Land and Environment Court New South Wales Medium Neutral Citation: Mount Annan 88 Pty Ltd v Camden Council (No 2) [2015] NSWLEC 163 Hearing dates: 19 October 2015 Date of orders: 20 October 2015 Decision date: 20 October 2015 Jurisdiction: Class 1 Before: Pain J Decision: (1) Council's Notice of motion dated 12 October 2015 dismissed. (2) Applicant to pay the costs of Ms Morrish incurred by the Council to date. (3) Costs of Council's Notice of motion dated 12 October 2015 reserved. Catchwords: PRACTICE AND PROCEDURE – review of Registrar's decision to set down matter for hearing – whether unavailability of expert witness a material change of circumstance – exercise of discretion not to make order for new hearing dates Legislation Cited: Uniform Civil Procedure Rules r 49.19 Cases Cited: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 Mount Annan 88 Pty Ltd v Camden Council (Land and Environment Court (NSW), 2 October 2015) Shoal Bay Developments Pty Limited v Port Stephens Council (No 2) [2015] NSWLEC 36 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Category: Procedural and other rulings Parties: Mount Annan 88 Pty Ltd (Applicant) Camden Council (Respondent) Representation: COUNSEL: Ms S Duggan SC (Applicant) Mr D Loether, solicitor (Respondent) SOLICITORS: Gadens (Applicant) Bartier Perry (Respondent) File Number(s): 10074 of 2015 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Civil Citation: N/A Date of Decision: 02 October 2015 Before: Registrar Gray File Number(s): 10074 of 2015 Judgment 1. The Respondent Camden Council (the Council) has filed a Notice of motion dated 12 October 2015 which seeks an order that the decision of the Registrar of 2 October 2015 to list the matter for hearing on 21-23 December 2015 in Mount Annan 88 Pty Ltd v Camden Council (Land and Environment Court (NSW), 2 October 2015) be set aside. A consequential order that the hearing dates on 21-23 December 2015 be vacated is also sought. 2. The power to review the Registrar's order is found in Uniform Civil Procedure Rules r 49.19. I can confirm, vary or discharge the order inter alia. The relevant principles concerning an appeal against the decision of the Registrar are identified in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 per Hodgson JA (Ipp JA agreeing) who stated at [6]-[10]: [6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or 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 interests of justice require this. 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. 1. These passages have been cited in several decisions in this Court including by me recently in Shoal Bay Developments Pty Limited v Port Stephens Council (No 2) [2015] NSWLEC 36 and in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [11]-[12] in considering the power of review of the Registrar's orders. 2. In her reasons for listing the matter on 21-23 December 2015 the Registrar considered the availability of the Council's expert witness at [11] and that the Council's expert witness Ms Morrish was only available for one day of the period 21-23 December 2015. Urban design evidence was listed for 21 December 2015 to take into account Ms Morrish's availability at [15]. An affidavit of Mr Loether Council's solicitor dated 12 October 2015 was read in support of the Notice of motion. It outlines the history of the proceedings to date which were commenced on 3 February 2015. The Council's Statement of Facts and Contentions was filed on 5 March 2015. A s 34 Conference was held on 24 April 2015. Leave to rely on amended plans was granted on 9 June 2015. An amended Statement of Facts and Contentions was filed on 17 July 2015 which continued to raise concerns about the carpark location inter alia. The matter was listed for hearing on 7-9 October 2015. The Applicant applied to vacate the hearing and this was granted on 16 August 2015. In a further Notice of motion the Applicant sought leave to rely on amended plans in relation to the carpark location and this was granted on 2 October 2015 and the matter was listed for hearing on 21-23 December 2015. Paragraphs 15 and 18 of the affidavit state: 15. In preparation for that listing, I had obtained the availability of Council's consultant experts and Senior Counsel briefed in this matter. … 18. On 5 October 2015, I telephoned Gabrielle Morrish, the Council's urban design expert to inquire as to whether she could make herself available to attend the hearing on 22 December 2015. Ms Morrish indicated to me that she would not be able [to] attend as she will be overseas and further, she would also not be able to attend on 21 December as her departure date had been moved forward to include that date. 1. The Council's case is that there has been a material change of circumstance since the Registrar's decision because its urban design expert witness Ms Morrish is now no longer available for the 21-23 December hearing. It seeks a hearing date of 22-24 February 2015 as the next occasion when all its experts are available. The unavailability of that expert was discovered after the determination of the Registrar on Friday 2 October 2015 to list the matter in December 2015 during a telephone call to Ms Morrish on the next business day Monday 5 October 2015. If the motion is not granted the Council will incur extra costs in having to brief another urban design expert. I note that the Applicant has offered to consent to an order that it pay Ms Morrish's costs as incurred to date by the Council. Substantively, Ms Morrish has been involved in the proceedings for a lengthy period, has participated in the s 34 conference and prepared her expert report, following receipt of which the second amended plans were filed by the Applicant. The Council continues to have concerns about urban design aspects of the development despite the second amendment of the Applicant's plans to accommodate Council's concerns about the carpark location. 