Elwick 9 Pty Ltd v Freeman (Ruling No. 1)

[2018] VSC 90

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2018 00375

ELWICK 9 PTY LTD (ACN 610 147 290) T/AS 9 ROUND ELSTERNWICK	Applicant
v
ELLIOTT FREEMAN	First Respondent
LI SUN	Second Respondent
HEATHER SHEARER	Third Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2018
DATE OF RULING:	8 February 2018 (ex tempore) (Revised 2 March 2018)
CASE MAY BE CITED AS:	Elwick 9 Pty Ltd v Freeman (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 90

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ADMINISTRATIVE LAW – Application extension of time to seek leave to appeal to Supreme Court from the Victorian Civil and Administrative Tribunal (‘VCAT’) – Length of delay not unreasonable – Any prejudice allayed by expedited hearing - Application for extension of time granted.

PRACTICE AND PROCEDURE – Application for stay of VCAT decision pending appeal – Preservation of fruits of VCAT decision – Expedited hearing able to assuage detriment or prejudice to applicant - Application for stay refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Nixon	Fairweather Legal
For the Defendant	Mr D Freeman (solicitor)	David Freeman

HER HONOUR:

1. I have found the two matters that I have before me, being the application for the stay and the extension of time period application, are quite finely balanced.

1. What I have decided to do is not to grant the stay, but to grant the extension of time.  To a large extent, the principles that apply to both of those applications somewhat overlap.

1. I have decided, in part, that if this matter is able to be brought to trial in a very short compass, and I am proposing a date of either 15 or 16 March, the interests of all parties and of justice would be best served in trying to bring the matter to a conclusion.

1. It does seem to me from the material, the order of the Tribunal limiting the hours of operation to 8.00am based on noise, nuisance, vibration and the like, is fundamentally the part of the restriction of operations which the applicants challenge, the material also discloses that potential interference with quiet enjoyment, potential interference with the occupation of the premises, also occurs outside the hours of those times.

1. In terms of extension time principles, the leading case, the High Court case of Jackamarra v Krakouer,[1] identifies length of delay, reason for delay, whether or not there is an arguable case, and extent of prejudice suffered by the respondent as the key factors.  The decisions of this Court and the decisions that both Mr Freeman has referred to today, including that of Derham AsJ in Owners Corporation RP 3454 v Ainley,[2] identify those same reasons.

   [1](1998) 195 CLR 516.

   [2][2017] VSC 790 (‘Ainley’).

1. The factors are not necessarily limited to those identified factors.  On the facts of what has been put before me, I find that the length of delay is not unreasonable given the matters put to me by Mr Nixon, and that it is open for me to find that there was sufficient confusion, such that the delay is not unreasonable and the reasons for the delay, as Mr Nixon has identified, I find adequate.

1. On whether there is an arguable case, I think that there is sufficient identification in Ground 4 of the originating motion that provides sufficient scope for a question to be determined by this Court.

1. I have read both Balcombe[3] and the decision of Derham AsJ in Ainley.  On my reading of those cases, I am not convinced that they determine the question as identified by Ground 4.  They both deal with the validity of the rules of an Owners Corporation.

   [3]Owners Corp PS 501391P v Balcombe [2016] VSC 384.

1. Whilst they skirt around the question of the role of the Planning and Environment Act 1987 and the Building Act 1993, on my reading of them, I do not believe they are determinative of the issue. The issue of whether or not a planning permit or a permission under the Planning and Environment Act 1987 is one caught by s 140, in my view is sufficiently untested and of importance and it is one that meets the test of an arguable case.

1. In terms of extent of prejudice, the ability to bring the matter on within the month for hearing, in my opinion, assuages the detriment or prejudice both to the respondent and to the applicant.  When one also brings into play my decision not to extend the stay or not to provide for the stay, that preserves to the respondents the fruits of the decision that the Tribunal has given, but at the same time does not unduly extend the time in which the applicant will suffer financial implications.  I accept that there will be, or may be, some financial implications in terms of that delay, but it is nowhere near to the extent that may well be sufficient to tip the balance as it might be, if this matter was unable to come on for hearing for six or nine months.

1. The only other matter that is in the mix in relation to the stay principles, is the special or exceptional circumstances point.  Given what I have said in relation to the extension of time principles, I think it follows that I have refused the stay because of the limited time period although understanding that it does have implications for the applicant, potentially, but the fruits of the judgment that currently the respondents have the benefit of, remain in place.

1. There is, obviously, an overarching, residual discretion relation to the stay.  They are matters that are of consequence for the applicant and, given what I have already said, I do not think I need to say much more than that other than I believe on balance,  being able to bring the matter on for trial in a relatively short time meets the interests of justice.

1. So then returning to the orders, what I will ask the parties to do and I have, having heard what Mr Nixon said about the structure, I have turned my mind to what needs to be done but I will ask the parties to prepare some orders, picking up the time frames that we have just discussed but the first order would be that the application for extension of time is allowed.  The application for leave to appeal and appeal, if leave is granted, are listed for hearing on 16 March 2018 on an estimate of one day.

1. In terms of affidavits, the plaintiff to file and serve any further affidavits on which he intends to rely by 4.00pm on 21 February.

1. In terms of submissions and lists of authorities, the applicant file and serve an outline of written submissions and serve a list of authorities by 4.00pm on 28 February and the equivalent order for the respondents by 14 March.

1. Costs reserved, liberty to apply.

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