Land and Environment Court New South Wales Medium Neutral Citation: Flanagan Avenue Pty Ltd v Liverpool City Council [2022] NSWLEC 152 Hearing dates: 12 December 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Class 1 Before: Duggan J Decision: See paragraphs 49 and 50 Catchwords: Review of Registrar's decision – UCPR 49.19(1) – competency of Class 1 appeal where no development application attached – Appeal – not incompetent – failure to comply with request and direction to lodge development application – proceedings dismissed warranted – alternative power – s 61 of the CP Act – UCPR 12.7 – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Land and Environment Court Act 1979 (NSW) Land and Environment Court Rules 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 Category: Procedural rulings Parties: Flanagan Avenue Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: M Harker (Applicant) A Stafford (Respondent) Solicitors: Auslex Law Group Holding Redlich File Number(s): 2022/176210 Publication restriction: No Judgment Nature of proceedings 1. By Notice of Motion filed on 11 November 2022 Flanagan Avenue Pty Limited (the Applicant) seeks orders that: 1. The decisions and Orders of the Registrar of 17 October 2022 are set aside. 2. Order that the Respondent pay the Applicant's costs of the Notice of Motion. 3. Any other Orders that this Honourable Court considers appropriate. 1. As recorded on the Court file, on 17 October 2022 the Registrar made orders: Dismiss proceedings. [Respondent] awarded costs proceedings under r 3.7 of LEC Rules as appeal lodged was not competent or capable of assessment. [Applicant] provided [with] opportunity on 13/9, 20/9, 27/9 and today to provide DA under appeal and failed to do so. 1. The Respondent, Liverpool City Council (the Council) opposes the making of the orders sought. Facts 1. On 17 June 2022, the Applicant appealed the Council's deemed refusal of a development application No. 737/2021. It attached to the Class 1 application a pre-DA form obtained from (and redacted by) the Council. 2. On 8 July 2022, the Applicant filed architectural plans with the Court. The plans were Revision C plans. It appears that such plans were not the plans lodged with the development application. There is some dispute as to whether the development application was amended to incorporate the Revision C plans. 3. The Council and the Applicant both filed statements of facts and contentions. 4. The matter was fixed for a s 34 conference which was held and terminated. 5. The matter returned to the Registrar for directions on 13 September 2022 to set the matter down for hearing. At that directions hearing, the Council raised that the Applicant had not filed a full copy of the DA with its Class 1 application. The Registrar stated relevantly: I haven't even got a DA. So this matter as far as I'm concerned can't proceed. I can't believe I've let it get this far. It can't go any further. This matter has one week to get its house in order or it's going to be dismissed. 1. The matter was listed again on 20 September 2022, in which further time was given to the Applicant to provide the development application. On 27 September 2022 no development application had been filed. The Registrar made the following directions: 1. The applicant is to, by 4pm on Friday 7 October 2022 file and serve: i) an affidavit concerning the competency of the appeal; and ii) the documents forming the [development] application. 2. The proceedings are listed for directions on 17 October 2022. 1. The Applicant did not file a full copy of the development application or the affidavit by 7 October 2022. 2. On 17 October 2002, the matter again was before the Registrar where in finally dealing with the proceedings the Registrar stated: … this is the fourth time this matter's appeared before me after the termination of the 34. I said that I'm going to have to dismiss it unless I have a complete application before the Court. I've said that on previous occasions and I've held off, but I'm going to have to make that order because it doesn't seem that we can get a competent appeal before the Court, at this stage. 1. On that occasion the material required by the direction made on 27 September 2022 was still not provided. The Registrar made orders dismissing the appeal and requiring the Applicant to pay the Council's costs of the proceedings. 2. As at the date of the hearing of this Notice of Motion the material has still not been filed. Principles for review of the Registrar's decision 1. Rule 49.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides: (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 1. In Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [52] per Kirk JA summarised the key principles involved in applying this rule: The power of review is discretionary. A review does not require demonstration of error, although "there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so": Tomko v Palasty (No 2) (2008) 71 NSWLR 61; [2007] NSWCA 369 at [7] per Hodgson JA (and see generally at [4]-[11]), Ipp JA agreeing at [17], note also Basten JA at [52]-[53]; see also Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [18] per Hodgson JA; Collier v Country Women's Association of New South Wales [2018] NSWCA 36 at [48]-[49] per Gleeson JA. 1. The rule also provides that the Court has power to make a decision "otherwise" on review, recognising in this case that the extent to which the Court is able to reconsider the dismissal of the proceedings afresh, it is not constrained by the powers of dismissal of the Registrar. Is the Class 1 appeal competent? Applicant's submissions 1. The Applicant submitted by reference to the provisions of the Land and Environment Court Act 1979 (NSW) (LEC Act) and Land and Environment Court Rules 2007 (NSW) (LEC Rules) that there was no requirement that the development application (or any document) form part of the Class 1 application. Absent a mandatory requirement to provide such information the appeal could not be incompetent for failure to provide material not mandated by the relevant approved form. 2. For those reasons, the Registrar had no power to dismiss the appeal on the ground that it was incompetent. 3. To the extent that the Council asserts that the Registrar had the power to dismiss the appeal on alternate grounds such as the Applicant's standing and that there was no reasonable cause of action, such powers were not available or should not cause an appeal to be dismissed where such defects can be cured at any time prior to the hearing. 