Marrickville Council v Botany Council - [2015] NSWCATAD 144

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Marrickville Council v Botany Council [2015] NSWCATAD 144
Hearing dates: 25 June 2015
Decision date: 25 June 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
Decision:
1. The application to join Sydney Airports Corporation Limited to the proceedings is granted.
2. Sydney Airport Corporation is joined as the second respondent in these proceedings.

Catchwords: JOINDER – right to appear and be heard – party to proceedings – appeal rights – adduce evidence – proper and necessary party – person directly affected
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Review Act 1997.
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Cases Cited: Commissioner of Police, NSW Police Force v Fine and Anor [2014] NSWCA 327
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50
Black v Hunter New England Local Health District [2011] NSWADT
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Ross v Lane Cove Council [2014] NSWCA 50
Category: Procedural and other rulings
Parties: Sydney Airports Corporation Limited (Third Party Applicant)
Marrickville Council (Applicant)
City of Botany Bay Council (Respondent)
Representation:
Counsel:
J Hutton (Third Party Applicant)
V McWilliam (Respondent)
Solicitors:
J Strati (Marrickville Council) Applicant
Sparke Helmore Lawyers (Respondent)

File Number(s): 1510097

Reasons for decision

Background

On 13 February 2015 Marrickville Council (the applicant) filed an application for administrative review with the Tribunal concerning a decision of the City of Botany Bay Council (the respondent) to withhold release of certain government information under the provisions of the Government Information (Public Access) Act 2009.(the GIPA Act).
The government information withheld by the respondent concerned a deed of release between Sydney Airport Corporation Limited (the third party) and the City of Botany Bay. The third party (Sydney Airport Corporation Limited) is the applicant in this application to be joined to the proceedings.
The matter first came before the Tribunal for a planning meeting on 31 March 2015. At that time in addition to the parties, Sydney Airport Corporation Limited’s legal representatives were present. The matter was adjourned but in the interim the parties agreed to engage in discussions to examine whether there was any way of resolving the issue concerning access to the withheld information. It was noted that Sydney Airports Corporation Limited was to be involved in those discussions by consent. That approach seemed appropriate due to the claim that the withheld information concerned information relating to both the respondent and Sydney Airports Corporation Limited. The matter was adjourned to a further planning meeting on 9 June 2015.
On 9 June 2015, the matter had not resolved and Sydney Airport Corporation Limited foreshadowed an application to be joined to the proceedings under section 44 of the Civil and Administrative Tribunal Act 2013. The foreshadowed application was opposed by Marrickville Council who submitted that the appropriate course was that Sydney Airport Corporation Limited had an interest in the matter and therefore…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 144
Decision Date: 25 June 2015

CaseChat Overview and Summary

The Marrickville Council appealed against a decision of the Land and Environment Court to dismiss their application to join the Sydney Airport Corporation Limited (SAC) as a party in proceedings against the Botany Council. The dispute involved a planning application concerning the construction of a taxiway at Sydney Airport. The Land and Environment Court had determined that SAC was not a proper and necessary party, and thus, dismissed the Marrickville Council’s application to join SAC in the proceedings.

The primary legal issue before the court was whether SAC should be considered a proper and necessary party, entitling them to join the proceedings, adduce evidence, and potentially appeal the outcome. The court examined whether SAC had a sufficient interest in the matter, given their role in the construction of the taxiway and the potential impact on their operations and environment. The Marrickville Council argued that SAC was directly affected by the proposed works and should be involved in the proceedings to protect its interests.

In its decision, the court recognised that SAC had a substantial interest in the planning application and the potential impacts on their operations and environment. The court concluded that SAC was a proper and necessary party, directly affected by the proceedings, and therefore entitled to join the case. It was deemed essential for SAC to participate in the proceedings to adequately present and protect its interests. Consequently, the appeal was allowed, and SAC was granted the right to join the proceedings as a second respondent. The court’s decision underscored the importance of including all parties with significant interests in matters that directly affect them, ensuring a fair and comprehensive resolution of the dispute.

Orders

Orders of the court

1. The application to join Sydney Airports Corporation Limited to the proceedings is granted.

2. Sydney Airport Corporation is joined as the second respondent in these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Marrickville Council v Botany Council [2015] NSWCATAD 144
Hearing dates:	25 June 2015
Decision date:	25 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	1. The application to join Sydney Airports Corporation Limited to the proceedings is granted. 2. Sydney Airport Corporation is joined as the second respondent in these proceedings.
Catchwords:	JOINDER – right to appear and be heard – party to proceedings – appeal rights – adduce evidence – proper and necessary party – person directly affected
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997. Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Commissioner of Police, NSW Police Force v Fine and Anor [2014] NSWCA 327 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 Black v Hunter New England Local Health District [2011] NSWADT Hurst v Wagga Wagga City Council [2011] NSWADT 307 Ross v Lane Cove Council [2014] NSWCA 50
Category:	Procedural and other rulings
Parties:	Sydney Airports Corporation Limited (Third Party Applicant) Marrickville Council (Applicant) City of Botany Bay Council (Respondent)
Representation:	Counsel: J Hutton (Third Party Applicant) V McWilliam (Respondent) Solicitors: J Strati (Marrickville Council) Applicant Sparke Helmore Lawyers (Respondent)
File Number(s):	1510097