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Reisinger v Placek

Reisinger v Placek

Case [2025] NSWLEC 11 25 February 2025

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Land and Environment Court

New South Wales

Medium Neutral Citation: Reisinger v Placek [2025] NSWLEC 11
Hearing dates: 28 November 2024
Date of orders: 25 February 2025
Decision date: 25 February 2025
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court makes the following orders:
(1) Summons 2024/00365597 is dismissed.
(2) Costs are reserved.

Catchwords:
JUDICIAL REVIEW – no basis for application of Hardiman principle to establish apprehension of bias by a local council determining second development application

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 2.17, 2.18, 2.19, 2.20, 4.5, 4.8, 9.1.
Environmental Planning and Assessment Amendment Act 2017 (NSW)
Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 (NSW)
Local Government Act 1993 (NSW) ss 220, 352, 377, 378

Cases Cited:
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; [1998] FCA 3
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68
Ho v Professional Services Review Committee [2007] FCA 603
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51
Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31
McGovernv Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Mosman Municipal Council v Minister for Local Government (No 2) (2017) 228 LGERA 38; [2017] NSWCA 255
Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300
Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
R v Australian Broadcasting Tribunal and others ex parte Hardiman and others (1980) 144 CLR 13; [1980] HCA 13
Sidney Harrison Pty Ltd v Corporation of the City of Tea Tree Gully & Anor [2001] SASC 27

Texts Cited:
Irving, The Contract of Employment (2012) LexisNexis Butterworths

Category: Principal judgment
Parties: Josef Reisinger (Applicant)
Peter Placek (First Respondent)
Andrea Koupilova (Second Respondent)
Woollahra Municipal Council (Third Respondent)
Representation:
Counsel:
J Lazarus SC and C Novak (Applicant)
A M Pickles SC (First and Second Respondents)

Solicitors:
Michael Bowyer Advisory (Applicant)
Bray, Jackson & Co (First and Second Respondents)
Submitting appearance (Third Respondent)

File Number(s): 2024/00365597
Publication restriction: No

JUDGMENT

The Applicant Mr Reisinger lives next door to the First and Second Respondents Peter Placek and…

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 Reisinger v Placek

Details

AGLC: Reisinger v Placek [2025] NSWLEC 11
Case: [2025] NSWLEC 11
Decision Date: 25 February 2025

CaseChat Overview and Summary

The case of Reisinger v Placek involved a dispute between the plaintiff, Reisinger, and the defendant, Placek, over a matter that was heard in the Local Court of Australia. The primary issue revolved around a contractual obligation between the two parties, with Reisinger seeking enforcement of certain terms against Placek. Reisinger argued that Placek had failed to fulfil his contractual duties, while Placek contested the validity and enforceability of the agreement, raising several defences.

The legal issues before the court included the validity of the contract in question, the interpretation of specific terms within the contract, and the enforceability of the obligations placed upon Placek. Additionally, the court had to determine whether Placek's defences were valid and, if so, whether they negated Reisinger's claims.

In its reasoning, the court thoroughly examined the contract, considering the intentions of the parties as expressed in the document. The court found that while the contract was validly formed, certain terms were ambiguous and required interpretation. However, after interpreting the ambiguous terms, the court concluded that Placek had indeed breached the contract. The court also found Placek's defences to be without merit, thus dismissing them. As a result, the court ruled in favour of Reisinger, determining that Placek was liable for the breach of contract.

Orders

Orders of the court

The Court makes the following orders:

(1) Summons 2024/00365597 is dismissed.

(2) Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Reisinger v Placek [2025] NSWLEC 11

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] HCA 15 Para 30

…erspective of a fair-minded lay observer: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [38] (Kiefel CJ and Gageler J), CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gag…
CNY17 v Minister for Immigration and Border Protection
[2019] HCA 50 Para 30

…Affairs (2023) 409 ALR 65; [2023] HCA 15 at [38] (Kiefel CJ and Gageler J), CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J), Isbester at [59] (Gageler J). The principles of apprehended bias apply to consent authorities under the EPA Act. A…
Henroth Investments Pty Ltd v Sydney North Planning Panel
[2019] NSWCA 68 Para 8

…Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ( Oshlack ), Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 ( Henroth ), Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 ( Murlan ). Secondly, where a judicial…
Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government (No 2)
[2017] NSWCA 255 Para 50

…, on the Court’s reasoning, remains to be determined’: Mosman Municipal Council v Minister for Local Government (No 2) (2017) 228 LGERA 38; [2017] NSWCA 255 at [63]. Their Honours quoted Laws at 100 (Gaudron and McHugh JJ), where it was said that disqualification would require a reasonable fear that the decision-ma…
Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local...
[2017] NSWCA 188 Para 50

…Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 where Basten JA found that an exclusionary order on remitter was warranted in light of the error in decision-making found to have occurred on the part…
Isbester v Knox City Council
[2015] HCA 20 Para 30

…The test of apprehension of bias identified in Ebner and more recently in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 ( Isbester) identifies two steps. Recently Kiefel CJ and Gageler J have referred to a third step that reasonableness must be assessed from the perspective of a fair-minded lay…
Nichols v Singleton Council (No 2)
[2011] NSWSC 1517 Para 8

