Dr Elizabeth Joanou v Randwick City Council & Anor [1998] Nswlec 58 (17 April 1998)

[1998] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:	Dr Elizabeth Joanou v Randwick City Council & Anor [1998] NSWLEC 58 (17 April 1998) [1998] NSWLEC 76
PARTIES:	Dr Elizabeth Joanou v Randwick City Council & Anor
FILE NUMBER(S):	40053 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:- Interlocutory injunction - extension - expedition - notice of application - was applicant served? - undertaking as to damages - case to be tried?
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Randwick Planning Scheme Ordinance Randwick Local Environmental Plans
CASES CITED:
DATES OF HEARING:	25 March 1998
EX TEMPORE JUDGMENT DATE :	04/17/1998
LEGAL REPRESENTATIVES:	Mr J McKenzie, Barrister Mr AJJ Thompson, Barrister Mr G Newport, Barrister

JUDGMENT:

HIS HONOUR: In this matter, late in the day on 19 March, I granted on an ex parte basis, interlocutory relief to the applicant and set some timetable in respect of service of the documents.

This morning the parties have appeared in response to that interlocutory ex parte relief to discuss and dispute the question of its continuing.

No matters of this type are ever simple in terms of the exercise of the Court's discretion and the exercise of its powers.

The issues between the parties appear to be of relatively narrow compass and there is a fair amount of common ground as to exactly what did occur. What is in dispute is whether or not something else may have occurred in respect of the provision of the relevant notice to the applicant.On what is before the Court today it is reasonable to accept that the Council can be confident of proving at a full hearing that a notice of the relevant development application was sent to the then occupier of the applicant's house and to her agent.

However, it is certainly not beyond the realm of possibility for the evidence to lead the Court to the conclusion that the notices so sent did not come to her notice at all.

That is a matter that is still in dispute. The evidence of Mrs Jones seems to be consistent when given to and on behalf of all parties, but there is a clear denial on affidavit by the applicant's agent, not only of receipt of a notice that was allegedly posted to the applicant care of the agent, but also a denial of a conversation said to have occurred between the occupier of the applicant's house and that agent.

The adequacy of notice is a crucial issue in the Court's consideration of the merits arguments in the matter.

There is evidence before the Court that the loss of views to the north in the event of the building proceeding as approved will be substantial. There is also some evidence in the council officer's report that, even if innocently, there was some sympathetic consideration by council officers of that impact. The fact remains, however, that the applicant did not have before the council at the relevant time an objection, and she now seeks the relief of the Court because of what she alleges to be the circumstances which resulted in her not making such an objection.

The judgment to be formed by the Court, put fairly and quite adequately by Mr Newport, is that the Court needs to be satisfied of a good, arguable case, or a strong prima facie case or, in another formulation of the test, a serious question to be tried.

The case may well have difficulties, and they will be difficulties that Mr McKenzie's client has to overcome, but, in fairness to him and to the applicant, I note that those difficulties were admitted to the Court during the ex parte hearing, and again this morning.

At the time of the ex parte hearing and again this morning, and in writing this morning, an undertaking is given to the Court in respect of damages. Mr Newport has introduced some evidence today of the likely extent of such damages if the orders are continued. Mr McKenzie says that his client has been consulted about that evidence and has instructed him to continue with the undertaking and with the proceedings.

It seems to me that any prejudice caused to the second respondents by a continuation of the interlocutory relief could be cured by damages. It is put on their behalf, essentially, although not in these words, that if I decline to continue the relief, the building works, if they do proceed, will proceed at substantial risk to the second respondents of some subsequent order of the Court that the work be undone.

I might say at this point that, although there has not been evidence, there has been submission from the bar table in respect of some work that has been carried out at the front of the dwelling, which is the relevant part of the proposed building works before the Court. There has been some work done in the early part of this week contrary to the order that the Court made, but I accept that there will be some evidence in explanation for that, and I make no criticism of the second respondents in this regard, given that work has now ceased.

In weighing the balance of convenience, given the undertaking as to damages, I propose to extend the orders, but on the strict understanding that it is agreed among the parties, and it is certainly the view of the Court, that these issues between the parties must be finally determined at the earliest possible date.

Accordingly I order that the hearing of this matter be expedited and I grant leave to the parties to approach the registrar today for the setting of a hearing date.

In respect of the documentation that needs to be before the Court at that hearing I order the applicant to file points of claim by close of business Thursday 26 March and the respondents to file points of defence by close of business Tuesday night 31 March. I direct the applicant to file and serve any further affidavits upon which she seeks to rely on or by 5pm Friday 3 April 1998 and the respondents to file and serve affidavits upon which they seek to rely on or by Friday 10 April, which in effect will be close of business Thursday 9 April. Any affidavits to be filed by the applicant in reply to the respondents affidavits should be filed by Thursday 16 April.

In respect of subpoenas and notices to produce is there any suggestion as to a date for them to be returnable before the registrar?

McKENZIE: Fairly soon your Honour. I think that probably it may be that this can be dealt with between the parties. Perhaps we can talk about that while we're going down to the registrar. We wouldn't want to take those documents from the council and have them locked up here in the exhibits room that they might need to get their-

HIS HONOUR: Very well, I will make no order in that respect. You can discuss that with the registrar when setting a hearing date, but I think the other timetable should be adhered to.

Accordingly, I make order number one in the short minutes, which for convenience I will initial and date 25 March. Order number two, which is that the hearing be expedited, is also made. I have just given the directions (a), (b) and (c). Is there any objection to discovery?

THOMPSON: No your Honour.

NEWPORT: It's informal discovery your Honour. Discovery is a tedious process. The second respondent would--

McKENZIE: It was worded in that general way so that we wouldn't have at this stage--

HIS HONOUR: I will not make orders (d) or (e) in the short minutes, and I reserve the question of costs till the proceedings have a final result. I return exhibits A1, A2 and C1.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.
Associate:
Dated: 17 April 1998