The Owners of Strata Plan 78825 v Northern Beaches Council

The Owners of Strata Plan 78825 v Northern Beaches Council - [2024] NSWLEC 12 - NSWLEC 2024 case summary — Zoe

[51]

The Applicant has the onus of demonstrating jurisdiction exists and has not.
Concerning s 177 of the Conveyancing Act, I am bound by the Court of Appeal in Stables which addressed directly the claim the Applicant purports to make in alleging a duty of care in reliance on s 177 of the Conveyancing Act. Section 177 is expressed in the chapeau as applying in relation to the common law of negligence. The Court has no jurisdiction to entertain that part of the Applicant's claim. This was also confirmed in Van Tonder at [22]-[26] decided after Stables and the later introduction of s 16(1A) in the LEC Act.
While the Civil Liability Act is referred to in the Amended SOFC no basis identifying how the Court has jurisdiction in that regard was identified. Given the reasoning in Stables the same conclusion would apply also to the claim made in reliance on the Civil Liability Act. Neither Act is identified as an environment and planning law in s 20(3) of the LEC Act.
The Applicant appeared to submit that because it was not seeking damages in relation to a breach of a statutory duty or negligence that the Court could nevertheless have jurisdiction in relation to these matters in light of s 180(4)(f) of the LG Act. The reasoning was not clear and the power conferred on the Court to make an order cannot be a basis for conferring jurisdiction where it does not otherwise exist.
No authority supporting the Applicant's reliance on s 180(4)(f) has been provided and that is very likely to be because not such application has been made before. Apart from submitting the exercise of discretion to make orders under s 180(4)(f) is wide, which I accept and has been observed in many cases including Kosic, I did not understand the Applicant to have any other legal basis for submitting that s 180(4)(f) could operate in this way. Stating that this section provides a means for all the matters in issue to be brought before the Court in one set of proceedings is simply not a basis for establishing that the Court has jurisdiction in relation to contested legal issues.
Sections 16(1A), 22 and 23 of the LEC Act separately and collectively do not provide any legal basis for the Applicant's claims in the contested parts of the Amended Class 2 Application and Amended SOFC. I do not accept the Applicant's submission that these matters under the Conveyancing Act and the Civil Liability Act are ancillary in a legal sense to any matter within the Court's jurisdiction and NTL Australia does not support the Applicant's argument, indeed NTL Australia at [28] is contrary to it. That fundamental factual issues for the Applicant are in dispute which it wishes to litigate in legal claims does not confer jurisdiction on the Court. The Court does not need to resolve the contested issues in relation to which it does not have jurisdiction in order to consider the Class 2 appeal currently before it.
Avoidance of multiplicity of proceedings cannot result in the conferral of jurisdiction where it does not exist. Lawrence does not support the Applicant's case. That judgment considered whether to allow a Class 2 application to be changed to a Class 3 application seeking an order under s 181 of the LG Act. That passing reference was made in [54] of Lawrence to s 177 of the Conveyancing Act is irrelevant to the Applicant's argument in relation to jurisdiction.
Accordingly prayer 2 of the Application and 5.5-5.7 of the Amended SOFC should be struck out.
Paragraph 5.8 of the Amended SOFC recites sections of the LG Act concerning community land, being ss 35, 36E and 36J. It is unclear why these are set out and they did not appear to have any role to play in the Applicant's legal argument. Section 53 is no longer relied on. This paragraph should be struck out. Paragraphs 10 and 11 alleging breach of duty of care in reliance on s 177 of the Conveyancing Act are struck out also.
Paragraphs 12 and 13 introduce a new topic not identified in the Amended Class 2 Application alleging the breach of the terms and condition of an easement to drain water. The legal basis for this is not identified and I was not able to discern it from the Applicant's submissions. Reference was made to s 59A of the LG Act 'Ownership of water supply, sewerage and stormwater drainage works'. How that supports these paragraphs is unclear. No basis in the LEC Act or any other Act for founding jurisdiction was identified and these paragraphs are also struck out.
Paragraph 14 summarises the claims which I have otherwise found are not within the Court's jurisdiction and should be struck out.
Paragraph 15 seeks to rely on s 180(4)(f) of the LG Act to found mandatory injunctive orders requiring work on the Council's land and there is no legal basis to do so. It should also be struck out.

