Northern Beaches Council v Tolucy Pty Ltd

Land and Environment Court (NSW)|2019-10-10|Before: Duggan J, Ms J

Judgment

The Applicant (the Council) has filed a 56A Appeal from the decision of a commissioner approving a development application made by the Respondent for a residential aged care facility and serviced self-care dwellings at Terrey Hills (the Development Consent). The 56A Appeal was filed 33 days after the date of the decision. The Respondent contends that a 56A Appeal must be lodged within 28 days of the material date and therefore the appeal is 5 days out of time and should be dismissed as incompetent. The Applicant contends that the time for the lodgement of the 56A Appeal was 60 days and therefore it was in time. If, however, the appeal was filed out of time the Council seeks an extension of time to appeal. Any application to extend time for the appeal is opposed by the Respondent.
I am therefore, asked to determine the time by which an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (LEC Act) must be commenced. If that period is 28 days, whether, in the circumstances of this case, the time for the commencement of the 56A Appeal should be extended.
For the reasons that follow, I find that the time for appeal was 28 days pursuant to Rule 50.3 of the Uniform Civil Procedure Rules (UCPR). I find the appeal was not filed within time and I extend the time for appeal in the exercise of the discretion conferred by UCPR 50.3

Legislative provisions

Each party relies on a different rule by which it is contended that the time for appeal is to be determined. The Council suggests that the time is 60 days as fixed by Rule 7.1 of the Land and Environment Court Rules (the LEC Rules) that provides: 7.1 Time for appeal (1) A person may commence proceedings in relation to an appeal, objection or reference to the Court: (a) except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises, or (b) in the case of an appeal against the refusal of a claim under section 36 of the Aboriginal Land Rights Act 1983, at any time within 4 months after the refusal. (2) This rule does not apply if the time within which an appeal, objection or reference may be made to the Court is expressly provided for by or under the Act or instrument that confers the right of appeal, objection or reference.
The Respondent suggests that the time is 28 days as fixed by UCPR 50.3 that provides: 50.3 Time for appeal (1) A summons commencing an appeal must be filed: (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1) (c) must be included in the summons commencing the appeal.
It is common ground between the parties that the determination of which rule is applicable to a 56A Appeal turns on whether Rule 7.1 of the LEC Rules is applicable to s 56A Appeals and as a consequence a local rule within the meaning of s 11 of the Civil Procedure Act 2005 (CP Act) such that the local rule prevails over the UCPR. 11 Relationship between uniform rules and local rules (1) The uniform rules prevail over any provision of any local rules unless the uniform rules expressly provide that the provision of the local rules is to prevail. (2) One rule prevails over another, as referred to in subsection (1), to the extent only of any inconsistency between them. Rule 1.7 of the UCPR provides: 1.7 Local rules that prevail over these rules The rules of court specified in Schedule 2 prevail over these rules.
With respect to the LEC Rules, Schedule 2 of the UCPR then provides all of the local LEC Rules prevail over the UCPR.
A determination of this question turns on whether the reference to "appeal" in LEC Rule 7.1 includes a reference to an appeal under s 56A (56A Appeal) or if it is limited to appeals as referred to generally in ss 17 to 19 of the LEC Act, being appeals to the Court from decision makers outside the Court (Originating Proceedings).
It is common ground that if the reference to "appeal" in LEC Rule 7.1 includes a reference to s 56A Appeals then the time is 60 days for the filing of a 56A Appeal. If "appeal" does not include a 56A Appeal it is agreed that the time for appeal is 28 days after the material date. Therefore, the determination of the relevant date for a 56A Appeal turns on the construction of LEC Rule 7.1.

