Thornpast Pty Limited v Parramatta City Council [No 2]

[2004] NSWLEC 658

Land and Environment Court

of New South Wales

CITATION:	Thornpast Pty Limited v Parramatta City Council [No 2] [2004] NSWLEC 658
PARTIES:	APPLICANT: Thornpast Pty Limited RESPONDENT: Parramatta City Council
FILE NUMBER(S):	10550 of 2004
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- Whether notice of discontinuance filed without instructions can be withdrawn
LEGISLATION CITED:	Sydney Regional Environmental Plan No 28 - Parramatta Land and Environment Court Rules, Pt 1 r 5A, Pt 1 r 6
CASES CITED:	Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506; Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539; Sargent v ASL Developments Ltd; Turnbull v ASL Developments Ltd (1974) 131 CLR 634; South Sydney City Council v Coe (2001) 113 LGERA 260; Thornpast Pty Limited v Parramatta City Council [2004] NSWLEC 520
DATES OF HEARING:	8/11/2004
EX TEMPORE JUDGMENT DATE :	11/09/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr S. Berveling (barrister) instructed by Pike Pike & Fenwick RESPONDENT: Mr J. Johnson (barrister) instructed by Storey and Gough Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 November 2004

10550 of 2004 Thornpast Pty Limited v Parramatta City Council [No 2]

JUDGMENT

1 HER HONOUR: On 15 September 2004 I handed down my decision on a preliminary question of law in these Class 1 proceedings to the effect that the Applicant’s proposed development was prohibited by virtue of cl 17(2)(c) of the Sydney Regional Environmental Plan No 28 - Parramatta.

2 On 7 October 2004 the Applicant filed, with the Council’s consent, a notice of discontinuance in the Class 1 proceedings. The Applicant has now filed a notice of motion seeking the following orders:

(i) that the Applicant be granted leave to withdraw the notice of discontinuance filed in proceedings 10550 of 2004 dated 7 October 2004.
(ii) that the proceedings number 10550 of 2004 be reinstated and remitted back to me for final determination and dismissal.

The Applicant’s Submissions

3 The Applicant argued that I have power to make the order granting leave to withdraw the notice of discontinuance under Pt 1 r 6 and in light of Pt 1 r 5A of the Land and Environment Court Rules (“the Court Rules”) and that I should do so given the broad discretion I have under the Rules.

4 Pt 1 r 6 of the Court Rules provides that:

In any proceedings the Court may give directions as to the procedure to be followed in respect of a matter not dealt with by the Act or these rules, or by any law or the practice of the Court.

5 Pt 1 r 5A of the Court Rules provides that:

(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings.
(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule .

6 The Applicant argued that, while there was no prejudice caused to the Council if these orders were made, there was prejudice to the Applicant if I did not make these orders as the Applicant would lose its appeal rights in relation to the preliminary question of law.

7 The Applicant relied on the affidavit of its solicitor, Mr Gary Green, sworn on 18 October 2004, who attests that the notice of discontinuance was filed in error due to a misunderstanding of instructions. The Applicant also relied on a number of cases namely Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406, South Sydney City Council v Coe (2001) 113 LGERA 260 and Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506 (“Fowler v Renmark “) in support of its case.

The Council’s Submissions

8 The Council opposed the making of the orders sought in the Applicant’s notice of motion, arguing that an appeal could have been lodged as my preliminary finding was essentially a final decision in any event. Further, the Council argued that, as the Applicant had elected to file a notice of discontinuance the doctrine of election applied, preventing the Applicant from making its current application. The Council relied on a decision of the High Court in Sargent v ASL Developments Ltd; Turnbull v ASL Developments Ltd (1974) 131 CLR 634 (“Sargent”) and a decision of Lloyd J in this Court Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539 (“Hemmes”) in relation to the doctrine of election.

9 The Council also argued that as it had acted in reliance on the notice of discontinuance in that it had now commenced Class 4 proceedings seeking to restrain the use of the Applicant’s premises as a brothel, it would suffer prejudice if I made the orders sought by the Applicant. Its Class 4 proceedings would be likely to be stayed until the Applicant’s appeal was heard.

Finding

10 The Applicant requested a prompt decision, as it must otherwise consider filing a further Class 1 action by tomorrow, and so I have handed down my decision in this matter quickly. I have not therefore been able to research the doctrine of election relied on by the Council to the extent that I would like to do. It does not appear to me from the authorities relied on by the Council that the doctrine of election should be considered to apply in the context of this notice of motion.

11 The decision of Lloyd J in Hemmes was given in the context of the proprietary rights under a development application. I do not think the decision of the Applicant to file a notice of discontinuance is of the same type of right. I therefore do not think that an election such as considered in the High Court in Sargent has occurred here.

12 None of the cases relied on by the Applicant, other than Fowler v Renmark, were of much assistance as they addressed quite different circumstances to those before me. In Fowler v Renmark the South Australian Supreme Court held that a notice of discontinuance filed without instructions, could be withdrawn pursuant to the relevant South Australian Supreme Court Rules.

13 I consider, and indeed the Council did not ultimately dispute, that I have the power to make the orders sought by the Applicant in its notice of motion. The question is whether I should exercise my discretion in the Applicant’s favour.

14 In this regard I note that the Applicant’s solicitor had notified the Council of the Applicant’s intention to appeal before filing the notice of discontinuance. Given that the notice of discontinuance was filed due to error on the part of the Applicant’s solicitor I consider that I should make the orders sought by the Applicant in its notice of motion. While the Council, no doubt sensibly, waited until the Class 1 proceedings were at an end to file its Class 4 proceedings as it is entitled to do, I do not think that this outweighs the disadvantage to the Applicant given its solicitor’s error. I agree however with the Council that the Applicant does not appear to be prosecuting the intended appeal with the necessary due diligence and I therefore intend to make conditional orders requiring certain actions by the respective parties in relation to both the Class 1 appeal and the Class 4 proceedings.

15 The Court makes the following orders:

1. Leave is granted to the Applicant to withdraw the Notice of Discontinuance filed in these proceedings and dated 7 October 2004, subject to the following:
(a) The Applicant file any appeal to the Court of Appeal by 15 November 2004 together with a Notice of Motion for expedition;
(b) In relation to the Class 4 proceedings 41258 of 2004 instituted by the Respondent Council:
(i) the respondents in those proceedings (Thornpast Pty Limited and Glenn Ratcliffe) file and serve any application for stay of those proceedings, together with any affidavits in support of such application for stay, within 14 days after service of the affidavits filed by the applicant in those proceedings in support of those proceedings;
(ii) the applicant in those proceedings (Parramatta City Council) file and serve any evidence in reply with respect to such application for stay within 7 days after production of documents which the Applicant would be requested to produce.
2. These proceedings 10550 of 2004 are dismissed.
3. The question of costs is reserved.