Wollongong City Council v Vic Vellar Nominees Pty Ltd

The present question 14I have already identified at [5] the question that, by its present notice of motion, the Council now frames for separate determination. Mr Lazarus of counsel, who appeared for the Council, acknowledged that the present question is, in substance, very similar to question (b) that has already been answered by Biscoe J. The latter question has been reframed in order to avoid ambiguity that is said to arise from the manner in which question (b) was both framed and answered by his Honour. 15The Council contends that by reason of the response provided by Biscoe J to question (a), no matter what work is undertaken to the northern and southern buildings, so as to provide those facilities determined by his Honour as necessary to categorise them as "existing dwelling-houses", the provisions of cl 13(2) of the WLEP could never be engaged. This is because those buildings were not lawfully erected on the land. 16This has the consequence that pursuit of the Modification Appeal has been to no avail and completion of building works otherwise required to complete the dwellings will be of no avail, as consent can never be given to subdivision of the land. It is submitted that this is the consequence of the answers given by Biscoe J to the questions that have been answered. It is the submission that the Council will make on a final hearing of the proceedings. 17Nonetheless, the Council seeks to have the question that it has reframed determined as a preliminary and separate matter now. It submits that there is utility in doing this as a determination in its favour would resolve the entirety of the Enforcement Proceedings, the Subdivision Appeal and the Damages Claim. Further, evidence from the Council's solicitor suggests that if the three interrelated matters proceed to hearing, an aggregate hearing time in excess of one week is likely to be required, with the result that a considerable saving of costs will occur if the separate question now propounded is determined favourably to it. Hearing of the question now posed should, so it is submitted, occupy no more than one day. 18Finally, it suggests that determination of the question that is the subject of its motion would not involve any issue of disputed fact. The only facts relevant to determination of the question, so it is contended, is proof of those facts that were assumed by Biscoe J for the purpose of answering question (b). The Council contends that there is no bona fide dispute as to the existence of those facts.

Applicable principles 19The principles applicable to the making of orders for the determination of separate questions are, with respect, usefully summarised by Jagot J in Metropolitan Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 57; (2006) 145 LGERA 276 at [12] and restated by her Honour in Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6] - [9]. In light of the comprehensive statement of principles there contained, it is unnecessary that I recite them in this judgment. They are reflected in my determination. 20There are two matters of present importance that arise from consideration of that statement of principles. First is the caution that should attend the separate determination of a question or issue and the confidence to be had that the determination of such a question will, in reality, involve savings in time and cost. This proposition is exemplified in the joint judgment of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 where their Honours observed (at [168]): "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap." 21Their Honours continued (at [170]): "Single-issue trials should, in our opinion, only be embarked upon when their utility, economy and fairness to the parties are beyond question." 22In Young v Parramatta City Council , Jagot J sought to draw these cautionary principles together, in a manner which I would respectfully embrace, when her Honour said (at [11]): "A number of the decisions referred to above identify the appropriate degree of confidence (that the proceedings will be fair and involve real savings in time and cost) to warrant the making of an order for separate determination. In Tallglen, the criterion was described as one where the beneficial results should be able to be seen "with clarity". In Poynting , the formula adopted was that the procedure ought "far more likely than not be convenient and save significant expense". In Tepko , the standard identified as appropriate was the "utility, economy and fairness to the parties" of the making of the order sought to be "beyond question"." 23The second matter that arises from the statement of principles is very much related to the first. It is that the determination of a separate question ought ordinarily be made on the basis of either facts found or agreed. Where determination depends upon facts about which there is genuine contention, the utility of the separate question process must seriously be questioned. The requisite degree of confidence is less likely to exist.

