Land and Environment Court New South Wales Medium Neutral Citation: Parcell v Leichhardt Council [2012] NSWLEC 77 Hearing dates: 13 April 2012 Decision date: 13 April 2012 Jurisdiction: Class 1 Before: Pepper J Decision: (1) the decision of the Acting-Registrar made on 4 April 2012 is set aside; (2) the hearing dates of 9 and 10 May 2012 are vacated; and (3) the matter is set down for final hearing on 29 and 30 May 2012. Catchwords: APPEAL:- review of Acting-Registrar's decision setting down matter for hearing - principles on review of a registrar's decision - interests of justice - decision set aside Legislation Cited: Civil Procedure Act 2005 ss 56-60 Land and Environment Court Act 1979 s 34AA Uniform Civil Procedure Rules 2005 r 49.19 Cases Cited: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 Sky Design and Concepts Pty Limited v Pittwater Council (No 4) [2009] NSWLEC 129 Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44 Category: Procedural and other rulings Parties: Robert Parcell (Applicant) Leichhardt Council (Respondent) Representation: Mr C Gough (Solicitor) (Applicant) Ms J Reid (Solicitor) (Respondent) McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10212 of 2012 EX TEMPORE Judgment The Applicant Seeks to Review a Decision of the Acting-Registrar 1By notice of motion filed 11 April 2012, the applicant, Mr Robert Parcell, seeks to review a determination made by the Acting-Registrar of this Court on 4 April 2012 to list the matter for hearing on 9 and 10 May 2012. 2In so doing, the applicant seeks to vacate the earlier hearing dates and instead set the matter down for final hearing on 29 and 30 May 2012. The reason for doing so is the unavailability of Mr Graham McKee of McKees Legal Solutions. Mr McKee is the solicitor acting for Mr Parcell. 3I have determined that it is in the interests of justice that the decision of the Acting-Registrar should be set aside and that the hearing of this matter be set down on the dates sought by Mr Parcell. Circumstances Giving Rise to Application for Review 4The factual circumstances giving rise to the application to review the decision of the Acting-Registrar were set out in an affidavit of Ms Kate Ghosn of McKees Legal Solutions sworn 11 April 2012 and an eCourt communication from Mr McKee to the registrar dated 5 April 2012. 5The substantive Class 1 proceedings concern the refusal by Leichhardt Council ("the council") of a development application lodged by Mr Parcell for alterations and additions to a dwelling house. In short, the issues in dispute between the parties concern a deck and studio garage and the likely conditions that the council seeks to impose in order to approve these proposed alterations and additions, conditions which are opposed by Mr Parcell. 6Because of the nature of the dispute, the proceedings have undergone mandatory conciliation and arbitration pursuant to s 34AA of the Land and Environment Court Act 1979. 7Several previous attempts had been made by the parties and the Court to find convenient hearing dates to finalise the matter, however, they have, to date, been met with limited success. 8On 23 March 2012 the matter went before the Court for a directions hearing. The parties sought hearing dates on 17 and 18 May 2012. The Court rejected these dates and directed the parties to confer and file an eCourt communication regarding potential hearing dates. This process occurred on 2 and 4 April 2012, with the applicant and respondent lodging eCourt communications disclosing their available dates. These dates did not include 9 and 10 May 2012. 9However, on 4 April 2012 the Court set the matter down for hearing on 9 and 10 May 2012. 10Mr McKee is not available on these dates because he is already appearing before the Court on another matter. 11This fact was communicated to the Court on 5 April 2012 by eCourt, together with a request that the Court reconsider its determination. 12On 5 April 2012 the Assistant-Registrar confirmed the Court's decision. 13Mr McKee is the legal representative who will appear on behalf of Mr Parcell at the final hearing of the matter. That is to say, he will act as both the solicitor for Mr Parcell and as his advocate. Mr McKee has been advising Mr Parcell in relation to the matter, both in his dealings with the council and before the Court, for the past 12 months. 14Finally, it should be noted that the preferred dates of 29 and 30 May 2012 are convenient dates for both parties and are available dates according to the Court's diary. Principles on Review of a Registrar's Decision 15Rule 49.19 of the Uniform Civil Procedure Rules 2005 provides as follows: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 16The principles applicable in relation to the exercise of the power of the Court to review a registrar's decision were articulated by Preston CJ in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 (at [12]-[13]): 12 What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions: "8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing." 13 Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)]. 17These principles have been subsequently applied in a number of decisions in this Court (see Sky Design and Concepts Pty Limited v Pittwater Council (No 4) [2009] NSWLEC 129 at [38] and more recently in Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44 at [11]-[13]). 18Accordingly, it is not necessary for Mr Parcell to prove an error of law, merely, to demonstrate that it is in the interests of justice that the Court exercise its discretion to set aside or vary the Acting-Registrar's decision. The Court's Decision Should be Set Aside 19In my opinion, having regard to the interests of justice, and bearing in mind the overriding purpose contained in s 56 of the Civil Procedure Act 2005 (and see also ss 57-60 of that Act) it is appropriate to set aside the Acting-Registrar's decision and instead order that the hearing of this matter proceed on the dates mutually convenient to both parties, namely, 29 and 30 May 2012. 20To do otherwise would be to cause injustice to the parties, particularly Mr Parcell, who would be forced to incur additional expense in having to find another legal representative to appear on his behalf at the final hearing. 21To change the hearing dates at this early stage will cause no inconvenience to the Court and will not result in limited Court resources being wasted. 22I am also mindful of the fact that when the matter was set down for hearing on 4 April 2012, the hearing dates of 9 and 10 May 2012 were not dates that had been nominated by Mr Parcell as available dates. 23In all these circumstances, it is just that the decision of the Acting-Registrar be set aside and that new hearing dates be allocated. 24I note, however, that the parties have been warned that any further application to vary the hearing dates will only be entertained upon the filing, supported by affidavit evidence, of a notice of motion seeking to vacate the hearing dates. The parties have been reminded that the vacation of hearing dates is a serious application and is not one that is lightly granted by the Court. Orders 25The orders of the Court are therefore that: (1)the decision of the Acting-Registrar made on 4 April 2012 is set aside; (2)the hearing dates of 9 and 10 May 2012 are vacated; and (3)the matter is set down for final hearing on 29 and 30 May 2012. ********** 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: 16 April 2012