Hall v City of Burnside (No 9) - [2008] SASC 361

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALL & ANOR v CITY OF BURNSIDE & ORS (No 9)
[2008] SASC 361
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
19 December 2008
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - TIME FOR APPLICATION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appellants owned a property adjacent to that of second respondent ('City Apartments'), within a planning zone administered by first respondent ('Burnside') - third respondent granted Provisional Building Rules Consent (PBRC) to City Apartments - Burnside then granted development approval to City Apartments - appellants issued summons for judicial review in Supreme Court seeking orders in the nature of certiorari (quashing the development approval and the PBRC (Approvals)) as well as declarations that the Approvals were invalid and an injunction restraining further work undertaken pursuant to Approvals - under r 98.06 Supreme Court Rules 1987, summons for judicial review has to be issued within six months of the date on which the grounds for review first arose - Full Court in previous proceedings refused to make an order extending time within which summons could be issued - respondents sought orders dismissing the summons - single Judge held that summons for judicial review was liable to be struck out.
Held: r 98.06 had the effect that upon a refusal to grant permission to serve a summons seeking judicial review outside of the time limit imposed by r 98.06, the whole summons (and not merely the parts of it that sought orders in the nature of the prerogative writs) was liable to be struck out - the summons as it originally stood was liable to be struck out.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
If permission not granted to issue summons for judicial review, r 98.11(5) allows a Court to order that any declaration, injunction or damages claimed in summons for judicial review can proceed as if commenced by ordinary summons - if declarations and injunction sought by way by ordinary summons, time limit in r 98.06 would not have applied - whether single Judge erred in refusing to permit the claim for declarations and an injunction to proceed.
Held: regardless of application of time limit in r 98.06, if declarations and injunctions sought by ordinary summons, whether or not such a summons could proceed would still be contentious - having regard to the delay of the appellants and the prejudice to City Apartments if such a summons was permitted to proceed, it is unlikely that such a summons would have been allowed to proceed - single Judge rightly refused to order that action for declarations and injunction proceed as if commenced by ordinary summons.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
Notwithstanding that the summons was liable to be struck out, and that an order that the claim for declarations and injunction proceed as if commenced by ordinary summons was refused, appellants could proceed if permission to amend summons to introduce additional grounds of review granted - whether Judge erred in refusing to grant permission to amend summons.
Held: amendment sought long after six months had passed since the additional grounds of review arose - matters introduced by the amendments were treated by the appellants as important issues long before amendment to summons sought - not ordinarily appropriate to grant leave to amend if circumstances would not justify an extension of time within which to institute fresh proceedings raising the subject matter of the amendment - amendment would prejudice City Apartments - single Judge not in error in refusing permission to amend.
Development Act 1993 (SA) s 32, s 33, s 36, s 39; Supreme Court Rules 1987 (SA) r 98.01, r 98.03, r 98.04, r 98.04A, r 98.06, r 98.11(5); Supreme Court Act 1935 (SA) s 31, referred to.
Hall & Ors v City of Burnside & Ors (2006) 245 LSJS 440, applied.
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Hall & Anor v City of Burnside & Ors (2007) 157 LGERA 365; O'Reilly v Mackman [1983] 2 AC 237, discussed.
Hall & Anor v City of Burnside & Ors (No 8) [2008] SASC 318; City Apartments Pty Ltd v City of Burnside & Hall [2003] SAERDC 94; Hall & Anor v City of Burnside and City Apartments Pty Ltd (2005) 92 SASR 579; City of Burnside & Ors v City Apartments Pty Ltd (2004) 236 LSJS 47; Hall & Ors v City of Burnside & Ors [2006] SASC 86; Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; Sankey v Whitlam (1978) 142 CLR 1, considered.

HALL & ANOR v CITY OF BURNSIDE & ORS (No 9)
[2008] SASC 361
Full Court: Doyle CJ, White and Kourakis JJ

DOYLE CJ. In January 2006 Mr and Mrs Hall (“the Halls”) issued a summons seeking judicial review of a development approval granted by the City of Burnside (“Burnside”) and judicial review of a Provisional Building Rules Consent (“PBRC”) granted by Katnich Dodd. The development approval and the PBRC were granted under the Development Act 1993 (SA) (“the Development Act”). The Halls sought declarations that the development approval and PBRC were invalid, and orders in the nature of certiorari quashing each of them. Burnside and City Apartments Pty Ltd (“City Apartments”) were joined as defendants. Katnich Dodd was later joined as a further defendant. The development approval and the PBRC were granted to City Apartments. The development that City Apartments proposed, the subject of the PBRC and of the development approval, was the erection of a dwelling.
In September 2006 the Full Court, on appeal from a single Judge, set aside that Judge’s order extending the time within which the summons for judicial review could be issued, and substituted an order that the Halls’ application for an extension of time be dismissed: Hall & Ors v City of Burnside & Ors [2006] SASC 283; (2006) 245 LSJS 440.
