Land and Environment Court New South Wales

• Medium Neutral Citation: Australia Skydive Pty Ltd v Wyong Shire Council [2014] NSWLEC 185
• Hearing dates: 21 November 2014
• Decision date: 21 November 2014
• Jurisdiction: Class 4
• Before: Craig J

Decision

1. Extend time until 13 June 2014 for the Applicant to commence proceedings in the form of the Summons filed with the Court that day;

2. Stand over the Summons to Friday 19 December 2014 for directions.

3. By consent, costs of the Motion for extension of time be costs in the cause.

3. Reserve liberty to either party to restore the proceedings to the List on 3 days' notice.

4. Exhibits tendered on the Motion may be returned.

• Catchwords: JUDICIAL REVIEW - motion to extend time to commence judicial review proceedings - Uniform Civil Procedure Rules 2005 Pt 59, r 59.10 - Council resolution to increase differential airport charges for adventure sports aircraft - explanation for delay in commencing proceedings - 19 days outside limitation period - non-litigious steps initially pursued - arguable grounds for challenge - time extended
• Legislation Cited: Local Government Act 1993 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Brisbane South Regional Health v Taylor [1996] HCA 25; 186 CLR 541
• Category: Procedural and other rulings
• Parties: Australia Skydive Pty Limited (Applicant); Wyong Shire Council (Respondent)
• Representation: M J Astill (Applicant); P W Larkin SC with E Whitby (Respondent); Maddocks Lawyers (Applicant); Brian Glendenning, Wyong Shire Council
• File Number(s): 40419 of 2014

EX TEMPORE Judgment

1 By a summons filed on 13 June 2014, Australian Skydive Pty Limited (the Applicant) seeks declarations of invalidity of two resolutions of Wyong Shire Council (the Council) made on 26 February 2014. Those resolutions relate to the imposition of fees for the use by aircraft of Warnervale Airport (the Airport). The Airport is owned by the Council.

2 The Applicant's summons correctly identifies the proceedings as being judicial review proceedings. As such, it engages the provisions of Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 59.10(1) requires that proceedings to which the rule applies be commenced within three months of the date of the decision sought to be impugned. As will be apparent from the dates I have earlier recited, the proceedings were not commenced within three months of the Council's resolution of 26 February 2014. A summons not having been filed until 13 June, the proceedings were commenced some 19 days out of time.

3 The Applicant now applies by motion to extend the time for commencing its proceedings. The application to extend time is opposed by the Council. In the context of proceedings to which Pt 59 relates, the discretion to extend time is expressly provided by r 59.10(2). In exercising that discretion, the provisions of r 59.10(3) must be noticed. That subrule provides:

"(3) In considering whether to extend time under subrule (2) the court should take account of such factors as are relevant in the circumstances of the particular case including the following:

(a) any particular interest in the plaintiff challenging the decision,

(b) possible prejudice to other persons caused by the passage of time if the relief were to be granted including but limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision; and

(d) any relevant public interest."

4 In support of its motion to extend time, the Applicant relies upon the affidavit evidence of Adrian Kennedy. Mr Kennedy is the chief executive officer of the Applicant. He describes the Applicant's business as an adventure tour operator, focusing upon the provision of skydiving tours, with seven drop zones around Australia. One of those drop zones for parachutists is a public reserve known as Pioneer Dairy on the shores of Tuggerah Lakes. Aircraft carrying skydivers or parachutists using that drop zone take off and land at the Airport. That activity has been occurring since November 2013.

5 When the Applicant's activities commenced in November 2013 the Applicant was required to pay an annual fee to park an aircraft at the Airport and use it for take-off and landing in the sum said to be approximately $1600. The Applicant accepted that as being appropriate and, I infer, paid that fee as it was required to do.

6 In December 2013, the Council resolved to publicly exhibit a proposed new fee structure for use by aircraft of the Airport. That public exhibition took place and on 26 February 2014 the Council resolved to adopt the new fee structure. The basis upon which the fee or fees were to be paid under that new structure differed from those that were applied when the Applicant commenced its operation. Four components of an aggregate fee were introduced.

