Ground 2: Miscarriage of justice
73As I have earlier recorded when summarising the Commissioner's judgment, he accepted the expert evidence that the potentially unsafe and dangerous manoeuvre required by trucks entering the access road to Lot 2 from Five Islands Road was not "satisfactorily addressed by the TPM" [58] with the consequence that it was, in itself, "a sufficient reason to refuse the development application" [59]. It is that determination which underlies this ground of appeal.
74The manner in which this ground was argued by the Applicant in its oral submissions did not entirely accord with the manner in which it was argued in its written submissions. An additional basis upon which this ground could be sustained was articulated orally as being that the Commissioner declined to direct the Council to produce unspecified documents when requested to do so by the Applicant. I will address that contention later in these reasons. It was a contention to which the Council was able to respond in the course of its oral submissions.
75The Applicant contends that the Commissioner's decision miscarried "by reason of the Council's failure to adhere to its obligations as a model litigant." In so contending, the Applicant does not identify a decision of the Commissioner on a question of law (cf s 56A(1)). As the Council submits, the failure so to do would appear to deny the Applicant an entitlement to rely upon this ground of appeal.
76The essential facts upon which the Applicant relied for the purpose of this submission seemed to be the following:
(a) the Council owned both Lot 2 and Lot 42;
(b) having granted development consent in 1957, it was aware of the use of Lot 2 as a quarry, vehicular access to which was gained via the access road across Lots 41 and 42;
(c) since about 1995, the Council itself had used Lot 2 pursuant to the development consent it had then granted in;
(d) in the course of using Lot 2 in accordance with that consent, truck and other vehicular access to and egress from that Lot had been via the access road across Lots 41 and 42, necessitating use of the intersection of that road with Five Islands Road; and
(e) the access road had been used in this manner by Council trucks for at least the past 15 years.
77The Applicant then directs attention to the judgment of the Commissioner addressing the evidence by the traffic experts concerning the safety of truck movements utilising the Five Islands Road/access road intersection. The Commissioner recorded at [45] the evidence of Mr Pindar that the accident history for the intersection did not support the contention of Mr Rogers "that the movement to gain access to the site from Springhill Road is a dangerous manoeuvre." The submission also focuses upon the determination of the Commissioner at [55] in which the absence of a poor accident history is rejected as "a sound basis for supporting the proposal", indicating that "there was no conclusive evidence to indicate the extent of truck movements to and from the site during the time that the council [had] operated from the site." These are matters that, according to the submission, might have been considered differently had the Council acted as a "model litigant".
78The next step in the Applicant's argument is to contend that at the hearing before the Commissioner the Council should neither have submitted that the use of the access road across Lots 41 and 42 was a prohibited use under LEP 2009 nor that trucks turning from Springhill Road into Five Islands Road and then onto the access road across Lots 41 and 42 would create an unacceptable safety issue. That submission was elaborated by a number of contentions that may be summarised as follows:
(a) Lot 2 had been "spot rezoned" to permit a resource recovery facility "on the basis that the only access to the site would be over the road on lot 41 and lot 42";
(b) the Applicant's development application had been assessed both by Council's town planning staff and also by its traffic engineering staff who were "satisfied that the proposed traffic movement would be lawfully permissible and otherwise safe";
(c) the proposed traffic movements, generally similar to those undertaken by or on behalf of Council, were "proven to be safe" over the years of use of Lot 2 by the Council;
(d) when it determined to become a contradictor in the hearing before the Commissioner, the Council refrained from "putting relevant evidence within its knowledge and possession before the Court (and the Applicant) to assist the Court to proper findings", that evidence including -
(i) the history of use of Lot 2 by Council trucks;
(ii) that such use had occurred "without observable incident or horrific consequences";
(iii) evidence from the Council traffic engineer assessing that the proposal was considered to be acceptable; and
(iv) the alternate truck route proposed by the Applicant was identified as being acceptable by Council staff;
(e) the Court was misled by the Council in "contending for a false issue, and contending for facts that it knew not to be true without a reasonable basis";
(f) in so doing, the Council failed to act in accordance with its model litigant obligations; and
(g) the failure to put the identified evidence before the Court "disadvantaged the appellant and materially affected the result."
79Some of the matters asserted by way of fact in the Applicant's contentions are not the subject of any finding by the Commissioner. For reasons earlier stated, they could not therefore be used to found a determination of legal error.