Previous authorities on this question and Judicial Comity

The only authority that was able to be located by either party where the present issue was considered was the decision of Pepper J in Teh v Dormer [2016] NSWLEC 42 where her Honour held at [8]: The time limit within which such an appeal must be filed is governed by r 7.1 of the Land and Environment Court Rules 2007 ("the LEC Rules") and not, as was submitted to me by the respondents, Pt 50 of the Uniform Civil Procedure Rules 2005.
It was submitted by the Council that, for reasons of judicial comity, I should not depart from the decision of her Honour. The Respondent submitted that the observations of her Honour were obiter and therefore not binding upon me or, in the alternative, for the reasons it has advanced in these proceedings, the decision of her Honour is plainly wrong and should not be followed.
I am not satisfied that the decision of Pepper J on this matter was obiter. True it was, Pepper J determined that even on a 60 day time period for appeal she was not inclined to extend the time for appeal a further 21 months after the expiration of that date, and therefore, it was likely that the exercise of her discretion would have been the same if the time limit was 28 days. However, the finding she made at [8] was a necessary step in identifying the relevant time period for which the exercise of the discretion related. Such a finding was a necessary step in the exercise of the relevant discretion. Accordingly, I accept the Council's submission that it is necessary to consider that finding as part of her Honour's ratio, as without that finding, the factors her Honour took into account in the exercise of her discretion (such as the length of the delay in bringing the proceedings and the prejudice from the delay) would have been materially different.
As a consequence I am required to consider whether I should, as a matter of judicial comity, follow the decision of Pepper J. As was observed by Yeldham J in Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820 (citations omitted): I do not think that I am relieved by the decision of Needham J. of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a judge to abide by the decision of another judge of co-ordinate jurisdiction, but a judge of first instance will, as a matter of judicial comity, usually follow the decision of another judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong…As I have said, I think I am bound, first, to consider the matter for myself in order to decide whether I ought to follow the decision of Needham J.
Accordingly, it is appropriate that I consider the matters put to me before deciding whether I should follow the decision of Pepper J.

Approach to construction of LEC Rule 7.1

The resolution of the question posed in this matter is one of statutory construction.

Nature of the Rules (LEC and UCPR)

Section 21 of the Interpretation Act 1987 defines a statutory rule as including a rule of Court. The approach to interpretation of a statutory rule is not materially different to the interpretation of legislation, and accordingly the same principles apply: 4Nature Inc. v Centennial Springvale (2017) 224 LGERA 301 at [45]-[57]; [106]-[107].

Relationship between LEC Rules and UCPR to assist in interpretation

Both parties submitted that the present LEC Rules had been made to accommodate the introduction of the CP Act and UCPR as is reflected in s 10 of the CP Act that provides: 10 Rules of court taken to include uniform rules (1) Rules of court are taken to include the uniform rules to the extent to which they are applicable in that court. (2) Subsection (1) does not authorise the person or body having power to make local rules to amend or repeal a uniform rule in its application to that court.
As a consequence the LEC Rules were significantly revised to take account of the incorporation in its rules of the relevant provisions of the UCPR. I accept the submissions of the parties that the presently formulated LEC Rules and the UCPR form part of a legislative scheme such that the two sets of rules and the CP Act may be called in aid in the task of interpreting the provisions in question with a view to construing the inter related provisions so as to produce a "sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation": Commissioner for Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722 per Kirby P.

Principles of statutory construction

As a matter of general principle a statute is to be construed in a manner that promotes the object or purpose of the legislation than one that would not: s 33 of the Interpretation Act 1987; Mills v Meeking (1990) 169 CLR 214 at 235. Further, the legislation is to be construed: according to its context so that it is consistent with the language and purpose of all of the provisions of the statutes; on the prima facie basis that its provisions are intended to achieve harmonious goals; and, where conflict appears to arise from the language of particular provisions such conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to best give effect to the purpose and language of those provisions whilst also maintaining the harmony it is intended to achieve: Project Blue Sky v ABA [1998] 194 CLR 355 at [69]-[71]. That being said, where words are clear and unambiguous they are to be given their clear and ordinary meaning: Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 per Gibbs J.

