McNeill v Avalon Surf Life Saving Club

EXTEMPORE Judgment 1I am dealing this morning with the applicant's notice of motion filed yesterday afternoon for an urgent interlocutory injunction to stop demolition, in particular of certain walls, and to reinstate a demolished wall of the Avalon Surf Life Saving Club building. The applicant, Mr John McNeill, has commenced two proceedings in Class 4 of the Court's jurisdiction by summons on, respectively, 15 May 2013 No 13/40349 (the first proceeding) and on 24 May 2013 No 13/40373 (the second proceeding) against Avalon Surf Life Saving Club and Pittwater Council. Mr McNeill is self-represented in both proceedings. Prima facie, it is difficult to see a justification for two sets of proceedings. The summons in each proceeding seeks an order to stop the demolition of the Avalon Surf Life Saving Club building. In addition, the summons in the second proceeding seeks orders to "Reverse the Council decision to change the Avalon Beach Management Plan (Feb 18)" and to "Cease works effective immediately and have an inquiry into why a wall shown on the plan as part of the existing building was demolished on day one of these current works". The proceedings appear to be for civil enforcement and judicial review. 2The notice of motion with which I am dealing is purportedly filed in both proceedings. It is the third motion in three weeks by Mr McNeill for an urgent interlocutory injunction to stop demolition. Hence, it is the third time that the respondents have had to appear before the Court on short notice. The earlier two motions appear to have been oral. On 17 May 2013 Pain J dismissed the first motion, which was in the first proceeding: McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69. On 28 May 2013 Sheahan J dismissed the second motion, which was in the second proceeding: McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72. Sheahan J considered that the allegedly new material put before him did not advance the applicant's case beyond what was argued before Pain J and was little different at [16]. In both decisions the Court found that there was no serious issue to be tried. 3Before me Mr McNeill's evidence comprises his affidavit filed on 6 June 2013, a printout from Council's website (referred to at [10] below), some photographs, a copy of Council's notice of determination of development consent dated 20 June 2011, and a Council executive summary dated 19 July 2006 (Exhibits A to D). There are also documents attached to the notice of motion. 4An applicant for an interlocutory injunction must establish that there is a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction. Generally, an applicant must also give the usual undertaking as to damages as the price for obtaining the interlocutory injunction. The usual undertaking as to damages is defined in r 25.8 of the Uniform Civil Procedure Rules 2005: 25.8 Meaning of "usual undertaking as to damages" The "usual undertaking as to damages", if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking. 5When, as in the present case, a court is confronted with repeated motions for substantially the same interlocutory injunction, the overriding principle is "that the court should do whatever the interests of justice require in the particular circumstances of the case": Nominal Defendant v Manning [2000] NSWCA 80, (2000) 50 NSWLR 139 at [46], [97]. Generally, however, an unsuccessful applicant for interlocutory relief is precluded from repeating the application, on the ground of abuse of process, if the evidence put before the Court is the same and the circumstances have not materially changed. Where an unsuccessful applicant for an interlocutory injunction makes a second application on the basis of evidence reasonably available but not put forward on the earlier application, that does not, without more, amount to an abuse of process, but the applicant faces serious and self-created risks of an adverse exercise of judicial discretion: ibid at [71] - [72], [122] - [124]. However, a third application following on two previous failures might well enter the area of abuse of process: at [124]. Heydon JA said at [72]: Nothing in the above reasoning...is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid. 6In P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413, (2009) 255 ALR 466 at [49] Goldberg J reviewed the authorities and concluded that there were four circumstances, one or more of which must have occurred or been established for a court to hear a second application for interlocutory relief: (a) there is new material or new evidence which was not available, or reasonably available, to [the moving party] at the time the orders were made...; (b) there has been a material change in the circumstances since those orders were made; (c) there are exceptional circumstances which warrant re-consideration of the matter, the subject of their Notice of Motion; and (d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their Notice of Motion. Applied in NA Retail Solutions Pty Ltd v St George Bank Ltd [2010] FCA 290, (2010) 267 ALR 599 at [59]. 