Dillon v Gosford City Council

[2002] NSWCA 387

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Dillon v Gosford City Council [2002]  NSWCA 387

FILE NUMBER(S):
40666 of 2001

HEARING DATE(S):    22/07/02

JUDGMENT DATE:      04/12/2002

PARTIES:
Kevin Walter Dillon - appellant
Gosford City Council - respondent

JUDGMENT OF:        Spigelman CJ Meagher JA Hodgson JA   

LOWER COURT JURISDICTION:       Land & Environment Court

LOWER COURT FILE NUMBER(S):     LEC 30339 of 2001

LOWER COURT JUDICIAL OFFICER:   Talbot J

COUNSEL:
Appellant: In Person
Respondent: P Tomasetti

SOLICITORS:
Appellant: In Person
Respondent: P J Donnellan & Co

CATCHWORDS:
Notice of Motion - variation of orders - s 243AC Local Government Act 1919 - whether the Court failed to apply the relevant rules of construction - notice of motion dismissed with costs.

LEGISLATION CITED:
Schedule 3 Miscellaneous Acts (Planning) Repeal & Amendment Act 1979
s.342AC Local Government Act 1919

DECISION:
Notice of Motion dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40666/01

SPIGELMAN CJ
MEAGHER JA
HODGSON JA

Wednesday, 4 December 2002

DILLON V. GOSFORD CITY COUNCIL

Judgment

1. THE COURT:  Judgment in this matter was delivered on 9 July 2002, by which orders were made dismissing the appeal with costs.  At the request of the appellant, the respondent has refrained from taking out the orders; and the appellant has filed a Notice of Motion dated 22 July 2002 seeking orders setting aside or varying the orders made on 9 July 2002.  The appellant provided written submissions dated 18 August 2002, the respondent provided written submissions dated 2 September 2002, and the appellant provided written submissions in reply dated 5 September 2002. 

2. The ground on which the appellant seeks reconsideration of the decision to dismiss the appeal is essentially that, in coming to its decision that cl.13 of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 disclosed a clear intention that rights to compensation under s.342AC of the Local Government Act 1919 should be lost unless a claim for compensation had been made by 1 September 1980, the Court did not apply rules of construction laid down by the High Court. The appellant submitted that, according to those rules, it must be manifest from the very terms of the statute that it was the intention of the legislature that the rights be lost. He also submitted that the purpose of cl.13 was not that rights should be preserved only if the subject of a claim made by 1 September 1980, but to prevent double compensation; and that the Court’s view would lead to unreasonable results where the events giving rise to the right to compensation occurred shortly prior to 1 September 1980.

3. In my opinion, the Court did apply the relevant rules of construction, and it found the relevant intention to be manifest from the words of the statute.  As regards double compensation, this point tends to reinforce the Court’s conclusion:  why would the legislature preclude double compensation where claims had already been made by 1 September 1980, and not where claims had not then been made but could be made in the future?  The theoretical possibility of cases where there had not been reasonable time to make a claim prior to 1 September 1980 does not affect the Court’s conclusion. 

4. Accordingly, this is plainly not a case where the Court should reconsider its decision to dismiss the appeal. 

5. The appellant also seeks reconsideration of the decision as to costs.  It is usual for the costs of an appeal to follow the event; and the appellant has not provided any valid reason why that should not be so in this case. 

6. Further, the Court wishes to state with some emphasis that a Notice of Motion of the present kind must not be used as a device for re-arguing the merits of the Court’s judgment.  In this regard, the Court accedes to the written submissions of the opponent.

7. The Notice of Motion dated 22 July 2002 should be dismissed with costs, and it is appropriate now that the orders made on 9 July 2002 be taken out.

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LAST UPDATED:               05/12/2002