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. When Mrs Finn appeared shortly afterwards on behalf of the company and sought the vacation of the order striking out the company's motion Justice Bannon declined to take that course. It nevertheless appears that the basis of his order was the procedural default of the company. In other words, the dismissal of the company's motion by Justice Bannon on 5 May was not a dismissal on the merits and that, no doubt, explains how Justice Stein was able to come to a diametrically opposed conclusion fourteen days later. It is apparent from the reasons for judgment of Justice Stein that he granted the company the relief it sought in its notice of motion on the merits. Neither party has placed before us the reasons of Justice Bannon of 5 May or the transcript leading up to his orders, but it seems clear enough that his order did not involve a dismissal of the motion on the merits. In any event, the order of Justice Bannon was interlocutory and not final. It attracted no res judicata or issue estoppel and did not preclude a second application being brought, even on the same evidence. 2 UNREPORTED JUDGMENTS It follows that the various grounds of challenge propounded by Mr Gibbs do not have sufficient prospects of success to warrant the grant of leave. In any event, it would not be convenient on procedural grounds to grant leave to appeal in this case. The conditions which Mr Gibbs seeks to enforce are conditions of a development consent granted to the company by the Land and Environment Court. The conditions are legally binding and the company is bound to comply with them within a reasonable time. The view has apparently been taken up to this point that a reasonable time has not yet elapsed. It is also apparent that compliance with those conditions was not a simple matter having regard to the need to rezone some land and to obtain the consent of the Maritime Services Board. The Court has been told that work is now proceeding towards letting contracts for the construction of the carpark and the walkway required by these conditions. It is anticipated, with some justification at this stage, that the work may be completed early in the new year. In these circumstances, the utility of granting leave to appeal in this case and reviewing Justice Stein's decision on the merits is not apparent and in view of the very heavy demands on the Court's time, the appropriate course in the interests of the Court and of the parties is to wait and see whether the work proceeds to completion within nine months and the conditions are complied with. If this happens hopefully the dispute will have been totally resolved and there will be no need for further legal proceedings. Accordingly, the order of the Court is that leave to appeal is refused with costs. Do you ask for costs? DAVISON: I do. HANDLEY JA: The Court has to make that order. The order of the Court is leave to appeal refused with costs. Orders accordingly.