WYKANAK v ROCKDALE CITY COUNCIL [1999] NSWCA 191

New South Wales Court of Appeal CITATION : WYKANAK v ROCKDALE CITY COUNCIL [1999] NSWCA 191 FILE NUMBER(S) : CA 40851/98; 40928/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

DOMINIC WYKANAK PARTIES : v ROCKDALE CITY COUNCIL & ORS JUDGMENT OF : Mason P at 17; Handley JA at 1; Giles JA at 18

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : 97/40005 LOWER COURT JUDICIAL OFFICER : Pearlman CJ

COUNSEL : Claimant - In person Opponent - S B Austin QC/S A Duggan Opponent - In person Opponent 1 - Abbott Tout (Rockdale City Council) SOLICITORS : Opponent 2 - Robinson Creais (Oceanview) Opponent 3 - Pike Pike & Fenwick (Plexvon) Opponent 4 - Director Legal Services, Minister Urban Affairs and Planning CATCHWORDS : APPEAL - extension of time for appeal - relevance of prospects of success - Supreme Court Act 1970 - s 46 (2)(a) ACTS CITED : Supreme Court Act 1970 Environmental Planning and Assessment Act CASES CITED: Gallo v Dawson (1990) 64 ALJR 458 at 459 DECISION : Notice of motion dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40851/98 40928/98 MASON P HANDLEY JA GILES JA

Thursday 3 June 1999 DOMINIC WYKANAK v ROCKDALE CITY COUNCIL

JUDGMENT 1 HANDLEY JA: The first matter before the Court is a notice of motion of 2 March filed by the claimant, Mr Dominic Wykanak, which seeks a review under s 46(2)(a) of the Supreme Court Act of a decision of Stein JA on 1 March who had refused to extend time for an appeal to be brought to this Court from a decision of Pearlman CJ of the Land and Environment Court. 2 The matter was properly before Stein JA under s 46(2) of the Supreme Court Act which gives this Court power to discharge or vary a judgment given by a Judge of Appeal sitting alone. 3 The proceedings before Pearlman CJ were commenced by application and points of claim in Class 4 filed on 8 January 1997. The case went to trial on 22 April 1998 and concluded on 5 June. Her Honour's reserved judgement was given on 20 July. 4 The first attempt by Mr Wykanak to challenge the decision of Pearlman CJ occurred on 23 October 1998, more than three months after the judgment sought to be appealed from. Under SCR Pt 51 r 5 the prescribed time for an appeal was 28 days but r 5(4) enables this Court to extend the time at any time and it is the refusal of Stein JA to exercise that power which is the subject of the present application. 5 The principles which this Court applies where an extension of time is sought for an appeal, after the time prescribed by the Rules of Court has expired, are those stated by McHugh J in Gallo v Dawson (1990) 64ALJR 458 at 459. His Honour said:

