Frketic v Bankstown City Council

[2003] NSWLEC 148

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Land and Environment Court

of New South Wales

CITATION:

Frketic v Bankstown City Council and Ors [2003] NSWLEC 148

PARTIES:

APPLICANT
Frketic

RESPONDENT
Bankstown City Council and Ors

FILE NUMBER(S):

10144 of 2003

CORAM:

Pearlman J

KEY ISSUES:

Practice and Procedure :- summary dismissal - no cause of action

LEGISLATION CITED:

Land and Environment Court Act 1979
Local Government Act 1993
Supreme Court Rules 1970

CASES CITED:

DATES OF HEARING:

16/05/2003

EX TEMPORE
JUDGMENT DATE :

05/16/2003

LEGAL REPRESENTATIVES:

APPLICANT
in person
SOLICITORS
N/A

FIRST RESPONDENT
Ms P D Glynn (Solicitor)
SOLICITORS
Marsdens Law Group

SECOND RESPONDENT
Mr J Merewether (Agent)
SOLICITORS
Forbes Dowling

THIRD RESPONDENT
Mr D W Holmes (Solicitor)
SOLICITORS
Minter Ellison

JUDGMENT:

10144 of 2003

Pearlman J

16 May 2003

PAUL JOSEPH FRKETIÆ

Applicant
v

BANKSTOWN CITY COUNCIL

First Respondent

SYDNEY WATER

Second Respondent

ENERGY AUSTRALIA PTY LTD

Third Respondent

Judgment

1 By respective notices of motion each of the three respondents in this matter, that is, Bankstown City Council, Sydney Water and Energy Australia, seek an order from the Court that the class 1 application made by the applicant, Mr Frketiæ, be summarily dismissed.

2 The class 1 application in its amended form states:

Appealing Government appointed Rating Authorities & Local Courts Refusal to accept offered terms for Repayment of Debts (Rates).

3 It refers to an attached list and there is appended a document with paragraphs numbered 1 to 12 in which Mr Frketiæ sets out the history and other matters relating to the subject land which is at 147 Priam Street, Chester Hill (“the property”).

4 In opening submissions, Mr Frketiæ made it clear that the property comprises land upon which is erected a house which he claims is made of fibro and affected by asbestos. What he also made clear was that he owes money to various institutions and has personal debts. It was clear that what he really seeks is an order from the Court that the house be demolished so that he can sell the land to clear his debts and pay the monies owning to some or all of the respondents.

5 The difficulty with Mr Frketiæ’s application is that he has not articulated in any way the matter that he is appealing against or objecting to. The document that he has filed is, as Ms Glynn who appears for the Council submits, very ambiguous. It does not identify any legislation under which a claim could be brought. Indeed, with respect to the second and third respondents, and in particular the third respondent, it barely articulates their connection with the matter at all. In relation to the council as first respondent it does not focus upon any order or action of the council which would give rise to a cause of action in this Court. It seems that the council and other various government departments have been approached to grant a loan to the applicant to allow him to demolish the building and those approaches have been unsuccessful. That in itself cannot raise any cause of action in this Court.

6 The applicant is under a misapprehension that s 124 of the Local Government Act 1993 which confers a power on councils to make orders, including orders for the demolition of buildings, extends to this Court so that this Court can, on application, itself make such an order. However, the application that the applicant has filed is not in any way related to the s 124 power conferred on council. It does not arise out of any order or notice of intention to make an order that was made by the council. It has no basis in the Local Government Act or any other Act that I can see. As Ms Glynn correctly pointed out, it is futile to look at the Land and Environment Court Act 1979 in order to try to find a basis for the class 1 application where the application does not in itself set out what the cause of action is or identify the legislation under which it proceeds.

7 The only conclusion available to the Court is that no reasonable cause of action is disclosed. Accordingly the Court is empowered to dismiss the application under pt 13 r 5(1)(a) of the Supreme Court Rules 1970 which apply in this court by virtue of pt 6 r 1 of the Land and Environment Court Rules 1996.

8 In coming to the conclusion that the class 1 application must be summarily dismissed, I am conscious of the fact that the applicant, an unrepresented litigant, is doing what he can to try and make the best of a difficult situation. He has bought a property which he claims is affected by asbestos, he has incurred debts and he is trying to exercise whatever rights he thinks he has to bring his predicament to some resolution. Unfortunately, no resolution is available in this court. Whether it is in other courts I do not know. There are proceedings pending, so I am informed, in the Local Court but certainly this present application discloses no cause of action. I am compelled on the evidence before me and on the application itself to dismiss it.

9 The first and second respondents (but not the third respondent) have each sought their costs. In the situation where there is no cause of action, where the claim is not properly framed, and where there is no jurisdiction of the Court to entertain the application, I think it is appropriate to award costs.

10 My formal orders are as follows:

(1) The amended class 1 application filed on 7 April 2003 is summarily dismissed.

(2) The applicant pay the costs of the first and second respondents as agreed or as assessed.