City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 2)

[2017] NSWLEC 134

Land and Environment Court

New South Wales

Medium Neutral Citation:	City of Ryde Council v Principal Healthcare Finance Pty Ltd (No 2) [2017] NSWLEC 134
Hearing dates:	22 September 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Class 1
Before:	Molesworth AJ
Decision:	See orders at [75]
Catchwords:	PRACTICE AND PROCEDURE – application for proceedings to be dismissed under rule 13.4 of Uniform Civil Procedure Rules 2005 – whether reasonable cause of action disclosed – whether applicant estopped from raising issues subject of appeal – whether proceedings constitute abuse of process
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 80 Land and Environment Court Act 1979, ss 56A, 57 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 14, 15, 18; Ch 3 Uniform Civil Procedure Rules 2005, rr 13.4, 28.2
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Agius v New South Wales [2001] NSWCA 371 Attorney-General v Oates (1999) 198 CLR 162; [1999] HCA 35 Batistatos v Roads and Traffic Authority (NSW) 226 CLR 256; [2006] HCA 27 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18 Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep) Principal Healthcare Finance Pty Ltd v City of Ryde Council [2017] NSWLEC 1300 Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Shaw v New South Wales [2012] NSWCA 102 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Category:	Procedural and other rulings
Parties:	City of Ryde Council (Applicant) Principal Healthcare Finance Pty Ltd (Respondent)
Representation:	Counsel: Mr C J Leggat SC with Mr H El-Hage (Applicant) Ms S Duggan SC (Respondent)   Solicitors: Holding Redlich (Applicant) Mills Oakley (Respondent)
File Number(s):	2017/00225184
Publication restriction:	N/A

Judgment

A motion is brought seeking the summary dismissal of appeal proceedings

1. On 23 May 2017, Brown C upheld – with the consent of the parties and after a consent orders hearing – an appeal by Principal Healthcare Finance Pty Ltd (‘Healthcare’) against the refusal of a development application (being Local Development Application 2014/0419) “for the demolition of an existing aged care facility, improvements on other lots and construction of a new aged care facility at 8-14 Sherbrooke Road and 78-82 Mons Avenue, West Ryde” (‘the development application’): See Principal Healthcare Finance Pty Ltd v City of Ryde Council [2017] NSWLEC 1300 (‘the primary decision’).

2. Consequently, and concurrently with upholding the appeal, Brown C granted consent to the development application, subject to deferred commencement conditions of consent imposed pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979. Of the many conditions of consent, it is convenient to immediately set out Conditions 15 and 16:

15. Restrictions on occupation of the development. Only the kinds of people referred below may occupy the residential care facility:

a) Seniors or people who have a disability

b) People who live within the same household with seniors or people who have a disability

c) Staff employed to assist in the administration of and provision of services to housing provided under this policy.

For the purposes of this condition, Seniors is defined as any of the following:

a) People aged 55 or more years,

b) People who are resident at a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided,

c) People who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.

For the purposes of this condition, people with a disability is defined as people of any age who have, either permanently of for an extended period, one or more impairments, limitations or activity restrictions that substantially affects their capacity to participate in everyday life.

16. Further restriction on occupation of the development. Notwithstanding the above condition, the development may only be occupied by residents which (sic) require high level care. For the purposes of this condition, high level care means care provided either by registered nurses, or under the supervision of registered nurses, on a 24 hour / day basis to people who need almost complete assistance with most activities of daily living. Nursing care is combined with accommodation, support services (cleaning, laundry and meals), personal care services (help with dressing, eating, toileting, bathing and moving around), and allied health services (such as physiotherapy, occupational therapy, recreational therapy and podiatry).

3. On 24 July 2017, by way of Summons, City of Ryde Council (‘the Appellant Council’) – who was the respondent in the proceedings before Brown C – commenced an appeal, pursuant to s 56A of the Land and Environment Court Act 1979, of the primary decision; seeking to set the decision and the Commissioner’s consequential orders aside and have the proceedings remitted for re-consideration.

4. The principal ground upon which the Appellant Council bases its appeal is that the Commissioner allegedly erred in law in deciding to impose Condition 16 in circumstances where he had no power so to do. This is said to be because the imposition of such a condition was precluded by clause 18 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (‘the SEPP’).

5. On 25 August 2017, Healthcare filed a Notice of Motion seeking an order that these appeal proceedings be summarily dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (‘the Procedure Rules’) and an order for its costs of the proceedings (on an indemnity basis).