80However, contrary to the contentions of the Applicant, the essential evidence to which the Applicant refers was before the Commissioner and is reflected in his judgment. This can be illustrated by the following references:
(a) use of Lot 2 by the Council since 1995 is identified at [13]-[15];
(b) the manner in which Lot 2 would be used at each of Stage 1 and Stage 2 of the development that was the subject of the 1995 development consent was identified at [13];
(c) vehicle movements likely to be involved at each of the two stages of development were quoted at [14], including the prospect that upon implementation of Stage 2 of that consent 400 vehicle movements per day were likely to be generated;
(d) reference at [45] to the accident history at the intersection is founded upon evidence before the Commissioner that there was one non-casualty crash in the vicinity of the entrance to the access road on Five Islands Road in the period from 1 April 2006 to 31 March 2011 (Tcpt 172:22-37);
(e) an independent town planning report prepared for a meeting of the JRPP and tendered at the hearing before the Commissioner had recommended the approval of the application subject to conditions (judgment at [19]), that report containing detailed discussion of issues, including traffic issues, under which there is recorded support for the Applicant's development, subject to conditions, by the Council's traffic engineer; and
(f) while not identified in the judgment, a supplementary traffic report prepared for the Applicant and tendered at the hearing stated (Exhibit 102, Tab 2.2, p 4):
"Advice from the current operator of the site [The Council] is that the truck movements are cyclic depending on what projects are occurring at any given time around Wollongong. At some periods there may be several truck movements a day for several days and then nothing for a few days. On average there is approximately 5 to 10 truck movements during a typical peak morning period. In the afternoon peak period there are no movements and trucks normally cease after 3.30/4.00pm. The current operator of the site does not have accurate records of the current truck movements on the site."
These references demonstrate that evidence said by the Applicant to have been withheld by the Council "to assist the Court to proper findings" was, in fact, before the Court and considered by the Commissioner.
81Despite the availability of the evidence identified, the contention of the Applicant seems to be that the Council was obliged to produce more evidence. The submission appears to be that documents supporting or demonstrating use of Lot 2 by the Council for a period of 15 years, particularly its records directed to truck movements to and from the site during that period ought to have been produced. Failure to produce this evidence, so it is submitted, gave rise to the finding at [55] of the judgment of the absence of "conclusive evidence" with the consequence that the Commissioner was potentially misled into making a wrong finding of fact.
82I accept the submission made on behalf of the Council that when the finding identified in [55] is read in context, the Commissioner was seeking to rebut an approach to the assessment of traffic impact at the intersection of Five Islands Road and the access road by measuring that impact against an assumed traffic generation of 400 vehicles per day as a consequence of implementing Stage 2 of the 1995 development consent. The Commissioner had recorded at [15] that only Stage 1 of the Consent had been implemented. Traffic generation referable to Stage 2 had never occurred. It was the lack of relevance or "reliability" of the Stage 2 traffic generation for the purpose of assessing the Applicant's development application that was the essential thrust of the Commissioner's observations at [55].
83Moreover, as I have earlier recorded, evidence of truck or other vehicle movements generated by the Council's use of Lot 2 was before the Court in the form of the supplementary traffic report tendered to the Commissioner. The "advice" from the Council as to truck movements associated with Lot 2 is recorded in that report. No basis is advanced as to why the advice provided to the Applicant's consultant would not have fairly reflected the information available to the Council.
84Having addressed and found wanting a number of the factual submissions advanced by the Applicant, it is necessary to return to the matters of principle that are said to inform the present ground of appeal. In leaving those factual submissions, I do not overlook the Applicant's tender of documents that I rejected. I will address the rejection of that tender in due course.
85The overriding contention that there has been a miscarriage of justice does not, in itself, identify any error of law. Rather, the concept states a conclusion that, as the Council submits, "masks the question of law" raised by the outcome that is described as a "miscarriage". In civil law, the concept of miscarriage of justice will generally arise before an appellate Court when, in the proceedings being reviewed, legal error has been demonstrated, evidence has been wrongfully rejected or admitted, or there has been an erroneous exercise of discretion (Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 at 235-237).
86In the present case no jurisdictional error is advanced. While a ground alleging a denial of procedural fairness was included in the Applicant's summons commencing the appeal, that ground has been withdrawn. It therefore remains necessary to address the contention that the Council was under a legal duty to produce information that had the effect of filling any gaps in the Applicant's evidence and also that it had a duty not to put contentions in support of the evidence adduced at the hearing.
