The Break Surf Park Investments Pty Ltd v Tate - [2025] SASCA 63

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
THE BREAK SURF PARK INVESTMENTS PTY LTD v TATE & ORS
[2025] SASCA 63
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
16 June 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - EXISTENCE OF OTHER REVIEW OR APPEAL RIGHTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - EXTENSION OF TIME
Application for leave to appeal against an interlocutory decision.
On 7 March 2025, the respondents filed an Originating Application for Review of a decision to grant planning consent to a development application lodged by the applicant, The Break Surf Park Pty Ltd (‘Break Surf’). The respondents own property in the immediate vicinity of land the subject of the development application. By Interlocutory Application (FDN 2), the respondents sought leave to file the Originating Application out of time. On 1 April 2025, Break Surf filed an Interlocutory Application (FDN 15) for a separate and expedited hearing of the application for an extension of time to commence the action.
On 25 April 2024, a single judge of this court dismissed the Interlocutory Application (FDN 15). She ordered that the application for an extension of time was to be heard and determined together with the action for judicial review.
Break Surf raised two main issues for consideration on appeal:
1.Whether the trial judge erred in law in misconstruing and/or misapplying r 256.5 of the Uniform Civil Rules 2020 (SA) (‘UCR’) (Ground 1.a.); and
2.Whether the judge erred in law or mixed fact and law by failing to hold that urgent and separate disposition of the extension of time application was warranted by the evidence adduced by the applicant (Ground 2).

Ground 1 was particularised with further complaints about various aspects of the judge’s reasoning.
Held (by Livesey P and Bleby JA) granting leave to appeal on ground 1.a. but dismissing the appeal:
1.The judge erred as a matter of law in holding that r 256.5(2) of the UCR does not create a default position, in effect, that no further steps are to be taken in respect of an application for judicial review until the Interlocutory Application for an extension of time to file the Originating Application is determined.
2.The remaining complaints do not warrant a grant of leave to appeal, having regard to the matters to which the judge had regard and the evidential support for the judge’s exercise of the discretion.

Held (by S Doyle JA, agreeing in the result):
1.The judge did not err as a matter of principle as there is no basis to infer that she overlooked the existence of the overarching onus of proof upon an applicant who issues out-of-time judicial review proceedings to demonstrate a basis for a grant of leave and to avoid dismissal under rr 256.5(2) and (3).
2.The judge's impugned references to the absence of any onus or default position were confined to selection between the two mechanisms for determining the extension of time application in r 256.5(3)(b).

3. The decision made by the judge was made within her discretion.
Uniform Civil Rules 2020 (SA) rr 1.5, 12.1, 256.3, 256.4, 256.5, referred to.
M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18; Hanna v Flinders University [2024] SASCA 127; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) v Ernst & Young (No 2) [2005] SASC 168; Hall v City of Burnside (2006) 102 SASR 298; Jackamarra v Krakouer (1998) 195 CLR 516; C v Independent Commissioner Against Corruption (2020) 136 SASR 215; Bell v Deputy Coroner of South Australia (2020) 138 SASR 467; Viscariello v Legal Practitioner’s Disciplinary Tribunal [2021] SASCFC 18; Starke v Legal Profession Conduct Commissioner [2025] SASC 31; Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929; Dubow v Mid-Western Regional Council [2021] NSWSC 225; Cudgegong Australia Pty Ltd v Sydney Metro [2018] NSWCA 298, considered.

THE BREAK SURF PARK INVESTMENTS PTY LTD v TATE & ORS
[2025] SASCA 63
Court of Appeal – Criminal: Livesey P, S Doyle and Bleby JJA

LIVESEY P and BLEBY JA: This is an application for leave to appeal against an interlocutory decision of a single judge of this Court, on an Originating Application for Review, by which the judge:
·dismissed an Interlocutory Application (FDN 15) by the first respondent to the Originating Application for Review for a separate and expedited hearing of the application for an extension of time to commence the action; and
·ordered that the application for an extension of time was to be heard and determined together with the action for judicial review.
The application for permission to appeal makes several complaints grounded in the judge’s reasons for making the orders described above. The primary issue raised on the Notice of Appeal concerns the proper construction of UCR 256.5 of the Uniform Civil Rules 2020 (SA). The Notice of Appeal also complains that the judge failed to have regard to various relevant considerations, erroneously gave determinative weight to certain matters and made further errors in her reasoning.
The first four respondents to the appeal, being the applicants for judicial review (‘the first four respondents’), filed the Originating Application for Review on 7 March 2025. These respondents own property in the immediate vicinity of the land the subject of the development application. On 24 April 2025, the single judge made the orders the subject of the application for leave to appeal. On 8 May 2025, the applicant for leave to appeal (‘Break Surf Park’) filed a Notice of Appeal. On 15 May 2025, Livesey P made orders listing the application for leave to appeal, to be heard as on appeal, on an expedited basis, together with consequential orders facilitating the expedited hearing.
On 29 May 2025, the Court heard oral argument on the application for leave to appeal and the appeal. On 2 June 2025, it announced its decision granting leave to appeal but dismissing the appeal. These are the Court’s reasons for so holding.
