Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors

Blue Mountains City Council v Hudson (1985) 56 LGRA 360 Bromley v Housing Commission of NSW (1985) 3 NSWLR 407 Gerlach v Clifton Bricks (2002) 209 CLR 478 CASES CITED: Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278 RES Southern Cross v Minister for Planning (2008) 166 LGERA 116 Walfertan Processors Pty Limited v Upper Hunter Shire Council [2009] NSWLEC 1134 Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors [2009] NSWLEC 1260

DATES OF HEARING: 1 March 2010 5 March 2010

APPLICANT Mr A Galasso SC SOLICITOR Wotton & Kearney FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr T Robertson SC SOLICITOR Sparke Helmore SECOND RESPONDENT Mr P Larkin SOLICITOR Halletts Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11319 of 2008 Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 - Joinder)

JUDGMENT 1 Her Honour: Senior Commissioner Moore and Commissioner Taylor handed down their final judgment in these Class 1 proceedings granting development consent subject to conditions to the Applicant on 4 August 2009 in Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors [2009] NSWLEC 1260 (Walfertan No 2). Prior to the hearing which commenced on 31 March 2009, on 27 March 2009 the Senior Commissioner delivered an ex tempore judgment Walfertan Processors Pty Limited v Upper Hunter Shire Council [2009] NSWLEC 1134 (Walfertan No 1) allowing the joinder of the Second Respondent pursuant to s 39A of the Land and Environment Court Act 1979 (the Court Act). The substantive merit appeal was heard on 31 March, 1 and 2 April, 19, 20 and 21 May, and 10 and 17 June 2009. The parties also filed extensive written submissions after the conclusion of the hearing.

2 The Second Respondent filed an appeal under s 56A of the Court Act on 28 August 2009 seeking an order that the Commissioners' decision to grant development consent should be set aside because of legal error concerning whether the proposed development was designated development and therefore needed an environmental impact statement before consent could be granted. In a document entitled cross-appeal the Applicant commenced a s 56A appeal in relation to Walfertan No 1 seeking an order that the Senior Commissioner's decision to join the Second Respondent be set aside. That appeal was filed on 29 September 2009. The Applicant's s 56A appeal is the subject of this judgment.