In August and September 2007 Burnside and City Apartments separately applied for an order dismissing the summons. Katnich Dodd sought the same order in October 2007. The grounds were that there was no reasonable prospect of the Court making the orders sought, that the action should be struck out for want of prosecution, and that the continuance of the action was an abuse of the process of the Court.
The Halls countered with an application to amend the summons to, among other things, include in it an attack on the validity of variations of the PBRC that had been granted in January 2006 and December 2006.
The Judge did not allow the amendments. He ordered that the Halls’ summons for judicial review be dismissed: Hall & Anor v City of Burnside & Ors [2007] SASC 460; (2007) 157 LGERA 365.
The Halls appealed against that decision. Despite the lengthy history of this matter, the Halls failed to set the appeal down within the prescribed time. However, ultimately by another decision of the Full Court (Hall & Anor v City of Burnside & Ors (No 8) [2008] SASC 318), they obtained an extension of the time for the setting down of the appeal, and the appeal has now come on for hearing.
City Apartments first obtained provisional development planning consent for the proposed development by a decision of the Environment, Resources and Development Court (“the ERD Court”) on 20 January 2004: City Apartments Pty Ltd v City of Burnside & Hall [2003] SAERDC 94. The dispute over the proposed development has continued since some time in 2003.
The central issue on appeal is whether a consequence of the decision of the Full Court in September 2006, by which an extension of time within which to issue the summons for judicial review was refused, is that it was appropriate to dismiss the summons, as the Judge did.
There are two further issues.
The first is whether the proposed amendments to the summons should have been allowed, permitting the Halls at least to attack the validity of the variations to the PBRC, and through that means to attack the development approval.
The other issue arises from yet another decision of the Full Court in other proceedings seeking judicial review of the development approval: Hall & Anor v City of Burnside and City Apartments Pty Ltd [2005] SASC 343; (2005) 92 SASR 579. By that decision the Full Court rejected a claim by the Halls that the development approval granted by Burnside was invalid on the ground that the relevant provisional development plan consent had lapsed before the development approval was granted. The details of the argument do not matter. It suffices to say that this attack on the validity of the development approval was on grounds quite different from those raised in the present proceedings. A single Judge had upheld the claim by the Halls, and had declared the development approval invalid, and had ordered that it be quashed. The Full Court rejected the claim by the Halls, set aside the order of the single Judge, and made an order declaring that the development approval was a valid development approval. This raises the issue of whether that decision of the Full Court is a bar to the relief claimed on the summons for judicial review issued by the Halls in January 2006.
The proceedings so far
The proceedings have a long and complex history. It is necessary to summarise some aspects of that history, before dealing with the issues that fall for decision. My summary deals only with the history so far as is necessary to deal with the issues now before the Court.
One cannot avoid a feeling of regret over the impact that this protracted and complicated dispute must have had on the individuals involved, and over what it must have cost them. However, the Court can do no more than continue to decide the issues that are raised by the parties.
The Halls own land in the Hills Face Zone at Glen Osmond, to the east of Adelaide. They live in a house on the land. City Apartments owns neighbouring land. The Halls’ land is to the east of this land, and higher up the slope of the foothills.
As I have already mentioned, it was in January 2004 that the ERD Court, on an appeal by City Apartments against a decision by Burnside, granted provisional development plan consent to City Apartments in respect of a proposed development on that land, being the erection of a house with associated earthworks. City Apartments’ land slopes quite steeply, giving rise to the need for extensive earthworks.
The house is now either complete, or almost complete, and substantial earthworks have been carried out.
The Halls and Burnside appealed to the Full Court against the decision of the Environment, Resources and Development Court. In September 2004 the Full Court dismissed that appeal: City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294; (2004) 236 LSJS 47. The Halls applied to the High Court for special leave to appeal against that decision, but that application was dismissed on 11 August 2005.
In the meantime, on 4 March 2005 Katnich Dodd, acting as a private certifier, had granted the PBRC in respect of the proposed development. Burnside had then granted development approval on 21 March 2005.
Each of those consents was granted under the Development Act. On the face of things, the grant of the development approval by Burnside meant that the erection of the house proposed by City Apartments was an approved development for the purposes of s 32 of the Development Act, and accordingly the development could be undertaken (subject to any other statutory requirements). The development approval granted by Burnside depended on there being a PBRC in respect of the proposed development. The effect of s 33 of the Development Act is that for the proposed development to be an approved development, City Apartments had to obtain a provisional development plan consent and a provisional building rules consent. Those consents were granted to City Apartments by the ERD Court and Katnich Dodd respectively.
On 31 January 2006 the Halls issued the proceedings now before the Court: see above at [1].
The attack by the Halls on the validity of the development approval was mounted by attacking the validity of the PBRC. I will come back to that point.
