Hall & Ors v City of Burnside & Ors - [2006] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
HALL & ORS v CITY OF BURNSIDE & ORS
[2006] SASC 283
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
12 September 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EXTENSION OF TIME
Application for leave to appeal against a decision by a Supreme Court Judge extending the time within which an action for judicial review could be brought to review the grant of provisional and final building approval pursuant to s 33(1)(b) and 33(4) of the Development Act 1993 (SA) - proceedings brought 11 months out of time - whether an extension of time should be granted - the appellant has committed considerable finance to the development the subject of the appeal - the respondents' claim inter alia that the development approval is invalid for the reason that it was granted out of time and for the reason that it now fails to comply with the approval so granted - the respondents also raise a claim as to nuisance relating to the potential for the development to interfere with property owned by Dr Halcrow - the prejudice relied upon by the appellant is not answered by the respondents' argument that the respondents could bring the same claims by way of another action other than an action for judicial review - consideration of the applicable Supreme Court Rules - consideration of the rules and of relevant case law - the public interest is best served by strict application of the limitation period applicable to claims for judicial review - arguable case disclosed by the appellants' appeal - application for leave to appeal granted - appeal allowed.
Development Act 1993 (SA) s 33(1)(b), 33(4); Supreme Court Rules 1987 (SA) r 3.04(d), 6.02(1), 94.03(c), 98.01(3), 98.06, 98.11(5), referred to.
Hall v City of Burnside & City Apartments Pty Ltd (2005) 92 SASR 579; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Clayton v Ralphs (1987) 45 SASR 347; Xenophon v State of South Australia (2000) 78 SASR 251; Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; Jackamarra v Krakouer (1998) 195 CLR 516; Esther Investments Pty Ltd v Markalinga [1989] 2 WAR 196; Palata Investments Ltd v Burt and Sinfield Ltd [1985] 1 WLR 942; McKay v Alexandrina Council (2003) 227 LSJS 442, discussed.

HALL & ORS v CITY OF BURNSIDE & ORS
[2006] SASC 283
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: A Judge made an order extending the period of six months, specified by r 98.06 of the Supreme Court Rules 1987, within which Mr and Mrs Hall (“the Halls”) as first plaintiff and Dr Halcrow (as second plaintiff) could commence proceedings seeking judicial review. The proceedings challenge the validity of a decision to grant provisional building rules consent pursuant to s 33(1)(b) of the Development Act 1993 (SA) (“the Act”) and a decision to grant final development approval under s 33(4) of the Act.
The former consent (the building consent) was granted by a private certifier. The latter consent (the development approval) was granted by City of Burnside (“the Council”).
City Apartments Pty Ltd (“City Apartments”), on whose application the consents were granted, has applied for leave to appeal against the decision to extend the six month period.
The Court exercised the power conferred by r 94.03(c) of the Rules and referred the application into court for argument on notice to the Halls and Dr Halcrow. The Court directed that the hearing of the application be treated as the hearing of the appeal, if leave to appeal were granted.
The certifier and the Council submitted to such order as the Court might make.
The submissions by Mr Roder in support of the application for leave to appeal raise the issue of whether the Judge erred in law in his approach to the question of how the discretion to extend the six month period should be exercised. If leave to appeal is granted, Mr Roder submits that the Court should hold that the Judge erred in his approach, and that a correct exercise of the discretion calls for a decision to refuse to extend the six month period.
The proposed development
This application is another step in a series of proceedings between City Apartments, the Halls and the Council.
City Apartments wishes to build a dwelling on land close to the land on which the Halls live. The land slopes steeply. At an earlier stage City Apartments carried out a substantial excavation at the site of the proposed dwelling. Fill from the excavation was dumped on the lower side of the excavation to form an embankment that will support part of the proposed house. A retaining wall has been partly constructed near the base of that embankment.
There have been previous proceedings between the parties in the Environment Resources and Development Court, in this Court (before a single Judge and before the Full Court) and in the High Court.
I need not refer to all of the earlier proceedings. It suffices to pick up the story on 4 March 2005, when the certifier granted the building consent. The Council then granted the development approval on 21 March 2005.
On 1 June 2005 a Judge of this Court declared the development approval invalid in proceedings brought by Mr and Mrs Hall. This was on grounds not raised in the present case.
On about 14 June 2005 the Halls received expert advice that the embankment was unstable, and that the retaining wall was not in accordance with the plans on the basis of which development approval had been given. At that time no work was being carried out by City Apartments, because of an injunction restraining it from carrying out the proposed development.
Mr and Mrs Hall made no further enquiries into the circumstances of the building approval and the development approval, relying on the fact that the development approval had already been declared invalid. The Judge found that they acted reasonably in that respect.
On 9 September 2005 the Full Court set aside the single Judge’s decision, and declared the development approval to be valid. Whether, in declaring the development approval to be valid, as distinct from reversing the decision that it was invalid, on the grounds dealt with, the Full Court went further than was appropriate is not an issue before this Court, and has not been resolved.
After the Full Court decision the Halls investigated the building approval in more detail. In mid September they received advice that the retaining wall and the embankment were not covered by the building consent, and that they would not have been approved as then constructed. They made further enquiries. That involved getting access to Council files. In mid October the Halls received further expert advice to the effect that the embankment was not the subject of building consent, and that it was unstable.
