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. In my view there is no sanction available to the Applicant aggrieved by that decision not to refer the question of law. This in truth puts paid to the Motion, although Counsel for the Applicant has invited the Court to exercise a suggested inherent or prerogative power in relation to the proceedings before the Assessor. In my opinion such power is not available and even if it were available, ought not in the exercise of discretion, to be exercised in this case. The point being that the Assessor, having heard the case over the past two days and intimated that he would deliver a reserved judgment at 2pm today, it is far too late in the process for any such intervention to be made. (Not that I am satisfied that any basis for intervention has been made out.) The point of law which the Applicant apparently seeks to raise is a point that the statutory notice given by the Council pursuant to s124 of the Local Government Act 1993 is a nullity or is invalid for want of compliance with procedural requirements as to notice required by s132 and following sections of the Local Government Act 1993. That matter apparently was put to the Assessor and of course I do not know what he is to decide in his judgment anticipated to be delivered at 2pm this afternoon. If the Applicant is ultimately aggrieved by the Assessor's decision there will be an opportunity for appeal pursuant to s56A of the Land and Environment Court Act and if, as the Applicant anticipates, the Assessor does not grapple with the point of law belatedly pressed upon him at the hearing yesterday, then again the Applicant can take whatever action she may be advised in relation to that matter, either by way of appeal pursuant to s56A of the Land and Environment Court Act or in other proceedings in this Court. Alternatively if the Assessor's decision bypasses the Applicant's submission on the alleged nullification of the statutory notice, the Applicant might be advised that the notice issued by the Council (and even assuming ratification by the Court) is, and remains, a nullity. If this proves to be the case, it seems to me that the decision in the appeal before the Assessor (as anticipated by the Applicant) will not affect that question one iota. In the circumstances and for the foregoing reasons the Motion must be dismissed with costs and I so order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.