Wykanak v National Broadcasting Company [NBC] USA

[2000] NSWCA 300

CITATION:	Wykanak v National Broadcasting Company [NBC] USA [2000] NSWCA 300
FILE NUMBER(S):	CA 40123/00
HEARING DATE(S):	24 October 2000
JUDGMENT DATE:	24 October 2000
PARTIES :	Dominic Wykanak (Claimant) National Broadcasting Company (NBC] USA and Others (Opponents)
JUDGMENT OF:	Powell JA at 1, 39, 41; Stein JA at 2; Heydon JA at 40

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	40123/00
LOWER COURT JUDICIAL OFFICER :	Priestley JA

COUNSEL:	Claimant in person Opponents (2, 6) Mr Bateman Opponents (3, 4, 5) J Waters
SOLICITORS:	Claimant in person
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	House v The King (1936) 55 CLR 499 Wentworth v Wentworth (1994) 35 NSWLR 726
DECISION:	Notices of Motion filed on 1 August 2000 and 18 October 2000 dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

040123/00

POWELL JA
STEIN JA
HEYDON JA

Tuesday, 24 October 2000

DOMINIC WYKANAK v
NATIONAL BROADCASTING CO (NBC) USA & ORS

JUDGMENT

1    POWELL JA: I will ask Heydon JA to deliver the first judgment.
2    HEYDON JA: The court has before it a Notice of Motion apparently filed on 1 August 2000. It is an application by the claimant, hereafter called the applicant, made pursuant to s 46(4) of the Supreme Court Act 1970, to review orders made by Priestley JA on 31 July 2000. The orders sought in the Notice of Motion are as follows:

“1. That the decision of Priestley JA given 31 July 2000 be
reviewed.
2. That the review of the decision not be listed for appearance until a further 27 days.
3. That prior to an appearance after another 27 days on this application the claimant explore settlement of the issues with the respondents.
4. That in the Public Interest each Party bear their own costs for this application and in this matter.
5. A declaration that the Public Interest challenge against the initial development consent for the Bondi Beach olympic volleyball stadium is maintained in this action/application.”

3    An affidavit dated 1 August 2000 was filed in support of the Notice of Motion. It is to the following effect:

“1. That on 31 July 2000 I attended Court for an appearance in matter40123/2000. I think the Judge’s name was Justice Priestley.
2. I have asked the Court of Appeal for a copy of the orders from yesterday.
3. I am exploring over the next 27 days settlement of this application/matter with the respondents.
4. This application is part of the ongoing Public Interest challenge to the initial development consent to the olympic Bondi Beach volleyball stadium construction.
5. Inter alia the Public Interest challenge has been because of unresolved Public Safety issues and Native Title issues.
6. I am motivated as a Litigant in Person and Bondi Ward Councillor of Waverley Council because of potential Public fatality as a result of the olympic stadium’s construction to keep an ongoing challenge against the initial development consent to the olympic Bondi Beach volleyball stadium beach construction.
7. I have asked to be heard 3 Aug 2000 in the Land and Environment Court of NSW for a declaration that the consent to ‘Development Application No. S38/5/99 lodged with the Department of Urban Affairs and Planning on 3 Aug 99, the Statement of Environmental Effects dated July 1999 prepared by S A Smits & Associates Pty Ltd’ is invalid.
8. I am responsible for representing Public Safety issues at Bondi Beach and inter alia ran my election campaign on an antistadium platform because of Public Safety issues associated with its effects.”

4    Though it was only returnable on 30 October 2000, there was also before the court this morning a Notice of Motion filed on 18 October 2000. It seeks the following orders:

“1. That the Claimant be allowed to discontinue the matter on the terms that each party bear their own costs in this matter.
2. That in the event the Claimant is not able to progress this matter the Attorney General be substituted as the Claimant.
3. In the Alternative that the Claimant and relevant Partys enter into mediation in this matter.
4. If orders 1 to 3 are not granted that the Claimant be allowed to discontinue the matter.”

