Nara Lounge Pty Limited v Hurstville City Council

[2015] NSWLEC 1560

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nara Lounge Pty Limited v Hurstville City Council [2015] NSWLEC 1560
Hearing dates:	20 March 2015
Date of orders:	20 March 2015
Decision date:	20 March 2015
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	Subpoena set aside, costs of the motion as agreed or assessed
Catchwords:	SUBPOENA – application to set aside subpoena to attend – subpoena to assessing officer – evidence of assessing officer not relevant to merit appeal
Legislation Cited:	Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Land and Environment Court Rules 2007
Category:	Procedural and other rulings
Parties:	Nara Lounge Pty Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel:     Solicitors: Emprise Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10916 of 2014
Publication restriction:	No

judgment ON NOTICE OF MOTION

1. REGISTRAR: These proceedings concern an appeal by the applicant against the respondent's refusal to modify the development consent granted by the respondent in June 2014 for the use of premises as a restaurant and food kiosk. The modification application seeks to increase the number of seats from 60 to 250, together with a consequential increase to the waste facilities room.

2. The hearing of these proceedings is listed for Monday 23 and Tuesday 24 March, with today being the last business day before that hearing.

3. In preparing for the hearing, the applicant requested the issue of a subpoena to Ms Paula Bizimis (incorrectly referred to in the subpoena as Ms Pauline Bizimis), Hurstville Council Senior Development Officer.  That subpoena requires the attendance of Ms Bizimis to give evidence at the hearing and was issued on 9 March.  The present application, made by the respondent by Notice of Motion filed on 16 March 2015, seeks to set aside that subpoena.

4. By way of background, Ms Bizimis was the council officer who prepared the report in relation to the assessment of the modification application.  That assessment report was provided to the Ordinary Council Meeting.  Notwithstanding that her report recommended approval of the modification, the Council determined to refuse the application.  These proceedings were then commenced and the Council engaged two experts to provide evidence in relation to traffic and planning issues.  The Statement of Facts and Contentions filed in the proceedings on 19 December 2014 assert that there is insufficient information for an assessment of the modification application.

5. Particulars are provided of that contention and those particulars outline the precise matters that the Council says ought to be addressed in order for the Court to conduct its assessment of the modification application. Other contentions raised in these proceedings relate to whether the development, as modified by the modification application, is substantially the same as the original development consent, as well as issues in relation to the public interest of the modification application, and the adequacy of parking. Joint reports have been filed in relation to both town planning and parking.

Submissions

6. The applicant submits that it is appropriate for the subpoenaed party to attend to give evidence in order to cross‑examine her in relation to a contention raised by the Council regarding insufficient information.  The applicant says that Ms Bizimis was engaged in lengthy discussions as the modification application was being considered by the Council in relation to additional information that was required by her to conduct her assessment of the modification application.

7. The respondent submits that the expert opinion of an assessing officer on the modification application is irrelevant to the Court's determination of the modification application.  In that regard, the respondent indicates that, given the nature of proceedings in Class 1 of the Court's jurisdiction (that is, that there is a hearing de novo), the opinion of an assessing officer is irrelevant to the Court's consideration.

8. Further, the respondent submits that the opinion of Ms Bizimis as a town planner cannot be relied on by either party as expert evidence given that they have nominated other experts in the proceedings and that expert evidence has been provided in the form of joint reports and in accordance with the rules.

9. Ms McCullan, who appears on behalf of the respondent today, has also indicated that the assessment report is provided in the Council's bundle of documents as a historical document only, and that no party can rely on that report in putting it before the Court for the Court's determination.

Consideration

10. In circumstances where the Council's assessing officer has not given expert evidence in the proceedings, I cannot accept that a subpoena to that officer to attend to give evidence is necessary or relevant to the issues that will be for the Court's determination.

11. The applicant's submission that it is entitled to test Ms Bizimis in relation to the assessment of the modification application, and the adequacy of the information provided in support of the modification application when it was before the Council, is based on a fallacy that her opinion on the compliance and assessment of the application by the Council can be taken into account by the Court in its consideration of the modification application.

12. Such an approach mistakes the role of the Court in proceedings of this nature. It is important to recognise that, in considering an appeal against the determination of a modification application, the Court does not turn its mind to the opinions outlined in the original assessment of the application; rather, the Court exercises a merits review function pursuant to s 39 of the Land and Environment Court Act.  At subs (2) and (3), this section provides:

(2)     In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)     An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."

13. The Court must, therefore, perform its own assessment of the modification application and form its own opinion in relation to its acceptability, including whether there is insufficient information before it to make a determination in favour of granting the modification application. In doing so, it can consider the evidence of the opinion of experts given in accordance with Part 31 of the Uniform Civil Procedure Rules.  The inclusion of the assessment report in the bundle of documents is to provide a background to the proceedings and to give the history of the consideration of the modification application before the Council.  It is not relevant to the function of the Court in performing its own assessment of the application.

14. Whilst the contentions raised by the respondent set out the parameters for the consideration of the modification application, it is entirely a matter for the Court to make an assessment and determination of the modification application.  The fact that a council officer, assessing the modification application, may have considered that they had all necessary information to determine the application has no bearing whatsoever on the Court's consideration of the information before it.

15. In light of this, I cannot accept that there is any basis upon which it would be relevant or necessary for Ms Bizimis to give evidence in the proceedings. I am, therefore, of the view that a subpoena requiring her attendance is not necessary and can be considered an abuse of process and liable to be set aside.

16. Therefore, I am of the view that I ought to and I will make order  1 of the Notice of Motion filed on 16 March.

Costs

17. The power to order costs in Class 1 of the Court's jurisdiction arises pursuant to r 3.7 of the Land and Environment Court Rules, and that rule provides that the Court is not to make an order for costs unless it is fair and reasonable to do so.  That rule is based on a principle that parties should not be discouraged from bringing Class 1 proceedings for fear of an adverse costs order.

18. However, I am of the view that where a party takes a step in the proceedings in Class 1 of the Court's jurisdiction that is not a usual step, and that costs are incurred as a result, that the usual principles in relation to costs that follow the event should apply.  That is, the applicant has taken the step of issuing a subpoena to the Council's assessing officer and I have today determined that that was not an appropriate step. The respondent has therefore been put to the costs of putting on a Notice of Motion to set that subpoena aside.

19. In light of that, I am prepared to make an order for costs in favour of the respondent.

20. I, therefore, make order 2 of the Notice of Motion filed on 16 March that the applicant pay the respondent's costs of the motion as agreed or assessed.

21. The orders of the Court are therefore that:

1. The subpoena to attend to give evidence issued by Nara Lounge Pty Ltd to Pauline (sic) Bizimis issued 9 March 2015 is set aside.

2. The applicant pay the respondent’s costs of the motion as agreed and assessed.

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Decision last updated: 08 January 2016