Turnbull v Clarence Valley Council [2023] NSWSC 83

Supreme Court New South Wales

Medium Neutral Citation: Turnbull v Clarence Valley Council [2023] NSWSC 83 Hearing dates: 6 February 2023 Date of orders: 14 February 2023 Decision date: 14 February 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: I order that: 1. The proceedings are dismissed. 2. Unless the parties approach to be heard within 14 days, Mr Turnbull must pay the Council's costs, as agreed or assessed. Catchwords: ENVIRONMENT AND PLANNING — where plaintiff was erecting building without prior council approval — where council issued cease work notice — Environmental Planning and Assessment Act 1979 (NSW) — where approval was subsequently given after development application by landowners — where plaintiff sold building to landowners and vacated property — where plaintiff pursues council for illegality of council itself and its actions CIVIL PROCEDURE — notice of motion — dismissal of proceedings sought for abuse of process and tendency to cause prejudice and embarrassment — Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 13.4(1)(c), 14.28 — whether plaintiff's claims are frivolous and vexatious — whether plaintiff's case has conceivable prospects of success — what the dictates of justice require — Civil Procedure Act 2005 (NSW), ss 56-58 — proceedings dismissed CIVIL PROCEDURE — pleadings — where pleadings do not adhere to requirements of Rules — Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.4, 15.1, 15.3 — where plaintiff's affidavits travel beyond pleadings — where claims cannot be pursued without amendment — whether plaintiff ought to be given leave to replead — Civil Procedure Act 2005 (NSW), s 64 — where leave may not be given if amended pleadings liable to be struck out because plaintiff does not have arguable claims — Civil Procedure Act, s 56 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 64 Clarence Valley Local Environmental Plan 2011 Commonwealth Constitution, s 109 Constitution Act 1902 (NSW), ss 5, 51 Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 9 Local Government Act 1993 (NSW), s 124 Local Government Amendment (Legal Status) Act 2008 (NSW), s 220 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, s 2.31 Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.4, 15.1, 15.3, 42.1 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Bott v Carter [2012] NSWCA 89 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 R v Vorhauer [2002] NSWCCA 483 Rahman v Dubs [2012] NSWSC 1065 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Vorhauer v R [2007] NSWCCA 125 Category: Procedural rulings Parties: Mr Christopher Turnbull (Plaintiff) Clarence Valley Council (Defendant) Representation: Counsel: Mr Guihot (Defendant)