6. In essence, Healthcare claims that the proceedings should be dismissed on two bases: first, because no reasonable cause of action has been disclosed (r 13.4(1)(b)) and secondly, because the proceedings constitute an abuse of process (r 13.4(1)(c)). With respect to the former basis, Healthcare argues that the Commissioner made no error of law and that the Appellant Council should be estopped or barred from raising the relevant issues the subject of the appeal. With respect to the latter basis, Healthcare argues that, inter alia, it would be “inappropriate to invalidate the process of the Court through a change of mind of the consenting party”.

7. The Appellant Council denies the claims made by Healthcare in support of its motion. It asserts that its appeal has real prospects of success, is not an abuse of process, and should not be summarily dismissed. Hence, the Appellant Council submits that the Court should dismiss the motion with costs.

8. It is the Court’s task to determine whether or not these appeal proceedings should be summarily dismissed. For reasons that will be explained below, the Court has decided not to summarily dismiss the proceedings. To properly contextualise the Court’s reasons for so deciding, it is appropriate to first briefly outline: the relevant statutory provisions; the established legal principles with respect to the summary dismissal of proceedings; and the competing positions of the parties.

The relevant statutory provisions

The SEPP

9. The objective of Chapter 3 of the SEPP “is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age”: cl 14. To this end, Chapter 3 has the effect of permitting development (with development consent) for the purpose of seniors housing on land zoned primarily for urban purposes or on land adjoining such land: cl 15.

10. However, whilst Chapter 3 permits such development, it also imposes restrictions on who may occupy the seniors housing that is permitted by the SEPP. Relevantly, cl 18 provides as follows:

18 Restrictions on occupation of seniors housing allowed under this Chapter

(1) Development allowed by this Chapter may be carried out for the accommodation of the following only:

(a) seniors or people who have a disability,

(b) people who live within the same household with seniors or people who have a disability,

(c) staff employed to assist in the administration of and provision of services to housing provided under this Policy.

(2) A consent authority must not consent to a development application made pursuant to this Chapter unless:

(a) a condition is imposed by the consent authority to the effect that only the kinds of people referred to in subclause (1) may occupy any accommodation to which the application relates, and

(b) the consent authority is satisfied that a restriction as to user will be registered against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, limiting the use of any accommodation to which the application relates to the kinds of people referred to in subclause (1).

(3) Subclause (2) does not limit the kinds of conditions that may be imposed on a development consent, or allow conditions to be imposed on a development consent otherwise than in accordance with the Act.

The Procedure Rules

11. Part 13 of the Procedure Rules regulates the summary disposal of proceedings. In particular, rule 13.4 confers power on the Court to summarily dismiss proceedings. In full, rule 13.4 provides:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

The legal principles concerning summary dismissal

12. The relevant established legal principles with respect to the summary dismissal of proceedings were summarised by Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]–[200]. I adopt his Honour's summary in that decision, which was as follows:

[196] It is not in dispute that “great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal”: General Steel IndustriesIncv Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

[198] Subsequent authorities have reaffirmed that formulation: see Batistatosv Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

“The question is...whether the claims in question are so obviously untenable or groundless that there is ‘a high degree of certainty’ that they will fail if allowed to go to trial; and whether this is one of the ‘clearest of cases’ in which the court may accordingly intervene to prevent the claims being litigated.”

[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd vMcWilliam(Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agiusv New South Wales [2001] NSWCA 371 at [24].

13. With respect to the meaning of the phrase “abuse of the process of the court”, it is instructive to set out what was said by the majority of the High Court in Batistatosv Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [9] and [14]-[15] (citations omitted):

[9] What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum …

[14] In Ridgeway v The Queen, Gaudron J explained:

“The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.”

[15] Earlier, in Rogers v The Queen, McHugh J observed:

“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.”

Healthcare’s claim that the proceedings should be dismissed

No reasonable cause of action disclosed

14. As mentioned above, Healthcare’s claim that the appeal proceedings disclose no reasonable cause of action (within the meaning of rule 13.4(1)(b) of the Procedure Rules) is based on the following three primary arguments.

15. First, Healthcare contended that the cause of action discloses no error of law. Secondly, Healthcare argued that the Appellant Council should be estopped from agitating the issues that underpin these appeal proceedings. Thirdly, Healthcare submitted that the Appellant Council should be confined to the issues that it raised before the Commissioner at first instance.

