Chen v Virgona [2008] NSWLEC 281 | Case summary

1 HIS HONOUR: The applicant, Mr Chen, has purported to appeal to this Court against a noise abatement order made by the Local Court on 4 March 2008. An issue arises at the outset in relation to this Court's jurisdiction to hear and determine the purported appeal. The resolution of this issue requires a brief factual summary of the proceedings in the Local Court and the process of appealing to this Court, as well as an examination of the legislative framework and rules governing appeals to this Court. 2 Mr Chen resides with his parents at 88 Bellevue Avenue, Denistone. He was the owner of two dogs, Bobby, a male Maltese terrier, and Minnie, a female Maltese terrier. Mr and Mrs Virgona are Mr Chen's neighbours residing at 86 Bellevue Avenue. Over a period of some years, Mr and Mrs Virgona have been concerned about Mr Chen's dogs' persistent barking, which has adversely affected Mr and Mrs Virgona's occupation of their premises. Apparently, the Local Court had issued a number of nuisance dog orders under s 21(2) of the Companion Animals Act 1998 to abate the persistent barking from the two dogs. However, the barking apparently continued, and Mr and Mrs Virgona continued to be affected adversely by it. 3 Mr and Mrs Virgona, therefore, made application to the Local Court by means of an application notice under s 268(1) of the Protection of the Environment Operations Act 1997 (NSW) for a noise abatement order. That application is dealt with by the Local Court under Pt 6 of the Local Courts Act 1982. The application came on for hearing, first, on 20 November 2007 before the Local Court at Ryde; secondly, was adjourned part heard to 26 February 2008; thirdly, was adjourned part heard to 4 March 2008, whereupon the hearing was concluded. 4 After the conclusion of the hearing, her Honour Magistrate Betts delivered judgment in the application. Her Honour stated she was satisfied (on the balance of probabilities) that the dogs' persistent barking constituted offensive noise, that Mr and Mrs Virgona's enjoyment of their property had been sufficiently diminished, and that a noise abatement order should be made requiring Mr Chen to abate the noise caused by the barking of the then remaining dog, Minnie. (The other dog, Bobby, had died during the course of the proceedings in the Local Court). 5 Magistrate Betts stated that the noise abatement order would date from the date of judgment, namely 4 March 2008, and that it would remain in force for a period of five years. The noise abatement order entered by the Local Court specified the date of the order as being 4 March 2008. 6 Mr and Mrs Virgona then made application under s 273 of the Protection of the Environment Operations Act 1997 for an award of costs. The Local Court had power to order costs not only under that section but also under s 62 of the Local Courts Act 1982. The application for costs was made at the conclusion of the hearing of the substantive application on 4 March 2008 but was adjourned to 8 April 2008 for hearing. Apparently that hearing was again adjourned to 29 April 2008. After hearing the application for costs, the Local Court ordered Mr Chen to pay Mr and Mrs Virgona's costs in the sum of $11,250.55. 7 Mr Chen was dissatisfied with the decisions of the Local Court, first, to make a noise abatement order and, secondly, to award costs against him. Mr Chen's principal reason for being dissatisfied with the noise abatement order appeared to be that there was a lack of evidence that Mr Chen's dogs had made the barking noise and that it constituted offensive noise. 8 I note that the Local Court had power under s 272 of the Protection of the Environment Operations Act 1997 to revoke or vary a noise abatement order. However, Mr Chen did not apply to the Local Court for it to take either of these courses of action. Instead, Mr Chen chose to appeal against the Local Court's decision to make the noise abatement order to this Court. He did not separately appeal the decision of the Local Court to award costs against him. 9 On 23 May 2008, Mr Chen visited the Land and Environment Court registry in person for the purposes of lodging an appeal. Mr Chen says that he was told by the Land and Environment Court registry counter staff that he needed to file a Class 6 appeal and also needed to seek leave, by notice of motion, to extend the time in which to appeal. He was provided with the requisite forms. Mr Chen completed and filed a document called "Appeal Class 6" for the purposes of commencing the appeal proceedings in the Land and Environment Court. Mr Chen also completed and filed a notice of motion seeking leave of the Court to file the Class 6 appeal as he was out of time to lodge the appeal. Subsequently, on 8 September 2008, Mr Chen filed an affidavit explaining the circumstances for the delay in filing the appeal. Mr Chen apparently filed this affidavit in response to the Court's directions that he file material on which he wished to rely in support of his application for leave to extend the time to appeal. 10 Appeals in Class 6 of the Land and Environment Court's jurisdiction include appeals under s 31 of the Crimes (Appeal and Review) Act 2001 by a person who has been convicted or sentenced by a Local Court with respect to an environmental offence: see s 21A of the Land and Environment Court Act 1979. (The other appeal in Class 6 is under s 42 of the Crimes (Appeal and Review) Act 2001 but that is an appeal by prosecutors and is not applicable in this case). An environmental offence is defined in s 3(1) of the Crimes (Appeal and Review) Act 2001 to be an offence for which summary proceedings may be taken before the Land and Environment Court, whether or not summary proceedings for such an offence may also be taken before any other Court, and includes any offence arising under the environmental protection legislation within the meaning of the Protection of the Environment Administration Act 1991. 