Principal Healthcare Finance Pty Limited v Council of the City of Ryde

[2016] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation:	Principal Healthcare Finance Pty Limited v Council of the City of Ryde [2016] NSWLEC 88
Hearing dates:	8 June 2016
Date of orders:	08 June 2016
Decision date:	08 June 2016
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See [6]
Catchwords:	PRACTICE AND PROCEDURE – exercise of discretion to make an order for hearing of separate question of law in merit appeal
Legislation Cited:	Ryde Local Environmental Plan 2014, cl 4.6 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 26 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 Tuscany Farm Holdings v Hawkesbury City Council [2011] NSWLEC 18
Category:	Procedural and other rulings
Parties:	Principal Healthcare Finance Pty Ltd (Applicant) Council of the City of Ryde (Respondent)
Representation:	COUNSEL: A Whealy, Solicitor (Applicant) A Pearman (Respondent)   SOLICITORS: Mills Oakley (Applicant) Council of the City of Ryde (Respondent)
File Number(s):	16/152633

EX TEMPORE Judgment

1. I have before me an amended notice of motion dated 8 June 2016 seeking an order that a separate question be determined early in this Class 1 appeal. The parties agree that the question posed is usefully dealt with as a preliminary issue. My understanding is that the question is to be amended to state “whether cl 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 is a development standard amenable to cl 4.6 of the Ryde Local Environmental Plan 2014 or a prohibition”.

2. I have the power to make the order sought by virtue of Uniform Civil Procedure Rules 2005 r 28.2 which provides expressly for a question of law to be separately determined.

3. I have before me an affidavit of Mr Kapetas sworn 2 June 2016 which identifies some material facts relevant to the matter. To the extent the question is one of mixed fact and law, the parties have informed me they can agree a statement of facts and I accept that is the case.

4. In Tuscany Farm Holdings v Hawkesbury City Council [2011] NSWLEC 18, I set out the relevant principles which can be considered in such applications at [7]. In Dial a Dump Industries Pty Ltd v Roads and Maritime Services [2015] NSWLEC 172 at [30]-[36] Pepper J usefully updated the principles I referred to in the earlier judgment by reference to the decision of the New South Wales Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182. At [87], [88], [91] and [92] Ward JA (in the majority) stated:

[87]   In Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215, Einstein J (at [7]) summarised the applicable principles when considering an application for the separate determination of an issue made under the former Pt 31, r 2, of the Supreme Court Rules 1970 (NSW) (those principles being equally applicable to the exercise of discretion under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW):Pioneer Park Pty Ltd v ANZ Banking Group Ltd [2005] NSWSC 832; Matrix Film Investment One Pty Ltd v Alameda Films LLC [2007] NSWSC 523). In so doing, his Honour noted, among other things, that the court is enjoined to give effect to the overriding statutory purpose provided for under the applicable court rules and that the court begins with the proposition that it is ordinarily appropriate that all issues in the proceedings should be disposed of at the one time (Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130).

[88]   One set of circumstances in which his Honour noted that the separate determination of an issue might prove to be an appropriate procedure was “where the resolution of that separate issue will have the effect of resolving the entirety of the litigious controversies or of substantially narrowing the field of litigious controversy” (his Honour there citing CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 606 per Kirby P and Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671 per Young CJ and Jenkinson J).

…

[91]   In various authorities, caution has been advocated in the exercise of such a power (such as Perre v Apand Pty Ltd (1999) 198 CLR 180 at [436] per Callinan J; Allstate Explorations NL v Beaconsfield Gold NL [1999] NSWSC 832 at [24] per Santow J, as his Honour then was; Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168] per Kirby and Callinan JJ; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [112]-[113] per Young CJ in Eq, as his Honour then was). In Idoport, Einstein J noted the reason for such caution in the following passage:

The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings [his Honour there citing Tallglen Pty Ltd v Pay TV Holdings Pty Ltd; Parramatta Stadium Trust v Civil and Civic (unreported, Supreme Court, NSW, Hunter J, No 55043/95, 27 August 1996) and Century Medical Inc v THLDLtd [2000] NSWSC 5].

(Emphasis added)

[92]   However, it has also been recognised that if the separate determination of particular discrete issues may achieve economies in time and expense in the resolution of the proceedings or obviate the necessity for a trial on all issues then it may be both appropriate and desirable for there to be such an order (Flore v NSW Department of Education and Training [2006] NSWSC 1227 at [32]; Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [6]; Stewart v Ronalds [2009] NSWSC 455; Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213; 85 LGERA 37 – though in the last case the order for separate determination was by consent).

5. It is clear that the separate question in this case raises a critical matter. The determination of the question posed here is dispositive of the matter. If the relevant clause is a prohibition the Applicant’s development cannot proceed any further. The matter can be dealt with expeditiously using a statement of agreed facts. In such circumstances, there will clearly be anticipated savings in time and expense in relation to a final merit hearing.

Order

6. The Court orders that:

1. Leave is granted for the following preliminary question of law to be determined by the Court in the first instance:

(a) Whether clause 26 of the State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 is a development standard amenable to clause 4.6 of the of Ryde Local Environmental Plan 2014 or a prohibition.

2. The matter is listed for a one day hearing for the determination of the preliminary question of law on 5 August 2016.

3. The parties are to file and serve any Statement of Agreed Facts by 22 July 2016.

4. The parties are to file and serve an agreed Bundle of Documents by 22 July 2016.

5. The Council is to file and serve written submissions by 25 July 2016.

6. The Applicant is to file and serve written submissions by 29 July 2016.

7. The parties are to notify the Court promptly if there is any material slippage in the timetable.

8. The parties have liberty to restore the matter to the list on 2 days’ notice.

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Decision last updated: 25 July 2016