Joseph v Spencer (No 2)

Case •

[2025] NSWCA 138

•

20 June 2025

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Joseph v Spencer (No 2) [2025] NSWCA 138
Hearing dates: 4 June 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Before: Price AJA
Decision:

(1)   I grant leave to the applicant to amend the summons filed on 7 November 2024 as follows:

(a)   under the heading “Declaratory Orders” of the amended summons being annexure “A” to the applicant’s affidavit affirmed 16 May 2025 (“the amended summons”), in the terms “the grant of consent invalid”;

(b)   in the terms of orders 1, 2, 3, 5, 8, 9 and 10 of the amended summons;

(c)   in the terms of paragraphs 1, 2 and 3 under the heading “Details of Decision” in the amended summons, with the exception of particular (g) of Ground 1 which is struck out;

(d)   in the terms of Grounds 1, 2, 3, 4, 9, 11, 14, 15 and 16 of the amended summons;

(e)   in the terms of Ground 10. In that ground, I strike out the whole of particulars 6(a) and 6(b) and only the word “perversely” in particular 6(f) and leave is refused for those particulars in the amended summons; and

(f)   in the terms of the first Ground 13 in the amended summons, in that ground, I strike out particulars (i)-(v) and particular 16(m) and leave is refused for those particulars in the amended summons.

(2)   I refuse leave to amend the summons filed on 7 November 2024 as follows:

(a)   under the heading “Declaratory Orders” in the amended summons, all sentences except for “the grant of consent invalid” are struck out;

(b)   in the terms of orders 4, 6, 7 and 11 in the amended summons which are struck out;

(c)   in the terms of paragraphs 4, 5 and 6 under the heading “Details of Decision” in the amended summons which are struck out;

(d)   in the terms of Grounds 5, 7, 12, 17 and the second Ground 13 in the amended summons which are struck out; and

(e)   in the terms of paragraph 23 under the heading of “costs” on page 29 in the amended summons which is struck out.

(3)   Direct the applicant to file an amended summons strictly reflecting orders (1) and (2) within 7 days. The amended summons should be renumbered according to and consistent with these orders.

(4)   The applicant is to pay the first and second respondents’ and the third respondent’s costs of the strike out motions settled on 10 March 2025.

(5)   The applicant is to pay the first and second respondents’ and the third respondent’s costs of the motion heard on 4 June 2025.

Catchwords:

CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations – dictates of justice – whether applicant’s changes in position caused significant injustice – whether procedural unfairness

CIVIL PROCEDURE – costs – whether applicant should pay costs of settled strike out motions – whether offers of compromise were relevant to costs application – whether applicant’s conduct unreasonable – whether applicant should pay costs on the motion to re-plead

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64

Environmental Planning and Assessment Act 1979 (NSW), s 4.16(1)

Land and Environment Court Act 1979 (NSW), ss 34(3), 34AA

Supreme Court Act 1970 (NSW), s 46(4)

Kiama Local Environmental Plan 2011 (NSW), cl 6.7(2)

Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 15.3, 15.4, 42.7(2), 51.58, 59.4, 59.7

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Banque Commerciale SA (enliq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd (1991) 32 FCR 379

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619

Cropper v Smith (1884) 26 Ch D 700

Davis v Commonwealth [1986] HCA 66; (1986) 61 ALJR 32

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432

Fordham v Fordyce [2007] NSWCA 129; (2007) 154 LGERA 49

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358

Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10

Johnson v Gore Wood & Co [2002] 2 AC 1

Joseph v Spencer [2025] NSWCA 80

Ketteman v Hansel Properties Ltd [1987] 1 AC 189

Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336

Kmart Australia Limited v Marmara (No 2) [2025] NSWCA 48

Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

May v Northern Beaches Council (No 2) [2023] NSWLEC 7

McGuirk v University of New South Wales [2009] NSWSC 1424

Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing [2003] NSWSC 642; (2003) 178 FLR 400

Odtojan v Glynn t/as Glynns Lawyers [2023] NSWCA 276

Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Poulos v Australia and New Zealand Banking Group Ltd [2023] NSWCA 262

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424

Resolution Life Australasia Ltd v AMP Ltd; Munich Reinsurance Co of Australasia Ltd v AMP Ltd [2025] NSWCA 21

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42

Shaw v State of New South Wales [2012] NSWCA 102

Spencer v Kiama Municipal Council [2024] NSWLEC 80

Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526

Stanley v Layne Christensen Company [2006] WASCA 56

Stokes v Toyne [2023] NSWCA 59

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35

The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2) [2007] NSWSC 797

Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Texts Cited:

G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis)

Category:Procedural rulings
Parties: Michael John Joseph (Applicant) (self-represented)
Ricardo Spencer (First Respondent)
Jennifer Spencer (Second Respondent)
Kiama Municipal Council (Third Respondent)
Land and Environment Court (Fourth Respondent) (submitting appearance)
Representation:

Counsel:
R O’Gorman-Hughes (First and Second Respondents)
JP Farrell (Third Respondent)

Solicitors:
HWL Ebsworth Lawyers (First and Second Respondents)
McCullough Robertson Lawyers (Third Respondent)
Crown Solicitor (NSW) (Fourth Respondent)
File Number(s): 2024/413777
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Land and Environment Court
Jurisdiction:
Class 1
Citation:

Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526

Date of Decision:
30 August 2024
Before:
Dickson C
File Number(s):
2024/176325

JUDGMENT

  1. PRICE AJA: These reasons assume familiarity with Kirk JA’s judgment which conveniently and comprehensively sets out the historical background of the proceedings between the parties in the Land and Environment Court of New South Wales (“LEC”) and that which is currently before this Court: Joseph v Spencer [2025] NSWCA 80 (“Joseph No 1”).