11 The making by the Local Court under s 268 of the Protection of the Environment Operations Act 1997 of a noise abatement order does not involve the conviction or sentencing of a person against whom an order is made, for an environmental offence. An offence is committed only when a person contravenes a noise abatement order that has been made by the Local Court: see s 269 of the Protection of the Environment Operations Act 1997. 12 In this case, the proceedings before the Local Court concerning the application to make the noise abatement order were under s 268, not for any contravention of a noise abatement order under s 269. Hence, there is no conviction or sentence of the Local Court against which Mr Chen can appeal pursuant to s 31 of the Crimes (Appeal and Review) Act 2001. Section 64 of the Local Courts Act 1982 does not make applicable the Crimes (Appeal and Review) Act 2001 to an appeal against a noise abatement order. For these reasons, the purported Class 6 appeal by Mr Chen is incompetent. 13 Nevertheless, there is a statutory right of appeal to the Land and Environment Court against a noise abatement order. This statutory right is in s 290(1) of the Protection of the Environment Operations Act 1997 which provides that: "(1) Any person: (a) given a noise control notice, or (b) against whom a noise abatement order is made, may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order." 14 Section 17 of the Land and Environment Court Act 1979 provides that the Court has jurisdiction, referred to as class 1 of its jurisdiction, to hear and dispose of: "(a) appeals under Part 9.2 of the Protection of the Environment Operations Act 1997." 15 There are two preliminary points to be noted about this appeal to the Land and Environment Court. 16 First, I note that s 290(2) of the Protection of the Environment Operations Act 1997 provides that Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001 (as applied by s 64 of the Local Courts Act 1982) do not apply to a noise abatement order. Section 64 of the Local Courts Act 1982 deals with appeals in relation to any order arising from an application notice under Pt 6 of the Local Courts Act 1982. The orders that could arise from such an application notice include the substantive order sought in the application notice, for example, in this case, the noise abatement order, but can also include an award of costs under s 62 of the Local Courts Act 1982. Section 64 of the Local Courts Act 1982 sets out procedures for governing how appeals can be made against such orders. Section 290(2) of the Protection of the Environment Operations Act 1997 may have as its purpose the avoidance of doubt to make clear that Parts 2, 3 and 5 of the Crimes (Appeal and Review) Act 2001 (as applied by s 64 of the Local Courts Act 1982) do not apply to a noise abatement order. This would leave the possible operation of these Parts to other orders arising from an application notice under Pt 6 of the Local Courts Act 1982, such as a costs order. 17 Secondly, I note that the Land and Environment Court has power under s 31 of the Land and Environment Court Act 1979 to order that proceedings which have been irregularly commenced in the incorrect class of the Court's jurisdiction be dealt with in the appropriate class. Hence, proceedings irregularly commenced in Class 6 could be ordered to be dealt with under Class 1 of the Court's jurisdiction. However, the proceedings would have to otherwise comply with any statutory requirements, including time limits, for commencement of proceedings in the Court. 18 In this case, Mr Chen had a statutory right under s 290(1) of the Protection of the Environment Operations Act 1997 to appeal to the Land and Environment Court against the noise abatement order made by the Local Court. However, s 290(1) expressly provides the time within which such an appeal must be commenced, namely "within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order." 19 I note that the Protection of the Environment Operations (General) Regulation 1998 does prescribe in cl 59 a period of seven days for an appeal against a noise control notice relating to the keeping of an animal. A noise control notice is different to a noise abatement order. However, there is no period prescribed for an appeal against a noise abatement order. Hence, the 21 day period specified in s 290(1) continues to apply. 20 That 21 day period is stated to be after "the making of the order." In this case, the noise abatement order was made by the Local Court on 4 March 2008. The fact that the proceedings in the Local Court were not concluded until 29 April 2008, when the Local Court made an order for costs under s 273 of the Protection of the Environment Operations Act 1997, is not relevant. The award of costs under s 273 is distinct from the making of a noise abatement order under s 268(4) of the Protection of the Environment Operations Act 1997. An appeal under s 290(1) is only in respect of the noise abatement order and it is the making of that order that commences the 21 day period for an appeal under s 290(1). 21 Hence, Mr Chen had until 25 March 2008 (being 21 days after the making of the noise abatement order on 4 March 2008) to appeal to the Land and Environment Court under s 290(1) of the Protection of the Environment Operations Act 1997 against the noise abatement order made by the Local Court. Unfortunately, Mr Chen did not file his appeal with the Land and Environment Court until 23 May 2008, almost two months after the expiry of the period for lodging an appeal. 