Ryan v Coffs Harbour City Council [2014] NSWLEC 159 | Case summary

The Authorities 27In McInnes v Wingecarribee Shire Council (1986) 59 LGRA 385, which concerned a s 98 appeal, some members of a local environmental organisation, but not the organisation itself, lodged objections or made submissions on a DA, and the chairman brought the appeal in his own name. Stein J held at first instance that the proceedings were wholly vitiated by the applicant's lack of capacity as an objector, and refused leave to substitute a party with capacity. 28On appeal - McInnes v Wingecarribee Shire Council ("McInnes") (1987) 10 NSWLR 660; (1987) 64 LGRA 137 - Stein J's decision was overturned. The Court of Appeal held (headnote at (1) on p660) that it should give to "empowering words" in Rules of the Court "as full a meaning as they may reasonably hear in the context, and so as to permit ample jurisdiction to grant amendments including those which ... allow causes of action to be litigated which could not be litigated if the amendment were not allowed, leaving it to the discretion of the Court to decide when justice requires that such an amendment should or should not be granted". 29Priestley JA (with whom Kirby P and Clark JA agreed) said (at 668A - 669B): The courts have adopted, when construing rules of the general kind in question in the present case, an approach which gives the empowering words in such rules as full a meaning as they can reasonably bear in their context. This approach is not new; it can I think be said to have been required by the substance of the Supreme Court of Judicature Act 1873 (UK) and all the descendants of that Act in their many jurisdictions. It took a long time for the more restrictive common law approaches of earlier years to die out; however, among examples of the more modern view is a case both relevant for present purposes and dating from the turn of the century: Hughes v Pump House Hotel Co Ltd (No 2) [1902] 2 KB 485. That case did not involve an interpretation of rules of court in exactly the same area as those in question in the present case, but it is a sufficiently analogous example to make it worth mentioning. Similarly worth mentioning as showing what seems to me to be the fully developed post Judicature Act approach are the following more recent cases: Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56 per Lord Diplock; Hauxwell v Barton-upon-Humber Urban District Council [1974] Ch 432 at 451 and 453 per Brightman J; and also the McGee and Proctor cases already mentioned. None of these cases raises the exact question or is on the exact rules with which the present case is concerned. They all indicate however, as it seems to me, that the preferred approach at the present time is to give courts very ample jurisdiction to grant amendments, including those which as a matter of simple fact allow causes of action to be litigated which could not be litigated if the amendment were not allowed, leaving it to the discretion of the court to decide when justice requires that such an amendment should or should not be granted. This is in contrast to the earlier approach of leaving the rules rather than the court's discretion to determine whether or not particular causes of action should be litigated. The present case seems to me to provide an example of a situation for which what might be called the post Judicature Act approach to amendment works better than the earlier practice. The question whether the proposed quarry should be permitted was one of real concern to people in the district. The EPA Act gave those people two chances of having their views fully heard before a decision about the quarry became final; one before the Council, and the other, on appeal, in the Land and Environment Court. What the merits of the objectors' concerns and apprehensions may be it is impossible to judge on the materials before the Court. What is clear however is that those concerns appear to be deeply felt and to deserve proper examination by the Land and Environment Court if the objectors can take them before that Court. The general, and indeed the detailed, nature of the objections was known to the Council and the Developer within the times stipulated by the EPA Act; it can be seen from the materials before the Court that the Developer was prepared to present a case in its favour on the merits before both the Council and the Land and Environment Court. The Society, which many of the objectors were members of and relying on to carry forward their point of view, took what its solicitor thought were the appropriate steps for having the appeal brought before the Land and Environment Court for decision on the merits. By mistake the appeal was (1987) 10 NSWLR 660 at 669 brought in one name as a result of which the appeal would fail on what is clearly in the circumstances a technicality when other names were available upon which the appeal could be decided on its merits. The Developer did not seek to argue before the Land and Environment Court or in this Court that it had taken any steps to its own detriment on the faith of there being no maintainable appeal against the Council's granting of consent to the development application. 30In Marshall (as Executrix of the Estate of the late Donald Raymond Marshall) v DG Sundin & Co Pty Ltd ("Marshall") (1989) 16 NSWLR 463, Yeldham J dealt with a situation where a man died of an asbestos-related disease shortly before his solicitors filed a statement of claim in negligence in his name. An amended statement of claim was later filed in the name of his widow, but some time before probate was granted of the deceased's will, which named her as executrix. It was submitted that the proceedings were a nullity as neither purported plaintiff could bring them: the original plaintiff (the deceased) "did not exist", and any cause of action vested, pending the grant of probate, in the Public Trustee, and not in the replacement plaintiff (the widow), and the limitation period expired before probate was granted. 