Carver v Bankstown City Council [2000] NSWCA 219

New South Wales Court of Appeal

CITATION : Carver v Bankstown City Council [2000] NSWCA 219 FILE NUMBER(S) : CA 40365/99 HEARING DATE(S) : 11/08/00 JUDGMENT DATE : 11 August 2000

Peter George Star Carver (1st Appellant) PARTIES : Maxwell Thomas Parker (2nd Appellant) Bankstown City Council (Respondent) JUDGMENT OF : Stein JA at 1; Fitzgerald JA at 2; Heydon JA at 16

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT 40153/98 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER :

COUNSEL : SOLICITORS : PGS Carver in Person - Star Carver & Co (Appellants) Marsdens (Respondent)

DECISION : Applications to review decisions to strike out appeal as incompetent and refusing stay of orders appealed from dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40365/99 LEC 40153/98 STEIN JA FITZGERALD JA HEYDON JA

FRIDAY 11 AUGUST 2000

CARVER v BANKSTOWN CITY COUNCIL

JUDGMENT

1 STEIN JA: We are in a position to give judgment in these matters now and I will ask Fitzgerald JA to give the first judgment. 2 FITZGERALD JA: In a class 4 proceeding in the Land and Environment Court which was discontinued by the claimant-appellant (the "appellant"), the Land and Environment Court judge made an order that the appellant pay the costs of the proceeding. His Honour also refused the appellant leave to file an amended notice of motion in the proceeding which he had discontinued or was about to discontinue. The appellant subsequently appealed to this Court. 3 The grounds of appeal all on their face related to the costs order, although the appellant has since contended that the notice of appeal was wide enough also to encompass the order refusing leave to file the amended notice of motion. 4 After a number of proceedings in the Court, including attendances at call-overs, proceedings before the Registrar and proceedings before a Judge of the Court, the appellant now acknowledges that the appeal was incompetent because leave was required and leave has not been granted or even sought. 5 Earlier this year, on an application by the respondent to strike out the appeal as incompetent under Part 51 Rule 25 Subrule 1, the Registrar struck out the appeal and ordered the appellant to pay the opponent respondent's (the "respondent") costs of the motion to strike out the appeal as incompetent and of the appeal. 6 The principal point now raised by the appellant is that the Registrar did not have power to strike out the appeal because the application to strike out was made out of time and the Registrar had no power to extend the time prescribed by Part 51 Rule 25 Subrule 1, which is twenty one days after service on the respondent of the notice of appeal. 7 In my opinion, there is no substance in that point. In any event, the appellant acknowledges, that even if his point were correct, this Court has power to strike out the appeal which it is now accepted is incompetent. 8 The application to review the Registrar's decision to strike out the appeal as incompetent should be refused. 9 The Registrar, as I have said, also ordered the appellant to pay the respondent's costs of the appeal, notwithstanding Part 51 Subrule 25(2). That rule provides that, if a respondent fails to comply with Subrule 1, (for example as in this case by not filing and serving its motion to strike out the appeal as incompetent within twenty one days after service upon the respondent of the notice of appeal) but the appeal nevertheless is dismissed as incompetent, the respondent shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal and the Court of Appeal may order that the respondent pay to the appellant any costs of the appeal proving useless or unnecessary. 10 The Registrar considered Subrule 2 of Part 51 Rule 25 but took the view that having regard to the history of the matter, he should make the order which he did, that the appellant pay the respondent's costs of the appeal. 11 There has been considerable discussion before the Court of the history of the matter and it appears that the principal complaint which the appellant makes is that the respondent did not move to dismiss the appeal as incompetent on 9 December last year but left it until March (or perhaps April) this year to make the application. It seems that there were additional costs involved in that the respondent was represented at least one, and perhaps two or possibly even three, call-overs which could have been avoided if the application to strike the appeal out as incompetent had been made earlier. The respondent's costs of attending those call-overs is estimated to be something between $1000 and $1200, and at the maximum $1500. 12 Regrettably the claimant appellant has persisted in pursuing the appeal, even to the point of coming here today after it had been dismissed by the Registrar as incompetent, despite having been informed as early as December last year at the latest that leave was needed and having on prior occasions indicated that leave would be applied for. 13 There is no justification for interfering with the Registrar's discretion to make the costs order which he did, which I consider was correct in the circumstances. Inevitably the appellant's other application which is to review a decision of a Judge of this Court refusing a stay of the order for costs to which the appeal relates must also be refused. 14 In summary, I would dismiss both applications to review the earlier decisions of this Court. The claimant appellant must pay the costs of the proceedings before the Court this morning. 15 STEIN JA: I agree with Fitzgerald JA. In my opinion the notice of motion of 29 May 2000 seeking to review the Registrar's orders should be dismissed with costs. It follows from that that the Notice of Motion of 29 March 2000 by the claimant seeking that the Court review the order of Meagher JA should also be dismissed with costs. 16 HEYDON JA: I agree with Fitzgerald JA and with the additional remarks of Stein JA. 17 STEIN JA: Accordingly the orders of the Court are as I have just indicated. *********