[1950] HCA 35
The Age Co Ltd v Liu (2013) 82 NSWLR 268
[2013] NSWCA 26
Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228
Source
Original judgment source is linked above.
Catchwords
ex parte Aala (2000) 204 CLR 82[1950] HCA 35
The Age Co Ltd v Liu (2013) 82 NSWLR 268[2013] NSWCA 26
Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228
Judgment (4 paragraphs)
[1]
Background
The applicant, Mr O'Connor, has owned a rural property outside Dubbo since around April 1991. That property is accessed via Medway Road, part of which is an unsealed Crown road. Mr O'Connor has brought actions in negligence and nuisance, alleging that the road has not been appropriately maintained. Those aspects of litigation have not been determined on their merits, and are outside the scope of the present application for leave to appeal. Mr O'Connor has also sought judicial review of a decision made on behalf of the Minister for Roads on 12 January 1993 to grant a waterway consent over part of the Crown road. By his notice of motion dated 28 November 2016, Mr O'Connor sought an order that he be granted an extension of time under UCPR r 59.10(2), and leave to file a further amended summons and amended points of claim.
The decision of which judicial review was sought was made pursuant to s 44 of the Crown and Other Roads Act 1990 (NSW) to permit use of part of the road for the purposes of a waterway, in connection with conservation works being carried out by Mr O'Connor's neighbour. The delegate who made that decision was Mr Montgomery. He did so on behalf of Mr Frappell, who was, in 1993, the Regional Director of the Department. The essence of Mr O'Connor's complaint relates to the construction of contour banks on the road, which he says cause an obstruction to vehicles and divert water leading to erosion and degradation of the road. (There also appear to be some other decisions sought to be reviewed, but the focus of written and oral submissions was that made in January 1993.)
The primary judge recorded at [61] that although Mr O'Connor had sought an order by way of notice of motion for the granting of an extension of time, at the hearing Mr King sought to defer the question until a later date. Her Honour said she was satisfied that this was an appropriate case where the question of an extension of time should be considered in advance to the final hearing.
The primary judge addressed the question of an extension of time at [62]-[100]. Her Honour applied rule 59.10, the provision invoked by Mr O'Connor, which came into effect on 15 March 2013 - some 20 years after the decision was made, but also more than 2½ years before proceedings were commenced - and which is in the following terms:
"(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest."
Rule 59.1 provides:
"59.1 Application
(1) This Part applies to the following proceedings for judicial review:
(a) proceedings under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court, and
(b) proceedings for or in the nature of judicial review in the Class 4 or Class 8 jurisdiction of the Land and Environment Court.
(2) This Part does not apply to proceedings commenced before the commencement of this Part."
Her Honour acknowledged that Mr O'Connor had a "limited interest in the consent, but was not satisfied on the material before her that the road was obstructed" (at [68]). Her Honour was of the view that significant prejudice would flow to the State from the delay, by reason of the facts that the file relating to the decision had been destroyed over 22 years ago, that Mr Montgomery had retired in 1998, that Mr Frappell on whose behalf Mr Montgomery had signed the decision had retired at least 15 years ago, that enquiries had been made to obtain records in relation to the decision, which were not available, and that Mr O'Connor had made written complaints to the Department, claiming that the waterway was "illegal" from at least 2006.
Her Honour said that she was "unable to glean any public interest in the plaintiff's being able to pursue this application" (at [75]). Her Honour noted that Mr O'Connor did not allege that there was any particular risk that had materialised which had caused him harm.
Her Honour was willing to accept that Mr O'Connor may not have been aware of the decision until he started using the road in 2006, but found it difficult to accept an assertion that he was not aware of the decision until 2012.
Her Honour also considered whether Mr O'Connor had a "fairly arguable case" for judicial review, and considered in turn the allegations that there had been a denial of procedural fairness, that there was an error of fact, namely that the road was not open in 1993, that there had been a failure to have regard to the terms of the relevant legislation, and a failure to have regard to interest in right of the public and Mr O'Connor in relation to the road and access to the property. Her Honour concluded that she was not satisfied that Mr O'Connor had a fairly arguable case in relation to any of those four aspects.
