Coober Pedy Roadhouse Pty Ltd v District Council of Coober Pedy

[2020] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA

(Land and Valuation Division)

COOBER PEDY ROADHOUSE PTY LTD v DISTRICT COUNCIL OF COOBER PEDY & ORS

[2020] SASC 25

Judgment of The Honourable Justice Parker

24 February 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME - PARTICULAR CASES

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - REGISTER, NOTICE AND ADVERTISING - NOTICE - MANDATORY REQUIREMENTS

Application for an extension of time and permission to proceed with an action for judicial review pursuant to rule 200 of the Supreme Court Civil Rules 2006 (SA).

The plaintiff operates the Shell Roadhouse and associated facilities at Coober Pedy. The second and third defendants operate the Stuart Range Outback Resort at Coober Pedy. On 24 March 2016, the second defendant lodged a development application with the first defendant, the District Council of Coober Pedy (“the Council”), to make alterations and expand the existing tourist facilities at Stuart Range (“the Application”).

On 22 January 2018, the Council’s then Chief Executive Officer granted provisional development plan consent in respect of the Application. The plaintiff complains about this decision. It also complains about the Council’s implicit decision that the proposed development was not seriously at variance with the Council’s Development Plan, or alternatively that it failed to assess whether the proposed development was not seriously at variance with the Development Plan.

The plaintiff commenced judicial review proceedings on 21 September 2018, about two months after the time limit of six months allowed under r 200 had expired on 22 July 2018.

The plaintiff contends, inter alia, that the Council did not publish notice of its decision to approve the Application on its website as required by reg 98 of the Development Regulations 2008 (SA). That information was not published until after the plaintiff commenced these proceedings. The plaintiff contends that it did not receive definitive confirmation of the Council’s decision to approve the Application until 10 August 2018.

Held, extending the time for lodgement of the judicial review application to 21 September 2018 and granting permission to proceed with the application: 

1.  The issues ordinarily taken account in determining an application for an extension of time and permission to proceed with judicial review are the length of the delay, the reason for the delay, the merits of the application and the prejudice to the defendants should the application be granted. The potential effect of the contentions advanced by the plaintiff on public administration generally may also be a relevant consideration.

2.  By late June 2018 the plaintiff was in possession of sufficient information to raise a real doubt in the mind of a prudent person as to the reliability of the information published by the Council on its website. If enquiries had been pursued promptly, the information obtained on 10 August 2018 could have been obtained in late June or early July, several weeks before the time limit expired.

3.  However, I am satisfied that had the Council published notice of it decision to approve the Application on its website as required by the Development Regulations the plaintiff is likely to have commenced proceedings within the time limit allowed under r 200.

4.  The publication of correct and up to date information about the status of the Application on the Council website was not merely a courtesy to the public, but the performance of a statutory duty.  A prime reason for the imposition of this statutory duty is to assist those interested in the outcome of development applications to appeal or seek judicial review in a timely way.

5.  The inaction of the plaintiff between late June 2018 and 21 August 2018 should not result in a refusal to grant the plaintiff an extension of time.

6.  Several important questions of statutory interpretation arise in relation to the validity of the delegation by the Council of the relevant decision-making powers to its then CEO. Those questions are clearly arguable and significant albeit that the lack of a relevant policy has since been rectified.

7.  The second and third defendants will suffer prejudice if the plaintiff is granted an extension of time and permission to proceed as it faces a potential loss of its planning consent. However, in the particular circumstances of this case, the second and third defendants should not be advantaged by the Council’s failure to comply with its statutory duty.

Crown Lands Management Act 2009 (SA) ; Development Act 1993 (SA) ss 33(1)(a); 35(2); 34(23); 34(27), 90; Development Regulations 2008 (SA); Freedom of Information Act 1991 (SA); Local Government Act 1999 (SA) s 44; Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Ferdinands v District Court of South Australia [2010] SASC 265; Hall v City of Burnside (No 8) [2008] SASC 318, applied.
McKay v Alexandrina Council (2003) 128 LGERA 375, distinguished.
Colmer v Alexandrina Council [2009] SASC 13; Hall v City of Burnside (2006) 102 SASR 298; Hall v City of Burnside [2009] SASC 86, discussed.
Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 ; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 545; Bade v Rural City of Murray Bridge (2008) 101 SASR 302; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Jackamarra (an infant) v Krakouer (1998) 195 CLR 516; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; O’Reilly v Mackman [1983] 2 AC 237; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; RW v Minister for Education & Child Development [2016] SASC 158; Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, considered.

COOBER PEDY ROADHOUSE PTY LTD v DISTRICT COUNCIL OF COOBER PEDY & ORS
[2020] SASC 25

Civil

1. PARKER J:         This is an application under r 200(2) of the Supreme Court Civil Rules 2006 (SA) for an extension of time and also permission to commence an action for judicial review more than six months after the grounds for review arose. The impugned decisions were made on 22 January 2018 by the first defendant, the District Council of Coober Pedy (“the Council”). The plaintiff commenced these judicial review proceedings on 21 September 2018. That is about two months after the time limit of six months imposed by r 200(1) expired on 22 July 2018. 

2. The proposed judicial review seeks orders in the nature of certiorari and prohibition in respect of the impugned decisions. The plaintiff also seeks certain declarations.  For the reasons that appear below, I grant an extension of time and permission to proceed.

   The Parties

3. The plaintiff, Coober Pedy Roadhouse Pty Ltd, as its name suggests, is the operator of a roadhouse and associated facilities at Coober Pedy. 

4. The second and third defendants operate the Stuart Range Outback Resort at Coober Pedy.  That business is located upon land owned by Apostolos (Paul) Athanasiadis and Maria Athanasiadis. Mr Athanasiadis was a member of the Council and acted as Mayor for a period up until 19 September 2018. For brevity, and as nothing turns on any distinction, I will collectively refer to the second and third defendants, and also their business premises, as “Stuart Range”.

   Rule 200

5. Rule 200 of the Supreme Court Civil Rules 2006 (SA) governs the commencement of judicial review proceedings. It provides as follows:

   200—Time for commencement of action

   (1)An action for judicial review must be commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within 6 months after that date.

   (2)If an action for judicial review is commenced more than 6 months after the grounds for the review arose, the action cannot proceed further in the Court without the Court's permission.

   (3)An application under subrule (2) is to be made by interlocutory application seeking an extension of time in which to commence the action and permission to proceed filed with the originating process supported by an affidavit explaining the delay.

   (4)On the hearing of an application under subrule (3), the Court may grant or refuse the application for an extension of time in which to commence the action and permission to proceed or may order that either or both be determined at trial.

   The plaintiff’s grounds for review

6. The first decision complained of by the plaintiff is the decision of the Council, made on 22 January 2018 by its purported delegate the former Chief Executive Ms Fiona Hogan, to grant provisional development plan (or planning) consent to Stuart Range for a proposed development pursuant to s 33(1)(a) of the Development Act 1993 (SA) (“the planning consent”).

7. In essence, the planning consent related to the construction on behalf of Stuart Range of a new petrol filling station with ancillary tourist retail facilities, a new swimming pool, additional car parking and alterations and additions to the existing facilities. 

8. The second decision complained about by the plaintiff is what is said to be an implicit decision by the Council that the proposed development was not seriously at variance with the Council’s Development Plan for the purposes of s 35(2) of the Development Act.  In the alternative, the plaintiff complains that the Council failed to assess whether the proposed development was not seriously at variance with the Development Plan. 

9. The plaintiff contends that the proposed development is non-complying and should have been dealt with by the Council under Category 3.  In essence, the plaintiff contends that the Council erred in failing to determine that the proposed development included a “petrol filling station” as defined in the Schedule 1 of the Development Regulations 2008 (SA) and a “shop” and/or an “office with a gross leasable area greater than 50 m²”. 

10. The plaintiff notes that the subject land is located in the Residential Zone as shown in the Council’s Development Plan (as consolidated on 15 November 2012).  Principle of Development Control 37 of the Residential Zone provides that a “shop” and also an “office with a gross leasable area greater than 50 m²” are non-complying developments. For these reasons, the plaintiff contends that the Council erred in failing to comply with the mandatory notification provisions contained in s 38 of the Development Act and other provisions applicable to Category 3 developments.

11. The plaintiff also contends that Ms Hogan erred in her capacity as decision maker by failing to have any, or any adequate, regard to the relevant provisions of the Development Plan or to the Development Plan as a whole.  The plaintiff particularises that allegation by observing that there was no record of Ms Hogan giving any consideration to the proposed development before granting planning consent.

12. The plaintiff further contends that because the proposed development is seriously at variance with the Development Plan, the effect of s 35(2) of the Development Act is that the Council could not lawfully grant planning consent.  Alternatively, the plaintiff contends that the Council failed to make any, or any legally reasonable, assessment as to whether or not the proposed development was seriously at variance with the Development Plan. 

13. In the further alternative, the plaintiff contends that the consent was legally unreasonable in that it lacked any evident or intelligible basis or justification.  In essence, the particulars of this alleged ground of invalidity assert that the proposed development by Stuart Range is seriously at variance with the Development Plan because it is inconsistent in various respects with the Residential Zone provisions. 

14. The plaintiff also contends that certain of the conditions purportedly attached to the grant of planning consent are invalid and cannot be severed, with the result that the consent is said to be invalid.

15. A further ground of review proposed by the plaintiff is that Ms Hogan had not been delegated authority to grant planning consent on behalf of the Council. The basis for the alleged lack of delegated authority is that the Council is said not to have complied with the requirements of s 34(27) of the Development Act. That provision requires a council to establish a policy relating to the basis upon which it will make the various delegations required by s 34(23).

16. The plaintiff also contends that there was no resolution, or no valid resolution, of the Council which delegated to the Chief Executive its powers under s 33 of the Development Act to grant development plan consent.  The plaintiff asserts that a resolution made by the Council on 17 May 2016 purported to delegate the powers and functions contained within a manual.  The plaintiff initially contended that such a manual did not exist but, following production of what was said to be such a manual, later contended that this document was not that referred to in the Council resolution.

17. A further ground of invalidity alleged in relation to the delegation of authority to Ms Hogan is that the purported delegation was recorded as having been made under by s 44 of the Local Government Act 1999 (SA). The plaintiff asserts that the effect of the Development Act is to preclude the exercise of the power to delegate under s 44 of the Local Government Act in circumstances that are covered by ss 34(23) and 34(27) of the Development Act. The purported delegation of authority to Ms Hogan is also impugned on the basis that there is no valid instrument of delegation or appointment setting out the delegation as is said to be required by s 20 of the Development Act.