5    In order to understand the reasoning which led Priestley JA to make the orders complained of and to understand the orders sought in the second Notice of Motion, it is necessary to set out part of the complex procedural history as it emerges from this Court’s files.
6    Although evidently the applicant has brought other proceedings against some or all of the present opponents, on 25 November 1999 the applicant commenced proceedings number 40204 in the Land and Environment Court of New South Wales (“LEC Proceedings No 40204”). That was a Class 4 Application seeking final and interlocutory relief directed towards preventing the construction of a volleyball stadium on Bondi Beach for use during the Olympic Games. Interlocutory injunctions stopping work on the stadium were sought.
7    The application for interlocutory relief was returnable on 1 December 1999. On that day the application was called on before Lloyd J. There was no appearance by or on behalf of the applicant and Lloyd J dismissed LEC Proceedings No 40204 with costs.
8 On the same day, 1 December 1999, the applicant commenced proceedings number 40929 of 1999 in the Court of Appeal (“CA Proceedings No 40929”) by Holding Summons filed under Pt 51 r 4 of the Supreme Court Rules. That Holding Summons sought an order granting leave to appeal against Lloyd J’s decision.
9    On 7 December 1999 the applicant filed an Amended Holding Summons. The effect of the amendment was to remove one opponent, namely Waverley Council. That left six opponents. The first was described as “National Broadcasting Company (NBC) USA”. The second was described as “Olympic Co-ordination Authority”. The third was described as “Minister for Urban Affairs and Planning NSW”. The fourth was described as “Minister for Land and Conservation NSW”. The fifth was described as “Director General Department of Urban Affairs and Planning NSW”. The sixth (referred to in the file as the seventh) was described as “Minister for the Olympics NSW”.
10 On 4 February 2000 the applicant filed a Notice of Motion containing eight paragraphs purporting to seek directions, although in fact two of the orders sought were interlocutory injunctions pending the hearing of the appeal and another was a stay of Lloyd J’s costs order. That motion was returned before Deputy Registrar Howe on 21 February 2000. A legal representative appeared for the second opponent and the seventh opponent. Another legal representative appeared for the third, fourth and fifth opponents. The applicant asked for an adjournment until after a Federal Court hearing on 2 March 2000 relating to some of the native title issues he wished to ventilate on the motion. Deputy Registrar Howe, after inquiring whether court time was not being wasted, referred to Pt 51 r 4 of the Supreme Court Rules and pointed out that the applicant had until 1 March 2000 to file an Ordinary Summons for Leave to Appeal. He stood the Notice of Motion over until 6 March 2000.
11    On 6 March 2000 the applicant appeared, as did legal representatives for the second to the fifth and seventh opponents. The applicant said he was not ready to proceed and asked for an adjournment on the ground that he needed more time to serve the first opponent in the United States of America. Deputy Registrar Howe dismissed the Notice of Motion with costs. That is an important event in the sense that it triggered what are described below as Court of Appeal proceedings number 40123 of 2000.
12    On 1 March 2000 the applicant filed an Ordinary Summons for Leave to Appeal. On 13 March 2000 Clayton Utz who were acting for the second and seventh opponents filed a Response to the Summons. The first return date for the Ordinary Summons filed on 1 March 2000 was 17 April 2000. The applicant appeared in person. The second to the fifth and the seventh opponents were represented. The matter was adjourned to 1 May 2000 by Registrar Irwin.
13    On 1 May 2000 before Registrar Irwin the applicant appeared. The second to the fifth and the seventh opponents were represented. Registrar Irwin directed that any application by the applicant for leave to discontinue be filed by 5 May 2000 and stood the matter over to 8 May 2000.
14    On 5 May 2000 the applicant filed a Notice of Motion to that effect. It was dated 17 April 2000 and returnable on 15 May 2000.
15    On 8 May 2000, neither the applicant nor any representative of the applicant appeared, though the second to the fifth and the seventh opponents were represented. Registrar Irwin adjourned the matter to 15 May 2000.
16    On 15 May 2000 the applicant did not appear in person or by a representative. However, the second to the fifth and the seventh opponents were represented. Counsel for the second and seventh opponents indicated that his clients would be content for the proceedings to be dismissed with each party paying its or his own costs. The matter was stood over to 19 June 2000.
17    On 19 June 2000 the applicant and representatives of the second to the fifth and the seventh opponents appeared. For the first time a representative of the first opponent also appeared. Registrar Irwin stood the matter over to 26 June 2000.
18    On 26 June 2000, after a debate recorded over ten pages of transcript, in the course of which the applicant expressly indicated his consent to what was proposed, Registrar Irwin made consent orders approximately simultaneously with the first opponent filing a notice of appearance. The Registrar said:

“By consent I make orders in terms of paragraphs 1(a) and 1(b) of the Notice of Motion filed on 15 May. The Court notes the agreement between the parties.”