The Halls’ solicitors wrote to the Council on 10 October 2005, claiming that the building consent and development approval were invalid, inviting it to take action. The solicitors wrote again on 8 December 2005. On 19 December 2005 the Council said that having granted the development approval, there was nothing it could do about it.
The Christmas holidays intervened. The present proceedings were issued by the Halls and Dr Halcrow on 31 January 2006.
The proceedings
The proceedings are proceedings by way of judicial review for the purposes of r 98 of the Rules.
The relief claimed by the plaintiffs is as follows:
1.A declaration that the Development Approval issued by the City of Burnside to City Apartments in respect of DA180/0455/02/C3 is invalid.
2.An order in the nature of certiorari to quash the Development Approval issued by the City of Burnside in relation to DA180/0455/02/C3 for a detached dwelling and detached garage and associated excavation works on the land at 9-13 Government Road Glen Osmond.
3.A declaration that the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3 is invalid.
4.An order in the nature of certiorari to quash the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3.
5.An injunction restraining City Apartments, its employees, agents or contractors from proceeding directly or indirectly with the development the subject of the development approval in respect of DA180/0455/02/C3.
The orders are sought on the grounds that the building consent is invalid because it was granted without appropriate consideration of the fill and retaining wall, or on the ground that it does not cover the fill and retaining wall. Either way, this is said to render the development approval invalid, because that approval is premised on a valid building consent, or a building consent that covers the fill and retaining wall.
The Judge said that the Halls had standing to claim that relief because they were objectors to the development application.
The Judge treated the proceedings as raising a claim by way of judicial review by the Halls.
Dr Halcrow was not an objector. The Judge noted that he might not have standing to claim the relief sought in paras 1-4. However, the Judge said that he had standing to seek an injunction on the basis of a reasonable apprehension that the embankment might cause damage to the house on his land and might cause injury to him and his family. His land is adjacent to the land owned by City Apartments, and is immediately to the west of and below that land.
He appears to have treated the proceedings as raising a claim in nuisance by Dr Halcrow, to restrain City Apartments from activities on the land that might cause a risk of damage to Dr Halcrow’s property or a risk of injury to him or his family.
The Judge also said that the claim for an injunction was independent of the claim for judicial review. In relation to Dr Halcrow, that is clearly so.
The basis for this observation in relation to the Halls is not so clear. Another passage in the Judge’s reasons suggests that he took the view that the Halls’ claim for a declaration of invalidity and injunction could be made independently of their claim by way of judicial review, and that in that respect they had an independent claim for declarations and an injunction. This was because their private law rights as adjacent property owners were affected: [25].
The need for an extension of time arose, at least in relation to the proceedings by way of judicial review, because of r 98.06 of the Rules, which provides as follows:
Subject to any enactment, or order of the Court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.
The six month period expired in relation to the building consent on 4 September 2005, and in relation to a development approval on 21 September 2005.
The Judge’s decision
The Judge began on the basis that the plaintiffs had an arguable case that the building consent and development approval were not valid, and an arguable case that no building consent had been granted in respect of the excavation and filling. That conclusion is not challenged at present. There is a discrepancy between the terms of the building consent and the terms of the development approval.
As I have already noted, the Judge treated the Halls as having standing, and Dr Halcrow as having standing at least in relation to a claim in nuisance. That finding is not challenged at this stage.
The Judge noted that r 98.01(3) provides that a declaration or an injunction may be sought in a summons for judicial review. They may be granted if the Court considers it “just and convenient” to do so. The Judge referred to r 98.11(5) which provides:
Where the relief sought is a declaration, an injunction or damages, and the Court considers that it should not be granted on a summons for judicial review but might have been granted if it had been sought in an action begun by summons by the plaintiff at the time of commencing of the action, the Court may instead of refusing the judicial review, order the proceedings to continue as if they had been begun by summons other than under this Rule and the Court may give directions accordingly.
The Judge concluded that the relief claimed in all five paragraphs could be sought in the proceedings.
The Judge then noted that the six month limitation period applies only to an application for judicial review. He said that to the extent that the Halls and Dr Halcrow could claim relief by way of declaration and injunction, and not in proceedings by way of judicial review, the six month time limit did not apply, and no other relevant limitation period barred the claim.
The Judge suggested that an extension of time should be granted so that “all relevant matters and possible relief can be considered at the same time”: [24]. He said that City Apartments had not identified any prejudice attributable to the grant of an extension beyond the prejudice they would suffer if the plaintiffs pursued the “alternative remedies of declaration and injunction”: [24].
I will return to that point.
The Judge said there were four factors to be considered in deciding whether to grant an extension of time. They are the length of the delay, the reason for the delay, the applicant’s prospects of success and the extent of any prejudice to the defendant as a result of extending the time: [32].
As to the length of the delay and the reason for the delay, the Judge said that the delay was only five months, and that in the circumstances the Halls had acted reasonably in not pursuing their doubts about the building consent until after the single Judge’s decision invalidating the development approval was reversed. He said that they then moved with reasonable diligence.
