Rodney Duarte v Waverley Council

The Rosses Install a Ducted Air Conditioning System

1. The relevant basal facts underlying the applications were largely uncontroversial and were contained in the documents filed with the Court, including the affidavit of Jonathon Ede, solicitor for the Council, affirmed on 28 April 2022, and the affidavit of Duarte dated 14 March 2022.
2. Duarte is the occupier of a semi-detached dwelling at 13 Birrell St, Queens Park, Lot 3 Deposited Plan 706513 ("Duarte's property"). Adjoining Duarte's property is a dwelling at 15 Birrell St, Queens Park, Lot 4 Deposited Plan 706513, owned by Jacqueline and Murray Ross ("the Ross property"). The properties are over 100 years old and are heritage items.
3. In March 2011 the Council issued development consent DA588/2010 for the provision of an attic storage area and an associated dividing wall at the Ross property. A construction certificate for the works was issued on 22 August 2012 and an occupation certificate on 3 November 2012.
4. In early 2018, the Council received a complaint from Duarte regarding the installation of a ducted air conditioning system at the Ross property.
5. On 14 March 2018 the Council issued the Rosses with a notice of intention to give a compliance order under Sch 5 of the Environmental Planning and Assessment Act 1979 ("EPAA") ("the NOI") in respect of the attachment of an air conditioning condenser associated with the air conditioning system attached to the wall of the Ross property.
6. In response to the NOI, the Rosses sent a letter to the Council on 4 April 2018, inviting the Council to consider making an alternative order to that anticipated by the NOI.
7. Following negotiation, on 3 September 2018 the Rosses submitted an application for a building certificate with the Council in respect of the air conditioning condenser. The Council issued the building certificate on 26 April 2019.
8. The air conditioning system installed at the Ross property comprises the external air conditioning condenser and an internal unit that is installed in the attic of the dwelling. Duarte complains that the internal unit is noisy and runs day and night. The internal unit is in close proximity to his bedroom, and consequently, he is unable to sleep due to the noise generated by the operation of the unit. The impact on his sleep has, he claims, been highly disruptive and has led to various health problems. Duarte attached medical evidence to this effect to his affidavit.
9. In an attempt to resolve the ongoing noise issue, Duarte has complained to the Council, complained to the New South Wales Police ("the Police"), complained to the New South Wales Ombudsman ("the Ombudsman"), complained to the Environment Protection Authority, and has commenced proceedings in the Local Court - which were subsequently withdrawn by him with a costs order made against him.
10. Duarte has also commenced multiple Class 4 proceedings in this Court in respect of the air conditioning system. The increasingly lengthy litigation history in respect of this subject matter was set out in Ede's affidavit. Notably, Duarte commenced Class 4 proceedings against the Rosses and the Council raising similar claims to those raised in the proceedings the subject of these applications. Duarte subsequently discontinued proceedings against the Council. A final hearing against the Rosses proceeded on 13 April 2022. Judgment is reserved before Duggan J.
11. On 14 March 2022 Duarte commenced the present proceedings against the Council.

