Hurstville City Council v Jacobs - [2007] NSWLEC 630

Land and Environment Court

of New South Wales

CITATION: Hurstville City Council v Jacobs [2007] NSWLEC 630

PARTIES:
APPLICANT
Hurstville City Council
RESPONDENT
Kevin Roy Jacobs

FILE NUMBER(S): 40013 of 2006

CORAM: Jagot J

KEY ISSUES: Civil Enforcement :- motion to set aside consent orders - practice and procedure - whether perfected orders could be set aside - motion dismissed

LEGISLATION CITED: Local Government Act 1993

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529 ;
Cachia v Colaco (2003) 132 LGERA 62;
DJL v The Central Authority (2000) 201 CLR 226 ;
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13;
Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227;
Mohinder Singh v Secretary, Department of Family & Community Services [2001] FCA 1281;
National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 ;
Paino v Hofbauer (1988) 13 NSWLR 193;
Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365 ;
Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438;
Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 ;
Woollahra Municipal Council v Ferella (2005) 141 LGERA 166;
Young v Jackman [1986] 7 NSWLR 97

DATES OF HEARING: 18/9/2007

EX TEMPORE JUDGMENT DATE: 18 September 2007

LEGAL REPRESENTATIVES:
APPLICANT
Dr S Berveling
SOLICITORS
Home Wilkinson Lowry
RESPONDENT
Mr K Jacobs (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

18 September 2007

40013 of 2006

HURSTVILLE CITY COUNCIL
Applicant

KEVIN ROY JACOBS
Respondent
JUDGMENT

1 This is a notice of motion by the respondent to these proceedings seeking various orders of the Court. The notice of motion was filed on 16 August 2006 and, insofar as relevant, seeks orders that the Court: - (i) dispense with the need for technical compliance with the requirements of its Rules, (ii) exercise its inherent powers to control and supervise proceedings and to prevent injustice by (iii) dismissing certain consent orders entered into between the parties on 21 April 2006, such orders being sought on various grounds, which I summarise as follows, as set out in the notice of motion:

(a) The respondent was not in a fit state of mind or health on or leading up to 21 April 2006 to agree to the orders entered into. (b) At the time of entering into the consent orders the respondent was unrepresented. (c) The respondent did not fully understand the sanctions for not complying with the consent orders for various reasons. (d) The original order under s 124 of the Local Government Act 1993 served by the Council did not address the real issue of unsightliness but submitted that it dealt with matters of public health. Accordingly the Council was said to have failed in its duty to assist the Court to further the overriding purpose of the Land and Environment Court Rules, namely, to facilitate the just, quick and cheap resolution of…

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: [2007] NSWLEC 630
Decision Date: 18 September 2007

CaseChat Overview and Summary

Hurstville City Council brought proceedings against Kevin Roy Jacobs seeking to enforce certain consent orders. Jacobs sought to set aside those orders on various grounds, including unfitness of mind, lack of legal representation, misunderstanding of the consequences, and procedural errors. The Council argued that the motion should be dismissed as the orders had been perfected and there was no basis to set them aside. The Court considered the arguments and found that the consent orders had been properly made with Jacobs' understanding and agreement. The Court held that there was no inherent jurisdiction to set aside perfected orders and dismissed the motion. The Court ordered that Jacobs pay the Council's costs of the motion.

Orders