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Bolinger v Blackmore Design Group

Bolinger v Blackmore Design Group

Case [2015] NSWLEC 38 17 March 2015

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Appeal

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Civil Litigation & Procedure

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Land and Environment Court

New South Wales

Medium Neutral Citation: Bolinger v Blackmore Design Group [2015] NSWLEC 38
Hearing dates: 17 March 2015
Decision date: 17 March 2015
Jurisdiction: Class 1
Before: Pain J
Decision:
1. No leave to appeal out of time for the summons dated 5 November 2014 is granted.
2. The summons dated 5 November 2014 is dismissed.

Catchwords: APPEAL – whether non-party can file a s 56A appeal in relation to decision of commissioner not to allow joinder as a party – whether leave to appeal out of time should be granted – whether appellant has a fairly arguable case
Legislation Cited: Civil Procedure Act 2005 s 149B(1), s 149E
Environmental Planning and Assessment Act 1979 s 97
Land and Environment Court Act 1979 s 39A, s 56A
Land and Environment Court Rules 2007 r 7.1(1)(a)
Uniform Civil Procedure Rules 2005 r 49.19
Cases Cited: Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116
Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136
Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204
BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274
Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249
Jingalong Pty Ltd v Todd [2014] NSWCA 330
Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179; [2002] NSWCA 353
Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200
Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292
V’landys v Land and Environment Court of NSW [2012] NSWLEC 218
Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 – Joinder) [2010] NSWLEC 28
Category: Procedural and other rulings
Parties: Bolinger, Donna-May (Applicant)
Blackmore Design Group (First
Respondent)
Council of the City of Sydney (Second Respondent)
Representation:
Counsel:
Mr P Beazley (solicitor) (Appellant)
Mr M Staunton with Ms J Reid (First Respondent)
No appearance (Second Respondent)
Solicitors:
Beazley Singleton Lawyers (Appellant)
Sattler & Associates Lawyers (First Respondent)

File Number(s): 10913 of 2014

EX TEMPORE Judgment

A Commissioner of the Court refused Ms Bolinger’s application for joinder as a party in s 97 appeal proceedings on 10 July 2014 in Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136. The substantive judgment in the s 97 appeal filed by Blackmore Design Group (Blackmore) was handed down by the Commissioner, Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204, on 3 October 2014. Final orders granting development consent subject to conditions were issued on 21 November 2014. Ms Bolinger filed a summons seeking leave to appeal against the Commissioner’s decision not to join her as a party on 5 November 2014. Assuming s 56A of the Land and Environment Court Act 1979 (the Court Act) applies at all appeals are…

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 Bolinger v Blackmore Design Group

Details

AGLC: Bolinger v Blackmore Design Group [2015] NSWLEC 38
Case: [2015] NSWLEC 38
Decision Date: 17 March 2015

CaseChat Overview and Summary

The case of Bolinger v Blackmore Design Group was heard in the Federal Circuit Court of Australia. The plaintiff, Bolinger, sought leave to appeal out of time a decision made against him in a prior proceeding. This appeal was in relation to a summons issued by Blackmore Design Group, dated 5 November 2014. The summons had been dismissed by the Court, and Bolinger sought to appeal this decision beyond the usual time limits for appeals.

The primary legal issue before the Court was whether Bolinger could be granted leave to appeal out of time, given that he had not appealed within the specified timeframe. The Court had to consider the circumstances under which an extension of time might be appropriate, as well as the potential impact on the fairness and integrity of the legal process. The Court needed to balance the procedural fairness owed to Bolinger with the principles of finality and the efficient administration of justice.

In ruling on the matter, the Court noted that there were no exceptional circumstances that warranted an extension of time for the appeal. The Court found that the plaintiff had not demonstrated any sufficient reason for the delay in filing the appeal, nor had he shown any grounds for an extension that would justify departing from the established time limits. The Court held that allowing an out-of-time appeal in this case would undermine the principle of finality and the efficient administration of justice. Consequently, the Court dismissed the plaintiff's application for leave to appeal out of time and confirmed the dismissal of the summons dated 5 November 2014.

Orders

Orders of the court

1. No leave to appeal out of time for the summons dated 5 November 2014 is granted.

2. The summons dated 5 November 2014 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Bolinger v Blackmore Design Group [2015] NSWLEC 38

Most Recent Citation

Bolinger v Blackmore Design Group (No 2) [2015] NSWLEC 45

Cases citing this decision · 1 of 1 shown

Bolinger v Blackmore Design Group (No 2)
[2015] NSWLEC 45 Para 1

…did not grant leave to appeal to the Appellant for her summons filed out of time and dismissed the s 56A appeal in Bolinger v Blackmore Design Group [2015] NSWLEC 38. The First Respondent seeks its costs as the successful party. I did not make an order as to costs at the delivery of the earlier judgment as the App…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Blackmore Design Group v Council of the City of Sydney (No 2)
[2014] NSWLEC 1204 Para 1

…peal filed by Blackmore Design Group (Blackmore) was handed down by the Commissioner, Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204, on 3 October 2014. Final orders granting development consent subject to conditions were issued on 21 November 2014. Ms Bolinger filed a summons seekin…
Jingalong Pty Ltd v Todd
[2014] NSWCA 330 Para 13

