World Wings Property Investment Company Pty Limited v The Council of the Shire of Warringah

[1992] HCATrans 372

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S42 of 1992

B e t w e e n -

WORLD WINGS PROPERTY INVESTMENT

COMPANY PTY LIMITED

Applicant

and

THE COUNCIL OF THE SHIRE OF

WARRINGAH

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

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MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1992, AT 3.00 PM

Copyright in the High Court of Australia

MR D. VALASSIS:	I am the applicant, Your Honour.
MR D.P. WILSON:	May it please the Court, I appear for the

respondent Council. (instructed by Wilshire Webb)

BRENNAN J:  Mr Valassis, you are not a barrister or

solicitor appearing for the applicant, is that

right?

MR VALASSIS:	I have to appear by myself, Your Honour.
BRENNAN J:	You need to obtain our leave to appear for yourself and to satisfy us that there is some
reason why we should grant you leave to appear for
yourself.  When this is a case which involves
necessarily a question of law, we need to be
satisfied that you have a sufficient understanding
of the questions of law involved to justify our
granting you that leave.
MR VALASSIS:	I understand this, Your Honour, but my

situation at the present moment is the company and

myself have no money to employ a solicitor or

barrister. The second thing is the company, they

have 10,000 shares and they own only one half, which is my accommodation. I own 9999 shares. That means, Your Honour, I have to protect my own

house.

The third thing, Your Honours, is the

respondent in this matter have been involve me in

this inconvenience all these years from 1973 which,

if they have proper attention, should not involve

me in this particular matter. Myself, I am the

neighbour - my company and myself is the same

person - I am the neighbour of a subdivision which
the respondent issue to my neighbour, and this

subdivision, I have all the evidence to prove to

the Court, Your Honours, is nil and void.

Another reason, Your Honours, before we start

this matter, in 1973 I did have a legal

representative to protect me on this matter, and

unfortunately my legal representative did not

protect me in this matter and involved me in

inconvenience until today, and today I have two

court cases ..... in the Supreme Court of New South

Wales for the damages which they have been my

property, which is about $70,000. I am living in

inconvenient and damages and dangerous house from

1973 up to today.	I have been spent over $17,000
and this is my situation.	I have no money and I
have to defend this matter myself.	I have the

evidence today, Your Honours, to prove the

subdivision which the respondent give to the

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neighbour in 73 is nil and void. With your

permission, if you let me open this matter.

BRENNAN J:  No, we cannot grant you leave to bring new

evidence here. This is a court of appeal and the
question which we have to decide today, if we grant

you leave to present the argument, is simply

whether we will hear an appeal from the decision

already made by the Court of Appeal of New South

Wales.

MR VALASSIS:  I have the available - the points of law which

they make error in law to dismiss the application

in Land and Environment Court, Your Honours.

BRENNAN J: Perhaps you would like to identify for us what

are the errors of law which you say the Court of

Appeal made in reaching its decision.

MR VALASSIS:  Yes. The first error in law and the most

serious and the foundation error is this: the

respondent erred in law to not inform under what development control plan or council code was the

subdivision approval on or about 8 March 83. The

applicant apply for subdivision to Warringah Shire

Council - application I have available here - and

the applicant say, "I know my land is not complying

with the regulations", 45(2) and (c) of Warringah

Shire Planning Scheme. No further explanation

under what law he been expecting the Council to

give approval. After this, I have with me,

Your Honours - I wish to attend this particular

document, it is only three documents, which is the

application, the work papers from the Warringah

Shire Council and the approval.

BRENNAN J:  We are not going to receive fresh evidence, you

understand, Mr Valassis. You must, I think,

endeavour to concentrate on the judgment of the

Court of Appeal, point out to us the passages in

that judgment which are wrong and state the reasons

why, in your submission, you say they are wrong.

MR VALASSIS:  The subdivision approval was wrong

because -

BRENNAN J:  No, it is not a question of the subdivision

approval being wrong; it is a question of whether

the Court of Appeal's decision was wrong.

MR VALASSIS: Yes, Your Honour, because first of all, never

account - the decision which the respondent made

was not under any Act. The respondent - the

decision should make under the Act and this is

against Local Government Act 331(2)(a). One error,

they did not secure the job, they will not make

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them just to the neighbour, and this is affected by

this Act, Your Honours.

The second error is the approval should

identify under what Act they have been give the

approval, and we have to argue about according to

this particular Act which they have been give the

approval. This against the regulation 12 of the

Local Government Act, 331(4), which they say they

should give - identify the Act which they give the

permission. The application also is against the

S331, against the Planning and Assessment Act 1979.

