Shire of Yarra Ranges v Russell [2009] VSCA 279

2 The applicant, Yarra Ranges Shire Council, seek summary dismissal of an appeal to this Court commenced by the respondent, Mr John Russell, against a refusal by a judge in the Practice Court to grant an interlocutory injunction.

3 The injunction was sought to prevent the council from undertaking works at a site known as the Monbulk Community Hub. The VCAT has refused an application by the respondent to cancel a planning permit relating to the site. The respondent appealed from that refusal to a judge of the Trial Division. Pending that appeal, the respondent sought the injunction to prevent any further demolition so as to preserve the status quo at the site. Since the institution of the appeal against the order dismissing his application for the interlocutory injunction, the two buildings which make up the community hub have been demolished and the construction of the new buildings have advanced in accordance with the planning permit to the point where their completion is likely in February 2010.

4 The council seeks the summary dismissal of the appeal on the basis that the injunction that was sought was to prevent the demolition of the buildings which have now been demolished. Accordingly, it is said by the council that the appeal against a refusal to grant that injunction is now, 'an exercise in futility' and 'is doomed to fail', as the Court will not grant an inutile injunction.

5 The respondent, who appears in person, resists the application for summary dismissal. He submits that the injunction sought before the trial judge encompassed more than simply the prevention of demolition of the buildings at the community hub. The application before the judge in the Practice Court, only referred to the proceedings being 'stayed'. For the reasons that follow, I think it is clear that the 'proceedings' were to be understood as a reference to the works the subject of the planning permit and that the injunction sought was to restrain the demolition and redevelopment on the site.

6 The Community Hub is situated at 21 Main Street Monbulk. It was at the time of the application comprised of a community centre, (which was used for private functions, concerts, and other indoor recreational activities) and a senior citizens centre.

7 On 10 October 2008, the Council issued a Planning Permit (YR-2008/591) for the redevelopment of the Community Hub. The development contemplated by the permit required the demolition of the buildings that, at that time, made up the Community Hub. The demolition was referred to in the permit, though it was not the subject of specific approval as it did not require authorisation under the relevant legislation.

8 Aggrieved by the development, the respondent made an application to the VCAT to cancel the permit. That application was made under s 87 of the Planning and Environment Act 1987, which provides the VCAT with the jurisdiction to cancel or amend a planning permit if a jurisdictional basis for doing so is made out.

(a) a material misstatement or concealment of fact in relation to the application for the permit; or

(b) any substantial failure to comply with the conditions of the permit; or

(c) any material mistake in relation to the grant of the permit; or

(d) any material change of circumstances which has occurred since the grant of the permit; or

(e) any failure to give notice in accordance with this Act; or

(f) any failure to comply with section 55, 61(2) or 62(1).

1"> 10 The respondent, who was self-represented before the Tribunal, made submission that were understood by the tribunal to fall within the grounds in s 87(1)(a) and (c). First the respondent submitted the public had not been told of the full affect of the amended planning proposal and changes from an earlier proposal for development of the site. This constituted in substance a material mis-statement or concealment under (a). This was rejected by the Tribunal who made reference to the extensive public consultation and notification process in relation to the specific development proposed in the permit application that was approved. For the same reason the Tribunal dismissed the complaint made under (c) that there was a failure to adequately consult with the public which led to a relevant mistake.

11 The Tribunal considered that no jurisdictional basis under s 87 was made out. It observed further that the respondent appeared to have been treating the proceeding as a general means of review. The Tribunal referred to the decision of Stratiou v Darebin City Council where it was said:

An application to amend [or cancel] a permit is not an opportunity for third parties to appeal against the grant of permits. The Planning and Environment Act 1987 gives third parties generous opportunities to participate in decision making about planning permit applications. Once a permit is granted, it confers valuable rights on the holder and should not be lightly set aside. There is a heavy onus on an applicant under s 87 to establish the ground relied upon and to overcome the procedural hurdles required before the Tribunal exercises its discretion.