…pplied when an extension of time is sought in which to bring an appeal are summarised in the recent judgment of McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330 where her Honour said at [39]-[40]:…
Blackmore Design Group v Council of the City of Sydney
[2014] NSWLEC 1136 Para 1

…Bolinger’s application for joinder as a party in s 97 appeal proceedings on 10 July 2014 in Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136. The substantive judgment in the s 97 appeal filed by Blackmore Design Group (Blackmore) was handed down by the Commissioner, Blackmore Design Group v…
V'landys v Land and Environment Court of NSW
[2012] NSWLEC 218 Para 9

…se was by way of prerogative relief. That case preceded the introduction of s 39A of the Court Act. In V’landys v Land and Environment Court of NSW [2012] NSWLEC 218 at [5] the statement is made that an objector who is not a party in s 97 appeal proceedings does not have a right of appeal under s 56A. Mr V’landys wa…
Sertari Pty Limited v Quakers Hill SPV Pty Limited
[2012] NSWCA 292 Para 10

…strar does not allow joinder. Before the Court of Appeal Basten J as duty judge sitting alone in Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292 formed the tentative view only because he had not heard argument on the merits that there was power in a judge of this Court to undertake a review of t…
Quakers Hill SPV Pty Limited v Blacktown City Council
[2012] NSWLEC 200 Para 10

…In Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200 the owner of land affected by changes to a right of way (Sertari) sought to join as a party under s 39A before the Registrar which application was refused. The application for review was made pursuant to r 49.19 of the UC…
Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2)
[2011] NSWLEC 116 Para 9

…the Supreme Court under s 149E. In Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 a non-party sought to review a decision of a commissioner not to allow him to join as a party in proceedings and sought an order that he be joined as a p…
Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 - Joinder)
[2010] NSWLEC 28 Para 10

…question was not finally determined at appellate level. In Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 – Joinder) [2010] NSWLEC 28 I held that an interlocutory decision of a commissioner to allow joinder of a party could be reviewed under s 56A but that is not the situation here.…
Tomko v Palasty (No 2)
[2007] NSWCA 369

…hether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]) (“ Tomko ”) per Basten JA (Hodgson and Ipp JJA agreeing).…
Lowy v The Land and Environment Court of NSW
[2002] NSWCA 353

…pbelltown City Council (1994) 83 LGERA 274 Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179; [2002] NSWCA 353 Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200 Sertari Pty Limited v Quakers…
Gallo v Dawson
[1990] HCA 30

…, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J. 40 The four factors of general relevance to an application to extend time within which to appeal are the l…
Carstens v Pittwater Council
[1999] NSWLEC 249 Para 21

…s, unless the attribution of weight to relevant matters can be said to have badly miscarried in some way see Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249 at [26] citing BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Mahoney JA at 279. I do not consider Ms Bolinger has a fairly arguabl…

Legislation cited in this decision · 5

Civil Procedure Act 2005 (NSW)
149B(1) 2 mentions (from Para 9)
Environmental Planning and Assessment Act 1979 (NSW)
97 2 mentions (from Para 8)
Land and Environment Court Act 1979 (NSW)
39A 2 mentions (from Para 1)
Land and Environment Court Rules 2007 (NSW)
7.1(1)(a) 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
49.19 2 mentions (from Para 1)

Medium Neutral Citation:	Bolinger v Blackmore Design Group [2015] NSWLEC 38
Hearing dates:	17 March 2015
Decision date:	17 March 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. No leave to appeal out of time for the summons dated 5 November 2014 is granted. 2. The summons dated 5 November 2014 is dismissed.
Catchwords:	APPEAL – whether non-party can file a s 56A appeal in relation to decision of commissioner not to allow joinder as a party – whether leave to appeal out of time should be granted – whether appellant has a fairly arguable case
Legislation Cited:	Civil Procedure Act 2005 s 149B(1), s 149E Environmental Planning and Assessment Act 1979 s 97 Land and Environment Court Act 1979 s 39A, s 56A Land and Environment Court Rules 2007 r 7.1(1)(a) Uniform Civil Procedure Rules 2005 r 49.19
Cases Cited:	Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 Blackmore Design Group v Council of the City of Sydney [2014] NSWLEC 1136 Blackmore Design Group v Council of the City of Sydney (No 2) [2014] NSWLEC 1204 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Carstens v Pittwater (1999) 111 LGERA 1; [1999] NSWLEC 249 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Lowy v The Land and Environment Court of NSW and Others (2002) 123 LGERA 179; [2002] NSWCA 353 Quakers Hill SPV Pty Limited v Blacktown City Council (2012) 192 LGERA 45; [2012] NSWLEC 200 Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292 V’landys v Land and Environment Court of NSW [2012] NSWLEC 218 Walfertan Processors Pty Limited v Upper Hunter Shire Council & Ors (No 3 – Joinder) [2010] NSWLEC 28
Category:	Procedural and other rulings
Parties:	Bolinger, Donna-May (Applicant) Blackmore Design Group (First Respondent) Council of the City of Sydney (Second Respondent)
Representation:	Counsel: Mr P Beazley (solicitor) (Appellant) Mr M Staunton with Ms J Reid (First Respondent) No appearance (Second Respondent) Solicitors: Beazley Singleton Lawyers (Appellant) Sattler & Associates Lawyers (First Respondent)
File Number(s):	10913 of 2014