Land and Environment Court New South Wales

• Medium Neutral Citation: Ashton Coal Operations Pty Ltd v Director General, Department of Environment Climate Change and Water [2011] NSWLEC 1162
• Hearing dates: 16 June 2011
• Decision date: 17 June 2011
• Jurisdiction: Class 1
• Before: Pearson C; Sullivan AC

Decision

Notice of motion dismissed

• Catchwords: Practice and procedure - joinder of party - Double Bay Marina order
• Legislation Cited: Civil Procedure Act 2005; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; National Parks and Wildlife Act 1974; National Parks and Wildlife Regulation 2009; Uniform Civil Procedure Rules 2005
• Cases Cited: Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63; Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205; Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195; Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; Onus v Alcoa of Australia Ltd (1981)149 CLR 27; State of Victoria v Sutton (1998) 195 CLR 291; Tweed Shire Council v Minister Administering the Crown Lands Act and Tweed Byron Local Aboriginal Land Council (1996) LGERA 80
• Category: Procedural and other rulings
• Parties: Ashton Coal Operations Pty Ltd (Applicant); Director General, Department of Environment Climate Change and Water (Respondent)
• Representation: Counsel; S Lloyd SC with T Howard (Applicant); S Pritchard (Respondent); Solicitors; McCullough Robertson (Applicant); Legal Services Branch, Department of Environment Climate Change and Water (Respondent); A Oshlack (agent) (Applicant on Notice of Motion)
• File Number(s): 10335 of 2011

EX TEMPORE Judgment

1 Mr Scott Franks makes application pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR) for joinder as a party to proceedings presently before the Court in Class 1 of its jurisdiction under s 90L of the National Parks and Wildlife Act 1974 (the Act). Those proceedings are an appeal by Ashton Coal Operations Pty Limited (Ashton) against the deemed refusal by the then Director General, Department of Environment, Climate Change and Water, now the Chief Executive, Office of Environment and Heritage (the respondent), of an application made under s 90A of the Act for the issue of an Aboriginal Heritage Impact Permit (AHIP).

2 Ashton opposes the application for joinder. The respondent does not oppose or consent to the application.

Application for an Aboriginal Heritage Impact Permit

3 The background to the AHIP application, which is necessary to understand the application for joinder, is as follows. Ashton operates underground and open cut coal mining operations in the Camberwell district, 14km northwest of Singleton in the Upper Hunter Valley. The operations are conducted subject to a development consent granted in 2002 by the then Minister for Urban Affairs and Planning under the Environmental Planning and Assessment Act 1979 .

4 In 2009 Ashton applied pursuant to s 75W of the Environmental Planning and Assessment Act 1979 to modify the 2002 development consent to provide for the removal of a particular condition, the extraction of coal from the westernmost area of the approved underground mine and the diversion of two sections of Bowmans Creek. Those diversions were identified as the Eastern Diversion (955m), and the Western Diversion (780m), required in order to mitigate subsidence impacts resulting from mining.

5 A delegate of the Minister for Planning approved the modification application on or about 24 December 2010. One of the conditions imposed on that approval included relevantly in relation to Aboriginal heritage sites that Ashton was to ensure that underground mining does not cause any exceedances of specified performance measures, which included "No greater subsidence impact or environmental consequences than approved under a permit issued under s 90 of the National Parks and Wildlife Act 1974".

6 On 28 January 2011 the respondent received Ashton's application for an AHIP which stated that the AHIP was sought for a period of 10 years to cover the activities at Bowmans Creek diversions, the management of subsidence and other surface activities such as construction compounds, access roads and activities to ensure mine safety. By operation of s 90L(6) of the Act, for the purposes of appeal rights under s90L, the application was taken to be refused, and Ashton appealed on 21 April 2011 to the Court.

7 The relevant provisions of the Act are those in Part 6 Div 2. In particular, in making a decision in relation to an AHIP, the Director General is required to consider only the matters listed in s 90K(1) of the Act:

(1) In making a decision in relation to an Aboriginal heritage impact permit, the Director-General must consider the following matters:

(a) the objects of this Act,

(b) actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(c) practical measures that may be taken to protect and conserve the Aboriginal objects or Aboriginal place that are the subject of the permit,

(d) practical measures that may be taken to avoid or mitigate any actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,

(e) the significance of the Aboriginal objects or Aboriginal place that are the subject of the permit,

(f) the results of any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit (including any submissions made by Aboriginal people as part of a consultation required by the regulations),

(g) whether any such consultation substantially complied with any requirements for consultation set out in the regulations,

(h) the social and economic consequences of making the decision,

(i) in connection with a permit application:

(i) any documents accompanying the application, and

(ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979 in connection with the activity to which the permit application relates and that has been received by the Director-General,

(j) any other matter prescribed by the regulations.