12 The Tribunal then made an order dismissing the respondent's application. He applied on 4 March 2009, for leave to appeal from that order. The hearing of that application was initially listed for 27 March 2009, but is now schedule to be heard on 21 October 2009.

13 On 20 March 2009 the respondent applied to the Supreme Court seeking an interlocutory injunction to prevent the council from proceeding with the works pending the outcome of the prospective appeal from the VCAT decision. His handwritten application was in these terms:

That I am the applicant in this matter and I make application for a stay of proceedings on the grounds that the Responsible Authority - the Shire of Yarra Ranges has commenced to remove the roof and break free the large area at the front of the main building.

That the matter is set down for hearing on the 27th March 2009 - next Friday - for leave to appeal.

That should an injunction - as a stay of proceedings [-] be disallowed then the buildings will have been destroyed before the matter is argued.

That I have requested that VCAT grant a Stay of Proceedings & that I have not had their advice to date.

That the loss of the 2 buildings at this time will disadvantage the proper legal process.

That the 2 buildings were constructed during 1975-1976 and up till this time were fully functional and secure a community need.

14 The application was heard by a judge in the Practice Court on 20 March 2009. In opposing the application the council submitted that there was no serious question to be tried as there was no requirement at law for a council to obtain a permit to demolition buildings. As the permit was one for construction and not demolition the council submitted that restraining the demolition, which it asserted was the respondent's real objective, could not be achieved by a stay of the VCAT decision as that decision was only concerned with the planning permit.

15 Before hearing the substance of the respondent's submission, his Honour referred to the requirement that a party who seeks injunctive relief must give an undertaking as to damages. The respondent conceded that he could not give such an undertaking as he was impecunious. He did however submit that the requirement to make the undertaking should not apply as it would act as a barrier to prevent disadvantaged persons from running litigation. He submitted, in substance, that the balance of convenience would additionally favour the granting of the injunction, as the demolition of the buildings on site would be irreversible. His Honour dismissed the application with costs on the basis that the respondent was unable to give the undertaking as to damages. He has appealed against the orders made.

16 Since then the buildings have been demolished and the construction is almost completed. The executive officer of the council, Mr Faux, has deposed that:

By 15 April 2009, the demolition works were completed. As at the time of affirming this affidavit, the construction of the new facilities is well underway

• the foundations of the new buildings which will comprise the Hub have been laid and development works are ongoing.

He went on to state that the development of the new facilities will be completed by about February 2010.

17 The applicant seeks an order in the inherent jurisdiction of the Court, that the appeal be summarily dismissed. The jurisdiction and powers exercisable by the Court of Appeal, sitting as a bench of two judges of appeal are set out in Rule 64.27 of the Supreme Court (General Civil Procedure) Rules. In particular, Rule 64.27(d) confers the power to hear an appeal from an order in an interlocutory application. Rule 64.27(2) provides that two judges of appeal may 'make any order or give any direction incidental or ancillary to the exercise by them of the jurisdiction and powers of the Court of Appeal'. It was submitted that this provision has the consequence that a court constituted by two judges is competent to summarily dismiss an appeal brought from an interlocutory judgement. An alternative view is that this power may not ordinarily be exercised by a bench of two judges, as it is not specifically enumerated in r 64.27 and involves, in substance, the disposition of an appeal. It is not necessary to decide this point. A determination has been made by the President under s 11A of the Supreme Court Act, which provides that a court of two judges may hear this case, with power to exercise all of the jurisdiction and powers of the Court of Appeal.

