Land and Environment Court of New South Wales CITATION : Raymond v Woollahra Municipal Council (No 2) [2007] NSWLEC 320 APPLICANT Ben Raymond PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11118 of 2006 CORAM: Moore C KEY ISSUES: Discretion - Practice and Procedure :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 1996 Raymond v Woollahra Municipal Council [2007] NSWLEC 116; Raymond and Kennedy v Woollahra Municipal Council [2004] NSWLEC 286; Kennedy and Ors v Woollahra Municipal Council [2005] NSWLEC 124; Hurstville City Council v Renaldo Plus Three Pty Limited [2006] NSWCA 248; CASES CITED: Lonsdale & Anor v Gilbert & 2 Ors, (No 2) [2007] NSWLEC 58; Red Sea Investments Pty Limited v Ku ring-gai Council (No 2) [2005] NSWLEC 490; Autodesk Incorporated & Anor v Dyson and Ors [1993] 176 CLR 300; Segal & Anor v Waverley Council [2005] NSWCA 310 64 NSWLR 177; Port of Melbourne Authority v Anshun Pty Limited [1981] 147 CLR 589 DATES OF HEARING: 2 April 2007 EX TEMPORE JUDGMENT DATE : 2 April 2007 APPLICANT Mr G McKee, solicitor McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 2 April 2007 06/11118 Ben Raymond v Woollahra Municipal Council (No 2) JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: On 22 February 2007 I gave an extemporaneous decision in these proceedings, which is Raymond v Woollahra Municipal Council [2007] NSWLEC 116. In that decision Mr Raymond, represented on this Notice of Motion by Mr McKee, solicitor, appeared for himself at both the on site inspection and in the submissions which followed it prior to my giving of the decision. 2 That appeal was an appeal pursuant to s 96 of the Environmental Planning Assessment Act 1979 (the Act) against the deemed refusal by Woollahra Council (the Council) of a modification application seeking approval for a number of changes to the design of a building that was approved to be erected at 42 Bundarra Road, Bellevue Hill (the site). 3 There had been a number of earlier proceedings in the Court dealing with the site, two of those decisions being referred to in my reasons and having been hearings before my colleague, Tuor C. The first of those is Raymond and Kennedy v Woollahra Municipal Council [2004] NSWLEC 286. That was the proceedings that gave rise to the original development consent. 4 A subsequent modification application pursuant to s 96 of the Act was dealt with by Tuor C in Kennedy and Ors v Woollahra Municipal Council [2005] NSWLEC 124. 5 The proceedings before me constituted an application pursuant to s 96 of the Act to seek what amounted to retrospective consent to a number of changes to the development application plans that had in fact been constructed on the site. 6 It is fair to say that, with the exception of a single matter where there was agreement between the parties enabling a modest variation of the approved design but not adoption of that which had in fact been constructed, the applicant was unsuccessful with all of the substantive matters in their entirety – that is, he did not succeed in its entirety on any of the matters but he did obtain a number of variations that would have required plans reflecting a position that was at variance with both the approved development application plans and that which was actually constructed. 7 As a consequence of my reaching those conclusions, I gave a number of directions at the end of my decision which required, inter alia, that the applicant was to file and serve plans to reflect the terms of the decision and to do so by 17 March. As a consequence of that, I also directed that the respondent file and serve revised consolidated conditions to reflect the terms of the decision and including new plan numbers and the like by 24 March. 8 During the subsequent period, that is after my decision on 22 February which was published in written form to the parties on or about 8 or 9 March, Mr Raymond consulted Mr McKee concerning that decision. 9 As a result of that consultation, Mr McKee filed a Notice of Motion on 27 March (supported by an affidavit dated and filed on 28 March, that being an affidavit by Mr McKee). 10 One of the matters that was permitted in my directions was the granting of a liberty to re-list before me on 48 hours' notice if there were matters arising from my directions for revised plans and consolidated conditions that required clarification. 11 That leave to re-list for those purposes is entirely consistent with the form of leave considered and approved by the Court of Appeal in Hurstville City Council v Renaldo Plus Three Pty Limited [2006] NSWCA 248. 