Kirkman v Minister Administering the Crown Lands Act

[2019] NSWSC 1683

Supreme Court

New South Wales

Medium Neutral Citation:	Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683
Hearing dates:	28 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Proceedings adjourned part heard to 19 March 2020. Notwithstanding that the Minister had filed a submitting appearance, request made by the Court for the Minister to assist with information about the material before the decision maker of the challenged decision.
Catchwords:	PRACTICE AND PROCEDURE – adjournment of proceedings – application for judicial review of administrative decision of the Minister for Agriculture and Forestry (“the Minister”) to close a Crown road and sell the land comprising the road to adjoining owners – plaintiff is one of the adjoining owners – Minister is the first defendant and has filed a submitting appearance – the other adjoining owner is the second defendant – the Minister’s failure to appear at the hearing makes it more difficult for the Court to determine what material was before the Minister at the time the challenged decision was made – Minister’s assistance sought to accurately determine the scope of the material before the decision-maker – what procedural directions should be undertaken to give the Court clarity about what materials were before the Minister at the time the decision was made.
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 6.11
Cases Cited:	Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC1876 Sahab Holdings Pty Ltd v Registrar General (2009) 75 NSWLR 629
Category:	Consequential orders (other than Costs)
Parties:	Plaintiff: Jennifer Kirkman First Defendant: Minister Administering the Crown Lands Act Second Defendant: Geoffrey Robert Wood & Jan Margaret Wood
Representation:	Counsel: Plaintiff: S. Berveling   Solicitors: Plaintiff: Gregory Robert Moin, Moin Morris Schaefer Pty Ltd First and Second Defendants: Submitting Appearance
File Number(s):	2018/344647
Publication restriction:	No

EX TEMPORE Judgment

1. In October 2017, the Minister for Lands and Forestry (“the Minister”), the first defendant, made a decision to close a Crown road in the rural district of Uralla and to sell off parts of the Crown road to its two adjoining owners, respectively the plaintiff, Mrs Jennifer Kirkman, and the second defendants, Mr Geoffrey and Mrs Jan Wood (“the 2017 decision”). At the same time, the Minister declined a request from Mrs Kirkman to have an easement created between a nearby public road, Gostwyck Road, and her land near the point of the road closure.

2. The precise location of the road is not important for the purposes of these reasons, which concern a procedural question about what should be done to equip the Court with all the information necessary to deal with the plaintiff’s application for judicial review of the 2017 decision.

3. These proceedings were commenced by summons in November 2018. Both the Minister and the Woods filed submitting appearances and have not appeared at the hearing today. As will be seen, the Crown's filing of a submitting appearance has had both positive and negative consequences for the conduct of the proceedings.

4. Only part of the Crown land, which is the subject of the closure and sale decision, is in dispute. Each of the adjoining owners has in fact been able to partially benefit from the 2017 decision, by taking parts of the old Crown road that are not now contested. But the area now remaining in dispute is a portion of the old Crown road to which both parties lay claim. It is a relatively small area of less than one hectare of pastoral land, which the Court is told would be worth no more than $3,000.

5. Their other dispute relates to a claim for an easement, which, if granted, would appear to cover an area no longer than a few hundred metres over similar pastoral land. The easement probably has even less monetary value than the parcel to which both parties lay claim. Despite the small sums in contest, the parties’ competing claims persist presently in the form of Mrs Kirkman’s challenge to the 2017 decision.

6. The Minister’s decision to file a submitting appearance under Uniform Civil Procedure Rules 2005 (“UCPR”), r 6.11 has the advantage that if Mrs Kirkman is unsuccessful, her potential liability for the Minister’s legal costs is very significantly reduced.

7. The reduction of legal and other costs in this matter is of very considerable importance, not least because of the history of the proceedings. The Minister has made two prior decisions in respect of this same land: one in 2008 and one in 2014. And both of which were declared void by Stevenson J in an earlier decision: Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876.

8. But the disadvantage of the Minister not appearing is that, as has emerged in submissions today, exactly what was before the decision-maker when the 2017 decision was made is not easy to make out on the materials the plaintiff has presented before the Court. Also, the scope of what is in the reasoning of the decision is not entirely clear either, because the record of the decision attaches various documents in a way that appears to record them as submissions but upon which differing views may be taken about whether they are included in the Minister’s, or the Minister’s delegate’s, actual reasoning process.

9. Having heard much of Mrs Kirkman’s submissions, the Court has decided to adjourn the matter part heard to 19 March 2020 for other reasons that are unrelated to the Minister's non-appearance in this litigation: aspects of Mrs Kirkman’s submissions needed to be set out more clearly in order for them to be presented to their best advantage. This is discussed below.

10. The Court normally has the assistance of the decision-maker in the judicial review of administrative decisions, in order at least to identify the material that was before the decision-maker, and the exact scope and limits of the decision.

11. I will direct that a copy of these reasons be given to the Crown Solicitor and a request be made - but merely a request - that the Court would certainly be assisted if the Minister would identify the materials which the Court can assume were before the decision-maker.

12. The Court requests this occur without the Minister necessarily changing the existing submitting appearance, if the Minister chooses. I would not regard the Minister providing this material as being inconsistent with the Minister's submitting appearance and the Court does not expect it to place the Minister under any obligation otherwise to appear or put submissions at the resumed hearing.

13. A party who files a submitting appearance is not entitled to file adversarial evidence without the leave of the Court: Sahab Holdings Pty Ltd v Registrar General (2009) 75 NSWLR 629; [2009] NSWSC 1143. The request being made in this judgment is one that is not inviting an adversarial response and is designed to ensure that the Minister does not have to incur costs to support an appearance. It is put the form of the request so that if the Minister does not wish to assist in the way suggested then the Minister will not be breaching a direction.

14. But the main reason for the adjournment is that it has become clear in the course of submissions put on behalf of the plaintiff that greater clarity is required to relate the pleaded grounds that are said to vitiate the 2017 decision to particular parts of the decision.

15. The written and oral submissions do not yet develop the alleged ground: of failing to take into account relevant considerations, the taking into account of irrelevant considerations, the denial of procedural fairness and bias, to align with the grounds for relief identified in paragraph 19 of the Summons. Nor do they yet fully cross-reference Mrs Kirkman’s argument to the detail of the decision in a way that makes her case easily accessible by the Court.

16. For that reason, the Court will adjourn the proceedings part heard to 19 March 2020 at 10 am, so that the plaintiff’s case can be presented to its best advantage.

17. The Court will make the following orders:

1. Adjourn these proceedings part heard before me at 10am on 19 March 2020.

2. Direct that a copy of these reasons be provided to the first defendant by my Associate.

3. Direct the plaintiffs to file and serve by 4pm on 27 February 2020 supplementary submissions which fully develop by detailed reference to the materials in the Court book each of the grounds that are relied upon to challenge the Minister’s decision.

4. Costs reserved.

5. Grant liberty to apply.

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Decision last updated: 02 December 2019