7 First, an annual fee was to be payable, calculated upon both the maximum take-off weight of an aircraft and also upon the activity for which that aircraft was to be used. The second component involved a usage fee payable for each take-off and landing, based upon the maximum take-off weight of the aircraft in question, coupled once again with the purpose for which that aircraft was to be used.

8 The highest fee that was payable was for "adventure sports aircraft" which differed from the maximum take-off weight of other aircraft which were charged for using the Airport, but which were not intended to be used by adventure sports. The third component of the fee was an annual aircraft parking fee and the fourth component of the new charges was a fee for refuelling any aircraft at the Airport.

9 Based upon the usage of the Airport by the Applicant, it estimates that new charges would result in the payment of fees totalling somewhere between $350,000 and $530,000 per annum. There may be some debate about the precise figures, but the Council accepts that the new fees would likely be several orders of magnitude higher than the fees payable prior to the Council's resolution of 26 February 2014. At that level of difference in fees, Mr Kennedy stated that the operation of the Airport would, for the Applicant, be no longer a viable activity.

10 Mr Kennedy acknowledges that he was aware of the Council's proposal to impose the new charges. He made a number of submissions to the Council upon learning of the proposal and did so prior to the meeting on 26 February. Further, he was made aware of the Council's resolution on the evening of the meeting.

11 Thereafter he referred the decision, by way of complaint, to a number of entities, including the Council's internal ombudsman, the Australian Competition and Consumer Commission (the ACCC) and also to the Independent Commission Against Corruption (the ICAC). He detailed his complaint and concern at what had occurred with each of those bodies.

12 From 4 March 2014, that is a little more than a week after the resolution of the Council, until 28 April 2014, Mr Kennedy was on leave from his position due to ill health. He says that during that period he did not have access to any emails and his telephone was diverted to his personal assistant. He further says that he only became aware on 6 June of this year that there was a three month period in which to bring proceedings to challenge the Council's decision to impose new Airport charges. As will have been observed, the present proceedings were commenced promptly after his learning of that limitation period, the summons having been filed within about a week.

13 It should also be recorded that throughout the period in which the events that I have described occurred, there was other litigation involving the Applicant, the Council and the Central Coast Aero Club, the latter being the organisation that was licensed by the Council to manage the Airport. The Applicant had obtained an interlocutory injunction in the Supreme Court at the end of 2013 restraining both the Council and the Aero Club from interfering with the Applicant's operations at the Airport. Those proceedings were subsequently transferred to this Court. The Council had commenced proceedings in this Court against the Applicant seeking to restrain its use of the Pioneer Dairy drop zone in the absence of any development consent to use it for that purpose. Finally, the Respondent had commenced its proceedings in Class 1 of this Court's jurisdiction, being an appeal against the development consent that had been granted by the Council limited, so it seems, to the conditions which the Council had imposed upon the grant of that consent.

14 As I have said, the Council opposes the Applicant's application for an extension of time. In summarising its submissions in the way I am about to do, I intend no disservice to the detailed and comprehensive submissions that were advanced on its behalf. The Council advanced essentially three grounds in opposing leave. First, it says that there is no proper explanation tendered by the Applicant for its failure to have commenced the proceedings in time. Being aware of the Council's decision from 26 February no explanation is offered as to why it was that the Applicant did not take action well before the expiration of the three month period. Second, it submits that the grounds upon which the Applicant brings its proceedings are weak. Third, it submits that there is prejudice to it in the sense that it is uncertain whether the Council will be denied the recovery of charges imposed by the February resolution for use of the Airport that has already taken place in the period to date. The Council also submits that there is prejudice to the public generally in removing the certainty that attends the making of the decision in the absence of any challenge within the three month limitation period.

