Duncan v Moore and Ors

3. Further or in the alternative, a declaration that the erection is a breach of s 151B(2A) of the Parliamentary Electorates and Elections Act.

4. An order restraining the respondents, their servants or agents or any persons on their behalf from erecting posters (within the meaning of s 151B of the Parliamentary Electorates and Elections Act) in contravention of any of the Parliamentary Electorates and Elections Act, the Electricity Supply Act or the Woollahra Local Environment Plan on powerpoles within the boundaries from time to time of the electorate of Bligh.

5. An order that the respondents remove the posters still affixed to powerpoles within the boundaries of the electorate of Bligh.

7. Such further or other order as the Court deems fit.

As a matter of convenience, I will hereinafter refer to the Electricity Supply Act as "the Electricity Act" and the Parliamentary Electorates and Elections Act as "the Elections Act".

By Notice of Motion filed 21 June 1999 returnable before me on 25 June 1999 as Duty Judge, the second respondent moves the Court for an order that the proceedings be dismissed in relation to any claim for relief based on alleged breaches of s 65 of the Electricity Act and s 151B of the Elections Act. The second respondent also seeks other relief in respect of which argument has not so far taken place, namely that the proceedings otherwise be stayed or that within seven days the applicant file and serve Points of Claim setting out the grounds upon which he claims for relief under s 123 of the EP&A Act.

Mr Kildea appeared for the second respondent and Mr McEwen SC appeared on behalf of the first respondent. The third respondent has entered a submitting appearance in the proceedings.

Although the applicant is a barrister, he appears on his own behalf in a private capacity.

The argument in support of the Notice of Motion is based entirely upon the Court's jurisdiction to hear and determine and to grant relief in respect of a breach of the Electricity Act or the Elections Act, neither of which is a planning and environmental law specified in s 20(3) of the Land and Environment Court Act (the Court Act).

Mr McEwen supported the second respondent's Notice of Motion on behalf of the first respondent.

Mr Duncan contends that the Court can hear and dispose of the matter arising under the Electricity Act and the Elections Act pursuant to s 16(1A) of the Court Act. Otherwise he recognises that, without leave pursuant to s 25 of the EOP Act, he cannot seek relief by way of a declaration in respect of the breaches of those statutes.

Mr Duncan contends that, as the claim for relief in respect of the alleged breach of Woollahra LEP is clearly within jurisdiction pursuant to s 123 of the EP&A Act and s 20(1) of the Court Act, then, pursuant to s 20(2) in conjunction with s 20(3), the Court has power to grant any declaratory relief relevant to the exercise of its jurisdiction including relief arising as a consequent of a breach of another Act. According to Mr Duncan, if the Court finds a breach of the EP&A Act in the exercise of its fundamental jurisdiction it is thereafter entitled to find a breach of the other Acts pursuant to the declaratory power in s 20(2) and s 20(3) of the Court Act.

Mr Duncan also asked the Court to assume for the purpose of the argument that the applicant is successful on the claim alleging breach of Woollahra LEP. Moreover he also assumed that the following matters are arguably relevant to the question of discretion:- i) That the respondents acted in breach of the Elections Act.

ii) That the respondents acted in breach of the Electricity Act.

iii) The respondents were aware of the breaches but, notwithstanding that awareness, continued the breach.

In that case, so the argument goes, the Court would be required to make a further determination in respect of the alleged breaches of the Acts, other than the EP&A Act, for the purpose of exercising its discretion and thus be entitled to make a declaration in relation thereto.

The jurisdiction of the Court is defined in Pt III of the Court Act.

Class 4 proceedings are dealt with by s 20 which provides that the Court has jurisdiction to hear and dispose of proceedings under, inter alia, s 123 of the EP&A Act.

Section 20(2) provides:- (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and

(d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract.

The other relevant provisions are s 22 and s 23:- 22. Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

23. Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

Section 22 does not extend the jurisdiction of the Court, but rather it confers power to grant relief in proceedings within jurisdiction.

The Court is both a superior court of record and a court of limited jurisdiction.

In National Parks and Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, Gleeson CJ, as he then was, explained why the basis for a recognition of the "pendant" or "accrued" jurisdiction of the Federal Court is completely irrelevant to the Land and Environment Court. He also noted that there is no corresponding section in the Land and Environment Court Act to s 32 of the Federal Court Act which gives that court jurisdiction in respect of matters not otherwise within its jurisdiction that are "associated' with matters in which the jurisdiction of the court is invoked.