18. The final ground relied upon by the plaintiff is that the planning consent was invalid as Ms Hogan was disqualified from acting due to the presence of a reasonable apprehension of bias.  The particulars supplied in support of this ground assert that Ms Hogan appeared to be strongly associated with, and influenced by, a faction of councillors who had a self-interest in ensuring that planning consent was granted. 

    Background

19. The Shell service station and roadhouse business in Coober Pedy has been operated by the Pantelis family since 1993. It is said to be the only 24-hour roadhouse between Port Augusta and Alice Springs.  The land upon which the business is located is owned by Kypros & Sons Pty Ltd.  Mr Kypros Pantelis and Mrs Anna Pantelis are the directors and shareholders in that company. Their sons now operate the service station and roadhouse business.

20. The roadhouse incorporates fuel filling facilities and sells spare parts, confectionary and other products required by long distance travellers.  A licenced café and restaurant known as the Outback Bar and Grill is located on the same site as the roadhouse.  Although this business is not operated by the plaintiff, it is conducted by the Pantelis family.  There are also 12 motel rooms operated by the family on the same site.

21. Kypros and Anna Pantelis have five sons.  They are Peter (known as Bundi), Yanni, Chris, Andrew and Alex. Only Peter, Yanni and Chris Pantelis gave evidence in this matter. The latter three are directors of the plaintiff.

22. From about December 2008 until December 2017, Peter Pantelis was the manager of the roadhouse.  From about Christmas 2017, he has lived in Adelaide.  The roadhouse and related businesses are now managed by Yanni, Chris and Alex Pantelis.  They live in Coober Pedy.

23. Peter Pantelis was a Coober Pedy councillor from November 2014 until February 2016.  He has stated that he resigned his position as councillor because of concerns he held about fellow councillors.  He believed that he had been misled in relation to negotiations concerning the Coober Pedy electricity supply.

24. Mr Athanasiadis was also a Coober Pedy councillor and acted as Mayor for a period up until 19 September 2018.

25. Peter Pantelis deposed that in late 2015 he became aware of rumours that a new service station was to be developed by Stuart Range. After he became aware of these rumours, he discussed the issue with his brothers.  Yanni Pantelis then spoke with Mr Athanasiadis about the matter.  Mr Athanasiadis denied that he intended to develop a service station.

26. In about February 2015, Mr Athanasiadis sought the support of Peter Pantelis as a fellow councillor to obtain Council approval for the construction of a bituminised roadway to provide a second access to Stuart Range.  Peter Pantelis supported this proposal as Mr Athanasiadis had informed him that the work was to deal with safety issues.

27. On 24 March 2016, the second defendant lodged a development application to “make alterations and expand existing tourist facilities” at Stuart Range (“the Application”). 

28. On 30 March 2017, Peter Pantelis attended a Council meeting as a member of the public.  During this meeting Mr Athanasiadis disclosed his intention to construct a new roadhouse and service station at Stuart Range. He also acknowledged that he had pursued the construction of the bituminised roadway so as to support the proposed development. 

29. Soon after the disclosure by Mr Athanasiadis at the Council meeting on 30 March 2017, Peter Pantelis instructed his then solicitors, Minicozzi Lawyers, to undertake a search of the Council’s Development Application Register (“the Register”) published on its website.  Peter Pantelis was advised that the search revealed that the Application had been lodged on 24 March 2016. The Register also indicated that the Application had not been decided.

30. Peter Pantelis has deposed that at an unspecified time after having been informed that the Application had been lodged, he made oral enquiries with the Council and sought to view the Application.  He stated that he was told that the Council did not have the plans and details and that these documents had been provided to URPS (consultants to the Council) to manage the assessment process.  He also stated that he was told that the Application related to a Category 1 development and thus the plans were not available for public viewing. 

31. Thereafter, Peter Pantelis instructed his solicitors to seek access to the plans and details of the Application.  On 27 July 2017, Minicozzi Lawyers wrote to the Council on his behalf asking what category had been assigned to the Application and also seeking confirmation that the entirety of the development application would be made available for inspection.

32. On 15 August 2017, the Council’s solicitors, Norman Waterhouse, responded to the letter of 27 July 2017.  They stated that the Application related to a Category 1 development and thus was not subject to any public consultation nor was there any right for the public to view the drawings associated with the Application.  The letter also noted that the Council publishes a register of applications on the internet in accordance with regulation 98 and provided the address for the Council’s website.

33. Peter Pantelis then instructed Minicozzi Lawyers to make a request under the Freedom of Information Act 1991 (SA) (the “FOI Act”) to view the plans and details. This FOI request was made on 19 September 2017 and sought access to “all documents comprising development application 691/04/16”.

34. On 20 September 2017, Minicozzi Lawyers forwarded a letter to the Council seeking its assurance that no decision would be made on the application until the FOI application was determined.  Norman Waterhouse responded on behalf of the Council by letter dated 26 September 2017.  The letter stated that the Council would not delay assessment of the application and added that:

    … [W]e understand that a decision regarding the Development Application is likely to be some time away, and will be unlikely to occur until after the Freedom of Information Application has been determined by our client in any event.

1. After a further exchange of correspondence, due to the time taken by the Council to process the first FOI application, Peter Pantelis instructed Minicozzi Lawyers to make a second and narrower FOI application. He stated that he gave these instructions in the hope that a narrower application could be processed more quickly.  This application was made on 21 November 2017 and sought access to “plans and drawings lodged by the Applicant”.

2. On 18 December 2017, Norman Waterhouse sent an email message to Minicozzi Lawyers asking whether both FOI applications were pressed.  On 21 December 2017 Minicozzi Lawyers responded by email.  That message included the following passage:

   If your client continues to deny my client or its representatives the opportunity to view the documents, I again seek an undertaking that it will not make a decision until access has been provided at least in accordance with the later Freedom of Information Application. 

   Whether or not such an undertaking is given, I hereby formally request that the [C]ouncil notify me when the decision is made on the application and advise me as to what decision has been made by providing a copy of the DNF.[1]

   [1]    DNF refers to the decision notification form.

3. Later, on 21 December 2017, Norman Waterhouse responded to Minicozzi Lawyers by email.  The response included the following passage:

   My previous instructions suggested that it would be unlikely that a decision on this application would be made prior to the determination of your client’s first Freedom of Information Application, and I will seek updated instructions regarding this point.

   I do not imagine there would be any difficulty in advising your client once a decision on the development application has been made, and I will take instructions regarding provision of a copy of the DNF.

4. By letter dated 19 January 2018, the Council advised Minicozzi Lawyers that it had determined to grant full access to all documents covered by the FOI applications. However, because the documents concerned the personal and business affairs of persons, the Council was required to defer access until the expiry of the period within which an application for review may be made under the FOI Act or, if such an application was made, until it was determined.

5. On 22 January 2018, Ms Hogan granted provisional development plan consent in respect of the Application.  The Pantelis brothers, and thus the plaintiff, assert that they did not become aware of this decision until August 2018.  The correctness and reasonableness of that assertion is of central importance in considering the application for an extension of time. I have considered that issue at [176] to [180] below.

6. By letter dated 25 January 2018, the Council forwarded a copy of the DNF to Mr and Mrs Athanasiadis. The letter was signed by Ms Hogan.  Also on 25 January 2018, Ms Hogan signed a copy of the Delegated Planning Report dated 22 January 2018 prepared by Simon Channon of URPS in relation to the Application.

7. On 31 January 2018, Minicozzi Lawyers wrote to the Council asserting that the second FOI application should not have been the subject of consultation. By letter dated 6 February 2018, this contention was disputed by Ms Hogan on behalf of the Council. She stated that she hoped to make the documents available for inspection following the expiry of the appeal period under the FOI Act. She did not mention that she had already determined the Application.

8. On or about 20 February 2018, a reference to the grant of provisional development plan consent in respect of the Application had been included in a status report prepared by Mr Grant Riches as part of the agenda for the Council meeting held on 20 February 2018. The agenda was uploaded onto the Council website by Ms Judy Williams. The status report comprised page 44 of the agenda of 90 pages.

9. By letter dated 22 February 2018, Ms Hogan advised Minicozzi Lawyers that the documents sought under the FOI Act were now available for inspection at the Council offices. The letter asserted that the documents were only available for inspection and could not be copied due to copyright requirements. Once again, Ms Hogan did not mention that she had already determined the Application.

10. On 19 March 2018, Chris and Yanni Pantelis attended the Council offices in Coober Pedy to view the documents released under the FOI Act. They both gave evidence that the documents shown to them did not include any record that the Council had determined the Application. The oral evidence of the Council FOI officer and Executive Assistant to the CEO, Ms Judy Williams, is to the contrary. I have considered that fundamental conflict in the evidence at [142] to [147] below.

11. On 17 May 2018, Paul Athanasiadis instituted proceedings for defamation in this Court against Peter Pantelis and two other defendants, being the Coober Pedy Regional Times newspaper and the owner of that publication.  The statement of claim was served on Peter Pantelis on 6 June 2018.  Mr Athanasiadis alleges that he was defamed in a letter to the editor written by Peter Pantelis concerning the sealing of the unnamed road and closure of a truck parking bay adjacent to the Pantelis service station.

12. At paragraph 22 of the statement of claim in the defamation proceedings it was stated on behalf of Mr Athanasiadis that “the plaintiff obtained all of the necessary consents and approval which he required in relation to the New Roadhouse Development and the plaintiff’s Application.” 

13. The affidavit evidence of Peter Pantelis is that “[b]ecause nobody (including the Council) had told me that the application had been determined, I did not believe that statement”. He maintained this position in his oral evidence. The correctness of that evidence is contested. 

14. On 20 June 2018, Peter Pantelis emailed Councillor Nigel Wayne asking whether he could find out the status of the Application.  On 21 June 2018, Cr Wayne responded by email in the following terms:

    Found out that Planning approval has been given but building approval has not yet.  He has 12 months to get the approvals from the time the planning approval was given.  That was 4 months ago, he now has 8 months left.  This is all supposed to be available from the Council at the front counter.  It was Fiona who gave the approval!!

15. The information provided to Peter Pantelis by Cr Wayne had been obtained from Mr Grant Riches. Mr Riches is an independent contractor who advises the Council on building, planning and development matters.  Cr Wayne did not disclose to Peter Pantelis that he had obtained the information from Mr Riches.

