Chriss v Williams

[1988] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION:	Chriss v Williams & Anor [1988] NSWLEC 120
PARTIES:	APPLICANT Chriss RESPONDENT Williams and Anor
FILE NUMBER(S):	40090 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1919 Great Eastern Cleaning Services Pty Ltd. & the Companies Act (1978) Companies Act 1961 Land and Environment Court Act.
CASES CITED:	Double Bay Marina Pty Ltd. v. Woollahra Municipal Council (1985); Donald Crane & Associates Pty. Ltd. v. The Council of the City of Bathurst (1988)
DATES OF HEARING:	17/05/1988
DATE OF JUDGMENT:	05/17/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 2nd instant the Applicant commenced class 4 proceedings against the 1st Respondent claiming declarations that proposed building works infringed certain provisions of Ordinance 70 under the Local Government Act 1919 and that a building approval granted by the Mosman Municipal Council was invalid.

On 5th instant an amended class 4 application was filed (nominating the Council as a Respondent) claiming the same declaratory relief as originally sought together with further declarations as follows:-

"3. A declaration that the objection lodged by the first respondents pursuant to s.317M of the Local Government Act, 1919, as amended, is invalid, void and of no effect.

4. A declaration that application No. 20224 of 1988 in respect of the hearing by this Honourable Court of the said objection pursuant to s.317M of the said Act be dismissed or alternatively, permanently stayed."

The Amended Application was returnable on 7th June, 1988.

On 11th instant the Applicant sought an interlocutory injunction against the 1st Respondent "carrying out further building work pursuant to Building Permit No. 498/87 at premises 74 Wolsely Road, Mosman". In the alternative it sought an order that the proceedings be expedited.

When the Notice of Motion came before me 13th instant it became clear that the motion for interlocutory relief raised a short question of law (concerning the proper construction of several provisions of the Local Government Act 1919 and Ordinance 70) upon which the claim for substantive relief was based and it was agreed that the convenient course to adopt was to hear at once the substantive application. The Applicant announced that if it failed in its application it would contingently move the Court for an order allowing it to intervene in the proceedings No. 20224 of 1988 pending and part heard by an Assessor of the Court.

Yesterday after hearing evidence and the Applicant's submissions (which virtually abandoned all claims to relief) I ordered that the amended class 4 application be dismissed with costs. Thereupon the Applicant sought leave to intervene in proceedings No. 20224 of 1988.

Those proceedings involve an objection pursuant to s.317M of the Local Government Act 1919 against the provisions of cl.11.6(2) of Ordinance 70 which specifies subject to specified exceptions a minimum side boundary set back of 900mm in the case of a class 1 building comprising one or two storeys. Those proceedings were commenced on 4th instant. On that day I as Duty Judge, on the Motion of the Applicant (which was heard ex parte) ordered that the hearing of the proceedings be expedited subject to conditions including an invitation to the Council to consider whether there was any need to inform the owner of the adjoining property (No. 72 Wolsely Road) of the proceedings before the Court.

I imposed this term because of material in the Applicant's affidavit (paragraph 14) and the fact that the Council had in response to a request for it to exercise the statutory dispensational discretion conferred by cl.11.6(2)(c) of Ordinance 70 had resolved to support an objection under s.317M of the Local Government Act. (Unbeknown to me, on the same day that I made these orders the aforesaid class 4 proceedings were commenced by the Applicant. I assume that the Respondents likewise were ignorant of that fact because of the silence of Counsel for the 1st Respondent on the ex parte hearing).

On 12th May, 1988 the s.317M proceedings were commenced to be heard by an Assessor of the Court. On that occasion the hearing of the proceedings continued for some 2 hours before being adjourned. The parties to the hearing were the Respondents to the class 4 application namely the owners of No. 74 Wolsely Road and the Mosman Municipal Council. The Assessor directed that the Respondent notify the owners of No. 72 Wolsely Road of the adjourned hearing date. The hearing will resume this coming Thursday.

The Applicant's application to be joined as a party in the proceedings part heard before the Assessor is founded on S.C.R. Pt. 8r 8(1)(b) (made applicable to this Court by virtue of the Rules of Court Pt. 6 r1) which provides:-

"Where a person who is not a party -

......................................................

......................................................

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him ......., may, on terms order that he be added as a party ........."

