Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2016-08-26|Before: Pepper J, Mr P, Robson J

The Applicant Seeks a Vacation of Hearing Dates Obtained by Consent

By notice of motion filed on 19 August 2016, the applicant to Class 1 proceedings, Royal Motor Yacht Club (Broken Bay) Pty Ltd ("RMYC"), seeks, with the consent of the respondent, Northern Beaches Council ("the council"), to vacate final hearing days.
The subject-matter of the application for vacation is a two day listing of a separate question. The hearing dates were allocated by the Registrar, with the consent of the parties, on 21 July 2016.
The allocation came about pursuant to orders made by Robson J on the same day. Before his Honour was the application for a question to be determined separately by the Court.
When the matter was before Robson J, the parties submitted that the following expert evidence (in addition to lay evidence) was required for the determination of the separate question (Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87 at [15], emphasis added): 15 Thirdly, the parties agree that the evidence required for the separate question(s) is not evidence that would be required to resolve the remaining issues between the parties. During oral submissions the applicant indicated that it intended to rely upon three categories of evidence in relation to what may be "contentious" facts and these were photographic evidence, expert photogrammetrist evidence and lay witness evidence. Having considered the background material, I accept this position.
His Honour acceded to the parties' request that a question be heard and determined separately and made consequential orders, also by consent (Royal Motor Yacht Club at [19] and [20]): 19 The order of the Court is that the following questions be determined separately and before any other question in the proceeding: (a) Is the use of that part of the site the subject of development application (Development Application N0379/15) which is within the W1 Natural Waterway zone for the purpose of a marina within the meaning of the Pittwater Local Environment Plan 2014 a lawful existing use, within the meaning of s 106 of the Environmental Planning and Assessment Act 1979. (b) If the answer to the question above is yes, what is the extent and nature of the lawful existing use? 20 The Court gives the following consequential procedural directions: (1) Leave is granted to rely on the amended notice of motion dated 12 July 2016. (2) The parties are to proceed forthwith to the Registry to obtain a hearing date of two days for the determination of the separate questions set out above. (3) The parties are to file an agreed statement of facts no later than five weeks before the hearing. (4) The Applicant is to file and serve any evidence no later than four weeks before the hearing. (5) The Respondent is to file and serve any evidence in reply no later than two weeks before the hearing. (6) The Applicant's written submissions are to be filed and served six working days before the hearing. (7) The Respondent's submissions are to be filed and served three working days before the hearing. (8) The Applicant's submissions in reply are to be filed and served one working day before the hearing.

Evidence in Support of the Application to Vacate

RMYC relied on an affidavit of Ms Marcia Doheny sworn 18 August 2016, in support of its application for a vacation.
Consistent with the judgment of Robson J, Ms Doheny gave the following description of the proceedings and identified the central issue between the parties the subject of the separate question: 3 The Class 1 Application commencing this appeal was filed on 23 May 2016 following the Respondent's deemed refusal of development application No 379/15. 4 The development application seeks consent for the extension of the Applicant's premises at a marina at Broken Bay, being an additional 65 berths and relinquishment of up to 20 swing moorings (the proposed development). 5 The proposed development consists of rebuilding existing fixed berths and includes extending the fixed berthing into an area which is within the W1 Natural Waterways zone. 6 "Registered Clubs" and "Marinas" are prohibited in the W1 Natural Waterways zone and so the proposed development relies on existing use rights being established. This is to occur before it can proceed to a consideration of the merits of the proposed development, as further discussed below.
It is fair to say that the reasons that Ms Doheny gave for the need to vacate the two day hearing were scant. In their totality, she deposed that: 15 Preparation of the Applicant's evidence was not able to be completed in the time allowed. 16 In addition to lay witnesses, the evidence required for the existing use rights case includes expert evidence of a photogrammetrist, surveyor and planner. 17 The expert planner's evidence involves identifying building and planning controls applying to the site since the Club's establishment in 1923 and then comparing those controls with the development and use of the site also since 1923. 18 On 12 August 2016, it became apparent to me that the evidence could not be completed and filed in compliance with the Court's timetable and that further time was required. 19 On 12 August 2016, I informed Ms Adams by telephone and email asked [sic] her to obtain instructions on the hearing dates being vacated. 20 On 15 August 2016, Ms Adams emailed me to advise that she had instructions to consent to the current hearing dates being vacated.
To summarise, the need for the vacation arose out of a slippage of the timetable in the preparation of expert planning evidence.
But expert planning evidence was not a category of evidence necessary for the determination of the separate question identified by the parties when the matter was before Robson J.
Indeed, the affidavit of Ms Odette Adams affirmed 20 June 2016 (the solicitor for the council), relied on by the parties during the hearing before Robson J, stated that: 17 The evidence that would be relied upon by the Respondent in relation to the separate question would be entirely documentary. No witnesses would be called. 18 The Applicant may wish to file lay evidence in relation to the separate question, however any such evidence is not evidence which would be relevant to an appeal on the merits of the development, thus there would be no cost or time saving in having the merits heard by the Court at the same time as the separate legal question.
This deposition was reflected in the reasons of his Honour, where he noted that planning evidence would be necessary to resolve the merit issues to be determined at a later juncture (at [13]): 13 First, given the nature and extent of the material in support of the development application (including details of public consultation by way of formal submissions from residents and stakeholders), I accept that the likely (merit) issues of disagreement between the parties that would come up, as submitted by the Council and accepted by Royal Motor Yacht Club, "...cover multiple disciplines including town planning, visual impact, traffic and transport, ecology, water management and marine safety" and that each party intends to rely upon expert evidence in each of these disciplines. In those circumstances, I accept the parties' estimate of five to six days for the hearing on merit issues only. Further, despite earlier different time estimates by the parties, I am now informed that the estimate for any separate question(s) is a maximum of two days, on the basis that the nature of the evidence relied upon is primarily documentary and "some lay evidence".
At the hearing of the motion, Mr Paul Lalich appeared on behalf of RMYC. He mentioned the matter on behalf of the council.
Mr Lalich attempted to further explain why the vacation was necessary. First, he reiterated the need for expert planning evidence. Then he proceeded to state that this evidence would be "simple", amounting to, in essence, a chronology of the planning history of the subject-land. He accepted that many of the planning facts underlying the determination of the separate question were uncontentious, a submission consistent with the written submissions before Robson J on 21 July 2016.
If, however, Mr Lalich is correct, then it is questionable whether expert planning evidence is required at all, or, at the very least, why another town planner cannot be engaged to prepare this evidence.
Second, Mr Lalich stated that it was also necessary to adduce expert heritage evidence. But there is no mention of this category of evidence in Ms Doheny's affidavit, and no mention of the need for evidence of this nature was articulated before Robson J.
It appears, therefore, that critical information, that may have caused Robson J to exercise his discretion differently, was not put before the Court on the application for a separate question. This is a matter of considerable concern.
Finally, Mr Lalich attempted to give additional factual explanation as to why the vacation was necessary, however, the Court would not permit Mr Lalich to give any further evidence from the bar table (Mr Lalich had not deposed an affidavit in these proceedings and he did not seek to have himself sworn as a witness).

