Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huang v Nazaran [2023] NSWCA 8 Hearing dates: 3 February 2023 Date of orders: 3 February 2023 Decision date: 13 February 2023 Before: White JA at [1]; Simpson AJA at [25]; Basten AJA at [26] Decision: Leave to file Amended Summons refused. Summons dismissed with costs. Catchwords: PRACTICE AND PROCEDURE – amendments – leave to amend originating process – where application for leave made late and no explanation of delay – where proposed amendments disclose no prospects of success – no issue of principle – leave to amend refused ADMINISTRATIVE LAW – judicial review – whether failure to find existence of "offensive noise" within the meaning of the Protection of the Environment Operations Act 1997 (NSW) at first-instance and on appeal amounts to jurisdictional error by reason of wrongful refusal to assume jurisdiction – whether impugned findings of fact as to placement of air conditioner said to emit "offensive noise" resulted in jurisdictional errors – held that jurisdictional error not arguable Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 3, s 18 Criminal Appeal Act 1912 (NSW), s 5B Local Court Act 2007 (NSW), s 70(1)(b) Protection of the Environment Operations Act 1997 (NSW), s 268 Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW), cl 45 Uniform Civil Procedure Rules 2005 (NSW), r 59.4 Cases Cited: Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 Huang v Nazaran [2021] NSWCA 243 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620; [1995] HCA 31 Category: Principal judgment Parties: Chenlong Huang (First Applicant) Xuejing Li (Second Applicant) Fatemeh Nazaran (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: G W McGrath SC with R Wathukarage (Applicants) A Jones (Solicitor) (First Respondent) Solicitors: Kammoun Sukari Lawyers (Applicants) Adam Jones Solicitor (First Respondent) Submitting appearance (Second Respondent) File Number(s): 2022/254168 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 10 May 2022 Before: M L Williams SC DCJ File Number(s): 2019/378892 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. WHITE JA: On 3 February 2023, the Court refused to grant leave to the applicant to file an Amended Summons which sought an order in the nature of certiorari to quash orders of the District Court made on 10 May 2022. Those orders disposed of an appeal from an order of the Local Court given on 17 November 2020, which in turn dismissed the applicants' application for a noise abatement order against the respondent. The Court also ordered that the Summons filed on 26 August 2022 be dismissed with costs. 2. These are my reasons for joining in the making of those orders. 3. The applicants and the respondent are close neighbours in Carlingford. There is a gap of less than 2 metres between their houses. In January 2017, the applicants began to complain about noise emanating from an air conditioning unit on the external wall of the respondent's house which is situated below the applicants' bedroom window. They sought a noise abatement order from the Local Court pursuant to s 268 of the Protection of the Environment Operations Act 1997 (NSW) ("the PEO Act"). Subsection 268(4) provides: "If the Local Court is satisfied (on the balance of probabilities) that the alleged offensive noise exists, or that although abated it is likely to recur on the same premises, the Local Court may make either or both of the following orders— (a) an order directing the respondent to abate the offensive noise within the time specified in the order, (b) an order directing the respondent to prevent a recurrence of the offensive noise." 1. "Offensive noise" is defined in the Dictionary as follows: "offensive noise means noise— (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances— (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations." 1. At first instance, Atkinson LCM was not satisfied that either of the first two limbs of the definition of "offensive noise" had been satisfied. Her Honour found that, on a few occasions, the air conditioning unit had operated after 10pm and emitted noise that could be heard in the applicants' premises contrary to cl 45 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW). Her Honour found that the few "isolated instances" where she was satisfied that this had occurred did not warrant the making of a noise abatement order (at [57]-[59], [62]). Her Honour dismissed the application. In reaching her finding that she was not satisfied on the balance of probabilities that the applicants had discharged the evidentiary onus of showing that the noise emanating from the air conditioning unit was, or was likely to be, harmful, her Honour said (at [46]): "The applicants have not satisfactorily explained why they were not troubled by the A/C unit prior to January 2017, given that there is evidence that it was installed and had operated for a number of years prior to 2017." 