Notaras v Waverley Council & Anor

[2006] NSWLEC 747

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 with both Respondents’ arguments that this Notice of Motion is misconceived and should be dismissed.

5 There is no power conferred by the Land and Environment Court Act 1979 (the Court Act) enabling a judge of the Court to empanel a jury. Section 6 of the Court Act states that the Court is constituted by a single judge. Section 33(2) specifies that a single judge can hear matters in Class 4 proceedings. There is no provision for juries to be empanelled under the Land and Environment Court Rules 1996 (the Court Rules). The relevant section of the Supreme Court Act 1970 (s 85) dealing with juries is not adopted by this Court’s Rules. The Jury Act 1977 which regulates juries does not apply in this Court. Consequently, while the Applicant’s agent relied on IOL Petroleum Ltd v J H O’Neill & Ors (NSWSC, Young J, 15 August 1996, unreported) a decision dealing with an application that civil proceedings be tried by a jury, that decision can be of no assistance to the Applicant on this Notice of Motion.

6 The decision in Kable and consequently Forge is irrelevant to the operation of this Court. Kable’s case was dealing with the exercise of Federal jurisdiction not State jurisdiction. The Applicant is wrong to argue that Kable and Forge are binding authority that by virtue of the Australian Constitution there is only one single jurisdiction across the whole of Australia and that this therefore limits the ability of the NSW Parliament to circumscribe how the Land and Environment Court can operate under statute. Kable dealt with the issue of whether it is invalid for a person not a judge to be vested with Federal jurisdiction exercisable by a State court exercising Federal jurisdiction. It has no application to a State superior court constituted under State laws which are validly made by virtue of the NSW Constitution Statute 1855 and the Constitution Act 1902 (NSW), which enable the NSW Parliament to make laws for the peace, welfare and good government of the people of NSW.

7 The Applicant also relied on Pambula District Hospital v Herriman (1988) 14 NSWLR 387. Pambula dealt with the right to a jury trial in the context of the Supreme Court of NSW as provided for under the Supreme Court Rules 1970. That right and those particular rules have no application to the Land and Environment Court of NSW. Accordingly that case has no application to the matter before me.

8 Although this Notice of Motion is not an application to rely on amended pleadings to add a claim in nuisance or a claim based on tort, I should note that this Court’s jurisdiction is vested in it by virtue of the Court Act and other specified statutes. It can determine ancillary matters but does not have inherent jurisdiction, unlike the Supreme Court of NSW. It is debatable whether it could hear a claim in nuisance or tort, as has been held in Duncan v Moore (2000) 107 LGERA 430.

Costs

9 The Respondents have successfully argued this Notice of Motion which I have held is misconceived in any event. I have broad discretion to award costs under s 69 of the Court Act. I consider that the Applicant should pay the Respondents’ legal costs as they have been entirely successful in opposing the Notice of Motion.

Orders

10 The Court orders that:

1. The Applicant’s Notice of Motion dated 6 September 2006 is dismissed.

2. The Applicant is to pay the First and Second Respondents’ costs of the Motion.