[61]

There is no dispute that the Supreme Court has jurisdiction to consider the Applicant's claim under s 177 of the Conveyancing Act and presumably the Civil Liability Act. The Applicant accepted it could commence such proceedings at any time (there was no reference to any statutory or other time limits applying).
The Applicant submitted that a transfer would enable all matters in issue between the parties to be litigated in one set of proceedings. If no transfer occurs the Applicant is potentially up for three sets of proceedings, the Class 2 Application, a Supreme Court proceeding and a Class 3 proceeding in relation to s 181 of the LG Act.
The decision to transfer proceedings to the Supreme Court is discretionary, based on a consideration under s 149B(1) of whether it is more appropriate for a proceeding to be heard in that court. Under s 149E of the CP Act the jurisdiction of the transferor court in relation to the proceedings is vested in the transferee court. The discretion is wide in that no specific statutory considerations are specified in the CP Act in determining whether a transfer should occur, mindful always of the overriding consideration in s 56 of the CP Act of facilitating the just, quick and cheap resolution of matters before a court.
On balance I consider a transfer is not appropriate. The Class 2 Application responds to an order issued by the Council under the LG Act because of unsafe conditions on the Applicant's land. The Court is conferred with express jurisdiction to determine such matters in a merits assessment context where the rules of evidence do not apply. A judge, or a commissioner with appropriate expertise, of the Court may be listed to hear the matter. The Court has procedures in place to enable the prompt consideration of such matters, such as the conciliation process under s 34 of the LEC Act. A conciliation conference between the parties has been set down in April 2024.
A tort claim founded on negligence or a breach of a statutory duty by its legal nature is quite different to a Class 2 appeal of an order issued under the LG Act. A tort claim will proceed differently reflecting inter alia the discharge of the onus of proof borne by the Applicant. While at a general level there may be similar facts concerning how the issues of land stability have come about on the two neighbouring sites, the legal issues potentially raised are quite different. It is not immediately apparent how the Class 2 Application and a tort claim could proceed together even allowing for the transfer of jurisdiction enabled by s 149E of the CP Act.
The commencement of proceedings in the Supreme Court will inevitably require repleading of the Applicant's case, the legal basis for which is unclear in the Amended Class 2 Application and Amended SOFC. I consider it is likely that given the potential complexity of the Applicant's case a transferred proceeding will take longer in the Supreme Court than the Class 2 Application currently before the Court.
While multiplicity of proceedings is not desirable such an outcome is not automatic. If the Applicant is successful in its Class 2 Application the order can be revoked and it will not be liable for any costs as result of the order. Whether the Applicant will commence Supreme Court proceedings did not appear to be certain. The Applicant will no doubt consider its position after this judgment in that regard. As already observed above whether Class 3 proceedings are commenced seeking an order under s 181 of the LG Act is also not a matter that can presently be known.
Weighing up these various factors I consider a transfer of the Amended Class 2 Application to the Supreme Court is not appropriate.
I will make orders which deal with both notices of motion.

Parties

Applicant/Plaintiff:

The Owners of Strata Plan 78825

Respondent/Defendant:

Northern Beaches Council

Legislation Cited (15)

Civil Liability Act 2005(NSW)

Conveyancing Act 1919(NSW)

Local Government Act 1993(NSW)

Civil Procedure Act 2005(NSW)

Civil Liability Act 2002(NSW)

Land and Environment Court Act 1979(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Government Act 1993

Procedure Act 2005

Liability Act 2002

Environment Court Act 1979

Civil Procedure Rules 2005

Management Act 2000

Property Act 1900

Liability Act 2005

Cases Cited (12)

Applicant's submissions

In its Claim, the Applicant seeks mandatory injunctive orders against the Respondent for the following reasons: 1. The Respondent is the landowner and the land manager of Lot 52; 2. There is no doubt that the fill embankment on Lot 52 (Fill) is unstable and has eroded and slipped over a long time, it being 50 years since it was placed on the slope; 3. Water acting on this Fill has caused Lot 52 to slip in at least four documented events; 4. Australian Geomechanics GeoGuides for slope management and maintenance referred to in E10 Warringah LEP 2011 advise of the critical part that water plays in relation to landslide occurrence and provides guidelines for risk assessment; and 5. Warringah LEP 2011, SEPP 19 Bushland and ss 35, 36E, 36J and 59A of the LG Act all govern the management of the land and the stormwater easement on Lot 52, for which the Respondent is solely responsible.
One jurisdictional basis the Applicant relies on is the Council's duty to support the Applicant's land, relying on s 177 of the Conveyancing Act, the failure of which duty is part of the overall issues arising between the parties. The Applicant has amended its claim to no longer press for damages for negligence or breach of statutory duty as it accepts that the LEC does not have jurisdiction to entertain such a claim in light of National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (Stables). Section 180(4)(f) of the LG Act provides jurisdiction for the Court to make an order which can encompass the relief sought by the Applicant being a mandatory injunction requiring the Council to undertake work on its land Lot 52 to ensure support for the Applicant's land. The basis for making such an order is the enforcement of the duty of care provided by s 177 of the Conveyancing Act which the Council owes to the Applicant. The Amended Class 2 Application and Amended SOFC also address s 5B of the Civil Liability Act 2005 (NSW) which the Court also has jurisdiction to consider given s 180(4)(f).
The facts and issues raised by the Order can be argued in Class 2 of the Court's jurisdiction, see Lawrence v Inner West Council [2019] NSWLEC 46 (Lawrence) at [54].
Under s 18 of the LEC Act the Court has jurisdiction in Class 2 to hear appeals in relation to s 180 of the LG Act. Section 180(4)(f) provides a wide power to make other orders, see Kosic v Queanbeyan City Council (Land and Environment Court, 26 November 1993, unrep).

