Land and Environment Court New South Wales Medium Neutral Citation: Hayward v Hornsby Shire Council [2024] NSWLEC 106 Hearing dates: 16 September 2024 Date of orders: 17 October 2024 Decision date: 17 October 2024 Jurisdiction: Class 4 Before: Duggan J Decision: See orders at [42] Catchwords: PRACTICE AND PROCEDURE – Notice of Motion seeking summary dismissal of judicial review proceedings – r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – majority of grounds of judicial review proceedings failed to disclose a reasonable cause of action – leave granted to re-plead one paragraph of Summons Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Government Information (Public Access) Act 2009 (NSW) Land and Environment Court Act 1979 (NSW) Land and Environment Court Rules 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Chalak v G&G Mikhael Pty Ltd [2022] NSWCA 116 Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148 Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 Waverley Council v Ash Samadi [2020] NSWLEC 67 Category: Procedural rulings Parties: Brian Hayward (Respondent on the Notice Motion) (Applicant) Hornsby Shire Council (Applicant on the Notice of Motion) (Respondent) Representation: Counsel: R DeMarco, agent (Respondent on the Notice of Motion) (Applicant) M Cottom, solicitor (Applicant on the Notice of Motion) (Respondent) Solicitors: N/A (Respondent on the Notice of Motion) (Applicant) Local Government Legal (Applicant on the Notice of Motion) (Respondent) File Number(s): 2024/00219601 Publication restriction: Nil JUDGMENT Facts 1. By Notice of Motion filed 26 July 2024 (the Motion or 26 July Motion), Hornsby Shire Council (Council) sought orders for the summary dismissal of judicial review proceedings commenced by Mr Brian Hayward (Mr Hayward or the Applicant) on 14 June 2024 challenging a development control order issued by the Council. 2. The orders sought in the Motion are: 1. That the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedures Rules 2005 (UCPR); and 2. That the Applicant pay the Respondent's costs of these proceedings, including costs of this Motion. 1. I granted leave for Mr Hayward to appear by an agent, Ms Rochelle DeMarco (Ms DeMarco), pursuant to r 7.7 of the Land and Environment Court Rules 2007 (NSW). Mr Hayward was present in Court for the hearing of the Motion. He had also affirmed a number of affidavits in the proceedings which were relied upon at the hearing of the Motion. 2. The substantive proceedings to which the Motion relates concerns the giving to the Applicant by the Council of a development control order dated 4 December 2020 in respect of premises situated at 17 Bay Road Arcadia NSW 2159 and legally described as Lot 101 of DP 10045200 (the Order). The Order was given under s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). The terms of the Order were: 1 Cease carrying out the following building works to the existing dwelling at the Premises until such time that the relevant planning approvals have been obtained: (a) Any physical activity including the construction of alterations, additions and extensions to the existing dwelling at the Premises and which are not approved by Development Consent No. 1411/2000. 2. Cease carrying out the following building works to the existing dwelling at the Premises until such time as Brian Hayward is in receipt of advice from Council confirming that Conditions 5, 7, 8, 17, 18, 19, 20, 21, 25-45, 50-57, 59 of Development Consent No. 1411/2000 & 1411/2000/A have been complied with. a) Any physical activity including the construction of the dwelling at the Premises approved by Development Consent No. 1411/2000 and 1411/2000/A. 1. In the substantive proceedings, Mr Hayward challenges the validity of the Order and seeks a declaration as to its invalidity as well as costs. The grounds, as pleaded in the Summons, are numerous and were intermixed with assertions of law and fact purportedly relevant to the proceedings. The Summons identifies 38 grounds and includes a number of annexures. 2. The substantive proceedings commenced some 3 years after the issuing of the Order and hence are out of time for the purposes of r 59.10 of the UCPR. Mr Hayward did not appeal the merits of the Order, as he was otherwise entitled to pursuant to s 8.18 of the EP&A Act. 3. By Notice of Motion dated 5 July 2024 (5 July Motion), Mr Hayward sought an order for referral for legal assistance pursuant to Div 9 Pt 7 of the UCPR. 4. By Notice of Motion dated 9 July 2024 (9 July Motion), Mr Hayward sought an order for an extension to the time by which to commence proceedings pursuant to r 59.10 of the UCPR. 5. On 12 July 2024, Robson J, delivering judgment ex tempore, dismissed the 5 July Motion, declining Mr Hayward's referral for legal assistance. 6. In the same decision, Robson J stood the 9 July Motion over for hearing at the substantive proceedings. 7. By Notice of Motion dated 24 July 2024 (24 July Motion), Mr Hayward sought from the Council a statement of reasons for the Order. 8. On 2 August 2024, Pritchard J dismissed the 24 July Motion. 