87The substance of the submission is first a contention that the Council should not have made a submission that the use of the access road across Lots 41 and 42 was prohibited and second a contention that the "duty" of the Council militated against a submission that truck movements at the intersection of Five Islands Road and the access road were potentially unsafe and dangerous. It is convenient to deal with each of those contentions in order.
88The Applicant contends that the Council should not have made the submissions that it did directed to the permissibility of use of Lots 41 and 42 because it had used the same access road in the course of undertaking its development activities on Lot 2. Whether the Council's use of Lots 41 and 42, having regard to the terms of grant and conditions of the 1995 development consent, was unlawful, as being in breach of the EPA Act, was not explored before the Commissioner. Even if the Council's use of that access road was unlawful, the realisation or recognition that this was the case rendered it appropriate for that unlawfulness to be disclosed and for it to contend that use for a similar purpose was not able to be sanctioned because it contravened the EPA Act: s 76B. There is no principle of law that estops the Council from challenging the validity of its own decisions (Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; 148 LGERA 11).
89It is also to be remembered that the issue as to permissibility of use of Lots 41 and 42 was an issue raised and argued by the JRPP. It was an issue to be determined having regard to a proper analysis of the Applicant's development application, including the environmental impact statement supporting it, together with the relevant planning instruments in the form they took at the time of the hearing. How the fact that the Council had used the access road to Lot 2 pursuant to a consent granted n 1995 was relevant to the determination of this issue was not demonstrated. Nor was it demonstrated by the Applicant that the Commissioner's decision, determining that the use of the access road for the purpose intended by the Applicant was prohibited, resulted in a miscarriage of justice because some unidentified documents may have been held by the Council which provided details of truck use associated with implementation of the 1995 development consent.
90The observations last made are equally appropriate to the Applicant's second contention directed to traffic safety. The effect of the contention is that although the expert evidence called at the hearing had identified a risk to public safety by reason of the manoeuvre required by truck drivers to enter the site from the surrounding public road system, the Council was obliged either to make submissions against the acceptance of that evidence or, at best, to refrain from making any submission in support of it. The essence of the argument seems to be that traffic generated by the Council's use of Lot 2 had occurred "and was occurring on a regular if not weekly and at times daily basis over many years" without record of any danger.
91As already stated, the fact that the critical intersections and access road had been used for some years by trucks associated with the Council's use of Lot 2 was in evidence before the Commissioner as was the fact that the Council's traffic engineers supported the proposal. However, the finding at [52] of the Commissioner's judgment makes clear that the Applicant's expert, Mr Pindar, agreed in the evidence advanced by Mr Rogers and by the Roads and Traffic Authority that the traffic movement into the access road from Springhill Road and Five Islands Road was "at best an unsafe movement". Mr Pindar sought to address that unsafe movement by proposing that all truck drivers resorting to the site adhere to the protocol of a TMP, a protocol that Mr Rogers considered to be "not feasible or practical". For reasons stated at [50]-[58], the opinion expressed by Mr Rogers was accepted by the Commissioner. The lack of relevance of what might have occurred under the 1995 development consent is identified and endorsed by the Commissioner at [60].
92As would be expected the Commissioner relied upon the evidence before him in order to determine the issue, raised by the JRPP and embraced by the Council, that there was a traffic safety issue associated with access to Lot 2 via the existing access road if the Applicant's proposed development was to be implemented. The past use of that access road and the position taken by Council's professional staff directed to its use were known to the Commissioner. No further material that the Council may have held relevant to its past use of Lot 2, could have had any material effect on the Commissioner's determination of the traffic safety issue.
93The description of the Council as a "model litigant" is said to derive from the observations of Mahoney JA in Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537. There, the Respondent council had exercised a power available under statute to sell land for overdue rates. Upon exercise of that power, the council had acquired the land being sold.
94The plaintiff contended that the exercise of power was invalid and that the land should be reconveyed because the notice required by the statute to be given and published before exercising the power was defective. The contention was sustained at first instance. However, the Court of Appeal, by majority (Reynolds and Hutley JJA), upheld the council's appeal, determining that the defect in the notice was not such as to invalidate its actions in selling the plaintiff's land.
