Regional Express Holdings Ltd v Dubbo City Council (No 2)
[2013] NSWLEC 113
•23 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113 Hearing dates: 19 July 2013 Decision date: 23 July 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The Court determines that r 59.10 of the Uniform Civil Procedure Rules 2005 does not apply to these proceedings for judicial review of the respondent's decision of 22 October 2012, but, if it does apply, the time for commencing these proceedings in relation to that decision is extended to the date of filing of the summons. (2) The respondent is to serve on the applicant a written statement of the reasons for its decisions of 22 October 2012 and 25 February 2013 by 6 September 2013. Such reasons are to be to the best of the knowledge, information and belief of the respondent or the person providing the statement on its behalf. (3) Leave is granted to the applicant to file an amended summons in the form annexed to its notice of motion filed on 21 June 2013 by 24 July 2013. (4) The costs of the applicant's notice of motion filed on 21 June 2013 are costs in the cause. (5) The exhibits may be returned.
Catchwords: JUDICIAL REVIEW - motion under r 59.10 of Uniform Civil Procedure Rules 2005 to extend time to commence judicial review proceedings, to provide reasons for challenged decisions under r 59.9, and to amend summons - whether Part 59 of UCPR applied retrospectively to an earlier administrative decision. Legislation Cited: Local Government Act 1993 ss 608, 610D, 610F
Land and Environment Court Rules 2007 r 4.3(b)(iv)
Civil Procedure Rules 1998 (UK) rr 54.4, 54.5 and 3.1(2)(a)
Uniform Civil Procedure Rules 2005 rr 54, 59
Land and Environment Court Practice Note - Class 4 Proceedings
Supreme Court Practice Note SC CL 3Cases Cited: Charlton v Moore (No 2) [2009] NSWLEC 47
Egan v Cudgegong (Abattoir) County Council (1973) 1 NSWLR 222
Habib v Nationwide News Pty Ltd [2006] NSWCA 14, (2006) 65 NSWLR 264
Hooper v Port Stephens Council [2010] NSWLEC 41
Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261
Patsalis v Attorney General of NSW [2013] NSWCA 98
Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515
Shellharbour City Council v Minister for Planning [2011] NSWLEC 59
Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
Yrttiaho v Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228Texts Cited: Aronsen and Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters
Southey, Weston & Bunting, Judicial Review, 2nd ed (2013) Jordan Publishing Ltd
Supperstone, Goudie & Walker, Judicial Review, 4th ed (2005) LexisNexis
White Book 2013 (UK)Category: Procedural and other rulings Parties: Regional Express Holdings Limited (Applicant)
Dubbo City Council (Respondent)Representation: COUNSEL:
M Henry (Applicant)
J Atkin (Respondent)
SOLICITORS:
Mills Oakley (Applicant)
Booth Brown Samuels & Olney (Respondent)
File Number(s): 40372/13
Judgment
This is a notice of motion by the applicant for an order under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (UCPR) extending the time for commencing judicial review proceedings, an order under r 59.9 for the respondent to provide reasons for its decisions, and an order for leave to amend the summons in the form annexed to the notice of motion. The respondent contests the first two orders and consents to the third. I propose to make the orders sought for the following reasons.
Background
Dubbo City Council owns and manages Dubbo City Regional Airport. These proceedings brought by Regional Express Holdings Ltd (REX) against Council are for judicial review of two decisions of Council, which have a financial effect on REX's operations as a regular passenger transport operator at the Airport. The first was a decision on 22 October 2012 to conduct security screening services at the Airport on a full cost recovery basis to be charged to all regular passenger transport operators using the Airport, ie REX and QantasLink, and spread across all their passengers flying in and out of the Airport (the first decision). The second was a decision on 25 February 2013 to adopt a fee to be charged to those airlines for the security screening services (the second decision). The relief claimed includes declarations of invalidity and injunctions.