8 Under s 90L of the Act the Court may refuse to grant the appeal, or may grant the appeal wholly or in part, and may give such directions in the matter as the Court thinks appropriate.

Proceedings in the Court

9 In order to address Mr Franks' application for joinder it is necessary to outline the course that the proceedings have taken in the Court. On 13 May 2011 the Registrar ordered that the proceedings be expedited. In making the application for expedition Ashton relied on an affidavit sworn by Mr Brian Wesley, General Manager, deposing as to the conduct of the mining operations and the consequences of delays in production arising from the timing of the decision on the project approval and the delay in granting the AHIP. The matter was initially listed for hearing on 2 and 3 June 2011, however those hearing dates were changed to 31 May and 2 June to ensure the availability of the two Commissioners who had been directed to hear and dispose of the proceedings by the Chief Judge under s 36 of the Land and Environment Court Act 1979 (the Court Act).

10 The respondent's position as identified in its Statement of Facts and Contentions filed on 20 May 2011 was that the application should be refused, based on its concerns as to insufficient information to permit proper consideration of the matters as required by s 90K(1) of the Act; insufficient information regarding consultation with Aboriginal people as required by s 90K(1)(f), and failure to comply with the requirements for consultation in the National Parks and Wildlife Regulation 2009; insufficient information in relation to social impacts; and measures to mitigate harm or likely harm.

11 Ashton's position in these proceedings has been that there is sufficient information going to all the matters specified under s 90K(1) of the Act.

12 The matter was listed for mention initially on 20 May 2011 and on that occasion directions were made concerning the filing and serving of both expert and nonexpert evidence. At a subsequent mention on 27 May 2011 further directions were made. On that occasion the parties indicated that there was a prospect that agreement would be reached and that the Court would be asked to make orders by consent.

13 On 31 May 2011, the first day of the hearing, the Court heard oral evidence by video link from Mrs (Aunty) Barbara Foot and her son, Mr David Foot, of the Wonnarua Plains Clan people, and from Mr Gary Davey, Director, NorthEast branch of the Office of Environment and Heritage. On the second day of the hearing, 2 June 2011, the Court heard oral evidence from Mr Scott Franks, Mr Robert Lester, Mr Lawrence Perry and Mr James Wilson-Miller. Mr Davey was recalled and gave further oral evidence. Evidence was given by Ms Angela Bessant, Dr Daniel Witter and Mr Roger Mehr. At the conclusion of the evidence the parties were directed to file and serve written submissions, the respondent by 3 June 2011, and any submissions in reply by Ashton by 6 June 2011. The matter was listed for mention on 7 June 2011 at 4.15pm.

14 On 7 June 2011 Mr Al Oshlack, acting as agent for Mr Franks, filed a notice of motion seeking, inter alia, an order that Mr Franks be joined as a party to the proceedings. The motion was listed for 7 June 2011. The respondent and Ashton consented to short service, and indicated on that occasion that they were ready to argue the application. Mr Oshlack indicated that he was not ready and needed further time to prepare submissions in support of the application, including the possibility of seeking legal advice. The hearing of the application for joinder was adjourned, and the application was heard on 16 June 2011.

Evidence and submissions of Mr Franks

15 Mr Franks relies on an affidavit deposed on 7 June 2011 in which he states that he is one of the authorised coapplicants on a registered Native Title Claim which covers an area of Mining Lease 1533 which is held by Ashton. He refers to the dates on which the application was filed and the date of ordering expedition of the hearing, and the dates of hearing, and states that he was present during the full two days of hearing.

16 Mr Franks states that on the final day he was allowed to make a statement as a witness although he did not have legal representation, swore an affidavit or have access to the Court documents. Although he was advised by the parties that the matter was going to court he was not informed that he could apply to be joined. Mr Franks states that he was both prejudiced and disadvantaged by the process as it was the first time he had ever been to the Land and Environment Court. As a witness he prepared as best he could but found it very difficult to properly express and focus on the legal and evidence issues the Court was dealing with.