4. The Registrar's decision should be set aside, and the Applicant should be given one final opportunity to provide the information sought by way of a self-executing order that requires the Applicant to file the development application within 14 days absent compliance with that direction the appeal be dismissed. 5. To the extent that the Court raised the operation of UCPR r 12.7 the Court would not consider that the proceedings wanted due despatch as the default was of short time (approximately 4 weeks) and the documents were not essential. 6. Whilst the Applicant does not seek to review the Registrar's decision relating to a requirement to pay the costs of the mentions relating to the provision of the development application documents it does seek to review the cost order made on 17 October that the Applicant pay the whole of the Council's costs of the proceedings. The costs relating to the whole of the proceedings were not unnecessarily incurred. The only costs unnecessarily incurred were the mentions for which the earlier cost order related. It was unreasonable for the Registrar to make the cost order on 17 October 2022. Council's submissions 1. Whilst there was no mandatory requirement that the development application form part of the Class 1 appeal in order for it to be legally competent the Registrar's decision to dismiss the appeal should not be set aside as: 1. The Registrar had alternative sources of power such as s 31 of the LEC Act to deal with irregularity in proceedings: UCPR r 12.7(1); and 2. While the Registrar is not delegated power to dismiss proceedings under UCPR r 13.4(1)(b) or s 61(3)(a) of the Civil Procedure Act 2005 (NSW) (CP Act), there is of course no such restriction on a Judge of the Court doing so when exercising the power of review under UCPR r 49.19(1). A Judge of the Court can of course also dismiss proceedings under the Court's inherent jurisdiction to control its processes. If, contrary to these submissions, the Court were to consider that the Registrar did not have power, then Council asks the Court to dismiss the proceedings under UCPR r 13.4(1)(b) (for "incompetence" in the sense identified by Kirk JA above), or under s 61(3)(a) of the CP Act (for failure to comply with directions of the Court), or in its inherent jurisdiction in any event. 1. Additionally, in exercising the power of review the Court should have regard to the fact that absent the provision of the development application the appeal had no prospects of success as it did not disclose a reasonable cause of action. There is also a real question to be answered as to whether the Applicant in the present proceedings has standing to bring the appeal as it was not the Applicant for the development consent and no amendment to the development application has been made to give it standing as an Applicant. 2. As to costs, once the appeal was dismissed the Council's costs of the proceedings were costs that were incurred unnecessarily. The dismissal of the appeal rendered all costs to that date unnecessary. The Applicant could have avoided that outcome by the provision of the required material, it failed to do so. Findings on competency of Class 1 appeal 1. In order for an appeal in Class 1 of the Court's jurisdiction to be legally competent it must conform with the mandatory requirements of the Court as identified in the LEC Act and the LEC Rules. Relevantly, in this case, the LEC Act provisions require: 65 Issue of process All process issuing out of the Court shall be in the form approved under section 77A and be signed or otherwise authenticated in accordance with the rules. 1. The LEC Rules relevantly provide: 3.2 Originating process (1) The originating process to commence proceedings is an application prepared in the approved form. 1. For a Class 1 appeal the approved form is Form B. That form requires (apart from the formal provisions) the following information be provided: Date or other identification of the decision, or other matter appealed against, objected to, complained of or referred or remitted to the court Act or instrument under which the proceedings are brought [include relevant section or clause number] The form does not require the provision of documents. 1. Accordingly, in order for a Class 1 appeal to be legally competent it is not necessary that a copy of the development application from which the appeal relates be attached or provided with the approved form. 2. For that reason, I accept the submission of the Applicant that the Registrar had no power to dismiss the proceedings on the basis that it was not competent. In an application to review the Registrar's decision, however, such a finding is not determinative of the Notice of Motion. Should the Registrar's decision be set aside? 1. In undertaking a review of the Registrar's decision, the Court considers the matter de novo. In this case it is relevant to consider that the Registrar, in exercising the powers of case management required the Applicant to provide the development application to which the appeal related. The Registrar did so by two requests upon which the proceedings were adjourned to enable the documents to be provided and a final direction was made requiring the documents to be provided. On each occasion the Applicant indicated that it would provide the development application documents within the time allowed. On each occasion the Registrar indicated that the development application was required to enable the Court to determine the appeal, as without the development application the Court would not be in a position to ascertain the subject matter of the appeal. On each occasion the Registrar indicated that failure to provide the development application may result in the appeal being dismissed. The Applicant failed to provide the development application in each of the occasions required. 2. The Registrar is empowered to make directions for the case management of class 1 proceedings. Section 61 of the CP Act provides: 61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following— (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following— (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court. 1. The UCPR also provides in Pt 12 r 7(1): 12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. 1. Each of these provisions make plain that a party that defaults in the compliance with the case management requirements of the Court may be liable to have the proceedings dismissed. Accordingly, in light of the Applicant's failure to provide the development application in breach of a direction by the Court, the Registrar had power to dismiss the proceedings. 