12 It is not, in essence, a leave to re-agitate any of the substantive issues contained in the decision of the primary fact finder but is a leave designed to enable the minds of the parties to come together to give effect to that determination. 13 It is in that context, that I turn to the Notice of Motion filed by Mr McKee on behalf of the applicant. 14 The Notice of Motion seeks leave to rely on amended plans that are referred to in and appended to Mr McKee's affidavit. Those amended plans are not plans which reflect the terms of my decision of 22 February but are plans which the applicant says respond to the findings of fact made in that decision but do so in a fashion which differs in a number of material respects to the conclusions which I drew as to the method of dealing with the various issues. 15 Mr Connell, solicitor for the respondent, opposes the Notice of Motion to re-open. 16 Whilst Mr McKee put the terms of the application being made as being one capable of being dealt with pursuant to Part 10 rule 1 of the Land and Environment Court Rules 1996 (the Rules), it is clear that in fact it should be an application pursuant to Part 15 rule 9(b), being a Notice of Motion for variation filed before the filing and perfection of the orders in the case. 17 Although Mr Connell took me to a decision of Lloyd J in Lonsdale & Anor v Gilbert & 2 Ors, (No 2) [2007] NSWLEC 58 concerning variations after final orders pursuant to leave of the nature granted by me on 22 February, I am satisfied that those circumstances do not apply as there have been no orders in fact issued as required by the Rules and that the opportunity for an application to reopen pursuant to Part 15 rule 9(b) is still alive and available to the applicant in these proceedings. 18 It is clear that whether or not I should grant such an application is a matter for the exercise of the discretion of the Court. 19 I have had the opportunity to consider this in a broad context in one earlier matter, being the case of Red Sea Investments Pty Limited v Ku ring-gai Council (No 2) [2005] NSWLEC 490. In that decision, primarily from paras 33 onwards, I considered the relevant decision of the High Court on the exercise of such discretion - being the decision in Autodesk Incorporated & Anor v Dyson and Ors [1993] 176 CLR 300. 20 I extracted a number of propositions from the judgments of Brennan J, as he then was, and Deane J, as he then was, concerning the discretion to re-open and the very narrow and limited opportunity that is afforded. I expressed the opinion on that occasion that: "The fundamental proposition which must guide me comes, in my view, from the words of Brennan J, encapsulating the circumstances when re-opening ought be permitted. Judgment has been pronounced against a person without fault on the part of that person has not had an opportunity to be heard as to why that judgment should not be pronounced." 21 Autodesk has been applied in this Court in a number of instances including in Lonsdale, to which I have earlier referred. 22 Mr McKee puts the proposition that, in this instance, the test proposed by Brennan J is satisfied because Mr Raymond was a self-represented litigant on the substantive proceedings and who was a litigant who did not understand the opportunities to apply for an adjournment when he found himself out of his depth on a substantial merit matters, that being the position that he has instructed Mr McKee he found himself in. 23 I am prepared, for the purposes of this decision, to assume that that is the case. However, as earlier noted, Mr Raymond is not a stranger to this Court's jurisdiction. 24 Consistent with the approach that I take to self- represented litigants, a deal of procedural (but not merit) indulgence was granted to Mr Raymond during the course of the hearing – including my permitting the admission of evidence sought to be tendered by Mr Raymond over the objection of Mr Connell (this being evidence where the document did not conform with the expert witness practice direction and the maker was not available to be tested on cross examination). 25 Nonetheless, I determined that under all of those circumstances, despite that, it was appropriate that the evidence of Mr Walman should be admitted. 26 The discretion that I am asked to exercise is one which Mr McKee says is appropriate to be done in the interests of the efficient and orderly disposal of these proceedings in circumstances where, if I am not to grant the application as made, there will be a further application in some form or another pursuant to s 96 of the Act to the council or, pursuant to other statutory provisions, direct to the Court. 