31His Honour concluded, but "not without some regret in the circumstances", and "without any enthusiasm", that the proceedings were a nullity, and that Part 20 Rule 4 did not cure that situation, even if "justice requires it". The widow remained entitled to bring an action under the Compensation to Relatives Act 1987, as that cause of action arose only on her husbands death. 32In Bridge Shipping Pty Ltd v Grand Shipping SA ("Bridge") [1991] HCA 45; (1991) 173 CLR 231, the plaintiff sought to sue the owner of a ship on which goods were damaged in transit. The owner was named as defendant, but it transpired that the owner of the ship had chartered it to a third party, with the result that that third party was the proper defendant. An application under the Victorian equivalent of s 65(2)(b) of the CPA failed because the mistake did not concern the name of the owner of the vessel, its mistake was in thinking that the owner of the vessel, rather than the charterer, was the carrier of the goods. 33Dawson J said (at 238 - 239): ... What is important is the distinction between the correction of a misnomer or misdescription, which was something dealt with by [the relevant rule], and the addition or substitution of parties for the parties originally joined, which was something dealt with by [the Rules] ... The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises. In Rainbow Spray Irrigation Pty Ltd v Hoette [21] , Walsh J. gave leave to amend the name of the plaintiff from "Rainbow Spray Irrigation Pty. Limited" to "Rainbow Spray Sales Pty. Limited", exercising the inherent power of the Court to do so. He remarked [22] that that power of amendment "may not be used so as to change the constitution of the action, to make it an action between different parties from those that were the parties to it before the amendment". He continued: "If this case ought to be regarded truly as the substituting for one plaintiff of another plaintiff, then I think on the authorities, I would be bound to refuse it, but it is not clear that it ought to be so regarded. ... I think I am entitled, in the circumstances of this case, to treat this as a case of correcting an error in naming the true plaintiff, and not as being an attempt to substitute one party for a different party. To put it another way, I think it can be said that one ought to consider the action, from the time of writ onwards, to have been and to have been intended to be an action by Rainbow Spray Sales Pty. Ltd., but because of someone's error the wrong name was typed on the documents." 34In A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd ("Short") [2005] NSWSC 872, an application was made under s 64(4) to either substitute a company plaintiff, or cure a misnomer, as Young ChJ Eq summarised the situation. 35His Honour reviewed a long line of cases, citing Bridge (at [27]) as "the definitive Australian case", in which the High Court held that the ambit of the relevant substitution rules "covered not only misnomer, clerical error and misdescription but also [cases] where the plaintiff, intending to sue a person identified by a particular description [in Bridge, the intended defendant was the owner] was mistaken as to the name of the person who answered that description". 36His Honour pointed out that Bridge had been applied on many occasions, always against the background of the principle that a court rule can never operate contrary to the provisions of a statute, but often to correct "misnomers". 37Young J was also the trial Judge in Sibroll Pty Ltd (In Liq) v Mitch Properties Pty Ltd ("Sibroll") [2007] NSWSC 579, in which an interlocutory application was made under ss 64 and 65 for leave to "correct any mistake in the name of the plaintiff" by adding "the personal name of the court-appointed liquidator" of the named plaintiff "Sibroll Pty Ltd (in liquidation) ACN 003 603 772" as a second plaintiff. It was common ground that the proceedings were brought in time but it was "too late to sue in the name of the correct plaintiff", the liquidator. 38His Honour reiterated the ratio of his decision in Short, and noted several subsequent decisions of the High Court (not relevant to the present matter), as well as Bridge. He opined that s 65(2)(b) meant that "an order may be made to correct a mistake in the name of a party in circumstances which extend beyond a mere misnomer to cases where there has been a culpable mistake, including a mistake in giving the wrong name of the party intended to be sued" ([38]), but did not "authorise an additional party to be added, as opposed to substituting one alleged party for another" ([39]), which meant ([40]) "the inevitable dismissal of the interlocutory application because the only order sought is that the liquidator be added as a plaintiff", as the solicitor ([48]) "consciously intended to commence the proceedings in the name of Sibroll Pty Ltd (in liq) as the sole plaintiff based on his own particular reading ... of the Corporations Act". 39His Honour adopted ([46] - [48]) a form of words used by Oliver LJ in Central Insurance Co Ltd v Seacalf Shipping Corporation (The Aiolos) [1983] 2 Lloyd's Rep 25: The company was rightly described and was made plaintiff as the insurer of the goods. The mistake which was made was the mistake of thinking that the cause of action was vested in that plaintiff and in that capacity. and went on to opine ([52]) that the liquidator had "a new cause of action", i.e. one different from that of the company in liquidation. To allow that to occur would not be a proper exercise of the remedial power in ss 64 and 65 (at [56]). 