Mauger v Wingecarribee Shire Council

[2013] NSWSC 1587

Supreme Court

New South Wales

Medium Neutral Citation:

Mauger v Wingecarribee Shire Council [2013] NSWSC 1587

Hearing dates:

25 February 2013; 10 April 2013

Decision date:

31 October 2013

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) The plaintiff is granted leave to rely on the Amended Summons and Amended Grounds of Review in the form attached to the notice of motion filed 7 January 2013 and marked "A".

(2) The plaintiff is to file the Amended Summons and Amended Grounds of Review on or before 4pm 14 November 2013.

(3) Balance of the notice of motion of 7 January 2013 dismissed.

(4) Costs of the motion are costs in the cause.

Catchwords:

PRACTICE AND PROCEDURE - application for leave to amend pleadings - judicial review proceedings - whether plaintiff should be permitted to prosecute claims together - whether undue delay - leave granted

PRACTICE AND PROCEDURE - application for order in nature of discovery - whether available in judicial review proceedings - whether order should be granted - no order for discovery

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371

Category:

Interlocutory applications

Parties:

James Mauger (plaintiff)
Wingecarribee Shire Council (defendant)

Representation:

Counsel:
P Tomasetti SC and V McWilliam (plaintiff)
M A Robinson SC (defendant)
Solicitors:
Worthington & Reading (plaintiff)
Marsdens Law Group (defendant)

File Number(s):

2012/260035

Judgment

1. Before the court is a notice of motion of the plaintiff. I permitted amendment of the second order sought at the hearing. The three amended orders sought are as follows:

(1)   That the plaintiff be granted leave to rely on the Amended Summons and Amended Grounds of Review in the form attached and marked "A".

(2)   The defendant is to file and serve any Response to the Amended Summons and Amended Grounds of Review, and a bundle comprising:

(a)   The documents that relate to the decision to establish the Conduct Review Committee (comprised of Ms Esther McKay) on 5 October 2010 to investigate the conduct of the plaintiff; and

(b)   All documents and transcripts of evidence provided to the Conduct Review Committee in furtherance of the investigation of the plaintiff's conduct.

(3)   Costs.

1. In short, the plaintiff seeks leave to amend a pre-existing claim against the defendant in order to expand it to include a separate complaint about the conduct of the defendant. By order two, the plaintiff seeks discovery from the defendant ancillary to me permitting the amendments sought in order one. In order three, the plaintiff seeks costs of the motion, contrary to the usual approach that the moving party should pay the costs of a motion seeking leave to amend.

Background

1. The plaintiff was a councillor of the defendant. By summons filed 21 August 2012, he sought a declaration that a Conduct Review Committee established by the defendant had no jurisdiction to investigate his conduct. The plaintiff also sought an order that the defendant cease any further investigation of the conduct of the plaintiff referred to in a document entitled "Final report" and dated 27 April 2012. Various ancillary orders, including damages, were sought in the summons.

1. In short the original summons and grounds of review are founded upon the referral of a complaint about the plaintiff to the Conduct Review Committee established on 7 June 2010 and comprised of Mr Clark, Mr Colley and Ms McKay.

1. The amended summons and amended grounds of review seek to expand the claim to encompass a further complaint about the conduct of the plaintiff. That relates to a separate referral to a separate Conduct Review Committee, established on 5 October 2010, and comprised only of Ms McKay. One of the bases of criticism of the conduct of that committee is that a "final" decision about the complaint had already been made on 10 August 2009 by the Acting General Manager of the defendant. The decision was not to refer the complaint to the committee. Again, damages are sought.

1. On 23 November 2011, the adverse finding of the second committee about the complaint regarding the plaintiff was published on the website of the defendant.

