Anderson v Ballina Shire Council

[2005] NSWLEC 602

Land and Environment Court

of New South Wales

CITATION:

Anderson v Ballina Shire Council and Anor [2005] NSWLEC 602

PARTIES:

APPLICANTS
Douglas and Susan Anderson on behalf of Numbahjing Clan within the Bundjaling Nation

FIRST RESPONDENT
Ballina Shire Council

SECOND RESPONDENT
Director General of the Department of Environment and Conservation

FILE NUMBER(S):

41067 of 2005

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- strike out application - whether reasonable cause of action disclosed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Land and Environment Court Rules 1996
Legal Profession Act 2004
Supreme Court Rules 1970

CASES CITED:

Dey v Victorian Railways Commissioners (1949) 78 CLR 62;
General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125

DATES OF HEARING:

13/10/2005

 
DATE OF JUDGMENT: 

10/13/2005

LEGAL REPRESENTATIVES:

APPLICANTS
A Oshlack (agent)
SOLICITORS
n/a

FIRST RESPONDENT
A Pickles
SOLICITORS
Allens Arthur Robinson

SECOND RESPONDENT
N Perram
SOLICITORS
Department of Environment and Conservation

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

13 October 2005

41067 of 2005

DOUGLAS AND SUSAN ANDERSON ON BEHALF OF NUMBAHJING CLAN WITHIN THE BUNDJALING NATION
Applicants

BALLINA SHIRE COUNCIL
First Respondent

DIRECTOR GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Second Respondent

JUDGMENT

1 Cowdroy J: Before the Court is a notice of motion (“the motion”) brought by the second respondent, the Department of Environment and Conservation (“DEC”). The affidavits in support of the motion are those of Damon Anderson, sworn 27 September 2005 and 11 October 2005. Further, DEC also relied upon several affidavits filed in other proceedings, namely proceedings 41501 of 2004.

2 The motion seeks orders that:

(a) the proceedings against the second respondent be struck out or otherwise dismissed.
(b) the applicants pay the second respondent’s costs of the motion.

3 The motion is opposed and the respondent to the motion (the applicant to the proceedings) relies upon an affidavit of Douglas Anderson sworn 19 September 2005.

The application

4 The amended class 4 application seeks declarations and orders against the first respondent, Ballina Shire Council (“the Council”) and a declaration against DEC arising from a determination by the Council (“the determination”). No other relief is sought against DEC.

5 The applicant has particularised its claim in points and raises two issues against DEC. The first is that DEC failed to consider mandatory considerations in giving its concurrence decision to the determination and the second is a denial of procedural fairness by DEC.

6 The challenged determination relates to the construction of a cycle way and pedestrian access and the upgrade of a carpark and road entrance on lot 59 Deposited Plan 827785 (“the land”). The land is in northern New South Wales at Angels Beach near Ballina.

7 The determination was made by the Council under the provisions of the Environmental Planning and Assessment Act 1979 (“EP&A Act”). Pursuant to s 79B of the EP&A Act, consultation with and concurrence of DEC is required in the instances set out in subs (5).

8 Paragraph 6 and 7 of the points of claim assert that DEC granted its concurrence to the determination of the first respondent. Before the Court today it has been conceded by the applicant that in fact DEC did not give concurrence to the determination. Accordingly the applicant withdraws its first claim.

9 The second claim relates to a denial of procedural fairness by DEC. The claim is made on the basis that DEC had an obligation to require the heritage consultant for the project, namely Ms Davies, to confer with various parties. The particulars set out in paragraph 14 provide inter alia:

The First Respondent’s consulting archaeologist, Ms Sue Davies, at page 14 of her January, 2004 report ‘A Cultural Heritage Assessment of The Proposed Angels Beach Cycleway/Pedestrian Walkway, Ballina, Northern NSW’ states that: ‘...(she) contacted NSW National Parks and Wildlife Service (NPWS) [the predecessor of DEC] to seek advice in relation to the appropriate Indigenous groups and/or individuals that should be consulted in relation to the study. NPWS advised that the Jali Local Aboriginal Land Council and, as they have clearly stated that the Jali LALC does not represent them, the Cook family (contact person - Lois Cook)’.