17 Mr Franks states that although he is largely self educated, as he left school at year 9, he felt somewhat intimidated and overwhelmed by the process that the parties had engaged in during the hearing. He was very concerned that the respondent had resolved to consent orders sought by the applicant for the Court to issue to what appeared as a modified AHIP which the representative Aboriginal Group were not consulted about.

18 Mr Franks states that it has fallen to him to respond on behalf of the Wonnarua Traditional Owners who are opposed to the AHIP being issued. It was an impossible task in the circumstances. Mr Franks states that the main issue of the most utmost importance was why as Traditional Owners they did not wish for the AHIP to be issued, is because those sites proposed to be destroyed are of the greatest significance to his People. This cultural heritage is also precious to the broader Australian community and he believes they are of Regional and national importance.

19 Mr Franks states that the sites include songlines, burials, birthing area, ceremonial places and huge numbers of highly crafted artefacts including grinding grooves, stone tools, fish traps and other sacred objects. Mr Franks states that the sites to be impacted by the AHIP have been dated to over 20,000 years making it the oldest recorded Aboriginal site in the Hunter Valley.

20 Mr Franks further states that to fairly deal with the matter requires careful consideration he found not present in the proceedings by the fact that the parties had agreed to the AHIP being issued. As the Traditional Owners were not represented their case could not be properly put to the Court. He was daunted that the parties had a number of very skilled lawyers and barristers. The site is of such significance that the AHIP should not be issued. Mr Franks states that they are suffering by the process substantial prejudice and injustice to such an extent that if the AHIP proceeds it will effectively destroy the place where their creator made their people before the dawning of time. Mr Franks states that it is his duty as an authorised Native Title Applicant and Traditional Owner to do all in his power to try and address this injustice.

21 At the hearing of the application for joinder, in response to the tender by Ashton of a document which is now Exhibit D, being an extract from the Register of Native Title Claims from the National Native Title Tribunal, Mr Oshlack confirmed on behalf of Mr Franks that the Native Title Claim referred to in his affidavit is in fact in relation to an area covered by Mining Lease Application 351 and is not in relation to land the subject of the AHIP application. Mr Oshlack submitted, however, that the granting of the AHIP will directly impact on the Native Title Claim as the destruction authorised by it will break the continuous connection required to establish native title.

22 Mr Oshlack provided detailed written submissions and made oral submissions in support of the application for joinder. Mr Oshlack's submissions are based on the fact that Mr Franks is a registered Aboriginal party for the purposes of cl 80C of the National Parks and Wildlife Regulation 2009 (the Regulation), is one of the authorised co-applicants on the registered Native Title Claim, and speaks for Wonnarua Traditional Owners. If joined Mr Franks would be in a position to make submissions as to how the evidence before the Court should be treated, and this would not unduly elongate the proceedings. Mr Franks does not know how the parties reached agreement to resolve the appeal and while he has obtained copies of the written submissions from the parties he has not seen the affidavits and other evidence.

23 In Mr Oshlack's submission the Court is being asked to rubberstamp the agreement of the parties and there is no meaningful contradictor in the proceedings, and the important issues that the Court needs to consider in order to give a proper and lawful decision will not be available to the Court. Mr Franks is critical of the consultation process undertaken and points to concerns that the respondent has also previously expressed. Mr Oshlack submits that the consultation process was engaged in for the purpose of the project approval under the Environmental Planning and Assessment Act 1979 and was not consultation in relation to the AHIP application. In his submission Aboriginal people have been sidelined and not properly consulted about the AHIP.

24 If joined Mr Franks would seek to call evidence from two archaeologists, one a former employee of the respondent who prepared a report which has been the subject of some evidence in the proceedings (identified as the Niche Report) and the other of whom is a current employee of the respondent, as well as from other members of the Aboriginal community with knowledge in addition to the evidence that Aunty Barbara Foot has given. The reforms to the Act mean that there is an important decision to be made by the Court, and any detriment to Ashton from delay needs to be considered in the context of the detriment to Aboriginal parties if the permit is granted.

25 In reply Mr Oshlack submitted that Mr Franks wishes to be properly represented to give submissions so the Court can decide whether to issue the AHIP. Mr Oshlack was asked to identify the time that would be required and what further evidence that would be provided if Mr Franks were joined. Mr Oshlack estimated that the matter could be resolved within a matter of some weeks, and there would need to be a further day of hearing.