18 The question then arises as to the circumstances in which the Court may exercise its discretion to summarily dismiss an appeal. An appeal from the refusal to grant injunctive relief is as of right. In Leibler v Air New Zealand Ltd, this Court considered whether it had a discretion to decline to hear an appeal brought as of right. Phillips JA, with whom Winneke P and Kenny JA agreed, said:

The defendants accepted that the court could decline to proceed to the hearing of an appeal if satisfied that the subject matter had become wholly academic so that there was no live controversy between the parties - and so

much cannot be doubted. This court does not give advisory opinions: Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368.[1]

Although counsel was disposed to refer this court's power to stay to s 30 of the Supreme Court Act which confers a power to stay, albeit in perfectly general terms, that does not, I think, bear upon the present problem. Whether inherent or statutory in origin, the power to stay is an ample one to meet the demands of justice. Moreover, as Mason C.J. observed above, a court also has the power "to control and supervise proceedings brought in its jurisdiction" and that too must involve an ample discretion. In those circumstances, even if counsel were right in submitting that the twin discretions to stay for abuse and to control and supervise proceedings are all that the court possesses (and I am not yet persuaded that that is so), I should have thought that one or other of those discretionary powers (and particularly the latter) would ordinarily be sufficient to enable the court to decline to hear an appeal whenever the circumstances were such as to make that a proper course to follow. The question remains, of course, whether it would be proper to decline to hear an appeal which, having been brought as of right, had since become reduced (as in this particular instance) to a dispute over costs, and to my mind the reference to cases such as Jago does not assist in the resolution of that question.

In the end it is unnecessary to decide how far this court retains a discretion to decline to hear an appeal in the circumstances just mentioned. For what it is worth, I incline to the view, as at present advised, that this court, which is a final court of appeal save to the extent that the High Court grants special leave, must retain a discretion to decline to proceed with the hearing of any appeal if the justice of the case so requires; and this is not the case to decide that the justice of the case cannot so require where, to use the Privy Council's words in Elders Pastoral (at 1095), 'leave is unnecessary or has been obtained and subsequently the dispute between the parties is reduced to a dispute over costs.'[2]

20 A similar view was expressed in State of South Australia v Lampard-Trevorrow,[3] by White J in these terms:

Courts do not ordinarily, as a matter of principle, determine proceedings which involve issues which are not live as between the parties. The aversion of courts to determining issues which are moot, hypothetical or academic is well known. In relation to an appeal, it was said by each of Mason J and Aickin J in Gardner v The Dairy Industry Authority of New South Wales that the Court should not determine an appeal which would produce 'no foreseeable consequences for the parties'.

The authorities reveal a number of circumstances in which appeals have been dismissed or stayed because they had no practical utility. In Sun Life Assurance Co of Canada v Jervis, an insurer was granted leave to appeal to the House of Lords upon its undertaking to pay the costs of the appeal as between solicitor and client in any event, and upon its further undertaking not to ask for the return of any money ordered to be paid under the order which was the subject of the appeal. The House of Lords held that it was inappropriate to hear to the appeal. Viscount Simon LC said:

The difficulty is that the terms put on the appellants by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellants win or lose. The respondent will be in exactly the same position in either case. He has nothing to fight for, because he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it. I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties ...

Similarly, in Hole v Insurance Commissioner, the Full Court of the Victorian Supreme Court refused to hear an appeal on learning that the judgment debt had been paid by the defendant prior to the hearing of the appeal and that the parties had agreed that the money should not be repaid, nor a retrial sought, should the appeal succeed.

The decision in Sun Life Assurance Co was followed by Starke J in Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation, in relation to taxation which the Commissioner had undertaken not to seek to recover. It was referred to with approval by Mullighan J, at first instance, in NZI Insurance Australia Ltd v Baryzcka and Anor.

Other examples of circumstances in which courts have refused to hear appeals, or to grant permission to appeal, when the determination of the appeal would produce no practical consequence include Harrington v Rich; Secretary to the Department of Human Services v Magistrates' Court at Melbourne; Hope Downs Management Services v Hamersley Iron Pty Ltd; and Beitseen v Johnson.[4]

21 White J also considered how the discretion to exercise a permanent stay should be exercised:

While it is true that the Court's discretion to stay proceedings which involve a misuse of its procedures is broad, the circumstances in which it is appropriate to exercise the power are limited. The principles were reviewed by the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay. Brennan J held:

The grounds on which the court is justified in refusing to exercise its jurisdiction when it is regularly invoked are, and in my opinion, should be, grave and narrowly confined.