27 Mr McKee says that the matters that would be canvassed in such an application would be the same as those matters which he proposes I should allow to be canvassed before me on the basis of the amended plans appended to his affidavit in these proceedings. 28 I have concluded that it would be inappropriate to permit the matter to be reopened for two reasons. 29 The first is I do not consider that a satisfactory case has been made that would satisfy the tests of the High Court in Autodesk for the reopening of the matter or my exercise of a discretion. 30 Therefore I am not satisfied that Mr Raymond did not have an appropriate and adequate opportunity to put all matters before me that he wished to canvass nor that the nature of the way the proceedings were conducted both on the site and in the Court would not have afforded him the opportunity to have sought an adjournment should he wish to do so. 31 Mr Raymond has had the benefit of legal representation in proceedings in this Court on the original development application and I am satisfied that he has sufficient familiarity, because of his earlier experiences in the Court, both as a represented litigant and as an applicant in person, being some (but not perfect) familiarity with the Court's processes. 32 Although there were occasions when it was necessary for me to apply a degree of procedural discipline, Mr Raymond was given every opportunity, in effect, to mix evidence and submissions and to present all material that he wished to take me to, both in the course of the view and during the course of subsequent submissions. 33 Although I had significant reservations about the role of Mr Harding, the town planner who had been a court-appointed expert at an earlier phase of the proceedings but who had been retained by Mr Raymond to advise him, I permitted Mr Harding to play a wide-ranging role in assisting Mr Raymond – only drawing the line at not permitting Mr Harding to act as an advocate on Mr Raymond's behalf. 34 Mr Harding's presence, both on site and in Court and in the active discussions which took place between Mr Raymond, Mr Harding, Mr Connell, representatives of the Council and the residents in seeking to resolve a number of matters (and in fact so resolving them with respect to the rear ground level courtyard of the premises), makes it clear, in my mind, that Mr Raymond had a substantial, if not perfect, grasp of the way the proceedings were unfolding in an evidentiary and procedural sense. 35 For those reasons, I am not satisfied that the Autodesk test has been met. Therefore, it would be inappropriate for me to permit re-opening. 36 Whether or not that would result in a further application to the Court in which matters of my decision and, indeed, the earlier decisions of Tuor C would be agitated and whether issues such as those canvassed by the Court of Appeal in Segal & Anor v Waverley Council [2005] NSWCA 310 64 NSWLR 177 from paras 92 as to the primacy of matters considered by me or whether matters of res judicata or an Anshun estoppel derived from Port of Melbourne Authority v Anshun Pty Limited [1981] 147 CLR 589 would arise are matters for another day. 37 However, I have also concluded that it would be inappropriate for me to reopen the matter, even had I been minded to consider that Mr Raymond had satisfied the Autodesk test, because I reached sufficiently detailed conclusions in my decision of 27 February that it would be difficult for me to deal with the amended plans contained in annexure A to Mr McKee's affidavit in a fashion which might not lead either or both of the parties or any casual observers of any such proceedings to the conclusion that I was not able to bring a fresh and untainted mind to those matters of merit contained in the proposed amended plans. 38 I therefore make it clear that I have concluded that, even if it were otherwise appropriate to permit the matter to be re opened (which I have held it is not), I would not have felt comfortable in dealing with the matter on any further merits basis. 39 I do so without regard to the merit or otherwise of any of the matters contained in the amended plans attached to Mr McKee's affidavit, merely to the fact that I made precise and detailed conclusions about how various matters were to be resolved. 40 I consider that it would be difficult for reasons of a question of apprehension of bias one way or the other if I were to return to them and potentially be asked to reach a significantly different methodological conclusion no matter what the broad similarity of the outcome might be. 41 For those reasons, I also consider it appropriate, as a matter of discretion, that the Notice of Motion be refused. Tim Moore Commissioner of the Court 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.