New South Wales Court of Appeal CITATION : WYKANAK v ROCKDALE CITY COUNCIL & ORS [1999] NSWCA 65 FILE NUMBER(S) : CA 40851/98 HEARING DATE(S) : 1 March 1999 JUDGMENT DATE : 1 March 1999 PARTIES : DOMINIC WYKANAK v ROCKDALE CITY COUNCIL & ORS JUDGMENT OF : Stein JA at 1 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 40005/97 LOWER COURT JUDICIAL OFFICER : Pearlman J Claimant - In person COUNSEL : 1st Opponent - S.B. Austin QC 2nd Opponent - D Creais 3rd Opponent - Minister for Urban Affairs & Planning (Submitting) Claimant - N/A SOLICITORS : 1st Opponent - (Rockdale City Council) - Abbott Tout 2nd Opponent - (Oceanview Group Holdings Pty Ltd) - Robinson Creais CATCHWORDS : Draft Local Environmental Plan to reclassify community land - Notice of Motion for extension of time to appeal - Notice of Motion for leave to appeal re costs judgment - Notice of Motion seeking injunctions ACTS CITED : Environmental Planning and Assessment Act 1979 (NSW) CASES CITED: N/A DECISION : Notice of Motion for extension of time to appeal dismissed with costs. Notice of Motion for leave to appeal re costs judgment referred to the Registrar should the appellant wish to proceed. Notice of Motion seeking injunctions against the 1st Respondent Council and the 2nd Respondent developer dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40851/98 STEIN JA Monday, 1 March, 1999 Dominic WYKANAK v ROCKDALE CITY COUNCIL & ORS JUDGMENT STEIN JA : 1 The Court has before it a Notice of Motion brought by the claimant, Mr Dominic Wykanak, seeking an extension of time to appeal against the decision given by the Chief Judge of the Land and Environment Court, Pearlman J on 20 July 1998. 2 In terms of the extension of time it appears that action by Mr Wykanak to commence some form of appeal against the decision did not start until or shortly after 23rd October 1998. There has been an appreciable delay which is sought to be explained and I will later return to details of this. 3 The application for an extension of time is opposed by the first respondent, Rockdale City Council, and also by the second respondent, Oceanview Group Holdings, who for convenience I will refer to as the developer. The other respondent, the Minister for Urban Affairs and Planning, has filed a submitting appearance otherwise as to costs. 4 By way of background I mention that there has also been filed a number of other motions by Mr Wykanak, as well as a motion by the council seeking security for costs of the appeal should time be extended. 5 In relation to the other motions of Mr Wykanak, although it is, I have to admit, a little difficult to be completely certain, they appear to include an application challenging the costs order made in the Land and Environment Court proceedings on 23 October 1998. 6 An appeal against an order for costs requires leave of the Court of Appeal and a single Judge of Appeal does not have jurisdiction to entertain a leave application, it requires two judges. All I can do about the motion, as it concerns appealing against the costs order of her Honour, is to refer it back to the Registrar of the Court of Appeal and, should the claimant wish to proceed with that leave application, it could be listed for hearing. 7 There also appears to be motions by Mr Wykanak to seek to restrain the council dealing with s.96 modification applications before it concerning the particular development. I do not need to deal with that application at this time, although I note from instructions recently provided to Mr Austin QC, who has appeared for the council, that there seems to have been a total of four s.96 applications. One which might not have been the subject of the application of Mr Wykanak, was apparently granted by the council on 5 November last. Another was, I am informed, withdrawn on 10 February 1999. Apparently, there are still two live applications before the council which have not as yet been dealt with. 8 Lastly there appears to be an application for an injunction to restrain the developer from further proceeding with the development. In relation to this, I also do not need to deal with it for the moment but I note that there appears to be, for understandable reasons, an inability by the claimant to offer an undertaking as to damages. 9 Returning to the application for leave to extend time to appeal, Mr Wykanak has been unrepresented and has therefore appeared for himself. He has done his best to make out a case for an extension of time and, in doing so, has relied upon a large amount of material which I have read. In particular, five affidavits sworn by himself have been tendered subject to objections as to relevance, two affidavits by Mrs Nola Taylor, one of Mr Gus Kahlig, one by Mrs Helen Panaretos and another sworn by Mr Ron Fenton, together with a large volume of additional material, including many of the exhibits which were before her Honour. 10 Much of the material placed before me, it appears, was tendered to seek to establish the public interest nature of the proceedings. This, if I may say so, is clear. Indeed the council accepts the situation because what was involved in this case was a draft local environmental plan seeking to reclassify community land to operational land. That, of itself, raises issues of public interest, and in giving her decision on costs on 23 October 1998 Pearlman J said in para 3 that she was prepared to find that there was a public interest character to the litigation. 11 The question of whether the court should extend time to allow an appeal which is out of time to proceed is one in which the rules of the court do not provide any specific criteria. What is clear is that the court may exercise a discretion to extend time and that the underlying principle for the exercise of the discretion is a consideration of the interests of justice in each particular case. Consequently, a whole host of matters may arise for consideration. The circumstances do not necessarily have to disclose a special circumstance but often that will be involved. 12 Some of the matters which the court would have to take cognizance of in balancing factors relevant to the exercise of the discretion to grant or withhold time, are the reasons for the delay in lodging an appeal. Another factor is the weight to be given to the history of the litigation. What has happened since the decision appealed against and what other factors might be involved in the delay and in the appeal are also relevant. Further, what are the likely prospects of success or otherwise of the appeal should it go forward. 13 This case was for all intents and purposes an administrative law challenge to a decision of the council to cause a draft local environmental plan to go forward to the Minister to be made to reclassify community land. The issues that are sought to be raised therefore, draw on administrative law principles. In such documents as the claimant has been able to put before the court it is difficult to comprehend the basis of the challenge. A draft notice of appeal and a further lengthy document entitled "Further and better particulars" and "short written submissions" canvass a number of administrative law issues where it was submitted that her Honour got it wrong. 