PRACTICE AND PROCEDURE - service - whether service has been effected upon first respondent - where respondent has demonstrated knowledge of proceedings - service taken to have been effected
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PRACTICE AND PROCEDURE - service - whether service has been effected upon first respondent - where respondent has demonstrated knowledge of proceedings - service taken to have been effected
Judgment (4 paragraphs)
[1]
Solicitors:
Pikes and Verekers Lawyers (Applicant)
File Number(s): 2018/00197129
[2]
EX TEMPORE Judgment
This matter comes before me today ex parte as Duty Judge by way of a notice of motion seeking interlocutory relief. The background may be briefly summarised. Hawkesbury City Council ('Council'), which is the applicant in the substantive proceedings and in the motion, commenced these Class 4 proceedings by summons filed on 26 June 2018 seeking declaratory and consequential relief generally in relation to works allegedly being undertaken without consent upon the land known as 1855 Putty Road, Colo, being Lot 1 in DP 1060733 ('land').
The work that has been undertaken, which I will describe further below, comprises certain earthworks and the clearing of vegetation and trees. The relief that is sought in the summons includes a declaration in relation to clearing of vegetation and trees; a declaration in relation to certain earthworks said to be being undertaken; and consequential relief that each of the three respondents be restrained from carrying out or authorising the carrying out of clearing of trees and earthworks, and that they each be involved in the preparation of rehabilitation plans. Interlocutory relief is also sought.
Hawkesbury City Council v Mustapha Kara-Ali [2018] NSWLEC 105 | Case summary | Zoe
There is a further claim for substantive relief in the summons that the respondents be restrained from "using, permitting or suffering the subject land to be used for the carrying out of any and all religious activities of devotion, self-discipline, ritual baptism, inter-community prayers, contemplation and religious study or for the purposes of public worship, unless and until development consent has been granted theretofore".
The summons was filed on 26 June 2018, and was made returnable on 27 July 2018. Also on 26 June 2018, a notice of motion was filed seeking orders in similar terms to the interlocutory relief sought in the summons. The motion was made returnable today; that is, 6 July, at 9:30 am. Specifically, Orders 1, 2 and 3 in the motion reflect the interlocutory relief sought in the summons at pars 11, 12 and 13, which relate to the cessation of the clearing, earthwork, and religious activities until further order.
When the matter came before me, I was informed by Mr Cottom, solicitor for Council, that Council did indeed seek urgent interlocutory relief which was likely to be heard on an ex parte basis. The matter was called and none of the respondents was present or has been present in Court today.
In the circumstances, I received and have read detailed evidence filed by Council and heard detailed submissions made by Mr Cottom. A preliminary issue related to the service of the substantive proceedings and the notice of motion on the respondents with concern expressed primarily in relation to the first respondent, Dr Mustapha Kara‑Ali.
The evidence in relation to service of the originating process was comprised in the affidavit of Michael Wilson, sworn 3 July 2018; the affidavit of Shaun Errol Prince, sworn 4 July 2018 (that affidavit related to service upon the third respondent, Southern Chariot Stud Pty Ltd); a further affidavit of Shaun Errol Prince, also sworn 4 July 2018, in relation to attempts of service upon the first respondent; and an affidavit of Frank Hoare, sworn 3 July 2018.
I am satisfied that the affidavits of service demonstrate that the second and third respondents have each been served with both the originating process and the notice of motion presently before the Court on 29 June 2018. Specifically, I am comfortable that the affidavit of Mr Wilson provides me with evidence that the second respondent has been served and I am comfortable that the affidavit of Mr Prince, sworn 4 July 2018, has provided evidence of service upon the third respondent.
In relation to the first respondent, Council requests he be taken to have been served pursuant to r 10.14 in the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). That rule provides:
10.14 Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)
(1) If a document that is required or permitted to be served on a person in connection with any proceedings:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.
(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes:
(a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and
(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).
(4) Service in accordance with this rule is taken to constitute personal service.
On the basis of the evidence, I am comfortably satisfied that the first respondent has been made aware of the proceedings. This is clear from correspondence from the first respondent received by both Council and its solicitors.
I am satisfied that the originating process has come to the first respondent's attention on or about 29 or 30 June 2018. Accordingly, I will enter orders that the first respondent is taken to have been served pursuant to r 10.14(3) of the UCPR.