Deane J said:

The starting point of the determination of such an application in accordance with traditional principle must be the prima facie right of a plaintiff to insist upon the exercise of competent jurisdiction which he has regularly invoked. That prima facie right of a plaintiff is not to be lightly displaced or denied. The exercise of the discretion, assuming it is available, would have to be approached with these principles in mind.[5]

22 In Beitseen v Johnson[6] Woodward, Northrope and Ryan JJ, in a joint judgment speaking of the same issue, said:

In the circumstances revealed to us there is, in the words used by the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner [1962] VicRp 55; [1962] VR 394 at 394, 'now no real contest between the parties as to the right' of Mr Johnson to occupy the office of assistant secretary. We do not suggest that the appellants do not genuinely desire to agitate the issues involved in the grounds of their notice of appeal. However such a desire does not satisfy the requirement indicated in Hole v Insurance Commissioner (supra) that 'the legal right of the parties' should now be 'in actual controversy'. On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.

...

We have been persuaded to exercise that power in this case primarily because the passage of time has, in the circumstances, deprived the issues in controversy of real practical significance. However the Court has been influenced as well by an indication that the costs of at least some parties to this appeal may fall on the public purse by virtue of Part XII of the Industrial Relations Act 1988. Any course which minimizes those costs without doing violence to genuine and substantial rights of the parties is to be favoured.

A related consideration which has weighed with the Court in the exercise of its discretion arises from the constraints of time and resources to which the Court is presently subject. When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result - particularly if that litigation is being funded in whole or in part by the taxpayer.

23 I agree that these considerations should weigh heavily in the Court's exercise of its discretion. The justice of the case does not call for further deployment of the Court's resources where there are no longer issues in controversy of real practical significance. The Court may then exercise its discretion to summarily dismiss the appeal.

24 In response to the council's submission that the community hub has now been demolished and the construction almost completed so that there is no utility in the granting of the injunction, the respondent in oral submissions indicated that he really wished the opportunity to ventilate aspects of his substantive complaints relating to the decision of VCAT. Upon enquiry, it became evident that the matters with which Mr Russell is concerned relate to allegations of mismanagement of the funds for the redevelopment, alleged non-compliance with conditions of the planning permit and an alleged failure to obtain approval for the reticulated sewerage system under the Planning and Environment Act. In addition Mr Russell was critical of the council's submission that he had only sought the injunction in the first place to prevent the demolition of the buildings. He drew attention to the fact that he had sought a stay of proceedings before the trial judge and referred to a passage in the transcript of an exchange between him and the judge in which he explained the purpose for his application was to stop the entire development. As I have already indicated, the application for a restraining order in my view encompassed the current works as well as the demolition which was in fact anterior to the works contemplated by the permit. The council's submission that his application was confined to seeking to prevent the demolition could not be sustained. As the respondent commenced his appeal when the total works had not been completed, the appeal then had potential utility.

25 When invited to make submissions on the question of what was now in issue on the appeal from the refusal to grant the injunction, Mr Russell frankly

acknowledged that he did not anticipate that any particular benefit would be served by pursuing the appeal as he accepted that the appeal could not be heard before the development was completed.

26 The characteristics attendant on the power to summarily dismiss process which has been commenced as of right, are distinct from those that must be considered when leave to appeal is the issue. Prospects of success on the appeal or questions of where the balance of convenience lies are not germane to the issue of summary dismissal, so long as the injunction if granted has some practical content. Summary dismissal is reserved for those cases where it is plain that the further pursuit of the proceedings would involve a mis-use of the Court's procedures, or a waste of its recourses, there being no live controversy between the parties and no foreseeable utility in the continuation of the process.

27 As it is not now in dispute that there will be no utility in the granting of an injunction at the time the appeal is heard, this is an appropriate case in which to summarily dismiss the appeal. That is to say, that by the time the appeal is heard, it is not in issue that the construction will have been completed and the development progressed beyond the point where there would be in issue any matter of real practical significance that could support the grant of an injunction.

