Page 3478 - Week 11 - Thursday, 19 September 2013

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Act and parts of the planning act that make them different from all the other administrative decisions that the government makes? I honestly cannot see a legitimate explanation for why these decisions should not be included in the new system and why we should retain the current limitation the Australian Law Reform Commission described as counterproductive, futile, unpredictable and overly dependent on subjective value judgements.

Added to this, in directly addressing the arguments that the minister has raised, the commission said:

The standing rules do not work as a gate guarding Australia against a flood of litigation or guarding Australian business against damaging and meddlesome interference.

But perhaps even that is not as bad as the criticism from the former Chief Justice of the Land and Environment Court who described the minister’s arguments as “wholly discredited”. There is no credible evidence to support the contention that these decisions should be excluded—none at all.

The third matter I would like to turn to is the exclusion of groups formed after a decision has been made. The final amendment relates to groups which will be able to seek review. The bill provides for review by any individual, corporation or other group where the objects or purpose of the group relate to the subject matter of the application. The amendment proposes to restrict that to corporations and groups in existence before the decision was made. My argument in response is that it is entirely legitimate for a group to form in response to a particular decision to attract and galvanise community opposition to, or even support for, the particular outcome. Equally, it is legitimate for such a corporation or group to seek to have the decision reviewed by a court.

Again, the point has been made that the premise of the objection—that it will allow people to hide behind corporate constructions to avoid costs orders—(a) has not proven to be the case in New South Wales, and (b) is wholly negated by the capacity of the court to make security for costs orders under rule 1900 of the court procedure rules. The argument is put that these are hard to obtain. The reality is that these orders have been made by the court according to the rules. Whilst there is certainly an interesting argument to be had about whether they should be harder to obtain, because they can act as a significant barrier to justice, it is not currently the case in the ACT.

To prove the point I will quickly list some examples of cases in the last decade or so where security for costs orders have been made: Cleary Bros (Parramatta) Pty Limited & Ors v Commonwealth Bank of Australia; Top Slice Deli Pty Ltd v George Maliganis and Edmund Craig Edwards Carrying On Business As Maliganis Edwards Johnson; Stelmag Pty Ltd v Tifferly Manufacturing Pty Ltd & King; JS Hill & Associates Ltd, Vila Engineering Services Ltd and Lami Housing and Joinery Ltd v Stephen John Dawn, Pacific Developments Pty Ltd, Angus Donald Hall and Kostas Pty Limited; Baida Holdings Pty Ltd v Pocknell; Master Club Consultants Pty Limited v Stanbritt Pty Limited & Anor; Concerned Citizens of Canberra Inc v Chief Planning Executive (Planning and Land Authority); and Hja Holdings Pty Ltd v Zoran Iliev and Anor. These were all matters heard in the ACT Supreme Court.

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