Gawler Region Community Forum Inc v Minister for Urban Development and Planning

[2011] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

GAWLER REGION COMMUNITY FORUM INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING

[2011] SASC 76

Reasons of Judge Lunn a Master of the Supreme Court

5 May 2011

PROCEDURE

Proceedings for judicial review - permission to proceed under 6R 200(1) - criteria for such permission - held test no higher than that for summary judgment under 6R 232 - where no abuse of process alleged no need in considering permission to go into detailed comparisons with facts of similar decided cases - held no requirement to serve defendant with application for permission and defendant only to be heard on it if Court so directs - whether permission to be subject to condition that owners of affected land be joined as additional defendants - held no such condition to be imposed but direction made that notice be given to such owners - permission granted.

GAWLER REGION COMMUNITY FORUM INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING
[2011] SASC 76

Reasons on plaintiff’s application for permission to proceed with judicial review

1. In this action the plaintiff seeks a declaration that the defendant’s decision to approve the Gawler East Development Plan Amendment on 26 August 2010 was invalid and orders for judicial review in the nature of certiorari and prohibition to quash that approval and to prohibit further consideration of that Amendment.  The summons is supported by an affidavit of Ms Humphrey, the convenor of the plaintiff.  I am considering the plaintiff’s application, FDN2, for permission to proceed with the judicial review part of the proceeding pursuant to 6R 200(1).  The relevant parts of 6R 200 are:

   (1)If a plaintiff claims to be entitled to an order for judicial review, an action for judicial review may be commenced but cannot proceed further in the Court without the Court’s permission.

   …

   (4)The Court may grant permission if the Court is satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review.

2. It is necessary to consider what constitutes “a reasonable basis on which the applicant might establish a right … to judicial review” under sub-r 200(4).  There is no authority on the relevant criteria and on the extent to which the right must be established for this purpose.[1]

   [1]    In Ferdinands v Attorney-General of South Australia, 19 February 2007, [2007] SASC 53, Layton J considered various topics which needed to be considered in deciding whether there was a reasonable basis, but she did not deal with the degree to which they needed to be established.

3. 6R 200(1) and (4) differ significantly from the wording of the equivalent provisions in the repealed 1987 Rules, but it is unclear whether there is any difference in substance.  Under 87R 98.03 a summons seeking judicial review could only be served provided that leave of the Court to do so had been obtained.  Under 87R 98.04A(1) the plaintiff was required to take out an application to seek leave to serve the proceedings.  There was nothing in 87R 98 about the criteria for granting such leave and no express reference to “reasonable basis” or the like.  Cases decided under 87R 98 enunciated tests such as a case fit for argument,[2]  an arguable case[3] and a prima facie case to be demonstrated.[4]  Prior to the 1987 Rules the common law required an applicant for judicial review to obtain an order nisi before being able to serve the defendant.  The tests for granting such an order nisi were showing a prima facie matter of substance which was reasonably arguable and which was fit for the consideration of the Full Court.[5]  It is unclear whether these authorities apply wholly or partly to the test under 6R 200(4).

   [2]    Workers Rehabilitation Corporation v Lieschke, Cox J, 5 November 1992, Judgment No S3698.

   [3]    King v Strickland (1993) 171 LSJS 398.

   [4]    Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7.

   [5]    Re Stan Potter (1984) 117 LSJS 77; R v Stricklandex parte Bartsch (1986) 133 LSJS 468.

4. 6R 232(2)(b) of the current Rules provides that the test for summary judgment against a defendant is whether “there is no reasonable basis for the claim against the applicant” (where the applicant means a defendant applying for summary judgment).  This is similar to the wording, and the substance, of 6R 200(4).  Accordingly, I consider that the degree to which a plaintiff need establish its right to judicial review under 6R 200(4) should not be any greater than that which need be shown for a plaintiff to avoid a summary judgment under 6R 232(2)(b).  It may be that the degree required for sub-r 200(4) is even less.  I need not explore that in this matter.  It is sufficient for me to decide this application on a basis similar to that laid down in 6R 232(2)(b).