16. After receiving the email from Cr Wayne, Peter Pantelis telephoned his brother, Chris, and asked him to make enquiries at the front counter of the Council office. 

17. The evidence of both Chris and Yanni Pantelis was that following the request from their brother, Peter, they attended the Council office to make enquiries about the status of the Application.  It appears that this visit was made on about 22 June 2018. Both Chris and Yanni Pantelis stated that the Register was not made available to them at the front counter. The staff member they spoke to could not provide any information about the status of the Application.

18. On 22 June 2018, Peter Pantelis sent an email to Mr Riches enquiring about the status of the Application.  Peter Pantelis forwarded a copy of that message to his brothers, Chris and Yanni, and asked as to the outcome of their enquiries with the Council.

19. On 26 June 2018, Sykes Bidstrup, the solicitors acting for Peter Pantelis in the defamation proceedings, sent an email to the solicitors acting for Mr Athanasiadis requesting copies of the consents and approvals referred to by him at paragraph 22 of his statement of claim in the defamation action.  No reply was received to that message.

20. During the period from 6 June 2018 to 26 June 2018 Mr Gene Sykes Bidstrup searched the Council’s Development Application Register kept on its website. The information recorded on the website indicated that the Application had not been determined. At the time that Mr Sykes Bidstrup conducted those enquiries, he was only retained in respect of the defamation proceedings. For that reason he was clearly inquiring for the purpose of drafting Peter Pantelis’ defence to that action rather than with a view to commencing the present proceedings. However, the evidence of the three Pantelis brothers clearly establishes that Peter Pantelis was managing the development issue on behalf of the plaintiff, of which he was a director. Thus, any information relevant to that issue received by Peter Pantelis from Mr Sykes Bidstrup (or elsewhere) would have become known to the plaintiff.

21. On 27 June 2018, Mr Riches responded to the email sent by Peter Pantelis on 22 June 2018.  He stated:

    Sorry for the delay responding but I missed your email.  I have just returned from Coober Pedy today.  The proposed roadhouse received development plan consent about 4 months ago.  Building Rules Consent and development approval are still required before the development can start. 

22. On 3 July 2018, the defence in the defamation proceedings was filed on behalf of Peter Pantelis. At paragraph 22 of the defence, Peter Pantelis denied that all necessary consents and approval had been obtained for the development of Stuart Range. The substance of the statement made in the defence was that, according to the Register published on the Council’s website, the Application had not had not yet received planning approval, building approval, land division approval or development approval.

23. From 29 June 2018, Mr Sykes Bidstrup was on holiday in Indonesia. He did not return to work until 30 July 2018.  However, at that time he had only been instructed by Peter Pantelis to act in the defamation proceedings.

24. On 8 August 2018, Mr Sykes Bidstrup spoke by telephone to Mr Grant Riches.  Mr Riches said that development approval had been granted for the “new roadhouse”.  Mr Riches indicated that it would be necessary to make a written request for documents relating to the approval.

25. On 10 August 2018, Mr Sykes Bidstrup spoke by telephone with Mr Colin Pitman, the new CEO of the Council. After that conversation, Mr Sykes Bidstrup sent an email requesting copies of documents relevant to the defamation proceedings, including the planning consent. On the same day, Mr Pitman responded by email in the following terms:

    I am taking advice from the information provider (intellectual property) in order to release the information for the purpose of reply.  There is a need to respect native title information as some of that will require deletion from documents.

26. Later on 10 August 2018, Mr Pitman provided to Mr Sykes Bidstrup copies of the planning consent and related documents as attachments to a series of emails. Mr Sykes Bidstrup then forwarded the documents to Peter Pantelis. 

27. On about 21 August 2018, Mr Pantelis instructed the firm of Sykes Bidstrup to commence action to challenge the planning consent.  From that time, this firm has acted for the plaintiff in respect of the potential challenge to the planning consent. 

28. On 29 August 2018 Sykes Bidstrup wrote to the second and third defendants, and others, warning that the present proceedings would be instituted if the planning consent was not cancelled.

29. Peter Pantelis has deposed that on 21 September 2018, being the date of his first affidavit in these proceedings, he searched the Council’s website and, in particular, the Register published on the website.  This continued to show that the Application had not been determined. However, by 23 October 2018 the published Register had been amended to record that the second defendant had been granted planning consent on 22 January 2018 but was still to obtain building approval, land division approval and development approval.

30. On 21 September 2018, the application for judicial review was filed with the Court.

    The plaintiff’s contentions

31. The plaintiff submits that the consideration of permission to proceed is absorbed into consideration as to whether an extension of time should be granted.  That is because the same considerations are relevant to both questions.  I accept the correctness of that contention and proceed on that basis.

32. The plaintiff relies upon the decision of Gray J in Ferdinands v District Court of South Australia in support of its contention that there are generally four factors to be weighed by the Court when considering an application for an extension of time.[2] The four relevant factors are the length of the delay, the reason for the delay, whether the applicant has prospects of success and the extent of any prejudice suffered by the respondent.  The three defendants accept this to be the correct approach.

    [2] [2010] SASC 265 at [19].

33. The plaintiff also relies upon the statement of Gray J that these four considerations are not exhaustive.  On that basis, the plaintiff submits that there are a further four relevant considerations.  Those being the question of standing, the six-month time limit itself, the fact that declarations have been sought and the need for governmental transparency and public concern about issues raised in this case. 

34. The plaintiff submits that it plainly has standing as a commercial competitor in relation to the proposed development of Stuart Range. Its commercial interests will be, or are likely to be, adversely affected by the proposed development. A Commercial Competitor Notice was filed and served in accordance with s 88B of the Development Act on 21 September 2018.  I accept that the plaintiff has standing and the defendants did not contend otherwise.

35. The plaintiff also submits that it is an appropriate plaintiff, given that its interests in challenging the decision reflects the opposition of the Coober Pedy community to the proposed development.  The plaintiff relies upon the evidence of Cr Wayne in support of that contention.  The plaintiff contends that the community concern is based upon the following matters:

    ·Mr Athanasiados has used his influence in the Council to unfairly advance the proposed development;

    ·There has been insufficient public consultation concerning the development;

    ·The development will strip the township of its character;

    ·The development will have an adverse economic impact upon the township of Coober Pedy; and

    ·The truck bay adjacent to the plaintiff’s roadhouse should be reopened.

36. The plaintiff notes that the defendants have conceded that the plaintiff’s case is arguable.  The plaintiff submits that the greater the relative strength of its case then the more likely it is that an extension of time should be granted.  In that respect, the plaintiff submits that it has a strong case on the merits.  Its case is not merely arguable. 

37. The plaintiff submits that the grounds upon which the planning decision is impugned largely speak for themselves.  It emphasises that the residential zone under the Coober Pedy Development Plan expressly discourages the development of retail and commercial land uses, particularly where the business is intended to operate 24 hours a day for seven days a week.  There are no provisions in the text of the residential zone provisions which lend any support to such a development.

38. The plaintiff observes that the Council has been unable to locate any document that constitutes a Delegations Policy adopted in accordance with the mandatory requirement in s 34(27) of the Development Act. The plaintiff submits that item 3.2 on the Council agenda for 3 May 2018 appears to constitute an admission that there was no Delegations Policy at the relevant time. 

39. The plaintiff also observes that the purported delegation of authority in 2016 was made under s 44 of the Local Government Act, rather than s 20 of the Development Act.  There was also no evidence that the Council, when it made the purported delegation, took into account the Delegations Policy that it was required to have.  The Council has also not produced the agenda and attachments for the meeting held in 2016 at which the 2013 delegations were purportedly revoked and the 2016 delegations made.  The plaintiff complains that the Council has sought to rely upon electronic documents of unexplained provenance.  The plaintiff suggests that there is real doubt as to whether the document that is said to comprise the attachment to the relevant agenda is actually a genuine or accurate copy of that attachment.

40. The plaintiff also observes that Ms Hogan did not sign the report from the consultant URPS until after she had approved the Application and no documentary record of the decision making by Ms Hogan has been located apart from the decision notification form (DNF).  There is no report indicating how Ms Hogan took into account the development plan and what other considerations she may have taken into account.  There is no record of a serious variance decision having been made. 

41. The failure of the Council to adduce any evidence from Ms Hogan is said by the plaintiff to permit the drawing of a strong Jones v Dunkel inference.  The plaintiff submits that the extraordinary difficulty experienced by the Pantelis family in obtaining information about Council decision making, and also the difficulty experienced by Cr Wayne, in respect of matters which should have been on the public record and freely obtainable, cannot be explained on any basis other than the existence of a hostile faction.

    The delay in applying for judicial review

42. The plaintiff stresses the failure of the Council to comply with its obligation under reg 98 of the Development Regulations to record in a Register any decision made on a development application and any conditions that may have been attached. That Register must be available for public inspection without charge during normal office hours and a council is required, on payment of the relevant fee, to make available to any member of the public a copy of any part of the Register.  Furthermore, the Register must be published on the internet and updated within a reasonable time.

43. The plaintiff submits that the purpose of reg 98 is to ensure that information about council decisions is available to the public.  However, the Council concedes that at no relevant time did it publish a version of the Register on the internet which revealed that a decision on the application had been made.  The Register also failed to record whether a serious variance decision was made.

44. Nevertheless, it is apparent from the letter sent by the Council’s solicitors in August 2017 that if Peter Pantelis wished to know if a decision had been made, he should check the public Register.  The plaintiff challenges the accuracy of the evidence given by Ms Williams concerning the updating of the Register.  I have considered that issue at [126] to [132] below. 

45. The plaintiff submits that it was not until 8 August 2018 that it became reasonable for Peter Pantelis, and thus the plaintiff, to believe that the Council had granted the planning consent.  That was also the first date upon which the plaintiff could place any part of the record of the decision before the Court in compliance with r 200A(4)(a) of the Supreme Court Civil Rules.  That rule imposes a mandatory requirement that the record of the decision be exhibited to the initiating affidavit in the initial review proceedings.

46. The plaintiff submits that it is not credible to suggest that if any of the Pantelis brothers knew about the decision prior to 8 August 2018 they would have continued to act as they did.  Those actions would have amounted to a subterfuge on a grand scale, when it would have been much easier to commence proceedings within time. 

47. The plaintiff submits that the period of six weeks and two days that elapsed between 8 August 2018 and the commencement of these proceedings was not unreasonable, due to the complexity of the matter and the fact that a warning letter had been sent less than three weeks after the decision became known to the Panteils brothers.