The primary judge noted that there was some material to suggest that, in any event, the waterway consent had been revoked. If that were so, her Honour would have regarded that as a further factor militating against an extension of time. However, her Honour proceeded on the basis that the waterway consent remained extant.
Her Honour concluded at [99]-[100]:
"The delay is extreme and, I am satisfied, has caused such prejudice to the State that, especially when combined with the fact that I am not satisfied that plaintiff has a reasonable arguable case in any event, means that the application for an extension of time should be refused.
I am not satisfied that the plaintiff has established that an extension of time should be granted to bring these proceedings for judicial review nearly 23 years out of time. None of the factors relevant to such a determination militate in favour of an extension of time being given."
[2]
Consideration
There was no error, still less any error that might attract the grant of leave, in her Honour determining the extension of time as a separate and preliminary matter. Not only was that what had been proposed by Mr O'Connor, but it was reflected in earlier consent orders made by the Court. Although at the hearing Mr King sought to resile from that course, the parties, the practitioners and the Court were at all times subject to the duties imposed by s 56 of the Civil Procedure Act 2005 (NSW), and it is quite plain that in a case such as this, where the delay on the part of Mr O'Connor was so significant, there was a sound basis for the issue relating to delay to be determined at the outset.
Orally, Mr King maintained that the idea that there might be a separate determination of issue in advance of a trial was "unknown to the common law". He relied on a passage from Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57. The decision is not authority for any such proposition. The proposition is incorrect. The power to hear and determine a case in separate phases, aside from the separate question procedure authorised by the rules, is long established, as an incident of the court's inherent jurisdiction. The contrast between the two powers was considered by a Full Court of the Federal Court in Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 427, which in turn referred to the fact that the English Supreme Court Practice "has long contained the following note: 'Apart from these rules, the trial judge has inherent jurisdiction to try any separate issue or question before the others'". Proposed ground 1 is hopeless.
Prominence was given in oral submissions to what was said to be a divergence in authority between decisions of the Land and Environment Court and the Supreme Court in relation to whether r 59.10 has retrospective effect. The point was raised, but not determined, in Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 at [6]. In Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J was dealing with an application to review decisions made on 22 October 2012 and 25 February 2013, shortly before the rule commenced on 15 March 2013. The proceedings were commenced on 23 May 2013. His Honour held that the rule did not apply to the first decision, but in any event would have granted an extension of time if it did: at [12]-[15]. The decision was followed by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122. It is not necessary to express a view as to the correctness of those decisions, nor as to whether r 59.10 is to be regarded as procedural for the purposes of the distinction drawn in Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228; [1971] HCA 29, nor as to whether the terms of r 59.1 as to the applicability of the Part displace the presumption against retrospective operation.
Mr Emmett submitted that this application was a singularly inappropriate vehicle for the grant of leave. He said that this proposed ground was contrary to the way the case had been run at first instance, that it had not been addressed in the written submissions in chief or in reply filed in support of the application for leave, and was outside the scope of the draft notice of appeal.
Mr King acknowledged that the inapplicability of the rule had not been put to the primary judge, but maintained that as the proposed ground raised a pure question of law, it fell within the scope of Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35.
We agree with Mr Emmett's submissions. We add that in any event the relief sought was discretionary, and substantially the same issues would arise on the exercise of that discretion. There is no reason to grant leave to appeal on a point which is inconsistent with the stance before the primary judge, which was not developed in the submissions provided to the Court, and which would appear to have no consequence to the ultimate result in this case. It cannot be overlooked that what the applicant now seeks to do is to challenge the applicability of a power he himself had expressly sought to invoke.