1. On 8 September 2012, local government elections were held, and the plaintiff was not re-elected.

1. It is convenient to deal with each of the orders sought in the notice of motion seriatim.

Order one

1. The plaintiff submitted that the parties, the causes of action, the issues, and the evidence very much overlap with regard to the first complaint and the second complaint of the plaintiff. Although it would have been possible for the plaintiff to commence separate proceedings with regard to the second complaint, he submitted, in reliance upon s 56 of the Civil Procedure Act 2005, that it would be much more "just, quick and cheap" for the proceedings to be heard together.

1. As for refusal to permit the amendment on the ground that the expanded complaint was unmeritorious, he submitted that the well-known tests enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 and Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 applied. In short he submitted that, whatever criticisms could be made of the second complaint, it was not "doomed to failure".

1. He accepted that, in judicial review proceedings, delay can sound against relief. But here, he submitted, any delay on the part of the plaintiff was not inordinate. And in any event, adjudication of that question was not for me; it was for the trial judge when determining the merits of the matter.

1. As for the claim for damages, he submitted that, whilst that relief is seldom granted in proceedings founded upon judicial review, it will not inevitably fail.

1. With regard to new rules contained in the Uniform Civil Procedure Rules 2005 that commenced on 15 March 2013, and to which senior counsel for the defendant had referred me, he submitted that they did not capture proceedings already commenced. In any event, he submitted, even if they did apply, they were, by their terms, not mandatory. Finally, he submitted that I should reject the submission of senior counsel for the defendant that those rules could retrospectively inform and strengthen the common law about delay in proceedings for judicial review.

1. Finally, he submitted that s 64 of the Civil Procedure Act is to the same effect; namely, it does not rule out the expanded claim, either directly or indirectly.

1. Senior counsel for the defendant submitted that the amendment should not be permitted by me. The delay on the part of the plaintiff, he submitted, was inordinate in a case founded upon judicial review, with regard to which proceedings are expected to be commenced promptly. He submitted that no evidence had been placed before me explaining the delay. And he submitted that I am in just as good a position as any trial judge to determine that the delay of the plaintiff means that he will not be granted relief, and that the proceedings are therefore doomed to failure.

1. He submitted that even if the rules subsequently promulgated do not in terms prohibit the claim, they certainly inform and bolster the legal principles with regard to delay upon which the defendant placed reliance.

1. He submitted that a careful reading of various judgments demonstrates that, in truth, damages cannot be a remedy in proceedings founded upon judicial review.

1. Finally, he submitted that the balance of convenience does not tell in favour of the amendment being permitted.

Determination

1. The power to permit amendments is contained in s 64 of the Civil Procedure Act and is relevantly as follows:

"64 Amendment of documents generally

(cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4)

(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(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.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

..."

1. In relation to delay and the conduct of judicial review proceedings, the Uniform Civil Procedure Rules were amended to include Part 59 on 15 March 2013. That rule is relevantly as follows:

"Part 59 Judicial review proceedings

59.1 Application

(1) This Part applies to the following proceedings for judicial review:

(a) proceedings under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court, and

(b) proceedings for or in the nature of judicial review in the Class 4 or Class 8 jurisdiction of the Land and Environment Court.

(2) This Part does not apply to proceedings commenced before the commencement of this Part.

...

59.10 Time for commencing proceedings

(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

(4) This rule does not apply to proceedings in which there is a

statutory limitation period for commencing the proceedings.

(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

..." (emphasis added)

1. I accept that there has been some delay on the part of the plaintiff. I also accept that that delay could tell against a trial judge granting the discretionary relief sought. But in accordance with the well-known test contained in Brimson v Rocla Concrete Pipes Ltd and General Steel Industries Inc v Commissioner for Railways (NSW), I am unable to be satisfied at this early stage of the proceedings that the delay on the part of the plaintiff guarantees that he cannot succeed. Nor do I consider that the length of the delay has been inordinate, and that leave should be refused on the basis that the amendment has not been sought in a timely fashion: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

1. Separately, in light of the new rules not possessing a retrospective effect, I do not consider that they can inform my decision; in any event, they are not, in their terms, mandatory or indeed inflexible.

