GIBBS v WATERVIEW WHARF WORKSHOPS PTY LIMITED [1995] NSWCA 173

GIBBS v WATERVIEW WHARF WORKSHOPS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, COLE JA and GILES AJA 24 July 1995

[1995] NSWCA 173

Handley JA. Mr Gibbs, appearing for himself, seeks leave to appeal from an interlocutory decision of Justice Stein in the Land and Environment Court given on 19 May 1995.

By that order Justice Stein struck out proceedings in Class 4 of that Court's jurisdiction in which Mr Gibbs sought to enforce Conditions 6 and 9 in a development consent granted by the court on an appeal by the company. The proceedings also sought to attack that consent in some way on the ground of prior collusion between the council and the company.

Mr Gibbs has put a number of grounds to the Court in support of his application. These turn on the inconsistency between Justice Stein's decision of 19 May and a decision of Justice Bannon on 5 May and also involve consideration of the relationship between the decision of Justice Stein and an earlier decision of Justice Bannon on 13 February 1995 in similar proceedings.

The grounds on which Mr Gibbs sought leave involved submissions on his part that evidence which was struck out by Justice Bannon by consent in the proceedings which led to the decision of13 February should not have been struck out, but he candidly agreed that he had consented to this course at the time. He has since changed his mind and wishes the Land and Environment Court to consider the material that was then struck out. He also submitted that the decision of Justice Stein on 19 May was unreasonable.

The Court has not been persuaded that any of these grounds have sufficient prospect of success to warrant the grant of leave to appeal. In particular, it seems that the decision of Justice Bannon of 5 May was based entirely on procedural grounds because the company was not represented when the hearing commenced and the motion was initially dismissed without the company being heard on the merits.