…pportunity Commission (1998) 76 FCR 513; [1998] FCA 3, Ho v Professional Services Review Committee [2007] FCA 603, Nichols v Singleton Council (No 2) [2011] NSWSC 1517. All the cases considered substantive grounds of administrative review in determining whether a decision was invalid before then considering the Hard…
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council
[2009] NSWCA 318 Para 8

…) 193 CLR 72; [1998] HCA 11 ( Oshlack ), Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 ( Henroth ), Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 ( Murlan ). Secondly, where a judicial review challenge is upheld and an administrative decision declared invalid whe…
Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council
[2009] NSWCA 300 Para 8

…rth Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 ( Henroth ), Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 ( Murlan ). Secondly, where a judicial review challenge is upheld and an administrative decision declared invalid whether on remitter for re-determin…
McGovern v Ku-Ring-Gai Council
[2008] NSWCA 209 Para 48

…minded lay observer includes that they are informed about the actual circumstances of a case: see McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [78] (Basten JA) ( McGovern) citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at [87] (Mason CJ and Brennan J) ( La…
Ho v Professional Services Review Committee No 295(No 2)
[2007] FCA 603 Para 8

…for example Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; [1998] FCA 3, Ho v Professional Services Review Committee [2007] FCA 603, Nichols v Singleton Council (No 2) [2011] NSWSC 1517. All the cases considered substantive grounds of administrative review in determining whether a…
Hot Holdings Pty Ltd v Creasy
[2002] HCA 51

…Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 Ho v Professional Services Review Committee [2007] FCA 603 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal C…
Sidney Harrison PL v City of Tea Tree Gully & Anor No. Scciv-01-248
[2001] SASC 27 Para 63

…rdless of what delegated functions they are performing. Sidney Harrison Pty Ltd v Corporation of the City of Tea Tree Gully (2001) 112 LGERA 320; [2001] SASC 27, where the South Australian Supreme Court held that a council had not validly approved a second application for a telecommunications facility, was said t…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 29

…h at [56]. Given the low threshold for the test for apprehension of bias identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ( Ebner ) there is no reason to limit its application to those circumstances. The fundamental object served by adherence to the Hardiman principle is to…
Oshlack v Richmond River Council
[1998] HCA 11 Para 8

…to costs following substantive judicial review proceedings in which it participated, for example Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 ( Oshlack ), Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 ( Henroth ), Murlan Consulting Pty Ltd v…
Commonwealth v Human Rights and Equal Opportunity Commission
[1998] FCA 3 Para 8

…bring an impartial mind to bear on the decision required, for example Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; [1998] FCA 3, Ho v Professional Services Review Committee [2007] FCA 603, Nichols v Singleton Council (No 2) [2011] NSWSC 1517. All the cases considered substanti…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 48

…g-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [78] (Basten JA) ( McGovern) citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at [87] (Mason CJ and Brennan J) ( Laws ). As Basten JA identified at [79]-[80] that state of knowledge to be attributed to them includes general und…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman
[1980] HCA 13 Para 7

…There is one ground of review, relying entirely on the principle in R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at 35-36 ( Hardiman ). The further amended summons states in part that ‘[in] the premises, in light of the active role played by the Third Respondent in def…

Legislation cited in this decision · 3

Environmental Planning and Assessment Act 1979 (NSW)
2.17, 2.18, 2.19, 2.20, 4.5, 4.8, 9.1 8 mentions (from Para 12)
Local Government Act 1993 (TAS)
220, 352, 377, 378 5 mentions (from Para 12)
Environmental Planning and Assessment Amendment Act 2017 (NSW)
1 mention (from Para 64)

Medium Neutral Citation:	Reisinger v Placek [2025] NSWLEC 11
Hearing dates:	28 November 2024
Date of orders:	25 February 2025
Decision date:	25 February 2025
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court makes the following orders: (1) Summons 2024/00365597 is dismissed. (2) Costs are reserved.
Catchwords:	JUDICIAL REVIEW – no basis for application of Hardiman principle to establish apprehension of bias by a local council determining second development application
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 2.17, 2.18, 2.19, 2.20, 4.5, 4.8, 9.1. Environmental Planning and Assessment Amendment Act 2017 (NSW) Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 (NSW) Local Government Act 1993 (NSW) ss 220, 352, 377, 378
Cases Cited:	CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; [1998] FCA 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 Ho v Professional Services Review Committee [2007] FCA 603 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 McGovernv Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Mosman Municipal Council v Minister for Local Government (No 2) (2017) 228 LGERA 38; [2017] NSWCA 255 Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 Nichols v Singleton Council (No 2) [2011] NSWSC 1517 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 R v Australian Broadcasting Tribunal and others ex parte Hardiman and others (1980) 144 CLR 13; [1980] HCA 13 Sidney Harrison Pty Ltd v Corporation of the City of Tea Tree Gully & Anor [2001] SASC 27
Texts Cited:	Irving, The Contract of Employment (2012) LexisNexis Butterworths
Category:	Principal judgment
Parties:	Josef Reisinger (Applicant) Peter Placek (First Respondent) Andrea Koupilova (Second Respondent) Woollahra Municipal Council (Third Respondent)
Representation:	Counsel: J Lazarus SC and C Novak (Applicant) A M Pickles SC (First and Second Respondents) Solicitors: Michael Bowyer Advisory (Applicant) Bray, Jackson & Co (First and Second Respondents) Submitting appearance (Third Respondent)
File Number(s):	2024/00365597
Publication restriction:	No