Paragraph 1(a) and 1(b) of the Notice of Motion provided:
“1. That in relation to Section 34.6A of the Supreme Court Rules 1970 the plaintiff/claimant applies for the proceedings to be dismissed with orders on the following terms:
(a) That the appeal be dismissed and/or otherwise discontinued.
(b) That each party bear their own costs in the NSW Supreme Court of Appeal.”

These orders as corrected in due course when entered on 18 September 2000 were:
“1. The summons for leave to appeal be dismissed.

2. Each party bear their own costs in these proceedings.
3. The Court notes the agreement between the parties that the costs order in Land and Environment Court of New South Wales proceedings number 40204 of 1999 not be enforced and that each party bear their own costs in those proceedings.”

19    The other relevant proceedings are Court of Appeal Proceedings No 40123 of 2000. These were instituted on 6 March 2000 by a Holding Summons seeking leave to appeal against Deputy Registrar Howe’s decision of that date in CA Proceedings No 40929. It will be remembered that Deputy Registrar Howe decided to dismiss the Notice of Motion dated 4 February 2000 with costs. The six opponents listed in the Holding Summons corresponded respectively to the first five opponents and the seventh opponent in CA Proceedings No 40929 of 1999.
20    On 8 March 2000 the Registry informed the applicant by letter that the procedure he adopted might be incorrect. That letter was soundly based. There was no reason why that Holding Summons should have received a separate Court of Appeal number and the Holding Summons should have been a Notice of Notice numbered in CA Proceedings No 40929 of 1999.
21 However, assuming that that procedure by Holding Summons was appropriate, an Ordinary Summons had to be filed within the three months referred to in Pt 51 r 4 subr 3 paragraph (a), that is by 6 June 2000. None was. A document described as a Summons for Leave to Appeal was filed on 7 June 2000 but in fact all it claimed was “an order granting leave to serve out of time an appeal” from Deputy Registrar Howe’s decision.
22    On 14 July 2000 a Notice of Motion was filed. That sought a review of the orders made on 26 June 2000 by Registrar Irwin in CA Proceedings No 40929 of 1999 and other relief directed to preventing construction of the beach volleyball stadium. That Notice of Motion was filed notwithstanding that Registrar Irwin’s orders of 26 June 2000 were made by consent. The Notice of Motion was returnable on 24 July 2000. On that day the applicant appeared in person. Representatives of the second to the sixth opponents also appeared. After debate recorded over seven pages of transcript, Registrar Irwin stood the Notice of Motion over to 31 July 2000 with a view to its referral to a Judge of Appeal. He also stood over to that day the Summons in CA Proceedings No 40123 of 2000.
23    On 31 July the matter came before Priestley JA. The applicant appeared in person and the six opponents by legal representatives, notwithstanding that the first opponent had not entered an appearance. The applicant did not seek to proceed with his Summons seeking a review of the Deputy Registrar’s decision of 6 March 2000, nor his Notice of Motion seeking a review of Registrar Irwin’s orders of 26 June 2000. Rather, he sought leave to discontinue on terms that each party bear its own costs.
24    Shortly before the luncheon adjournment, Priestley JA said:

“ … the way it looks to me at the moment is that the settlement of whatever date was in June, 26 June brought both 40929 and 40123 to an end, and as at that date the costs consequences were probably that it was there were no orders that anybody should pay the costs in regard to either of those matters unless the Registrar had made an order for costs against you in which case that would have stood by everyone else with no orders as to costs.
But that by continuing with this notice of motion since 26 June you have caused the other parties to incur costs, or some of them to incur costs, and every other event would be that if that notice of motion is dismissed you would be ordered to pay the costs, and I think that would work out as the costs from 26 June until and including today.”