The grounds of judicial review in the amended summons are that the Council failed to comply with the requirements of due process and procedural fairness in reaching each decision, and, in respect of the second decision, failed to comply with the statutory process required pursuant to ss 608, 610D and 610F of the Local Government Act 1993. That process includes specified mandatory relevant considerations. Council's filed response to the summons includes the contention that REX is out of time to raise the challenge to the first decision under r 59.10(1) of the UCPR.
REX's underlying disgruntlement with the decisions is its contention that under Commonwealth law security screening services are only required for larger aircraft that QantasLink has decided to fly in and out of the Airport and not for the smaller aircraft that REX flies.
The amendment to the summons is in order to correctly state the effect of the first decision and to omit some grounds of review of the second decision. The effect of the first decision was misstated in the summons because REX mistakenly thought that Council had adopted the recommendations in a report of 19 September 2012 by a Council officer that Council sent REX on 16 October 2012 together with an agenda for a Council working party meeting on 22 October, indicating that it was to consider that report: REX did not receive these documents from Council until 23 October. However, those recommendations were substituted by different recommendations in a 22 October working party report that Council adopted on 22 October. Council informed REX by email shortly after the October meeting what Council had resolved: the General Manager says he did not become aware of the email until 12 March 2013. There was also a newspaper article in November 2012 recording the first decision, but there is no evidence that REX noticed it. The resolution in fact passed by Council on 22 October was not posted to its website until about 22 February 2013 when it was observed by the General Manager.
Extension of time for commencing the proceedings
This is the first application in this Court under r 59.10(2) of the UCPR for an extension of time for commencing judicial review proceedings. Part 59 of the UCPR contains rules about judicial review proceedings and is new, having come into effect on 15 March 2013. Rule 59.1(2) provides that: "This Part does not apply to proceedings commenced before the commencement of this Part". Rule 59.10 provides:
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.
This new extendable time limit for judicial review proceedings follows a trend in other Australian jurisdictions and in England. The position in other Australian jurisdictions is summarised as follows by Aronsen and Groves, Judicial Review of Administrative Action, 5th ed (2013) at [12.290] (omitting footnotes):
Prohibition has a built-in time limit, because there must be something left to prohibit. Most places therefore have no statutory limitation period for that remedy. An extendable three-month limit applies in Queensland to applications for the prerogative orders (mandamus, prohibition and certiorari) and a prerogative injunction. The extendable period for those remedies is six months in South Australia, and 60 days in Victoria, the Northern Territory and the Australian Capital Territory. In the High Court and Western Australia, certiorari has an extendable limit of six months. AD(JR) has a 28-day extendable deadline, which generally starts running from the day that a statement of reasons has either been volunteered with the decision or supplied in response to a timely request.
Delay is a relevant criterion for discretionary refusal of certiorari and prohibition, whether or not the court Rules stipulate a prima facie time limit and, if they do, even if that limit has not been breached. The court considers the interests of third parties when asked to extend the prima facie time limit. It refused in one case to accept an undertaking in damages to compensate for the loss caused by the applicant's undue delay in seeking review. Despite the case law that urges would-be challengers to exhaust their appeal options before resorting to judicial review, there are conflicting approaches to the question of whether a delay occasioned by pursuing an alternative remedy should count against the applicant.
In England permission is required to proceed in a judicial review claim and the claim must be filed promptly and in any event not later than three months after the grounds to make the claim first arose, but the court may grant an extension of time: rr 54.4, 54.5 and 3.1(2)(a) Civil Procedure Rules 1998 (UK). The White Book 2013 (UK) contains the following annotations to r 54.5 (citations omitted):
A court may grant an extension of time under CPR Pt 3.1(2)(a) (previously, RSC Ord.53 itself provided that the court could extend the time if there was good reason to do so). The likelihood is that the courts will continue to apply the previous case law on RSC Ord.53 on whether there was a good reason for extending the time in deciding whether or not to grant an extension of time under CPR r.3.1 in a judicial review claim. The courts have always recognised that public law claims are unlike ordinary civil litigation and require strict adherence to the time limits contained in the rules governing judicial review. The courts are likely to require that there is a good reason or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration. Under the former provisions of RSC Ord.53 r.4 the courts refused to accept that there was good reason for extending the time for making a judicial review application where the delay was the fault of the applicant's lawyers. The courts have accepted that there was good reason for the delay if the applicant was unaware of the decision provided that they applied expeditiously once they became aware of it. The fact that the claim raises issues of general public importance may be a reason for extending the time-limit. Delay caused by factors outside the applicant's control, such as delay in obtaining legal aid, may be excusable.