Vic Vellar's response 24Mr Eastman of counsel, who appears for Vic Vellar, opposed the order sought by the Council on two broad bases. First, he submitted that what the Council seeks is, in effect, a reopening of the question already determined by Biscoe J. Second, he submits that determination of the question posed by the Council would not have the effect upon the disposition of the interrelated proceedings for which the Council contends. 25In agreeing to the separate determination of the questions answered by Biscoe J, Vic Vellar contends that the temporal manner in which the questions were framed was significant. It sought to argue the matter before his Honour on the basis that, in fact and law, the northern and southern buildings on the subject land were existing dwelling-houses in their present state of construction. His Honour's answer to that question is, so it is submitted, that at the time of his determination they could not be so described. 26However, it is further contended on behalf of Vic Vellar that the effect of the answers given by his Honour to questions (a) and (b) was not to foreclose to Vic Vellar the opportunity to cure that temporal invalidity. It is submitted that not only is this consequence implicit in the answers given by his Honour to the questions, as framed, but is also implicit in the orders made by his Honour in April 2011. At that time he dismissed the Council's application for summary judgment and ordered the sequence in which all related proceedings should proceed to determination. 27Although it is acknowledged by Vic Vellar that the Council does not concede a temporal limitation in the answers given by Biscoe J to questions (a) and (b), the acknowledgment by the Council that the question now posed for separate determination seeks to address an ambiguity in those answers is tantamount to a reopening of the question already determined. It is inappropriate that this be done by seeking to engage the provisions of UCPR 28.2. 28The second way in which Vic Vellar seeks to sustain its opposition to the separate hearing of the question now framed is in two parts. First, assuming an affirmative answer to that question, determining that the carrying out of past unlawful works are fatal to the grant of development consent to subdivision, even if works are carried out in accordance with the modified building approval granted by the Court, it says that significant issues will remain to be determined in the Enforcement Proceedings and potentially in the Damages Claim. 29Further, Vic Vellar asserts that the critical facts identified in paragraphs 24(d) and 25(e) of the Council's pleading, necessary to the determination of the question posited by the Council, are genuinely in dispute. Not only did it deny the allegations in its amended points of defence filed on 1 October 2010 but it has obtained and will rely upon evidence supporting that denial. It maintains that each of the northern and southern buildings on the land were located in conformity with plans that were both the subject of development consent and building approval granted by the Council.

