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Maule v Liporoni

Maule v Liporoni

Case [2001] NSWLEC 141 4 July 2001

Jurisdiction

Privative Clause

Jurisdictional Fact

Statutory Interpretation

Unconscionable Conduct

Administrative Law

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Maule v Liporoni & Anor [2001] NSWLEC 141

PARTIES:
APPLICANT:
Susan Jane Maule
FIRST RESPONDENT:
Marco Liporoni
SECOND RESPONDENT:
Gosford City Council

FILE NUMBER(S): 40018 of 2001

CORAM: Talbot J

KEY ISSUES: Practice & Procedure :- Notice of Motion to strike out appellant's claim
Privative clause:- discussion in respect of application of the Hickman principle
Jurisdictional fact:- whether the Hickman principle applies

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5A, s 77(1), s 77(3)(d1), s 101, s 123
Land and Environment Court Act 1979 s 16(1A)
Land and Environment Court Rules 1996 pt 6 r 1
Supreme Court Rules 1970 pt 13 r 5

CASES CITED: Anisminic Ltd v Foreign Compensation Commission & Anor (1969) 2 AC 147;
Calvin v Carr & Ors (1979) 1 NSWLR 1; (1980) AC 574;
Coles Supermarkets Australia Pty Ltd & K-Mart Australia Ltd v Minister for Urban Affairs and Planning & Wagga Wagga City Council (1996) 90 LGERA 341;
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417; Ex parte Toohey; Re Butler (1934) 34 SR (NSW) 277;
Corporation of the City of Enfield v Development Assessment Commission & Anor (1999) 199 CLR 135;
Craig v South Australia (1995) 184 CLR 163;
Darling Casino Limited v New South Wales Casino Control Authority & Ors 191 CLR 602;
Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168;
Donnelly v Delta Gold Ltd & Ors [2001] NSWLEC 55;
General Steel Industries Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125;
Helman v Byron Shire Council and Anor (1995) 87 LGERA 349;
Londish v Knox Grammer School & Ors (1997) 97 LGERA 1;
Manahan v Ballcock (1951) 84 CLR;
P W Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417;
Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch & Anor (1991) 173 CLR 132;
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598;
R v Murray & Ors; Ex parte Proctor & Ors (1948) 77 CLR 387;
Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66;
The Queen v Coldham & Ors; Ex parte The Australian Workers’ Union (1982) 153 CLR 415;
Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55

DATES OF HEARING: 26/06/2001

DATE OF JUDGMENT:
07/04/2001

LEGAL REPRESENTATIVES:
APPLICANT:
Mr C J Stevens QC with Mr J Dupree (Barrister)
SOLICITORS
L C Muriniti & Associates
FIRST RESPONDENT:
Mr C Harris (Barrister)
SOLICITORS
Tesoriero Henderson Cotter
SECOND RESPONDENT:
Mr M C Fraser (Barrister)
SOLICITORS
P J Donnellan & Co

JUDGMENT:

IN THE LAND AND Matter No. 40018 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 4 July 2001

Susan Jane Maule

Marco Liporoni

Gosford City Council
Second…

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.

Continue reading Maule v Liporoni

Details

AGLC: Maule v Liporoni [2001] NSWLEC 141
Case: [2001] NSWLEC 141
Decision Date: 07/04/2001

CaseChat Overview and Summary

In the case of Maule v Liporoni, the applicant, Susan Jane Maule, commenced class 4 proceedings against Marco Liporoni and Gosford City Council, seeking declarations and orders concerning the validity of a development consent granted by Gosford City Council to Liporoni for land located at Lot 22 in DP No 805703, 99 Woy Woy Bay Road, Woy Woy Bay. The applicant alleged that the development consent was obtained in breach of the Environmental Planning and Assessment Act 1979 (EP&A Act) and sought relief based on several grounds, including the lack of consent from the owner of the land, non-compliance with the EP&A Act, failure to consider merit planning issues, and manifest jurisdictional error. The first respondent, Liporoni, moved to dismiss the proceedings under part 13 r 5(1)(a) of the Supreme Court Rules 1970, arguing that no reasonable cause of action was disclosed. The court considered the effect of section 101 of the EP&A Act, which states that the validity of the consent cannot be questioned in any legal proceedings. The court applied the Hickman principle, which provides that privative clauses do not exclude review on the ground of jurisdictional error or exceeding the jurisdiction of the decision-maker. The court found that while the applicant's case might be weak, it was not entirely untenable and admitted of argument. Consequently, the motion to dismiss the proceedings was dismissed. The question of costs on the notice of motion was reserved.

Orders