The proceeding is yet in its infancy, with the first interlocutory step already the subject of an application for leave to appeal. That is a circumstance that highlights the importance of the considerations relevant to whether to grant leave to appeal, namely:[1]
a)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
b)whether the decision raises an issue of general principle or importance; and
c)whether allowing the decision to stand would work a substantial injustice to the applicant.
[1] M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] (Doyle and Livesey JJA). See also Southern Wire Pty Ltd v Clover Communications Pty Ltd [2023] SASCA 18 at [52]-[53] (Livesey P and Bleby JA).
The fact that the application for leave to appeal is to be heard as on appeal and together with the merits of the appeal proper does not diminish the importance of these considerations relevant to whether to grant leave.
In this case there are further considerations. The appeal is brought against an interlocutory decision concerning practice and procedure. It does not directly affect the substantive rights and obligations of the parties. In Hanna v Flinders University, this Court observed:[2]
The Court will be slow to grant leave to appeal against interlocutory orders that do not determine substantive rights. Discovery is a matter of practice and procedure. As Bleby J observed in Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) v Ernst & Young (No 2):[3]
What is a common thread running through the cases, however, is that there is a general unwillingness to grant leave to appeal from interlocutory orders which do not either directly or by their practical effect finally determine the substantive rights of a party. The Court should be slow to encourage unnecessary, costly and time consuming appeals having the effect of unduly disrupting the orderly conduct of litigation, particularly litigation of a complex nature such as this.
(Footnote in original)
[2] Hanna v Flinders University [2024] SASCA 127 at [14] (Livesey P and Bleby JA).
[3] [2005] SASC 168 at [14].
The determination by the trial judge to order that the application for an extension of time be heard together with the merits of the judicial review application required an exercise of discretion in case management. It was necessary that the judge determine Break Surf Park’s application expeditiously. The judge delivered a ruling with ex tempore reasons, a practice that this Court encourages in matters of practice and procedure of this kind. It is a concomitant of that desirable practice that the reasons given will not necessarily be as comprehensive as might be expected on a reserved judgment that has had the advantages of reflection and opportunity for more detailed analysis. These considerations all go to the appropriateness of a grant of leave to appeal.
Background
The essential history of the matter is as follows. On 30 October 2023, Break Surf Park lodged a development application with the City of Onkaparinga seeking planning consent for a surf park at Aldinga (‘the Original Application’). Break Surf Park is one company in a group of corporate entities, collectively called ‘the Break Group’.
On 2 May 2024, the sixth respondent, the City of Onkaparinga Assessment Panel, met to consider whether to grant or refuse planning consent to the Original Application. It determined to grant planning consent, subject to conditions and reserved matters. The reserved matters included an acoustic matter.
On or shortly after 2 May 2024, the second respondent, Ms Zervas, learned about the grant of planning consent from her husband, the first respondent Mr Tate. Ms Zervas’s evidence was that Mr Tate told her in or around December 2023 that there was no public notification process or avenue to raise concerns or objections over the proposed development.
Craig Andrew Mitchell, a director of corporate entities in the Break Group (but not including Break Surf Park), filed affidavit evidence about, among other things, expenditure incurred by the Break Group in respect of the proposed development. His evidence was that between June 2022 and February 2025, the Break Group had spent a total of $6,778,998 on the project. It spent $2,255,410 of that following the grant of planning consent and $1,157,914 of that after 2 November 2024. The significance of that last date is that it was six months after the grant of planning consent. It was on that date that the time to commence an action for judicial review to challenge the grant of planning consent, prescribed by UCR 256.3(1)(b), expired.
On 20 November 2024, Break Surf Park lodged a Variation Application, seeking planning consent for a variation to the original application. The Variation Application included lighting specifications (specifically, lighting towers) and a light spill diagram. The Variation Application was publicly notified until 20 January 2025.
Ms Zervas gave affidavit evidence to the following effect:
·on or around 3 January 2025, Ms Zervas viewed the Variation Application for the first time;
·on or around 4 January 2025, the first four respondents engaged a town planner to prepare a representation opposing the Variation Application on their behalf;
·on 9 January 2025, a council staff member told Ms Zervas that she could not comment on the original application as part of her representation on the Variation Application, and that Break Surf Park had a right of appeal, but she did not;
·on 19 January 2025, Ms Zervas attended a meeting about the Variation Application. At that meeting, she learned for the first time that judicial review may be an avenue for challenging the planning consent;
·on 7 February 2025, the solicitors for the first four respondents wrote to Break Surf Park asserting that the planning consent for the development was invalid;
·on 28 February 2025, the first four respondents met with the Chief Executive Officer of Break Surf Park on a without prejudice basis.
On 7 March 2025, the first four respondents filed the Originating Application for Review.
On 27 March 2025, the City of Onkaparinga Assessment Panel met to consider the Variation Application. It made certain resolutions, including to reserve the granting of planning consent subject to further assessment of certain information, including an updated acoustic report and amended documentation reducing the hours of operation of the light towers and surf lagoon.
On 1 April 2025, Break Surf Park filed an Interlocutory Application for a separate and expedited hearing of the application for an extension of time to commence the action (FDN 15).
On 3 April 2025, the first four respondents foreshadowed a challenge to the resolutions made on 27 March 2025.
On 15 April 2025, Break Surf Park withdrew the Variation Application.