25    Following the luncheon adjournment and following further debate, Priestley JA said:

“To me at the moment it seems very simple, you might not agree, and that is the proceedings you started in this Court were the ones numbered 40929. It came before Registrar Howe with a notice of motion in those proceedings 40929 which he dismissed. Thereafter you sought to take steps to appeal against his dismissal of that motion, and in dong so you filed a summons which got this later number of 40123, and through various appearances that is what has ended up before me today.
You have said that you would like proceedings to be discontinued on the same basis as the proceedings 40929 were discontinued. The other side with various Ministers - I have never had so many Ministers in Court before - all say they don’t agree to that, but it comes down in the end to them saying they want their costs since 16 July, and since I think your settlement of 26 June put an end to the proceedings before me today - quite apart from all the arguments about when the holding summons came to an end, and when you should have filed our other summons, I don’t see any answer to their legal proposition, and that leads me to the conclusion I should dismiss your proceedings today, and the ordinary rule is that proceedings are dismissed. The person who loses pays the costs.
I have seen in the papers here at various places you have asserted a public interest factor which you say should excuse you from that, but in the way these proceedings have gone, I don’t think I should [part] from the ordinary rule. The other side wants indemnity costs. I am not prepared to award those, but I think I should dismiss the summons with the other costs which should only be applicable at 6 July, but that is an outline of my thinking at the moment.”

26    The applicant then asked that the costs order be limited to costs after 24 July 2000. Priestley JA declined to do this. Priestley JA concluded the hearing by saying:

“After coming back to Court following the adjournment I indicated the view that I took in regard to the position that’s been reached in those proceedings. I stated it fairly comprehensively although I stated at the time it was a tentative view. Since then I have heard the parties on what I then said, and the result is that in substance I remain of the opinion that I then expressed. I don’t see any need to repeat what I then stated for the reasons then indicated.
I propose to dismiss Mr Wykanak’s motion today with costs. Additionally I need to say this, that in the course of discussion this afternoon, it emerged that the only claim by the opponents to that notice of motion in regard to costs is in regard to costs since 16 July now current. And my costs order is made on that basis.
Counsel for the opponents also drew to my attention that there is formally in the list today a summons by Mr Wykanak which was filed but was never served, and in respect of which the opponents were not asserting any entitlement to a costs order.
For the sake of finality I indicate that summons is dismissed but without any order as to costs. That summons being one which falls into the general proposition which is the foundation of my decision today, that when settlement of this matter was effected on 26 June 2000, that comprehended the proceedings in 40123 of 2000.
So the only orders I make are that the notice of motion before the Court in 40123 is dismissed with costs. I refuse an application which was foreshadowed on behalf of the opponents that that should be an indemnity order for costs.
I make the orders for costs notwithstanding Mr Wykanak’s submission that the public interest elements in the proceedings should have led to another result. But in view of the nature of the original order that has brought the proceedings to this Court which culminating today, does seem to me that there was never any real chance of the sort of matters that Mr Wykanak wanted to raise in the public interest being litigated on the merits in an appeal process in this Court. And that’s the reason for making the costs order against him. Even on the limited basis upon which it is made. On the other hand, I don’t think that the proceedings in all the circumstances need the making of an indemnity order for costs.
So now I have made all the various orders, are there any other orders the parties want?”

The applicant then said:
“Your Honour, in the course of giving the reasons for referred to in an order in 40123, when your Honour came to the Court orders - “

Priestley JA then said:

“Orders, to make it clear, I intend, and now do dismiss the motion that is before me today and the summons that is before me to both in 40123 of 2000, and no order for costs in regard to the summons, and the order for costs in regard to the motion as I have already elaborated.”

