COUNCIL OF THE CITY OF SYDNEY v GARBETT PTY LTD and ANOR [1994] NSWCA 68

COUNCIL OF THE CITY OF SYDNEY v GARBETT PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and HANDLEY JJA 3 August 1994

[1994] NSWCA 68

Kirby P, Priestley and Handley JJA The orders. following the publication by the court of its reasons in these appeals, the parties were unable to agree on the form of the orders.

The principal difference between them was that Garbett wanted the proceedings remitted to the Land and Environment Court with a view to that court dealing with possible further arguments about aspects of the rate notices not raised in the appeal. Involved in this argument was a question whether a rate notice can be partly valid. Not a word was said about this during the argument of the appeal. What the parties wanted decided was whether Garbett and Chalford were rateable at the times asserted by the Council. This was decided by the court.

In the circumstances we do not think it would be appropriate to remit the proceedings to the Land and Environment Court. We propose to dispose finally of the matters that were raised before us, and leave the parties to take their own course in regard to matters they did not raise. The wording of the orders is intended to reflect the court's decisions of the issues actually argued by the parties and of no other issues.

In case the form of the orders creates problems that we do not see at the moment, we will grant liberty to apply in those matters where we have held rate notices were valid in part. This liberty does not extend to any of the issues we have decided, but is granted solely in case it becomes expedient (contrary to our present understanding) to give directions concerning the disposition in the Land and Environment court of issues not decided by us in the appeals.

In considering the parties' arguments about the orders our attention has been drawn to another matter not dealt with in the argument of the appeals themselves, namely, the bringing of both Class 3 and Class 4 proceedings in the Land and Environment court, when, as seems likely to us, Class 3 proceedings alone were appropriate. It may be that some of the orders sought in the class 4 proceedings as a result of our decision in the appeals are outside the scope of such proceedings. However, as we have not heard argument on these questions, it does not seem useful on this occasion to go further into them beyond noting that although we see no harm in making the orders at this stage of the present cases, we will not in future embark on appeals in such duplicated proceedings until satisfied both that there is some utility in doing so and that the matters sought to be argued are within Class 4 jurisdiction.