Al Maha Pty Ltd v Huajun Investments Pty Ltd

1. [1]

   SACKVILLE AJA: The applicant commenced proceedings in the Common Law Division on 25 May 2018. By a summons filed on that date (Original Summons) the applicant sought judicial review of a decision of the second respondent (Commissioner), a Commissioner of the Land and Environment Court (L & E Court).

2. [2]

   On 26 February 2018, the Commissioner determined a Class 1 application in which the first respondent (Huajun) appealed against the deemed refusal of the third respondent (Council) to grant development consent for a large scale residential development in Strathfield. The appeal by Huajun was filed pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) (NSW). [1]

3. [3]

   The Commissioner made orders allowing Huajun’s appeal and granting development consent for the demolition of existing dwellings and structures on the site and the construction of an eight storey building containing 63 residential apartments. [2] The Commissioner made the orders after the parties to the Class 1 application reached agreement at a conciliation conference. In that situation the Commissioner must dispose of the proceedings in accordance with the decision in the terms acceptable to the parties provided the decision is one that the Court could have made in the proper exercise of its functions. [3] The Commissioner is also required to set out in writing the terms of the decision. The Commissioner’s reasons are brief, comprising four paragraphs in all.

4. [4]

   The applicant is the owner of land adjoining the development site. The applicant lodged an objection with the Council to Huajun’s development application. The applicant received notice of Huajun’s Class 1 application [4] but did not apply to be made a party to the proceedings. The applicant is not entitled to appeal to the L & E Court against the Commissioner’s decision as such appeals may be made on questions of law but only by parties to the proceedings. [5]

5. [5]

   In the Original Summons the applicant alleged that the Commissioner committed a jurisdictional error because the proposed development encroaches on its land and it had not given consent to the development application as required by cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). The applicant sought an order in the nature of certiorari quashing the Commissioner’s decision and a declaration that the development consent granted by the Commissioner is void.

Applicant’s motion

1. [6]

   On the same day as it filed the Original Summons, the applicant filed a motion seeking an order pursuant to s 149B of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) transferring the proceedings from the Common Law Division to the L & E Court. Sections 149B and 149E of the Civil Procedure Act provide as follows:

2. [7]

   The applicant’s motion also sought an order relieving it of the requirement under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.45(3) to provide the documents referred to in sub-rules 45(3)(d) and (e). UCPR 51.45 relevantly provides as follows:

3. [8]

   The basis of the transfer application was explained in an affidavit sworn by the applicant’s solicitor on 25 May 2018:

The “slip” rule

1. [9]

   The next step in this moveable feast came on 7 June 2018. On that date the Commissioner added “Amendments” to his decision of 26 February 2018 as follows:

2. [10]

   On 7 June 2018 a document headed “Notice of Orders Made” recorded the “Amendments” made to the Commissioner’s original decision. The present applicant was not a party to the consent orders apparently filed or handed up by Huajun and the Council in the L & E Court.

Judgment of Fagan J

1. [11]

   The applicant’s motion for transfer of the proceedings to the L & E Court came before Fagan J on 8 June 2018. Although his Honour did not say so in the judgment he delivered, it seems that Huajun consented to or at least did not oppose the applicant’s motion.

2. [12]

   In a judgment delivered on 12 June 2018 his Honour directed that the Common Law proceedings be removed into the Court of Appeal. [7] Fagan J pointed out, correctly, that the judicial review proceedings should have been commenced in this Court. This conclusion follows from the terms of s 48 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). Section 48(2)(d) of the Supreme Court Act assigns to the Court of Appeal proceedings in the Court for (among other things) an order commanding or otherwise requiring the removal into the Court of any matters before a “specified tribunal”, whether for the purpose of quashing or otherwise. [8] A “specified tribunal” is defined to include the “Land and Environment Court or a Judge of that Court”. The decision of the Commissioner in the present case is deemed to be a decision of the L & E Court. [9]

3. [13]

