Principles on Review of a Registrar's Decision
15Rule 49.19 of the Uniform Civil Procedure Rules 2005 provides as follows:
49.19 Review of registrar's directions, certificates, orders, decisions and other acts
If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
16The principles applicable in relation to the exercise of the power of the Court to review a registrar's decision were articulated by Preston CJ in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 (at [12]-[13]):
12 What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions:
"8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.
9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing."
13 Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)].
17These principles have been subsequently applied in a number of decisions in this Court (see Sky Design and Concepts Pty Limited v Pittwater Council (No 4) [2009] NSWLEC 129 at [38] and more recently in Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44 at [11]-[13]).
18Accordingly, it is not necessary for Mr Parcell to prove an error of law, merely, to demonstrate that it is in the interests of justice that the Court exercise its discretion to set aside or vary the Acting-Registrar's decision.