Moore v Kiama Council

[2010] NSWLEC 1045

Land and Environment Court

of New South Wales

CITATION:	Moore v Kiama Council [2010] NSWLEC 1045
PARTIES:	APPLICANT G Moore RESPONDENT Kiama Council
FILE NUMBER(S):	10279 of 2009
CORAM:	Moore SC
KEY ISSUES:	DISCRETION - PRACTICE AND PROCEDURE :- Application to re-open
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
CASES CITED:	Moore v Kiama Council [2009] NSWLEC 1362 Autodesk Inc and another v Dyason and others (1993) 176 CLR 300
DATES OF HEARING:	24 February 2010
EX TEMPORE JUDGMENT DATE:	24 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister INSTRUCTED BY Access Law Group RESPONDENT Mr M Seymour, barrister INSTRUCTED BY RMB Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore SC

24 February 2010

10279 of 2009 Moore v Kiama Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: This Notice of Motion is an application made by the development proponent in the proceedings seeking to reopen the proceedings to deal with matters relating to development contributions levied pursuant to s 94 of the Environmental Planning and Assessment Act 1979 (the Act) by Kiama Council (the council) as part of the development consent granted by me in orders of the Court made in the decision given on 2 November 2009 (see Moore v Kiama Council [2009] NSWLEC 1362). Subsequent to the decision of 2 November 2009, the matter was mentioned before me on 24 November.

2 During the course of those proceedings which were conducted with Mr Doyle, counsel for the applicant, being present and Mr Moggach, solicitor then appearing for the respondent, appearing by telephone, there was a discussion concerning matters relating to s 94 contributions.

3 I have obtained (and had arranged for the Court to provide to the representatives of the parties) a copy of the two and a half page transcript of that mention. I am satisfied that, from page 1 line 40 onward, it makes it clear that the position that was arrived at, by the middle of the second page, where I indicated that I was prepared to deal with the matter of s 94 contributions further, was confined to two circumstances.

4 The first was the correction of any purely arithmetical and agreed errors that might have been made (and to do so pursuant to the "slip rule"), and second, if there were any disputes concerning the calculations of the s 94 contributions, to permit that to be dealt with by filing of a Notice of Motion without requiring a further application pursuant to the Act. I based that on my understanding of Pt 36 r 15 of the Uniform Civil Procedure Rules 2005. I indicated that I did not need an order to be made then for those purposes.

5 In this Notice of Motion, however, the applicant seeks to reopen the proceedings not merely to deal with a calculation or arithmetical amounts but to deal with issues relating substantially to the appropriateness or otherwise, using that expression in a very general sense, of the s 94 contributions plan itself. Those concerns are set out in considerable and precise detail in a letter from Mr Doyle’s now instructing solicitor, he being retained after the decision in November and the further mention toward the end of November, with that letter being annexed to an affidavit by Mr Dyson, that solicitor, in these proceedings.

6 Although these types of proceedings are ones where there is no finality to litigation (in the sense that it is possible for further development applications to be made or modification applications to be made with respect to a particular property), nonetheless I consider that I am bound by the strictures of the High Court contained in the decision of Autodesk Inc and another v Dyason and others (1993) 176 CLR 300 where it is clear both from the remarks of the judges of the High Court in the majority together with relevant remarks of the then Chief Justice (who was in dissent) that leave to reopen, although made by application prior to the perfection of orders in the proceedings, should be granted but rarely and – effectively in the interests of justice and seeking certainty within particular proceedings – should only be granted under circumstances where a party was able to demonstrate that, for the purposes of this case at least, they had not been able to agitate the matters that they now wished to have dealt with during the course of the original proceedings.

7 That is not the circumstances that presently arise. Although there had been a change of representation between the time the proceedings were originally commenced in May 2009 when Mr Moore, the applicant in the proceedings, was represented by Mr Creighton as an agent, with that representation subsequently being transferred (at a time I am not able to readily ascertain immediately from the Court file) to Mr Macdonald of McGuire and McInerney Lawyers, I have no information, on any evidentiary basis before me, to explain why the matters of s 94 contributions plans merits [as opposed to calculation] were not raised during the course of the appeal.

8 I accept that Mr Doyle was retained late in the piece and I am not making any criticism of him or his preparation for the initial hearing by making those remarks. I am simply indicating that I have no evidence with respect to that upon which I could be satisfied that the test posed by the High Court has been met.

9 When the motion was first dealt with earlier today, I adjourned the matter to permit Mr Doyle to seek instructions as to whether he wished to put on any further material to deal with that evidentiary matter. He has informed me, on the resumption of the hearing, that his client does not wish to take advantage of that offer (and I make no criticism of that election). However, it does not leave me with any basis upon which I could determine, consistent with what the High Court has said, that it would be appropriate to permit these matters to be reopened – acknowledging, as I do, that that will not preclude Mr Moore from bringing further proceedings in a different form that will enable the matters to be heard and determined by the Court – whether by me or by some other member of it.

10 As a consequence I am satisfied that there is no basis upon which I can grant the Notice of Motion and it is dismissed.

Tim Moore
Senior Commissioner