2. This alternative source of power to that relied upon by the Registrar is sufficient in the circumstances of this case to demonstrate that the Registrar did not act without power. It further requires me, in light of the Applicant's motion to review that decision, to consider whether, in the exercise of my discretion the Registrar's decision should be set aside. 3. Part 6 of the CP Act sets out the guiding principles for case management. These guiding principles were relevant in the exercise of the Registrar's decision and are relevant to the exercise of my discretion. 4. Whilst it is not a mandatory requirement for the legal competency of a Class 1 appeal for a development application to be filed with the approved form it is essential for the determination of the Class 1 appeal. The Court in such appeal is exercising the powers of the Council de novo: s 39 of the LEC Act. That function has as its source of power the development application that was lodged with the original consent authority. Absent the provision of such application the Court is unable to make any determination, it is essential for the conduct of the Class 1 appeal. 5. In the circumstances of this case the Registrar formed the opinion that the information was required before the appeal was further progressed through the Court to enable both the Court and the Council to understand what it was for which the Applicant was in fact seeking consent. Requests and a direction were made to that effect. The Applicant indicated on each occasion a readiness to comply. It did not do so. The provision of the development application is, as I have observed, essential to the determination of the appeal. It is not unreasonable to require such material to be provided at an early stage of the proceeding such that the formal requirements of an appeal together with the nature and stage of the appeal can be ascertained. Absent such information there is a real risk of wasted costs and Court resources. 6. The consistent and repeated failure to provide the information not only was in breach of the Registrar's requests and direction but also necessitated a number of appearances by both parties in the Court's case management list. Such consequences have an impact not only upon the cost impost to litigants but also upon the Court's resources. This factor must be recognised. 7. Further, an inability of an Applicant to provide the very essential documents required to determine the Class 1 appeal indicates at a fundamental level that to permit the appeal to proceed is to likely allocate the Court's resources to a futility. This should be avoided. The Court's resources, if allocated to an appeal where an applicant is unable to identify the fundamental issue of what it is seeking consent, are diverted from other litigants who are ready and able to proceed to hearing. 8. Finally, the objects of case management as provided in s 57 of the CP Act state: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects— (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. The objects of case management require a difficult balance between the interests of a single party and the interests of the broader users of the Court. In achieving that balance, it is incumbent upon a party to recognise its obligation to comply with directions made by the Court and that there are consequences for non-compliance. Continued failure to adhere to the Court's case management requirements is undesirable. 2. Whilst the dismissal of proceedings is, on one view, a harsh penalty for non-compliance and should be exercised only in cases where such consequences are warranted, I do not consider the dismissal to be unjustified in the circumstances of this case. In this case, the dismissal will not preclude the Applicant from commencing another appeal from the now actual refusal of the Council of the development application. The detriment to the Applicant of the dismissal is one of time in that it will lose the priority of being in the Court's list when it finally ascertains the content of its development application. I do not consider that such a detriment is one that outweighs the determinant of permitting the Applicant to remain in the Court list with an appeal that is unable to be fixed for hearing nor should the Applicant benefit from the priority that remaining in the list would bring in the circumstances of this case. That benefit was lost to this Applicant through its own conduct. 3. For those reasons, I consider that the decision of the Registrar made on 17 October 2022 that the proceedings be dismissed should not be set aside. 4. As to the cost order that the Registrar made on that occasion, I also consider that such order should not be set aside. In the circumstances where an appeal is dismissed due to the lack of the provision of essential information and in the face of numerous requests and a direction to provide such information the Council's costs of the whole of the proceedings should be ordered to be paid by the Applicant. All steps taken in the proceedings, not just the unwarranted appearances, are set at naught and should be borne by the defaulting party. 5. Rule 3.7 of the LEC Rules applies to Class 1 proceedings and relevantly provides: (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following— (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question— (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents— (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where— (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. 1. Consistent with the provisions of the LEC Rules r 3.7(3)(b) and (d) I consider that the order that the Applicant pay the Council's costs of the proceedings upon the dismissal of the proceedings for failure to comply with the Court's directions and to provide an essential documentary material to enable the subject matter of the appeal to be understood and determined on appeal warrant the order for costs in the circumstances of this case. 2. Further, the Applicant being unsuccessful in the Notice of Motion to review the Registrar's decision should be ordered to pay the Council's costs of the Notice of Motion as falling within the exceptions to the usual rule as provided for in the LEC Rules r 3.7(3)(1)(b). Conclusion and orders 1. For the reasons outlined herein, I dismiss the Applicant's Notice of Motion and order that it pay the Council's costs of that Notice of Motion. 2. The Court orders that: 1. The Applicant's Notice of Motion filed 11 November 2022 is dismissed; 2. The Applicant is to pay the Council's costs of the Notice of Motion; 3. The exhibits are returned; and 4. The parties are directed to collect the exhibits from my Associate within 7 days of the date of the making of these orders. ********** 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: 16 December 2022