The summons was issued under r 98.01(1) of the now repealed Supreme Court Rules 1987 (“the Rules”). Rule 98.01 of the Rules relevantly provided:
Orders of mandamus, prohibition, certiorari and quo warranto to be sought by action for judicial review
98.01(1)    An order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of this Rule.
Prerogative writs not to be issued but orders to be made in the nature of such writs
(2)     The prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the Court and informations in the nature of quo warranto are hereby abolished, but in any case in which relief could have been granted by means of any of the said writs or of the said information, the Court shall have jurisdiction to make an order in the nature, and to have the effect, of the remedy or of the remedies which would have been available if this Rule were not in force.
Declarations and injunction may be sought and granted on summons for judicial review
(3)     Declarations or injunctions may be sought in a summons for judicial review, and on such a summons the Court may grant the declaration or injunction claimed in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having regard to:
(a)the nature of the matter in respect of which relief may be granted by way of an order having the effect of an order for mandamus, prohibition, certiorari or quo warranto;
(b)the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case;
it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review.
Judicial review does not exclude other jurisdictions
(4)     The existence of a remedy by way of judicial review does not exclude any jurisdiction of the Court to grant relief which could be invoked if this Rule had not been included.
…
The summons sought an order in the nature of certiorari quashing the PBRC and quashing the development approval, consistently with r 98.01(2). The summons also claimed declarations that the PBRC and development approval were invalid. The inclusion of the claim for a declaration was supported by r 98.01(3).
The summons claimed an injunction restraining City Apartments from proceeding with the proposed development. The grant of that relief would have depended upon the Halls obtaining one of the orders already referred to. The inclusion of the claim for an injunction was also supported by r 98.01(3).
At this point I emphasise that the claim for declarations and for an injunction was made in, and was part of the summons seeking judicial review. The claim for declarations and an injunction is not to be understood as giving rise to separate or alternative proceedings. These claims were made in and were part of the summons for judicial review.
As required by r 98.04, Mrs Hall swore and filed an affidavit setting out the grounds on which the orders were sought. She said:
32.     I seek the orders set out in the summons herein on the following grounds:
32.1 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:
32.1.1failed to have regard to the fill and the retaining wall in granting consent; and
32.1.2failed to have regard to the Building Rules in so far as they relate to the fill and the retaining wall in granting consent; and
32.1.3granted consent to fill which was at variance with the Building Rules contrary to section 36(2) of the Development Act 1993.
32.2    As a consequence, the Development Approval granted on 21 March 2005 is invalid because the Building Consent is invalid;
32.3    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 affidavit makes it clear that the attack on the development approval is based on an attack on the PBRC.
A summons seeking judicial review may be served only with leave of the Court: r 98.03. By r 98.04A, the Halls were required to apply for leave to serve the proceedings, and by r 98.04A(3) such an application would ordinarily be heard ex parte.
Rule 98.06 presented an obstacle to the grant of leave. Rule 98.06 provided:
Summons to be issued within 6 months of grounds arising
98.06Subject 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 PBRC and the development approval had been granted some ten months before the summons for judicial review was issued. During 2005 the Halls had mounted their first challenge to the validity of the development approval (based on the claimed lapse of the provisional development plan approval), which attack had been unsuccessful: see above at [11]. The summons issued in the present proceedings was the Halls’ second attack on the validity of the same development approval.
On 2 March 2006 a Judge extended to 31 January 2006 the time within which the summons for judicial review could be issued, and granted leave to serve the summons: Hall & Ors v City of Burnside & Ors [2006] SASC 86. The grant of leave to serve the proceedings was subject to the Halls making an application to vary the earlier Full Court order declaring the development approval to be valid. This makes it clear that the potential obstacle that that earlier Full Court decision presented was well and truly identified.
City Apartments appealed against the order extending time. On 12 September 2006 the Full Court allowed the appeal, set aside the order extending the time for the commencement of the proceedings, and substituted an order that the application for an extension of time be dismissed: Hall & Ors v City of Burnside & Ors [2006] SASC 283; (2006) 245 LSJS 440. The majority of the Full Court (Doyle CJ and Duggan J) emphasised the rationale for the six month time limit in r 98.06, and the likely prejudice to City Apartments as a result of the proceedings being instituted when they were instituted. As to the time limit, I said at [47]-[50]:
[47]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.
[48]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.
[49]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.
[50]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.

The English antecedents of this time limit on judicial review is referred to by Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 at [35]-[43].
I was satisfied that the grant of an extension of time would give rise to substantial prejudice to City Apartments. Apart from prejudice attributable to delay and the putting at risk of the money already expended by City Apartments, the issue of the summons raised the risk of City Apartments having to persuade Burnside to extend the period within which the provisional development plan consent would not lapse: at [54]. I summarised my conclusions on the issue of prejudice as follows at [74]:
[74]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.
Duggan J agreed in substance with my reasons. Gray J would have dismissed the appeal.
City Apartments had been enjoined from proceeding with the development since 13 April 2006. On 15 January 2007 that injunction was revoked, and construction of the dwelling proceeded.
On 9 August 2007 the High Court refused special leave to appeal against this decision of the Full Court.
As I mentioned earlier, City Apartments, Burnside and Katnich Dodd applied for an order dismissing the Halls’ summons for judicial review on the ground that it had no reasonable prospect of success, on the ground that it should be dismissed for want of prosecution, and on the further ground that it should be struck out as an abuse of the process of the Court.
The Halls responded with an application to amend the summons. The amendments arose out of two events that had occurred along the way.
On 23 January 2006 Katnich Dodd had granted a variation to the PBRC, apparently in exercise of the power conferred by s 39 of the Development Act. The amendment related to the cutting and filling of the land, and to the retaining wall to be erected at the base of the filled area. Apparently the original PBRC related only to the proposed dwelling, garage and veranda. It did not relate to any part of the embankment or retaining wall that would be required. The attack on the validity of the development approval was based on the fact that the original PBRC did not deal adequately with this matter: see the affidavit of Mrs Hall above. The first variation to the PBRC was apparently an attempt to deal with any such criticism. Burnside then issued a standard “Decision Notification Form” which recorded the “Varied Provisional Building Rules Consent”. The form also stated that “development approval” was “granted” and gave a date of 16 February 2006. That is the day on which the Notification was signed.
On 8 December 2006 another private certifier (Carlo Scinto & Associates Pty Ltd) granted a further variation to the PBRC which, I gather, changed the design of the retaining wall. Burnside again issued a “Decision Notification Form” recording this variation, and on this form again recorded that “development approval” was “granted” giving the date 16 February 2006. This Notification was signed on 18 December 2006.
It may be that the date of the development approval on each “Decision Notification Form” should have been 21 March 2005 (the date of the original development approval). All that had happened was that the PBRC, a requirement for the grant of development approval, had been varied on two occasions. It does not follow that the development approval had been varied, or that a new development approval had come into existence. This point was touched on in argument, but was not the subject of any detailed submissions.
Be that as it may, the Halls applied to amend their summons to claim a declaration that the two variations of the PBRC were invalid. They also wanted to claim a declaration that an embankment constructed on the land was not an approved development, and was not constructed in conformity with the PBRC as varied. I set out below the claim for relief as proposed to be amended, the proposed amendments being underlined:
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.
A Judge of this Court refused to grant leave to amend the summons, and ordered that the application (that is, the summons seeking judicial review) be dismissed: Hall & Anor v City of Burnside & Ors [2007] SASC 460; (2007) 157 LGERA 365.
The Halls’ argument was that their claim for a declaration was not subject to the same six month time limit as was the claim for an order in the nature of certiorari, and that they should be permitted to proceed on that claim. As to that, the Judge said:
[38]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.
…
[42]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.
Footnote omitted
As to the earlier declaration by the Full Court that the development approval was valid, the Judge said:
[43]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 v City of Burnside. 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.
Footnotes omitted
For these reasons, the Judge said that the summons, as it originally stood, should be dismissed.
As to the proposed amendments, the Judge made the point that they challenged variations to the PBRC that had been granted respectively 18 months and nine months before the amendment application was made. The Judge obviously had in mind that an amendment raising new grounds of invalidity was subject to the time limit in r 98.06, a conclusion with which I respectfully agree. The Judge treated as untenable an argument that the variations to the PBRC were so significant as to amount to a new development that called for a fresh application for development approval, beginning afresh the whole planning process: at [53]. As to the proposed claim that the embankment had not been constructed in accordance with the PBRC as varied, the Judge said:
[57]The variations which have been made accommodate engineering advice with respect to the stability of the embankment and the design of the retaining wall when certain potential problems were identified in conferences of engineers and legal advisers of the plaintiffs and City Apartments. Agreement was reached that, with appropriate engineering works, stability and compliance with required building standards could be achieved, notwithstanding that the most desirable method of securing stability by means of benching the embankment may not have been implemented. The variations were designed to give effect to those alternative measures.
[58]There is no evidence to suggest that either the embankment has not been constructed in accordance with the amended consent or that works required by the amended consent to ensure the stability of the embankment have not been carried out. Once again, the plaintiffs have had the opportunity to file affidavits in support of this aspect of their claim, but the evidence is wanting.
[59]Even if there were evidence of non-compliance, that would constitute a breach of s 32 of the Development Act for which remedies are provided in ss 84 and 85 of the Act. Generally speaking, those remedies are more flexible than can be provided by this Court and a question would arise as to whether these proceedings should be stayed pending an appropriate application to the Environment Resources and Development Court. However, it is not necessary to consider that question.
In short, the Judge was of the opinion that the amendments should not be allowed because of the time that had passed since the grant of the varied PBRC in each case, and because as a matter of substance the proposed amendments did not raise a reasonably arguable case. The Judge added that in any event, he would have refused the application to amend because of the overall delay by the Halls in pursuing the application until the hearing before the Judge in October 2007. This was in light of the fact that the Halls were aware the construction work on the site was proceeding, once the Judge had revoked the injunction on 15 January 2007.
It is against this decision that the Halls now appeal.
The summons for judicial review in its unamended form
In my opinion there is no doubt that in its unamended form, the summons for judicial review was liable to be struck out once the application for an extension of time within which to issue the summons had been refused.
As I earlier pointed out, the claim for declarations were included in and were part of the summons for judicial review. The time limit in r 98.06 applied to the summons, and so applied to each claim for relief made in it. To the extent that Mr Swan, counsel for the appellants, submitted that in some way the claim for declarations stood apart from the summons for judicial review, that submission must be rejected.
The order dismissing the application for an extension of time had the consequence that the summons for judicial review could not proceed. It was out of time. Accordingly, it was liable to be struck out.
The claims for a declaration are not to be treated as somehow not subject to the time limit in r 98.06, or as somehow based on separate proceedings that could continue although the claim for an order in the nature of certiorari could not.
Mr Swan rightly made the point that the source of the power to grant a declaration may now be found in s 31 of the Supreme Court Act 1935 (SA). If that section is read as doing no more than removing a possible limit on the power of the Court to grant a declaration, then the power to grant a declaration will be found in the equitable jurisdiction of the Court, the grant of a declaration being an equitable remedy. The power may also be traced to the history of the declaration as a remedy in suits between the Crown and the subject. On these matters I refer to the discussion of the history of the power of the Court to give declaratory judgments in Meagher, Heydon and Leeming, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (4^th ed, Butterworths LexisNexis, Australia, 2002) chapter 19 in particular at [19-010] to [19-070]. I accept that the source of the power to grant a declaration is not to be found in r 98, or in the source of the power to make orders of mandamus, prohibition, certiorari and quo warranto. I also accept Mr Swan’s submission that the remedy of a declaration may be granted, and could properly be granted, in circumstances in which a remedy by an order in the nature of certiorari cannot be granted. There is no doubt that a remedy by way of declaration is a more flexible remedy, and is available in circumstances in which those other remedies are not available. It is true to say that these days there is almost no situation in respect of which a declaration cannot be made, provided that there is a justiciable controversy and provided that the appropriate parties are before the Court.
But r 98 subjects a summons seeking judicial review to the time limit in r 98.06, whatever form the relief claimed in the summons takes.
There is good reason to do so. The rationale for the time limit that is found in r 98.06 applies whatever the form of relief sought may be. I refer to, without repeating, the passage from my reasons in Hall & Ors v City of Burnside & Ors [2006] SASC 283; (2006) 245 LSJS 440 set out above at [32]. It would make no sense to treat a claim for an order in the nature of certiorari as subject to the time limit in r 98.06, but to treat a claim for a declaration made in the same summons as not subject to that time limit. To do so would be to allow form to triumph over substance.
For these reasons it does not assist the submission by Mr Swan to make the point that the power to grant a declaration does not find its source in r 98, or in the historical origins of that rule. When the remedy of a declaration is sought by summons for judicial review, the time limit in r 98.06 applies.
But should the Judge have permitted the Halls to sever the claim for declarations and an injunction from the summons for judicial review, and then have permitted it to proceed?
Rule 98.11(5) provided as follows:
Where judicial review not granted Court may direct that action continue for the other relief claimed
(5)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.
I understand that this rule was referred to in passing before the Judge, and it was likewise referred to in passing before the Full Court. On its face it might have permitted the Judge to order that the proceedings continue as if they had been begun by summons, to the extent that the relief sought comprised declarations and an injunction.
Without apparently basing himself on that rule, that appeared to be the approach of Mr Swan.
Mr Swan argued that the Halls might have attacked the validity of the development application in proceedings that were not proceedings for judicial review. The Halls might have invoked the court’s jurisdiction as a court of equity, and the power conferred by s 31 of the Supreme Court Act, and on that basis might have sought declarations and an injunction. As Gleeson CJ, Gummow, Kirby and Hayne JJ said in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [16]-[19]:
[16] Rule 98 of the Supreme Court Rules 1987 (SA) (the Rules) was considered in Craig v South Australia. Rule 98.01 provides that an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of that rule. Declarations and injunctions may be sought in such a summons and equitable relief of this nature may be granted if the court considers that it would be just and convenient to do so, having regard, among other things, to all the circumstances of the case (r 98.01(3)). The existence of a remedy by way of judicial review does not exclude the jurisdiction of the Supreme Court to grant other relief (r 98.01(4)).
[17] Significant questions of public law, including those respecting ultra vires activities of public officers and authorities, are determined in litigation which does not answer the description of judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth). Examples of other vehicles are the actions for recovery of moneys exacted colore officii or paid by mistake, and those for trespass, detinue and conversion where the plaintiff challenges the validity of the authority relied upon by the defendant as an answer to the allegedly tortious acts.
[18] No such common law action was in issue in this litigation. Nor was the proceeding instituted by Enfield one to which r 98 of the Rules applied. The jurisdiction of the Supreme Court which Enfield invoked was its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto.
[19] The nature of this jurisdiction was explained by Bray CJ in Attorney-General (SA) v Huber. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, Gaudron, Gummow and Kirby JJ referred to the part played by the declaration and the injunction in the shaping of modern administrative law and continued:
"In this field, equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration."
Footnotes omitted
Similarly, Gaudron J said at [57]-[58]:
[57]As already indicated, the prerogative writs are not wholly effective as general public law remedies. Nor, perhaps, are equitable remedies which, in the absence of legislative provision to the contrary, are available only at the suit of a person with a direct or special interest in the subject matter in question. However, equitable remedies have long had a role to play in public law. And, because of the limitations and technicalities which beset the prerogative writs, that role is a continuing and important one.
[58]Equitable remedies are available in the field of public law precisely because of the inadequacies of the prerogative writs. Thus, and contrary to what seems to have been suggested by the Full Court of the Supreme Court of South Australia in this matter, it is not incongruous that equitable relief should be available although prerogative relief is not. What is incongruous is the notion that equitable remedies should be subject to the same or similar limitations which beset the prerogative writs. In the field of public law, equitable remedies are subject to the same considerations, including discretionary considerations, as apply in any other field. There is no need for the importation of other limitations.
Footnotes omitted
As Mr Swan submitted, and I agree, a remedy by way of declaration may be available although relief by way of a summons for judicial review, or by way of an order in the nature of certiorari in particular, is not available. A declaration is a more flexible remedy: Sankey v Whitlam (1978) 142 CLR 1 at 22 Gibbs ACJ.

The High Court has not drawn the distinction, drawn by the House of Lords, between matters of public law and private law, requiring that remedies for infringement of a right protected by public law be sought on an application for judicial review, rather than by invoking the ordinary jurisdiction of the Court. In O’Reilly v Mackman [1983] 2 AC 237 Lord Diplock said at 285:
Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.
The other members of the House of Lords agreed with him. That approach has not been adopted in Australia.
Building on this, Mr Swan submits that the Halls might have made their challenge in an action invoking the ordinary jurisdiction of the Court, and not by way of judicial review, and so not subject to the time limit in r 98.06. That being so, Mr Swan argues that the Judge should have permitted the claim for declarations and an injunction to proceed, if necessary by making an order under r 98.11(5), permitting the claim to be pursued as if it had been begun by an ordinary summons.
Underlying this submission is the assumption that if the Halls had brought their action by ordinary summons claiming declarations and an injunction, their claim could not have been, or would not have been, defeated by an argument based on the passage of time, and the prejudice to City Apartments attributable to the passage of time and events that had occurred after the development approval was granted, and before either the proceedings were instituted or those proceedings were heard.
I referred to a variant of this submission in Hall & Ors v City of Burnside & Ors [2006] SASC 283; (2006) 245 LSJS 440 at [57]-[60]:
[57]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.
[58]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.
[59]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].
[60]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.
If the Halls had issued an ordinary summons claiming declarations and an injunction, it would have been open to City Apartments to apply to have the action struck out, and further or alternatively to argue at trial that relief should not be granted, having regard to the passage of time and the prejudice that City Apartments would suffer if a declaration were granted. While City Apartments could make the point that if the Halls had proceeded by summons for judicial review, the time limit in r 98.06 would have applied, in the proceedings postulated that time limit would not be directly applicable.
The answer to Mr Swan’s submission is that if the Halls had proceeded in the manner suggested, the issue of whether the Court should permit the action to proceed, or should refuse relief after a trial, could still have arisen in much the same form as it arose when the Full Court refused to extend time for the institution of the proceedings. It would not be a matter of City Apartments arguing that the Halls were obliged to proceed by way of summons for judicial review, and that to do otherwise was an abuse of process. The argument would be that having regard to the time that had passed, and having regard to the prejudice to City Apartments, and bearing in mind the policy reflected by r 98.06, either the action should be stayed or, in the alternative, relief should ultimately be refused.
Although the single Judge did not refer to r 98.11(5), it is clear from his reasons that he was, in effect, rejecting a submission that he should permit the claim for declarations and an injunction to proceed. I agree that there were sound reasons for refusing to make an order under r 98.11(5), and in that respect would uphold the Judge’s decision. It is apparent that the Judge also concluded that having regard to the delay that had occurred, and to the prejudice to City Apartments, a claim for declarations and an injunction would have been struck out, and accordingly that that claim should not be permitted to proceed: Hall & Anor v City of Burnside & Ors [2007] SASC 460; (2007) 157 LGERA 365 at [42]. While I have approached the matter in a slightly different fashion, I agree with the Judge’s approach.
In short, the circumstance that the Halls might have proceeded in a manner that did not attract the time limit in r 98.06 does not lead to the conclusion that the Judge erred in not permitting the claims to proceed, either by an order under r 98.11(5) or by some other procedural order.
If the Halls had applied in specific terms to the single Judge, or to this Court, for an order under r 98.11(5) that the claim for declarations and an injunction continue as if begun by summons other than under r 98, that application would inevitably have been refused.
It would have been refused having regard to the passage of time since the matter of complaint had arisen (in January 2006), the delay on the part of the Halls, the attendant prejudice to City Apartments and the desirability of such complaints being made and decided promptly as a matter of fairness to the persons affected and in the public interest. The circumstance that a claim on an ordinary summons for a declaration, if made in January 2006, would not have faced a direct application of the time limit in r 98.06, would not have been an answer.
For those reasons, the summons as it originally stood was liable to be struck out.
It is not necessary to consider whether the continuance of the summons, as originally issued, was an abuse of process. The summons could not proceed, and therefore the possibility of an abuse of process did not arise.
Nor is it necessary to consider the effect of the declaration by the earlier Full Court that the planning approval was valid. As to that, the Judge said at [43]:
[43]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 v City of Burnside (2005) 92 SASR 579; 142 LGERA 287. 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.
Footnote omitted
The application to which the Judge referred has been renewed by a Notice for Specific Directions filed on 28 November 2008. This notice was before the Court. This was the second such application, the earlier application not having been pursued. The Halls’ conduct in this respect illustrates the Judge’s point that they had showed “little or no interest” in advancing the application. If this had been the only obstacle to the Halls succeeding, it would have been appropriate to deal with it. But on the approach that I take, it is not necessary to do more than note that while the earlier declaration of validity stands, the Halls could not obtain the relief that they sought.
The proposed amendments
The proposed amendments are set out above at [43]. They attack the validity of the two variations to the PBRC. The variations were granted on 23 January 2006 and on 8 December 2006 respectively: see above at [40]-[41].
The basis of the attack is not entirely clear. In his outline of submissions, Mr Swan submitted that the variations “founder on the failure of the original consent to be a valid consent”. That is what I understood to be the case for the Halls. In the course of argument I pointed out to Mr Swan that this submission raised no new issue. If the variations were invalid because the original PBRC was invalid, the only issue was the validity of the original PBRC.
Mr Swan then referred to another part of his outline in which he referred to an affidavit by Mr Gibbs, a consulting engineer advising the Halls. The outline stated that Mr Gibbs had made a number of criticisms of the variations, in particular relating to the control of water run-off, lack of control of stability of the embankment on the land, and lack of provision for the management of planting on the embankment. These criticisms were advanced by Mr Gibbs in an affidavit sworn on 21 December 2006.
How these criticisms give rise to an argument for invalidity was not made clear to me. I assume that it would be argued that the variations purport to authorise a departure from the Building Rules referred to in s 36 of the Development Act, the departure being of such a kind or to such an extent as to make the PBRC (as varied) invalid. I will return to this point.
It needs to be remembered that the variations to the PBRC were intended to accommodate criticisms made by the Halls of the cutting, filling and retaining wall on the site. As the Judge said at [57]:
[57]The variations which have been made accommodate engineering advice with respect to the stability of the embankment and the design of the retaining wall when certain potential problems were identified in conferences of engineers and legal advisers of the plaintiffs and City Apartments. Agreement was reached that, with appropriate engineering works, stability and compliance with required building standards could be achieved, notwithstanding that the most desirable method of securing stability by means of benching the embankment may not have been implemented. The variations were designed to give effect to those alternative measures.
Mrs Hall became aware of the first variation on 28 March 2006: Hall & Anor v City of Burnside & Ors [2007] SASC 460; (2007) 157 LGERA 365 at [49]. It is clear that during 2006 there were discussions involving the Halls and their expert advisors about the retaining wall, and about possible further variations to the design of the retaining wall. These discussions involved engineers advising City Apartments. There was an attempt in August 2006 to reach a solution agreed to by the engineers on either side. Ultimately that attempt failed.
An application was made by the Halls on 10 November 2006 to amend the summons. It was not proceeded with.
I refer to these matters to make the point that the design of the retaining wall, and possible variations to the design, were being canvassed between the parties during 2006. I make the further point that from a very early stage of this litigation the treatment of the embankment, and the design of the retaining wall, were treated by the Halls as important issues.
Despite this, the first challenge to the validity of the variations to the PBRC did not come until 21 September 2007, when an affidavit sworn by Mr Hall was filed. The proposed amendments were exhibited to this affidavit.
The amendment the subject of the application of 10 November 2006, to which I referred above, did not attack the validity of the variations to the PBRC.
Before the Judge, Mr Swan accepted that the challenge to the variations was initiated more than six months after the making of the decisions that were challenged. On my calculations the challenge came about 20 months after the first variation, and about nine months after the second variation.
