Karnauchow v Penrith City Council

Category: Procedural rulings

Parties: Armin Karnauchow (Applicant)
Penrith City Council (Respondent)

Representation: Counsel:
A Karnauchow (in person) (Applicant)
D Johnson (Solicitor) (Respondent)
Solicitors:
N/A (Applicant)
Penrith City Council (Respondent)

File Number(s): 2025/217395

Publication restriction: Nil

JUDGMENT

The Applicant in Class 1 Proceedings Seeks to Strike Out Expert Evidence and Claims Compensation

1. The applicant, Armin Karnauchow, a litigant in person with, according to his evidence, mental health issues, filed a notice of motion on 17 February 2026 seeking the following orders (repeated exactly as stated in the notice of motion):

1 An order that the respondents statements of facts filed on 9th February 2026 to be struck out due to false statements made under oath. (criminal Perjury)

2 An order that the Respondents pay $250,000 in compensation

2. At the mention of this matter before Pepper J on Friday 20 February 2026, leave was granted to the applicant to amend, with the consent of both parties, the first order of the motion to read, “an order that the expert report of Sarah Hall filed on 9 February 2026 [“Hall report”] to be struck out due to false statements made under oath. (criminal Perjury)”.

3. Sarah Hall is a building surveyor and Penrith City Council’s (“the Council”) Senior Development Compliance Officer.

4. The amendments were necessary because, first, there was no “statement of facts”, or even a statement of facts and contentions (“SOFAC”), filed by the respondent, the Council. And second, during discussion with Karnauchow, it became apparent that the allegation of perjury was in fact directed to the contents of several file notes made by various Council officers who had inspected his property prior to the Council issuing a Development Control Order (“DCO”). These file notes are appended to the Hall report and were relied upon by her in expressing her opinions.

5. In permitting the amendment of the application and in its approach to the motion generally, the Court was mindful of its duty to Karnauchow, a vulnerable self-represented litigant (see Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[316], applied and discussed most recently in this Court in Boensch v Valuer-General of New South Wales [2026] NSWLEC 12 at [18]-[19]).

6. The Council opposes the orders sought in the motion.

7. In support of the motion, Karnauchow appeared to rely upon an affidavit filed by him on 17 February 2024. As a matter of fairness, I have also had regard to a bundle of documents, not formally tendered by Karnauchow but filed in the proceedings, in determining this application.

The Council Serves a Development Control Order on Karnauchow

8. The substantive proceedings to which this motion relates is an appeal under s 8.18 of the Environmental Planning and Assessment Act 1979 (“EPAA”):

8.18 Appeals concerning orders

(1) A person who is given a development control order may appeal to the Court against the order.

(2) However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3) The appeal may be made only—

(a) within 28 days after the development control order is given to the person, or

(b) if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

9. The appeal specifically relates to a DCO issued to Karnauchow by the Council, pursuant to Div 9.3 and Sch 5 of the EPAA on 6 May 2025, pertaining to the demolition of two pre-manufactured buildings and five awnings on Lot 9 in DP 262762, known as 59 Farmview Drive, Cranebrook (“the property”). Karnauchow is the owner of the property.

10. Karnauchow filed a Class 1 application on 3 June 2025, presumably (the putative orders are not clear) seeking to set aside the DCO on the basis that “the containers have been in the yard for 20yrs now and not a problem”.

11. The Council filed its SOFAC on 7 July 2025.

12. A conciliation conference took place on 27 October and 20 November 2025. Because the parties were unable to come to an agreement, the conciliation was terminated.

13. The matter was mentioned on 1 December 2025, at which time the Court made orders including listing the matter for hearing on 9 and 10 March 2026.

14. The Court orders made on that day included directions for Hall and Phillip Doy (the Council’s town planning expert) to prepare individual expert reports, which were to be filed and served by 9 February 2026 (order 3).

15. Both reports were filed and served by the required date. The reports are the only evidence relied upon by the Council. No evidence has been, or is intended to be, filed by any Council officer other than Hall and Doy. Rather, file notes of the inspection of the property the subject of the DCO by various Council officers are appended to the Hall report. This means that Karnauchow will not have the opportunity of putting the allegations of perjury to them directly, a matter about which he complains is unfair.