16. With respect to its first contention, Healthcare identified its starting point as the proposition that a Commissioner hearing Class 1 proceedings is only obliged to determine the real issues in dispute between the parties: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [42]-[43], [94] and [99]. That is, the “issue needs to be joined between the parties” (Transcript, p 18).

17. Critically, Healthcare submitted that the evidence demonstrates that the imposition of Condition 16 (which is the basis for the Appellant Council’s appeal of the primary decision) was not in issue in the consent orders hearing. In particular, Healthcare emphasised that: the Amended Statement of Facts and Contentions before the Commissioner did not identify the legality of Condition 16 as an issue; Condition 16 was included in the agreed draft conditions of approval prepared by the Appellant Council and provided to the Court (and, earlier, the Joint Regional Planning Panel); and the Appellant Council elected not to make any substantive submissions concerning the lawfulness of Condition 16 (cf, the submissions of one objector, Mr Gideon Reiss: see Exhibit 1, pp 956-957 and the affidavit of Ms Ashleigh Cooper affirmed 5 September 2017, pars 23 and 24).

18. In these circumstances, Healthcare argued that the Commissioner “has raised no error of law by imposing a condition on which there was no dispute, no submissions and was requested to be made by consent”. In other words, Healthcare said that “…if there is an error it wasn’t made by the Commissioner, it wasn’t determined by the Commissioner, there is no decision of the Commissioner other than to grant the consent in the manner in which he was invited to do so” (Transcript, p 18). Additionally, Healthcare submitted that there is no inconsistency between Condition 16 and the SEPP (including, in particular, clause 18) and, therefore, the Commissioner did not fall into error in imposing Condition 16.

19. With respect to its second contention, Healthcare contended that no reasonable cause of action has been disclosed because the Appellant Council should be estopped from raising, on appeal, the matters the subject of the present appeal proceedings. The reason why the doctrine of estoppel was said to be enlivened is because the Appellant Council allegedly induced Healthcare to assume that it would refrain from acting inconsistently with its representations that: it would consent to the approval of the development application subject to the relevant conditions; no issues remained in the proceedings; the proceedings could be finalised by way of a consent orders hearing; or, alternatively, that the conditional consent was capable of being lawfully granted to the development application.

20. Given that Healthcare has relied on these representations, Healthcare asserted that it would be unconscionable for the Court to permit the Appellant Council to not be bound by these representations such that it is entitled to now challenge the lawfulness of an uncontested condition of consent: citing Commonwealth v Verwayen (1990) 170 CLR 394 at 500-501; [1990] HCA 39. In particular, Healthcare asserted that the detriment that it has suffered is that it “forwent the opportunity to have a hearing” before the Commissioner, which has resulted in unnecessary delay (Transcript, p 19, line 9) by reason of the s 56A appeal now having to be fought.

21. Furthermore, Healthcare emphasised that estopping the Appellant Council from proceeding with its appeal would not conflict with any statutory function or duty that the Appellant Council holds: distinguishing Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18. That is to say, the Appellant Council has no statutory duty or function to cause a development consent to be declared invalid: citing Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108. Here, in agreeing to enter into consent orders, the Appellant Council was only exercising its power to settle litigation (Transcript, p 20).

14. With respect to its third contention, Healthcare argued that the Appellant Council should be bound by the case that it ran in the Court below, rather than being permitted to raise a matter for the first time on appeal: citing Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73 at [105]-[110]. Moreover, Healthcare submitted that the Appellant Council bears the onus of demonstrating that the primary case would not have been conducted differently if the issue at the heart of these appeal proceedings had been initially raised as an issue between the parties: Dial A Dump Industries Pty Ltd v Roads and Maritime Services at [109]. If the Appellant Council were to be bound to its case at first instance, it was submitted that the appeal proceedings disclose no reasonable cause of action.

15. I interpose here to record that, early in the hearing of the motion on 22 September 2017, there was an interchange between the Court and senior counsel appearing for both parties regarding a possible overall resolution of the proceedings which the Court, on its own volition, floated (Transcript, page 1 line 40, to page 5, line 15). The Court, at that stage, was under a misapprehension that grounds 1, 2 and 3 of the Summons were all based on an argument that Condition 16 was invalid in that it had the effect of expanding the category of persons allowed by Condition 15 and, due to its conceivable breadth, was thereby inconsistent with clause 18 of the SEPP.