    Prejudice

1. Insofar as the Council is concerned, the plaintiff submits that it is the author of any prejudice that it may suffer.  The plaintiff also refers to the observations of the Full Court in Bade v Rural City of Murray Bridge concerning the shortcomings in the handling by the Council of an application for development approval.[3]  After noting that any prejudice to the Council was insignificant, the Full Court held in Bade that it was desirable that the Council be alerted to those shortcomings in order to avoid similar problems in the future.

   [3] (2008) 101 SASR 302 at [124] (Bleby J with Doyle CJ and Anderson J agreeing).

2. The primary contention advanced by the plaintiff concerning prejudice to the second and third defendants is that there is no relevant prejudice because the proposed Stuart Range development remains speculative. That is said to be the case because there are several conditions attached to the planning consent and there is little evidence that those conditions are likely to be fulfilled. The conditions relate to water flow and pressure, the adequacy of the electricity supply, the need to enter into a development agreement with the Council concerning works upon Council roads and also the need to enter into such an agreement with the Department for Planning, Transport and Infrastructure (“DPTI”) concerning works upon departmental roads. The plaintiff also observes that building rules consent has not yet been obtained nor is there any evidence that approvals have been sought or obtained under s 221 of the Local Government Act which is required to permit any alterations to Council roads. Similarly, there is no evidence of any approval under s 222 of the Local Government Act to permit business use of roads for truck parking.  The plaintiff also points to the fact that certain Crown land adjacent to Council roads is required for the development. There is no community land management plan and the land is also subject to dedication as a plantation reserve. Unless that dedication is revoked, it will prevent the lawful establishment of at least that part of the development which is intended to occur upon Crown land.  Finally, the plaintiff also submits that there is no evidence that those associated with the second and third defendants have the financial capacity to carry out the proposed development.  The plaintiff suggests that there is some contrary evidence, i.e. there was allegedly an unsuccessful application for grant funding.

3. In the alternative to the preceding submissions, the plaintiff submits that the only possible prejudice to the second and third defendants could have arisen in the period from 22 January 2018 (being the date of the decision) to 29 August 2018 (being the date of the plaintiff’s warning letter).  All steps taken prior to the commencement of that period were entirely speculative, and after that period any steps taken were at the risk of the second and third defendants due to the warning letter and subsequent commencement of proceedings.  The plaintiff contends that only about seven per cent of the total expenditure incurred by the second and third defendants was incurred during the period from 22 January 2018 until 29 August 2018.  That amounts to a little under $12,000.  Even if the plaintiff succeeds in these proceedings, its expenditure would not be wasted because it can be assumed that the third defendant will lodge the same or a very similar application with the Council to be dealt with according to law. 

4. The plaintiff also submits that there are at least three flaws in any argument of the third defendant that these proceeding place in jeopardy all the money spent by it to date.  The plaintiff submits that the three flaws in that argument are first, most, if not all, of the monies expended would be “reused” on any further development application should the plaintiff succeed.  Secondly, if this argument was to be accepted it would result in an expensively obtained consent being insulated from challenge when a cheaply obtained consent would not be so insulated.  The plaintiff submits that this is legal nonsense.  Thirdly, the plaintiff submits that the argument is contrary to authority and relies in that respect on the observations of Debelle J in McKay v Alexandrina Council.[4]  In that case Debelle J observed that prejudice did not start to run until the developer was in a position to commence works in reliance upon a full development approval.  The plaintiff submits that the reasoning adopted by Debelle J in McKay has not been overruled by the later Full Court decisions in Hall v City of Burnside[5] and Bade. 

   [4] (2003) 128 LGERA 375 at [11].

   [5] (2006) 102 SASR 298.

   Governmental transparency and community interest

5. The plaintiff submits that the public interest requires that the proceedings be permitted to continue as a matter of governmental transparency and due to the interests and concerns of the Coober Pedy community.  These considerations are particularly important given that there are serious allegations of failure by the Council to comply with the requirements of the Development Act concerning the delegation of power and also serious allegations of bias supported by evidence.

   The first defendant’s submissions

6. The Council accepts that the outcome of the extension application will determine whether permission should be granted.  The Council submits that, in the context of judicial review proceedings, the delay is not slight.  The Court should take into account the time that has passed from the grant of any consent until lodgement of these proceedings, i.e. almost eight months.

7. The Council accepts that there is an arguable case or a serious issue to be tried.  The test to be applied is similar to that applied on a strike out application.  At this stage, no more than a preliminary assessment of the merits can occur.  The Court should not go beyond deciding that there is a fairly arguable case.

8. The Council submits that the primary purpose of the requirement that there be an arguable case is to avoid a favourable exercise of the discretion to grant an extension of time where that would be futile because there is not an arguable case.

9. The plaintiff also submits that evidence as to standing is a necessary prerequisite to an arguable case but is not otherwise relevant to the exercise of the discretion to extend time.  The Council submits that the claim by the plaintiff that it is representing the community is legally and factually untenable and not supported by admissible evidence.  The plaintiff is plainly acting in its own commercial interest.

10. The plaintiff submits that the contention by the defendant that declaratory relief could be sought independently of the judicial review process is contrary to the decision of the Full Court in Hall v Burnside.[6]

    [6]    At [58]-[59].

11. In addition to the preceding matters, the Council also submits that the submissions of the plaintiff relating to apprehended bias on the part of Ms Hogan as the decision maker should not be accepted.  The evidence contained in the affidavit of Cr Wayne is weak concerning Ms Hogan and could not sustain the allegation.  The Council also submits that the suggestion by the plaintiff that the failure of Ms Hogan to record the matters that she took into account in granting approval does not support the bias submission.  There was no requirement that the decision maker record the matters that they took into account.  In any event, the Council submits that a detailed planning report accompanied the application and a professional planning firm was engaged to assist the Council to assess the application.

12. Although the Council accepts that the plaintiff has an arguable case, it also notes that the submissions by the plaintiff about the planning issue have failed to deal with many relevant matters.  These include the location of the proposed development, that the site has an existing and substantial commercial use and that the residential zone contemplates non-residential development. The Council also submits that the plaintiff has overlooked that it would need to establish that the assessment was legally unreasonable. That is a high threshold.  For these reasons, the Council submits that the plaintiff’s case is not strong.

13. While accepting that the arguments advanced by the plaintiff concerning the delegation of power to Ms Hogan give rise to debatable questions of law and fact, which include the proper construction of s 34 of the Development Act and the consequences of a breach of that provision, the Council contends that any contravention arising from the lack of a Delegation Policy should not invalidate all of its delegations.  While the Council accepts that there is a serious issue to be tried it also notes that the nature of the allegation and the wider consequences should that argument succeed point to the need for the proceedings to have been brought promptly.

14. The Council also submits that all cases of judicial review involve an alleged excess or want of jurisdictional power.  This case is no different.  The position is not changed by the allegation of apprehended bias.  The plaintiff has not referred to any authority in support of its suggestion that the nature of the jurisdictional error it alleges to advance its commercial interests is somehow more relevant to the exercise of the discretion by the Court.

15. The Council also submits that even where there is an arguable case, the authorities clearly establish that an extension of time is unlikely to be granted if that would cause prejudice to another party.  The Council does not advance any submissions concerning prejudice to the second and third defendants.  However, it does draw the relevant legal issues to the attention of the Court.  The Council refers to the following matters of legal principle.

16. If actual prejudice of a significant kind is demonstrated, the limitation period should prevail.[7]  The prejudice suffered by a defendant should not be measured by reference to additional prejudice suffered after the limitation period expired.  That would ignore the obvious rationale for the imposition of time limits and incorrectly treat time limits as arbitrary.[8]

    [7]    Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555.

    [8]    Hall v Burnside at [55].

17. Prejudice may arise where a developer has expended substantial sums on a proposed development and related legal disputes in circumstances where the grant of an extension would put the consent at risk.  That remains the case even where most of the expenditure was made prior to the grant of the approval that is being challenged.[9]

    [9]    Ibid at [53].

18. The Council also points to the fact that r 200(1) requires an action for judicial review to be commenced “as soon as practicable” after the grounds for a review arose.  The Council refers to the observations concerning the purpose of a strict time limit in judicial review proceedings made by Lord Diplock in O’Reilly v Mackman[10] and by Doyle CJ and Duggan J in Hall v Burnside.[11]No adequate explanation has been provided for the delay.  Peter Pantelis made enquiries with Cr Wayne and Mr Riches in June 2018 and was told that planning consent had been granted.  Upon him becoming aware of that information it was necessary for him to take prompt action.  No acceptable explanation has been provided as to why no action was taken to confirm the information provided by Cr Wayne and Mr Riches, if that was thought necessary.  When enquiries were made in August 2018, confirmation that the decision had been made was immediately provided.  It is clear that Peter Pantelis had been informed of the approval by 29 June 2018 at the latest.

    [10] [1983] 2 AC 237 at [280]-[281].

    [11] At [47]-[50], [78]-[85].

19. The Council submits that there is no authority for the plaintiff’s contention that the nature of a particular jurisdictional error may support the favourable exercise of a discretion regarding an extension of time.  In the Council’s view, there are two fundamental flaws to that approach.  One error is that reference to the nature of the alleged jurisdictional error treats the allegation as if it had been proved or that the defendant was called upon to disprove the allegation in circumstances where the plaintiff does not have permission to proceed.

20. The second fundamental flaw is that any reliance upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj is entirely misplaced.[12]  Leaving aside non-jurisdictional errors of law on the face of the record (which cannot apply to a Council decision as there is no record),[13] any invalidity in r 200 proceedings can only arise by reason of jurisdictional error. 

    [12] (2002) 209 CLR 597.

    [13] Craig v South Australia (1995) 184 CLR 163.

21. Decisions affected by jurisdictional error are generally regarded as not amounting to a decision.  There is no authority for the suggestion that a failure to take into account matters that must be taken into account by the statute prior to the exercise of power are any less a jurisdictional error than any other type of excess or want of jurisdictions.  However, a House v The King error in the exercise of a discretion would not, of itself, constitute a jurisdictional error.

22. The Council submits that the case pleaded by the plaintiff alleging ostensible bias on the part of Ms Hogan was not supported by any credible evidence.  At most it is pleaded that Ms Hogan “appeared” to be strongly associated with a faction of councillors.  The bare assertions to this effect by Cr Wayne carry no evidentiary weight. 