On 17 April 2025, the first four respondents filed a revised Statement of Facts, Issues and Contentions, raising additional issues. These included contentions that:
·the lighting the subject of the Variation Application formed part of the Original Application, and that the Originating Application and Variation Application were impermissibly split to avoid public notification of the Originating Application; and
·the reserved acoustic matter was fundamental to the nature of the development and was not within the scope of the reservation power in s 102(3) of the Planning Development and Infrastructure Act 2016 (SA) (‘PDI Act’).
On 24 April 2025, the single judge made the orders the subject of the present application for leave to appeal and adjourned the matter to a directions hearing.
The Uniform Civil Rules 2020
It is convenient first to set out the relevant rules. UCR r 256.3 provides for the time in which to commence an action for judicial review:
256.3—Time to commence
(1) An action for judicial review must be commenced—
(a)as soon as practicable after the decision, act or omission the subject of the action; and
(b)in any event within 6 months after the decision, act or omission the subject of the action.
(2) An applicant may institute an action for judicial review more than 6 months after the decision, act or omission the subject of the action if the applicant seeks an extension of time to commence the action; however the applicant must seek an extension of time to commence the action and the action cannot proceed further without leave of the Court.
Rule 256 reflects the longstanding concern that there should not be uncertainty and undue delay concerning challenges to government and administrative decision-making.[4] Because any action for judicial review must be commenced ‘as soon as practicable’ after the relevant decision the subject of the action and, in any event, ‘within 6 months after the decision’, it is necessary for an applicant seeking judicial review to act with expedition.
[4] Hall v City of Burnside (2006) 102 SASR 298 at [49] (Doyle CJ, Duggan J agreeing).
Where the action is ‘instituted’ more than six months after the decision, the applicant must seek an extension of time, and the action cannot proceed without leave of the Court. Where an action has been instituted out of time, it remains inchoate pending a decision to permit an applicant to ‘commence the action’.
In particular, r 256.4(5) provides that if an action is instituted more than six months after the decision, act or omission in question, the application must be accompanied by an interlocutory application and supporting affidavit seeking an extension of time to commence the action and leave of the Court to proceed with the action. Rule 256.5 then provides:
256.5—Application for leave or summary judgment
(1)     This rule applies if—
(a)an applicant files an interlocutory application seeking an extension of time to commence the action and leave to proceed with the action under rule 256.4(5); or
(b)within 14 days after service of the Originating Application documents, a respondent files an interlocutory application for summary judgment under rule 144.2.
(2)     If this rule applies, no further steps are required to be taken by any party in the action (including filing responding documents) other than for the purpose of the interlocutory application in question until that application has been determined by the Court.
(3)     If this rule applies, the Court will dismiss the action (insofar as judicial review is sought)—
(a)unless the Court is satisfied that there is a reasonable basis for the action for judicial review; and
(b)if subrule (1)(a) applies—the Court either grants an extension of time or orders that the application be heard and determined with the merits of the proceeding.
(4)     If the Court dismisses the action insofar as judicial review is sought but a balance of the proceeding under rule 256.4(7) remains, the Court will make orders for the future conduct of the balance of the proceeding.
(5)     If the Court does not dismiss the action insofar as judicial review is sought, the Court will make orders for the future conduct of the action.
Central to the operation of these rules is r 256.5(2), which mandates that ‘no further steps’ are required to be taken by any party in the action other than for the purpose of the interlocutory application ‘until that application has been determined by the Court’. In a case where an extension of time is sought, r 256.5(3) then requires that the action for judicial review be dismissed unless both of the matters that follow are addressed.
The primary complaint by Break Surf Park on the application for leave to appeal concerns the judge’s interpretation of r 256.5(3) in ordering, pursuant to r 256.5(3)(b), that the first four respondents’ application for an extension of time should be heard and determined with the merits of the proceeding. That rule, and the importance of the question of interpretation said to be raised in respect of that rule, must be considered in the context of the other rules set out above.
The interlocutory applications
The first four respondents cast their application for an extension of time (FDN 2) on the following grounds:
1.The applicants at all times from becoming aware that Development Application ID 23031140 (Original Application) had been lodged sought to challenge the lack of public consultation in relation to it and sought to be heard on the issue of planning consent from in or around December 2023.
2.The Applicants were notified by the City of Onkaparinga that the decision of the Third Respondent could not be appealed which the Applicants understood to mean could not be subject to challenge;
3.The Applicants have sought to challenge the decision as soon as reasonably practicable having sought legal advice;
4.The application has reasonable prospects of success in light of clear legal errors committed by the Third Respondent in the course of granting planning consent to the Original Application;
5.There is some public interest in ventilating the provisions of the Character Preservation (McLaren Vale) Act 2012 (CP Act), yet to be subject to judicial analysis; and
6.The application is out of time by only 4 months and the delay in bringing the review proceedings causes no material prejudice to the Respondents in circumstances where:
a.     The Original Application has not yet obtained building consent or final development approval;
b.    The Variation Application is under assessment;
c.     No site or other works have commenced on the Development Site.

The Interlocutory Application filed by Break Surf Park (FDN 15) then sought an order, relevantly:
1.Pursuant to rule 12.1(1) of the Uniform Civil Rules 2020 (SA), the Applicant’s Interlocutory Application for an extension of time (FDN 2) be heard and determined ahead of any other step in the proceeding and with such expedition as the Court can afford it.
