Healthscope Pty Ltd v Minster for Planning and Infrastructure [2011] NSWLEC 225

Land and Environment Court New South Wales

Medium Neutral Citation: Healthscope Pty Ltd v Minster for Planning and Infrastructure [2011] NSWLEC 225 Hearing dates: 25 November 2011 Decision date: 25 November 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Applicant to file and serve points of claim on or before 29 November 2011. Catchwords: PRACTICE AND PROCEDURE: - Application to expedite judicial review proceedings so that they are heard and determined within twelve days. Category: Interlocutory applications Parties: Healthscope Pty Ltd (Applicant) Minister For Planning and Infrastructure (First Respondent) Aesthete No. 3 Pty Ltd (Second Respondent) Representation: COUNSEL: Mr J Lazarus (Applicant) Ms J Smith, solicitor (First Respondent) Mr A Pickles (Second Respondent) SOLICITORS: Allens Arthur Robinson (Applicant) The Department of Planning and Infrastructure (First Respondent) Yates Beaggi Lawyers (Second Respondent) File Number(s): 41051 of 2011

EX TEMPORE Judgment 1These Class 4 judicial review proceedings were commenced by Healthscope Ltd ( Healthscope ) on 17 November 2011 against the Minister for Planning and Infrastructure and Aesthete No 3 Pty Ltd ( Aesthete ). The applicant claims declarations that determinations made by the Minister on 17 August 2011 to give a concept plan approval for the Nepean Health Precinct Mixed Use development and to give project approval for Stage 1 of that development are void. An injunction is also claimed. 2I am now dealing with a notice of motion Aesthete filed today seeking an order for expedition of the proceedings such that they are fixed for final hearing before 7 December 2011, a little over a week away. 3Aesthete was the developer who obtained the concept plan approval and the project approval. According to the evidence filed in support of its notice of motion, certain options which it has entered into with third parties for them to purchase parts of the subject property will expire on 7 and 16 December 2011, and it is likely that negotiations for sale of the option agreements or for a joint venture will collapse if the proceedings are not heard before 7 December 2011. I take that to mean heard and determined before that date. 4Healthscope's solicitor estimates, on the basis of documents that he has been able to publicly access and review, that the hearing will take two days and may be determined on the documents without the need for the parties to adduce further evidence. However, no indication has been given either in that evidence or otherwise by Healthscope as to what the grounds of challenge to validity are. I asked Healthscope's counsel to identify what the grounds of challenge are, but he was not in a position to do so. It is difficult to give any weight to an estimate of a hearing time without that information being provided. 5The reality is that it is quite impossible for the Court, given the state of its list, to provide the sort of expedition which Aesthete is seeking. Whether, in any event, it would be procedurally fair to all parties to proceed in a fashion which would require the proceedings to be heard and determined in a little over a week is another question. 6Upon ventilating that with the parties' legal representatives, there was some acceptance by Aesthete of that reality. Aesthete then proposed that at least an order should be made that Healthscope file and serve its point of claim, together with any bundles of documents upon which it intends to rely, on or before next Tuesday, 29 November 2011; and that the matter then be reviewed promptly by the Court to see what further directions might be appropriate. 7Healthscope suggested that it would be sufficient if it simply identified in some other way what the grounds of challenge to validity are. 8I consider that Healthscope should file and serve points of claim which identify what the alleged grounds of invalidity are. I regard as undesirable any practice that may have arisen in Class 4 proceedings whereby a summons is filed without any indication of what the grounds of challenge are. This is the situation in the present case. 9In these circumstances, the only orders that I propose to make presently are that the applicant file and serve points of claim by 4 pm next Tuesday 29 November 2011; that the applicant have leave to inspect the Minister's documents in the meantime; and that the proceedings be stood over for mention before the Duty Judge at 9.30 am on Wednesday 30 November 2011. 10The orders of the Court will be as I have indicated. 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: 30 November 2011