Starray Pty Ltd v Sydney City Council

[2001] NSWLEC 38

Reported Decision: 112 LGERA 438

Land and Environment Court

of New South Wales

CITATION:	Starray Pty Ltd v The Council of the City of Sydney [2001] NSWLEC 38
PARTIES:	APPLICANT: Starray Pty Ltd RESPONDENT: The Council of the City of Sydney
FILE NUMBER(S):	10605 of 2000
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure :- Motion to reopen concluded development appeal on basis of subsequent decision of Court.
LEGISLATION CITED:	Land and Environment Court Rules 1996, Part 15, r 9(b)
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529; Baldry v Jackson (1976) 2 NSWLR 415 at 419; DJL v Central Authority (2000) 74 ALJR 706; MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211; Memel Holdings Pty Ltd v Pittwater Council (2000) NSWLEC 227; Multistar Pty Ltd v The Minister of Urban Affairs and Planning and Anor (No 2) (2000) NSWLEC 242; Tenstat Chullora No 2 Trust v Valuer General (2000) 110 LGERA 227
DATES OF HEARING:	22 February 2001
DATE OF JUDGMENT:	03/02/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Lalich, Solicitor SOLICITORS Allen Allen and Hemsley RESPONDENT: Mr S Rares SC with Mr F Assaf, Barrister SOLICITORS Price Waterhouse Coopers Legal

JUDGMENT:

IN THE LAND AND

Matter No. 10605 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

2 March 2001

STARRAY PTY LIMITED

Applicant

v

THE COUNCIL OF THE CITY OF SYDNEY

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its Notice of Motion filed 12 February 2001, the Applicant seeks an order that “the proceedings be re-listed before Senior Commissioner Jensen for the making of further submissions”.

2. The Notice of Motion is supported by an affidavit sworn by Juliette Glubb dated 12 February 2001 which deposes to the following facts—
(i.) on 29 November 2000 the Senior Commissioner delivered an extempore judgment in these proceedings granting development consent subject to conditions;
(ii.) on 4 December 2000, Lloyd J delivered judgment in Multistar Pty Ltd v The Minister of Urban Affairs and Planning and Anor (No 2) (2000) NSWLEC 242; and
(iii.) written judgment in these proceedings has not yet been delivered and a certificate of judgment has not been issued by the Registrar.

3. Additionally, Ms Glubb expresses the following opinion in par 4:

The decision of the Court in Multistar impacts on the validity of conditions 1, 2, 3, 4, 5, 6, 7 and 8 of the consent conditions.

4. The Respondent opposes the relief claimed asserting that (i) the Court lacks the jurisdiction to grant the relief now that the proceedings (heard and determined by the Senior Commissioner) have been finally concluded; and (ii) in the alternative, and assuming that the Court is vested with the relevant, exceptional, power to grant the relief claimed, no case has been demonstrated justifying the grant of that relief.

5. In support of its Motion, the Applicant’s Solicitor relied upon the power expressly conferred upon the Court by Pt 15 r 9(b) of the Rules of Court, and upon the Court’s inherent power. Part 15 and r 9(b), provides as follows:

The Court may, on terms, set aside or vary an order in any of the following cases—

…..

(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of order under rule 4.

6. Rule 4 of Part 15 provides as follows:

The Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court.

7. Court records include a minute of the orders made by the Senior Commissioner on 29 November 2000 bearing the signature of the Registrar and the seal of the Court and bearing the date of filing of 15 February 2001. A copy of this Minute is annexed hereto and marked “A”. This record corroborates the hearsay fact asserted in Miss Glubb’s affidavit that at the date of swearing (12 February 2001) “a certificate of judgment has not been issued by the Registrar”.

8. When, in the course of argument it was pointed out to the Applicant that its Motion was not in terms a Motion falling within the scope of Pt 15 r 9(b) of the Rules of Court, the Applicant sought leave to amend the Notice of Motion to claim appropriate relief (presumably the variation of the orders) which would clearly bring the Motion within the express ambit of Pt 15 r 9(b) of the Rules of Court.

