Kelly v Samiri

[1989] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:	Kelly v Samiri & Anor [1989] NSWLEC 222
PARTIES:	APPLICANT Kelly RESPONDENT Samiri & Anor
FILE NUMBER(S):	40130 of 1989
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act Encroachment of Buildings Act 1972
CASES CITED:	Whitehouse v. Remme (1988) 64 LGRA 375; Bathurst City Council v. Saban (1985) 2 NSWLR 704; Bryant's Manly Vale Pty. Ltd. v. Francis (1986) 4 NSWLR 635 ; The Anson Bay Company (Australia) Pty. Ltd. v. Bob Blakemore Pty. Ltd. (Court of Appeal - unreported 18th April, 1989).
DATES OF HEARING:
DATE OF JUDGMENT:	08/11/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: By its Notice of Motion filed on 4th August, 1989 the 1st Respondent seeks an order that class 4 proceedings pending in this Court and listed for hearing next Friday be struck out or stayed on the grounds of abuse of process.

The class 4 proceedings were commenced on 19th May, 1989 claiming prohibitory and mandatory injunctions against the 1st Respondent in respect of building works carried out on the Applicant's land situate at No. 4 Tobruk Avenue, Balmain. The 1st Respondent is the owner of the adjoining premises No. 6 Tobruk Avenue and it appears has carried out building works on his property which have involved encroachments upon the Applicant's property.

The proceedings have been mentioned before the Registrar on a number of occasions and on 28th July, 1989 they were listed for hearing on 18th August, 1989.

The 1st Respondent's Notice of Motion also claimed by way of alternative relief an order vacating this hearing date. No justification for this relief has been made out and it is refused.

The basis for the 1st Respondent's application to stay the pending proceedings is that the same relief has been sought in separate proceedings commenced by the Applicant in the Supreme Court on the same day that he commenced the proceedings in this Court.

In support of the application for a stay Counsel for the 1st Respondent referred to a number of cases which have established or recognised the following principle stated in Halsbury's Law of England (4th ed.) Volume 37 paragraph 446:-

"Prima facie it is vexatious and oppressive for the plaintiff to sue concurrently in two English Courts or tribunals, and the Court will stay the second proceedings. A defendant will not be called upon to meet, in substance and in reality, the same claim or charge he has already answered in an earlier action. If there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those Courts, and the Court will if necessary stay one of the actions. The same principles apply to proceedings other than actions."

Disadvantage to the 1st Respondent of the duplication of the proceedings had been raised at an early stage following the commencement of the proceedings in correspondence passing between the 1st Respondent's Solicitor and the Applicant's Solicitors the latter stating their client's position as follows in their letter of 25th May, 1989:-

"In any event, we do not regard the proceedings in the Land and Environment Court as being the same as those in the Supreme Court, Equity Division. The Supreme Court proceedings are based on trespass, whereas the Land and Environment Court proceedings are based on the undertaking of illegal building work by your client and your client's failure to comply with the terms of the Council's building approval. Both actions cannot be taken in the same court, and the separate proceedings are therefore necessary.

In view of the undertaking given by your client in the Supreme Court, Equity Division proceedings, we shall not be seeking a duplication of that order tomorrow, but shall be seeking to settle a timetable for the Land and Environment Court proceedings."

I only mention this correspondence to show that the 1st Respondent's application for a stay of the proceedings has been made very late in the day and could, and should, have been made at an earlier stage.

The Applicant in resisting the application for a stay of proceedings has pointed out that the need for separate proceedings comes about, not as a matter of his choice, but because each set of proceedings is based upon a separate cause of action and that neither the Supreme Court, nor this Court has jurisdiction to entertain the separate causes of action. Thus it is claimed that just as this Court does not have jurisdiction to entertain the cause of action based upon the law of trespass so the Supreme Court does not have jurisdiction to entertain the cause of action to enforce an 'environmental law' (in this case Part XI of the Local Government Act 1919) because of the exclusive jurisdiction of this Court - vide s.71 of the Land and Environment Court Act 1979. Neither of these propositions can be regarded as absolutely correct as each Court may possess pendent jurisdiction to entertain actions not otherwise within their respective jurisdictions - see Whitehouse v. Remme (1988) 64 LGRA 375 concerning the penden

t jurisdiction of this Court and Bathurst City Council v. Saban (1985) 2 NSWLR 704 and Bryant's Manly Vale Pty. Ltd. v. Francis (1986) 4 NSWLR 635 concerning the pendent jurisdiction of the Supreme Court.

In relation to the Supreme Court proceedings there are 3 further relevant matters to note -

(i) Notwithstanding the Applicant's request that they be placed in the 'Short Matter List' the proceedings were on 21st July, 1989 directed to go into the 'General List' for which the approximate waiting time is 2 years;

(ii) Although the specific injunctive relief claimed is identical to the relief claimed in the proceedings pending in this Court, 'further or other orders' have been sought in the Supreme Court proceedings which could include a claim for damages; and

(iii) The 1st Respondent proposes to seek, by way of cross-application, relief under the Encroachment of Buildings Act 1922, being a jurisdiction exercisable only by the Supreme Court.

I should perhaps mention that in the proceedings pending in this Court the Leichhardt Municipal Council is also a party (2nd Respondent). Although no relief is claimed against it, it is not clear at this stage whether it will seek any relief in the proceedings, which of course involve the enforcement of public law.

In my opinion there are features in the present case which displace the prima facie presumption referred to in Halsbury, and lead me to conclude that the separate proceedings are not oppressive or an abuse of process. Firstly there is the apparent problem of fragmented jurisdictions (I say 'apparent' because of the possible solution provided by the doctrine of pendent jurisdiction). Secondly there is the fact that the proceedings in this Court have reached the advanced stage where they are listed to be heard next week whereas a hearing in the Supreme Court is, at least at this stage, possibly 2 years distant. Thirdly it is likely, if not certain, that if the Applicant is successful in the proceedings in this Court in obtaining the injunctive relief it seeks it will not continue with the Supreme Court proceedings. In these circumstances I do not consider the 1st Respondent to be prejudiced by the proceedings in this Court being heard and determined.

The only possible prejudice to the 1st Respondent is the absence of jurisdiction in this Court to entertain the anticipated application under the Encroachment of Buildings Act 1922. Of this, I must say at once, that it is not readily apparent how relief under that Act would in any event operate to relieve a breach of an environmental law. However assuming that such relief may have some relevance to the exercise of this Court's discretion to grant or withhold injunctive relief it is probably a matter that the Court can consider under its wide discretion cf. The Anson Bay Company (Australia) Pty. Ltd. v. Bob Blakemore Pty. Ltd. (Court of Appeal - unreported 18th April, 1989).

Even if this not be the case I do not believe that any resultant possible prejudice to the 1st Respondent outweighs the prejudice likely to be experienced by the Applicant in being substantially delayed in prosecuting its causes of action. The Applicant has deposed that he has plans to build extensions to his cottage and that unless the encroachments are removed he will be unable to build those extensions.

For all of the foregoing reasons I order the Motion be dismissed with costs.