40Shortly after Sibroll, the Court of Appeal gave its decision in Greenwood v Papademetri ("Greenwood") [2007] NSWCA 221. 41The plaintiff Papademetri sued a man she thought was the owner of the land upon which she slipped on mud, but later discovered that the proper defendant was the deceased owner of land from which the mud allegedly escaped. The plaintiff sought to add the deceased's executrix (Greenwood) as a party. 42The Judicial Registrar of the District Court granted the application, and the executrix sought leave to appeal. The case in the Court of Appeal concerned the correct construction of s 65(2)(b). Campbell JA, with whom Tobias JA agreed, upheld the appeal on a very narrow ground. Their Honours followed Bridge, but distinguished Sibroll. They also applied McInnes so as to allow multiple parties to replace a single party. Young J delivered a separate judgment, in which he agreed with the orders proposed by the majority, but respectfully departed from their reasons in a respect not of present concern. 43Campbell JA said (at [33] - [36]): 33 The power that is conferred by section 65(2)(b) is purposive in its nature. It authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words "whether or not the effect of the amendment is to substitute a new party" do not limit the width of that power. Rather, they make clear that the power can apply in some circumstances where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under section 65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake. 34 Section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the court's opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases where an amendment is sought under section 65(2)(b) there may be considerable argument about whether a mistake in the name of a party has those characteristics. However, no such argument was put to us on the present appeal. 35 Even if a proposed amendment is one whose effect could be described by the language in para (b) of section 65(2), there is still a discretion in the court whether to permit that amendment. Section 65(2) contemplates that any amendment made under section 65(2) will be effected through leave granted under section 64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under section 65(2) needs to be exercised in accordance with section 64(2). Section 64(2) itself requires the court to exercise its discretion in accordance with section 58, which in turn requires the court to have regard to the provisions of sections 56 and 57. Even if it were not inherent in the grant of a discretion to a judicial officer, section 58(2)(b) enables the court to have regard, in an application for an order under section 65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made. 36 No evidence or submission was put to the Judicial Registrar concerning a discretionary reason why she should not make the joinder order, nor is any such discretionary question raised before us. Rather, the entire argument before us has concerned whether power existed to make the joinder order. 44In respect of Sibroll, His Honour said (at [76] - [78]): 76 ... The action in question had been brought by a company in liquidation, seeking recovery of a preference or uncommercial transaction pursuant to section 588FF Corporations Act 2001. Such an action can only be brought by the liquidator, not by the company in liquidation. By the time this error was realised, the three-year limitation period from the relation-back day, arising under section 588FF(3) Corporations Act, had expired. The action that named the company as plaintiff had been commenced in time. The solicitor who had drafted the originating process gave evidence that he had been of the view that the company was the appropriate plaintiff, and that he had quite deliberately decided to commence proceedings in the name of the company. 77 Young CJ in Eq dismissed the application. I respectfully agree with that outcome. There had been no mistake in the name of a party, merely a mistake concerning a matter of law about whether an action to recover a preference or uncommercial transaction should be brought by the company in liquidation or by the liquidator. However, in the course of reaching that decision, his Honour said (at [39]): "The section does not authorise an additional party to be added, as opposed to substituting one alleged party for another: Hayward v Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 and Sullivan v Van der Broek [1999] NSWSC 1177 (a decision of Windeyer J)." 78 I respectfully disagree with this reading of section 65(2)(b). I doubt that a rigid dichotomy can be drawn between adding an additional party, and substituting one alleged party for another. If it mattered, I see no violence to language in saying that litigation started out with A as the defendant, but then A and B were substituted as the defendant. More importantly, the scope of the power in section 65(2)(b) does not depend upon whether or not the amendment is one that "substitutes" a new party. As earlier explained, I would not follow the first possible reading of the principle in Hayward, and in my view Sullivan v Van der Broek did not have as its ratio that there was never any power under Part 20, rule 4 for an additional party to be added, as opposed to substituting one alleged party for another. 