Supperstone, Goudie & Walker, Judicial Review, 4th ed (2005) at [18.13.7] cite English authorities for the proposition that: "The claimant must show good reason for extending time. Even if the claimant does so, the court may refuse permission on the grounds of hardship, prejudice and detriment to good administration". According to Southey, Weston & Bunting, Judicial Review, 2nd ed (2013) at [3.1.3], the English authorities identify the following as matters that can amount to a good reason for extending time (although none results in time being automatically extended): (a) an explanation for the delay in applying for judicial review, such as problems obtaining public funding, mistakes made by legal advisers, an attempt by the claimant to seek other legitimate remedies and reasonable attempts to resolve the issue without litigation; and (b) the importance of the substantive issues raised. Other factors that may be taken into account are the strength of the claim for judicial review and the nature of the decision challenged because challenges to certain decisions such as planning decisions can potentially have significant financial consequences for third parties.
In the present case, the first decision was on 22 October 2012, the second decision was on 25 February 2013, the new Part 59 of the UCPR commenced on 15 March 2013, and the summons was filed on 23 May 2013. Therefore, if r 59.10 of the UCPR applies, an extension of time to 23 May 2013 is required for commencement of the proceedings in respect of the first decision but not in respect of the second decision. The summons as well as REX's notice of motion seeks an order for an extension of time in respect of the first decision.
The threshold question is whether the time limit in r 59.10(1) applies retrospectively to the first decision. In Patsalis v Attorney General of NSW [2013] NSWCA 98 at [6] Basten JA said:
...Because the decision in question was handed down before the new Pt 59 of the UCPR commenced, it is by no means beyond doubt that the time limit in r 59.10 operates. Even if it does, although the decision was dated 20 November 2012, it was apparently not provided to the applicant until 8 December 2012. On that basis, the three month period would have expired about 11 days before the applicant provided to the Court and to the Crown Advocate his proposed application seeking to rely upon s 69 of the Supreme Court Act. In those circumstances, were an extension of time necessary, it should be granted.
There is a presumption against retrospectivity of statutes, to which statutes merely affecting procedure are an exception. Where a period for taking legal action is limited by statute, it is a rule of construction that the statute should not, unless it is clearly intended, be given a retrospective operation to deprive a person of the opportunity of instituting an action which is otherwise within time. If it were given a retrospective operation, it would operate so as to impair an existing substantive right - the right to bring a claim - and such an operation could not be said to be merely procedural. However, if there is still a proper opportunity to commence the action despite the coming into effect of the new limitation period, the operation of the statute will be regarded as procedural. This rule of construction is founded on the principle that no suitor has any right to complain of procedural changes, provided no injustice is done. See Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 at 267, 270 per Dixon CJ, 277-278 per Williams J; Yrttiaho v Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228 at 239-242 per Gibbs J (the rest of the Court agreeing, on this aspect); Egan v Cudgegong (Abattoir) County Council (1973) 1 NSWLR 222 (CA) at 226-227 per Jacobs P (Moffitt and Hope JJA agreeing); Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC); Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515, at 518-520 (joint judgment); Habib v Nationwide News Pty Ltd [2006] NSWCA 14, (2006) 65 NSWLR 264 at [7] per Spigelman CJ (Santow JA and Nicholas J agreeing).
In my opinion, in accordance with these principles, r 59.10 does not apply retrospectively to the first decision, therefore an extension of time is not required. Otherwise its effect would be to deny completely the right of REX to proceed without an extension of time because the first decision was made more than three months before Part 59 commenced on 15 March 2013. Although r 59.1(2) provides that Part 59 does not apply to proceedings commenced before the commencement of Part 59, it does not follow that the r 59.10(1) time limit always applies to proceedings commenced afterwards: the above principles apply to such proceedings.
If I am in error and an extension of time is required for judicial review of the first decision, I would grant an extension of time to the date of filing of the summons for the following reasons:
(a) It would be an injustice for the retroactive operation of r 59.10 to completely bar judicial review of the first decision, particularly as the summons was filed only about two months after Part 59 of the UCPR commenced. This is not a lengthy delay in the context of this legislative scheme. Otherwise REX will be in the invidious position of not being able to challenge the first decision to charge a fee to REX and will only be able to challenge the quantum of the fee under the second decision.
(b) REX has a particular financial interest in challenging the first decision. It has received Council invoices totalling about $50,00 for security screening fees for the period from 20 March to the end of May 2013.
(c) There is no apparent possible prejudice to other persons caused by the passage of time if the relief were to be granted, other than to Council in relation to its security screening revenue for a comparatively short period.
(d) There is a public interest in the decisions to conduct security screening services at the Airport, to recover the costs thereof from the airline operators, and to spread the cost across all their passengers. It is unnecessary to go further, but the public interest is enhanced if REX is correct in its contention that under Commonwealth law security screening services are only required for the larger aircraft which its competitor flies.
(e) The substantive issues raised are important to REX, the other transport operator, and Council.
Statement of reasons
Secondly, REX's notice of motion seeks an order that Council file and serve a statement of reasons for both decisions in accordance with r 59.9 of the UCPR, which provides:
59.9 Special procedure where public authority is defendant
(1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.
(2) The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff:
(a) a copy of the decision, and
(b) a statement of reasons for the decision.
(3) A statement of reasons for the decision must:
(a) set out findings on material questions of fact, and
(b) refer to the evidence or other material on which those findings were based, and
(c) explain why the decision was made.
(4) If:
(a) the public authority does not comply with a notice under this rule within 14 days of service, or
(b) the plaintiff has not served a notice within the time prescribed by subrule (2),
the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision.
This Court is also empowered to order a statement of reasons under r 4.3(b)(iv) of the Land and Environment Rules 2007 (LECR). Rule 4.3 provides:
4.3 Proceedings for the review of public authority's decision
In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders:
(a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision,
(b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes:
(i) the public authority's findings on any material questions of fact, and
(ii) the evidence on which any such findings were based, and
(iii) the public authority's understanding of the applicable law, and
(iv) the reasoning process that led to the decision,
(c) an order for particulars, discovery or interrogatories.
Power to order a statement of reasons is also found in the Court's Practice Note - Class 4 Proceedings at [14] which, like r 4.3, was derived from the Supreme Court Practice Note SC CL 3 Administrative Law List at [23].
This Court considered r 4.3 of the LECR and ordered a statement of reasons in Charlton v Moore (No 2) [2009] NSWLEC 47 at [15] - [18] per Biscoe J; Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 at [10] - [13] per Biscoe J, Hooper v Port Stephens Council [2010] NSWLEC 41 per Sheahan J; and Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105 per Pepper J.
REX gave Council the notice provided for in r 59.9(2) of the UCPR.
By letter to REX dated 12 June 2013 Council's solicitors indicated that Council had three objections to an order for a statement of reasons:
(1) The Applicant is prevented from challenging the first decision of the Council by Rule 59.10(1) of the Rules so that it would be an inappropriate waste of time and costs to prepare a statement of reasons for that decision.
(2) The second decision of the Council was based upon and is explicable by reference to the reports it received concerning the adoption of the screening fee. That this process was both transparent and obvious to your client is manifest in the fact that your client has taken these proceedings and engaged with us about the Council's decision-making process by reference to those reports.
