Sandlix Pty Limited & Anor v Hurstville City Council

SOLICITORS Deacons Graham & James

IN THE LAND AND MATTER No. 10754B of 1999; 10842B of 1999 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 23/5/00

Sandlix Pty Limited First Applicant Christopher Neil Second Applicant v Hurstville City Council Respondent JUDGMENT [No 3]

In these proceedings the Court delivered judgment on 17 April 2000 ("Judgment No 2") in respect of an appeal instituted pursuant to s 56A of the Land and Environment Court Act 1979 ("the appeal"). The appeal related to the decision of Commissioner Watts which was delivered on 3 February 2000 ("Judgment No 1"). In Judgment No 2, the Court upheld the appeal and remitted the matter to the Commissioner for further consideration.

By notice of motion filed in Court on 28 April 2000 the applicant sought to re-open the appeal in each proceedings pursuant to Pt 15 r 9(b) of the Land and Environment Court Rules 1996 ("the Rules"). Such rule permits a party to move the Court to set aside or vary an order of the Court if the notice of motion seeking such order is filed before the signing and filing of the minute of the order of the Court pursuant to Pt 15 r 4 of the Rules.

The basis of the application to re-open the present proceedings is stated to be the unavailability at the hearing of the appeal, of the transcript of the submissions made to Commissioner Watts. The transcript of the evidence was available at the appeal but the transcript of the submissions before the Commissioner, although ordered, were not received by the parties prior to the hearing of the appeal. During the hearing of the appeal, several questions arose concerning the conduct of the hearing before the Commissioner. No application was made to adjourn the appeal because of the absence of the transcript of submissions. Such transcript has now been received and corrects certain misunderstandings of the legal advisers who represented the appellant and the respondent at the appeal.

The two proceedings, that is no 10754 of 1999 and 10842 of 1999 have been heard together before Commissioner Watts. The appeal related to both proceedings because identical considerations arose for determination.

In proceedings no 10754A of 1999 an order resulting from the appeal was signed on behalf of the Registrar of the Court and bears the date 17 April 1999. Such order was in fact not signed until approximately midday on 27 April 2000. No order has yet been taken out in proceedings no 10842A of 1999 due to an administrative misunderstanding. The evidence also discloses that the notices of motion in each proceedings were taken to the Court registry for filing during the morning of the 27 April 2000. The registry declined to accept such notices of motion in the mistaken belief that they related to appeals from the decision of a Judge. Some time later that day the order in proceedings no 10754A of 1999 was signed and sealed. On 28 April 2000 the Registrar permitted the filing of both notices of motion and affidavits in support.

Hurstville City Council ("the council") which is the respondent to the motions submits that, at least in respect of proceedings no 10754A of 1999 it is now too late for the notice of motion to be filed since an order has been signed pursuant to Pt 15 r 4 of the Rules. Such rule provides:- The Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court. In response, the applicants submit firstly that the order signed by the Registrar is not a ' final order disposing of proceedings' . Secondly, they submit that given the circumstances surrounding the filing of the notice of motion in proceedings no 10754A of 1999 the Court would hear such notice of motion and grant leave to re-open the appeal.

Having heard evidence from the Court staff, I am satisfied that the order in proceedings no 10754A of 1999 was signed only after the applicants filing clerk had attempted to file the notices of motion in each proceedings. In this circumstance the filing of such notice of motion out of time resulted from no fault on the part of the applicants.

Part 1 r 5(2) of the Rules enables the Court to dispense with compliance with any of the requirements of the Rules either before or after the occasion for such compliance arises. This is a case where the Court would exercise its discretion and dispense with the rule requiring the notice of motion to be filed before the signing of the order. Accordingly, the Court will grant leave to entertain the notices of motion in each proceedings.

In Autodesk Inc & Anor v Dyason & Ors [No2] (1992-1993) 176 CLR 300 the High Court of Australia considered the circumstances in which a hearing should be re-opened. Mason CJ said at 302:- These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or re-hearing an issue when a court has a good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.

Similar observations were made by the High Court of Australia in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265-267. 10. The applicants claim that an injustice will be occasioned if they are deprived of the opportunity to place before the Court further material facts arising from the transcript of submissions before Commissioner Watts. Pursuant to the provisions of Pt 15 r 9 of the Rules and in accordance with the High Court authorities of Smith v New South Wales Bar Association at 265-267 and Autodesk Inc & Anor v Dyason & Ors at 300, the Court grants leave to re-open the appeal.

11. The hearing of these motions has included a hearing upon the merits, being the additional matters which the parties wished to place before the Court on the assumption that leave has been granted to re-open the appeal.

12. The Court now has the benefit of the transcript of submissions before Commissioner Watts. Contrary to the diverse recollections of the legal representatives of the parties, certain facts have now emerged which differ from the matters which were stated to the Court. The critical matter concerned the origin of Condition 70. During the course of the hearing of the appeal, Mr Rigg, who appeared for the council had a recollection that such clause was drafted in chambers by the Commissioner, presumably following the conclusion of the hearing. Ms Kelly believed she drafted it. The transcript now establishes that Condition 70 was formulated by Ms Kelly whilst both parties were present before Commissioner Watts.

13. These are important considerations. At the hearing of the appeal Mr Rigg submitted that no opportunity was given to the council to call evidence in respect of Condition 70 and the Court gained the clear impression that the council had no opportunity to make submissions thereon. The transcript now shows otherwise. It is also apparent that the council did make submissions in relation to Condition 70. Council could have elected to adjourn the proceedings before Commissioner Watts and to call further evidence. However Condition 70 was formulated very late in the proceedings and the terms had not been foreshadowed by either party prior to the commencement of the hearing. It is apparent that the council was taken by surprise.

14. The Court has heard argument from the parties concerning the effect of the transcript and the submissions placed before Commissioner Watts. Despite the detailed submissions by counsel for the applicants, the Court does not consider that there is any occasion to alter the orders made in Judgment No 2. Judgment No 1 does not reconcile the provisions of Condition 70 with the requirements of State Environmental Planning Policy No 5 ("SEPP 5") especially, cl 12(1) and cl 25(f) thereof. Further, there remains the obvious inconsistency between Condition 70 which prohibits parking on the site and Condition 41 which requires the provision of one visitor car space. Added to this inconsistency is Condition 44 which requires all vehicles to enter and exit the site in a forward direction. Whether Condition 70 is appropriate in relation to the requirements of SEPP 5 is a matter to be further considered by the Commissioner. The Commissioner must reconcile the above conditions as contained in Judgment No 1.

1. Leave be granted to re-open proceedings.
2. The proceedings be remitted to Commissioner Watts for determination of the same issues as are identified in the Court's judgment dated 17 April 2000.
3. The costs of these proceedings be reserved.
4. Liberty to either party to make an application for costs of these motions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.