A Third Application to Vacate Hearing Dates is Made
This is the third application for the vacation of a two day hearing of a separate question listed on 7 and 8 September 2016 ("the hearing") in this matter. At the conclusion of the application, I made orders and indicated that I would publish my reasons for the making of those orders later today because I had other duty judge commitments to attend to. These are those reasons.
The background to this notice of motion, including the application for the determination of a separate question and the first application for the vacation of the hearing, can be found in Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council (No 2) [2016] NSWLEC 110 (as to the application for a separate question and its resolution see: Royal Motor Yacht Club (Broken Bay) New South Wales Pty Ltd v Northern Beaches Council [2016] NSWLEC 87). That background, together with the abbreviations used therein, is adopted, without repetition, for the purpose of this judgment.
The second application for a vacation of the hearing date was made to the Registrar on 30 August 2016 through the Online Court system by the council. Quite properly, the application was rejected the next day for the reason that the basis given for the second attempted vacation of the hearing dates was the same as that dealt with by the Court in Royal Motor Yacht Club (No 2).
In support of the third application, also brought by the council, reliance was placed upon an affidavit of Ms Odette Adams, the solicitor for the council with carriage of the matter, affirmed 1 September 2016.
In short, Ms Adams deposed to the fact that RMYC had comprehensively failed to comply with every aspect of the court orders - agreed to by both parties - for the preparation of the matter for the hearing, namely: no agreed statement of facts had been finalised; three lay affidavits and two expert affidavits were not served upon the council until 9.16pm yesterday; additional expert town planning and "historical" evidence was forthcoming but had not yet been served; and no written submission had been filed and served.
Obviously the council cannot, notwithstanding attempts to do so, meet this evidence in the time remaining prior to the hearing next week. Hence the third application for the vacation of the hearing.
RMYC, which was present for the application, gave no explanation whatsoever for its egregiously dilatory conduct. In the circumstances, it can consider itself extremely fortunate that the Court did not, of its own volition, dismiss the proceedings in their entirety for want of prosecution. The Court reiterates the duty of parties and their lawyer to facilitate the overriding purpose contained in s 56 of the Civil Procedure Act 2005 ("CPA"). A duty that has once again been breached by RMYC and/or its legal advisers in this case (see Royal Motor Yacht Club (No 2) at [21]-[26]).
[2]
The Application for the Determination of a Separate Question Was Premature and Possibly Inappropriate
What was revealed by this third attempt at vacating the hearing was that the application made before Robson J requesting a separate question was made prematurely. Plainly the parties had not properly considered all of the legal and evidential ramifications of the separate question as posed. It was no doubt for this reason that Robson J was not informed of the need for expert town planning evidence and other "historical" evidence. It was also no doubt for this reason that his Honour was told that the hearing of the separate question would only take two days, an estimate which, in light of the evidence outlined above, can no longer be maintained.
RMYC properly conceded that the matter had now become more detailed and difficult than originally envisaged when it was before Robson J. However, the council sought to minimise this complexity by arguing that the Court would, at the hearing of the separate question, only be required to examine the historical use of the subject site to determine whether there was an existing use right and the nature and extent of this right.
But this submission, in my view, oversimplifies the scope of the inquiry. For example, establishing the nature and extent of any existing use right in order to determine if the proposed use of the site is lawful, will inevitably invite a comparison between the previous use or uses of the site, the current use, and the use as proposed in the development application (which was not described in the separate question and may be contestable). Similarly, it is possible that any prior existing use right has or will be lost by reason of the intensification of the use of the site, either over time, or by the proposed development. In this regard, I note that, as RMYC observed, it is not yet known what merit contentions the council is likely to raise in respect of the proposed development.
Indeed in my experience, reliance on existing use rights to overcome a seemingly prohibited development does not often give rise to neat and orderly evidential contests attended by confined and discrete legal issues. The extent to which this makes such matters amenable to determination by separate questions is, therefore, in my opinion, debatable. Further, I am mindful of the caution advocated in the exercise of the power to grant a separate determination of an issue as opined by Ward JA in Allendale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (at [91]):
91 In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage:
The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)] (my emphasis).
Given the complexity of the legal and factual issues now raised by the parties, and the length of time that any hearing of the separate question will now take, the preferable course is to set aside the order setting a separate question down for the hearing and determination. Doing so facilitates the overriding purpose contained in s 56 of the CPA having regard to the matters contained in ss 57-60 of that Act.
In setting aside the order made by the Court on 21 July 2016, nothing should be construed as being in any way critical of the Court's decision to initially set down the proposed separate question for determination. That decision was made on the basis of the submissions and material put before it at the time. Since then the circumstances underpinning the initial application have changed markedly, which, if nothing else is evident from the fact that this is the third attempt at vacating the hearing on the basis that the parties are not ready.
[3]
Costs of the Third Application to Vacate the Hearing
These are Class 1 proceedings where costs do not follow the event and generally no costs order is made (r 3.7 of the Land and Environment Court Rules 2007 ("the LEC Rules")) unless it is fair and reasonable to do so (r 3.7(2) of the LEC Rules).
But given the extraordinary wholesale breach by RMYC of the orders made by the Court on 21 July 2016, in my opinion, it is fair and reasonable to order that it pay the council's costs of the third application to vacate the hearing dates. The RMYC has clearly acted unreasonably in the conduct of the proceedings by failing to adhere to the Court mandated timetable for the preparation of this matter for hearing.
The RMYC consented to this order being made.
[4]
Costs of the First Application to Vacate the Hearing
At the conclusion of the first application to vacate the hearing - brought by RMYC - the Court made no order as to costs given that the application was by consent and these were Class 1 proceedings.
It should be recalled that at this application only RMYC appeared, the matter being mentioned on behalf of the council by it.
In the affidavit of Ms Adams referred to above she deposed to the following (emphasis added):
On 15 August 2016, I informed Ms Dohney by telephone that the Respondent would consent to the orders [to vacate the hearing] sought in the Applicant's Notice of Motion, provided that the costs of that motion were borne by the Applicant. I informed Ms Dohney that in the interest of costs, the Respondent did not intend to appear at the return of the Notice of Motion.
On that occasion, Ms Dohney did not appear on behalf of RMYC, rather Mr Paul Lalich, the solicitor on the record, appeared and addressed the Court.
Mr Lalich failed to inform the Court that the basis of the council's consent to the application was that RYMC would pay the council's costs of the motion. This is a serious omission. In any ex parte application the party appearing before the Court has a duty of candour, which is strictly enforced. Whether as a result of oversights or for some other reason, Mr Lalich breached this duty. He was not present before me today to provide an explanation for the non-disclosure.
Had I been informed of the basis of the council's consent when the matter was last before me, I would have ordered RMYC to pay the council's costs of that application.
It is therefore appropriate that I set aside the earlier costs order made by the Court on 26 August 2016, and in lieu thereof order that RMYC pay the council's costs of the first vacation application.
Again, RMYC consented to this course.
[5]
Orders
In conformity with the reasons given above, the orders of the Court are:
1. the order made by the Court on 21 July 2016 that a separate question (in two parts) be heard and determined separately before any other question in the proceeding, is set aside;
2. the hearing dates for the separate question of 7 and 8 September 2016 are vacated;
3. the order made on 26 August 2016 that each party bear their own costs of the application to vacate the hearing dates is set aside and in lieu thereof the applicant is to pay the respondent's costs of that motion;
4. the applicant is to pay the respondent's costs of today's motion to vacate the hearing dates; and
5. the matter is relisted before the Registrar on 9 September 2016 for further directions.
[6]
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Decision last updated: 02 September 2016