Micheal Harold Connor v Smith Hire Service

Land and Environment Court (NSW)|2017-02-03|Before: Robson J

Solicitors: Kirkby & Associates (Applicants) Thompson Cooper Lawyers (Respondents) File Number(s): 2016/00375660

Judgment

Before the Court is a Notice of Motion filed by the applicants on 27 January 2017. The Motion relates to Class 4 proceedings in which the applicants seek relief both under ss 123 and 124 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') as well as relief in tort ('Proceedings'). In the Motion, the applicants seek an order that so much of the Proceedings as do not seek relief under ss 123 and 124 of the EPA Act, or alternatively the whole of the Proceedings, be transferred to the Supreme Court. The respondents' position is that the whole of the Proceedings should be transferred to the Supreme Court.
The Proceedings concern neighbouring properties. The first respondent's property contains an open pit quarry operated by both the first and second respondents, which was the subject of a Development Consent. The respondents deposited overburden extracted from the quarry on top of a noise bund and to its north, creating a stockpile. In December 2010 the applicants' property was subject to a landslip, the operative cause of which is contended by the applicants to be the weight of the stockpile. The applicants are seeking compensation for the alleged damage and repair to their property.

Jurisdiction of this Court

In a Statement of Claim filed on 15 December 2016, the applicants seek relief as follows: 1. Damages pursuant to ss 123 and 124 of the EPA Act. 2. Damages, including aggravated damages, for trespass to land. 3. Damages for nuisance by reason of the pressure on and encroachment of soil onto the applicants' property from the first respondent's property. 4. Damages for negligence. 5. Interest. 6. Costs.
This Court is a superior court of record with jurisdiction as provided in the Land and Environment Court Act 1979 (NSW) ('LEC Act'). While the relief sought under sub paragraph (a) of the above paragraph clearly falls within this Court's Class 4 jurisdiction set out in s 20 of the LEC Act ('EPA Claims'), the relief sought in sub pars (b)-(d) relate to the common law of tort ('Tort Claims').
There is well established authority that this Court does not have the jurisdiction to hear claims in tort simpliciter; see National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 580-581; NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; [2001] NSWLEC 5 at [28]. Accordingly, this Court is prima facie not able to adjudicate on the Tort Claims.

Ancillary jurisdiction

There is a question as to whether the Court has jurisdiction over the Tort Claims by virtue of s 16(1A) of the LEC Act, which vests the Court with jurisdiction over matters not otherwise within the Court's jurisdiction provided that the matter is "ancillary to a matter that falls within its jurisdiction". While neither party relied on this point in argument I have nonetheless considered its application. I have however, for the reasons set out below, concluded that the Tort Claims do not fall within the Court's ancillary jurisdiction.
The scope of this Court's ancillary jurisdiction was considered by Talbot J in N Stephenson Pty Ltd v Roads and Traffic Authority (NSW) (1994) 83 LGERA 248, with His Honour stating at 266: …the role of something that is ancillary is to provide assistance to achieve a primary objective to which it is subservient. It does not have a separate or independent existence. Its purpose is to facilitate the achievement of the principal claim.
Justice Pearlman provided further commentary in NTL Australia Pty Ltd v Minister for Land and Water Conversation (2001) 112 LGERA 403; [2001] NSWLEC 5 stating at [28]: Although s 16(1A) amplifies to some extent the jurisdiction of this Court, it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix v Pittwater Council)… Section 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within its jurisdiction, such as a claim for damages for tort or trespass (eg Mitchell v Waugh).
Applying this approach to s 16(1A) of the LEC Act to the matters in the present Proceedings, it is clear that while the Tort Claims arise from the same facts as the EPA Claims, they are not ancillary in the sense that it is not necessary to determine the Tort Claims in order to determine the EPA Claims. Rather, the Tort Claims are presented in pars 33-35 of the Statement of Claim as being claims in the alternative to the EPA Claims, and in that sense are quite separate from and independent of the EPA Claims. Accordingly, it stands that the Tort Claims are not ancillary to the EPA Claims, and s 16(1A) of the LEC Act does not bring the Tort Claims within the jurisdiction of this Court.

