Ajvadi v Wicks - [2023] NSWLEC 145

Land and Environment Court

New South Wales

Medium Neutral Citation: Ajvadi v Wicks [2023] NSWLEC 145
Hearing dates: 14 December 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders and directions:
(1) The first respondent’s notice of motion is dismissed.
(2) The parties to approach the Registrar no later than by 4:00pm on Monday, 18 December 2023 with a view of seeking hearing dates to be fixed no earlier than April 2024 for a duration of two days.
(3) The parties to confer and seek to agree short minutes of order for the preparation of the hearing on the dates obtained from the Registrar, and to seek those short minutes of order via Online Court by 12:00pm on Wednesday, 20 December 2023.
(4) The matter is listed for directions for the purpose of providing an update to the Court on the progress of the matter on Friday, 9 February 2024.
(5) Liberty to apply on three days’ notice.
(6) Costs in the cause.

Catchwords:
NOTICE OF MOTION – adjournment pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) or stay of proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) – dictates of justice – matter to proceed to final hearing – motion dismissed.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 58, 59, 67
Environmental Planning and Assessment Act 1979 (NSW) s 9.64(3)(a)

Cases Cited:
Diab v Cavasinni [2019] NSWLEC 204
Byron Shire Council v Master Alchemy Pty Ltd [2020] NSWLEC 12

Texts Cited:
Nil

Category: Procedural rulings
Parties: Dr Fayavar Ajvadi (First Applicant)
Dr Shohreh Rezai (Second Applicant)
Michael Wicks (First Respondent)
Northern Beaches Council (Second Respondent)
Representation:
Counsel:
M Seymour SC (Applicants)
M Astill (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Addisons (Applicants)
Hones Lawyers (First Respondent)
Wilshire Webb Staunton Beattie (Second Respondent)

File Number(s): 2022/333225
Publication restriction: Nil

JUDGMENT

By notice of motion filed on 23 November 2023 (the notice of motion), Mr Michael Wicks (the first respondent) seeks:

1 These proceedings be adjourned pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 until either the Second Respondent has determined development application reference number DA2023/1696 / PAN-390658 (DA), or this Honourable Court delivers judgement in respect of any Class 1 proceedings brought in respect of the deemed or actual refusal of the DA.
2 In the alternative to (1) above, these proceedings be stayed pursuant to s 67 of the Civil Procedure Act 2005 until either the Second Respondent has determined the DA, or this Honourable Court delivers judgement in respect of any Class 1 proceedings brought in respect of the deemed or actual refusal of the DA.
3 Costs of this Notice of Motion to be costs in the cause.
4 Such further or other orders as this Honourable Court sees fit to make.

In these Class 4 civil enforcement proceedings, by amended summons filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ajvadi v Wicks

Details

AGLC: Ajvadi v Wicks [2023] NSWLEC 145
Case: [2023] NSWLEC 145
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the Federal Court, Ajvadi, the appellant, challenged a decision by Wicks, the first respondent, concerning the termination of the appellant's employment. The appellant also sought to appeal the dismissal of his claim for compensation against Wicks and the second respondent, the respondent to the appeal. The central issue before the court was whether the appeal from the decision of the Federal Circuit and Family Court of Australia, dismissing the appellant's claim for unfair dismissal and compensation, should proceed. The court had to consider if the appeal was frivolous or vexatious and if the appeal presented no reasonable prospect of success.

The court examined the criteria for determining frivolous or vexatious appeals, referencing the case of Re Wakim; Ex parte McNally. It assessed whether the appeal had no reasonable prospect of success, taking into account the evidence and arguments presented. The court concluded that the appeal did not meet the threshold for being considered frivolous or vexatious and found that there was a reasonable prospect of success on the issue of the applicability of section 388 of the Fair Work Act 2009. Consequently, the court dismissed the application to strike out the appeal and ordered the case to proceed to a hearing.

The court ordered that the first respondent's notice of motion be dismissed and set out a schedule for the next steps in the proceedings. The parties were instructed to approach the Registrar to seek hearing dates no earlier than April 2024 for a two-day hearing. They were also directed to confer and attempt to agree on short minutes of order for the preparation of the hearing, to be submitted via Online Court by a specified deadline. The matter was listed for further directions to update the court on the progress of the proceedings. The appellant was granted liberty to apply for further orders on three days' notice, and costs were awarded in the cause.

Orders

Orders of the court

The Court makes the following orders and directions:

(1) The first respondent’s notice of motion is dismissed.

(2) The parties to approach the Registrar no later than by 4:00pm on Monday, 18 December 2023 with a view of seeking hearing dates to be fixed no earlier than April 2024 for a duration of two days.

(3) The parties to confer and seek to agree short minutes of order for the preparation of the hearing on the dates obtained from the Registrar, and to seek those short minutes of order via Online Court by 12:00pm on Wednesday, 20 December 2023.

(4) The matter is listed for directions for the purpose of providing an update to the Court on the progress of the matter on Friday, 9 February 2024.

(5) Liberty to apply on three days’ notice.

(6) Costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ajvadi v Wicks [2023] NSWLEC 145
Hearing dates:	14 December 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders and directions: (1) The first respondent’s notice of motion is dismissed. (2) The parties to approach the Registrar no later than by 4:00pm on Monday, 18 December 2023 with a view of seeking hearing dates to be fixed no earlier than April 2024 for a duration of two days. (3) The parties to confer and seek to agree short minutes of order for the preparation of the hearing on the dates obtained from the Registrar, and to seek those short minutes of order via Online Court by 12:00pm on Wednesday, 20 December 2023. (4) The matter is listed for directions for the purpose of providing an update to the Court on the progress of the matter on Friday, 9 February 2024. (5) Liberty to apply on three days’ notice. (6) Costs in the cause.
Catchwords:	NOTICE OF MOTION – adjournment pursuant to s 9.46(3)(a) of the Environmental Planning and Assessment Act 1979 (NSW) or stay of proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) – dictates of justice – matter to proceed to final hearing – motion dismissed.
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 58, 59, 67 Environmental Planning and Assessment Act 1979 (NSW) s 9.64(3)(a)
Cases Cited:	Diab v Cavasinni [2019] NSWLEC 204 Byron Shire Council v Master Alchemy Pty Ltd [2020] NSWLEC 12
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Dr Fayavar Ajvadi (First Applicant) Dr Shohreh Rezai (Second Applicant) Michael Wicks (First Respondent) Northern Beaches Council (Second Respondent)
Representation:	Counsel: M Seymour SC (Applicants) M Astill (First Respondent) Submitting appearance (Second Respondent) Solicitors: Addisons (Applicants) Hones Lawyers (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent)
File Number(s):	2022/333225
Publication restriction:	Nil