Fokas v Kogarah Council and Anor

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125; Tzavellas v Canterbury City Council and Anor (1999) 105 LGERA 262

DATES OF HEARING: 07/10/2005 EX TEMPORE JUDGMENT DATE : 10/07/2005

APPLICANT In person SOLICITORS n/a

FIRST RESPONDENT LEGAL REPRESENTATIVES: P Vergotis (solicitor) SOLICITORS Matthews Folbigg SECOND RESPONDENT B Bridges (solicitor) SOLICITORS Corporate Solicitor, Wesley Mission

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) Second Respondent

EX TEMPORE JUDGMENT 1 Cowdroy J: Before the Court there are two notices of motion for hearing today. The first is a notice of motion issued by the first respondent ("the Council") which seeks an order that the proceedings be struck out ("the Council's motion"). The affidavit in support is that of Paul Nicholas Vergotis sworn 29 September 2005.

2 In his affidavit Mr Vergotis sets out the history of numerous directions hearings and of orders made on 5 September 2005 by the Court in which the following directions were made:- 1. That the applicant file and serve points of claim by 12 September 2005. 2. That the respondent file and service points of defence by 26 September 2005. 3. That the matter be re-listed for call-over on 4 October 2005.

3 The affidavit of Mr Vergotis refers to the fact that no points of claim have been received but that instead the applicant has provided several affidavits. Paragraph 19 of the affidavit states:- I am unable to file points of defence on behalf of the respondent in accordance with the directions made by the Court on 5 September 2005, as the applicant has not disclosed its case within the filing of the points of claim. 4 The second notice of motion for hearing before the Court today was filed by the applicant. That notice of motion seeks an order that the Council's motion be struck out. The grounds relied upon are that the Council's motion was not served by 29 September 2005, being the last date for service specified in the Council's motion. In fact it was received at 1 pm on 30 September 2005 and the hearing was accordingly postponed for one day. The applicant also relies upon the grounds indicated in her affidavit sworn on 26 September 2005. 5 The applicant has addressed the Court extensively and has made reference to the claim which she wishes to make in these proceedings. Such claim is contained in her affidavits sworn on 8 August 2005, 29 August 2005, 26 September 2005 and 4 October 2005.

6 In summary the applicant seeks to challenge the validity of development consents for two adjoining properties granted by the Council on 27 June 2005. Consent 595/04 relates to 7 Blake Street, Kogarah and consent 257/05 relates to 18-20 English Street, Kogarah ("the consents").

7 The consents grant permission to erect an awning which will span the two properties, which are currently operated as a hospital. The awning was designed to protect the patients at the hospital as they move from one building to another. The applicant resides in close proximity to the hospital at 14 English Street, Kogarah.

8 Essentially the applicant's challenge relates to the adequacy of fire exits at the hospital. The applicant submits that the construction of the awning will create a fire hazard, both to the patients and other persons who might be at the hospital. The confined space between the two buildings is the fire exit for the current hospital buildings. The applicant submits that the erection of the awning, even if no sides are attached to the awning, will be an impediment to escape in the event of fire.

9 Additionally the applicant submits that the Council was provided with wrong information by its officers concerning the development. She has referred to the fact that a page is missing from a report.

10 Before the Council granted the consents, members of the public were afforded the opportunity to object to the proposed development. Numerous objections were received, including a letter of objection from the applicant.

11 On 26 December 2004 the applicant requested that the Council call a public meeting in respect of the development applications. A public meeting was duly held and the applicant was given the opportunity of expressing her concerns.

12 The applicant submits that she has endeavoured to the best of her ability to comply with the orders made by the Court concerning the provision of points of claim. She frankly admits that she does not completely understand the term "points of claim" and relies upon the matters set out in her several affidavits.

13 In its application for strike out, the Council relies upon Pt 12 r 2 of the Land and Environment Court Rules 1996 ("the LEC Rules"). Part 12 r 2 of the LEC Rules provides: (1) If an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit. (2) The Court may at any time prior to the hearing, if satisfied that there is no good reason for the failure of the applicant to prosecute the proceedings, dismiss those proceedings. (3) If proceedings are dismissed under this rule, Part 11 rules 5, 6 and 7 apply as though the dismissal were a discontinuance.

14 Alternatively, the Council relies upon Pt 13 r 5 of the Supreme Court Rules 1970 ("SCR"). Pursuant to Pt 6 r 1 of the LEC Rules, the provisions of Pt 13 Div 2 SCR are adopted and continue to have effect in this Court even though the SCR have been repealed. Pt 13 SCR relates to summary dismissal. Pt 13 r 5, which is part of Div 2, provides: Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) no reasonable cause of action is disclosed, … the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

15 In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, Dixon J said: The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

16 In General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125 Barwick CJ at 130 said: ... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.

17 In answer to the Council's motion, it is essential that the applicant demonstrate a legal basis for a challenge to the consents. The applicant is not entitled to bring proceedings to review the merits only of the Council's consideration, with the exception of a challenge to the decision based upon Wednesbury unreasonableness. The applicant has not made such a challenge.

18 Having heard lengthy submissions from the applicant, the Court is unable to find in the applicant's affidavits any issue upon which the Court could properly adjudicate if this matter were to proceed to trial. The Court is conscious of the heavy onus which is imposed upon a Court in an application for summary judgment, and the Court is naturally cautious before taking the step of striking out proceedings. However in this case the Court is satisfied that there is no merit in the application. The claim of the applicant has no prospects whatsoever of success. To allow it to proceed in the Court would be a waste of the time and resources of the parties.

19 Accordingly the Court orders that proceedings 40813 of 2005 and the applicant's notice of motion be dismissed.

20 The Council has also sought its costs of these proceedings and has assessed its costs in the order of $3,500 on a solicitor/client basis. On taxation it may be assumed that the costs might be assessed on a party/party basis in the sum of $2,000. The applicant has led no evidence before the Court in opposition to the application for costs, and has indicated that she does not completely understand what is meant by the application. However, the Court has been informed that on 22 August 2005 when this matter was before Bignold J, his Honour specifically pointed out to the applicant that costs would be incurred for which she might be liable if the matter proceeded.

21 Under s 69(2) of the Land and Environment Court Act 1979, the Court has a wide discretion in respect of the award of costs. The Court is minded that the applicant has not had the benefit of legal advice and has pursued these proceedings genuinely believing that she was performing a public service by raising issues of fire safety. The fact that her challenges could never be successful was probably unknown to her, because she would not understand the complexities of the law relating to judicial review of administrative decisions.

22 There is no evidence of the means of the applicant, and in any event, even if an issue of impecuniosity was raised, the Court has held that impecuniosity of a party is not a reason to decline to make an order for costs where the normal rule of costs applies: see Tzavellas v Canterbury City Council and Anor (1999) 105 LGERA 262.

23 The Court is satisfied that the applicant should pay the Council's costs. Nonetheless, considering all the circumstances, the Court does not consider that a substantial order for costs should be made against her. The Court orders that the applicant pay the first respondent's costs in the amount of $750.

24 The Court orders that: 1. Proceedings 40813 of 2005 together with the applicant's notice of motion are dismissed. 2. The applicant is to pay the first respondent's costs in the sum of $750. 3. The exhibits be returned.

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