To this end, Break Surf Park indicated that it was prepared for the first four respondents’ case to be taken at is highest and, importantly, not to contest the other gateway requirement in r 256.5(3)(a), that there be a reasonable basis for the action for judicial review. That was not a concession for all purposes. Rather, it was merely that Break Surf Park did not require the first four respondents to show a reasonable basis for the action on a consideration of the application for an extension of time.
The judge described the issues joined on Break Surf Park’s Interlocutory Application as concerning whether the Court should order, pursuant to r 256.5(3)(b), that the application for an extension of time should be heard and determined together with the merits of the proceeding and whether the orders sought in FDN 15 should be made.
Given the confined nature of the concession offered by Break Surf Park, there must also have been an issue about whether there was a reasonable basis for the action for judicial review.
The judge’s ruling
The judge summarised the submissions of the parties. On the approach to be taken to r 256.5, she held that she was:
… not persuaded that the position stated in [UCR] 256.5 provides a default position that extensions of time should be heard and determined in advance of the merits of the proceedings.
The judge also considered the position if, contrary to her conclusion, the rule placed an onus on the first four respondents to establish that the extension of time application should be heard and determined together with the merits of the application for judicial review. She held that that onus was discharged in any event.
The judge then made the orders indicated earlier. She did not determine whether there was a reasonable basis for the action for judicial review.
The appeal
The proper construction of Rule 256.5
Ground 1.a. of the Amended Notice of Appeal complains that the primary judge misconstrued and/or misapplied r 256.5 of the Uniform Civil Rules. The ground goes on to complain about various aspects of the judge’s reasoning, but in the first instance it is necessary to focus on the judge’s interpretation of the rule and Break Surf Park’s attack on that interpretation.
Break Surf Park’s attack was directed at the judge’s holding that there was no ‘default position’ and no onus on the applicant. Break Surf Park submitted that to the contrary, an applicant necessarily bears the onus of persuading the Court not to dismiss an out of time action. It is necessary to examine this proposition closely as well as what the judge actually held.
Break Surf Park commenced by highlighting the object of the rules to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings, as stated in r 1.5. Rule 256.3(1) supplements this object by requiring judicial review applications to be brought ‘as soon as practicable’ and, in any event, within six months. Then, rule 256.3(2) provides that an action that is out of time cannot proceed without leave of the Court. The Full Court explained the significance of this time limit, as it applied under the Supreme Court Rules 1987 (SA), in Hall v City of Burnside:[5]
As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is “the general rule”. It is not “an arbitrary cut off point”. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
…
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought “as promptly as possible” emphasises the significance of the time limit.
[5] (2006) 102 SASR 298 at [47]; [49]-[50].
In that case, Duggan J noted the observation in Jackamarra v Krakouer[6] that time limits imposed by rules of procedure attracted a more flexible approach than those imposed by legislation.[7] However, he also considered that the time limit imposed by the rules on actions for judicial review was not merely a function of ‘caseflow management’:[8]
Although it might be appropriate to draw this general distinction, it is also relevant to take into account the nature of the particular procedure under consideration and the purpose of the time limit imposed. In Jackamarra v Krakouer, the application was for an extension of time for setting down an appeal which had already been lodged with the court. In the present case, however, the time limit serves a purpose which extends beyond a caseflow management function. As Lord Diplock pointed out in O’Reilly v Mackman [1983] 2 AC 237:
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
[6] (1998) 195 CLR 516.
[7] Hall v City of Burnside (2006) 102 SASR 298 at [78].
[8] Hall v City of Burnside (2006) 102 SASR 298 at [79].
The significance of the six-month time limit has not changed since Hall, notwithstanding wholesale revisions of the Rules of Court.[9]
[9] See, e.g., C v Independent Commissioner Against Corruption (2020) 136 SASR 215 at [145]. See also Bell v Deputy Coroner of South Australia (2020) 138 SASR 467 at [303]-[306] (Blue J); Viscariello v Legal Practitioner’s Disciplinary Tribunal [2021] SASCFC 18 at [189].
Break Surf Park submitted that an important aspect of the emphasis on timeliness lay in the requirements, in r 256.4, for the institution of an action for judicial review. Rule 256.4(1) requires that the Originating Application must be accompanied by a statement of facts, issues and contentions. Rule 256.4(2) provides that this document must set out, among other things, the applicant’s contentions and the grounds for an extension of time, if that is applicable.
Rule 256.4(3) then specifies extensive requirements for the contents of the supporting affidavit. If an extension of time is required, r 256.4(3)(f) requires the affidavit to depose to the facts on which the application for an extension of time is made. The affidavit must also exhibit the record of the decision under challenge, and the documentary and testimonial evidence on which the applicant relies.
Break Surf Park characterised these obligations on an applicant as requiring that the application be ‘ready to go’. Rule 256.5(2) then provides that no further steps are required to be taken by either party, other than for the purposes of the application for an extension of time, until that application has been determined. This creates a scheme by which the application for an extension of time can be determined on the materials already filed, and separately from a hearing on the merits. An early, separate determination of the application for an extension of time has the capacity to dispose of the entire proceeding, saving time and cost.[10]
[10] In a case where the Court is required to be satisfied that there is a reasonable basis for the judicial review under r 256.5(3), similar concerns about saving time and cost are relevant, Starke v Legal Profession Conduct Commissioner [2025] SASC 31, [33]-[38] (Stein J).