9. The 26 July Motion, twice previously adjourned, on 2 August 2024 by Pritchard J and myself on 30 August 2024 respectively, was heard before me on 16 September 2024. Relevant principles in application of r 13.4 of the UCPR 1. Rule 13.4 of the UCPR provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 1. The relevant principles were summarised by Robson J in Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148 at [60]-[61] as follows: 60 Although the power to summarily dismiss the proceedings is discretionary, it must be attended with caution, and it is usually only exercised in the clearest cases where it is plain and obvious that there is no issue to be tried: General Steel Industries Inc at 129-130 (Barwick CJ); Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ('Agar v Hyde') at [57]. The test has been framed as to whether the matter is "so obviously untenable that it cannot possibly succeed", is "manifestly groundless" or "would involve useless expense": General Steel Industries at 129. 61 Summary disposal therefore requires the Court to turn its mind to whether the applicant has more than a "fanciful" prospect of success: O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]. In doing so, the Court must consider whether there is an underlying cause of action, rather than simply whether one is pleaded. The Court must also take the case of the party resisting the application for summary dismissal at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200]. Proceedings will not be summarily dismissed once it appears that there is a real question to be determined and that the rights of the parties depend upon it. This is so even if the applicant's prospects of success might be characterised as slim. 1. As outlined in the relevant applicable principles, a finding that a proceeding should be summarily dismissed or a Summons (or part thereof) should be struck out should only be exercised in plain and obvious cases where the Applicant's case is so untenable that it cannot possibly succeed. As was observed in Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 at [7]: 7 However, notwithstanding the high bar that a defendant must meet, the power summarily to dismiss a claim is an important power in facilitating the efficient administration of justice by removing unmeritorious proceedings from the Court system, and it will be appropriate to make the order (in the proper case) even if extensive legal argument is necessary in order to demonstrate the hopelessness of a claim. Determination of the Motion 1. The Council provided both written and oral submissions in support of the Motion. The essence of the Council's case was that the Summons did not disclose a reasonable cause of action as: 1. The grounds pleaded relate to subject matter beyond the scope of judicial review: Summons pars 1, 8, 9, 10, 11, 12, 26, 27, 28, 29, 30, 33 and 34; 2. The grounds relate to actions taken after the giving of the Order and relate to an information request that cannot relate to the determination of whether the Order was validly given: Summons pars 12 and 13; 3. The grounds relate to the granting of a search warrant two years after the Order was given and do not relate to the declaration of invalidity of the Order: Summons pars 20, 21, 22, 23 and 24; 4. Summons pars 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 25, 26, 27, 28, 29, 30, 31 to 32 are repetitive in nature referring to the Applicant: 1. not being able to understand the basis on which Council says that the building work has been carried out in contravention of the EP&A Act; and 2. being entitled to have Council provide him with the evidence underlying the basis that Council has set out for giving the Order; These paragraphs do not identify any arguable grounds of miscarriage of Council's discretion to give the Order; 1. Summons pars 35 and 36 refer to the Applicant's personal circumstances and do not identify a reasonable cause of action and are matters which are beyond the scope of the judicial review functions of the Court; and 2. Summons pars 37 and 38 assert that the Applicant has complied with the Order. Such factors do not reveal a cause of action nor can they assist in the determination of the validity of the Order. 1. The Applicant made both written and oral submissions on the Motion. The Applicant also tendered the affidavit evidence of Mr Hayward in his affidavit affirmed 6 July 2024 together with a number of documents. 2. With respect to Ms DeMarco, the written submissions were lengthy with unnumbered paragraphs consisting of some 31 pages plus annexures. The Applicant had provided submissions in 10 sections identified as: 1 Judicial Review. 2 Actions of the Council and its officers prior to the complaint Council received on 6 August 2020. 3 Actions of the Council and its officers undertaken in response to the complaint on 6 August 2020. 4 Actions of the Council and its officers undertaken after the unlawful entry to the premises on 7 August 2020; the Direction to take Preventative Action. 5 Actions of the Council and its officers undertaken after the unlawful entry to the premises on 7 August 2020; the Notice to Provide Information and Records. 6 Actions of the Council and its officers undertaken after the unlawful entry to the premises on 7 August 2020; to issue the Proposed Development Control Order. 