16. It was explained to Karnauchow that the Court could not compel the Council officers about whose conduct he complains to give evidence in the proceedings, or to attend the hearing as witnesses for the Council, but that it was open to him to subpoena them as witnesses in his own case.

17. It was also explained to Karnauchow that the Court had no power to refer the Council or its officers to the police or “the DPP” for perjury, that the alleged perjurers had not in fact “sworn evidence under oath” in the proceedings, and that there was no basis for the Court to join the individuals as parties to the proceedings (and that, in any event, that was not the application before the Court).

The Strike Out Order

18. Karnauchow seeks an order that the expert report of Hall be “struck out” on the basis that the inspection reports she relies upon to provide her opinion contain falsehoods and that the Council officers who wrote them have “perjured” themselves.

19. There are two principal reasons why the Court will not strike out the Hall report. First, it has not been identified by Karnauchow what power the Court has to strike out the report. Second, the Hall report is not yet in evidence.

20. Rule 14.28 of the Uniform Civil Procedure Rules 2005 (“UCPR”) outlines the circumstances in which the Court may strike out pleadings:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

21. The rule is not applicable in the circumstances of this motion because what is sought to be struck out is not a pleading.

22. Second, r 31.21 of the UCPR requires that expert evidence in chief is to be given by way of experts’ reports. The Council has complied with this rule and at the hearing of the substantive proceedings will seek to tender the Hall report.

23. Until such time as this occurs, the expert report of Hall has not been tendered as evidence, and the Court has no power to strike out a report that has merely been filed.

24. As was explained to Karnauchow, not striking out the Hall report at this juncture does not mean that he cannot object to all, or part, of its contents at the final hearing. In other words, the appropriate time to challenge the receipt of the Hall report, including the impugned appendices, is during the hearing of the appeal.

25. That Karnauchow is able to object to any evidence that is sought to be relied upon by the Council at the hearing of this matter is reflected in order 13 made by the Court on 1 December 2025:

A party who proposes to object to any part of an affidavit, statement or report is to file and serve notice of its objections, including the grounds in support, at least seven days before the hearing.

26. The order provides the correct mechanism for dealing with an objection to evidence in these proceedings and the Commissioner presiding over the hearing of the matter can then determine whether the Hall report is admitted into evidence. Karnauchow can also cross-examine Hall on any aspect of her report, including the file notes of the inspections by the Council officers, if the report is admitted into evidence.

Order for Compensation

27. Karnauchow’s motion also seeks “an order that the Respondents pay $250,000 in compensation”. The basis upon which this compensation is sought has not been particularised by Karnauchow.

28. The Court has power in specific circumstances to award compensation in relation to DCO appeals in Class 1 of the Court’s jurisdiction. This power is contained in s 8.19 of the EPAA, which provides as follows:

8.19 Awarding of compensation concerning orders

(1) The Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person to whom a development control order is given for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order.

(2) Compensation is to be awarded only if the person seeking the compensation satisfies the Court that the giving of the development control order was unsubstantiated or the terms of the order were unreasonable.

(3) A claim for compensation cannot be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the development control order if an appeal is not made against the order.

(4) Compensation under this section is to be awarded against the relevant enforcement authority who gave the development control order.

29. Because a decision on the merits of the DCO has not been made by the Court, any claim for compensation in relation to whether the giving of the DCO “was unsubstantiated or the terms of the order were reasonable” is premature. Put another way, the power of the Court to award compensation has not yet been engaged because the Court has not given its decision on the appeal.

30. Finally, it should be noted that Karnauchow has not provided any evidence of the expenses incurred as a consequence of the issuing of the DCO the subject of the proceedings.

Orders

31. For the reasons outlined above, the Court makes the following orders:

32. Karnauchow’s notice of motion filed on 17 February 2026 is dismissed;

33. no further inspections of Karnauchow’s property by the Council are to take place prior to the commencement of the hearing on 9 March 2026 without leave of the Court; and

34. liberty to restore on 24 hours’ notice.

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