Fokas v Kogarah Council - [2008] NSWCA 145

New South Wales

Court of Appeal

CITATION: Fokas v Kogarah Council [2008] NSWCA 145

HEARING DATE(S): On the papers

JUDGMENT DATE:
26 June 2008

JUDGMENT OF: Allsop P; Tobias JA

DECISION: (a) Summons for leave to appeal dismissed.
(b) The applicant to pay the second respondent's costs of the summons.

CATCHWORDS: Leave application – Land and Environment Court – Uniform Civil Procedure Rules – Power of the court to set aside or vary judgment or order – Order dismissing proceedings – Discretion not to grant leave

LEGISLATION CITED: Electricity Supply Act 1995 (NSW)
Environment Planning and Assessment Act 1979 (NSW) ss 96, 116F
Land and Environment Court Rules 1996 (repealed) pt 15, rr 2 and 9
Uniform Civil Procedure Rules 2005 rr 13.4, 36.16 and 51.15

CATEGORY: Principal judgment

CASES CITED: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
De L v Director-General of Community Services (No.2) [1997] HCA 14; (1997) 190 CLR 207; (1997) 143 ALR 171; (1997) 71 ALJR 588
DJL v Central Authority [2000] HCA 17; 201 CLR 226; 170 ALR 659; 74 ALJR 706
Fokas v Kogarah Council & Anor [2008] NSWLEC 74

PARTIES: Maria Fokas
Kogarah Council
Energy Australia

FILE NUMBER(S): CA 40061/08

COUNSEL: A: Self-represented
1R: Submitting
2R: Mr A Galasso SC

SOLICITORS: A: Self-represented
1R:Pike Pike & Fenwick, Sydney
2R: Clayton Utz, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 40007/08

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 1 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Fokas v Kogarah Council & Anor [2008] NSWLEC 74

CA 40061/08
LEC 40007/08

ALLSOP P
TOBIAS JA
Thursday 26 June 2008

MARIA FOKAS v KOGARAH COUNCIL & Anor

Judgment on the papers

1 THE COURT: On 19 March 2008 the applicant, Maria Fokas, filed a summons seeking this Court’s leave to appeal from an order of Justice Pain of the Land and Environment Court made on 3 March 2008 dismissing the applicant’s Notice of Motion dated 5 February 2008 seeking orders that the decision of Justice Lloyd of that court made on 1 February 2008 be set aside.

2 The first respondent, Kogarah Council (the Council), has filed a submitting appearance save as to costs whereas both the applicant and the second respondent, Energy Australia, have consented to the application for the leave to appeal being dealt with by the Court on the papers and in the absence of any attendance of the parties or their legal representatives pursuant to Part 51, rule 51.15 of the Uniform Civil Procedure Rules 2005 (the UCPR).

3 The dispute between the parties arises out of the granting by the Council to the second respondent on 14 December 2007 of development consent (the consent) for the construction of an electricity zone substation and associated infrastructure upon the properties Nos.260-262 Railway Parade, Kogarah and 8 English Street, Kogarah (the properties). The applicant is the owner of the property No.14 English Street, Kogarah.

4…

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.

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Details

Case: [2008] NSWCA 145
Decision Date: 26 June 2008

CaseChat Overview and Summary

The applicant, Mr. Fokas, sought leave to appeal against an order of the Land and Environment Court of New South Wales that dismissed his proceedings against Kogarah Council. The application for leave to appeal was heard by the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the Land and Environment Court had erred in exercising its discretion by refusing to set aside or vary its previous order dismissing Mr. Fokas's proceedings. This involved considering the principles governing the exercise of such discretion, particularly in circumstances where a party seeks to revive proceedings that have been dismissed.

The Court of Appeal considered the relevant rules of the Uniform Civil Procedure Rules, which empower courts to set aside or vary judgments or orders. Their Honours noted that the power to grant leave to appeal from an interlocutory order, such as an order refusing to set aside a dismissal, requires the applicant to demonstrate that the appeal raises a question of law of general importance or that the interests of justice require it. In this instance, the Court found no error in the Land and Environment Court's exercise of discretion and concluded that the grounds for granting leave to appeal were not met.

Consequently, the Court of Appeal dismissed the summons for leave to appeal and ordered that the applicant pay the second respondent's costs of the summons.

Orders

Orders of the court

(a) Summons for leave to appeal dismissed. (b) The applicant to pay the second respondent's costs of the summons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fokas v Kogarah Council [2008] NSWCA 145
HEARING DATE(S):	On the papers
JUDGMENT DATE:	26 June 2008
JUDGMENT OF:	Allsop P; Tobias JA
DECISION:	(a) Summons for leave to appeal dismissed. (b) The applicant to pay the second respondent's costs of the summons.
CATCHWORDS:	Leave application – Land and Environment Court – Uniform Civil Procedure Rules – Power of the court to set aside or vary judgment or order – Order dismissing proceedings – Discretion not to grant leave
LEGISLATION CITED:	Electricity Supply Act 1995 (NSW) Environment Planning and Assessment Act 1979 (NSW) ss 96, 116F Land and Environment Court Rules 1996 (repealed) pt 15, rr 2 and 9 Uniform Civil Procedure Rules 2005 rr 13.4, 36.16 and 51.15
CATEGORY:	Principal judgment
CASES CITED:	Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 De L v Director-General of Community Services (No.2) [1997] HCA 14; (1997) 190 CLR 207; (1997) 143 ALR 171; (1997) 71 ALJR 588 DJL v Central Authority [2000] HCA 17; 201 CLR 226; 170 ALR 659; 74 ALJR 706 Fokas v Kogarah Council & Anor [2008] NSWLEC 74
PARTIES:	Maria Fokas Kogarah Council Energy Australia
FILE NUMBER(S):	CA 40061/08
COUNSEL:	A: Self-represented 1R: Submitting 2R: Mr A Galasso SC
SOLICITORS:	A: Self-represented 1R:Pike Pike & Fenwick, Sydney 2R: Clayton Utz, Sydney
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L&E 40007/08
LOWER COURT JUDICIAL OFFICER:	Lloyd J
LOWER COURT DATE OF DECISION:	1 February 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Fokas v Kogarah Council & Anor [2008] NSWLEC 74