I agree with the Judge in that respect. However, it needs to be borne in mind that the period that had elapsed from the grant of the building consent to the institution of proceedings was 11 months, and that the Halls were aware of a possible defect in the building consent by mid June. They could have moved sooner than they did. I will expand on this point later.
The Judge said that the plaintiffs had an arguable case. I agree.
In relation to the question of prejudice, the Judge made the following points.
He said that relatively little expense had been incurred by City Apartments on the development since the grant of the development approval. For some time work on the development had been halted by a Council order. At the hearing of the application we were told that that order was no longer in force, but that the single Judge had granted an injunction restraining City Apartments from proceeding with the development.
The Judge did not accept that City Apartments would suffer any significant prejudice on the basis that if the development consent was invalid its provisional development plan consent would have lapsed on 22 September 2005. There is no need to explain why that is the relevant date. The explanation can be found in the decision of the Full Court in Hall v City of Burnside & City Apartments Pty Ltd [2005] SASC 343; (2005) 92 SASR 579 at [79]. The provisional development plan consent would have lapsed at that date because of the failure of City Apartments to obtain a valid development approval before that date, if the development approval it now holds is declared invalid.
The Judge rejected this claim of prejudice on the basis that if judicial review proceedings had been commenced within time, it was likely that City Apartments would still have needed to apply for and to obtain an extension of the period within which the provisional development planning consent would lapse, because the proceedings would not have been completed before 22 September 2005. Moreover, it remained open to City Apartments to seek an extension of the period, in the event of the Court holding the development approval invalid, despite the fact that the extension of the period was sought after 22 September 2005: see City of Burnside (above) at [90]-[101].
For those reasons the Judge said that any prejudice to City Apartments as a result of an extension of time was minimal: [40] and [42].
The Judge added that an issue of public safety arose in relation to the soil embankment on the land and that “justifies a proper enquiry into that question and whether due process was observed in granting the development approval …”: [41].
Having regard to these circumstances, the Judge said that an extension of time should be granted. He added at [42]:
However, given that there are also other remedies available against at least one of the parties based on similar grounds, and those remedies are not subject to an initiating time limit, the case for an extension of time becomes compelling, and any ground for opposing leave to serve based on delay falls away.
Consideration of submissions
In my respectful opinion, a number of Mr Roder’s criticisms of the Judge’s approach are valid.
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3^rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that quite apart from the six month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
I do not suggest that the Judge overlooked this point. I merely emphasise that when considering whether the interests of justice require that an extension be granted (as the plaintiffs had to demonstrate), substantial weight should be given to the fact that the time limit has been imposed, and to the public interest and any relevant private interest (here, the interests of City Apartments) in the validity of the decision after the expiry of the limitation period.
I do not agree with the Judge’s conclusion that the prejudice to City Apartments was minimal.
City Apartments has expended a substantial amount of money on the proposed development and on the legal disputes arising from it. We were told that it is of the order of $300,000. No doubt the Halls have spent a substantial amount as well. As from late September 2005 City Apartments held a development approval in respect of its proposed development, and was entitled to proceed with that development subject to the injunction. The grant of an extension of time deprives City Apartments of the benefit attributable to holding the development approval. It puts the validity of the development approval at risk on grounds not previously raised. In saying this I have not overlooked the fact that it was only as a result of the Full Court decision in Hall v City of Burnside (above) that the Halls held a development approval, that decision having been made on 9 September 2005. I regard the prejudice to City Apartments in this respect as significant.

There is another factor. The grant of the extension of time means that City Apartments is at risk of having to secure a favourable exercise by the Council of its power to extend the period within which the provisional development plan consent will not lapse: see s 40(3) of the Act and Hall v City of Burnside (above) at [90]-[101]. As the Judge said at [39] in the decision under appeal, on such an application City Apartments will be entitled to have “all relevant considerations brought to bear”, including the effect of the grant of the extension of time. Nevertheless, the fact that the provisional development plan consent is now at risk is a further source of substantial prejudice to City Apartments.
Contrary to the view expressed by the Judge, in my respectful opinion this prejudice is not removed by reason of the fact that if proceedings had been instituted within the six month period, it is unlikely that they would have been completed before the date at which the provisional development plan consent would lapse if there was no valid development approval. The prejudice that arises is attributable to the institution of the present proceedings. In Taylor Toohey and Gummow JJ at 548-549 and McHugh J at 554-555 said that it was wrong to approach the question of prejudice by asking, as McHugh J put it:
Whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period.
It is wrong because the issue for the Court is the prejudice that arises as a result of the grant of the extension of time. Prejudice attributable to the extension is not answered by saying that the defendant might have suffered some prejudice if the proceedings had been commenced late in the relevant period. Moreover, this approach implicitly downplays the significance of the limitation period. The effect of the grant of the extension is to force the defendant to face a challenge from which it had apparently been freed by the expiry of the limitation period.
It follows, in my respectful opinion, that the grant of an extension of time to the plaintiffs will give rise to substantial prejudice to City Apartments.
Nor do I agree that the fact that the plaintiffs might bring other proceedings against City Apartments, or continue to pursue claims not the subject of a six month time limit in these proceedings, is an answer to the asserted prejudice.
