Land and Environment Court New South Wales Medium Neutral Citation: Gregory Jones Briscoe-Hough v Ron Hoenig [2024] NSWLEC 128 Hearing dates: 11 October 2024 Date of orders: 11 October 2024 Decision date: 11 October 2024 Jurisdiction: Class 1 Before: Pain J Decision: In the Respondents' notice of motion dated 1 October 2024 the Court orders: (1) The proceedings are dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). (2) The Applicant pay the Respondents' costs as agreed or assessed. Catchwords: PROCEDURE – proceedings dismissed as no cause of action disclosed in summons Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Civil Procedure Act 2005 (NSW) s 91 Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Gregory James Briscoe-Hough (Applicant) Ron Hoenig (First Respondent) Brett Whitworth (Second Respondent) Representation: Counsel: G Briscoe-Hough (Litigant in person, Applicant) Keene (Respondents) Solicitors: NA (Applicant) NSW Department of Planning Housing and Infrastructure (Respondents) File Number(s): 2024/00283767 Publication restriction: Nil Ex tempore JUDGMENT 1. I need to rule on the notice of motion that I have before me. The motion was dated on 1 October 2024 by the First and Second Respondents in these proceedings, which have been commenced by the Applicant Mr Briscoe-Hough. The notice of motion seeks orders that the proceedings be dismissed, pursuant to r 13.4(1)(a) or (b) of the Uniform Civil Procedure Rules 2005 (NSW), (UCPR) or alternatively, that the summons be struck out pursuant to r 14.28(1) of the UCPR. 2. I have before me an affidavit of Ms Morphett sworn 30 September 2024 which sets out correspondence between the parties. I will refer to what the parties have referred to before me. 3. Mr Briscoe-Hough did prepare a proposed alternative summons for judicial review following discussions between the parties, as referred to in various pieces of correspondence. That amended judicial review summons was before Justice Duggan on 6 September 2024. I have the benefit of the transcript of the proceedings before her Honour on 6 September 2024, where she identifies to Mr Briscoe-Hough that there are considerable difficulties with the proposed amended summons. Her Honour was not satisfied about the content. As a result, her Honour made various orders which the parties will be familiar with on 6 September 2024. By way of summary, essentially Mr Briscoe-Hough had to serve a further proposed amended summons. 4. Justice Duggan required that the amended summons identify the specific relief sought, and this had to be done within a certain timeframe. Her Honour identified that the absence of relief is one of the major difficulties with the proposed amended summons that was before her. There was provision for the first and second respondents to accept an amended summons or not. If they did not accept it, they could file a further motion as has occurred. 5. In further correspondence, in particular an email of 12 September 2024 from Mr Briscoe-Hough to the Respondents' solicitor he says that he does not intend to comply with the orders made by Justice Duggan and that he would be resubmitting to the Court the summons that he submitted to Justice Duggan on 6 September 2024. 6. In terms of what has then transpired before me today, Mr Briscoe-Hough informed me that he did not wish to rely on the proposed amended summons for judicial review that was before Justice Duggan, which left him relying on the original summons filed in the court on 2 August 2024. On its face, that document is completely deficient. It refers to relief claimed, one being an ex parte restraint order which has already been agitated unsuccessfully before Justice Robson on 2 August 2024. Wording in prayer 2 has no meaning in a legal sense and is not something that either the Court or the Respondents would be able to deal with. 7. The summons otherwise attaches documents. It attaches the performance improvement order issued by the First Respondent to a local council, which is what Mr Briscoe-Hough is seeking to have set aside as I understand it, and various additional documents relating to that. There is a complete absence of articulation of any grounds or relief in the summons that he is relying on today. He did refer me to the proceedings before Justice Robson in aid of his submission that he does have a reasonable cause of action to support his being given the ability to have one more go, in having an order made under r 14.28 that I strike out the matter, rather than that I dismiss the matter under r 13.4. In the passages that he took me to from the transcript, as I read it Justice Robson's comments are seeking to articulate the case that he understood Mr Briscoe-Hough might be seeking to make, but these comments are in no way an endorsement of the possibility that there was a legal case available to him. 8. It follows that I largely accept Mr Keene's submissions, because on the face of the document as sought to be relied on by Mr Briscoe-Hough today there simply is no relief identified. I should note that to support his application today Mr Briscoe-Hough relied on what he calls an affidavit, at the front of which are matters described as orders. The matters in the affidavit of 8 October 2024 are simply not in a form that the Court is able to assess today. They are not in the form of a summons and suffer from the same difficulties identified by Justice Duggan on 6 September 2024, and certainly do not self-evidently identify any causes of action in a way that would enable the Respondents to be able to reply and manage the case that Mr Briscoe-Hough seeks to make. 9. In light of the lack of any cause of action being identified, and the history of the matter to date, I consider it is appropriate to make the order pursuant to r 13.4(1)(b). Mr Briscoe-Hough has been given more than enough opportunity to date to pursue the matter. In choosing not to comply with Justice Duggan's orders, I do not see any basis why he should be given a further opportunity to plead. I am assisted by Mr Keene's advice to me, and also to Mr Briscoe-Hough, that s 91 of the Civil Procedure Act 2005 (NSW) does apply, there being no determination of merits at this stage. My ruling does not necessarily prevent fresh proceedings being commenced. But certainly, if that course of action is being considered by Mr Briscoe-Hough, he absolutely should try and get some legal assistance in drafting whatever summons he may choose to file in the future. Costs 1. Mr Briscoe-Hough, I am going to order that you pay the Respondents' costs as agreed or assessed. I am not able to assess at this stage whether or not the public interest provisions of the Land and Environment Court costs rules would apply in this case. There is no basis for me to assume there was any legal error by the Respondents given the state of the pleadings. 2. Given the history of the matter, particularly the absence of compliance with the court orders on 6 September 2024 made by Justice Duggan, which is of concern to the Court, a costs order should be made in the Respondents' favour. Orders 1. In the Respondents' notice of motion dated 1 October 2024 the Court orders: 1. The proceedings are dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). 2. The Applicant pay the Respondents' costs as agreed or assessed. ********** 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: 29 November 2024