The Anson Bay Company (Australia) Pty Limited v Bob Blakemore Pty Limited

[1989] NSWLEC 178

Land and Environment Court

of New South Wales

CITATION:

The Anson Bay Company (Australia) Pty Limited & Anor v Bob Blakemore Pty Limited & Anor [1989] NSWLEC 178

PARTIES:

FIRST APPLICANT
The Anson Bay Company ( Australia) Pty Ltd

SECOND APPLICANT
Lake Macquire City Council

FIRST RESPONDENT
Bob Blakemore Pty Limited

SECOND RESPONDENT
Doug Blakemore Excavations Pty Ltd

FILE NUMBER(S):

40014 of 1989

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Land And Environment Court Act

CASES CITED:

Whitehouse v. Remme, No.40156/87, 7th April, 1988 (unreported);
Bathurst City Council v. Saban [1985] 2 NSWLR 704, at 709.

DATES OF HEARING:

DATE OF JUDGMENT:

04/17/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: In this matter an application has been made to the Land and Environment Court for orders concerning an alleged breach of an environmental law. That application also seeks orders concerning certain licensing agreements between the first and second respondents and the first applicant. The first and second respondents move to strike out paragraphs D.3 and D.4 of the Amended Application on the grounds that this Court has no jurisdiction to determine the claims for relief sought therein. I will not set out the details of those parts of the Amended Application.

The motion is opposed by the first applicant and the second applicant (formerly third respondent), the Lake Macquarie City Council and, put briefly, they say that the Court has jurisdiction to determine all matters in dispute, and that the orders sought arise out of the same facts and, if possible, the Court should determine all matters in controversy between the parties.

The first and second respondents submit that this Court is a statutory Court and has no jurisdiction to make the orders sought; such jurisdiction being solely within that of the Supreme Court. If the Court is against that submission, the Court is asked to exercise its discretion and, in all of the circumstances, to refuse to make such orders. Proceedings have already been commenced in the Supreme Court for the disputed orders. There is a difference between the facts relevant to the breach of environmental law, and a difference in the parties to the proceedings. The first and second respondents also submit that it is more appropriate to deal with this Motion as a preliminary point to avoid unnecessary expense in the proceedings.

There can be no doubt that, pursuant to s.20, subsection 2 of the Land and Environment Court Act ("the L.& E. Court Act") this Court has jurisdiction to make orders sought with respect to the alleged breach of an environmental law. This Court has the same jurisdiction that the Supreme Court would have had, had it not been for the provisions of the L.& E. Court Act. Notwithstanding the submissions of the first and second respondents in this Motion, I am satisfied that this Court also has implied incidental power to deal with matters not expressly within the statutory jurisdiction. I am satisfied that such incidental power comes within the purview of s.22 of the L.& E. Court Act. Without further setting out my reasons, I respectfully adopt the observations of Stein J. in the matter Whitehouse v. Remme, No.40156/87, 7th April, 1988 (unreported), and I also note the remarks of Mr Justice Young and his observations on most of the relevant cases in Bathurst City Council v. Saban [1985] 2 NSWLR 704, at 709.

The real question is whether the Court should determine whether or not it should exercise that power at this stage, or later. The Court does not know at this stage of the proceedings whether the orders challenged are severable from those which clearly come within the express statutory provisions. The Court also does not know at this stage whether all, or most of the facts, or even some of the facts, are common to all of the orders sought. The applicants say they are, the respondents say they are not. The Court has a discretion to exercise the disputed power and, in my opinion, that discretion is a wide one.

It is of significance that the parties to the proceedings are not limited to the parties with respect to the orders in dispute. The consent authority, which has been brought to this Court to respond to the application with respect to the alleged breach, and now by consent has been made an applicant, will be compelled to participate in the hearing, notwithstanding the fact that it has no real interest in the matters in dispute between the first applicant and the first and second respondents.

I am concerned that a lot of unnecessary time will be wasted and, of course, unnecessary expense.

It must be remembered that this is not a Court of pleading and I therefore have considerable reservations as to whether the nature of the orders sought in this Motion are appropriate. In my opinion, the question of the ultimate orders which this Court could or should make is more properly determined when all evidence and submissions have been received by the Court. In my opinion, it will not be until that time that the Court has a sufficient understanding of the issues and the facts to resolve this matter properly. I therefore am of the opinion that it is inappropriate to strike out any part of the application at this stage. However, I believe that the proper course is that evidence should only be received which will be of relevance to the alleged breach of the environmental law. Whether that evidence will entitle other orders to be made which, whilst incidental to the breach of the environmental law, may not be expressly within the statutory jurisdiction of the Court will be determined if and when such other

claims are made at the conclusion of the hearing.

Motion by first and second respondents to strike out part of application in these proceedings refused.