No Vacation of the Hearing Dates is Warranted

More problematic is the complete omission of an explanation as to why the required expert evidence could not be finalised in accordance with the timetable ordered by the Court on 21 July 2016 (and, to reiterate, agreed to by the parties), or what steps, if any, the parties have taken to cure the problem (for example, the retention of another expert).
Section 66 of the Civil Procedure Act 2005 ("the CPA") confers upon the Court a general power to adjourn proceedings: 66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time.
This power is to be exercised having regard to the matters set out in ss 56-60 of the CPA, including the dictates of justice which find their expression in s 58 of the CPA.
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303, the High Court, after discussing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and setting out ss 56-59 of the CPA emphasised the duty of parties and their lawyers to assist courts in furthering the overriding purpose contained in s 56 of the CPA. The plurality stated (at [51]-[57], especially at [56], emphasis added): 51 In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. 52 Unsurprisingly, the case management rules with which the Court was concerned in Aon Risk Services Australia Ltd v Australian National University had essentially the same object as those stated in the CPA. The overriding purpose of the CPA and the rules of court provided for by the UCPR, as stated in s 56(1) of the CPA, is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings." In order to achieve that purpose, s 56(2) provides that the court: "must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." A duty is also imposed upon a party to civil proceedings. Section 56(3) provides that: "A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." Section 56(4) requires that lawyers representing a party to civil proceedings (or any person with a relevant interest in the proceedings) must not, by their conduct, put a party in breach of this duty. 53 Section 57 relevantly provides, with respect to case management by the court, that: "(1) For the purpose of furthering the overriding purpose referred to in section 56(1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties." 54 Section 58 provides in relevant part: "(1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and … (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice." Sub-section (2) of s 58 goes on to provide that for the purposes of determining what the dictates of justice are in a particular case, the court must have regard to the provisions of ss 56 and 57 and may have regard to a number of other matters, to the extent it considers them to be relevant. Amongst these matters is the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction made in the process of case management. 55 Section 59 provides: "In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial." The CPA provides some broad powers to the court to enable it to fulfil its duties with respect to the management of proceedings. Sections 56 to 59 appear in Pt 6 of Div 1 ("Guiding principles") of the CPA. Division 2 of Pt 6 is entitled "Powers of court to give directions". Section 61(1) provides generally that: "The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings." Sub-section (2) goes on to provide that the court may, inter alia, direct the parties to take specified steps and give such other directions with respect to the conduct of the proceedings as it considers appropriate. 56 The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. 57 That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
In my opinion, the bald statement that there has been a slippage in the timetable without any reasonable explanation for the delay or the steps taken to resolve it amounts to a breach of the duty to further the overriding purpose identified by the High Court in Expense Reduction.
Moreover, it suffers from the vice that it does not assist the Court to properly assess where the dictates of justice lie for the purpose of the exercise of the Court's discretion under s 61 of the CPA. If anything, having regard to the observations made in Expense Reduction and Aon (see below), the paucity of information contained in the affidavit (which was not overcome by Mr Lalich's explanation) all but compels the Court to leave the hearing dates untouched.
As was opined by the High Court in Aon (at [113]-[114], footnotes omitted): 113 In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 114 Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
Finally, while the Court takes into account the fact that the application for the vacation was unopposed, this does not mandate the outcome that the hearing be adjourned.
For the reasons given above, the application for a vacation of the hearing dates of the separate question is refused.

Orders

The RMYC's notice of motion is dismissed.
Because these are Class 1 proceedings where costs do not generally follow the event (see r 3.7 of the Land and Environment Court Rules 2007), and because the application was by consent, it is appropriate that there be no order as to costs.

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