Jon Garling v Northern Beaches Council

[2022] NSWLEC 102

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jon Garling v Northern Beaches Council [2022] NSWLEC 102

Hearing dates:

04 and 05 August 2022

Date of orders:

05 August 2022

Decision date:

05 August 2022

Jurisdiction:

Class 1

Before:

Pepper J

Decision:

Notice of motion for joinder dismissed.

Catchwords:

CIVIL PROCEDURE: urgent application for joinder in Class 1 appeal – applicable legal principles – whether issues sought to be raised by intervenor would be sufficiently addressed absent a contradiction – delay in bringing application for joinder – whether Commissioner should have regard to previous Class 4 consent orders and their alleged non-compliance in the Class 1 appeal – issues raised by intervenor would be either raised by the parties in their contentions or able to be dealt with by the intervenor by way of submissions – joinder refused.

Legislation Cited:

Access to Neighbouring Land Act2000

Civil Procedure Act2005, s 56

Environmental Planning and Assessment Act 1979, s 8.15(2)

Land and Environment Court Act 1979, ss 34AA, 38(2), 39(4) and 39A

Cases Cited:

Avalon Beach Property Pty Limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 GLERA 393; [2017] NSWLEC 130

Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63

Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205

Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5

Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2002] NSWLEC 195

Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802

Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243

The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205

The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94

Category:

Procedural rulings

Parties:

Joanne Jefferies (Applicant for Joinder)
Jon Garling (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant for Joinder)
J Reid (Applicant)

Solicitors:
SWS Lawyers (Applicant for Joinder)
Sattler & Associates Pty Ltd (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

2022/80407

Publication restriction:

Nil

EX TEMPORE Judgment

Joanne Jefferies Seeks to be Joined as a Party to a Class 1 Appeal

1. By notice of motion filed on 22 July 2022, Joanne Jefferies (“Jefferies”) seeks to be joined to a Class 1 appeal brought by Jon Garling (“Garling”) against the part refusal by the Northern Beaches Council (“the Council”) of a third modification application by Garling (“Mod 3”) in respect of a development consent granted in 2016 by the Council (‘the development”).

2. The joinder application is brought pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (“EPAA”), which provides as follows:

8.15   Miscellaneous provisions relating to appeals under this Division

…

(2)   On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a)   that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b)   that—

(i)   it is in the interests of justice, or

(ii)   it is in the public interest,

that the person be joined as a party to the appeal.

History of the Dispute Between the Neighbours

3. As was apparent from the agreed facts not in dispute and the affidavit of Jefferies, affirmed 17 July 2022, in support of her application for joinder, there is an extensive history of disputation between Garling and Jefferies which has regrettably occupied the time of this Court, the Supreme Court and the Local Court.

4. The subject property is Lot 3 of Section 10 in DP 11899, known as 24 Lancaster Crescent, Collaroy (“the property”).

5. The registered proprietor of the property is Sarah Genev. Her partner is Garling.

6. Joanne Jefferies and Richard Dinham are adjoining landowners (Lot 4 in DP 11899, known as 22 Lancaster Crescent, Collaroy (“Jefferies property”).

7. The properties share a common boundary (see below):

8. On 19 August 2015 the Council granted consent for DA 2015/0545 for the construction of a new home on the Jefferies property.

9. On 23 December 2016 development consent was granted for the demolition of an existing dwelling and construction of a new dwelling on the property (“2016 consent”).

10. Genev commenced proceedings in the Local Court against the Jefferies pursuant to the Access to Neighbouring Land Act2000.

11. In 2017 Jefferies commenced Class 4 proceedings in this Court concerning alleged breaches of the EPAA in the carrying out of the development on the property. The Jefferies also commenced proceedings in the Supreme Court concerning certain other common law matters, in particular trespass by Garling in the construction of the development at the property.

12. The Local Court and Supreme Court proceedings were transferred to this Court for hearing.

13. All proceedings were then mediated in the Court. On 12 October 2017 the mediation resulted in a resolution of all proceedings and an extensive set of consent orders was agreed to between the parties (“Class 4 consent orders”).

14. Since the Class 4 consent orders, there have been three subsequent s 4.55 modifications to the original 2016 consent for the property, namely: Mod 2017/0057(“Mod 1”); Mod 2019/0253 (“Mod 2”) and Mod 3.

15. Mod 1 was approved on 1 June 2017, and only made a minor amendment to the approved dwelling (a lightwell to bedroom 3). It is not otherwise relevant to these proceedings.

16. In 2019, Mod 2 was lodged to, among other things:

1. construct a new privacy screen on top of the existing masonry wall between the Jefferies property and the property (“boundary wall”). This masonry wall also serves as part of the pool fence around the pool in the property;

2. an amended landscaping plan; and

3. modify the ground floor level (the pool level) to RL 59.850.

17. The owners of the Jefferies property made a number of objections to Mod 2, based on alleged breaches of the Class 4 consent orders.

18. On 24 July 2020 the Council’s Development Determination Panel determined Mod 2 by conditional consent and inserted five new conditions:

(a)   condition 15A (pool privacy screen – located on boundary wall);

(b)   condition 15B (frosting to windows);

(c)   condition 15C (amended landscape plan);

(d)   condition 15D (deletion of part masonry walls); and

(e)   condition 41 (CCTV security cameras)

19. Then on 5 May 2021, Mod 3 was lodged on behalf of Genev and Garling. The Statement of Environmental Effects (“SEE”), prepared by Boston Blyth Fleming and dated 28 April 2021, submitted in support of Mod 3 set out the modifications sought. These included a further increase to the height of the privacy screen on top of the boundary wall and approval of vegetation as per the “as built” landscape plans. Mod 3 also sought removal of conditions 15B (frosting) and 41 (security cameras).

20. Jefferies made further objections to the proposed works under Mod 3 to the Council.

21. On 16 December 2021 the Council issued a Notice of Determination for Mod 3. The determination made amendments to conditions 15A, 15B and 41 of the 2016 consent. A new condition 15A was inserted into the consent.

22. On 21 March 2022 Garling filed Class 1 proceedings in the Court against the determination of the Council “for changes to privacy screens, fence and removal of 2 frosted windows”. The matter was listed for a s 34AA conciliation conference and hearing on 8 and 9 August 2022.

23. On 17 May 2022 Garling filed a Statement of Facts and Contentions. He raised three contentions concerning Council’s decision to impose condition 15A (which relates to a privacy screen), 15B (which relates to window frosting) and 41 (which relates to security cameras).

24. On 29 June 2022 the Council filed a Statement of Facts and Contentions in Reply. The Council contended that the Court should dismiss the appeal on the basis of issues concerning a loss of privacy and a loss of views.

25. On 1 July 2022 Garling filed a Notice of Motion seeking leave to amend his Statement of Facts and Contentions, which was granted.

26. Accordingly, on 11 July 2022 Garling filed an amended Statement of Facts and Contentions. A further contention was raised concerning the Council’s refusal to introduce into the development consent architectural plans and landscape plans.

27. On 22 July 2022 the Council filed an amended Statement of Facts and Contentions in Reply addressing the new contention (“the Council’s SOFAC”).

28. That same day, Jefferies filed her notice of motion for joinder.

29. It does not appear to be a matter of contention that the Council’s SOFAC do not refer to the Class 4 consent orders or any breach thereof as alleged by Jefferies.

30. The alleged contraventions of the Class 4 consent orders were detailed in the Jefferies affidavit, to which I have had regard for the purpose of this application.

31. At no point has Jefferies brought civil enforcement proceedings in respect of the alleged breaches, which are said to have commenced in 2017. Rather it was explicitly submitted that joinder in the Class 1 appeal was the most appropriate vehicle to agitate these asserted breaches of the law.

32. The gravamen of Jefferies’s application for joinder, therefore, is that there is no contradictor that will raise the matter of the alleged contraventions of the Class 4 consent orders before the Commissioner.

33. In an attempt to avoid the joinder application, on 26 July 2022 Garling provided an undertaking (see the affidavit of Garling’s solicitor, Tony Sattler affirmed 29 July 2022) through his solicitor that he would not undertake any works on the property arising from any consent granted to the Mod 3 “that will conflict with or breach heights” as set out in the existing Class 4 consent orders until such time as those orders are amended to allow such works “(eg privacy screen)”. That undertaking was repeated in Court on 4 August 2022.

Hearing of the Joinder Application

34. From at least 12 April 2022, Jefferies has been aware of the date of the s 34AA conciliation conference and hearing. She sought legal advice about the Class 1 appeal on 25 May 2022. It was not, however, until 22 July 2022, that the application for joinder was made by her.

35. At the first return date of the motion for joinder before the Court on 29 July 2022, the Registrar referred the matter for hearing instanter before the Duty Judge. This came as a surprise to the parties who were neither expecting nor prepared to have the matter heard on that day (they understood that it would be specially fixed for hearing before a judge). Consequently, the matter was set down for hearing by the Duty Judge at 4.30 pm on 4 August 2022, the first mutually convenient date and time of the parties and the Court. It was set down at that time because the parties assured the Court that the matter would take approximately 90 minutes to hear.

36. This was not the case and the matter took nearly three hours to hear, with the matter adjourned to today for the delivery of ex tempore reasons after the Court had concluded hearing a Class 5 matter.

37. Due to the urgency of the application, these reasons have been prepared without the benefit of a transcript and in a truncated time period. The urgency has been almost entirely the result of the late application for joinder by Jefferies.

38. Almost all of the hearing time was occupied by counsel for Jefferies, Peter Tomasetti SC. In the event, due to the lateness of the hour, a time limit was imposed upon him.

39. From the outset, Tomasetti SC was told that given the truncated hearing time and the urgency of the matter that he had to specifically take the Court to the evidence he would be relying upon (that is, time did not permit the wholesale tender of documents to be read later at the Court’s leisure). The Court explicitly told Tomasetti SC that the Court would not receive documents into evidence absent any explanation as to their relevance. Accordingly, Tomasetti SC tendered the following documents:

1. the Council’s SOFAC;

2. the agreed statement of facts filed on 29 July 2022;

3. the Class 4 consent orders;

4. the SEE;

5. photographs of the brushwood fence between the Garling and Jefferies’s properties referred to in the Jefferies’s affidavit; and

6. a Draft Second Respondent Statement of Facts and Contentions (“the draft Jefferies SOFAC”).

40. The Court was not taken to the 2016 consent, the Mod 3 application, the determination by the Council of the Mod 3 application, the Class 1 application, or any of Garling’s Statements of Facts and Contentions.

Applicable Legal Principles

41. The applicable legal principles were helpfully summarised in the written submissions prepared by Jacinta Reid, counsel for Garling. Despite being pressed to do so on several occasions, Tomasetti SC declined to indicate to the Court whether he disagreed with the summary. Instead, he referred the Court to comments made by Preston J In Avalon Beach Property Pty Limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council (2017) 227 LGERA 393; [2017] NSWLEC 130. It was the only authority that he took the Court to.

42. In my view, Reid has correctly set out the relevant legal principles to be applied in determining an application for joinder under s 8.15(2) of the EPAA. They are as follows.

Legal Principles

43. Section 38(2) of the Land and Environment Court Act 1979 (“the LEC Act”) provides:

38   Procedure

…

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

44. The applicable principles in relation to joinder applications in Class 1 proceedings have been stated in a number of decisions of this Court, albeit primarily in the context of applications under s 39A of the LEC Act which is in the same terms as s 8.15(2) of the EPAA.

45. However, as was stated by Jagot J in Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (at [5]):

5 Under s 39A of the Land and Environment Court Act, the Court may only exercise the power to join a person as a party to these proceedings if it forms an opinion either that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party or that it is in the interests of justice or the public interest that the person be joined as a party to the appeal. While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.

46. The Court's approach to joinder applications of this kind was summarised in Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 5 by Craig J at [16]:

16 The caution that should be exercised before joinder in circumstances such as the present is, if I may respectfully say so, appropriately identified in the judgment of the Chief Judge of this Court in Morrisson Design Partnership Pty Ltd v North Sydney Council and the Director-General of the Department of Planning [2007)] NSWLEC 802; (2008) 159 LGERA 361. In particular, I refer to the observations made by his Honour as to the distinction that the legislature has drawn between development appeals involving objectors to designated development and those appeals in respect of development that are not so classified. Neither the power of joinder provided by s 39A nor the utilitarian application of "Double Bay Marina" participation should be seen as the provision of a plenary power to allow, in each and every circumstance, objectors to development to be joined or participate in a development appeal, with separate representation. As has been made clear by the Council's solicitor, those who objected to the development here proposed, including a representative of the Friends, will be invited by the Council to appear as a witness in the Council's case in support of their opposition to the development proposed by the Company.

47. Those observations are supported by a plethora of authorities of this Court and the principles applicable to applications for joinder are well established and may be summarised below:

1. an application under s 39A of the LEC Act is a two stage process to determine firstly, whether s 39A is met and secondly whether the exercise of discretion justifies an order (Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]);

2. s 8.15(2) is facultative in the sense of enabling the Court to join a person to proceedings under the EPAA of the types listed in that section who would not otherwise have a right to be a party to such proceedings (Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [42]);

3. caution should be exercised before an order for joinder is made (Morrison at [41] – [54]):

1. the power under s 8.15(2) of the EPAA is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to an appeal;

2. community consultation and public participation under the EPAA are not intended to give the community or affected persons who object to development any entitlement to veto development; and

3. mere dissatisfaction with the merit outcome of a determination of a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission;

4. a multiplicity of parties is undesirable (Bongiorno Hawkins Frassetto at [9] and The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]);

5. so too is a multiplicity of experts;

6. both the multiplicity of parties and experts undermines the efficient conduct of litigation and practice of the Court (Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63 at [15]);

7. the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think sufficiently important does not automatically warrant an order for joinder under s 8.15(2) of the EPAA (Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36] and The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]);

8. the Court retains a discretion as to whether or not an order for joinder should be made and would take into account matters such as:

1. the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings (Bongiorno Hawkins Frassetto at [6]); and

2. the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the “just, quick and cheap” resolution of the proceedings: see s 56 of the Civil Procedure Act2005 (“the CPA”) (Azzure-Blacktown at [16] and Sabian at [14]).

48. In Avalon Beach Property the Chief Judge also opined that (at [7]-[8] and [18]-[19]):

7   As I said, this characterisation issue has not been raised by the council. The neighbour submits that it is an issue that should be considered in relation to the appeal. The neighbour submits that unless he is joined to the appeal, the issue would neither be raised by the existing parties nor considered by the Court. The applicant for development consent submits that it would not be necessary for the Court to join the neighbour in order for the Court to consider that issue.

8   The applicant submits that the neighbour’s contention that the development is prohibited is contained in various submissions that the neighbour has made to the council. In the usual course, the council would prepare a bundle of documents which would be tendered at the hearing of the appeal. That bundle of documents would include all submissions, including submissions made by the neighbour. The applicant submits, therefore, that the Court would have available the neighbour’s submissions that the development is prohibited. Under those circumstances, the Court could take into account the issue raised by the neighbour that the development is prohibited. It is not necessary, the applicant submits, to join the neighbour in order for the Court to be able to consider that issue.

…

18   I consider that it is necessary to have the neighbour joined in order to raise these planning issues. As I said, in relation to the characterisation issue, unless the neighbour is joined, there will not be a sufficient contradictor to the contentions put by the applicant and the council. As I have noted, the council has not raised, in its amended statement of facts and contentions, any of these three non-compliances with Pittwater Local Environment Plan or Pittwater 21 Development Control Plan.

