BOB BLACKMORE PTY LIMITED v THE ANSON BAY COMPANY (AUSTRALIA) PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, CLARKE and MEAGHER JJA 17 April 1989, 18 April 1989, 18 April 1989 [1989] NSWCA 21 Land and Environment Court — jurisdiction conferred by Land and Environment Act s20 and s22 — application for declarations and injunctions in relation to alleged breaches of planning laws application amended to include declarations as to determination and breach of licence agreement — jurisdiction of Land and Environment Court to make such declarations — relevance of licence and/or breaches to exercise of admitted jurisdiction application to prohibit Land and Environment Court from proceeding with application in respect of licence and related matters — discussion of jurisdiction of Land and Environment Court — application refused. ORDERS Summons dismissed with costs save that no order be made as to costs of the Lake Macquarie City Council. Hope JA The Anson Bay Company (Australia) Pty Limited instituted proceedings against Bob Blackmore Pty Limited and Doug Blakemore (Excavations) Pty Limited in the Land and Environment Court seeking orders which fell within the jurisdiction conferred by s20 of the Land and Environment Court Act. The proceedings were subsequently amended on the application of Lake Macquarie City Council to have that council joined as an applicant in the proceedings. More recently an application was made to amend the application to include, among other things, a request for the making of declarations in relation to a licence agreement which is either current or was previously current between the Anson Bay Company (Australia) Pty Limited on the one hand and Bob Blakemore Pty Limited and Doug Blakemore (Excavations) Pty Limited on the other hand. The original declarations which were sought were directed to whether the use of certain land within the area of the Lake Macquarie City Council was prohibited under the provisions of the Lake Macquarie Local and Environmental Plan 1984 as amended, and also to whether what was being done was a lawful existing use for relevant purposes. The relief originally sought also included an order restraining Bob Blakemore Pty Limited and Doug Blakemore (Excavations) Pty Limited from using or permitting the use of the land for purposes relating to quarrying and mining which was then being carried on upon the land. The amendments of the application enlarged to some extent the relief sought in respect of the existing use, but also added sub-pars 3 and 4 to paragraph D These two sub-paragraphs sought declarations that the licence agreement to which I have referred had been validly determined and that breaches of the licence agreement had been committed in a number of ways. The present claimants Bob Blakemore Pty Limited and Doug Blakemore (Excavations) Pty Limited took proceedings before the Land and Environment Court to have those sub-paragraphs struck out. Hemmings J refused to grant the application, at any 2 UNREPORTED JUDGMENTS rate at this stage of the proceedings. His Honour took the view that as well as having the jurisdiction which is specified in s20 of the Land and Environment Court Act, by virtue of the provisions of s22 of that Act the Court had jurisdiction concerning related matters which might enable it to make orders of the kind sought in sub-pars 3 and 4. The claimants thereupon brought proceedings in this Court, said to be in pursuance of s48 of the Supreme Court act, to have it declared that the Land and Environment Court has no jurisdiction to make declarations of the kind sought. With respect to counsel for the claimants, I think that the application is not properly to be regarded as having been made (as he submitted) under s48 of the Supreme Court Act. That section is directed to the allocation of matters to this Court. The section under which the application is made is s69 of the Supreme Court Act. I should add that, as well as the jurisdiction of this Court under s69, there is a power under s58 of the Land and Environment Court Act to appeal, with leave, to this Court from any interlocutory decision of the Land and Environment Court. Accordingly one course that was open to the claimants was to apply for leave to appeal to this Court against the order which Hemmings J made, which was undoubtedly of an interlocutory character. Indeed that would seem to be the preferable course. The form of relief sought in the original application undoubtedly fell within the provisions of s20 of the Land and Environment Court Act and included, among other things, a claim for an injunction to restrain the claimants from carrying out activities which were alleged to be in breach of the relevant planning laws applicable to the land. In deciding whether to grant that injunction, the Land and Environment Court would, of course, have to decide whether the activities were in breach of planning laws; but that would not be an end to the matter. The court would have to exercise a discretion in granting or withholding injunctive relief, and for that purpose to consider matters which were outside the matters described in s20 of the Land and Environment Court Act. The discretion to grant or withhold an injunction is, of course, a judicial one, but nonetheless it is very wide, and there are many decisions in the reports setting out the breadth of the considerations