Murray v Wingecarribee Shire Council

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

JUDGMENT 1 HIS HONOUR: Section 71 of the Land and Environment Court Act 1979 ("the LECA") relevantly provides that proceedings of the kind referred to in s 20(1)(e) of the LECA may not be commenced or entertained in the Supreme Court. Section 20(1)(e) refers to proceedings referred to in subs (2) of s 20. The relevant paragraphs of subs (2) specify proceedings: "(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function …"

Subsection (3) provides that for the purposes of subs (2) a planning or environmental law is any one of a number of specified statutes or parts of statutes and any statutory instrument made or having effect thereunder or made for the purposes thereof. Section 72 of the LECA provides that, where the Supreme Court is of the opinion that any proceedings commenced in the Supreme Court should have been commenced in the Land and Environment Court, the Supreme Court may order that those proceedings be transferred to the Land and Environment Court. 2 Before me is an application to transfer to the Land and Environment Court proceedings brought by the plaintiff in this Court. Those proceedings, as a matter of substance seek: "A declaration that the motion passed by the defendant on the 26th November 2003, a true copy of which is set out on page 21 of Exhibit 'MJM1' to the affidavit of Malcolm John Murray sworn 23 December 2003 is void and of no effect."

That resolution was as follows: "(1) THAT Political advertising, in all forms including posters, signs, banners and the like, fixed and movable, be prohibited on all public and private land, buildings and property in the Wingecarribee Shire.

(2) THAT the General Manager determine six appropriate prominent locations throughout the Shire for candidates at elections to be permitted to display up to 2 complying signs per location for up to one month prior to the election date." 3 The plaintiff proposes to be a candidate for election at the upcoming municipal elections apparently referred to in resolution (2). In seeking the declaration he relies on a right to have the resolution declared void on the ground that it is ultra vires and on the second and separate ground that the resolution breaches the constitutional right of communication relevant to political discussion. The latter right, he says, arises from the decision of the High Court in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. 4 The defendant contends that the proceedings fall within the jurisdictional exclusion of s 71 as being proceedings that fall within either paragraph (a) or (b) of s 20(2) of the LECA. Asked at the hearing to reduce to writing the grounds on which the defendant claims that the proceedings should be transferred, Mr Bilinsky, solicitor for the defendant, presented the following written grounds: "1. The Plaintiff seeks to enforce a right that precludes Council from purporting to regulate political advertising.

2. If such a right to advertise exists it must primarily arise by virtue of a planning or environmental law as defined in s 20(3)(a) and (b).

3. The power to make the declaration sought by the Plaintiff is therefore based on the application and interpretation of a planning or environmental law.

4. The proceedings within the jurisdiction conferred by s 20(1)(e) of the Land and Environment Court, the Supreme Court would be deprived of jurisdiction under s 71." 5 There has been discussion in a number of authorities of the incidence of these exclusionary provisions. In Bathurst City Council v Saban (1985) 55 LGRA 165 Young J (as his Honour then was) granted to the plaintiff an injunction to restrain a public nuisance arising from the use of premises as a junkyard. His Honour ruled that the Supreme Court continued entitled to restrain a public nuisance even though it may be an incidental effect of the injunction to restrain a particular use of premises contrary to a planning instrument. Perhaps the same result may have been obtained by a restraint of the use by the Land and Environment Court, but this did not affect the Supreme Court's right to restrain what was at common law a public nuisance. In a later decision relating to the same proceedings Young J in Bathurst City Council v Saban [No 2] (1986) 58 LGRA 201 at 210 pointed out that if a transfer were to be effected under s 72 it had to be a transfer of the whole proceedings. It was not possible to transfer part of the proceedings to the Land and Environment Court when another part had been determined in the Supreme Court, or leaving another part to be determined in the Supreme Court. The power to transfer can be exercised only in relation to the transfer of the whole of the proceedings. 6 In some cases it may be that even where a claim is within the jurisdiction of and could be determined by the Supreme Court, if it is clear that there is appendant jurisdiction in the Land and Environment Court to determine it, the whole proceedings should be transferred leaving that claim to be determined by that Court under the appendant jurisdiction. However, another course which may be followed, and particularly if it is not clear as to whether or not there is appendant jurisdiction, is to leave the proceedings in the first instance in the Supreme Court. If in the Supreme Court it proves at final hearing that part of the proceedings cannot be determined in this Court for want of jurisdiction, then there can be adjudication on the part within jurisdiction and the other claim will fail for want of jurisdiction, leaving proceedings to be brought in respect of that part in the Land and Environment Court, if desired. These are unfortunate results but, in the absence of any cross vesting provisions, they may be inevitable in some cases. Judges of this Court have commented on a number of occasions on the vice of the lack of cross vesting provisions, eg, East Sydney Neighbourhood Assoc Inc v South Sydney City Council [2000] NSWSC 176 at [4]; Waverley Council v Refkin Pty Ltd [2000] NSWSC 242 at [14]. 7 The question of the application of the provisions of the LECA set out above is in many cases a difficult one. This is another such case and, in my view, illustrates the unfortunate situation created by an exclusive jurisdiction provision. One class of case where there has proved to be some difficulty of characterisation is the class of case where a plaintiff, plainly (as here) not seeking to enforce a planning instrument, claims the declaration of a lack of power in a body which purports to act under a planning law. This situation was most authoritatively dealt with in the Court of Appeal in Aboriginal Community Benefit Fund Pty Ltd v The Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494. In that case Sheller JA said at 512 - 513: "Batemans Bay Local Aboriginal Land Council and New South Wales Aboriginal Land Council submitted that these proceedings were, in part, either to enforce a right, obligation or duty conferred or imposed by the Act or to make declarations of right. in relation to the exercise of a function conferred or imposed by the Act. With respect, I do not think that the proceedings based on a claim that Batemans Bay Local Aboriginal Land Council and New South Wales Aboriginal Land Council in seeking to implement the Aboriginal Land Council Scheme were acting beyond their statutory power fall within the category of proceedings described in subs (2). The appellants are neither seeking to enforce any right, obligation or duty conferred or imposed by the Act, nor are they seeking declarations of right in relation to any such right, obligation or duty or the exercise of any function conferred or imposed by the Act. The appellants contend that Batemans Bay Local Aboriginal Land Council and New South Wales Aboriginal Land Council have undertaken to do something they have no legal capacity to do and accordingly something unlawful: compare Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653 at 695. This being so the proceedings do not fall within s 20(1)(e) so that s 71(1) has no application. The notice of contention fails. His Honour was correct in the conclusion that he reached on this point."