22 The Protection of the Environment Operations Act 1997 does not grant the Land and Environment Court power to extend the time period for an appeal prescribed under s 290(1). As I have noted, the regulations could provide for an alternative period or for an extension of the period to appeal: see the regulation making power in s 290(1) of the Protection of the Environment Operations Act 1997. However, no such regulation has been made with respect to an appeal against a noise abatement order to the Land and Environment Court. 23 The Land and Environment Court Rules 2007 do contain a provision fixing the time for an appeal (namely Pt 6 r 6.1(1)), and also a provision allowing the Court to extend any time fixed by the rules (Pt 6 r 6.3). However, the rule fixing the time for an appeal does not apply if the time within which an appeal may be made to the Court is expressly provided for by or under the Act that confers the right of appeal (Pt 6 r 6.1(2)). In this case, the time within which an appeal to the Land and Environment Court may be made is expressly provided for by s 290(1) of the Protection of the Environment Operations Act 1997. That also confers the right of appeal. Hence, Pt 6 r 6.1 of the Land and Environment Court Rules 2007 which fixes a time for appeal does not apply. As the time is not fixed by the Land and Environment Court Rules, the Court's other power to extend time to appeal fixed by the rules (under Pt 6 r 6.3) also does not apply. For the same reason, the power of the Court under Pt 1 r 1.12 of the Uniform Civil Procedure Rules 2005 does not apply. The time for appeal is fixed by s 290(1) of the Protection of the Environment Operations Act 1997 and not by the Uniform Civil Procedure Rules 2005. 24 Part 50 r 50.3 of the Uniform Civil Procedure Rules 2005 also contains a provision specifying a period of time within which an appeal may be lodged (namely within 28 days after the material date) and allowing the court to which the appeal is made power to extend the time within which the appeal must be filed: see Pt 50 r 50.3(1)(a) and (c). Any application for an extension of time must be included in the summons commencing the appeal. However, the provisions of Pt 50 r 50.3 are subject to any Act that makes provision to the contrary. 25 In this case, s 290(1) of the Protection of the Environment Operations Act 1997 provides that an appeal to the Land and Environment Court against a noise abatement order must be made within 21 days after the making of the order. In these circumstances, the Uniform Civil Procedure Rules 2007 cannot override the express statutory provision which sets the time period for an appeal. The power to extend time under r 50.3(1)(c) is, therefore, not available to extend the time period expressly specified by s 290(1) of the Protection of the Environment Operations Act 1997. 26 The result is that Mr Chen's purported appeal to the Land and Environment Court filed on 23 May 2008 was outside the time for appeal specified by s 290(1) of the Protection of the Environment Operations Act 1997 and there is no power in the Land and Environment Court to extend the time within which to appeal. The appeal is therefore incompetent. The Land and Environment Court has no jurisdiction to hear and determine the appeal. This is not an irregularity to which s 31 of the Land and Environment Court Act 1979 applies. Rather there are, and can be, no competent proceedings before the Court, which can be dealt within in an appropriate manner. 27 I note for the record that the utility of Mr Chen's appeal may have been overtaken by events. The Court was advised at the hearing today that the remaining dog, Minnie, had died on 18 September 2005. As I earlier noted, the other dog, Bobby, had died during the course of the proceedings before the Local Court. There are, therefore, no longer any dogs that can be the subject of the noise abatement order. There would appear to be little utility in a Court determining an appeal as to whether it should make a noise abatement order in relation to dogs barking where the dogs no longer are alive. 28 The noise abatement order is not discharged by these recent events; it still would apply. However, the subject matter of the noise abatement order no longer exists and it, therefore, has no work to do. If Mr Chen considers nevertheless that the order should be revoked, as I have noted, the Local Court has power under s 272 of the Protection of the Environment Operations Act 1997 to revoke a noise abatement order. It will be a matter for Mr Chen to decide whether there is any utility in making an application to discharge an order which no longer has any work to do. 29 The consequence of the above reasons is that the appeal by Mr Chen should be dismissed. 30 Mr and Mrs Virgona, the respondents to Mr Chen's purported appeal, then make application that Mr Chen pay their costs of the proceedings. As I have noted, the only right of appeal that did exist against the noise abatement order was under s 290(1) of the Protection of the Environment Operations Act 1997. That appeal is heard and determined in Class 1 of the Court's jurisdiction. The Land and Environment Court Rules 1997 have specific provisions dealing with applications for costs in proceedings in Classes 1, 2 and 3 of the Court's jurisdiction. Part 3 r 3.7(2) of the Land and Environment Court Rules 2007 provides that: "The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." 