A notice of appeal names the original parties to the appeal. People who are not original parties to an appeal may apply to be joined as a party. Most commonly, applications to be joined (or ‘for joinder’) are made by people who have made a representation to the Council or the Development Assessment Commission in relation to the proposed development which is the subject of the appeal. When the development has been processed as a Category 3 development (one requiring public notification, with right of appeal), those who made representations to the Council or the Development Assessment Commission will be notified of any appeal by the applicant/s and advised of the process to apply to join the appeal.
A person who was a representor to a category 3 development can apply to join an appeal by completing an “application to be joined as a party” form, which will be posted to them by the Court. The form must be returned to the Court within 7 business days and the applicant must then attend the application hearing at the date and time as set out in their notice.
If a person is not a representor to a category 3 development, and wishes to apply to join an appeal in the Court, they need to complete the Form 77I Interlocutory Application to be joined;
The application form, or letter must be returned to the Court as soon as possible.
Generally, the application to be joined will be heard immediately before the preliminary conference starts. It is, however, possible to make an application to be joined at a later stage in the appeal proceedings, in which arrangements will be made for the application to be heard at a convenient time. If the person applying to be joined does not attend the application to join, it is likely to be dismissed or ‘struck out’.
The application will be heard in a court room and court protocols will be observed.
The judge or commissioner decides who may or may not be joined as a party. A person will never be joined as a matter of course. Important factors the judge or commissioner may take into account include:
- the nature and strength of the person’s interest in the outcome of the appeal e.g. location to the proposed development
- the contribution the person is likely to make to the resolution of the dispute
- whether the person‘s interests are already being adequately dealt with by one of the existing parties
- the potential of the proposed development to affect the person’s interests
- the person‘s prior involvement in the development application
- the nature of the issues the person intends to raise
- the potential for the person‘s involvement to prolong the appeal
- the interests of the existing parties
- the public interest
- the impact of the person being joined on the court
- other issues relevant to the particular case
The judge or commissioner may ask the person applying to be joined to explain to the court why they should be allowed to be joined – particularly in light of the considerations mentioned above. The existing parties may oppose the application. The person making the application must therefore be ready to argue why they should be allowed to be joined as a party.
The judge or commissioner may also explain what it means to be joined as a party. Once a person is joined as a party they become a full party to the appeal. That means they will be expected:
- to attend and participate in the conference (which will be held straight after the application) and
- to attend and participate at every other part of the appeal (for example, at the hearing if the matter gets that far).
A party who is joined may also find that the dispute eventually goes beyond the ERD Court to the Supreme Court. A person who is joined to an action will also be a party to an action commenced in the Supreme Court. Unlike the ERD Court the Supreme Court often awards costs and this should be taken into consideration. Costs would apply to all parties – including parties who have been joined.
Just like other parties to an appeal, a person applying to be joined as a party is entitled to a have a lawyer or representative speak on their behalf, but may also chose to represent themselves.
There are other ways of becoming involved in an appeal without joining as a party. An interested person may approach one of the parties and offer to give evidence on their behalf. That enables them to be heard by the court without taking on the responsibility of becoming a party to the appeal.
If there are a number of people with an interest in the outcome of an appeal (eg. neighbours to a development) one of them might agree to formally apply to join as a party in order to represent the interests of the others.
The judge or commissioner may canvass these and other options during the hearing of the application.
After the judge or commissioner has ruled on the application, all the parties (including any newly joined party) will then leave the court and move to a conference room to start the conference.