7 Actions of the Council and its officers prior to the issue of the Stop Work Order: failure to respond to the Plaintiffs correspondence seeking understanding, significant delay accessing information. 8 Hornsby Council and council staff member Aaron Harding acted with bias in relation to the manner in which the Plaintiff was denied procedural fairness and in relation to the manner in which Aaron Harding wrote the Stop Work Order and conducted the Investigation. 9 The Stop Work Order; fails to establish any contravention of the Act as EPAA Act sch 5 DCO no. 2 requires. 10 Respondents Motion seeking to dismiss proceedings pursuant to UCPR 13.4. 1. In an attempt to fully understand the nature of the case the Applicant relied upon in connection with the Motion, it was ascertained by discussions with Ms DeMarco that the Motion was opposed on the basis that the Summons relevantly disclosed causes of action relating to: 1. The procedural fairness ground: this ground was articulated by the Applicant as that, upon receipt of the Order (and the Notice of Intention to Issue Order), the Applicant could not have reasonably understood what the Council claimed to be the wrongdoing. This ground was identified as relating to pars 6, 7, 8, 9, 10, 12, 14, 15, 16, 18 and 25 of the Summons, although Ms DeMarco indicated that she had not completed a review of the whole of the Summons so there may be more relevant paragraphs; 2. The consent ground: this ground was articulated by the Applicant as being that the works carried out by him were authorised by a development consent and therefore there was no basis on which to validly issue the Order. This ground was identified as relating to par 15 of the Summons; 3. The statutory precondition ground: this ground was articulated by the Applicant as being that the Council had not demonstrated that it was on the subject land lawfully when inspections were undertaken. Further, the Order was required to specify a period of time for compliance with the Order and the Order required compliance to be "immediately" which is not a period of time. This ground was identified as relating to pars 9 and 10 of the Summons; and 4. The actual bias ground: this ground was articulated by the Applicant as relating to an assertion that a named Council employee had acted with actual bias against the Applicant in that if they were not biased, they would not have issued the Order. In addition, there was evidence that in some instances a complaint made to the Council by the Applicant against a third party had taken a long time to be investigated, whereas the complaint made by a neighbour giving rise to the Order had been investigated quickly. This ground was identified as relating to pars 1-12, 14-18, 25-26 and 29-32 of the Summons. 1. It is appropriate that I consider each of the grounds as grouped together by the Applicant. 2. In determining this matter in accordance with the principles as indicated above, I have proceeded to consider the Summons as including the explanation and expansion given in oral submissions and identified above. I do not make this determination on any strict point of pleading or imprecision of drafting, but rather a consideration of the Applicant's case put at its highest as a combination of the pleadings and the oral submissions made at the hearing of the Motion. This approach of focussing on substance rather than form in instances where there is an inadequacy in the pleadings is consistent with the approach identified in Chalak v G&G Mikhael Pty Ltd [2022] NSWCA 116 at [18]. 3. In that context, however, it is not open to me to approach the matter by considering whether I consider that the Applicant may have causes of action not pleaded, this Motion relates only to the causes of action articulated by the Applicant. Further, in determining the application I am not expressing a view as to whether the Applicant's cause of action as identified is likely to succeed but rather whether it is "so clearly untenable that it cannot possibly succeed". The procedural fairness ground 1. This ground as articulated related to the Applicant's understanding of the basis upon which the Order had been given and whether, in light of the grounds identified, the Applicant was afforded procedural fairness. There was no dispute that the Council had issued a Notice of Intention to Issue Order that preceded the giving of the Order and was in the same terms. That Notice gave the Applicant a period of 28 days to make submissions to the Council as to the giving of an order. Rather than make such submissions the Applicant embarked upon a course of action seeking information from Council through applications under the Government Information (Public Access) Act 2009 (NSW). 