23. The Council also submits that there is no evidence that Ms Hogan did not have the material before her that would have enabled her to make a planning decision.  There is no legal requirement for her to give reasons or to make a record of her reasons for all her decisions.  In any event, the evidence establishes that there was sufficient information upon which a decision could be made.  There is no basis whatsoever to infer that Ms Hogan was unaware of the assessment by URPS and did not consider it.  URPS had been engaged by the Council to assess the proposal.  The close correspondence between the conditions and notes set out in the approval and the content of the URPS report is highly significant.  There was also no reason why Ms Hogan could not take into account the matters set out in the detailed planning report which accompanied the application.

24. In relation to the question of delegation, the minute tendered by the plaintiff demonstrates that the Council delegated its planning powers to the Chief Executive on 17 May 2016 in the terms set out in the document described as “Delegations and Sub Delegations Manual”.  The fact that the page numbering on the delegation manual document contains errors is not material.  A later document which include subsequent sub delegations as well as the primary delegations is relevantly identical to the delegation made on 17 May 2016.  While the later document has resolved the numbering problem evident in the first document, that does not advance the plaintiff’s case.

25. While accepting that the plaintiff has an arguable case in relation to the question of delegations, the Council submits that it is clear that there was a resolution delegating to the Chief Executive the powers set out in the Delegations and Sub Delegations Manual.

26. The Council also submits that even if the delegation resolution made on 17 May 2016 was ineffective, that would simply require that the terms and operation of earlier delegation resolutions, including those made in 2013, should be explored.  There is no evidence before the Court, other than that the plaintiff has been provided with the relevant Council minutes and a copy of the 2013 Delegations Manual.  Those documents have not been tendered.

27. The Council also submits that even if the plaintiff has correctly contended that the existence of the power to delegate in the Development Act impliedly excludes the exercise of the power to delegate in s 44 of the Local Government Act, the ground advanced by the plaintiff confuses the identification of the source of power with the existence of the power.[14]

    [14] See Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 at [175].

28. The Council accepts that the submission by the plaintiff, that its delegations were invalidated by the absence of a policy adopted under s 34(27) of the Development Act, is arguable.  If the plaintiff’s contention is correct, it would have the result that the Council could not carry out its functions as a relevant authority because those powers can only be exercised by a delegate.  The Council also notes that the deficiency has been recognised and dealt with.  It is unnecessary at this point for the Court to do any more than recognise that there is an arguable case.

29. The Council submits that the contention by the plaintiff that “sunk costs” should be disregarded in assessing prejudice is wrong in law.  The proposition advanced by the plaintiff is not consistent with the reasoning of the Full Court in Hall v Burnside[15] and in Bade.[16]The decision of Debelle J in McKay v Alexandrina District Council is not authority for a contrary approach.  In McKay the holder of planning consent abided the event and there was no evidence of substantial prejudice.  If McKay were authority for a different approach, that would involve the error identified by the Full Court in Bade.  The correct approach is that once the existence of substantial prejudice is established, an extension of time will not be granted for the reasons stated by McHugh J in Brisbane South Regional Health Authority v Taylor.[17]

    The submissions of the second and third defendants

    [15] At [53]-[55].

    [16] At [100].

    [17] (1996) 186 CLR 541 at 554-555.

    Delay

30. Counsel for Stuart Range submits that, leaving aside the Council’s case that the plaintiff became aware of the development consent in March 2018, the plaintiff was informed on three occasions during June 2018 of the grant of planning consent.  That occurred on 6 June 2019 when the statement of claim in the defamation proceedings was served on Peter Pantelis, again on 21 June 2018 when Cr Wayne confirmed in an email message to him and again on 27 June 2018 when Mr Riches, a Council officer, confirmed by email message that approval had been granted.

31. Stuart Range also submits that Peter Pantelis failed to disclose in his first affidavit information that he had received on 21 June 2018 from Cr Wayne and again on 27 June 2018 from Mr Riches.  These matters were only disclosed in a second affidavit after senior counsel for the Council referred to these facts during a directions hearing on 28 September 2018.

32. Stuart Range also submits that no proper explanation has been provided on behalf of the plaintiff as to why these proceedings were not instituted in the period of more than six weeks from 6 June 2018 to 22 July 2018.  Stuart Range further submits that no proper explanation has been provided as to why it took a further two months after 22 July 2018 until the proceedings were commenced.  The only attempt to explain the delay has been an oblique reference to the fact that the plaintiff’s solicitor was overseas on holiday for the whole of July 2018. 

33. Stuart Range also submits that the delay by the plaintiff must be considered in the context that the Pantelis brothers had resolved as early as March 2016 to “go to war” with the second and third defendants and Mr Athanasiadis over the proposal to build a new service station at Stuart Range. The delay also needs to be considered in the context that the plaintiff is a commercial competitor and has initiated the proposed judicial review to enhance its commercial interests. In that context, Stuart Range refers to the notice given by the plaintiff under s 88B of the Development Act.  In these circumstances, Stuart Range contends that the plaintiff has clearly been guilty of a failure to exercise reasonable diligence to protect its own commercial interests.

1. Hall v Burnside establishes that substantial weight is to be given to the fact that the six-month time limit has been imposed.  The prejudice to a respondent caused by an extension of time is not diminished by the fact that the respondent would still have suffered such prejudice even if the application had been lodged just within time.[18]  Stuart Range also observes that McHugh J in Brisbane South Regional Health Authority v Taylor made observations to like effect.[19]  The issue for the Court is the prejudice that will arise if an extension of time is granted.  The effect of the grant of an extension of time is to force a defendant to face a challenge from which it had previously been freed by the expiry of the limitation period.

   [18] At [54]-[55].

   [19] (1996) 186 CLR 541 at 554-555.

   Prejudice

2. Stuart Range submits that permission should not be granted to the plaintiff to proceed with judicial review as it will suffer substantial prejudice.  Stuart Range spent approximately $140,000 in relation to the development application over the period from May 2014 to 22 July 2018.  It spent a further $9,900 in the period from 22 July 2018 to 29 August 2018 (the latter being the date that the plaintiff gave notice of its intention to bring these proceedings).  Stuart Range has spent a further sum of $24,170 after 29 August 2018 in relation to the proposed development.  Stuart Range submits that the prejudice it would suffer if the time limit were to be extended is very similar to the prejudice identified by Doyle CJ in Hall v Burnside.[20]

   [20] At [52]-[56].

3. Stuart Range contends that the observations made by Debelle J in McKay v Alexandrina Council that prejudice did not start to run until the developer was in a position to commence works in reliance upon a full development approval, are inconsistent with the finding of the Full Court in Hall v Burnside.

   Other matters

4. While Stuart Range concedes that the plaintiff has an arguable case, it also submits that the Court should be cautious when considering the likely outcome of the proposed judicial review should an extension of time be granted.  Counsel for Stuart Range particularly stresses that point in relation to the plaintiff’s contention that approval is vitiated by a reasonable apprehension of bias.  In that regard, the evidence of Cr Wayne should be afforded little weight. 

5. Counsel for Stuart Range supports its contention about the adoption of a cautious approach in relation to the prospects of success by reference to the observations of Brennan CJ and McHugh J in Jackamarra (an infant) v Krakouer.[21]  Stuart Range also submits that the fact that the plaintiff seeks declarations is not a reason to extend the time to commence judicial review proceedings.[22]  Stuart Range further submits that the plaintiff is mistaken in its contention that because two of its primary grounds of challenge to the development approval, namely the alleged lack of an effective delegation of power to the decision maker and a reasonable apprehension of bias, involve jurisdictional error, the Court should apply a different standard when exercising its discretion as to the extension of time.  Counsel for Stuart Range submits that virtually all judicial review proceedings involve an allegation of jurisdictional error and consequential nullity of the impugned decision.  Counsel referred to the commentary by Aronson and Groves in Judicial Review of Administrative Action in support of its contention that counsel for the plaintiff has erred in the reliance placed upon concepts of jurisdictional error and nullity.[23]

   [21] (1998) 195 CLR 516 at [9].

   [22] Hall v Burnside at [57]-[60].

   [23] (Law Book Co, 5^th edn, 2013) at [10.10]-[10.30].

6. Counsel for Stuart Range acknowledges that if the plaintiff were to make out its challenge based upon apprehended bias, both jurisdictional error and nullity would be established. However, it is said to be much less clear whether the failure to have a delegation policy as required by s 34(27) of the Development Act would result in nullity.  Counsel submits that this question should be approached by reference to the principles of statutory interpretation stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[24]

   [24] (1998) 194 CLR 355.

7. Stuart Range also submits that there is no authority supporting the proposition that the Court should more readily grant an extension of time where the applicant seeks to challenge a decision based on an alleged nullity.  This is no more than a run-of-the-mill judicial review case.  Furthermore, Stuart Range submits that there is a public interest in insulating defective decisions, and even “a vulnerable” decision, from challenge after the expiry of the limitation period.  The suggestion by the plaintiff that there is a broader public interest at stake relating to the integrity of public administration by the Council “should be treated with the necessary cynicism”.  The plaintiff is merely seeking to protect its own private financial interests as a competitor of the proposed new service station.

8. Stuart Range also notes that the public interest in protecting defective decisions from challenge after the expiry of the limitation period was recognised by Bleby J in Colmer v Alexandrina Council.[25]  That case is similar to the present matter in that it involved a challenge to a development approval based upon an alleged error in categorising the development.  Bleby J refused an extension of time even though he acknowledged that there was clearly an arguable case that the development consent was invalid and the decision of the Council was vulnerable.  In arriving at that decision, Bleby J also took into account the financial prejudice to the respondents.

   [25] [2009] SASC 13 at [98].

9. Stuart Range also submits that it was quite apparent that Ms Hogan clearly relied on a 22 page “delegated planning report” prepared by the Council consultant, URPS, when she granted development approval.  While Ms Hogan signed the URPS report several days after she made the planning decision, it is apparent that she relied upon that report when making her decision because the conditions attached to her approval, and also the advisory notes, precisely reflect the content of the URPS report.

10. For these reasons, Stuart Range submits that an extension of time should be refused. 

    Findings of fact

    Failure to give public notice

11. Regulation 98 of the Development Regulations directs that a relevant authority must keep available for public inspection without fee during its normal office hours a register of applications for consent, approval, or the assignment of building classifications under the Development Act.  The Council is a relevant authority for the purposes of reg 98.  Regulation 98(2) stipulates, amongst other matters, that the Register must record any decision on an application, including the date of the decision and any conditions that have been imposed.  Regulation 98(3) requires that a relevant authority may, on payment of a fee fixed by the authority, make available to a member of the public a copy of any part of a Register.  Importantly for present purposes, reg 98(3a) requires a relevant authority to publish the Register on the internet and to update the information so published within a reasonable time after the Register has been updated. 