to which regard can be had in the exercise of that discretion. In my opinion the existence of the licence and whether breaches of the licence had been committed might well, in the event, turn out to be matters relevant for consideration in the exercise of the discretion to grant or withhold injunctive relief. They may also be relevant in other ways to the exercise of the Court's jurisdiction. It follows that many, if not all, of the factual matters which would be relevant to the making of the declarations which it is said the court would have no jurisdiction to make might well have to be investigated in the course of the proceedings in relation to matters undoubtedly within jurisdiction. It may very well be that the Land and Environment Court, notwithstanding its power to investigate these matters for these ancillary purposes, nonetheless has no power to make declarations in relation to them. Without expressing any concluded view on the matter, I should say that there is considerable weight in the arguments which have been advanced by Mr Tomasetti, counsel for the claimants, that the court does not have that jurisdiction. I would further say that the operation which the learned judge at first instance would appear to consider should be given to s22 of the Land and Environment Court Act may be too wide, and that views expressed as to the effect of the analogous section in the Federal Court of Australia Act by the High Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Limited (1980-1981) 148 CLR 457, 489 and 505 would seem UBB BLACKMORE PTY LIMITED v THE ANSON BAY COMPANY (AUSTRALIA) PTS LIMITED (Meagher JA) (Meagher JA) to contain the appropriate limits to the operation of a section such as s22. It should be noted that the Land and Environment Court Act contains no provision similar to s22 of the Federal Court of Australia Act. However, the position is that the court undoubtedly has jurisdiction to proceed with the application before it. In the course of that application it may become necessary, for purposes I have indicated, to consider matters which concern the existence of the licence agreement and of breaches of it. I express no concluded view about this matter; it is merely a possibility that may arise and which will have to be considered by the court as and when it does arise. In these circumstances I do not think this is an appropriate case in which to interfere at this stage with the proceedings before the Land and Environment Court. If, in the event, that court makes orders which it has no power to make, it will be time then for the present claimants to appeal to this court for any appropriate relief. One matter which has been raised and is of some significance is the question of costs. It has been strongly urged that if this court does not interfere at this stage in relation to the question of jurisdiction, costs will be incurred and thrown away if, in the event, it turns out that the Land and Environment Court does not have jurisdiction to make the declarations which are sought. As I have indicated it may become appropriate and necessary for the Land and Environment Court to investigate the relevant matter for the purpose of the exercise of its discretion and for other reasons. Hopefully that investigation will be limited, but nonetheless it cannot be said at this stage that the court would not be entitled to investigate them. Additional costs could be incurred by the presence of the Lake Macquarie City Council but those costs or costs arising because of the joinder of the Council in the proceedings are matters which can be dealt with properly by the court in the exercise of its jurisdiction as to costs. Accordingly I am of the opinion that the application should be dismissed. Clarke JA I agree. Meagher JA I also agree. (Discussion on costs) HOPE JA: In the normal course the application would be dismissed with costs. A question arises as to the costs of the Lake Macquarie City Council, which on its application was joined as an applicant in the proceedings in the Land and environment Court. The Council which had not been previously heard by this Court in this matter has told the court that it is interested in the matters concerning the licence, both in relation to the exercise of the court's discretion and in relation to the question whether there has been an abandonment of an existing use. It may well be that the Council is entitled to be before the Land and Environment Court and to be heard in relation to those matter and, possibly, to other matters before the court. However, in my opinion the Council has no interest in the question of whether the challenged declarations sought by the Anson Bay Company (Australia) Pty Limited should be made. In my opinion no order should be made in respect of their costs in these proceedings. Accordingly the orders I propose are that the application be dismissed with costs, save that no order be made as to the costs of the Council. CLARKE JA: I agree. 4 UNREPORTED JUDGMENTS MEAGHER JA: | agree. Counsel for Plaintiff: P C Tomasetti Solicitors for Plaintiff: R B Kandy and Company Counsels for Defendants: P McLelland QC, C Stevens and B Preston, T Simos QC and W R Davison for Lake Macquarie City Council Solicitors for Defendants: Mallesons Stephen Jaques, Peter Rees (agent Turner 10 Whelan and Wells) (solicitor for Lake Macquarie City Council)