Relevance of historical background to provisions of LEC Rules

As a general proposition, as far as possible, a legislative provision should be construed without reference to its legislative history: National Parks and Wildlife Service v Haig (1990) 21 NSWLR 482 at 490. The Council submits that the meaning of LEC Rule 7.1 is clear and recourse should not be had to the history of the provision to assist in its interpretation. This proposition is consistent with the general principle stated in Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) 239 CLR 27 at [47]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)
The Respondent relies on the legislative history of LEC Rule 7.1 to assist in its interpretation as, it says, the wording of LEC Rule 7.1 is, in all material respects, identical to the wording under the LEC Rules prior to the amendment to bring accord with the UCPR. It says, in essence, that such an approach is warranted in this case as the heading of the present rule refers in terms to the earlier rule: s 34(1) and (2)(a) of the Interpretation Act 1987. Further, it contends that the LEC Rules in the present formulation amounted to a "remaking" of the earlier rules, (albeit with different numbering and the (for present purposes irrelevant) addition of sub-paragraph (1)(b)), and in such circumstances it is permissible, as part of the context of the legislative provision, to have regard to the legislative history even where there is no ambiguity on the face of the provision: Patsalis v State of New South Wales (2012) 81 NSWLR 741 at 751-752; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [12]-[21].
I accept the Respondent's submissions. I consider that it is both desirable and necessary to have regard to the legislative history to ascertain context and purpose of those rules and the relationship to the UCPR. I do not consider the language clear on its face where there is the use of the singular word "appeal" and the use of the word in conjunction with other words. The statutory intent, as to whether the two uses of the word are the same or different, being unclear, requires a consideration of text, context and objectives which can be assisted by reference to the historical context.
I was provided with the relevant historic versions of the LEC Rules and those versions disclose that at all relevant times the LEC Rules contained a provision in similar terms to the present LEC Rule 7.1. In 1985, the LEC Act was amended to introduce the internal appeal process in 56A Appeals. As part of that change "Division 8 - Appeal" was introduced into the LEC Rules that relevantly provided: 16 Application This Division applies to an appeal to the Court under section 56A. 17 Time for Appeal (1) An appeal must be instituted within 28 days after the order of decision is made or within such extended time as the Court may fix. (2) The Court may extend time under subrule (1) at any time. ….
Thereafter, at all times, the LEC Rules contained a separate rule relating to the time for s 56A Appeals (28 days) and the time for an "appeal, objection or reference" (60 days). At the time of the commencement of the CP Act and UCPR, the relevant LEC Rules (1996) were Part 13 Rule 35 for s 56A Appeals and Part 17 Rule 1 for an "appeal, objection or reference".
In December 2007, the LEC Rules (2007) were made. The explanatory note to the making of the rules stated: The object of these Rules is to repeal and remake the Land and Environment Court Rules, 1996 in connection with the extension to the Land and Environment Court of the Civil Procedure Act and the Uniform Civil Procedure Rules, 2005.
The relevant consequence of this remaking, on the issue before me, was to "remake" in a largely identical form (apart from extending the provision to appeals under the Aboriginal Land Rights Act, 1983 - as provided for in (1)(b) of the Rule) the former provision of Part 17 Rule 1 and to delete, inter alia, Part 13 Rule 35. The remade rule is now LEC Rule 7.1. As observed earlier, the remade rule refers in its heading to former Rule 17.1 and makes no reference to former Rule 13.35.
Two further relevant amendments were made in 2015 to the LEC Rules and the UCPR, which had the effect of removing the application of the local LEC Rule relating to costs from applying to s 56A Appeals with the effect that Schedule 2 of the UCPR now provides specifically for s 56A Appeals to be subject to the UCPR without stated exception.