16. The Court observed that if the parameters of the Appellant Council’s case were consistent with the Court’s understanding, and in the context of Healthcare having agreed to the apparently intended further restriction in Condition 16, then the breadth of Condition 16 might simply be an instance of unintended ambiguity which could simply be redressed by a simple redrafting of the allegedly offending Condition. The Court then placed before the parties Condition 16 amended to read as follows (amendments underlined):

Further restriction on occupation of the development. Further to the above condition, as a further restriction, the development may only be occupied by residents (of the kind described in condition 15) who require high level care. For the purposes of this condition, high level care means care provided either by registered nurses, or under the supervision of registered nurses, on a 24 hour / day basis to people who need almost complete assistance with most activities of daily living. Nursing care is combined with accommodation, support services (cleaning, laundry and meals), personal care services (help with dressing, eating, toileting, bathing and moving around), and allied health services (such as physiotherapy, occupational therapy, recreational therapy and podiatry).

25. The hearing was adjourned for a short period to enable counsel for both parties to obtain instructions. Upon the hearing resuming, Mr Leggat, senior counsel for the Appellant Council, advised that the proceedings could not be resolved in the manner suggested by the Court. He advised the Court that: “if condition 16 was modified in the manner that your Honour suggested or modified in any way that would not provide an answer to our fundamental proposition which is that the type of facility is inconsistent with the SEPP”. The Appellant Council confirmed that its case is also that, on two alternative bases, Condition 16 is inconsistent with Condition 15 and clause 18 because it purports to unlawfully narrow the group of people able to occupy the development,

26. Ms Duggan, senior counsel for Healthcare, then made an offer, without admissions, in open court to consent to the following orders:

1. The notice of motion filed by [Healthcare] on 25 August 2017 is dismissed. 2. The [Appellant Council’s] summons filed on 24 July 2017 is upheld in part. 3. The terms of condition 16 of the Development Consent granted by the Court on 23 May 2017 be amended as follows – and that would be the wording your Honour indicated to us this morning. 4. The summons be otherwise dismissed. 5. Each party pay its own costs of the notice of motion and the summons.

27. Healthcare was prepared to concede that the Appellant Council had disclosed a reasonable cause of action in so far as it alleged that Condition 16 is inconsistent with both Condition 15 and clause 18 of the SEPP because it purports to permit a wider group of people to occupy the development than would be allowed by Condition 15 and clause 18. Hence, Healthcare offered in Court to settle the proceedings on the basis that the appeal would be upheld on the limited basis outlined above. However, stepping aside from the open offer, should the Appellant Council not settle, Healthcare maintained its position that the proceedings do not disclose a reasonable cause of action and constitute an abuse of process.

Abuse of process

28. Either in the alternative to or in addition to Healthcare’s claim that no reasonable cause of action has been disclosed; Healthcare claimed that the proceedings constitute an abuse of process. In support of this claim, Healthcare made five primary assertions.

29. First, Healthcare asserted that the orders made by Brown C were made with the consent of the parties.

30. Secondly, Healthcare claimed that the Appellant Council was, at all material times, well aware of the need to restrict those occupying the development to residents requiring a high level of care. In particular, the Appellant Council was said to have drafted the conditions of consent with full knowledge of the above issue.

31. Thirdly, Healthcare emphasised that the Appellant Council elected to make no submission with respect to the matters now raised in these appeal proceedings.

32. Fourthly, Healthcare argued that it would be inappropriate for the process of the Court to be invalidated by the Appellant Council’s “change of mind”.

33. Finally, Healthcare reiterated its contention that it would be inappropriate for the Appellant Council to be permitted, on the appeal, to raise a new issue that it elected not to raise in the Court below. Healthcare submitted that the Appellant Council should have sought leave so to do. If such leave had been sought, Healthcare maintained that it would not be granted because the Appellant Council has not provided a credible justification for its volte-face.

34. Hence, given that no reasonable cause of action has been disclosed and/or the proceedings constitute an abuse of process, Healthcare concluded that the proceedings should be dismissed and that the Court should order that the Appellant Council pay its costs of the proceedings on an indemnity basis.