45In Miller v Sutherland Shire Council ("Miller") [2008] NSWLEC 158, orders had been made for demolition of a jetty, but were suspended for six months to allow time for some regularisation of a defective development consent. The second and third respondents sought from Biscoe J an extension of the suspension period, and an order that they be substituted for the fourth respondent as the applicant on the relevant DA, so that the necessary amendment to it might progress, given the fourth respondent's reluctance to further participate. The Council took a neutral position, but the applicant in the proceedings opposed the relief on discretionary grounds, and proposed alternative orders. 46His Honour extended the suspension by four months, and moved on to consider what he entitled the "substitution of principal for agent as applicant on [DA]". His Honour held (at [20] - [21]): 20 On the evidence, the fourth respondent was the agent of undisclosed principals, Mr and Mrs Fairclough, for the purposes of making the development application. Upon an agent ceasing to act in that capacity for any reason, in my view the undisclosed principal can step into the agent's shoes. For example, if a person named in a development application dies before it is determined, and if that person was an agent for an undisclosed principal, the undisclosed principal could require its name to be substituted for the applicant in the development application. It would be unnecessary to lodge a fresh development application. This may be significant where, for example, the statutory scheme has changed since the development application was lodged so as to make the proposed development impermissible on a new development application. The contrary seems to me to be an unlikely legislative intention. The applicant and the council did not submit to the contrary. 21 In my view, the fourth respondent, in her email of 19 October 2007, effectively resigned as the agent for Mr and Mrs Fairclough for the purpose of making the development application, I therefore propose to grant relief to the effect that they are entitled to be substituted for her as the applicants on the development application. The applicant, supported by the Faircloughs, has suggested that that may be affected by a declaration that the development application was lodged with the council by the fourth respondent as agent for and on behalf of Mr and Mrs Fairclough and by an order that the council deal with and determine the development application on the basis that they are the applicants for the development described therein and any amendments thereto according to law. The council's position is neutral. I propose to grant relief in that form. 47I come now, in chronological sequence, to Betohuwisa ([15] above). In the argument before me, Betohuwisa and McInnes were contrasted, but McInnes was not put to Craig J in Betohuwisa, which is not surprising, given that McInnes was a ss 64/65 type case and Betohuwisa was not. 48In Betohuwisa, the applicant for consent, Old Kiama Wharf Company Pty Ltd ("OKWC") had entered into financial arrangements with another company, Betohuwisa Investments Pty Ltd. OKWC defaulted on these arrangements, and, consequently, Betohuwisa acquired the leasehold interest upon which OKWC relied to lodge the subject DA. Betohuwisa then sought to appeal Kiama Council's refusal of it. 49Craig J held that Betohuwisa was not a proper applicant for the purposes of s 97, because it was not the applicant for DC, nor the principal of an agent engaged to lodge the DA. His Honour said (at [49] - [50]): 49. Where the EPA Act provides an entitlement to take any step consequent upon the lodgement of a development application, it identifies the person able to take that step. In the case of a development application that has been refused, it is the applicant for that consent who is entitled to appeal. Reference to "the applicant" in s 97 is clearly a reference to the person who made the application pursuant to s 78A in accordance with the Regulation, as the latter section requires. As I have earlier recorded, a different provision is made where modification of a consent is sought. Had the legislature intended to confer a right of appeal upon a successor in title to the original applicant, following determination to refuse a development application, or a person otherwise having the "benefit" of the development application, it would have been a simple matter for the legislature so to provide. As earlier explained, the provisions of the Integrated Planning Act (Qld) provides an appropriate example by which such an intention might be made apparent. 50. Apart from the absence of any expressed right to appeal by a person who, subsequent to refusal of a development application, acquires "the benefit" of that application, there are contextual considerations that favour the limitation of the right to the original applicant or that applicant's principal at the time of which the application was made. By s 78A(1) the right to make an application is expressed to be subject to the Regulation. The relevant terms of the Regulation, earlier recited, make the personal nature of the application clear. 50In Betohuwisa it was argued by the applicant, that an applicant for the purposes of s 97 is not only the applicant on the DA, but it extends to ([41]): Those persons so closely related to him as to be regarded as the privies of the applicant such as agents, mortgagees, persons to whom the applicant has divested all conceivable rights in the property including the right to develop it. 51His Honour rejected this argument for reasons given at [36], [37] and [42] - [44]: 36 Although it may seem trite, it is nonetheless pertinent to observe that the process of making and assessing a development application, together with the process of appeal from the determination of a consent authority, are all creatures of the EPA Act (cf Sushames v Pine Rivers Council [2006] QCA 171; (2007) 1 Qd R 382 per Keane JA at [14]). This observation is made to emphasise the fact that close attention to the statutory provisions is imperative in order to determine the entitlement of Betohuwisa to maintain its present appeal. 