Duncan v Moore & Ors

Duncan v Moore & Ors - [2000] NSWLEC 64 - NSWLEC 2000 case summary — Zoe

[38]

… the leave was granted ex parte, it was granted in circumstances when the question of leave being granted under s 25(3) had not been brought to the notice of the respondents as an issue , and that accordingly they did not have an opportunity to direct their minds to the question and they were therefore denied procedural fairness. 32. Mr Duncan was very careful to contact all the respondents several times, as the letters attached to his affidavit demonstrate, but although he indicated in those letters that he would approach this Court and although he repeatedly urged the respondents to seek legal advice, he did not indicate that he was seeking leave under s 25(3). 33. I think that it is appropriate, where the order granting leave has been made ex parte without express notice to the respondents , and where they have now had an opportunity to consider their position and to make submissions in relation to it, that I should set it aside and consider it afresh. So far as it is necessary for the purpose of today's judgment, that is if I am wrong in my first finding that there is no jurisdiction to entertain the issue under s 25(1), then I do so set aside the leave I granted on 18 March 1999. 34. The question then is whether the preconditions for the granting of leave that are set out in s 25(3) are met. I do not think they have been met. 35. Subsection (a) requires that the proceedings are not an abuse of the process of the Court. I mean no disrespect to Mr Duncan, whom I think has argued this case very well and has brought to the attention of this Court, indeed probably now to the public, the effect of s 25(1) and its consequences, when I say that I think that these proceedings are in terms of s 25(3) an abuse of the process of the Court. They are an abuse of the process of the Court because they are coloured by the election. Mr Duncan is a candidate. There is no evidence of serious environmental harm. There is a collateral purpose behind the proceedings which is a political one. And it seems to me, in those circumstances, that these are not proceedings which should properly be given leave within s 25 . 36. Even if, however, I was wrong on that point and there was a serious question to be tried in relation to s 25(1), then I think the balance of convenience favours the respondents and not the applicant. There is no evidence of serious environmental harm. …. 37. There are only four days to go to this election. It seems to me, in weighing up the balance of convenience, that the convenience to the candidates having put up their posters and leaving them there for the next four days outweighs the environmental harm which I have found to exist and outweighs the breach of the Parliamentary Electorates and Election (sic) Act 1912, from which that harm flows. In those circumstances I say that, if there is a serious question to be tried on the issue that arises under s 25(1), the balance of convenience does not favour granting of an injunction. … 39. The effect of making no interlocutory injunction at this stage leaves the proceedings on foot to be disposed of as substantive proceedings at some time which is convenient to the Court. There have been no submissions put to me on the question of costs. In circumstances where the substantive proceedings have still to be heard, the appropriate order to make in relation to costs is merely to reserve the question of costs. [emphasis added].

[57]

The further Amended Points of Claim of 8 July 1999 continue the following relevant assertions by Duncan regarding the erection of posters on powerpoles in the Electorate of Bligh: 5. The erection was and continues to be a contravention of s 151B (2A) of the Electoral Act. PARTICULARS 5.1 The powerpoles are under the control or management of an instrumentality or agency of the Crown and/or a statutory body representing the Crown; 5.2 The section prohibits the erection of posters on powerpoles. 6. The erection was and continues to be a contravention of s 65 of the Electricity Supply Act. PARTICULARS 6.1 The erection is an interference with electricity works within the meaning of that Act. 7. The erection was a contravention of the Woollahra Local Environmental Plan ('the WLEP') and continued to be so up to and including 16 May 1999. PARTICULARS 7.1 The erection requires development consent under clause 16 (2) and 25B(2) of the WLEP. 8. The third respondent, his servants or agents have erected posters on powerpoles within the electorate of Bligh ('the third Respondent's erections') and some of the third respondent's erections remained as at 16 May 1999. 9. The third respondent's erections are and continue to be a contravention of the Acts and planning instruments referred to in paragraphs 5 to 7 above. … 14. The posters cause environmental harm. PARTICULARS 14.1 they deteriorate over time; 14.2 they cause environmental harm to the visual amenity of the area in which they are erected; 14.3 they pollute the environment generally; 14.4 they restrict airflow around the powerpoles; and 14.5 they cause cost, expense and diminution in the assets of Energy Australia. 15. On a date unknown to the applicant, the Divisional Returning Officer for the seat of Bligh requested the second respondent to remove his posters erected on powerpoles in the electorate. PARTICULARS 15.1 A telephone conversation between John Arnold and an unnamed person on behalf of the second respondent. 16. On a date unknown to the applicant Woollarah (sic) Council requested the first respondent to remove her posters erected on powerpoles in the electorate. PARTICULARS 16.1 Particulars will be supplied after discovery. 17. The first and second respondents have refused or neglected to accede to the requests pleaded in paragraphs 16 and 17. (sic) PARTICULARS 17.1 As at 16 May 1999, posters or remnants of posters erected by or on behalf of the first and second respondents continued to be erected on powerpoles within the boundaries of the electorate of Bligh.