7An applicant who, having failed on one application for an interlocutory injunction, makes a second application when there is insufficient new evidence to justify the second application, faces the risk that an indemnity costs order will be made against the applicant in respect of the second application and that an order will be made that the costs of the second application be assessed forthwith: Kama v Wong (No 2) [2005] NSWSC 428 at [26] - [27] per Palmer J. 8Mr McNeill mainly grounds the motion for an urgent interlocutory injunction on a change in circumstances since the matter was last before the Court, namely, that certain internal walls of the clubhouse have been demolished in the last few days whereas the development consent approved plans called for them to be retained, and that there is a threat of demolition of more walls that are required to be retained by those plans. On this basis, Mr McNeill submits that an interlocutory injunction to stop demolition of those walls should be granted. If that is all that there is to it, I agree there would be a strong case for the grant of an interlocutory injunction. 9However, there is more. During the hearing this morning, Council's legal representative obtained instructions by telephone that there had been a modification of the development consent which permitted those walls to be demolished. Council gave an undertaking to the Court to instruct the demolishers to stop work for two hours until 12.40 pm today in order to provide time for evidence of the modification to be brought to Court. Within that time Council brought to Court and tendered a copy of the notice of determination of a modification of the development consent including approved modified plans (Exhibit 1). The notice is addressed to the Avalon Beach Surf Life Saving Club and is dated 3 June 2013. The modified approved plans indicate that the internal walls of the building no longer have to be retained. Accordingly, Mr McNeill's reliance on the original approved plans is misplaced and the said main ground of his motion cannot be accepted. 10Mr McNeill had some prior notice of the modification because he tendered a printout of what he says he saw on Council's website last evening, which states: "Alterations and additions to the existing Surf Club building including amenities, café and water harvesting tanks. Modification to allow internal walls and floor slab to be demolished". He says that he was not able to open the website further to examine the modified plans. 11Mr McNeill also submits that certain external walls which the approved plans indicate are to be retained, are at risk of being demolished because, as I understand it, he says they have to have holes bored underneath them for concrete and the slab is to be demolished. I am not satisfied that this is sufficient, of itself and without more evidence, to establish a realistic threat of demolition of external walls that are required to be retained. 12Mr McNeill reiterates a contention that he lost before Pain J that because the development consent was for alterations and additions to the clubhouse, no demolition is permitted: see her Honour's judgement at [9], [16]. Her Honour held that the approved development consent plans identify the parts of the building that are to remain and other parts that are to be altered, including demolition of identified walls. The more recent modified plans before me authorise further alteration by demolition of some more walls. However, Mr McNeill now places reliance on the following passage in Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790, (2006) 150 LGERA 1 at [52] under the heading "Planning Principle": "A development application to alter and add to a building will be taken to be that relating to a new building where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor". Planning principles such as this have been developed to provide guidance in merits appeals to the Court such as against refusals of development applications. The present case is not a merits appeal. In my opinion, this planning principle is not relevant to the issue Mr McNeill is re-agitating and does not provide sufficient reason for reopening Pain J's interlocutory decision to which I have just referred based on the original approved plans, with which I agree, and which applies equally to the modified plans. 13Although Mr McNeill did not mention it in his submissions and it therefore did not appear to be pressed, for completeness I mention that his notice of motion also seeks an interlocutory injunction "rescinding or reversing changes" made by the Council to the Avalon Beach Management Plan on 18 February 2013 to allow a restaurant and café in the surf club building (and consequential stop work orders) on the ground that (a) there was information before the Council that restaurants in Avalon had been notified of the proposed changes through the President of the Chamber of Commerce (who was in favour) and (b) a number of Avalon restaurateurs say they were not notified by the Chamber of Commerce and want the Council to reverse its decision. As the same matter was raised before Pain J in Mr McNeill's affidavit filed on 15 May 2013 and before Sheahan J in Mr McNeill's affidavits filed on 24 and 27 May 2013, it would seem inappropriate to raise the matter yet again and perhaps that is why he did not do so in submissions before me. I would only add that it is unclear what breach (if any) of the Environmental Planning and Assessment Act 1979 this is said to be relevant to (since under s 123 Mr McNeill only has standing to seek an order to remedy or restrain a breach); and that an interlocutory injunction framed in terms of (or to the effect of) rescinding or reversing changes to the Plan would, I think, be inappropriate. 14For these reasons, I am not satisfied there is a serious question to be tried. Accordingly, the applicant's notice of motion filed on 6 June 2013 is dismissed with costs. The exhibits may be returned. 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. Decision last updated: 14 June 2013