Hoxton Park Resident's Action Group Inc. v Liverpool City Council
[2014] NSWSC 433
•11 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: Hoxton Park Resident's Action Group Inc. v Liverpool City Council [2014] NSWSC 433 Hearing dates: 11 April 2014 Decision date: 11 April 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Case management orders made
Catchwords: COURTS PRACTICE - proceedings involving constitutional matter and also a matter of planning law - application to transfer to land and environment court refused Legislation Cited: Land and Environment Court Act 1979 (NSW) Category: Procedural and other rulings Parties: Hoxton Park Residents Action Group Inc (first plaintiff)
Marella Harris (second plaintiff)
Liverpool City Council (first defendant)
Malek Fahd Islamic School Limited (second defendant)
Australian Federation of Islamic Councils Inc (third defendant)
State of New South Wales (fourth defendant)
Commonwealth of Australia (fifth defendant)Representation: Counsel:
Mr J Loxton (first and second plaintiff)
No appearance (first defendant)
Mr A P Cheshire (second and third defendant)
Mr H El Hage (fourth defendant)
Mr A Markus (fifth defendant)
Solicitors:
Robert Balzola and Associates (first and second plaintiff)
No appearance (first defendant)
Goldrick Farrell Mullan (second and third defendant)
Crown Solicitor (fourth defendant)
Australian Government Solicitor (fifth defendant)
File Number(s): 2009/00289796 Publication restriction: None
Judgment
This matter is back in the list today for case management. It also involves dealing with two notices of motion.
Notice of motion (A) is the plaintiff's motion for leave to amend further the statement of claim, and motion (B) is a motion to transfer these proceedings to the Land and Environment Court.
So far as motion (A) is concerned, I have completely dealt with it apart from the question of costs.
The basic history is that the plaintiff's original pleading was struck out by Rein J; the plaintiff appealed to the Court of Appeal; the Court of Appeal allowed the appeal but confirmed that certain parts of the pleading should not be further considered. That meant that the statement of claim had to be recast. The plaintiff recast it but in a form that was embarrassing. The plaintiff then had a second go and again part of the claim was disallowed as being embarrassing. I gave reasons for doing that, and I see no need to repeat them.
The question is who should pay the costs.
The plaintiffs say that they should get part of their costs, perhaps 50%, because after debate on the amendments they won some and lost some. I think with great respect that's too facile a way of looking at the matter. The whole reason for coming into court was because the plaintiff was unable to formulate a statement of claim in a proper form. That has caused the costs of the motion and I order that the plaintiff pay the costs of notice of motion (A).
So far as (B) is concerned, the problem is as I have mentioned in a previous judgment that one issue in the case is an issue which under the Land and Environment Court Act 1979 (NSW) is in the exclusive jurisdiction of that court. Accordingly, if a court is to deal with the whole of the matter one of four things must happen:
(1) That these proceedings advance to the Land and Environment Court;
(2) that proceedings which are pending in the Land and Environment Court are transferred to this court;
(3) that the Chief Justice request the Governor to appoint a judge to act in both courts; or
(4) that this court deal with its issues, and the Land and Environment Court deal with its issues.
On 31 March I stood the matter over to today because I was told that there would be consideration by the Land and Environment Court of the matter before today. However, I am now informed that that application was adjourned until next Tuesday, 15 April 2014; that is the application to transfer the Land and Environment Court matter to this court. I thought it was appropriate that that court should have the opportunity of deciding whether it should retain a matter that was properly within its exclusive jurisdiction or not.
However, I'm also told that the Land and Environment Court is being asked by the plaintiff to remove the matter from this court into the Land and Environment Court. I am a little put out by this because that motion is already before this Court, and this Court has adjourned it as a matter of courtesy to the Land and Environment Court.
I do not think it would be appropriate for that court in the first instance to decide whether to transfer these proceedings to that court. Furthermore I think I made it fairly clear on the 31st March that my provisional view was that the main proceeding should remain in this court.
Basically my reasons for that provisional view, which I still hold, is that the Court of Appeal made it quite clear that the constitutional point involved in this case was of great public interest and should be dealt with as soon as possible. This court is in a far better position to deal with that constitutional point quickly than the Land and Environment Court whose experience, generally speaking, is environmental law not constitutional law.
The matter was properly commenced in this court and that is where it should remain unless there is some very good reason to transfer it elsewhere. The only good reason is that the issue as to the validity of a development consent, which is only one relatively subsidiary issue in the constitutional case, is in the exclusive jurisdiction of another court.
I do not consider that is sufficient. Accordingly, I dismiss the motion to transfer this matter into the Land and Environment court with costs. The matter needs further case management and I will adjourn it to 9.30 in my list on Tuesday the 6 May, 2014.
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Decision last updated: 11 April 2014
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