The Appellant Council’s claim that the motion should be dismissed

A reasonable cause of action has been disclosed

35. Far from disclosing a case that is “obviously untenable or groundless” (Shaw v New South Wales at [32]), the Appellant Council claimed that its appeal constitutes a serious and meritorious challenge to the primary decision. In essence, the Appellant Council submitted that its case is that, due to clause 18 of the SEPP, the Commissioner acted beyond power in deciding to impose Condition 16. Hence, the Commissioner’s decision and orders were said to be infected by an error of law. In order to make this claim good, the Appellant Council advanced the following three alternative constructions of Condition 16 and clause 18.

36. First, the Appellant Council submitted that the Commissioner erred because Condition 16 purports to allow a wider group of people to occupy the development than the three categories of people specified in clause 18 of the SEPP. Whilst clause 18 restricted the Commissioner to only approving a development accommodating those groups of people specified in cl 18(1)(a)-(c), Condition 16 purports to allow people who require high level care, but do not fall within cl 18(1)(a)-(c), to be accommodated. As an example, the Appellant Council referred to a (young, non-disabled) person suffering from a life threating injury.

37. The basis for the above argument is as follows. Although the Appellant Council acknowledged that Condition 15, read in isolation, properly restricts the groups of people permitted to occupy the development to those specified in cl 18(1)(a)-(c), it was said that Condition 15 is trumped or overridden by Condition 16 because of the use of the words “[n]otwithstanding the above condition” in the second sentence of Condition 16: citing Attorney-General v Oates (1999) 198 CLR 162; [1999] HCA 35 at [33]. It was in response to this argument that the Court suggested the Appellant Council’s concern with Condition 16 could simply be addressed by a minor redrafting of the condition. As explained above, whilst Healthcare embraced that suggestion, the Appellant Council rejected it.

38. Secondly, and in the alternative, the Appellant Council submitted that the Commissioner erred because Condition 16 purports to only allow a narrower group of people to occupy the development than that group of people which is required to be permitted to occupy the development under clause 18 of the SEPP. As Condition 16 “operates to exclude occupation by the types of people referred to [in] condition 15(b)-(c), being the kinds of people described in cl 18(1)(b)-(c) of the SEPP”, the development approved by the Commissioner does not (contrary to clause 18) allow the accommodation of all of the categories of people listed in s 18(1)(a)-(c).

39. Thirdly, and in the further alternative, the Appellant Council submitted that the Commissioner erred because Condition 16 (even if read to operate harmoniously with Condition 15) purports to restrict one of the categories of people who must be allowed to occupy the development under clause 18: namely, that category of people specified in Condition 15(a) and clause 18(1)(a). Rather than permitting “people who have a disability” to be accommodated by the development as required by clause 18, Condition 16 purports to restrict that category of people to those that “require high level care”. Hence, as Conditions 15 and 16 operate to only allow people who have a disability and require high level care to accommodate the development (rather than the broader category of people who have a disability), it was said that the Commissioner’s decision to impose Condition 16 was ultra vires.

40. Hence, for all of the above reasons, the Appellant Council concluded that it has disclosed a clearly reasonable cause of action. Furthermore, the Appellant Council made the following overarching criticisms of Healthcare’s claim to the contrary.

41. First, the Appellant Council challenged Healthcare’s claim that no error of law by the Commissioner has been disclosed. In this respect, the Appellant Council denied that an appeal pursuant to s 56A of the Land and Environment Court Act 1979 may only be brought on an error of law. Instead, the Appellant Council asserted that a section 56A (and s 57) appeal is not confined to an error of law but may be brought on a question of law: citing, inter alia, Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 at [27]. Moreover, the Appellant Council submitted that it is well established that the relevant question of law need not have been explicitly stated and determined in the Court below: rather, it is sufficient if it is apparent that the decision has resolved a question of law: citing, inter alia, Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105.

42. In this context, the Appellant Council submitted that both the proper construction of an environmental planning instrument and the proper construction of conditions of development consent involve questions of law: citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322 at 287 and Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 at [99]. Critically, the Appellant Council argued that the Commissioner – in: (1) determining to approve the development application on the basis that it would be a high care facility, and (2) finding that there was no impediment to making the consent orders – “necessarily decided that condition 16 was legally permissible having regard to the requirements of the SEPP, including cl 18”. The Appellant Council claimed that this conclusion discloses an error of law for the reasons set out above.