3 Before the question of whether the Senior Commissioner erred in law in his decision to join the Second Respondent as a party is considered, the issue of whether the Applicant's s 56A appeal is competent arises. An appeal in Class 1 proceedings is provided for in s 56A of the Court Act. Section 56A states: (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners. … At the hearing it was agreed that the Applicant's document entitled cross-appeal is a separate s 56A appeal against the interlocutory decision Walfertan No 1 . 4 The first issue to arise is whether the appeal is competent, being an appeal against an interlocutory decision of a commissioner. The second issue is whether, if competent, an appeal filed out of time should be allowed. No affidavit evidence to support the application for leave has been filed. I note that there are two relevant time frames on the arguments I have heard. Firstly the cross-appeal, if it can be so characterised, was filed three days late in terms of the time frames relevant to cross-appeals. Secondly, and more fundamentally, is whether the 28 day time limit for the commencement of a s 56A appeal under Pt 50 r 50.3 of the Uniform Civil Procedure Rules 2005 (the UCPR) applies. That time limit expired 28 days after 27 March 2009 so that this appeal is well out of time if it does apply. The Court has jurisdiction to extend time for an appeal so that the issue arises as to whether the Court should do so. Applicant's submissions 5 The Applicant submitted that the appeal is competent. Firstly, because it is able to be considered as part of the separate s 56A appeal lodged by the Second Respondent against the final decision of the Commissioners. This approach is supported by the High Court in Gerlach v Clifton Bricks (2002) 209 CLR 478. Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278 does not assist the Second Respondent as it addresses different facts whereby the appeal of a party seeking to have an interlocutory order heard was held to be incompetent as that party was otherwise successful before the trial judge, so that there was no appeal against the final decision available to it. In this case the Applicant can rely for its s 56A appeal against the Senior Commissioner's interlocutory decision on the Second Respondent's appeal in relation to the Senior Commissioner and Taylor C's final decision in Walfertan No 2. 6 Secondly, and alternatively, the Applicant can file a s 56A appeal against an interlocutory order or a decision of a commissioner on a question of law. Contrary to the Second Respondent's submissions which rely on Blue Mountains City Council v Hudson (1985) 56 LGRA 360 and Bromley v Housing Commission of NSW (1985) 3 NSWLR 407, these are not authority that an interlocutory decision of a commissioner on a question of law cannot be the subject of a s 56A appeal. 7 Assuming the appeal is competent, leave to appeal out of time should be granted. At the time of joinder the Senior Commissioner considered that the proceedings set down for three days hearing would not be lengthened by the joinder. That did not occur, with an extra four hearing days required and additional work thereafter. As a result of the joinder of the Second Respondent the Applicant has had to meet a s 56A appeal filed by the Second Respondent in which the Council has not participated and which has been argued over five days. The joinder of the Second Respondent has caused the Applicant to incur substantial costs in circumstances where there was otherwise extensive agreement with the Council on relevant matters. Second Respondent's submissions 8 The Second Respondent argues the appeal is incompetent because the appeal is against an interlocutory order and s 56A only provides for appeals against a final order or decision, relying on Gerlach and Pittwater Council v Moore Development. The fact that the Applicant does not seek to disturb the final order indicates that it has no right to challenge the interlocutory order in this case. The Applicant cannot "piggy back" on the substantive s 56A appeal of the Second Respondent to found its right to appeal against an interlocutory order. An appeal against an interlocutory order is not an order to which s 56A applies, see Hudson and Bromley. Nor is there any separate right to appeal against an interlocutory order provided by s 56A, a submission supported by the findings of Biscoe J in RES Southern Cross v Minister for Planning (2008) 166 LGERA 116 at [16]. 9 The Second Respondent opposes the granting of leave to appeal out of time because under r 50.3 of the UCPR, an appeal against the determination of the Senior Commissioner should have been commenced within 28 days of the determination and was not. The appeal proceedings are well out of time. There is substantial prejudice to the Second Respondent if the appeal is allowed to proceed not least in pressing its motion for costs of the proceedings. Since joinder, the Second Respondent participated in the merit hearing for a number of days before the Commissioners and provided extensive written submissions afterwards thereby incurring substantial costs. Finding Is the appeal competent? 10 I will assume for the purposes of these findings on competence of the appeal that the Applicant's s 56A appeal does raise a question of law. 11 The avenue of appeal against an interlocutory order, whereby it is challenged as part of an appeal against a final order, is only available according to the High Court in Gerlach where the interlocutory order affects the final result. That is not the case here, where the essentially procedural determination of the Senior Commissioner to allow joinder of the Second Respondent does not affect, in a legal sense, the final determination of the Senior Commissioner and Taylor C of the merits of the Applicant's development application in Walfertan No 2.

12 Further, the Applicant is not appealing the final decision of the Senior Commissioner, it being successful in obtaining development consent in Walfertan No 2. Handley JA (Beazley, Ipp JJA concurring) in Pittwater Council v Moore Development held that there is no right of appeal from an interlocutory order where an appellant is not challenging the final decision in the proceedings. This finding is directly relevant to the Applicant's position in this appeal. The Applicant is not challenging the final decision of the Commissioners. I do not consider it can "piggy back" on the Second Respondent's s 56A appeal to enable it to ground its cross-appeal, really a separate s 56A appeal. The appeal on this basis is incompetent.

