Warringah Council v Franks [2003] NSWLEC 193

> Land and Environment Court of New South Wales

CITATION : Warringah Council v Franks [2003] NSWLEC 193 APPLICANT: Warringah Council PARTIES : RESPONDENT: Phillip Franks FILE NUMBER(S) : 40123 of 1997 CORAM: Bignold J KEY ISSUES: Costs :- Permanent stay application LEGISLATION CITED: Land and Environment Court Rules, Pt 12 r 1, Pt 15 r 4, Pt 15 r 9; Supreme Court Rules, Pt 44 r 5 Bailey v Marinoff (1971) 125 CLR 529; DJL v Central Authority (2000) 74 ALJR 706; CASES CITED: Farrell v Bridge (1993) 81 LGERA 76; Hamilton v Oades (1989) 166 CLR 486; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 DATES OF HEARING: 28/05/2003; 25/06/2003 DATE OF JUDGMENT: 08/29/2003

APPLICANT: Mr J Wheelhouse (Barrister) SOLICITORS: LEGAL REPRESENTATIVES: Wilshire Webb

RESPONDENT: In Person

JUDGMENT:

IN THE LAND AND 40123 of 1997 ENVIRONMENT COURT Bignold J OF NEW SOUTH WALES 29 AUGUST 2003

WARRINGAH COUNCIL Applicant v PHILLIP FRANKS Respondent Judgment

A. INTRODUCTION 1 By Notice of Motion filed 18 March 2003 the Respondent seeks orders permanently staying two costs orders made against him in favour of the Warringah Council in two completed proceedings in this Court – one being matter No. 40123 of 1997 and the other being matter No. 40027 of 2000. 2 On its face the Respondent's Notice of Motion is irregular because it was filed in the first mentioned proceedings but claimed relief not only in those proceedings but in the second mentioned proceedings, being wholly unrelated proceedings. However no objection in this behalf has yet been raised by the Council and the irregularity would be curable by the Respondent filing another Motion in the other matter. 3 The Respondent's Notice of Motion was fixed for hearing on 28 May 2003. However by further Notices of Motion filed 13 May 2003 and 23 May 2003 respectively the respondent sought the vacation of the hearing of his substantive motion. 4 All three of the Respondent's Notices of Motion came on for hearing on 28 May 2003 when the Council raised objection to the jurisdiction of the Court to grant the relief claimed in the Respondent's substantive motion ie. the permanent stay of the costs orders made in the two separate proceedings that I have mentioned. In these circumstances the Council submitted that it would be futile to allow the proceedings to continue further. 5 Accordingly it was agreed between the parties that it would be more efficient for the Court to entertain the Council's objection to jurisdiction than to determine the Respondent's Motion to vacate the hearing date allocated for the Respondent's substantive Motion seeking the permanent stay of the two costs orders made against the Respondent. However since the Respondent, who is a litigant in person, was not in the position to argue against the Council's contention that the Court lacked jurisdiction to permanently stay the costs orders I invited Counsel for the Council to advance his argument and thereafter adjourned the hearing to enable the Respondent to file written submissions in rebuttal of the Council's argument. By consent I gave the following orders: 1. The Applicant's objection to jurisdiction to entertain Respondent's Notice of Motion dated 18 March 2003 is entertained.