Syncept Chatham Pty Ltd v Council of the City of Ryde

Land and Environment Court (NSW)|2019-08-14|Before: Robson J

EX TEMPORE Judgment

The substantive proceedings in this matter concern a Class 1 application brought by Syncept Chatham Pty Ltd ('Syncept'), appealing from the making of an Interim Heritage Order ('IHO') by the City of Ryde Council ('Council') in respect of Lots 13 and 14 in DP 9166 and known as 68 - 70 Chatham Road, Denistone ('site').
Syncept filed a notice of motion on 15 July 2019 seeking an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') that the following questions be determined prior to final hearing of the matter as preliminary questions of law: a. Is the Interim Heritage Order No.6 made in relation to 68 - 70 Chatham Road, Denistone, as published in the NSW Government Gazette No. 21 on 1 March 2019, valid? b. Was the respondent restricted from issuing Interim Heritage Order No.6 by the operation of Schedule 2 of the Ministerial Order, gazetted on 12 July 2013 which imposes conditions on the ability of local councils to make Interim Heritage Orders and section 25(4) of the Heritage Act 1977, in circumstances where Interim Heritage Order No.5, (which applied to the same property) was made and subsequently revoked by the respondent?
Council opposes the motion.
I have received and considered detailed written and oral submissions from the parties. Mr Farrell of counsel appears for Syncept and Mr Farland of counsel appears for Council.

Evidence

Syncept reads the affidavit of Matt Sonter sworn 11 July 2019. Mr Sonter, the solicitor on the record for Syncept, gives details of the factual background leading to the motion and deposes that: first, a determination of the separate question has the potential to resolve the proceedings without the need for expert (heritage) evidence; and the preliminary question is a matter of law - being a matter of legal interpretation and construction. Mr Sonter addresses a number of other matters in his evidence, to which I shall return in due course.
Council reads the affidavit of Elizabeth Mary Coad sworn 1 August 2019. Ms Coad, Council's Director of City Planning and Environment, deposes that: first, should the matter proceed to final hearing, each party would only need one expert heritage witness as the contentions are of a narrow compass; second, a separate hearing would result in the parties expending additional and unnecessary resources; third, should a preliminary or separate hearing be ordered, Council would need to prepare evidence of the events which occurred in the course of making the IHO as well as submissions; fourth, as the proceedings involve only two issues, one being a legal issue and one being a heritage (merit) issue, there is limited savings of resources if the separate question were ordered; and, separation of the issues will, in her opinion, increase and not decrease the time and legal costs Council needs to devote to the preparation of the hearing when compared with the time and costs involved if the hearing was not separated.
Ms Coad provides further evidence in relation to what she says is the limited utility of the separate questions given that Council has resolved to amend the RLEP so as to include the site in a planning proposal due to its heritage significance.

Applicable Legal Principles

The power to make orders for a question to be decided separately is contained in r 28.2 of the UCPR, which provides that: 28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were distilled by Biscoe J as follows in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8; (2013) 195 LGERA 170 ('820 Cawdor Road') at [10] and have been endorsed and applied by this Court on numerous occasions: [10]... (a) Generally speaking, all issues should be tried and decided at the same time. (b) It is for the party seeking the order to show to the Court that separate decision of a question is appropriate. (c) Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d) Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e) In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f) Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g) Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely.
The principles have been further considered by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 ('Allandale') at [87]-[99] and by this Court in Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [30]-[36], Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 at [14], Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 4) [2016] NSWLEC 126 ('Royal Motor Yacht Club (No 4)') at [10]-[12], Whittaker v Northern Beaches Council (No 2) [2018] NSWLEC 94 at [8]-[9], M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2) [2018] NSWLEC 101 at [14] and more recently in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 ('Cavanagh') at [22]-[27].
In Royal Motor Yacht Club (No 4), Pepper J considered the time and expense involved in separating a question from other relevant issues at [11]-[12]: [11] In addition, regard must be had to the observations of Ward JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (at [91]), quoted above at [6]. As McFarlane JA in the same case opined (at [10]): [10] At the hearing before this Court, it was common ground between the parties that strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, needed to be shown to justify departure from the usual rule that all issues in a proceeding are to be determined at the one time (see for example Tallglen Pty Ltd v TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 - 2). [12] More recently, Basten JA in Trives v Hornsby Shire Council [2015] NSWCA 158; (2015) 89 NSWLR 268 observed as follows (at [57]): …The convenience of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings in the Land and Environment Court been determined as whole, much time and energy would have been saved and the matter could have been finally disposed of by this Court on appeal…
In Cavanagh at [25], Pepper J noted that the cautionary comments of Young J in Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 ('Poynting') at [111]-[114] should be remembered: [111] My comments fall into two areas: (A) The practice of isolating separate questions in the Land and Environment Court; and (B) What is a development standard as opposed to an absolute prohibition on development. [112] As to the first matter, almost all superior courts are enabled to isolate separate questions of law and fact for decision prior to (or even after) trial of the proceedings generally. However, that power needs to be exercised with care. Very often isolating a separate set of questions actually increases the costs. There are several reasons for this. First, people get lulled into a false sense of security that they are only looking at the cost of a short hearing rather than a three day final hearing. However, by the time one takes into account the extra work considering the impact the answers have on the proceedings, engrossing and serving orders, applications for leave to appeal and the appeal itself, the bill for legal costs may be higher. Secondly, the parties cease to focus on the main issues, and, more importantly, resolving those main issues, whilst their lawyers have an intellectually satisfying debate on some arcane point. [113] The received law is that separate questions should only be posed when there is a critical matter which if dealt with in a preliminary hearing will far more likely than not be convenient and save significant expense. [114] The question as to whether there should be separate questions is, of course, a matter of discretion for each judge. However, the reported cases to which we were referred during the hearing disclose a general pattern of too free a use of the separate question procedure.
Further, as cited by Pepper J in Cavanagh at [27], in Allandale at [91], Ward JA opined: In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Appand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112] - [113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage: The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen v Pay TV Holdings Pty Limited; Parramatta Stadium Trust v Civil and Civic Pty Ltd (unreported, Supreme Court of NSW, 27 August 1996, per Hunter J) and Century Medical v THLD [2000] NSWSC 5 (unreported, Supreme Court of NSW, 3 February 2000, per Rolfe J)]. (my emphasis)

