Hall v City of Burnside (No 8) - [2008] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALL & ANOR v CITY OF BURNSIDE & ORS (No 8)
[2008] SASC 318
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
19 November 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for permission to appeal against an interlocutory ruling refusing to extend time for the setting down of the appeal – appellants had six months in which to set down appeal for hearing before the Full Court – as the six month limit drew near the appeal books had been substantially prepared but remained to be certified by the respondents - on the last day of the six month period, the appellants were unable to obtain the consent of the respondents to the contents of the appeal books, and on that day they sought an extension of time for the setting down of the appeal - a judge of this Court refused to extend time, with the consequence that the appellants' appeal and supplementary appeal were, by force of the Rules, dismissed – whether the Judge failed to give effect to the principles identified in Jackamarra – whether the Judge erred in accepting the respondents’ submission that the long history of the matter was such as to amount to an unusual circumstance which justified the refusal to extend time – whether any prejudice existed in extending time – whether the Judge took into account an irrelevant consideration in referring to the appellants as experienced litigants.
Held – granting permission to appeal from the order of the Judge refusing the extension of time and allowing the appeal:
(per Kourakis J, with Sulan J agreeing): the Judge erred by failing to differentiate between the prejudice suffered by the respondents after the institution of the appeal and the prejudice they have suffered from the time of the first challenge to the validity of the development approval – the Judge failed to have regard to the fact that the respondents took no steps to ensure that the appeal was promptly prosecuted, or, alternatively, dismissed after a period of two months lapsed;
(per Gray J): the Judge failed to give full effect to the principles identified in Jackamarra – the Judge placed too much weight on what were said to be prejudices to the respondents – the Judge did not give sufficient weight to the minimal delay that would occur in the setting down or to the consideration that through an early listing of the appeal, any delay in setting down could be addressed;
(per Gray J, with Sulan and Kourakis JJ agreeing): in reconsidering the exercise of the discretion as to whether to extend time, the extension of time is granted.
Supreme Court Civil Rules 2006 (SA) r 295; Supreme Court Rules 1987 (SA) r 84.12, r 98.03 and r 98.06, referred to.
Hall & Anor v City of Burnside & Ors (2006) 245 LSJS 440; Hall & Anor v City of Burnside & Ors (No 4) (2007) 252 LSJS 359; Hall & Hall v City of Burnside & Ors (No 5) [2008] SASC 82; Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219; Hall & Anor v City of Burnside & Ors (No 7) [2008] SASC 277; Jackamarra v Krakouer (1998) 195 CLR 516; City Apartments Pty Ltd v City of Burnside & Hall [2004] SAERDC 94; City of Burnside & Ors v City Apartments Pty Ltd (2004) 236 LSJS 47; Hall v City of Burnside & Anor (2005) 91 SASR 532; Hall & Anor v City of Burnside & Ors [2006] SASC 86; Hall & Ors v City of Burnside & Ors (No 3) [2007] SASC 3; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Pomeroy v Thwaites Witham Pty Ltd & Anor (2001) 79 SASR 489; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1969-1970) 123 CLR 361, considered.

HALL & ANOR v CITY OF BURNSIDE & ORS (No 8)
[2008] SASC 318
Full Court: Gray, Sulan and Kourakis JJ
GRAY J:

This is an application for permission to appeal against an interlocutory ruling refusing to extend time for the setting down of the appeal.
Jill and Grant Hall, the plaintiffs and appellants, and the owners of a property in the Adelaide Hills Face Zone, issued substantive proceedings on 31 January 2006 seeking judicial review, declaratory orders and injunctive relief with respect to a planning approval decision of the City of Burnside, the first defendant and first respondent. That decision approved the building of a house property on a neighbouring property to Mr and Mrs Hall’s property. The neighbouring property was owned by City Apartments Pty Ltd, the second defendant and second respondent.
Insofar as the substantive proceedings sought judicial review, an extension of time was required. That extension was refused by order of the Full Court in 2006.[1] The circumstances surrounding that decision will be discussed later in these reasons.
[1] See Hall & Anor v City of Burnside & Ors (2006) 245 LSJS 440.
The City of Burnside, City Apartments, and an engineering firm and third defendant and third respondent, Katnich Dodd, applied to strike out the substantive proceedings in late 2007. At that time the substantive proceedings sought declaratory orders and injunctive relief. It was said by the defendants that the claim should be struck out as an abuse of process. Mr and Mrs Hall gave notice of proposed amendments to their substantive proceedings to broaden the claim for declaratory and injunctive relief.
A judge of this Court ordered that the proposed amendment be refused and the claim struck out.[2]   Some months later the Judge ordered Mr and Mrs Hall to pay the costs of each of the respondents on an indemnity basis.[3]
[2]    Hall & Anor v City of Burnside & Ors (No 4) (2007) 252 LSJS 359.
[3]    Hall & Hall v City of Burnside & Ors (No 5) [2008] SASC 82.
Mr and Mrs Hall exercised their right of appeal in respect of the order dismissing their claims and later lodged a supplementary appeal in respect of the costs order.
Mr and Mrs Hall had six months in which to set down their appeal for hearing before the Full Court.[4] As the six month limit drew near the appeal books had been substantially prepared but remained to be certified by the respondents. On the last day of the six month period, Mr and Mrs Hall were unable to obtain the consent of the respondents to the contents of the appeal books, and on that day they sought an extension of time for the setting down of the appeal. Another judge of this Court refused to extend time, with the consequence that Mr and Mrs Hall’s appeal and supplementary appeal were, by force of the Rules, dismissed.[5]
[4] Section 295(2) of the Supreme Court Civil Rules 2006 (SA) provides: “Unless an appellate proceeding is set down for hearing within 6 months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses.”
[5] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219.
Mr and Mrs Hall have now sought permission to appeal from the decision refusing to extend time. In accordance with the practice of the Court, that application was considered on the papers by this Court. In Hall & Anor v City of Burnside & Ors (No 7),[6] an order was made referring the application for permission to the Full Court. The Court directed that if permission were to be granted, the appeal against that order refusing an extension of time would be heard instanter.
[6] Hall & Anor v City of Burnside & Ors (No 7) [2008] SASC 277.
One of the complaints advanced by the respondents before the Judge who refused to extend time was that delay was causing prejudice to them. At the time of referring the application for permission to court, the parties were offered the opportunity, in the event that permission to appeal was granted and time was extended, to have the substantive appeal against the dismissal of the action heard instanter. The first and second respondents declined to do so.
The third respondent has advised that it does not wish to participate in the hearing of the application for permission and, in the event that permission is granted, the appeal against the refusal to extend time. It is content to abide the order of the Court.
