Byron Shire Council v Ardill Payne and Partners

[2019] NSWLEC 153

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byron Shire Council v Ardill Payne & Partners [2019] NSWLEC 153
Hearing dates:	9 October 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 1
Before:	Duggan J
Decision:	See paragraph 14
Catchwords:	ENVIRONMENT AND PLANNING - Land and Environment Court - practice and procedure - extension of time for appeal - UCPR 50.3 - exercise of discretion - leave granted
Legislation Cited:	Land and Environment Court Act 1979 Uniform Civil Procedure Rules
Cases Cited:	Jackamarra v Krakouer (1998) 195 CLR 516 Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151
Category:	Procedural and other rulings
Parties:	Byron Shire Council (Applicant) Ardill Payne & Partners (Respondent)
Representation:	Counsel: Mr M Dalla-Pozza Mr M Young (solicitor)   Solicitors: HWL Ebsworth Lawyers McCartney Young Lawyers
File Number(s):	2019/267067
Publication restriction:	No

Judgment

Background

1. On 27 August 2019, the Appellant (the Council) commenced, by Summons, an appeal pursuant to s 56A of the Land and Environment Court Act1979 (LEC Act). By Notice of Motion filed on 19 September 2019 (the Notice of Motion) the Council seeks an order that:

Pursuant to Rule 7.3 of the Land and Environment Court Rules, 2007, the time for commencement of this Appeal be extended to 28 August, 2019.

2. The Respondent indicated that it neither consented nor opposed the order sought in the Notice of Motion and did not rely on any evidence or assert any prejudice in the event that the order was made.

Evidence

3. The Council read the affidavit of Ralph James sworn 18 September 2019, which set out the reasons the Summons was filed out of time. The evidence discloses that:

1. The Council was advised by its external solicitors that the appeal time was 60 days from the date of the judgment of the Commissioner which was delivered on 27 June 2019;

2. The solicitor calculated the date upon which the Summons was to be filed as commencing on 28 June 2019 but did not count that day in their calculation of time. The solicitors advised that the Summons must be filed by 27 August 2019 - being 60 days from (and including) 29 June 2019;

3. It is accepted by Council that the day of 28 June should have been counted as part of the 60 day period, as a consequence the Summons was filed 1 day out of time.

4. I indicated to the parties at the time of hearing that on the day following the hearing of this Notice of Motion I was to hear the case of Northern Beaches Council v Tolucy Pty Ltd where it was being argued that the time limit for the commencement of a s 56A Appeal was 28 days and not 60 days. I indicated that I would determine that matter first in time and if I determined that the time period was 28 days I would give the parties in this matter the opportunity to make further submissions if they wished.

5. I advised the parties that I determined the appeal time was 28 days in my decision in Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151. As a consequence I invited the Appellant to file an Amended Summons (as is required by UCPR 50.30) seeking the order to extend time. I invited the Respondent to advise whether it opposed me giving leave to amend the Summons and deal with this matter as an extension of time under UCPR 50.3.

6. The Appellant has filed an Amended Summons seeking an additional order that:

1A Pursuant to Rule 50.3 of the Uniform Civil Procedure Rules 2005, the time for the commencement of this Appeal be extended to 27 August 2019.

7. The Respondent does not oppose leave or the disposal of this matter pursuant to the UCPR. Both parties indicated that they did not wish to make further submissions.

Submissions and findings

8. The parties accepted that the discretion should be exercised judicially having regard to the general principles as set out in Jackamarra v Krakouer (1998) 195 CLR 516 that indicated the relevant considerations in considering the exercise of a discretion to extend time for appeal as including (but not limited to):

1. The length of the delay;

2. The reasons for the delay;

3. The prejudice to the parties if the extension of time is, or is not, granted; and

4. The strength of the Applicant’s case.

9. In this case I accept the Council’s submission that even if the time for appeal is 28 days (and therefore the delay was 33 days) the length of the delay was still relatively small. The reason for the delay, being the miscalculation of time by the external solicitor is also a fair explanation. The fact that the time was calculated as 60 days does not affect the exercise of my discretion in this matter as, but for the decision I recently handed down, it was not unreasonable for a solicitor to calculate the time having regard to the LEC Rule rather than the UCPR.

10. As to the merits of the Appeal, I note that I am not required in a case such as this to delve too deeply into the merits of the appeal but rather to determine if the appeal grounds are hopeless. In considering this issue I express no opinion as to the prospects of success of the Council’s Appeal. I do not consider that on its face the Appeal is hopeless such that I would not exercise my discretion to extend time. I further note that no submissions were made to me by the Respondent asserting that the Appeal had little or no prospects.

11. I also take into account that the Respondent does not assert any prejudice as a consequence of the extension of time for appeal and seeks not to make submissions in connection with this application – leaving it to the Applicant to satisfy the Court as to the relevant matters for the exercise of the discretion.

12. For the reasons I have set out above, I determine that in this case it is appropriate to exercise the discretion to extend the time for commencement of the Appeal.

13. I note that the 56A Appeal has been the subject of directions for the preparation of the matter for hearing and that a hearing date has been fixed. It does not, therefore, appear necessary, at this stage, for any further directions to be made in the substantive proceedings.

Orders

14. The Court orders that:

1. The Appellant be granted leave to amend the Summons in accordance with the Amended Summons filed 24 October 2019;

2. Pursuant to UCPR 50.3(1)(c) the time for commencement of the Appeal be extended to 27 August 2019;

3. The Appellant is to pay the Respondent’s costs of the hearing of the extension of time, as incurred either pursuant to the Amended Summons referred to in Order 1 or the Notice of Motion referred to in Order 4.

4. The Appellant’s Notice of Motion filed 19 September 2019 is dismissed.

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Decision last updated: 29 October 2019