43. Secondly, the Appellant Council denied that it is estopped from raising the issues the subject of these appeal proceedings. In short, the Appellant Council submitted that it “is well established that the doctrine of estoppel has no application in public law to preclude a challenge to an exercise of power which on the basis that the decision-maker acted ultra vires”: citing, inter alia, Hawkesbury City Council v Sammut at [57]. Further, it was submitted that its conduct in the litigation could not “overcome an absence of power” (Transcript, p 27).

44. Thirdly, the Appellant Council criticised Healthcare’s argument that the relevant matter was not raised in the Court below. Conversely, the Appellant Council asserted that the matter of the consistency of Condition 16 with cl 18 of the SEPP was raised by an objector (Mr Gideon Reiss) and was, therefore, before the Court.

45. Additionally, although neither party took issue with the validity of Condition 16, the Appellant Council noted that both parties made submissions concerning Conditions 15 and 16. Whilst the Commissioner considered the submissions made by the objectors in the proceedings, the Appellant Council emphasised that he ultimately (implicitly) concluded that those submissions did not raise any issues justifying the consent orders not being made.

46. In any event, the Appellant Council submitted that even if the matter was not raised, it could not be estopped from appealing on a pure question of law concerning the validity of a public decision: Hawkesbury City Council v Sammut. In this respect, it was emphasised that the Commissioner had an obligation to determine for himself whether the development application should be approved and, therefore, whether he had the power to do so (Transcript, p 31).

47. It should also be noted that the Appellant Council reasoned that the circumstances of this appeal are distinguished from those appeals in which allowing a new issue to be raised would have involved the adducing of evidence (Dial A Dump Industries Pty Ltd v Roads and Maritime Services) or where an issue was completely absent from the primary proceedings (Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451).

The proceedings are not an abuse of process

48. Given that, on the Appellant Council’s argument, a reasonable cause of action has clearly been disclosed and Healthcare has not provided any compelling reason why the Court would accept the converse proposition, it was submitted that these appeal proceedings cannot be an abuse of process in the way alleged.

Consideration

Is there a reasonable cause of action?

49. At the outset, it is critical to recognise that, properly understood, Healthcare does not make the bald, absolute claim that the Appellant Council has not disclosed an arguable cause of action. Rather, Healthcare’s claim is predicated on its contentions that the Appellant Council should be barred or estopped from advancing its case that the Commissioner has erred in law by deciding to impose Condition 16.

50. In particular, Healthcare maintains that: (1) the Commissioner “raised no error of law” in imposing Condition 16 because the legality of imposing Condition 16 was not an issue in dispute, (2) the Appellant Council should be estopped from appealing the validity of a condition of consent that it consented to the Commissioner making, and (3) the Appellant Council should be prevented from raising a question of law on appeal that was not raised before the Commissioner.

51. Hence, Healthcare’s case on its motion is, in effect, that because the Appellant Council cannot rely upon its cause of action on the appeal, it does not have a proper basis for bringing the action. Healthcare’s submissions are not focussed on attacking the credibility of the Appellant Council’s case that the Commissioner has made an error of law but are focussed on attacking the Appellant Council’s entitlement to rely on that case in these appeal proceedings. Healthcare appeared to concede this at the hearing when it submitted that:

The context of the Aged Care Act, the context of the SEPP, all of those matters that arise in the determination of the s 56A appeal, I am prepared to concede on the basis of what Mr Leggat has said this morning, that if that was the only issue we were looking at - that is, how condition 16 and condition 15 operate - then I could not achieve satisfaction under the relevant test for strike-out. (Transcript, p 10).

52. Assuming this position to be correct, it follows that Healthcare cannot succeed on its motion to summarily dismiss these appeal proceedings by simply persuading the Court that it should accept its propositions (1)-(3) outlined above over the competing propositions of the Appellant Council. Instead, it has to show that the Appellant Council’s substantive case is “obviously untenable or groundless” because the Appellant Council has no credible rebuttal of, or response to, those propositions.

53. If the Appellant Council is able to demonstrate that it has an arguably credible case that it: (1) is entitled to question the legality of the Commissioner imposing Condition 16, (2) is not estopped from appealing the validity of Condition 16; and (3) is not barred from raising the question of law that it seeks to raise, then the Court must not summarily dismiss these proceedings.

54. In this regard, it is instructive to note that the approach the Court would have taken would have been different had the matter before it come to the Court via rule 28.2 of the Procedure Rules for determination of a separate question. With a motion for dismissal of the proceedings brought pursuant to rule 13.4, the challenge for Healthcare was to satisfy the Court that the Appellant Council did not have an arguable case, such that it ought not be permitted to proceed to the full hearing. In circumstances where the full strength and merit of the legal contest is not ultimately resolved in such a dismissal application, meeting that “high bar” has presented a challenge for Healthcare in the circumstances of this case.

