McCLURE v Tyzack

Case •

[2008] WASC 164

•

8 AUGUST 2008

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   McCLURE -v- THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING [2008] WASC 164

CORAM:   BEECH J

HEARD:   ON THE PAPERS

DELIVERED          :   8 AUGUST 2008

FILE NO/S:   CIV 1644 of 2007

BETWEEN:   MALCOLM McCLURE

First plaintiff

ANTHONINA BUTLER
Second plaintiff

SUSAN CHILDS
Third plaintiff

GWENDOLINE DARCH
Fourth plaintiff

NEIL DARCH
Fifth plaintiff

DIBA DURMANICH
Sixth plaintiff

MARGARET HATZISTAVRIDI
Seventh plaintiff

BARBARA KING
Eighth plaintiff

KIRSTY MacDONALD-ORCHARD
Ninth plaintiff

ELAINE McNEILL
Tenth plaintiff

CORAL ANN MULLINS
Eleventh Plaintiff

ALAN PEARCE
Twelfth plaintiff

JANET PEARCE
Thirteenth plaintiff

RAPHAEL PEARCE
Fourteenth plaintiff

CONNIE PICKERING
Fifteenth plaintiff

MICHELE RAMSDEN
Sixteenth plaintiff

LASANTA TILK
Seventeenth plaintiff

BERYL TURNER
Eighteenth plaintiff

AND

THE MAYOR AND COUNCILLORS OF THE CITY OF STIRLING
First defendants

CITY OF STIRLING
Second defendant

RANGERS AND OFFICERS OF THE CITY OF STIRLING
Third defendants

GRAHAM MARRIOTT
Fourth defendant

WESTERN AUSTRALIAN PLANNING COMMISSION
Fifth defendant

MINISTER FOR PLANNING AND INFRASTRUCTURE
Sixth defendant

DEPARTMENT OF PLANNING AND INFRASTRUCTURE (ABN 61 313 082 730)
Seventh defendant

Catchwords:

Practice and procedure - Application to amend - Whether proposed amendments disclose arguable ground for relief - Application for interlocutory injunction - Intention to adduce oral evidence - Usual practice for evidence by affidavit - Whether grounds to depart from usual practice

Legislation:

Nil

Result:

Application to amend refused
Leave to adduce oral evidence refused

Category:    B

Representation:

Counsel:

First plaintiff                  :     No appearance

Second plaintiff             :     No appearance

Third plaintiff                :     No appearance

Fourth plaintiff               :     No appearance

Fifth plaintiff                  :     No appearance

Sixth plaintiff                 :     No appearance

Seventh plaintiff             :     No appearance

Eighth plaintiff               :     No appearance

Ninth plaintiff                 :     No appearance

Tenth plaintiff                :     No appearance

Eleventh Plaintiff            :     No appearance

Twelfth plaintiff             :     No appearance

Thirteenth plaintiff          :     No appearance

Fourteenth plaintiff         :     No appearance

Fifteenth plaintiff            :     No appearance

Sixteenth plaintiff           :     No appearance

Seventeenth plaintiff       :     No appearance

Eighteenth plaintiff         :     No appearance

First defendants             :     No appearance

Second defendant          :     No appearance

Third defendants           :     No appearance

Fourth defendant           :     No appearance

Fifth defendant              :     No appearance

Sixth defendant              :     No appearance

Seventh defendant         :     No appearance

Solicitors:

First plaintiff                  :     In person (Ms D Durmanich & Ms E McNeill)

Second plaintiff             :     In person (Ms D Durmanich & Ms E McNeill)

Third plaintiff                :     In person (Ms D Durmanich & Ms E McNeill)

Fourth plaintiff               :     In person (Ms D Durmanich & Ms E McNeill)

Fifth plaintiff                  :     In person (Ms D Durmanich & Ms E McNeill)

Sixth plaintiff                 :     In person

Seventh plaintiff             :     In person (Ms D Durmanich & Ms E McNeill)

Eighth plaintiff               :     In person (Ms D Durmanich & Ms E McNeill)

Ninth plaintiff                 :     In person (Ms D Durmanich & Ms E McNeill)