In amplification of its application the Applicant particularly relies upon the decision of Needham J. in Re Great Eastern Cleaning Services Pty Ltd. & the Companies Act (1978) 2 NSWLR 278 and the decision of the Chief Judge in Double Bay Marina Pty Ltd. v. Woollahra Municipal Council (1985) 54 LGRA 313.

In the former case the proceedings involved an application to have the name of a company (previously struck off from the register) restored to the register pursuant to s.308(5) of the Companies Act 1961.

The question raised for decision was whether the Deputy Commissioner of Taxation was entitled to be joined as a respondent. His application was opposed. At that time there was a pending Supreme Court action brought by the Deputy Commissioner against the Applicant for the recovery of unremitted group tax and additional tax. Joinder as a party was sought in the proceedings because, so it was argued, if the application to restore the company to the register was approved the Deputy Commissioner's common law action would fail in limine.

At p.281 Needham J. after acknowledging that the making of the order for restoring the company to the register "could adversely affect the legal rights of the Commissioner, in that the proceedings which he commenced against the Applicant could founder" went on to state:-

"The Court, in determining whether a company's name is to be restored to the register, should, before exercising its discretion to make or refuse such an order, take into account what effect such an order could have, not only on the applicant, but on other persons. It seems to me that the Commissioner is in a position to put before the Court matters which could be relevant to the exercise of the discretion. There is no one else who has been shown to have any interest in putting forward such matters. The respondent Commission is interested only to see that an order for restoration is accompanied by orders or undertakings which will ensure that the company will operate in accordance with the requirements of the law. It appears to be an inevitable conclusion that the Commissioner is one whose "joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon". The applicant submitted that there were no "matters in dispute" b

etween the applicant and the respondent, but I think that expression covers what could be considered to be the issues in the proceedings. The issue here is whether the company's name should be restored to the register; the conditional consent of the respondent Commission is only one of the matters which the Court should take into account in deciding the issue. I think this approach is supported by Gurtner v. Circuit and Bradvica v. Radulovic. Without the addition of the second defendant in those cases the plaintiffs' claims would have been unresisted; there were, therefore, technically speaking, no "matters in dispute", but the Court in neither case looked upon that fact as denying power to make the order."

After reviewing the leading authorities on the question His Honour concluded that "it would be a proper exercise of my discretion to order that the Commissioner be joined as a respondent" p.81.

The Applicant submits that his position in the present case is similar to the position of the Deputy Commissioner in Great Eastern Cleaning Services Pty. Ltd. in as much as he is in a position to put before the Court matters which could be relevant to the exercise of the discretion conferred by s.317M and that since the Council has signified its support for the objection, there is no-one else who has been shown to have any interest in putting forward such matters.

Significantly though invited to do so by opposing Counsel, Counsel for the Applicant did not specify or particularise the matters which might be relevant to the Court's discretionary judgment and which might not be brought to the Court's attention otherwise than by the Applicant if he is joined as a party.

In my opinion the present case is clearly distinguishable from the Great Eastern Cleaning Services case in the following respects -

(i) the Court at this stage has not been made aware of the matters that the Applicant would place before it if it were joined as a party;

(ii) whatever be the nature of the Applicant's interest in the proceedings it has not been shown to be based upon a recognised legal claim or entitlement such as was possessed by the Deputy Commissioner;

(iii) assuming that the Applicant's interest is concerned with protecting his property rights and preserving his residential amenity it would be wrong to assume that such matters will not, in the absence of joinder, otherwise be brought to the Court's attention because -

(a) the Court's statutory discretion under s.317(M)(2) is exercisable only where the Court is of the opinion that the objection that compliance with the relevant provision of the Ordinance (ie 11.6(2)) is unreasonable or unnecessary in the particular circumstances of the case; and

(b) the clear purpose of the side boundary set-back requirements of cl. 11.6(2) is to protect and keep in balance the respective claims to residential amenity (including privacy, provision of light and air) of neighbouring properties; and

(iv) there are other means extending beyond the limitations of adversarial litigation whereby the Assessor may obtain relevant material - see s.38(2) & (3) of the Land and Environment Court Act.

Before leaving the Great Eastern Cleaning Services case I would again emphasise the radical differences between that case and the present case in respect of (i) the interests sought to be advanced by the potential intervenors and (ii) the relevance of those interests to the exercise of statutory judicial discretion.

