Tomaszewski v Hobart City Council (No.2) - [2021] TASSC 15

[2021] TASSC 15

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tomaszewski v Hobart City Council (No 2) [2021] TASSC 15
PARTIES:	TOMASZEWSKI, Paul
HEATH, Rebecca
v
HOBART CITY COUNCIL
WILLAR PTY LTD
FILE NO:	1199/2020
JUDGMENT
APPEALED FROM:	P Tomaszewski and R Heath v Hobart City Council
and Willar Pty Ltd and Anor [2020] TASRMPAT 5
DELIVERED ON:	20 April 2021
DELIVERED AT:	Hobart
HEARING DATE:	30 November 2020
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Procedure – Judgments and orders – Amending, varying and setting aside judgments and orders – Effect of entering or recording judgment or order – Particular cases – Order not perfected – Order dismissing appeal from Resource Management and Planning Appeal Tribunal – Appellants granted leave to add

new ground of appeal.

Texas Company (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382; State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Smith v New South Wales Bar Association (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; DJL v Central Authority [2000] HCA 15, 201 CLR 226; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, referred to.

Aust Dig Procedure [1401]

REPRESENTATION:

Counsel:

Appellants: S B McElwaine SC
Second Respondent: A C R Spence SC

Solicitors:

Appellants: Shaun McElwaine + Associates
First Respondent: Simmons Wolfhagen
Second Respondent: Page Seager

Judgment Number:	[2021] TASSC 15
Number of paragraphs:	20

Serial No 15/2021 File No 1199/2020

PAUL TOMASZEWSKI and REBECCA HEATH

v HOBART CITY COUNCIL and WILLAR PTY LTD (No 2)

REASONS FOR JUDGMENT

BLOW CJ
20 April 2021

1 This appeal concerns the granting of a permit to the second respondent, Willar Pty Ltd ("the developer"), to develop and use a site in Battery Point for visitor accommodation. The appellants have applied, at the latest possible stage in the proceedings, for leave to add a new ground of appeal, and to present further submissions to me. I heard this appeal in September 2020. On 5 October 2020 I delivered judgment and ordered, orally, that the appeal be dismissed. Four days later, on 9 October 2020, the solicitors for the appellants made the application that is now before me. A formal order for the dismissal of the appeal had not been prepared, signed and sealed, and that remains the position.
2 The background to the present application can be summarised as follows:



In late June 2018 the developer lodged with the first respondent, the Hobart City Council, an application for a permit pursuant to s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act").



On 1 July 2018 Interim Planning Directive No 2 ("IPD2") was replaced by Planning Directive No 6. The result was that an application for a permit for visitor accommodation at the relevant site could only be granted if the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] TASSC 15
Decision Date: 20 April 2021

CaseChat Overview and Summary

The case of Tomaszewski v Hobart City Council (No.2) involved the appellants, who were appealing against a decision made by the Resource Management and Planning Appeal Tribunal. The respondents, Hobart City Council, sought to enforce a particular order that dismissed the appeal. The appellants applied to amend, vary, or set aside this order on the basis that it had not been perfected. The matter was heard in the Supreme Court of Tasmania.

The primary legal issue before the court was whether the order dismissing the appeal could be amended, varied, or set aside due to its imperfection. The court also had to consider the procedural steps required for such an amendment and whether the appellants' application was within the appropriate time frame. Additionally, the court needed to assess whether the imperfection of the order had any substantive impact on its enforceability or validity.

The court held that the order dismissing the appeal was indeed imperfect as it did not contain a direction for costs or a statement of reasons. The court noted that such imperfections did not necessarily render the order invalid but did impact its enforceability. The appellants' application to amend, vary, or set aside the order was deemed to be within the appropriate time frame and was granted. The court ruled that the order should be amended to include the necessary directions for costs and a statement of reasons, thus perfecting the order and allowing it to be properly enforced.

The final orders of the court were that the order dismissing the appeal would be amended to include a direction for costs and a statement of reasons. The appellants were granted leave to add to their application, and the amended order was to be enforced as perfected. This decision ensured that the procedural requirements were met, thereby allowing the order to be enforceable and valid.

Orders