Tenth plaintiff                :     In person

Eleventh Plaintiff            :     In person (Ms D Durmanich & Ms E McNeill)

Twelfth plaintiff             :     In person (Ms D Durmanich & Ms E McNeill)

Thirteenth plaintiff          :     In person (Ms D Durmanich & Ms E McNeill)

Fourteenth plaintiff         :     In person (Ms D Durmanich & Ms E McNeill)

Fifteenth plaintiff            :     In person (Ms D Durmanich & Ms E McNeill)

Sixteenth plaintiff           :     In person (Ms D Durmanich & Ms E McNeill)

Seventeenth plaintiff       :     In person (Ms D Durmanich & Ms E McNeill)

Eighteenth plaintiff         :     In person (Ms D Durmanich & Ms E McNeill)

First defendants             :     McLeods

Second defendant          :     McLeods

Third defendants           :     McLeods

Fourth defendant           :     McLeods

Fifth defendant              :     State Solicitor for Western Australia

Sixth defendant              :     State Solicitor for Western Australia

Seventh defendant         :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

  1. BEECH J:  There are two issues before me.  I will deal with them in turn.

  2. The issues emerged at a directions hearing on 19 June 2008.  Directions were made for the exchange of submissions and for the issues to be determined at a hearing on 24 July 2008.  However, on 24 July 2008 the plaintiffs sought an adjournment.  At this hearing I granted leave to the plaintiffs to file submissions in reply to the defendants' written submissions.  Thus I have determined the issues on the papers.

Application to amend originating motion

  1. The plaintiffs apply to amend their notice of originating motion to add three paragraphs.

  2. The present form of the notice of originating motion is that filed on 10 April 2008.

  3. It is necessary, for present purposes, to refer only to some of the paragraphs of the notice of originating motion.

  4. Applications 5 to 9 relate to a proposed amendment, termed amendment 458, to the City of Stirling District Planning Scheme (the scheme).

  5. Applications 5 and 6 complain that the council of the City of Stirling erred in putting amendment 458 on the agenda for the council meeting of 19 June 2007, and also erred in passing that amendment.  In each case, the complaint is that amendment 458 should not have been put on the agenda and should not have been passed in the face of assertions of fact, submissions or objections by certain councillors that the community consultative process (CCP) in regard to amendment 458 was flawed.

  6. Application 7 complains of the exercise by the mayor of a second casting vote in favour of the resolution supporting amendment 458. In so voting, the mayor acted in accordance with s 5.21(3) of the Local Government Act 1995.  The plaintiffs say that that section is 'ultra vires'.

  7. Applications 8 and 9 seek interlocutory and final injunctive relief respectively in relation to the complaints made in applications 5, 6 and 7.

  8. The plaintiffs apply to amend the notice of originating motion to add applications 10, 11 and 12 in the following terms:

Application 10.

In this Originating Motion the word 'flawed' is used in relation to the community consultative process (CCP):

The Plaintiffs apply that for the purposes of this matter that the word 'flawed' as used shall have the meaning of 'incumbered with or containing one or more defects or faults, which faults in the opinion of a reasonable man, are sufficient to invalidate the CCP.'  and seek a ruling to this effect.

Application 11.

That the court make a ruling that councillors whilst acting in the exercise of their public office are:

a) vested with authority and a duty to receive and consider information's regarding the integrity and validity of the CCP regarding Amendment 458.

b) vested with authority to form a public opinion or decision on the integrity and validity of the CCP regarding Amendment 458 based upon informations received by them.

c) vested with authority, declare their opinion or decision of whether or not the CCP regarding Amendment 458 is flawed, and to so declare either in a Full Council Meeting or in the public.

d) vested with authority and a duty in a Full Council Meeting to consider and to not set aside or disregard substantiated informations alleging that Amendment 458 is flawed, when such allegations are put by one or more councillors at a meeting of the Full Council.

Application 12.

That the court, upon hearing the evidence, make a ruling that the Community Consultative Process regarding Amendment 458 is flawed.