28 I adopt the facts and circumstances as described by Redlich JA. I agree with his Honour's reasons.

29 I would make some additional remarks. I note that a certificate has been granted by the President of the Court of Appeal pursuant to s 11(1)A of the Supreme Court Act 1986. Whilst I doubt it is necessary for a such a certificate to be granted in an application of this nature, it nonetheless has been granted by the President and I need not consider the matter further.

30 It is apparent from the material before the court, and as Redlich JA has explained in his reasons, that the development that is the subject of the proceedings will have been completed by February 2010. On that important fact, there is no issue between the parties.

31 In terms of the court's calendar and the conduct of its business, the appeal could not be heard at its earliest until March 2010. By that time, the purpose of the appeal against the orders made by Harper J will have no utility. It was acknowledged by both sides that as a consequence, there would be no benefit on the hearing of the appeal even if Mr Russell succeeded. Indeed, when it was specifically put by the court to Mr Russell as to the benefit he identified, he conceded that he doubted there would be very much benefit from the appeal against the orders of Harper J. When pressed further, Mr Russell said 'he has the right to contest the evidence on which the other proceedings are heard'.

32 The court granted Mr Russell the indulgence of expanding upon that submission. It essence, it seemed to come down to three factual categories which Mr Russell would wish to ventilate on the appeal. First, an assertion of misapplication of funds by the Shire on the development. Secondly, an erroneous assertion by the Shire that it did not require a building permit. In this respect, he relied upon Building Regulations 2006 No 68.[7] Thirdly, Mr Russell asserted there was an erroneous assertion by the Shire that it had the authority to connect reticulated sewerage. He asserted that necessary certificates, licences and authorities under relevant legislation had not been obtained.

33 Each of the factual matters about which the Court granted Mr Russell the indulgence of being heard are not matters concerning this appeal. This appeal is concerned with what occurred before Harper J. It is not concerned with the merits or propriety of what the Council has done or indeed what occurred at VCAT. Those matters are the subject of an application for leave to appeal the primary decision of VCAT which, as the Court is informed, is listed for hearing before a judge of the Trial Division on 21 October 2009.

34 Returning then to the utility of the appeal if it proceeded. At the end of the day, as Redlich JA has outlined, there would be nothing to be enjoined. This Court would not grant an injunction because there would be no purpose in doing so. The applicable principles are set out in Hole v Insurance Commissioner, and to adopt the words of the Full Court on that occasion, there would be no 'actual controversy' between the parties.[8] Further, as observed by the Full Court of the Federal Court in Beitseen & Ors v Johnson & Ors, scarce court resources cannot be utilised and the judicial system occupied by hypothetical arguments and disputes between parties.[9] The outcome here would be characterised as being of that nature if Mr Russell was permitted to pursue, as he described it, his right to contest the evidence. His right, so far as it arises (and I do not express a view on that) would be ventilated before the judge of the Trial Division on the application for leave to appeal the VCAT decision.

35 As indicated, I agree for the reasons stated by Redlich JA that the relief sought in summons should be granted.

36 Accordingly the Court will order that the appeal be dismissed.

[1] Leibler v Air New Zealand Ltd [1998] 2 VR 525, 531 (Phillips JA) (emphasis added).

[2] Ibid 531-532 (Phillips JA) (emphasis added).

[3] [2008] SASC 370.

[4] State of South Australia v Lampard-Trevorrow [2008] SASC 370, [20]-[24] (White J) (citations omitted and emphasis added).

[5] Ibid [34] (White J) (citations omitted).

[6] (1989) 29 IR 336, [7]-[10].

[7] Section 806.

[8] [1962] VicRp 55; [1962] VR 394, 394 (Lowe, Smith and Monahan JJ).

[9] [1989] 29 IR 336, 338 (Woodward, Northrop and Ryan JJ).