VALASSIS v SOUTH SYDNEY CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA and BEAZLEY JA 24 February 1997 [1997] NSWCA 327 Handley JA. This is an application by Mr Valassis appearing in person for leave to appeal from a decision of Stein J on 19 September 1996 in the Land and Environment Court. The proceedings before Stein J involved an application by South Sydney City Council for an order under s 70 (2) of the Land and Environment Court Act for a declaration that Mr Valassis was a vexatious litigant and for orders restraining him from instituting any legal proceedings in that Court against the Council without the leave of the Court. Stein J, for reasons which he gave, made orders as sought by the Council. Mr Valassis did not either appeal or seek leave to appeal within the necessary time but made an application to Stein J either for leave to proceed with his pending appeal in the Land and Environment Court, or forreconsideration of the decision of 19 September, that notice of motion filed on 4 October was dismissed on 28 October. Mr Valassis has not sought leave to appeal from the second decision of Stein J. The present summons raises a question as to the powers of this Court to entertain appeals from decisions of the Land and Environment Court under s 70 of its Act declaring or refusing to declare a litigant vexatious. Pt 3 of the Land and Environment Court Act defines the jurisdiction of the Court and divides that jurisdiction into six classes, each of which is elaborately defined and described. Proceedings under s 70 of the Land and Environment Court Act do not appear to fall within any of these classes of the Court's jurisdiction. Of course the proceeding which led the Council to initiate its application under s 70 was an appeal to the Court in Class 1 of its jurisdiction against the refusal of the South Sydney Council to grant development consent on an application made by Mr Valassis relating to his premises at 304A Chalmers Street, Redfern. To that extent it might be thought that the proceedings heard and determined by Stein J from which leave to appeal is sought should be regarded as falling within Class 1 of the Court's jurisdiction. On that view applications by the Attorney General falling under s 70 (1) may fall outside any of the defined classes of the Court's jurisdiction, but an application by a party aggrieved under s 70 (2) can properly be characterised as falling within the Court's jurisdiction in the relevant class which provoked that application. On that view of the case the jurisdiction of this Court to entertain an appeal on Stein J would be governed by s 57 of the Supreme Court Act which limits appeals to this Court on questions of law. Where the appeal to this Court is from an interlocutory decision, s 57 (4) also requires the leave of this Court. It may be accepted that the decision of Stein J, from which leave to appeal is sought, was an interlocutory decision because it did not finally determine the merits of the 2 UNREPORTED JUDGMENTS underlying proceedings. Accordingly, on this view, the proposed appeal to this Court would require leave and Mr Valassis has made an appropriate application by seeking such leave. The other view is that proceedings under s 70 do not fall within any class in the jurisdiction of the Court. On that view the Land and Environment Court Act fails to make any provision for an appeal to this Court by leave or otherwise from a decision declaring a litigant vexatious. Since rights to appeal require statutory authority, the result would be that the proposed appeal to this Court from the decision of Stein J would be incompetent and this Court would have no power to grant leave. I am content to determine this application on the assumption that the proceedings before Stein J were in Class 1 of the Court's jurisdiction and that an appeal lies to this Court from such a decision by leave of this Court. Nevertheless it is clear that an appeal only lies on a question of the law as provided by s 57 (1). Mr Valassis has provided the Court with substantial written material in support of his application for leave to appeal. It is apparent however that the decision of this Court in Sydney City Councilv Valassis of 20 May 1988 represents a final decision of a court of competent jurisdiction which determined that the subject premises at 304A Chalmers Street, Redfern did not possess existing use rights as at 16 July 1971 when the City of Sydney Planning Scheme Ordinance was gazetted. That question having been finally decided by a court of competent jurisdiction, that decision attracts res judicata estoppels which ever since have precluded Mr Valassis and the Council and persons claiming under them from relitigating the issue of existing use rights as at that date. In those circumstances it is apparent that there is no error of law in the decision of Stein J such as would warrant this Court granting leave to appeal. The repeated litigation of the existence of existing use rights as at 16 July 1971 in the face of the res judicata estoppels flowing from the decisions of this Court of 20 May 1988 did as a matter of law justify Stein J in acting as he did. This Court has no right to review Stein J's decision on the facts, and it would be futile to grant leave to appeal for that purpose. The situation is unfortunate for Mr Valassis but the existence of the res judicata estoppels flowing from the decision of this Court of May 1988 should be recognised and respected. I would therefore propose that leave to appeal should be refused with costs and I would direct the Registrar to enter the order to that effect forth with. Beazley JA. I agree. Handley JA. Those are the orders of the Court. The Court will now adjourn. Orders accordingly.