I turn now to the question of interlocutory relief. In relation to that relief, Council relies upon the affidavit of William Ross Pillan, sworn 26 June 2018; the affidavit of Gary William Collins, sworn 6 July 2018; the affidavit of Philip Khalifeh, sworn 26 June 2018; and the affidavit of Stephen Noel Griffiths, sworn 5 July 2018. This affidavit evidence is extensive and includes detailed annexures numbering some hundreds of pages.
In addition to the affidavit evidence, further evidence was given orally by Mr Collins, which related to attendances and observations of Mr Fontaine, an officer of Council, at the land today. Mr Fontaine reported to Mr Collins by telephone his observations of conduct on the land. Further, Mr Collins gave evidence that Mr Fontaine had provided him with photographs taken today of a person who appears to be identified as the first respondent "digging holes on the premises". Colour copies of those photographs became Exhibit A.
The principles governing the grant of interlocutory relief are well known. Council must demonstrate there is a serious question to be tried, such that there is a sufficient likelihood of success to justify the granting of the interlocutory injunction and that the balance of convenience favours the grant of an interlocutory injunction.
The principles have been stated on many occasions and I refer to: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19]; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 at [170]; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [44] and, Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 ('Tegra') at [6], [7], [13]-[19] and [54].
The Court must also consider whether there are any discretionary reasons for refusing the injunction, such as delay and the like.
When considering the balance of convenience, the Court will consider whether Council will suffer irreparable harm for which damages will not be an adequate remedy.
In relation to whether there is a serious question to be tried, I note that these proceedings have been brought pursuant to s 9.45(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') for orders to remedy and restrain the breaches of that Act.
Relevantly for the purposes of the notice of motion before me, the development that is alleged by Council to have been undertaken by the respondents in breach of the EPA Act comprises: first, the clearing of vegetation and trees in breach of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017; and second, earthworks in breach of s 4.2 of the EPA Act, formerly s 76A of that Act. The evidence goes to the nature and scope of the works carried out.
I am comfortably satisfied that the work is not insignificant and would be, to adopt the wording of the submission of Council: "antithetical to the objectives of chapter 9 of the Hawkesbury Development Control Plan 2002" in relation to clearing and cl 6.2 of the Hawkesbury Local Environmental Plan 2012 in relation to the earthworks. I have considered the relevant sections of each of those instruments, to which I have been taken.
Although the evidence is not abundantly clear in this regard, the likely actual environmental impacts of the works, which I note have not been the subject of any application to, or consequently any assessment by, Council, are again not insignificant in the light of the works which appear to have been undertaken.
I note importantly that the first respondent, in correspondence, has accepted responsibility for authorising the works that have been carried out on the land. In particular, in a letter dated 30 June 2018, Dr Mustapha Kara‑Ali, who I have taken to be the first respondent, writes to Council and sets out the following:
1. He gives the background of the land and says it is "a religious site that is held by the members of Diwan Al Dawla for the carrying out of religious activities of devotion, self‑discipline, ritual baptism, inter-community prayers, contemplation and religious study". I have assumed that it is that wording which has triggered the relief sought in par 13 of the summons and par 3 of the notice of motion;
2. He says Diwan Al Dawla is an unincorporated religious body that is recognised as "a basic religious charity", and in those circumstances, the first respondent states in the correspondence, "must remain independent of entities, departments and agencies that uphold religious symbols, which contradict with our belief system, such as the New South Wales Government and its representatives";
3. He says the members of Diwan Al Dawla are "faced with the problem that a government enforcement agency that portrays itself as a secularised entity is upholding blatant religious symbols while interfering with their religious practice by attempting to impose its own definition of what constitutes the good and moral in relation to the management and diligent care of the place where religious activities of Diwan Al Dawla's members are carried out"; and
4. He concludes that "to be issued by an officer of Hawkesbury City Council with orders, directions or requirements against carrying out Diwan Al Dawla's common religious activities or what is ancillary to them is a serious violation of the religious freedom of Diwan Al Dawla and its practitioners".
