Malifa v Georges River Council

[2019] NSWCA 139

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Malifa v Georges River Council [2019] NSWCA 139
Hearing dates:	31 May 2019
Decision date:	31 May 2019
Before:	McCallum JA at [1]; Emmett AJA at [19]
Decision:	(1) refuse leave to appeal; (2) order the applicant to pay the respondent’s costs.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – leave to appeal from consent orders – no reason to grant leave established
Legislation Cited:	Corporations Act 2001 (Cth) Protection of the Environment Operations Act 1997 (NSW), s 96 Land and Environment Court Act 1979 (NSW), s 58 Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2
Category:	Principal judgment
Parties:	Taeipo Malifa (applicant) Georges River Council (respondent)
Representation:	Counsel: Applicant (self-represented) M Seymour (respondent)   Solicitors: HWL Ebsworth (respondent)
File Number(s):	2019/00043432
Publication restriction:	None
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2018] NSWLEC 200 Date of Decision: 12 December 2018 Before: Moore J File Number(s): 2018/23816

Judgment

1. McCALLUM JA: Georges River Council brought proceedings in the Land and Environment Court to enforce prevention notices issued against the Congregational Christian Church in Samoa, Parish of Sydney Incorporated and Mr Taeipo Malifa under the Protection of the Environment Operations Act 1997 (NSW).

2. The notices were issued to prevent the emission of what was termed “offensive noise”, a term used not to indicate any moral judgment but rather to indicate that the level of noise offended against council requirements. The noise (the sound of singing and talking during worship) was said to be emitted from a property operated by the Church as a place of public worship in Lugarno, New South Wales.

3. Mr Malifa is a member of the Church, which is an incorporated entity. He was unrepresented in this Court and before the primary judge. He was evidently also allowed to appear on behalf of the Church before the primary judge.

4. The prevention notices were issued in 2017 under s 96(2) of the Act following noise complaints made by a number of neighbours to the Church property. The Council brought the proceedings to seek orders to enforce compliance with the notices. The matter was fixed for hearing on 12 December 2018 for two days.

5. On the first morning of the hearing, the proceedings were resolved by way of consent orders against the Church. The proceedings against Mr Malifa were dismissed, also by consent. The Council sought an order for costs against both the Church and Mr Malifa.

6. After hearing from the parties Moore J made a costs order against both defendants jointly and severally. His Honour also made the consent orders including an order that the proceedings against Mr Malifa be dismissed.

7. By summons filed 2 January 2019, Mr Malifa sought leave to appeal against “the whole of the decision”. The grounds of appeal are directed to the orders entered against the Church. Leaving aside its status as a party to the application for leave (which I will address shortly), leave is required because the orders made by the primary judge were made by consent, apart from the order as to costs, which also faces a leave requirement: see s 58(3) of the Land and Environment Court Act 1979 (NSW).

8. The burden of the argument in support of the proposed appeal was that the Council had presented revised orders on the morning of the hearing and that the defendants had only consented to those orders because they were unprepared and had been “coerced, by timing and circumstances”.

9. It is doubtful whether this Court would have authority to entertain an appeal which would require the Court to make a factual finding about coercion of such a kind. In any event there was no evidence to support that contention.

10. At the hearing of the application for leave this afternoon, Mr Malifa accepted that consent was given by him on behalf of the Church at the time the two consent orders against the Church were presented to the primary judge. He explained, however, that when he returned to the Church he realised that these were things that should not have been agreed to. He maintains the view that the orders made by the primary judge will have the effect of stopping members of the Church from worshipping and that the human right to make a response to the Council’s action has been taken away from the Church. Of course, if that is the case, it is as a result of the Church’s consent to the two orders proposed.

11. After receiving the Council’s response to the summons, which noted the fact that the Church was not a party to the appeal, Mr Malifa obtained leave to join the Church as second applicant and in due course filed an amended summons purporting to do so. The Council takes issue with the manner in which the Church is named in the amended summons, particularly the omission of the word “Limited” to indicate that the new applicant was the incorporated entity, but Mr Malifa has this afternoon confirmed that the application was intended to be brought by the incorporated entity that was the first defendant in the proceedings before the primary judge.

12. However, as noted by the Council, in that event Mr Malifa has failed to comply with the provisions of the Uniform Civil Procedure Rules 2005 (NSW) concerning the commencement of proceedings by a company.

13. The Church is a corporation other than a company within the meaning of the Corporations Act 2001 (Cth) and so is allowed under r 7.1(4) to commence proceedings in this Court by a “duly authorised officer”. However, in that event the authorised officer is required to file an affidavit in accordance with r 7.2(3). Mr Malifa filed an affidavit with the amended summons but it does not comply with that rule. In particular, importantly in the present context, the affidavit must state that the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings. Mr Malifa’s affidavit does not include that statement, nor does it reveal the office he holds in the company. Indeed, in the primary proceedings, Mr Malifa indicated that he understood the Church was not incorporated.

14. In the circumstances it is doubtful whether the proceeding by the Church has been validly commenced. Even if the Church had been properly joined to the proceedings, no issue warranting a grant of leave has been identified. As already noted there is no evidence to support the contention that the Church was coerced to consent to the orders, did not fully understand them or did not have time to consider them.

15. During the hearing the primary judge directed Mr Malifa’s attention to the proposed orders, explained that they were only to be made against the Church and not against Mr Malifa personally and sought Mr Malifa’s confirmation that he consented to those orders on the Church’s behalf.

16. Further, before finally making the orders, his Honour offered Mr Malifa a short adjournment to confer with the members of his parish present at the hearing. Mr Malifa did not seek that opportunity. Nothing in the material before us establishes any reason to grant leave to appeal from the consent orders.

17. So far as I have understood the argument there is no application to have leave to appeal against the costs order and in any event no argument has been directed in respect of that order.

18. For those reasons I propose that leave to appeal be refused and that the applicant be ordered to pay the respondent’s costs.

19. EMMETT JA: I agree that nothing in the material before us indicates that an appeal from orders 1 and 2 made by the primary judge would have any prospect of success and, as the presiding judge says, there is no argument advanced in relation to the order for costs made against the second respondent to the proceedings below. I agree with the orders proposed by McCallum JA.

20. McCALLUM JA: The orders accordingly are as I have proposed.

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Decision last updated: 13 June 2019