Reliance on extrinsic material - Court Practice Note and Attorney General's Department Publication

The Respondent relies as relevant extrinsic evidence to which recourse may be had under s 34 of the Interpretation Act 1987 upon the LEC Practice Note- s 56A Appeals (the Practice Note) that commenced on 21 December 2015 which relevantly provides: Applicable rules 8. Attention is drawn to Part 50, entitled "Appeals to the court" of the Uniform Civil Procedure Rules 2005 (UCPR), which regulates (among other things): (a) the time for commencing an appeal; …
The Respondent submits that as the Practice Note is made pursuant to the provisions of s 15 of the CP Act it comprises a "disallowable" instrument (see: ss 40 and 41 of the Interpretation Act 1987) and as a consequence the force that it has as a tool to the construction of the LEC Rules is compelling.
The Council does not submit that the Practice Note is irrelevant but does submit that it would have little use or weight in determining the appropriate construction of LEC Rule 7.1 as: 1. The commencement of the Practice Note post-dates the commencement of the UCPR in the Land and Environment Court, and absent evidence that it is part of a statutory scheme its relevance is questionable: Council submissions [63]; 2. Where there is inconsistency between a Practice Note and a rule, the provisions of the rule must prevail: Council submissions [61]; 3. Practice Notes must be read in conjunction to the rule and not elevated to a status they do not have: Council submissions [62]; and Baulderstone Hornibrook Pty Ltd v HBO & DC Pty Ltd [2001] NSWSC 821 at [14]. 4. The Practice Note is of little utility in construing the terms of LEC Rule 7.1 as, by its terms, it does not purport to give effect to UCPR Part 50, rather it is intended to operate as a case management tool and to draw the parties' attention to the UCPR.
I do not find the Practice Note of any relevant assistance to the task of the construction of LEC Rule 7.1. The stated purpose of the Practice Note and the reference to "attention" being drawn is not of any assistance in determining the meaning of the words used in the relevant rule. Accordingly, for the reasons outlined by the Council I do not take it into account in determining the proper construction of LEC Rule 7.1.
In addition to the Practice Note, the Respondent relies upon a paper produced by the Attorney General's Department of NSW dated August 2005 and titled: An Introduction to Civil Procedure Act, 2005 and Uniform Civil Procedure Rules, 2005. It is suggested that this document outlines some of the policy considerations in the making of the UCPR. In particular the Respondent relies on the reference at page 7 where it states: (t)he time limit for carrying out a step in proceedings has generally been standardised to 28 days.
I do not consider this document to be relevant extrinsic material to which I could have regard in the construction of the provisions of the rule: s 34 Interpretation Act 1987. Even if I could, the general statement relied upon is clearly the subject of express exceptions including the very provision the subject of scrutiny here, LEC Rule 7.1. Therefore, I do not have regard to this document in the task of statutory construction in this matter.