5. In Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at 21 the Full Court held that under 6R 232 summary judgment is not to be granted against a plaintiff unless after exercising extreme care the Court was satisfied there was no real question to be tried and that it did not have a reasonable, as distinct from a fanciful, prospect of success. It is only to be granted in clear cases.[6]  It is a low threshold for a plaintiff to cross.

   Whether defendants are entitled to be heard on application for permission to proceed with judicial review

   [6]    Williams v Reid, Gray J, 27 October 2010, [2010] SASC 264.

6. I do not accept the submission of the defendant’s counsel that all defendants in judicial review proceedings are entitled to be heard on whether permission to proceed under 6R 200(1)[7] is to be granted.

   [7]    6R 200(1) is quoted above.

7. Counsel for the defendant relied on 6R 131(2) which states:

   (2)The applicant must give the other parties affected by the application written notice of the time and place appointed for hearing the application at least two days before the time appointed for the hearing.

   He also referred to the now repealed 87R 98.03 which provided:

   A summons seeking judicial review may only be served provided that leave of the Court to do so has first been obtained.

   He submitted that as there was no direct equivalent of this Rule in the new 2006 Rules the usual practice should apply that all parties interested in the relief sought should be heard on the application for permission. 

8. It should be noted that 6R 60(1) provides:

   (1)A party that files a document in the Court after the primary action has been commenced must, as soon as practicable after the document is filed, serve a copy of the document on all other parties for whom a current address for service is on the file in the Court.

   However, sub-r (1) does not apply to:

   (a)A document relating to an application that may be made without notice to other parties …

   Here, the defendant did not have an address for service on file at the date the interlocutory application was issued.[8]

   [8]    The application was filed on 24 February 2011 and the address for service was filed on 2 March 2011.

9. I consider that 6R 200(1) bars the plaintiff from serving the summons for judicial review until permission to proceed has been granted.  Service is a step in the action.[9]  The provision in 6R 200 that the action cannot proceed further without permission is an indirect equivalent of 87R 98.03.  Such a combination of 87R R98.04A(1)(a) and 98.03 is consistent with the more economical drafting style used in the 2006 Rules when compared with the 1987 Rules.  6R 131(2) only applies where the application is inter partes which is not the case under 6R 200(1).  Insofar as there is any inconsistency between 6R 200(1) and 6R 131(2) the latter as the general provision is overridden by the former specific provision.

   [9]    In some cases inter partes orders, such as for a stay, may be urgently required.  In those cases it would be necessary to seek a dispensation from 6R 200(1).

10. Under the 1987 Rules and its predecessors the requirement to obtain leave to serve proceedings for what is now judicial review was a screening exercise to ensure that the time and resources of the Court, and of defendants, were not wasted on actions which had no realistic prospect of success.  Traditionally, the screening exercise was carried out by Judges or Masters reviewing the papers filed by the plaintiff.  In the vast majority of cases leave to serve was either granted or refused after a short hearing.  In some more complex and difficult cases the Court would direct that the application for leave be served on the defendant so that it could be heard, where the Court thought that was desirable, before ruling on whether there should be leave to serve.  However, that was the exceptional case and not the norm.  In my view, the present Rules have not changed the practice to be that the defendant in every case is entitled to be heard on the applications for permission under 6R 200(1) and to put forward detailed submissions in opposition to the relief sought.  In most cases that only causes unnecessary delay and increases the costs.  The Court can still direct service of the application on the defendant if it considers that course is warranted.  If after permission has been granted and, the defendant considers that it was not appropriate, there is nothing to stop it either applying to rescind the permission or applying for summary judgment under 6R 232(2)(b).

11. Counsel for the plaintiff did not oppose the defendant being heard on its application and so I heard its submissions.

    Comparison with decided cases

12. Counsel for the defendant sought to make much of alleged inconsistencies between what the plaintiff was seeking to establish in this action and what was decided in an earlier similar case by Duggan J.[10]  For the purposes of this exercise, I accept the submissions about the considerable similarity in the two cases.  However, I do not consider that it is necessary, or desirable, on an application under 6R 200(4) to go into detailed comparisons of the factual scenario of the case at bar and those of previously decided cases.

    [10]   Town of Gawler v Minister for Urban Development, Duggan J, 25 February 2011, [2011] SASC 26.