Summons in Matter 2022/73272

1. In matter 2022/73272 Duarte filed a summons which relevantly states: Remove the illegal air ducted air conditioning unit. Indoor unit does not comply with DA 588 / 2010. Remove completely. Wall is not "Double Brick" as stated. Does not comply with BCA 2004. 2 SOLID CLAY bricks thick dis continuous construction. (Air gap ) Does not comply with standard air cond rules AIRAH. FS 27 , EPA, BCA etc. Not permitted to install near bedrooms. Not permitted to have outdoor unit near bedrooms of house. OUTDOOR unit is 69 dBA marked on unit 10kW Diakin. (not 56 dBA ) Does not meet requirements of the SEPP 2008 residential air cond. Several items. Heritage area must install on ground at rear of property. 75 mm HEBEL blocks is not strong enough to build on Structural failure. Build 2 SOLID Clay bricks thick wall. In Attic. See email 5th Jan & 21 Feb 2019. To Mr Mark Featherstone and others. House does not comply with the BASIX requirements. Order to comply. Under side steel roof is not insulated. Extra heat load and heat loss. Must fit an exhaust fan in Kitchen to remove heat and exhaust gases dangerous. Remove the Energy Australia OFF PEAK energy supply. Mis use to break law. Using this all night to torture me. Should be flat rate. Remove ceiling fans from bedrooms. Improper install. Not a detached house. Fans tend to have worn bearings and blades make noise transferred through Rafters. Use floor standing pedestal fans. Second time Fraud and false and misleading info. By Stallion air cond and signed by Murray Ross and Jacqui Ross. No Double brick wall several items do not comply. Cancel the Order from Local court to pay $10880 approx. Fraud info did not supply a copy to me at or before hearing in local court for noise abatement order. Compensation for the hardship and suffering for 3 and 8 months. Duty of care OH & S act. NSW Ombudsman requires fix within 10 days. Order Nos 17 and no 15 to connect stormwater line to Council stormwater Birrell street. BCA , EPA, AS 3500.3. line cut in 2000 at No 11. Mark Gollins Waverley council. Council approved Advanced plumbing not to reconnect. NO 11 Birrell St. now has a pit but not connected to the council stormwater drainage. Already caused $20,000 approx damage to property. From 19, 17 , 15, Stormwater. Sewer line was also damaged. approx $4000 spent to renew. Also require no 107 Newland street to fix gutter . Forgot to do water entering rear 13.. For nos 15 and no 17 I have already installed a 100 mm pipe to Street. Under pavement Sept 2015. Said they would pay , but did not pay. Labour intensive work not plumbing. 3 laws to comply. Only MR Sandeep Singh knows he has inspected the place and has photos. People working in the council are not tuned in to the problems or do not care to read. Small jobs which should take a few days. They drag out and do not get done. In the case ofNo 11 Birrell street out door air cond units. False and misleading info given to the NSW Ombudsman who are not trained in this. Just to assume people in council know is wrong. They get paid from our rates and taxes. 35 years. I am a customer.
2. Duarte seeks relief in the following terms: 1. Remove illegal air cond. ... ceiling space no 15 Birrell Street, Queens Park 2. Party wall in ceiling is not "Double Brick" as claimed but 75 HEBEL Blocks. Structurally not strong enough to build on. Aerated concrete does not stop any sound/noise … 4. Mr Fritz Funke also needs to be taken to task does not know that 75 HEBEL Blocks do not comply with BCA. 2004. Reg 2SOLID & HAY Brick. 5. Council order to pay $10880. fraud docs supplied in Waverley Court 6. Compensation for hardship. No sleep. 3 years 8 months. 7. Stormwater line must connect to Birrell Street Council stormwater drainage. Approx $20,000. damage + sewer line had to be replaced. Ask SANDEEP Singh. 8. Waverley Council has failed also: Duty of care under the O.H & S. act. No action taken. 9. Paula Masselos and Elaine Keenan failed to speak to me running away at present meetings. Breach of oath taken.
3. After lengthy discussion at the hearing of the notices of motion, Duarte confirmed that this summons raised the following complaints: 1. first, the air conditioning system installed at the Ross property was unlawful ("the air conditioning system complaint"); 2. second, the HEBEL blocks partition wall in the attic between the two properties was not properly constructed and was not structurally sound. It offers insufficient acoustic protection from the noise generated by the operation of the internal unit ("the partition wall complaint"); 3. third, fraudulent, false and misleading information was given by the Rosses and by Stallion Airconditioning Pty Limited ("Stallion") (who installed the ducted air conditioning system) to the effect that the partition wall was constructed using double bricks when it was not ("the fraudulent information complaint"); 4. fourth, the order made by the Local Court that Duarte pay $10,880 was induced by fraud and should be overturned ("the Local Court costs order complaint"); 5. fifth, that he should be awarded compensation for "hardship and suffering" ("the compensation complaint"); 6. sixth, that the Rosses and the occupiers of 17 (and possibly 11) Birrell St were not made by the Council to reconnect a stormwater line on Birrell St upon its disconnection ("the stormwater complaint"); 7. seventh, the Council did not require the occupants of 107 Newland St to fix their gutter ("the gutter complaint"); 8. eighth, the outdoor air conditioning units at 11 Birrell St were unlawful ("the outdoor air conditioning units complaint"); and 9. nineth, false and misleading information was given to the Ombudsman ("the Ombudsman complaint").
4. An out of time complaint (see r 59.10 of the UCPR) concerning the validity of the building certificate was abandoned by Duarte at the hearing of the notices of motion.

