Khattar v Holroyd City Council - [2005] NSWLEC 411

Land and Environment Court

of New South Wales

CITATION:
Khattar v Holroyd City Council [2005] NSWLEC 411

PARTIES:
George Khattar (Appl)
Holroyd City Council (Resp)

FILE NUMBER(S):
11636 of 2004

CORAM:
McClellan CJ

KEY ISSUES:
Question of Law :- Whether the applicant has received a fair hearing

DATES OF HEARING: 28 June 2005

EX TEMPORE JUDGMENT DATE:
06/28/2005

LEGAL REPRESENTATIVES:
T S Hale SC (Appl)
Maclarens (Sols - Appl)
G McKee (Resp)
McKees Legal Solutions (Sols - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 28 JUNE 2005

11636/04 KHATTAR v HOLROYD CITY COUNCIL
JUDGMENT

1 HIS HONOUR: This matter comes before me this afternoon because the Commissioner has referred four questions identified as questions of law, to me for consideration pursuant to s 36(5) of the Land and Environment Court Act 1979.

2 I apprehend that the questions were raised because of submissions which have been put to the Commissioner during the course of the proceedings. However whether or not that be the case, my discussion with senior counsel for the applicant confirms that he does not now propose to make submissions to the effect of any of the propositions.

3 The questions framed in the document are as follows:

A. Is unsworn material provided orally by a non-expert during the course of a view to be given the same weight as if the same material had been given as sworn evidence during the court hearing?

B. If the answer to (1) is "yes", is any distinction to be drawn between such material where it relates to general matters of concern and such material where it contains assertions as to the existence of facts or the occurrence of events which facts or events, if accepted, are prejudicial to a party?

C. Is it a denial of procedural fairness to allow unsworn evidence to be taken during the course of a view from a person where:

i. there is no notice given of that evidence; and/or
ii. that person does not give evidence on oath?

4 Full argument has not taken place in relation to any of these questions. However discussion with counsel makes plain that the question which could arise in relation to the present proceedings is whether or not the applicant has received a fair hearing. That question arises in the context that the applicant seeks to extend the hours of operation of an existing hotel. Apparently, the application has been the subject of a number of objections from local people who complain that the existing operation of the hotel is interfering with their amenity. Apparently, although I have not seen them, their complaints…

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.

Keep reading for free

Create a free CaseChat account to read Khattar v Holroyd City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWLEC 411
Decision Date: 06/28/2005

CaseChat Overview and Summary

George Khattar, the applicant, appealed against the decision of the Commissioner of the Land and Environment Court, who rejected his application to extend the hours of operation of his hotel. The Holroyd City Council, the respondent, opposed the application on the basis that it would interfere with the amenity of the local residents. The case was heard before McClellan CJ in the Land and Environment Court of New South Wales. The court was required to determine whether the applicant had received a fair hearing in the proceedings. The main legal issue was whether unsworn material provided orally by a non-expert during the course of a site inspection should be given the same weight as if the same material had been given as sworn evidence during the court hearing. The court considered whether it was a denial of procedural fairness to allow unsworn evidence to be taken during the course of a site inspection from a person where there was no notice given of that evidence, and/or that person did not give evidence on oath.

The court held that section 38(2) of the Land and Environment Court Act 1979 did not displace an obligation for the court procedures to be fair. If in the circumstances of a particular case, fairness required that a particular witness come to court to be cross-examined, then the court would make appropriate arrangements for that to occur. However, this did not mean that in every case where such a request was made, fairness would only be provided if the person came to court and was cross-examined. The court found that the Commissioner was entitled to give appropriate weight to the evidence that was before him, and that it was for the parties to put before the Commissioner those submissions which they believed may persuade the Commissioner to give the weight which they sought to any component of the evidence. The court declined to answer the questions of law and referred the matter back to the Commissioner for resolution.

This case highlights the importance of ensuring that the proceedings of the Land and Environment Court are conducted with fairness and efficiency, while also adhering to the legislative framework that governs the court. The court's decision emphasizes the need for the Commissioner to exercise discretion in weighing the evidence and to consider the submissions of both parties in making a decision. Ultimately, the court's role is to ensure that the process is fair and that the dispute is resolved in a speedy and efficient manner.

Orders