Kaissar Lichaa v. Randwick City Council [1998] NSWLEC 121

Land and Environment Court of New South Wales

CITATION : Kaissar Lichaa v. Randwick City Council [1998] NSWLEC 121 APPLICANT Kaissar Lichaa PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 20008 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Land & Environment Court Act 1979: s36(5) CASES CITED: DATES OF HEARING: 01/05/98 EX TEMPORE JUDGMENT DATE : 05/01/1998

APPLICANT Mr M Sahade LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy Bowen Gerathy

JUDGMENT: This is a Motion filed in Court yesterday seeking relief in the following terms.

"That leave be given to the Applicant to refer the proceedings to a Judge for determination of a point of law and that the judgment indicated by the Assessor to be delivered at 2pm today be stayed and such further orders as the nature of the case requires".

The Motion arises in respect of class 2 proceedings which have been heard by an Assessor of the Court acting pursuant to delegation under s36 of the Land and Environment Court Act 1979. The proceedings were heard over the past two days, were reserved yesterday with an intimation from the Assessor that he proposed to deliver judgment at 2 o'clock today.

The Motion before me today effectively seeks intervention by a Judge of the Court in the process which I have briefly described. As I pointed out in the course of argument, there is no statutory power to grant the relief claimed. Section 36(5) of the Court Act enables an Assessor of his own motion or at the request of a party, to refer a question of law to the Chief Judge for determination. However, as pointed out in the course of argument, the language of the section is couched in permissive or facultative terms and there is no compulsion on the Assessor hearing the case to make the reference. Although there is some dispute on the evidence as to whether he was requested to make the reference, I am content for the present purposes to accept the version of events deposed to by the Applicant in her affidavit, namely that an application was made, but was declined.