Summons in Matter 2022/73310

1. In matter 2022/73310 the summons states: Under the protection of Environment operations act 2017 Noisy domestic equipment not to be run. 10 pm to 7 am weekdays and till 8 am weekends and public holidays. I have records since 6 Nov 2017 . That the neighbour has been running this INDOOR UNIT. 75 HEBEL blocks does not stop noise. Not "DOUBLE brick "as claimed See fact sheet 5 on noise Adelaide city Council. My email 5th Jan & 21 Feb 2019 . Wall does not comply BCA 2004 . Fraud info was presented at the Waverley local court and not given me a copy Before the case or during hearing. They even have been running this machine on the time during times they have been away. Complaint to the Minister office Environment. The EPA contacted me and directed me to The PDF file For councils how to act. Many pages. See 4.2.2 supplied. When the authorised person has not heard the sound. Keep record of 7 days, how it affects you. Stat dec etc . I had given this to the Waverley Council Feb 2018 . But they refused to act. Breach of the Duty of care under the OH&S act. As well. I have sent this info to the Councillors more than twice but no response. They do not read. Mobile phones useless. Order use of laptops as well. The neighbour Murray Ross and Jacqui Ross and Nicola Craven Cockburn and Co. have provided false statement and docs from Stallion air cond. Copy I got from the Waverley court and you have on file. Noise has been on going since 6 Nov 2017. Keeps me awake. Destroyed my health and my life. See pages on timer on wall supplied. Can be run on FAN 3 speeds .without heat or cool. Since 6 Nov 2017 . see docs provided . Waverley court has lost or misplaced 4 medical certs. I want compensation as per the act . $300 a day.
2. Duarte sought the following relief in that summons: Under Protection of Environment Operation Act 2017 clause 45 noise domestic equipment. See 4.2.2. instruction to Councils from EPA when noise can't be heard by Authorised persons. Nicola Craven Cockburn & Co. provided to Waverley Court 2 fraud docs. 1. Statement from Murray Ross says can't run the INDOOR UNIT. But the pages on TIMER show that INDOOR unit can be run on FAN ONLY. running all night every night since 6 NOV 2017. no sleep. Destroyed my health, and my life. Order to STOP USING THIS equipment. 2. Fraud doc from Stallion air Cond Mascot No Double brick wall. - Mr Mark Hanniford. Require compensation for pain and suffering and being TORTURED every night. Unacceptable NSW ombudsman requires that the problem be fixed in 10 days. When related to HEALTH. Waverley Council staff, refused to read my emails especially 5th Jan 2019, and 21 Feb 2019. NO ACTION. Councillors running away. Accepted fraud info. Require compensation for ruining my health, sleep and life trying to KILL me. Must pay me for my advice.
3. Again, after considerable discussion with Duarte, it appears that the summons raises the following issues allegedly under the Protection of the Environment Operations Act 1997 ("POEOA"): 1. first, the air conditioning system complaint was repeated; 2. second and third, the partition wall and the fraudulent information complaints were repeated; 3. fourth, the Local Court costs order complaint was repeated; 4. fifth, that the Council failed, despite requests by Duarte to do so, to issue a noise abatement direction in conformity with section 4.2.2 of the EPA's 2013 publication Noise Guide for Local Government ("the Noise Guide") ("the noise abatement direction complaint"); 5. sixth, that the Council breached its duty of care under the Occupational Health and Safety Act 2000 ("OHSA") ("the breach of the OHSA complaint"); and 6. seventh, the compensation complaint was repeated.