13. It needs to be borne in mind that the Town of Gawler case involved different, although nearby, land, a different plaintiff and different, although similar, evidence.  While decided cases constitute precedents insofar as they determine questions of law, they are not precedents insofar as they decide questions of fact, or even mixed questions of fact and law.[11]  Unless there is an abuse of process involved, which was not suggested here, a Judge in a case involving different parties when faced with similar evidence to that adduced in an earlier case is not obliged to decide the factual issues in the same way as they had been decided in the previous case, but must decide them as he or she thinks proper on his or her view of the evidence.  Other than in extreme cases, a plaintiff is not to be precluded from having its evidence ruled upon by the trial Judge merely because another Judge earlier may have reached different conclusions on similar evidence.  Although it was not suggested before me that the plaintiff here took any different view of the relevant law to that applied by Duggan J in the Town of Gawler case where it was relevant to the issues in this case, the Court on summary judgment and pleading applications have made some allowances for parties to be able to argue that precedents of law were incorrect.[12]  While that is not directly relevant to this matter, by analogy it would seem that similar latitude should be allowed in respect to factual findings where there is no abuse of process.

    [11]   Qualcast v Haynes [1959] AC 743.

    [12]   ENT Pty Ltd v Mcveigh (1996) 6 TasR 202 at 213-4; P & V Industries Pty Ltd v Porto (2006) 14 VR 1.

14. In considering under 6R 200(4) whether there is a reasonable basis for a right to judicial review, the Court should primarily consider the case put forward by the plaintiff and whether it is bona fide and has a realistic prospect of success, rather than engaging in a laborious process of comparing it with what had been decided in earlier cases and how similar the factual issues might be in the two cases.

    Grounds of application

15. The plaintiff’s supporting affidavit sets out the grounds as follows:

    Grounds of Application

    The Gawler Region Community Forum Inc. seeks the relief set out in the Summons on the following grounds

    36.The Gawler East Development Plan Amendment and the Minister’s decision to approve the Gawler East Development Plan Amendment was invalid because the Minister did not prepare the draft DPA based on investigations initiated by the Minister as required by section 26 of the Development Act. The draft DPA was substantially prepared by Delfin Lend Lease and/or Connor Holmes acting on behalf of Delfin Lend Lease.

    37.The Gawler East Development Plan Amendment and the Minister’s decision to approve the Gawler East Development Plan Amendment was invalid because the Minister at all relevant times when making decisions about a proposed Gawler East Development Plan Amendment for Public Consultation and to appove the Gawler East Development Plan Amendment was also the Minister responsible for administering the Mining Act 1971 and had a conflict of interest in dealing with proposals to rezone land on which an extractive minerals activity was and had been conducted.

    38.The Gawler East Development Plan Amendment and the Minister’s decision to approve the Gawler East Development Plan Amendment was invalid because the Minister’s decision making process gives rise to a reasonable perception of bias as an informed and fair-minded observer would have a reasonable apprehension of bias on the part of the Minister because of the following circumstances:

    38.1The Minister’s involvement in the decision to include land at Gawler East in the Urban Growth Boundary and the Minister’s media statements associated with the decision to include land at Gawler East in the Urban Growth Boundary;

    38.2The decision of the Minister in June 2008 to take responsibility (in place of local councils) for the process of preparing a DPA for Gawler East and the Minister’s media statements associated with this and about the DPA at later stages;

    38.3The DPA was substantially written by Delfin Lend Lease and/or Connor Holmes acting on behalf of Delfin Lend Lease and also thereby, substantially funded by Delfin Lend Lease;

    38.4The extent of involvement of Delfin Lend Lease and Connor Holmes acting on behalf of Delfin Lend Lease in considering issues raised by public and government agency submissions about the DPA;

    38.5The lack of changes made to the Public Consultation DPA in relation to the numerous concerns raise by public submissions; and

    38.6The fact that the Minister was at all relevant times also the Minister responsible for administering the Mining Act 1971 and had responsibility under that Act in considering funding for rehabilitation of land affected by mining for extractive minerals as was the case with the sand mine at Gawler East, and other decision related to the sand mine at Gawler East.