2. The Applicant opposes the motion on the basis that the Council bears the onus of establishing why the Court should exercise its discretion in the Council's favour in the interests of justice which it has not discharged by the brief affidavit evidence of Mr Loether. There is a gap in the evidence which fails to identify when and the circumstances surrounding the Registrar being informed on 2 October 2015 that Ms Morrish was available for a hearing on 21 December 2015 but was not subsequently available when rung on 5 October 2015 by the Council's solicitor. Exercise of discretion not to make orders sought in Council's Notice of motion 1. The allocation of a hearing date is a matter of practice and procedure. The authorities cited above at pars 2 and 3 suggest that a reviewing court should be more reluctant to intervene in matters of that type. The Registrar allocated hearing dates on the basis of information then before her including the availability of Ms Morrish for a hearing day on 21 December 2015. The Registrar's decision shows that she carefully considered witness availability in her decision making for the reasons given at [11] namely that the Council's experts had already prepared expert reports in the proceedings and were familiar with the issues. She stated that unless absolutely necessary the respondent Council should not be put to the costs of engaging alternate experts because of the steps taken by the Applicant to amend plans. 2. The Council bears an onus of establishing why the Court should exercise its discretion in its favour in the interests of justice. The circumstance I am now considering was not before the Registrar and was not therefore the subject of her consideration. I am not reviewing the Registrar's decision in a literal sense because the change of circumstance only arose after her decision. At issue is whether the change is material and should result in the exercise of my discretion in the Council's favour. 3. The Applicant submitted that I should not have regard to the lengthy history of the matter in this Court in the exercise of my discretion as the Registrar considered that. I do not agree with that submission because I am exercising power afresh in light of a new circumstance separately from the decision of the Registrar. The Applicant has amended its plans on two occasions since proceedings were commenced on 3 February 2015. The foreshadowed second amendment resulted in a successful application to the Registrar for vacation of hearing dates set down earlier in October 2015. The length of the proceedings to date arise in large part from the Applicant's actions but that circumstance is only one consideration. 4. While much was made by the Applicant's counsel of an alleged failure to call Ms Morrish on Friday 2 October 2015 by the Council's solicitor immediately after the Registrar's determination Ms Morrish was called on the next business day being Monday 5 October 2015. There was no relevant failure of the Council in these circumstances. The major consideration is that I have only brief evidence concerning Ms Morrish's travel plan change as identified in par 18 of Mr Loether's affidavit. There is no explanation for how her unavailability came about. At a general level, it is unsatisfactory that an expert witness advise the Court through a legal representative of his or her availability for a hearing and very shortly after the Court acts on that advice becomes unavailable unless there is very good reason for doing so. As I do not have before me a reason for Ms Morrish's actions in this case I make no specific comment in relation to her circumstances. What I do have, as the Applicant submitted, is an important gap in the Council's evidence. 5. The overriding purpose of the exercise of the Court's discretion is the just, quick and cheap resolution of disputes. The Council emphasises that just resolution requires that the long standing expert witness in the matter be maintained by changing the hearing dates to February 2016. If the December hearing dates are maintained the Council will have to brief another urban design expert. The Applicant on the other hand argues that the just, quick and cheap disposal of proceedings requires maintenance of the current hearing dates. The Applicant has six experts, the Council four, and the parties have legal representatives all of whom ideally need to be accommodated in any change of hearing date. The proposed new hearing dates on 22-24 February are a further two months away. I do not know if the Council's proposed dates suit the Applicant's experts and legal representatives. The December hearing dates are approximately two months away and that should be sufficient time for another expert to be briefed by the Council in my view. 6. The determination of the issue before me is very finely balanced. I consider the Council should have provided more detail of how the change of circumstance relied on came about so soon after the decision of the Registrar, in order to persuade me that discretion should be exercised in its favour in the interests of justice. I decline to make the orders sought by the Council in its Notice of motion. Orders 1. The orders of the Court are: 1. The Council's Notice of motion dated 12 October 2015 is dismissed. 2. The Applicant is to pay the costs of Ms Morrish incurred by the Council to date. 3. The costs of the Council's Notice of motion dated 12 October 2015 are reserved. ********** 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: 21 October 2015