Commonwealth v BIS Cleanaway Ltd - [2008] NSWCA 170

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Commonwealth of Australia v BIS Cleanaway Limited [2008] NSWCA 170
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40732/07

HEARING DATE(S):
23 July 2008

JUDGMENT DATE:
23 July 2008

EX TEMPORE DATE:
23 July 2008

PARTIES:
COMMONWEALTH OF AUSTRALIA (Claimant)
BIS CLEANAWAY LIMITED (ACN 000 164 938) (Opponent)

JUDGMENT OF:
Hodgson JA Ipp JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 3471/06

LOWER COURT JUDICIAL OFFICER:
Brereton J

LOWER COURT DATE OF DECISION:
26 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Commonwealth of Australia v BIS Cleanaway Limited [2007] NSWSC 1075

COUNSEL:
T G R PARKER SC/ K M RICHARDSON (Claimant)
T BATHURST QC/ A A HENSKENS (Opponent)

SOLICITORS:
Clayton Utz (Claimant)
Allens Arthur Robinson (Opponent)

CATCHWORDS:
EQUITY – PRACTICE – Declarations – Summary dismissal – Proceedings seeking only declaration summarily dismissed for lack of utility – Whether such dismissal available – What tests appropriate – Undesirability of piecemeal determination of related issues.

LEGISLATION CITED:
Supreme Court Act s63

CATEGORY:
Principal judgment

CASES CITED:
Coles v Wood [1981] 1 NSWLR 723
Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286

TEXTS CITED:

DECISION:
Leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40732/07
SC 3471/06
HODGSON JA
IPP JA
CAMPBELL JA
WEDNESDAY 23 JULY 2008

COMMONWEALTH OF AUSTRALIA v BIS CLEANAWAY LIMITED

Judgment

HODGSON JA: On 26 September 2007, Brereton J made orders that proceedings brought by the claimant (the Commonwealth) against the opponent (BIS) be summarily dismissed, and that the claimant pay the opponent's costs of the proceedings. The claimant seeks leave to appeal from those orders.
In the proceedings, the claimant had sought declarations that the rights and obligations of the licensee under a deed of licence dated 21 May, 1971 from the claimant, in respect of a waste disposal site at Lucas Heights, were on and from September 1973 novated to the opponent, and that this novated licence imposed subsisting and enforceable obligations on the opponent, which may relevantly be expressed as follows: firstly, not to permit material likely to create a public nuisance, or cause deterioration to surrounding amenities, plants, trees or animals to escape from the land; secondly, to comply with any direction of the Environmental Protection Agency or the Department of Environment Conservation, affecting the land, which the Agency or Department considers to be in the interests of public health, safety or convenience; and thirdly, to indemnify the complainant against claims which may be brought against it and expenses which the claimant may incur in respect of any damage to persons or property which may occur during the continuance of the licence, and consequent on the exercise by the opponent of the licence.
The opponent applied for an order that the proceedings be summarily dismissed, and the primary judge made that order, on the ground…

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 Commonwealth v BIS Cleanaway Ltd

Details

AGLC: Commonwealth of Australia v BIS Cleanaway Limited [2008] NSWCA 170
Case: [2008] NSWCA 170
Decision Date: 23 July 2008

CaseChat Overview and Summary

Commonwealth v BIS Cleanaway Ltd concerned an appeal from a decision of the Supreme Court of New South Wales. The appellant, Commonwealth, sought to appeal against the summary dismissal of its proceedings, which had sought only a declaration. The respondent, BIS Cleanaway Ltd, had successfully applied for the summary dismissal of these proceedings in the primary court.

The central legal issue before the Court of Appeal was whether proceedings seeking only a declaration could be summarily dismissed for lack of utility, and if so, what tests were appropriate for determining such a dismissal. The court also considered the undesirability of piecemeal determination of related issues in its assessment of the appeal.

The Court of Appeal held that summary dismissal of proceedings seeking only a declaration for lack of utility was available. The court applied the principles that a court should not make declarations that are futile or have no practical utility. It found that the primary judge had correctly applied these principles in dismissing the proceedings. The court also noted that it was undesirable to determine issues in isolation when they were part of a larger dispute.

Consequently, the Court of Appeal dismissed the application for leave to appeal, with costs awarded to the respondent.

Orders

Orders of the court

Leave to appeal dismissed with costs.

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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