Vaughan v Byron Shire Council

[2002] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:	Vaughan v Byron Shire Council [2002] NSWLEC 157
PARTIES:	APPLICANT: John Vaughan RESPONDENT: Byron Shire Council
FILE NUMBER(S):	10683 of 2001
CORAM:	Lloyd J
KEY ISSUES:	Practice and Procedure :- appeal limited to question of law - fresh evidence on appeal - not permitted
LEGISLATION CITED:	Land and Environment Court Act 1979 s 56A(1) Supreme Court Act 1970 s 75A(1)
CASES CITED:	Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
DATES OF HEARING:	20/08/2002
EX TEMPORE JUDGMENT DATE :	08/20/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J J Webster (barrister) and Mr J M Atkin (barrister) SOLICITORS: Walters RESPONDENT: Mr D P F Officer QC SOLICITORS: Abbott Tout

JUDGMENT:

2

10683 of 2001

Lloyd J

20 August 2002

JOHN VAUGHAN

Applicant

BYRON SHIRE COUNCIL

Respondent

EXTEMPORE JUDGMENT ON NOTICE OF MOTION

HIS HONOUR:

1. This is an appeal under s 56A(1) of the Land and Environment Court Act 1979 against a decision of the Commissioner Hoffman. Section 56A(1) provides that a party to proceedings in class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Court against an order or decision of the Court on a question of law, being an order or decision made by a commissioner or commissioners.

2. Mr J J Webster, who appears for the applicant, has filed in Court this morning a notice of motion which seeks that, at the hearing of the appeal pursuant to s 56A(1) of the Land and Environment Court Act, further and fresh evidence be taken into consideration. The motion is opposed by the respondent.

3. One of the questions that arises in relation to the notice of motion is whether the Court has jurisdiction to allow fresh evidence on an appeal under s 56A(1) of the Land and Environment Court Act, that being an appeal which is limited to a question of law.

4. The Land and Environment Court Act does not have a provision similar to that which exists in the Supreme Court Act 1970 s 75A, sub-s (1) of which provides that the Court may receive further evidence on an appeal.

5. I have been referred to a number of authorities where courts of general appeal have held that they have jurisdiction to receive fresh evidence on the hearing of an appeal. I have not been referred to any authority where an appellate tribunal limited to hearing an appeal on a question of law is able to receive fresh evidence. Indeed the decisions of the High Court in a number of the authorities referred to in argument suggest that the Court would not have such jurisdiction.

6. I prefer, however, to base my determination, whether to allow the notice of motion, on a different basis altogether. As I have noted, the appeal to this Court is limited to a question of law. If there has been a wrong finding of fact, that is not a question of law: see the High Court’s decisions in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [138]; and Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at 154 [44] and 158 [59]. In those circumstances it is said by Mr D P F Officer QC, who appears for the respondent: how is it suggested that, if the fresh evidence were allowed, it could be used?

7. I must say that there is some force in Mr Officer’s submission. Moreover, the judgments of the High Court to which I have referred are, of course, binding upon me. On an appeal under s 56A(1) the Court is not a tribunal of fact. The only power of the Court under s 56A(1) is to determine whether there has been an error of law on the part of the commissioner. I am therefore inclined to dismiss the notice of motion.

8. The next question then is: what should happen now? Mr Officer says that he is ready to argue the s 56A appeal itself. The Court has set aside the time to hear it and so have the parties. I think it should proceed.

9. The formal order is that the applicant’s notice of motion is dismissed. The hearing of the appeal will now proceed.

I hereby certify that the preceding 9 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
Associate