Oshlack v Rous Water

Case [2013] NSWCA 169

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Oshlack v Rous Water [2013] NSWCA 169
Hearing dates:30 April 2013
Decision date: 12 June 2013
Before: Emmett JA at [1];
Gleeson JA at [21];
Preston CJ at LEC at [201]
Decision:

1. Grant leave to the appellant to amend Ground 1 of the second further amended notice of appeal in the terms of his oral application on 30 April 2013.

2. Appeal dismissed.

3. Appellant to pay the respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - grounds of review - validity of decision to construct and operate fluoride dosing plants - constructive failure to exercise jurisdiction - whether there was a misconception about the duty imposed on the decision maker

COSTS - costs discretion - whether discretion miscarried - whether decision of primary judge involved error
Legislation Cited: Environment Planning and Assessment Act 1979
Environmental Planning and Assessment Act Regulation 2000
Fluoridation of Public Water Supplies Act 1957
Interpretation Act 1987
Land and Environment Court Act 1979
Local Government Act 1993
Cases Cited: Craig v South Australia [1995] HCA 58; 184 CLR 163
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Guthega Development Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638
Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323
Notaras v Waverley Council [2007] NSWCA 333;161 LGERA 230
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; 165 IR 7
Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCCA 196; 46 NSWLR 598
Ward v Williams (1955) 92 CLR 496
Category:Principal judgment
Parties: Al Oshlack (Appellant)
Rous Water (First Respondent)
Ballina Shire Council (Second Respondent)
Lismore City Council (Third Respondent)
Representation: Counsel:
J Johnson (Appellant)
N J Williams SC; V M Bosnjak (Respondents)
Solicitors:
Robert Balzola and Associates (Appellant)
Ashurst Australia (First and Second Respondents)
File Number(s):CA 2012/178722
 Decision under appeal 
Jurisdiction:
9106
Citation:
[2012] NSWLEC 111 (16 May 2012); [2012] NSWLEC 132 (7 June 2012)
Before:
Pepper J
File Number(s):
40570/2010

Judgment

  1. EMMETT…

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AGLC
Oshlack v Rous Water [2013] NSWCA 169
Case
[2013] NSWCA 169
Decision Date

CaseChat Overview and Summary

The appellant, Mr. Oshlack, sought judicial review of a decision by Rous Water to construct and operate fluoride dosing plants. The primary judge dismissed Mr. Oshlack's application, and he appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in dismissing Mr. Oshlack's application for judicial review, and whether Rous Water had constructively failed to exercise its jurisdiction by labouring under a misconception about the duty imposed on it as a decision-maker. The appeal also concerned the costs discretion exercised by the primary judge.

The Court of Appeal found that the primary judge had not erred in dismissing the application. It was held that Rous Water had not constructively failed to exercise its jurisdiction, as there was no evidence that it had misunderstood its legal duties. The court affirmed the principles of administrative law concerning the grounds for judicial review and the circumstances in which a decision-maker might be found to have constructively failed to exercise their jurisdiction.

Consequently, the Court of Appeal dismissed the appeal and ordered Mr. Oshlack to pay the respondents' costs. Leave was granted to the appellant to amend Ground 1 of his notice of appeal.

Orders

Orders of the court

1. Grant leave to the appellant to amend Ground 1 of the second further amended notice of appeal in the terms of his oral application on 30 April 2013.

2. Appeal dismissed.

3. Appellant to pay the respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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