   It appears that the applicant may have been mistakenly advised by the registry to file the judicial review proceedings in the Common Law Division. Fagan J accepted that despite the proceedings incorrectly having been commenced in the Common Law Division, the proceedings could be continued and disposed of in the Division. [10] Nonetheless, his Honour considered that it was appropriate to make an order removing the proceedings into the Court of Appeal. [11]

4. [14]

   Fagan J gave two reasons for removing the proceedings into this Court. First, is the policy of Parliament, reflected in s 48 of the Supreme Court Act, that the Supreme Court’s supervisory jurisdiction should be exercised by the Court of Appeal and not a single Judge of a Division. [12] Secondly, any decision his Honour made on the application to transfer the proceedings to the L & E Court would not be subject to appeal. [13] His Honour thought it appropriate that the applicant have the opportunity to have the transfer application determined by the Court of Appeal. [14]

5. [15]

   Fagan J nonetheless observed that he did not think that the case for a transfer to the L & E Court was clear-cut, for three reasons:

6. [16]

   It does not appear from Fagan J’s judgment that his Honour’s attention was drawn to the “Amendments” made to the Commissioner’s decision pursuant to the slip rule.

Amended Notice of Motion

1. [17]

   On 13 June 2018, the applicant filed an amended notice of motion. The amended motion deleted the proposed order transferring the judicial review proceedings to the L & E Court. Instead the amended motion sought the following relief:

2. [18]

   The draft amended summons (Amended Summons) seeks additional relief as follows:

3. [19]

   The draft additional grounds are as follows:

4. [20]

   For reasons that are not clear I did not receive the applicant’s amended notice of motion or the draft amended summons until the morning of the hearing. To add to the flavour of a moveable feast, at the outset of the hearing Mr Leggat SC, who appeared for Huajun, indicated that in view of the applicant’s change of heart Huajun now wished to file its own motion seeking an order pursuant to s149B of the Civil Procedure Act that the judicial review application be transferred to the L & E Court. Huajun was given leave to file in court a motion seeking such an order. In his oral submissions Mr Leggat indicated that Huajun opposed the relief sought in the applicant’s amended motion.

Amended Summons

1. [21]

   Mr Leggat did not claim that Huajun would suffer any prejudice in a relevant sense if leave was given to the applicant to file the Amended Summons. Mr Leggat’s main contention, as I understood it, was that draft Grounds 3, 4 and 5 have insufficient prospects of success to warrant granting leave to amend at this stage of the proceedings. In addition Mr Leggat submitted that the object of UCPR r 51.45(3) and (5) is to ensure that an applicant has formulated its case at the time the summons seeking judicial review is filed and that caution should be exercised before permitting substantive amendments to be made.

2. [22]

   Ground 4 of the draft amended summons raises an issue that may be of some significance and in my view is reasonably arguable. It is hardly surprising that Ground 4 was not included in the Original Summons since the “Amendments” to the Commissioner’s decision had not been made at that point.

3. [23]

   Ground 5 is perhaps of more doubtful merit because the applicant was not a party to the proceedings in the L & E Court and had not sought to be joined to the proceedings. Nonetheless, Ground 5 is closely related to Ground 4 and, in the absence of prejudice to Huajun, the applicant should be permitted to rely on it in the proceedings.

4. [24]

   Ground 3 raises quite separate issues. Mr Leggat submitted that Ground 3 is essentially an attempt to canvas the merits of the Commissioner’s decision and does not identify anything that can be characterised as a jurisdictional error or error of law on the fact of the record (both of which are now relied on by Huajun).

5. [25]

   In my opinion it is at least arguable that Ground 3 raises a genuine question suitable for determination on an application for judicial review, namely whether the Commissioner’s decision was one that the Court could have made in the proper exercise of its functions within the meaning of s 34(3) of the L & E Court Act. It undoubtedly would have been better if the applicant had identified this ground in the Original Summons. However in the absence of prejudice to Huajun, I do not think that the applicant should be shut out from relying on Ground 3.