Evidence and submissions of Ashton

26 Ashton relies on an affidavit affirmed by Mr Eric Bateman, Senior Legal Officer of the respondent, in which Mr Bateman outlines his contact with Mr Franks during the course of the proceedings. Mr Bateman records that his first contact with Mr Franks was in the form of at least one telephone message from him in the days immediately prior to 20 May 2011, and that he first spoke with Mr Franks on 20 May 2011. Mr Bateman records his recollection of the content of that conversation, which is recorded in the affidavit as Mr Bateman indicating to Mr Franks that the respondent had still not decided on its position in the proceedings. At the conclusion of that conversation Mr Franks is recorded to have said that he has "...an advocate on board and may be getting a barrister as well".

27 Mr Bateman's affidavit records further file notes, and states that he had contact with Mr Franks on 26 May 2011 via a voice message. On 27 May 2011 they had a conversation during which he informed Mr Franks that the matter was set down for hearing on 30 May 2011 and 1 June and:

OEH is presently in discussions with the Applicant with a view to attempting to negotiate an AHIP and putting proposed consent orders to the Court. At this stage nothing is finalised.

28 At the conclusion of that conversation Mr Bateman records Mr Franks as saying:

I intend to seek to be joined in the proceedings. I will seek advice from Alan Oshlack and maybe a barrister. We will fight this.

29 Mr Bateman records a further conversation on 27 May 2011 concerning the Court proceedings. Mr Bateman notes that on 27 May 2011 he also contacted the solicitor acting for Ashton to advise him that Mr Franks and Mr Lester intended to give evidence on the first day of hearing and that the respondent had been notified that Aunty Barbara Foot and David Foot intended to give evidence as well.

30 Mr Oshlack submitted that while Mr Franks accepts the accuracy of Mr Bateman's record of dates, times, and contents, of various telephone conversations, in his submission whether or not there has been any delay in making the application is not relevant to whether the application for joinder should be granted.

31 Ashton submits that there are three issues to be considered:

(a) whether UCPR r6.24 applies;

(b) if so, whether Mr Franks meets the requirements of that rule; and

(c) if he does, whether in the exercise of discretion he ought to be joined as a party.

32 Ashton submits that the legislative scheme envisages only two parties to an appeal under s 90L of the Act, namely the applicant for an AHIP and the respondent. While s 90K of the Act does specifically refer to consultation, an entitlement to be consulted is not sufficient to be entitled to be joined. Ashton submits that Mr Franks has had full opportunity to give evidence and make submissions.

33 Secondly, if UCPR r6.24 does apply, Ashton submits that Mr Franks does not have rights against, or liabilities to, any party affected by the proceedings, and that the test under the UCPR is not that which is applicable under s 39A of the Court Act .

34 Thirdly, Ashton submits that if Mr Franks does meet the requirements of r6.24 he should not be joined. There has been a two day hearing, during which Mr Franks was present, with large volumes of documentary evidence, and there are no matters on which Mr Franks could provide any further evidence other than what he has already provided. The Court has had the benefit of Mr Franks' evidence, in which he was unconstrained as to what he was able to say. The delay caused by joinder of Mr Franks would result in loss of employment at Ashton, and sterilisation of the coal resource. Mr Franks has not provided an explanation as to why he did not seek to be joined earlier, and he has waited for the evidence to close before making such an application. The late application, together with the evidence provided in support of the application for expedition of the proceedings, are significant discretionary reasons to refuse joinder.

35 Ashton submits that the Court is not being asked to rubber stamp the agreement of the parties, and in that regard has heard from Mr Davey a detailed explanation of how the respondent came to agree to consent orders. Aboriginal people have not been sidelined and have been continuously involved in the consultation process. Further, Mr Franks has had the opportunity to inspect affidavits once read in the course of the proceedings, and has had through the consultation process access to much of the other reports and documentary evidence, since at least 2009.

36 The respondent did not wish to be heard on the application for joinder, and adopted the submissions made on behalf of Ashton in relation to the issues of fairness and prejudice to Mr Franks, and in response to the submission that the Court was being asked to be a rubber stamp.

