Land and Environment Court of New South Wales CITATION : Multistar Pty Ltd v Minister for Urban Affairs & Planning & Anor [2000] NSWLEC 79 APPLICANT Multistar Pty Ltd (ACN 072 013 275) PARTIES : FIRST RESPONDENT Minister for Urban Affairs & Planning SECOND RESPONDENT Sydney City Council FILE NUMBER(S) : 40184 of 1999 CORAM: Sheahan J KEY ISSUES: Practice & Procedure :- amendment of points of claim - discovery - privative clauses LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Central Sydney Local Environmental Plan 1996 Belongil Progress Association Inc v Byron Shire Council & Anor (1999) NSWLEC 271; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 663-664; East Sydney Neighbourhood Association v South Sydney City Council (1998) NSWLEC 189; CASES CITED: McInnes & Ors v Wingecarribee Shire Council & Anor (1987) 64 LGRA 137; Multistar Pty Ltd v Sydney City Council (1999) NSWLEC 205; Narrambulla Action Group Inc v Mulwaree Council (1996) NSWLEC 219; Public Service Association (SA) v Federated Clerks Union of Australia (1991) 173 CLR 132 at 160; Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297 at 320-1; Richmond v Minister for Urban Affairs & Planning (2000) NSWLEC 23 DATES OF HEARING: 13/04/00 DATE OF JUDGMENT: 04/20/2000 APPLICANT Barrister Mr N Hemmings QC Solicitors Allen Allen & Hemsley FIRST RESPONDENT LEGAL REPRESENTATIVES: Legal Branch, Department of Urban Affairs & Planning Submitting SECOND RESPONDENT Mr Craig QC Solicitors Blake DawsonWaldron JUDGMENT: IN THE LAND AND Matter No: 40184 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 20 April 2000 MULTISTAR PTY LTD Applicant v MINISTER FOR URBAN AFFAIRS & PLANNING First Respondent SYDNEY CITY COUNCIL Second Respondent JUDGMENT Introduction 1. Multistar Pty Limited earlier brought a Class 1 appeal to the court against the deemed refusal by the Council of a development application. In his judgment Talbot J dealt with, inter alia, a relevant amending instrument made by the Minister, just prior to the hearing (" the amending LEP ") ( Multistar Pty Ltd v Sydney City Council (1999) NSWLEC 205). 2. That amending LEP is now challenged in these Class 4 proceedings, in which the company seeks a declaration: … that Clause 48A of Amendment No.9 - Public Car Parking to Central Sydney Local Environmental Plan 1996 dated 5 August 1999 and published in the Government Gazette on 9 August 1999 is void and of no legal effect. 3. Section 35 of the Environmental Planning & Assessment Act 1979 provides: The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette. 4. As the amending LEP was gazetted on 9 August 1999, and the Class 4 application was filed on 22 October 1999, these proceedings were commenced within time. 5. However, the company wishes to amend its Points of Claim, it being now almost 6 months after these proceedings were commenced, and 8 months after the relevant gazettal. The Class 1 proceedings 6. The Class 1 appeal was heard from 12 to 24 August 1999, and judgment was delivered on 1 September 1999. The development proposed the demolition of existing buildings on the city block bounded by Kent, Erskine, Napoleon and Sussex Streets Sydney, (with the exception of Moreton's Hotel), and the erection of a mixed use development, comprising three residential towers over a podium and basement levels incorporating residential, retail and commercial uses, together with tenant and public carparking. 7. Talbot J determined that the applicant was entitled to a grant of development consent subject to conditions, and the conditions document attached to His Honour's judgment runs to 142 conditions over 39 pages. 8. His Honour took into account the provisions of the amending LEP, and, in particular, cl 48A (see pars 16, 64, 145, and 164-178 of His Honour's judgment, and conditions 14 and 15). The Class 4 proceedings 9. These Class 4 proceedings were commenced against only the Minister, and their passage to date may be noted as follows: (1) At the first callover on 5 November 1999, directions were given by consent. (2) The applicant filed Points of Claim on 26 November 1999. (3) At the callover on 10 December 1999 it was noted that Sydney City Council may seek to be joined as a party. (4) On 13 December 1999 Sydney City Council filed a Notice of Motion returnable on 17 December seeking orders that it be joined as the second respondent broadly on the following grounds: (a) The amending LEP is relevant only to Council's area, and any order made by the court setting it aside would affect the manner in which the Council administers development control in its area; and (b) Council had resolved to prepare the amending LEP, and proceeded to do so, carrying out the other statutory steps in relation to the making of LEPs, and forwarding the draft to the Minister with a request that he make it as an LEP. (5) The applicant did not consent to the Council being joined, but the Minister supported it, and at the callover on 17 December 1999, Sydney City Council was joined as the second respondent to the proceedings, with costs of