37 The term "applicant" is not defined in the EPA Act. Its meaning is therefore to be gleaned from its context within the Act (Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] - [13] and the cases there cited). That context includes taking cognisance of the different bases upon which a person is qualified to make an application under the EPA Act. ... 42 The Council accepts, in my view correctly, that an applicant for the purpose of s 97 of the EPA Act is not confined to the person or entity who signed the form of development application lodged with a consent authority. However, it submits that the class of persons to whom the broader notion of "applicant" extends is the principal or principals of the person or entity on whose behalf the application is made. Thus, where a development application is lodged by a town planner, architect, engineer or construction company with no beneficial interest in the overall development other than receipt of a fee for service or work undertaken, the Council recognises that if its determination of a development application is one that leads to dissatisfaction with the decision, the principal of the consultant applicant could appropriately lodge an appeal pursuant to s 97. The lodging of development applications with Councils by agents of the kind that I have described is not uncommon. 43 Substitution of a principal for an agent who has lodged a development application has been sanctioned by this Court; [Miller] at [20]. As the actions of an agent, acting within the scope of that agent's authority, are generally taken to be the actions of the principal, I see no reason why the principal should not be entitled to commence an appeal under s 97, notwithstanding that it was the agent of that principal who lodged the relevant development application with a consent authority. 44 Principles of a different kind seem to me to apply in the case of other "privies", as Betohuwisa has sought to describe them. If, for example, the entitlement to commence an appeal from a council extended to a mortgagee who was not in possession of the mortgage property, problems potentially arise. In such a circumstance, there is the possibility of more than one person or entity who would qualify as an applicant, if the broad "privies" description of qualified persons advanced on behalf of the applicant is correct. There would be the potential for both the person or entity seeking development consent, as well as the mortgagee to be "an applicant" under s 97. The response of each of them to the Council's determination of the development application may well be different. A mortgagee is not ordinarily the agent of the mortgagor and, in particular, the acts of the mortgagee are not, in the context of agency law, ordinarily taken to be the acts of the mortgagor. 52In Coffs Harbour City Council v The Minister for Planning and Infrastructure [2012] NSWLEC 4; (2012) 187 LGERA 252, this Court had added the Department as the third respondent to a challenge by Council to a "Part 3A" subdivision approval granted by the first respondent Minister to the second respondent company ("Sandy Shores"). 53Among other grounds of challenge, the applicant Council claimed that the approval was sought by, and granted to, not Sandy Shores, but by and to a "phantom" proponent associated with it, rather than a "legal entity", as the law requires (see [12] - [15], and 113). The arguments are summarised at [170] - [179] of my judgment, and I found (at [180] - [181]): 180 The evidence shows ([29]-[111]) that the subject proposal passed through many hands and many stages before the Approval issued. It also shows that the relevant review and approval authorities knew who owned the subject land, and which company planned to develop it, and acknowledged that those interests acted from time to time through various representatives - PWA (and its officers such as Charles Hill and Rob Power), Deacons (as that law firm was then known), John Oliver, Peter Darby, Worley Parsons (incorporating PWA from 2008), Maddocks (Lawyers), Bill Yassine, sometimes trading as "Sydney NSW Property Consultants", perhaps also Willana, and now, in these present proceedings, Gadens Lawyers. 181 The respondents' submissions on this ground are clearly correct, and I accept them. The argument which prevailed, in my view correctly, in Betohuwisa, which concerned a development consent, should be accepted in respect of a concept plan approval. Clearly the second respondent was effectively the proponent, albeit that some of its documents and actions involved various entities, clearly acting as its agents. 54On appeal - Coffs Harbour City Council v The Minister for Planning and Infrastructure ("Sandy Shores") [2013] NSWCA 44; (2013) 193 LGERA 203 - the judgment of the Court of Appeal was given by the Chief Judge of the Court (Preston J), with whom Ward JA and Tobias AJA agreed. His Honour rejected the Council's submission that my reasons involved error, but gave different reasons for upholding my conclusion. His Honour said (at [87] - [89]): 87 In circumstances where the legislature has expressly specified in the statutory provision conveying the power to give an approval the preconditions that must be satisfied in order for the Minister to exercise the power, there is no warrant for the Court to construe the provision as also requiring, by implication, an additional precondition that the Minister identify a legal entity as a "proponent". Further, none of the other statutory provisions relied upon by the Council, set forth earlier, supports the implication of a precondition that the Minister identify such an entity. The requirements for implication, that it be necessary, obvious, clear and consistent with the express terms of the statutory provision, are not satisfied (see, by analogy, Macquarie Generation v Hodgson [2011] NSWCA 424; (2011) 186 LGERA 311 at 320 [63]). 