Bellette v The Hon Don Harwin MLC, Minister for the Arts

[2020] NSWLEC 105

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bellette v The Hon Don Harwin MLC, Minister for the Arts [2020] NSWLEC 105

Hearing dates:

28 July 2020

Date of orders:

28 July 2020

Decision date:

28 July 2020

Jurisdiction:

Class 4

Before:

Moore J

Decision:

Proceedings dismissed

Catchwords:

APPLICATION FOR INJUNCTION – application for interlocutory and final relief – application to restrain the demolition of a building owned by the State – summons and supporting affidavit disclose no possible cause of action maintainable in the Land and Environment Court – proceedings dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 9.45

Land and Environment Court Act 1979

Uniform Civil Procedure Rules 2005, r 13.4

Category:

Procedural and other rulings

Parties:

Karen Julie Bellette (Applicant)
The Hon Don Harwin MLC, Minister for the Arts (First Respondent)
The Hon Gladys Berejiklian MP, Premier of New South Wales (Second Respondent)

Representation:

Counsel:
Ms K Bellette, self-represented (Applicant)
Mr James Emmett, barrister (Respondents)

Solicitors:
Crown Solicitors Office (Respondents)

File Number(s):

217269 of 2020

Publication restriction:

No

EXTEMPORE JUDGMENT

Introduction

1. HIS HONOUR: The proceeding with which I am dealing today is an application in Class 4 of the Court’s jurisdiction made by Ms Bellette seeking, initially, an interlocutory injunction to restrain either the Minister or the Premier (or persons otherwise associated with the New South Wales Government) from demolishing a building that is located at 34 Phillip Street, Parramatta and is known as “Willow Grove”.

2. Ms Bellette also seeks, as her substantive relief, that the prevention of the demolition of the building is to enable her to, to quote her Summons, “Put my civil claim together”, being a claim against the New South Wales Government.

3. In support of her application for interlocutory and substantive relief, Ms Bellette has provided an affidavit dated 24 July 2020, an affidavit which was admitted as evidence without objection from counsel for the Minister and the Premier in these proceedings.

4. The additional evidence that Ms Bellette has relied upon, also admitted without objection but subject to such weight as I might conclude is appropriate to give it, is a further statement by Ms Bellette in a form utilising a name by which she was formerly known.

5. The sole evidence adduced on behalf of the Minister, which became Exhibit 1 in the proceedings, is a copy of the Certificate of Title showing that the owner of the property that is the subject of Ms Bellette’s application is owned by the Planning Ministerial Corporation, a legal entity associated with the New South Wales Government.

6. In response to a question from me, Mr Emmett of counsel (who is appearing for the Minister and the Premier in these proceedings) has indicated to me that there is no imminent intention on behalf of any individual or entity associated with the New South Wales Government, including the two Respondents to these proceedings, to cause the demolition of the property that is the subject of the application. I expressly note the information that was given to me in that regard.

7. As I have explained to Ms Bellette this morning, the Land and Environment Court, although of the same status as the New South Wales Supreme Court (that is, as a superior court of record), is nonetheless a creature of statute and only has such jurisdictions as that with which it has been invested by the New South Wales Parliament.

8. The only conceivable element of the Court’s jurisdiction potentially capable of being invoked, in the present circumstances, would be that which is provided by s 9.45 of the Environmental Planning and Assessment Act 1979 (the EP&A Act), a provision that gives me the power to make an order to remedy or restrain a breach of the planning law of the State of New South Wales.

9. I have carefully read the material that is contained in Ms Bellette’s affidavit, one in which she asserts that the property was acquired, whether directly or indirectly being irrelevant for the purposes of that with which I am now dealing, as a consequence of the “proceeds of crime” from activities which she describes in her affidavit as “baby farming”.

10. There is nothing associated with any of the material contained in her affidavit that could conceivably provide me with a basis to invoke the jurisdiction given to the Court by s 9.45 of the EP&A Act.

11. There is no other statutory jurisdiction given to the Court that would cause me to conclude – even if she was to be referred to a lawyer or given the opportunity to seek legal advice – that she would be enabled to plead any cause of action that could conceivably lie within any of the statutory jurisdictions with which this Court is invested as a consequence of the various provisions in the Land and Environment Court Act 1979.

12. As a consequence of that, I am satisfied, consistent with r 13.4 of the Uniform Civil Procedure Rules 2005, that her documents provide no disclosure of any reasonable cause of action capable of being brought before, or resolved by, the Land and Environment Court of New South Wales.

13. As a consequence, r 13.4 of the Uniform Civil Procedure Rules enables me to dismiss the proceedings generally on that basis and I so dismiss the proceedings.

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Decision last updated: 31 July 2020