(3) The present challenge(s) to the decision(s) of the Council depend on issues of process, and not substance, and it would therefore not assist the Court to have a statement of the reasons.
I disagree with Council's three objections. Council's first objection falls away because I have earlier held that r 59.10 does not apply to the first decision but that, if it does, I would extend time under r 59.10(2). As to Council's second objection, if its reasons for the second decision are reflected in something in the reports it received, that can be said when providing a statement of reasons.
Council's third objection appears to suggest that a statement of reasons could not provide any useful information relevant to the grounds of challenge. That submission is incorrect at least in that there is a challenge on the basis of a failure to consider mandatory relevant considerations under ss 610F(1) and 610D(1) of the Local Government Act. Second, there is no reason to suppose that a statement of reasons would be irrelevant to the challenge based on infringement of the rules of procedural fairness because those rules have a flexible quality depending upon such matters as the context and circumstances in which the decision is made, which may be illuminated by the reasons for the decision: Charlton (No 2) at [11] - [12]. Third, it would be a Catch 22 to say (although it is not said in this case) that disclosure of reasons should not be ordered unless unlawfulness of reasoning is pleaded when such pleading is impossible unless the reasons are ordered to be disclosed. Finally, as I said in Shellharbour City Council v Minister for Planning at [13]:
...The purposes of these requirements include: to enable the existence of a legal error made by the decision-maker to be more readily perceived than otherwise might be the case; and, to engender confidence in the community that the decision-maker has gone about their task lawfully: see the authorities reviewed in Charlton . Therefore, relevant documents and reasons may inform an applicant's case...
In Vincent Pepper J was concerned not to "open the floodgates" to unmeritorious applications under r 4.3 of the LECR by applicants not directly affected by the decision who invoke statutory open standing provisions "and for whom the sanction of an adverse costs order is meaningless" prior to the claim being fully articulated, if at all: at [49], [50], [56]. In ordering a statement of reasons, her Honour concluded there was no such risk in that case because the applicant was represented by competent lawyers, was directly affected by the decision, and the summons set out the relief claimed in detail and provided more than the barest of bases for challenging the decision: at [56]. Those circumstances also exist in the present case. I would add that I do not see a significant risk of the floodgates being opened to unmeritorious applications for statements of reasons in judicial review cases where applicants invoke statutory open standing provisions. Historically, there has been little more than a trickle of such cases in this Court, less than ten per annum, and experience suggests that the sanction of an adverse costs order is meaningful to the applicants in many of them.
The Court is not reluctant to exercise the discretion to order disclosure of reasons merely because the public authority is a collegiate body such as a local council. The order should be for the statement of reasons to be to the best of the Council's knowledge, information and belief or that of the person providing the statement on its behalf: Charlton at [21] - [22], Hooper at [35], Vincent at [64]. I propose to make such an order.
Amendment of the summons
By consent, I will grant REX's leave to amend its summons in accordance with the draft amended summons annexed to the notice of motion.
Orders
The orders of the Court are as follows:
(1) The Court determines that r 59.10 of the Uniform Civil Procedure Rules 2005 does not apply to these proceedings for judicial review of the respondent's decision of 22 October 2012, but, if it does apply, the time for commencing these proceedings in relation to that decision is extended to the date of filing of the summons.
(2) The respondent is to serve on the applicant a written statement of the reasons for its decisions of 22 October 2012 and 25 February 2013 by 6 September 2013. Such reasons are to be to the best of the knowledge, information and belief of the respondent or the person providing the statement on its behalf.
(3) Leave is granted to the applicant to file an amended summons in the form annexed to its notice of motion filed on 21 June 2013 by 24 July 2013.
(4) The costs of the applicant's notice of motion filed on 21 June 2013 are costs in the cause.
(5) The exhibits may be returned.
Decision last updated: 24 July 2013
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