Sky Design & Concepts Pty Limited v Pittwater Council

[2009] NSWLEC 49

Land and Environment Court

of New South Wales

CITATION:

Sky Design & Concepts Pty Limited v Pittwater Council [2009] NSWLEC 49

PARTIES:

APPLICANT:
Sky Design & Concepts Pty Limited

RESPONDENT:
Pittwater Council

FILE NUMBER(S):

11186 of 2007

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- on judicial review of a decision by the Registrar, Registrar's reasons for decision may be relevant

CASES CITED:

Tomko v Palasty (No. 2) [2007] NSWCA 369

DATES OF HEARING:

2 April 2009

EX TEMPORE JUDGMENT DATE:

2 April 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr S May, in person
SOLICITORS
N/A

RESPONDENT:
Ms M Carpenter
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

2 April 2009

11186 of 2007

SKY DESIGN AND CONCEPTS PTY LIMITED v PITTWATER COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the applicant for review of the Registrar’s decision of 25 February 2009 that, inter alia, the applicant provide security for costs of the applicant’s notice of motion of 19 December 2008.

2 By the latter notice of motion the applicant sought orders setting aside the decision of Sheahan J of 26 November 2008 dismissing the applicant’s appeal against a decision of Commissioner Hoffman, and setting aside that decision of the Commissioner. The grounds appear to be that both decisions were beyond the Court’s jurisdiction.

3 On 25 February 2009 the Registrar made the following orders:

(1) Applicant to provide by 9 April 2009, security for costs of the respondent in the sum of $15,175 by way of unconditional bank guarantee.

(2) Applicant is to pay the respondent’s costs of this motion in the sum of $2,500 by 9 April 2009 (note that that amount includes the costs of 12 and 18 February 2009 - previously reserved).

(3) If the applicant fails to provide security for costs in accordance with order (1), the applicant’s notice of motion filed 19 December 2008 will be dismissed.

(4) Vacate hearing dates of 26 February and 9 March 2009.

(5) List both notices of motion on 27 April 2009 and I note that order (3) is a self executing order: if the applicant does not provide security for costs, the respondent’s cross-vested notice of motion will proceed on 27 April 2009.

4 The return date of the applicant’s notice of motion for review, which was filed on 24 March 2009, is today. When the matter came before me for hearing, it became apparent that the Registrar’s reasons for the decision of 25 February 2009 were not available and that the applicant had not sought to obtain them. The applicant is a litigant in person and was not aware that those reasons for judgment should be obtained for the purposes of this review. The Registrar’s reasons may be relevant to the outcome of an application for review of the Registrar’s decision: Tomko v Palasty (No. 2) [2007] NSWCA 369. This was, I think, accepted by the parties. In those circumstances the parties are agreed that the matter should not be treated as part heard before me and that a regime should be put in place to urgently obtain the Registrar’s reasons for decision in order that the motion for review may be determined as soon as possible having regard to those reasons.

5 The applicant’s notice of motion of 19 December 2008 is listed for hearing on 27 April 2009. But the Registrar’s order (3) made on 25 February 2009 is a guillotine order whereby, if security is not provided by 9 April 2009, the applicant’s notice of motion of 19 December 2008 will be dismissed. In those circumstances, the parties are agreed that it is reasonable to put in place the regime in the following directions and orders, which I now make:

(1) Direct the applicant to proceed to the Registry forthwith to urgently request a copy of the Registrar’s reasons for decision of 25 February 2009 and the transcript of the proceedings before the Registrar on that date, and to provide the respondent with a copy of same as soon as they are available.

(2) Request the Court Reporting Service to make available a copy of the said reasons for judgment and transcript urgently.

(3) Stay orders 2 and 3 made by the Registrar on 25 February 2009 until determination of the applicant’s notice of motion for review of the Registrar’s decision filed on 24 March 2009.

(4) Direct the parties to re-list the last mentioned notice of motion before a judge for hearing as soon as reasonably possible after the Registrar’s reasons for decision of 25 February 2009 are available.

(5) Liberty to the parties to apply on two days notice.

(6) Reserve the costs of today.