No jurisdiction

In Dolton v Eurobodalla Shire Council [2020] NSWLEC 141 at [20] Pepper J cited NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 as follows: [20] In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 Craig J relevantly said (at [14] - [18]): … 18 When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; 71 LGRA 286 at 297 per Kirby P). Moreover when that question is raised, it is incumbent upon the party invoking the Court's jurisdiction to demonstrate that such jurisdiction exists (Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police (1999) 47 NSWLR 284 at [4]).
The Applicant has the onus of demonstrating jurisdiction exists and has not.
Concerning s 177 of the Conveyancing Act, I am bound by the Court of Appeal in Stables which addressed directly the claim the Applicant purports to make in alleging a duty of care in reliance on s 177 of the Conveyancing Act. Section 177 is expressed in the chapeau as applying in relation to the common law of negligence. The Court has no jurisdiction to entertain that part of the Applicant's claim. This was also confirmed in Van Tonder at [22]-[26] decided after Stables and the later introduction of s 16(1A) in the LEC Act.
While the Civil Liability Act is referred to in the Amended SOFC no basis identifying how the Court has jurisdiction in that regard was identified. Given the reasoning in Stables the same conclusion would apply also to the claim made in reliance on the Civil Liability Act. Neither Act is identified as an environment and planning law in s 20(3) of the LEC Act.
The Applicant appeared to submit that because it was not seeking damages in relation to a breach of a statutory duty or negligence that the Court could nevertheless have jurisdiction in relation to these matters in light of s 180(4)(f) of the LG Act. The reasoning was not clear and the power conferred on the Court to make an order cannot be a basis for conferring jurisdiction where it does not otherwise exist.
No authority supporting the Applicant's reliance on s 180(4)(f) has been provided and that is very likely to be because not such application has been made before. Apart from submitting the exercise of discretion to make orders under s 180(4)(f) is wide, which I accept and has been observed in many cases including Kosic, I did not understand the Applicant to have any other legal basis for submitting that s 180(4)(f) could operate in this way. Stating that this section provides a means for all the matters in issue to be brought before the Court in one set of proceedings is simply not a basis for establishing that the Court has jurisdiction in relation to contested legal issues.
Sections 16(1A), 22 and 23 of the LEC Act separately and collectively do not provide any legal basis for the Applicant's claims in the contested parts of the Amended Class 2 Application and Amended SOFC. I do not accept the Applicant's submission that these matters under the Conveyancing Act and the Civil Liability Act are ancillary in a legal sense to any matter within the Court's jurisdiction and NTL Australia does not support the Applicant's argument, indeed NTL Australia at [28] is contrary to it. That fundamental factual issues for the Applicant are in dispute which it wishes to litigate in legal claims does not confer jurisdiction on the Court. The Court does not need to resolve the contested issues in relation to which it does not have jurisdiction in order to consider the Class 2 appeal currently before it.
Avoidance of multiplicity of proceedings cannot result in the conferral of jurisdiction where it does not exist. Lawrence does not support the Applicant's case. That judgment considered whether to allow a Class 2 application to be changed to a Class 3 application seeking an order under s 181 of the LG Act. That passing reference was made in [54] of Lawrence to s 177 of the Conveyancing Act is irrelevant to the Applicant's argument in relation to jurisdiction.
Accordingly prayer 2 of the Application and 5.5-5.7 of the Amended SOFC should be struck out.
Paragraph 5.8 of the Amended SOFC recites sections of the LG Act concerning community land, being ss 35, 36E and 36J. It is unclear why these are set out and they did not appear to have any role to play in the Applicant's legal argument. Section 53 is no longer relied on. This paragraph should be struck out. Paragraphs 10 and 11 alleging breach of duty of care in reliance on s 177 of the Conveyancing Act are struck out also.
Paragraphs 12 and 13 introduce a new topic not identified in the Amended Class 2 Application alleging the breach of the terms and condition of an easement to drain water. The legal basis for this is not identified and I was not able to discern it from the Applicant's submissions. Reference was made to s 59A of the LG Act 'Ownership of water supply, sewerage and stormwater drainage works'. How that supports these paragraphs is unclear. No basis in the LEC Act or any other Act for founding jurisdiction was identified and these paragraphs are also struck out.
Paragraph 14 summarises the claims which I have otherwise found are not within the Court's jurisdiction and should be struck out.
Paragraph 15 seeks to rely on s 180(4)(f) of the LG Act to found mandatory injunctive orders requiring work on the Council's land and there is no legal basis to do so. It should also be struck out.

At a glance

Court

Decision date

Before

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (12)