Fokas v Kogarah Council - [2005] NSWLEC 626

Land and Environment Court

of New South Wales

CITATION:
Fokas v Kogarah Council and Anor [2005] NSWLEC 626

PARTIES:
APPLICANT
Maria Fokas
FIRST RESPONDENT
Kogarah Council
SECOND RESPONDENT
The Uniting Church in Australia Property Trust (NSW)

FILE NUMBER(S):
40813 of 2005

CORAM:
Cowdroy J

KEY ISSUES:
Practice and Procedure :- application for strike out - whether reasonable cause of action disclosed - failure to prosecute proceedings - no cause of action disclosed

LEGISLATION CITED:
Land and Environment Court Act 1979 s 69(2)
Land and Environment Court Rules 1996 Pt 6 r 1, Pt 12 r 2
Supreme Court Rules 1970 Pt 13 r 5

CASES CITED:
Dey v Victorian Railways Commissioners (1949) 78 CLR 62;
General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125;
Tzavellas v Canterbury City Council and Anor (1999) 105 LGERA 262

DATES OF HEARING: 07/10/2005

EX TEMPORE JUDGMENT DATE:
10/07/2005

LEGAL REPRESENTATIVES:
APPLICANT
In person
SOLICITORS
n/a
FIRST RESPONDENT
P Vergotis (solicitor)
SOLICITORS
Matthews Folbigg
SECOND RESPONDENT
B Bridges (solicitor)
SOLICITORS
Corporate Solicitor, Wesley Mission

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

7 October 2005

40813 of 2005

MARIA FOKAS
Applicant

KOGARAH COUNCIL
First Respondent

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW)
Second Respondent
EX TEMPORE JUDGMENT

1 Cowdroy J: Before the Court there are two notices of motion for hearing today. The first is a notice of motion issued by the first respondent (“the Council”) which seeks an order that the proceedings be struck out (“the Council’s motion”). The affidavit in support is that of Paul Nicholas Vergotis sworn 29 September 2005.

2 In his affidavit Mr Vergotis sets out the history of numerous directions hearings and of orders made on 5 September 2005 by the Court in which the following directions were made:-

1. That the applicant file and serve points of claim by 12 September 2005.
2. That the respondent file and service points of defence by 26 September 2005.
3. That the matter be re-listed for call-over on 4 October 2005.

3 The affidavit of Mr Vergotis refers to the fact that no points of claim have been received but that instead the applicant has provided several affidavits. Paragraph 19 of the affidavit states:-

I am unable to file points of defence on behalf of the respondent in accordance with the directions made by the Court on 5 September 2005, as the applicant has not disclosed its case within the filing of the points of claim.

4 The second notice of motion for hearing before the Court today was filed by the applicant. That notice of motion seeks an order that the Council’s motion be struck out. The grounds relied upon are that the Council’s motion was not served by 29 September 2005, being the last date for service specified in the Council’s motion. In fact it was received at 1 pm on 30 September 2005 and the hearing was accordingly postponed for one day. The applicant…

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: [2005] NSWLEC 626
Decision Date: 10/07/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Fokas v Kogarah Council involved Maria Fokas challenging the validity of development consents granted by Kogarah Council for two properties in Kogarah. The consents allowed for the construction of an awning to protect patients moving between the two properties, which were operated as a hospital. Fokas, a resident close to the hospital, argued that the awning would create a fire hazard due to inadequate fire exits. The Council sought to strike out the proceedings on the grounds that Fokas had not filed points of claim and had failed to prosecute the proceedings. Fokas opposed the motion, arguing that the Council's motion was not served within the required timeframe.

The legal issues before the court were whether Fokas's proceedings disclosed a reasonable cause of action and if there was good reason for her failure to prosecute the proceedings. The court considered relevant provisions of the Land and Environment Court Rules 1996 and the Supreme Court Rules 1970, as well as relevant case law. The court found that Fokas's affidavits did not disclose a legal basis for challenging the consents and that her claim had no prospects of success. The court concluded that dismissing the proceedings was necessary to prevent the abuse of process and to conserve court resources.

The court dismissed Fokas's proceedings and ordered her to pay the Council's costs in the sum of $750. The court emphasised the importance of ensuring that parties are not improperly deprived of their opportunity for the trial of their case. However, considering Fokas's lack of legal representation and her genuine belief that she was performing a public service, the court did not consider it appropriate to make a substantial order for costs against her.

Orders