27    In Wentworth v Wentworth (1994) 35 NSWLR 726 at 733, Handley JA said that the relevant test which must be satisfied in a s 46(4) application is that the moving party must demonstrate that the principles in House v The King (1936) 55 CLR 499 are satisfied. Mahoney JA at 731 said that the moving party must demonstrate that the decision-maker was guilty of self-misdirection in principle, or that the orders made were plainly wrong. Powell JA said at 737 that it must be demonstrated that the discretion vested in the decision-maker plainly miscarried.
28    So far as paragraph 1 of the applicant’s Notice of Motion filed on 1 August 2000 is concerned, I am unable to perceive any error falling within these categories, or indeed any error at all in the approach which Priestly JA adopted in making the orders he did.
29    First, Priestley JA was correct to suggest that Court of Appeal proceedings number 40123 of 2000 were part of or dependent on Court of Appeal proceedings number 40929 of 1999, and the dismissal of the 1999 proceedings on 26 June 2000 terminated the 2000 proceedings as well, including the Summons filed in the 2000 proceedings on 7 June 2000 and the Notice of Motion filed in the 2000 proceedings on 18 October 2000.
30    Secondly, he was correct not to rely on any public interest factor as excusing the applicant from any usual costs order which might be appropriate. No relevant public interest factor capable of vindication in the Court of Appeal had been demonstrated by evidence or argument.
31    Thirdly, he was correct in ordering the applicant to pay the costs of the Notice of Motion of 14 July 2000. It was a procedural step which was completely futile and meritless. Another judicial mind might have acceded to the application of the second and the sixth opponents for indemnity costs. Priestley JA did not, but to the extent that the order he made was adverse to the interests of the applicant it was entirely justified.
32    Fourthly, Priestley JA was correct not to date the time from when his costs order operated from the date on which the Notice of Motion of 14 July 2000 was returnable, namely 24 July. It was possible that the opponents had incurred costs from the time when the Notice of Motion of 14 July was served and before 24 July. In argument, Priestley JA in fact made a slip favourable to the applicant in selecting 16 July as the relevant date rather than 14 July.
33    Fifthly, Priestley JA was correct not to order the applicant to pay the costs of the Summons, in view of the fact that it had not been served.
34    So far as paragraph 2 of the Notice of Motion filed on 1 August 2000 is concerned, the substance of the relief claimed has been achieved by the applicant. Paragraph 3 is not an order which this Court would ordinarily make and in any event it is largely futile since most of the issues raised in the proceedings were settled on 26 June 2000. No valid reason has been advanced as to why the claim for relief in paragraph 4 should be granted. Paragraph 5 is unintelligible.
35    For similar reasons to those stated by Priestley JA, the Notice of Motion filed on 18 October 2000 should also be dismissed. So far as it deals with discontinuance, there is nothing to discontinue. So far as it contemplates the proceedings continuing, they cannot be continued, for they are at an end.
36    The opponents asked for an indemnity costs order. They indicated a desire to rely on two letters of 5 September 2000 which were not in fact tendered. As events happened, the application for indemnity costs was not pressed.
37 The application heard by the court today in relation to the Court of Appeal proceedings in 1999 and 2000 by the Notice of Motion of 1 August and also the application in the Notice of Motion of 18 October are but the latest in a long series of pointless procedural steps. The applicant has caused applications to be made returnable on days when he has failed to appear, or has appeared but sought adjournments, or has appeared but refused to proceed with the applications in question. The application to Priestley JA, for example, fell into the last category: the initial approach of the applicant was to procure the entry of an appearance by the first opponent, followed by a discontinuance on terms that each party bear its or his own costs. The documents which the applicant has filed frequently fail to comply either with the Supreme Court Rules or with the principles which have been developed in relation to the form of such documents. Throughout this year at least the applicant has put the opponents to considerable trouble and cost. In particular, no procedural step has had any justification whatever since at least 26 June 2000. The applicant has wasted the time of the officials in the Registry. He has wasted the time of the Registrars in open court and no doubt outside court as they have endeavoured to penetrate the procedural complexities he has generated. He has wasted the time of all other litigants waiting for matters to be called on in the Registrars’ lists. It is vital that the applicant understand that in consequence of the termination of proceedings number 40929 of 1999 by consent on 26 June 2000 it is not open to him to take any further step in this Court in relation to the dismissal of his application by the Land and Environment Court on 1 December 1999, or in relation to any other aspect of CA Proceedings No 40929 of 1999.
38    I would propose that the Notices of Motion filed on 1 August 2000 and 18 October 2000 be dismissed with costs.
39    POWELL JA: I agree.
40    STEIN JA: I also agree.
41    POWELL JA: The orders of the court are those which have been proposed by Heydon JA.

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