16. I consider that each of these grounds is raised bona fide and is reasonably arguable.  It is not a clear case for there not being reasonable grounds for the right to an order for judicial review.  Accordingly, I am satisfied there is a reasonable basis upon which the applicant might establish a right to an order for judicial review on all these grounds and permission will be granted.

    Need for an additional defendant

17. The defendant contended that if permission was granted, it should be conditional upon the owners of the subject land, or at least the major landholder, being made additional defendants to the action.[13]  Counsel for the defendant cited the following passage from reasons of Bleby J in Bade v Rural City of Murray Bridge & Davies:[14]

    The action is against the Council as the party whose administrative decision is under attack.  However, r 38(4) of the Supreme Court Civil Rules 2006 requires that every person whose interests may be directly and adversely affected by the terms of a judgment, is to be made a defendant to the originating process.  One of the reasons for the Court’s permission being required to proceed with an order for judicial review is not only to be satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review but in order to ensure that all parties who may be adversely affected by the decision are joined as parties and are served with the summons.  Mrs Davies is a defendant in that capacity.

    [13]   It appears that Delfin Lend Lease has acquired contractual rights to 219 hectares of the 320 hectares of the land which is subject to the Development Plan Amendment.

    [14] (2008) 101 SASR 302 at [122].

18. Counsel for the plaintiff opposed it being required to join any land owners.  He submitted it was sufficient to give them notice of the proceedings and to allow them to apply to be joined or to intervene if they so wish.  He cited the decision of Bleby J in The Cheltenham Park Residents Association Inc v Minister for Urban Development (No 2)[15] where in similar proceedings for judicial review to challenge a Development Plan where the land owner had been joined as a defendant in addition to the Minister for Urban Development the Court had refused to order that the ultimately unsuccessful plaintiff pay the costs of the land owner and had decided there was to be no order as to its costs.  I am reluctant to join the land owners as additional defendants if there is doubt that they can recover their costs of the action if the plaintiff is unsuccessful.[16]

    [15] 21 December 2009, [2009] SASC 390.

    [16]   If multiple land owners are separately represented, it is a separate issue whether they would be entitled to their individual costs or only one set of costs between them.  I would expect the land owners to be represented by the one set of lawyers, unless there is good reason why that cannot be done.

19. Although it was not raised in argument, one possible ground of distinguishing Cheltenham Park Residents Association Inc from the present case is that here the plaintiff seeks both a declaration and judicial review, whereas in the Cheltenham Park case the published reasons[17] do not suggest that any declaration was sought in that case.  There is long-standing authority that Courts will not make declarations unless all of the persons interested who would be affected by the declaration are before the Court.[18]  These authorities seem little different from what was stated in Bade v Rural City of Murray Bridge & Davies as quoted above.  I doubt that the Cheltenham Park Residents Association Inc case can be distinguished on the basis that there would have been a different result about the costs of the land owner if a declaration had been sought in the alternative to judicial review.

    [17] [2009] SASC 303 and [2009] SASC 390.

    [18]   Associated Grocers Cooperative Ltd v Hubbard Properties Pty Ltd (1986) 42 SASR 321 at 331; Kadian v Richards (2004) 61 NSW LR 222.

20. The permission to proceed is not to be made conditional upon the land owners being made defendants to the action.  However, in the interests of the administration of justice, a direction will be given that the plaintiff give notice to the land holders so that they can apply, if they so wish, to become defendants or intervenors in the action.  If they choose to do so, it will be at their own risk about costs.  If they choose not to apply to be joined or intervene, presumably they cannot subsequently complain about their interests in the land being adversely affected, if it be the case, by the outcome of this action.

1. I have today made the following orders:

   1Permission to the plaintiff to proceed under 6R 200(1) on the grounds for judicial review set out in paragraphs 36-38 of the affidavit of Shirley Humphrey filed on 24 February 2011.

   2Within 14 days the plaintiff is to give notice in writing by pre-paid post addressed to their last known addresses to all owners of the land which is the subject of the Development Plan Amendment and to anyone known by the plaintiff to have a contractual interest in that land, to the intent that such persons should be at liberty within 21 days of receipt of that notice to apply to the Court either to be joined as a defendant or to intervene in this action.

   3Adjourned to a directions hearing on Tuesday 14 June 2011 at 9.30am.