Finding as to construction of LEC Rule 7.1

The Council contends that LEC Rule 7.1 should be construed by having regard to the word "appeal" where used in that rule. It contends that by using that word there is a clear intent by the language to include all proceedings that are capable of being described as an "appeal". It is submitted that proceedings brought pursuant to s 56A are relevantly referred to in that section as an "appeal" and therefore the word must be read as including proceedings of that type. It submits that the fact that it appears as one word in a composite expression "appeal, objection or reference" is not material as where the component parts of that expression are intended to be limited in scope to Originating Proceedings the language of the LEC Act and Rules make such provision by qualifying the words with the expression "which may be disposed of by the Court in class 1, 2 or 3 of its jurisdiction": see, for example, the definition of "appeal" in s 39 of the LEC Act. The Council contends that the fact that the LEC Rules were 'remade' does not assist in construction - as where legislation is clear in effect - it should be treated as amending the law, notwithstanding it is stated as remaking: Riddle v R (1911) 12 CLR 622 at 632 and 638.
The Respondent submits that the word "appeal" should be read as part of the composite expression "appeal, objection or reference" and not an isolated word. It noted that such an expression is used in the LEC Rules only to refer to an Originating Proceeding as referred to in the jurisdiction conferred by the LEC Act in ss 17-19. Where the composite expression is used it must be limited in this way, else there will be a conflict in the operation of the LEC Rules internally, and with the UCPR. I accept the submission of the Respondent that the word "appeal" cannot be read independent of the composite expression in which it is found in LEC Rule 7.1. Firstly, I consider that the collection of words used in the expression are intentional. It is apparent from a reading of the LEC Act as a whole and the local rules as contained in the LEC Rules, that such words collectively identify all of the relevant jurisdiction conferred upon the Court as Originating Proceedings and contained in ss 17-19 of the LEC Act. The reference to the Court's jurisdiction in those sections are described as either an appeal, an objection or a reference and in s 19(h) has the catch-all provision: (h) any other appeals, references, or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.
The only use of these terms collectively in the LEC Act is limited to Originating Proceedings identified in ss 17-19. This limited use of the collective expression evinces a clear intention that those words, when collectively used, are limited to the Originating Proceedings. It would be inconsistent to construe that collective expression differently in the LEC Rules than the manner it is used in the LEC Act under which the rules are made.
Secondly, I do not accept the submission that the collective expression is only qualified to the Originating Proceedings where it is found with the adjunct expression (as is found in s 39) "which may be disposed of by the Court in class 1, 2 or 3 of its jurisdiction". The notion of the Court disposing of proceedings is used commonly in the LEC Act (see for example ss 20-21B) and the limitation to the nominated classes of jurisdiction does not assist when it is understood that a 56A Appeal remains in the class allocated to the matter in the Original Proceedings (as was accepted by the parties). Accordingly, to read "appeal" as a separate word, rather than a composite expression, would produce inconsistencies in the LEC Act by, for example, rendering s 39 (a section clearly intended to relate solely to the administrative decision making confined to Originating Proceedings referred to in ss 17-19) as extending to 56A Appeals. This extension of the meaning of "appeal", when used as part of a composite expression to the individual components of the composite expression, would produce irreconcilable inconsistencies, such as, an appeal in s 56A, which is limited to a question of law, proceeding as a rehearing of the commissioner's decision with fresh evidence being called (s 39(3)).
I note that at [14] of its supplementary submission the Respondent withdrew its earlier submission that a 56A Appeal is an appeal stricto sensu (in the strict sense) as it was limited to questions of law. It now contends that as UCPR 50.16(1) provides that if the appeal relates to a decision given after hearing the appeal is to be by way of rehearing, such an appeal is in effect de novo. I do not accept this characterisation of a 56A Appeal. Section 56A expressly limits the appeal to questions of law. The provisions of the UCPR are subject to any Act that makes provision to the contrary (such as s 56A): s 9 CP Act. Further UCPR 50.16(4) provides that: Despite subrule (3,) where an appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds. Such provision would (if it applied) limit the circumstances where evidence could be heard in a 56A Appeal, which is a hearing on the merits.
Thirdly, the heading to LEC Rule 7.1 expressly refers to the prior rule 17.1 that was limited to Originating Proceedings as express separate reference was made to a different time limit for 56A Appeals. As the 2015 amendment to the LEC Rules was expressed to be a "remaking" there would need to be a clear and discernible statutory intent that 56A Appeal (which had since the introduction of that appeal right been dealt with separately from the proceedings to which former Rule 17.1 applied) that LEC Rule 7.1 was intended to extend to all appeals including 56A Appeals. I do not accept that such intention may be discerned merely from the repeal of Rule 13.35, and the suggestion that by that repeal, the limitation on the applicability of the LEC Rule 7.1 was removed thereby including 56A Appeals within the language. Such a construction is, for the reasons outlined above, not open on the context and language of the legislative scheme.
Fourthly, UCPR Part 50.2 expressly refers to decisions of a commissioner being a "court below" (as defined) and an appeal pursuant to s 56A against a decision of a commissioner being to a higher court (as defined). This, again, is clear intent expressed in the legislative scheme that 56A Appeals would be managed pursuant to the UCPR and in particular UCPR 50. This position is also consistent with the stated object of the 2015 remaking of the LEC Rules, that the amendment to the LEC Rules was to render consistent the local rules with the applicable UCPR.
Accordingly, I find that LEC Rule 7.1 does not apply to 56A Appeals and that the time for filing a 56A Appeal is governed by UCPR Part 50.3 and therefore must be commenced within 28 days from the material date or such other date as may be fixed by the Land and Environment Court upon an application being made in accordance with UCPR 50.3(2).
Having regard to my finding above, I respectfully decline to follow the decision in Teh v Dormer. I observe that the arguments in this case were far more extensive than those before Pepper J, who decided the matter before her on an ex tempore basis without the benefit of arguments by counsel. I have benefited greatly by the detailed and comprehensive submissions of counsel for both parties together with an historical analysis of the changes to the LEC Rules and the interplay of the legislative scheme introduced in response to the UCPR provisions. With the benefit of those matters, that were not available to Pepper J, I consider it would be inappropriate for me to follow her decision particularly where such decision was made in the absence of the assistance I have received.