Power to order joinder

37 Rule 6.24 of the UCPR provides:

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

38 In Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 Pain J noted that the terms of Pt 8 r 8 of the Supreme Court Rules 1970, which were then the applicable rules and which are in similar terms to those used in r6.24, are narrower than those used in s 39A of the Court Act :

39A Joinder of parties in certain appeals

On an appeal under section 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that:

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

39 We note here that s 39A of the Court Act only applies in appeals brought under ss 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979 and therefore does not apply to this application.

40 Ashton referred to the decision of the Court of Appeal in Tweed Shire Council v Minister Administering the Crown Lands Act and Tweed Byron Local Aboriginal Land Council (1996) LGERA 80 in support of its submission that r6.24 does not apply in these circumstances. In that decision, the Court of Appeal held that the then applicable rule in the Supreme Court Rules did not apply in an appeal brought under the Aboriginal Land Rights Act 1983, on the basis that the statute provides that there are only two parties to an appeal under the legislation and that the statute itself makes the sub rule inapplicable.

41 Meagher JA, with whom the other members of the Court agreed, noted (at 83) that the statutory scheme contained in the legislation envisages:

"...a gladiatorial combat between two contestants, the Land Council and the Minister, nobody else."

42 The legislative scheme at issue in these proceedings is different to that under consideration by the Court of Appeal in Tweed Shire Council . We are of the opinion that the inclusion in s 90K(1)(f) of the Act of express requirements to consider the results of consultation by the applicant for an AHIP with Aboriginal people, and (in s90K(1)(g)) whether any such consultation substantially complied with the requirements for consultation specified in the Regulation, together with the inclusion in Part 8A of the Regulation of detailed requirements for identification of and consultation with those Aboriginal persons who register an interest in being consulted (who are known under the legislative scheme as "registered Aboriginal parties"), is an indication that the legislative scheme is not as confined as that under consideration in Tweed Shire Council . In the absence of any direct authority on the point we are satisfied that we should determine the application for joinder on the basis that the power to do so is that conferred in r6.24.

43 In considering whether Mr Franks meets the requirement in r6.24(1), that he be "a person whose joinder as a party is necessary to the determination of all matters in dispute" in the proceedings, the starting point is the authorities referred to at para [7] in Mr Oshlack's written submissions. Those authorities include the decision of the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, where their Honours said at 525:

The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent...

44 We agree with Ashton that Mr Franks has not identified a right against, or a liability to, any party to the present proceedings that would be affected by the outcome of these proceedings. However, acceptance of his evidence that he is a Wonnarua Traditional Owner and that there are sites the subject of the AHIP application that are of great significance to his people could support an argument that he has an "interest" (in the sense identified by the High Court in Onus v Alcoa of Australia Ltd (1981)149 CLR 27) in the subject matter of the proceedings such that he could be joined as a party. In support of such an argument are the comments of McHugh J in State of Victoria v Sutton (1998) 195 CLR 291 where his Honour stated (at 316):

The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party in there is an arguable possibility that he or she may be affected by the making of the order.

45 It is not necessary for us to express a final view on that question, however, as even if Mr Franks does meet the requirements of r6.24 there is still the issue of whether any discretion to join him as a party to the proceedings should be exercised in his favour.

46 The exercise of such a discretion arises in the broader context of the Civil Procedure Act 2005, s 56 of which states:

(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or a civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or the proceedings.

47 Relevant to that are considerations of the undesirability of having a multiplicity of parties to proceedings and the undesirability of having a multiplicity of expert witnesses: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (Jagot J); Azzure-Blacktown Pty Ltd v Blacktown City Council [2009] NSWLEC 63 (Lloyd J).

48 In considering whether Mr Franks should be joined as a party we note that in contrast to the authorities to which we were referred, which included authorities on the joinder power conferred by s 39A of the Court Act, this application for joinder is made after the evidence has been presented by the parties and not before. The documentary evidence tendered by Ashton in its opening was directed at providing an evidentiary basis to meet the respondent's contentions which have been summarised above. Further documentary evidence going to the matters listed in s 90K(1), in particular the consultation process, was tendered by the respondent. In addition, the court has heard oral evidence, as noted above.

49 We are satisfied that the fact that the parties are now seeking consent orders would not of itself warrant the joinder of Mr Franks as a party to the proceedings. While that possibility had been foreshadowed earlier, the parties did not confirm to the Court that they had reached agreement and would be seeking consent orders until the afternoon of the first of two days of hearing. This is not a case where, to use the words of Preston CJ in Morrison Design Partnership Pty Limited v North Sydney Council (2007) 159 LGERA 361, the Court would be deprived of "meaningful assistance" if Mr Franks were not joined. Preston CJ noted:

57 ...Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision will not be available to the Court.