It is against that ‘default’ position, as Break Surf Park characterised it, that r 256.5(3) provides that the Court is to dismiss an action that is out of time unless (a) the Court is satisfied that there is a reasonable basis for the action for judicial review, and (b), the Court either grants an extension of time or orders that the application be heard and determined with the merits of the proceeding.
Break Surf Park submitted that it is manifestly clear from these rules that an applicant necessarily bears the onus of persuading the Court not to dismiss an out‑of-time action. It can do so by persuading the Court that the action has a reasonable basis and that it should grant an extension, or that the action has a reasonable basis and it should order a combined hearing. Either way, the applicant must persuade the Court not to dismiss the action.
So much may be accepted. Where an action is commenced out of time, the Court must dismiss the action unless the applicant satisfies the Court that there is a reasonable basis for the action and that it should either grant the extension of time or order a combined hearing. To be clear, the applicant assumes a burden to persuade the Court to either course.
Break Surf Park then submitted that on this analysis, the judge erred in finding that there was no default position and no onus upon the applicant.
It is necessary to be clear about what the judge held and the context in which she held it. The judge held that she was ‘not persuaded that the position stated in Uniform Civil Rule 256.5 provides a default position that extensions of time should be heard and determined in advance of the merits of proceedings’. This was in the context of considering the Interlocutory Application FDN 15, which sought, pursuant to r 12.1(1), that the ‘Interlocutory Application for an extension of time be heard and determined ahead of any other step in the proceeding and with such expedition as the Court can afford it’.
Rule 12.1(1) empowers the Court to ‘make any order that it considers appropriate in the interests of justice’. The order sought by FDN 15 was to the effect that the Court not take the second of the two courses available to it under r 256.5(3)(b). In that context, strictly understood, the primary judge’s rejection of a default position might be taken to be referring only to the question whether to hear applications for extensions of time first, or whether to refer them to be determined together with the merits of the proceedings.
However, that is not the end of the analysis. After determining whether the action has a reasonable basis, the options under r 256.5(3)(b) were either to grant an extension of time or to refer the application to be heard with the merits. Either of those options required a departure from the default position established by r 256.5(2). Break Surf Park’s application FDN 15 was designed to exclude the second of these options prior to the Court hearing the application for an extension of time.
Herein lies the curiosity of the Interlocutory Application FDN 15. The first four respondents had made an application for an extension of time. This was FDN 2. Had Break Surf Park done nothing, as was its entitlement under r 256.5(2), the Court would have been required to determine FDN 2 before anything else happened. On the hearing of that Interlocutory Application, Break Surf Park could have asserted the default position under r 256.5(2). The first four respondents would have been required to satisfy the Court that there was a reasonable basis for the action and that the Court should either grant an extension of time or refer the application to be heard with the merits.
By filing FDN 15, however, Break Surf Park moved the Court to determine not to consider one of the options under rule 256.5(3)(b). To facilitate that, it conceded for the purpose of that application that the application for judicial review was reasonably arguable.
Break Surf Park therefore moved the Court to, effectively, pre-empt its options on the application for an extension of time. This was done together with the confined concession concerning a reasonable basis, earlier mentioned. Break Surf Park undoubtedly had its reasons for making the application. However, this created a procedural complexity that occluded the onus on the first four respondents. The judge was faced with choosing between either taking a step that would allow her to consider the first of the options under r 256.5(3)(b) or taking the second option under that sub‑rule. That is the context in which she made the determination to refer and in which she dismissed the notion of a ‘default position’.
The difficulty with the judge’s interpretation of the rule is that, for the reasons discussed above, r 256.5(2) manifestly establishes a default position, from which an applicant for an extension of time has an onus to persuade the Court to take one or other of the options under r 256.5(3)(b). The four respondents had an onus to persuade the Court that it was an appropriate matter to refer the application.
We are satisfied that the judge erred as a matter of law. The judge explained her conclusion that there was no onus in the following terms:
The reliance placed by the respondents in oral submissions upon the wording of rule 256.5(2) [does] not, in my view, support what is referred to as a default position, nor am I persuaded that the provisions of the rule place an onus upon the applicant to establish that the default course should necessarily not be adopted. Rather, these matters need to be considered and determined as questions of case management in respect of the matters before the Court. They should also be considered in the context of this Court seeking to list and determine judicial review proceedings with appropriate expedition.
Notwithstanding the complexity generated by the Interlocutory Application FDN 15, the judge founded this statement squarely on the rejection of a proposition that r 256.5(2) does not create a default position. That was an error. The text and structure of r 256.5 clearly establish a default position to the effect that no further steps are to be taken until the application for an extension of time is determined, either by granting the extension of time, refusing the application, or referring it. The considerations discussed above, and addressed in Hall v City of Burnside,[11] make it clear that the determination of that application is not merely a question of case management. The first four respondents had an onus to persuade the judge that the application for an extension of time should be referred to be determined with the merits of the proceeding.
[11] (2006) 102 SASR 298 at [47]; [49]-[50].