The Relevant Legal Principles in Applications for Summary Dismissal

1. The legal principles applicable to the exercise of the Court's power to summarily dismiss proceedings are briefly summarised: 1. the power to dismiss proceedings without a substantive hearing should only be exercised in "plain and obvious" cases, that is, where the applicant's case is "so clearly untenable that it cannot possibly succeed" (General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 129-130). There must be "a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way" (Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]. This formulation was reiterated and repeated in Batistados v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] and Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 at [30]); 2. the Court cannot dismiss an action "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it" (Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 91 and Spencer at [54]-[55]); 3. allegations of fact contained in an application or pleading relevant to the causes of action should be assumed to be established. Great caution must be exercised in dismissing a case summarily "where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact" (Webster v Lampard (1993) 117 CLR 598; [1993] HCA 57 at 603); 4. although the exercise of discretion contained in r 13.4 of the UCPR requires a high degree of certainty, the operation of that rule in light of the overriding purpose contained in s 56 of the Civil Procedure Act 2005 ("CPA") encourages a practical judgment in respect of the applicant's prospects of success (McDonald v Grech [2012] NSWSC 717 at [32]-[34]); and 5. the Court is not precluded from hearing argument, even if extensive, in determining whether or not the applicant's case is untenable (General Steel at 130).
2. In RD Miller Pty Ltd v Roads and Maritime Services NSW [2019] NSWLEC 129 Robson J relevantly opined that (at [61]-[63]. His Honour's reasons were upheld on appeal in RD Miller Pty Ltd v Roads and Maritime Services NSW (2020) 103 NSWLR 234; [2020] NSWCA 241 at [1] and [104]): 61 In Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75], Macfarlan JA (with whom Spigelman CJ and Allsop P concurred) stated (in relation to a matter of summary dismissal): Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as "so obviously untenable that it cannot possibly succeed" and "manifestly groundless" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently. 62 More recently, Macfarlan JA reiterated that point in James v Australia and New Zealand Banking Group Ltd (2018) 97 NSWLR 663; [2018] NSWCA 41 at [42], where his Honour stated: Although summary judgment should not be given, or leave to amend pleadings refused, on the ground of lack of merit except in clear cases, the opportunity to take such a course will, as I pointed in Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90 at [75] (with the concurrence of Spigelman CJ and Allsop P), often arise where questions of law are involved. At [76] and [77], I cited a number of cases in which claims were summarily dismissed or struck out as a result of the determination of questions of law. In contrast, where questions of fact are involved, summary determination will frequently be precluded by the Court's inability to foresee the precise manner in which the evidence will unfold. 63 I consider that the Court's discretion in matters such as the present should be guided in such a way that rr 14.28 and 13.4 of the UCPR give effect to the overriding statutory purpose set out in s 56(1) of the Civil Procedure Act to facilitate the just quick and cheap resolution of the real issues in the proceedings: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29] (per Spigelman CJ; Basten JA; Campbell JA agreeing).
3. To similar effect, White JA made the following apposite remarks in Ugur v Attorney General for New South Wales [2019] NSWCA 86 (at [70]-[71]): 70 One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications. 71 The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128-129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] ("Spencer v Commonwealth"); and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).

The Summonses Must Be Dismissed

1. The Council submitted that both summonses should be summarily dismissed pursuant to r 13.4(b) of the UCPR on the grounds that the claims contained therein were either beyond the jurisdiction of the Court, disclosed no reasonable cause of action, or were improperly constituted insofar as not all necessary parties to them had been joined to the proceedings. For the reasons that follow, these submissions are, in my opinion, correct.
2. Before dealing with each complaint raised in the two summonses, it is necessary to make the following observations concerning the jurisdiction of the Court and the joinder of all necessary parties to proceedings.