1. The applicants appealed to the District Court pursuant to s 70(1)(b) of the Local Court Act 2007 (NSW). On 15 March 2021, the District Court held that it did not have jurisdiction to entertain the appeal. That decision was overturned by this Court on 8 October 2021 (Huang v Nazaran [2021] NSWCA 243). The matter was remitted to the District Court for the hearing of the appeal. 2. By s 70(1)(b) of the Local Court Act, the appeal to the District Court was to proceed as if it were an appeal from a conviction under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW): that is, as an appeal by way of rehearing on the basis of the evidence given in the Local Court, and not as an appeal de novo (s 18(1)). On 23 March 2022, the applicants filed a notice of motion seeking to adduce fresh evidence on the appeal (pursuant to s 18(2) of the Crimes (Appeal and Review) Act). That application was heard with the substantive appeal. On 10 May 2022, the judge dismissed that application and dismissed the appeal, having found no error in the magistrate's reasons. The judge (M L Williams SC DCJ) concluded (at [57]) that no error on the part of the magistrate had been demonstrated, and said that "…absent the determination from the magistrate, I would have come to the same view on the evidence and the submissions that were put before the lower court". Relevant to the submissions made in this Court, his Honour also said: "[37] As I have indicated, a significant plank in Mr McGrath's case is the assertion that the air conditioning unit had not been in its last position until shortly before January 2017, being the time at which Mr Huang first complained about it. [38] The unreality of that proposition is demonstrated firstly by the unchallenged evidence of Mr Barber that the air conditioning unit was installed as far back as 2012. Granted that there was no direct evidence from Mr Barber or any suggestion put to him in cross-examination that the unit had been moved, it is difficult to see how it was that the evidence compelled the Magistrate to the finding asserted. [39] Notwithstanding that the appellant said, in evidence, 'One day I noticed the air conditioner was there. It wasn't there the day before', it was put to him that the air conditioner was installed by the previous owner in 2012 and he said 'No, I moved there in 2013, it wasn't there'. [40] He was only able to say that on some unspecified day he noticed that the air conditioner had been installed. The Magistrate, as I have indicated, expressed concerns about his evidence and I can well understand why that was one of the bases of the Magistrate's comment. [41] It is, in my view, completely unfounded in the evidence and entirely unrealistic to assert that, for some reason, Dr Nazaran moved the air conditioning unit shortly before January 2017, so as to put it in the position where it caused what was alleged to be offensive noise for Mr Huang." 1. On 9 August 2022, the applicants requested the judge to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), proceeding on the assumption that the effect of s 70(1)(b) of the Local Court Act was to bring the matter within the criminal jurisdiction of the District Court. That assumption is at least doubtful, but, for the reasons which follow, its accuracy need not be determined. 2. Judge Williams refused to state a case to the Court of Criminal Appeal. On 26 August 2022, the applicants filed in this Court a Summons for judicial review. The decisions to be reviewed were identified as Judge Williams' decision of 10 May 2022 dismissing the applicants' notice of motion of 23 March 2022 (by which they sought leave to adduce "fresh evidence") and dismissing the District Court proceedings with costs, and his Honour's determination not to state a case to the Court of Appeal (scil the Court of Criminal Appeal). The orders sought included an order granting leave to the applicants to "…submit their application to the Second Respondent…to State a Case in respect of questions of law arising in [the District Court proceedings] to this Honourable Court of Appeal until 9 August 2022 or such other time as the Court thought fit" and orders in the nature of mandamus directing the District Court to submit a draft Stated Case that was attached to the Summons containing what were said to be questions of law arising on the appeal to the District Court. The summons also sought an order in the nature of mandamus remitting the District Court proceedings to that Court for "entertainment, hearing and determination by it according to law". 3. The draft Stated Case attached to the Summons identified the following alleged questions of law for determination by the Court of Criminal Appeal: "11. Questions of Law for Determination 1) Did I err in law in finding or inferring a fact for which there was no evidence at all or no sufficient evidence? Restated, did I err in holding that there was evidence to find or infer that the subject air conditioning unit was always located in the narrow laneway between the Appellants' and Respondents' contiguous residential premises since about 2012? 