2. A claim of a denial of procedural fairness is founded upon a claim that the Council had a duty to hear the Applicant before making a decision affecting his interest. It is clear that the Council afforded the Applicant that opportunity and he declined to take advantage of the opportunity. The Applicant's explanation for his failure to make submissions was that he did not understand the grounds of the Order. The 17 grounds identified in the Order are clear an unambiguous and there is no reasonable argument that they could not be understood. What the Applicant appears to be saying was that he did not understand how the Order could be given as he had development consent for the works he was carrying out. Such a claim or understanding is not one that affects the claim of procedural fairness, rather it goes to the legality of the Order, which is dealt with separately below. Accordingly, as this ground fails to disclose a reasonable cause of action, as an opportunity to be heard was provided, this ground should be struck out pursuant to r 13.4 of the UCPR. The consent ground 1. This ground is confusingly pleaded in the Summons at par 15 in the following terms: 15 The owners' renovations are in accordance with the approved development application; the work is not in contravention of the EPA Act and a Stop Work Order is an unsuitable order to apply. Further, if the order states that the work is work which is not in compliance with a planning approval, the Terms of Order and the Reasons for the order indicate DCO no. 11 to be a more appropriate DCO. The determinations within the DCO are difficult to understand as to what the reasons for the order actually are, the work is not in contravention of the Act, the DCO no. 2 has been applied inappropriately and punitively. 1. The Applicant contends that by development consent 1411/2000 (as modified) he was authorised to carry out the work which gave rise to the giving of the Order. The Order could only lawfully be given if the work was being carried out in contravention of the EP&A Act and if consent was in force for the work there was no legal basis for the giving of the Order. 2. The Council accepted that there was a development consent in force. However, the Council contended that the work being undertaken was not consistent with that development consent. The Council accepted that whether this was in fact the case would rely upon a consideration of the evidence relating to the nature of the work and a construction of the development consent. The Council accepted that if such an argument was being put (which was not entirely clear from the terms of the Summons at par 15) then the Applicant should be ordered to re-plead the claim to reflect such claim. 3. As I understand it, the Applicant wishes to assert that he had a legal entitlement to carry out the work and therefore that the giving of the Order was unlawful. I accept the Council's submissions that the pleading at par 15 does not clearly articulate such a claim. However, I accept that if such a claim were amended so that it was clearly articulated there would, on the test to be applied here, be a reasonably arguable cause of action such that rather than strike out par 15 in its entirety, I will grant leave to the Applicant to re-plead that paragraph to reflect the claim articulated above. The statutory precondition ground 1. Insofar as this ground articulated a concern with the grant of a search warrant, this Court does not have jurisdiction to judicially review the grant of a search warrant. Insofar as the Court has the ancillary jurisdiction conferred on it pursuant to s 16(1A) of the Land and Environment Court Act 1979 (NSW) (LEC Act) the search warrant was issued after the giving of the Order and no relationship between the validity of the Order and the lawfulness of the search warrant was able to be identified by the Applicant such that the ancillary jurisdiction of the Court could potentially be engaged. 2. For those reasons, I find that the Applicant does not have a reasonable cause of action insofar as relates to the search warrant. 3. As to the time period provided in the Order for compliance the Council relied upon my decision in Waverley Council v Ash Samadi [2020] NSWLEC 67 at [142]-[151] where I held that "forthwith" was the specification of a period of time for the purposes of the giving of a stop work order. Whilst my decision does suggest that the time period in the Order was sufficient, I am a single judge of this Court and my decisions, apart from matters of comity, are not binding on other decision-makers. It is open to a litigant to contend that my decision should not be followed. Accordingly, I am unable to find to the relevant degree that this ground does not disclose a reasonable cause of action. 4. That being said, the Applicant's Summons does not plead this defect in a meaningful way. The Applicant relied upon pars 9 and 10 of the Summons as relating to this ground, those paragraphs provide: 9. Council failed to notify the owners of the complaint, SR119707, until after council officers conducted the search on 7 August 2020. The owners received notification of the actions of 7 August 2020 on 7 September 2020. Council failed to act fairly, ethically and with transparency; council failed to provide the owners opportunity to make representations and failed to adhere to the legislative requirements for entry to land which is only used for residential purposes. As at 7 September 2020, the owners were unaware that the council investigation officers had entered the owners' residence on August 7 2020; the owners had no indication from council that an Investigation concerning unlawful renovation work had commenced in 2018. 