  1. The principles relevant to the exercise of the discretionary power to permit amendments to pleadings are set out in Butterworths, Civil Procedure Western Australia [21.5.3] ‑ [21.5.4A]. The same principles apply to an application to amend an originating motion: O 26 r 6 Rules of the Supreme Court 1971 (WA). An amendment ought not be allowed if it does not disclose any arguable cause of action or ground for relief.

Application 10

  1. In substance, by application 10 the plaintiffs seek to insert a definition of the word 'flawed'.  The definition they propose refers to the presence of defects which in the opinion of a reasonable man are sufficient to invalidate the CCP.  In support of their application to amend the plaintiffs say that they should be permitted to define the word 'flawed', a word which is used by the plaintiffs in applications 5 and 6.

  2. Insofar as application 10 seeks to provide a definition of the word 'flawed' in the context of applications 5 and 6, I do not accept the plaintiffs' submissions.  The substance of applications 5 and 6 is that the proposed amendment to the scheme should not have been placed on the agenda or passed at the council meeting on 19 June 2007 in the face of assertions of fact, submissions or objections by councillors of the City of Stirling to the effect that the CCP was flawed.  The question to which applications 5 and 6 give rise is whether the existence of the assertions, submissions or objections, to the effect that the CCP was flawed, meant that the amendment should not have been placed on the agenda or passed.  In the context of applications 5 and 6 there seems to me to be no occasion, or necessity, for a definition of 'flawed'.

  3. Further, there seems to me to be considerable difficulties with the definition of 'flawed' that is proposed in application 10.  The definition directs attention to faults which 'in the opinion of a reasonable man are sufficient to invalidate the CCP'.  It seems to me that, in this context, the opinion of a reasonable man as to the validity or invalidity of the CCP is of no moment.  There is no legal rule or principle which directs attention to the views of the reasonable man in determining an issue of validity in the present context.

  4. The definition of 'flawed' proposed in application 10 is also intended by the plaintiffs to control the meaning of that word in proposed application 12.  By application 12, the plaintiffs apply for a 'ruling' that the CPP was flawed.  Certainly, if application 12 were to be permitted, one might require a definition of 'flawed' in that context.  However, for reasons to be given shortly, I would not allow an amendment in terms of proposed application 12.  The definition offered in application 10 does not support any arguable claim in application 12.

  5. For these reasons, I would not permit an amendment in terms of proposed application 10.

Application 11

  1. By proposed application 11 the plaintiffs seek that the court 'make a ruling' that councillors are vested with certain authorities and duties.  The high water mark of the authorities and duties sought to be alleged by the plaintiffs is the duty contained in subparagraph (d).  By this subparagraph the plaintiffs claim councillors have a duty 'to consider and to not set aside or disregard substantiated informations alleging that amendment 458 is flawed when such allegations are put by one or more councillors at a meeting of the full council.'

  2. It seems to me that the plaintiffs' submissions in support of the amendment make it clear that application 11 is founded upon contentions which will form part of the submissions of the plaintiffs in support of grounds 5 and 6.  The amendments proposed in application 11 do not seem to me to add anything to what is already contained in the existing notice of originating motion.

  3. For these reasons, I would not allow an amendment to add application 11.

Application 12

  1. Application 12 seeks that the court 'make a ruling' that the community consultative process regarding amendment 458 was flawed.

  2. In their primary submissions the plaintiffs say, in substance, that the grounds in support of application 12 are applications 5 and 6.  (There is also reference to application 7 but that seems to be an error in that application 7 does not relate to the CCP at all.)

  3. The plaintiffs' primary submissions state that in considering whether to grant injunctive relief, the court should determine whether the CCP was flawed.

  4. Although it is not entirely clear, the plaintiffs' submissions in reply dated 30 July 2008 appear to suggest that application 12 is also relied upon as an independent ground for relief.

  5. Applications 5 and 6 require, as I have said, determination of whether the amendment should have been placed on the agenda or passed in the face of the existence of assertions of fact, submissions or objections to the effect that the CCP was flawed.  It is not, the fifth, sixth and seventh defendants say, in dispute that assertions, submissions and objections to the effect that the CCP was flawed were before the councillors prior to the decision on 19 June 2007.

  6. The resolution of applications 5 and 6 would not, in my opinion, be materially assisted by the addition of application 12.

