HER HONOUR: These proceedings are an appeal pursuant to s 526(1)(a) of the Local Government Act 1993 relating to the declaration of the rating category of certain land at Broulee in the Eurobodalla Council Local Government Area (the Council).
The fundamental issue in dispute between the parties is the date from which the land should have been characterised as farmland, not the determination of whether the land should now be characterised as farmland.
The appeal has been the subject of a number of mentions before the Court for case management and has been the subject of a s 34 conference that was terminated. Upon termination of the s 34 conference, the appeal was listed before the registrar for directions to facilitate the hearing of the matter. The registrar made directions to that end on 14 December and 17 December 2020.
The Applicant has sought a review of that decision of the registrar pursuant to r 49.20 of the Uniform Civil Procedure Rules 2005. Such applications are a review of the decision and not an appeal from that decision. Where a review is sought an applicant need not demonstrate error on the part of the registrar. However, there is an onus upon the Applicant for such review to make out a case that in the interests of justice the Court should exercise its discretion to set aside or vary the registrar's decision. Where the decision sought to be reviewed is one of practice and procedure the Applicant will normally be required to demonstrate an error of law or a material change in circumstances. Even if such change in circumstances or an error are demonstrated the Court may still decline to exercise its discretion where the interests of justice do not require an intervention: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [7]-[8].
In this application, the Applicant seeks to set the registrar's directions aside and substitute the directions sought by it at the directions hearing before the registrar. In effect, the Applicant seeks that the hearing be fixed at a local venue in person rather than by MS Teams and that the Council be ordered to give to the Applicant discovery. The foundation for this review claim is asserted to be that the Applicant "has not been treated fairly and the registrar has shown bias towards the Respondent's lawyers": affidavit of Mr Sher, 12 January 2021 at [19].
In his oral address at the hearing of the Notice of Motion for review, Mr Sher, agent for the Applicant, particularised his complaints as:
1. The Applicant would be disadvantaged by the venue for the hearing being by MS Teams due to technical difficulties in the locality in which the land, the Applicant and Mr Sher are located; the unavailability of the community to be physically present at the hearing in order to participate should they wish to do so with the hearing; and thirdly, that the need for an onsite inspection can only be facilitated if the matter is heard locally rather than by MS Teams;
2. In pursuing the just, cheap and quick resolution of the matter, it is necessary that the Council give the Applicant discovery so that the Applicant can have access to material that it believes will assist it in its case;
3. The orders made by the registrar are unwieldy and unworkable; and
4. The registrar has displayed bias by requesting on a number of occasions the authority to appear as agent, the communications not always going to the agent from the registry, and a lack of what was referred to as "professional etiquette" in the registrar's dealings and the registry's dealings with the Applicant's representative agent.
Both parties filed affidavits setting out the history of communications relating to the making of the orders to which the review relates.
The decision of the registrar to make directions that accords with one party's submissions and not another is a matter entirely relating to practice and procedure and falls to the discretion of the registrar. The orders made in this matter were entirely uncontroversial. The orders fixed the matter for a hearing date, determined the appropriate venue for the hearing and made directions to facilitate the filing of evidence. The Applicant's proposed short minutes in this matter, apart from providing for a hearing date onsite and for discovery, made no directions or any provision for the filing of evidence. Each of the requirements in relation to the determination of a venue and the making of directions to facilitate the matter proceeding to a hearing and the filing of evidence and the provisions of documents are all matters which are dealt with in the Court's Miscellaneous Appeals Practice Note.
In addition, the Court has adopted the COVID-19 Pandemic Arrangements Policy that leaves to the registrar (or the sitting commissioner or judge of the Court) a discretion to determine the venue and directions for any hearing to facilitate not only the hearing of a matter but the safety of both members of the Court and those that come to the Court for the purposes of the hearing of the matter.
The registrar's decision in fixing the matter for hearing via Teams is not one which, in the exercise of my discretion, I consider to be one that should be varied in the interests of justice. The nature of the issue between the parties in this matter would not in the ordinary course warrant a hearing at the Local Court proximate to the land nor, in the ordinary course, would a site inspection of the land be required.
As I earlier observed, the only issue in dispute between the parties is what the land should have been categorised in January 2019, not in March 2021. Those matters are capable of being ascertained by the Commissioner by the provision of evidence in accordance with the registrar's directions for the filing of affidavits, the provision of photograph or other evidence as to the state of affairs at the relevant date, and all of those matters can be accommodated either from or in Sydney such that even if the COVID‑19 Pandemic Arrangements Policy was not in force, there is nothing in the interests of justice that would dictate that the Applicant's request for a local hearing or an onsite inspection would be granted in the circumstances of the case on the basis of the material that is presently before me.
The just, cheap and quick disposal of the matter would be accommodated by the directions made by the registrar for the filing of evidence and the capacity of the Applicant to establish its case without the need for a physical presence in the local area.
With the pandemic arrangements policy, the Court is facilitating access to justice by a number of different means. One of those means is a virtual hearing by MS Teams. Whilst the Court recognises that there are some technical deficiencies in MS Teams, those deficiencies have not operated to deny either the Applicant or the Respondent in this case access to justice or natural justice. Mr Sher and Mr Moschoudis have, for the purposes of today's Notice of Motion, appeared via MS Teams, and apart from a very short period of time where Mr Sher's screen was frozen, there was no technical difficulty that prevented either party putting the case that they wished.
The Court has arrangements so that interested third parties are able to observe court proceedings by either accessing the MS Teams system or by making telephone numbers available so that people can listen to the proceedings if that is what they wish to do. Arrangements are in place and on the Court's website to advise uninterested - that is, people not party to the proceedings - uninterested third parties who may wish to access the proceedings. Those arrangements are, in my opinion, sufficient to enable an third party to participate in the proceedings should they wish to do so. The then publication on the Court's website and the caselaw system of a judgment will again alert the local community to the determination of the matter.