12. Ms Williams deposed in her first affidavit that the Register had been regularly updated on a monthly basis and was up-to-date at all material times.  She further stated that she had investigated the statement by Peter Pantelis in his first affidavit that the version of the Register published on the Council’s website did not disclose that the planning consent had been granted in respect of the Application.  Her enquiries had shown that for unknown reasons during 2018 it had not been possible to upload the current version of the Register onto the Council’s website.  An earlier version of the Register had appeared on the website, which did not disclose that the planning consent had been granted on 22 January 2018. 

13. Further evidence of Ms Williams was that the Council had experienced difficulty with publishing its meeting agendas and related material on its website during 2017 and 2018.  Ms Williams had sought assistance from the Local Government Association in resolving those difficulties.  However, Ms Williams was not responsible for the publication of the Register, and while she was aware that it had not been updated, her evidence did not reveal what steps, if any, had been taken to resolve that problem. 

14. In any event, whatever the cause of the problem and regardless of the adequacy of any steps taken to resolve the difficulty, the fact is that for a substantial period the Council failed to comply with its statutory duty to ensure that the public had ready access to reliable and timely information about development approvals. 

15. The unchallenged evidence is that Sykes Bidstrup Lawyers undertook searches of the Register published on the Council’s website during the period from 6 June to 26 June 2018.  At that time, the published version of the Register recorded that the Application had been made but not yet decided. Peter Pantelis also deposed that on 21 September 2018 he had personally conducted a search of the Council website and found that it still recorded that the Application had not yet been decided.  He exhibited to his affidavit an extract from the Register that had been downloaded from the website on 21 September 2018.

16. In his second affidavit dated 23 October 2018 Peter Pantelis stated that the Council had amended the information recorded on the Register to record that planning approval had been granted to Stuart Range on 22 January 2018.  He also stated that the Register indicated that Stuart Range was yet to obtain building approval, land division approval and development approval. 

17. In light of the evidence of Peter Pantelis and Ms Williams, I find that on an unknown date on or after 21 September 2018 and on or before 23 October 2018 the version of the Register published on the internet was amended to record that planning consent had been given for the Application.

18. The evidence is that the version of the Register published on the internet did not record that planning consent had been given until after the plaintiff commenced these proceedings on 21 September 2018. This is a matter of very considerable importance in relation to the extension of time application. The publication of correct and up to date information about the status of the Application on the Council website was not merely a courtesy to the public, but the performance of a statutory duty.  It can safely be inferred that a prime reason for the imposition of this statutory duty is to assist those interested in the outcome of development applications to appeal or seek judicial review in a timely way. 

    The Council agenda

19. Mr Grant Riches referred to the grant of development plan consent for the Stuart Range project in the “Status Report” that was included in the agenda of the Council meeting held on 20 February 2018. Ms Williams stated that she had uploaded this agenda onto the Council website prior to the inspection by Chris and Yanni Pantelis on 19 March 2018 of documents released under the FOI Act.

20. The reference in the Status Report to the grant of development plan consent for the Stuart Range project appeared on page 44 of 90 pages of agenda items.  In light of the Council’s statutory duty to publish the Register on the Internet, and also having regard to the earlier statements made by its solicitors, there is absolutely no reason why Peter Pantelis or one of his brothers should be expected to search a considerable volume of irrelevant material each time the Council had a meeting so as to establish whether or not the Application had been approved.

    The FOI inspection

21. The response by the Council to the FOI application was less than satisfactory. The Council took more than eight months before access was granted to the documents initially sought by Minicozzi Lawyers on behalf of Peter Pantelis. That is far in excess of the 30 days allowed under s 14 of the FOI Act.[26] A limited part of that delay may be explained by the duty under s 27 and s 28 of the FOI Act to consult third parties whose business or personal affairs may be affected by disclosure. The statutory processing period of 30 days would have been extended because one of the persons consulted made an objection to disclosure. The duration of that extension has not been established.

    [26] In the absence of an extension of time granted by the Chief Executive of the relevant agency under s 14A.

22. Senior counsel for the plaintiff strongly challenged the evidence of Ms Williams that the FOI decision had been delayed while she sought advice as to whether inspection of the plans and related documents sought by Peter Pantelis would give rise to a breach of copyright. While a person with greater expertise is likely to have known that such an enquiry was unnecessary as the FOI application only sought inspection and not copying of documents, she stated that she made a phone call to the Office of the Ombudsman. She was told that she should obtain legal advice.[27] Whether the response by the Ombudsman’s staff was immediate or delayed has not been established. In any event, Ms Williams did not suggest that she then sought legal advice. I do not consider that the misunderstanding about copyright adequately explains the long delay in dealing with the FOI application.

    [27] The functions of the Ombudsman under the Ombudsman Act 1972 (SA) do not extend to the giving of legal or other advice. Thus, the advice allegedly given by the Ombudsman’s office is entirely plausible.

23. I am not persuaded that Ms Williams was untruthful in relation to the enquiries she said that she made about the copyright issue.  While Ms Williams is the Council’s accredited FOI Officer, and she stated that she had undertaken the mandatory training that is required to achieve accreditation,[28] my clear impression of her evidence is that she is not very knowledgeable about FOI matters and genuinely needed advice or assistance. 

    [28] See the definition of “accredited FOI officer” in s 4(1) of the FOI Act.

24. Senior counsel for the plaintiffs also sought an explanation from Ms Williams as to why she provided access to the entire development file, rather than only those documents that were the subject of the determination made by Ms Hogan under the FOI Act. Ms Williams stated that she had simply given access to the entire file as instructed by Ms Hogan.

25. Ms Williams stated that on 1 February 2018 she had recorded in an index or table of contents located on the inside cover of the file that the DNF and the related letter had been placed on the file.  While these entries are consistent with the affidavit and oral evidence of Ms Williams, I do not consider that the entries add much weight to her oral evidence. That is because the entries record the date that the documents were created rather than the date they were placed on the file.

26. Ms Williams also exhibited to her second affidavit a screen print or “dump” of an entry in the Council computer system that she states that she prepared on 1 February 2018. This entry records that a letter had been sent to Mr and Mrs Athanasiadis with the DNF.  According to Ms Williams, the entry also means that the documents in question were scanned into the Council’s electronic records system on 1 February 2018, being the same day as the entry in the Council computer system. The fact that an entry was made on the computer system does not, of itself, assist in proving that the letter and the DNF were held on the file when the FOI inspection took place.

27. Ms Williams stated that she had not seen the determination made by Ms Hogan granting access under the FOI Act. Ms Williams also stated that her responsibilities did not ordinarily extend to a direct involvement with development applications and decisions. She had been instructed by Ms Hogan to make available for inspection by the Pantelis brothers the entire development application file. That necessarily included the DNF and the accompanying letter as those documents were at the top of the file.

28. Yanni and Chris Pantelis attended the Council offices on 19 March 2018 to inspect the documents made available pursuant to the FOI applications.  The evidence of Yanni and Chris Pantelis was that the file provided to them by Ms Williams for inspection was 30 cm to 40 cm thick.  They both stated that if the DNF and covering letter had been on the file, they would have seen those documents. 

29. Ms Williams stated that she had remained with Chris and Yanni Pantelis in the Mayor’s office while they inspected the file.  She did not draw their attention to the copy of the DNF and letter that she had previously placed at the top of the file.  While she assumed that the Pantelis brothers would be interested in seeing these documents, she thought that they were already aware that planning consent had been granted because, at that time, she had thought that the decision would have been published on the Council website.  Thus, she had thought that the Pantelis brothers were merely interested in seeing the Stuart Range plans and it was not necessary to draw their attention to the DNF and letter.

30. Each of Ms Williams, Chris Pantelis and Yanni Pantelis were quite defensive of their position when giving oral evidence.  They were each subject to careful cross-examination.  After listening to and observing them each respond to questions, I am not persuaded that any of those three persons were untruthful or lacked proper recall of matters relating to the FOI inspection. However, that finding does not extend to an alleged conversation between Chris Pantelis and Ms Williams which I will refer to shortly.

31. Because I am not persuaded that either Chris or Yanni Pantelis or Ms Williams were untruthful or lacked proper recall, I consider that the DNF and letter were likely to have been on the top of the file as stated by Ms Williams but the Pantelis brothers failed to notice the documents when conducting their inspection.

32. I base that conclusion on several considerations. First, the Pantelis brothers were not aware when they conducted the inspection that planning consent been granted two months earlier.  Moreover, Norman Waterhouse had stated on behalf of the Council on 26 September 2017 that it was unlikely that the development application would be decided before the FOI request. In that light Chris and Yanni Pantelis had no reason to search for a DNF or related documents or to expect to find such documents. Secondly, although the first FOI application had requested access to all documents, the second FOI application only sought access to plans and drawings submitted by the applicant. This suggests that perusal of the plans and drawings was their primary focus, particularly given that they were unaware that the Application had been approved. Thirdly, the file was some 30 cm to 40 cm thick. As their attention was likely to have been focussed on finding and perusing the plans and drawings, the sheer mass of documents on the file rendered it more likely that something would be missed even if located at the top of the file.  Finally, I consider that neither Chris nor Yanni Pantelis was adept in dealing with bureaucratic processes. That is apparent from their later ineffectual attempt to obtain information at the Council office. In addition, their evidence, and also that of their brother Peter, made it very clear that Peter took responsibility on behalf of the family and the plaintiff for dealing with public authorities.

33. There has been no suggestion that Chris and Yanni Pantelis actually located the DNF but chose not to disclose that fact.  The subsequent conduct of the three brothers is entirely inconsistent with that having occurred.

34. The second and third defendants have contended that Chris and Yanni Pantelis should have found the DNF and letter on the file. Accordingly, as they were directors of the plaintiff, it should be regarded as having constructive notice of the decision.  I reject that submission.

1. I will consider the length of the delay and the reasons for delay together as the two issues are inextricably mixed in this case.

2. The judicial review application was not filed with the Court until 21 September 2018.  However, the impugned decision was made on 22 January 2018 and thus the six months allowed under r 200 had expired on 22 July 2018.  The application was therefore two months out of time.