9. This application for amendment was opposed by Senior Counsel for the Respondent on the basis that the application to amend had been made too late as the orders made by the Senior Commissioner in the proceedings had already been perfected. In this respect, reliance was placed upon the common law rule as restated by Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 recently approved by the High Court of Australia in DJL v Central Authority (2000) 74 ALJR 706 in the following passage at 715:

These qualifications apart, the rule was that restated by Barwick CJ in Bailey v Marinoff with respect to the New South Wales Court of Appeal:


Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

B. DOES THE COURT HAVE THE POWER TO GRANT THE RELIEF CLAIMED EITHER IN ITS ORIGINAL FORM OR IN ITS AMENDED FORM?

10. It will be recalled that the Applicant relies upon two sources of power—statutory and inherent.

11. The argument that the Court possesses inherent power to vary a perfected order cannot be sustained in the light of the recent judgment of the High Court in the DJL case where the majority of the Court, in holding that the Full Court of the Family Court lacked the “power to re-open its final orders after entry” (par 50 of the joint majority judgment) had earlier stated at par 25 that it was inaccurate to speak of a “non-common law Court” as possessing “inherent” jurisdiction or power, before expressing the following conclusion at par 45 to the question earlier posed at par 32 (namely “whether the creation of the Family Court as a superior court of record carried with it the statutory power to re-open a final order after entry?”):

The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as “ a superior court of record ”. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.

12. These observations as to the position of the Family Court with respect to the absence of inherent jurisdiction or power and the lack of express or implied power, apply with equal force to this Court, it too being by statutory creation, a superior court of record.

13. It follows that the several earlier decisions of this Court which have held that the Court is vested with inherent power to re-open perfected judgments or orders, (including the recent decision of Talbot J in Memel Holdings Pty Ltd v Pittwater Council (2000) NSWLEC 227 upon which the Applicant relied) can no longer be regarded as correctly stating the law.

14. Turning then to the question of the Court’s statutory power and the particular source relied upon by the Applicant, namely Pt 15 r 9(b) of the Rules of Court, it is apparent on the established facts that assuming that the Applicant’s Notice of Motion either in its original or amended state (assuming the amendment be granted) has engaged the power, that statutory power is available to the Court to vary the orders made by the Senior Commissioner on 29 November 2000 in these proceedings.

15. In so holding, I would reject the Respondent’s argument based upon Bailey v Marinoff that the Court is functus officio. Indeed the passage of the Chief Justice’s judgment in Bailey v Marinoff expressly recognises the possibility of the existence of a relevant statutory power displacing the common law principle. In my judgment, it is clear beyond argument that Pt 15 r 9(b) is an example of the relevant statutory power. It is a power framed in similar language to Pt 40 r 9 of the Supreme Court Rules 1970.

16. This conclusion leaves three questions outstanding—
(i.) Does the Applicant’s Notice of Motion in its original form enliven the statutory power conferred by Pt 15 r 9(b)?
(ii.) If not, does the Applicant’s Notice of Motion, in its amended form (assuming the amendment be granted) enliven that statutory power? and
(iii.) If the answer to question (ii) is “yes”, does the Court have the power to allow the amendment sought?

Question (i)

17. Although in the course of argument I raised the question whether the relief claimed in the Applicant’s Notice of Motion properly fell within the scope of Pt 15 r 9(b), upon further reflection, it may be that my query was somewhat fastidious.

18. In terms, the relief claimed in the Notice of Motion was that the “proceedings be re-listed before Senior Commissioner Jensen for the making of further submissions”. The claimed relief was, in effect, an application to “re-open” the hearing after judgment, with the ultimate objective of seeking to vary the orders made by the Senior Commissioner.

19. That this was the intent of the Applicant’s Notice of Motion, at least so far as the Respondent’s understanding of it is concerned, cannot be in doubt, when regard is had to the correspondence passing between the parties’ Solicitors before the Applicant filed its Notice of Motion on 12 February 2001—vide Exhibits 1 and B. It is clear from this correspondence that the Applicant was seeking the Respondent’s consent to the deletion of certain conditions of the development consent granted by the Senior Commissioner on 29 November 2000 on account of the later decision of Lloyd J in the Multistar case and in default of that agreement, the Applicant was putting the Respondent on notice of its decision to have the proceedings urgently re-listed.