55. The Appellant Council does not, on this motion to summarily dismiss the proceedings, need to go further and run its full argument; it does not need to satisfy the Court of its rebuttal propositions absolutely. Such a determination is, in the Court’s opinion, a task reserved for the judge presiding over the substantive proceedings. In short, this motion does not involve the determination of a separate question or constitute a preliminary stage of satellite litigation. It is only concerned with the question of whether, in essence, the Appellant Council’s appeal proceedings should be summarily dismissed under r 13.4 of the Procedure Rules.

56. Hence, in so far as Healthcare appears to have suggested that the question before the Court is to make a final determination as to whether or not the Appellant Council is entitled to rely on its cause of action, the Court rejects this position. To illustrate this, consider the following submission of Healthcare regarding estoppel, “If your Honour accepts that the council is estopped, then there is no reasonable cause of action even if the council’s correct because they would be prevented from raising it in the appeal.” (Transcript, p 19 [see also, p 37]). The question for the Court is not whether or not the Appellant Council is estopped. The question is whether the Appellant Council’s position with respect to estoppel is so obviously untenable that it will be unable to rely on what might otherwise be a reasonable cause of action.

57. In this context, I turn first to consider whether a reasonable cause of action has been disclosed by the Appellant Council on the assumption that the Appellant Council’s entitlement to make its case in these appeal proceedings is uncontroversial. On this basis, the Court is satisfied that the Appellant Council has disclosed an arguable cause of action. As has been outlined above, the Appellant Council has set out three alternative legal arguments as to why it says that the Commissioner erred in law in deciding to impose Condition 16. In essence, its case is that clause 18 of the SEPP restricted the Commissioner to approving a development that only accommodated a certain range of people but that the Commissioner acted beyond power in imposing a condition of consent that accommodates a wider or narrower group of people. Although the Court did suggest, at the outset of the hearing, that there was a simple remedy should the alleged “wider” problem have veracity, clearly the opposite argument regarding a “narrower” group of people could not be so neatly resolved.

52. Healthcare did not argue in any detail why this articulated cause of action, considered in its own right, does not constitute a reasonable cause of action. To be sure, Healthcare did initially assert that “[t]here is no patent or latent inconsistency between the condition imposed at condition 16 or that required by clause 18…”. Healthcare may be correct. Yet, I am not satisfied that the Appellant Council’s claim to the contrary is so deficient that it discloses no reasonable cause of action and, therefore, justifies the Court cutting the Appellant Council off at the pass.

53. Consequently, the critical question is whether the Court should intervene on the basis that the Appellant Council would be precluded from succeeding on its cause of action because it is clearly barred or estopped from relying on this cause of action.

54. As foreshadowed above, I find that the consideration of this motion is not the time and place to reach a final determination as to whether Healthcare is correct on its propositions (1)-(3) above. All that the Court has to be satisfied of is, in effect, that the Appellant Council has an arguable cause of action despite Healthcare’s propositions. To phrase it a different way, all the Appellant Council has to show is that it has credible rebuttals to these ‘entitlement’ propositions.

55. The Court is not satisfied that the Appellant Council’s cause of action must fail because of Healthcare’s propositions (1)-(3) above. Rather, the Court is satisfied that, as set out above, the Appellant Council has a prima facie argument that it: (1) is entitled to question the legality of imposing Condition 16, (2) is not estopped from appealing the validity of Condition 16; and (3) is not barred from raising the question of law that it seeks to raise.

56. More specifically, I am satisfied that it is at least arguable that: (1) the issue of whether the Commissioner erred in imposing Condition 16 involves a question of law and can be raised in this s 56A appeal; (2) the doctrine of estoppel is inapplicable to these appeal proceedings as a public law challenge of the lawfulness of a decision to impose a condition of development consent; and (3) that the matter the subject of the appeal was raised in the Court below by the objector Mr Gideon Reiss or, if not, that this does not preclude the Appellant Council from raising the matter on appeal.

57. In making these findings, the Court adopts the reasons provided by the Appellant Council in support of the propositions listed in the preceding paragraph. However, I stress that the Court only does so in so far as these reasons demonstrate a credible response to Healthcare’s claim that it has no entitlement to challenge the Commissioner’s decision.