The two cases relied on by the first four respondents for the proposition that it is usually inappropriate to determine an application for an extension of time separately from the merits may be put to one side. They were decided under a different rule in New South Wales.[12]
[12] Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 at [93] (Davies J) and Dubow v Mid-Western Regional Council [2021] NSWSC 225 at [31]-[34] (Gleeson J), regarding r 59.10 of the UCPR. An appeal against Cudgegong Australia was allowed by the Court of Appeal in Cudgegong Australia Pty Ltd v Sydney Metro [2018] NSWCA 298 on a basis that did not affect the observations made about the extension of time. The observations made about that in Cudgegong Australia were, in any event, obiter dicta. Cf Bell v Deputy Coroner of South Australia (2020) 138 SASR 467 at [307] (Blue J), decided under a different rule.
In the circumstances in which this issue arose, the proper construction of the rule, which can have a considerable effect on the appropriate conduct of pre-trial steps on applications for judicial review generally, is a matter that warrants the attention of this Court.
For this reason, the Court granted leave to appeal on Ground 1.a.
The alternative complaints of error
The balance of Ground 1 and Ground 2 make various complaints about the judge’s determination of the application on the alternative premise that the applicants for an extension of time did have an onus to establish that the application should be determined together with the merits of the application for judicial review. Given that the judge also addressed the question on this alternative basis, it is necessary for Break Surf Park to obtain leave to appeal on at least one of these complaints, and to succeed on the appeal. The judge held:
I would find, in any event, even if there was an onus placed upon the applicant to establish that the hearing of the extension of time should be heard and determined together with the substantive proceedings, that that onus has been discharged. I do not accept, on the material before me, the submission of the respondents that a separate hearing of the application for extension of time that the proposed grounds for success can be evaluated in what is referred to as the usual prima facie way.
Having regard to the respective affidavit material put forward by the parties and the submissions of the parties, it is my view that there would be an unnecessary duplication of the evidence and arguments in respect of the issues going to the extension of time and the issues going to the merits of the judicial review application.
As a matter of case flow management, in my view, it is neither in the interests of justice nor would it advance the timely and cost-effective resolution of the matters in dispute before the Court to have the hearing and determination of the extension of time proceed and be heard separately to the hearing of the substantive merits of the matter.
It is relevant to note that the practice of this Court – is to hear and determine judicial proceedings with appropriate expedition.
The judge indicated that she thought the parties’ estimates of time to be optimistic but considered that the matter could be ‘timetabled with a view to the matter proceeding to a listing conference as soon as practicable’. As to the possibility of delay, she said:
The splitting of the issues has the potential to delay the final resolution of the matter and to result in the possibility of multiple appeals. It would also seem on the material currently before the Court that discovery issues would also be split, leading to further potential delay in the final resolution of the matter. Whilst there has been some material placed before the Court concerning the urgency of the application, and I have had regard to the material, that is the type of material that can be found concerning decisions of planning consents and development applications.
The types of challenges that are brought in this case, concerning planning consents and development applications, are not uncommon before this Court and are ordinarily dealt with as judicial review proceedings which are heard and determined with appropriate expedition.
The balance of the amended appeal grounds read as follows:
1.The trial judge erred in law as particularised below.
…
b.    The trial judge failed to have regard to relevant considerations, being:
i.the purpose of rule 256.5;
ii.the very substantial wasted costs and court time that would result from a combined hearing in the event the Applicants below do not obtain an extension of time;
iii.the concessions made by the Appellant and the Second and Third Respondents below;
iv.the evidence of urgency and prejudice; and
v.the fact that separate determination of the time extension application could [be] completed far more expeditiously than a full hearing on the merits.
c.     The trial judge was wrong to hold (at pp. 14-15) that, because “the practice of this Court is to hear and determine judicial review proceedings with appropriate expedition” the evidence of urgency had no weight.
d.    The trial judge erred by giving determinative weight to the risk of duplication of evidence or argument, the potential for multiple appeals, and the risk of splitting discovery applications.
e.     The trial judge erred in holding (at p. 13) that “the proposed grounds for success [cannot] be evaluated in … the usual prima facie way”.
2.The trial judge erred in law, or mixed fact and law, by failing to hold that urgent and separate disposition of the time extension application was warranted by the evidence adduced by the Appellant.

We have set out, broadly, the considerations relevant to a grant of leave to appeal at the commencement of these reasons.
The judge’s reasons for referring the extension of time on the alternative basis were short. That is not necessarily a criticism. While the reasons were economical, there is no reason to think that the judge overlooked the importance of certainty and finality in the determination of development applications and the financial prejudice consequent on deferring the determination of an application of an extension of time to apply for judicial review. As discussed earlier, it is appropriate to encourage expeditious determinations of interlocutory applications such as occurred in this case. For the reasons discussed above, Break Surf Park’s application FDN 15 took the proceedings out of their usual course in any event.
As to the risk of duplication and overlap, it became apparent during the hearing of the appeal that certain issues arising on the Originating Application may carry a degree of overlap on any separate application for an extension of time.
The first concerned the withdrawal of the Variation Application to install lighting towers. The first four respondents wish to explore the circumstances of the withdrawal of the Variation Application. The Variation Application was only lodged in November 2024, after the six-month period for commencing proceedings had expired. However, the first four respondents are concerned that the lighting the subject of that application has always been in the contemplation of Break Surf Park, and that its exclusion from the original development application until after the period for commencing judicial review proceedings was designedly done to avoid public notification. Given the much later lodging of the Variation Application, these issues may be relevant both to the application for an extension of time and the merits of the application.