13 The next issue to determine is whether an appeal against the interlocutory decision of the Senior Commissioner to join a party to these proceedings made under s 39A of the Court Act is competent under s 56A in its own right. The application of a statute, albeit the exercise of a statutory discretion whether to join a party under s 39A of the Court Act, can give rise to a decision on a question of law which could be the subject of an appeal within the terms of s 56A. The question of law the Applicant seeks to raise is that the Senior Commissioner applied the wrong test when he exercised his discretion under s 39A of the Court Act and joined the Second Respondent. The decision of the Senior Commissioner in Walfertan No 1 can be considered a decision on a question of law. It also resulted in an order for joinder of a party and s 56A refers to an appeal from an order of a commissioner. 14 While the Second Respondent relied on RES to support its argument that an appeal lies only in relation to a final decision or order of a commissioner, the word "final" does not appear in s 56A. Nor is that the issue considered in RES. That judgment dealt with when a commissioner's decision in an appeal is final and operative in terms of the making of an order once a decision has been made where Biscoe J at [19] noted that it was preferable that orders be made before a s 56A appeal is instituted. At [16] his Honour considered the meaning of decision in s 56A given its text and purpose and held that it could be found in a judgment before an order was made. A s 56A decision "includes a decision for which provision is made under a statute which brings proceedings within Class 1, 2 or 3 of the Court's jurisdiction". A decision to join a party under s 39A of the Court Act is a decision which fits that description and was a decision which could involve a question of law and also resulted in an order for joinder being made by the Senior Commissioner. That circumstance comes within the text and purpose of s 56A. 15 In Hudson, Hope JA (Glass and Mahoney JJA concurring) considered the question whether s 57 of the Court Act allowed appeals to the Supreme Court. It was not considering s 56A or its predecessor but a similar version of the current s 57 of the Court Act. Section 57 specifies when appeals lie from this Court to the Supreme Court. The decision focussed on whether an order or decision to which s 57 applied was the formal order or decision which disposed of the appeal in this Court. As submitted by the Second Respondent, Hudson is not dealing with the scope of an appeal under s 56A. Hudson does not support the broad contention made by the Second Respondent that there can be no appeal from the decision of a commissioner on an interlocutory order under s 56A. In Bromley, Glass and Samuel JJA concurring in separate judgments (Kirby P dissenting) also considered s 57 on the issue of whether an appeal was available from proceedings where there was a separate part of the proceedings in relation to which an independent decision could be given. I agree with the Applicant that Hudson does not by implication, there being nothing explicit in the judgment on this issue, suggest there can be no appeal from an interlocutory order or decision of a commissioner under s 56A. 16 I consider that an appeal against an interlocutory order or decision on a question of law made by a commissioner falls within the scope of s 56A. It is not appropriate that the section be read with the word "final" inserted, as the Second Respondent's arguments suggest, and to do so is contrary to the usual principles of statutory construction that additional words ought not be read into a statute. The Applicant's appeal is therefore competent on this basis. Should leave to appeal out of time be granted? 17 Accordingly I must consider whether leave to appeal out of time ought be granted given the considerable time that has elapsed since the decision of the Senior Commissioner in March 2009 and the expiration of the appeal period of 28 days thereafter.

18 As suggested in Gerlach at [13] the appropriate time to appeal an interlocutory order is prior to a hearing. In this case the joinder of the Second Respondent was just before the three day hearing commenced. The hearing then took place on two later occasions several weeks and months after the first three days of hearing. Had an expeditious s 56A appeal against the decision of the Senior Commissioner been pursued by the Applicant within the 28 day period specified in r 50.3, this issue could have been determined much earlier. It would have been far more appropriate to have resolved this issue then, rather than well after the final decision of the Commissioners when all the parties had participated in every phase of the hearing. As a matter relevant to discretion, the fundamental issue of whether someone is a party to litigation should be resolved sooner rather than later. That does not occur in this case if the appeal is allowed well out of time.

19 I also consider that the Second Respondent would be prejudiced in relation to its costs motion in which it seeks to recover some or all of its substantial costs which resulted from its participation in the Class 1 proceedings if leave to appeal out of time is granted. If found to have been joined incorrectly so that it is now not a party to the substantive merit hearing, the Second Respondent will have little or no basis for seeking costs. While the Applicant submitted that the Second Respondent has derived a benefit from the proceedings because the development approved is improved as a result of the hearing process, the prejudice to the ability of the Second Respondent to make an application for costs is telling. The matters raised by the Applicant as supportive of the exercise of discretion in its favour in par 7 do not explain why this appeal is brought so late. That it incurred substantial costs because of the Second Respondent's involvement alone does not suggest that leave to appeal ought be granted out of time. Costs issues are to be considered separately in any event as all parties have filed Notices of Motion seeking various costs orders. Any relevant cost issues can be determined appropriately in that context.

20 I will not exercise my discretion to extend time for the filing of the Applicant's s 56A appeal. Accordingly, the Applicant's s 56A appeal is dismissed. Orders 21 The Court makes the following orders: 1. The Applicant is not granted leave to file the s 56A appeal dated 25 September 2009 out of time. 2. The Applicant's appeal is dismissed.

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