SOLICITORS:
Woolf & Associates (Applicant)
File Number(s): 40906 of 2015
[2]
EX TEMPORE Judgment
I have before me today as duty judge returnable instanter an application for injunctive relief. The Applicant, Ocean Shores Community Association Incorporated, is commencing judicial review proceedings against the First Respondent, Byron Shire Council, and the Second Respondent, the Minister Administering the Environmental Planning and Assessment Act. I granted leave to the Applicant to file the summons today in Court. What is sought, as well as procedural issues relating to service and further carriage of the matter, is injunctive relief that, pending trial or further order, the First Respondent be restrained from selling, exchanging or otherwise disposing of any part of Lot 530, DP 238451.
The Applicant has commenced proceedings without giving notice to either of the Respondents of its intention to seek the ex parte order today. It relies on an affidavit of Ms Janis Mangelson, sworn 9 October 2015. Ms Mangelson attests to the circumstance that the Council, the First Respondent, has acquired the land, which, as I understand it, was formerly community land. The Council has attempted to reclassify the land under the Local Government Act 1993 as operational land. It has entered into contracts for the sale of several subdivided lots on the land. I am informed there are approximately 10 lots the subject of contracts for sale. In par 8 of her affidavit Ms Mangelson attests that the conditions of the contracts for sale have the effect that completion of the contracts entered into on 10 September 2015 between the Council and purchasers is Thursday, 15 October 2015 which is next week.
The issue on this ex parte application is the concern, which Ms Mangelson attests to, that if the Council is made aware of the commencement of these proceedings and the seeking of the interlocutory injunction it will proceed to settle all the contracts with the purchasers before next Thursday. In that regard, I was taken to exhibits to the affidavit of Mr Woolf, solicitor, of 9 October 2015 that was also read. In particular there is no provision in the contract for sale of land which prevents early settlement of the sales. That remains a possibility under those contracts and is clearly the reason why the matter is before me today on an ex parte basis.
The judgment of Heydon J in International Finance Trust Company Limited v New South Wales Crime Commission; [2009] HCA 49; (2009) 240 CLR 319, particularly at [150], has been extracted in a number of judgments in this Court when considering an ex parte application. For example I note that this passage was quoted by Pepper J fairly recently in Hill Top Residents Action Group Inc v The Minister Administering the Sporting Venues Authorities Act 2008 [2010] NSWLEC 210:
[150] Another instructive aspect of equitable practice is afforded in relation to the question of whether an ex parte injunction should be granted at all. It was summarised thus by Lord Hoffmann, delivering the opinion of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 WLR 1405 at 1408 [13]:
Although the matter is in the end one for the discretion of the judge, audi [alteram] partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. … Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none. (emphasis in original)
A key matter that I have to consider, the Court being generally reluctant to make an ex parte injunctive order, is that the subject matter of these proceedings will potentially be removed if I do not make an ex parte order.
Linked to whether or not I make an order on the basis of an ex parte application is also the balance of convenience in the matter, and that is an important aspect of determining whether or not an interim injunction ought to be granted. As I understand the case, summarised in the submissions of Ms King representing the Applicant today, at issue is the delegation of the power exercised by the relevant officer in the Department of Planning at the time of the making of a Gateway Determination in relation to the Byron Shire Local Environmental Plan 2014 (Amendment No 2). Her submissions, at pars 17, 18, 19 and 20, identify the relevant provisions relied on in relation to the Gateway Determination, signed by the Acting Deputy Secretary, Planning Services, and the terms of the instrument of delegation pursuant to which this was purported to be given. That instrument of delegation was provided to the Court.
The Applicant submits there was no authority delegated to the relevant officer at the time of making the Gateway Determination and consequently the amendment to the Byron Local Environmental Plan 1998 is not valid. Linked to the argument of whether the exercise of the delegation was legally effective is the effect of the Administrative Arrangements (Administrative Changes-Ministers and Public Service Agencies) Order 2014. Also linked to the issue of whether the exercise of delegation was lawful is the operation of s 50E of the Constitution Act 1902.
Ms King informs me that she has not been able to find any case law where this particular legal issue has been raised in relation to the interaction of these instruments. It seems to me that there is a serious question to be tried given the nature of the material referred to by Ms King. I take that into account in determining whether, on the balance of convenience, I should make an order. I consider it is appropriate that I do make an order which allows for injunctive relief, but only for a very limited period given the fact that this is an ex parte application.
I will have the Applicant serve the summons, by whatever means appropriate, as soon as possible this afternoon, together with the affidavit material provided to me today. The matter is returnable at 2pm on Monday, 12 October 2015. I am able to hear the matter again on Monday if need be. If that is not sufficient time for the Respondents, who at this stage are unaware that they would be before me on Monday, I could also hear the matter on Wednesday. We can discuss on Monday if that is appropriate. The reason for that flexibility is that it would still allow the Court to hear the matter, determine whether or not the interlocutory injunction ought continue pending the hearing, and potentially not interfere with the finalisation of the contracts for the sale of land, which would otherwise conclude on Thursday.
[3]
Orders
The orders of the Court are:
1. an order that the Applicant has leave to file in Court the Summons;
2. pending trial or further order, that the First Respondent be restrained from selling, exchanging, or otherwise disposing of any part of Lot 530 DP 238451;
3. an order that, in the first instance, service of this Summons be abridged to 5pm on 9 October 2015;
4. in lieu of personal service pursuant to UCPR r 10.14(1) service on the First Respondent be effected by email to the following addresses council@byron.nsw.gov.au and matt.meir@byron.nsw.gov.au;
5. an order that, in relation to the injunctive relief sought, this Summons be further returnable at 2pm on Monday 12 October 2015.
[4]
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Decision last updated: 09 December 2015