McNeill v Avalon Surf Lifesaving Club

[2014] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McNeill v Avalon Surf Lifesaving Club [2014] NSWCA 167

Hearing dates:

12/05/2014

Decision date:

12 May 2014

Before:

Emmett JA

Decision:

1 Appeal dismissed.

2 Appellant pay the costs of the second respondent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - appeal - interlocutory application - summary dismissal for incompetence - non-compliance with the Uniform Civil Procedure Rules 2005 (NSW)

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 51.8, 51.9, 51.16

Cases Cited:

Nil

Category:

Interlocutory applications

Parties:

John McNeill (Appellant)
Avalon Beach Surf Life Saving Club (First Respondent)
Pittwater Council (Second Respondent)

Representation:

Counsel:
No appearance (Appellant)
M Carpenter (Second Respondent)
Solicitors:
King & Wood Mallesons (Second Respondent)

File Number(s):

2013/368149

 Decision under appeal 

Jurisdiction:

9106

Citation:

McNeill v Avalon Surf Life Saving Club (No 3); McNeill v Avalon Surf Life Saving Club (No 3) [2013] NSWLEC 192

Date of Decision:

2013-11-08 00:00:00

Before:

Pepper J

File Number(s):

2013/40373; 2013/40349

Judgment

1. EMMETT JA: On 1 May 2014, the second respondent, Pittwater Council (the Council), filed a notice of motion seeking an order that an appeal brought by the appellant, Mr John McNeill, from a decision of the Land and Environment Court be dismissed summarily. The first respondent to the appeal is the Avalon Beach Surf Life Saving Club (the Club), an incorporated body. When the notice of motion was called on for hearing, a member of the Club appeared, with the leave of the Court, and supported the application by the Council for summary dismissal. However, the Club itself has not moved for summary dismissal.

1. Mr McNeill did not appear despite having been called. However, I am satisfied that Mr McNeill was notified of the hearing of the Council's notice of motion. On 2 May 2014, a copy of the notice of motion and an affidavit in support were served at the address notified in the notice of intention to appeal that was filed by Mr McNeill. Further, an exchange of emails between representatives of the Council and Mr McNeill indicates that, prior to 4.48pm on 7 May 2014, Mr McNeill had received an email indicating that this motion was listed for hearing today. In the circumstances, I propose to proceed to deal with the notice of motion notwithstanding the failure of Mr McNeill to appear.

1. By summonses filed in the Land and Environment Court on 15 May 2013 and 24 May 2013, Mr McNeill commenced proceedings in Class 4 of that Court's jurisdiction. The summonses relate to the redevelopment and refurbishment of the Club's clubhouse and amendments made by the Council to the Plan of Management governing Avalon Beach. The Club was the first respondent in the proceedings and the Council was the second respondent. The two proceedings were consolidated by the Land and Environment Court on 30 August 2013 and were listed for hearing together, on the basis that evidence in one was to be evidence in the other.

1. Mr McNeill sought relief as follows:

(1)   To prevent the demolition of the clubhouse;

(2) To reverse the decision of the Council to amend the Plan of Management;

(3)   To cease all further construction works on the clubhouse; and

(4)   To have an inquiry into why a wall shown on a plan as part of the existing building was demolished.

On 8 November 2013, Pepper J ordered that the two summonses be dismissed with costs.

1. On three prior occasions, Mr McNeill had applied to the Land and Environment Court for interlocutory relief to stop the redevelopment of the clubhouse. On each occasion, the proceedings were dismissed on the basis that there was no serious question to be tried. In her reasons of 8 November 2013, Pepper J said that the issues raised in those applications for interlocutory relief were essentially the same as the issues raised for determination in the proceedings before her Honour. Pepper J described seven issues raised by Mr McNeill. Her Honour dealt with the first and fourth issues separately, the second and third issues together and the fifth to seventh issues together.

1. The first issue was that the redevelopment and refurbishment of the clubhouse is in breach of the approvals granted by the Council. Pepper J concluded that Mr McNeill had not identified any breach of the relevant legislation and that the first ground must fail.

1. The fourth issue was that the Plan of Management was not validly amended by the Council. In particular, Mr McNeill asserted that the changes to the Plan of Management were done under false information presented to Council when it voted on the matter. Pepper J concluded that there was no basis for finding that the amendment of the Plan of Management was based on false information.

1. The second and third issues concerned notification. First, it was said that the relevant consent was not properly notified insofar as the requisite signage was not displayed on site, and, secondly, it was said that the modification application was not notified as required under the relevant plan. Pepper J concluded that those grounds could not be established.

1. The fifth, sixth and seventh issues raised matters of merit, namely, that the new building does not look like a surf club and will be out place, that there is insufficient space for car parking to cater for the restaurant and café and that the Club should be heritage listed. Pepper J held that, since those matters are merit issues, there was no jurisdiction in the Land and Environment Court to entertain them in judicial review proceedings in Class 4 of the jurisdiction of the Court.

1. On 6 December 2013, Mr McNeill filed a notice of intention to appeal to this Court. While the notice of intention to appeal was filed on the last day, limited by r 51.8 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), it was not served in accordance with that rule, which provides that a notice of intention to appeal must be filed and served on each prospective respondent within 28 days after the material date, which in this case was 8 November 2013.

1. Under r 51.9 of the UCPR, an applicant who has filed and served a notice of intention to appeal must file and serve the relevant originating process on each necessary party within three months after the material date. While a notice of appeal was filed on 6 March 2014, no notice of appeal has yet been served on the Council. In any event, the notice of appeal filed on 6 March 2014 was outside the time limit prescribed by r 51.16(1)(c), which relevantly provides that, if a notice of intention to appeal has not been filed and served within the time allowed under r 51.9, a notice of appeal must be filed and served within 28 days after the material date.

1. In the notice of appeal that has been filed, but not served, the grounds stated are as follows:

The DA is breached and the change to the Avalon Beach 'POM' was done on false evidence.

1. The form of the notice of appeal is a pro forma and, as a matter of strict construction, does not make sense. Where the notice of appeal is required to specify the orders sought, the words "appeal allowed" have been inserted in handwriting. The balance of the form, dealing with the orders sought, remains as in the pro forma document. It is totally unclear what orders are sought, other than allowing the appeal. In particular, there is no indication as to what orders would be sought in lieu, in the event that the orders of the Land and Environment Court were set aside. It may be that an inference could be drawn that the orders sought on the appeal would be the orders sought in the original summonses before the Land and Environment Court. However, those summonses are not presently before this Court.

1. Against that background, the Council's notice of motion seeks orders that the appeal be dismissed summarily, on the basis that it is incompetent, since the notice of intention to appeal and the notice of appeal were not filed and served within the time required by the UCPR. Alternatively, the Council contends that the appeal should be dismissed summarily under r 13.4(1)(b), on the basis that the proceedings disclose no reasonable cause of action.

1. Had Mr McNeill made an application for an extension of time, there may have been some basis for the grant of an indulgence. Mr McNeill is conducting the proceedings in person, although he did not appear in Court either today or at the first call-over of the appeal. In the circumstances, there is no explanation for the failure to comply with the time limits fixed by the UCPR. Further, the notice of appeal does not disclose any basis upon which the appeal has any prospects of success.

1. Accordingly, I consider that it is appropriate to accede to the Council's application for summary dismissal of the appeal as against it. In the circumstances, there would be no utility in the appeal proceeding against the Club.

1. I order that the appeal be dismissed. I order the appellant to pay the costs of the second respondent, Pittwater Council.

Decision last updated: 28 May 2014