I should also note that in the course of argument Counsel for the Applicant informed me that the Registrar of the Court would later in the day be handing down a judgment on a Notice of Motion seeking joinder as a Party in class 1 proceedings pending in this Court. I have had the benefit of reading the Registrar's judgment (Donald Crane & Associates Pty. Ltd. v. The Council of the City of Bathurst unreported 16th May, 1988). The Registrar in granting the application for joinder has followed the decision in Great Eastern Cleaning case noting that the facts of the case before him did not allow that decision to be distinguished.

For the reasons I have given the facts of the present case are clearly distinguishable from the Great Eastern Cleaning case. Accordingly the decision by the Registrar does not, in my opinion, bear on the present case.

The other case relied upon by the Applicant is the Double Bay Marina case which involved an appeal under s.102 of the Environmental Planning and Assessment Act. In that case the Chief Judge dealt with the question of intervention in the following passages at pp.314 and 315:-

"Upon the matter coming on for hearing, Mr. Hemmings QC and Mr. Webster, sought leave to appear for twenty-three people, all of whom had previously objected to development applications in respect of the subject land.

It was not contended by Mr. Hemmings that he had an appearance as of right. Leave was sought on the ground that, contrary to the views of local objectors, council, in the main, supported the applicant's application.

In class 1 proceedings, the court may inform itself on any matter and in such manner as it thinks appropriate and it may obtain the assistance of persons having professional or other qualifications relevant to any issue arising for determination. The issue arising for determination is whether a consent granted by the court ought be modified and if so, in what manner. In my opinion, it is appropriate, in the special circumstances of this case, that to the extent that the views of the objectors conflict with the submissions of the council, those views be independently put to the court."

I think it is clear from these passages that the Chief Judge did not join the objectors as parties. Rather he allowed their views as objectors to be independently put to the Court by Counsel representing them. The leave he so granted was expressly limited and qualified. Moreover His Honour regarded the case as justifying the grant of leave "in the special circumstances of this case". As I would understand the passages cited, His Honour was in fact exercising the powers relating to procedure at the hearing of a class 1, 2 or 3 proceedings expressly conferred by s.38(2)(3) & (4) of the Land and Environment Court Act 1979.

So understood the Double Bay Marina case is not to be regarded as authority for a liberal view of S.C.R. Pt. 8 r8. Rather it is an important illustration of the utility of the express power of regulating procedural aspects of hearings of class 1, 2 or 3 proceedings. Significantly however it is an illustration of the powers vested in the Judge or the Assessor presiding at such a hearing. In my opinion this beneficial power properly resides in the presiding Judge or Assessor and is not exercisable by another Judge of the Court (eg the Duty Judge) who is not presiding at the hearing.

It follows in my opinion that the Applicant has not made out his case pursuant to S.C.R. Pt. 8 r8(1)(b) for joinder as a party to the proceedings now part-heard by the Assessor. Accordingly the application for joinder must be dismissed with costs.

This decision does not mean that the Applicant is completely shut out. The presiding Assessor has already directed that notice be given to the Applicant of the adjourned hearing. As I have mentioned when that hearing resumes later in the week it will be open to the Applicant to seek leave of the Assessor to participate in the hearing in a similar manner to the participation of the objectors in the Double Bay Marina case. There may be alternative means whereby the matters which the Applicant wishes to raise may be brought to the attention of the Assessor. Without limiting the procedural discretions available to the presiding Assessor it may be appropriate that the Applicant and/or his experts (if any) be called by the Respondent to give their evidence. I was informed that this course of action would be willingly adopted, if required, by Counsel for the Council. Counsel for the Applicant submitted that this would not be satisfactory in view of the fact that the Council was supporting the objection and the confl

ict of interests would be obvious. However it must be emphasised that the appropriate procedures are for the presiding Assessor to determine in the light of what the parties and the Applicant place before him and in the light of the Assessor's understanding of the statutory judicial discretion he is called upon to exercise in the s.317M proceedings.

I merely mention this matter as a procedural possibility because both Respondents raised the matter in the course of their submissions opposing the Applicant's application for joinder, but nonetheless suggesting that there were means available other than of the Applicant becoming a party to the proceedings, for the Applicant's interests to be effectively advanced in the proceedings before the Assessor.

Accordingly I order that the Applicant's application for joinder as a party be dismissed with costs.

Exhibits may be returned.