The Jurisdiction of the Court

1. The Court is a superior court whose jurisdiction is wholly conferred upon it by statute, namely, the Land and Environment Court Act 1979 ("LEC Act") (NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd (2019) 371 ALR 719; [2019] NSWCA 182 at [21] and ss 5 and 16 of the LEC Act).
2. Section 20 of the LEC Act sets out the jurisdiction of the Court to hear and dispose of matters falling within Class 4 of the Court's jurisdiction. It relevantly states: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement (1) The Court has jurisdiction (referred to in this Act as "Class 4" of its jurisdiction) to hear and dispose of the following - ... (c) proceedings under section 9.45 of the Environmental Planning and Assessment Act 1979, ... (ci) proceedings under Part 8.4 of the Protection of the Environment Operations Act 1997, (cia) proceedings under sections 247 and 307 of the Protection of the Environment Operations Act 1997, (cib) proceedings under the Protection of the Environment Operations Act 1997, section 251A, ... (d) proceedings under sections 673 and 674 of the Local Government Act 1993, ... (e) proceedings referred to in subsection (2). (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract. ... (3) For the purposes of subsection (2), a planning or environmental law is - (a) any of the following Acts or provisions - ...Environmental Planning and Assessment Act 1979, ... Part 2 of Chapter 6, Chapter 7 or Chapter 15 of the Local Government Act 1993, ... Protection of the Environment Operations Act 1997, (b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979…
3. It should be noted that absent from the legislation identified above are the following enactments: 1. the Local Court Act 2007; 2. the Ombudsman Act 1974; and 3. the Work Health and Safety Act 2011, the successor to the now repealed OHSA.
4. Section 16(1A) of the LEC Act confers upon the Court an ancillary jurisdiction: 16 Jurisdiction of the Court generally (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
5. While the outer limits of this jurisdiction have not yet been fully traversed, in Gracewood Australia Pty Ltd v State Water Corporation [2008] NSWLEC 292 Biscoe J observed as follows (at [13]): 13 Section 16(1A) was enacted following National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) in which the Court of Appeal held that the Land and Environment Court has no jurisdiction to deal with a claim in tort for general damages. It has been held that "ancillary" is to be read as "incidental", "accessory" or "auxiliary": Scharer v State of New South Wales (2001) 53 NSWLR 299 (CA) at 308 [51] quoting Gleeson CJ in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 205. Thus, there must be a "matter" falling within jurisdiction, in relation to which the s 16(1A) matter is incidental, accessory or auxiliary. In Nix, Gleeson CJ stated that a claim for damages for nuisance could not reasonably be regarded as ancillary to Class 4 proceedings alleging the carrying out of unauthorised earthworks in breach of the Environmental Planning and Assessment Act 1979. In Scharer, Stein JA (Hodgson JA agreeing) held that a claim for damages for obstructing a right of way in a national park was ancillary to proceedings in this Court in its exclusive jurisdiction to enforce that right of way. In Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95 at [21], Pearlman J held that a claim for damages for negligence arising out of the installation of a sewerage system was not ancillary to a claim for alleged breaches of a development contract within the Court's jurisdiction. There is also a line of authority in this Court that before s 16(1A) can be invoked there must be a matter "pending before the court" to which another matter in the same proceedings can be said to be ancillary: Porter v Hunters Hill Council (2003) 131 LGERA 144 at [60], [63], [64] and the cases there cited (Pain J). In Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249 at [50], Spigelman CJ (Bell JA and Handley AJA agreeing) said: It is clearly desirable, in the interests of avoiding further proceedings, that the Land and Environment Court should be able to determine whether or not a person who has made a payment pursuant to a condition of a consent which is challenged is entitled to a refund and, if so, how much. Although the legal principles involved in such proceedings are not within the usual jurisdiction of that Court, such an issue is so clearly related to the issues before the Court that they should be resolved together. It may be that the requisite jurisdiction is conferred by s 16(1A) of the Land and Environment Court Act , but that section was not relied upon in these proceedings…