Parties' submissions

As noted above, the parties provided written and oral submissions and I mean no disrespect to counsel by briefly summarising their respective positions.
Syncept accepts that it bears the onus to show that a separate question is appropriate. Syncept submits that the determination of the preliminary question would result in material costs savings to both parties and notes that: first, if the preliminary questions were determined in Syncept's favour, it would dispose of the proceedings; second, if they were not determined in Syncept's favour, it would still resolve one contention, leaving the other contentions which relate to merit to the hearing; and, third, cost saving matters are relevant for the Court to take into account. Syncept submits that the evidence of Mr Sonter should be accepted.
Syncept also submits that the determination of the separate question is appropriate because it is critical to the outcome of the proceedings, and, because the preliminary question concerns a "technical issue", it is better decided by a judge.
Syncept further submits that there has been no significant delay in relation to bringing the motion for the separate questions and contends that the lack of utility articulated by Ms Coad would not be accepted by the Court because there is some doubt in relation to any planning proposal.
Syncept refers to s 57 of the Heritage Act and says that the continued existence of the IHO places a significant restriction on it as it prevents alteration to, demolition of and the carrying out of any development on the site without approval from the Heritage Council.
Finally, there was a concern expressed by Mr Farrell on behalf of Syncept that the "competency" matter (being the Court's ability to consider the validity of the IHO) raised in Council's written submissions was only received late on the day before the hearing and was not otherwise anticipated. I shall come back to this matter.
Council submits that the motion should be rejected on two bases: first, Syncept is in fact seeking judicial review of its decision to make the IHO and this is not available in the course of Class 1 proceedings; and, in any event, Syncept has not demonstrated 'strong reasons' for the making of an order for the determination of the separate questions.
In relation to the submission that there are no strong reasons for a separate question to be ordered, Council submits, relying upon Ms Coad's evidence that: it will need time to adduce evidence in relation to the determination of any separate question; Syncept has delayed bringing the motion and did not seek expedition of the substantive proceedings nor did it seek judicial review (in Class 4 proceedings) of the decision to make the IHO; there will be further delays by hearing (and the Court deciding) the motion separately (and any appeal therefrom), which would likely jeopardise the hearing in November; the time and costs savings suggested by Syncept are illusory when regard is had to the narrow issues in the proceedings; and, there is no prejudice to the applicant as Council already resolved to include the site in a planning proposal to amend the RLEP for heritage purposes, and a gateway determination has been made concerning that proposal.