95Mahoney JA was in the minority. Having identified the notice defect as being minor, his Honour was of the opinion that it was nonetheless significant in determining whether the consequence was one which "a court of conscience" should accept. He then continued (at 558F-559A):
"And, in this regard, it is proper to have in mind that the council is a corporation constituted by statute, and discharging public functions. It has acquired the property by a procedure which was invalid, and it may retain it only if it is to have the unfettered benefit of protection designed primarily for the protection of third parties. It is well settled that there is expected of the Crown the highest standards in dealing with its subjects: see Melbourne Steamship Co Ltd v Moorehead [citation omitted], per Griffith CJ. What might be accepted from others would not be seen as in full accord with the principles of equity and good conscience to be expected in the case of the Crown; see P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [citation omitted]. In my opinion, a standard of conduct not significantly different should be expected of a statutory corporation of the present kind; there being no competing interests, the council should be seen as holding the land subject to the appropriate rights in equity."
96In P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366, Mahoney J (as his Honour then was) had referred to the duty of the executive branch of government in the conduct of litigation. His Honour there described the duty of the executive as being one "to assist the Court to arrive at the proper and just result."
97In seeking to articulate the nature of the responsibilities imposed upon "a model litigant", the Applicant relied upon the decision of the Full Court of the Federal Court in Scott v Handley [1999] FCA 404; 58 ALD 373. The second respondent to the appeal in that case was an officer of the Commonwealth. In a joint judgment, the Court described the obligation of officers of the Commonwealth as requiring adherence to "those standards of fair dealing in the conduct of litigation that courts in this country have come to expect". They identify those standards as a current theme in judicial decisions "in relation to the conduct of litigation by all three tiers of government". A number of authorities are cited in support of that proposition, including Logue and Cantarella. Their honours then continue at [45]:
"As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise costs and delay": Kenny's case ... and of assisting 'the court to arrive at the proper and just result" [Cantarella]. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case ... and of not taking advantage of its own default ... ".
98Apart from referring to these authorities as a source of obligation, the Applicant also sought to tender and rely upon a document entitled "Model Litigant Policy for Civil Litigation". On its face, it was a document adopted by the New South Wales government and expressly intended to apply to the conduct of litigation in which State agencies of the Crown were parties. It did not purport to apply to councils constituted by reference to the provisions of the Local Government Act 1993. I rejected the tender of that Policy.
99As the decision in Scott v Handley indicates, whether the "fair dealing standard" has been met must be decided on a case by case basis. In the present case, the obligation imposed was stated in various ways, some of those I have already recorded. It is submitted that there was a duty on the Council "to explain fully and frankly how its staff supported the traffic manoeuvre, how it used the road itself on a very regular basis in the same was as is proposed [sic], yet still maintained that it was unsafe" (Applicant's reply submission at [34]). No authority was cited by the Applicant to support an obligation upon the Council of such broad ambit.
100Perhaps of greater significance is the fact that no authority was cited by the Applicant to support a contention that a decision determining legal proceedings would be infected with legal error if a party to those proceedings, upon whom model litigant obligations are imposed, fails to act in accordance with those obligations. In an article entitled "What cost to the Crown a failure to act as a model litigant?" (2010) 33 Australian Bar Review 239, the author suggests that in light of observations made in ACCC v Leahy Petroleum Pty Ltd [2007] FCA 1844 at [25] and the fact that none of the model litigant guidelines published by the Commonwealth and the States are given legislative force, "neither the model litigant principles recognised by the courts nor the guidelines issued by various jurisdictions confer responsibility on the courts for monitoring the Crown's compliance with its model litigant obligations ... ". Writing extra-judicially, Pagone J of the Victorian Supreme Court described the term "model litigant" as representing "an ethical, rather than a legal, standard
(Justice G T Pagone, "The Model Litigant and Law Clarification", 17 September 2008, http://www.supremecourt.vic.gov.au/home/contact+us/speeches/speech+-+the+model+litigant+and+law+clarification+%28pdf%29).
101I would respectfully adopt his Honour's observations. A consideration of the cases to which the Applicant has referred indicates that the obligations imposed upon a model litigant are directed to the manner in which that litigant should behave procedurally rather than directed to the creation of a legal obligation. Certainly, the failure to act in a manner that accords with those obligations may be a factor considered when exercising a discretion available in the proceedings, such as the grant of an adjournment or the order for payment of costs. However, while the existence of those obligations may be a factor, other factors that would inform the exercise of discretion where model litigant obligations do not impinge are generally present.