"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court … to do justice between the parties ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal ... It is also necessary to bear in mind in such an application that upon the expiry of the time for appealing the respondent has a vested right to retain the judgment unless the application is granted ... It follows that before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy the rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion". 6 In this case a local environmental plan and development approvals have been unsuccessfully challenged in Class 4 proceedings in the Land and Environment Court, and the time for appeal has expired without any application having been made for an extension of the period for filing a notice of appeal. The parties with the benefit of those development approvals therefore have a vested right to retain the judgment upholding the validity of those approvals unless an application for an extension of time is granted. 7 In cases such as this where construction work is proceeding pursuant to development approvals, the need for diligence in prosecuting appeal rights is obvious and the prejudice to a respondent with a vested right to retain a judgment if the extension of time is granted is equally obvious. The Court has to be cautious in granting an application such as the present where the vested right of the respondents would be destroyed by any such order. 8 Moreover, as McHugh J pointed out, it is always necessary to consider the prospects of the applicant succeeding in the appeal. The Court has read the reasons for judgment of the Chief Judge of the Land and Environment Court and of Stein JA who, as is well known, is very experienced in Land and Environment Court matters. 9 The only substantial challenge made by the claimant in argument was that the application of the privative sections, ss 35 and 104A of the Environmental Planning and Assessment Act, was displaced because the decisions of the Council had been made in bad faith. 10 Her Honour dealt with this matter thoroughly and carefully at pp 10-12 of her reasons for judgment. Mr Wykanak wished to rely upon a deed dated 4 July 1997 which elsewhere in the document was dated 21 November 1996 to advance his argument that the Council had acted in bad faith. In my opinion the deed, if it had been produced before the trial Judge or before Stein JA, or was admitted as additional or fresh evidence in this Court, would not have advanced the claimant's case. He established by the tender of the minutes of the Council meeting of 14 November all or practically all that tender of the original deed would have established. The trial Judge drew inferences in favour of Mr Wykanak from those minutes and the deed could not have established any more. 11 There is no reason to doubt the correctness of her Honour's reasons at pp 10-12 which led her to reject the challenge to the relevant planning instruments on the ground of bad faith. 12 I have also considered the other matters raised by the claimant in his attack on the decision of the Chief Judge but have concluded, in agreement with Stein JA, that the proposed appeal lacks any appreciable prospects of success. In accordance with the statement of principle of McHugh J in Gallo v Dawson this is a proper reason for this Court to refuse the present application. 13 In my judgment therefore the notice of motion fails and should be dismissed with costs. 14 I have been reminded that I have said nothing about the medical certificate which Mr Wykanak tendered in this Court dated 12 November 1998 from the Aboriginal Medical Service Co-operative Limited which has become Ex A. In this certificate, Mr Mackenzie, the medical officer, says that he has seen Mr Wykanak six times since August 1998 for treatment for a severe anxiety disorder with panic attacks. This matter was considered by Stein JA who referred to it at pp 4 and 5 of his reasons for judgment. 15 In a case where the appeal had substantial merit, the Court would be disposed to favourably consider an extension of time for a litigant in person who had been disadvantaged by illness which explained, in whole or in part, his failure to lodge the appeal within time and delay thereafter before the application was made. In the present case however the certificate does not explain the whole period of delay from 20 July to 23 October and during that period the claimant had prepared for and taken part in the costs argument before the Chief Judge of the Land and Environment Court on 23 October. However the critical factor is that the appeal has no appreciable prospects of success and even if it had been filed within time would have been bound to fail. 16 In these circumstances there is no occasion to extend the time simply because of the medical problems that Mr Wykanak was suffering between August and November 1998. 17 MASON P: I agree. 18 GILES JA: I also agree. 19 MASON P: For those reasons the motion to review the orders of Stein JA on 1 March 1999 is dismissed with costs. Discussion 20 MASON P: The Court has also heard argument in relation to a challenge to the costs order made at the conclusion of the proceedings below by Pearlman J. Her Honour's reasons were given on 23 October 1998. 21 There was a notice of appeal without appointment filed on 30 October 1998. A notice of appeal with grounds was filed on 22 or 23 February 1999 and a notice of motion seeking leave to file a summons for leave to appeal out of time was filed on 26 February 1999. 22 The costs order, if seen separately as being under challenge, would require a grant of leave. The way the matter has progressed that is, I think, the proper way in which the matter should be addressed. In any event, even if there an appeal as of right, it was not prosecuted in the appropriate timely way. The Court has heard argument about the substance of the matter and I think it is appropriate that we should address it on its merits. 23 I am not satisfied that her Honour erred in any way in the exercise of the discretion that was vested in her in relation to costs. It is clear that she addressed the Oshlack principles. She recognised that this litigation qualified as public interest litigation, or at least she was prepared to treat it as such. But, notwithstanding that, for reasons given she held that it was proper that costs should follow the event. 24 One matter that was pressed in argument was the fact that her Honour did not in terms in her reasons address an argument based upon Pt 15 r 7 of the Land and Environment Court Rules. 25 In the original application filed in the Land and Environment Court there was a challenge by Mr Wykanak to the draft LEP and to a development consent given in reliance upon the draft LEP. However, in late 1997 there was a surrender of the rights stemming from that development consent and it was clear from that time onwards that the true issue was the validity of the final LEP and the ensuing development consent based upon it. 26 Nothing to which the Court has been referred indicates that any time was spent or any costs incurred in the litigation referable to this issue which had dropped away well before the hearing, indeed well before the application was amended on 24 April 1998 to add what became the substantive issues. The portion of the transcript to which we were taken indicates that her Honour was seised of the argument. In my view it is hardly surprising, on the facts that I have referred to, that her Honour did not advert to it in terms. 27 I am not persuaded that there is any prospect of success in relation to the challenge to the discretionary order as to costs. Accordingly, I would not exercise the discretion either to grant leave or to extend the time to enable an appeal as of right which (if it existed has lapsed) to be reinstated. 28 Accordingly, I propose that the notice of motion dated 26 February 1999 be dismissed with costs. 29 HANDLEY JA: I agree. 30 GILES JA: I also agree. Discussion 31 MASON P: The Council's application for security for costs in the appeal is dismissed with no order as to costs.

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