Duncan v Moore - [1999] NSWLEC 152

Land and Environment Court

of New South Wales

CITATION:

Duncan v Moore and Ors [1999] NSWLEC 152

PARTIES

APPLICANT:
Duncan

RESPONDENTS:
Moore and Ors

NUMBER:

40061 of 1999

CORAM:

Talbot J

KEY ISSUES:

Construction & Interpretation; Practice & Procedure :-
Construction and Interpretation:- whether matter is ancillary to matter within jurisdiction
Practice and Procedure:- extent of jurisdiction of Land and Environment Court

LEGISLATION CITED:

Land and Environment Court Act s 16(1A), s 20(2)

DATES OF HEARING:

06/25/1999

DATE OF JUDGMENT DELIVERY:

06/30/1999

LEGAL REPRESENTATIVES:

APPLICANT:
In person
SOLICITORS:
n/a
FIRST RESPONDENT:
Mr P McEwen SC
SOLICITORS:
Makinson and d'Apice
SECOND RESPONDENT:
Mr J Kildea (Barrister)
SOLICITORS:
Riley Lawyers
THIRD RESPONDENT:
n/a (submitting)

JUDGMENT:

Contents
Paragraph

The claim
1 - 10

The second respondent’s Notice of Motion
11 - 16

The applicant’s submission
17 - 19

The jurisdiction of the Land and Environment Court
20 - 38

Whether the applicant’s claim for relief is within jurisdiction
39 - 45

Conclusion
46 - 55

IN THE LAND AND Matter No. 40061 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 30 June 1999

Malcolm Bruce Duncan
Applicant

v

Clover Moore
First Respondent
Vic Smith
Second Respondent
Peter Fussell
Third Respondent

REASONS FOR JUDGMENT
The claim

1. The Class 4 application filed in these proceedings originally claimed relief which included an order that leave be granted to the applicant to bring the application pursuant to s 25 of the Environmental Offences and Penalties Act 1991 (the EOP Act)
2. as a consequence of an alleged breach of s 151B(2A) of the Parliamentary Electorates and Elections Act 1912. The application also sought a declaration that the affixing of campaign posters to power poles within the boundaries of the electorate of Bligh by the respondents, their servants or agents or unnamed persons on their behalf is in breach of the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act).

3. It is common ground that the applicant and the respondents were candidates for the election to the seat of Bligh in the Legislative Assembly which took place on 27 March 1999.

4. Points of Claim filed claimed further that the erection of posters was and continues to be a contravention of s 65 of the Electricity Supply Act.

5. On 18 March 1999, in chambers, the Chief Judge granted leave to bring the application pursuant to s 25 of the EOP Act.

6. However, when all of the parties were represented before her on 23 March 1999, the order granting leave was set aside.

7. An interlocutory injunction granted on 18 March 1999 was discharged on 23 March 1999.

8. The applicant was required to file Amended Points of Claim to take account of the refusal of leave to proceed under the EOP Act.
9. In an Amended Points of Claim filed on 31 May 1999, the applicant claims the following relief:-

1. A declaration that the erection of posters being campaign posters for political purposes to telegraph…

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 Duncan v Moore

Details

AGLC: Duncan v Moore [1999] NSWLEC 152
Case: [1999] NSWLEC 152
Decision Date: 30 June 1999

CaseChat Overview and Summary

In Duncan v Moore, the applicant sought relief on the basis of alleged breaches of the Parliamentary Electorates and Elections Act 1912 and the Electricity Supply Act 1991 by the respondents, who were candidates for the seat of Bligh in the Legislative Assembly. The applicant sought declarations and orders regarding the erection of campaign posters on power poles within the boundaries of the electorate of Bligh. The second respondent moved to dismiss the claims for relief based on alleged breaches of the Electricity Supply Act and the Parliamentary Electorates and Elections Act, arguing that the Court lacked jurisdiction over these claims as they were not related to planning and environmental laws.

The key legal issues were whether the Court had jurisdiction to hear and determine the claims for relief based on the alleged breaches of the Electricity Supply Act and the Parliamentary Electorates and Elections Act, and if the applicant's claim for relief was within the Court's jurisdiction. The Court examined the relevant provisions of the Land and Environment Court Act and considered the distinction between ancillary and associated matters in determining the scope of its jurisdiction.

The Court concluded that the applicant's claims for relief in respect of the alleged breaches of the Electricity Supply Act and the Parliamentary Electorates and Elections Act were not within the jurisdiction of the Land and Environment Court. The Court found that the additional claims were not ancillary to the matter within jurisdiction and did not assist in resolving the matter that fell within jurisdiction. The Court emphasised that its jurisdiction was limited to matters arising under planning and environmental laws and that it could not grant relief in respect of matters not within jurisdiction, even if they were necessary steps in the cause of action within jurisdiction. The Court ordered the applicant to amend the Points of Claim by deleting the claims for relief in respect of the alleged breaches of the Electricity Supply Act and the Parliamentary Electorates and Elections Act. The question of costs and any remaining questions arising out of the Notice of Motion were reserved, and the matter was to be listed for callover and directions before the Registrar.

Orders