I note the above simply to record that the Court is aware that the first respondent, and the believers or followers of Diwan Al Dawla, may genuinely believe that their rights to undertake their religious practices are being inappropriately interfered with by Council. However, despite this, I am conscious that Council in these proceedings is seeking to enforce the relevant provisions of the EPA Act for the proper management and use of the land.
I also note that it appears that it is likely that the works undertaken by the respondents would be otherwise permissible or likely to be permissible with the appropriate approvals and consents. Be that as it may, the Court is unable to form a view as to whether, even if appropriate applications were made, that consent or approval would be forthcoming.
In all of the circumstances, I am comfortably satisfied that the material before me indicates that works have been undertaken which are contrary to the environmental controls, at least when undertaken without consent.
Given that as recently as 4 July 2018, some two days ago, certain responsibility has been admitted at least by the first respondent, and there is correspondence from the second and third respondents which would indicate that the concerns of Council have been properly brought to the attention of each of the respondents, I am of the view, on the evidence presently before me, and being conscious the matter is proceeding ex parte, that there is a serious question to be tried. I am further satisfied, more particularly by the more recent evidence, that unless restrained, it is likely that the respondents will continue to carry out the work which I consider more likely than not to be unauthorised on the land without regard to the functions of Council.
On the present evidence, I do not hold the same concerns in relation to whether activities are being carried out for the purpose of public worship. Having voiced my concerns in this regard to Mr Cottom during his submissions, he advised that Council is no longer seeking interlocutory relief in respect of those activities.
In relation to the balance and convenience, it is clear from the authorities, in particular Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 and Tegra, that the Court must consider whether the inconvenience or injury which the applicant for interlocutory relief would likely suffer if the injunction is refused outweighs or is outweighed by the injury to which the defendant would suffer if an injunction were granted.
The question of irreparable injury tends to be treated by the courts not as an independent consideration but as part of the balance of convenience. I accept that in the circumstances it is clear that the balance of convenience favours Council. However, I have some concern that it could be said that there has been delay on the part of Council, insofar as it has been aware of the unauthorised works on the land for some period of time.
On the other hand, I balance that concern with the fact that the respondents have been given sufficient time in which to seek to regularise what Council says is unauthorised work, and to apply for development consent to carry out works on the land. In those circumstances, the respondents have in fact maintained their position for some time that work will continue.
As I have indicated earlier, the primary catalyst for the proceedings appears to be the discovery of continuing works on part of the land, particularly on the southern side of Putty Road, contrary to numerous warnings in correspondence from both Council and its solicitors. I am also conscious of an exchange that has occurred on the land between officers of Council and a person who appears to be the first respondent.
In those circumstances, although there has been some delay on behalf of Council, I am not satisfied that this disentitles it from interlocutory relief. Accordingly, I am comfortable that there is a serious question to be tried in relation to the unauthorised works being carried out and, further, the balance of convenience favours the granting of an injunction.
I note that Council has not proferred the usual undertaking as to damages, but as it is a public authority acting in the public interest insofar as there is a real and necessary public interest in upholding the planning laws of the State by Council, I do not consider that this is disentitling. This approach has been frequently adopted by this Court: Ross v State Rail Authority of New South Wales (1987) 70 LGRA 91; Blacktown City Council v Penatrators Pty Ltd [2013] NSWLEC 169; (2013) 199 LGERA 73 at [33]-[35]; Tenterfield Shire Council v Budd [2016] NSWLEC 89 at [13]; Central Coast Council v 422 Pacific Highway Wyong Pty Ltd [2018] NSWLEC 38 at [22].
In the circumstances, I find that Council is entitled to some limited interlocutory relief and the Court will enter orders accordingly.
[3]
Orders
The Court orders that:
1. Pursuant to rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), the originating process in these proceedings is taken to have been served on the first respondent on 30 June 2018.
2. Up until and including 16 July 2018, each of the respondents are restrained from:
1. carrying out or authorising or permitting the carrying out of the clearing of trees and/or vegetation upon or within the land at 1855 Putty Road, Colo (Lot 1 in DP 1060733) ('site'); and
2. carrying out or authorising or permitting the carrying out of any and all earthworks upon or within the site.
1. The proceedings are listed before the Duty Judge on 16 July 2018.
2. The parties have liberty to apply.
3. Costs are reserved.
[4]
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Decision last updated: 13 July 2018