[67]

This is an application for a stay or dismissal of the proceedings… …
Much has been said about what the respondents have done to varying degrees in order to meet the complaint raised by the applicant to the effect that the posters were erected and have not been subsequently removed. There is now a concession that such posters as were erected within the Woollahra area by the first respondent have been removed. The same concession is not made in regard to the actions of the second respondent. Mr Duncan informs the Court from the bar table that there may be "ten'ish" remnants of posters which remain from the original posters erected by the second respondent and at the hearing he would seek to lead evidence to that effect.
Submissions have been made about the practice of the Court to confine its power to grant declaratory relief so that it is not involved in answering abstract or hypothetical questions. Generally circumstances might be identified where the only relief that is ultimately sought is a declaration and no orders flow from it. …
The respondents have drawn on established authority to put the proposition that in order to restrain future actions there first must be shown a substantial hardship to the applicant. I am not sure that principle is necessarily applicable in proceedings of this nature where the Court is asked to enforce a public duty or an obligation which arises under a statute such as the EP&A Act which itself has regard to public rights and interests. Nevertheless, the hardship might be the detriment that could flow by way of injury to the environment if the practices which are here the subject of challenge are left unchecked. Mr Duncan also made some points about the ramifications of any decision in these proceedings extending beyond the Municipality of Woollahra and applying as a warning generally to other candidates in elections that they need to heed provisions such as those contained in the LEP. 8. There has been a lot of to-ing and fro-ing between the parties and at various times undertakings have been sought. Mr Duncan asserts that if the opportunity had been taken at some earlier time to remedy the situation, then the necessity for these matters to proceed would not now exist. All of those things may well be correct. 9. There are a number of flaws in the argument put forward by the applicant in support of his submission that the proceedings should be maintained on foot and these need to be dealt with. Firstly, there is no evidence, either of a substantive or even inferential kind, that would lead the Court to have the remotest inclination to find that either of the remaining two respondents are likely to offend again. The third respondent has entered a submitting appearance. 10. Secondly, the utility of making any orders is very much in question, even if the applicant was successful in obtaining a declaration to the effect that he seeks. This is so given that there are now, by admission, no relevant offending posters in existence so far as the first respondent is concerned and those that do remain in the case against the second respondent are, firstly, remnants and secondly, few in number. I do not accept that the existence of remnants beyond those identified by the applicant is a real possibility. On the evidence as it stands, surveys have been undertaken on behalf of both respondents. The surveys disclose that the direct evidence produced by the applicant is no longer in existence. 11. I do not mean to demean the ultimate argument that posters such as are the subject of these proceedings can cause environmental harm . I do not seek to make any judgment about the particular behaviour of the respondents in this particular case and the seriousness of the breach of the EP&A Act that may or may not have occurred.
The serious problem that the applicant has is that the Further Amended Points of Claim insist that the Court make a declaration that the erection of the posters requires development consent. In that respect I accept the strength of the submission made by both respondents and particularly by Mr Kildea in reply that the nature of the posters which are the subject of these proceedings is such that they should properly be regarded as temporary signs which prima facie fall within the terms of a temporary sign described in the table to cl 25B of the LEP. Applying the most basic rules of construction and addressing the words as they appear according to their ordinary meaning, a poster erected for the purpose of an election, be it of any kind, is of a temporary nature. 13. The election that was being held at the relevant time was a State election. Nevertheless, the State election involves candidates standing in various local electorates. The posters which are the subject of evidence relate only to the election of the local candidate. The event that was the catalyst for the erection of the posters was the election of a local member of parliament within the electoral district of Bligh which covers part of the Woollahra Municipality. 14. I do not have to make a final finding about that. Nevertheless my remarks must lead to an indication that there is a strong case in answer to the applicant's case. By way of defence, the provisions of cl 25(B1) can be raised on the basis that the erection of the posters was for the purpose of an advertisement described in the Table of that clause and thus could be carried on without consent. It is not alleged that the conditions under which such a notice can be erected have been breached. What is alleged is that there has been a breach of cl 16. I am not satisfied the applicant has established a strong case on the construction of the LEP in that respect. 15. Having regard to the circumstances and taking into account the whole of the evidence, together with the elaborate submissions presented by counsel for the two respondents and Mr Duncan himself, I am satisfied this is an appropriate case where the proceedings should be the subject of a permanent stay. I propose to make an order accordingly. … 17. … The proceedings are permanently stayed. [emphasis added]. The Motions for Costs

[133]

