Counsel: MR A J BESANKO QC WITH MR M A VINCENT - Solicitors: GRIFFINS

Counsel: MR W L RUDD - Solicitors: CROWN SOLICITOR FOR STATE OF SOUTH AUSTRALIA

Counsel: MR B R M HAYES QC WITH MR J F COSTELLO - Solicitors: VON DOUSSAS

Defendant THE CORPORATION OF THE CITY OF HOLDFAST BAY:

Counsel: MR M BEAMOND WITH MR P J S HAWKES - Solicitors: MELLOR OLSSON

Judgment No. [2000] SASC 272

THE GRAND HOTEL (SA) PTY LTD v DEVELOPMENT ASSESSMENT COMMISSION, JOHN UPHAM and THE CORPORATION OF THE CITY OF HOLDFAST BAY

[2000] SASC 272

1 BLEBY J. Before turning to the application presently before me, it is necessary to recount some of the history of earlier litigation between some of the principal parties.

2 On 10 February 1998 the second defendant, Mr Upham, made an application to the Development Assessment Commission ("DAC"), the first defendant, for development consent under the Development Act 1993. The proposed development was described as "Irish themed hotel not including gaming room, TAB or Keno". The development was proposed to be carried out on the northern side of Moseley Square at Glenelg on land sold to Mr Upham by the Corporation of the City of Holdfast Bay ("the Council"), the third defendant in these proceedings. The proposed development included no provision for on-site car parking, and made no mention of any alternative provision for car parking. The proposal was treated as being a Category 2 development (see s 38, Development Act 1993). It therefore required notice to be given in accordance with the regulations and for representations to be lodged by those who might oppose the application. The present plaintiff, which operates a large hotel on the southern side of Moseley Square, and which also owns a car park connected to the hotel, was one such opponent.

3 It is not necessary to traverse all the detail of what then transpired, but the issue of the adequacy of car parking to support the proposed development was at the forefront of the plaintiff's objection.

4 The Council supported the application and placed material before the DAC regarding its car parking policy and the development of its car parking register. In short, in an area where there were acknowledged car parking difficulties, the Council was pursuing a course of establishing off-street car parking facilities where possible, and had established some 91 additional spaces in the Jetty Road precinct at Glenelg within 600 metres of the subject site. The Council proposed that it would recognise a notional allocation of a given number of those car parks to this development.

5 On 26 May 1998 the DAC resolved to support the application of Mr Upham subject to:

1. Written confirmation from the Council of a commitment to the allocation of 80 car parking spaces specifically allocated for this development in its public parking register.

2. The Council advising the Development Assessment Commission of the date of operation of its public parking register.

It further resolved to delegate to the presiding member authority to issue the provisional development plan consent subject to the satisfactory resolution of those issues.

6 On 16 June 1998 the DAC notified Mr Upham that it had granted provisional development plan consent for the project subject to a number of conditions, none of which related specifically to car parking. The Commission expressed its satisfaction that the Council "has committed to the establishment of a public car parking register and that 80 car parking spaces will be specifically associated with this development in that register".

7 The present plaintiff took judicial review proceedings in this Court to quash the determination on a number of grounds. It succeeded before the trial Judge. Mr Upham appealed to the Full Court. The appeal was dismissed (Upham v The Grand Hotel (SA) Pty Ltd and Others [1999] SASC 414; (1999) 74 SASR 557). However, the grounds for setting aside the determination of the DAC, as decided by the Full Court, were more limited than those adopted by the trial Judge.

8 The Full Court held that there had been a denial of procedural fairness for reasons that are not of present concern. Section 35(2) of the Development Act 1993 provides:

"(2) Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent."