  2. By notice of motion filed on 16 May 2025, the applicant, Mr Joseph, seeks leave to amend his summons filed on 7 November 2024 in the form of the proposed amended summons being annexure “A” to his affidavit affirmed 16 May 2025 (“the amended summons”). The principal focus of the amended summons seeking judicial review and declaratory relief is the decision of Commissioner Dickson (“the Commissioner”) in the Class 1 jurisdiction of the LEC on 30 August 2024, whereby the Commissioner upheld an appeal against the refusal of a development application by the third respondent, Kiama Municipal Council (“the Council”), relating to a residential property which has sea views in Kiama Downs (“the property”). The LEC, the fourth respondent, has filed a submitting appearance.

  3. The Commissioner’s approval for the development application followed a conciliation conference between Mr Ricardo Spencer and Mrs Jennifer Spencer (“the first and second respondents”), the owners of the property and the Council whereby an agreement under s 34(3) of the Land and Environment Court Act 1979 (NSW) (“LEC Act”), was reached. The owners of the property and the Council agreed for the grant of the development consent to the development application; as amended, subject to conditions of consent pursuant to s 4.16(1) of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”). The conciliation agreement was filed in the LEC together with a Jurisdictional Note (“JN”). The agreement between the parties included a reduction in the size of the proposed balcony.

  4. The Commissioner was satisfied that the decision upholding the appeal and granting development consent was “one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act)”: Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526 at [4].

  5. The applicant in these proceedings is the owner of a house which adjoins the property owned by the first and second respondents. He has opposed from the outset the approval of their development application. The applicant a retired senior counsel appeared self-represented, Mr O’Gorman-Hughes of counsel appeared for the first and second respondents, and Mr Farrell of counsel for the Council.

  6. In his amended summons, the applicant also seeks declaratory orders in respect of the “conduct” of the respondents during the appeal and during the conciliation conference. Under the heading “Details of Decision”, the applicant seeks at paragraph 3 that the consent agreement be set aside. He pleads at paragraph 4 that the JN “prepared by the parties and for the decision maker and the Commissioners reliance on it was improper and legally unreasonable”. The applicant relies on four affidavits respectively dated:

  1. 5 November 2024;

  2. 26 November 2024;

  3. 4 and 6 March 2025; and

  4. 1 April 2025.

  1. The first and second respondents contend that the applicant’s motion should be dismissed. On the other hand, the Council submits that leave to amend should be granted subject to certain paragraphs in the applicant’s summons collectively characterised as the “Misconduct Claims” being struck out. These paragraphs in the summons were identified as:

  1. Orders 4, 6, 7, and 11 [1] ;

  2. Details of Decision paragraphs 4 and 5 [2] ; and

  3. Grounds 5 [3] , 7 [4] , 8 [5] , 10(6)(a) [6] , 10(6)(b) [7] , 12 [8] , 13(r)(vi) [9] , 14 [10] and 17 [11] .

    1. Applicant’s amended summons, p 3.

    2. Applicant’s amended summons, p 4.

    3. Applicant’s amended summons, pp 10-11.

    4. Applicant’s amended summons, pp 12-14.

    5. Applicant’s amended summons, pp 14-15.

    6. Applicant’s amended summons, p 16.

    7. Applicant’s amended summons, p 16.

    8. Applicant’s amended summons, pp 18-19.

    9. Applicant’s amended summons, p 24.

    10. Applicant’s amended summons, pp 25-26.

    11. Applicant’s amended summons, p 28.

  1. The Council proposes the following orders:

“(a) [The applicant] is given leave to rely upon the May Amendment (as properly tracked). [The applicant] is not given leave to rely upon the Misconduct Claims;

(b) [The applicant] is to file an amended summons strictly reflecting order (a) within 7 days;

(c) [The applicant] is to pay the Respondents costs thrown away as a result of the amendment in order (a); and

(d) [The applicant] is to pay the Respondents costs of the motion filed [on] 16 May 2025, and the costs of the strike out motion heard on 10 March 2025, with those costs assessable and payable forthwith.”

  1. Without detailing the history of the applicant’s endeavours to amend the summons that he filed on 7 November 2024 (“the current summons”), challenging the decision of the Commissioner, it is sufficient to state that he has formally twice made an application to amend the summons. The controversial issue has been the applicant’s assertions of misconduct by the respondents.

  2. The respondents’ strike out motions were settled before me on 10 March 2025 after much discussion, relevantly, on the basis that the following pleadings in the current summons were struck out although allowing the applicant the opportunity to re-plead:

  1. Ground 4 paragraph 1;

  2. Ground 4 paragraph 3;

  3. Ground 4 paragraph 7 on page 5; and

  4. Ground 4 paragraph 7 on page 6.

  1. Shortly stated, paragraphs 1 and 7 in Ground 4 pleaded that the respondents had knowingly advanced “material errors of fact” and failed to reveal the Joint Experts’ Report (“JER”).

  2. There are marked differences between the amended summons and the current summons. The amended summons seeks 11 orders compared to the current 4 orders. There are now 17 grounds of appeal compared to the current 5 grounds.

  3. Ground 2 has additional particulars. Ground 3 has been re-drafted as has Ground 4. Ground 4 is no longer pleading a denial of procedural fairness but now pleads a “failure to form the requisite opinion of satisfaction”. There is no Ground 6. There are two grounds that have been numbered 13.

  4. At the outset of the hearing, the applicant was asked to address some obvious deficiencies in the amended summons. The error of law was not identified in Ground 3. The applicant informed me that the asserted error was a “failure to give reasons or adequate reasons of exceptional features”. [12] Similarly, the absent Ground 9 error was identified as “jurisdictional and legal errors committed by the Commissioner”. [13] As to the first Ground 13, the applicant confirmed that the error was the “Commissioner’s findings at D[4](16) … [w]ere legal errors”. [14] However, he advised the Court that he had agreed to delete particulars (i) to (iv). [15] The applicant further mentioned that the last sentence in particular (g) of Ground 1 was not relied on and was to be deleted. [16]

    12. Tcpt, 4 June 2025, p 3(15-45).

    13. Tcpt, 4 June 2025, p 4(23-25).

    14. Tcpt, 4 June 2025, p 4(45-49).

    15. Tcpt, 4 June 2025, p 5(1-5).

    16. Tcpt, 4 June 2025, p 6(7-23).

  5. In the amended summons, the applicant appears to have sought some relief from the judgment of Kirk JA in Joseph No 1 by including under the heading “Details of Decision”, Kirk JA’s “decision” and by seeking relief under the heading of “costs”, relating to the cost orders made by his Honour. After informing the applicant that if he wished to review any aspect of Kirk JA’s judgment he should proceed under r 51.58 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), those paragraphs were struck out of the amended summons (see also s 46(4) of the Supreme Court Act 1970 (NSW); Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 at [20] (Ball JA, Mitchelmore and McHugh JJA agreeing)).

  6. The Court’s power to amend the applicant’s summons is found in s 64 of the Civil Procedure Act 2005 (NSW) (“CPA”). Section 64(2) relevantly provides:

“64   Amendment of documents generally

…

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.”

  1. Section 58 of the CPA requires the Court to “act in accordance with the dictates of justice”. In determining what are the dictates of justice in the present application, I have regard to the “overriding purpose” of the CPA under s 56 which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the objects of case management set out in s 57. Of particular relevance to the matters to which the Court must have regard under s 58(2)(b) of the CPA are:

(i)   the degree of complexity of the proceedings;

(ii)   the degree of expedition with which the respective parties have approached the proceedings;

(vi)   the degree of injustice that would be suffered by the respective parties as a consequence of any order; and

(vii)   those matters to which I will refer in this judgment which are relevant to the circumstances of the application to amend and the respondents’ strike out applications.

  1. The respondents seek orders striking out either in whole or in part the applicant’s amended summons. Rule 14.28 of the UCPR is as follows:

“14.28   Circumstances in which court may strike out pleadings

(1)   The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)   discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)   has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)   is otherwise an abuse of the process of the court.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).”

  1. It has long been held that the power to strike out should be exercised only in plain and obvious cases: Davis v Commonwealth [1986] HCA 66; (1986) 61 ALJR 32 at 35 (Gibbs CJ); Resolution Life Australasia Ltd v AMP Ltd; Munich Reinsurance Co of Australasia Ltd v AMP Ltd [2025] NSWCA 21 at [17] (Gleeson JA, Bell CJ and Mitchelmore JA agreeing). As Cross J observed in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942:

“The mere fact that the case is weak and not likely to succeed is not a ground for striking out a validly formulated pleading.” (emphasis in original)

  1. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; [1964] HCA 69 (“General Steel”), Barwick CJ cautioned that:

“… great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”

  1. The Court must be satisfied that the pleading does not disclose a reasonable cause of action: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); [1949] HCA 1; General Steel at 129-130 (Barwick CJ); McGuirk v University of New South Wales [2009] NSWSC 1424 at [36]-[39] (Johnson J); Shaw v State of New South Wales [2012] NSWCA 102 at [30]-[33] (Barrett JA, Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing). As the amended summons has not been filed, I will use the term “struck out” to make it plain to the parties those parts of the amended summons to which I will not grant leave.

  2. The first and second respondents cited Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon”), where the plurality of the High Court relevantly observed at [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ):

“Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.”

  1. The plurality in Aon cited with approval at [100]-[101] a number of principles which included that:

“… Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.” [17]

17. Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd (1991) 32 FCR 379 at 392 (French J), quoting Cropper v Smith (1884) 26 Ch D 700 at 711 (Bowen LJ).

  1. Their Honours accepted at [101] that “personal litigants are likely to feel the strain more than business corporations or commercial persons”. [18]

    18. Ketteman v Hansel Properties Ltd [1987] 1 AC 189 at 220 (Lord Griffiths); Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155 (Dawson, Gaudron and McHugh JJ); [1997] HCA 1.

  2. The first and second respondents submitted that the applicant’s conduct in making and abandoning multiple claims is not just; it does not promote the efficient disposal of the business of the court or the efficient use of available judicial resources; nor does it promote the timely disposal of the proceedings at a cost affordable by the respective parties as sought by s 57 of the CPA.

  3. The first and second respondents submitted that the applicant’s “vastly expanded claim which extends well beyond any of the previously aborted claims is unexplained, other than it appears [the applicant] has simply changed his mind, at great cost and inconvenience to the other parties and to the Court”. [19]

    19. First and Second Respondents written submissions, par 37.

  4. The first and second respondents contended that the additional grounds were embarrassing as they included numerous allegations which are repetitive, confusing, irrelevant and do not put the respondents on notice of the case they are to meet.

Orders 1, 2, 3, 5, 8, 9 and 10; Grounds 1, 2, 3, 4, 9, 11, 15 and 16

  1. I am not persuaded that the grounds identified above do not disclose reasonable causes of action. Furthermore, whilst there is a degree of repetition these grounds are not confusing and the particulars identify the case that the respondents are to meet. All of the grounds allege jurisdictional error on the part of the Commissioner which are contended to be material to the decision that the Commissioner made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610.

  2. Although the grounds of appeal which allege jurisdictional error have been expanded in the amended summons, I am of the opinion acting in accordance with the dictates of justice the application to amend should be granted in respect of the orders and grounds identified above.

The remaining orders and grounds

The respondents’ submissions

  1. The respondents’ main complaint was that the amendments raised multiple claims of misconduct including conduct in the nature of fraud, collusion and abuse of process for which there was no evidential basis.

  2. The first and second respondents cited Odtojan v Glynn t/as Glynns Lawyers [2023] NSWCA 276 (“Odtojan”), where White JA held at [96] that there was nothing in the evidence to provide any basis for the applicant’s allegations of fraud and collusion between the parties’ lawyers and dismissed the application. Basten AJA’s concurring judgment at [109]-[111] was also cited. Further reliance was placed on what was said by Kirk JA in Joseph No 1 at [42].

  3. Another submission was that the amended grounds do not identify the facts relied upon to support an assertion that the conduct was fraudulent and deliberate. Reference was made to UCPR rr 15.3, 15.4 and 59.4.

  4. The Council argued that to make good these allegations, it was necessary for the applicant to demonstrate by some prima facie evidence, some deliberate deceit on the part of the Council, where it knew of the relevant misconduct and deliberately committed acts in furtherance of that conduct. The Council contended that nowhere in his affidavits does the applicant demonstrate any evidence of deceit or deliberate conduct to collude with the first and second respondents to subvert the processes of the Court, prejudice the interests of the applicant or mislead the LEC.

  5. The Council pointed to the applicant’s affidavit dated 1 April 2025 as being “[p]articularly revealing”. [20] The Council submitted that this was the only affidavit sworn by the applicant after he agreed to the consent orders reached on 10 March 2025, striking out pleadings impugning the Council’s conduct and there was no evidence in that affidavit of any matter that would be a proper basis for the Misconduct Claims.

    20. Third respondent’s written submissions, par 32.

The applicant’s submissions

  1. The applicant submitted that the Court should show some restraint in its consideration of the proposed amended pleadings and particulars citing May v Northern Beaches Council (No 2) [2023] NSWLEC 7 at [91] (Robson J). The applicant contended that the Court is in no position to make a considered evaluation of the allegations. The “evidence” was all one way supporting the allegations.

  2. The applicant argued that to suggest there was no evidence was to deny the course of conduct alleged, the direct meaning of the JER, the documents in the possession of the parties and “the refusal to reveal their force of their content in the [JN]”. [21]

    21. Applicant’s written submissions, p 7.

  3. The applicant pointed out that there was no opposing evidence provided by the respondents despite this being open to them under the UCPR. The applicant referred specifically to the ground of “abuse of process” citing the High Court’s decision of UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [6]-[7] (Kiefel CJ, Bell and Keane JJ) (“UBS AG”) to submit that the ground required consideration of “all the circumstances requiring the court to make a broad, merits based judgment which takes into account private and public interests involved and also takes into account all the facts of the case”. [22]

    22. Applicant’s written submissions, p 8.

  4. The applicant submitted that the allegation of abuse of process is to be considered in the absence of a statutory pre-condition “erection of building” and lack of “exceptional circumstances”.

  5. The applicant stated that his withdrawal of Ground 4 in the consent orders reached on 10 March 2025, was before he had received copies of the JER, JN and consent agreement. It is these documents, the applicant submits “confirms actual knowledge of the respondents”. [23]

    23. Applicant’s written submissions, p 10.

  6. In oral submissions, the applicant submitted that the proceedings were not at the stage where the respondents could raise there was no evidence in support of the pleaded allegations. The applicant further referred to the JER where Mr David Ryan, the Council’s planning expert, when dealing with the exception under cl 6.7(2)(b) of the Kiama Local Environmental Plan 2011 (NSW) (“the KLEP”), expressed the opinion that “[i]n the context of subclause (a), the reference in this subclause to the erection of a building, appears to refer to a new building, rather than extensions to an existing building … and therefore do not fall within this exception”. [24] The applicant referred to the opinion of Ms Kate Bartlett, the planning expert retained for the first and second respondents, who opined that whilst a new development was not sought, the distance of the site from the actual beach and foreshore, as well as the unique alignment on the subject site “constitute ‘exceptional site features’ to make the proposed works appropriate within the context of the site”. [25] The applicant initially submitted that the JER “thereafter was intentionally sought to be buried by the parties”. [26] However, this assertion was withdrawn and was replaced by the complaint that the JER “wasn’t brought to the attention of the [C]ommissioner … in these terms”. [27]

    24. Court Book, pp 563-564.

    25. Ibid.

    26. Tcpt, 4 June 2025, p 8(10-12).

    27. Tcpt, 4 June 2025, p 8(45-46).

  7. The applicant subsequently submitted:

“… my submission and the pleadings embrace a course of conduct by the parties to avoid or to suppress the findings of the [JER]. The [JER] predates Robson J’s decision [Spencer v Kiama Municipal Council [2024] NSWLEC 80], or hearing, and the course of conduct of abuse of process of which I rely on is the, is the avoidance and - or as I’ve colloquially said, the burying of those findings of the [JER] … to the extent that when it came to the writing of the [JN] …

…

… Does not refer in terms at all to the [JER].” [28]

28. Tcpt, 4 June 2025, pp 10(43)-11(5).

  1. The applicant drew the Court’s attention to paragraph 12 of the JN which he contended was contrary to the JER and to paragraphs 17 and 21 which he submitted could not be correctly stated. The applicant argued that the Commissioner was misdirected and regardless of whether this misdirection was intentional or not, it had a material effect. He submitted that the Commissioner’s use of this “misleading … and biased conduct … biased opinionated document” had led the Court into error. [29] It was the respondents’ conduct that led the Commissioner to “deliver … an inadequate judgment … based on assumptions of fact that they knew were wrong”. [30]

    29. Tcpt, 4 June 2025, p 13(1-2).

    30. Tcpt, 4 June 2025, p 14(7-10).

  2. Another matter that the applicant referred to was the “tension between what was relied on in the addendum and … what’s relied on in the [JN]”. [31] The addendum is the document prepared by Ms Bartlett on behalf of “The Planning Studio” titled “Statement of Environmental Effects Addendum - Clause 6.7 Foreshore Building Line” dated 13 August 2024 (“the Addendum”). [32] The applicant referred to Ms Bartlett’s conclusion that the development met the exceptions provided under cl 6.7(2)(b) of the KLEP by finding seven exceptions whereas there were nine in the JN. He submitted there was “good evidence to suggest that both the respondents in their [JN] knew that the [A]ddendum was an unreliable document in terms of what it alleged, and yet they remained silent and in fact adopted it to the effect of saying there’s nothing to prevent the approval going ahead”. [33]

    31. Tcpt, 4 June 2025, p 16(19-21).

    32. Court Book, pp 83-104.

    33. Tcpt, 4 June 2025, p 18(8-12).

Consideration

  1. It is to be accepted that the categories of abuse of a court’s processes are not closed: UBS AG at [7] (Kiefel CJ, Bell and Keane JJ), quoting Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 (Lord Bingham of Cornhill). In Stokes v Toyne [2023] NSWCA 59, Simpson AJA conveniently referred to at [135]-[136] the High Court authorities which are relevant to an abuse of process:

“[135] In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, McHugh J said, at 286-287:

‘Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process ‘extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness’.’ (internal citations omitted)

The reference to Walton v Gardiner was a reference to the earlier decision of the High Court in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, (“Walton”) as to which, see below.

[136] That passage from Rogers was endorsed by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15] (“Batistatos”). Their Honours added:

‘To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of process to the court.’ (internal citation omitted).”

  1. It appears that the applicant relies on McHugh J’s third category in Rogers v The Queen (1994) 181 CLR 251 at 286-287; [1994] HCA 42. He asserts that the respondents’ abuse of the procedures of the LEC “brings the administration of justice into disrepute”. As well as seen from the consideration at [50]-[56] below, the applicant’s allegations involve the respondents colluding together to mislead the Commissioner and Robson J. Justice Robson dismissed the applicant’s motion to be joined in the Class 1 proceedings commenced by the respondents: Spencer v Kiama Municipal Council [2024] NSWLEC 80 (“Spencer No 1”).

  2. Serious allegations of dishonesty, collusion and abuse of process must not be made lightly and must be clearly and precisely identified: Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 48, 54 (Toohey J); Poulos v Australia and New Zealand Banking Group Ltd [2023] NSWCA 262 at [63] (Ward ACJ and Adamson JA) and the authorities there cited: See also, Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285-287 (Mason CJ and Gaudron J); 295 (Dawson J); [1990] HCA 11. There must be an arguable evidential basis for the allegations: Odtojan at [95]-[96] (White JA), [110] (Basten AJA); Joseph No 1 at [42] (Kirk JA). The allegations of dishonesty extend not only to the respondents knowingly misleading the Commissioner but also to the respondents deliberately omitting to bring to the Commissioner’s attention relevant material.

  3. There has been some discussion about the term “fraud” with related notions of “bad faith” and “abuse of process” by public authorities; and there may be some cases that no “moral obliquity” is implied in the assertions of “bad faith”: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [11]-[13] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ) and the authorities there cited. It is however evident in the present case that the applicant’s assertions of bad faith imply intentional dishonesty. That is not only clear from the pleadings discussed below but also from the applicant’s oral submissions (see [40]-[41] above).

  4. The applicant’s argument that there is no opposing evidence is misconceived. The applicant’s summons has not been settled and the Court has not fixed a timetable for the service of evidence by way of affidavits: UCPR r 59.7.

  5. Another argument was that the proceedings were not at a stage where the respondents could submit there was no evidence in support of the pleaded allegations. However, as I have stated at [46] above, there must be an arguable evidential basis for serious allegations of dishonesty, collusion and abuse of process.

  6. I turn now to a consideration of relevant parts of the amended summons. The orders sought by the applicant included:

“4) A declaratory that the granting of consent to the development by Council on 30 August 2024 was an abuse of power absent sufficient satisfaction of jurisdictional facts and be set aside.

…

6) Declaratory order that the Respondents (each or both) engaged in a course of conduct that was an abuse of process of the proceeding before the [LEC] and/or acted in bad faith in the conciliation conference.

7) A declaratory order that the parties in jointly composing the [JN] and providing it the court, for its reliance and/or adoption improperly failed to consider the material in their possession which denied the reliability of its assertions and/or its findings.

…

11) A declaratory order that the assertions in the JN at [15]-[17] were knowingly misleading and/or false and/or these assertions and were material to the Decision the Commissioner [[4] (2)].”

  1. Ground 5 alleges that the respondents engaged in a course of conduct that was an abuse of process in that the parties agreed to non-compliance with LEC orders and practice notes. The particulars make clear that the respondents’ conduct was intentional; that they acted “in concert to achieve a pre-determined agreement and to frustrate an application by the [a]pplicant to be joined as a party” to the LEC proceedings. [34] Further allegations of intentional improper conduct are included in Ground 5, particular (1)(J) of the amended summons which alleges “improper reliance by [the respondents] of the ‘Addendum’ knowing it to contain false and misleading allegations concerning planning history associated both with the site and other ‘surrounding’ sites”. [35]

    34. Amended summons, p 10.

    35. Amended summons, p 11.

  2. Ground 7 alleges that the JN was an abuse of process and was made in bad faith as the assertions in the JN which was jointly authored by the respondents “were knowingly misleading and false”. [36] In Ground 10, particulars (6)(a) and (b) the applicant alleges intentional conduct by the Council “to mislead … the Court” and “refusal to advise Robson J” that the joint conferencing had taken place. [37]

    36. Amended summons, p 12.

    37. Amended summons, p 16.

  3. Ground 12 alleges that the respondents failed “to correct known and material factual errors in [the] Addendum” which was an abuse of process. [38] Particular (9) of Ground 12 alleges that the respondents’ lawyers “failed to comply with … their duty to the court over their client’s (sic) interests”. [39] Further allegations under this ground are made of the respondents “silence” about relevant material which was unethical and that the parties would have known of “the effect of this denial”. [40]

    38. Amended summons, p 18.

    39. Ibid.

    40. Ibid.

  4. In the first Ground 13, particular 16(m) there is an assertion that it was known by the respondents “JN [12(iv)] to be both legal error and error of fact”. [41]

    41. Amended summons, p 22.

  5. In the second Ground 13 headed “[t]he failure to evaluate and consider the [a]ssumptions made in the Addendum of which there was no evidence and was legally unreasonable”, particular (17) alleges that the “assumptions”, relied upon by Planning Studio were known by the respondents to be false. Particular (19) of the second Ground 13 alleges that the respondents knew that what was being asserted in the JN was erroneous.

  6. Ground 17 alleges “unconscionable conduct” by the respondents. Particular (d) of Ground 17 alleges that the respondents “intentionally ignored the JER” and particular (e) claims the respondents “did not undertake the conciliation conference in good faith”. [42]

    42. Amended summons, p 28.

  7. The applicant relies on the JER, the Addendum, the JN and the consent agreement as being an arguable basis for his allegations of dishonesty, collusion, abuse of process and bad faith. In my view, those documents reflect no more than the changing position of the parties and the agreement reached following discussions in the conciliation conference in the LEC mandated under s 34AA of the LEC Act. There is nothing which arises from this material to suggest that the respondents or their lawyers acted in any dishonest way. In my opinion, the applicant’s submissions that the respondents “buried” the JER or omitted to provide relevant material lacks substance. The Commissioner in her judgment refers at [4(14)] to the JER and at [4(12)] to the applicant’s submissions objecting to the development application.

  8. Grounds 5, 7, 12, 17 and the second Ground 13, do not disclose a reasonable cause of action and are to be struck out. In Ground 10, particulars 6(a) and (b) are to be struck out as is particular 16(m) in the first Ground 13. The orders sought by the applicant and set out at [50] above are struck out.

  9. There is a further reason that I will not allow these grounds and orders. The applicant’s changes of position in respect of his allegations of misconduct and his attempts to re-plead have caused unnecessary delay and costs to the respondents. Whilst I have mentioned that the present proceedings are the second formal time his summons has been before this Court, he expressly abandoned Ground 4 in the current summons in submissions filed on 11 December 2024. However, in his fourth affidavit filed on 13 February 2025, he provided additional particulars to Ground 4 and added Ground 6 which asserted that the JN contained a “fraudulent representation”. Allowing the applicant to re-plead his allegations of misconduct would cause a significant injustice to the respondents and would not facilitate the just, quick and cheap resolution of the real issues in dispute: CPA ss 56-58; Aon at [98]-[102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

  1. Ground 14 is in a different position to the grounds which I will not permit the applicant to plead. This is a procedural fairness ground. The applicant’s contention is that he was not informed by the Council of its change of position. The Council had objected to the development application “primarily on the basis of impermissibility based upon the proposal’s relationship with the foreshore building line” and relied on cl 6.7(2) of the KLEP: Spencer No 1 at [9] (Robson J). The applicant’s opposition to the development application also relied on cl 6.7(2) of the KLEP. In Spencer No 1, Robson J’s reasons for rejection of the applicant’s joinder application included at [33]:

“Rule 6.24 of the UCPR has two limbs: a person who ‘ought to have been joined’ or is a person ‘whose joinder as a party is necessary to the determination of all matters in dispute’. I consider that, in the circumstances, [the applicant] is not a person who ‘ought to have been joined as a party’, nor is he a person ‘whose joinder as party is necessary to the determination of all matters in dispute’. I have formed this view because I have little doubt that the essential matters which he wishes to raise are otherwise raised in Council’s contentions noting, that these are contentions which Council maintains would effect the refusal of the Class 1 appeal.” (emphasis added)

  1. His Honour said at [39]:

“Further, [the applicant] will be kept informed in relation to the outcome of the conciliation …”

  1. The applicant’s complaint is he was not told that the Council at the conciliation conference had agreed that there were exceptions enabling the grant of the development under cl 6.7(2) of the KLEP. The applicant’s contention is that if he had known of the Council’s change in position, he would have made further submissions and obtained additional evidence.

  2. Undoubtedly there will be argument as to whether the Council had an obligation to inform the applicant as he contends and the relevance of a denial of procedural fairness. However, as one of the reasons his joinder application was dismissed was that his contentions were “otherwise raised” by the Council, I am not satisfied that Ground 14 does not disclose a reasonable cause of action.

Costs

The strike out motions – 10 March 2025

  1. The respondents submitted orders should be made that the applicant pays the respondents’ costs of the strike out motions which were settled on 10 March 2025 (see [10]-[11] above) with those costs assessable and payable forthwith: UCPR r 42.7(2); Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [11]-[13] (Barrett J). The respondents cited Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [14]-[18] (Bathurst CJ, Beazley P and Meagher JA) (“Pavlovic”): See also, Keynes Capital Global Limited v Guo (No 2) [2020] NSWCA 336 at [10]-[12] (Bell P, Meagher and Payne JJA).

  2. In response, the applicant contended that as part of the consent orders was that he be allowed to re-plead, both parties had “each got something from that … so we each walked away with part success”. [43] The applicant further submitted that offers of compromise had been made and “the [d]raconian orders that the respondents seek, which include payment forthwith, could cause detrimental harm to [the applicant’s] right to claim indemnity costs based on more than one [offer]”. [44] The applicant submitted that costs should be costs in the cause.

    43. Tcpt, 4 June 2025, p 56(5-7).

    44. Tcpt, 4 June 2025, p 56(11-13).

  3. As to the applicant’s submissions concerning offers of compromise, it was submitted on behalf of the respondents that they had not seen anything that “resembles a compromise offer”. [45] The applicant undertook to provide these offers to the Court by the next day, 5 June 2025, which he did.

    45. Tcpt, 4 June 2025, p 67(6-7).

  4. An email dated 20 December 2024 from the applicant to the respondents’ lawyers discloses the following offer of settlement:

“1.   The decision of [LEC] set aside[.]

2.   The appeal to [LEC] dismissed.

3.   Each party pay own costs of this proceeding.”

  1. An email dated 16 February 2025 from the applicant to the respondents’ lawyers discloses the following offer of settlement:

“1   In respect of the matter 2024/413777 the appeal before the Court of Appeal of NSW is upheld with no order for costs.

2   [I]n respect of the matter 2023/0017635 before the [LEC] the appeal is dismissed with no order for costs.”

  1. Another offer of compromise was made to the Council in an email dated 25 May 2025. The offer is in the following terms:

“To save further costs, I make another offer of compromise to [the] Council:

1.   The Council agrees without admission of any adverse conduct by it, that the 2024 Development consent be set aside.

2.   That the [a]ppeal before the [LEC] be dismissed.

3.   Each party pay their own costs of this application[.]

4.   That the costs order made by Kirk JA [in Joseph No 1] be set aside and each party (the council and I) pay their own costs of that notice of motion.”

  1. It is unnecessary to consider the terms of each of the offers other than to recognise that in none of the offers was the applicant giving anything away. As was observed by Giles J in Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368, a “[c]ompromise connotes that a party gives something away”: See also, Kmart Australia Limited v Marmara (No 2) [2025] NSWCA 48 at [21], [25] (Kirk, McHugh JJA and Griffiths AJA).

  2. The applicant’s offers merit no further attention and have no impact on the cost orders to be made on the motions.

  3. It is often the case where a motion is settled before hearing that an appropriate order is that each party bear their own costs. The resolution of the strike out motions, included as the applicant contends, allowing him to re-plead which the respondents resisted at the commencement of the hearing of the motions.

