Gorczynski v Leichhardt Municipal Council - [2001] NSWLEC 76

Reported Decision: (2001) 113 LGERA 422

Land and Environment Court

of New South Wales

CITATION: Gorczynski v Leichhardt Municipal Council & Ors [2001] NSWLEC 76 revised - 13/06/2001

PARTIES:
APPLICANT
Gorczynski
RESPONDENT
Leichhardt Municipal Council & Ors

FILE NUMBER(S): 40120 of 2000; 40012 of 2000; 30079 of of 2000

CORAM: Cowdroy J

KEY ISSUES: Practice & Procedure :- Reference of technical issues to referee pursuant to Pt 72 of the Supreme Court Rules 1970 - motion for adoption of referee’s report - objections to adoption upon grounds of alleged lack of procedural fairness and lack of utility - no basis to refuse adoption

LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 72 r 8, r 11, r 13

CASES CITED: Beveridge v Dontan Pty Limited (1991) 23 NSWLR 13;
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60;
Kioa v West (1985) 159 CLR 550;
Leda Constructions Pty Limited v SJP Formwork (Aust) Pty Limited (1992-1993) 29 NSWLR 549;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24;
Najjar v Haines (1991) 25 NSWLR 224 ;
Parsons v Bunge (1941) 64 CLR 421 ;
Sacon Constructions Pty Limited v Kezarne (Rolfe J, NSWSC, 10 October 1997, unreported);
Skinner & Edwards (Builders) Pty Limited v Australian Telecommunications Corporation (1992) 27 NSWLR 567 ;
SJP Formwork (Aust) Pty Limited v Leda Constructions Pty Ltd (Giles J, NSWSC, 19 May 1992, unreported);
Twist v Randwick Muncipal Council (1976) 136 CLR 106;
White Constructions (NT) Pty Limited v Commonwealth of Australia (1990) 7 BCL 193

DATES OF HEARING: 2/4/01

DATE OF JUDGMENT:
04/27/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Miller (Barrister)
SOLICITORS
Uther Webster & Evans
FIRST RESPONDENT
Mr P Jackson (Solicitor)
SOLICITORS
Pike Pike & Fenwick
SECOND & THIRD RESPONDENT
Mr P Clay (Barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40012 of 2000; 40120 of 2000; 30079 of 2000
CORAM: Cowdroy J
DECISION DATE: 27/4/01

Peter Francis Gorczynski

Leichhardt Municipal Council

Ravini Neluka Perera

Rebecca Patricia Dee

JUDGMENT

1. By notice of motion filed 30 October 2000 the applicant seeks an order that the report of Gleeson Consulting Pty Ltd dated 11 October 2000 relating to premises known as 80 Booth Street Annandale (“the report”) be adopted. The adoption of the report is challenged by the second and third respondents (“the opponents”). The report had been prepared pursuant to a direction by the Court made on 15 September 2000 directing the appointment of a referee to inquire and report upon the disputed construction and engineering issues at the above premises. It was the intention of the Court, as understood by all relevant parties with the exception of the opponents, that the appointment of the referee be made pursuant to Pt 72 of the Supreme Court Rules 1970 (“the SC Rules”) as adopted by Pt 6 r 1 of the Land…

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.

Keep reading for free

Create a free CaseChat account to read Gorczynski v Leichhardt Municipal Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWLEC 76
Decision Date: 04/27/2001

CaseChat Overview and Summary

The case of Gorczynski v Leichhardt Municipal Council, involving the applicant Peter Francis Gorczynski and respondents Leichhardt Municipal Council, Ravini Neluka Perera, and Rebecca Patricia Dee, was heard in the Land and Environment Court of New South Wales. The primary issue was whether the report of Gleeson Consulting Pty Ltd, dated 11 October 2000, which examined the premises at 80 Booth Street Annandale, should be adopted. This report had been commissioned by the court to address specific construction and engineering disputes. The respondents challenged the adoption of the report on grounds of alleged procedural unfairness and lack of utility.

The legal issues revolved around the interpretation and application of Part 72 of the Supreme Court Rules 1970, as adopted by Part 6 Rule 1 of the Land and Environment Court Rules 1996. The key concerns raised by the respondents were the alleged misinterpretation of the referee's role and the failure to annex statements of findings of fact and law as required by Part 72 Rule 11. The respondents also argued that the adoption of the report would be futile as the structures in question had already been demolished.

The court examined these objections closely, noting that the respondents had misunderstood the nature of the referee's appointment, which was indeed under Part 72, not Part 39 of the Supreme Court Rules. The court clarified that the procedure followed was appropriate and that no prejudice was demonstrated by the respondents. It also found that the referee's report adequately addressed the parties' contentions, thereby satisfying the principles of natural justice. The court further ruled that the adoption of the report would indeed serve a purpose, as it would provide factual findings that could assist in the final determination of the case and potential relief sought.

In conclusion, the court rejected the objections and ordered the adoption of the report, determined that the costs of the reference would be costs in the cause, and scheduled further directions for the case.

Orders