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Ross v Lane Cove Council

Ross v Lane Cove Council

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Case Copied 24 November 2017 34 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ross v Lane Cove Council [2017] NSWCA 299
Hearing dates: 29 September 2017, written submissions on 6 October 2017 and 18 October 2017
Decision date: 24 November 2017
Before: Macfarlan JA at [1];
White JA at [13]
Decision:
Summons for leave to appeal dismissed with costs.

Catchwords: APPEAL – application for leave to appeal against costs orders made by Land and Environment Court in Class 4 proceedings – no sufficiently arguable case to warrant a grant of leave demonstrated by applicant
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 96, 149D, 149F
Land and Environment Court Act 1979 (NSW)
Environmental Planning and Assessment Act 1979 (NSW),
Land and Environment Court Rules 2007 (NSW), r 3.7
State Environmental Planning Policy
(Exempt and Complying Development
Codes) 2008
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Chami v Lane Cove Council [2015] NSWLEC 1003
Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206
Chami v Lane Cove Council (No 3) [2015] NSWLEC 144
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lane Cove Council v Ross [2012] NSWLEC 153
Lane Cove Council v Ross (No 2) [2012] NSWLEC 160
Lane Cove Council v Ross (No 3) [2012] NSWLEC 171
Lane Cove Council v Ross (No 4) [2012] NSWLEC 191
Lane Cove Council v Ross (No 5) [2013] NSWLEC 17
Lane Cove Council v Ross (No 6) [2013] NSWLEC 74
Lane Cove Council v Ross (No 8) [2013] NSWLEC 77
Lane Cove Council v Ross (No 9) [2013] NSWLEC 78
Lane Cove Council v Ross (No 10) [2013] NSWLEC 79
Lane Cove Council v Ross (No 11) [2013] NSWLEC 81
Lane Cove Council v Ross (No 12) [2013] NSWLEC 82
Lane Cove Council v Ross (No 13) [2013] NSWLEC 80
Lane Cove Council v Ross (No 14) [2013] NSWLEC 87
Lane Cove Council v Ross (No 16) [2017] NSWLEC 26
Ross v Lane Cove Council [2012] NSWLEC 1364
Ross v Lane Cove Council [2013] NSWLEC 109
Ross v Lane Cove Council [2014] NSWCA 50
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 181 ALR 307; [2001] HCA 49
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category: Procedural and other rulings
Parties: Raymond Ross (Applicant)
Lane Cove Council (Respondent)
Representation:
Counsel:
Self-represented Applicant
S A Duggan SC / N M Eastman (Respondent)
Solicitors:
Duncan Scott Solicitor (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s): CA 2017/106371
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2017] NSWLEC 26

Date of Decision:

16 March 2017

Before:

Pain J

File Number(s):

16/160309

Judgment

MACFARLAN JA: This is an application by Mr Raymond Ross for leave to appeal against orders that he pay the costs…

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] NSWCA 299
Decision Date: 24 November 2017

CaseChat Overview and Summary

This matter concerned an application for leave to appeal against costs orders made by the Land and Environment Court of New South Wales in Class 4 proceedings. The applicant sought leave to appeal the costs orders, but the court found that no sufficiently arguable case had been demonstrated to warrant such a grant.

The primary legal issue before the Court of Appeal was whether the applicant had established a sufficiently arguable case to justify granting leave to appeal the costs orders made by the primary court. This involved an assessment of the merits of the proposed appeal against the costs orders.

The Court of Appeal, comprising Macfarlan and White JJA, considered the material before it and concluded that the applicant had failed to demonstrate a sufficiently arguable case. Consequently, the court dismissed the summons for leave to appeal.

The summons for leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ross v Lane Cove Council [2017] NSWCA 299
Hearing dates:	29 September 2017, written submissions on 6 October 2017 and 18 October 2017
Decision date:	24 November 2017
Before:	Macfarlan JA at [1]; White JA at [13]
Decision:	Summons for leave to appeal dismissed with costs.
Catchwords:	APPEAL – application for leave to appeal against costs orders made by Land and Environment Court in Class 4 proceedings – no sufficiently arguable case to warrant a grant of leave demonstrated by applicant
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 96, 149D, 149F Land and Environment Court Act 1979 (NSW) Environmental Planning and Assessment Act 1979 (NSW), Land and Environment Court Rules 2007 (NSW), r 3.7 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Chami v Lane Cove Council [2015] NSWLEC 1003 Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Chami v Lane Cove Council (No 3) [2015] NSWLEC 144 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lane Cove Council v Ross [2012] NSWLEC 153 Lane Cove Council v Ross (No 2) [2012] NSWLEC 160 Lane Cove Council v Ross (No 3) [2012] NSWLEC 171 Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 Lane Cove Council v Ross (No 5) [2013] NSWLEC 17 Lane Cove Council v Ross (No 6) [2013] NSWLEC 74 Lane Cove Council v Ross (No 8) [2013] NSWLEC 77 Lane Cove Council v Ross (No 9) [2013] NSWLEC 78 Lane Cove Council v Ross (No 10) [2013] NSWLEC 79 Lane Cove Council v Ross (No 11) [2013] NSWLEC 81 Lane Cove Council v Ross (No 12) [2013] NSWLEC 82 Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 Lane Cove Council v Ross (No 14) [2013] NSWLEC 87 Lane Cove Council v Ross (No 16) [2017] NSWLEC 26 Ross v Lane Cove Council [2012] NSWLEC 1364 Ross v Lane Cove Council [2013] NSWLEC 109 Ross v Lane Cove Council [2014] NSWCA 50 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 181 ALR 307; [2001] HCA 49 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:	Procedural and other rulings
Parties:	Raymond Ross (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Self-represented Applicant S A Duggan SC / N M Eastman (Respondent) Solicitors: Duncan Scott Solicitor (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	CA 2017/106371
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2017] NSWLEC 26 Date of Decision: 16 March 2017 Before: Pain J File Number(s): 16/160309