On Oshlack's implications for the correct construction and application of s 69(2) of the Court Act, the Chief Judge in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (" Showground ") (1998) 105 LGERA 254 deduced and stated the following principles: (1) The discretion conferred upon the Court by s 69(2) is wide and unconfined: Oshlack at 180, 205. (2) It is, however, a discretion which must be exercised judicially, that is to say, not arbitrarily and not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation : Oshlack at 180; Latoudis v Casey (1990) 170 CLR 534 at 557; Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGRA 381 at 384. (3) Nonetheless, principles have been laid down to guide the exercise of such discretion in the interests of consistency of approach: Latoudis v Casey at 541. (4) One such principle is that, ordinarily, costs follow the event; that is, costs are awarded to the successful party as compensation for the costs incurred: Latoudis v Casey at 567; Oshlack at 213. (5) However, the principle that costs follow the event is not a fixed or absolute rule: Oshlack at 186, 213. (6) This Court, in exercise of its discretion under s 69(2), must take into account all relevant factors, which, in proceedings which have been brought pursuant to the open standing provision contained in s 123 of the EPA Act, may include factors which have a public interest nature: Oshlack at 187. (7) The consideration of all relevant factors may lead to a finding that special circumstances exist for departing from the general rule that costs follow the event and may lead to a consequent determination that there be no order as to costs (as occurred in Oshlack at first instance: see Oshlack v Richmond River Council (1994) 82 LGERA 236. (8) Public interest factors are not, however, determinative factors; they are merely relevant factors to consider. In other words, factors based on the public interest nature of the litigation do not give the applicant automatic immunity from a costs order: Oshlack at 214. (9) Nor is it necessary that the Court go through a process of characterisation of the litigation as 'public interest litigation'. What is required is for the Court to consider all relevant factors, including factors of a public interest nature: Oshlack at 182. (10) A 'shopping list' approach should also be avoided. The factors which Stein J (as he then was) took into account in Oshlack at first instance should not be elevated to a fixed list, each item of which the Court, in a particular application for costs, merely ticks with approval or rejects with a cross. Such a mechanically rigid approach is not appropriate: Oshlack at 213.

Parties

Applicant/Plaintiff:

Duncan

Respondent/Defendant:

Moore & Ors

Legislation Cited (1)

Environmental Planning and Assessment Act 1979(NSW)

Cases Cited (22)

CITATION : Duncan v Moore & Ors [2000] NSWLEC 64 APPLICANT PARTIES : Malcolm Bruce Duncan RESPONDENTS Clover Moore & Ors FILE NUMBER(S) : 40061 of 1999 CORAM: Sheahan J KEY ISSUES: Costs :- in Class 4 - speciall circumstances - public interest Electricity Supply Act 1995 LEGISLATION CITED: Environmental Planning & Assessment Act 1979 Environmental Offences & Penalties Act 1989 Parliamentary Electorates & Elections Act 1912 Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; Byron Shire Council v Vigden & Anor [1999] NSWLEC 121; Calderbank v Calderbank [1975] 3 All ER 333; Department of Land & Water Conservation v Ramke [1999] NSWLEC 22; Director General of the Department of Land & Water Conservation v Ramke [1999] NSWLEC 22; Donald Campbell & Co Ltd v Pollak [1972] AC 732; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397; Friends of Hinchinbrook Society Inc v Minister for Environment & Ors (1998) 99 LGERA 140; Garbacz & Ors v Morton & Anor [2000] LEC 17; Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284; Hayden Theatres Pty Ltd v Penrith City Council & Anor (1998) 105 LGERA 230; CASES CITED: Hetherington v Mirvac Pty Ltd & Ors (1999) NSW SC 515; Joanou v Randwick City Council & Anor (1998) 105 LGERA 237; Laguillo v Hayden Engineering Pty Ltd (1978) 1 NSWLR 306; Latoudis v Casey (1990) 170 CLR 334; Messiter v Hutchinson (1987) 10 NSWLR 525; Mills & Ors v Department of Land & Water Conservation & Ors [1999]; Oshlack v Richmond River Council (1998) 193 CLR 72; Plumb v Comcare (1992) 39 FCR 236; Re the Minister for Immigration & Ethnic Affafirs: Ex parte Lai Qin (1997) 186 CLR 622; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1998) 105 LGERA 254; Seaton & Ors v Mosman Municipal Council (1998) 98 LGERA 81; South West Forests Defence Foundation Inc v WA Department of Conservation & Land Management [No.2] (1998) 72 ALJR 1008; Tzavellas v Canterbury City Council & Anor (1999) 105 LGERA 262 DATES OF HEARING: 20/03/00 DATE OF JUDGMENT: 03/31/2000

(1993) 44 FCR 194

(1988) 81 ALR 397

(1998) 99 LGERA 140

(1997) 80 FCR 284

(1998) 105 LGERA 230

(1998) 105 LGERA 237

(1978) 1 NSWLR 306

(1990) 170 CLR 334

(1987) 10 NSWLR 525

(1998) 193 CLR 72

(1992) 39 FCR 236

(1997) 186 CLR 622

(1998) 105 LGERA 254

(1998) 98 LGERA 81

(1998) 72 ALJR 1008

(1999) 105 LGERA 262

(1990) 170 CLR 534

(1994) 82 LGERA 236

[1999] NSWLEC 121

[1999] NSWLEC 22

[1999] NSWLEC 254

Cited By (1)

Beilby v Viney Pty Ltd & Anor

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)

Cited By (1)