Diamond v Birdon Contracting Pty Limited - [2008] NSWLEC 302

Land and Environment Court

of New South Wales

CITATION: Diamond v Birdon Contracting Pty Limited & Anor [2008] NSWLEC 302

PARTIES:
APPLICANT:
Neville Diamond
FIRST RESPONDENT:
Birdon Contracting Pty Limited
SECOND RESPONDENT:
Hawkesbury City Council

FILE NUMBER(S): 40733 of 2008

CORAM: Lloyd J

KEY ISSUES: Practice and Procedure :- applicant undischarged bankrupt - outstanding orders for costs against the applicant in favour of the respondents in respect of previous proceedings - general power of the court to dismiss proceedings - abuse of process - proceedings dismissed with costs

LEGISLATION CITED: Bankruptcy Act 1966 (Cth) s 60(2), s 116(2)(g) and s 134(1)
Civil Procedure Act 2005 s 67
Uniform Civil Procedure Rules 2005 r 13.4

CASES CITED: Byrnes v John Fairfax Publications Pty Ltd [2006] NSWSC 251
Davies v Kyogle Shire Council [2007] NSWIRComm 9; (2008) 173 IR 171
Diamond v Birdon Contracting Pty Limited [2007] NSWLEC 92
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Investment Financing Limited v Limehouse Board Mills Limited [2006] 1 WLR 985
Rose v Meriton Apartments Pty Limited [2006], NSWIRComm 298
Sinclair v British Telecommunications PLC [2001] 1 WLR 38
Worchild v University of Queensland Law Society (2006) 234 ALR 179

DATES OF HEARING: 21 October 2008

EX TEMPORE JUDGMENT DATE: 21 October 2008

LEGAL REPRESENTATIVES:
APPLICANT:
T McLoughlin (agent)
SOLICITORS:
N/A
FIRST RESPONDENT:
J J Webster SC
SOLICITORS:
Russell C Byrnes
SECOND RESPONDENT:
A D Simpson (solicitor)
SOLICITORS:
Pikes Lawyers

JUDGMENT:

- 6 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 21 October 2008

LEC 40733 of 2008

DIAMOND v BIRDON CONTRACTING PTY LIMITED & ANOR [2008] NSWLEC 302

EX TEMPORE JUDGMENT

1 HIS HONOUR: By an application filed on 29 July 2008, Mr Neville Diamond seeks declaratory relief and consequential orders relating to the validity of a development consent for sand mining carried out by the respondent, Birdon Contracting Pty Limited, at Tinda Creek in the local government area of Hawkesbury City Council, and the validity of those operations themselves.

2 The first respondent now applies by notice of motion for an order that Mr Diamond’s application be dismissed or stayed on a number of grounds including:

(a) that Mr Diamond is an undischarged bankrupt;

(b) that there are outstanding orders for costs against Mr Diamond in favour of the respondents in respect of previous proceedings; and

3 The first respondent also seeks as an alternative an order for security for costs.

4 The evidence before me shows that Mr Diamond is an undischarged bankrupt. He commenced these proceedings after he became a bankrupt. Accordingly, the provisions of s 60(2) of the Bankruptcy Act 1966 (Cth), which allows in certain circumstances an action commenced by a person before he became a bankrupt to be continued, does not apply. Once a person becomes a bankrupt, however, only the trustee may bring or institute any proceedings: s 134(1) of the Bankruptcy Act. A…

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.

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Details

Case: [2008] NSWLEC 302
Decision Date: 21 October 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Neville Diamond, the applicant, sought declaratory relief and consequential orders concerning the validity of a development consent for sand mining operations conducted by Birdon Contracting Pty Limited at Tinda Creek, in the local government area of Hawkesbury City Council. Birdon Contracting Pty Limited, the first respondent, and Hawkesbury City Council, the second respondent, applied to dismiss or stay Diamond's application on several grounds, including that Diamond was an undischarged bankrupt, there were outstanding orders for costs against him from previous proceedings, and that the present application constituted an abuse of process.

The key legal issues before the court involved the competence of the applicant to bring the proceedings, the effect of outstanding costs orders, and the inherent jurisdiction of the court to prevent an abuse of process. The court found that Diamond was an undischarged bankrupt and, as such, he lacked the legal capacity to bring these proceedings. Although there were exceptions under the Bankruptcy Act 1966 (Cth) for certain types of claims, Diamond did not fall within any of these exceptions as he was not seeking damages or compensation for personal injury or wrong done to him. Consequently, the proceedings were deemed a nullity and were dismissed.

Furthermore, the court found that Diamond's decision to bring fresh proceedings against the same respondents without settling the outstanding costs orders from previous proceedings constituted an abuse of process. The court highlighted its inherent jurisdiction to require the settlement of previous costs orders before allowing new proceedings and noted that the abuse of process was evident from the repetition of issues already raised in earlier proceedings. Under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, the court had the general power to dismiss proceedings that were an abuse of process. The court dismissed Diamond's application, ordered him to pay the respondents' costs, and noted that any future proceedings by Diamond would need to be commenced with the leave of the court.

The court issued formal orders dismissing the principal proceeding and the applicant's notice of motion. It also ordered Diamond to pay the respondents' costs of the proceedings and returned the exhibit. The first respondent sought further discussion on costs and requested an order to restrain Diamond from commencing any further proceedings without the court's leave. The court declined to impose such an order but noted that any future proceedings by Diamond could be immediately moved for dismissal by the respondents without further notice.

Orders