20. In my judgment, it is at the very least a legitimate and reasonable construction of the Applicant’s Notice of Motion that the relief claimed was for leave to re-open the case. In this respect, it is instructive to note that in the annotations, to Part 40 r 9, Ritchie’s Supreme Court Practice includes extensive notes under the hearing “Re-opening the hearing”—see at p 2857.

21. The obvious purpose of such a re-opening of the hearing was to obtain a different result from that reflected in the Court’s orders. In other words, the ultimate purpose of the re-opening was to obtain a setting aside or varying of the Court’s orders.

22. In my judgment, the Applicant’s Notice of Motion is reasonably capable of a construction supporting to the foregoing analysis and interpretive result.

23. So understood, the Notice of Motion relevantly enlivens the statutory power conferred by Pt 15 r 9(b). Accordingly, the application to amend the Notice of Motion made at the hearing ultimately becomes unnecessary.

Question (ii)

24. If, however, I am wrong in so concluding and it is necessary to consider whether the relief claimed in the amended Motion (assuming the amendment be granted) falls within, and hence engages the statutory power, I am clearly of the opinion that it does. Indeed, the Respondent was not heard to submit to the contrary, it being content to argue that the application was made too late in that it was made at the hearing ie on 22 February 2001, being a time after the Senior Commissioner’s orders were perfected by the filing on 15 February 2001 of a signed and sealed minute of the orders.

Question (iii)

25. The powers of amendment vested in the Court are those contained in the Land and Environment Court Act 1979, s 68 and in Part 10 of the Rules of Court.

26. In my judgment, s 68 and Part 10 r 2(1) and r (5) confer the requisite power upon this Court to allow the amendment sought by the Applicant to bring its Notice of Motion clearly within the scope of Pt 15 r 9(b) of the Rules of Court.

27. It is apparent from what I have earlier held in relation to the original form of the Applicant’s Notice of Motion that the amendment, if considered to be strictly necessary, does no more than formulate in more precise language the relief claimed than the original Motion had done, albeit elliptically.

28. The Respondent’s argument that the application to amend is made too late (because the Senior Commissioner’s orders were already perfected at the time of the hearing of the Applicant’s Motion) is, in my judgment, entirely answered by the width of the relevantly available amendment powers and by the operation of the amendment “relating back” to the date of the filing of the original Notice of Motion ie 12 February 2001 which occurred prior to the signing and filing of the minute of the Senior Commissioner’s orders on 15 February 2001: see Baldry v Jackson (1976) 2 NSWLR 415 at 419 per Samuels JA:

….But an amendment, duly made, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends….

See also Australia and New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286.

29. Although Part 10 of the Rules of Court does not contain any express provision as to when any amendment takes effect (such as is now contained in the Supreme Court Rules Pt 20 r 4(5A), inserted in 1989 following the Court of Appeal’s decision in Fernance v Nominal Defendant (1989) 17 NSWLR 710) the date when the amendment takes effect, in my judgment, is to be determined in accordance with the rule stated in Baldry v Jackson.

30. The Respondent has not submitted that the amendment should not be granted if, contrary to its submission, the Court holds that the amendment power is available. Accordingly, if necessary, I would grant the amendment.

31. For all of the foregoing reasons, I hold the statutory power conferred by Part 15 r 9(b) of the Rules of Court has been relevantly engaged by the Applicant’s Notice of Motion (either in its original or amended form) and that accordingly, the Court is vested with the statutory power to grant the relief claimed.

C. THE BASIS FOR THE APPLICANT’S CLAIM TO RE-OPEN THE CONCLUDED PROCEEDINGS

32. The Applicant’s sole basis for re-opening the concluded proceedings was very starkly formulated and only sketchily developed.

