Notaras v Waverley Council & Anor

Land and Environment Court

of New South Wales

CITATION:	Notaras v Waverley Council & Anor [2006] NSWLEC 747
PARTIES:	APPLICANT Irene Notaras FIRST RESPONDENT Waverley Council SECOND RESPONDENT Errol Wilfred Levitt
FILE NUMBER(S):	40331 of 2006
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- whether Court Act or Rules provide for jury to be empanelled to hear Class 4 application
LEGISLATION CITED:	Land and Environment Court Act 1979 Land and Environment Court Rules 1996 Supreme Court Act 1970 Supreme Court Rules 1970
CASES CITED:	Duncan v Moore (2000) 107 LGERA 430; Forge v Australian Securities and Investment Commission (2006) 80 ALJR 1606; IOL Petroleum Ltd v J H O’Neill & Ors, unreported, 15 August 1996; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Pambula District Hospital v Herriman (1988) 14 NSWLR 387
DATES OF HEARING:	20/09/2006
EX TEMPORE JUDGMENT DATE:	09/20/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr Gargan (as agent) FIRST RESPONDENT Mr G Newport SOLICITOR Staunton Beattie SECOND RESPONDENT Mr N Hemmings SOLICITOR Allens Arthur Robinson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 September 2006

40331 of 2006 Irene Notaras v Waverley Council and Errol Wilfred Levitt

EX TEMPORE JUDGMENT

1 Her Honour: These are Class 4 judicial review proceedings seeking a declaration that a development consent approved by the Council is invalid. This decision concerns a Notice of Motion put on by the Applicant seeking an order that a jury be empanelled to hear the matter. The Notice of Motion also refers to the claim being based on nuisance and tort.

2 There is not presently any claim based on nuisance and/or tort referred to in the pleadings filed to date in the proceedings. The claim to date is made on the basis that there were numerous errors by the Council when it granted development consent such as it failed to consider relevant matters and acted unreasonably.

3 This is an ex tempore decision as the matter has come before me as duty judge. It is therefore not possible to deal with every one of the Applicant’s arguments in detail but essentially the Applicant’s agent Mr Gargan argued that because of the principles developed in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and recently affirmed by the High Court in Forge v Australian Securities and Investment Commission (2006) 80 ALJR 1606, the Applicant is entitled to have a jury in this case as this is provided for by Chapter 3 of the Australian Constitution. The argument put forward was that there is only one Federal jurisdiction which applies throughout the whole of Australia and this means that State parliaments cannot legislate with respect to State courts in a way that infringes the principles in Kable. It is not open to the NSW Parliament to constitute the Land and Environment Court of NSW so that it cannot empanel a jury as this a breach of the Kable principles.

4 I agree…