The question is inappropriate for separate determination 30It is significant in determining the Council's notice of motion that the question presently framed reflects an endeavour to have determined conclusively that which it contends is either implicit in, or the consequence of, the answers already provided by Biscoe J to questions (a) and (b). The framing of questions in successive applications for separate determination, depending upon the answer given to a previous question, seems to me to be an inappropriate use of the procedure available under UCPR 28.2. That procedure requires, in general, that a separate question or questions be framed felicitously so that the consequence of the answer or answers given is clear in its effect upon the outcome of the proceedings. Unless this is done and all questions appropriate for separate determination are agitated at the one time, the facultative purpose of the procedure is defeated and the strictures applying to its use not observed. 31In an interlocutory application of the present kind it is not appropriate that I express a concluded view as to the effect of the answers given by Biscoe J to questions (a) and (b). However, there is substance in the argument advanced by Vic Vellar that in making the orders that he did on 7 April last, his Honour accepted, as arguable, the proposition that his answers to the questions posed to him had not determined the issue of what I would describe as "inherent invalidity" by reason of past unlawful construction, as is claimed to be the case by the Council. 32That latter conclusion follows for three reasons. First, at [26] of the April Judgment, Biscoe J records the submission made to him on behalf of Vic Vellar that "if certain steps were taken, the subject dwelling houses could be 'existing dwelling houses' for the purposes of cl 13(2) of WLEP 1990." The submission as recorded by his Honour then continues by identifying "the certain steps" to be taken leading to the determination of the Modification Appeal and, assuming that appeal is determined in favour of Vic Vellar, the undertaking of work to complete the dwellings followed by the hearing of the Subdivision Appeal. 33It will be remembered that on that occasion Biscoe J was determining the notice of motion filed by the Council for summary dismissal of both the Enforcement Proceedings and Subdivision Appeal and also the notice of motion by Vic Vellar, seeking orders for the progressive determination of the interrelated proceedings. In expressing his conclusion on these notices of motion, his Honour said (at [28]): "In my opinion, there is sufficient weight in Vic Vellar's submissions to justify the conclusion that it ought to have the opportunity to achieve the outcome it seeks by the course that it has proposed ". The course proposed involved taking "the steps" identified in its submission. 34The second matter supporting the proposition that the answers given to questions (a) and (b) may not have resolved the issue in the manner argued by the Council is his Honour's reappraisal of the consequences for the proceedings, following determination of those questions. Relevantly he said (at [29]): "When the order to determine the preliminary questions was made I had understood, based upon what I was told, that if they were to be determined in favour of the Council, the only two remaining matters would be the pleaded defences in the Enforcement Proceedings and the Damages Claim. However, I am persuaded on the material now put before me that Vic Vellar did not intend to abandon its other pending proceedings and that this was communicated to the Council." The orders that his Honour then made gave effect to the position articulated by Vic Vellar. 35The third matter of relevance is the manner in which his Honour expressed his conclusion when addressing the Council's application for summary judgment. He said (at [28]): " ... summary judgment or judgment under UCPR 28.4 should be refused. A very clear case is required before summary judgment is granted and the power is sparingly employed. In the Enforcement Proceedings, the estoppel defence and discretionary considerations have not yet been determined. It is premature to give judgment in those proceedings." 36Although the Council prays in aid the reasons expressed by his Honour for dismissal of its motion for summary judgment, it seems to me that the absence of a "very clear case" for summary judgment, coupled with the orders then made, are matters that speak against the consequence of his Honour's answers to the separate questions for which the Council contends. It can hardly be expected that his Honour would have made the orders that he did, potentially involving Vic Vellar in a futile exercise by embarking upon the process of progressive determination of all outstanding proceedings, if the result of answers given to the questions posed were then seen to have the consequence that Vic Vellar could never achieve the outcome that it sought. 37Vic Vellar is correct in contending that the Council is, in reality, seeking to reopen the question determined by Biscoe J. By the orders made on 7 April, his Honour has effectively determined the course that should be taken to resolve the outstanding proceedings between the parties. The posing of a second question for separate determination should not be used in a manner which has the effect of reviewing his Honour's decision to make the orders that he did on 7 April. 38The principles applicable to the making of an order for separate determination of a question speak against the Council's present application. I cannot conclude with confidence that the "utility, economy and fairness to the parties" in making the orders sought is "beyond question". 39In the context of "fairness", I note that in compliance with Order 2 of the orders made by Biscoe J on 7 April, the Modification Appeal was listed for hearing and determined on 1 June last. The Council participated in that hearing. Indeed, it ultimately indicated its consent to the modification sought by Vic Vellar. It was only on 12 July that the present notice of motion was filed. In the circumstances, there is an element of unfairness in the Council participating in the process established by his Honour's orders and then belatedly making an application which, if sustained, render the prosecution of the Modification Appeal a wasted exercise. 40A consideration of the utility and economy to the parties in determining the application for a separate question also weighs in favour of Vic Vellar. There are contested issues of fact to be determined that are germane to the question posed. While these contested issues may not be as extensive as those required to be determined in exploring all issues arising in the various proceedings, I cannot dismiss the prospect that other issues might ultimately bear upon the determination of the question posed for consideration. In the face of this uncertainty, there will be the danger that other facts may later turn out to be relevant, resulting in a decision that is, in a sense, hypothetical because reliance is placed "on incomplete facts or facts not all found or agreed" ( Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 per Santow J at [24]). 41For these reasons, the question advanced by the Council in its notice of motion is not appropriate for separate determination prior to the determination of the other issues arising in the interrelated proceedings. In the circumstances I have outlined, the mechanism available under UCPR 28.2 should not be engaged for a purpose that, in effect, seeks to interpret or review answers to the separate questions determined by Biscoe J. 42The litigation between the parties should be prepared for hearing in a manner consistent with that ordered by Biscoe J on 7 April 2011. I therefore propose to stand over the proceedings to the List Judge on Friday 19 August, to the intent that the parties should then bring in short minutes of order for the case management of the proceedings that are yet to be determined.

Orders 43The orders that I make are therefore as follows:

1. The Council's notice of motion dated 12 July 2011 is dismissed.
2. The Council must pay the costs of that notice of motion.
3. Stand over all proceedings to the List Judge on Friday 19 August 2011.
4. Direct the parties to bring in short minutes of order at that time directed to the case management and further hearing of all proceedings.

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: 17 August 2011