33. Starkly formulated, it is to the effect that a number of the conditions of the development consent granted by the Senior Commissioner are ultra vires because those conditions were founded upon, and derived from, section 5.2 of the relevant Central Sydney Development Control Plan 1996 (the DCP) which Lloyd J, in the Multistar case held to be void. The particular passage in his Honour’s judgment relied upon the Applicant is par 53 which states—

It seems clear, however, that the DCP itself, or at least section 5.2 of the DCP, which relates to short stay public parking, is beyond power and is for that reason void. A DCP may only provide for matters for which a local environmental plan may provide (Environmental Planning and Assessment Regulation 1994, clause 16). The matters for which a local environmental plan may provide are set out in section 26 of the EPA&A Act. Section 5.2 of the DCP purports to control privately owned public car parking by way of specifying the fee structure to be applied. There is nothing in section 26 which enables the making of a local environmental plan to control the fee structure to be applied to privately owned commercial car parking stations or, for that matter, to any other activity. That is not something which local government councils may control or regulate either through development control plans or otherwise. It may be a matter which might be subject to control under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. Neither of those statutes, of course, have anything to do with land use and planning. Section 5.2 of the DCP in this case relates to matters for which for which [sic] a local environmental plan may not provide. The applicant does not, however, seek any relief in relation to the DCP itself: it seeks only to strike down the LEP or, alternatively, clause 48A of the LEP. As Mr Hemmings said in his submissions: The provisions in this DCP are draconian and we say not only harsh but ultra vires in that they impose provisions for the charges to be paid. We don’t in these proceedings seek to challenge that but merely draw attention to it…

34. I should note at this point that the Applicant’s Solicitor informed the Court (without demur from the Respondent) that Multistar and the Applicant are related companies.

35. The Applicant’s argument did not really develop the point starkly formulated, leaving it to mere assumption (which for present purposes I am prepared to make) that a number of the conditions imposed upon the development consent by the Senior Commissioner’s decision derive directly from the terms of the DCP and in particular, s 5.2 thereof.

36. When par 53 of the judgment in Multistar is read in its proper context, it is apparent that his Honour’s holding in relation to the invalidity of the DCP is no more than an obiter dictum. In particular, no declaration to that effect was made in the Court’s final orders which simply dismissed Multistar’s class 4 application.

37. That application had sought declaratory relief to the effect that cl 48A of the Central Sydney Local Environment Plan 1996 (Amendment No 9)—Public Carparking (cl 48A) was void or alternatively partially void.

38. As is apparent from his reasons for judgment, Lloyd J dismissed Multistar’s application because he held that the applicant was “precluded from raising in these proceedings the validity of the local environmental plan or of clause 48A of that local environmental plan”: see at par 31.

39. It was in the light of that conclusion that his Honour stated at par 32 that it was “unnecessary to consider the attacks upon the validity of the local environmental plan and upon claim 48A in particular”. His Honour continued:

I have hesitated over whether I should express my views thereon. As the parties have fully argued the matter, however, it may be helpful to them if I do so.

40. His Honour then proceeds to consider a number of questions, including the following:

(i.) the inconsistency of cl 48A with the “existing use provisions” of the Environmental Planning and Assessment Act 1979, Pt 4, Div 10—at par 33 to par 41 inclusive;

(ii.) the validity of cl 48A(6)(c) giving mandatory effect to the DCP— at par 42 to par 53 inclusive.

41. His Honour’s “views” on the first question are recorded in par 41 and include the following:

Those provisions of clause 48A which derogate from the incorporated provisions would simply then have no force or effect in relation to that land. But that does not make clause 48A void. The clause would continue to have force and effect in relation to land upon which there is no existing use. I note that the applicant did not contend before Talbot J that it had existing use rights in relation to the Kent Street Parking Station. Mr Hemmings’ argument is syllogistic, but that does not make it right.

42. His Honour’s “views” on the second question are recorded in par 51 and par 52 and include the following:

The conclusion to be drawn from the cases discussed above is that, absent any authority to the contrary, is not unlawful for an environmental planning instrument to give mandatory effect to a development control plan in the manner which clause 48A(6)(c) does in the present case

In the absence of any authority to the contrary, I would not be inclined to find that there is an invalidity in this case..