If the plaintiffs bring other proceedings, not by way of judicial review, in which they challenge the validity of the building consent and the development approval on the grounds raised in these proceedings, they would face the issue of whether those proceedings should be stayed as an abuse of process. If the Court in these proceedings refused to extend the six month period, there would surely be a strong argument that the plaintiffs should not be permitted to circumvent that decision by issuing proceedings not by way of judicial review raising the same challenge. If we were to hypothesise that the other proceedings challenging the validity of the building consent and development approval had been brought without judicial review proceedings ever being brought, the same issue would arise. Would it be appropriate to permit the plaintiffs to bring those proceedings if they could not satisfy the Court that, in proceedings by way of judicial review, they would have obtained an order extending the six month period? It is arguable that a plaintiff cannot walk around the time limit in r 98.06 by the expedient of issuing proceedings that are not judicial review proceedings: see Clayton v Ralphs (1987) 45 SASR 347 at 354-355 Jacobs J and Xenophon v State of South Australia [2000] SASC 327; (2000) 78 SASR 251 at [17] Prior J and at [20] Lander J. On this point, some of the reasoning of Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 has continuing relevance, even though changes wrought by the English Civil Procedure Rules 1998 have led to a change of approach: see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988.
It is not necessary to decide this issue. It suffices to say that the prejudice relied upon by City Apartments is not answered by saying that the plaintiffs could make the same claims in proceedings not by way of judicial review. On that point I respectfully differ from what the single Judge said at [24].
Quite apart from that, to my mind the fact that the plaintiffs could make the same claim in other proceedings is not a reason to grant an extension of time in the present proceedings. If the plaintiffs have an alternative remedy then surely it is up to them to pursue that remedy, rather than use the availability of the alternative remedy as a reason to grant an extension of time for the purpose of these proceedings.
It may be that Dr Halcrow has a cause of action in tort against City Apartments. That cause of action is not subject to the time limit in r 98.06. That claim raises quite different issues from those raised by the present proceedings. The validity of the development approval would be at best peripheral in those proceedings. I doubt whether the validity of the development approval could be an answer to a claim in tort. Nor could the invalidity of the development approval assist the claim. If Dr Halcrow was to obtain an interlocutory injunction against City Apartments in those proceedings, or an extension of the existing injunction, so be it. The work on the proposed development would be halted, but the validity of the development approval would not be at risk. Once again, I respectfully disagree with the decision of the single Judge at [37] that this is a factor that mitigates or eliminates the prejudice asserted by City Apartments.
The same comment applies to any claim in tort that might be made by the Halls.
I agree with the single Judge that the fact that the proposed development might raise issues of public safety is relevant. But it can be left to Dr Halcrow and the Halls to pursue those issues in their own right if they wish to do so. The Council is at liberty to do so if it wishes to do so.
For those reasons I consider that the Judge’s approach to determining whether City Apartments would suffer prejudice as a result of the grant of an extension was wrong. I do not agree that City Apartments would suffer “little or no prejudice”: [42].
As the Judge approached that matter in the wrong way, it is appropriate to grant leave to appeal and to allow the appeal. That means that the exercise of the discretion should be considered afresh.
The exercise of the discretion
It is for the plaintiffs to establish that an extension of time should be granted. The Court has a discretion to extend time, but it is for the plaintiffs to establish that that discretion should be exercised.
In considering the exercise of the discretion the Court must bear in mind that the six month time limit represents a judgment as to what should be the general rule in the public interest.
The plaintiffs have shown that they have, or at least that the Halls have, an arguable case. The delay is substantial. It is eleven months. I say this because the delay should be measured from the time of the decision. However, it is a relevant factor that the application is made only five months after the expiry of the limitation period. I agree with the Judge that it was not unreasonable for the plaintiffs to refrain from pursuing the issue of the validity of the provisional building rules consent while they had a decision invalidating the development approval. But this should be qualified by recognising that the plaintiffs were aware before the limitation period expired that they might have a ground for attacking the building consent. This is relevant because of the requirement in r 98.06 that such claims be made as promptly as possible if they are to be made. An attack had already been made on the validity of the building consent and development approval. If a further attack were to be made on new grounds, there are good reasons to say that should be done with the minimum possible delay. It suited the Halls to wait while the existing proceedings were in train, but the public interest and the interests of City Apartments called for prompt action.
But before deciding whether the discretion should be exercised it is necessary to consider the question of prejudice to City Apartments, and some other matters.
As I have said, I consider that an extension of time will result in substantial prejudice to City Apartments. It will put at risk yet again a development approval that is safe from attack in these proceedings on the grounds now raised, unless an extension of time is granted. The development approval relates to a proposed development on which City Apartments has expended a substantial amount of money. The proceedings also put at risk the provisional development planning consent, unless City Apartments can obtain a favourable exercise of the discretion conferred by s 40(3) of the Act. There is a risk that changes in the applicable planning regime mean that if the provisional development planning consent lapses, City Apartments will find it more difficult to obtain a fresh development approval. For those reasons, to now allow an attack on the validity of the building consent and development approval gives rise to a real risk of substantial prejudice to City Apartments.
Issues of the safety of persons and property adjacent to the land on which the proposed development is taking place can be raised in other proceedings.