Gleeson CJ made an important distinction at 581:- An inherent or implied power in a court to do all that is necessary to enable it to act effectively within its jurisdiction is very different from an implied power in a court of limited jurisdiction to resolve the entire subject matter of a controversy part of which falls within the express jurisdiction of the court.

Recognising that claims for relief of the kind described in s 20(2) will sometimes form only part of a wider controversy between the parties, the Chief Justice went on at 582:- The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim. Such questions might be questions of such a nature that they could also very well have arisen for decision in another forum.

However, where it is s 20(2) that is the basis of the application to the court, then the available powers to grant relief are to be found in the terms of the subsection, read together with s 22. In this connection s 22 is not to be understood as extending the jurisdiction of the court, but as conferring on it full power to exercise a jurisdiction that is granted elsewhere.

At 585, Kirby P, as he then was, referred to the approach to the construction of a statute creating a court of limited jurisdiction as follows:- The establishment of a superior court of record will be taken to carry with it all the powers which are necessary to enable that court to act effectively within the jurisdiction conferred: cf John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476. The very fact that the Land and Environment Court is such a superior court of record will import the implication that, within its defined jurisdiction, amply construed, it will be entitled to do the large range of things that superior courts of record traditionally do. This approach to the elaboration of its powers is appropriate because the alternative is the Land and Environment Court may resolve part only of a dispute. For the resolution of the rest of the dispute, the parties will then be required to proceed to another court if they have the will, the funds and the patience to do so. Inevitably, that will involve cost, delay, inconvenience and even the risk of inconsistent findings. It is a prospect which I do not welcome. I would strive to avoid it, if I could properly do so.

However, he was driven to the same conclusion as the Chief Justice, namely that, by its terms, s 22 confers on the Court power to grant remedies "in every matter before the Court" but only in respect of every matter properly before the Court within jurisdiction conferred by statute.

The position as it was outlined by the Court of Appeal in Stables Perisher remained until the Court Act was amended in 1993 by the introduction of s 16(1A) as follows:- (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

The purpose of the legislature in enacting s 16(1A) was to reduce the number of cases which might give rise to a multiplicity of proceedings by amplifying, to some extent, the jurisdiction of the Land and Environment Court Act (per Gleeson CJ in Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 at 204).

However, the New South Wales legislature has drawn a significant distinction between a matter that is ancillary to a matter that falls within jurisdiction and the wider notion of a matter not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the Court is invoked (see s 32 of the Federal Court Act).

In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Gibb J observed at 496 that generally speaking "given identity of parties one matter is associated with another if the two matters arise out of substantially the same or closely connected facts" .

In N Stephenson Pty Ltd v RTA of NSW (1994) 83 LGERA 248 I expressed an opinion that the introduction of s 16(1A) did not widen the Court's jurisdiction but rather it was no more than a machinery or supplementary provision. I respectfully recognise what was said by the Chief Justice in Nix v Dunn , namely that the subsection amplified the jurisdiction to some extent. So far, the extent to which the jurisdiction has been enlarged has not been defined. It is better in my view that for the time being it be left to be decided on a case by case basis.

Nevertheless it is not open for the Court to take the meaning of the word "ancillary" beyond its true meaning as something that is subservient or subordinate to another thing.

In Minister v Vaughan-Taylor (1991) 73 LGRA 115 at 123 Meagher JA expressed the view that the Court could not grant relief in respect of a matter not within jurisdiction even where it was necessary to pronounce on rights as a step in the cause of action within jurisdiction as follows:- The Land and Environment Court would have no jurisdiction to grant relief, even by way of declaration, against the Minister. However, the question of the invalidity of the lease was a step in the cause of action which the Land and Environment Court did have jurisdiction to determine. The Minister was joined not because any relief was sought against him but because an acceptance of the first respondent's case would involve pronouncing on his rights, a matter in which he was interested.

I cannot extract anything from the language used in s 16(1A) that assists me to conclude that the underlying opinion supporting the obiter conclusion stated by Meagher JA in Vaughan-Taylor should be regarded as having been rendered redundant by the amendment.