This description is sufficient to show that there may indeed be an overlap of issues between the extension of time application and the merits. The application for an extension of time is entitled to look not just to whether the application for judicial review has a reasonable basis as contemplated by rule 256.5(3), but to the strength of the complaint.
Another issue that the first four respondents raise concerns the instrument of delegation. It appears that after the solicitors for the first four respondents had made more than one request to be provided with the instrument of delegation, the solicitors for the Onkaparinga City Council provided a signed document expressing the necessary delegations. However, the document was headed ‘Draft Wording to Delegate…’. It referred to the file number of the development application. Curiously, however, the delegations were expressed to be made on 26 September 2023, which was a date before the development application was lodged.
The first four respondents wish to explore this anomaly also. The instrument was not provided until after proceedings had been commenced. Obviously enough, the timing of provision of a document with what may be significant flaws on its face would be relevant both to the extension of time application and the merits of the application for judicial review.
It is not necessary to describe these issues further. It was open to the judge to consider that issues of potential duplication and overlap supported referral of the application for an extension of time. Moreover, these observations are sufficient to support the judge’s view that the prospects of success could not be evaluated in a prima facie way. In so far as the judge failed to address whether there was a reasonable basis, Break Surf Park did not raise this issue on appeal and, notwithstanding the absence of a ruling, the matters to which we have referred demonstrate that there was a reasonable basis for the action.
The judge’s apparent reliance on what she described as a practice of this Court in hearing and determining heard judicial review applications ‘with appropriate expedition’ is harder to understand. First, r 256.5 places an onus on an applicant with respect to any application for extension of time against the background of the Court’s practices, lists and resources. Secondly, it is difficult to know what this comment really means. The first four respondents gave a total estimate to the judge of 3-4 days of hearing. Assuming that a listing judge might wish to allow five days, given the potential for the issues identified above to require extended exploration, a trial of that length cannot necessarily be accommodated expeditiously, having regard to the extant listings of the Court.
We would not endorse those comments as providing substantive support to an order referring the extension of time application. However, having regard to the matters to which the judge also had regard, economically expressed as they were, and the evidential support for the judge’s exercise of discretion, we do not consider that the remaining complaints warrant a grant of leave to appeal.
Conclusion
For these reasons, the orders of the Court are:
1.Leave to appeal is granted on Ground 1.a. of the Notice of Appeal.
2.The appeal is dismissed.
We will hear the parties as to costs. A judge of the General Division will contact the parties regarding an early listing of the matter.
S DOYLE JA: I have read the joint reasons of Livesey P and Bleby JA, and gratefully adopt their Honours’ summary of the relevant facts and circumstances, and their analysis of the operation of rule 256.
I agree with their Honours’ observations as to the construction and operation of that rule. I particularly wish to associate myself with their Honours’ observations as to the public interest in favour of certainty and finality in administrative decision making, including in the determination of planning applications. As their Honours explain, this public interest informs the proper construction of that rule, and the Court’s approach to any extension of the time within which to bring applications for judicial review.
However, for reasons I will explain, I do not think that the primary judge erred in her approach to, or application of, that rule.
There is no doubt that rule 256 introduces a default position and onus in relation to judicial review proceedings which are brought out of time. By reason of the combined operation of rules 256.5(2) and (3), a person bringing out-of-time judicial review proceedings must demonstrate that it is appropriate that they have leave to proceed, and that their proceedings not be dismissed. In that sense, there is an onus on the person bringing the proceedings, and a corresponding default position of dismissal in the absence of that onus being discharged.
Whilst the Court has a discretion in determining whether to grant leave or dismiss the proceedings, in order to discharge the onus, and avoid the default position, the applicant must satisfy the Court that there is a reasonable basis for the action for judicial review (rule 256.5(3)(a)). The applicant must also persuade the Court to either grant the applicant an extension of time (after an early separate hearing of that issue), or order that the application for an extension of time be referred for a joint hearing of that issue with the hearing of the merits (rule 256.5(3)(b)).[13]
[13] Implicitly, but obviously, if the Court is not satisfied that the application has a reasonable basis, or decides (after an early separate hearing of the application for an extension of time) to refuse an extension of time, then the Court will refuse leave to proceed and dismiss the action.
Understood in this way, rule 256.5(3)(b) contemplates that the Court will choose between two mechanisms for addressing the application for an extension of time: an early separate hearing, or a later joint hearing. However, that sub-rule does not expressly, or impliedly, favour either of these mechanisms. It does not introduce a separate and second onus, or default position in favour of an early separate hearing of the application for an extension of time. In circumstances where the sub-rule requires merely that the applicant satisfy the Court that it should proceed in one of two ways, it is difficult to see how this could be construed as establishing an onus or default position as between those two ways of proceeding.
Rather than there being any default position, I consider that the Court retains an unfettered discretion as to the mechanism for addressing the application for an extension of time. It is to be accepted that, in exercising that discretion, the public interest in favour of certainty and finality in administrative decision making may weigh in favour of an early determination of the application for an extension. However, that is not the same as saying that there is a default position, or starting point, in determining the appropriate mechanism. This public interest will need to be considered in the context of the usual case management considerations which bear upon the choice between the two mechanisms, including the nature and extent of any overlap in the issues raised by the extension application and by the grounds for review, and the likelihood and extent of any saving of time and cost associated with each of the alternatives.