The Full Court agreed with the trial Judge that there had been no failure by the DAC to consider whether the proposal was seriously at variance with the relevant Development Plan. However, the Full Court disagreed with the trial Judge that the question of whether or not it was seriously at variance was one which this Court could decide. It held that if the Development Assessment Commission had assessed the plan as not being seriously at variance, and that if there were no other defects in process which might invalidate the determination, the Commission's decision on the question was conclusive. It held that there were no available grounds on which to challenge the Commission's decision by way of judicial review. This included, if it were available (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611), any ground related to the unreasonableness of the determination. The Full Court held that the decision of the DAC on the "seriously at variance" issue was open to it on the material before it. However, as there had been a fundamental unrelated procedural failure, the decision of the Commission was set aside.

9 The action now brought by the plaintiff relates to the reconsideration of the application by the DAC, when it again granted provisional Development Plan Consent to Mr Upham on 9 December 1999. The action is brought against the DAC, Mr Upham and the Council.

10 By its summons the plaintiff seeks the following relief:

1. A declaration that the (Council's) car parking contribution scheme is unlawful and invalid.

2. An injunction preventing the (Council) from entering into agreements for the contribution of monies for the creation of car parks (or in the alternative a contribution which does not cover the cost of providing car parks) or requiring financial contributions from developers in lieu of car parking without statutory authorisation for that exaction of money.

3. A declaration that the provisional development plan consent granted by the (DAC) dated 9 December 1999 in relation to Development Application number 110/0096/98 is unlawful and invalid.

4. An injunction preventing (Mr Upham) from constructing the development the subject of the said consent.

5. Such further orders or directions as this Honourable Court thinks fit.

11 I have already directed that the matter proceed on affidavits in lieu of pleadings (Rule 45.02, Supreme Court Rules). The Council now applies to strike out paragraphs 1 and 2 of the plaintiff's summons together with the affidavit filed on behalf of the plaintiff, to the extent that it supports the first and second paragraphs of the summons.

12 The grounds on which the orders are sought are that:

"The plaintiff does not have standing to seek the relief set out in Paragraphs 1 and 2 of the Summons and to pursue that relief would be an abuse of process in that:

1. The Affidavits in support of the relief sought show that the Plaintiff has no relevant interest in the contribution scheme or any agreement for the contribution of monies for the creation of car parks or to cover the costs of providing car parks or requiring financial contributions from developers in lieu of car parks.

2. The Plaintiff does not challenge the validity of the arrangements entered into between (Mr Upham and the Council) for the sale and purchase of the site and does not allege that they are entered into pursuant to the (Council's) car parking contribution scheme.

3. In Action No 963 of 1998, being an action by way of judicial review to quash the approval of the (DAC) to the same Application by (Mr Upham), the Court has already determined that the validity or otherwise of the (Council's) car parking contribution scheme is not relevant to the unlawfulness or invalidity of the decision of the (DAC) to approve (Mr Upham's) Application.

4. Until the issue of these proceedings, neither the Plaintiff nor its advisers had alleged to any of the parties to the proceedings that the Council's car parking contribution scheme was unlawful and invalid. Rather, through his expert, Murray Young had relied upon the car parking register to support its grounds that the decision of the (DAC) was invalid as being seriously at variance with the Development Plan.

5. It would be improper to investigate agreements with third parties pursuant to the (Council's) car parking contribution scheme in the absence of the parties to such agreements."

13 The Council's car parking scheme is intended to deal, among other things, with an acknowledged shortage of car parking spaces in the Glenelg Jetty Road precinct. As it appears from the exhibits to the affidavits filed so far, it is a scheme whereby contributions of money can be made to a car park reserve fund in lieu of the provision of car parking on site as part of a proposed development. The contribution level is set at a fixed amount per car parking space, which is approximately 50% of the actual cost of providing car parking spaces at ground level in the district centre zone. A cash payment in lieu of car parking is made at the time of submitting the application for development plan consent, the amount being governed by the number of car parks required of the development under the Development Plan. An indenture is entered into recording the payment or bank guarantee, which must be made or given before the Council makes a decision on the application. The fund is then used to provide off-street car parking in the area by the Council as opportunities present.

14 The Council maintains a public car parking register of the spaces thus provided. It is from this register that the Council appears to have notionally allocated 80 car parks for this development. However, it appears that the notional allocation of parking spaces was only provided as a result of this application before the DAC.