A decision to a similar effect was the decision of Dunford J in Lester v New South Wales Aboriginal Land Council [2001] NSWSC 891. 8 In the latter case the plaintiff sought declarations and orders to the effect that his removal from office as Treasurer of the New South Wales Aboriginal Land Council was invalid as, in purporting to remove him, the Council acted beyond any power conferred on it by the Aboriginal Land Rights Act 1983, which is a planning law for the purposes of s 20 of the LECA. Relying upon the decision of the Court of Appeal in the Batemans Bay case and the dictum of Sheller JA cited above, his Honour ruled that the proceedings were within the jurisdiction of the Supreme Court. His Honour also affirmed what had been said by Young J as to the lack of power to transfer part of the proceedings in Saban [No 2] supra. 9 There is no cross claim in these proceedings. It seems clear to me that the proceedings brought by the plaintiff cannot be characterised as seeking to enforce anything arising under any planning law and cannot fall within paragraph (a) of s 20(2). The other substantive provision is in paragraph (b). Paragraph (c) really does not define the substance of proceedings but makes plain that the definition extends to proceedings seeking declaratory relief only. Mr Bilinsky conceded that he could not point to a particular provision of a planning law that authorised the impugned resolutions. He did, however, specify in further written submissions various provisions of planning laws which dealt with the defendant's powers over signage. He said, in effect, that, because these powers existed, the proceedings must be characterised as within paragraph (b) of s 20(2) as proceedings "To review ... the exercise of a function conferred ... by a planning or environmental law." 10 Although the distinction is not an entirely easy one, it seems to me that, where what is being reviewed is not the exercise of a function identifiably conferred by a provision of a planning or environmental law but the question of whether or not a power to do what has been done actually exists, jurisdiction remains in the Supreme Court by reference to the principle laid down by the Court of Appeal in the Batemans Bay case supra. 11 Furthermore, it was made plain in an earlier decision of the Court of Appeal that the relevant provisions of the LECA were to be construed as removing from this Court only power to entertain proceedings which fell within the relevant definitions. The provisions were not to be taken as depriving this Court of any power to construe or determine the ambit of provisions of planning laws in so far as those matters fell for determination in a matter which remained within the jurisdiction of this Court: see the decision of the Court of Appeal in Bryants Manly Vale Pty Limited v Francis (1986) 4 NSWLR 635 especially per Priestley JA at 642 - 643. 12 For these reasons, at least on the material available before me at this interlocutory stage, it does not seem clear that the proceedings fall within the class of proceedings excised from the jurisdiction of this Court, insofar as they rely upon a contention that the passage of the resolution was without power. Insofar as the plaintiff's claim rests on a contention that he has a constitutional right to display in public advertising material of the type contemplated and that the Council's resolution is in conflict with that right, the case is in my view even clearer. It seems to me that that claim certainly cannot be characterised as proceedings to enforce a planning instrument nor as proceedings to review the exercise of a function conferred by a planning or environmental law. 13 I have already made plain that I agree with the earlier decisions in Saban [No 2] supra and Lester supra, that it is only the whole of proceedings that can be transferred. It is certainly not clear to me in the circumstances that the Land and Environment Court has appendant jurisdiction to determine either of the questions arising in these proceedings. 14 For the foregoing reasons, the defendant's application for the transfer of the proceedings to the Land and Environment Court will be refused. The result will, therefore, be that the defendant's notice of motion dated 20 January 2004 is dismissed and the defendant is ordered to pay the plaintiff's costs of that motion. **********

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