88 In summary, s 75O(1) neither expressly nor by implication requires as a precondition to the exercise by the Minister of his powers to give an approval for the concept plan for a project, the identification of a legal entity as a "proponent". Hence, the misdescription in the Approval of the proponent as "Sydney NSW Property Consultants Pty Ltd" works no invalidity. 89 The primary judge therefore did not err in his conclusion to reject the Council's third ground of challenge. 55Finally, I return to Ironlaw ([7] above), which has some tangential relevance to the present case. 56In that case, the company Ironlaw Pty Ltd lodged a DA, and subsequently a Class 1 appeal against its deemed refusal. The Council contended that the DA was for designated development, and Ironlaw commissioned an environmental impact statement ("EIS"). Council sought to have the appeal summarily dismissed. His Honour held that the Council's subsequent requirement of an EIS did not detract from the effective lodgement of the DA, for the purpose of calculating the time for appeal under s 82(1) of the EPA Act and cl 113(2) of the Regulation. His Honour said (at [68] - [71], and [81]): 68 I accept the submissions advanced by Ironlaw, essentially for those reasons it has advanced as well as those that I have already articulated in response to particular submissions made by Ironlaw. Apart from the language of cl 113(2) of the Regulation, it seems to me that cll 51 and 54, particularly the provisions of cl 51, identify those circumstances in which the deemed refusal period identified in cl 113 ceases to run and so deny an entitlement to appeal in reliance upon s 97(1)(b) of the EPA Act. The fact that in the present case an environmental impact statement was required before determination of the development application could lawfully be undertaken does not detract from the fact that a development application had been "lodged" within the meaning of cl 113(2). 69 The evident purpose of the relevant provisions of the EPA Act and Regulation is to identify a period within which a consent authority can identify the absence of required material or information to accompany or in support of a development application. If the consent authority fails to do so, (as the Council failed to do in the present case) the combined operation of ss 97(1)(b), 82(1) and cl 113(2) of the Regulation is to afford the opportunity to the applicant for development consent to have the Court determine that development application. Expressed differently, those provisions ensure that there is a mechanism for determination of a development application where there is delay on the part of a consent authority beyond that period or those periods which the legislature has considered appropriate for the consent authority to have responded to or made a determination of a development application that has been lodged. 70 The provisions of the EPA Act and Regulation to which I have latterly referred, clearly contemplate a circumstance where the process of assessment of a development application by a consent authority has not been concluded or even commenced at the time at which a right of appeal under s 97(1)(b) of the EPA Act is properly exercised. Once the appeal has been commenced pursuant to the subsection, the Court has the power to exercise the functions of the Council in hearing and disposing of the appeal (Land and Environment Court Act 1979, s 39(2)), while the Council retains the power to determine the application "without prejudicing the determination of the appeal by the Court" (EPA Act, s 82(2) and (3)). There is no restriction implicit in the statutory provisions upon the Court directing the Council to take such administrative steps as may be necessary to address, for example, the public notification of a development application, whether that publication be required by a provision such as s 79 of the EPA Act or under the provisions of an adopted development control plan requiring notification of new development applications. The likelihood that such administrative steps are required after an appeal has been commenced, being steps ordinarily undertaken by a consent authority as part of its function when considering a development application, must clearly have been within the contemplation of the legislature when enacting the "deemed refusal" provisions of the EPA Act. 71 Having regard to the legislative and regulatory regime to which I have referred, I do not regard the circumstance that a development application is "incomplete" in the sense earlier discussed, renders that application "ineffective" to engage the provisions of s 97(1)(b) of the EPA Act where, as occurred here, the consent authority has not exercised a power under cl 51 of the Regulation to reject the application. That conclusion is supported by the decisions in the decided cases to which I have earlier referred in which it has been held that the requirement imposed, initially by the EPA Act and later by the Regulation, for the consent of the owner of land to be included in the development application, is a requirement that may be satisfied at any time prior to determination of that development application. ... 81 For the reasons that I have stated, I am satisfied, having regard to the present legislative and regulatory regime, that the development application is valid and was effective to found an entitlement to appeal under s 97(1)(b) of the EPA Act when filed with the Court on 7 September 2012.