  7. As to application 12 as an independent ground of relief, the plaintiffs make no submissions as to what legal consequence might flow from a conclusion that the CCP was 'flawed'.  I am unable to identify any such legal consequences.

  8. That is so whether 'flawed' is given the defined meaning in proposed application 10, or not.

  9. In other words, there is, in my opinion, no utility in application 12 because a conclusion that the CCP was flawed would not have identified legal consequences.

  10. In my opinion, for the reasons given, had applications 10, 11 and 12 been included in the original notice of originating motion, those paragraphs would have been liable to be struck out.

  11. For these reasons, I would not permit an amendment in terms of application 12.

  12. That brings me to the plaintiffs' stated intention to adduce oral evidence in support of their application for an interlocutory injunction.

Oral evidence

  1. On 5 May 2008, at a directions hearing relating to the plaintiffs' interlocutory injunction application, I ordered that the plaintiffs file and serve all affidavits upon which they intend to rely by 20 May 2008.  The plaintiffs did not comply with that order.

  2. On 23 May 2008, I ordered that the plaintiffs file and serve all affidavits upon which they intend to rely by 6 June 2008.

  3. A further directions hearing relating to the interlocutory injunction application was heard by me on 19 June 2008.  In the course of the directions hearing it emerged that the plaintiffs wished to call witnesses to give oral evidence at the hearing of their application for an interlocutory injunction.  Prior to that, I had proceeded on the basis of an understanding that the plaintiffs intended, in accordance with the almost invariable practice of this court, to rely solely upon affidavit evidence in support of their application for an interlocutory injunction.

  4. On 19 June 2008 I ordered that the plaintiffs file and serve a list of witnesses from whom they proposed to adduce oral evidence and, in respect of each witness, a statement setting out in detail the substance of the evidence proposed to be adduced.

  5. The plaintiffs have provided a schedule of witnesses for the interlocutory injunction proceedings, identifying seven witnesses whom they propose to call.  The schedule does not, as required by my order of 19 June 2008, set out in detail the substance of the evidence proposed to be adduced from each witness.  Rather, it identifies the general topics that the evidence to be adduced from the witnesses is said to include.  In their submissions in reply dated 30 July 2008, the plaintiffs have explained that they have given as much detail as they can, given the limited information available to them.

  6. The almost invariable practice of this court is for interlocutory applications, including applications for interlocutory injunctions, to be determined on affidavit.  There seem to me to be very good reasons for this practice.  In the context of an application for an interlocutory injunction, there are, generally at least, considerable advantages in efficiency for both the parties and the court in the preparation and hearing of the case where evidence is on affidavit rather than given orally.

  7. Of course, in some circumstances, a different approach may be appropriate.  For example, an application for an interlocutory injunction may be of such urgency that it is not practicable to prepare an affidavit.

  8. In my opinion, good reasons are required to depart from the almost invariable practice of the court in this respect.

  9. I am not satisfied that the plaintiffs have established sufficient reason to warrant departure from the usual practice of the court.

  10. By their submissions dated 30 July 2008 the plaintiffs press their application to call oral evidence from four persons, each of whom is a councillor of the City of Stirling.  Those four persons are stated to be unwilling to provide affidavits.  The topics on which their evidence is to be given are identified only at a high level of generality.  I am not satisfied that evidence on the topics listed is of sufficient significance to the applications to warrant allowing evidence to be given orally.  Further, as I have said, the plaintiffs say in their reply submissions that their schedule gives as much detail as is known to them.  That suggests that more precise information as to what the witnesses will say on the identified general topics is not known to the plaintiffs.

  11. Further, insofar as the plaintiffs propose to issue a subpoena to compel a witness to attend to give evidence on the interlocutory application, leave of the court is required.  That is because leave is required if the return date is any date before trial:  see O 36B r 2(6).  For the reasons already stated I would not grant that leave.

  12. For those reasons I would direct that all evidence on the plaintiffs' application for an interlocutory injunction be by affidavit.  Further, if the plaintiffs intend to rely on any affidavits in addition to those already filed, any further affidavits should be filed and served by 21 August 2008.

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