10. Subsequent to the search on 7 August 2020, Council issued the Notice of Intention to issue the DCO no.2 on 11 November 2020 pursuant to the EPA Act; the PEO Act does not contain provisions for actions pursuant to the EPA Act. Neither of these paragraphs relate to the issue of the adequacy of the time specified in the Order. Doing the best that I can and having regard to the totality of the 38 paragraphs of the Summons and the Applicant's written and oral submissions, I am unable to locate any pleading that could even inferentially raise this issue. Whilst submitted at the hearing of the Motion I am not satisfied that the issue has been actually raised (either expressly or inferentially) such that it could be said that any part of the Summons should not be struck out as it relates to such a cause of action. Accordingly, I find that no part of the Summons should not be struck out as relating to this asserted cause of action. 1. I further consider that it would be inappropriate to grant leave to the Applicant to re-plead with respect to this issue. The notion of re-pleading is to enable a particular matter already identified to be properly pleaded and particularised; that is not the case here. To permit re-pleading now would permit the Applicant to raise an issue not otherwise identified in the Summons and would in effect amount to be granting leave to amend the Summons to raise a new issue. No such application has been made and it is inappropriate to grant such leave in the circumstances. 2. Accordingly, for the foregoing reasons, I am satisfied that the Applicant's Summons does not disclose a reasonable cause of action within r 13.4(1)(b) of the UCPR with respect to this ground as articulated by the Applicant. The actual bias ground 1. This ground asserts that a certain named employee of the Council, in issuing the Order, acted with an actual bias against the Applicant. 2. Whilst the allegation is articulated, the Applicant was unable to identify either from the particulars in the Summons or on the evidence adduced any identification of the circumstances relating to the giving of the Order that is capable of establishing (or even particularising) the basis of this claim. The clearest statement of this ground that I have been able to find appears at par 32 of the Summons which contends (in part): A fair and transparent administration of the legislation is the responsibility of the local council; by conducting the activities in a manner which is biased, clandestine and unreasonably delayed…. 1. Whilst there is an allegation of bias, there is no connection identified to convert this statement from a complaint to a cause of action. That is, whilst the Applicant may be dissatisfied with the interactions he has had with the Council mere dissatisfaction is not a cause of action that would give rise to a claim in this Court. 2. When asked in oral submissions to articulate what justiciable cause of action the allegation of bias related the Applicant was unable to identify any such claim. It may be that a claim for bias is capable of relating to a justiciable cause of action. However, a bare assertion, as it has been made in this case, is not sustainable. I find that this ground is doomed to fail and that it is inappropriate to grant leave to re-plead a claim that has not been properly (or at all) particularised in the Summons. This ground should be struck out as failing to disclose a reasonable cause of action pursuant to r 13(1) of the UCPR. Costs 1. The parties agreed that the usual order as to costs would apply in connection with this Motion. 2. I am satisfied that the Council has been successful on this Motion such that it is entitled to the usual order as to costs. I make such finding notwithstanding that I have granted leave to the Applicant to re-plead par 15 of the Summons. Paragraph 15 of the Summons survives the Motion due to the oral submissions of the Applicant and the concessions (rightly made) by the Council as to the manner in which such a claim could be made. This is in effect affording the Applicant an indulgence to properly plead his case and as such does not alter the fact that the Council has been successful in this Motion and that its costs of the Motion should be paid by the Applicant. Conclusion and orders 1. For the reasons set out above, I order that: 1. Subject to Order (2) below, the grounds in the Summons filed on 14 June 2024 with the exception of the claim in paragraph 15 of the Applicant's Summons are struck out pursuant to r 13.4(1)(b) of the UCPR; 2. The Applicant is granted leave to file an Amended Summons re-pleading paragraph 15 of the Summons filed on 14 June 2024 consistent with my findings at [29] above by 1 November 2024; 3. The Applicant is ordered to pay the Council's costs of the Notice of Motion filed on 26 July 2024; and 4. The matter is listed before the List Judge for directions and to obtain a hearing date for the substantive proceedings together with the hearing of the Applicant's application to extend time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) on 15 November 2024. ********** 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 October 2024