Discretion to extend the time for appeal

As a consequence of my finding that the time for appeal is 28 days the parties are agreed that the appeal was filed 5 days out of time. The extension of time being sought in the Amended Summons now falls to be determined.
The decision as to whether to extend time to appeal is a discretionary decision. UCPR 50.3 does not state any mandatory matter for consideration. This position is consistent with the general discretion to extend time as provided for in UCPR 1.2. The position is contrasted with UCPR 59.10(3) that mandates relevant considerations in the exercise of the discretion.
Where there are no nominated considerations, the parties accepted that the discretion should be exercised judicially having regard to the general principles as summarised by Pepper J in Teh v Dormer at [14] relating to extending time for appeal that include (but are not limited to): 1. the history of the proceedings; 2. the conduct of the litigation; 3. the nature of the litigation; 4. the length of the delay; 5. the reasons for the delay; 6. the prejudice to the parties if the extension of time is, or is not, granted; and 7. the strength of the Applicant's case.

The history of proceedings/conduct of the litigation and the nature of the litigation

These factors are outlined in the background facts above. In this case, apart from the issue of delay in filing the 56A Appeal and the fact this is an appeal from a merit hearing (which I deal with below) there are no factors relating to the history of the proceedings or conduct of the litigation which materially affect the exercise of the discretion.

The length of the delay and the reasons for the delay

It is agreed that the delay is 5 days. Both parties accept that such a delay is not substantial in time, however, the explanation for the delay is said by the Respondent to operate against the exercise of discretion.
The affidavit of Christina Bond sworn 18 September 2019 provides the most direct evidence of the reasons for the delay. It attests at [4] that she, as Council's solicitor: reviewed the UCPR; reviewed the decision in Teh v Dormer; and reviewed the section of the Land and Environment Court website headed "Appealing a Commissioner's decision" which stated: When must the appeal be made? The appeal is to be commenced within 60 days after the date on ewhivh the decision or order was given or such further time as the Court allows (rule 7.1 of the Land and Environment Court Rules, 2007).
She says at [6] of her affidavit that having reviewed the collective materials she formed the view that the appeal period was 60 days.
The Respondent contends that the explanation is not adequate. It is said that a firm of solicitors such as that representing the Council in this appeal should have done more to satisfy itself that the LEC Rule 7.1 was applicable.
I find that the explanation for the delay is wholly explicable. It was in no way unreasonable for Council's solicitor to rely on the only decision available that had dealt with the question of time for appeal. The statement on the Court website independently represented that 60 days was the time for appeal. The determination made relying on both of these factors is entirely reasonable. Further, the solicitor, notwithstanding having formed the view that the appeal period was 60 days, filed the appeal within 33 days. The Council then acted expeditiously in bringing the issue as to timing and the application for extension (if required) before the Court.
I find that the length of the delay and the explanation for the delay weighs heavily in Council's favour in the exercise of my discretion.

