Al Maha Pty Ltd v Huajun Investments Pty Ltd

The applicant commenced these proceedings for judicial review of a decision of the Land and Environment Court by summons filed on 25 May 2018. On the same day it filed a notice of motion seeking the following orders:

That notice of motion has come before the Court in the Common Law duty list in circumstances of some urgency from the applicant’s point of view. The decision of the Land and Environment Court which is sought to be reviewed was made by Commissioner Smithson on 26 February 2018. She had before her a Class 1 application by the first respondent, a developer, against the deemed refusal of the third respondent, Canada Bay Council, to grant consent to a Development Application. The Development Application had been lodged with the Council on 1 November 2016 and the deemed refusal had arisen by 2 May 2017, on which date the third respondent commenced its proceedings in the Land and Environment Court.

Following conciliation pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) the parties agreed upon the terms of a decision that was acceptable to them. The Commissioner was satisfied the decision was one the Land and Environment Court could have made in the proper exercise of its functions and concluded that s 34(3)(a) of the Land and Environment Court Act therefore required her to dispose of the proceedings in accordance with the agreed decision. The principal orders made, accordingly, were that the appeal was upheld and that DA No N0429/16, for demolition of existing structures on land at 38-42 Leicester Avenue Strathfield and construction of a multi-story residential building, was approved subject to extensive conditions.

The applicant in this Court is the registered proprietor of land at 36 Leicester Avenue, adjoining the development site. It contends that the plans which are part of the Development Approval granted under the Commissioner’s order of 26 February 2018 “show a driveway to be constructed in part over the applicant’s property”. Ground 1 in the summons alleges jurisdictional error on the part of the Commissioner in that the development the subject of the Approval relates to the applicant’s land, by virtue of the encroachment of the designed driveway, and the applicant had not given consent in writing as required by cl 49(1) of the Environmental Planning and Assessment Regulation 2000. Ground 2 is, in substance, repetitive of this point.

The Commissioner’s decision is deemed to be a decision of the Land and Environment Court: s 36(3). Either party to a Class 1 application may appeal, on a question of law, to the Court constituted by a single judge: ss 6(1) and 56A(1). The applicant had no standing to be joined as a party to the Class 1 proceedings. The limited right of appeal is therefore not available to it. Its only recourse is judicial review, for which it has an interest greater than that of members of the public generally, sufficient to give it standing to claim relief under s 65 or s 69 of the Supreme Court Act 1970 (NSW): Lowy v The Land and Environment Court of NSW [2002] NSWCA 353 at [107] (Giles JA).

However, having commenced this proceeding for judicial review the applicant contends it would more appropriately be determined in the Land and Environment Court where a greater measure of expedition is said to be available. It is said, also, that the factual substratum of the alleged error of law on the face of the record concerns a subject matter with which the Land and Environment Court has greater familiarity and expertise than the Supreme Court. The applicant invokes ss 149B and 149E of the Civil Procedure Act 2005 (NSW) as the source of power in this Court to transfer the application for judicial review to the Land and Environment Court. Those sections provide as follows:

If I should proceed to determine the notice of motion for transfer, it is subs (1) of s 149B that would have to be considered. The first respondent’s Class 1 proceeding has been finally determined by the Commissioner’s orders of 26 February 2018. There are no “related proceedings pending” in the Land and Environment Court, meaning subs (2) has no application.

By sub-ss (1)(a)(i) and (2) of s 48 of the Supreme Court Act the applicant’s summons for judicial review is assigned to the Court of Appeal. The applicant attempted to file its summons in the Court of Appeal but was directed by the registry to file it in this Division. I consider that that was an erroneous assignment. It is open under s 51(1)(d) for the proceedings nevertheless to continue and be disposed of in this Division but I do not think that should occur. Rather, pursuant to s 51(1)(b), I should order that the applicant's summons and notice of motion be removed into the Court of Appeal.

One reason for that conclusion is that it is clearly the policy of the legislature, reflected in s 48 of the Supreme Court Act, that this Court’s supervisory jurisdiction with respect to other superior courts of record should be dealt with by the Court of Appeal and not by a single judge in the Common Law Division. The desirability of that assignment of business is self-evident. There may be some proceedings within the scope of s 48 which, if commenced in the Common Law Division, might nevertheless conveniently and appropriately continue before a single judge of the Division pursuant to s 51(1)(d). But I do not think that provision should be applied to allow so important a question as whether or not the Land and Environment Court has exceeded its jurisdiction to be decided by single judge of the Supreme Court.