43. These last mentioned “views” immediately precede par 53 of his Honour’s judgment which provides the sole foundation for the Applicant’s application to re-open the concluded proceedings.

D. HOW SHOULD THE COURT EXERCISE ITS DISCRETION?

44. The Respondent submitted that the application to re-open the case was “hopeless”. The application simply was an attempt to have a “second bite” at the concluded case, which had proceeded upon the assumption that cl 48A was valid, and that assumption far from being undermined by the later decision of Lloyd J in Multistar, was vindicated since his Honour had held that Multistar was precluded from questioning the validity of cl 48A and had observed obiter, that cl 48A was valid.

45. In my judgment, the Applicant has clearly failed to make out its case for a re-opening. At its highest the Applicant’s case is that soon after the Senior Commissioner had pronounced his judgment granting development consent subject to conditions (which conditions apparently properly had reflected the requirements of cl 48A), the judgment of Lloyd J in Multistar had been delivered in which his Honour, in what can only be regarded as an obiter dictum, expressed the view that the DCP (the terms of which were incorporated by reference into cl 48A) was either wholly or partly “beyond power and….void”.

46. In my judgment, this obiter dictum (which with the greatest respect to his Honour, presents its own difficulty inasmuch as his Honour had also earlier expressed the view that the incorporation of the DCP into cl 48A was valid) provides a self-evidently insufficient basis for any re-opening of the concluded proceedings. The present case is very far removed from Re Harrison’s Settlement (1955) Ch 260 cited by Ritchie as an example of a case justifying a re-opening, where it was held that a Judge in the Chancery Division who had made an order which had not been perfected, had the power to recall it, to give effect to a change in the law brought about by a contemporaneous decision of the House of Lords which had made it clear that the judge had no power to make such an order.

47. Although what I have just said is sufficient to dispose of the Motion, there is a further cogent reason why the Motion must be dismissed, namely the fact that the Applicant had deliberately conducted its case before the Senior Commissioner on the stated assumption that cl 48A was valid—see the transcript of the hearing on 28 November 2000 at line 40.

48. Mr Hemmings QC who represented the Applicant in the proceedings before the Senior Commissioner had expressly stated this assumption in the context of informing the Court of the nature of the Multistar proceedings which had been argued before Lloyd J and where his Honour had reserved his judgment.

49. In these circumstances, the Applicant must be bound by the position it deliberately adopted in its conduct of the litigation before the Senior Commissioner. It would be manifestly unreasonable and contrary to principle, to now allow the Applicant the opportunity to re-open the concluded proceedings in order to advance a different case that it could have advanced at the hearing, but had deliberately chosen not to do so.

50. For all the foregoing reasons, in the exercise of discretion, I would refuse the Applicant leave to re-open the case.

E. CONCLUSIONS AND ORDERS

51. For reasons given, the Court possesses the statutory power to grant the relief claimed in the Applicant’s Notice of Motion, but in the exercise of its discretion, I would refuse to grant leave for the Applicant to re-open its case.

52. Accordingly, the Motion must be dismissed.

53. The Respondent seeks an order for costs on an indemnity basis.

54. The Applicant resists any order for costs on the ground that these are class 1 proceedings where the Court’s general practice of not awarding costs should be applied.

55. In my judgment, the Applicant should pay the Respondent’s costs of the Motion for the reason that the costs of the Motion are not costs in the planning appeal within the meaning of the Court’s Practice Direction (Par 10) but rather, they are separate costs.: see MacDonald v Mosman Municipal Council(No 2) (2000) 107 LGERA 211 at 215/216 and Tenstat Chullora No 2 Trust v Valuer General (2000) 110 LGERA 227 at 233/234.

56. However, since I have rejected the Respondent’s submissions that the Court lacked the power to grant the relief claimed (this being the sole basis for the claim to indemnity costs as communicated in the Respondent’s Solicitor’s letter to the Applicant before the hearing on the Notice of Motion, Exhibit A), there is no justification for indemnity costs.

57. Accordingly, I order that the Notice of Motion be dismissed with costs.