58. Given that these issues are likely to arise for final determination by the trial judge, it would be inappropriate for the Court to disclose any non-determinative views on the merits of the competing positions of the parties regarding the entitlement of the Appellant Council to rely on its cause of action.

Are these proceedings an abuse of process?

65. The Court is not satisfied that these appeal proceedings constitute an abuse of process. A careful consideration of the principal reasons put forward by Healthcare in support of the converse position reveals that Healthcare has effectively repeated its case that the proceedings should be dismissed because the Appellant Council should not be entitled to appeal on the grounds that it seeks to rely on. However, as reasoned above, the Appellant Council has disclosed a case that it should be entitled to appeal and, therefore, a cause of action amenable to examination at the substantive hearing.

66. In such circumstances, this appeal cannot constitute an abuse of process merely because the trial judge might find that the Appellant Council is not entitled to rely on its cause of action. Although the meaning of the phrase ‘abuse of process’ is not static or comprehensively defined, proceedings will not constitute an abuse of process merely because an appellant may, ultimately, be unsuccessful if he or she is found to be barred or estopped from relying on the grounds of appeal. This alone cannot mean that the proceedings are, for example, for an illegitimate purpose; unjustifiably oppressive; or may bring the administration of justice into disrepute: Batistatos v Roads and Traffic Authority (NSW) at [15].

67. Hence, these s 56A appeal proceedings do not constitute an abuse of process for the reasons articulated by Healthcare. The Appellant Council has done nothing more than exercise its entitlement to appeal a decision of the Court on the basis of an identified cause of action which it believes has merit.

68. The fact that the Appellant Council, inter alia, agreed to the disposal of the proceedings by way of consent orders and may not have raised the matters the subject of the appeal at first instance, may ultimately prove to be insurmountable obstacles for the Appellant Council. Yet, these circumstances do not mean that the proceedings are an abuse of process and should be summarily dismissed.

Costs

69. As has been mentioned above, Healthcare indicated that, if successful on its motion, it should be awarded its costs of the proceedings on an indemnity basis. Conversely, the Appellant Council indicated that if Healthcare’s motion is dismissed, it should be dismissed with costs.

70. As the Appellant Council has succeeded in satisfying the Court that it has an arguable case and that Healthcare should not succeed on its motion to dismiss the proceedings, the Appellant Council’s claim for costs in these Class 1 proceedings is not unexpected. Nevertheless, the Court has decided that it is not fair and reasonable to make any order as to the costs of the motion.

71. I am of the view that the Summons appealing the Commissioner’s decision did not sufficiently indicate that the Appellant Council’s case had reasonable prospects as the grounds suffered from obfuscation. In particular, the Court considers that it was difficult to understand with any clarity the basis of the challenge from the Summons. In the circumstances of this case, it was understandable that Healthcare brought its motion, although in the end it has not succeeded. After hearing the submissions of the parties, there were serious questions as to whether the Appellant Council would establish that it had an arguable case.

72. Moreover, there is somewhat of a tension in how the Appellant Council structured its case with respect to the motion to dismiss, as disclosed in its written submissions on Healthcare’s motion. The primary argument of the Appellant Council that Condition 16 is invalid, if successful, could lead to that condition being simply amended to cure the relevant defect. Despite this, the orders sought in the Summons do not appear to recognise this but instead seek the setting aside of the entire primary decision. However, the alternative arguments of the Appellant Council, if successful, could not conceivable lead to a simple amendment resolving the dispute. In fact, it may well lead to the entire consent ‘falling over’. The tension between the relief sought by the Appellant Council and its primary argument has, in the Court’s view, materially contributed to the present motion coming before the Court.

73. Although I consider that, in the context of the motion to dismiss before me, the Council has “got over the line”, that was by no means a predictable outcome at the outset of the hearing. By “getting over the line”, the Appellant Council is simply able to proceed to a full hearing of its arguments in the s 56A proceedings, but the outcome is by no means assured. That will be for the trial judge to decide.

74. In all the circumstances of this motion, the Court is not satisfied that it is fair and reasonable to make an order as to the costs of the motion.

Orders

75. The Court:

1. Orders that the Notice of Motion filed by Principal Healthcare Finance Pty Ltd on 25 August 2017 is dismissed.

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Decision last updated: 01 May 2018