Terrace Tower Holdings Pty Limited v Sutherland Shire Council

CITATION : Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2002] NSWLEC 24 APPLICANT Terrace Tower Holdings Pty Limited PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10248 of 2001 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- joinder of parties LEGISLATION CITED: Land and Environment Court Rules Pt 6 r 1 Supreme Court Rules Pt 8 r 8 Naylor Shaw Associates Pty Ltd v Sutherland Shire Council [1999] NSWLEC 11; CASES CITED: News Ltd v Australian Rugby Football League Ltd [1996] 64 FCR 410; R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154 DATES OF HEARING: 28/02/02 DATE OF JUDGMENT: 03/05/2002

1. By Notice of Motion filed on 21 February 2000 Colonial First State Property Limited ("CPL") makes application to be joined as a party in the proceedings. Alternatively it seeks an order that it be granted leave to be independently represented at the hearings, to cross examine witnesses and make submissions in respect of economic, planning and traffic/parking issues in the proceedings.
2. The Sutherland Shire Council ("the council") supports the application. The applicant opposes the motion. History
3. There has already been an attempt by CPL to be joined as a party in the proceedings. Such application was refused: see Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154. In such decision, McEwen AJ dismissed the motion upon the ground that there was no evidence that the issues sought to be ventilated by CPL would not be advanced by the council. His Honour said (at par 23):- The evidence here does not disclose any attitude by the Council that it would reject arguing issues which CPL otherwise wishes to ventilate, nor does the evidence disclose an attitude by the Council that it would not adopt and prosecute either the evidence which CPL would want to put before the Court or cross examine or attack evidence which otherwise can be anticipated will be adduced by Mr Tobias's client. Until that point is reached, in my view the present application ought not be acceded to and should be refused.
4. On 20 February 2002 the council's solicitors wrote to CPL's solicitors ("the letter") stating as follows:- We refer to previous correspondence in this matter. We have now had the opportunity to review the evidence that has been filed in the proceedings to date and would wish to make a number of observations at this stage: 1. The evidence is voluminous and there are in excess of some twenty expert witnesses. 2. In the areas where your client prepared evidence there are some differences in the material being placed before the Court. We are concerned given the extensive nature of the case and the evidence that your client's position and evidence may not be capable of being presented in full and forthright nature you desire given these differences and the complexity of the matters in issue. In particular, we have difficulty in so far as there is extensive evidence that raises issues differently or in contradiction to the Council. We do not propose to put any matters in chief, cross-examination or submission that would in any way impugn Council's witnesses' evidence. In this regard you should act as you see fit.
5. Based upon the terms of the above letter CPL claims that the very circumstance foreshadowed by McEwen AJ has now eventuated and that in consequence, it will be prejudiced if it is not joined or at least given leave to intervene in the proceedings. Findings
6. The power of the Court to join a party is contained in Pt 8 r 8 of the Supreme Court Rules ("SCR") which are adopted by this Court pursuant to Pt 6 r 1 of the Land & Environment Court Rules. The Court is empowered to make an order of joinder to ensure: … that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon …. The principles to be followed in this Court have been stated repeatedly and are conveniently summarised in the judgment of McEwen AJ cited above, and it is unnecessary to restate them.
7. The tension arising in the present application results from the concern of CPL that the evidence which it wishes to adduce will not be adequately made available to the Court because, as indicated in the letter, the council's solicitor is unable to deal with the expert evidence which is sought to be adduced by CPL. Further, there is the suggestion of a potential conflict between evidence of the council's experts and those of CPL.
8. There is an alleged dispute between the experts of the council and of CPL concerning economic issues. The applicant has attempted to summarise the extent of the difference between the expert witnesses. In doing so it has demonstrated that a substantial portion of the dispute is confined to one issue only, namely the provision of car parking for the proposed development.
9. The applicant is concerned to ensure that the proceedings are not unduly prolonged. Section 38(1) of the Land and Environment Court Act 1979 requires proceedings in classes 1, 2 and 3 of the Court's jurisdiction to be conducted with "as little formality or technicality, and with as much expedition" as is practicable. Transcending this tension is the practice of the Court to decline motions for separate representation in class 1 proceedings except where exceptional circumstances exist (see Naylor Shaw Associates Pty Ltd v Sutherland Shire Council [1999] NSWLEC 11) or the application is one which relates to designated development as provided in s 77A of the Land and Environment Court Act 1979 ("the EP&A Act").
10. The council is opposing the appeal. Accordingly, there is no suggestion that council, by its letter dated 20 February 2002 is abrogating its perceived responsibilities. The letter makes clear, however, that it will not have the resources to adequately deal with all of the evidence which CPL wishes to adduce. The difficulty arises because of the issues raised and the consequential quantity of evidence, the manner in which the council proposes to deal with that evidence, and of additional issues which CPL seeks to raise.
11. In these circumstances the Court determines that the application for joinder should be refused. However, the Court is satisfied that CPL should be afforded an opportunity of limited participation. Although CPL is not a party, the interest of justice require that a party whose rights might be affected by the development have an opportunity to put before the Court the matters which it seeks to raise. The administration of justice requires "…that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (see R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at p 259 per Lord Hewart, C.J.). In similar vein, the Court pays regard to the observation of the Full Federal Court of Australia in News Ltd v Australian Rugby Football League Ltd [1996] 64 FCR 410 at 524:- A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
12. The letter makes it clear that the council may not afford the necessary opportunity to CPL to enable the proceedings to be "effectually and completely determined" (SCR Rule 8(1)(b)). Further, it is possible that the interests of CPL could be affected.
13. For these reasons the Court considers it appropriate at this stage of the proceedings to grant leave to CPL to tender evidence upon which it seeks to rely at the hearing and to make submissions at the conclusion of the hearing. Where conflict exists between the expert evidence of the council and CPL concerning the issue of car parking leave will be granted for CPL to cross examine the expert witnesses of the applicant and of the council. Where no conflict exists between the expert witnesses of CPL and the council the Court will permit one cross examination of the expert witnesses of the applicant. Whilst the primary responsibility for such cross examination will rest upon the council that process may be undertaken by a legal representative of CPL with the consent of council. Orders
14. The Court therefore orders:

[1999] NSWLEC 11