2) Did I err in law in not admitting the said satellite photographs as fresh or further evidence within the meaning of that expression in s 18 (2) of the Crimes (Appeal and Review) Act or in failing to hold that in the due exercise of my discretion it was the interest of justice [sic] to allow that evidence to be given before me? In respect of this question, did I err in law in not giving reasons or sufficient reasons for my determination? 3) Did I err in law in considering or relying on the second sentence of paragraph 5 of the Affidavit of Mr Barber sworn 15 August 2020, which sentence had not been read at the trial in the Local Court? If so, is it material to determinations I made that are the subject of questions 1) or 2)?" 1. That Summons was filed on 26 August 2022. On 12 September 2022, the Summons was listed for hearing on 3 February 2023. 2. On 1 February 2023, at 6.01pm, the applicants electronically filed a "Supplementary Outline of Argument" in which senior counsel for the applicant stated: "3. The matters in 11.1) to 3) of the draft Stated Case do not or do not properly contain the applicants' argument as to the error of law said to have been made by the DC/NSW and the summons in the supervisory jurisdiction ought to seek in lieu of the relief sought an order in nature or [sic] certiorari quashing the judgement of the DC/NSW below." 1. On the matter being called for hearing, Mr McGrath SC, who appeared with Mr Wathukarage for the applicants, sought leave to file an Amended Summons which sought the following orders: "1A AN ORDER pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) granting leave to the Applicants to file this Summons in this Court of Appeal. … 2A AN ORDER in the nature of certiorari quashing the judgment of the District Court made on 10 May 2022 that is the subject of these proceedings." 1. Neither the Summons nor the Amended Summons stated with specificity, or at all, the grounds upon which the relief was sought (as required by r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW)). Mr McGrath SC submitted that the grounds were explained in the applicants' "Outline of Argument" and "Supplementary Outline of Argument". 2. In the applicants' Supplementary Outline of Argument, they contended that the judge should have permitted them to adduce as fresh evidence a bundle of satellite photographs that they had sought to tender (par 9). This submission formed a substantial part of the submissions made in support of the Summons as originally filed. It was abandoned in oral submissions, presumably on the basis that counsel recognised that the alleged error could not amount to jurisdictional error. 3. Mr McGrath SC confirmed in oral submissions that the relief sought in the Amended Summons was grounded on alleged jurisdictional error and not on any alleged error of law on the face of the record. As I understood the submission, the applicants contended that, in upholding the magistrate's decision, the judge erred because the reason that the magistrate found that the noise from the air conditioning unit did not constitute "offensive noise", was because her Honour found that the unit had been in its current position for about five years before complaint was made in 2017 (the applicants having lived in their property since 2013), whereas there was no evidence to support such a finding. In making the finding of fact about the length of time during which the air conditioning unit has been in its current location, the magistrate and the judge wrongly concluded that the fact upon which the power to make a noise abatement order depends, namely, that the alleged offensive noise exists, did not exist. In dismissing the appeal, the judge committed jurisdictional error by wrongly denying the existence of jurisdiction, in a similar way that a tribunal whose jurisdiction depends upon the existence of a fact commits jurisdictional error if it wrongly concludes that the fact exists and assumes jurisdiction (Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 643-4; [1995] HCA 31). 4. I considered that leave to file the Amended Summons should be refused on a number of grounds. 