If during the course of the proceedings it becomes apparent that the MS Teams system is operating in a fashion which is so disadvantageous to either party that it should be abandoned and another system be put in place, that can be addressed by the Commissioner that has been allocated to hear the matter on the day and, as I said, would more likely require the attendance of the parties at the courthouse in Sydney rather than the relocation of the Court to a courthouse in Eurobodalla.
Accordingly, I do not consider that the registrar's determination of venue is one that disadvantages either party or the public at large nor are the technical difficulties as presently available such that either party would be so disadvantaged such that the interests of justice would dictate that I should overturn the registrar's determination of venue and fix a hearing either in person or locally.
In relation to the determination that discovery is unnecessary, discovery is generally not granted in class 3 miscellaneous appeals nor in any other class of the Land and Environment Court without leave. The Miscellaneous Appeals Practice Note makes it plain that the parties are to deal with requests for documents in an informal request, and if that informal request is not met, then there are procedures such as the issuing of notices to produce that can require the production of certain nominated documents.
Discovery is an onerous, expensive and time-consuming process and one that the circumstances and the subject matter of this case do not warrant. The failure to order discovery in this matter does not disadvantage the Applicant. Requests can still be made in the ordinary course for the provision of documents and if such requests are to be made, they should be made sooner rather than later so that the hearing date will not be prejudiced by late requests for documents.
Accordingly, I do not consider that the registrar's disinclination to order discovery is one that would warrant a review of her decision such that I would exercise my discretion to overturn or review the orders made by her.
To the extent that it was submitted that the registrar's orders are unwieldy and unworkable, as I observed, the registrar's directions are unremarkable. They provide for the provision of written evidence. This Court does not engage in trial by ambush and the directions made by the registrar make it plain that both the Applicant and the Respondent will be in a position at the first day of the hearing to know what each other's case is such that the just, cheap and quick disposal of the real issues in dispute can be met.
Accordingly again, there is nothing in the interests of justice that would warrant me reviewing the registrar's orders on the basis that they are either unwieldy or unworkable.
Finally, the assertion that the registrar and the registry staff have demonstrated a bias either in favour of the Respondent's solicitors or against the Applicant, I reject that submission. This Court has a specific provision in relation to agents appearing in proceedings such as this. It is unremarkable in circumstances where a person is appearing through an agent for the appropriate registrar or registry staff to request the authority of the agent at the time of the appearance so that the Court can be satisfied that the Applicant is being represented by somebody that they have authorised to appear and bind them on their behalf.
In relation to the assertion that correspondence and emails have not been received by the agent and that there is some obligation of professional etiquette that is to be afforded to the agent, I do not understand there to be any requirement under the rules or the conventions that the agent in addition to the Applicant is required to be kept appraised of the correspondence of the Court. The Court has dealt with the Applicant being the party to the proceedings and then the obligation is on the Applicant to ensure that her agent is properly informed of what is occurring. Apart from the bare assertion of bias, the Applicant has failed to demonstrate any actual or apprehension of bias on the part of either the registrar or the registry staff that would indicate that in the interests of justice, the registrar's orders should be varied or set aside.
Accordingly, for the reasons that I have outlined, the Applicant has failed to demonstrate that there is any reason in the interests of justice that would warrant the Court in this review in exercising its discretion to vary or set aside the registrar's decisions of either 14 or 17 December 2020 and, accordingly, I propose to dismiss the Notice of Motion.
[2]
Costs
Rule 3.7(2) of the Land and Environment Court Rules 2007 provides that in proceedings such as the current appeal, the Court is
"not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances."
Mr Moschoudis, counsel for the Council in this matter, seeks an order that the Applicant pay the Council's costs of the Notice of Motion on the basis that the Council by email dated 13 January 2021 corresponded with the Applicant and Mr Sher where, after reciting the Notice of Motion, stated:
"It is the respondent council's position that your application is misconceived, and it will oppose such application.
The respondent requires by 5pm this Friday 15 January 2021 that the applicant confirm in writing that the notice of motion and the orders it seeks is abandoned and will not be proceeded with, failing which we hereby give notice that the respondent will seek its costs on an indemnity basis upon all attendances in relation to the motion.
We strongly urge you to seek legal advice."
In circumstances such as the present where the usual order is a no order as to costs in class 3, where the Council was seeking to put on notice an applicant that it was going to seek an order for costs in accordance with the provisions of r 3.7(2) of the Land and Environment Court Rules 2007 it is appropriate that the Council identify the basis on which it says that it would be fair and reasonable for a costs order to be made. The mere assertion that an application is "misconceived" is insufficient in my view to give the Applicant sufficient understanding of the basis upon which the application for costs would be sought.
As I said, the usual order in class 3 proceedings are that each party pay their own costs of any part of the proceedings, unless fair and reasonable. Whilst Mr Sher and the Applicant have been unsuccessful in this Notice of Motion, they were entitled to seek a review of the registrar's decision and as Mr Sher observed, whilst I have come to a conclusion which is different from the submissions he put, they were submissions that it was open for him to put.
Accordingly, I do not consider that it is fair and reasonable in the circumstances of this case that an order for costs be made.
[3]
Orders
Accordingly, for the reasons that I have outlined, the Court orders that:
1. The Notice of Motion filed 12 January 2021 is dismissed; and
2. The matter is adjourned to the hearing that has been fixed for this matter on the date in March.
[4]
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: 10 February 2021