Kennedy v Council of the City of Sydney

[2010] NSWSC 1402

CITATION:	Kennedy & Ors v Council of the City of Sydney [2010] NSWSC 1402
HEARING DATE(S):	2 December 2010
JUDGMENT DATE :	3 December 2010
JUDGMENT OF:	Ball J
DECISION:	Proceedings dismissed with costs.
CATCHWORDS:	PROCEDURE – civil – summary disposal - dismissal – whether reasonable cause of action
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Imperial Acts Application Act 1969 (NSW) Landlord and Tenant Act 1899 (NSW) Residential Tenancies Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Separate question
CASES CITED:	Bin Tahal v Comcare [1999] FCA 520 Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601 MacIntosh v Lobel (1993) 30 NSWLR 441
PARTIES:	Else Kennedy (First Plaintiff) Jack Webb (Second Plaintiff) Ashwyn Falkingham (Third Plaintiff) Alain Ashman (Fourth Plaintiff) Carven Lee (Fifth Plaintiff) Beth Malone (Sixth Plaintiff) Council of the City of Sydney (Defendant)
FILE NUMBER(S):	SC 2010/382472
COUNSEL:	Ms D Hawkins (First, Third to Sixth Plaintiffs) Mr William Beattie (Second Plaintiff) Mr J K Kirk (Defendant) Mr J King (Defendant)
SOLICITORS:	In Person (First, Third to Sixth Plaintiffs) University of Technology Sydney Students' Association (Second Plaintiff) City of Sydney Council (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

3 DECEMBER 2010

2010/382472 ELSE KENNEDY & ORS v COUNCIL OF THE CITY OF SYDNEY

JUDGMENT

1 This is an application by the defendant Council that proceedings commenced by the plaintiffs be dismissed summarily under UCPR r 13.4 on the basis that they disclose no reasonable cause of action. The application originally came before me on 1 December 2010. At that time, I directed that the motion by which the application was brought be made returnable before me at 2.00 pm on 2 December 2010. That time was chosen because I was informed that Ms Hawkins, who represented the plaintiffs on a pro bono basis, was available to appear at that time.

2 When the matter came before me on 2 December 2010, Ms Hawkins indicated that she appeared for the first plaintiff (Else Kennedy), and the third to sixth plaintiffs (Ashwyn Falkingham, Alain Ashman, Carven Lee, and Beth Malone). Mr Beattie appeared for the second plaintiff (Jack Webb). Normally, all plaintiffs must act through the same solicitor and counsel: Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601. Nonetheless, I permitted both Ms Hawkins and Mr Beattie to make submissions to me.

3 Before dealing with the Council’s application, I should say something about the background to the proceedings.

4 The Council is the owner of premises at 90 Regent Street, Redfern. The building was previously used as medical consulting rooms, but has, until very recently, been vacant. There is currently a proposal by the Council to redevelop it as accommodation for homeless people.

5 On 12 November 2010, the Council became aware that the premises may be occupied. A Council officer attended the premises on 15 November 2010 and found that there were a number of occupants. They were told that they did not have permission to be there and were asked to vacate the premises on 16 November 2010.

6 On 17 November 2010, the plaintiffs commenced these proceedings by way of summons. The summons sought the following orders:

“1. A declaration that the plaintiff’s [sic] occupation of the land and premises (referred to herein as 90 Regent Street Redfern) is protected against forcible entry by section 18 of the Imperial Acts Application Act 1969 (NSW).
2. An order that the defendant by its employees and / or agents be restrained from taking possession of the premises and land except by order of this Honourable Court.”

The return date on the summons is 15 December 2010.

7 The plaintiffs have been requested on a number of occasions (both in writing and orally) to vacate the premises, but so far they have not done so. On 30 November 2010, my Associate received an email from Mr Beattie indicating that, in the light of the Council’s position, it may be necessary to approach the court for urgent injunctive relief. However, no application for an interlocutory injunction has been made by the plaintiffs.

