Land and Environment Court New South Wales Medium Neutral Citation: McCudden v Cowra Shire Council [2015] NSWLEC 181 Hearing dates: 20 November 2015 Date of orders: 20 November 2015 Decision date: 20 November 2015 Jurisdiction: Class 2 Before: Biscoe J Decision: 1 The applicant is to serve a proposed amended notice of motion by 25 November 2015 incorporating the proposed questions for preliminary determination. 2 The applicant is to file and serve his submissions on the proposed questions by 3 December 2015. 3 The respondent is to file and serve its submissions on the proposed questions by 16 December 2015. 4 Stand over the applicant's notice of motion to 17 December 2015 for mention or determination (as Court time may permit), if possible before Biscoe J. Catchwords: SEPARATE QUESTION – merits appeal against Council order under s 124 item 18 of the Local Government Act 1993 – whether separate and preliminary questions for determination should be ordered. Legislation Cited: Companion Animals Act 1998 Part 4 Local Government Act 1993 Chapter 2, Chapter 5, ss 124 item 18(a), 180(4)(f) Prevention of Cruelty to Animals Act 1979 Uniform Civil Procedure Rules 2005 r 28.2 Cases Cited: 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, 195 LGERA 170 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259, 121 LGERA 223 Category: Procedural and other rulings Parties: Richard William McCudden (Applicant) Cowra Shire Council (Respondent) Representation: COUNSEL: P Clay SC (Applicant) C Arnott (Respondent) SOLICITORS: Crennan Legal (Applicant) Bradley Allen Love (Respondent) File Number(s): 20774/15 EX TEMPORE Judgment 1. These proceedings in Class 2 of the Court's jurisdiction are a merits appeal against the respondent Council's order dated 6 August 2015 to the applicant under s 124 item 18(a) of the Local Government Act 1993, requiring him as the occupier of certain premises at Cowra to do specified things in relation to a large number of cats on the premises within 28 days. 2. This morning I have heard the applicant's contested motion for an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 that the following question be determined as a preliminary matter: Whether the purported order dated 6 August 2015 from the Respondent to the Applicant is an invalid order because there was no power to issue the order having regard to the reasons for the giving of the order. 1. The principles applicable to the exercise of the Court's discretion to order the determination of a separate question were distilled by me as follows in 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8, 195 LGERA 170 at [10] and have been endorsed and applied by this Court on numerous occasions: (a) Generally speaking, all issues should be tried and decided at the same time. (b) It is for the party seeking the order to show to the court that separate decision of a question is appropriate. (c) Separate decision of a question is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings. This gives effect to s 56 of the Civil Procedure Act. Thus, the procedure needs to be fair and involve real savings in time and cost. (d) Separate decision of a question may be appropriate where it is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. (e) In particular circumstances separate decision of a question may be appropriate even if it will not bring the proceedings to an end. This may occur where the decision will substantially narrow the field of controversy by obviating unnecessary and expensive hearing of other questions or where the decision carries with it a strong prospect that the parties will then be able to agree upon resolution of the proceedings. But on such occasions care must be exercised lest fragmentation of the proceedings (particularly where the exercise of appeal rights is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. (f) Separate decision of a question is unlikely to be appropriate where it may involve the credibility of witnesses which is material to remaining issues in the proceedings (and thus require the remaining issues to be dealt with by another judge). (g) Where the question sought to be separated involves a question of law, there should be a clear definition of what the point of law raised is and all the facts upon which that question has to be considered should be agreed or clearly ascertainable. (h) Where the facts upon which decision depends are contentious, confidence in the utility of the separate question process may be less likely. 1. The principles were analysed by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182. In Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [34]-[36] Pepper J, after quoting the above passage from 820 Cawdor Road, summarised the principles as stated in Allandale as follows: [34] Therefore, in summary, cogent reasons, such as anticipated savings in time and expense in relation to the final hearing, should be shown to justify departure from the orthodox position that all issues in a proceeding are to be determined at the one time (Allandale at [10], [92] and [95]–[96]). [35] Where the resolution of the question would be dispositive of the litigious controversy, or would substantially narrow the field of controversy, this will favour the making of an order for a separate question. This is not a necessary circumstance, but it may be a sufficient one (Allandale at [88]–[89] and [95]). [36] Conversely, circumstances in which separate determination of an issue may not be appropriate include: where there are intertwined issues of fact or law such that the determination of the separate question would not have any substantial effect on the width of the field of litigious controversy or the prospect of the settlement of the balance of the litigation; or where there is a possibility that the resolution of the separate issue will not finally determine the proceedings (Allandale at [90]–[91] and [94]). 