In relation to the remaining 13 proposed grounds, it is trite law that an applicant for leave to appeal "must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at": Council of the City of Botany Bay v Michos [2013] NSWCA 244 at [28]. Generally speaking, that requires the applicant to show that the matter involved an issue of principle, a question of public importance, or "circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable": The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
Mr King submitted that the primary judge erred in law in having regard to the length of the delay, the reason for the delay, and whether the applicant has a fairly arguable case. Her Honour was applying what had been said in Dyason v Butterworth [2015] NSWCA 52 at [65], which was not only binding upon her but is also plainly correct.
Mr King also submitted that her Honour had erred in evaluating the various factors relied upon by her, in a series of detailed submissions directed to the facts of the particular case. Mr King maintained that there was error when the primary judge characterised Mr O'Connor's delay as "extreme", maintaining that (a) he first became aware of the "facts, extent and terms" of the decision shortly prior to commencing the action, (b) that his complaint was for a continuing non-compliance with the law by the part of the Government, and (c) that there was no time limit governing the issuing of a writ of prohibition where there was "jurisdictional error on the face of the record".
No attempt was made in Mr O'Connor's written submissions in reply to address the factors relevant to a grant of leave, notwithstanding the prominence in the State's written submissions given to those matters. No issue of principle and no question of public importance arises in this application. Far from this being a case where there is an injustice going beyond what is merely arguable, it is with respect difficult to see any sound basis for interference with her Honour's exercise of discretion refusing to grant the extensive extension of time in circumstances where there was undoubted and material prejudice to the State.
[3]
Mr O'Connor's notice of motion
The first half of the hearing was directed to an application by Mr O'Connor, made returnable on the same day as the application for leave was listed for hearing, to adduce further or fresh evidence. Originally the Court was advised there were 1079 pages in five lever arch folders sought to be adduced. The volume was reduced to four smaller bundles of documents supplied during the hearing. The gravamen of the application was to show that the primary judge had been wrong to proceed on the basis that the relevant departmental file or files had been destroyed many years ago. Mr O'Connor maintained that he had been able to reconstruct the files from documents obtained pursuant to requests made under the Government Information (Public Access) Act 2009 (NSW).
We would accept that it is open to an applicant for leave to appeal to adduce evidence by affidavit as to the matters relevant to the discretion to grant leave (for example, affidavit evidence showing that the same issue arose in many other cases; an example may be seen in State of New South Wales v Le [2017] NSWCA 290 at [2]). However, that was not the purpose of the notice of motion. Rather, as Mr King accepted, it was to seek to demonstrate that, in the event that the evidence was adduced on appeal, there would be a prospect of demonstrating that the primary judge had exercised her discretion based on a materially erroneous finding of fact.
Almost a year in advance of the hearing, the State served an affidavit which stated that the files had been destroyed, and annexed a copy of a note to that effect which had been preserved. It is impossible to infer that the issue of the prejudice caused to the State by what was recorded as the destruction of the relevant file more than two decades ago was other than at the forefront of the issues which were, or ought to have been, guiding the preparation of the hearing before the primary judge. Yet the documents sought to be tendered to which this Court were taken and which had not been tendered before the primary judge were documents which had been obtained by Mr O'Connor in advance of the hearing. It was said that he had not appreciated until after the hearing the significance of the destruction of the file. Even if that be assumed, the evidence did not come close to establishing that the test for adducing evidence on appeal which had been available to be tendered at trial would be satisfied. Since it appeared that there was no significant prospect that the documents would be available on appeal, we ordered that the notice of motion be dismissed.
The notice of motion also sought the production of unredacted copies of some of the documents. Mr King said that the unredacted documents would demonstrate that the file had not been destroyed. However, the submission carries the matter no further. If that inference can be drawn from the redacted documents, as Mr King maintained it could, then it is not necessary in order to determine the application for leave to appeal to resolve any issue of redaction.
[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: 18 December 2017
Solicitors:
DEA Lawyers (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 2017/180379
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: [2017] NSWSC 598
Date of Decision: 19 May 2017
Before: N Adams J
File Number(s): 2015/311550