In other contexts, it has been observed that the courts are generally reluctant to depart from a joint hearing of all issues. However, it is not appropriate to generalise in the present context. Just as there is no default position in favour of an early separate hearing, there is no default position in favour of a later joint hearing. The decision whether to proceed with an early separate hearing or later joint hearing will depend very much on the circumstances of the particular case, having regard to both the public interest and case management considerations to which I have referred.
In any event, the important point for present purposes is that rule 256.5(3)(b) does not introduce a second onus or default position in favour of an earlier separate hearing of the application for an extension of time. It does not require that the applicant establish that a later joint hearing is appropriate. All it requires is that the Court make an early grant of the extension or refer it for later joint determination. The only circumstance in which rule 256.5(3)(b) will not be satisfied is if there has been an early refusal of the extension.
Turning to the primary judge’s reasons, I do not understand her Honour to have suggested that there was no overarching onus or default position under rules 256.2(2) and (3) in the sense I have described. In circumstances where there had been a concession that the proceedings had a reasonable basis for the purposes of r 256.2(3)(a), her Honour was only addressing a submission to the effect that there was a (further) onus on the applicant to establish that it was appropriate to defer consideration of the application for an extension of time to a later joint hearing of that application, and that there was a corresponding default position in favour of an early separate hearing of that application. In other words, her Honour was only addressing a submission in support of what I have referred to as a second onus and default position as between the two mechanisms mentioned in rule 256.5(3)(b) for determining the application for an extension of time.
Having earlier noted the concession by counsel for The Break Surf Park Investments Pty Ltd that there was a reasonable basis for the judicial review proceedings for the purposes of rule 256.5(3)(a), her Honour commenced the operative section of her ex tempore reasons as follows:
… I am not persuaded that the position stated in Uniform Civil Rule 256.5 provides a default position that extensions of time should be heard and determined in advance of the merits of proceedings.
The reliance placed by the respondents in oral submissions upon the wording of rule 256.5(2) [does] not, in my view, support what is referred to as a default position, nor am I persuaded that the provisions of the rule place an onus upon the applicant to establish that that default course should necessarily not be adopted. Rather, these matters need to be considered and determined as questions of case management in respect of the matters before the Court. They should also be considered in the context of this Court seeking to list and determine judicial review proceedings with appropriate expedition.
…
I would find, in any event, even if there was an onus placed upon the applicant to establish that the hearing of the extension of time should be heard and determined together with the substantive proceedings, that that onus has been discharged. …
In my view, it is reasonably clear from the first and third paragraphs that her Honour’s references to a ‘default position’ and ‘onus’ were confined to the dispute between the parties as to which of the two mechanisms in rule 256.5(3)(b) the Court should adopt. In other words, her Honour was merely rejecting the existence of what I have referred to as a second onus or default position under that sub-rule.
Further, I would read the second paragraph as confined in the same way. Whilst her Honour referred to rule 256.5(2), I understand this paragraph as a rejection of a submission to the effect that the wording and overarching onus in that sub-rule somehow supported the existence of a (second) onus and default position as between the two mechanisms in rule 256.5(3)(b). This understanding seems to follow from a plain reading of the first sentence of the second paragraph, with the references to ‘default position’ and ‘onus’ being references to the same default position and onus referred to in the first and third paragraphs.
Understood in this way, her Honour’s reasons do not disclose any error in the construction of rule 256. The impugned passage is directed only to the rejection of an erroneous assertion of a second onus or default position between the two mechanisms in rule 256.5(3)(b). In my view, that is the plain reading of her Honour’s reasons. But even if it were to be accepted that there was some infelicity in expression, given the ex tempore nature of the reasons, I would not read them with an eye too keenly attuned to the perception of error. As the joint reasons point out, swift decisions (and ex tempore reasons) are to be encouraged in matters of practice and procedure.
I agree with the observation in the joint reasons that the pursuit of application FDN 15 introduced some procedural complexity, but I do not think that it affects what I have said above as to her Honour’s approach to the construction of rules 256.5(2) and (3).
I see no basis for inferring that her Honour overlooked the existence of the overarching onus upon an applicant who issues out-of-time judicial review proceedings to demonstrate a basis for a grant of leave and to avoid dismissal. Nor do I see any basis for inferring that her Honour otherwise overlooked the public interest in favour of certainty and finality in administrative decision making, particularly given her earlier reference to the critical passages from the Full Court’s reasons in Hall v City of Burnside.[14]
[14] Hall v City of Burnside (2006) 102 SASR 298 at [47]-[50] (Doyle CJ), [77]-[83] (Duggan J).
Having rejected the contended error of principle, I am not persuaded that there is merit in the balance of the complaints sought to be raised on appeal. For the reasons set out in the joint reasons, I am satisfied that the decision made by her Honour was within her discretion. No error in the House v The King[15] sense has been demonstrated.
[15] House v The King (1936)55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
I endorse the observations in the joint reasons as to the reluctance with which this Court should grant permission to appeal in matters of practice and procedure. Even though I have ultimately found no error of principle, I am satisfied that the proposed appeal raised a legitimate, and somewhat nuanced, issue of principle with potentially significant practical implications for the management of judicial review proceedings.
I would therefore join in the orders proposed in the joint reasons, namely granting permission to appeal on Ground 1(a), but dismissing the appeal.