the Notice of Motion to be costs in the cause. (6) On 11 January 2000, further directions were given by consent. They included a provision that the respondents provide informal discovery on or before Tuesday 22 February 2000. (7) Both the Minister and the Council filed Points of Defence on 8 February 2000. (8) Discovery commenced on 17 February and was completed on 27 February 2000. Both respondents agreed to discovery, and cooperated with the applicant. No attempt was made by the respondents to circumscribe the documents to be discovered. (9) At the callover on 10 March 2000, the matter was adjourned, by consent, for further callover on 31 March 2000, and then on 31 March 2000, again by consent, for further callover on 6 April. (10) On 6 April 2000, the company filed its Notice of Motion and an affidavit annexing draft Amended Points of Claim dated 30 March 2000. (11) The Notice of Motion was listed for hearing before the Duty Judge on 13 April 2000. The Minister consented to the filing of the Amended Points of Claim as drafted and did not seek to be heard on the motion, but the Council opposed it. The amendments sought 10. In the Points of Claim filed on 26 November 1999, par 8 asserts that " clause 48A of Amendment No.9 is ultra vires and of no legal effect ". 11. The following particulars were provided: (a) Contrary to s109B of the Environmental Planning and Assessment Act ( the Act ), clause 48A has the effect of prohibiting the continued use of an existing building which is altered for the purposes approved in a consent which has been granted and is in force. (b) Clause 48A is an unlawful device to deny statutory rights vested by Division 10 of the Act for the continuation of a use for a lawful purpose in an altered existing building. (c) Clause 48A is a provision designed to avoid the rights vested by the incorporation of 'the incorporated provisions' into LEP 1996 pursuant to s108 of the Act. (d) The provisions of Clause 48A derogate and have the effect of derogating from 'the incorporated provisions' in LEP 1996 contrary to s108. (e) The provisions of clause 48A have the effect of preventing the continuance of the use of land for a lawful purpose, such use occurring immediately before the coming into force of LEP 1996, pursuant to a consent granted under s108 of the Act and the incorporated provisions of the Environmental Planning and Assessment Regulation (1994) ( the Regulation ) to rebuild, enlarge, expand or intensify. (f) Contrary to the Act, clause 48A purports to make provisions in a DCP, mandatory and binding on a consent authority . 12. After a detailed review of the documents provided by the respondents during discovery, the applicant resolved to seek to amend its Points of Claim. It had apparently become known to the applicant during discovery that matters it hitherto thought were within the province of the Minister, were, in the case of this amending LEP, within the province of the Council. 13. The draft Amended Points of Claim assert that the Director delegated to the Council certain of her powers under the EP&A Act, and that the General Manager exercised some of those powers as a purported delegate of the Council. The applicant wishes to include in its claim allegations of procedural error on the part of the Council in the course of the drafting and the making of the amending LEP. 14. It is further asserted in the draft Amended Points of Claim that the Council failed to comply with some of the provisions of the Act, notably sections 62, 68 and 69 (with the result that the Minister in making the amending LEP was led into error and thereby committed a breach of s 70). 15. The particulars of what would make cl 48A " ultra vires and of no legal effect " are substantially unchanged from those given in the (original) Points of Claim and quoted above, but additional particular (g) has been added in the following terms: Contrary to the Act the public were denied the opportunity to make representation with respect to (f) . 16. The draft Amended Points of Claim then go on to assert that the amending LEP itself is void and of no legal effect on, basically, the same grounds, and, in addition, on the ground that cl 48A is not severable. 17. The court notes that no attempt has been made, at least as yet, to amend the Class 4 application and the declaratory relief sought therein. The power to amend 18. The relevant rules in respect of amendment are in Part 10 of the Court's rules: 1. (1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document filed in the proceedings be amended in such manner as the Court thinks fit. (2) All such amendments shall be made so as to lead to the determination of the real questions raised by or otherwise depending on the proceedings, or the correction of any defect or error in any proceedings, or the avoidance of a multiplicity of proceedings. … 2. (1) If a relevant period of limitation expires after the filing of an application and after that expiry a notice of motion is filed with the Court for an order to amend the application under this rule, the Court may nevertheless make the order, unless it would be contrary to any law (other than these rules) to do so. … (5) If an applicant, in an application, claims any relief on a cause of action arising out of any facts, the Court may make an order making an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action. (6) This rule does not limit the powers of the Court under rule 1. 