102The latter proposition is illustrated in both Mahenthirarasa v State Rail Authority (No 2) [2008] NSWCA 201; 72 NSWLR 273 and Scott v Handley. In Mahenthirarasa the State Rail Authority (SRA) had successfully opposed an applicant's appeal from the Registrar of the Workers Compensation Commission to that Commissions Appeal Panel. The applicant for compensation then appealed to the Supreme Court. His appeal at first instance was unsuccessful but an appeal to the Court of Appeal was successful. As a consequence he sought an order for costs of the proceedings against SRA.
103The latter order was opposed by SRA, essentially because it had filed a submitting appearance in the Supreme Court, both at first instance and on appeal to the Court of Appeal. The Court of Appeal held that the SRA was liable for the applicant's costs. As the SRA had been successful before the Commission, the Court considered that the SRA was responsible for the position in which the applicant/appellant was placed in prosecuting the Supreme Court proceedings. While acknowledging that the SRA had filed a submitting appearance, it had not made any admission or concession that avoided the need for the appellant to "spend time persuading the Court as to the correctness of his position" [at 13] in circumstances where it had not sought to sustain the basis of its success before the Commission. Indeed, the Court of Appeal had invited the SRA to provide assistance to the Court but the former had declined to do so. These factors seem to reflect the essential matters upon which the decision of the Court of Appeal turned (see particularly [11]-[13]).
104The reasoning in that case discloses that the role of the SRA as a model litigant was not the basis upon which the order for costs was made. While its position, as such, focused attention upon the procedural steps open to it so as to have avoided some, at least, of the costs occasioned by the successful appellant, a fair reading of the judgment indicates that the decision was not based upon the SRA's obligations as a model litigant. That accords with the analysis of that decision by Davies J in Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132 at [10]-[12].
105In Scott v Handley, the applicant was a self-represented litigant. As I have earlier indicated, the respondent was an officer of the Commonwealth. An appeal from the Administrative Appeals Tribunal had been fixed for hearing before a judge of the Federal Court. Directions had been given for the preparation of the matter, including directions as to the filing and service of affidavit evidence. On the day fixed for hearing, the applicant applied for an adjournment on the basis that she was not then ready to proceed as she had not understood that the final hearing was fixed for that day. Once satisfied that the applicant had been correctly informed as to the nature of the hearing that day, the trial judge acceded to the respondent's application that the proceedings be dismissed. However, the respondent did not disclose that only six days prior to the hearing he had served upon the applicant three affidavits with a substantial number of annexures. Those affidavits were served almost three months after the date upon which they were directed to be filed in accordance with pre-trial directions made by the trial judge.
106On appeal to the Full Court of the Federal Court, the trial judge's orders were set aside on the basis that there had been a miscarriage of justice. In a joint judgment, the Court said at [46]:
"46 In the present instance the second respondent (i) was in a position of obvious advantage in relation to unrepresented litigants; (ii) was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; (iii) served the affidavits on the appellants at an extremely late date with the consequential likely impairment of their capacity to prepare properly for a final hearing; (iv) did not inform his Honour of the default and of its possible consequences; and (v) took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment."
While the position of the respondent as a model litigant was discussed by the Court, those factors identified in [46] are the factors that appeared to found the Court's decision. They are factors that would weigh heavily on the exercise of discretion to grant an adjournment even in the case of a respondent who was not subject to model litigant obligations.
107Factors of the kind considered relevant in Scott v Handley do not arise in the present case. The Council was not in default of compliance with procedures directed to the fair and orderly preparation of the matter for hearing nor did it seek to serve any late evidence or raise issues that were not squarely before the Court and the Applicant prior to commencement of the hearing. Furthermore, there was no question of the Council seeking to take some advantage of the Applicant at the hearing who, at all times, was represented by solicitors and by senior counsel. Although the Applicant was aware some days prior to commencement of the hearing that the Council would actively support the case of the JRPP in opposing the grant of development consent, no application for adjournment was made.
108The Applicant acknowledges that information of the kind it now claims ought to have been volunteered by the Council, providing details of its use of Lot 2 together with its access to and across Lots 41 and 42, was not sought from the Council prior to the hearing. Notwithstanding the issues raised by the JRPP, the Applicant indicates that it refrained from doing so as it intended to rely upon the absence of opposition by the Council to the grant of development consent as a basis upon which to meet the evidence and foreshadowed submissions of the JRPP. This, so it seems to me, manifests a forensic decision by the Applicant's legal advisors which bears significantly upon its capacity now to complain that material required by it was not made available to it or the Court.
