (2) The tribunal must decide the application within 120 days after the day the application is made. (3) However, the president may, in writing, extend the period for deciding the application if satisfied that the extension is in the interests of justice. (4) A failure to comply with this section in relation to an application does not affect the validity of a decision on the application.

14. The effect of that section and the restriction it imposes on the time within which the Tribunal must deliver a decision is such that the plaintiff contends there is no realistic prospect of a further extension of the timetable (which might otherwise alleviate the prejudice it now suffers).

The first defendant’s submissions

15. As a preliminary matter, the first defendant contends that the plaintiff requires leave to file its originating application as it was not filed within the 60-day time period prescribed by r 3557(2) of the Court Procedures Rules 2006 (ACT). The orders sought by the plaintiff in its originating application include orders for relief in the nature of certiorari, prohibition and declaration.

16. The first defendant highlights the failure of the plaintiff to provide any explanation for its delay in lodgement of the application. It submits that the plaintiff’s case for review is weak, and that in the absence of an explanation for delay, the case for an extension of time within which to file the application is not compelling. That is particularly so where the rule provides that the court may extend the time for filing mentioned in subs (2), “only in special circumstances”.

17. In relation to special circumstances, the first defendant relies upon the decisions of Cressy v Miloriad (No 2) [2016] ACTSC 339, and Steel Contracts Pty Ltd v Simons [2014] ACTSC 146. It also relies upon the decision of Mossop J in Justar Property Group Pty Ltd v Chase Building Group (Canberra) Pty Ltd [2020] ACTSC 231 in support of its contention that notice to the other party is a relevant matter in the context of considering an explanation for delay.

18. Cressy v Miloriad concerned an application to vary a judgment amount, including to include interest not originally claimed, pursuant to r 1619(7) of the CPR, which required special circumstances to be established. At trial there was a degree of uncertainty around the assessment of future economic loss. Mossop AsJ (as his Honour then was) referred to special circumstances as a flexible discretionary power, which requires reliance on grounds sufficiently out of the ordinary to justify a departure from the normal rule.

19. Steel Contracts v Simons included an application for an extension of time within which to seek prerogative relief from an adjudication decision, under r 3557 of the CPR, which required special circumstances to be made out. Refshauge J found that it was not enough, of itself, to show the decision appealed from was demonstrably erroneous; it also needs to be demonstrated that the consequences of the error are very serious. Delay of itself is also not sufficient without more. His Honour considered the bar for “special circumstances” to be circumstances which are “unusual” or “uncommon”, rather than “extraordinary” or “exceptional”.

20. Justar Property also concerned an application for an extension of time within which to seek prerogative relief. In finding that special circumstances were not established in that case, Mossop J considered the issue of notice of the proposed application to be a relevant factor in determining whether special circumstances were made out.

21. The first defendant also relies on the decision in Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1998] QCA 414, as authority for the proposition that an applicant for stay of proceedings pending an appeal of an interlocutory decision must show: (a) a good arguable case on appeal; (b) that the applicant would be disadvantaged if a stay were not ordered; and (c) where there is a competing disadvantage to the respondent if a stay were ordered, that it is outweighed by the disadvantage to the applicant if a stay were not ordered (commonly referred to as the balance of convenience).

22. The case in Asia Pacific International concerned an appeal by a defendant against an interlocutory order of the Queensland Supreme Court to strike out the defendant’s defence and counterclaim. The defendant sought a stay of the order pending its appeal, on the grounds that were the matter to proceed to trial in the meantime, the appeal would be rendered nugatory given the issue of pleadings would become irrelevant at the completion of trial. That case was in the context of an appeal from an interlocutory decision (in respect of which the authorities are clear as to the reticence with which an appellate court will approach interference with such a decision, particularly one that is of a discretionary nature) as opposed to a separate application for prerogative relief.

23. As to the prospects of the review on merits, the first defendant concedes that the operation of the “public works” third-party ACAT review exemption in Pt 6.2 of Sch 6 of the Planning Act was a matter of some controversy in the hearing before the Tribunal on the interlocutory application, but contends that the merits of the plaintiff’s case at first instance were not particularly strong. It argues that the question of whether the plaintiff has a good arguable case on appeal is also dependent on the likelihood of leave for an extension of time to file the appeal being granted.

24. The first defendant also contends that in circumstances where a right of appeal lies from a decision of the Tribunal pursuant to s 86 of the ACAT Act, proceedings for prerogative relief should be discouraged. In that regard, it relies upon the decision of the Western Australian Court of Appeal in Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; 32 WAR 501 at [3] and [6].

25. As to balance of convenience issues, the first defendant submits that the balance of convenience does not favour a stay. It highlights the fact that it has been put to the time and expense of preparing its case in accordance with the Tribunal’s directions, in circumstances where the plaintiff allowed them to do so. It is only after the first defendant has been put to that expense, that the plaintiff makes the present application. The first defendant notes that in the context of the Tribunal directions, the plaintiff opposed a longer timetable. Its ultimate submission is that if a stay is granted, the plaintiff will receive a disproportionate amount of time to prepare its case, armed with its knowledge of the first defendant’s case.

26. I note that in this context the court is concerned with the necessity of a stay as a consequence of the irremediable adverse outcomes flowing from the failure to impose one, as opposed to simply weighing the relative inconvenience to each of the parties: see Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85 at [5].

27. On the topic of delay, the first defendant submits that it is not a forceful matter, in circumstances where a fundamental aspect of the DA concerning the retirement village itself remains under review.