19   True, the Court could ask the planners called by the applicant for development consent and the council for their view as to whether there has been or whether there will be any non-compliances in those respects and, if so, whether those non-compliances are acceptable. However, this would require the planners on the run to determine, first, the question of fact of whether there are non-compliances and, secondly, whether those non-compliances are satisfactory or not. It also would not provide an adequate opportunity to address the question of whether there should be a written request under cl 4.6 of the Pittwater Local Environmental Plan to justify any non-compliance with the height control in Pittwater Local Environment Plan. It is preferable that these issues be raised well in advance of the hearing and the parties have an adequate opportunity to address the alleged non-compliances.

Jefferies Ought Not be Joined as a Party

49. As alluded to above, the real tension identified by Jefferies is whether the Class 4 consent orders, and their alleged breach as detailed at length by Jefferies in her affidavit, will be sufficiently considered by the Commissioner in the assessment of Mod 3.

50. On any view, the Commissioner must have regard to the consent orders pursuant to s 39(4) of the LEC Act, which states that:

39   Powers of Court on appeals

…

(4)   In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

51. The Class 4 consent orders fall within the ambit of s 39(4) of the LEC Act.

52. Both when the matter came before the Court on 29 July and on 4 August 2022, it was reiterated by Garling that the Class 4 consent orders would be put before the Commissioner and a submission would be made by both him and the Council that the Commissioner had to consider them for the purpose of determining the appeal.

53. Jefferies has, in any event, brought the Class 4 consent orders and their alleged breach to the attention of the Council, both orally and in writing, on multiple occasions both before, during and after the determination by the Council of the Mod 3 application. She will, as an intervenor to the Class 1 appeal, be permitted to make submissions to the Commissioner on this issue during the conciliation conference and hearing. There is no reason to understand that these submissions and the Class 4 consent orders will not, to the extent that they are relevant, be taken into account by the Commissioner.

54. This is so notwithstanding some remarks made by the Council, at unspecified dates deposed to by Jefferies in her affidavit, to the effect that the Council did not consider the Class 4 consent orders to be relevant to the determination of the Mod 3 application or the Class 1 appeal (see, for example, paragraph 49 of the Jefferies affidavit).

55. These remarks seem to contradict the result of the Mod 3 determination. Following submissions made by Jefferies to the Council, the Council refused an increase in height to the privacy screen on the boundary wall between the two properties above the height approved by the Council pursuant to Mod 2, refused the approval of the “as built” brushwood fence and refused the approval of the “as built” landscaping plan (see paragraph 31 of the Jefferies affidavit).

56. It is these refused items that principally form the basis of the Class 1 appeal.

57. It is accepted by Jefferies in her written submissions that the Class 4 consent orders do not bind the Council in its assessment and determination of a modification application. The submission is correct. The same reasoning applies to the Commissioner in the Class 1 appeal.

58. Nevertheless, Jefferies submitted that because the Class 4 consent orders bind, as they must, the parties, the Court had to consider the effect of these orders and their breach when assessing Mod 3, and in the absence of a proper contradictor making any such submission, this would not occur.

59. At the risk of repetition, notwithstanding the absence of any reference to the Class 4 consent orders in the Council’s SOFAC, the Commissioner must have regard to those orders under the LEC Act and I am satisfied that Garling and the Council will do as they say and expressly raise the Class 4 consent orders before the Court.

60. Moreover, Jefferies will have the opportunity to make submissions on the consent orders and their effect as an intervenor in the Class 1 appeal.

61. To the extent that it was suggested by Tomasetti SC that there was an issue concerning the extent to which Garling was using the modification power in the EPAA to circumvent the effect of the Class 4 consent orders and that therefore he ought to be prevented from lodging such applications, this is not a matter that can be dealt with, as a matter of jurisdiction, by a Commissioner in any Class 1 appeal.

62. That question and the issue of whether the Class 1 appeal can be used as a vehicle to amend the Class 4 consent orders to remedy any breach of those orders (arguably it cannot) are, in my view, the exclusive domain of Class 4 proceedings and not a Class 1 application.

63. In any event, Garling has given an undertaking that no such works will be carried out pursuant to Mod 3 until the Class 4 consent orders are amended.

64. By reference to the SEE, the draft Jefferies SOFAC and the other tendered documents (referred to above), Tomasetti SC further submitted that absent joinder of Jefferies there would be no contradictor on the following matters of contention, namely:

1. impacts upon view;

2. the brushwood fence;

3. impacts upon privacy;

4. the installation of CCTV security cameras;

5. the impact of the proposed landscaping;

6. the frosting of the windows; and

7. the Court’s power to have regard to the Class 4 consent orders and their alleged breach.

65. However, even the most cursory survey of the Council’s SOFAC revealed that this was not correct. Thus:

1. the impact on the view is raised in contention 2;

2. the brushwood fence is dealt with in contention 2;

3. the impact on privacy is referred to in contention 2;

4. the CCTV security camera installation is dealt with in contention 4 and was not, in any event, part of the Class 4 consent orders; and

5. the frosting on the windows is raised in contention 3.

66. While the Court’s power to have regard to the Class 4 consent orders and their alleged breach is not dealt with in the Council’s SOFAC, for the reasons explained above, this will not provide a sufficient basis for the Court to exercise its power to permit the joinder.

67. In addition, to the extent that Jefferies is concerned about Mod 3 effecting further breach of the Class 4 consent orders, she is protected by the undertaking given by Garling not to carry out such works until the consent orders have been amended.

68. Having regard to the legal principles above, including the remarks made by Preston J in Avalon Beach Property, I am of the opinion that joinder is not appropriate pursuant to s 8.15(2) of the EPAA, because the requirements of the provision are not satisfied in the circumstances of this case. The reasons for this are:

1. first, the issues sought to be raised by Jefferies can be sufficiently addressed without joinder. Submissions as to the existence and alleged breach of the Class 4 consent orders may be and have already been made by Jefferies. To the extent that other merit issues are raised, these are addressed in the Council’s SOFAC;

2. second, the interests of justice do not require joinder in the circumstances of the case. Jefferies has been and will be given ample opportunity, as her affidavit makes tolerably clear, to be heard throughout the process of the determination of Mod 3 and the Class 1 appeal process;

3. third, nor does the public interest require joinder. It is not the case, as Tomasetti SC submitted, that joinder must follow in every circumstance where there is no contradictor on every issue raised by an intervenor. Contrary to the assertion by Tomasetti SC, this is not what the Chief Judge held in Avalon Beach Property. Were it otherwise this would subvert the test in s 8.15(2) of the EPAA. In any event, the issues that Jefferies seeks to agitate are clear and will be taken into account by the parties to the Class 1 appeal and by the Commissioner. Furthermore, as Garling noted, if an agreement is entered into by the parties the Commissioner is required to be satisfied that any jurisdictional precondition to the grant of consent is met; and

4. fourth, to allow joinder at this late stage would neither, in my view, facilitate the overriding purpose contained in s 56 of the CPA of the just, quick and cheap resolution of the real issue in the proceedings nor be in conformity with the purpose of s 34AA of the LEC Act.

69. Moreover, as a matter of discretion joinder ought not be permitted. This is because, and without repeating the matters above to the extent that they are relevant:

1. the issues raised by Jefferies can be sufficiently addressed absent joinder; and

2. joinder will necessarily result in an multiplicity of parties with a concomitant increase in costs and complexity in what is a relatively simple appeal. Tomasetti SC indicated that in addition to the making of submissions, Jefferies may seek to cross-examine various witnesses, including expert witnesses. There is therefore a real risk that the hearing will not conclude in the time allocated to it.

Conclusion and Orders

70. For all these reasons I am not satisfied that Jefferies has satisfactorily demonstrated a basis for joinder pursuant to s 8.15(2) of the EPAA.

71. The orders of the Court are therefore that:

1. the notice of motion filed on 22 July 2022 is dismissed; and

2. the exhibits are to be returned.

**********

Decision last updated: 09 August 2022