Transfer of proceedings

Before considering whether the Proceedings should be transferred in part or whole to the Supreme Court, it is useful to consider the legislative provisions governing the jurisdiction of this Court and the transfer of proceedings between this Court and the Supreme Court. Section 71 of the LEC Act vests this Court with exclusive jurisdiction to hear and dispose of certain proceedings, with the EPA Claims clearly falling under this exclusive jurisdiction. Section 149B(1) of the Civil Procedure Act 2005 (NSW) ('CP Act') provides for the transfer of proceedings between the Supreme Court and this Court if either court is satisfied that it is "more appropriate" for the proceedings to be heard in the other court. Section 149D of the CP Act provides that proceedings the subject of the transfer are taken to continue as if the proceedings had been commenced in the transferee court on the date on which they were commenced in the transferor court. Importantly, s 149E of the CP Act vests the transferee court with all of the jurisdiction of the transferor court in relation to the proceedings the subject of the transfer.
The applicants submit that the Supreme Court cannot hear the EPA Claims by virtue of s 71 of the LEC Act, and that this Court cannot hear the Tort Claims, and that therefore the proceedings should necessarily be split between the two courts. Further, rather than transferring the EPA Claims to the Supreme Court now however, the applicants rely on the judgement of Ward J (as Her Honour then was) in 262 Military Road Mosman Pty Ltd v The Owners Strata Plan 72814 [2012] NSWSC 263 to argue that this Court should stay the Tort Claims pending determination of the EPA Claims. Given that the Tort Claims are only relied upon to the extent the EPA Claims are unsuccessful, the applicants submit that transfer of proceedings to the Supreme Court will only be necessary should the EPA Claims not be made out. Alternatively, the applicants contend that if the Court decides to transfer the Tort Claims only now, the applicants will apply to the Supreme Court to stay those proceedings pending determination of the EPA Claims in this Court. Importantly, the applicants made clear that they are reliant on the Tort Claims being transferred as opposed to being struck out by this Court, as the applicants would now be time barred from commencing proceedings in the Supreme Court.
The respondents agree with the applicants' position that the EPA Claims fall within the exclusive jurisdiction of this Court, and that the Tort Claims fall outside the jurisdiction of this Court. However, the respondents rely on s 149E of the CP Act to submit that transferring the Proceedings to the Supreme Court would vest the Supreme Court with the jurisdiction to hear and dispose of the EPA Claims, despite s 71 of the LEC Act.
The parties are therefore in agreement as to the fact that the EPA Claims and the Tort Claims cannot both be heard together in this Court. The question then becomes whether the EPA Claims and the Tort Claims should and indeed can be heard together.
Having considered both approaches to the legislative regime governing the transfer of proceedings, I have concluded that the respondents' construction is the preferable approach.
Once it is accepted that the Tort Claims fall outside of the jurisdiction of this Court, the two options put forward by the applicants are either to transfer the Tort Claims to the Supreme Court or to stay the Tort Claims. Dealing with the first option, it is questionable whether s 149B of the CP Act indeed allows for the transfer of part only of proceedings. Adopting a plain language approach to the section militates against this construction, and the applicants were unable to put forward any authority in support of the position. In any case, both options proposed by the applicants have the practical effect of splitting the Proceedings - a result which goes against the just, quick and cheap resolution of the Proceedings (see s 56 of the CP Act). Given that both the Tort Claims and the EPA Claims arise from the same factual scenarios, involve the same parties and rely on the same evidence, the interests of justice lie in favour of avoiding duplication and hearing the two claims together (see analysis of Pepper J of factors relevant to the exercise of discretion in transferring proceedings pursuant to s 149B of the CP Act in Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33 at [37]).
Once it is established that it is preferable to hear the Tort Claims and EPA Claims in the same proceedings, it is evident that this Court cannot be the appropriate forum for these Proceedings. As such, the more appropriate course is to transfer the Proceedings to the Supreme Court. Whilst s 71 of the LEC Act does vest exclusive jurisdiction of the EPA Claims in this Court, it is clear that s 149E of the CP Act allows this Court to transfer that jurisdiction to the Supreme Court. With respect to the applicants, s 149E of the CP Act must be read in this way so as to give effect to the provision. Division 2A of the CP Act clearly envisages that proceedings may be transferred between this Court and the Supreme Court, and it follows that jurisdiction accordingly must flow.
Although the Notice of Motion seeks that costs be reserved, in the circumstances of s 149D(3) of the CP Act, which states that the issue of the costs of any transfer application is to be determined by the transferee court, in this case the Supreme Court, I make no order in relation to costs.

Orders

The order of the Court is that the Proceedings be transferred to the Supreme Court.

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: 13 February 2017

Civil Procedure Act 2005(NSW)ss 149B, 149D, 149E

(2001) 112 LGERA 403

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