28. Finally, in relation to prejudice flowing from the incurring of costs in preparing the case before the Tribunal, the first defendant submits that the issue of costs cut both ways. The first defendant has already incurred its costs, and it suffers no lesser prejudice where the matter proceeds before the Tribunal and the plaintiff is ultimately unsuccessful.

The plaintiff’s reply

29. The plaintiff's position on leave is that it is not required, as each decision of the Tribunal in the proceeding triggers a further 60-day time period within which an application for judicial review may be made.

30. As to the issue of leave, the plaintiff relies upon the decision of the ACT Court of Appeal in DPP v Martin [2014] ACTSC 104; 9 ACTLR 1 at [153]-[157] in submitting that there is no material difference between the test under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and under the CPR, and that evidence of “special circumstances” is not required. The test under the ADJR Act does not include reference to “special circumstances”. The plaintiff referred to the following passage from DPP v Martin at [157] as supporting the proposition that there is no requirement for there to be special circumstances for leave to be granted extending the time for filing of an application for prerogative relief: Neither the ADJR Act nor the Court Procedures Rules impose any fetters on the exercise of the discretion. Ultimately, the only issue is whether it is in the interests of justice to grant the extension. As the Full Court of the Federal Court said in Jess v Scott [(1986) 12 FCR 187] at 188: [L]eave to appeal out of time is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula[.]

31. In respect of the West Australian authority relied upon by the first defendant and the appropriateness of an application for prerogative relief, the plaintiff notes that the decision is distinguished as there is no right of appeal from an interlocutory decision of the Tribunal. As such, its only avenue for review of the decision dismissing its application was by way of judicial review.

32. The plaintiff submits that the decision in Asia Pacific International is distinguished as it concerned an interlocutory court, not the Tribunal, and the review in that case was in respect of a matter of practice and procedure, not jurisdiction.

33. Finally, as to prejudice, the plaintiff submits that the continuation of the proceedings in the Tribunal where a stay is refused leads inevitably to prejudice for all parties in terms of cost and delay. That does not alter its contention that there will be prejudice that is unable to be remedied where a stay is not implemented.

The position of the second defendant

34. The second defendant consents to a stay of the ACAT proceedings, on the condition that the order is amended to make clear that it refers to these particular ACAT proceedings.

Is an extension of time required under r 3557(4) of the CPR?

35. I am satisfied that the application was filed outside of the time provided for by the CPR on the basis that the grounds for the grant of relief sought first arose at the time of the Tribunal’s decision to dismiss the plaintiff’s application. On one view of the evidence, that is a generous interpretation from the perspective of the plaintiff, given that an established want of jurisdiction would first have created grounds for the grant of relief at the time of filing of the application by a third party seeking review of the decision of the second defendant.

36. An extension of time is therefore required and the requirements of r 3557 must be satisfied. The likelihood of leave for an extension of time being granted is relevant to the determination of whether the plaintiff has a good arguable case on appeal. Has the plaintiff demonstrated special circumstances within the meaning of r 3557(4)?

37. I do not accept the plaintiff’s submission that DPP v Martin supports the proposition that the plaintiff is not required to demonstrate special circumstances in applying for leave under r 3557. Read in context, it is clear that the Court of Appeal considered that the requirement of special circumstances did apply to the test under the CPR and turned its mind to this question at [155]. The Court did not consider the presence of special circumstances controversial and therefore did not address the issue in detail. The extract at [157] instead refers to the flexibility of consideration available to the court in deciding subsequently whether to exercise the discretion to refuse prerogative relief.

38. The meaning of “special circumstances” for the purposes of an application seeking to extend time in respect of a prerogative relief order was considered by Refshauge J in Steel Contracts v Simons at [51]–[61] and I adopt his Honour’s summary of the relevant authorities. They support the proposition that the words do not lend themselves to exhaustive definition or to the identification of strict criteria that must be satisfied in every case. However, a number of matters are clear: (a) The facts of the particular case must be assessed objectively with a view to determining whether the case, rather than the applicant, establishes special circumstances. (b) Error alone is unlikely to satisfy the requirement, but it may be a relevant consideration. (c) “Special” should be considered in terms of that which is unusual or uncommon, rather than extraordinary or exceptional.

39. For the reasons that follow, I consider the evidence that has been placed before me to fall short of establishing special circumstances: (a) The plaintiff has elected not to put any material before the court providing an explanation for the delay in the filing of its originating application, albeit a relatively short delay. That leaves open the prospect that the delay was a consequence of forensic choice on its part, given that the application was filed a week after receiving the evidence and submissions of the first defendant in the Tribunal proceedings. (b) Notwithstanding the effluxion of time between the dismissal of the plaintiff’s application before the Tribunal and the filing of this originating claim, there is no evidence that notice of its intention to bring this application was given to the responding parties at any time prior to the filing of the originating process. (c) Whilst I accept that an arguable case of error in decision-making is established, that factor alone is insufficient to constitute special circumstances. (d) The plaintiff has failed to establish any aspect of the case that it brings that warrants the descriptor of uncommon or unusual.

Conclusion

40. I am therefore not satisfied, in circumstances where the plaintiff has failed to establish the special circumstances for an extension of time in respect of its application for prerogative relief, that this is an appropriate matter in which I should exercise the discretion to order a stay of the ACAT proceedings.

41. The plaintiff’s application for a stay of the ACAT proceedings is dismissed. I will hear the parties as to costs and any consequential orders.

Orders

42. The orders of the Court are: (1) The plaintiff’s application for a stay of ACAT proceedings AT 117/2025 is dismissed.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: