MM Constructions (Aust) Pty Ltd v Port Stephens Council

Court of Appeal (NSW)|2012-09-21|Before: Allsop P, Basten JA, Bergin CJ, Johnson J

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 Category: Principal judgment Parties: MM Constructions (Aust) Pty Ltd (First Appellant) Milan Maruncic (Second Appellant) Port Stephens Council (Respondent) Representation: B M J Toomey QC and E G Romaniuk (Appellants) M J Joseph SC and S Glascott (Respondent) Creagh and Creagh (Appellants) DLA Phillips Fox (Respondent) File Number(s): 2012/19108 Decision under appeal Jurisdiction: 9111 Citation: [2011] NSWSC 1613 Date of Decision: 2011-12-22 00:00:00 Before: Johnson J File Number(s): 2008/289298

Judgment 1ALLSOP P: The appellants appeal against orders made by the Supreme Court entering verdict and judgment for the defendant, the respondent in this Court (the "Council"), on a statement of claim alleging actionable negligence and misfeasance in public office. 2The plaintiffs, the appellants in this Court, were a company engaged in land development, MM Constructions (Aust) Pty Ltd ("MM"), and its principal, Mr Milan Maruncic. The negligence and misfeasance were said to have been committed by an officer of the respondent Council (Ms Amanda Gale) in her handling of a development application and subsequent modification applications concerning a development proposed by the appellants at Church Street, Port Stephens. 3The claim in negligence was founded on an asserted duty upon the Council (referred to as the Defendant in the reasons of the primary judge) in the conduct of its handling of the development application to act with reasonable care so as to avoid the infliction of financial or economic loss to the appellants. 4The claim for misfeasance in public office was less than clearly articulated. For present purposes it can be summarised as follows: Ms Gale deliberately delayed the progress of the application knowing the financial position of the appellants to be precarious, did not genuinely and honestly try to assess the application and deliberately provided crucial information to the Council for its decision-making which she knew to be false or misleading in an important respect, all in order to cause harm to the appellants. The understanding of the primary judge as to how the misfeasance case was put was set out at [218] of his reasons, which is extracted below. 5The primary judge dismissed the claim for negligence on the ground that the respondent owed the appellants no duty of care. He was correct to do so for the reasons expressed below. 6The substantial complaint of the appellants in this Court was the asserted failure of the primary judge to engage with the evidence relevant to the issues for disposition. It was submitted that his Honour did not deal with breach of duty satisfactorily on the hypothesis that he was wrong on the question of the existence of a duty. Given, however, that his Honour was correct on breach of duty, that complaint can be put to one side. I am alive to the comments of the High Court in Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [12] and like comments in other cases. In my view, the task involved in analysing the question of breach of duty on the hypothesis that I am wrong on the absence of a duty of care does not warrant a significantly longer judgment and the time to undertake that task. 7The primary focus on appeal was whether the primary judge engaged satisfactorily with the evidence that concerned the misfeasance case, in circumstances where delivery of judgment took place 12 months after the conclusion of addresses and 15 months after the conclusion of the evidence. Monie v Commonwealth of Australia [2005] NSWCA 25; 63 NSWLR 729 was relied upon. 8For the reasons that follow the appeal should be dismissed. 9Before commencing with the factual chronology something should be said about Monie and the application to adduce evidence on appeal. In that case at [43], Hunt AJA set out various paragraphs in which he sought to distil from the cases dealing with delay by a trial judge in the delivery of reasons the proper approach of an appeal court. I will not set them out beyond paragraphs (5)-(7) and (9): "(5) But the trial judge's advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay. (6) If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge's finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding. (7) The consequences of significant delay in delivering judgment are not limited to the judge's failure to use the advantage given to a trial judge of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. With the emphasis placed for some years now on the need for cases to be resolved expeditiously - not only for the benefit of the parties to that particular case but also for the benefit of the parties in other cases waiting to be heard - the judge who has delayed, for whatever reason, giving judgment in the particular case will inevitably be subjected to considerable pressure to complete and deliver the judgment. ... (9) And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party's arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning." 10Bryson JA agreed with Hunt AJA. Giles JA did also, subject to matters his Honour set out at [2]-[4]. These matters may be seen to be implicit in what Hunt AJA was saying. 11Delay is regrettable. The "sorry tale" (to quote Giles JA) of the delay in Monie is set out in detail in the reasons of Hunt AJA at [36]-[42]. The delay was 17 months. The deep deficiencies of the judgment in that case in its grappling with the issues are recounted by Hunt AJA and need not be repeated here. Implicit in Hunt AJA's reasons and explicit in Giles JA's reasons is the importance of the quality of the work produced by the judge in assessing what may be seen to be the operative effect of the delay. 12At the commencement of the appeal, leave was sought to lead evidence of Mr Pearson, the solicitor for the appellants, about the months prior to the delivery of the judgment. Paragraphs 1-7 of the affidavit were in the following terms: "1. I am the Solicitor for the Appellants. 2. By this Motion the Appellants seek leave to adduce fresh evidence at the Appeal to be conducted on 20th and 21st September 2012. 3. The first ground of appeal in the Amended Notice of Appeal is that there was an operative delay in delivery of Judgment, which had an adverse effect on His Honour's ability to judge issues of fact and expert evidence important to the decision in the case. The evidence was concluded in September 2010, with Judgment delivered at 2 pm on 22 December 2011. 4. The Appellants submit that not only is there objective delay, but there is a concern that His Honour's workload leading up to delivery of Judgment also impacted upon His Honour's ability to judge issues of fact and expert evidence. 5. In November 2011 I telephoned His Honour's Associate to enquire as to whether it was anticipated that Judgment would be delivered before the end of Term. My enquiry was prefaced with the statement that if it was not appropriate that I make this enquiry, His Honour's Associate should advise me of that and my request would proceed no further. His Honour's Associate did however advise me later that day that it was anticipated that Judgment would be delivered before the end of Term. 6. I have caused a search to be made of Judgments delivered by His Honour in the period immediately preceding Judgment. I have identified 16 cases in which His Honour was involved in Judgments delivered in the Court of Criminal Appeal and the Supreme Court, between 11 November 2011 and 20 December 2011. The cases identified have been tabulated in a form of the document annexed hereto and marked 'A'. 7. The Appellants seek leave to adduce evidence of His Honour's workload in the period immediately prior to delivery of Judgment, as summarized in Annexure A, as evidence relevant to the issue of His Honour's capacity, given His Honour's heavy workload, and given the delay, to give proper consideration to the evidence." It is unnecessary to set out the case names listed in Annexure A. 13The application to adduce the evidence in the appeal was rejected. 14None of the paragraphs were probative of any relevant matter. His Honour can be taken to be a member of the Common Law Division, and busy. No fact in those paragraphs made it more likely that his Honour rushed the judgment just to get it out (as was the inference in Monie) or less likely that his Honour had, in the time available to him, been working with all due diligence on the large mass of evidence since the trial. His Honour made no express statement as to when he came to his views of Ms Gale's credit worthiness, but given the character and nature of that assessment (to which I refer below) it is difficult to see why it must not have been readily made at or about the time of the conclusion of the hearing and the consideration of the written submissions.

The factual outline and the reasons of the primary judge 15The following outline is taken principally from the reasons of the primary judge at [49]-[197] of his reasons. Complaint was made that his Honour merely worked through the documents in a chronological way not engaging with the evidence. That criticism should be rejected. His Honour was required, as this Court is, to consider very serious allegations of malicious behaviour asserted against Ms Gale. A complete factual context must be drawn and appreciated in order to make that assessment. Thus, as his Honour did, I set out below the factual material in a coherent chronological way in order that Ms Gale's conduct be assessed in its context. 16In 1999 and 2000, Mr Maruncic planned the building of a luxury apartment development in Port Stephens on land he owned in Church Street, to be known as "Milan Towers". 17In 2000, he submitted a development application to the Council for the construction of the buildings as two five-storey residential towers with 25 apartments. The buildings were 15.7 metres above natural ground level. 18On 29 May 2000, approval was given by the Council, subject to conditions. The giving of that approval involved obtaining the approval of the Director of the Department of Urban Affairs and Planning as to the height of the building, cl 58(1) of the Hunter River Environmental Plan (the "HREP") requiring the concurrence of the Director for buildings over 14 metres. 19Demolition and construction began soon thereafter. Work ceased in March 2003 by reason of an injunction obtained by a neighbour. The injunction remained in force until December 2004. 20Meanwhile, in 2002, the Council gave approval for a nearby development at Donald Street (Nos 65-67), Nelson Bay, for 15 serviced apartments. That development has not proceeded. In February 2005, the Council, over the objection of Mr Maruncic and his companies, gave approval for a seven storey residential development called "Cote D'Azur", also in Donald Street (No 61). This comprised commercial premises, tourist units, residential units and parking. It was completed in February 2007. 21In August 2005, the Council, again over Mr Maruncic's objection, approved a third development application for another part of Donald Street (No 63) for the development of residential units, shops and parking. Mr Maruncic considered that these developments would compromise the viability of Milan Towers, unless its development was altered. 22From 2001 to 2005, the Council granted approval to eight development modification applications in respect of Milan Towers. One aspect of those approvals, which are otherwise uncontentious, should be noted. The last modification concerned the height of Milan Towers. Approval was given to a maximum height of approximately 18 metres. Ms Amanda Gale, whose conduct was at the centre of the criticisms by Mr Maruncic, had recently been appointed "Development Co-Ordinator". This modification application was her first involvement with Milan Towers or Mr Maruncic and his companies. This last modification application had been lodged in November 2004 and was approved on 21 April 2005. On 8 February 2005, Mr Maruncic wrote to the Council requesting an increase in height including one further floor and an increase in the number of apartments from 25 to 41. This proposal was the essence of the charge that was ultimately rejected and that became the subject of the proceedings. 23In May 2005, Mr Maruncic engaged Mr Warnes to assist him in the development. Mr Warnes was a very experienced town planner with experience in the private sector and the Department. 24On 23 June 2005, Mr Maruncic and Mr Warnes addressed a meeting of the Development Assessment Panel of the Council. Ms Gale was present, as were others from building and engineering departments. The minutes taken record the following (Mr Warnes' evidence being that it was Ms Gale who made these comments): "Propose to add an additional level raising overall height by approximately 2.5 metres. ... *Height - The proposal to increase the height by approximately 2.5 metres is considered a considerable increase and is unlikely to be supported. A SEPP1 objection to height was lodged with original Development Application and therefore, a further modification / increase in height is possible via a Section 96 modification to development consent. However, given the extent or increase in height, Council considers this would warrant a new development application. *Density - The proposal to increase the density of this development (from 25 units to 36 units) is considered a considerable increase and is unlikely to be supported. It does not appear that the original development application included a SEPP 1 for density, therefore, if the current density approved on this site is at its limit, then Council cannot accept lodgement of a Section 96 modification to Development Consent that includes a SEPP 1 objection to density. A new Development Application would be required in this instance. *Notwithstanding the above individual comments regarding height and density, it is advised that the proposed changes in their entirety (ie. increase in height and unit numbers) would not be considered to be substantially the same development. Therefore, on this basis a new development application would be required. *The land is within State Environmental Planning Policy No. 71 - Coastal Protection Policy (SEPP 71). Given Council considers the changes require the lodgement of a new application, the Minister would be the consent authority. Any new development application is to be lodged with the Department of Infrastructure Planning & Natural Resources." The relevant matters to note about this are the view then expressed of the substantial change to the development and the consequent need for a new development application. This was not ultimately how the relevant application went forward. Nevertheless, Mr Maruncic was aware of the issues of height and density to be addressed. 25Mr Warnes ceased to advise Mr Maruncic in September 2005, though he was later re-engaged. A Mr O'Connor (who had assisted in the Côte D'Azur application) thereafter began advising Mr Maruncic. Mr Warnes' view, of which he advised Mr Maruncic, was that a new development application was required and that what was proposed was not within s 96 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act"). In fact the application did ultimately proceed as one under s 96. The terms of s 96 and of other relevant statutory provisions, are set out later. (The debate about this issue of the suitability of the application to be approached under s 96 was a significant issue at the hearing.) 26Mr Maruncic met officers of the Department at the site of Milan Towers in July 2005 at a meeting arranged by Mr Warnes. He was told that in order to progress his proposal he should either write to the Department or obtain a refusal to the modifications from the Council. Between June and December 2005 Mr Maruncic was in contact with the Department about his proposal. 27In October 2005, Mr O'Connor advised Mr Maruncic against an application under Part 3A of the EPA Act (dealing with major infrastructure and other projects) and that the correct approach was to do a study reviewing floor space ratio, height and density. Mr O'Connor's services were terminated in November 2005. 28In November 2005, Mr Maruncic was told by the Department by letter that his proposal may be a matter to be dealt with under Part 3A of the EPA Act. The letter also dealt with the question of how he should deal with the height of the development. 29On 22 November 2005, Mr Maruncic wrote to Ms Gale at the Council explaining the proposed changes he said were brought about by the nearby developments. The letter sought the support of Council and the Department and concluded: "I would appreciate very much if you would advise me today or as soon as possible if Council will, or, will not, support the changes I propose." 30Two days later, on 24 November 2005, Mr Maruncic again addressed the Development Assessment Panel, which included Ms Gale. The minutes reflect the view then held by Ms Gale that the proposal fell outside a s 96 modification and that the Department was therefore the consent authority. The purpose of the Council's consideration of the matter, however, was explained to be that the Department wanted the Council's views on the proposal. Those views were negative to the proposal as follows: "In regards to the basis for lodging a new development application (being proposed changes to height and density), Council considers these changes to be major departures from both the original approved development application, the Tall Building Study, which formed the foundation for the height limit within the area and Council's Local Environmental Plan 2000 (ie. Clause 19 development standards). Therefore, Council would not support such variations and inconsistency with Council's policy . In regards to Council's Local Environmental Plan 2000, Clause 19 - Urban Housing developments in the Residential 2(c) Zone include: Minimum Site Area per Dwelling of 150m², Floor Space Ratio of 1:8:1 and Maximum Height Limit of 15.0m. Whilst Council supported variations to both height and density under the original application, a further variation and extent of variation to both height and density is considered unacceptable as stated above." 31After the meeting, Mr Maruncic wrote to Ms Gale pointing out that there were different methods of height measurement (a matter that became central to the litigation): "When (Port Stephens) Council calculate their height measurements, they measure from the floor of the basement to the top of the roof. When the Department of Environment and Planning calculate their heights they are measured from the original land level to the top of the roof. Therefore, there is a difference of one floor level. According to Council my last amended plans are two floors above and according to Dept of Land & Environment I am only one floor higher. My original approval from the basement to the top of the roof was 18.3m, my present height is 23.5m. So the difference is 5.2m, or, according to the Dept of Land & Environment, 2.7m higher than what I had approved earlier." This question of the different methods of measurement was to assume some importance. 32By December 2005, Mr Maruncic had the minutes of the meeting and sent them to the Department requesting a meeting with the Department to discuss his proposal. Mr Maruncic said in evidence that he was told orally by a Departmental officer that his proposal could be dealt with by the Council under s 96, a matter that he said was important and relevant to his decision to lodge such an application. On 23 January 2006, however, an officer of the Department wrote to Mr Maruncic, noting the Council's view that the proposal did not fall within s 96 and that a new approval was required, stating that given the scope of the proposal it might fall within Part 3A of the EPA Act and indicating some of the consequences of that. This view of the Department was founded on a view of the substantiality of the changes proposed. This, in substance, reflected Ms Gale's own views. 33After this letter, Mr Maruncic lodged, on 15 February 2006, an application under s 96. It is the consideration of this application and its refusal (in its final form) in June 2007 that is the focus of the complaints of Mr Maruncic about Ms Gale's conduct. The primary judge described the amendments to the original approval as follows at [92] of his reasons: "(a) an increase in the total number of units from 25 to 41; (b) an increase in the maximum height of the development by approximately five metres (from approximately 18 metres to approximately 23 metres) to accommodate an increase in the ceiling height of 100 millimetres per floor; (c) conversion of the first-floor apartments into parking spaces; and (d) the addition of balconies to the southern side." 34The application was lodged by Mr Maruncic personally at the counter, at which time a conversation took place with Ms Gale as recounted at [93] of the primary judge's reasons: "GALE: I have major concerns regarding the proposed changes which are a significant departure from the original approval. I expect there will be issues with lodgement of the variations as a Section 96 application as opposed to a new development. What you are proposing is a new development. MARUNCIC: I am going to lodge the modification application anyway and see how it progresses. I believe in the proposal. I do not want to have to lodge a new development application with the Department of Planning." The primary judge rejected Mr Maruncic's evidence that Ms Gale said that she would personally object to the application: at [94] of the reasons. 35Ms Gale was responsible for considering the application. By April 2006, she had formed the view that it should be refused and she proposed to issue a "Notice of Intent to Refuse", but before doing so she decided to seek legal advice from the Council's legal advisors, Sparke Helmore. On 10 April 2006, she wrote to Ms Dianna Grant at that firm setting out her reasons for refusing the proposal as a s 96 application, as follows: "1) The extent and nature of proposed modifications are not considered to relate to substantially the same development as the development for which consent was originally granted and, therefore, [are] considered outside the scope of a Section 96 modification application pursuant to the Environmental Planning and Assessment Act 1979. 2) The development does not comply with Council's Minimum Area per Dwelling (ie. density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable. 3) The development does not comply with Council's Height development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable. 4) The development is contrary to the public interests and expectations of an orderly and predictable built environment." She described the various changes made to the original application as follows: "The original development consent was issued for 25 Medium Density Units on 29 May 2000. The development was configured in two separate building blocks - Block A & B. The current s 96 modification relates to:- - an increase in no. of units (from 25 approved) to proposed 41 units (by large front units being converted into two units, some of level 4,5 & 6 units have been changed from 1 & 2 units into 3 units per floor and increase in height / level will provide for remaining extra units). - change in height of minimum 4 metres and up to 5 metres. - changes have affected Block A - 3 floors and Block B - 4 floors - propose to provide adequate visitor parking by removing pre-approved units on the lower levels and replacing them with parking. - a series of new balconies for extra open space have been proposed to Block A & Block B. The building footprint doesn't actually change, however [the] added floors/levels and a change in roofline, along with extra balconies, I assume to provide open space for additional units, contribute to the unacceptable increase in height and density involved in this s 96 modification." It is to be noted that Ms Gale's concerns included the substantiality of the changes taking the proposal outside s 96 (in line with the view of the Department provided to Mr Maruncic), the height and the density of the proposal. 36Sparke Helmore advised by letter of 21 April 2006. The advice principally concerned the meaning and operation of s 96, in particular the phrase "substantially the same development" in s 96(2)(a), and the question whether the application fell within s 96 or not. The advice was contrary to the apparent view of the Department, the view of Ms Gale and that which Mr Warnes had communicated to Mr Maruncic, and was expressed as follows: "In our view, and having regard to existing case law, the current Application does not change in a 'material or essential' way the development approved by the Original Consent (as currently modified). We consider that Council would have difficulty supporting an argument before a Court that an increase in the number/height of the apartments constitutes a material or essential change to the approved development. It remains open for Council to refuse the Current Application on the merit grounds - namely non-compliance with height and density standards." 37On 28 April 2006, the Council sent a Notice of Intent to Refuse the application identifying three reasons, being the second to fourth paragraphs in the draft letter to Sparke Helmore referred to in [35] above. 38The application under s 96 was, in any event, deemed refused on 27 March 2006 by the operation of s 96(6) and the regulations. An appeal was thereupon available to MM, as a class 1 appeal under s 17(d) of the Land and Environment Court Act 1979 (NSW). At no time was any appeal lodged. This decision was made by Mr Maruncic in consultation with Mr Warnes. 39Mr Maruncic wrote to the Council on 23 May 2006 listing further amendments and providing some amended plans. On 1 June 2006, Mr Warnes, by this time once again acting for Mr Maruncic, sent an email to Ms Gale saying that he had left a number of messages at the Council "over the last few weeks" for her to call him. He also stated that he had reviewed Mr Maruncic's submission and he was "concerned that he [Mr Maruncic] has not given [the Council] sufficient information to make the application competent". 40The plans were publicly exhibited by the Council in May and June 2006 and in early June the application was advertised. 41Mr Maruncic lodged further plans on 1 July 2006; and Mr Warnes supplied the Council with further plans and explanatory material under cover of letter dated 7 July 2006. Mr Warnes' letter dealt in particular with height in relation to the surrounding developments. Mr Maruncic was by this stage lobbying relevant councillors. 42On 7 July 2006, Ms Gale prepared a draft letter raising a number of concerns for Mr Maruncic to address regarding his application. It was not sent until 1 August 2006. 43On 17 July 2006, Mr Warnes wrote to the Council identifying a reduction in the number of units by two and an increase by seven of car parking spaces and stating that plans covering these would be submitted. 44On 18 July 2006, Ms Gale sent a memorandum to relevant (East Ward) councillors. The primary judge set out the relevant parts at [116] with emphasis: "The Department of Planning have a concurrence role in respect of developments proposing a maximum height (above 15m) pursuant to a Tall Building Clause within the Hunter Regional Environmental Plan 1989. Therefore, a number of the development applications assessed by Council as identified on plan have required the Department's concurrence. In assessing and providing their concurrence to the proposed maximum heights of these buildings, the Department is measuring height from Natural Ground Level only. In contrast, Council is assessing height in accordance with the height definition pursuant to LEP 2000, whereby height is measured from either Natural Ground or Finished Ground Level (whichever is the lower). This in turn results in different maximum heights being established. As advised previously, the extent of this proposed modification is considered unacceptable primarily in respect to increases in density and building height pursuant to LEP 2000 and relevant DCPs, which in turn raises concern that the development is contrary to the public interest . The applicant has indicated that they wish to provide additional information to support their application and has requested Council's advice as to the deficiencies of the application and main areas of concern. This written advice is currently being finalised and essentially aligns with the reasons for refusal as outlined in the Notice of Intent to Refuse issued by Council. It is noted, however, that the applicant has been advised that whilst information submitted with the modification is deficient, the main reasons for refusal relating to proposed increase in density and building height are excessive variations, which are unlikely to be capable of justification through submission of additional information. Recommendation/Conclusion: Confirmation is sought as to whether the Section 96 modification is required to be forwarded to full Council for full determination. Alternatively, if able to be determined under delegated authority within the Sustainable Planning Group, the recommendation is maintained that the modification be refused." The issue of "concurrence", that is, the role of the Department having to approve any increase in height as well as the Council, because of the original requirement of Departmental height approval (above 15m), was important at the trial, though it fell away during the hearing of the appeal. Further, the statement that Maruncic had been advised as referred to in the third paragraph (the second emphasised portion) above was controversial at the trial and on appeal and heavily relied upon by the appellant in seeking to demonstrate Ms Gale's bad faith. 45Further plans were lodged with the Council on 20 July 2006. 46On 27 July 2006, one of the relevant councillors wrote a letter to Mr Maruncic that was sympathetic, but that reflected real concern with height (of 23 metres) "which is too far above our maximum of 15m". 47On 1 August 2006, Ms Gale sent a letter to Mr Maruncic substantially in the form of the draft prepared on 7 July, adding that discussions had been held with East Ward councillors and that height and density were the problems. The letter identified in some detail "concerns ... which need to be addressed". These are set out at [121] of the primary judge's reasons. They included height and density, as well as floor space ratio, increased traffic and a lack of shadow diagrams. Ms Gale also noted that the proposal had not yet been referred to the Department for height approval (so-called "concurrence"). As the primary judge found at [123], Ms Gale's view was that concurrence of the Department may be required. This was the first time this had been communicated to Mr Maruncic. The reasonableness of the view was a significant issue at trial. On appeal, it was accepted that her views in this regard could not be the subject of criticism. 48Mr Warnes gave Mr Maruncic advice on the 1 August 2006 letter (see [125] of the primary judge's reasons) and on 22 August sent a detailed submission to Ms Gale. In particular he addressed issues of height and density, the primary judge extracting the following at [126] (emphasis made by his Honour); "Following upon discussions with both Council Staff and East Ward Councillors the s 96 modification has now been reduced to seek approval to 40 units, a maximum height above natural ground level of 23.15 metres (Building A) and 23.1 metres (Building B) excluding the lift over run . The design of the upper floors has also incorporated a stepping in of the building at its upper levels to reduce its scale and bulk. The interpretation of the building from adjoining public places will not allow for a reading of the height of the buildings as 23 metre structures as they are set into the site below the street level such that Building A, the building set highest on the land, would read as a building of some 21.9 metres. It must be remembered that the measurement of height for the purpose of development is taken from natural ground level and not street level however impact is read from street level and the variation between absolute heights of 1 to 2 metres would be imperceptible to the human eye." 49Further plans were submitted a few days later. Mr Warnes maintained email contact with Ms Gale. Replacement plans were submitted. Mr Warnes stressed the relative height of the buildings, stating in an email of 4 September set out by the primary judge at [129] of his reasons: "Michael has had new plans and elevations prepared showing the relative heights of the development as fixed by a Surveyor that show the development does not exceed 21 metres at any location and that at most other points it is lower to somewhere at the lowest it being no greater than 15 metres above natural ground." 50A letter of 5 September 2006, set out at length by the primary judge at [130] of his reasons also dealt with the height issue and methods of measurement and the reduction of the height of the development from 25m above natural ground level to 19.8m, including a one metre reduction for top soil removal. 51After further plans were lodged, on 29 September 2006, Ms Gale forwarded the latest revised plans to the Department for concurrence. The primary judge set out at [133] the text of the covering letter revealing Ms Gale's state of mind. In that she said: "The current Section 96 Modification is the 10th modification to be lodged and the documentation submitted outlines the amendments as proposed, with the main changes relating primarily to an increase in density (ie. approved 25 units, now proposed 41 units) and increase in height (ie. approved 17.95m and proposed at maximum 21.8 metres). The application has been tentatively called before full Council for determination. Discussions with relevant Councillors continue, in order to determine whether the modification does require referral to Council for determination with internal assessment of the modification currently being undertaken." It can be accepted that this was Ms Gale's state of mind because of the primary judge's finding (to which I will come) about her genuine and honest involvement in the processing of the application. 52One of Ms Gale's colleagues, Mr Greenhalgh, sought concurrence on 16 October 2006. The primary judge noted at [135] the participation of other officers of the Council in the process, since the claim for misfeasance in public office was based on Ms Gale's actions alone. Mr Greenhalgh sought further information from Mr Maruncic in late October. 53On 30 October 2006, Mr Murphy of the Department, in a response to the Council's request for concurrence, stated that the Department was unable to give concurrence because it was a significant departure from the original approval and advised the Council to consider carefully whether it was appropriate to progress the application as a s 96 application. On 14 November 2006, Mr Murphy wrote again confirming that the Department was unable to provide concurrence. 54On 30 November 2006, Ms Gale once again sought the advice of Sparke Helmore. The principal reason for seeking the advice was to obtain a review of a draft set of reasons for refusal of the application. She also drew the solicitors' attention to the view of the Department contained in its letter of 30 October 2006 (referred to above) and sought confirmation of the earlier advice. 55Sparke Helmore responded promptly on the same day, 30 November 2006. They expressed disagreement with the Department's views and maintained the view that they had already expressed. The advice as to the draft reasons was short and to the point: "We note that, in any case, the Department's failure to provide concurrence means that Council has no power to approve the application. Therefore this point should remain in the reasons for refusal. In addition, the other 'merit grounds' listed in your draft reasons are very arguable, and ought to be included." 56As the primary judge pointed out at [145] of his reasons, these communications have significance because, as he said, they indicated that Ms Gale took (and apparently followed) legal advice. The primary judge also pointed out at [146] that other officers of the Council, Messrs Anson, Broyd and Greenhalgh, were "closely involved" in the process. For instance, Mr Broyd signed the Notice to Intent to Refuse the application issued on 30 November 2006. The reasons were recorded by the primary judge at [148], as follows: "1. The Department of Planning has not granted concurrence in relation to the height variation pursuant to Division 4, Clause 58 of the Hunter Regional Environmental Plan 1989. 2. The development does not comply with Council's Minimum Area per Dwelling (ie. density) development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable. 3. The development does not comply with Council's Height development standard pursuant to Clause 19 of Port Stephens Local Environmental Plan 2000, with the extent of variation to the standard considered unacceptable. 4. The development is contrary to the public interests and expectations of an orderly and predictable built environment." 57Issue was taken on appeal with the extent of the involvement of other Council officers. It can be accepted that Ms Gale was principally responsible for the day to day handling of the application and the drafting of relevant memoranda. The evidence did not, however, permit any conclusion that the other officers did not pay proper attention to their responsibilities in the handling of the application, or that Ms Gale could assume from their passivity that her asserted intention to harm Mr Maruncic would go unnoticed. 58Mr Maruncic sought legal advice and on 4 December 2006 his solicitor wrote to the Council. He challenged the need for Department concurrence; he also challenged the other reasons as unsatisfactory. The matter was said to be urgent. The urgency was explained in a letter three days later. The property was to be sold by auction on 13 December 2006 in a mortgagee sale. The property had been mortgaged in May 2004. In July 2005, notices under s 57(2)(b) of the Real Property Act 1900 (NSW) and statutory demands under the Corporations Act 2001 (Cth) had been served. The mortgagee took possession of the property on 13 November 2006. Mr Maruncic's solicitor said in his letter: "... The only way our client can stop the sale is to re-finance the mortgage, and the only way this can be done is if council provide him with the development consent that he has sought. The situation is therefore urgent. As indicated in previous correspondence, our client will look to council for any damages which he suffers as a result of the council failing to properly consider his application." 59The auction took place on 13 December 2006 and the property was passed in. 60Ms Gale sought advice from Sparke Helmore about the threat of legal action. She also prepared a draft response to Mr Maruncic's lawyer that was not sent. The primary judge used it as evidence of Ms Gale's state of mind: [154] of the reasons. Once again, the legitimacy of this was based on his acceptance of her evidence about her bona fides and honesty. On this basis, the draft revealed her view that the concurrence requirement was based on the height issue and that the variation as to density was unacceptable. 61Correspondence then followed as discussed in [155]-[158] of the reasons. On 30 January 2007, shortly prior to a meeting of the Council scheduled for 5 February 2007, Mr Warnes wrote to members of the Council urging them to attend and to hear Mr Maruncic. He said this about Mr Maruncic and the development: "Mr Maruncic is unlike most developers in that this project is his sole development and is the culmination of his ... work which is to see a building of significant Architectural merit and high private amenity constructed at Nelson Bay where he will live out his retirement years. Unfortunately due to the significant delays that have been encountered in this matter Mr Maruncic now faces the prospect of having his financiers sell him up if he cannot get this matter resolved as quickly as is possible." 62On 5 February 2007, Ms Gale sought further clarification from the Department about its view that concurrence would not be issued, based on the Department's view that the application was not properly to be dealt with under s 96. She stated that the advice she had was that the matter could be dealt with under s 96. A response was received on 12 February 2007 from the Department that reiterated its view that this application was a substantial departure from the original approval; but that if the application was to be dealt with under s 96 the Council did not require concurrence from the Department. The primary judge discussed the significance of this correspondence with the Department at [164] as follows: "Thus, the Department of Planning indicated (contrary to views in earlier correspondence) that concurrence was not required for the Plaintiffs' s 96 application. That said, the Department of Planning response did not suggest that there was a clear-cut and obviously favourable outcome which should result for the Plaintiffs' s 96 application. To the contrary, the Department of Planning used guarded language and expressed concern about the scale of the application. It might be thought that this would have the effect of maintaining a degree of caution on the part of officers of the Defendant, including Ms Gale. Given the Plaintiffs' causes of action, this is a pertinent consideration." 63By mid-February 2007, the application had been called to the Council for decision; and on 13 February 2007, Ms Gale sent a long email to all councillors to advise them of the current status of the application. In it she asked that the application be refused under delegated authority, rather than by the full Council. 64In anticipation of the matter going to Council, on 14 February 2007, Ms Gale once again sought confirmatory advice from Sparke Helmore about two matters: "- the validity of lodgement of the s 96 application as opposed to a requirement to lodge new DA; - clarification of the concurrence role requirements for s 96 applications." 65Within five days, Sparke Helmore responded, once again stating their view that the application fell to be considered under s 96. Their view was supported by reference to a number of court decisions. The subject of concurrence was also dealt with. The solicitors advised that no separate concurring approval from the Department was required under cl 58 of the HREP by reason of the height of the buildings. Thus, the application was for the Council only to approve or not pursuant to the power in s 96 of the EPA Act. 66The primary judge remarked on the course of events to this point and the roles of Sparke Helmore and the Department in their provision of advice to Ms Gale at [169] of the reasons, as follows: "I note that it was not until this point that the Defendant was provided with legal advice from Sparke Helmore that Department of Planning concurrence was not required. Whatever may be said concerning the views of the Department of Planning which had been expressed, and the legal advice which had been provided by Sparke Helmore to the Defendant up to this time, it is difficult to see that the course of events up to this point materially assists the Plaintiffs in their causes of action against the Defendant based upon the suggested acts and omissions of Ms Gale. Ms Gale, who was not a lawyer, had taken independent legal advice and communicated with the Department of Planning. It is difficult to see how the fact that the legal advice changed, and the Department of Planning altered its view on the need for concurrence, may be (in some way) sheeted home to Ms Gale." 67At [170]-[172] of the reasons, the primary judge described some of the communications among Ms Gale and the other Council officers about preparing a report for a March meeting that was described as a "deadline". The correspondence reveals a degree of business-like attendance to the processing of the application for a decision in March. 68Meanwhile, Mr Warnes enquired about progress. 69On 26 February 2007, solicitors acting for the mortgagee in possession purported to withdraw the s 96 application. Sparke Helmore advised the Council that its consideration should continue whilst seeking evidence to assess the legitimacy of the actions by the mortgagee's solicitor. This development brought a defensive response from Mr Maruncic, which was dealt with by the primary judge at [177]-[179] of the reasons. 70On the evening of 13 March 2007, the application was considered by the Combined Strategic/Operations Committee of Council. On that very day, Mr Warnes sent an email to all Councillors which included a letter of three pages that he described as "a last desperate plea". This letter refers to a report to be considered by the Committee. That report was dated 9 March 2007 and was sent to "All Councillors & Executive Group" under Mr Anson's name, although Ms Gale was involved in its preparation. Also on 13 March, Mr Warnes sent additional information to Mr Anson and Ms Gale. This material in March can be seen to have been made available to Mr Warnes to comment upon. Consideration of the application was deferred because of the receipt of this further information to allow for its assessment. 71On 20 March 2007, further plans were lodged by Mr Maruncic for a 38 unit proposal and a height reduction. These plans were then publicly exhibited from 29 March to 11 April 2007. 72Meanwhile, on 30 March 2007, contracts were exchanged for the sale of the property by the assignee of the mortgagee in possession. It was accepted on appeal that from this date there was no causal relevance of any impugned conduct of Ms Gale. It assumed only an evidential significance, throwing light upon her earlier alleged conduct of delay and deliberate refusal to examine the application honestly. 73On 5 April 2007, Mr Warnes wrote to the Council concerning information that Mr Maruncic was delivering that day to the Council which concerned the height of the buildings. It was information from the surveyors Fagan Mather Duggan. The primary judge referred to Mr Warnes' letter at [187] of the reasons. The letter included the following: "The information relates to survey and height deduction undertaken by local Survey firm Fagan, Mather Duggan Pty Ltd in relation to the amended plans and the height of the proposed development in respect of natural ground and that of the adjoining approved development. In summary the information provided by the Survey firm confirms that the heights of the development now proposed by Michael Maruncic are 22.17 metres for block A (closest to Church Street) and 22.93 metres for Block B. These reductions in heights are achieved from the earlier proposals by the reduction in floor to ceiling heights and the removal of the lift overrun by including the lift motor within the lift itself using the latest design of lift available that does not require lift tower placement above the last habitable floor. These heights when compared to the development already approved and which adjoins the subject land to the east show that Building A is lower than the already approved adjoining building and that Building B whilst nominally higher than the adjoining building at 22.93 metres is likely to be lower than that adjoining building as the only plans available to the Survey Firm of that adjoining building indicate the Lift Tower as a half height overrun whilst the completed development has a lift that now exits on the roof level deck area and is therefore likely to be some 2 metres higher than both of Mr Maruncic's proposed buildings. I understand that the number of units has been also been reduced to 38 and that the provision of car parking now exceeds Council's requirements." 74The primary judge referred at [188] of the reasons to the letter of the surveyors of 4 April 2007 and the controversy as to whether the Council and Ms Gale had it in their possession, as follows: "In this letter, Mr Warnes referred to information provided by Fagan Mather Duggan Pty Limited. The evidence demonstrates that Mr Maruncic and Mr Warnes had been provided with a letter dated 4 April 2007 from Mr Mather (Exhibit E, Tab 45). There is controversy as to whether Mr Mather's letter was provided to Ms Gale and the Defendant or whether Mr Warnes' letter of 5 April 2007 was the only source for this information. I accept the evidence of Ms Gale that it was not received by the Defendant. The letter is not contained in the Defendant's records and Mr Warnes' letters do not assert that he supplied Mr Mather's letter to the Defendant. The real issue, however, concerns the relevance and the utility of the information conveyed by Mr Warnes (based upon Mr Mather's document) to the process of determination by the Defendant with respect to the Plaintiffs' application." There was no appeal from the finding that Ms Gale and the Council did not have Mr Mather's letter of 4 April in their possession. 75The questions of the height of the building, and the comparative height of the building compared with Côte D'Azur and the effect of these matters on the decision of the Council, including by reference to the letters of early April 2007, were the subject of focus both at trial and on appeal. In this context, the findings at [189]-[190] should be noted: "[189] What is clear is that Mr Mather's letter did not purport to be a survey of either 'Milan Towers' or 'Cote D'Azur'. Mr Mather agreed that there was no survey involved, with his involvement being 'just a review of plans' (T571.49). Mr Mather explained the process which he undertook in his evidence. I accept the submissions for the Defendant that, in light of his evidence, Mr Mather did not purport to undertake an accurate height measurement of the size of 'Cote D'Azur'. Mr Mather's letter dealt with the size of 'Cote D'Azur' from basement to the top of the lift overrun, without regard to relevant LEP definitions of 'height' in accordance with the decision of the Court of Appeal in Port Stephens Council v Chan Industrial Pty Limited [2005] NSWCA 232; 141 LGERA 226. The size of 'Cote D'Azur' was estimated by Mr Mather to be 22.7 metres high. He achieved this figure by a process of assumption and additions so as to give rise to an estimate. [190] Although a considerable amount of time was taken up at the hearing, and in submissions, addressing the role of Mr Mather's letter in this case, I do not, in the end, consider that it plays any significant part. In particular, I do not think that the letter demanded the approach submitted for the Plaintiffs. It was not essential that the information contained in Mr Warnes' letter (by reference to Mr Mather's letter) be included in papers that were provided ultimately to Councillors as part of the decision-making process. I am certainly not persuaded that the omission of reference to Mr Warnes' letter supports a conclusion that Ms Gale was, in some way, seeking to suppress this information from Councillors." 76On 10 April 2007, further plans were received by Council, otherwise unexplained by any correspondence. On 11 April 2007, a letter from the Council to Mr Warnes (drafted by Ms Gale) stated that the Council was in the process of finalising consideration of the matter. The letter sought confirmation of the relevant information, stating: "During the preparation of this supplementary information, a further revised set of plans has been submitted (received 22nd March 2006) which is the revised plan that is being reviewed for the purposes of Council's request and is the revised plan which is currently being re-exhibited. This set of plans generally incorporated changes to density (now 38 units), height, removal of the lift overrun and carparking, and included revised documentation (received 5th April 2007) confirming by survey the maximum heights for this development. Council is in the process of finalisation [of] the supplementary information required to be completed by the end of this week and forwarded to Councillors for their consideration of this item at the Ordinary Meeting of 24th April 2007. However, on the 10th April 2007 a further set of revised plans has been received without a covering letter explaining the changes (noted in red) on plan. There would appear to be only several small changes (noted in red) which are difficult to read. As outlined above, Council is concerned with the numerous revised sets of plans received over time for this proposal and the difficulty in assessment and preparation of information for Council. Given the timeframes associated with finalising this information and re-exhibition of the proposed plans, Council requests your confirmation of the relevant plans for this proposal. Further, it should be noted that submission of further revised plans may result in deferral of this matter beyond the Ordinary Council Meeting in April." 77Mr Warnes responded that the plans that had been advertised were those that were relevant. 78Objections were received in April and May 2007: [191] and [194] of the reasons. Mr Maruncic wrote directly to Council members about these objections and about supporting his application: [195] of the reasons. 79The application came before the Combined Strategic/Operations Committee on 12 June 2007. A report of Mr Anson was before the Committee. It can be taken to have been prepared by Ms Gale. It recommended that Council not support the application and that it be delegated to the general manager for decision. On 12 July 2007, Mr Maruncic was advised that the application was refused, the reasons being stated to be its height, density, public interest and parking and traffic aspects.

The negligence case 80The pleading of the case in negligence was in the following terms in an unnumbered paragraph in the pleading: "Alternatively the Defendant was well aware of the Second Plaintiff's reliance on its conduct and advices as to the alleged bona fide consideration of the application and the expense and hardship involved by the Second Plaintiff and as such owed a duty of care to refrain from conducting itself in a manner so as to allow the Second Plaintiff to believe that a bona fide decision on the merits of the application ('No 3 plans') would be made. The Plaintiffs allege the Defendant owed a duty of care to avoid foreseeable harm that would be caused by their actions in knowingly exceeding the limits of their authority and knowing the Second Plaintiff to be relying on their conduct as indicative of its authority to approve the aforesaid plans." 81On appeal it was argued that the Council owed the appellants a duty to exercise reasonable care to avoid foreseeable economic loss. Reliance was placed in particular upon Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515. The sufficiently close relationship necessary for the imposition of such a duty was said to be found here because of the following factors: (a) the need for the consent from the legislative framework; (b) the vulnerability of the appellants by virtue of the critical importance of the views expressed by Council officers, especially Ms Gale, to the outcome; (c) reliance by the appellants upon the good faith and non-negligent performance of duty by Council staff; and (d) the control vested in the Council over the property and the interests of the appellant by the power given by the statute. 82The statutory powers being exercised arose under the EPA Act, s 96, as part of Division 7 dealing with post development consent matters. Division 7 finds its place in Part 4 entitled "Development Assessment". Decisions about consent and variation to consent will, of course, be importantly influenced and to a degree controlled by the HREP and the relevant Port Stephens Development Control Plan. Section 5 of the EPA Act identifies the range of general considerations that a decision-maker will need to bring to bear upon any particular decision and its particular controlling legislation: "The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment." 83Section s 79C deals with the evaluation of a development application and was in the following terms: "(1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest." 84Section 96 deals with modification of consent and was in the following terms: "Modification of consents-generally (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6), section 96AB and Division 8 do not apply to such a modification. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) Threatened species Development consent of the kind referred to in section 79B(3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995, is not to be modified unless: (a) in the case of development referred to in section 79B(3)-the requirements of section 79B(3)-(7) have been complied with in relation to the proposed modification as if the application for the proposed modification were an application for development consent, or (b) in the case of development in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995-the applicant has made an application for modification of the biobanking statement in relation to the proposal and a new biobanking statement has been issued or the consent authority is satisfied that the modification will have no impact on biodiversity values (within the meaning of that Act). This subsection does not apply to State significant development. (6) Deemed refusals The regulations may make provision for or with respect to the following: (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (6A), (7) (Repealed) (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court." 85The primary judge referred to other aspects of the statutory context at [27]-[42] of the reasons. 86The power exercised by the relevant Council in a decision under a provision such as s 96 is not unconstrained. As public power, it is subject both to appeal and to judicial review. Section 96 does not provide for the exercise of power that cannot be brought to account. 87The power to be exercised involves the honest and bona fide attendance to questions, many of which involve the evaluation of interests and values either irrelevant to, or even inimical to, the financial and economic interests of an applicant. The power is a species of governmental power. 88In Caledonian Collieries Ltd v Spiers [1957] HCA 14; 97 CLR 202 at 220 Dixon CJ, McTiernan, Kitto and Taylor JJ stated that: "... the well-settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered". 89In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at 29 [62], McHugh J referred to this as a well-known or settled category of duty of care. As McHugh J pointed out in the same paragraph, the above passage in Caledonian Collieries was cited by Mason J in Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 458-9 as part of the following important passage concerning the relationship between a common law duty and a statutory power: "It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. The principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered (Caledonian Collieries Ltd. v. Speirs; Benning v. Wong) has been applied mainly to private Acts. However, it has been frequently applied in Australia to public authorities, notably public utilities, exercising powers under public statutes... While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority ..., the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law.... And, at least since the decision in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council, it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care." (most citations omitted) 90Neither Caledonian Collieries nor Heyman requires a linear or mechanical application of non-evaluative rules. The use of the word "may" by Mason J in the first line of the above extract from Heyman makes that clear. Neither case is the foundation for the broad proposition that any foreseeable loss of any kind from the exercise of any power, whatever its character, if exercised without reasonable care, is recoverable. A duty of some character must be gleaned as a matter of statutory construction or from the common law, in the context of the statute. No case of statutory duty was propounded by the appellants. 91A number of considerations need to be borne in mind about the imposition of a duty here: first, the damage sought to be recovered is for pure economic loss, being the interests of Mr Maruncic and MM in relation to the land and its valuable or productive use; secondly, consideration is required as to the conformance of the statutory responsibilities of the Council with the content of the putatively imposed duty of care and the prospective interests of the plaintiff to be protected as well as to the realm of public administrative law. 92As to the duty of care and economic loss, I said the following in Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102 at 126 [105] (with which Beazley and McColl JJA agreed): "The duty is to prevent or avoid economic loss, beyond that which it is reasonably necessary to cause in the proper administration of the Protection of the Environment Operations Act. The circumstances in which the common law will impose a duty of care to avoid causing pure economic loss have been the subject of considerable debate and uncertainty in Australia since Caltex Oil (Australia) Pty Limited v The Dredge 'Willemstad'. Since then, in a series of cases in the High Court culminating in Woolcock Street Investments v CDG (Bryan v Maloney; Hill v Van Erp; Esanda Finance Corporation Limited v Peat Marwick Hungerfords; Pyrenees Shire Council v Day; and Perre v Apand) the High Court has identified an approach based on the presence, in the particular circumstances, of 'salient features' that, when combined, constitute or reflect a sufficiently close relationship to give rise to a duty of care. Such salient features include the inherent likelihood of the production of economic loss (Caltex at 576) and assumption of responsibility and known reliance (Bryan v Maloney and the negligent misrepresentation cases). The most important of these features, however, is vulnerability, in the sense discussed in the joint reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ in Woolcock Street Investments v CDG at 530 [23]: '"Vulnerability"', in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, "vulnerability" is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.'" (Citations omitted) The first sentence of the above paragraph is to be read, of course, as the duty to take reasonable care to prevent or avoid economic loss. 93Here, as in Precision Products, it can be accepted that the negligent exercise of the power would or may cause economic detriment to the appellants. Delay in, or rejection of, a development approval can readily be seen to have economic consequences for a developer. There was, however, no relevant reliance, no assumption of responsibility and no vulnerability. Further, the posited duty does not conform to the statutory framework. 94The appellants did not rely on the Council for protection or assistance. They made an application to the Council for variation of a consent. They had available to them professional advice, including experienced town planning and legal advice. It was Council's task in its local government function to consider and process the approval. The evidence that Mr Warnes and Mr Maruncic "relied" on the Council officers doing their jobs competently and diligently was no more than a reasonable expectation of members of the public. No representation was made by them which might be seen to found any assumption of responsibility by the Council. No case was pleaded or run based on the Council assuming some responsibility upon which the appellants relied. 95The Council was not responsible for Mr Maruncic's financial predicament. Nor was it responsible for his decision, made with the advice of his professional adviser, Mr Warnes, not to exercise rights of appeal. 96For the same reasons, the appellants were not vulnerable. The paragraph from Woolcock Street Investments quoted above is apposite here. Clarity of foreseeable damage and of causal link does not necessarily lead to a conclusion of vulnerability. Vulnerability arises from the inability to protect oneself. Here the circumstances of a professional developer with appropriate professional advice and a legal regime under which challenge could be made to the decision in question does not bespeak vulnerability, to the contrary. 97Important to the appellants' complaints and argument was their asserted vulnerability to delay and the financial consequences thereof. The statute, however, in s 96(6) provides its own mechanism for protection from delay: deemed refusal in a time fixed by the regulations, and appellate rights from that time. 98Approval of a variation to a consent may be to the financial benefit of the applicant; a refusal would not be. Approval, however, may be to the financial detriment of a nearby landholder, and refusal to its benefit. In making a judgment about whether to approve or not, the Council must consider the broad range of interests public and private of the kind set out in the EPA Act, ss 5 and 79C. The power is exercised in that milieu of interests, including the environment, the public interest and the interests of other landholders. Thus, though the place of the applicant is not as starkly antithetical to the exercise of the power as was the party in Precision Products discussed at 127 [12] of that judgment, it can nevertheless be said that the breadth of the interests and considerations attending the decision to approve an application, or not, conflict or may conflict with the duty to take into account the interests of the applicant. The legislation lays down the balance of interests to be assessed by the Council. They are to be weighed in the exercise of public power. The balance is adjusted in that way. Giving a private right of action through an imposed duty of care based on an applicant's economic interest may tend to skew that balance. Further, if the applicant's economic interests were to be protected, why not anyone whose economic interests may be affected? The statutory balance, intended to be reached by the bona fide decisions of Council, may be affected by the consideration of private litigation by those who wish to threaten it. These considerations affect the assessment of a lack of vulnerability. They also point to a degree of lack of conformance, indeed potential conflict, between the public duty of the Council in making the relevant decision, and considering the application therefor, and a private duty to act with reasonable care to avoid causing economic loss to the applicant: cf Sullivan v Moody [2001] HCA 59; 207 CLR 562 at 581-582 [55]-[60]; Tame v New South Wales [2002] HCA 35; 211 CLR 317 at 335 [24]-[26], 342 [57], 425 [323]; and Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at 254-256 [111]-[118]. 99Further, there is the risk of lack of coherence with public or administrative law. This is not the issue of a certificate to enable a house to be built. It is an evaluative process that leads to a decision made as part of local government. Of course, the intentional tort of misfeasance in public office is available; but to make available the law of negligence, through the asserted duty of care, would risk incoherence with administrative law for reasons of the kind discussed in Precision Products at 128 [116]-[119] and New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 at 400 et seq. 100In Precision Products I said at [120] the following: "The above is not to deny the continued force of Caledonian Collieries v Speirs and like cases. When a Council examines a power to build a structure, approve a plan, give permission for an act or otherwise engage in activity, it may well be required (on pain of liability in damages) to exercise care in relation to someone who may be affected by the power's exercise. What tends to strike at the coherence of administrative law here is the positing of a duty to exercise reasonable care not to make a flawed decision by, for instance, failing to give procedural fairness or failing to confine the power within statutory limits. Such a duty, as contended for here, would tend to open public authorities to the spectre of compensation for flawed decision making, in circumstances where the validity of the exercise of power can be tested and resolved by judicial review, and where standards of competence and skill are well able to be dealt with by an appropriate regime of governmental administration." (emphasis added) The word "examines" in the second sentence should perhaps have been "exercises", but the sense is clear. The emphasised passage may appear to give some support to the appellants' arguments. However, the question as to whether a duty of care of the kind asserted here should be imposed is affected and governed by the statute in which the power finds it source and operates. Here, in addition to the lack of reliance and vulnerability, the duty of the Council to consider the interests of others, including nearby landholders and the environment and local amenity, as well as relevant considerations from ss 5 and 79C, make it inappropriate to impose a duty of care of the kind posited. This is reinforced by the circumstance that administrative law and appellate review are available to persons in the position of the appellants. 101The asserted duty of care is not to be imposed.

The misfeasance in public office case 102The respondent accepted that Ms Gale held a "public office" for the purposes of the tort. The respondent also accepted that it was vicariously liable for the wrong, if proved, of Ms Gale. Neither matter is by any means clearly correct, but it is not appropriate to depart from how the parties fought the case. 103The identification of the misfeasance case was not clear. In order to understand whether his Honour sufficiently engaged with the evidence led, it is necessary to understand the issues tendered for resolution. It is unnecessary for the resolution of the appeal to say anything about the nature of the tort of misfeasance in public office. No substantive debate about the legal principles concerning the tort took place on appeal. 104The statement of claim was not a model for the pleading of the tort. It traversed in chronological order some of the major factual contours of the case. It was then alleged, in paragraph 39, that the facts disclosed a lack of honest belief by the Council that it had the authority or powers to deal with the application and that there was an absence of any honest attempt to perform the functions of their (sic) office. It was alleged, in paragraph 40, that the defendant through Ms Gale (involvement of others besides Ms Gale was abandoned) displayed bad faith in knowing she was acting outside the scope of her authority. In paragraph 41 it was asserted that the defendant (implicitly through Ms Gale) formed an intention to refuse the application and in so doing never held an honest belief to perform her functions or duties. All this was done in the knowledge that this would cause harm to the appellants and the defendant was recklessly indifferent to the inevitable consequences of the conduct: see paragraphs 42-44. The particulars were to the following effect: "i. Representing to the Plaintiffs that they [sic: it] had authority to deal with their application. ii. Pursuing a deliberate course of conduct consistently over a considerable period of time including meeting with the Second Plaintiff and his Town Planner and requesting details regarding the application evidencing a genuine attempt to deal with the Plaintiffs' application, knowing that such conduct would involve furher delay, expense and financial hardship to the Plaintiffs. iii. Knowing that the Second Plaintiff was relying on the Defendant's previous and concurrent conduct in dealing with similar such applications. iv. Acting in a manner totally inconsistent with a predetermined decision to ultimately refuse approval and with absence of an honest attempt to carry out its functions. The Plaintiff[s] allege[ ] that the harm caused by the conduct of the Defendant was foreseeable, preventable and in reckless disregard for the harm that would inevitably ensue to the Plaintiffs." 105The written submissions before the primary judge on misfeasance were somewhat diffuse. The learned primary judge set out what he considered to be the operative principles and the case of the appellants at [212]-[218] as follows: "[212] The tort of misfeasance in public office is well established, but in important respects, it has been said that the precise limits of the tort remain undefined: Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 ('Mengel') at 345; Leerdam v Noori [2009] NSWCA 90; 255 ALR 553 at 574 [99]. [213] Misfeasance in public office is a deliberate tort: Mengel at 345; Pharm-a-Care Laboratories Pty Limited v Commonwealth of Australia (No. 3) [2010] FCA 361; 267 ALR 494 at 508-509 [58]-[59]. In Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at 376 [124], Gummow J observed that 'misfeasance in public office concerns conscious maladministration rather than careless maladministration'. [214] In Sanders v Snell [1998] HCA 64; 196 CLR 329 at 346-347 [42], Gleeson CJ, Gaudron, Kirby and Hayne JJ emphasised that it is an intentional tort. [215] In Mengel , Deane J, at 370-371, identified the elements of the tort in the following way (footnotes excluded): 'Its elements are: (i) an invalid or unauthorized act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice. In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff. Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.' [216] What has been described as the malice requirement of the tort has been divided into 'targeted malice' and 'untargeted malice': Sappideen and Vines (Editors), 'Fleming's The Law of Torts', 10th edn, 2011, page 715; Aronson, 'Misfeasance in Public Office: A Very Peculiar Tort' (2011) 35 Melbourne University Law Review 1 at 12, 18-25. [217] In Rush v Commissioner of Police [2006] FCA 12; 150 FCR 165 at 197-198 [121], Finn J observed: 'It is unnecessary for present purposes to discuss the elements of this tort in any detail. They were recently essayed by the Full Court of this Court in Sanders v Snell (No 2) (2003) 130 FCR 149. I would note, though, that the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) at [95]-[100].' [218] It has been said that there is no requirement that a person act with spite or ill will as an ingredient of the tort. Rather, there are two ways in which the requisite state of mind can be established. The first is by proving that the defendant acted with the intention of harming the plaintiff. The second state of mind is where the defendant has knowledge that his or her actions are unlawful and that they will probably cause loss to the plaintiff: Trindade, Cane and Lunney, 'The Law of Torts in Australia', 4th edn, 2008, paragraph 6.10.2. Mr Toomey QC, in his closing address in reply, emphasised that the Plaintiffs' claim asserted the first of these options (T1097)." 106In argument on appeal the matter was put as described by the primary judge at [218]: Ms Gale acted with the intention of harming the appellants. That is, Ms Gale consciously and deliberately set out to delay and defeat the application in 2006 and 2007 by, amongst other means, putting false and distorted information to the councillors deciding the matter and pretending that she was considering the application when she was at all times intent on seeing it refused to the extent that she was able for reasons unrelated to any bona fide assessment of the application. These issues were very serious, and broad and basal in their character. 107The primary judge considered the misfeasance case at [225]-[254], where his Honour made some general observations and conclusions; at [255]-[280], where his Honour discussed the determination of a claim for misfeasance; and at [287]-[325], where his Honour dealt with Ms Gale's intention. 108The primary judge made some observations which pertained as much to the appeal as to the proceedings before him. I will make reference only to those that concern the misfeasance case. First, the task is not a broad enquiry as to competence, but as to whether Ms Gale behaved in a way sufficient to invoke the tort of misfeasance: [228] of the reasons. It is essential to recall at all times the broad and basal accusations levelled at Ms Gale. They are the kinds of questions not likely to invite fine analysis of whether she could have done in some fashion a better or a speedier job, or to invite minute analysis of actions undertaken, or not, by her. She was being accused of a form of dishonesty. Secondly, the fact that the application was dealt with under s 96 did not mean that it had to be approached as involving only minor matters. As his Honour said at [231]-[232] of the reasons, implicit in the appellants' approach was the non-sequitur that because s 96 applied, the variations were minor in their character. Thirdly, the case that was put was that Ms Gale acted with the intention of causing harm: [233]-[234]. Fourthly, a significant difficulty is that much delay was caused by the repeated submission of amended plans: [235]. Fifthly, Ms Gale took and followed legal advice. Sixthly, the primary judge found Ms Gale to have a heavy workload: [72] and [237] of the reasons. Seventhly, it was apparent to Mr Maruncic that Ms Gale saw difficulties with the proposal. She did not mislead him by saying, at any point, that she was in favour of the proposal. 109At [251]-[254] of the reasons the primary judge concluded that Ms Gale had not sought to mislead Council by anything said about the shadow diagrams or the failure to provide the letter of Mr Warnes of 5 April 2007. At [252]-[254], he said: "[252] Ms Gale accepted that the information which she provided to Councillors did not include the information which Mr Warnes had furnished on 5 April 2007 concerning the height of 'Cote D'Azur'. The evidence reveals that a range of information was provided to Councillors by Ms Gale concerning the height of existing buildings and the 'Milan Towers' development proposal. [253] The evidence falls far short of demonstrating that Ms Gale, in some way, suppressed information from the Councillors. Although, in hindsight, it might be suggested that there were other ways of dealing with the height issue, I am not at all persuaded that the way in which Ms Gale in fact dealt with the topic at that time supports an inference or conclusion that she was seeking to suppress relevant information or to deliberately or intentionally harm the Plaintiffs. [254] The conclusions which I have so far expressed do not depend upon the expert evidence of Ms Laidlaw. Her evidence came under strong challenge by Senior Counsel for the Plaintiffs. I have reached the conclusion that the Plaintiffs have not demonstrated any deliberate or intentional conduct on the part of Ms Gale to harm the Plaintiffs without relying upon the evidence of Ms Laidlaw. However, the evidence of Ms Laidlaw only serves to fortify the conclusion which I have reached. Ms Laidlaw's opinions concerning the approach which a reasonable and prudent town planner would take and the steps taken by Ms Gale, at various significant points in the process, further fortifies a conclusion that the Plaintiffs have fallen far short of demonstrating intentional or deliberate wrongdoing on the part of Ms Gale. The evidence of Ms Laidlaw also supports the Defendant on the negligence claim." 110The primary judge focused upon the central question put to him for resolution: whether he should find that Ms Gale acted with the intention of harming Mr Maruncic and MM by deliberately proceeding with the matter slowly and with a closed mind unwilling to consider the application bona fide on its merits, and by deliberately misleading Council members (and her fellow officers). 111Between [287] and [325] the primary judge found the facts and drew conclusions about the misfeasance in public office case. The primary judge directed himself to the seriousness of the allegations ([287]-[288]). From [290]-[296], the primary judge set out carefully and fully the submissions of the appellants. At [297], he set out in substance the Council's response. At [298], the primary judge stated, in terms, that he had considered the documentary and oral evidence, as follows: "I have had regard to the documentary and oral evidence for the purpose of determining whether the Plaintiffs have established, to the requisite standard, an intention on the part of Ms Gale to cause harm to the Plaintiffs." 112At [299], the primary judge addressed the credit of Ms Gale, as follows: "Ms Gale gave evidence at the hearing and was challenged strongly under cross-examination. At times, her evidence was somewhat defensive, but that may be seen as a product of the nature of the attack upon her. I formed the view that Ms Gale was a frank witness who did her best to give honest and reliable evidence. In truth, there were few areas of conflict between Ms Gale's evidence and that of any other witness in the proceedings, including Mr Maruncic and Mr Warnes, on any issue of significance. I am conscious of the care required in making demeanour findings. It is necessary for a trial Judge to weigh impressions as to the demeanour of a witness carefully against the probabilities and to examine whether any disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186 at 191 [27]." 113In recognition of his responsibilities discussed in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186, the primary judge undertook the task referred to in [299]. In the execution of this task, his Honour referred extensively to the facts at [300]-[325]. Significant to him were the contemporaneous documents written by Ms Gale explaining why she was acting as she was ([300]). Unless these documents were written as a deliberate and dishonest cover for her true intentions (a matter not put to her), they were, as the primary judge said at [300], support for the Council's case and undermining of that of the appellants. 114From [301], the primary judge drew together the factual findings that, to a degree, had already been made in a framework suitable to dealing with the misfeasance case. At [302], the primary judge recognised the caution that was due to the application, which was not a minor alteration to straightforward development. At [303], the primary judge accepted that Ms Gale had a prima facie view contrary to the proposal, but rejected the proposition that Sparke Helmore were consulted in order to provide cover or justification for her true views. At [304], the primary judge rejected the assertion of Ms Gale being incapable of persuasion. At [307], the primary judge concluded that Ms Gale followed the legal advice that she obtained. At [308], the primary judge dealt with delay. At [310]-[314], the primary judge dealt with concurrence and the views of the Department. Though this issue was dropped on appeal, the matters set out in these paragraphs are powerful considerations in support of the Council's case about Ms Gale's conduct. 115At [315]-[316], the primary judge rejected the notion that Ms Gale was required to undertake a two-way iterative process with an applicant for consent or variation. Correctly, the primary judge recognised that best practice (if that were best practice) was not the issue. 116At [317]-[321], the primary judge dealt with the issue of the height of the building. He rejected the claim of deliberate misleading of the councillors. The primary judge concluded that at best from the point of view of the appellants: "Ms Gale did not include in material to Councillors a possible argument based upon Mr Warnes' letter concerning the height of 'Cote D'Azur'." He rejected, however, that she intentionally suppressed material. 117Central to the primary judge's consideration were the findings of credit at [299]. His Honour was careful not to limit his conclusion to one based on demeanour alone, but that assessment was crucial.

The principal complaints on appeal about the misfeasance findings 118The appellants' primary complaints were the asserted lack of attendance by his Honour to the oral evidence and the evidence of Mr Warnes. It was submitted that in the light of those two bodies of evidence, the acceptance of Ms Gale as a frank, honest and reliable witness was a conclusion that could not stand. 119The review of the factual material to which reference has already been made reveals the central place of the cross-examination of Ms Gale in the case. The documentation on its face appears to reveal some degree of diligence and professionalism by Ms Gale in the conduct of her task. For a conclusion to be reached as to the relevant intention, to which his Honour referred, such matters would have to arise from such cross-examination in the context of the surrounding evidence that places the facts in context. The central consideration addressed on appeal is whether the primary judge was entitled to approach this central question of the intention of Ms Gale in the way he did. If the finding of her credit worthiness is legitimate, the misfeasance case must fail. There was no relevant concession made by Ms Gale in cross-examination. She denied all the elements of the case against her that were put to her.

Ms Gale's Evidence 120Ms Gale swore two affidavits in which she explained her part in the consideration of the application. She gave evidence in chief. She was cross-examined from 20 September to 21 September 2010 over 82 pages of transcript. If the challenge to the way the primary judge expressed himself about Ms Gale's credit is to be successful, it is necessary to conclude that the matters raised in cross-examination have not been adequately dealt with. 121The cross examination on her credit began with the legitimacy or not of her view about concurrence: eg Black Vol 2 at 791. She said at Black Vol 2, 791: "A. My view was simply formed on the basis that the Department of Planning originally granted concurrence to a certain height. This was then going to increase that height. So it was my view at the time that a further concurrence was required. That was also validated by virtue of an issuing concurrence to the modification on 61 Donald Street, which I also dealt with." 122As I have already said, concurrence was dropped as an issue on appeal. The view that she gave was plainly open to a rational mind. Her credit was fiercely attacked on this issue: eg Black Vol 2 at 793, 795, 803: "Q. Did you seriously believe in 2006, as a graduate town planner, that concurrence was required in respect of a section 96 modification? A. Yes. I believed that concurrence was required for that additional height. ... Q. I want to make it plain to you, Miss Gale, that I'm saying that the wording of section 96 and the pursuit of the definitions in it, such as consent authority and so on, must have made it plain to any qualified planner that concurrence was not necessary if you fell within section 96? A. No, I don't - how does that then relate to the adjoining property and the development whereby they granted concurrence to a modification? ... Q. I know that. I am putting to you that as a graduate town planner reading that section, it was completely plain that concurrence was not required? A. I disagree because basically I had had another example of an application which received concurrence for a modification, not dissimilar to this." 123Ms Gale was cross-examined on many aspects of her handling of the application, including the time taken for many individual steps taken by her. At Black Vol 2, 821, the following exchange took place: "Q. And I put it to you that you were determined from the start that you would at least not assist, if not positively obstruct, the progress of this application? A. No, I deny that." 124At Black Vol 2, 822, Ms Gale was challenged with an assertion of pre-judgment: "Q. What you were telling East Ward councillors was, so far as you were concerned, it was really concluded, weren't you? A. No, not at all. Q. You were really saying to them, the form of words may be what it is, but what you were really saying to them was, 'Look, my mind's made up. Nothing is going to change my mind on this'? A. No. Don't agree with that at all." 125At Black Vol 2, 824-825, she was challenged with an assertion of deliberate obstruction: "Q. Well, you see, I put it to you that when you received advice that this was properly the subject of a section 96 modification and that a new DA was not required, that you determined to obstruct its progress as a section 96 application? A. No. I disagree with that entirely. Q. Because you did not believe it should be approved under section 96? A. I respected the view of the legal opinion that we received and that's - that's the practice that I undertake as an assessment officer, I leave my personal view to one side and progress something based on the advice before me. Q. I put it to you that rather than respecting the view received from your legal advisors, that you were determined that the modification was such that it ought not to be advanced under section 96 and that you were determined to obstruct it? A. No, I deny that." 126At Black Vol 2, 825-828, she was challenged with the assertion that she just paid lip service to the solicitor's advice and did not give it genuine consideration under s 96. She denied this. 127At Black Vol 2, 829ff, she was challenged with the assertion that she misled councillors and was not frank to Mr Maruncic. This body of cross-examination was the subject of significant focus on appeal. Ms Gale first sought to say that she had (as she informed Councillors) told Mr Maruncic that the density and height problems were "unlikely to be capable of justification through submission of additional information". After some close questioning, however, she retracted that answer and then within a short space of time reinstated it. Given the importance placed on it, I set out the exchange at Black Vol 2, 832-833: "Q. Did you ever tell him that having regard to the extent of the variations, that it was unlikely that anything he put to the Council would be successful - anything further he put to the Council would be unlikely to be successful? A. No, I didn't. Q. You didn't tell him that? A. No. Q. But you did tell the East Ward councillors on 18 July 2006? A. Based on the extent of changes that he had put forward. Q. But he was the one who had put them forward. Why was it fair to tell the East Ward councillors who would be the people, among others, who would decide the application when it was not necessary for you to tell Mr Maruncic, in effect, 'no matter what further information you give us, you are not going to succeed'; why wasn't it fair to tell him that? A. I believe I did tell him that. Q. The only time you have said you told him was before, at the pre-lodgement meetings, was it not? A. No, I told him after in verbal discussions after he had lodged as well. Q. What, did you tell him that the variations were so great that no matter what information he gave you, they were unlikely to be successful? A. I recalled - Q. No, no, I am sorry, did you tell him that? Because that's what you told the East Ward councillors. Did you tell Mr Maruncic that? A. If he was looking at that extent of change, yes, I probably did. Q. You probably did? A. Mmm. Q. What words did you use? Did you use the same words as you used to the East Ward councillors? A. No, I - I recall discussions with him and my recollection of the conversation and advice that I gave him was I thought the changes were - were excessive. I expressed concern over those changes. I also - Q. Ms Gale, I asked you whether you had said X. I did not ask you to say to me what you had said other than whether or not you had said X. Do you understand? A. Yes, sorry, I apologise. I thought you were asking me what I told him basically. Q. Yes? A. But I didn't tell him - I didn't use the same words as in this letter which I think was your first question, no." 128Great store was placed on the fact that this inconsistency was not separately analysed and weighed as a separate factor concerning her credit. 129Ms Gale was cross-examined about the shadow plans at Black Vol 2, 835ff. In particular, she was taxed on her evidence that she would have spoken to Mr Warnes and Mr Maruncic about their inadequacy, but primarily Mr Warnes, if, as she said, she thought them inadequate. Mr Warnes denied any such conversation. The primary judge did not resolve this conflict of evidence. 130At Black Vol 2, 837ff, Ms Gale was questioned about Mr Anson's report put forward for the June 2007 meeting. She accepted that she compiled it. She was questioned about the information concerning height. In particular, it was put to her that the reduction in height in the March plans and the April letter from Mr Warnes was not clearly brought out and that she misled the councillors as to height. One important aspect of this was the comparative height of "Cote D'Azur". The following exchange took place at Black Vol 2, 848-849, on this topic: "Q. But the important bit is the statement that building A is lower than the already approved adjoining building and the already approved adjoining building is Cote D'Azur so that is a statement that Cote D'Azur is higher than 22.17 metres, isn't it? A. Yes, that's the statement being made in this letter. Q. Which letter you have read? A. Yes. Q. So on or about 5 April 2007, you were aware that it was being said that Cote D'Azur, rather than being 17 metres, was 22.7 metres - I am sorry, was some height between 22.1 and 22.9 metres? A. Yes, in terms of the statement made in here, yes. Q. What did you do about it? You accepted the heights given for block A and block B because you reproduced them in your supplementary information? A. Yes. Q. What did you do about the suggested height of Cote D'Azur? A. Well - Q. Just forget about it? A. No, I didn't. It was approved at a lesser height so - and I had no basis for which to establish how they had established the heights that they were talking about. Q. Did you ring Mr Warnes and ask him, 'Where does that figure come from?' A. I don't recall whether I did nor I didn't. Q. But look, if as you have agreed in the last ten minutes the fundamental height objection to Milan Towers was that it was very substantially higher than all other buildings in the vicinity, how can it not have been of extreme importance that this was material which suggested that indeed Milan Towers was either very slightly higher or very slightly lower than Cote D'Azur? Why can that not have been very important in the decision? A. Well, from the assessment of Cote D'Azur it certainly didn't - it didn't - it wasn't consistent with that so I had formed a view through the assessment of that adjoining property which came out with - with height that didn't - wasn't consistent with this one. Q. So you knew that this was from a new document from a surveyor, didn't you? A. Yes. Q. Because you had been told that; you were told that, weren't you? A. In this letter, yes. Q. The information relates to survey and height deduction undertaken by Fagan Mather and Duggan? A. Yes." 131Ms Gale was cross-examined to the effect that she kept crucial information away from the councillors. This could only have been deliberate. She denied this. At Black Vol 2, 854-855, the following exchange took place: "Q. The fact is, isn't it, that you suppressed this material from going to the council? A. No. Q. You received a document on 5 April - A. Yes. Q. - shortly before a supplementary document is provided to council? A. Yes. Q. You reproduce in the supplementary document two height measurements which are given to you in the document of 5 April? A. Yes, which was - which highlighted the changes to that proposal, yes. Q. But you did not include in that document other information from not only the same source, but the same document which cast doubts on one of the keystones of your submission to council, which was that Cote D'Azur was 17 metres; is that a fair summation of what you did? A. I would have included the information that I saw relevant at the time, yes. Q. Is it a fair summation that that is what you did, that there were three pieces of height information in the one document and that you gave the council two and kept one away from them? A. In my view, I gave them the information that was in support of the application by virtue of the new maximum heights which I accepted and the survey information that they submitted. So I thought that was the information that councillors needed which more accurately showed the maximum heights for the revised proposal as it stood for final determination. Q. Look, there can be no doubt at all, Miss Gale, that the two heights - the two new heights given for the building below, the Milan Towers blocks, was relevant? A. Yes. Q. No doubt at all. But there could also have been no doubt at all that the suggestion by the surveyors that the height of Cote D'Azur fell somewhere between the two differing heights of the Milan Towers block was equally relevant, could there? A. Yes, I suppose not. Q. It was contrary information to material which you had included in the document to council. Did you not regard yourself as being required to put both sides of the case to council? A. Yes; and I tried to do that in the report that I submitted. Q. But you made no mention of this? You made no mention in your supplementary information of the third fact in the Fagan Mather document, did you? A. No. Q. You mentioned two? A. No, because I wasn't sure whether it was accurate or not. And, at the time, I - looking back on it now, I made a decision not to include it. You're correct. Q. So you deliberately decided not to provide it to council? A. At the time I thought it wasn't relevant. Q. No, I'm asking you a particular question. You deliberately decided not to provide it to council? A. Well, if you were going to put it like that. Q. No, I'm asking you wether it is not the fact that what you have said amounts to a description of a decision by you not to provide it to council, and that is the fact, isn't it? A. Yes, I made a judgment call at the time, yes." The primary judge dealt with this issue at [297] of his reasons. 132As to delays, it was put to Ms Gale that she was less than diligent (Black Vol 2, 859). Of course, for misfeasance in public office in the way it was put, less than diligent is not to the point. 133As I have earlier said, central to the success of the misfeasance case was a conclusion that Ms Gale deliberately undermined or obstructed the application and deliberately misled councillors with a view to harming Mr Maruncic. She denied this. She was believed. I will deal in a moment with the detail of the submissions on appeal. Before doing so, it is appropriate to refer to the extent of a judge's obligations in giving reasons on questions of fundamental credit. In Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [44]-[47] Campbell JA (with whom Beazley JA and I agreed) said the following: "[44] Mr Watson was critical of this basis for rejecting Mr Goldsmith's evidence. He referred to some evidence in which Mr Farr had said that one would be able to negotiate that bend 'by veering slightly to the left'. Apart from anything else, veering slightly to the left is indicative of the extent to which one must turn the steering wheel, which is not necessarily the same as the extent to which the road itself bends. [45] As well, the judge had observed, at [66], that 'Mr Goldsmith's evidence about the taking of the photographs at trial was slightly different to the statement which he made in 2009.' The difference related to the order in which he and Mr Kent had acted as the photographer on that day. In the 2009 statement he said: '23 ... I did an assessment of the area and took some photographs and handed the camera to one of my employees who took the rest of the photographs.' At trial Mr Goldsmith said: 'Q. Did you yourself take any photos? A. I think I've taken the last couple of photos. Certainly there is one photo with Richard's vehicle disappearing into the distance, I'm pretty sure I took that. But effectively the bulk of the photos would have been taken by Adam. (T.94.38)' [46] Mr Watson submitted that these matters provide 'a most tenuous basis' for the primary judge's finding of unreliability. I do not accept that that provides a reason for rejecting the conclusion at which the primary judge arrived concerning Mr Goldsmith's reliability. There are limits to the extent to which it is possible for a judge to give reasons why one witness strikes him as creditworthy, and another does not. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, McHugh JA said: 'Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary "for him to go further and say, for example, that the reason was based on demeanour". Connell v Auckland City Council [1977] 1 NZLR 630 at 632-633 per Chilwell J. The position will usually be different if other evidence and probabilities are involved.' [47] Similarly, McHugh J, sitting as a single judge of the High Court, in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407 at [67] said: 'In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.'" 134In Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] Campbell JA (with whom McColl JA and I agreed) said the following: "A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]." 135In that same case at [2], I said the following (with which McColl JA agreed): "There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. Many of those expressions state the matter by reference to general principle, rather than by reference to the facts of the particular case. The cases referred to by Campbell JA at [116] are examples of the former. I do not intend to express any doubt or qualification about them. In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved. Here, critical factual enquiries were not embarked upon by the primary judge. Unfortunately, for the reasons given by Campbell JA these deficiencies mean that there must be a new trial." 136In McGlen-McLeod v Galloway [2012] NSWCA 368 at [1], I said the following: "I have read the reasons of Tobias AJA. I agree with them and with the orders proposed by his Honour. I would add only this. It can be accepted that the appropriate form of reasons for, and the acceptable judicial approach to, the resolution of controversies can be difficult subjects for generalised assertion. The tendency to generalise rules from the application of principle to particular factual situations can lead to overly specific, and at times conflicting rules. I do not wish to risk being accused of this vice; and I make no criticism of Tobias AJA's reasons along these lines. What can be said about this appeal is that the primary judge was obliged to resolve the dispute before her thrown up by the evidence. That involved a significant body of oral evidence of the plaintiff that was tested in cross-examination. It was necessary to engage with its acceptability and reliability. That did not mean mentioning every line of it. Summary and evaluative choice play their part in judgment writing. But, here, the evidence could not be substantially ignored or not addressed by reference to some judicial strictures as to the risks involved in using demeanour as a determining consideration in fact finding. It is a difficult task to assess the evidence of witnesses. Objective facts can be crucial to its assessment; but assessed it must be, if the controversy so presented is to be resolved. That assessment here miscarried for the reasons given by Tobias AJA." 137Ultimately, whatever inconsistencies exist in competing evidence, if, at root, someone has to be disbelieved for a case to succeed and that person is not disbelieved, such can be overturned only by reference to well-known principles in Fox v Percy [2003] HCA 22; 214 CLR 118. Further, in accordance with the above authorities (and the common experience of anyone who has been charged with the heavy responsibility of assessing the truthfulness of witnesses before her or him), if one accepts the truthfulness of a witness, there is only so much justification that is possible. 138How much reference need be made to underlying evidence in credit findings is a fact- and context specific matter. The more blunt and brutal the point, the less that likely needs to be said by way of conclusion. The primary judge was well aware of Goodrich Aerospace. He referred to it at [299] of his reasons. It is unnecessary to set out all that was said by Ipp JA in Goodrich Eurospace. It should not be taken that Ipp JA was stating a linear or mechanical task requiring a primary judge expressly in the reasons to resolve every single factual debate that could be seen to be connected with the resolution of credit.

The oral submissions 139The first, and indeed primary, attack on the judgment was based upon the paucity of reference by the primary judge to the transcript. The burden of the argument was to the effect that the controversy could not be resolved without attendance to the oral evidence. 140Because I am of the clear view that there is no duty of care, I will limit myself to the resolution of the appellants' submissions in this regard on the claim for misfeasance in public office. 141The attack on the approach of the trial judge was direct and uncompromising. It was said that the primary judge dealt with the oral evidence in a way that was "utterly inadequate". It was submitted that the concentration by the primary judge upon the documentary evidence ignored important aspects of the oral evidence. 142On a number of occasions Mr Toomey QC put the submission that because of the length of time between finalisation of the hearing of the case and the delivery of judgment, the primary judge was obliged to refer to the oral evidence and in particular to the cross-examination of Ms Gale. On occasions it was submitted that the primary judge had ignored the oral evidence. The primary judge's reasons allow the comfortable conclusion that he did not ignore entirely the oral evidence. Indeed, he was aware that central to the resolution of the case was the question whether he believed Ms Gale. He did. No judge is obliged to refer to every aspect of oral evidence or to make constant repeated references to pages of the transcript. 143The difficulty with the submission is that for it to succeed, there must be a reasonable basis to think that there was critical evidence probative of malice and, effectively, a dishonest state of mind that was not addressed, not merely that there was material addressed in cross-examination not specifically addressed by the primary judge which could go to the question of the acceptance of the witness. In the latter case, unless in all the circumstances the primary judge can be taken to have failed properly to undertake the task of assessing the evidence, it will be inadequate to demonstrate any vitiating error. 144Mr Toomey put his case that there had been a failure of process of such magnitude that the case was not properly tried. 145The first proposition put by Mr Toomey was that after the advice of Sparke Helmore that the application should be dealt with under s 96, Ms Gale did not in fact do so. The difficulty with this submission is twofold. First, Ms Gale denied the assertion that she did not bona fide approach the matter in this way. Secondly, it rested in significant part on the false proposition accurately dealt with by the primary judge in the general observation he made at [231] and [232] to the effect that the processing of an application under s 96 did not mean that the application was to be approached as involving minor matters only. 146Mr Toomey put the proposition that the primary judge had failed to attend to Ms Gale's evidence with the recognition that she had an interest in the proceedings. I do not think that this criticism can legitimately be made of the primary judge. In his assessment of her evidence at [298] and [299] the recognition of her position is implicit. 147Mr Toomey accepted that when His Honour said at [298] that he had had regard to the oral evidence for the purpose of determining whether the appellants had established an intention on the part of Ms Gale to cause harm to them his Honour was being truthful. Mr Toomey said, however, that that was not the end of the matter because it was not "evidenced" in his reasons. This proposition, however, was circular. It was submitted that the finding of credit in respect of Ms Gale had to have a foundation in the evidence and there was no examination of her oral evidence. However, as the principles to which I have referred make clear, in making a finding of fundamental credit of this kind it is not a requirement for a judge to recite all aspects of the evidence to justify a finding of credit. Mr Toomey was driven to the proposition that the face of the judgment reflected such a lack of attendance to the task at hand as to require the matter to be remitted for a retrial. 148The difficulty with complaining about the primary judge's reasons is heightened when one understands the seriousness of the attack upon Ms Gale at the trial. In argument on appeal, Mr Toomey accepted that his case at trial, and necessarily on appeal, was that Ms Gale deliberately and knowingly put forward inaccurate and distorted information to the Council in order that the application be refused, having deliberately delayed the conduct of the application and having pretended to deal with the application to which she had shut her mind. Once one appreciates the basal nature of that alleged intention of Ms Gale, a species of dishonesty, one appreciates that the expression of whether or not she is to be believed in her denial of it need not necessarily take very long, even if there has been extensive cross-examination. 149In order to make good the fundamental attack upon the primary judge's acceptance of Ms Gale, Mr Toomey took the Court to Ms Gale's cross-examination. 150The first body of cross-examination upon which submission was made concerned the statement by Ms Gale in the memorandum of 18 July 2006 to the East Ward councillors. I have already described these matters. Mr Toomey put two matters arising from them. First, that if little could be done about the adverse nature of density and height, Ms Gale had prejudged the matter. Secondly, the cross-examination revealed that she was "far from being frank, open and suchlike"; rather, she "changed her position and demonstrated, we say, that she had preconceived the result of the application." These two considerations need to be kept separate. Ms Gale was a professional who was charged with assessing an application. She was entitled to form her view about what was before her. The fact that she may at some point have reached firm views which were difficult to change is neither here nor there unless she acted with the relevant intention and malice for the tort of misfeasance. Nevertheless, she denied pre-judgement and that was a matter that the primary judge could take into account in the assessment of her credit. The apparently inconsistent answers obtained by the cross-examiner in the passages to which I have referred earlier do not of themselves demonstrate a lack of frankness. Rather, they reveal the ebb and flow of an intense cross-examination to which his Honour says in his reasons he paid regard. There is nothing in this passage, taken alone, that would have required the primary judge to mention it specifically in his judgment. It is, of course, important that the totality of the transcript of the cross-examination be considered as a whole. Nevertheless, if there were parts of it that individually cried out for specific attention in the judgement, Mr Toomey may have a point. 151The second body of cross-examination concerned the question of shadow plans. Mr Warnes and Mr Maruncic had provided the council with shadow plans showing the effect of the height of the buildings. It was Ms Gale's evidence that they were not satisfactory. She was cross-examined about whether or not she had spoken to Mr Warnes about that problem. She said that she did speak with Mr Warnes about it; she thought primarily Mr Warnes, though perhaps also Mr Maruncic. Mr Warnes had given evidence that he did not speak with Ms Gale about the shadow plans. The primary judge did not resolve this particular difference in the evidence. It was put by Mr Toomey that it was a matter which was material to lend weight to the appellants' case that Ms Gale was not seeking to progress the application. At one level of analysis the proposition can be accepted. However, it is not a consideration which of its intrinsic character is other than a matter to take into account in the formation of a view as to whether Ms Gale was telling the truth. Even if Mr Warnes' recollection were correct, that did not and does not necessarily lead to the conclusion that Ms Gale's recollection was deliberately false or that the only inference was that she was deliberately attempting to slow down the application to harm Mr Maruncic. Again, taken alone, there is nothing in this cross-examination that would require, as a matter of necessary judicial technique, the primary judge's specific attention in his reasons. 152The third body of cross-examination concerned the materials that went before Council for the determination of the application. The case made by the appellants below was that Ms Gale deliberately provided the Council with inaccurate and distorted information. The gist of the complaint was that the comparative heights of the appellants' buildings and the surrounding buildings, in particular Cote D'Azur, had not been fairly expressed in the reports that went forward. The material that went forward to the meeting on 13 March 2007 included a report dated 9 March from Mr Anson that had been drafted principally by Ms Gale. In one of the annexures to that report the height increase of the building was expressed to be from 18m to 24m, as measured from natural ground level only. The annexure also noted that this was 9m or 60 per cent above the required level, although 18m had already been approved. In the discussion in the report there was a recognition that these suggested maximum heights were in fact 21.4m and 21.8m. After the March meeting (which did not deal with the application) Mr Warnes provided his letter of 5 April 2007. This was based, as I have already indicated, upon the surveyor's letter of 4 April 2007. The primary judge found that Ms Gale had Mr Warnes' letter, but did not receive the surveyor's material. There was no challenge to this finding. A further body of documentation dated April 2007 was prepared for the Council at the June meeting. Once again it was a report of Mr Anson, though prepared substantially by Ms Gale. This supporting material took into account the revised plans submitted to Council on 22 March. There was discussion of the reduction in height to 22.17m and 22.93m for blocks A and B respectively. The precise heights just referred to made it evident that the drafter of the supporting material had Mr Warnes' letter of 5 April. What was not contained in the supporting material was the comparative height analysis referred to by Mr Warnes in his letter of 5 April. 153The cross-examination at the trial commenced with the parts of the supporting report dealing with height increase and the emphasis made in the report on the difference between 15m and 18m on the one hand and 24m on the other, in circumstances where Mr Warnes and the most recent plans had reduced the heights to 22.17m and 22.93m. It was put to Ms Gale that she had "buried" the information contained in Mr Warnes' letter of 5 April and, further, without emphasising the comparison with Cote D'Azur. For instance, at Black Vol 2, 845, it was put to Ms Gale that the document she had prepared had impressed upon the councillors, either by the structure or content of the submissions, that the application would result in a building complex very different from any of the other buildings in the immediate vicinity. She agreed with this. Thus it was put to her that if the true position were that the buildings were of similar height, the councillors had been misled. She denied ever seeing the surveyor's letter (which denial was accepted); she also denied ever knowing that Cote D'Azur was not 17m high but 22.7m high. When taxed with the proposition that she was aware from Mr Warnes' letter that Cote D'Azur was not 17m but 22.7m she said that she had no basis from which to establish how Mr Warnes had established the heights that they were talking about. The essence of Mr Toomey's cross-examination was that she had failed, deliberately, in her duty to inform the councillors of all relevant information. She denied this, and said that the information she gave to the councillors was that which she thought appropriate at the time. The primary judge believed her. It can be accepted that he did not engage in detail with this evidence. He did, however, deal with this very subject matter at [304] of the reasons. Bearing in mind the principles to which I have already referred, I do not think that the appellant has displayed any appellable error in the trial judge's approach to this aspect of the cross-examination and credit finding. Further, at [189]-[190] of the reasons, the primary judge dealt with the underlying evidence as to the fact of the comparative heights, about which there was much controversy and, indeed, evidence that supported Ms Gale's approach: see also [252]-[254] of the reasons. 154As to the height issue, it should be said that this was not a simple issue of linear measurement. There was a difference between natural and finished ground level; and, as Mr Toomey said on appeal, "there was a bewildering array of bases on which height was measured. There were differences between the experts as to what the height was." 155The material making up the reports to the councillors and the cross-examination upon it do not necessitate any finding of malice. Any deficiency in the reports is as consistent with a different evaluative judgment or mistake as it is with malice. Resolution from that available choice fundamentally depended upon a view as to whether Ms Gale should be believed. Of course, all the matters to which Mr Toomey referred on appeal and upon which he cross-examined were relevant to the complex and sophisticated human response of belief or non-belief in the evidence being given. But the failure of the primary judge to deal at length with the cross-examination does not invalidate the conclusion drawn by him that Ms Gale was to be accepted. Nor was it necessary. 156It is to be noted in relation to the reports prepared in March 2007 that went to the Council, that Mr Warnes was given a copy of them and the opportunity to respond to them. Not only did this say something as to the fairness of the procedure adopted but, also, it might be thought that it is passing strange that someone with the malice that Ms Gale was asserted to have had would seek to mislead Council by a deceptive document in the likely knowledge that the document would be made available to the party to comment upon. Thus, the question of malice in 2007 really began to focus upon the failure to provide Council with the information from the surveyor in a manner that was balanced and fair. This was a question of judgment. Because of the credit finding, the primary judge did not think any defect such as there may have been was intentionally created to mislead the councillors, and so to harm the appellants. 157At the trial, one aspect of Ms Gale's conduct that was relied upon to demonstrate malice was her insistence on concurrence from the Department until the point when she was clearly advised that it was not necessary. With a degree of realism, Mr Toomey recognised on appeal that given the differences of views taken by the Department, the solicitors and Ms Gale, it was not a matter which properly evidenced any asserted malice. 158Mr Toomey on a number of occasions asked the rhetorical question: "Where is the evidence that the trial judge read the transcript?" The answer to this question, even if rhetorical, was in the text of his Honour's judgment. He said he did. The fundamental question was whether he believed Ms Gale, who was cross-examined on her credit to the effect that she was not telling the truth and that she had deliberately set out to harm Mr Maruncic. She denied this. She was believed. The primary judge's reasons were adequate to explain why. It is not to the point to say that there were 776 pages of evidence and only nine transcript references. Judges do not have to footnote every matter they take into account. They do not have to traverse every aspect of the cross-examination. There is no basis to conclude that the primary judge abandoned his judicial responsibilities and did not undertake the task of assessing the evidence before him. There has not been demonstrated from the oral submissions a failure of process. There has not been demonstrated any appellable error in the primary judge's approach to the evidence and his findings as to Ms Gale's lack of responsibility and lack of malice. 159It can be accepted that the judgment took a significant period of time to produce: a little over 12 months from the conclusion of the submissions. It is also plain that the documentary evidence put before primary judge was voluminous. There was a significant body of other material directed to negligence and breach of duty. A significant task, carried out fully by his Honour, was the chronological structure of what the facts showed from the documentation and surrounding material. Set against that, in relation to misfeasance in public office, the primary judge was faced with believing or not believing the one person (the only person) accused of intentionally acting to harm the appellants. It may be preferable for a judge in the position of a delayed judgment to make clear that her or his findings of credit were made at a particular time closer to the hearing, if that were the case. Nothing from the record or the surrounding circumstances indicates that the finding of credit concerning Ms Gale is inherently weak. The context of that finding is a meticulous examination of the primary material of a documentary character. There has been no demonstrated failure of process. The fundamental complaint was neatly encapsulated by Mr Toomey as follows: "the absolute lack of explanation of the delay, the full and complete dealing with the documentary evidence and then the desert[ion] of the oral evidence, we submit, is a justification for an inference in the circumstances of this case that his Honour knew he was under pressure to get it out and that he did not have time to review the oral evidence." I reject that submission. The finding of credit was adequately explained. The primary judge said he read the transcript.

Appellants' written submissions 160The appellants relied upon written submissions that were not drafted by either senior or junior counsel and which were not addressed at all in the argument. Mr Toomey indicated that he and junior counsel had had some unspecified supervisory role in them. The submissions were unfocussed, much like the grounds of appeal which had been placed in the notice of appeal. The written submissions did not deal with matters coherently by reference to the grounds of appeal. At the direction of the Court, at the end of the appeal the appellants provided a list of the grounds of appeal which were pressed and the reference to which paragraphs of the written submissions were relied upon. Ground 1: In allowing an operative delay of fifteen months between close of the evidence and the delivery of Judgment which must have adversely affected His Honour's ability to judge issues of fact and expert evidence important to the decision in the case. Ground 2: In treating the delay as a normal part of the Judicial process and providing no explanation as to how such delay was dealt with by His Honour. 161These grounds were fully covered in oral submissions, and are dealt with above. Ground 3: In failing to undertake any or any meaningful analysis of the detailed expert evidence. 162This ground is largely irrelevant to the conclusion reached by the primary judge as to the question of Ms Gale's credit and malice and misfeasance in public office. The expert evidence concerned concurrence, height and the proper manner for town planners to approach an application of this kind. As the respondent submitted, the relevance of expert evidence to the misfeasance claim was limited, but was utilised by the primary judge to the extent that he found necessary: reasons [240], [242], [245], [297], [310], [316], [342] (as to negligence), [319]. Ground 4: In undertaking a selective examination of the contemporaneous documentations - (J [44]). 163Mr Toomey in oral address referred to the documentary references as full. He was correct to do so. The primary judge provided a careful and full documentary account of the progress of the application. 164The submissions relied on in respect of this ground concerned the reasons for delay. It was submitted that the delays by Ms Gale were palpable and required further explanation. The submissions deal with the chronology in a way dealt with and rejected by the primary judge, that Ms Gale acted deliberately to harm Mr Maruncic. The credit findings are adequate in that regard. Ground 5: In finding against the weight of the evidence, that Ms Gale did not have control of the Appellants' application by i. Erroneously finding that other Officers of the Respondent were closely involved in the processing of the application and (J [135-136] [146] [232] [315]); ii. Placing undue weight on any involvement of Councillors as being relevant to the exercise of control by Ms Gale (J [120] [309]). 165The evidence demonstrated that other officers had a real role to play in the creation of the information that went to councillors. 166The question of control of Ms Gale, in a sense, is irrelevant to the questions of duty of care and breach. The relevant control for duty and breach was control over the risk of harm. 167The question of control and supervision were relevant to assessing the likelihood of Ms Gale setting out on a deliberate course of conduct to harm Mr Maruncic. The acceptance of Ms Gale is sufficient to deal with that. 168I see no operative error in his Honour's treatment of the role of Ms Gale's colleagues. Ground 6: In finding, against the weight of the evidence, that Ms Gale was open to persuasion (J [304]). 169With respect to the author of the written submissions, no coherent basis was put for this assertion. Ms Gale gave evidence that she was willing to consider material put to her, though she plainly had a view about the application. Further, this ground reveals a degree of misdirection of focus. This is not an administrative law review. The pre-judgment, so-called, is only relevant if it forms part of a body of facts that leads to a conclusion of misfeasance. The acceptance of Ms Gale's evidence is the answer to that allegation. Ground 7: In finding the task of measuring comparative heights of buildings to be either complex or difficult, where Ms Gale was an experienced Town Planner and in charge of Development Coordination for the Respondent (J [305] [318]). 170The submissions of the appellants complain about the failure of the primary judge to accept the evidence put forward by them that the height issue was simple and should have been answered in accordance with that evidence. The issue was one of significant debate and complexity, as conceded by Mr Toomey in address. In any event, a resolution of the debate was not necessary for the assessment of Ms Gale's credit and the finding as to her bona fides for the misfeasance claim. Ground 8: In finding that the Appellants considered and or placed reliance on a view that the application involved minor matters only, and that approval should therefore readily follow (J [231] [239]). 171This is of no operative relevance to the misfeasance in public office claim. Ground 9: In finding a major reason for the delay in assessing the application was the constant amendment to the plans, and in failing to find that changes were brought about by the necessity for the Appellants to respond to the Respondent's requirements as expressed from time to time (J [235] [308]). 172Again, the weighing of the causes of the delay in the despatch of the application bears little upon the ultimate question of misfeasance in public office. Looking at the correspondence and the chronology, there can be little doubt that the effect of repeated submissions of plans by Mr Maruncic played its part in slowing down the process. It may be that Ms Gale could have been quicker in her handling of the file. That is hardly the point. Ground 11: In finding significance in the time devoted by the Appellants in closing submissions to issues relating to the Expoe application and as a result erring in not giving proper consideration to the Appellants' evidence in relation to that application (J [198]). His Honour further erred in: i. Finding that it was a development of a different scale (J [240]); ii. Finding significance in the fact that Expoe appealed under Section 96(6) (J [210]); iii. Failing to appreciate the relevance of Exhibit G as evidence of "close involvement" of other officers in the circumstances of this Respondent; iv. Failing to find that the Respondent's conduct in relation to the Expoe application was evidence of its "normal practice" in (a) The Respondent engaging in constructive dialogue with Expoe in total contrast to the Respondent's dealings with the Appellants; (b) The Respondent advising Expoe as to the matters by which its proposal could be put in a form acceptable to the Respondent. 173No explanation was given as to the material relevance of this ground to the misfeasance case. To the extent that it concerns duty of care or breach of duty, it is either irrelevant or misses the point. It was not the appellants' case that the duty of care arose because of an express assumption of responsibility. As to reliance and control as aspects of the analysis denying a duty of care, these matters arise from the structure of the statutory framework and the objective facts, not the minutiae of the day to day interaction of the parties in the approval process. Ground 12: In finding that the Appellants placed a lesser emphasis on negligence as a cause of action and failed to adequately deal with a significant part of the Appellants' case allowing that erroneous finding to influence His Honour's consideration of negligence generally (J [220] [326]). His Honour further erred in: i. Finding the presence of the appeal avenue under Section 96(6) supports a construction that a Council does not owe an enforceable duty of care (in tort) to an Applicant to access [sic: assess] an application promptly (J [329-331]); ii. Not being satisfied that a duty of care existed in the circumstances of this case (J [339]); iii. Finding that even if a duty of care existed the Respondent did not breach such a duty of care (J [340]); iv. Relying on Exhibit 17 as evidence to find Ms Gale had a substantial planning application workload in the period of 2005 to 2007, and in relying on that finding to explain or excuse delays by the Respondent in responding to communications of the Appellants and processing the Appellants' Section 96 application generally, and with due care and diligence (J [72] [237]). 174The approach his Honour took reflected the approach of the appellants' senior counsel. In any event, for the reasons given above, there was no duty of care. Ground 13: In finding that the evidence of Mr Warnes did not provide a foundation for a finding of negligence on the part of the Respondent (J [342]). 175It is unnecessary to deal with breach given the view expressed above about a lack of duty of care. Ground 14: In finding that the Appellants did not demonstrate reliance on the Respondent's representations (J [338]). 176Again this related to breach of duty. The finding was plainly open. The fact that one of the considerations motivating Mr Warnes to advise Mr Maruncic not to exercise his appeal rights was the continued reliance on the bona fide assessment of the application by the Council can be accepted. That does not amount to a feature that would substantiate any special assumption of responsibility by the Council and the foundation of a duty of care. Ground 15: In failing to find that the treatment of the Expoe and Cote D'Azur Applications was relevant evidence of the Respondent's "normal practice" of collaboration. 177The fact that his Honour did not conduct a more detailed comparison between the handling of Mr Maruncic's application and the Expoe application than was done (at [198]-[210]) does not display any error. The comparison was not the subject of specific cross-examination. The conclusion at [210] that a comparison of the conduct of the two applications was unlikely to be relevant was clearly open in the circumstances. Ground 16: In giving undue weight to the Appellants' failure to appeal to the Land & Environment Court as a barrier to the finding of vulnerability in circumstances where the Appellants relied on the Respondent's ongoing advices that it continued to process the Application pursuant to Section 96 (J [103] [248-250] [306] [329-331] [335]). 178This ground misconceives the considerations properly attending the question of the existence of a duty of care. The existence of appeal rights is an important statutory aspect to the lack of vulnerability. The choice not to appeal reflects that lack of vulnerability. The Council did continue to process the application. 179There was no relevant reliance; no assumption of responsibility. Whether or not the Council could have dealt with the matter more quickly or more favourably is not the point. There was no negligent misrepresentation case based on any particular representation. The essential submission of the appellants is circular: they were vulnerable in not utilising their appeal rights because they relied on the Council officers not to give inadequate information to the decision-makers and to conduct the application timeously. Vulnerability is said to arise because of faith in proper and non negligent conduct of the application. Ground 17: In failing to consider the cumulative effect of the evidence relating to the salient features of the relationship between the parties in finding that the Appellants were not vulnerable (J [334-336]). 180For the reasons expressed above, the conclusion that there was no duty of care was correct. Ground 18: In his findings regarding the significance of and the use of legal advice obtained by the Respondent in that His Honour i. Erred in finding that the obtaining of and use of the legal advice was a bona fide exercise of the Respondent's powers and duties which stood in the way of a finding of misfeasance (J [323]); ii. Erroneously found that the obtaining of legal advice was evidence of the intention of the Respondent to deal with and process the Section 96 Application with due care and diligence (J [145] [169]); iii. Failed to find that delay in seeking and obtaining legal advice was a significant and unnecessary delay in the processing of the Appellants' application; iv. Erroneously found that Ms Gale followed the legal advice in circumstances where His Honour should have found the evidence established that Ms Gale had predetermined that the Appellants' application was not suitable to be processed as a Section 96 modification and tailored her approach to the Application to achieve this outcome (J [145] [236] [305]); v. Erroneously found that the obtaining of legal advice was inconsistent with the conduct of a public officer who intended to harm the Appellants in circumstances where the Appellants' claim for misfeasance in public office did not require a finding in respect of intentional harm (J [236] [245]). 181Ultimately, unless Ms Gale was to be disbelieved, the legal advice spoke powerfully as support for her conduct. As was accepted on appeal, her approach to concurrence of the Department was reasonable. It could be that the obtaining of legal advice was a screen behind which Ms Gale's intention to harm Mr Maruncic operated. That conclusion is defeated by the acceptance of her evidence. The obtaining and apparently following legal advice was a clearly relevant consideration for the primary judge to address. Ground 19: In his treatment of the evidence of Mr Warnes in that he i. Found Mr Warnes' involvement in the planning process inevitably coloured his opinion evidence in the proceedings (J [241]); ii. Failed to identify individual issues upon which he accepted or did not accept the evidence of Mr Warnes or preferred the evidence of Ms Gale; iii. Failed to identify or make reference to particular evidence as a basis for accepting the evidence of Ms Gale at any point where there was a conflict with the evidence of Mr Warnes; iv. Although not placing reliance on the expert evidence of Ms Laidlaw (J [254]) using that evidence as supportive of the reasonableness of the erroneous views held by Ms Gale at the time (J [254] [297] [310] [342]). 182The paragraphs identified under this ground concerned in substantial part the differences between Mr Warnes' and Ms Gale's evidence that bore upon the evidence of breach. To that extent the lack of existence of a duty of care makes detailed analysis of this on breach of duty unnecessary. As to misfeasance, the fundamental acceptance of Ms Gale's evidence as to her lack of operative intention could be reached (as the primary judge did) without any detailed analysis of the competing expert evidence. Ground 20: In failing to adequately address the evidence of Mr Westbury in: (i) Finding the evidence of Mr Westbury to be of no assistance to the Court due to his lack of recall, and/or knowledge of the Respondent's "internal processes" at the relevant time (J [243]); (ii) Finding there to be any evidence that other councillors held an opinion different to Mr Westbury (J [243]); (iii) Failing to appreciate the relevance of Mr Westbury's evidence in making clear the importance to both himself and other Councillors of information in relation to the relative height of the subject development compared to the height of surrounding buildings. 183Mr Westbury's evidence was that he did not accept that the figures as to the heights of Côte D'Azur and Mr Maruncic's development could be correct, and that he did not believe that the appellants were being treated fairly. His Honour's conclusions about the lack of utility in Mr Westbury's evidence were entirely open. What one of the councillor's views of the process were was likely to be of little ultimate relevance. 184The height issue was critical. His Honour accepted Ms Gale's evidence that she did not deliberately put incorrect material to councillors. There was more than adequate material before the primary judge, such as Ms Laidlaw's evidence as well as Ms Gale's evidence, for him to be satisfied that there was an available basis for her bona fide belief in how she conducted herself in dealing with the application. Ground 21: In failing to properly consider and or appreciate the relevance of the evidence of Mr Mather or the survey evidence generally (J [189]). 185The primary judge dealt with Mr Mather's evidence at [189]-[190]. The finding that Mr Mather (a surveyor) did not do a survey was correct. The real complaint is as to the overall assessment of the contested body of evidence as to the height and comparative height of the two groups of buildings: Milan Towers and Côte D'Azur. There were aspects of Mr Mather's evidence that were less than determinative and which the primary judge was justified in relying upon at [189]. 186In any event, once again, any complaint about the assessment of Mr Mather's evidence does not undermine the acceptance of Ms Gale's evidence about her bona fides. Ground 22: In finding the Appellants to have placed importance on correspondence dated 4 March 2007 and failing to give weight to the significance of the survey report dated 28 August 2006 as it related to height contained within correspondence of 4 September 2006 from Mr Warnes to Ms Gale (J [129]). 187This once again concerns the detail of the height issue. It is a complaint that adequate weight was not given to some of Mr Warnes' evidence about an earlier survey report that Ms Gale had. Once again, the asserted error does not undermine the conclusion about Ms Gale's lack of intention. Ground 23: In finding the Appellants to have relied on targeted malice (J [218]) and misdirecting himself in finding it pertinent to the fact finding process to ask what motive Ms Gale might have for intending to harm the Appellants (J [233]) when His Honour should have found that Ms Gale was at least reckless as to harm that would necessarily follow as a result of her conduct (J [259]). 188The difficulty with this ground of appeal is the lack of precision in the identification of the foundation for the misfeasance case. This was raised by the Court in oral argument on appeal, but not satisfactorily addressed. It can be accepted that if Ms Gale set about deliberately to harm Mr Maruncic and MM by taking steps deliberately to slow down, delay and defeat his application by, for instance, providing the councillors with misleading and unfavourable information, that could amount to misfeasance in public office. The primary judge assessed the evidence of Ms Gale and accepted her as truthful in her denial of that case. This was the case pressed: see [218]. It was the case pressed on appeal in argument. 189There was no unlawful action otherwise identified in the pleading or in argument. Thus probability of loss was irrelevant to the case as run. 190Any motive or grudge of Ms Gale, whilst not an element of the tort, would be powerfully relevant to the case as run, as would be its absence. 191The primary judge assessed the oral evidence against the significant body of documentary evidence. Complaint is made that three large exhibits of documents, Exhibits E, F and H, were not sufficiently closely examined with the oral evidence. The first thing to note about that submission is that Ms Gale was not taken through those exhibits in cross-examination. Secondly, it was not put to Ms Gale that she sought to lay a trail of documents to mask deliberate delay. 192I am not persuaded that his Honour's findings accepting Ms Gale's evidence are in any way undermined by not dealing with these exhibits in the chronological narrative. Ground 24: Finding that the acts or omissions relied upon by the Appellants to establish misfeasance: (i) Required identification with some precision as to a certain point in time (J [285]); (ii) In the circumstances of these proceedings must have been committed prior to 13 November 2006 (J [349]) when His Honour should have found the relevant date to be 30 March 2007; and that (iii) The tort of misfeasance could not extend back to a point earlier in time. 193The paragraphs of the submissions relied upon to support this ground are not germane. 194It is otherwise difficult to understand what the ground is. The paragraph apparently the subject of complaint ([285]) deals with causation. Of course, by June 2007, the property had been sold. Mr Toomey accepted in argument that any actions of Ms Gale after the contracts for sale had been exchanged in March 2007 was only evidential of an earlier body of misfeasance. 195His Honour did take the relevant date for the causal operation of any misfeasance to be 13 November 2006 when the mortgagee took possession of the site. It was submitted that the relevant date was March 2007 when the contracts were exchanged. For the purposes of argument, the submission can be accepted. His Honour did not limit his assessment of Ms Gale's evidence by any cut-off date. That assessment included whether she deliberately put misleading material to the councillors from March to June 2007. Ground 25: In failing to provide any basis for his findings that he preferred the evidence of Mr Cesta to that of Mr Dupont, such that his finding was against the weight of evidence (J [354]). 196The ground is directed at [354] of the reasons which are as follows: "I note that this conclusion does not depend upon which valuation expert was to be accepted. The problem for the Plaintiffs is more fundamental than that. However, if the point had been reached, I would have accepted and applied the approach adopted by Mr Cesta, the Defendant's valuation witness." 197The matter was entirely obiter. The primary judge had rejected the claim. If the issue had been relevantly material there would be force in the appellants' complaint. Ground 26: In finding the Appellants' claim for damages was limited to the loss of the chance to make a profit, thereby failing to take account of the value of the land itself (J [284]). 198The same can be said about [284] of his Honour's reasons which were as follows: "As will be seen, the Plaintiffs' case on damages is based upon the loss of a chance to build 'Milan Towers' and to make a profit from sale of the apartments. There is considerable force in the Defendant's submission that there was no realistic chance of this happening at any time that matters for the purpose of these proceedings." 199Whether or not it is appropriate to take the value of the land separately from profit is open to doubt. The appellants' claim was that the alleged wrongs prevented the development of the land according to Mr Maruncic's plans. It is difficult to see why those claims are not to be approached by way of the need to show a profit on sale. 200In any event, the primary judge was not drawing final conclusions but stating the nature of the appellants' case, as he understood it, as part of what his Honour referred to at [286]: "What I have said is sufficient to note the difficulties for the Plaintiffs in the case, should this point be reached." 201I have read the reasons of Basten JA. I agree with them. 202For the above reasons, the order of the Court that I propose is: appeal dismissed with costs. 203BASTEN JA: The Port Stephens Council was the consent authority for most land development applications within its boundaries. Prior to 2005, the appellants had obtained consent for a major residential development at Nelson Bay. In early 2005 the appellants sought a variation of the consent, increasing the size of the project. It was ultimately refused in July 2007. At no stage did the appellants challenge in the Land and Environment Court any deemed or actual refusal of the application. The validity of the process has not been reviewed. The appellants brought proceedings in tort, seeking to recoup their losses by a claim for damages. They sued the Council in negligence and for the intentional tort of misfeasance in public office. 204Both claims were rejected by Johnson J in the Common Law Division: MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 6) [2011] NSWSC 1613. The appellants challenge that decision. I agree with Allsop P that the appeal should be dismissed with costs. I agree with the reasons given by the President, which I would supplement in the following respects.