15 In the case of this development, land is being purchased from the Council, and it appears that an undisclosed contribution to the car parking reserve fund is included in the purchase price.

16 I turn to the question of the plaintiff's standing. There can be no question but that the plaintiff has standing to seek the declaratory relief referred to in Paragraph 3 of the Summons and the injunctive relief claimed in Paragraph 4. That is because it had a right to be heard before the DAC on the making of the decision, and has an obvious commercial interest in opposing Mr Upham's application. To the extent that it relies on the invalidity of the Council's car parking contribution scheme as justification for the invalidity of the consent granted by the DAC, it plainly has standing to seek the declaration contained in paragraph 1. It could be said that paragraph 2 of the relief claimed is consequential upon the declaratory relief sought in paragraph 1, just as the injunction claimed in paragraph 4 is consequential upon the relief claimed in paragraph 3. Whether the Court would necessarily grant the injunction sought in paragraph 2 is another question. But its obvious standing to claim the relief in paragraph 3 is sufficient justification for it seeking what may be said to be the incidental relief claimed in paragraphs 1 and 2.

17 However, even if the plaintiff is seeking independently the relief claimed in paragraphs 1 and 2, in my opinion it has sufficient standing to do so.

18 The plaintiff is a ratepayer of the Council. The details of the scheme thus far in evidence suggest that in the actual provision of public car parks, contributions by developers are matched, to about the same extent, by contributions from rates collected from ratepayers. To the extent that developers are thereby subsidised in the provision of car parks which they would otherwise have to provide themselves, they are being subsidised by ratepayers. There is also an assertion by Mr Goldberg, the Director of Operations and Area General Manager of the plaintiff, that the contribution scheme causes damage to the business of the plaintiff due to the exacerbation of car parking shortages in the Glenelg area. It is the existence of the scheme which he claims relieves developers of what would otherwise be their obligation to provide actual parking appropriate for their developments. The plaintiff further says that, in connection with its hotel business, it operates a car park for 288 cars located adjacent to Moseley Square. Development of Mr Upham's proposal in reliance on the scheme will result in increased pressures on the plaintiff's car park to the detriment of its own patrons and a further reduction of its business.

19 In Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 the respondents operated a contributory funeral benefit fund business and a contributory life insurance business respectively for members of the New South Wales Aboriginal community. The appellant was constituted under an Act of the New South Wales Parliament which provided for the financing of its activities from public funds. The appellants proposed to conduct a contributory funeral benefit fund catering for all Aboriginal persons. It was held that the respondents, being likely to suffer severe detriment from the conduct of those activities by the appellants, had sufficient special interest to seek equitable relief. When speaking of the requirement derived from Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114 that the plaintiff should be able to demonstrate "special damage", Gaudron, Gummow and Kirby JJ referred to a number of other Australian cases and the phrase there used of the requirement for "a special interest in the subject matter of the action, and that that will be related to the nature and subject matter of the litigation". They continued (at [46]):

"This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires (cf Taff Vale Railway v Amalgamated Society of Railway Servants [1901] UKHL 1; [1901] AC 426 at 443). It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law."

Their Honours concluded that the respondents had "an interest in the observation by the appellants of the statutory limitations upon their activities with respect to contributory funeral funds which, as a matter of practical reality, was immediate, significant and peculiar to them" (at [52]).

20 There is nothing said in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604 which qualifies what the Court said in Bateman's Bay.

21 In my opinion, the plaintiff's interest which I have already described is sufficient to bring it within this test. I am fortified in that view by the fact that in practice it is unlikely there could be any challenger to the scheme other than someone in the plaintiff's position. The scheme involves the seeking of contributions from developers. By the payment of money, a benefit is provided to those developers through the notional allocation of car parks for the purpose of assessing the application for development consent. There is no actual allowance to a particular developer of particular car parks. A developer who pays the money is unlikely to complain because he is offered a relatively inexpensive method of satisfying car parking requirements. When the development is completed he has no reason to complain if the notional allocation is removed. If he does not pay the money, he is unlikely to obtain development plan consent because the proposal does not comply with the car parking requirements of the Development Plan. He is therefore unlikely to challenge the scheme as a disenchanted party to it. The only other challenger would appear to be a ratepayer who has the type of interest of that of the plaintiff.