109Once the Applicant became aware that the Council would support the case of the JRPP, it did not sit idly by. I am informed that in the course of the proceedings it issued some five notices to produce to the Council. The Council submits that it responded to these notices in a "timely fashion". I do not understand the Applicant to contest this contention. As the Respondent submits, if, with hindsight, the Applicant believes that it failed to take some step that was open to be taken to have the material made available, the failure to take that step "cannot be laid at the Council's feet."
110Related to the matter just discussed is the submission made by the Applicant that the Commissioner erred by not acceding to the Applicant's request "to direct the Council to put the parties and the Court in a position where it was fully appraised of the relevant facts" (Applicant's reply submissions at [43]). The Applicant also contended that the Commissioner "stopped counsel for the Appellant" by indicating that the Commissioner had no power "to require Council to proper disclosure [sic]" (submissions at [45]). These latter submissions must be considered having regard to the context in which the relevant "request" was made.
111Early on the third day of hearing (referred to in the transcript as the "second day"), counsel for the Council sought to tender an aerial photograph and locational maps of Lot 2 and its environs (Tcpt 93:8). The Applicant objected to the tender of those documents (Tcpt 93:31). In addressing the objection, the Applicant's counsel commenced by taking the Commissioner to the independent town planning report that had been provided to the JRPP and which had been tendered at the hearing. Reference was made to those parts of the report in which use of the access road was considered, particularly the fact that the Council's "traffic division" regarded the use of the access road across Lots 41 and 42 to be satisfactory and, according to the report, the fact that the alternate truck route proposed by the Applicant was acceptable to the Council's engineer. When the Commissioner enquired as to how reference to that material was relevant to the objection to the tender of the aerial photograph and maps, the Applicant's counsel indicated that if allowed to continue he would make those references relevant to the objection. Submissions in support of the objection continued.
112After completing reference to other passages of the independent report in which traffic "issues" are recorded as having been addressed favourably by staff of the Council, the Applicant's counsel continued (Tcpt 94:38-95:12):
"Commissioner, my concern on behalf of my client is that [counsel for the Council] has been permitted to cross-examine Mr Pindar about traffic safety, particularly in this intersection which is the subject of this latest tender in circumstances where his own client has its own expert officers and indeed internal division to whom this application has been referred as well as was the rezoning application and which department and which officers have given expert advice to the council that the proposal is entirely satisfactory. The council doesn't call any traffic evidence whatsoever but cross-examines Mr Pindar to make good propositions ultimately which are inconsistent with its own professional officers' advice ... I did indicate yesterday that there was unfairness and the unfairness is compounding now because it appears that the council has actual advice from its officers, its expert department on traffic ... . At the very least the council should be under an obligation to produce that material to the court if it's to be allowed to cross-examine, otherwise there is serious unfairness ... ". (Emphasis added.)
113Following that passage, the Commissioner observed that the matters raised were not directed to the admissibility of the documents sought to be tendered by the Council. Counsel for the Applicant responded by indicating that documents were being tendered "in the face of evidence which the Council knows exists in its department that this route is in fact on expert advice quite satisfactory" (Tcpt 95:18). The response of the Commissioner to the latter proposition was "not according to Mr Pindar" (Tcpt 95:22), indicating that the traffic engineering advice from Council staff did not accord with the evidence given before the Court on the previous day by the Applicant's retained traffic expert. After some brief discussion of Mr Pindar's evidence, it was submitted on behalf of the Applicant that the staff members of the Council who had provided advice to the Council were more familiar with the movement of trucks utilising Lot 2 and the operation of the intersection than was Mr Pindar. At the conclusion of that submission, the transcript records the following (Tcpt 96:8):
"COMMISSIONER: Okay I don't think it goes to the question of whether the document should be tendered but you can make those submissions again if you want."
Thereafter the aerial photograph and maps were admitted as Exhibit 4.
114Immediately following the admission of that Exhibit the following exchange took place between counsel for the Applicant and the Commissioner (Tcpt 96:15-23):
"TOMASETTI: What I am asking you to do Commissioner is assist us, direct the ...
COMMISSIONER: I can't do that Mr Tomasetti.
TOMASETTI: I say that you can Commissioner, but I've made ...
COMMISSIONER: I've noted your concerns and what you've said. Now here are some plans ... ".