Consideration 57Sections 64 and 65 are in Division 3 of Part 6 of the CPA. Part 6 deals with "Case Management and Interlocutory Matters", and commences with "Guiding Principles" in Division 1, the first section of which, s 56, entitled "Overriding Purpose", includes the following provisions: (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) 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. 58Section 57 defines the objects of case management, reflecting "just", "efficient", "timely", and "affordable", and s 58(1) requires the Court to "seek to act in accordance with the dictates of justice" in making orders or directions, and to have regard to the provisions of ss 56 and 57 in determining what those "dictates" are in a particular case. 59It is a matter of conjecture whether the question of which of a number of related persons or entities is the most relevant applicant is a "real issue in the [substantive] proceedings", except where, as here, it is argued that an error in selection of the applicant renders the proceedings a nullity. 60It is, however, that question which concerns the Court at this threshold stage of these appeal proceedings, and the "dictates of justice" must inform its resolution. 61Essentially, Ryan submits that the Court should apply McInnes to his situation, even though it involved s 98 and not s 97, but the Council submits that Betohuwisa dictates that Ryan should be refused relief, and that his appeal should be dismissed. 62Ryan argues that Craig J's refusal to extend the term "applicant" to "privies" does not preclude a s 97 appeal being brought by an agent of the applicant for consent, c.f. Miller. 63Red Rock can act only via agents - GHD at the DA stage, and Ryan himself at the Class 1 appeal stage - to assert its rights as a principal, but only those rights, whereas Betohuwisa was not a substitution case, but involved a "successor in title", whose rights might not always be the same, just as the rights of a mortgagee are not the same as those of a mortgagor, or those of a company in liquidation are not the same as those of a duly appointed liquidator, or the cause of action against a ship charterer is not the same as that against the ship owner. 64Red Rock was the applicant for the DC now under appeal, and it then appointed a different agent to assert its right of appeal under s 97. While Council raised its point inconveniently late in the proceedings for Ryan/Red Rock, Ryan argues that Council clearly understood what the appeal is about, and could not be misled or put in doubt. Greenwood makes clear (at [33] ff - see [43] above) that ss 64 and 65 are "purposive" in nature, and intended to act "beneficially". The Council is not prejudiced, so Ryan and his company should, it is argued, have the benefit of any exercise of the Court's discretion. 65Council argues that the mistake involved here goes beyond a naming error and is not one that attracts the sections - the mistake was to rely on Creighton, who "deliberately" commenced the proceedings in Ryan's name. In Sibroll, the solicitor consciously selected the company-in-liquidation as the sole plaintiff, and relief was denied as the mistake was one of law, not fact. Ryan and his company are "close" (c.f. Betohuwisa where the two companies did not have common directors and/or shareholders), but Red Rock is a separate legal entity from Ryan. 66The Council's argument is that the appellant must be the DA applicant or its principal, who may be undisclosed (Miller), but that it cannot be a different agent of that principal. However, Ryan submits (supplementary subs par 5) that there is no reason that, where the applicant under s 97 can be the undisclosed principal of the applicant for DC, it cannot be the agent of that applicant. 67Ryan argues that the problems Craig J identified (at [44] of Betohuwisa) as caused by extending the meaning of "applicant" under s 97 to other "privies", namely divergent interests, and, therefore, conflicting "responses" as to the determination of a development application, does not extend to the current situation. As Ryan is acting as the agent of the DA applicant, his acts are to be taken as the actions of Red Rock, and there can, therefore, be no conflict between their interests (c.f. Betohuwisa) (supplementary subs pars 7 - 10). As put by the applicant's counsel in reply (Tp22, LL42 - 45) "It's the [company's] application, not anyone else's ... All it's done is ... do it in the name of its agent". 68I agree with the case put by Ryan, and conclude that his appeal proceedings were validly commenced, are not a nullity, and should not be dismissed for want of jurisdiction. The Council's motion must, therefore, fail. 69Having found that Ryan is a proper applicant, his motion to substitute Red Rock becomes otiose. However, as it was fully argued, I should deal with some of the submissions made, which I have not so far addressed. 70The power conferred by s 65(2)(b) applies to correct a mistake of fact, but not one of law, subject to the discretionary considerations required by ss 56, 57 and 58 of the CPA Act. 71Section 65 has the practical effect of amending statutes of limitation, but not to correct a nullity (eg Marshall). Council submits (pars 35 - 36): 35. ... If proceedings are commenced in time but with a mistaken party, section 65 permits correction of that party notwithstanding the expiration of a limitation period that would ordinarily apply in respect of proceedings against the new, correct party. 36. However, section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to proceedings. It only applies (sic) to a mistake that, in the court's opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. 