22 I turn to the argument that pursuit of the relief in paragraphs 1 and 2 would be abuse of process.

23 The Council's application calls in aid Rules 55 and 46.18 of the Supreme Court Rules. Rule 55 is a rule dealing specifically with applications for directions. Rule 55.11 specifies a number of matters about which a court may give directions on the hearing of an application for directions. It includes (sub-paragraph (w)) the striking out of any pleading, affidavit or document filed in the action. In my opinion, that rule itself does not confer any powers on the Court. Those powers are to be found elsewhere either in the Rules or in the Court's inherent jurisdiction. The rule merely specifies a possible occasion for the exercise of those powers.

24 The application also relies on Rule 46.18. That confers a power on the Court to strike out a pleading in a number of specified circumstances or a pleading which "is otherwise an abuse of the process of the court". The plaintiff argues that neither the summons setting out the relief claimed nor the affidavits constitute pleadings for the purpose of that rule, and that the Court is therefore powerless to accede to the application. The only other power to strike out an affidavit is contained in Rule 83, but that only extends to scandalous, irrelevant or otherwise oppressive matters. That is not alleged in this case.

25 Where, as in this case, the Court has directed, as a matter of convenience, that the matter should proceed on affidavits rather than pleadings, it would be odd if there were no power, in an appropriate case, to strike out part of a claim merely because there were no pleadings as such. However, I do not consider it necessary to rule on whether Rule 46.18 is available for that purpose. Although it is not referred to in the Council's summons, the Court has an inherent jurisdiction, recognised in Rule 3.01, to dismiss proceedings which disclose no cause of action or which are frivolous, vexatious or an abuse of the process of the Court. The power is reflected to a large extent in Rule 3.04(e), which enables the court to "strike out or dismiss any step in a proceeding which is vexatious, frivolous or an abuse of the process of the court". In my opinion, that power is sufficiently wide and flexible to enable the court to entertain the Council's application.

26 I respectfully agree with Olsson J in the State Bank Case Ruling (Unreported, 27 March 1997), Judgment No S6111, that without intending to be exhaustive, the categories of proceedings which may be described as an abuse of process include any one or more of the following:

(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;

(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;

(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;

(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

As Olsson J did in that case, I respectfully adopt what Cross J said of a similar power in New South Wales in Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944:

"Where the court is asked to reject a plaintiff's case, either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases. True, the court will not look merely at the suggested weakness of the plaintiff's case but - though to a less extent - at the suggested strength of the defendant's case; and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion."

27 I refer also to what Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:

"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

See also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 per Barwick CJ at 129 - 130 and Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602.

28 A number of arguments were advanced as to why the relief claimed by the plaintiff was an abuse of process. I deal with them not necessarily in the order in which they were argued.