15 There is no doubt that the Applicant bears a responsibility to establish its entitlement to an extension of time by reason of the delay and to justify that delay as warranting the extension sought. So much is identified in r 59.10(3). I am also conscious of the principle that the granting of an extension of time where limitation periods otherwise imposed operates as an exception to the position that should pertain, namely adherence to the limitation period fixed by the regulatory authority (Brisbane South Regional Health v Taylor [1996] HCA 25; 186 CLR 541 at 544 and 553-554). However, as was acknowledged in all cases dealing with the exercise of discretion of this kind (and also acknowledged by the parties in the present case), the circumstances of each case must be considered in order to determine, subject to the underlying principle that I have identified, whether or not the discretion should be exercised.

16 I am satisfied that in the circumstances of this case it is appropriate to exercise the discretion to extend time as sought by the Applicant, essentially for reasons that I will shortly state. First, the period by which the imitation period was exceeded was a very short period, namely a period of 19 days. This does not involve a lengthy delay. Second, it is apparent that the Applicant has a potentially significant interest in the challenge which it makes to the imposition of charges imposed by the Council's resolution. In that context, the evidence discloses that not only does the Applicant service a significant number of "customers" utilising the skydive facility from the Airport to the drop zone site but also it has a number of employees dependent upon the operation of the Warnervale facility. There are a number of capital items that have been purchased for use and only for use at that Warnervale facility, including an aircraft that is stationed at the Airport and acquired solely for use in Skydive operations utilising the Airport. While it may be that the value of the aircraft can be realised if need be, what is apparent is that it cannot be readily deployed otherwise in the Applicant's business.

17 Certainly the explanation that the Applicant offers for delay could have been more extensively elaborated. However, the illness of Mr Kennedy for what is a significant part of the limitation period, coupled with his efforts to seek redress for what he regarded to be an unjust imposition of fees, through recourse to other agencies, in particular the ACCC and ICAC, without resorting to litigation, demonstrated that in that period he did not sit idly by without seeking to redress for what he regarded as a wrong. Further, he was not challenged on his statement that he was unaware until 6 June 2014 that the three month limitation period applied. Having learned of that fact, he acted promptly to ensure the proceedings were commenced.

18 It certainly is the case that there was ready access to legal advisers during the limitation period, particularly as the Applicant was involved in the litigation with the Council to which I have earlier referred. However, the course that Mr Kennedy was taking, without involving legal advisers, seems to me to provide at least an explanation as to why it was that he might not have taken up the present matter with his legal team, with a view to seeking redress without incurring further legal costs.

19 Both parties acknowledge that for the purpose of determining this application I am not required to reach a final view as to the likely success of the Applicant on the grounds of challenge that it makes to the decision of the Council. Those grounds have been addressed on a very preliminary basis and with what might be described as only minimal evidence, undoubtedly to be supplemented if each of those grounds are to be pursued.

20 A claim based on the failure by the Council to comply with the provisions of Div 3 of Pt 10 in Ch 15 of the Local Government Act 1993 (NSW) when imposing the new fees which it did by its February resolution is to my mind an argument that is at least reasonably open to be advanced. Other grounds relied upon may need to be considered and be the subject of appropriate interlocutory steps for directions prior to the matter being fixed for hearing. While I was referred to authority addressing the ground that the charges were discriminatory, I observe that the authorities are not all one way on that topic. However, that is a matter for argument at a later time.

21 In making those brief observations I am in no way expressing any concluded view on the merits of any of the Applicant's grounds of challenge. My only purpose in identifying these matters is to indicate that at least a number of the bases upon which the Applicant seeks to challenge the decision of the Council of 26 February are not so devoid of reasonable argument that they should be weighed in the balance at this point in time as militating against the exercise of the discretion which I clearly have under r 59.10(3).

 

22 For these reasons the orders that I make are:

1. Extend time until 13 June 2014 for the Applicant to commence proceedings in the form of the Summons filed with the Court that day;

2. Stand over the Summons to Friday 19 December 2014 for directions.

3. By consent, costs of the Motion for extension of time be costs in the cause.

3. Reserve liberty to either party to restore the proceedings to the List on 3 days' notice.

4. Exhibits tendered on the Motion may be returned.

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Decision last updated: 27 November 2014