115The context of this exchange, albeit framed as an objection to the aerial photographs and maps sought to be tendered, was that the Council's right to further participate in the proceedings, including cross-examination of witnesses, should be conditional upon it producing the "actual advice from its officers, its expert department on traffic" (Tcpt 94:50). The substance of that advice was contained in the independent report tendered before the Commissioner and emphasised in the course of the submission then being made. The Council did not challenge the accuracy of the report in recording the advice that had been given by its traffic engineering staff.
116Relevantly, the only decision then made by the Commissioner was to admit the aerial photograph and maps that had been tendered. That decision is not identified in the Applicant's grounds of appeal as one that is challenged. Importantly, it is not a decision that gives rise to a question of law. The Commissioner was called upon to exercise a discretion to admit evidence in circumstances where he was not bound by the rules of evidence: s 38(2) of the Court Act. As the Council submits, it could not possibly be argued that acceptance of the tender of aerial photographs and maps depicting the site being considered and its environs, was a decision infected by legal error.
117However, the challenge seems to be predicated upon a decision of the Commissioner to refrain from ordering the Council to produce some document or documents, presumably those to which generic reference was made in the submissions of the Applicant's counsel when objecting to the tender of the aerial photograph and maps. However, the observation of the Commissioner in response to the Applicant's request for a direction to "assist us", immediately following the admission of the tendered documents into evidence, must be considered in context. That context was a submission, occupying some pages of transcript, that the Council should be required to produce the "material" as a condition of its further participation in the proceedings (Tcpt 95:4-6).
118If the application and response of the Commissioner be understood in that context, that is an application to prevent the Council from participating in the proceedings unless material, generically so described, is first produced to the Applicant or the Court, no error is, to my mind, demonstrated. The Council was a proper and necessary party to the proceedings. To have prevented the Council's participation or further participation in the proceedings from the time the request was made would have been to deny it procedural fairness. No authority is identified and there is none of which I am aware that would deny a party to proceedings the right to participate in those proceedings, subject to compliance with procedural directions giving effect to the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 (NSW). No procedural direction of that kind is identified by the Applicant as founding its submission.
119The only other way to address the Applicant's present submission is to consider the direction sought by the Applicant divorced from the context in which it was sought. When seeking the direction, the Applicant did not identify the source of power available to the Commissioner to found such a direction. That is an unsatisfactory position. In its submissions before me, the Applicant relied upon s 38(2) of the Court Act as the relevant source of power.
120I do not accept that submission. When addressing the jurisdiction of the Court in Class 1 proceedings, being the Class of proceedings determined by the Commissioner, s 38(2) enables the Court to "inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits." The subsection says nothing of the power available to order the production of documents: it is directed only to the course that may be followed by the Court in such proceedings, unconstrained by the need to adhere to the rules of evidence. That is what the subsection provides.
121There were procedures available to the Applicant under both the Uniform Civil Procedure Rules 2005 (NSW) and the Evidence Act 1995 (NSW) by which the production of documents could be obtained. The Applicant did not avail itself of those procedures.
122The repost of the Applicant to the proposition that procedures were available to compel production of documents that it considered relevant was that it ought not to have been required to resort to such procedures because of the "model litigant" obligation imposed upon the Council. For reasons earlier stated, I do not accept that model litigant obligations extended to require the Council, in the course of the hearing, to volunteer "the material" believed to inform advice, the substance of which was in evidence and was not in contest.
123Relevantly, even if, contrary to the position that I consider to be correct, the general context of the submissions made in opposing the tender of the aerial photographs and plans is to be ignored, what cannot be ignored is the fact that, in terms, the Commissioner left open to the Applicant the entitlement to renew its application. For its own forensic reasons, the Applicant chose not to do so.
124In this circumstance, the Applicant cannot complain of legal error in the decision made by the Commissioner to refuse to make the directions sought at that stage of the proceedings. This must be so, not only because of the Applicant's failure to take up the position left open by the Commissioner but also because the decision of the Commissioner involved the exercise of a discretion. No error of law of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at (505) has been identified in exercising that discretion.
125For these reasons, no error of law on the part of the Commissioner has been identified by reason of his refusal to direct the Council to produce "the material" sought by the Applicant. Moreover, for reasons earlier expressed none of the bases upon which the Applicant submits that a miscarriage of justice has occurred have been made good. The second ground of appeal is therefore rejected.