29 One of the grounds sought to be advanced by the plaintiff for the invalidity of the scheme is that the Council has no power to extract the contributions from developers in the manner described either under the Local Government Act 1934, the Local Government Act 1999 (being the provisions currently in operation since 1 January 2000) or any other power conferred by legislation. It is said that there must be a statutory mandate for the collection of the money: Local Government Act 1934 s 36(3)(b); McCarthy and Stone (Developments) Ltd v Richmond-upon-Thames LBC [1992] 2 AC 48. The plaintiff says that s 152 of the Local Government Act 1934 limits the sources of council revenue, and that those sources do not extend to exactions of money pursuant to the council's car parking contribution scheme. It also points to other sections (Part 10 Division 4 - Recovery of Rates; s 177 - Imposition of Service Rates and Service Charges; s 319 - Recovery of Cost of Constructing a Public Street and s 328 - Recovering Costs in Relation to the Paving of Footways) and says that there are no powers of this kind relating to the type of revenue raising undertaken by the Council for this scheme. The plaintiff further says that the Local Government Act 1999, whilst providing broader access to sources of funds than the previous Act by virtue of s 133, still fails to confer power to levy contributions of the type exacted. In other words, the plaintiff attacks the ability of the Council to raise revenue for the scheme in the way it does. On the other hand, the Council and Mr Upham rely on the width of projects that may be carried on by a council described, for example, in s 196 of the Local Government Act 1934. The Council also relies on its extensive powers to enter into agreements to justify what is done by way of revenue raising. Thus, whilst there may be little argument about the Council's ability to build and provide car parks, there are questions raised about the ability of the Council to raise revenue for that in the way in which it does. There may also be arguments about the notional allocation of any car parks so built to a particular development for the purposes of considering a development application and in a way which may not be binding on the Council in the future, and whether that can lawfully be used as a means of by-passing any particular requirements of the Development Plan.

30 I cannot say that these matters are beyond argument in favour of the Council, and I would not be prepared to strike out those paragraphs of the relief claimed on that ground.

31 Then it is said by the Council that the monies raised in respect of the development in question are not raised by means of extraction of some financial contribution before the Council will deal with the development consent application. Indeed they cannot be, as the council in this case is not the planning authority. It is said that in this case the contribution has been built into the price of the land sold by the Council, and that parties are free to reach agreement on any price they choose and for whatever reason. In my opinion, it is arguable on the papers presented thus far that the provision of the parking spaces for this development relies not only on the payments made by Mr Upham, by whatever means, but on contributions made by other developers as well. Indeed, there is a suggestion that the notional allocation of car parks for this development is made up of car parks already established pursuant to the scheme, presumably using, in part, contributions made by other developers. Furthermore, there remains the question of the notional allocation and the integrity of the scheme in relation to the requirements of the Development Act and the Development Plan. Again, all these remain reasonably arguable.

32 It is then said that the attack on the scheme would be in direct conflict with the decision of this Court in Upham v The Grand Hotel (SA) Pty Ltd and Others [1999] SASC 414; (1999) 74 SASR 557, in that this Court has already, directly or indirectly, ruled on the validity of the scheme. The defendants point particularly to the passage in the judgment of Debelle J at first instance [1998] EDLR 834 at 854:

"Mr Walsh QC submitted that the Commission's decision should also be set aside on the ground that it had regard to an irrelevant factor, namely, the Council's car park register and the fact that the price being paid by the developer for this land included a financial contribution to the provision of future car parking. Relying on decisions such as Gillott v Hornsby Shire Council (1964) 10 LGRA 285 and Twenty Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188, Mr Walsh QC submitted that the Council had no power to require a developer to make a financial contribution towards future car parking. In addition, he pointed to the fact that the amendment to the Development Plan which ultimately became Objective 21 of the Development Plan had included a power to recover cash contributions from developers and that had been deleted by the Minister from the amendment. Although the Council may lack the power to impose conditions requiring financial contributions to provide car parking, it does not follow that the Council cannot factor into the price of land it is selling an amount to provide for car parking. The purchaser is at liberty to accept or reject the Council's price. There is a great gulf between those instances where a council, as the owner of land, is seeking to sell it for a price which a developer can accept or reject and those instances where a council, as a planning authority, imposes conditions on the grounds of development consent. I do not think, therefore, that the Commission was considering an irrelevant factor when it had regard to the car park register and the financial contribution to future car parking included in the price for this land."