10 The applicants allege that the Anderson family were not consulted and that they had therefore been denied natural justice.

11 Since the applicant now concedes that the DEC did not give its concurrence to the determination, it is difficult to comprehend any basis upon which a denial of natural justice could exist. In any event, the very report which is relied upon by the applicants establishes that both the Jali Local Aboriginal Land Council (“LALC”) and Mr Troy Anderson, who is a member of the same family as the applicants, were consulted by Ms Davies.

12 The evidence further indicates that members of the Anderson family have been closely associated with the Jali LALC and have held positions in its management. Mr Troy Anderson was the chairman from December 2001 until 2004. In these circumstances the claim that DEC denied the applicants natural justice because of the alleged failure to consult could never be sustained.

13 No other grounds of denial of natural justice are relied upon by the applicants.

14 Part 6 r 1 of the Land and Environment Court Rules 1996 (“LEC Rules”) provides for the adoption of certain of the Supreme Court Rules 1970 (“SCR”) including Pt 13 Div 2. The SCR have now been repealed due to the commencement of the Uniform Civil Procedure Rules. However by a rule of this Court, those parts of the SCR adopted by the LEC Rules continue to have effect in this Court in the form in which they existed immediately prior to their repeal. Accordingly the provisions of Pt 13 Div 2 SCR continue to apply in this Court.

15 DEC relies upon Pt 13 r 5 SCR, which is contained in Div 2 of Pt 13 SCR. Part 13 r 5 relevantly provides:

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed;
…
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

16 The principles relating to an application to strike out a claim have been stated in Dey v Victorian Railways Commissioners (1949) 78 CLR 62. At 91 Dixon J said:

The application is really made to the inherent jurisdiction of the Court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the Court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious and an abuse of process.

17 The same principle was referred to by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 at 130, where his Honour said:

... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.

It is clear from the foregoing that the Court must always exercise extreme caution before proceeding to dismiss a claim in a summary manner.

18 Even with this consideration in mind, the Court is satisfied that there is no basis for the claim as pleaded against DEC. The applicants’ claims are not sustainable on the evidence before the Court. Accordingly, the Court considers that the proceedings instituted by the applicants against DEC should be dismissed.

19 DEC raises further matters for the Court’s consideration. It submits that the representative of the applicant, Mr Oshlack, has infringed s 15(1) of the Legal Profession Act 2004 (“LPA Act”), which provides:

A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

20 Mr Oshlack, who is not a legal practitioner within the meaning of the LPA Act, has represented the applicants as agent throughout these proceedings pursuant to s 63 of the Land and Environment Court Act 1979. The address provided on the amended application class 4 reads as follows:

Alan Oshlack
Indigenous Justice Advocacy Network

21 DEC has drawn the attention of the Court to correspondence in which Mr Oshlack has held himself out as “Researcher/Advocate”. DEC asserts that by doing so, Mr Oshlack has held out that he is a legal practitioner. DEC seeks an order that the papers in these proceedings be referred to The Law Society of New South Wales.

22 Because of time constraints Mr Oshlack did not have an opportunity today to explain his use of that title or to provide submissions in opposition to the DEC’s claim. In these circumstances the Court does not propose to make the order sought referring the papers. However this does not prevent DEC providing a copy of this judgment to The Law Society of New South Wales.

Costs

23 DEC seeks an order that its costs be paid on an indemnity basis. The applicants oppose such order and seeks an order that DEC pay their costs. Again because of time constraints no submissions have been heard nor evidence led from either party which would justify any order for costs. The mere fact that the proceedings against DEC have been dismissed does not automatically lead to the conclusion that an order for costs or indemnity costs should follow. As a result the Court does not have before it sufficient material to make an order for costs, indemnity or otherwise, at the present time.

24 For these reasons the Court will reserve the question of costs for a period of 21 days during which either party may restore the matter to the list for a hearing on the question of costs.

25 The Court makes the following orders:

1. The proceedings against the second respondent be dismissed.
2. Costs reserved.
3. The proceedings to be re-listed within 21 days if any application for costs is to be pressed.
4. The exhibits be returned.

****************************