1. It is true that the second claim is factually separate, and in theory severable, from the first claim. But the parties are identical; the relief sought is similar; and so is the evidence that underpins the two claims. I consider that the balance of convenience, and the mandate contained in ss 56 and 64(2) of the Civil Procedure Act, favours the granting of leave to amend the summons to facilitate the two complaints proceeding together.

1. Two members of the inner Bar are unable to agree about what the law is with regard to the availability of damages in proceedings founded upon judicial review. At this interlocutory stage, I am unable affirmatively to determine that those claims are doomed to fail. Certainly, the opening sentence of [172] of the judgment of Spigelman CJ in State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371, namely "[c]ompensatory damages for administrative error are available only in very limited circumstances" is suggestive that the door has been left open, albeit to a small degree. I consider that whether damages can or will be awarded to the plaintiff in the circumstances of this case should ultimately be a matter for the trial judge.

1. In short, I consider that it would be a large step for me to shut the plaintiff out of court with regard to the second claim. Separately, it would hardly be facilitative of a "just, quick and cheap" resolution of the dispute between the parties to deny the plaintiff the right to prosecute his two closely related (although not identical) claims in the same proceedings.

1. In all the circumstances, I consider that order one in the motion should be made.

Order two

1. This order was very much ancillary to order one. The bulk of the submissions of the parties were directed towards the primary question.

1. The plaintiff submitted that it was appropriate for me to make the order now. He submitted that it was not incumbent upon him to reveal the evidence upon which the second claim was based before an order is made for discovery against the defendant with regard to the second claim.

1. To the contrary, the defendant submitted that it would be inappropriate and inherently unfair if the defendant were to be called upon to "disgorge" his documents before the plaintiff had put on a single "jot" of evidence.

1. This Court has issued Practice Note SC CL 3 with regard to the provision of documents, evidence and reasons in the Administrative Law List. It is relevantly as follows:

"23. Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit."

1. It is noteworthy that Practice Note SC CL 3 contemplates that the decision-making body subject to judicial review proceedings furnish a statement that includes findings of fact "referring to the evidence or other material on which those findings were based". In contrast, what the plaintiff is seeking is the primary documents, rather than the findings of fact of the decision-maker based on those primary documents. The parties did not assist me with any authority as to whether such orders are appropriate. However, it seems clear from the terms of Practice Note CL 3 that the provision of any materials outside of the statement of reasons (including references to evidence and findings of fact) is to only occur in "exceptional circumstances".

1. I do not consider that there have been established at this stage any exceptional circumstances to warrant the imposition of the additional cost of discovery upon the defendant.

1. In short, I do not propose to make order two.

Order three

1. The usual rule is that the amending party pays the costs of the proceedings necessitated by the amendment. However, senior counsel for the plaintiff submitted that, if he were to succeed, in the face of the defendant's trenchant opposition, the plaintiff should have his costs. The defendant replied that the motion was adjourned on an earlier date on the application of the plaintiff. The plaintiff responded that that was the first return date of the notice of motion, and it is not the usual practice of this Court for such matters to be heard on that date.

1. In light of the resistance of the defendant, which extended over two hearing days, I consider that the usual approach should be varied in favour of the plaintiff. On the other hand, and bearing in mind the failure of the plaintiff with regard to order 2, I do not consider that the plaintiff should have his discrete costs of the motion. In the circumstances, as a matter of discretion I consider that the costs of the motion should be costs in the cause.

Orders

1. I make the following orders:

(1)   The plaintiff is granted leave to rely on the Amended Summons and Amended Grounds of Review in the form attached to the notice of motion filed 7 January 2013 and marked "A".

(2)   The plaintiff is to file the Amended Summons and Amended Grounds of Review on or before 4pm 14 November 2013.

(3)   Balance of the notice of motion of 7 January 2013 dismissed.

(4)   Costs of the motion are costs in the cause.

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Decision last updated: 31 October 2013