3. I have found at [134] that the inclusion in the agenda for the Council meeting held on 20 February 2018 of the document disclosing that development plan consent had been granted in respect of the Application was not sufficient to put the plaintiff on notice of the decision.  I have reached the same conclusion at [149] in relation to the FOI inspection conducted on 22 March 2018.  I have also found at [175] that an adverse view should not be taken of the ineffectual enquiries made with the Council by Chris and Yanni Pantelis on 22 June 2018.

4. Because the failure of the Council to respond appropriately to the personal enquiry made by Chris and Yanni Pantelis occurred only shortly before correct information was supplied by Cr Wayne and Mr Riches, I attach no weight to that failure. However, in other circumstances, it may potentially be necessary to attach considerable weight to such a failure by a council.

5. I have also have found at [160] that Peter Pantelis had proper reasons to distrust, and did distrust, the reference to “all necessary approvals” in the defamation statement of claim served on him by Mr Athanasiadis on 6 June 2018.

6. Peter Pantelis was advised in late June 2018 by both Cr Wayne and Mr Riches that planning consent had been granted.  From that time I have found Peter Pantelis, and thus the plaintiff, was in possession of sufficient information to raise a real doubt in the mind of a prudent person as to the reliability of the information published by the Council on its website. I have also found that if further enquiries had been pursued promptly, the information obtained from Mr Pitman on 10 August 2018 could have been obtained in late June or early July, several weeks before the time limit expired.  However, in assessing the significance of the delay, and weighing that against the other relevant considerations, it is appropriate to give considerable weight to the fact that Peter Pantelis, and thus the plaintiff, relied on the incorrect information published by the Council due to its failure to update its website as required by reg 98 of the Development Regulations.

7. The Council failed to publish the decision to grant planning consent on its website until sometime between 21 September 2018 and 23 October 2018, i.e. after the lodgement of the judicial review application.  If the Council had complied with its statutory duty to publish, the grant of planning approval would have become known to the plaintiff very soon after Mr Sykes Bidstrup’s first inspection of the website on 6 June 2018. The enquiries that were made with Cr Wayne and Mr Riches in late June 2018, and with Mr Pitman in early August 2018, would not have been necessary.

8. Six weeks elapsed between 10 August 2018, when the plaintiff definitely confirmed that planning consent had been granted, and 21 September 2018, when the judicial review application was lodged. However, more than six weeks had passed between the first search conducted by Mr Sykes Bidstrup on 6 June 2018 and the expiry of the limitation period on 21 July 2018. In that light, I am satisfied that if the Council had complied in a timely manner with its duty to publish the decision on the website, the judicial review application is likely to have been lodged within time. By that I mean that the application is likely to have been lodged no later than six weeks after 6 June 2018, before 21 July 2018.   While I recognise that Mr Sykes Bidstrup was absent for the whole of July 2018, he was not then acting for the plaintiff.  The important point is that the plaintiff lost the opportunity to instruct another lawyer because of the failure by the Council to meets its statutory duty to give public notice.

9. For the preceding reasons, I consider that very substantial weight must be given to the failure of the Council to meet its statutory duty to publish. The significance of that failure is reinforced by the correspondence sent on behalf of the Council by its solicitors in late 2017.  While a careful reading of the correspondence shows that the solicitors did not give a specific undertaking on behalf of the Council, I am satisfied that the relevant letter created an impression in the mind of Peter Pantelis, and thus the plaintiff, that the Council would not decide the application for planning consent before it determined the FOI application. 

10. Furthermore, the Council had been informed in writing by Minicozzi Lawyers of the plaintiff’s keen interest in the Application and the Council’s lawyers had said they did not see any reason why the plaintiff could not be informed of the decision.  No explanation has been provided by the Council as to why Ms Hogan did not act consistently with that statement and inform the plaintiff of the decision when she advised that the FOI application had been decided.

11. While the Council was not legally obliged to inform the plaintiff of the decision (other than through publication on the website and assuming for the moment that the development was correctly classified), notification would have been consistent with the earlier correspondence from the Council’s solicitors and the Council’s knowledge of the plaintiff’s keen interest in the matter. In this respect, I observe that Bleby J held (with Doyle CJ and Anderson J agreeing) in Bade that a failure to inform a person who was known to have a keen interest about the outcome of a development application was a relevant consideration when deciding whether to grant an extension of time even though there was no legal obligation to provide that information. While Bleby J suggested that the conduct of the defendant in Bade “smacked of deliberate concealment”,[45] the evidence here does not permit me to make such a finding. However, the fact is that the failure of the Council to act consistently with the intimations conveyed by its solicitors, or to withdraw what they had said on its behalf, significantly influenced Peter Pantelis and the plaintiff. That is a relevant consideration in making the decision as to whether time should be extended.

    [45] (2008) 101 SASR 302 at [103].

12. While Mr Athanasiadis was not under any legal obligation to inform the plaintiff or the Pantelis family of the decision, he was aware from the enquiries made with him by Peter Pantelis as early as 2016 that the plaintiff and the Pantelis family were keenly interested in his application.  In those circumstances, he might have instructed his solicitors to respond to the enquiries made on behalf of Peter Pantelis concerning his statement in the defamation proceeding that he had received all necessary approvals for the development of Stuart Range.  However, the Pantelis family and Mr Athanasiadis were business competitors rather than neighbouring residents as was the case in Bade.  Thus, I do not attach any weight to the failure of Mr Athanasiadis to instruct his solicitors to respond positively to the enquiries made by Mr Sykes Bidstrup. 

    Prejudice to the defendants

13. The Council as first defendant does not contend that it would suffer any prejudice if an extension of time and permission to proceed were to be granted to the plaintiff.  However, Stuart Range submits that it will suffer substantial prejudice.

14. I am bound by the statement made by Doyle CJ (with Duggan J agreeing) in Hall v Burnside that when considering whether the interests of justice require that an extension of time be granted, substantial weight must be given to the fact that a six-month time limit has been imposed. As Doyle CJ explained, that is because the limit represents a judgement as to what is the appropriate time limit having regard to the public interest and also the interests of the individuals who have an interest in the particular case.  When the time limit was imposed and its length determined, it was recognised that it may result in a cause of action being defeated.

15. In the present case, Stuart Range has the considerable benefit of the planning consent granted to it on 22 January 2018.  Unless an extension of time was granted, the planning consent became immune from challenge on 22 July 2018. The question is whether the matters relied upon by the plaintiff provide sufficient cause for the Court to exercise its discretion to grant an extension of time and thereby put at risk that significant right held by Stuart Range. 

16. The plaintiff contends that Stuart Range has only incurred expenditure of a little under $12,000 in the period between planning consent being granted on 22 January 2018 and 29 August 2018, being the date of the plaintiff’s warning letter.  That amount is said by the plaintiff to be insignificant.  However, Stuart Range points to its expenditure of about $140,000 in the period from 30 May 2014 until to 22 July 2018 (when the time limit expired) and thereafter a further $9,900 up until 29 August 2018.  Stuart Range does not rely on its expenditure after the warning letter.

17. The plaintiff relies upon the decision of Debelle J in McKay v Alexandrina Council where his Honour observed that there was no evidence of any prejudice to the defendant as he was not in a position to commence construction until he obtained development approval and, even then, he had not commenced construction. The plaintiff submits that McKay demonstrates that prejudice in a case such as this does not commence to run until a developer is in a position to commence work in reliance upon the final development approval.[46]  If that contention is correct, none of the outlay by Stuart Range is relevant to the assessment of prejudice.

    [46] (2003) 128 LGERA 375 at [11].

18. The circumstances in McKay were very different to the present matter. The defendant developer had applied frequently to vary the planning consent and he did not obtain final development approval until some 17 months after the impugned decision to grant planning consent. He had also delayed the commencement of building work and sought several extensions of time in which to commence construction. In fact, he had not undertaken any significant building work until the day prior to the lodgement of the judicial review application. The plaintiff had also made constant representations about its concerns to the Council and the developer was aware of the plaintiff’s concerns. Unsurprisingly in the circumstances, the defendant developer abided the decision of the Court and did not suggest that he had suffered any prejudice due to the delay in commencing proceedings. For that reason, the persuasive value of the observation made by Debelle J is much reduced. The question is whether his Honour’s observation is consistent with later decisions of the Full Court.

19. In Hall v Burnside Doyle CJ referred to the fact that the respondent had expended some $300,000 on the proposed development and on the legal disputes arising from it.  His Honour did not break down the expenditure into amounts referable to particular time periods. It therefore appears that his Honour took into account the entirety of the expenditure incurred by the defendant and did not restrict consideration to the outlays it had made after the grant of final development approval. 

20. Bleby J (with Doyle CJ and Anderson J agreeing) found in Bade that the evidence of the amount expended by the defendants was “somewhat uncertain”.  While Bleby J apparently took the expenditure into account, his Honour found that other considerations supported the decision to grant an extension of time.  

21. I consider that the conclusion reached by Kourakis J (with Sulan J agreeing) in Hall No 8 that only prejudice after the cause of action arose can be taken into account is equally applicable to this case. The cause of action did not arise until planning consent was granted on 22 January 2018. Thus, consistently with the reasoning of Kourakis J in Hall No 8, I do not consider that the expenditure made by Stuart Range prior to the grant of planning consent can be taken into account in the assessment of prejudice.

22. Even if I am mistaken in my understanding of the ratio of Hall No 8, the significance of expenditure made prior to the grant of planning consent to the assessment of prejudice is substantially reduced by the fact that much of the work will not be thrown away should the plaintiff’s judicial review application succeed. That is because if an extension of time is granted and the planning consent is set aside, Stuart Range will presumably make a further application to the Council. The first affidavit of Mr Athanasiadis shows that the preponderance of expenditure prior to 22 January 2018 was on design and planning work. Much of the product of that work should be reusable in support of a fresh application for planning consent.

23. There is a further consideration that reduces the significance that might otherwise be attached to the expenditure made prior to the grant of planning consent. A number of conditions have been attached to the consent that must be fulfilled before the development can proceed. Those conditions concern water flow and pressure, adequacy of the electricity supply, entry into a development agreement with the Council concerning works upon Council roads and entry into a similar agreement with DPTI concerning works upon its roads. The plaintiff has also suggested, and Stuart Range has not submitted otherwise, that it will be necessary for Stuart Range to obtain approval under ss 221 and 222 of the Local Government Act for alterations to Council roads and the use of roads for truck parking.  The plaintiff has also observed that a portion of the land to be comprised in the proposed development is currently dedicated as a plantation reserve under what is now the Crown Lands Management Act 2009 (SA). It therefore appears that the development cannot proceed in its currently proposed form without the approval of the Minister responsible for the administration of the Crown Lands Management Act.