8 The Council’s position is that, in the absence of a court order, it is free to evict the plaintiffs. However, in circumstances where proceedings are on foot, it is reluctant to do so. It is in that context that it has filed the motion that it has.

9 The position of the plaintiffs is that it is inappropriate to deal with the Council’s application in the duty judge’s list. The summons has a return date of 15 December 2010. There is no urgency in the matter. Some of the plaintiffs have applied for legal aid. The issues raised by the summons, they say, require full investigation and the court should not make orders which will effectively dispose of the proceedings without that investigation.

10 In response, the Council says that the plaintiffs do not have an arguable case and that the matter is urgent for two reasons. First, it says that there are a number of safety concerns with the building particularly because, in a number of respects, the building does not comply with fire safety requirements. Those concerns are exacerbated by the fact that the building does not have an electricity supply and the likelihood is that the occupants are using improvised means for lighting the building and for cooking. Second, it says that it needs access to the building in connection with the proposal to redevelop it as a homeless persons shelter.

11 In my opinion, the Council is entitled to the relief it seeks. I have reached that conclusion for three broad reasons.

12 First, in my opinion, there is no merit in the plaintiffs’ claim. Section 18 of the Imperial Acts Application Act 1969 provides:

“No person shall make any entry into any land except where such entry is given by law and, in such case, with no more force than is reasonably necessary.”

The section does not displace the “long-established rule” that an owner has a right to enter upon its land and to take possession from a trespasser: see MacIntosh v Lobel (1993) 30 NSWLR 441. All that s 18 requires in such a case is that the landlord use no more force than is reasonably necessary. The plaintiffs in this case are clearly trespassers. They do not seek to assert otherwise. There are statutory exceptions to a landlord’s right to take possession without a court order: see Landlord and Tenant Act 1899, s 2AA; Residential Tenancies Act 1987, s 72. However, those exceptions depend on the existence of a tenancy or a residential tenancy agreement, neither of which exists in this case.

13 Section 56 of the Civil Procedure Act 2005 relevantly provides:

“(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.”

Consistently with this provision, where, as here, the law is clear, it is appropriate for the court to dispose of the case at the first available opportunity.

14 Secondly, in my opinion, the context in which the application is made is important. In the normal course of events, it would be expected in a case such as this for the plaintiffs to seek urgent interlocutory relief. Indeed, one or more of them threatened to do so. Had the plaintiffs done so, they would have failed because they would have been unable to establish a serious question to be tried in relation to the final relief that they sought. In the absence of an interlocutory injunction, there is nothing to prevent the Council from exercising the rights that it has. Despite that, the Council chose to bring the matter before the court. In my opinion, it was perfectly proper for it to have done so. However, I do not think that it should be in a worse position because it elected to take that course of action. The urgency of the matter should be seen as stemming from a threat by the Council to exercise its rights to retake possession of the property and the need to determine whether it is entitled to do so. That urgency, in my opinion, justified an order under UCPR r 18.4 abridging time for service of the notice of motion and for dealing with the matter in the duty judge’s list. The reasons why a registered proprietor seeks possession of its property as against trespassers is of secondary importance in considering the question of urgency, although I should say that the reasons advanced by the Council in this case appear to me to be reasonable ones.

15 Thirdly, I accept that, on many occasions, it will be appropriate to adjourn proceedings to permit an unrepresented litigant to obtain legal advice, particularly where it appears on the face of the material before the court that the litigant may have an arguable case: see Bin Tahal v Comcare [1999] FCA 520. Here, however, the plaintiffs commenced proceedings on 17 November 2010. They took no steps to obtain legal aid before 1 December 2010. They have been able to obtain some legal advice from Ms Hawkins and Mr Beattie. They were represented at the hearing of the Council’s motion and, indeed, the time for that hearing was selected in order to accommodate Ms Hawkins. It is true that Ms Hawkins may not have had the time she would have liked to prepare for the application. However, I do not think that provides a basis for not dealing with the motion immediately.

16 The proceedings should be dismissed with costs.

**********