72Ryan argued that the McInnes reasoning in the case of a s 98 appeal applies also and equally to s 97 appeals. However, counsel for the Council sought to distinguish the present case from the situation in McInnes, on the grounds that objectors to a designated development have a only limited opportunity to have their concerns addressed on their merits in a s 98 appeal, whereas a proponent who can appeal under s 97 can choose simply to lodge another DA. Ms McKelvey suggested that the courts have afforded a greater opportunity to objectors to rectify any mistakes in their appeals, but I consider that, like an objector under s 98, an applicant for development consent, once refused, has a right to appeal, and to seek to have the refusal decision assessed on its merits. 73I am unconvinced that the fact that an unsuccessful DA applicant has the option of appealing under s 97, or applying for another DA, can be said to subordinate its right of appeal, or that it makes that right of appeal any less important for this Court to uphold than the right of an objector under s 98. 74Cases invoking s 65 make clear that it must be the name of a party that is in error, and that error in the identity or character of the person who was "intended to be joined" cannot be rectified under it. 75The mistake in McInnes was different from the situation here. 76I have already quoted (at [29]) some of what Priestley JA said in deciding that appeal, but I will now quote from what His Honour earlier said (at 667) about the questions to be addressed: To see whether a relevant mistake under r 1(3) happened in the present case it is necessary to ask (i) whether there was a mistake in naming Mr McInnes as a party and (ii) whether Mr and Mrs Clarke or either of them can be said to have been the person intended to be made a party. On the facts before the Court it seems to me accurate to say that a mistake was made by the persons instructing Mr Glenn in authorising him to name Mr McInnes as the s 97 appellant. ... The intention was to make the appellant a person from the class of available persons. Mr McInnes was thought to be such a person but was not. Thus I think the first of the two questions must be answered yes; there was a mistake in the name of a party. The second question is whether it can be said that Mr and Mrs Clarke were persons intended to be made parties. I think this question should be answered yes also. I come to this conclusion in the context of the definition in the EPA Act of person. In naming Mr McInnes as appellant the mistake that was made was to think that he was a person authorised to represent the group of individuals comprising the Society, that group being a person which through Mr Thompson had made a submission under s 87 by way of objection on behalf of the Society. If what was thought to be the case had in fact been the case then the appellant would have been Mr McInnes as agent for the Society, that is agent for each of the members of the Society including Mr and Mrs Clarke. That is, if the state of affairs mistakenly thought to be correct had in fact been the case Mr and Mrs Clarke would have become parties, in a real sense, to the proceedings. They were thus persons intended to be made parties and Mr McInnes having been mistakenly named as the party, Mr and Mrs Clarke fall within r 1(3) and were entitled to apply under r 1(1) as if they were parties. 77His Honour later added to his reasoning (at 669) the following: I do not agree with the contention that the Land and Environment Court was without jurisdiction in the appeal commenced by Mr McInnes. For the reasons already given the court in my opinion had power to substitute Mr and Mrs Clarke for Mr McInnes as the applicants in the appeal. Had that power been exercised by making an order for substitution then I can see no reason why the appeal should not have proceeded to a hearing on the merits. This seems to me to demonstrate that although (according to the concession made by the appellants in the course of the hearing in this Court) if Mr McInnes had remained the sole party, the appeal must have failed because he was not a competent appellant, this is not the same thing as the Court lacking jurisdiction to deal with the matter before it. On the footing accepted by the appellants, there was before the Court an appeal which was doomed to failure. An order dismissing the appeal would have been an order made within the jurisdiction of the Court. Until such time as the Court dismissed the appeal it had its ordinary jurisdiction to deal with interlocutory matters including applications for amendment of documents and substitution of parties. 78Thus, in McInnes, the mistake made was in erroneously believing that the Society had lodged an objection under s 87, through its secretary, Mr Thompson, which led to Mr McInnes being named as applicant on behalf of the society, including Mr and Mrs Clarke. Had the erroneous belief been correct, Mr and Mrs Clarke would have been made a party. This situation would be seen to be a factual mistake. 79Here, there was no mistaken state of affairs. A conscious decision was made to name an agent, Ryan, as applicant, as opposed to the principal, Red Rock, in the (allegedly erroneous) belief, which I have upheld, that Ryan could properly be an applicant under s 97. If I had found that Ryan was not a proper applicant, s 65(2)(b) would not be available to save the proceedings.

Ryan v Coffs Harbour City Council

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Cases Cited (24)