5. First, the argument that the judge committed jurisdictional error is untenable. The magistrate clearly had jurisdiction under s 268 of the PEO Act to decide whether or not the applicants' occupation of the premises was affected by offensive noise. The judge clearly had jurisdiction to entertain the appeal from the magistrate's refusal to make a noise abatement order. The magistrate found that a precondition to the power to make a noise abatement order, in so far as the application was based on par (a)(i) or (ii), was not engaged. The magistrate was not acting outside her authority in so deciding. Rather, she was exercising her authority to decide whether the facts existed which would warrant the making of the order. Similarly, in upholding the magistrate's reasoning, the judge was exercising his authority to determine the appeal. The existence or absence of an offensive noise is not a fact on which the jurisdiction of either the Local Court or the District Court depended. It was a fact to be found by the Local Court and, if need be, by the District Court, in the exercise of the jurisdiction conferred by the PEO Act. If either the magistrate or the judge erred in concluding that the air conditioning unit had been in the same location as it was in 2017, for some years previously, that was an error made within the court's jurisdiction to find the relevant facts. Even if, which is not apparent, there was no evidence to support those findings, so that both the Local Court and District Court made an error of law in finding that fact, that was an error made in the exercise of their jurisdiction and not jurisdictional error. 6. Mr McGrath SC cited no authority to support the submission that the error for which he contended was jurisdictional. He did not rely on the reasoning of the majority of this Court in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 and, in particular, the observations of Barrett AJA at [81] (with whose reasons Macfarlan JA agreed at [1]). I dissented in Jankovic. In Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162, Basten JA, with whose reasons on this issue both Leeming and McCallum JJA agreed (at [70] and [71]) said that the reasoning by which the majority of Court in Jankovic had concluded that there had been a jurisdictional error, was novel (at [52]) and the reasoning with respect to jurisdictional error was infected by an untenable characterisation of the District Court's authority (or asserted absence thereof) to identify the body of evidence that it was to take into account (at [54]). As no reliance was placed by Mr McGrath SC on Jankovic, it is unnecessary to take this matter further, save to say that I adhere to my dissenting reasons in that case on this issue. 7. I considered that the proposed Amended Summons had no prospects of success. 8. Secondly, the proposed amendment was made very late. It was foreshadowed only after 6pm on 1 February, with the hearing due to take place on 3 February. No explanation for the delay was proffered. Mr McGrath SC said that he was not at liberty to proffer such an explanation. The litigation has been on foot since 2019 and is out of all proportion to the issue in dispute. Judge Williams observed that the Court Book before the Local Court ran to some 1,400 pages. The hearing in the Local Court occupied two days. The magistrate observed that it was most unfortunate that one or both of the parties did not seriously explore moving the air conditioning unit to another location, and that, had that been done in 2017, the parties would have avoided significant anguish and costs. Her Honour said (at [39]) that the Council had suggested in 2017 that the unit might be moved as a way of resolving the dispute. 9. Her Honour also recorded that two days before the hearing in the Local Court the respondent offered to resolve the dispute by moving the unit if the cost of doing so were shared equally. The respondent's solicitor initially stated, when asked by her Honour how much it would cost to move the unit, that the cost would be $3,000, but then said he had received updated instructions that the cost would be $2,017. No doubt by the time of the hearing, substantial costs had already been incurred. Even if the applicant were successful in establishing jurisdictional error on the part of the judge, there would be powerful reasons why, as a matter of discretion, certiorari should be refused, where to grant the order would require remitting the matter to the District Court for further hearing of the appeal at further cost. 10. Mr Jones, who appeared for the respondent, submitted that he would be prejudiced if the matter proceeded, as he had not had sufficient time to consider the ramifications of the amendment. While sympathetic to his position, had I considered that there were good reasons to allow the amendment, I would not have refused it on the ground of prejudice to the respondent. Any difficulty Mr Jones might have experienced could have been accommodated by giving him leave to file further written submissions. 11. Nonetheless, for the above reasons, I considered that leave to file the Amended Summons should be refused. As the relief sought in this Summons as filed was abandoned, it followed that the Summons should be dismissed with costs. 12. SIMPSON AJA: I joined in the orders made on 3 February 2023 for the reasons given by White JA. 13. BASTEN AJA: I agree with the reasons of White JA. ********** 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 2023