Solowave Pty Limited v Sydney City Council

[2005] NSWLEC 638

Land and Environment Court

of New South Wales

CITATION:

Solowave Pty Limited v Sydney City Council [2005] NSWLEC 638

PARTIES:

APPLICANT
Solowave Pty Limited t/as DCM Nightclub

RESPONDENT
Sydney City Council

FILE NUMBER(S):

21337 of 2003

CORAM:

Talbot J

KEY ISSUES:

Practice and Procedure :- class 2 proceedings - failure to prosecute
Jurisdiction:- application subject of appeal proceedings lodged out of time
Costs:- where application dismissed for lack of jurisdiction - merits justified a costs order against applicant

DATES OF HEARING:

09/07/2004

EX TEMPORE JUDGMENT DATE:

07/09/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G J Stanton (Barrister)
SOLICITORS
Jack Rigg Solicitor

RESPONDENT
Mr A E Galasso (Barrister)
SOLICITORS
Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

9 July 2004

21337 of 2003 Solowave Pty Limited v Sydney City Council

JUDGMENT

1 Talbot J: In this matter, the proceedings were commenced on 5 November 2003 in regard to the refusal of the respondent council to renew what is colloquially known as a POPE (Place of Public Entertainment) licence in respect of the first-floor premises at 31/33 Oxford Street, Darlinghurst.

2 Two other proceedings were also on foot at various times in relation to the downstairs section of the same premises. The other proceedings, numbers 10939/03 and 20056/04, commenced in December 2003, were discontinued at or about the time that the Senior Commissioner heard the parties at a case management hearing on 11 May 2004. Those proceedings were discontinued after hearing dates in January for those two proceedings had been vacated and, indeed, further hearing dates for the present matter and the earlier discontinued matters were set for March and they were vacated with an order made in respect of the costs incurred by the respondent council in regard to that later vacation.

3 At the management hearing on 11 May 2004, Commissioner Roseth heard from the applicant that it proposed to lodge a development application and an application for a building certificate in order to regularise the work that had been carried out on the premises by 21 May 2004. I note, however, that as far back as 8 March 2004, the applicant had foreshadowed that a building certificate would be required. Commissioner Roseth further directed that the applicant’s reports be served by 7 June and he made an order that the respondent similarly serve its reports by 7 June.

4 The applicant did not file either the development application or the application for building certificate by 21 May. The development application was lodged with the council on 11 June. It was recognised at the management hearing that the resolution of the questions in regard to the outstanding development consent and possible building certificate was essential to the determination of the matters that have been set down for hearing next week before a Commissioner.

5 The lodgement of the development application by 11 June precluded any prospect that the council, even with the best of goodwill, could have dealt with the development application in any sort of final way by that time and, indeed, the forty days would not have expired in terms of any deemed refusal by then.

6 The applicant’s expert reports have never been lodged and never been served. There is, I think, the prospect that they will be prepared or will be available. Mr Moody has confirmed that the expert is in the process of preparing the appropriate reports for inclusion in the building certificate application and for these proceedings. Mr Moody has deposed to the fact that the reports are in the course of preparation. The respondent on the other hand complied with the direction, although out of time, on 9 June in respect of its own expert evidence.

7 It is apparent therefore that, on that history, there has been what might be referred to as a protracted progress in relation to the applications in respect of the premises generally and that in particular, insofar as these proceedings 21337 are concerned. There has already been a vacation of a hearing date and there has been a clear non-compliance with the directions made by the Commissioner.

8 I do not doubt for one moment that the applicant may have a sincere intention to pursue the application for a POPE license. I do not doubt for one moment the submission put to me by Mr Stanton and, to some extent, confirmed by the affidavit filed by Mr Moody’s instructing solicitor, that the applicant proposes to meet what it understands to be the requirements of the council in order to entitle it to have the benefit of a POPE license for the first-floor part of the premises.

9 If a question had not been raised about jurisdiction today, then the respondent’s notice of motion would have been dealt with upon its merits and the Court would have been able to determine whether or not the proceedings should be dismissed as a consequence of the ongoing default of the applicant in complying with directions and preparing for a hearing.

10 I bear in mind that the hearing dates have already been abandoned once before and that earlier hearing dates in respect of related matters were also vacated.

11 The applicant has demonstrated, on the basis of the evidence before me, a lack of diligence in prosecuting the appeal to the extent that I would have been prepared to dismiss the proceedings on the basis of the failure to prosecute. Even if that had not been right and I may have fallen into error in that respect, nevertheless the vacation of the hearing dates, once again, would have necessitated an order against the applicants, whereby it would have again suffered an order against it for costs thrown away as a consequence of the further vacation of hearing dates. Those costs would have been, in effect, the costs of the proceedings, having regard to the fact that the directions in order to enable the parties to prepare for the hearing had not been complied with.

12 A further issue arose this morning which demands that the proceedings be dismissed. That is that it is now conceded by the applicant that the submission made by Mr Galasso on behalf of the council that the Court has no jurisdiction to hear an appeal against the application for renewal, having regard to the fact that the application was lodged later than three months after the expiration of the existing POPE licence is correct. The renewal was lodged on 23 September 2003, whereas the previous term had expired on 11 April 2003.

13 Mr Stanton makes the point that, until today, the council had not addressed the issue of jurisdiction. The council had indeed notified the applicant that the expiry of the earlier POPE license had occurred, but nonetheless accepted the application and allowed the matter to proceed to this point, without realising that there was no jurisdiction.

14 The responsibility of course in relation to whether or not it is a matter in jurisdiction, is not solely that of a respondent council and indeed both parties share some responsibility in that regard to ensure that the jurisdiction of the Court is appropriately engaged.

15 However, setting all of that aside, I return back to the merits of the Notice of Motion and as to whether the Class Two proceedings would have been dismissed, even if the jurisdiction of the Court had been maintained, and I am satisfied that the council’s case was sufficiently strong to have justified the Court making such an order.

16 In those circumstances, it is appropriate that the costs of the Notice of Motion today and the costs of the proceedings incurred by the respondent be paid by the applicant and I order the applicant to pay the respondent's costs in relation to the proceedings since the last order was made on 19 March 2004.