Huang v Nazaran

[2023] NSWCA 8

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Huang v Nazaran [2023] NSWCA 8

Hearing dates:

3 February 2023

Date of orders:

3 February 2023

Decision date:

13 February 2023

Before:

White JA at [1];
Simpson AJA at [25];
Basten AJA at [26]

Decision:

Leave to file Amended Summons refused.

Summons dismissed with costs.

Catchwords:

PRACTICE AND PROCEDURE – amendments – leave to amend originating process – where application for leave made late and no explanation of delay – where proposed amendments disclose no prospects of success – no issue of principle – leave to amend refused

ADMINISTRATIVE LAW – judicial review – whether failure to find existence of “offensive noise” within the meaning of the Protection of theEnvironment Operations Act 1997 (NSW) at first-instance and on appeal amounts to jurisdictional error by reason of wrongful refusal to assume jurisdiction – whether impugned findings of fact as to placement of air conditioner said to emit “offensive noise” resulted in jurisdictional errors – held that jurisdictional error not arguable

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), Pt 3, s 18

Criminal Appeal Act 1912 (NSW), s 5B

Local Court Act 2007 (NSW), s 70(1)(b)

Protection of the Environment Operations Act 1997 (NSW), s 268

Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW), cl 45

Uniform Civil Procedure Rules 2005 (NSW), r 59.4

Cases Cited:

Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162

Huang v Nazaran [2021] NSWCA 243

Jankovic v Director of Public Prosecutions [2020] NSWCA 31

Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620; [1995] HCA 31

Category:

Principal judgment

Parties:

Chenlong Huang (First Applicant)
Xuejing Li (Second Applicant)
Fatemeh Nazaran (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
G W McGrath SC with R Wathukarage (Applicants)
A Jones (Solicitor) (First Respondent)

Solicitors:
Kammoun Sukari Lawyers (Applicants)
Adam Jones Solicitor (First Respondent)
Submitting appearance (Second Respondent)

File Number(s):

2022/254168

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Date of Decision:

10 May 2022

Before:

M L Williams SC DCJ

File Number(s):

2019/378892

JUDGMENT

1. WHITE JA: On 3 February 2023, the Court refused to grant leave to the applicant to file an Amended Summons which sought an order in the nature of certiorari to quash orders of the District Court made on 10 May 2022. Those orders disposed of an appeal from an order of the Local Court given on 17 November 2020, which in turn dismissed the applicants’ application for a noise abatement order against the respondent. The Court also ordered that the Summons filed on 26 August 2022 be dismissed with costs.

2. These are my reasons for joining in the making of those orders.

3. The applicants and the respondent are close neighbours in Carlingford. There is a gap of less than 2 metres between their houses. In January 2017, the applicants began to complain about noise emanating from an air conditioning unit…