There is no reason to think that the delay will prevent the issues being resolved fairly to both parties. There is no suggestion that relevant evidence is no longer available. There is no reason to think that other persons have relied on the validity of the building consent and development approval.
In those circumstances, is it appropriate to depart from the general rule by allowing the plaintiffs to bring the proceedings?
I am not persuaded that it is appropriate to depart from the general rule. I recognise the force of the submissions made by Mr Henry, counsel for the Halls and for Dr Halcrow. From one point of view, it was not unreasonable for the plaintiffs to hold their hand as they did. If the Court refuses to extend the period within which the proceedings may be brought, a challenge to the validity of the building consent and development approval, which has an arguable prospect of success, will not be able to be made, at least in these proceedings. But I have identified other factors that call for consideration in the interests of justice. There are good reasons for saying that the plaintiffs should have moved promptly, once they became aware of the possible claim. The grant of an extension raises the risk of substantial prejudice to City Apartments. Any issues of public safety can be raised in other proceedings.
One cannot be precise about these things. I am simply not persuaded that the interests of justice call for the extension of time. I would refuse to grant an extension of time.
Conclusion
For those reasons I would grant leave to appeal, allow the appeal and set aside the order extending the time within which the plaintiffs can commence the present proceedings.
DUGGAN J: I agree with the reasons and orders proposed by Doyle CJ. I add the following comments.
In Jackamarra v Krakouer (1998) 195 CLR 516, a distinction was drawn by some members of the court between time limits imposed by legislation and time limits imposed by rules of procedure. It was pointed out that procedural rules attracted a more flexible approach in this context.
Although it might be appropriate to draw this general distinction, it is also relevant to take into account the nature of the particular procedure under consideration and the purpose of the time limit imposed. In Jackamarra v Krakouer, the application was for an extension of time for setting down an appeal which had already been lodged with the court. In the present case, however, the time limit serves a purpose which extends beyond a caseflow management function. As Lord Diplock pointed out in O’Reilly v Mackman [1983] 2 AC 237:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
The significance of time limits in proceedings for judicial review is also discussed in E Campbell and M Groves, “Time Limitations on Applications for Judicial Review (2004) 32 Federal Law Review 29. The learned authors comment at 30:
Proceedings by ordinary civil action have, historically, differed from proceedings for judicial review in several ways. They could be commenced without the court’s leave. The time limits created under the statute of limitations were much longer than the time limit applicable in judicial review proceedings. The procedures governing the conduct of judicial review proceedings were designed to produce much speedier determination of those proceedings than ordinary civil actions.
This is not to deny some flexibility in the approach to applications for an extension of time in making applications for judicial review, but rather to acknowledge that time limits on initiating such proceedings serve a particular purpose. As the author of Craig, Administrative Law, 5^th ed (2003) points out at 852:
In a number of different contexts it may be particularly important to know whether a decision can safely be acted upon. This is particularly so within the realm of regulatory legislation concerning planning, compulsory acquisition and the like. Statutes in such areas normally provide a cut-off period of six weeks after which the decision shall not be called in question in any legal proceedings whatsoever.
In my view, the potential for significant prejudice of the sort which can arise from the extension of time limits is evident in the present case. It has been pointed out that, if the proceedings for judicial review lead to the setting aside of the provisional Building Rules consent and the final development approval, the Provisional Development Plan consent will have lapsed and it will not be possible to make a renewed application based on that consent.
In Hall v City of Burnside (2005) 92 SASR 579 at 597, Bleby J expressed the view that, in this event, an application could be made to extend the period of the consent under s 40(2) of the Development Act 1993 after the period had expired. However, as Bleby J pointed out at [93]:
The granting or withholding of the extension is discretionary. If there has been a material change in the planning legislation or in the relevant Development Plan such that consent to the development could not then be given, or if there has been some other material change of circumstance affecting the granting of consent, those may be relevant factors in the exercise of that discretion, to be weighed carefully against the diligence with which the applicant has pursued the development and against other circumstances which may have frustrated that activity.
According to the case for the appellant, the relevant Development Plan has been amended and the development is now classified as non-complying. In any event, there is no certainty that the application for an extension would be granted. There is, therefore, a risk of considerable prejudice to the appellant. I also agree with the view of the Chief Justice that this prejudice is not answered by the fact that the defendant might have suffered some prejudice if the proceedings had been commenced late in the period of the time limit.
Despite the fact that the plaintiffs have an arguable case on the substantive issue, I do not think a case has been made out for an extension of the time within which to commence the proceedings.
GRAY J: This is an appeal against an order granting an extension of time in which to commence proceedings.
The Background Facts
On 31 January 2006, the plaintiffs, Jill and Grant Hall and Stephen John Halcrow, instituted proceedings by way of an inter partes summons. The summons named the City of Burnside (the Council) and City Apartments Pty Ltd (the developer) as defendants. The summons outlined the details of the claim by reference primarily to an affidavit of Ms Hall.
The orders sought by the plaintiffs included the following:
A declaration that the Development Approval issued by the City of Burnside to City Apartments in respect of DA180/0455/02/C3 is invalid.