Fourth, the respondent, they did not publish the job. It had been secret, Your Honours, and

they never inform me this particular subdivision,

never inform me, the respondent or even my own

solicitor. This is against the Local Government

Act, 331(2). Again, another error in law,

Your Honours, is condition of power. This is in page 7253, second paragraph, which they say the

council should give power under this section.	They
never done this also, Your Honours.	They have also

erred in law with the last paragraph of 7253, the

land should be 7000 square feet.	It was less than
this.

Next page in Local Government Act, 331, first

paragraph in page 7254, they say again the public

interest. That means the Council should advertise

this particular job, but not only never advertise,

Your Honours, I repeat the same thing. They keep

secret of me and even my own solicitors never

inform me this. Page 7257, second paragraph, they

say again to the public interest, relation to the

public interest, also to see the Act, 331A. The

next paragraph, they say the property owner can do

anything he wish on his land, to not cause any harm

to his neighbour. Again this is against the

Council approval for the subdivision on

8 March 1983.

Further down, they did say in public interest

the Council can refuse to grant consent. Further

down the same page, Your Honours, they say if there

are disputes, the parties should sit down and talk

the matter. This never happened to me,

Your Honours. I attend the Council to have

inquiries and they refuse to inform me anything.

They say, "We're going to tell to your solicitor."

I think these errors of law which they have been

made I have to point out and I have to ..... now to

the decision of the Land and Environment Court.

The first page of the decision of the Land and

Environment Court, the last paragraph, No 3, they say:

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a subdivisional approval under Part XII of the

Local Government Act 1919 granted by it on or

about 8th March, 1983 was null and void -

That mean I say that. I never say that,

Your Honours, because they never prove under this

particular Act.	They never prove under no one Act
at all.	The second page, first paragraph, they

realize the work was contrary to the approval.

They give approval, Your Honours, to do subdivision and they plan - they did have some special

conditions to add a ..... the wall which was a brick

fence. The neighbour - with heavy machinery they

done all these messages and the respondent refused
to inspect the property and let the neighbour
continue the damages. Also my legal representative
refused to stop him, to ask him for some deposit to

build the damages on the end of the property.

Further down they say on 13 August 1984 the

Council sent me a letter which they say they do not

involve with the neighbour's dispute.	I disagree
with this, Your Honours.	I disagree with this

because the dispute is not from the neighbour; the

dispute is from the respondent which let the

neighbour do the subdivision without inspection and

make all these damages to my property, and the

damages remain until today. Further down on the

third page - - -

BRENNAN J:  Mr Valassis, there is not much purpose in just

going through it page by page. We need to be

satisfied that you are able to identify for us

errors in the judgment which would justify the

grant of special leave. Can you identify briefly

what you say are the errors which justify the grant

of special leave?

MR VALASSIS:	Yes, Your Honour.
BRENNAN J: Because if you cannot do that, then really we

are wasting your time and ours.

MR VALASSIS:  The foundation always error in law is, with

your permission to repeat for last time, the

respondent erred in law to not inform under what development code or plan or council code was the subdivision approval on about 8 March 1983. This

is the foundation. The approval just say with no

under one no law, just like this.

BRENNAN J:	They did not identify the law.
MR VALASSIS:	No.

BRENNAN J: All right, that is one point.

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MR VALASSIS: Well, the second point is the application to

subdivide does not comply with the Environment

Planning and Assessment Act, 1979; 4 of the Local

Government Act, 1919. Third, the subdivision does

not comply with the ..... subdivision code of the

Warringah Shire Planning Scheme Ordinance,

clause 45(2)(b) and clause 45(2)(c).

The respondent did not mention the condition

"with the approval of Part XII of the Local

Government Act". The respondent erred in law

331(2)(a) of the Local Government Act, 1919, that

the applicant should provide to the Council
security for the payment, for the cost of making

good any damage or injury referring to the

section 245A(l)(b) cost consequential on

construction work being work with the approval

related.

The respondent erred in law with 331(4) that

the case of the approval given subject to condition

of the disapproval. Their reasons therefore should

be indicate in the notice which shall be also

indicate what the application has in the right to

appeal, which never happened this time.

BRENNAN J: Well, now, we have heard you for some time,

Mr Valassis.	Is there anything you wish to add to
the question	of whether we should grant you leave
to appear to	present the argument on behalf of the
applicant?

MR VALASSIS: Please, I have cannot hear very well?

BRENNAN J:  I say, is there anything you wish to add which

is relevant to the question whether you should have

leave to appear in person to present the case on

behalf of the applicant?

MR VALASSIS: Well, Your Honour, I say earlier, the

applicant own only one house and never have

anything else.

BRENNAN J: Yes, we understand that. The question is

whether you are able to articulate the issues and

show why there should be a grant of special leave.

MR VALASSIS:  I have no money to pay a solicitor and also, I

cannot have solicitor. Until today I did have six

solicitors in this matter and I did have another

Court of Appeal in here three years ago and my

legal representative never act on my advantage.

BRENNAN J:  Mr Valassis, we have heard the calibre of the

argument that you have given us. You can have, if

you wish, five more minutes to say what you wish to

say, but I think from that time we will probably we

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wasting your time and ours. So if you wish to take

another five minutes, please do so.

MR VALASSIS: Well, the points of law are nearly finished,

Your Honours.

BRENNAN J: Very well, then finish them.

MR VALASSIS:  The respondent erred in law S331(2). Again,

for the public interest, Your Honours, which was

not advertised and the respondent failed in his

duty to keep secret from the applicant the

subdivision. The respondent failed in his duty to

refuse to give service to the applicant. These are

the points of law, Your Honour, which I have to

say, and this is my submission. Please, I wish to
approve leave on this matter on behalf of this

matter and to allow me to defend this matter.

Thank you.

BRENNAN J:  Thank you, Mr Valassis. We need not trouble

you, Mr Wilson. Regrettably, Mr Valassis is unable

to articulate with clarity errors in the judgment

of the Court of Appeal which might attract the

grant of special leave to appeal to this Court.

Unless this Court is clearly apprised of the issues

which a party wishes to agitate on appeal and is

clearly apprised of the reasons why those issues

should attract the grant of special leave, it is

unable to determine satisfactorily an application

for special leave to appeal. In this case, having
read the judgment of the Court of Appeal, we do not
see any apparent error which would justify the
grant of special leave. In the circumstances, we

decline to grant leave to Mr Valassis to present

the argument on behalf of the applicant.	We
dismiss the application for special leave.

MR WILSON:

May it please the Court. I would seek costs,

Your Honours.

MR VALASSIS: If it please Your Honours, you have just

dismissed my application?

MR WILSON:  Yes.

MR VALASSIS: If I have to pay the costs, please reserve the

costs until finalize the two court cases in supreme court. I have to sell my house; I have no money to

pay at present. Thank you.

BRENNAN J:  Mr Wilson, the application is, of course,

against the company.

MR WILSON:  Yes.

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BRENNAN J:	The question is whether the company is properly represented by Mr Valassis.
MR WILSON:	Yes, there being no suggestion that the

proceedings were not properly commenced and
conducted, it being a matter of representation

today. It is my submission that an order can be made against the company, all other things being

regular except perhaps the appearance today.	I
would press, with respect, the application for costs.

BRENNAN J:  Mr Valassis, we raised with Mr Wilson the

question of whether the order for costs which he

sought which is an order which would be made

against the company, that is against the applicant

company, should be made when we are denying to you

the right to present the case on behalf of the

company. Mr Wilson's argument is, well, the

company made the application for special leave to appeal, the matter was listed today, and the only

problem is that you have not been allowed to appear

for the company. Do you wish to say anything

further or make anything out of that?

MR VALASSIS: Please, Your Honours, that mean if I have

legal representative can I continue it?

BRENNAN J:	No, it does not mean that.
MR VALASSIS:	That is the end today?

BRENNAN J: Yes.

MR VALASSIS: Well, I have to say reserve the expenses until

finalize the two other court cases in supreme court to sell the house to pay the expenses, or they have to sell my house to get the money before I finalize
the court case in supreme court for damages to my

house. If I sell the house today I will sell with

half price because it is damages property. I am

living in damages property nine years and today I

am going to lose my property. I leave it to you,

Your Honour.

BRENNAN J:  Mr Valassis, the order which the Court is

required to make when it dismisses an application

for special leave is ordinarily to dismiss it with

costs being awarded against the unsuccessful party.

We have given some consideration to the question of

whether there is any ground on which that order

should not be made in this case. We cannot see any

reason why the order should not be made and,

therefore, it is necessary for us to make the order

that the respondent have his costs against the

applicant, that is, against the company.

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MR WILSON:	May it please the Court.
BRENNAN J:	The application will therefore be dismissed with

costs.

AT 3.30 PM THE MATTER WAS ADJOURNED SINE DIE

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