50 Mr Davey's evidence to the Court included evidence as to the drafting of the proposed AHIP, including provisions drafted specifically for this AHIP, to address issues raised in the consultation process. The proposed conditions were discussed by the Court with the parties, and while the parties have advised that they have reached agreement on conditions as a consequence of that, the Court has not had the opportunity to consider the terms of the AHIP as now proposed.

51 The Court has had the benefit of hearing detailed oral evidence from Mr Franks, in which he outlined his reasons for stating that the requirements listed in s 90K(1) have not been properly addressed; his response to the draft AHIP, in particular his concerns that the conditions were not sufficiently stringent; and his concerns about whether the requirements in the consultation guidelines had been met. Mr Franks was questioned about his participation in the consultation process, and that of Mr Barry French, one of his field officers. He was also questioned as to whether he had received documents as one of the registered Aboriginal parties in the consultation process, his familiarity with the earlier archaeological studies, and his observations on his visit to the site. Having heard Mr Franks' evidence, including the matters which he raised and the detail with which he gave his evidence, we are not persuaded that he was disadvantaged in the manner in which he was able to do so. The three expert archaeologists referred to earlier gave their expert evidence after, and having heard, Mr Franks' evidence.

52 We are of the view that while it would appear that Mr Franks was aware of the hearing, and, once he had received the letter dated 20 May 2011 from the respondent and discussed the matters with Mr Bateman, was aware of the possibility that consent orders would be sought from the Court, that any delay on his part in making the application for joinder would not be a factor on which it would be proper to refuse his application if we were otherwise of the view that his joinder is necessary to ensure the proper determination of all the matters in issue in the proceedings.

53 The matters in issue in the proceedings are the matters specified in s 90K(1) of the Act as being matters which must be taken into account in making a decision to grant or refuse an AHIP. The Court must, in accordance with the applicable Practice Direction, be satisfied before making orders by consent, that the making of such orders is both lawful and appropriate. The parties have the obligation to present such evidence as is necessary to allow the Court to make that determination. We have not been able to identify any further evidence or submissions that Mr Franks might call, or make, that would be necessary for us to be able to make a proper and lawful decision. Accordingly, we are not satisfied that this is a proper case to order the joinder of Mr Franks as a party to the proceedings.

Double Bay Marina order

54 While not specifically identified in the Notice of Motion, in his submissions both written and oral, Mr Oshlack submitted that as an alternative to joinder Mr Franks could be permitted under s 38(2) of the Court Act to provide further evidence and make submissions. Mr Oshlack submitted that this was not a preferred position, as such an order, usually referred to as a Double Bay Marina order ( Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313), would potentially be on a more limited basis than would be possible if Mr Franks were joined as a party to the proceedings. Ashton opposed the making of such an order, and the respondent did not consent to or oppose the making of such an order.

55 The effect of such an order would be as described by Pain J in Kavia Holdings Pty Limited (at [7]), that Mr Franks would be permitted "to adduce evidence and participate in the proceedings but not be eligible to participate as a full party to the proceedings". Pain J noted that there was still power to make such an order, notwithstanding the amendment of the Court Act by the insertion of s 39A. Jagot J noted in Bongiorno Hawkins Frassetto & Associates in relation to s38(2) at [5]:

While s 38(2) is not similarly constrained, the types of consideration that are set out in s 39A no doubt are also relevant to the exercise of discretion to make any form of Double Bay Marina order.

56 We are not satisfied that there are any issues in these proceedings that are not likely to be sufficiently addressed in the absence of some special order being made for Mr Franks' involvement in the proceedings. In those circumstances we are not satisfied that it is appropriate to make an order under s 38(2) of the Court Act.

Conclusion

57 For the above reasons we conclude that this is a not a proper case to order the joinder of Mr Franks as a party to the proceedings or to make an order under s 38(2) of the Court Act . The notice of motion of Mr Scott Franks dated 7 June 2011 is dismissed.

Linda Pearson

Commissioner of the Court

Sharon Sullivan

Acting Commissioner of the Court

Amendments

29 June 2011 - typo need to read meet
Amended paragraphs: 45

Decision last updated: 29 June 2011