24. Some of the conditions attached to the planning consent may possibly be satisfied by appropriate expenditure on the necessary works, e.g. the conditions relating to electricity and water supply. The condition requiring entry into a development agreement concerning works upon Council roads effectively requires further Council approval. Given that the Council has granted planning consent, it might be thought that it would be favourably disposed to entering such an agreement.  However, the issues are not identical and I also note that the Council has experienced a significant change in its decision makers subsequent to the grant of planning consent in January 2018.[47] Moreover, certain of the conditions can only be satisfied with the approval of the Minister responsible for the Crown Lands Management Act or DPTI.

    [47] It has been accepted in the course of these proceedings that the Chief Executive has changed, an election has been conducted and the Minister for Local Government has suspended the Council and appointed an administrator to manage its affairs.

25. In some respects, the present matter is no different to a case where a defendant has been granted planning consent but also requires building rules consent before it can obtain development approval. However, Stuart Range requires not only building rules consent but also a series of other approvals before it can commence construction. There is no evidence before the Court and I cannot speculate about the likelihood of Stuart Range being granted approval in respect of the various additional matters. For that reason, I simply proceed on the basis that Stuart Range holds planning consent and that this will be put at risk by the grant of an extension of time. 

    Prospects of success

26. Each of the three defendants concedes that the plaintiff has an arguable case.  However, they contend that the existence of an arguable case is not a sufficient basis, of itself, to grant an extension of time and permission to proceed.[48] I accept that proposition but also note that the strength of a plaintiff’s case is an important consideration.[49]

    [48] RW v Minister for Education and Child Development [2016] SASC 158 at [149] (Doyle J).

    [49] Bade v Rural City of Murray Bridge (2008) 101 SASR 302 at [126]; Glass v Chief Examiner (2015) 50 VR 577 at [71]..

27. The defendants have not suggested that the plaintiff lacks standing to pursue the judicial review application. However, the mere fact that the plaintiff has standing does not strengthen the case for an extension of time. The only relevance of standing to such an application is that if standing was plainly lacking, the extension and permission to proceed must be refused.

28. Each of the defendants has conceded that the plaintiff’s case is arguable. While the strength of a plaintiff’s case is an important consideration in determining whether an extension of time should be granted, not a great deal has been said by the parties about the relative strength of the plaintiff’s contention that the Council erred in its assessment of the Application. However, as I have noted at [93], the Council submits that the plaintiff’s contentions have ignored a number of considerations relevant to the planning issues and the plaintiff’s case is not strong.

29. I proceed on the basis that the plaintiff has an arguable case in relation to the planning issues. However, I also accept the Council’s submission that as far as the planning issues are concerned this is no more than a “run-of-the-mill” case.

30. When considering an application for an extension of time, I can do no more than make a preliminary assessment of the merits of the plaintiff’s case.[50]  Nevertheless, I have found that the evidence of Cr Wayne provides very little support for the contention that the decision of Ms Hogan was subject to a reasonable apprehension of bias. Thus, as matters presently stand, I am not persuaded that there is an arguable case that the decision of Ms Hogan could be found invalid due to a reasonable apprehension of bias. 

    [50] Jackamarra v Krakouer (1998) 195 CLR 516 at [3] (Brennan CJ and McHugh J), [66] (Kirby J).

31. The Council has acknowledged that it is arguable that the plaintiff is correct in its contention that the delegations of power and authority by the Council were invalidated by the lack of a policy adopted under s 34(27) of the Development Act. While the Council has apparently since adopted the required policy, there is a possibility that decisions previously made by the Council were invalid.  Whether or not the delegations were invalid due to the lack of a policy turns upon the application of the principles identified by the High Court in Project Blue Sky and Australian Broadcasting Corporation v Redmore Pty Ltd.[51]  The matter is plainly arguable and may have wider consequences even though the Council has apparently dealt with the issue.

    [51] (1989) 166 CLR 454.

32. The plaintiff also asserts that the delegation by the Council to Ms Hogan was invalid as it was expressed as having been made under s 44 of the Local Government Act rather than s 34 of the Development Act.  As I understand the plaintiff’s case, the contention is that conferral of a specific power to delegate under the Development Act, which is subject to the requirement in s 34(27) that the delegation be made in accordance with a policy adopted by the Council, precludes the use of power to delegate in s 44 of the Local Government Act.  In my view, a number of questions are seriously arguable concerning the validity of the delegation.  Once again, whether the use of an alternative power to delegate results in invalidity raises the statutory interpretation principles considered by the High Court in Project Blue Sky and Redmore. There may also be a question as to whether the use of an alternative power, that is not subject to a specific procedural requirement attached to the primary source of power (i.e. compliance with the policy), offends the principles applied by the High Court in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia[52] and Shop, Distributive & Allied Employees Association v Minister for Industrial Affairs (SA).[53]

    [52] (1932) 47 CLR 1.

    [53] (1995) 183 CLR 552.

1. The Council seeks to support the validity of its delegation with the submission that the grounds advanced by the plaintiff confuse the identification of the source of the power with the existence of that power.  That response by the Council relies upon the decision of the High Court in Attorney-General (SA) v Corporation of the City of Adelaide.[54] I consider that this proposition is also arguable.

   [54] (2013) 249 CLR 1.

2. A further basis upon which the delegation of power by the Council to Ms Hogan is alleged by the plaintiff to be invalid is that the Delegations and Sub Delegations Manual upon which the Council relies as the relevant instrument of delegation has not been clearly identified as the same document referred to in the resolution adopted by the Council on 17 May 2016. The plaintiff suggests that there are number of discrepancies between the two versions of the Delegations Manual disclosed by the Council. However, the Council contends that the alleged discrepancies are largely the product of errors in page numbering and the provenance of the document upon which it relies is not seriously in doubt.

3. I hold doubts as to the correspondence between the document now relied upon by the Council and that approved in the resolution of 17 May 2016. However, because the issue turns on facts apparently confined to the Coober Pedy Council and does not have the wider potential consequences for the administration of local government in this State as the questions of statutory interpretation referred to in paragraphs [276] to [277], it is of lesser significance in deciding whether an extension of time should be granted. Nevertheless, it needs to be weighed in the balance.

4. My finding that significant weight ought to be attached to the plaintiff’s several contentions about the validity of the delegations relied upon by the Council is not influenced by the plaintiff’s suggestion that it is acting in the public interest to bring the attention of the Court to the various deficiencies it alleges in the administration of the Council. In my firm view, the plaintiff is motivated solely by obvious commercial considerations.[55]  However, that does not derogate from the significance of the issues that it has raised.

   [55] The plaintiff has given notice as required by s 88B of the Development Act that it has a competitive commercial interest in these proceedings.

5. I accept the correctness of the submissions made by senior counsel for the Council to the effect that if its decision is found to be invalid, the basis for such a finding will be jurisdictional error in one form or another.  I also accept that in most circumstances there is no reason to attach greater significance to one source of jurisdictional error as compared to another when determining whether an extension of time and permission to proceed should be granted. 

6. However, if a plaintiff advances an arguable case that a public authority has acted in a particularly egregious or improper fashion, that will be a very significant consideration when the Court considers whether an extension of time and permission to proceed should be granted. Such an allegation has not been established to my satisfaction in this case.

7. It will also be an important consideration if the plaintiff presents an arguable case that a public authority has proceeded on an invalid basis in respect of a significant matter of public administration that may have wider consequences.  The questions of statutory construction raised in relation to the validity of the delegation relied upon by the Council do fall into that category.

   The significance of the application for declaratory relief

8. The plaintiff has sought declaratory relief concurrently with its judicial review application.  The application for declaration is not subject to the same strict time limit as the application for judicial review.  The plaintiff contends that this is a relevant consideration in determining its application for an extension of time. 

9. This issue was considered by Doyle CJ in Hall v Burnisde.  His Honour expressed an obiter view (with Duggan J agreeing) that if a plaintiff pursued other proceedings, in circumstances where the Court had refused to extend the six‑month period for judicial review, there would be a strong argument that such proceedings should be stayed as an abuse of process.  While it was not necessary to decide this issue, Doyle CJ suggested that the prejudice relied upon by City Apartments could not be answered by saying that the plaintiffs could make the same claims in alternative proceedings.[56] Senior counsel for the plaintiff contends that the views expressed by Doyle CJ should be confined to the facts of Hall.

   [56] (2006) 102 SASR 298 at [58]-[59].

10. Given my conclusion that time for lodgement of the application should be extended on other grounds, it is unnecessary to decide whether the fact that the plaintiff has also sought declaratory relief is a relevant consideration.

    Conclusion

11. I am satisfied that if the Council had published notice of its decision to approve the Application on its website as required by the Development Regulations the plaintiff would have commenced proceedings within the six‑month time limit allowed under r 200.  The obvious purpose of the duty to publish is to ensure that parties are not deprived of their right to either appeal to the ERD Court or to pursue judicial review in this Court.  The significance of the failure by the Council to publish notice as required by law is reinforced by the matters I have referred at [252] to [254]. Because I consider that the plaintiff would have commenced proceedings within time but for the failure of the Council to publish notice of the approval, I am not persuaded that the inaction of the plaintiff between late June 2018 and 21 August 2018 should result in the refusal of an extension of time.

12. I have taken into account the observations made by the Full Court in Hall v Burnside concerning the importance of the limitation period of 6 months and the public policy reasons that have led to its adoption. However, in this case those considerations are outweighed by the matters I have referred to in the previous paragraph.

13. I have found that several important questions of statutory interpretation arise in relation to the validity of the delegation by the Council of the relevant decision-making powers to its then Chief Executive, Ms Hogan.  Those questions are clearly arguable and significant albeit that the lack of a relevant policy has since been rectified. These considerations However, I attach much less weight to the contention that the instrument of delegation relied upon the Council has not been clearly identified as the document referred to in its resolution. I do not attach any weight to the contention that the decision of Ms Hogan was vitiated by a reasonable apprehension of bias.

14. I recognise that Stuart Range will suffer prejudice if the plaintiff is granted an extension of time and permission to proceed as it faces a potential loss of its planning consent. However, in the particular circumstances of this case I consider that Stuart Range should not be advantaged by the failure of the Council to comply with its statutory duty. 

15. For these reasons, I extend the time for lodgement of the plaintiff’s judicial review application to 21 September 2018 and I grant permission for the plaintiff to proceed with that application. 

16. I will hear the parties as to costs.