Spanos Enterprises v South Sydney Council [2000] NSWCA 41

New South Wales Court of Appeal

CITATION : Spanos Enterprises v South Sydney Council [2000] NSWCA 41 FILE NUMBER(S) : CA 40580/98 HEARING DATE(S) : 8 March 2000 JUDGMENT DATE : 8 March 2000

Appellant: Spanos Enterprises PARTIES : 2nd Appellant: Spanos Export Meats 3rd Appellant: Anthony William Spanos Respondant: South Sydney City Council JUDGMENT OF : Meagher JA at 1; Powell JA at 10; O'Keefe J at 11

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40177/97 FILE NUMBER(S) : LOWER COURT Pearlman CJ, Land and Envioronment Court JUDICIAL OFFICER :

COUNSEL : Appellant: Mr de Vere Tyndall Respondent: Mr Preston SC / MJ Walsh SOLICITORS : Appellant:Tjakamarra Forrest (Canberra) Respondent: Pike, Pike and Fenwick (Sydney) CATCHWORDS : Injunctions restraining dance parties - argument that original development consent extended to cover terms of injunction - declaration sought - whether 2nd appellant improperly joined - incompetance of legal representation at trial - original consent construed in 1994 - res judicata - failure of appellants to obtain further development consent for dance parties - injunction upheld. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40580/98

MEAGHER JA POWELL JA O'KEEFE AJA

8 MARCH 2000 SPANOS ENTERPRISES AND 2 ORS v SOUTH SYDNEY COUNCIL JUDGMENT

1 MEAGHER JA: This is an appeal by three parties, Spanos Enterprises Pty Limited, Spanos Export Meat Pty Limited and Mr Anthony William Spanos against certain declaratory and injunctive orders made by her Honour Pearlman CJ on 8 July 1998 in favour of the respondent, South Sydney City Council, concerning certain land at Botany Road, Alexandria. 2 The council's consent with respect to that land, which was granted in 1992, was to use the premises as a club for graffiti artists. Her Honour found that the land had been used extensively for the purpose of dance parties without ever any consent having been obtained from the council in that respect. There is no contest but that the council never did consent and was never asked to consent to that use of the land. 3 There was a body of evidence, which her Honour accepted, that on many occasions the land was used for the purpose of dancing by a large number of people, upwards of 1000, who paid for tickets to attend who had nothing to do with graffiti and nothing much to do with artists. That these parties did take place was not really contested. 4 On this evidence her Honour found that the conducting of dance parties was not within the consent. 5 Mr Tyndall of counsel argued first that her Honour failed in her interpretation of the council's consent. In particular he submitted that certain other evidence and in particular the appellant's development application which was not in evidence should be considered in order to give a different construction to the consent. 6 There are many difficulties with this argument. One is that the consent is not ambiguous. Another is that the evidence sought to be considered is not in evidence. Yet another is that consent was construed by her Honour in the previous proceedings in a judgment given on 9 December 1994 and has therefore passed in the regions of res judicata. This ground must therefore fail. Moreover since the point is a true point of law which has failed the appellants are left complaining about the facts which we have no jurisdiction to determine. 7 The second ground of appeal which was considered is that there was no evidence against the second appellant, that is Spanos Export Meats Pty Limited which should never have been joined and against which no order should have been made. In my view we should not consider this ground of appeal either in view of the fact that for one reason or another the appellants did not make any formal request of her Honour to dismiss the proceedings against that appellant. 8 The third ground considered was the incompetence of the legal representation of the appellants before her Honour. It is not easy to see of what the alleged incompetence consisted, though the one matter which was pursued in this appeal was counsel's refusal or failure to cross-examine the witnesses brought by the South Sydney City Council. We cannot pay any attention to that factor in view of the fact the appellants were unable to point to us any question which the counsel would be able to cross-examine if he was minded to do so. 9 For those reasons, in my view, the appeal should be dismissed with costs. 10 POWELL JA: I agree. 11 O'KEEFE AJA: I agree. 12 There is one thing I should like to add and that is in respect of the third point that was raised in this appeal.