Joinder of All Necessary Parties to the Proceedings

1. As was remarked upon by the Court of Appeal in Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35, the principles applicable to the joinder of parties are settled (at [17] and [18], footnotes omitted): 17 The principles applicable to the joinder of parties are well settled, although their application in particular cases may give rise to controversy. They were stated by Leeming JA in Ross v Lane Cove Council: "[51] It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. [52] In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between 'legal' and 'commercial' interests. His Lordship said at 56: 'A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?' [53] That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131], a unanimous High Court said: '[131] Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.' (Citations omitted) [54] Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526: 'In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised.' (Emphasis added) [55] In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]: '[140] … News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation.' [56] … [57] … The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order. That is why the High Court referred to the position of the non-party Walker Corporation in John Alexander's Clubs at [153] as depending on 'matters of right affecting non-parties which rest on general law principles of natural justice'. [58] For that proposition, the High Court cited State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 at [77], where McHugh J said: '[77] The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order.' (Footnote omitted)" 18 The omitted footnote from State of Victoria v Sutton (footnote (77)) stated that "[t]his rule is derived both from the common law and by implication through the power of courts to join parties who are necessary and proper for hearing", citing the predecessor to the rules invoked in this case.
2. In both of the present sets of proceedings, Duarte makes claims against, and seeks relief in respect of, persons who are directly affected by the orders that he is seeking. He has not, however, joined these persons, as he must, to either set of proceedings. Thus, in respect of the: 1. air conditioning system complaint, Duarte has not joined the Rosses notwithstanding that he seeks relief involving the cessation of use or the removal of the air conditioning system that they have installed; 2. fraudulent information complaint, despite the very serious nature of the claim Duarte has not joined either the Rosses or Stallion; 3. stormwater complaint, Duarte has not joined the owners of 17 (and possibly 11) Birrell St even though he seeks an order that the Council compel these persons to reconnect the stormwater line; 4. gutter complaint, similarly, the owners of 107 Newland St have not been joined; and 5. outdoor air conditioning units complaint, the owners of 11 Birrell St have not been joined by Duarte.
3. The failure to join the necessary parties in respect of these claims renders the proceedings defective in relation to many of the complaints raised in both summonses.
4. It is questionable, however, whether the summonses are amenable to be dismissed on this basis alone. Were this their only vice, the appropriate course would be to stay or adjourn the proceedings pending joinder of the putative parties. But, as is evident from the reasoning below, the initiating processes contain other more fundamental defects.

No Reasonable Cause of Action Is Disclosed

1. Upon examination of the claims made in each summons, and applying the legal principles with respect to dismissal set out above, it is apparent that no reasonable cause of action is disclosed in either set of proceedings and that they both ought to be dismissed.

Summons 73272

1. That there is no reasonable cause of action disclosed in this summons is manifested as follows. That is, in respect of the: 1. air conditioning system complaint, which is essentially a civil enforcement claim, no articulated breach by the Council of any legislation over which the Court has jurisdiction is identified; 2. the same may be said of the partition wall complaint. Although, more detail is given by Duarte as to the alleged structural and acoustic deficiencies of the wall, he does not identify any unlawful activity on the part of the Council (or for that matter the Rosses) or any breach of any relevant legislation; 3. fraudulent information complaint, essential details such as who made the claims and in what context have been omitted. Even assuming that a statement was made about the materials used to construct the partition wall that was incorrect, it is not clear how this gives rise to any cause of action for which the Council can be liable; 4. Local Court costs order complaint, as has been explained to Duarte in earlier proceedings before this Court dealing with exactly the same subject-matter that was discontinued by him, this Court has no jurisdiction to overturn a costs order made in civil proceedings in the Local Court. It is not clear if Duarte can appeal against the costs order given the effluxion of time, but if so, this Court has no basis for entertaining it, especially when the Council was not a party to the proceedings in which the order was made (the beneficiaries of the order were the Rosses). Again, no details whatsoever of the alleged fraud have been provided by Duarte; 5. compensation claim, Duarte provides no cogent details of what he should be compensated for or by whom. In such circumstances it is impossible to ascertain if this Court has jurisdiction to make such an award against the Council; 6. stormwater claim, it was not clear if this was being put as a nuisance claim or a breach of duty claim. If the former, the Court has no jurisdiction to hear the matter; if the latter, then the basis of the duty was not identified and, in any event, the Council is under no legal obligation to act on a statutory power at the insistence of a third party. That is, the Council has the right to exercise its discretion not to take action (Ryde City Council v Echt (2000) 107 LGERA 317; [2000] NSWCA 108 at [50]-[63]); 7. gutter and the outdoor air conditioning units complaints are in the same category as the stormwater complaint. In relation to each, neither the statutory power suggested to be enforceable by the Council has been identified by Duarte nor has any unlawful activity been identified that requires action to be taken on the part of the Council; and 8. Ombudsman complaint, again, Duarte has not provided even the most basic details as to what information was provided by whom or how it is fraudulent. No nexus between the Council and the information to the Ombudsman has been given. No cause of action can be discerned.
2. Finally, to the extent that it was suggested that various Council officers had breached an obligation to communicate with Duarte, the source of this duty has not been identified by him. Moreover, the affidavit evidence of Ede demonstrates that the Council has not, as he claims, simply ignored Duarte's complaints.
3. Even making accommodation for the fact that Duarte is a litigant in person with limited curial experience (Dubow v Mid-Western Regional Council [2021] NSWSC 225 at [41]), as currently framed, proceedings 73272 are certain to fail, irrespective of the epithet used to describe the likely success or otherwise of his claims. No cause of action, or real question of fact or law, is able to be discerned or entertained by this Court in the summons, let alone any reasonable cause of action.
4. Put another way, as framed, it is impossible for the Council (or the Court, for that matter) to ascertain the case it must answer. No amount of redrafting of the summons will assist in this endeavour.
5. It is no longer the case, if it ever was, that judicial resources ought to be devoted to permit applicants to commence and prosecute proceedings where it is tolerably clear that they do not have a reasonable prospect of success. Were it otherwise, the overriding purpose contained in s 56 of the CPA would be subverted.
6. For these reasons proceedings 73272 must be dismissed.

Summons 73310

1. The reasoning expressed above in relation to the dismissal of summons 73272 applies to the claims raised in proceedings 73310, save for two complaints.
2. First, in relation to the noise abatement direction complaint, Duarte's claim appears to be that the Council failed to issue a noise abatement direction in accordance with section 4.2.2 of the Noise Guide. Duarte submitted that he requested that the Council and the Police issue a noise abatement direction to the Rosses and that they failed to do so.
3. Section 4.2.2 of the Noise Guide relevantly states that: 4.2.2 Noise Abatement Directions Noise Abatement Directions can be issued if offensive noise: - is being emitted, or - has been emitted at any time within the past seven days from any premises. The direction lasts for up to 28 days (POEO Act ss. 275-279). Scope Noise Abatement Directions are useful for quickly dealing with temporary noise problems such as loud music, where the noise can reasonably be reduced or stopped. A direction is an official instruction that offensive noise must cease. A direction can be issued within seven days of the offensive noise occurring and lasts for up to 28 days. Using a Noise Abatement Direction A Noise Abatement Direction can be issued if it appears to an authorised person that offensive noise is being made or has been made in the past seven days (POEO Act s. 276). An 'authorised person' is an 'authorised officer' (i.e. a person appointed by an ARA under s. 187 of the POEO Act) or a Police officer. Offensive noise is defined in the POEO Act. In deciding whether a particular noise is offensive the authorised person would need to apply the definition of offensive noise from the POEO Act and consider what a reasonable person would find offensive. Determining offensive noise is discussed in detail in Part 2 of this Guide. The authorised person need not have witnessed the offensive noise before issuing a Noise Abatement Direction. For the direction to be issued, it is sufficient for it to appear to the authorised person that offensive noise occurred in the past seven days. Where an authorised person has not heard the noise, it is preferable to ask witnesses to make a signed statement about the noise and its effect on them. A template for a Noise Abatement Direction is included as Appendix 2. Power to issue a Noise Abatement Direction An authorised person can issue a Noise Abatement Direction to: ● the occupier of the premises concerned, or ● the person making or contributing to the making of the offensive noise. Section 275 of the POEO Act enables: ● EPA authorised officers to issue a Noise Abatement Direction in 'any case' ● Council authorised officers and Police officers to issue a Noise Abatement Direction in 'any case' other than those detailed in the restrictions noted below ● RMS authorised officers to issue a Noise Abatement Direction in relation to vessels on navigable waters other than as restricted below.
4. Section 276 of the POEOA provides: 276 Issue of noise abatement directions If it appears to an authorised person that offensive noise is being, or has at any time within the past 7 days been, emitted from any premises, the authorised person may - (a) direct the person whom the authorised person believes to be the occupier of the premises to cause the emission of the offensive noise to cease, or (b) direct any person whom the authorised person believes to be making or contributing to the making of the noise to cease making or contributing to the making of offensive noise, or both.
5. A council officer is an "authorised officer" for the purpose of s 276 of that Act.
6. The power conferred upon the Council to issue a noise abatement direction under that provision is discretionary ("may"). There is, therefore, no obligation upon the Council to issue such a direction, irrespective of Duarte's request, created either by statute or by the Noise Guide (Echt at [50]-[63]). Accordingly, no cause of action is maintainable by the noise abatement direction complaint.
7. It should be noted in this regard, that there appears to be nothing preventing Duarte from, as an occupier of the premises, applying to the Local Court for a noise abatement order under s 268 of the POEOA.
8. Second, in respect of the breach of the OHSA complaint, as indicated earlier in this judgment, the Court does not, either under ss 16(1A) or 20 (or any other provision) of the LEC Act have jurisdiction to hear this claim. Again, no reasonable cause of action is disclosed by it.
9. As a consequence, the summons in matter 73310 must also be dismissed.

The Duarte Motions

1. It is strictly not necessary to deal with Duarte's motions in the two sets of proceedings given that they have been dismissed.
2. However, in case I am wrong, I would not have made the orders sought in his notices of motion for the following reasons: 1. first, as explained above, the summonses are defective insofar as all necessary parties have not been joined to the proceedings; and 2. second, as the Ede affidavit makes plain, there has been delay on the part of Duarte in commencing proceedings against the Council, both in respect of these sets of proceedings and having regard to the earlier proceedings commenced, and then discontinued, against the Council, and by electing not to press his applications when they were listed for hearing on 13 April 2022. This delay has meant that most of the matters pleaded in both summonses have already been the subject of substantive hearing before Duggan J (now reserved). Rather than expedite the hearing of these proceedings, the overriding purpose contained in s 56 of the CPA would be better served by waiting until her Honour delivers judgment given the almost identical nature of the issues raised in those matters before her.
3. Notwithstanding that there is no specific power dealing with expedition in the CPA, the UCPR, the LEC Act or the Land and Environment Court Rules 2007, the power to expedite is found in s 61 of the CPA and r 2.1 of the UCPR (Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 at [10]).
4. The principles applicable in determining whether or not the Court should exercise its discretion to grant expedition are well known and are not repeated here (see Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42-43 quoted and applied in Gandangara at [11]).
5. Applying those principles, in addition to the two reasons given above, the Court would refuse to grant expedition in both sets of proceedings because: 1. there is nothing to suggest that a witness would be unavailable or that the subject-matter would be lost if they were not heard quickly; 2. although Duarte claims to be suffering hardship occasioned by a lack of sleep caused by the noise generated by the operation of the internal unit of the air conditioning system, he seeks no orders to relieve this hardship against the Council and this hardship may be alleviated by orders made by Duggan J in the matters reserved before her; 3. as discussed above, there are fatal issues with Duarte's pleadings and the Council is not in a position to know the claims made against it. The chances of Duarte obtaining the relief he seeks is not merely speculative, it is, on the summonses presently before the Court, non-existent; and 4. the summonses do not raise matters of any greater importance than other matters presently awaiting listing or hearing before the Court.

Costs

1. Having enjoyed success in every application, the Council seeks its costs on the basis that in Class 4 proceedings costs follow the event.
2. Such an order was resisted by Duarte on the grounds of impecuniosity. Duarte claims, without any evidence, that he is a pensioner and cannot afford to pay the Council's costs.
3. However, the financial circumstances of an unsuccessful litigant are no bar to a costs order being made in favour of the successful party (Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [32]-[36] and Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302 at [55]). The Council has not, contrary to the baseless assertions made by Duarte at various stages of the hearing, engaged in any conduct that would disentitle it from a costs order being made in its favour.

Orders

1. The formal orders of the Court are as follows: (1) proceedings 2022/73310 are dismissed; (2) proceedings 2022/73272 are dismissed; (3) the notice of motion filed by Duarte in proceedings 2022/73310 is dismissed; (4) the notice of motion filed by Duarte in proceedings 2022/73272 is dismissed; (5) Duarte is to pay the Council's costs of proceedings 2022/73310; (6) Duarte is to pay the Council's costs of proceedings 2022/73272; and (7) the exhibits are to 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: 09 May 2022