19. Ritchie's Supreme Court Practice in its introductory note to Part 20 says: Liberal use of the power to amend is one of the hallmarks of the modern judicial system. Generally speaking, amendments ought to be allowed if they give rise to an arguable cause of action or matter of defence. This is especially so if the only prejudice that the amendment would cause to other parties would be adequately compensated for by an order for costs or by the imposition of appropriate terms. The power to permit amendment is very wide and in general a party who seeks to amend will be permitted to do so to enable the real questions in dispute between the parties to be tried… 20. Later on (at pp 2451-2452) the learned author says: The fundamental objective of the judicial process is to do justice between the parties. Excessive rigidity in the application of procedural requirements is not to be insisted upon if doing so could compromise the attainment of that objective… Accordingly, as a general rule leave should be granted if the application for leave to amend is made in a timely manner, whether leave is sought for the purpose of introducing new matters or for the purpose of modifying an existing claim or defence… 21. Further (on p 2452), Ritchie's Practice notes that there are four propositions that define the limits of a general discretion to grant leave to amend: (1) the proposed amendment must not be so obviously futile that it would be liable to be struck out if it had appeared in the original pleading; (2) the application for leave to amend must be made for a proper purpose; (3) the amendment must not cause prejudice to the other party that cannot be compensated by appropriate consequential orders, including costs orders; (4) the amendment must not be contrary to the interests of the administration of justice. 22. Although not expressly said by Mr Craig QC in arguing Council's opposition to the application to amend, the implication of some of his remarks was that he was alleging some impropriety, of either action or purpose, on the part of the applicant and its representatives. He complained that his client had been " generous " with its documents, and the applicant had " trawled " through them, in abuse of the privilege afforded it, in search of a new basis of attack on the amending LEP. Discovery 23. In the context of the allegation of abuse of the discovery process by the applicant, I note that Ritchie says of discovery (at p 2501 and 2511): Discovery is a procedure that enables parties to obtain access to documents that are relevant to the issues in the litigation. … Discovery is only permissible to the extent that documents are 'relevant' to a fact in issue. … The court has a discretion to limit or postpone discovery and may refuse to order it in relation to secret or commercial information. … The first test of whether a document is discoverable is whether it relates to a fact in issue in the proceedings. This is best determined by an examination of the pleadings, and consideration of any admissions that the parties have made whether in the pleadings or elsewhere … A fact in issue is a material allegation relating to the substance of the dispute - irrespective of whether or not it is an issue that has been expressly joined on the pleadings. Consideration 24. The situation is, therefore, that the applicant, following Talbot J's decision, instructed its legal representative to challenge the validity of the amending LEP. The challenge was launched within the time limit provided by s 35 of the EP&A Act, and, contrary to the express words quoted above from Ritchie, the Council is arguing before me, on this motion, that despite this court not being a court of strict pleading, it is somehow improper for the applicant to seek a variation of its original " cause of action " in consequence of what it has learned during a discovery process, to which all parties consented, and in which the Council cooperated. 25. It was not strongly contended that amendment was precluded at this stage by s 35, but Mr Craig would have the applicant restricted to its original Points of Claim, which merely recite some of the factual background to the use of the parking station component of the site, and the limited facts then known to the applicant, or presumed by the applicant, regarding the making of the amending LEP. With respect to Mr Craig QC and his submissions, it seems to me to ill behove a party in these circumstances to later complain of " trawling " during an agreed discovery process. 26. I am further of the view that the interests of justice require that the applicant company should have its challenge to the validity of the LEP " properly litigated " in this court. 27. The procedures by which LEPs are validly made have been dealt with in two recent judgments of this court, my own in Richmond v Minister for Urban Affairs & Planning (2000) NSWLEC 23, and that of Cowdroy J in Belongil Progress Association Inc v Byron Shire Council & Anor (1999) NSWLEC 271. 28. All that the amendment sought in this case seeks to do is to add additional grounds of challenge to the making and validity of the relevant instrument. The proposed amendment raises no new cause of action, nor does it question, for the first time, the validity of an LEP. 29. I can see no reason for the court to restrain the applicant from raising a case that what the Minister received in the final stages of the plan-making process was, itself, ultra vires . 30. I have come to the conclusion that the Rules of the court and the interests of justice dictate that the court should allow the applicant to amend its Points of Claim on this occasion. 31. I do so on the basis of authority, binding upon this court, which makes the adoption of that course appear abundantly correct, in terms of both the relevant rules and principles to apply, and the correct construction of " privative " provisions such as s 35. 32. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, in a judgment making the High Court's decision unanimous, Gaudron J made the following statements (pars 55-56): …'accountability' can be taken to refer to the need for the executive government and administrative bodies to comply with the law, and, in particular, to observe relevant limitations on the exercise of their powers. Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. 33. In McInnes & Ors v Wingecarribee Shire Council & Anor (1987) 64 LGRA 137, Priestley JA, with whom Kirby P and Clarke JA agreed, said at 143-4: The courts have adopted, when construing rules of the general kind in question in the present case, an approach which gives the empowering words in such rules as full a meaning as they can reasonably bear in their context. … None of these cases raises the exact question or is on the exact rules with which the present case is concerned. They all indicate however, as it seems to me, that the preferred approach at the present time is to give courts very ample jurisdiction to grant amendments, including those which as a matter of simple fact allow causes of action to be litigated which could not be litigated if the amendment were not allowed, leaving it to the discretion of the court to decide when justice requires that such an amendment should or should not be granted. This is in contrast to the earlier approach of leaving the rules rather than the court's discretion to determine whether or not particular causes of action should be litigated. 34. Dawson and Gaudron JJ said in Public Service Association (SA) v Federated Clerks Union of Australia (1991) 173 CLR 132 at 160: Privative clauses … are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. 35. This passage was recently cited with approval by Gaudron and Gummow JJ in Darling Casino Limited v NSW Casino Control Authority (1997) 191 CLR 602 at 663-664, and by Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 101 LGERA 297 at 320-1. 36. There is authority in this court for an amendment to be allowed, even if it would go further than proposed here, so as to question for the first time the validity of the instrument. See Narrambulla Action Group Inc v Mulwaree Council (1996) NSWLEC 219. However, lest that decision of Bannon J be thought to go too far, I would rely upon the following comments of Talbot J in East Sydney Neighbourhood Association v South Sydney City Council (1998) NSWLEC 189 (at par 57): The proceedings were commenced by the applicant within the prescribed period of three months. On a strict reading of the section, the critical date is when the proceedings are commenced. It would, in my opinion, be an unintended result if an applicant was able to commence proceedings seeking to enforce a development consent on the last day of the three month period, thereby effectively precluding a respondent from raising a defence based on invalidity of the same development consent. Although that is not exactly the case here, the example demonstrates why it is that the Court is required to have regard to the date of commencement of the proceedings rather than the date the issue is raised, at least where the relevant development consent is the subject of the proceedings (distinguish Dominic WYkanak v Rockdale City Council & Ors unreported 40005 of 1997 Pearlman J 20 July 1998). Conclusion and Orders 37. The orders of the court will, therefore, be: 1. That the applicant be granted leave to file Amended Points of Claim in the form of the draft annexed to, and marked " A " in, the affidavit of Paul Nikola Lalich of 6 April 2000, filed herein. 2. That the Second Respondent pay the costs of the applicant in respect of this Notice of Motion. 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.