Nature of causes of action 205Where an authority with power to approve a development acts invalidly, but on reconsideration grants the approval, the developer may have suffered significant financial expense as a result of the delay caused by the first invalid decision. Under the general law, no damages are recoverable merely because the decision causing the loss was invalid. Invalidity is generally neither a sufficient, nor even a necessary, precondition to recovery of damages. No case suggests that the statutory conferral of judicial review functions on the Land and Environment Court, nor the replacement of prerogative writs by s 69 of the Supreme Court Act 1970 (NSW), has created a right to recover damages for invalid decision-making. 206Public authorities may act in various ways which engage responsibilities and obligations under the general law. The Council will be liable for the negligent driving of garbage trucks. It may also be liable for the negligent carrying out of a building inspection and the negligent provision of information it is under a legal duty to supply. However, the consideration of a development application with respect to land falls into a different class of conduct. It involves a determination as to whether a legal impediment to development of land in private ownership should be relaxed: Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act"), s 76A(1). It is an exercise of public power subject to statutory regulation (see, eg, EP&A Act, s 79C) and subject to the controls imposed by various statutory instruments (eg, local environmental plans and development control plans). One matter the Council is required to take into account is simply described as "the public interest": s 79C(1)(e). The Council is an elected body, although it may delegate its powers to officers: see McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504 at [157] and [161] (dealing with a claim of bias in determining a development application) and at [163]-[168] and [176]-[183] (dealing with alleged bias on the part of a council officer, not dissimilar to the allegation in this case). 207Private landholders seeking approval are entitled to have their applications considered within a reasonable time. Once the prescribed period (40 days) has expired, the applicant is entitled to treat the failure to make a determination as a deemed refusal, from which it may appeal to the Land and Environment Court: EP&A Act, ss 82 and 97. Alternatively, an applicant aggrieved by unreasonable delay could obtain an order in the nature of mandamus directing the Council to determine the application. The fact that the Council is, in this sense, under an obligation to act within a reasonable time, does not mean that it is liable in negligence for damages for failing to proceed with reasonable expedition. 208Needless to say, if the applicant proceeded to lodge an appeal with the Land and Environment Court, no claim in tort would lie against the Court for failing to take reasonable care in determining an application although, again, this Court could make orders requiring the Land and Environment Court to carry out its functions according to law. 209In these circumstances, the concept of a duty in the Council to act expeditiously may be conceded; it is a statutory duty subject to both appellate and judicial review. There is no basis for implying a right to damages for breach of that statutory duty, nor was one suggested. 210The primary cause of action relied upon by the appellants was misfeasance in public office. The availability of such a cause of action, as a matter of principle, was not in dispute. However, the existence of a cause of action for intentionally exceeding or abusing a public office does not sit comfortably alongside a cause of action for careless carrying out of the functions of public office. 211In Northern Territory of Australia v Mengel [1995] HCA 65; 185 CLR 307 at 348 the joint reasons considered the possibility that misfeasance in public office should extend to the case where the officer ought to know that he or she lacks power to take a step which has a foreseeable risk of harm. In respect of foreseeable harm, the reasons stated: "So far as unintended harm is concerned, the proposed reformulation ... serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not." 212Principles of coherence amongst potential causes of action is an important factor in determining whether a duty of care is to be imposed. 213The Civil Liability Act 2002 (NSW) assumes that a duty of care may arise in respect of a "special statutory power" by stating that "any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power": s 43A(3). For this purpose the phrase "special statutory power" means a power conferred by or under a statute, being a power of a kind that persons generally are not authorised to exercise without specific statutory authority: s 43A(2). This provision appears to incorporate one ground of invalidity as a precondition to establishing liability. More importantly, it is based on an implicit assumption that there may be a duty of care in considering the exercise of at least some "special statutory powers". 214As first enacted the Civil Liability Act expressly stated that it created no cause of action: s 11 (since repealed). The point may have been deemed to be self-evident. In any event an assumption by the legislature as to the operation of the general law does not make it so, absent an intention to change the law in that respect: cf Mabo v Queensland [1988] HCA 69; 166 CLR 186 at 211 (Brennan, Toohey and Gaudron JJ); Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at 569 (Wilson J). There is no suggestion that the Act sought to create any new cause of action. 215The pleading, set out at [80] above, was obscure: there is no duty, generally, to avoid "foreseeable economic loss", as suggested on the appeal. Rather, it appears that the pleading relied on a form of representation, though no specific representation was actually pleaded. The appellants claimed that the Council's "conduct" allowed Mr Maruncic to believe that: (a) "a bona fide decision on the merits of the application would be made", and (b) the Council had authority to make such a decision, although it was knowingly exceeding the limits of its authority. 216In respect of (a), no doubt the Council had a public law duty to determine the appellants' application in good faith; had its officers suggested otherwise they would have been wrong in law. In respect of (b), the pleading is redolent of an allegation of misfeasance in public office. The point of distinction is not readily apparent. 217There are a number of cases where councils have been held liable for negligent misrepresentations. However, none is comparable with the allegations in the present case. In L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 1) [1981] HCA 59; 150 CLR 225, a council was held negligent for failing to include a notification of a road widening proposal on a statutory certificate. The answer given, in the negative, was wrong. The present case was not one in which there was any allegation that an officer had negligently misrepresented an existing state of affairs involving the exercise of a council power. 218In Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1, the owners of rural land sought to have it rezoned for the purposes of subdivision. For that purpose, it was necessary to obtain a water supply, at the owners' cost, from the Water Board. The Water Board gave an estimate of the likely cost which was found to be substantially in excess of the actual cost. When the developer revealed the estimate to its financier, the financier moved to realise the security for the loan. The prospective developer sued the Water Board for its negligent estimate of cost. The joint reasons of Gleeson CJ, Gummow and Hayne JJ noted that the case was one in which it was not useful "to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim": at [8], quoting Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at 289-290. The Court held that the Board had been under no duty to provide the estimate which, under some pressure, it gave. 219That case too differed from the present in the sense that the Water Board had no knowledge of the relationship between the developer and its financiers, nor that its cost estimate would be used in a particular way by the developer. In the present case, the key factors were as follows: (1) with respect to power, there was a real question as to whether the application for variation could be determined under s 96 of the EP&A Act or whether a fresh development application was required; (2) it was no part of the appellants' case that such a power was not available - indeed it had relied upon and insisted upon the existence of such a power at all relevant times; (3) the doubts of the relevant officer as to the propriety of using s 96 had been made clear to the appellants, they having their own expert advice which they followed in disregard of the opinions expressed by the Council's officer, and (4) the Council dealt with the matter as an exercise of power under s 96. 220The function being exercised by the Council in granting or refusing approval to the variation of a consent required the weighing of a number of factors relevant to the amenity of an area which was to be experienced by both users of the proposed development and others living or having business in the vicinity. The height of the proposed development exceeded those permitted by the relevant statutory instruments. Approval had already been given to an increase in height above those limits. It was largely an evaluative judgment for the representatives of the local area to determine whether a further indulgence should be allowed. To refuse an increase in the size of the building may well have affected its financial viability to the developer. Whether or not that was a relevant consideration in respect of the proposed variation, the existence of public interests potentially in conflict with the private interests of the developer militate against a finding of a duty to the developer of the kind pleaded. 221The only remaining feature of the claim in negligence was the allegation that the matter had not been dealt with "bona fide". At least, that appears to have been an implicit element of the claim to the extent that it relied upon a misrepresentation that the application would be dealt with in good faith. However, an allegation that the relevant officer misrepresented that the application would be dealt with in good faith, when it was not her intention so to do, does not imply a lack of reasonable care, but an intentional tort such as misfeasance in public office. 222It follows that no duty of care of the kind pleaded by the appellants arose in the present case.

Grounds for complaint about reasons 223As noted by Allsop P, the appellants sought to rely upon the remarks in the reasons of Hunt AJA in Monie v Commonwealth of Australia [2005] NSWCA 25; 63 NSWLR 729 as identifying the "approach" to be taken to the present appeal. In particular, reliance was placed upon the following statement of Hunt AJA at [43]: "(5) But the trial judge's advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay." 224The suggested consequence of a failure to give "specific reasons" of the kind suggested, is that the appellate court "is obliged to give careful scrutiny and consideration to those findings": at 43. The appellants sought to rely upon the approval for that approach given by Callinan and Heydon JJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [166]-[167]. The statement approved and set out in full at [166] was taken from a judgment of the English Court of Appeal in Goose v Wilson Sandford & Co [1998] EWCA (Civ) 245, which was in similar terms to Monie. The element of delay was treated as relevant to the question whether "the process before the [Refugee Review] Tribunal was fairly conducted": at [167]. 225It seems doubtful that Hunt AJA intended to prescribe an obligation inherent in judicial decision-making. Rather, the passage set out above at [9] is redolent of an appellate court unsatisfied with the reasoning of the primary judge, seeking explanations as to why the process may have miscarried. For example, the suggestion that the very fact of delay led to pressure to complete and deliver a judgment which may therefore be defective can hardly rise above the level of speculation: Monie at 43 and (8). The same may be said of the suggestion that delay may demonstrate that the judge was "unable to grapple adequately with the issues" and has therefore made the decision "which was the easiest to make": 43. It is, in truth, also a matter of speculation as to whether demeanour-based findings were made and noted at the time of the trial or only shortly before the judgment was delivered. It is only some apparent flaw in the reasons given which could allow the appellate court to indulge in speculation as to the process of decision-making at trial. 226Gleeson CJ in NAIS provided the following analysis at [5]: "Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. ... There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. [See Monie v The Commonwealth ... and the authorities there collected.] Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again." 227To invite the Court, as the appellants did, to approach the reasons given by the primary judge as presumptively infected by error, because of the delay in delivering them, was to reverse the proper approach. Rather, to the extent that the appellants were able to point to aspects of the reasons which were unsatisfactory or suggestive of error, it may have been relevant to take account of the delay in determining whether there had in fact been a miscarriage of justice. 228Were the approach suggested by the appellants correct, it would tend to be destructive, rather than protective, of the proper administration of justice. Many cases, especially in the superior courts, of which this is clearly one, are not readily disposed of by way of ex tempore reasons delivered at the completion of the hearing. As a practical matter, some delay is inevitable. Indeed, a degree of delay sufficient to allow a careful reconsideration of the documentary and oral evidence in the light of final submissions may be desirable, if not essential. Thereafter, it is necessary for a judge to balance the pressures of additional cases, some of which may have been granted expedition and others of which may involve criminal proceedings and issues of liberty of the individual. If delay were to lead to retrial in a significant number of cases, the effect would be self-perpetuating. Those to suffer most would be the litigants involved, not merely in the cases requiring retrial, but in all cases. Comfortable platitudes must give way to practical reality. The basis of discernible error in a particular case is rarely capable of transmogrification into a legal principle. 229BERGIN CJ in Eq: I agree with Allsop P. I also agree with Basten JA.

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: 21 December 2012

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