31 Mr Horan, counsel for Mr and Mrs Virgona, submitted that it was fair and reasonable in all the circumstances of the case that the Court make an order for the payment of costs. In particular, reliance was placed on the circumstance in r 3.7(3)(f) that Mr Chen commenced proceedings which did not have reasonable prospects of success or it was otherwise unreasonable to commence the proceedings. Mr Horan submitted that the proceedings were patently outside the time period allowed under s 290(1) of the Protection of the Environment Operations Act 1997 and that any application for leave to extend the time had no reasonable prospects of success. 32 The respondents relied upon a letter sent by their solicitor to Mr Chen's solicitor dated 29 August 2008. In that letter, the respondents' solicitor expressed the opinion that Mr Chen "has no basis to be granted leave" to extend time within which to appeal and invited Mr Chen to withdraw his application so as to avoid further costs being incurred. 33 The letter from the respondents' solicitor did not, first, state that the proceedings had been commenced in the wrong Class of the Court's jurisdiction and that instead they should be commenced in Class 1; secondly, did not state that there is no power to extend the time period to appeal under s 290(1) of the Protection of the Environment Operations Act 1997; and, thirdly, did not deal with the particular matters which the applicant was likely to rely upon and in fact did rely upon for seeking leave to appeal or to extend the time within which to appeal and explain why such matters would not be persuasive. As a consequence, I do not consider that the respondents' solicitors' letter sufficiently put Mr Chen on notice as to the fundamental problems about which I have spoken above, so as to make it unreasonable for Mr Chen to have continued with his claim in the face of the advice in the letter. 34 Mr Chen's solicitor, Mr Jiang, relied upon an affidavit of Mr Chen where Mr Chen explains why he filed his appeal late. That explanation includes that Mr Chen went to the Ryde Local Court requesting lodgement of his appeal on 4 March 2008, right after the Local Court made the noise abatement order. However, Mr Chen was advised by the Ryde Local Court that he would have to wait until finalisation of the whole proceedings and that the proceedings were not finalised on 4 March 2008. Mr Chen also had asked for the documents and transcripts of the Court on 4 March 2008, but again was advised by the Ryde Local Court that he would have to wait until the conclusion of the respondents' application for costs, which application was to be heard in April 2008. As it happens, the costs hearing was not concluded until 29 April 2008. It was only after that that Mr Chen came to the Land and Environment Court on 23 May 2008 to lodge the appeal. 35 Mr Chen also refers to the fact that upon his presenting himself at the Land and Environment Court registry, they provided the information that he needed to appeal in Class 6 of the Court's jurisdiction, advised that he could make an application for leave to appeal outside of time and provided him with the relevant notice of motion. Mr Chen was not legally represented at that point and he followed that course. 36 The events that I have chronicled about the misinformation provided by the relevant Court registries undoubtedly has led to a protraction of these proceedings. It may well have been if the true situation had been understood at the outset, then there would not have been an appeal and certainly the matter would not have continued until today. 37 Although I have concluded that the appeal is incompetent, my reasons for decision reveal that the matter is not entirely clear at first blush. It takes a careful working through of the legislative scheme in order to see the complications. I do not consider that in the circumstances it can be said that Mr Chen acted unreasonably in commencing the appeal against the noise abatement order. Moreover, after the commencement, no one, including the respondents, put to Mr Chen the fundamental reasons why the proceedings were incompetent. As I have said, the only letter that was provided from the respondents to the applicant did not deal with the matters which I have explained above are dispositive of the appeal. In these circumstances, I also do not consider that Mr Chen acted unreasonably in maintaining the proceedings until today. 38 The fact that the last remaining dog died a week ago is relied upon by both the applicant and the respondents in support of their respective submissions as to costs. Mr Horan, counsel for the respondents, says that once the last dog died, there was no utility in continuing with these proceedings because the noise abatement order would no longer have any work to do. Accordingly, it was unreasonable to continue the proceedings after 15 September 2008 including up until today. On the other hand, Mr Jiang, the solicitor for Mr Chen, says that that fact might have improved the prospects of success of an appeal, if power could be found to extend the time within which to appeal, because then there would be even more reason for the Court to not make a noise abatement order as there would be no dogs in respect of which the noise abatement order could apply. I do not consider the extra fact that the last dog died to be so material as to make it unreasonable for the applicant to have continued for one more week until the hearing today. 39 In all these circumstances I am not satisfied that it is fair and reasonable to make an order for costs of these proceedings and I do not do so. 40 Accordingly, the orders of the Court will be:

Chen v Virgona

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Judgment (10 paragraphs)

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Cited By (6)