East Sydney Neighbourhood Assoc Inc v South Sydney City Council

[2000] NSWSC 176

CITATION:	East Sydney Neighbourhood Assoc Inc v South Sydney City Council [2000] NSWSC 176
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1332/00
HEARING DATE(S):	9 February 2000
JUDGMENT DATE:	9 February 2000
PARTIES :	East Sydney Neighbourhood Association Inc (P) Council of the City of South Sydney (D)
JUDGMENT OF:	Hamilton J

COUNSEL :	P J McEwen SC (P) W R Davison SC (D)
SOLICITORS:	Eddy & Moloney (P) Pike Pike & Fenwick (D)
CATCHWORDS:	LOCAL GOVERNMENT [275] - Appeals - New South Wales - Supreme Court - Desirability of Supreme Court having concurrent jurisdiction over actions within jurisdiction of Land and Environment Court.
LEGISLATION CITED:	Land and Environment Court Act 1979, ss 20 & 71 Environmental Planning and Assessment Regulation 1994
DECISION:	Ex parte injunction granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 9 FEBRUARY 2000

1332/00 EAST SYDNEY NEIGHBOURHOOD ASSOCIATION INCORPORATED v COUNCIL OF THE CITY OF SOUTH SYDNEY

JUDGMENT - on ex parte application for injunction

HIS HONOUR:
1 This is an application for an ex parte injunction brought on behalf of East Sydney Neighbourhood Association Incorporated, in effect to restrain the adoption at a Council meeting tonight of the Council's Draft Sex Industry Policy with Proposed Amendments. The application is put upon the basis of procedural fairness generally, and reference is made in that regard to Part 3 of the Environmental Planning and Assessment Regulation 1994 ("the Regulation") and the need for exhibition of development control plans. Whilst this Policy is not, in terms, a development control plan, one of the grounds on which this application is made is that it is in substance such a plan, or has been treated by the Council to date as such a plan, and that the Regulation has not been complied with. As I understand it, however, the plaintiff's application does not proceed solely by reference to the Regulation.

2 The involvement of the regulation is material to this application in the following way. Although the application is an ex parte application, the Council has attended on the application by Mr Davison SC. It should be made plain that the Council has not participated in the application before me in such a fashion that it can in any way be said that it has participated in a contested interlocutory application and had that application determined against it. At my invitation Mr Davison drew my attention to limited considerations, by reason of which any relief ought to be refused. The only one upon which I need to say something in these short reasons for judgment is that he called in aid the provisions of ss 20 and 71 of the Land and Environment Court Act 1979, which might be taken as precluding this matter from the jurisdiction of this Court in favour of the exclusive jurisdiction of the Land and Environment Court.

3    I have had only a very short time to consider the matter, this application being made before me after 4pm today, and tonight being the time of a Council meeting at which this matter is due to be considered. Suffice it to say on the very limited consideration that I have been able to give to the matter, it is not clear to me that the jurisdiction of this Court is excluded.

4    I can only say that the making of this urgent application to this Court to my mind illustrates yet again the desirability of this Court and the Land and Environment Court having concurrent jurisdiction in respect of such actions (as opposed to appellate proceedings) as may be brought in that Court. It is desirable that matters clearly within the purview of its specialist jurisdiction be dealt with by the Land and Environment Court, rather than by this Court, but equally it is undesirable for parties to be sent from court to court looking for a court with undoubted jurisdiction, particularly to deal with matters on an urgent basis. Were I minded to refuse relief on this jurisdictional ground, which Mr Davison has very properly reminded me of, no doubt the result would be that, between now and the time of the meeting this evening, the plaintiff would very likely have felt obliged to go and trouble a Judge of the Land and Environment Court about the same matter.

5    In all the circumstances, I am minded to grant relief, but only very short term ex parte relief, to permit the plaintiff's complaint to be considered further. The injunction is asked for only in terms of precluding the adoption or approval of the Policy at tonight's meeting, so that consideration and debate of the Policy by the Council tonight is not precluded. I have also taken into account that the next Council meeting is only 14 days from today, so that the delay in the Council approving the Policy caused by the making of this order will not be a lengthy one. I am given the usual undertaking as to damages on behalf of the plaintiff, and, on that basis, in all the circumstances I propose to grant injunctive relief up to and including next Monday, 14 February 2000, when, if further relief is desired from this Court on the plaintiff's part, it will have to be moved for before the Duty Judge.

6    I have not made a direction concerning service of the summons, as that is not necessary, Mr Davison and his instructing solicitor being present in Court. I have not made directions about the preparation of further affidavits on the plaintiff's behalf, but furthering of the evidence should not await Monday, and I do not doubt that one of the considerations that the Duty Judge will take into account on Monday will be the assiduity with which the plaintiff has pursued its evidentiary preparation between now and then.

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Last Modified: 09/25/2000