An Interlocutory Order – The Legal Approach
The application for permission to appeal related to an interlocutory order refusing to extend the time in circumstances where the substantive appeal had been regularly issued. This is not a case where an extension of time is being sought to commence a substantive proceeding. As Brennan CJ and McHugh J observed in Jackamarra v Krakouer:[7]
In that class of case [an application for an extension of time to lodge an appeal], the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question – should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court’s business would be prejudiced by granting the application.
[7] Jackamarra v Krakouer (1998) 195 CLR 516 at [4] (footnotes omitted).
Gummow and Hayne JJ introduced the matter by, as they said, setting the arguments in their proper context:[8]
Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day’s delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.
It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They 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.
[8] Jackamarra v Krakouer (1998) 195 CLR 516 at [29]-[30] (footnotes omitted).
Their Honours then observed:[9]
[The appellant’s] appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”. Each of the formulae mentioned by Barwick CJ in the passage we have quoted from General Steel Industries Inc intends to convey that meaning. But, of course, if formulae of the kind set out in General Steel Industries Inc are applied in the case of an appeal, it is important to recall that the context is different. The boundaries of the field for debate between the parties on appeal have been set at trial. Before a proceeding has been tried there may well be considerable uncertainty about what evidence will be given and how that will affect the final identification of issues to be decided. Those uncertainties should have been largely resolved at trial and the material and the issues for consideration on appeal will ordinarily be readily identifiable.
[9] Jackamarra v Krakouer (1998) 195 CLR 516 at [33]-[34] (footnotes omitted).
Kirby J took a similar view and undertook a detailed review of the applicable principles to procedural time.[10]
[10] Jackamarra v Krakouer (1998) 195 CLR 516 at [66].
The observations from Jackamarra identify the relevant principles and the approach to be taken by this Court in its consideration of the application for permission to appeal and, if granted, the substantive appeal.
Procedural History
To understand the submissions to be advanced by the parties requires a tracing of the history of this matter. That history was traced by the Judge who struck out Mr and Mrs Hall’s claim. As this history is not in dispute, it is convenient to draw upon the Judge’s reasons.[11]
[11] Hall & Hall v City of Burnside & Ors (No 4) (2007) 252 LSJS 359 at [4]-[17], [20], [22].
Provisional Development Plan consent in respect of the development was first granted by the Environment Resources & Development Court on 20 January 2004.[12] Mr and Mrs Hall and the City of Burnside appealed to the Full Court of this Court against that decision. On 22 September 2004 the Full Court dismissed those appeals.[13] Mr and Mrs Hall applied for special leave to appeal to the High Court. Leave to appeal was refused on 11 August 2005.
[12] City Apartments Pty Ltd v City of Burnside & Hall [2004] SAERDC 94.
[13] City of Burnside & Ors v City Apartments Pty Ltd (2004) 236 LSJS 47.
In the meantime, provisional Building Rules consent for the development was granted by Katnich Dodd on 4 March 2005, and the City of Burnside granted final development approval on 21 March 2005.
On 5 May 2005 Mr and Mrs Hall commenced earlier proceedings for judicial review in this Court,[14] challenging the validity of the final development approval by the City of Burnside. A single judge of this Court granted the relief they sought by order dated 27 May 2005 and subsequently varied on 21 June 2005.[15] City Apartments successfully appealed to the Full Court which, on 9 September 2005, ordered that there be substituted for the trial Judge’s order a declaration that the development approval issued to City Apartments on 21 March 2005 was valid and dismissed the application of Mr and Mrs Hall.[16]
[14] Supreme Court of South Australia Action No 494 of 2005.
[15] Hall v City of Burnside & Anor (2005) 91 SASR 532.
[16] Hall & Anor v City of Burnside & City Apartments Pty Ltd (2005) 92 SASR 579.
On 23 January 2006 Katnich Dodd certified a variation to the provisional Building Rules consent, following an application by City Apartments. The variation was described as “Variation to PC 26259 retaining wall details and footing layout plans”. It was incorporated in an amended development approval of the City of Burnside dated 16 February 2006.
On 31 January 2006, this action was commenced by Mr and Mrs Hall and Dr Stephen Halcrow. The subject land rises steeply from west to east in the Hills Face Zone immediately above Glen Osmond. Mr and Mrs Hall are the owners of certain land to the east of the land owned by City Apartments and above the level of the subject land. Dr Halcrow owned land immediately to the west of the subject land and directly below it.
The relief sought by Mr and Mrs Hall in the inter-partes summons, following the refusal of judicial review, was directed to the approval issued by the City of Burnside on 21 March 2005, being the same approval as the Full Court had earlier declared to be a valid approval.[17]
[17] Hall & Anor v City of Burnside & City Apartments Pty Ltd (2005) 92 SASR 579.
Rule 98.06 of the Supreme Court Rules 1987 (SA) provides that subject to any order of the court granting an extension of time, a summons for judicial review must be issued within six months from the date when the grounds for the review first arose, and “shall in all cases be made as promptly as possible”. The proceedings were commenced more than six months after the City of Burnside issued the development approval.
On 20 February 2006 Mr and Mrs Hall applied in the present proceedings for an extension of time within which to apply for leave to serve the summons for judicial review, leave to serve being required by rule 98.03. On 2 March 2006 the Judge who dismissed the substantive proceedings made an order extending the time for Mr and Mrs Hall to issue the proceedings,[18] subject however to Mr and Mrs Hall making an application pursuant to rule 84.12 of the Supreme Court Rules in Action No 494 of 2005 to vary the order of the Full Court made on 9 September 2005. Such an application was made, but no steps have been taken to have it listed before or determined by the Full Court.
[18] See Hall & Anor v City of Burnside & Ors [2006] SASC 86.
On 13 April 2006 the Judge also granted an interim injunction restraining City Apartments from proceeding with the development.
City Apartments appealed against the order extending time. On 12 September 2006 the Full Court, by majority, allowed that appeal,[19] and set aside the order extending the time within which Mr and Mrs Hall could commence the proceedings. It ordered that the application for an extension of time be dismissed.
[19] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440.
On 10 October 2006 Mr and Mrs Hall filed an application for special leave to appeal to the High Court against the decision and order of the Full Court made on 12 September 2006. On 10 November 2006, pending the hearing of the application for special leave in the High Court, Mr and Mrs Hall, having been effectively denied any remedy by way of judicial review, applied for leave to amend the inter-partes summons in the action to plead an action in nuisance, as well as seeking declarations and injunctions in the Court’s general jurisdiction.