33 It is quite clear that, to extract a payment or to impose a condition on a planning consent for an ulterior object, however desirable that object may seem to be in the public interest, renders the consent invalid (Twenty Seven Properties Ltd v Corporation of Noarlunga (supra)). The submission was undoubtedly made in the previous case that the Council had no power to require a developer to make a financial contribution towards future car parking. However, in the view of Debelle J, it was not necessary to rule on that submission. He decided, in effect, that even if the Council did lack the power to extract the contributions, it was nevertheless able to negotiate a price for the sale of the land which, in the Council's view, reflected a contribution towards the scheme. All that he held was that the DAC was entitled to take that into account as a relevant factor. This Court has not, either at first instance or in the Full Court, ruled on the power of the Council under the Local Government Act to impose the contributions by other means or on its ability notionally to allocate parks to a particular development and in a way which may not be binding on the Council in the future. An abuse of process has not been made out on this ground.

34 It was also said that even if the previous proceedings did not decide the validity of the scheme, the opportunity was there for the matter to have been resolved in those proceedings at the instance of the plaintiff, and it should not now be given a further opportunity in which to raise the matter. The argument is based in part on Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589. In that case two defendants in the primary proceedings had served contribution notices on each other. Damages were apportioned between the defendants. One of them then brought a separate action against the other claiming an indemnity in respect of the amounts it had paid to the plaintiff. The defendant was estopped from bringing the subsequent action because it had been unreasonable in refraining from raising it in the first action, the claim for indemnity being so closely connected with the subject matter of that action that it was expected that the defendant would raise it as a defence and a basis of recovery from the co-defendant. It was also held that the judgment in the second action would conflict with the judgment entered in the contribution proceedings.

35 In my opinion Anshun can be distinguished. In the first place, the Council was not a party to the proceedings. Indeed, it could be said to have been improper to pass on the validity of the scheme in the absence of its promoter as a party. In the second place, the decision under challenge in these proceedings is a different decision from that which was the subject of the earlier proceedings. There was additional material before the DAC both as to the merits of the development, particularly regarding car parking, and as to the nature of the Council's scheme. In the third place, there is compelling authority to suggest that A_nshun_ estoppel cannot be invoked by a non-party to the earlier proceedings: Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356. Although Mr Upham (who also relies on the estoppel) was a party to the earlier proceedings, the Council was not, and no declaration binding on the Council could have been made in those proceedings.

36 In the fourth place, the plaintiff has made it clear in these proceedings that, by reason of the decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 74 ALJR 490; 169 ALR 400, especially at [28] - [34], a decision made since the previous Full Court proceedings involving this development, it now wishes to argue that the proposed development is seriously at variance with the relevant Development Plan by virtue of the parking deficit; that contrary to the decision of the Full Court in the previous proceedings, the conclusion of the DAC on that question is not conclusive; that s 35(2) of the Development Act requires this Court to reach its own conclusion on the question; and that that must now be decided by this Court on the facts found by the Court in these proceedings, including facts relating to the Council's car parking scheme and its alleged invalidity.

37 For these reasons, in my opinion, there is no substance in the estoppel point argued by the defendants.

38 Finally, it was argued that there were powerful discretionary reasons why this Court should refuse the relief claimed by the plaintiff in paragraphs 1 and 2 of its Summons. As I understood it, this was based on the possible consequential invalidity of a number of agreements reached between the Council and developers in the past whereby contributions had been made, in good faith, by the developers concerned, and that those agreements would now be called in question if the plaintiff were to succeed, without those developers being party to the proceedings and having an opportunity to be heard.

39 I pointed out earlier in these reasons that the defects in the plaintiff's case had to be very clear before the Court would dismiss or stay parts of it for an alleged abuse of process. If the defendants were to succeed on this ground they would have to show that whatever the results of the argument, there was a compelling case requiring the Court to exercise its discretion against the granting of the relief claimed. In my opinion, it cannot be said that that is the case. There are many factors which will need to be considered before exercising the discretion against granting the relief, assuming the scheme to be invalid. Not all the facts are yet before the Court which would be relevant to the making of such a decision, including the agreements in question. It is far too early at this stage to say that the proceedings must necessarily result in the Court refraining from making the orders sought.

40 For all these reasons the application of the Council to strike out paragraphs 1 and 2 of the plaintiff's claim for relief, along with the relevant parts of the affidavits in support of those claims, is dismissed.