Oshlack v Rous Water [2013] NSWCA 169

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Oshlack v Rous Water [2013] NSWCA 169 Hearing dates: 30 April 2013 Decision date: 12 June 2013 Before: Emmett JA at [1]; Gleeson JA at [21]; Preston CJ at LEC at [201] Decision: 1. Grant leave to the appellant to amend Ground 1 of the second further amended notice of appeal in the terms of his oral application on 30 April 2013. 2. Appeal dismissed. 3. Appellant to pay the respondents' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - grounds of review - validity of decision to construct and operate fluoride dosing plants - constructive failure to exercise jurisdiction - whether there was a misconception about the duty imposed on the decision maker

COSTS - costs discretion - whether discretion miscarried - whether decision of primary judge involved error Legislation Cited: Environment Planning and Assessment Act 1979 Environmental Planning and Assessment Act Regulation 2000 Fluoridation of Public Water Supplies Act 1957 Interpretation Act 1987 Land and Environment Court Act 1979 Local Government Act 1993 Cases Cited: Craig v South Australia [1995] HCA 58; 184 CLR 163 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Guthega Development Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638 Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323 Notaras v Waverley Council [2007] NSWCA 333;161 LGERA 230 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7 Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCCA 196; 46 NSWLR 598 Ward v Williams (1955) 92 CLR 496 Category: Principal judgment Parties: Al Oshlack (Appellant) Rous Water (First Respondent) Ballina Shire Council (Second Respondent) Lismore City Council (Third Respondent) Representation: Counsel: J Johnson (Appellant) N J Williams SC; V M Bosnjak (Respondents) Solicitors: Robert Balzola and Associates (Appellant) Ashurst Australia (First and Second Respondents) File Number(s): CA 2012/178722 Decision under appeal Jurisdiction: 9106 Citation: [2012] NSWLEC 111 (16 May 2012); [2012] NSWLEC 132 (7 June 2012) Before: Pepper J File Number(s): 40570/2010