14 These include matters such as taking account of the irrelevant considerations and failing to take account of relevant ones. They also include some grounds going to procedural fairness, some alleging improper motive or purpose on the part of the council in proceeding as it did, and also grounds going to her Honour's findings relating to the preclusive clauses in the Environmental Planning and Assessment Act 1979, ss 35 and 104A. 15 I mention the last matter because it is highlighted in the draft notice of appeal and also in what Mr Wykanak has put to me orally. It is said that her Honour was wrong in relation to those matters. It is not self evident that there was any error of law what her Honour said concerning the preclusive sections of the Environmental Planning and Assessment Act. But in any event, what is apparent is that having made the findings which she did, her Honour then proceeded to analyse and determine each and every challenge that the claimant brought. 16 There is some evidence before the court of ill health of the claimant during certain periods of time which may have contributed to the delay. There is the fact that since the case was determined it appears that Mr Wykanak has been unrepresented but has been continuing to seek legal aid and legal assistance, as late as last Friday with no success. In this connection, I should mention that at a point of time either before or during the proceedings in the Land and Environmental Court, Mr Wykanak had some legal advice and assistance and there is some intimation that that advice has not necessarily been favourable to the outcome of the proceedings, at least in the Land and Environment Court. 17 There is another factor which comes clearly through in the affidavit evidence of Mr Wykanak and that is that 'I am impecunious'. He is a person of small means and would not be in a position to satisfy, if it remained in operation, the order for costs made by the Land and Environmental Court, nor anything like it. He would not be in a position to offer any real security for the prosecution of an appeal should time be extended. 18 Mr Wykanak relies very much on what he describes as the public interest considerations behind his application for an extension of time. As I have said, I have no doubt that the proceedings can properly be characterised as public interest litigation but having that character does not, of itself, mean that that discretionary factor must inevitably outweigh all other discretionary factors in determining whether time be extended to allow an appeal which is otherwise out of time. 19 The court may also take into account, as another discretionary factor, of the general history of the proceedings in the Land and Environment Court which were, from time to time, characterised by a degree of delay, understandable as that might be. Another matter to take into account is that steps have been taken to implement consents granted following the making of the local environmental plan by the Minister. No doubt this means that monies have been spent in implementing the consents on a continuing basis. This is another discretionary factor which goes into the melting pot. 20 It also appears that the appeal, if it goes forward on the basis of the draft grounds of appeal and the expanded argument in the lengthy document entitled 'Short written submissions' and 'Further and better particulars', which the claimant was required to file, its prospects of success would be slim indeed. When one weighs all of the considerations that go into the exercise of discretion to extend the appeal, including those that favour the extension, the conclusion reached is that the court should refuse the extension of time to appeal the judgment of 20 July 1998. 21 Accordingly, the notice of motion seeking extension of time to appeal the judgment of Pearlman J of 20 July 1998 is dismissed. 22 The question arises as to what to do about the remaining applications before the court. I have already indicated that the costs appeal needs the leave of the court and no question arises as to the need for any extension of time to proceed with that. All I can do today in relation to the costs appeal is to refer it back to the Registrar and have the claimant liaise with the Registrar as to whether he wants that matter listed before the court so that his application for leave can be considered. 23 There are the other notices of motion seeking injunctions that I mentioned earlier. Subject to what anyone has to say, because I have refused the extension of time to appeal the main decision of 20 July last, it follows that these applications, to the council to prevent it from determining any s.96 application, and to the developer from proceeding, ought be dismissed. If nobody has anything to say to the contrary, both of these notices of motion seeking injunctions will be dismissed. 24 Also contained in the file is the notice of motion I mentioned by the council seeking security for costs. This is no longer relevant and ought be dismissed unless Mr Austin wants to keep it alive. 25 The exhibits should be returned with the exception of one document, which whilst marked as an exhibit, had been faxed to the court; exhibit A. That should remain with the court papers, otherwise the exhibits may be returned. 26 Both respondents seek costs of the notice of motion seeking to extend time which I have dismissed. Mr Wykanak opposes the application and does so on at least two bases. First, he relies on the public interest nature of the litigation, and second, he refers to the fact he is unrepresented and has been unable to obtain legal assistance. As to the first, the position is that the mere characterisation of proceedings as public interest litigation does not inevitably lead to a conclusion that no costs will be ordered against an unsuccessful party. It is a factor to take into consideration but should also be balanced with other discretionary considerations, including the normal order which is that costs follow the event of litigation. 27 The second factor of the claimant being unrepresented is an unfortunate situation but it is difficult to see its relevance to the issue of costs. Costs are not infrequently ordered against unrepresented parties and this is really no exception to a situation which arises from time to time. It is unfortunate that Mr Wykanak has been unrepresented and he has certainly made endeavours, so he has told the court, to be represented. It is difficult for me to see that it enters into the question of whether, having lost his application to extend time, he should not be ordered to pay the costs. 28 This may be academic because there are already substantial costs that have been incurred in the proceedings at first instance, and, according to the affidavits of the claimant, the circumstances are such that he would quite clearly not be in a position to make any payment unless within a very small ambit indeed. 29 In my opinion, in balancing up the various factors going into the costs discretion, I conclude that costs should follow the event of the notices of motion. The notice of motion is accordingly dismissed with costs. oOo 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.