1. The principles as stated in Allandale are harmonious with the principles as distilled in 820 Cawdor Road. Although Allandale was an appeal from this Court and judgment in Allandale was delivered a few months after judgment in 820 Cawdor Road, the latter was not brought to the Court of Appeal's attention, which is understandable because the hearing in Allandale preceded the hearing and judgment in 820 Cawdor Road. 2. In Challenger Listed Investments Ltd v Valuer General [2015] NSWLEC 7 at [14] I wrote: Strong reasons, such as an anticipated significant saving in time and expense in relation to the final hearing, need to be shown to justify departure from the usual rule that all issues in the proceedings are to be determined at the one time. Among the recognised circumstances where separate determination of an issue may be appropriate are the following three circumstances, which in my opinion are present in this case: where resolution of the issue will substantially narrow the field of litigious controversy; where resolution carries with it the strong prospect that the parties will thereby be able to resolve their dispute without further litigation; and where there is a clear demarcation between that issue and all other issues in the case: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7] (Einstein J); 820 Cawdor Road Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 8 ; (2013) 195 LGERA 170 at [10] (Biscoe J); Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 ; (2013) 195 LGERA 182 at [88], [102]; Boensch v Parramatta City Council [2013] NSWLEC 94 at [8]–[10] (Biscoe J); Jenkins v Clarence Valley Council [2013] NSWLEC 161 at [14]–[21] (Pepper J); Hrsto v Canterbury City Council [2013] NSWLEC 195 at [4]–[6] (Biscoe J). 1. Council's order under s 124 item 18(a) includes the following: The Cowra Shire Council orders you as the occupier of the premises known as Lot 3 DP 857061 – 230 Conimbla Road, Cowra (the Premises) to do such things and within the time period as specified in Schedule A. The reason why the Order has been issued to you is described in Schedule A. … Schedule A 1. Reason why this order has been given: a. you are the occupier of the Premises; b. cats are being kept on the Premises in inappropriate numbers and inappropriate conditions; and c. the welfare of the cats is being significantly compromised as a consequence of i. the cats being kept in groups that are excessively large and therefore socially dysfunctional, ii. the cats not having appropriate space and adequate resources to display normal and preferred behaviours, and iii. insufficient human resources (carers) being available to properly care for the cats. 2. Things required to be done: a. not keep more than 33 cats at the Premises at any one time; b. confine the cats to social groups of between 4 and 6 cats; c. prevent the cats in each social group from interacting with each other; d. ensure that: i. no more than 2 social groups of cats are kept in the house on the Premises; ii. no more than 3 social groups of cats are kept in the existing shed on the Premises; iii. no more than 1 social group of no more than 3 cats is kept in the small enclosure at the rear of the Premises. e. provide adequate personal space for each cat in the area in which it is usually kept by: i. providing each cat with a separate site for feeding, resting, hiding and elimination activities; ii. providing one extra space for each of those activities in each group of cats; and iii. providing at least one vertical space for each group of cats. f. separately house any cats which appear to be distressed by being within a social group g. ensure that each cat is given a minimum of 15 minutes individual care every day 1. Item 18(a) of s 124 of the Local Government Act provides: 124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. … Table Orders Orders requiring or prohibiting the doing of things to or on premises Column 1 Column 2 Column 3 To do what In what circumstance? To whom? 18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order Birds or animals kept on premises are: Occupier of premises (a) in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or number or are kept inappropriately… 1. Section 180 of the Local Government Act relevantly provides: 180 Appeals concerning orders (1) A person on whom an order is served may appeal against the order to the Land and Environment Court. … (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. … 1. The applicant submitted that if the order for the proposed preliminary question were made and the Council order were found to be invalid, then this would save about two days of trial time plus related preparation time and associated expense concerning factual merits matters. Council agreed with this time estimate relating to factual merits matters but opposed an order for the proposed preliminary question on the ground it would not save any time or expense because Council would tender the evidence of the factual merits matters as relevant to the hearing of the separate question. 