The prejudice to the parties if the extension of time is, or is not, granted

The Council says that if the time is not extended it will be prejudiced by not being able to challenge the findings of the Commissioner in circumstances where it says that he committed errors of law.
The Respondent says that its prejudice is overwhelming having regard to the following matters: 1. The prejudice to the Respondent should not be measured against the 5 day delay but rather measured against a "no appeal" versus "appeal" position. 2. The Respondent, being successful in the Court below, is entitled to the fruits of its victory. 3. The Respondent relied upon a site compatibility certificate (SCC) to render the development in the Development Consent permissible. That SCC expired on 14 July 2019 and the Court no longer has power to grant development consent. The consequence is that any appeal, if successful and remitted to the Commissioner, will be unable to be determined in the absence of an SCC where there is significant delay in obtaining an SCC: Affidavit Michael Gillis sworn 18 September 2019 at [6]-[7]. 4. The Respondent has taken steps and incurred costs since the expiration of the 28 day period in reliance upon the Development Consent and that such steps and expenditure (in the order of $5,000) would not have been incurred if an appeal had been filed in time: Affidavit Michael Gillis sworn 18 September 2019 at [4].
The parties were asked to address whether the measure of prejudice in a matter such as this is the same as was identified by Preston CJ in Bankstown City Council v Ramahi [2015] NSWLEC 74 where he considered the exercise of the discretion to extend time for the bringing of judicial review proceedings pursuant to UCPR 59.10 and observed at [86]: Secondly, the prejudice with which r 59.10(3)(b) is primarily concerned is the prejudice that is caused by the Council not commencing proceedings for judicial review of the decisions to issue the complying development certificates within the three month period from the date of the decisions. This is the passage of time to which the subrule refers. The relevant comparison is between the expenses that Ms Ramahi is likely to incur if the Court were to extend the time for the Council to commence the proceedings and the expenses that she would have been likely to incur if the Council had commenced the proceedings within the three month period. For example, if Ms Ramahi carried out further building work in the period between those dates and had not been given notice of the potential invalidity of the complying development certificates and the development not being complying development, the additional expenses that might be incurred in demolishing the further building work that was done in this period might be prejudice caused by the passage of time. Supplementary written submissions have been made by both parties.
The Respondent submits that the constraint of the period against which prejudice should be measured as set out in Ramahi is not applicable to extensions of time under UCPR 50.3. It contends that the limitation considered in Ramahi is a consequence of the express relevant considerations as set out in UCPR 59.10, which provision is more akin to a procedural step. It contrasts the position in UCPR 50.3 where no such express considerations are required to be considered. It suggests that the prejudice "caused by the delay" must require a consideration of all prejudice, not merely prejudice occasioned by the extension of time. It suggests that the reason for the distinction is explicable because of the nature of an appeal and relies upon the decision in Jakamarra v Krakouer (1998) 195 CLR 516 at 519-520 where Brennan CJ and McHugh J said: These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question - should time be extended.
The Council submits at [1]-[3] of its supplementary submissions that the approach in Ramahi is the correct measure of prejudice. It submits that the courts exercising the discretion under UCPR 50.3 have identified the prejudice as relating to the period of the "delay" rather than prejudice at large. It further contends at [9] that the observations in Jakamarra are not compelling as in that case the High Court was considering a "procedural step" as the appeal was already on foot. It suggests that the consideration of losing a vested interest in a judgment is more a matter of general prejudice rather than specific prejudice and regard should be had to the consideration outlined in Tomko v Palasty (2007) 71 NSWLR 330 at [85] that: In these circumstances, the Court cannot be satisfied that, apart from the risk of losing his judgment, Mr Tomko does not face real prejudice flowing from the further delay and legal costs which would be incurred if an extension of time were granted.
Council further contends that the Respondent can apply to obtain a new SCC such that the capacity to obtain an approval on remitter is retained.
I accept the Council's submission that the relevant period for considering prejudice is that as outlined in Ramahi, namely the difference between an appeal filed in time and one filed with an extension. In this case that period is 5 days.
I accept the Respondent's submission that the potential loss of the benefit of the judgment it obtained is a relevant consideration in the exercise of my discretion and that in this case that carries with it the risk of being deprived of an approval on remitter due to the current lack of a SCC. However, it is also relevant to observe that the benefit of the Development Consent was always subject to an appeal (as acknowledged by Mr Gillis waiting the 28 days to act on it) and that the SCC expired before the 28 day appeal period had expired.
I consider that the Respondent will suffer actual prejudice as a consequence of the time for the appeal being extended by 5 days and that prejudice includes: the expenditure of funds; the risk on remitter in the absence of a SCC; and the risk to the Development Consent that it was entitled to rely immediately upon its grant and without risk (subject to the power to extend time) after the expiration of the 28 days.