An order in the nature of certiorari to quash the Development Approval issued by the City of Burnside in relation to DA180/0455/02/C3 for a detached dwelling and detached garage and associated excavation works on the land at 9 – 13 Government Road, Glen Osmond.
A declaration that the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3 is invalid.
An order in the nature of certiorari to quash the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3.
An injunction restraining City Apartments, its employees, agents or contractors from proceeding directly or indirectly with the development the subject of the development approval in respect of DA180/0455/02/C3.
Ms Hall’s affidavit addressed the proposed development at 9-13 Government Road, Glen Osmond and generally described events occurring between 2000 and 2005. The affidavit then addressed an alleged lack of consideration of certain issues by the Council, suggested inconsistencies between the planning consent and a building consent, and the knowledge of the developer concerning a lack of stability of fill. Finally, the affidavit provided the following particulars of claim:
In so far as the Building Consent granted on 4 March 2005 purports to grant Provisional Building Rules Consent to the fill and retaining wall which comprise part of the development, the Building Consent is invalid because Katnich Dodd as private certifiers:
- failed to have regard to the fill and the retaining wall in granting consent; and
- failed to have regard to the Building Rules in so far as they relate to the fill and the retaining wall in granting consent; and
- granted consent to fill which was at variance with the Building Rules contrary to section 36(2) of the Development Act 1993.
As a consequence, the Development Approval granted on 21 March 2005 is invalid because the Building Consent is invalid;
In so far as the Building Consent purports only to grant building rules consent to the dwelling, garage and verandah, and does not purport to grant consent to the fill and the retaining wall, the Development Approval is invalid because at the time it was issued there was no valid building rules consent for the fill and retaining wall, contrary to regulation 46(1) of the Development Regulations.
The provisional building rules consent referred to in the summons was issued on 4 March 2005. The development approval referred to was made on 21 March 2005.
The Discretion to Extend Time
The inter partes summons sought declarations, orders in the nature of certiorari, and an injunction. During the hearing of the appeal, there was debate as to whether the summons sought more than judicial review. Insofar as the inter partes summons sought to invoke the Court’s general jurisdiction to make declarations and grant injunctive relief, no time limit is specified by statute or by Rules of Court. Insofar as the summons sought judicial review, an extension of time was required. Prior to considering the decision of the single Judge and the issues raised on appeal from that decision, it is therefore necessary to first discuss the principles governing the discretion to extend time.
Rule 98.06 of the Supreme Court Rules provides:
Subject to any enactment, or order of the Court granting an extension of time, a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible.
It is to be observed that Rule 98.06 makes reference to an extension of time. The discretion to extend time is contained in Rules 3.04(d) and 6.02(1). Rule 98.06 would also appear to include implicitly a discretion to extend time. The discretion to extend time would appear to be unfettered - to be exercised having regard to the justice of the case.

There is a distinction to be drawn between substantive time limits imposed by statute and those imposed procedurally, for example, by rules of court. As Kirby J observed in Jackamarra v Krakouer:[1]
Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (dec’d), Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court:
“[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules.”
For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party’s appellate rights.
[1] Jackamarra v Krakouer (1998) 195 CLR 516 at [66] (footnotes omitted).
The distinction emanates from the difference in the ends sought by the two varieties of time limits. Time limits provided for procedurally are generally concerned to aid the attainment of justice. They ought not therefore apply as rigidly or strictly as time limits of a more substantive character, imposed by legislation, nor ought they be applied in such as way as to prevent the occurrence of justice in any given situation. The topic was discussed in greater depth by Kirby J:[2]
The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances.
This is also addressed by the following observations of Gummow and Hayne JJ in Jackamarra v Krakouer:[3]
[The rules of court] are not prescribed for the purpose of implementing what Roscoe Pound referred to more than ninety years ago as the “sporting theory of justice”. They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation, so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.
[2] Jackamarra v Krakouer (1998) 195 CLR 516 at [66] (footnotes omitted).
[3] Jackamarra v Krakouer (1998) 195 CLR 516 at [30] (footnotes omitted).
The above remarks make clear that when considering the application of time limits imposed by Rules of Court, a court should exercise its discretion with regard to whether or not to extend time with a view to determining whether it would be just in all the circumstances to grant or refuse an application to extend time.
When considering an application to extend time in judicial review proceedings, it is to be borne in mind that issues of public policy call for the prompt issue of proceedings and the resolution of the matters raised. Accepting this to be the position, the time limit is fixed by the Rules of Court and the test identified in Jackamarra remains the relevant test.
There are four factors recognised generally as being the major factors to be weighed by a court when considering whether or not to grant an extension of time: 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 to the application.[4] However, as recognised by Kirby J in Jackamarra, “they are by no means exhaustive”. In some circumstances, other factors will be relevant. This is particularly so where, as here, the court is concerned with applications for extensions governed by procedural rules rather than substantive legislative provisions. Kirby J identified the following additional relevant factors:[5]
I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
[4] See Esther Investments Pty Ltd v Markalinga [1989] 2 WAR 196 at 198; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; Jackamarra v Krakouer (1998) 195 CLR 516 at [6]-[8] (Brennan CJ and McHugh J), [66] (Kirby J); McKay v Alexandrina Council (2003) 227 LSJS 442 at [8] (Debelle J).