2. It became apparent during the hearing of the motion that Council raises other issues of construction of the Council order and the Local Government Act, which might also be suitable for determination as preliminary questions, and that the proposed preliminary question as framed in the notice of motion could usefully be refined. 3. The applicant's contention underlying his proposed preliminary question is that the Council order is beyond power and therefore invalid because first, animal welfare does not come within the ambit of s 124 item and, secondly, reasons 1(b) and (c) in the Council order are animal welfare reasons. The first part of the applicant's contention has regard to the purposes of the Local Government Act set out in Chapter 2 and the Council functions set out in Chapter 5, the Companion Animals Act 1998 Part 4 concerning responsibilities for control of cats, and the provisions of the Prevention of Cruelty to Animals Act 1979. The second part of the contention assumes that the broadly expressed reason 1(b) in the Council order does not go beyond the animal welfare reasons in 1(c). However, Council contends that this is a false assumption. 4. Council's contentions of law, as I understand them, include the following. First, the broadly expressed reason 1(b) in Council's order is wider than 1(c), is not limited to animal welfare matters whether expressed in 1(c) or not and includes "impact" matters such as odour and noise. Secondly, in any case animal welfare matters are within power and specifically within the ambit of s 124 item 18(a). Thirdly, in determining the legal adequacy of reason 1(b), the factual merits evidence relating to the cats is admissible to prove the circumstances understood by the applicant when the notice was served: J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259, 121 LGERA 223 at [46]-[48]. Fourthly, even if the Council order is invalid, nevertheless on hearing the appeal the Court has power under s 180(4)(f) of the Local Government Act to order the applicant to do the things specified in Council's notice, and in considering whether the Court should exercise its discretion under s 180(4)(f) it is relevant to consider the factual merits evidence. 5. After discussion with me this morning, counsel agreed – subject to their final consideration – that the following (or similar) questions of construction of the Council order and of the Local Government Act arise on the issues that the parties, between them, wish to raise and that they might be suitable for preliminary determination: 1. Whether on the proper construction of the order, reason 1(b) in the Council orders is limited to the reasons in 1(c). 2. If so, was there power to issue the order under s 124 of the Local Government Act. 3. (a) If the answer to question 1 is no and reason 1(b) is not limited by 1(c) or is otherwise a source of power, whether the order is invalid because of inadequacy of reasons. 4. (b) In determining question 3(a), whether the respondent can lead and rely upon evidence. 5. If the order is invalid, whether the Court has power to make an order under s 180(4) of the Local Government Act. 1. There seems to be agreement between counsel that if these (or similar) questions were to be ordered as preliminary matters for determination and decided in the way for which the applicant contends, the factual merits evidence would not need to be addressed, resulting in a saving of trial time in the order of two days plus related preparation time and associated expense. 2. Counsel agree that the practical way forward now is for the applicant to serve a proposed amended notice of motion listing the above (or similar) questions as proposed preliminary questions and that the parties should file and serve their written submissions relating to those questions. It is then proposed that the matter should come back before the Court shortly before the end of term at least for mention and, if Court time permits, to determine whether preliminary questions should be ordered. Those written submissions should assist the Court and the parties to determine whether those questions or any of them are suitable for determination as preliminary questions. They will not add to the costs of the proceedings because they would be required even if not preliminary questions are ordered. 3. Finally, the applicant's notice of motion sets out further orders that I was told were intended to be consequential if the Court were to determine that the Council order is invalid. Senior counsel for the applicant acknowledges that they should be refined so as to limit consequential orders to orders that the appeal be allowed, that Council treat the purported s 124 order as a nullity, and such further or other orders as the Court considers appropriate. 4. By consent the Court makes the following directions: 1. The applicant is to serve a proposed amended notice of motion by 25 November 2015 incorporating the proposed questions for preliminary determination. 2. The applicant is to file and serve his submissions on the proposed questions by 3 December 2015. 3. The respondent is to file and serve its submissions on the proposed questions by 16 December 2015. 4. Stand over the applicant's notice of motion to 17 December 2015 for mention or determination (as Court time may permit), if possible before Biscoe J. ********** 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: 23 November 2015