6. [26]

   Accordingly, the applicant should be granted leave to file the Amended Summons.

Transfer to the L & E Court

1. [27]

   Mr Leggat essentially adopted the arguments advanced on behalf of the applicant when it sought an order transferring the proceedings to the L & E Court. Mr Leggat contended that the proceedings would be heard more quickly in the L & E Court which in any event had specialist expertise that made it the more suitable forum to determine the judicial review application.

2. [28]

   Fagan J expressed the view that it was not appropriate for the matter to be transferred to the L & E Court. The position has changed since his Honour delivered judgment in that the applicant has withdrawn its motion and Huajun has filed its own transfer motion. Much of Fagan J’s reasoning is, however, applicable to Huajun’s motion.

3. [29]

   I do not accept Mr Leggat’s submission that the L & E Court has special expertise in relation to the issues raised by the amended summons such that it is the more appropriate forum to determine the judicial review application. This conclusion involves no disrespect whatsoever to the L & E Court. The issues raised by the amended summons are characteristic of judicial review applications. They include questions of statutory construction and the scope of a court’s power to correct or modify its own judgments. These are matters which, as Fagan J pointed out, Parliament has directed ordinarily should be decided by the Court of Appeal. This is not a case, for example, where the Court of Appeal is asked to conduct a merits review of a decision to grant a development consent.

4. [30]

   Grounds 4 and 5 of the Amended Summons raise potentially significant issues as to the circumstances in which parties to a Class 1 application can consent to an amendment to orders made by the L & E Court, in circumstances where the effect may be to prejudice a non-party. Again it involves no disrespect to the L & E Court to observe that there are reasons why it is appropriate for the Court of Appeal to exercise the jurisdiction conferred on it by statute to determine questions relating to the powers of the L & E Court rather than for an order to be made transferring the matters to that Court.

5. [31]

   Nor do I accept Mr Leggat’s argument that the L & E Court is the appropriate forum because it will provide an earlier hearing. The groundwork for that argument has not been laid. No evidence has been adduced as to why the matter is to be regarded as urgent and no application has been made to this Court to grant an expedited hearing. If and when such an application is made it will be decided on its merits.

6. [32]

   Mr Leggat drew attention to V’Landys v Land and Environment Court. [17] In that case Biscoe J recorded that the Court of Appeal had made an order for the transfer to the L & E Court of an application for prerogative relief in the nature of certiorari quashing a decision of a Commissioner. Fagan J observed that he had been unable to determine whether the transfer in V’Landys had been made by consent or otherwise. Huajun’s submissions on the present motion have not carried the matter further.

7. [33]

   In Young v King, [18] Basten JA expressed the view that it would not be appropriate to transfer to the L & E Court an application for judicial review of “the very court whose orders are the subject of the relief sought”. [19] The circumstances in Young v King were not identical to the present case in that the decision of the L & E Court in that case was made by a Judge of the Court rather than a Commissioner. Nonetheless in my opinion similar considerations apply to an application for judicial review of a decision of the Commissioner which is deemed by statute to be a decision of the Court. I do not suggest that there can never be circumstances in which it is appropriate to transfer proceedings seeking judicial review of a decision made by a Commissioner of the L & E Court. But the circumstances would need to be much more compelling than are present in this case.

8. [34]

   I therefore I propose to dismiss Huajun’s motion.

Rule 51.45

1. [35]

   The applicant submitted that it should not have to provide a folder including its written submissions or the documents it relies on [20] until Huajun complies with a notice to produce issued by the applicant. I was informed that Huajun has filed a motion seeking to have the notice to produce set aside.

2. [36]

   I expressed the view at the hearing that the applicant should comply with the requirements of sub-rr 45(3)(d) and (e) and 45(5)(c) as best it can. Once the dispute relating to the notice to produce is resolved the applicant can seek such leave as may be necessary to amend the documents it has filed and served.

3. [37]

   I therefore made the following directions at the hearing:

Costs

1. [38]

   Neither party disputed that the costs of the various motions should be the costs in the appeal.