[5] Jackamarra v Krakouer (1998) 195 CLR 516 at [66].
Accordingly, when dealing with an application to extend time under Rule 98.06, the overriding inquiry should be – what does the justice of the case require?
Decision of the Single Judge
A learned Judge of this Court extended the time in which the plaintiffs could commence these proceedings and granted conditional leave to serve the proceedings.
The learned Judge traced the history of the matter:[6]
[6] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [4]-[6]. (footnotes omitted)
The proposed development has a long history in this Court, the Environment, Resources and Development Court and the High Court going back to April 2000. In respect of the current development application, provisional Development Plan consent was first granted by the Environment, Resources and Development Court on 20 January 2004. Mr & Mrs Hall and the Council appealed to the Full Court of this Court. On 22 September 2004 the Full Court dismissed the appeals. Mr & Mrs Hall applied for special leave to appeal to the High Court, which application was dismissed on 11 August 2005.
Provisional Building Rules consent was granted on 4 March 2005, and the Council granted final development approval on 21 March 2005. That final development approval was, at the instance of Mr & Mrs Hall, the subject of judicial review proceedings before a single Judge of this Court and on appeal by City Apartments to the Full Court. On 9 September 2005 the Full Court declared that the development approval was valid. It is the same development approval which the plaintiffs, in these proceedings, seek to have declared invalid and quashed.
The ultimately unsuccessful challenge to the validity of the development approval in the previous judicial review proceedings was on grounds quite different from those now raised by the plaintiffs. Nevertheless, there remains a judgment in rem of the Full Court of this Court declaring the development approval to be valid. That is one existing barrier to this application.
To complete the history, the Judge made reference to an earlier application for development approval:[7]
It must be mentioned that there was an earlier application for development approval for a similar development on the same site to the Development Assessment Commission in 2000. Planning consent was granted, but was ultimately declared invalid by a single Judge and by the Full Court of this Court in other proceedings on the ground that the Development Assessment Commission was not the proper planning authority.
The Judge described the land, and the work undertaken thus far:[8]
The land in question is very steep. Before the first development approval was declared invalid, a substantial excavation was carried out on the land by City Apartments, the product of the excavation being dumped on the down side of the excavation to form an embankment which, according to the building plans, was to support portion of the house intended to be built on the site. Apart from some other relatively minor preparation works, the only other activity on the land has been the partial construction of a retaining wall near the base of the overburden from the excavation. The retaining wall is not relevant for present purposes, save to note that its completion has also been the subject of injunction in this Court, and further development activity on the land has been prevented by an order of the Council, the reason for which is not presently apparent to the Court.
[7] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [10]. (footnote omitted)
[8] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [11].
There was no challenge to these findings of the Judge. The Judge considered whether the plaintiffs had an arguable case and reached the conclusion that they did:[9]
On the information presented so far the plaintiffs would appear to have at least an arguable case concerning the validity or lack of provisional Building Rules consent and development approval, although they concede that the picture will be revealed with greater clarity when proper discovery and inspection of documents is given. However, the grant of leave to serve is complicated by the existence of the Full Court declaration of validity and the fact that the inter partes summons has been issued more than six months after the notification of the decisions the subject of challenge.
[9] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [14].
The Judge then traced the circumstances relevant to the extension of time application as they unfolded:[10]
However, leaving aside the question of the availability of alternate remedies not subject to a time limitation, it is necessary to consider the circumstances as they unfolded, at least from the point of view of the plaintiffs. The Building Rules consent was granted by Katnich Dodd on 4 March 2005. The council gave its final development approval on 21 March 2005. The order of the trial Judge quashing the approval and restraining further development was made on 27 May 2005. At that stage the plaintiffs had no reason to make any further inquiry into the validity of the development approval.
In the course of the previous judicial review proceedings an injunction had been granted restraining City Apartments from performing any further development on the land. After the decision of the trial Judge holding that the development approval was invalid, City Apartments applied to vary the injunction to allow it to build a 70 metre retaining wall at the bottom of the embankment or mound of fill. This was said to be based on concerns about the slope’s stability and the risk to public safety from the fill. This caused the first and second plaintiffs to make further inquiries. In a preliminary report from an engineer dated 14 June 2005 they were advised that the partially constructed retaining wall was neither in accordance with the engineering design on which it was said to be based nor consistent with the proposal plans previously lodged with the council. They were advised that the retaining wall, as apparently proposed to be constructed, was inadequate and that the embankment was unsafe. The building of the retaining wall was not then proceeded with and the injunction remained. So matters stood until the Full Court judgment of 9 September 2005. Until that time the plaintiffs believed that the development approval was invalid and that no development could proceed.
Having then been told by the Court that the development approval was valid, and fuelled by concern about the adequacy of the retaining wall, the plaintiffs began to make inquiries as to what in fact had been approved. On 19 September 2005 they were advised that the spread of fill on the building plans was much greater than that shown on the site plan used for the purposes of provisional Development Plan approval, that there was evidence that the embankment was moving, that it appeared that neither the retaining wall nor the embankment had been the subject of Building Rules approval, and that they would not have been approved as presently constructed.