Whether the applicant's claim for relief is within jurisdiction

Even if the Court adopts the assumptions which Mr Duncan invited the Court to make, I cannot accept that the granting of relief by way of declaration in respect of the alleged breaches of the Elections Act or the Electricity Act will be within jurisdiction. Section 20(2)(c) specifically refers to declarations of right in relation to any right, obligation or duty conferred or imposed by a planning or environmental law within the meaning of s 20(3) or the exercise of any function conferred or imposed by a planning or environmental law.

Any alleged breach of the statutes which are not a planning or environmental law does not relevantly provide any assistance to the resolution of the matter within jurisdiction. They are not matters which must be proved, established or determined in order to hear and dispose of the matter that falls within jurisdiction. The exercise of the Court's discretion whether or not to grant relief arises only after jurisdiction has been otherwise shown to exist.

Section 22 of the Court Act provides the legislative basis to exercise jurisdiction in a manner that attains the stated object so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. The section does not, however, amplify the jurisdiction of the Court.

The additional matters in respect of which the applicant seeks relief do not provide any basis for establishing the claim for relief in respect of the breach of the provisions of Woollahra LEP.

I agree with Mr Kildea that the applicant's claims for relief by way of declarations that the respondents breached the Elections Act or the Electricity Act are "in addition" to and not ancillary to the matter within jurisdiction. They may well be associated with the matter within jurisdiction in the context of the same set of facts. For the reasons already outlined, the scope of an ancillary matter is not as wide as an associated matter.

Finally, it is relevant to note that s 20(2) refers to the jurisdiction of the Court to "hear and dispose of proceedings" , whereas s 16(1A) refers to a jurisdiction to "hear and dispose of any matter" . In a series of decisions in the High Court in relation to the scope of jurisdiction of the Federal Court under the Trade Practices Act, it has been made clear that a "matter" extends to the whole of a controversy between the parties. Section 20(2) creates a jurisdiction to hear and dispose of the proceedings identified in subclauses (a), (b), (c) and (d). I find it unlikely that Parliament intended, by the device of language used in s 16(1A), to widen the jurisdiction to encompass the whole of a controversy in circumstances where the specific matters enumerated in s 20(2) form only part of the wider dispute. The jurisdiction of the Court to hear and dispose of class 4 proceedings is conferred by s 20 and no attempt has been made in terms to amplify the scope of that section. I therefore maintain the view expressed in Stephenson that the matters brought within the Court's jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction.

Section 16(1A) enables the Court to give effect to its jurisdiction without the parties having to first seek relief in another tribunal or court in respect of some aspect of the matter which is relevant to the proceedings.

In my opinion, the respondents' contention that relief sought is not the enforcement of a right, obligation or duty conferred or imposed by a planning and environmental law is correct.

The Court has not been able to conclude therefore that the relief sought in respect of the alleged breaches of the Electricity Act and the Elections Act is within the jurisdiction of this Court.

The second respondent is entitled to an order which has the effect of dismissing the claims for relief in that respect.

However, the Court recognises that it may be open for the applicant to rely on the breaches of the statutes which are not a planning or environmental law in order to support a submission in opposition to an application by the respondents for the Court to exercise its discretion not to make any orders in the event that the breach of the provisions of Woollahra LEP is established. I am not therefore convinced that the Court is precluded from pronouncing a finding in respect of a breach of a statute which would not otherwise be within jurisdiction where it is no more than a step in the cause of action that is within jurisdiction. Whether or not it becomes necessary to finally determine that issue in these proceedings will depend how, and if, it arises at the final hearing.

The applicant is ordered to amend the Amended Points of Claim already filed by deleting the claims for relief in paragraphs 2 and 3 and the reference to s 151B of the Parliamentary Electorates and Elections Act as well as the Electricity Supply Act in paragraph 4.

The applicant has conceded that the narrowing of the claim has the consequence that the complaint regarding the affixing of campaign posters to power poles must be restricted to the area of the Council of Woollahra. This amendment must also be made in the Further Amended Points of Claim.

53. Any remaining questions arising out of the Notice of Motion are reserved.

54. The matter is to be listed for callover and directions before the Registrar at 9.00 am on 8 July 1999.

55. The parties are directed to bring in Short Minutes of Orders to reflect the Court's determination.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.