Strength of the Applicant's case

The Respondent contended that the Council's case was not strong. However, in oral submission it accepted that if I was to find only one of the pleaded appeal grounds had prospects of success such a finding would be sufficient for the purposes of determining the exercise of my discretion.
I also enquired of both parties as to whether the discretion would permit leave being granted on terms, limiting the grounds of appeal to those with better prospects. Both parties submitted that the power under UCPR 50.3 did not afford the Court such powers. On that basis I do not consider this issue further. I do note that the Respondent submitted at [19] of its supplementary submissions that terms could be imposed to ameliorate prejudice. I do not consider such terms (if available to me) should be imposed in this case. I consider such terms are not necessary to render the prejudice "acceptable".
Without expressing a view on the strength or otherwise of the Council's prospects on the Appeal, I am satisfied that there is at least one ground where the Council identified that an issue had been raised before the Commission which potentially was not dealt with in his reasons. Accordingly, I find that the Council's grounds of appeal have sufficient prospects that the discretion should not be exercised against Council on this ground.

Findings on the exercise of the discretion to extend time

In weighing the competing factors outlined above, I find that the time should be extended for the 5 days for the lodgement of the Appeal. Notwithstanding that I have accepted the real and measurable prejudice to the Respondent if the time for appeal is extended, the Council should be allowed to proceed with its appeal. The weight of the discretion is in Council's favour primarily due to the circumstances that gave rise to the filing of the Appeal out of time. The Council's solicitors gave relevant and genuine consideration to the time for the Appeal and relied on the only judgment of this Court to consider the question of the appropriate rule to ascertain time. The reliance on this judgment was not unreasonable. The fact that I have found that the time was to be ascertained other than in accordance with that decision should not deprive the Council of the opportunity to appeal.
I have also placed great significance on the Council's reliance on the Land and Environment Court website advice that the appeal period was 60 days. I consider this reliance entirely reasonable.
These considerations would be determinative even if I was required to take the prejudice as submitted by the Respondent into account.
On balance, I exercise my discretion to extend time for the Appeal.

Costs

The Respondent, in light of my finding, seeks its costs of the motion. It contends that it has been successful in the determination of the legal question and that the "success" of the Applicant in extending time is the granting of an indulgence which would not warrant displacement of the Respondent's entitlement to costs.
The Council opposes an order for costs being made against it, contending that the extension of time is not a separate "event" for the purposes of the cost power.
In this case it is to be remembered that it was not only an application to extend time but also a Notice of Motion to dismiss the proceedings as incompetent. The resolution of the issues required a determination of the purely legal question of the appropriate time period for appeal. The Respondent was successful in the substantive legal argument. Absent the Council's application to extend time, which is a discretionary indulgence, the Respondent would have been entitled to the relief it sought.
I therefore find that, due to the character of the principal legal dispute between the parties and the circumstance of the exercise of a discretionary power to avoid the consequence of the finding on the principal legal dispute, it is appropriate that I order the Council pays the Respondent's costs of the Notice of Motion and the order for extension in the Amended Summons.

Orders and Directions

The Court Orders that: 1. The time for filing the Appeal in the Amended Summons dated 11 September 2019 is extended to 15 August 2019; 2. The Council is to pay the Respondent's costs of the Notice of Motion filed 27 August 2019 and the application to extend time in the Amended Summons dated 11 September 2019; 3. The Respondent's Notice of Motion is otherwise dismissed; 4. The exhibits are returned.
The Court directs that: 1. The Amended Summons be listed for mention before the Registrar at 9am on 25 October 2019 for further directions.

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: 23 October 2019

(2017) 224 LGERA 301

At a glance

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Judgment (20 paragraphs)

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Cases Cited (13)

Cited By (2)