  4. Generally, where a party seeks an indulgence, such as in the present case involving an application for leave to amend, that party usually pays the costs of the application: Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing [2003] NSWSC 642; (2003) 178 FLR 400 at [144]-[146] (Campbell J); Stanley v Layne Christensen Company [2006] WASCA 56 at [51]-[55] (Wheeler JA, Steytler P and Pullin JA agreeing) (“Stanley”); The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2) [2007] NSWSC 797 at [6] (Young CJ in Eq); Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619 at [22]-[25] (Ward J) cf Fordham v Fordyce [2007] NSWCA 129; (2007) 154 LGERA 49 at [50]-[51] (Young CJ in Eq). The general rule is dependent on the circumstances of the case.

  5. In my view, the applicant’s conduct in respect of the current summons demonstrates unreasonableness prior to the hearing of the motion. As I have mentioned at [59] above, he expressly abandoned Ground 4 in submissions filed on 11 December 2024. However, in his fourth affidavit filed on 13 February 2025, he provided additional particulars to Ground 4 and sought to add Ground 6. It was not until 7 March 2025, that the respondents were advised by the applicant he was not seeking to rely on the current summons. [46] In view of the applicant’s unreasonable changes in position, the respondents’ opposition to allowing the applicant to re-plead was reasonable: Stanley at [52], [55]. Furthermore, the paragraphs agreed to be struck out of Ground 4 in all likelihood would not have disclosed a reasonable cause of action for reasons similar to the orders I have made in not permitting the applicant to plead the Misconduct Claims in the amended summons.

    46. Tcpt, 10 March 2025, p 2(10-17).

  6. In my opinion, the dictates of justice are such that it is appropriate in all the circumstances that the applicant pays the respondents’ costs of the strike out motions on 10 March 2025: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [108] (Preston CJ of LEC, Beazley P and Ward JA agreeing); Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 765 at [50]-[51] (Hodgson CJ in Eq); See also, G E Dal Pont, Law of Costs (5th ed, 2021, LexisNexis) at [14.37]-[14.40], [14.48]-[14.52], [14.69]-[14.72].

  7. The respondents cited Pavlovic in their application to have an order made that the applicant pay the costs forthwith. A relevant factor in the Court’s decision in Pavlovic at [22] (Bathurst CJ, Beazley P and Meagher JA), was that the appellant’s ability to fund his litigation would be hampered if the proposed orders were not granted. There is no evidence before me of the first and second respondents’ financial circumstances. Whilst I appreciate that they are personally funding the litigation, which is likely to continue to be hard fought, I am not persuaded that it is in the interests of justice that such an order be made. Moreover, there is also nothing in the case of the Council which suggests that order sought should be made.

Costs of the motion on 4 June 2025

  1. The applicant was under no obligation to seek to re-plead the current summons after the consent orders reached on 10 March 2025. His application to amend the current summons has burdened the respondents with additional costs which they should not be required to bear. In all the circumstances, the dictates of justice require that an order be made that the applicant pay the respondents’ costs.

Orders

  1. I make the following orders:

  1. I grant leave to the applicant to amend the summons filed on 7 November 2024 as follows:

  1. under the heading “Declaratory Orders” of the amended summons being annexure “A” to the applicant’s affidavit affirmed 16 May 2025 (“the amended summons”), in the terms “the grant of consent invalid”;

  2. in the terms of orders 1, 2, 3, 5, 8, 9 and 10 of the amended summons;

  3. in the terms of paragraphs 1, 2 and 3 under the heading “Details of Decision” in the amended summons, with the exception of particular (g) of Ground 1 which is struck out;

  4. in the terms of Grounds 1, 2, 3, 4, 9, 11, 14, 15 and 16 of the amended summons;

  5. in the terms of Ground 10. In that ground, I strike out the whole of particulars 6(a) and 6(b) and only the word “perversely” in particular 6(f) and leave is refused for those particulars in the amended summons; and

  6. in the terms of the first Ground 13 in the amended summons, in that ground, I strike out particulars (i)-(v) and particular 16(m) and leave is refused for those particulars in the amended summons.

  1. I refuse leave to amend the summons filed on 7 November 2024 as follows:

  1. under the heading “Declaratory Orders” in the amended summons, all sentences except for “the grant of consent invalid” are struck out;

  2. in the terms of orders 4, 6, 7 and 11 in the amended summons which are struck out;

  3. in the terms of paragraphs 4, 5 and 6 under the heading “Details of Decision” in the amended summons which are struck out;

  4. in the terms of Grounds 5, 7, 12, 17 and the second Ground 13 in the amended summons which are struck out; and

  5. in the terms of paragraph 23 under the heading of “costs” on page 29 in the amended summons which is struck out.

  1. Direct the applicant to file an amended summons strictly reflecting orders (1) and (2) within 7 days. The amended summons should be renumbered according to and consistent with these orders.

  2. The applicant is to pay the first and second respondents’ and the third respondent’s costs of the strike out motions settled on 10 March 2025.

  3. The applicant is to pay the first and second respondents’ and the third respondent’s costs of the motion heard on 4 June 2025.

**********

Endnotes

Decision last updated: 20 June 2025

Cases Citing This Decision

0