Spanos Enterprises v South Sydney Council

[2000] NSWCA 41

CITATION:	Spanos Enterprises v South Sydney Council [2000] NSWCA 41
FILE NUMBER(S):	CA 40580/98
HEARING DATE(S):	8 March 2000
JUDGMENT DATE:	8 March 2000
PARTIES :	Appellant: Spanos Enterprises 2nd Appellant: Spanos Export Meats 3rd Appellant: Anthony William Spanos Respondant: South Sydney City Council
JUDGMENT OF:	Meagher JA at 1; Powell JA at 10; O'Keefe J at 11

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	40177/97
LOWER COURT JUDICIAL OFFICER :	Pearlman CJ, Land and Envioronment Court

COUNSEL:	Appellant: Mr de Vere Tyndall Respondent: Mr Preston SC / MJ Walsh
SOLICITORS:	Appellant:Tjakamarra Forrest (Canberra) Respondent: Pike, Pike and Fenwick (Sydney)
CATCHWORDS:	Injunctions restraining dance parties - argument that original development consent extended to cover terms of injunction - declaration sought - whether 2nd appellant improperly joined - incompetance of legal representation at trial - original consent construed in 1994 - res judicata - failure of appellants to obtain further development consent for dance parties - injunction upheld.
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40580/98

MEAGHER JA
POWELL JA
O’KEEFE AJA

8 MARCH 2000

SPANOS ENTERPRISES AND 2 ORS v SOUTH SYDNEY COUNCIL

JUDGMENT

1   MEAGHER JA: This is an appeal by three parties, Spanos Enterprises Pty Limited, Spanos Export Meat Pty Limited and Mr Anthony William Spanos against certain declaratory and injunctive orders made by her Honour Pearlman CJ on

8 July 1998 in favour of the respondent, South Sydney City Council, concerning certain land at Botany Road, Alexandria.

2   The council's consent with respect to that land, which was granted in 1992, was to use the premises as a club for graffiti artists. Her Honour found that the land had been used extensively for the purpose of dance parties without ever any consent having been obtained from the council in that respect. There is no contest but that the council never did consent and was never asked to consent to that use of the land. 3   There was a body of evidence, which her Honour accepted, that on many occasions the land was used for the purpose of dancing by a large number of people, upwards of 1000, who paid for tickets to attend who had nothing to do with graffiti and nothing much to do with artists. That these parties did take place was not really contested. 4   On this evidence her Honour found that the conducting of dance parties was not within the consent. 5   Mr Tyndall of counsel argued first that her Honour failed in her interpretation of the council's consent. In particular he submitted that certain other evidence and in particular the appellant's development application which was not in evidence should be considered in order to give a different construction to the consent. 6   There are many difficulties with this argument. One is that the consent is not ambiguous. Another is that the evidence sought to be considered is not in evidence. Yet another is that consent was construed by her Honour in the previous proceedings in a judgment given on 9 December 1994 and has therefore passed in the regions of res judicata. This ground must therefore fail. Moreover since the point is a true point of law which has failed the appellants are left complaining about the facts which we have no jurisdiction to determine. 7   The second ground of appeal which was considered is that there was no evidence against the second appellant, that is Spanos Export Meats Pty Limited which should never have been joined and against which no order should have been made. In my view we should not consider this ground of appeal either in view of the fact that for one reason or another the appellants did not make any formal request of her Honour to dismiss the proceedings against that appellant. 8   The third ground considered was the incompetence of the legal representation of the appellants before her Honour. It is not easy to see of what the alleged incompetence consisted, though the one matter which was pursued in this appeal was counsel's refusal or failure to cross-examine the witnesses brought by the South Sydney City Council. We cannot pay any attention to that factor in view of the fact the appellants were unable to point to us any question which the counsel would be able to cross-examine if he was minded to do so. 9   For those reasons, in my view, the appeal should be dismissed with costs. 10   POWELL JA: I agree. 11   O’KEEFE AJA: I agree.

12   There is one thing I should like to add and that is in respect of the third point that was raised in this appeal.

13   There is, in the minds of some members of the public, a belief that counsel or other legal representatives are merely mouth pieces for the client. That is not the situation at all. Counsel appearing for a party has duties to that party which are of a very high order. Counsel also has duties that are of wider impact, duties owed to the Court. A duty is owed to the Court to properly conduct proceedings. The Court is not a forum in which persons are to be asked questions merely because a client wants that to happen.

14   Questions may be asked that are relevant to the issues before the Court or relevant to the credit of a particular witness or witnesses, if credit is relevant at all. It will be relevant only if there is a factual issue between the parties and one has to evaluate the credit of competing witnesses in relation to that issue. That did not occur in the present case.

15   The witnesses were in two categories. The first category consisted of local residents or lay people; the second category consisted of the council officers. The first category of witnesses gave evidence of late-night-into-early-morning dancing with many, many people present, lots of noise, lots of strobe lights and a great deal of rubbish left behind. That was not contradicted by the affidavits filed on behalf of the respondents below and when Mr Spanos gave his oral evidence he did not contradict what had been said by the local residents, indeed he conceded that, except in one instance, he had been at each of the dance parties that the local witnesses had referred to. There was thus no issue between the parties on the facts, so that there was no matter relevant to any issue about which they could be cross-examined. There being no relevant factual issue between the parties, the credit of the local residents was not in issue either. Thus there were no questions that could properly be directed to them on this matter.

16   If one looks at the council officers as the second category: they gave evidence that they paid various sums of money on various occasions to attend the dance parties at which they were present. There was no issue about those facts either. That money was collected and that the amount varied according to the time of entry was absolutely clear, and common ground. So there was nothing left to cross-examine the council officers about.

17   In these circumstances, a mere statement in the affidavit of Mr Anthony William Spanos sworn on 5 October 1999 that he said to counsel then appearing, “I want you to cross-examine the council witnesses”, takes the matter no further. A client who gives such an instruction without there being a proper basis for it does not give an instruction which counsel is bound to, or indeed may properly, act upon. That is because, as I have said earlier, there are duties to the Court beyond those owed to the client.

18   This ground of appeal, in my opinion, is not merely misconceived, it is quite mischievous.

19   I agree with the orders proposed by Meagher JA and the reasons that he has given for those orders.

20   MEAGHER JA: There are only two things to say. One is that the order of the Court is therefore the appeals are dismissed with costs. And the other is that when my brother O’Keefe J said “to properly conduct”, he meant to say, “properly to conduct”.

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