The interim injunction has been extended from time to time without opposition from City Apartments while certain negotiations took place between the parties and their engineers. Any further extension was opposed by City Apartments at a hearing on 22 December 2006. Mr and Mrs Hall then sought an interlocutory injunction pending determination of the principal action. Mr and Mrs Hall’s application for leave to amend was listed at the same time, but they did not seek to pursue the amendment at that stage.
In the meantime, on 15 December 2006, City Apartments obtained a further amendment to its Building Rules consent for a revised design of a retaining wall to be constructed at the toe of an embankment on the subject land.
On 15 January 2007 the Judge made an order that the interim injunction granted on 13 April 2006 be revoked and that Mr and Mrs Hall’s application for an interlocutory injunction be dismissed.[20] Since then, construction of the dwelling on the subject land in accordance with the development approval granted by the City of Burnside has proceeded.
[20] Hall & Ors v City of Burnside & Ors (No 3) [2007] SASC 3.
On 28 June 2007 Dr Halcrow filed a notice of discontinuance by him of the proceedings against the City of Burnside and City Apartments. As a result, Mr and Mrs Hall’s then solicitors and counsel were unable to continue to act for Mr and Mrs Hall. There was delay while they sought to instruct new solicitors and counsel. On 3 August 2007 Dr Halcrow filed a notice of discontinuance by him of the proceedings against Katnich Dodd. He is no longer a party to the action.
On 1 August 2007 the solicitors for City Apartments gave notice to Mr and Mrs Hall, who were then without solicitors in these proceedings, that at a directions hearing to be held on 24 August 2007 City Apartments would seek the orders dismissing Mr and Mrs Hall’s claim. The application was in fact filed on 3 August 2007. It was followed by identical applications filed by the City of Burnside on 21 September 2007 and by Katnich Dodd on 8 October 2007.
The original application by Mr and Mrs Hall to amend the inter-partes summons filed on 10 November 2006 did not proceed. Instead, Mr and Mrs Hall, by affidavit filed on 21 September 2007, sought leave to amend the inter-partes summons.
It is convenient at this point to set out relevant extracts from Mr and Mrs Hall’s inter partes summons, together with the proposed amendments to the inter partes summons:
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 including purported amendments and in so far as such consent was amended by Carlo Scinto and Associates such amended consent in respect of DX180/0455/02/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 DA 180/0455/02/C3 inter alia on the ground that the development approval is invalid and on the further and alternative ground that the construction and implementation of the development constitutes an actionable nuisance.
6.In the alternative to orders 1 – 5, a declaration that the embankment constructed on the land is not approved development and has not been constructed in conformity with the purported Provisional Building Rules Consent issued by Katnich Dodd and in so far as such consent was amended by Carlo Scinto and Associates such amended consent or the Development Approval in respect of DA 180/0455/02/C3 inter alia on the grounds that inadequate drainage was provided, the site was not adequately benched, the embankment was not adequately compacted and the gradient of the finished surface exceeds that which was approved.
7.An order in the nature of an injunction requiring City Apartments to remove the embankment and reinstating the land to its condition prior to the construction of the embankment and associated excavation inter alia on the ground that the construction of the embankment was unlawful development and on the further alternative ground that the construction of the embankment and its continued presence on the land constitutes an actionable nuisance.
8.An injunction restraining City Apartments Pty Ltd, its employees, agents or contractors proceeding directly or indirectly with any development unless such development is approved other than by development approval in respect of DA 180/0455/02/C3.
The Dismissal of the Proceedings
The learned Judge took the view that Mr and Mrs Hall were seeking to obtain the same substantive relief through declarations and injunctions that had been refused to them in the dismissal of their claim for judicial review. The Judge cited extensively from the judgment of Doyle CJ in Hall & Ors v City of Burnside & Ors[21] and in particular referred to the following observations:[22]
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.
The Judge then reasoned:[23]
The practical effect of the alternative remedies of judicial review and declaration and injunction is, in this case, identical. They are truly alternative proceedings. Apart from the time limitation, there is no identifiable benefit of one procedure over the other. To allow the application to proceed by way of declaration and injunction would be to allow the plaintiffs to gain a procedural advantage merely because of their reliance on an alternative remedy.
...
However, even without the decision of the Full Court refusing the extension of time, I consider that the reasons given by the Full Court for refusing to extend the time to commence proceedings under r 98 are equally applicable to the exercise of the Court’s discretion to refuse, on grounds of laches, this public law remedy in the circumstances of this case insofar as it is based on equitable relief. As Lord Diplock also pointed out in O’Reilly v Mackman there is no reason to leave the exercise of the discretion to the conclusion of the trial. Unless such an action can be struck out summarily at the outset as an abuse of the process of the Court, the whole purpose of the public policy behind the present r 98 would be defeated.
I also accept the submission of the second defendant that the proceedings as presently formulated to seek to assert the invalidity of the development approval which is necessarily contrary to the previous declaration of validity of the same development approval by the Full Court in Hall & Anor v City of Burnside & City Apartments Pty Ltd. While an application to vary that order was made as a condition of the plaintiffs being granted leave to serve the judicial review proceedings in this action, little or no interest seems to have been shown in progressing that application. The order of the Full Court in the earlier proceedings remains a barrier to any relief, declaratory or otherwise, which the plaintiffs might seek by way of challenge to the validity of the development approval.
[21] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440.
[22] Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440 at [58].
[23] Hall & Hall v City of Burnside & Ors (No 4) (2007) 252 LSJS 359 at [38] and [42]-[43] (footnotes omitted).
The Judge also considered the proposed amendments, and took the view that they did not raise legitimate matters of concern and were untenable. As a consequence the application to amend was dismissed.
The Appeal Against the Dismissal of the Proceedings
Mr and Mrs Hall then instituted an appeal against the dismissal of the proceedings. The appeal was lodged within time and was supported by the following grounds:
1.The learned trial Judge failed to consider that the plaintiffs’ Summons dated 31 January, 2006 without any amendments sought declarations in respect of Development Approval DA180/0455/02/C3 (“the Development Approval”) and Provisional Building Rules Consent (“the Provisional Building Rules Consent”) in respect of DA180/0455/02/C3 and that in the circumstances where:
1.1     these proceedings were issued on 31 January, 2006;
1.2     the Provisional Building Rules Consent was amended on 23 January, 2006 (as noted [7] of judgment appealed from);
1.3     the Development Approval was amended on 16 February, 2006;
1.4     there were subsequent further amendments to the Development Approval and Provisional Building Rules Consent;
1.5     the case of the plaintiff in support of the declarations sought was affected by such variations.
1.6     the plaintiffs were not aware of any amendments/variations prior to the decision and order on 2 March 2006 extending the time in which to issue proceedings ([11], [49]), and the previous hearing and subsequent appeal were argued on that basis.