Consideration

The essential question is whether, in all the circumstances, it is appropriate that the questions articulated by Syncept in the motion are appropriate to be determined prior to the substantive appeal.
Having closely considered the material and noting, inter alia, the cautionary comments expressed by Young J in Poynting, referred to at [21] above, I find it appropriate to dismiss the motion. My reasons may be shortly stated.
I have considered the evidence as well as the detailed submissions proffered by the parties in light of the analysis in 820 Cawdor Road. Accepting that generally speaking, all issues should be decided and tried at the same time, I do not accept that Syncept has discharged its onus in a manner that shows that the determination of the separate questions is appropriate. While I accept that a decision in Syncept's favour may bring the proceedings to an end, I do not consider that it would substantially narrow the field of controversy. I accept and adopt Council's position that care must be taken lest the proceedings be fragmented, particularly where the potential right of appeal is borne in mind and would bring delay and expense greater than that which the making of an order was intended to avoid.
Although Council raises, as it says, a "competence" objection to the orders sought in the motion as they in effect seek judicial review, I consider that the motion is able to be determined without adverting to whether the questions sought to be raised by Syncept are legitimately raised in Class 1 proceedings (a matter I shall consider further below). As the matter has been set down for final hearing for two days (on 27 and 28 November 2019) on the basis that the whole of the Class 1 hearing will be completed in that time and neither party has indicated that that estimate has changed since the matter was set down in April this year, I am of the view that there will be no considerable (in the sense of material) time or cost savings by ordering a separate preliminary determination.
I also note that the evidence of Ms Coad, which in a factual sense has not been challenged, is that in relation to the merit issues raised, one expert witness with heritage expertise will be required by each party and the separation of what she calls the "two issues" in the proceedings will increase, not decrease the time and costs that Council needs to devote to prepare for the hearing.
Further, the parties agree that if a separate question is ordered, it is "likely" but not guaranteed to be completed within one day. I also note that Mr Sonter's evidence does not disclose any real costs savings in terms of the actual expense that would otherwise be saved if the separate question were to be ordered. Therefore, I consider that the time and cost saving (at least in Court time and the cost of legal representation) is at most, limited. Although I accept that a finding in favour of Syncept (if there was a preliminary hearing) may obviate the need for the provision of expert evidence, I note the evidence of Ms Coad that it is likely that the costs involved in marshalling that material would likely involve the preparation of one joint (heritage) expert report in accordance with the usual practice adopted in Class 1 proceedings.
While I do not necessarily accept the submission of Council that material evidence would be required to be marshalled in relation to the background of the making of each IHO should the Court grant the relief in the motion, I note that Ms Coad's evidence was that such evidence would be required. While I have given this some weight, I am conscious that Syncept maintains that the determination of the question is a relatively discrete matter that does not require detailed evidence (a matter not agreed by Council).
Therefore, I find that there would be no significant saving in terms of time or expense if the separate question were ordered. In circumstances where the hearing has been set down for two days (a time which both parties agreed was appropriate for the whole of the hearing including the question as to jurisdiction), the convenience associated with separating the questions from issues relating to ultimate relief is far from clear.
While I accept that there is a view that a court should take a "more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously" (Brereton J in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 ('Integral') at [6]), I do not consider that there is any obvious advantage and/or cost saving for the parties or indeed for the Court in ordering a separate question, particularly when regard is had to the fact that, as noted above, this matter is set down for hearing for two days.
On balance, given that there is already a hearing date set down and there is likely to only be a saving of one day if the separate question were ordered, having regard to the "just, quick and cheap" resolution of the proceedings (pursuant to s 56 of the Civil Procedure Act 2005 (NSW)), subject to matters considered below, I find that it is appropriate for all issues including contention 1 to be heard at the same time. This is not a case where there is an obvious and significant saving in time and cost by making an order pursuant to r 28.2 of the UCPR.
Although I do not need to deal with the other submissions made by Council, as they have been the subject of considered submissions by Council (but not by Syncept), I note the following.
An appeal in Class 1 proceedings is by way of hearing, and pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW) ('LEC Act'), the Court has "all the functions and discretions which a person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal". The order sought in the Class 1 application is to "revoke" the IHO which is an available course under s 29(4) of the Heritage Act and therefore also available to the Court relying on s 39 of the LEC Act.
Council submits that the preliminary questions articulated in the motion raise a jurisdictional argument in a manner that is different from the wording of the primary contention in the SOFAC and effectively seeks judicial review of Council's decision to make the IHO and as such is incompetent and should be dismissed. Council submits that while a power to order a separate question is contained in r 28.2 of the UCPR, that power cannot give jurisdiction to the Court to determine a question that should properly be brought in Class 4 proceedings: Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 ('Satmell'). There is some force in this argument.
I have considered the judgment of Pepper J in Satmell. That decision dealt with some earlier, apparently conflicting decisions of the Court as to the power that resides in Class 1 proceedings to make orders that would otherwise be expected to be made in Class 4 proceedings. I am also informed that a Notice of Intention to Appeal has been filed in the Court of Appeal.
While I have determined the motion on the basis that, I do not consider that there is any obvious time or costs saving to the parties, or indeed the Court, by ordering the separate question, I note Mr Farrell's concern that Council's submission raising the power of a court in a Class 1 appeal to give the relief which is otherwise sought, is a matter about which Syncept may require further time to consider and may affect the conduct of the Class 1 hearing. Although I have not heard detailed argument, and while not determinative of the motion, for the reasons I have given, I am of the view that the Court in Class 1 proceedings cannot give what is in effect declaratory relief.
In the circumstances, and noting the concern expressed by Syncept in relation to what may be a jurisdictional matter, I intend to dismiss the motion and direct that the matter be stood over for case management and/or further directions before me at 9.30am on Monday 2 September 2019 or by arrangement with my associate at a time suitable to the parties.

Orders

The orders of the Court are: 1. The notice of motion filed 15 July 2019 is dismissed. 2. The proceedings are listed for case management and/or directions before Robson J on Monday 2 September 2019 at 9.30am.

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. Decision last updated: 30 August 2019

Heritage Act 1977(NSW)ss 25, 29, 30, 57

(2013) 195 LGERA 170

(2013) 195 LGERA 182

(2001) 116 LGERA 319

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