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O'Connor v New South Wales

O'Connor v New South Wales

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Case Copied 19 May 2017 71 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: O’Connor v State of New South Wales & Anor [2017] NSWSC 598
Hearing dates: 9 February 2017
Decision date: 19 May 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The plaintiff is refused an extension of time under r 59.10(2) of the UCPR to bring the proceedings for judicial review.
(2) The plaintiff is refused leave to file a further amended summons and points of claim in the form attached to his written submissions dated 23 January 2017.
(3) The plaintiff is to serve on the first defendant a statement of claim on which he proposes to rely pleading his case in nuisance on or before 30 June 2017 in order for the first defendant to consider whether it opposes the filing of it.
(4) The first defendant is to respond to the plaintiff no later than 21 July 2017.
(5) The plaintiff is to pay the first defendant’s costs of the motion as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – judicial review – whether to extend time to commence proceedings for judicial review – summons filed 23 years after relevant decision made – extension of time refused
PRACTICE AND PROCEDURE – application for leave to amend pleadings – further amended summons and two different points of claim documents – pleadings with respect to public nuisance and negligence disclose no reasonable cause of action – whether plaintiff should be given leave to plead private nuisance
Legislation Cited: Civil Liability Act 2002 (NSW), ss 42, 44, 45
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64
Crown and Other Roads Act 1990 (NSW), s 34
Crown Proceedings Act 1998, s 5(1)
Government Information (Public Access) Act 2009 (NSW)
Limitation Act 1969 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), rr 6.3(b), 14.28(1), 59.3(1), 59.10(1), 59.10(2), 50.10(5) 59.3(4)
Cases Cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Bong Bong Town Centre v Illawarra Clay Target Society [2015] NSWSC 316
Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29
Buttrose v Attorney General [2015] NSWCA 221
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
Clarke v State of New South Wales (No 4) [2015] NSWSC 1054
Delaware Mansions v City of Westminster (2001) 1 AC 321
Dyason v Butterworth [2015] NSWCA 52
General Steel Industries v Commission for Railways (1964) 112 CLR 125; [1964] HCA 69
Hanna v Cth DPP [2016] NSWSC 325
Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection…

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.

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Details

Case: [2017] NSWSC 598
Decision Date: 19 May 2017

CaseChat Overview and Summary

The appellant, O'Connor, brought a claim for judicial review against the state of New South Wales. O'Connor sought to challenge a decision made 23 years prior by the state government, which he claimed had resulted in a public nuisance. The Supreme Court of New South Wales was tasked with determining whether the time limit for initiating judicial review proceedings could be extended, given the significant delay, and whether O'Connor's claim for public nuisance and negligence should proceed.

The court was required to decide whether to grant an extension of time for O'Connor to commence the judicial review, considering the substantial delay in filing the summons. Additionally, the court needed to assess whether O'Connor's pleadings, which included claims of public nuisance and negligence, disclosed a reasonable cause of action. The court also had to determine if O'Connor should be granted leave to amend his pleadings to include a claim for private nuisance.

The court found that the delay in filing the summons was unreasonable and thus refused the application for an extension of time. Furthermore, the court concluded that the pleadings with respect to public nuisance and negligence did not disclose a reasonable cause of action. While the court considered the possibility of private nuisance, it ultimately determined that there was no reasonable cause of action in that regard either. Consequently, the court denied leave to amend the pleadings to include a claim for private nuisance. The application for judicial review was dismissed.

Orders