These proceedings were brought in a timely manner and that the present circumstances were significantly different from those previously considered by the Full Court in Hall & ors. v. City of Burnside & ors. 245 LSJS 440.
2.The learned trial Judge erred in proceeding upon the basis that these proceedings without amendment did not challenge the Development Approval and Provisional Building Rules Consent as amended from time to time.
3.The learned trial Judge erred in proceeding on the basis that the declarations sought in paragraph 1 and 3 of the Inter Parte Summons dated 31 January, 2006 related to matters which occurred more than 6 months prior to the commencement of the proceedings in light of the facts as referred to in paragraph 1 hereof.
4.     The learned trial Judge erred in:-
(a)     proceeding upon the basis that the reasons previously given by the Full Court governed the exercise of the Court’s discretion to refuse a remedy of declaration when the circumstances presently being considered were significantly different from the circumstances previously considered by the Full Court;
(b)     treating an application for declaration as subject to the doctrine of Laches.
(c)     failing to proceed on the basis that declaration was a separate and distinct remedy from judicial review with distinct differences and governed by different principles;
5.The learned trial Judge ought to have proceeded upon the basis that it was not an abuse of process to utilise an available remedy merely because a separate remedy was not presently available.
6.The learned trial Judge erred in proceeding upon the basis that an application for declaration is to be governed by the requirements relating to judicial review in Rule 98 and, in particular, by the time requirements of that Rule.
7.The learned trial Judge erred in proceeding upon the basis that the order of the Full Court in Hall & anor. v. City of Burnside and City Apartments Pty. Ltd. 92 SASR 579 was a barrier to any relief, declaratory or otherwise, which the plaintiffs might seek and ought to have found that the earlier order was only conclusive as regards to the grounds with which it dealt.
8.The learned trial Judge erred in referring to subsection 39(7)(c) of the Development Act [51] as such subsection was not part of the Development Act at the relevant time.
9.The learned trial Judge ought to have found that as Section 39(7)(b) of the Development Act refers to an application to vary a development authorisation as being treated as a new application for development authorisation it was necessary in considering any relevant questions, including those of delay, to consider each application for variation as a new application.
10.The learned trial Judge erred in failing at the interlocutory stage to give adequate weight to the engineering evidence put forward by the plaintiffs.
11.The learned trial Judge ought to have proceeded on the basis that the validity of a Provisional Building Rules Consent was to be considered against the requirements for such consent and that such consent may be invalid whether or not it dealt with matters which remained outstanding following earlier consents.
12.The learned trial Judge ought to have found that the importance and relevance of a variation was to be considered against the requirements for Building Rules Consent not by reference to the extent of any variation from the original Development Approval.
13.The learned trial Judge erred in proceeding upon the basis that it was relevant to consider whether the embankment had been constructed in accordance with the amended consent when the case of the appellants was that the consent was invalid and that the embankment was not an approved development.
14.The learned trial Judge erred in proceeding upon the basis that it was relevant that agreement had been reached that with appropriate engineering works stability and compliance with the required building standards could be achieved when the case of the plaintiff was that there was no consent which had been given which met the requirements of required building standards.
15.The learned trial Judge ought to have found that the proposed amendments were not too late as the relevant varied authorisations had post dated the commencement of proceedings and there was no prejudice to the defendants from such amendments in the present circumstances.
16.The learned trial Judge failed to take account of the importance to the community of construction work being carried out in accordance with the requirements of the Development Act and, in particular, in conformity with a valid Provisional Building Rules Consent.
17.The learned trial Judge failed to take into account the importance of and public interest in protecting the procedures and standards set by Parliament in the public interest by ensuring that the correct administrative procedure was followed, particularly bearing in mind the prejudice to the public of failing to do so.
18.The learned trial Judge erred in proceeding upon the basis that the first indication of any challenge to the validity of the variation the subject of the Development Application given on 16 February, 2006 was the affidavit filed on 21 September, 2007 and ought to have referred to the affidavit of Mr. Gibbs of 12 April, 2006, the application to amend of 10 November, 2006 and the affidavit of Mr Gibbs of 21 December 2006.
On 27 March 2008, the Judge ordered that Mr and Mrs Hall pay the respondents’ costs of the action, and in particular the costs of City Apartments on an indemnity basis from 3 August 2007. Mr and Mrs Hall within time filed a supplementary notice of appeal in respect of the costs order.
Application for an Extension of Time
As earlier observed, affidavit evidence before the Court indicates that Mr and Mrs Hall were concerned to know their exposure to orders for costs in the substantive proceedings before committing themselves to setting down the appeal. They waited to avoid incurring any unnecessary expense until the making of the order for costs. Following the costs order, Mr and Mrs Hall determined to continue and prosecute with the appeal. However, they sought to negotiate terms of an overall resolution with the respondents, principally with City Apartments. Those attempts were unsuccessful.
It is to be observed that the Rules provide a six month time limit for the setting down of an appeal. If that limit is not observed the appeal lapses. Mr and Mrs Hall were well aware of the time limit. During May, June and July 2008, preparation of the appeal books was underway – a necessary precursor to setting down the appeal. The Rules of Court provide that appeal books are to be certified as correct by the parties. As the end of the six month time limit approached, Mr and Mrs Hall presented material to the respondents, who indicated that they were not prepared to certify the same as correct. On the last day, Mr and Mrs Hall made an application for an extension of time to set down their appeal. Evidence was before the Court that Mr Hall was suffering from cancer and was undergoing a form of treatment that made it difficult for him to address a number of pressing concerns including these proceedings.
It is against this background that the application for an extension of time was heard and refused by another Judge of the Court. The consequence was that Mr and Mrs Hall’s proceedings had been dismissed without a full hearing on the merits.
It may have been expected, having regard to the earlier referred to observations of the High Court in Jackamarra, that an extension of time would be granted, probably on terms designed to “fast-track” the hearing of the appeal. The extension application was heard over three days in late July and early August 2008. On 8 August 2008 the Judge made the order declining to extend time.
In published reasons the Judge addressed Jackamarra in some detail and observed:[24]
Whilst this appeal on its face may involve yet a further attempt to challenge a consent which has been challenged on previous occasions, it is not possible for me to determine this without going into the merits of the appeal. The High Court has warned against this approach. However, if this extension of time was allowed and the matter proceeded to the Full Court, the Full Court would be looking at the matter for the fourth time. It is important that challenges made to the validity of development consents are made and processed promptly. When one considers the history of this matter and the warning that the Halls received from the decision of the Full Court regarding the importance of time limits, it is necessary to seek a convincing explanation for the reason for this application to extend time.
[The Judge who dismissed the substantive proceedings] found that the attempt by the Halls to re-litigate the matter in front of him was an abuse of process. In any event, because the declaration sought involved discretionary considerations, His Honour indicated that he would not have exercised his discretion in favour of the Halls for the same reasons as expressed by the Full Court. It must be said, without attempting to pre-judge the matter, that having regard to the history of the matter, the Halls would face a difficult if not insurmountable task in the Full Court overturning the discretionary considerations of [the Judge who dismissed the substantive proceedings].
The Judge did not further develop his reasons for saying that the Mr and Mrs Hall would face “a difficult if not insurmountable task” to overturn the discretionary considerations of the Judge who dismissed the substantive proceedings.
[24] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 at [29]-[30].

The Judge then addressed prejudice to the respondents. He said that there was clear prejudice if further delays were allowed:[25]
Putting aside the background of the Halls’ attempts to re-litigate matters which have been finally decided by both the Full Court and the High Court, the exercise of my discretion comes down to determining whether there are any satisfactory reasons given for the delay which has necessitated the last-minute application for the extension of time, weighed against any prejudice which would occur should the extension be granted. There is a clear prejudice to the respondents if further delays are allowed. They are now entitled to some certainty in relation to the appeal process.
I have already summarised the reasons which Mr Hall gave for the lateness of the appeal books and the index. I think the most important aspect of the exercise of discretion is the prejudice that would be suffered by the respondents should this extension be allowed. I regard the reasons given by Mr Hall as unsatisfactory. The Halls knew the importance of the time limits because of the previous judgment of the Full Court.
He then concluded:[26]
In the public interest, and in the interests of justice and to provide certainty in relation to matters of planning decisions made a long time ago, it is my view that the discretionary factors are in favour of dismissing the application. I therefore refuse the application for the extension of time in which to set the appeal down.
In the course of his reasons, the Judge did not further identify the prejudice said to be suffered by the respondents.
[25] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 at [31]-[32].
[26] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 at [33].
On the hearing of the application for permission to appeal, a number of complaints were advanced. It was said that although the Judge had referred to Jackamarra, he had failed to give effect to the principles there identified. It was further complained that the Judge had accepted the respondents’ submission that the history of the matter was such as to amount to an unusual circumstance which justified the refusal to extend time. It was said that the mere fact there had been a long history to the matter was no reason to refuse to extend time. The issue was one of considering the application on its merits.
On the question of prejudice, it was submitted that the Judge did not identify any prejudice apart from what was said to be an entitlement to finality. Counsel for Mr and Mrs Hall pointed out that building work had been continuing since early 2007, and so any short delay was not going to cause any prejudice. It was said that there was no effect on the administration of the planning system that gave rise to any relevant or material prejudice to the City of Burnside.
Attention was drawn to the fact that in the course of his reasons, the Judge referred to the experience of Mr and Mrs Hall as litigants. This in some way, it was said, had been held against them – that as experienced litigants they allowed their proceedings to go out of time. It was accepted that there was no question that Mr and Mrs Hall were well aware of the time limits, and it was pointed out there was no suggestion that an extension should be granted because of any lack of awareness of the relevant time limit. In this respect it was submitted that the Judge had regard to an irrelevant consideration.
Attention was also drawn to the Judge’s reference to the matter proceeding to the Full Court for a fourth time. Mr and Mrs Hall submitted that this was a material over-simplification of the position. The issues to be agitated by Mr and Mrs Hall in the within proceedings were issues that had not been before the Full Court on any previous occasion. Although the proceedings concerned the same development, they related to different questions from those considered by the Full Court on earlier occasions. It was submitted that it was irrelevant that the Full Court may have previously considered other complaints about the development. The question, it was said, was whether there is merit in the present appeal or, to pose the questions in the negative, whether it can be said that the present proceedings are bound to fail.
Attention was drawn by counsel for Mr and Mrs Hall to the statement by the Judge that “[i]t must be said, without attempting to pre-judge the matter, that having regard to the history of the matter, Mr and Mrs Hall would face a difficult if not insurmountable task in the Full Court overturning the discretionary considerations of [the Judge who dismissed the substantive proceedings]”.[27] It was submitted that this was a fundamentally flawed approach, unless his Honour was concluding that the appeal had no merit. As was pointed out, there is a real difficulty if the application for an extension of time can turn into a hearing of the appeal itself. The Judge’s substantive conclusion was, it was said, that Mr and Mrs Hall had no prospect of success.
[27] Hall & Anor v City of Burnside & Ors (No 6) [2008] SASC 219 at [30].
Counsel for Mr and Mrs Hall submitted the appeal against the dismissal of the proceedings involved the proposition that the Judge had inappropriately relied upon the history of the matter to defeat Mr and Mrs Hall’s claim. It was said that this approach was illogical and that Mr and Mrs Hall were entitled to have their claim considered on the merits.
On appeal, counsel for the respondents advanced substantially the same submissions. It was submitted that the order refusing to extend time was discretionary, was one of practice and procedure, and that no error had been shown in the exercise of the Judge’s discretion. It was said that the conclusions that the Judge reached about not being satisfied about the reasons for delay were open and should not be overturned.
Counsel for the respondents specifically disavowed any submission that Mr and Mrs Hall’s proceeding for declaratory injunctive relief was doomed to fail. Both counsel specifically acknowledged that it could not be said that Mr and Mrs Hall’s appeal was without prospects. Both counsel preferred to put this proposition in the negative, rather than to acknowledge that the appeal was arguable.
It would appear that the Judge when declining to extend time gave consideration to the prospects of Mr and Mrs Hall succeeding in their appeal against the order of the Judge dismissing the substantive proceedings. Although he did not reach a conclusion that the appeal would fail, he did speak of the difficulties faced by Mr and Mrs Hall as being insurmountable. It is difficult to avoid the conclusion that these observations coloured the Judge’s approach to the exercise of his discretion.
Counsel for the respondents conceded that there were no express findings of prejudice to their clients by delay occasioned by the failure to set down the appeal. The Judge referred to monies expended by City Apartments since the order of the Judge dismissing the substantive proceedings. However, a review of the evidence discloses that the major part of any such expense was incurred during the two month period following the institution of the appeal, and what would appear to be an insubstantial and unspecified amount was spent in the ensuing four months. Counsel for the respondents submitted that regard could also be had to the public interest in the provision of certainty in building approvals at an early stage. Counsel argued that, when assessing prejudice, the Court was entitled to have regard to the prejudice encountered since the commencement of the first of Mr and Mrs Hall’s complaints about the City Apartments project, and the delay consequent upon the prosecution of those complaints. It was pointed out that Mr and Mrs Hall’s complaints commenced in 2005.
Reliance was placed on observations of the High Court in Brisbane South Regional Health Authority v Taylor,[28] a case concerned with an application to extend time for the issue of proceedings. The Court there pointed out that the prejudice to the intended defendant was to be assessed having regard to the total delay, rather than the prejudice arising since the expiration of the applicable time limit. In my view, these observations do not have direct relevance in the present proceedings. This is not an application for extension of time to issue substantive proceedings. Mr and Mrs Hall initiated a valid appeal. Further, the respondents were entitled, after a period of two months following issue of the appeal, to make application to dismiss the appeal. Such an entitlement is not available to an intended defendant facing the issue of intended proceedings that are otherwise out of time. To put it another way, if the respondents were concerned about prejudice through further delay, they had the ability to bring matters to a “head” themselves.
[28] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. See also Pomeroy v Thwaites Witham Pty Ltd & Anor (2001) 79 SASR 489.
In Jackamarra, the members of the High Court made no reference to Taylor’s case, and the approach taken to the issue of prejudice that there arose. In Jackamarra the Judges identified the question as being what prejudice arises from the delay occasioned by the breach of the rules. I consider that Jackamarra identified the approach to be followed in the present proceeding, and identified the relevant question to be addressed – what prejudice arises from the delay occasioned by the breach of the Rules.
It does not follow that the general history of the matter is irrelevant. To the contrary, that history provides the background and context to a consideration of the present proceeding. It is relevant in that way to an overall assessment of the interests of justice. This Court has a discretion to be exercised by the circumstances of the particular case.
In my view, the exercise of discretion by the Judge miscarried. The Judge was influenced by what he viewed as being the insurmountable obstacles standing in the way of Mr and Mrs Hall succeeding in their appeal. The Judge failed to give full effect to the principles identified in Jackamarra. The Judge placed too much weight on what were said to be prejudices to the respondents. The Judge did not give sufficient weight to the minimal delay that would occur in the setting down or to the consideration that through an early listing of the appeal, any delay in setting down could be addressed. The appeal lists of the Full Court are such that the appeal could have been fast-tracked and heard, in all probability, during the following month. In other words, a short delay in setting down would not delay the hearing of the appeal.
Accordingly in these circumstances, permission to appeal from the order of the Judge refusing the extension of time should be granted. The hearing of the appeal, having regard to my earlier reasons, involves this Court in reconsidering the exercise of the discretion as to whether to extend time. I consider that a number of factors support a favourable exercise of that discretion, and outweigh any counteracting considerations.
Mr and Mrs Hall’s appeal against the orders of the Judge dismissing the substantive proceedings is not doomed to failure. Having regard to the concession of the respondents, it is safe to conclude that the appeal cannot be said to be without prospects of success. To put it in the positive, it follows that the appeal is arguable. Neither party sought to investigate, or assess, those prospects, and as was pointed out in Jackamarra, there is considerable difficulty in doing so without in substance hearing the entire appeal.
The extension of time sought relates to a proceeding within substantive proceedings, issued within time. The courts traditionally are indulgent to such applications. However, as Kirby J has pointed out in Jackamarra,[29] the onus remains on the moving party to establish a proper basis for the exercise of the court’s discretion in favour of the extension.
[29] Jackamarra v Krakouer (1998) 195 CLR 516 at [66].
In the present case, Mr and Mrs Hall provided an explanation for the delay. A number of matters were identified, including a desire to understand the implications of costs following the dismissal. Mr and Mrs Hall only learnt of their legal liability in March 2008 on the delivery of the reasons on costs of the Judge dismissing the substantive proceedings. Thereafter they sought to ascertain the amount of the respondents’ claims. Mr and Mrs Hall sought to negotiate a settlement of the entire proceedings, including matters relating to the building development, as well as costs. In their correspondence, Mr and Mrs Hall repeatedly pointed out that they were anxious to explore a negotiated settlement, but if that could not occur they would proceed with their appeal. The respondents were on notice that in the event of there not being a negotiated settlement, Mr and Mrs Hall intended to proceed with the appeal. Reference was also made to Mr Hall’s ill health as being a matter that distracted him from giving his full attention to the appeal litigation.
Evidence before the Court established that considerable work had been undertaken by Mr and Mrs Hall and their advisors in relation to the preparation of the appeal book. In May 2008, Mr and Mrs Hall wrote to City Apartments enquiring as to the documents that City Apartments would want in the appeal book. There was no response to this request. In the event, an uncertified, indexed, paginated appeal book was lodged with the Court registry before the six month period expired. A request was made for the respondents to certify the book as accurate. This request was refused. The request was made at the last minute. It was accepted that the Registrar was satisfied with the book on its face, although it is clear that the Registrar was not in a position to express the view that all relevant materials were included.
Mr and Mrs Hall made application to extend time for lodging of the appeal book, prior to time expiring, although the application could not be heard until after time had expired.
There were a number of avenues available to address any possible prejudice that might arise to the respondents. One such avenue was to waive compliance with the rules of Court requiring certification. Another was to fast-track the appeal. Had either course been followed, the substantive proceedings could be expected to have been heard and disposed of by now.
Conclusion
Having regard to the foregoing, I would grant permission to appeal, allow the appeal, and extend time for the setting down of the appeal. I would waive compliance with the rules requiring certification of the appeal book, and direct that the appeal be set down by 5.00pm on Thursday 20 November 2008. I would hear the parties as to the giving of further directions to enable the hearing of the appeal to be expedited.
SULAN J: I agree with the reasons of Kourakis J. I agree with the orders proposed by Gray J.
KOURAKIS J: I gratefully adopt the summary of the material facts appearing in the judgment of Gray J. I agree with the orders he proposes. For the reasons that follow I have concluded that the Judge who heard the application erred by failing to differentiate between the prejudice suffered by the respondents after the institution of the appeal and the prejudice they have suffered from the time of the first challenge to the validity of the development approval. I hold that it is an error of law to regard prejudice suffered before the institution of the appeal in the same way as prejudice suffered thereafter. Furthermore, the Judge failed to have regard to the fact that the respondents took no steps to ensure that the appeal was promptly prosecuted, or alternatively, dismissed after the period of two months lapsed.
Where a statute or a statutory instrument limits the time within which to institute proceedings or to take a step in an action, it commonly confers a discretion on a court to extend that time. It is well accepted that subject to an express provision to the contrary, the length of the delay of a party in instituting an action or taking a step in an action is relevant to the exercise of that discretion. It appears to me that there are two reasons why that is so. The first is that the length of delay is a measure of the applicant’s fault. The second is that the degree of prejudice suffered by the innocent party is likely to be greater where the delay is longer. Although the length of the delay may, in itself, without reference to fault or prejudice, have some weight, it is unlikely to be substantial.
If it be accepted that one of the reasons that the length of the delay is a material consideration is its capacity to cause prejudice, then it appears to me that the extent to which the prejudice is directly related to the delay is in itself a relevant consideration. The point I make can be simply illustrated. A delay of just one day after a three year limitation period might, in the ordinary course, be regarded as trivial and would not militate against an extension of time because the degree of fault is minor. However, if important evidence was lost in that day, then the strength of the case for an extension would be substantially weakened, precisely because the loss of the evidence is directly related to the delay. On the other hand, if the same evidence were lost in the first day after the date on which the action could have been brought, then the loss of that evidence would not weigh as strongly against extending the time within which to proceed.
The proposition that prejudice arising before the expiry of the limitation period may not weigh as heavily against the exercise of the discretion as prejudice arising thereafter is not inconsistent with the principle, for which there is clear authority, that a court exercising a discretion to extend time must have regard to all of the prejudice suffered by the respondent from the time at which the action or step in an action could first have been taken. In Brisbane South Regional Health Authority v Taylor[30] Gummow and Hayne JJ said:
In other words their Honours approached the question of prejudice by reference to the theoretical situation of an action commenced two and a half years after the conversation between the respondent and Dr Chang. But s 31(2) neither speaks of nor warrants such a comparison. Once an applicant satisfies pars (a) and (b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.[31]
[30] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[31] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548-9.
In Taylor McHugh J made the same point in the following way:
In the present case, the learned District Court Judge held that the present respondent was "placed in a position of serious prejudice having regard to the lapse of time which has occurred". That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was 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. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.[32]
[32] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-5.

Those passages establish that the relevant prejudice for the purposes of an application to extend time is not limited to the prejudice which is suffered in the period after the expiry of the limitation period. The rationale for that approach appears in the judgment of McHugh J in Taylor.[33] Limitation periods reflect a legislative or administrative judgment on where the balance lies between an applicant’s right to pursue a remedy for an alleged wrong on the one hand, and a prospective respondent’s interests in both certainty and a fair hearing on the other. A discretion to extend the time in which a step in an action can be taken is in effect a power to alter that balance. It follows that, where a legislatively or administratively imposed time limit allows for a discretionary extension, it is material and relevant to have regard to the entirety of the prejudice that the respondent may suffer if the action is brought so that the fresh balance struck is a just resolution of the interests of both parties. The balance will necessarily be skewed in favour of the applicant if only the prejudice over and above that which the defendant would face if the action was brought within time was considered. However, the authorities do not demand that the weight that should be accorded to the prejudice suffered by the respondent should be the same whenever it was caused. Indeed, the passage from the judgment of McHugh J that I have reproduced above seems to me to suggest otherwise.
[33] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
The decision of the High Court in Jackamarra v Krakouer[34] clearly establishes that the relative weight of the discretionary factors affecting the exercise of a discretion to extend time differs according to whether more time is sought to commence an action or to take a step in an existing action.[35] The institution of an action immediately puts the respondent on notice of the extent of his or her contingent liability and alerts him or her to the need to obtain and preserve relevant evidence. A respondent can also approach the court before which he or she has been brought and seek orders to ensure the prompt prosecution of the action. If the action is not promptly prosecuted a respondent may apply to have it dismissed. There is yet a further difference. When the time for instituting an action has expired, a prospective respondent has an identifiable substantive right. Where no action has been brought the right is in the nature of an immunity from suit.[36] Where a judgment has been given, the parties bound by it are protected, subject to any properly instituted appeal, from further disputation over the competing claims that have been conclusively settled by the curial adjudication.[37] However, where a proceeding, whether it is a proceeding at first instance or an appellate proceeding, has been instituted, it is not meaningful to speak of a respondent’s right to have that action heard within a particular time. The time that will be taken to resolve the action will depend on many circumstances, including the procedures and resources of the court in which the action is brought. It might be said that the respondent has a procedural right to the expeditious prosecution of the matter in accordance with the rules of the court, but the right so described is a very different right to the substantive rights a prospective respondent enjoys before the commencement of the action.[38] Moreover, as I have just observed, a respondent can enforce that procedural right by approaching the court for orders that the action be prosecuted diligently.
[34] (1998) 195 CLR 516.
[35] Jackamarra v Krakouer (1998) 195 CLR 516 at 519-20, [3]-[7] per Brennan CJ and McHugh J.
[36] John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543, [99].
[37] The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1969-1970) 123 CLR 361 at 374 per Kitto J.
[38] See Jackamarra v Krakouer (1998) 195 CLR 516 at 520, [4] per Brennan CJ and McHugh J.
It follows that in this matter I accept that the prejudice faced by the respondents includes, at least, the prejudice that they have suffered and would continue to suffer from the time at which the appeal could reasonably have been set down. The relevant prejudice may even extend to the prejudice suffered from the time of the institution of the appeal.[39] The period of two months allowed by the applicable practice direction can be accepted as the time that is reasonably required to set down an appeal. The appeal was filed on 21 January 2008. It is appropriate to proceed on the basis that it could have been set down by 20 March 2008.
[39] Cf Jackamarra v Krakouer (1998) 195 CLR 516 at 520, [4] per Brennan CJ and McHugh J and at 528, [33] per Gummow and Hayne JJ.
The prejudice relied on by the respondents is two-fold. First, the respondent City Apartments Pty Ltd (City Apartments) complains that an extension of time in which to set down the appeal puts at risk money it has expended on the construction of the house. It claims that that expenditure will be wasted, or at least put at risk, if the approval is set aside. Secondly, both respondents complain that an extension of time will prolong the uncertainty that they have now had to manage for many years.
A schedule of work performed on the house was received in evidence in the application below. The schedule shows that City Apartments caused substantial work to be undertaken in January and February 2008, soon after the appeal was instituted. It would appear therefore that the institution of the appeal did not create sufficient uncertainty to cause City Apartments to delay the building work. After 20 March 2008 the only work performed was the painting of the exterior and interior of the house and the replacement of 15 damaged doors in July.
Very little, if any, prejudice was caused in the short span of a week or so between the expiration of the six month period following the institution of the appeal and the decision of the Judge to refuse to extend time. According to material received on the application, the only work that was left to complete the house, as at the time that the respondents’ material was filed, was to carpet the floors. On the affidavit evidence relied on by City Apartments, that work had probably been completed by the time the appellant’s application for an extension of time to set down the appeal was refused. It follows that the grant of an extension of time would not cause any delay in the completion of the house. Nonetheless, I accept that an extension of time in which to set down the appeal would leave the principals of City Apartments in some uncertainty, which would undoubtedly detract from their enjoyment of the house.
The weight of the prejudice arising from the expenditure of money on the house, whether the whole of the expenditure after the institution of the appeal or only that expenditure after 20 March is taken into account, is not great. Moreover, it is diminished by the fact that even if an extension of time were granted, City Apartments could rely on that expenditure to press the court to refuse the discretionary remedies which are sought by the appellants on their appeal. It can be accepted that the uncertainty generated by an action to set aside a development approval, and most other administrative decisions, prejudices the position of the respondent to those proceedings whether the respondent has altered his or her position on the strength of the decision or not. Indeed, the prejudice caused by the uncertainty may be as great where the respondent refrains from exercising its rights as it is where the respondent alters his or her position on the basis of the validity of the decision. It is largely for that reason that the limitation period imposed by the rules for bringing an action for judicial review is rigorously enforced even though the delay would in any event be relevant to the exercise of the discretion.[40] However, it remains the case that where the primary prejudice relied upon by the respondent is that it has already changed its position on the strength of the administrative decision, that prejudice will necessarily be taken into account when the court considers whether to grant discretionary remedies such as a declaration of right or an order quashing an administrative decision. The court would, I think, be bound to give even greater weight to that expenditure if it was brought about, or inflated, by the applicant’s delay in prosecuting the proceedings. The court would only quash the decision, notwithstanding the prejudice caused to the respondent by the delay, if the interests of justice clearly demanded it. It would seem to me to be a curious result if an extension of time were to be refused on the ground that the respondent had adversely changed its position and that therefore it would be prejudiced by a decision, made on the merits in the substantive proceedings, that the administrative order should be quashed in the interest of justice notwithstanding that prejudice. Indeed, there is an underlying paradox in opposing an extension of time on the basis of the risk that the respondent’s expenditure will be wasted if an extension of time were to be granted. The paradox is that the risk is plainly greater when the applicant’s case is strongest and therefore more deserving of an extension but there is much less risk, and therefore prejudice, when the applicant’s case on the merits is weak and less deserving of an extension. For those reasons, there is a limit to the weight that can be placed on the risk that the expenditure of City Apartments might be wasted if an extension of time were granted. It may be that all that can be said is that, just as in cases where the respondent has deferred acting on the administrative decision in its favour, delays in bringing or prosecuting challenges to those decisions create uncertainty which is an evil in itself and should be avoided.
[40] Hall v City of Burnside (2006) 245 LSJS 440 at 445, [49].
On the other hand, I accept, as I have already said, that the prospective uncertainty that will be caused by extending time will cause the principals of City Apartments considerable anxiety until the appeal is determined. However, both respondents submit that the prejudice they will suffer arises from the fact that the uncertainty about the validity of the development approval granted by the first respondent over four years ago will be extended yet again. That submission is problematic for several reasons. Firstly, the respondents had already endured the past uncertainty well before the appeal was instituted. An extension of time in which to set down the appeal would not in any way change that fact. What they will suffer if an extension of time is granted is the future uncertainty, which as I have acknowledged is bad in itself and will detract from the enjoyment of the now completed house. If the second respondent had delayed, and was continuing to delay the development, it could perhaps be said that the prejudice is not just the further prospective delay, in itself, but the fact that it comes upon several years of delay in the past. However, that is not the case here because the house has been completed.
If the prejudice that an extension of time in which to appeal would cause could on the facts of this case be reformulated in a way that encompasses the delay preceding the institution of the appeal, a more fundamental difficulty would arise. In Taylor the High Court held that all of the prejudice that would be suffered by the defendant, from the date on which the pleaded cause of action arose to the date of institution of the action, must be considered. However, that decision is not authority for the proposition that the prejudice that the defendant might face as a result of events preceding the date on which the cause of action arose must be weighed in the balance. The possibility of prejudice that pre-exists the existence of the cause of action is of course not fanciful. Negligent conduct may not cause an actionable injury for many years, or even decades, after it has been taken. Evidence may be lost between the conduct and injury, and in some cases lost because of the fault, in a general sense, of the plaintiff. However, it is difficult to see how the prejudice thereby occasioned is material on an application for an extension of time within which to bring the action. If it were in some way relevant its weight could only be slight. It seems to me that, for the same reason, the uncertainty experienced by the second respondent before the notice of appeal was filed has very little, if any, weight.
In refusing the application to extend time in which to set down the appeal, the Judge said that the most important aspect of the exercise of the discretion was to consider the prejudice that would be suffered by the respondents. The Judge went on to refer to the need to provide “certainty in relation to matters of planning decisions made a long time ago”. In my respectful opinion the Judge has conflated the prejudice that long pre-existed the institution of the appeal with the prejudice that would be occasioned by the extension of time.
I accept that a history of repeated non-compliance with rules of court and time limits is a relevant matter. That history may show that there is little prospect that the applicant requesting more time will make good use of it. Moreover, there is a limit to the waste of its time and resources that a court is prepared to tolerate.[41] However, in this case the appeal would have been set down almost immediately if an extension of time was granted because both respondents concede that they would have consented to the appeal proceeding on the books prepared by the appellants if they were excused from certifying them.
[41] Jackamarra v Krakouer (1998) 195 CLR 516 at 519-20, [4] per Brennan CJ and McHugh J.
There is a final, and to my mind weighty, consideration that supports the grant of an extension of time in which to appeal. It is, I think, impossible to reconcile the respondents’ contention that in the circumstances of this case they would suffer overwhelming prejudice if the small extension sought by the appellant was granted with their failure to take any action to have the appeal dismissed for want of prosecution after the period of two months allowed by the applicable practice direction elapsed. That is particularly so in the case of City Apartments who were well aware that the appellants were attempting to settle the matter before setting down the appeal. Furthermore, by letter dated 20 May 2008 the appellants’ solicitor had asked City Apartments’ solicitor to advise what materials he wished to have included in the appeal book. No reply was given. The Judge did not refer to this consideration. I am satisfied, in the particular circumstances of this case, that the failure to refer expressly to it shows that the Judge did not have regard to it.
The decision of the Judge being affected by error, appellate intervention with the exercise of his discretion is permissible. Both respondents concede that the appellants’ case is not unarguable. The extension of time sought was short. Very little prejudice was suffered in the time following the institution of the appeal. There is some, even if imperfect, explanation for the appellants’ delay. If any weight can be given to the appellants’ delays before the institution of the appeal it is, very plainly, insufficient reason to deny the appellants an opportunity to put their case. The prospective uncertainty is undesirable but can largely be ameliorated by an expedited hearing of the appeal.
I would allow the appeal. I would join in the orders proposed by Gray J.