By the time that the plaintiffs were allowed to inspect some of the drawings on the Council file (26 September 2005), the six month time limit had expired. Having obtained some plans from the Council, the plaintiffs obtained further engineering advice on 17 October 2005. That was to the effect that it seemed unlikely that the embankment, which was larger than shown on the preliminary plans, had been the subject of Building Rules consent, that on its face the embankment was unstable, and that its stability was not improved by the proposed retaining wall.
In the meantime, on 8 October 2005, work which had been recommenced on the site following the Full Court decision was stopped by order of the Council. It is not entirely clear, but it seems that that may have been pursuant to s 84 of the Development Act 1993 (SA).
Correspondence between the plaintiffs’ and the developer’s solicitors and with the Council ensued. The plaintiffs, before incurring costs of another action themselves, not surprisingly sought information concerning what action, if any, the Council was then proposing to take. On 19 December 2005 the Council’s solicitors advised that the Council could or would take no action in relation to the Development Act approval. Further delays in issuing proceedings by the plaintiffs were caused by the Christmas holidays and the availability of solicitors and counsel, until the proceedings were issued on 31 January 2006.
[10] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [26]-[31].
The Judge having outlined the above circumstances then identified four factors to be assessed when considering the exercise of the discretion to extend time: the length of the delay, the reason for delay, the prospects of success and the extent of prejudice to the other party.
As earlier observed, the Judge reached the view that the plaintiffs had an arguable case. This conclusion was not challenged on appeal.
In respect of the length of delay, the Judge reached the conclusion that the delay of almost five months was not unreasonable. He considered that the plaintiffs had reasonable grounds to believe that, until 9 September 2005, the development approval was invalid,[11] when the Full Court judgment was delivered reversing the earlier order and declaring the development approval valid. The Judge made the point that the plaintiffs could hardly be expected to have taken any further action before that time.
[11] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [34].
Having regard to the steps taken by the plaintiffs immediately following the Full Court decision on 9 September 2005, the conclusion could be fairly reached that they acted reasonably and proceeded expeditiously. A pragmatic approach to fairness would suggest that time should be treated as commencing to run as from 9 September 2005, the date on which the Full Court reversed the order declaring the development consent invalid. However, this is not the legal position. The Judge’s conclusion that there was no undue delay was not only open but was the appropriate conclusion.
The Judge considered prejudice to the defendants. There was no relevant prejudice to the Council. The issue of prejudice related to the developer. The Judge drew attention to the fact that in any event the development work appeared to have been stopped by other action of the Council. It is true that there may have been some wasted expenditure but in all the circumstances, the Judge was entitled to conclude that although some prejudice to the developer may have been occasioned, it was outweighed by factors in favour of granting an extension.
The Judge also observed that there was nothing to prevent the plaintiffs from proceeding with applications for declarations and injunctive relief. The time limit of six months has no application to these claims.
A further matter of relevance was that the developer had been put on notice from the time of the Full Court judgment of the continuing concerns and of the possibility of a renewed challenge. The plaintiffs were seeking clarification of matters concerning the approvals and consents. As earlier noted, that information was not readily available. This is not a case of plaintiffs “lying by” and without notice and without reason seeking to proceed out of time. The affidavit material demonstrated that the plaintiffs acted responsibly. They gave early notice, sought expert advice and when information was available, acted promptly.
The Judge considered one further factor:[12]
Finally, although it is not one of the four criteria mentioned above, there is, in this case, a substantial question of public safety and the stability of the embankment even without further development which justifies a proper inquiry into that question and whether due process was observed in granting the development approval to City Apartments.
Public interest issues concerning the stability of the embankment and public safety support the genuineness of the plaintiffs’ concerns and were relevant considerations.
[12] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [41].
The Judge concluded finally:[13]
In my opinion the delay in all the circumstances is not excessive, the reasons for delay are explicable, it is not a case without merit and the respondents are likely to suffer little or no prejudice by the delay. There are also issues of public safety at stake which require investigation. The extent and seriousness of those issues will only be properly revealed if the case proceeds. In those circumstances the plaintiffs would be entitled to an extension. However, given that there are also other remedies available against at least one of the parties based on similar grounds, and those remedies are not subject to an initiating time limit, the case for an extension of time becomes compelling, and any ground for opposing leave to serve based on delay falls away.
[13] Hall & Ors v City of Burnside & Ors [2006] SASC 86 at [42].
Conclusion
No reason has been advanced to suggest that there cannot be a fair trial of the action. There is no suggestion of any material evidentiary prejudice. There may have been some wasted expenditure but nothing that would outweigh the prejudice to the plaintiffs if prevented from pursuing arguable claims. The justice of the case called for an extension of time.
As earlier observed, this is an appeal from a discretionary order. No error of principle has been identified. It has not been demonstrated that the Judge had regard to any immaterial consideration or failed to have regard to any relevant matter. No basis has been shown to justify this Court in interfering with the Judge’s exercise of discretion.
I consider that the conclusion that it was appropriate to grant an extension of time was open to the Judge. Even if it were the case that the Judge had underestimated the prejudice to the developer and had given inappropriate consideration to that circumstance, the remaining factors, in my view, justified an extension of time in any event.
For these reasons I would dismiss this appeal.