I assume for present purposes that the summons for judicial review was able to be amended, even though the application for an extension of time within which to issue the summons had been refused. This particular point was not canvassed in submissions.
I consider that a proper exercise of the power to amend the summons involved consideration of the obvious point that the amendment was intended to introduce additional claims for judicial review more than “six months from the date when grounds for the review first arose …”. It goes without saying that the application to amend was not made “as promptly as possible”: r 98.06. Ordinarily it would not be appropriate to grant leave to amend if the circumstances would not justify an extension of time within which to institute fresh proceedings raising the subject matter of the amendment.
The Judge refused permission to amend because of the delay. I consider that the Judge was correct.
There has been a substantial delay in making the application to amend. The subject matter of the amendment (the cutting, the filling, the retaining wall, and the PBRC) has been an issue from the outset. The Halls were aware quite early in the piece that the first variation had been granted. They were well aware during 2006 that a further variation was contemplated. There was every reason for the Halls to move promptly. The fact that their application for an extension of time within which to issue the summons for judicial review was being contested, and ultimately failed in September 2006, put them on notice of the dangers of delay.
Once the injunction restraining building work was discharged on 15 January 2007, the construction of the dwelling continued. It was understandable that City Apartments would want to proceed with the work. There had already been a lengthy delay. In a letter of 14 December 2006 Burnside had extended the time for substantial commencement of the work to 28 August 2007, but had stated in its letter:
The applicant should be aware that no further extension of time is likely to be granted.
In brief, a substantial period of time elapsed between the grant of the variations and the first challenge to their validity. There was every reason for the Halls to be aware of the importance of mounting their challenge in a timely way. The subject matter of the amendments was something of which the Halls were well aware during the whole of 2006. From early 2007, with good reason, City Apartments had been proceeding with the work.
In those circumstances it was open to the Judge to decide that the proposed amendments should not be allowed. I agree with the Judge’s decision. The combination of delay and prejudice to City Apartments was a sufficient reason for refusing permission to amend.
Three other matters supporting the Judge’s decision warrant mention. The first is that no application was made to join as a defendant the firm that granted the second variation. As the decision maker, it should have been joined. The second matter is the point already alluded to, that the manner in which the criticisms of the retaining wall in particular gave rise to an argument for invalidity remains unclear. There can be differences of opinion as to the application of the Building Rules to a proposed development. It is apparent from the affidavits before the Court that there is a difference of opinion between the engineers advising the Halls and those advising City Apartments. I do not assume that there is no argument for invalidity available to the Halls. The point I make is that the basis of the attack on the validity of the PBRC (as varied) is not clearly articulated, as one might have expected it to be. And, as I have already noted, even in argument before the Court the basis appeared to change. These are subsidiary matters, but provide some support for the Judge’s decision. The third is that the first variation to the PBRC was granted on 23 January 2006. The validity of the PBRC granted on 4 March 2005 was the central issue in these proceedings. Mrs Hall was aware of the variation to the PBRC granted on 23 January 2006 from 28 March 2006. When these proceedings were before the Full Court in July 2006 the Halls did not apply to amend their grounds to include an attack on the first variation. That attack is closely linked to the attack on the original PBRC. The failure to raise the first variation is a circumstance that supports the Judge’s decision, having regard to the risk of prejudice to City Apartments attributable to the Halls’ delay in applying to amend the summons for judicial review.
The amendment to add para 6 to the claim for relief raises a further issue, that is, whether the embankment on the land conforms with the PBRC. As to that aspect, the Judge said:
[58]There is no evidence to suggest that either the embankment has not been constructed in accordance with the amended consent or that works required by the amended consent to ensure the stability of the embankment have not been carried out. Once again, the plaintiffs have had the opportunity to file affidavits in support of this aspect of their claim, but the evidence is wanting.
[59]Even if there were evidence of non-compliance, that would constitute a breach of s 32 of the Development Act for which remedies are provided in ss 84 and 85 of the Act. Generally speaking, those remedies are more flexible than can be provided by this Court and a question would arise as to whether these proceedings should be stayed pending an appropriate application to the Environment Resources and Development Court. However, it is not necessary to consider that question.

The Judge was entitled to refuse to allow this amendment on that basis. No error on his part has been shown. In particular, an action for a declaration in the Supreme Court is an unsuitable means of deciding such an issue, particularly as the Development Act provides appropriate remedies for a failure to comply with the development application, as the Judge pointed out.
In short, the combination of these circumstances, including the limited prospect of success (on the information presently before the Court) of the claims to be made by amendment all lead to the conclusion that the application to amend should have been refused, as the Judge did.
Conclusion
For the reasons that I have given, the Judge did not err in refusing permission to amend the summons for judicial review, and in striking out the summons for judicial review.
WHITE J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice.
KOURAKIS J: I agree that the appeal should be dismissed. I agree with the reasons of the Chief Justice.