A second reason for ordering that these proceedings be removed into the Court of Appeal, where they should rightly have been commenced, is that a decision by me on the application for transfer of the judicial review summons to the Land and Environment Court would not be appellable: s 149B(3). For reasons to which I will refer shortly I would not be willing to make the order for transfer of the proceedings to the Land and Environment Court pursuant to s 149B. I would consider it unfair to the applicant that I should proceed to dismiss the notice of motion, thereby constraining the applicant to prosecute its claim for judicial review before a single judge of this Division, in circumstances where the applicant has only found itself in this list by misdirection from the registry and where, had that not occurred, the applicant would have been able to obtain a decision of the Court of Appeal on the question of transfer.

Of course, if it were very clear that the applicant’s summons ought to be transferred to the Land and Environment Court then it would be most efficient for me to do that rather than remove it into the Court of Appeal. However I do not consider that there is a clear case in favour of such transfer. For one thing, in the Land and Environment Court the summons would have to be determined by a single judge. Such a proceeding does not fall within any of the classes of litigation contemplated by the Land and Environment Court Act, being Classes 1-8 defined in Pt 3 Div 1, and the Court would have jurisdiction only by force of s 149E of the Civil Procedure Act. The effect of transferring the proceedings would be in substance to enable the applicant to argue before a single judge a question of law arising from a Commissioner’s decision made in a proceeding to which the applicant was not a party, in circumstances where the Land and Environment Court Act appears to be deliberately structured to exclude intervention by individual third-party objectors such as the applicant.

Secondly, such authority as can be found appears to be against the transfer that is sought by the applicant. Young v King [2016] NSWCA 282 was an appeal to the Court of Appeal concerning multiple proceedings in the Land and Environment Court. One proceeding was an application for judicial review of a decision of a judge of the Land and Environment Court. The judicial review had been sought by summons in the Common Law Division. This was removed into the Court of Appeal and then by consent transferred to the Land and Environment Court pursuant to s 149E of the Civil Procedure Act. Basten JA (with whom Gleeson JA agreed in this respect) made these observations:

There are two differences between the circumstances of the present case and those of Young v King. First, the present applicant is not seeking relief in the nature of mandamus or prohibition but rather an order quashing the decision of the Commissioner, being in the nature of certiorari. Secondly, in Young v King the consent transfer under s 149B had the effect that a single judge of the Land and Environment Court was required to undertake a supervisory review of a single judge decision. In the present case a single judge would be reviewing the decision of a Commissioner. Notwithstanding these differences I consider the reasoning of Basten JA in Young v King is, in principle, against transferring an exercise of the supervisory jurisdiction into the hands of the court or tribunal whose decision is to be reviewed.

The applicant cited V’landys v Land and Environment Court (NSW) [2012] NSWLEC 218 in which the applicant sought relief in the nature of certiorari to quash a decision of a Commissioner. The Commissioner’s decision was to grant development consent in a Class 1 application, similar to the present situation. Biscoe J summarised the procedural history, at [1], as follows:

I have not been able to ascertain to my own satisfaction whether the transfer pursuant to s 149B(1) in that case was by consent or by order following argument. The applicant was not able to provide a copy of any reasons which may have been given by the Court of Appeal and I have not been able to find any such reasons myself within the short timeframe imposed by the procedural requirements of this case. In the absence of a full appreciation of the circumstances, in particular whether the transfer order was made by consent, I do not regard this precedent as a satisfactory basis upon which I should consider it “appropriate” to transfer the applicant’s judicial review summons to the Land and Environment Court, as sought in the notice of motion.

I do not consider the applicant’s arguments concerning greater expedition available in the Land and Environment Court and superior expertise with respect to the factual substratum have any weight. The question of transfer of an exercise of supervisory jurisdiction from the Court of Appeal, which would ordinarily exercise it, back to the court which is subject to the supervision is one affected by substantial considerations of principle, to which factors such as judicial expertise with respect to facts and relative degrees of expedition in the two courts would have to give way.

As I have concluded that the proceedings should be removed into the Court of Appeal, I will not determine the second part of the applicant’s notice of motion, namely, whether it should be relieved of the obligation under r 51.45(3) of the Uniform Civil Procedure Rules 2005 to supply with its summons for judicial review written submissions and any other documents it is seeking to rely upon. Any relaxation of that requirement must be reserved to the Court of Appeal, where the summons is to be dealt with substantively.

For these reasons it is ordered: