Wykanak v National Broadcasting Company [NBC] USA [2000] NSWCA 300

New South Wales Court of Appeal

CITATION : Wykanak v National Broadcasting Company [NBC] USA [2000] NSWCA 300 FILE NUMBER(S) : CA 40123/00 HEARING DATE(S) : 24 October 2000 JUDGMENT DATE : 24 October 2000

PARTIES : Dominic Wykanak (Claimant) National Broadcasting Company (NBC] USA and Others (Opponents) JUDGMENT OF : Powell JA at 1, 39, 41; Stein JA at 2; Heydon JA at 40

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 40123/00 FILE NUMBER(S) : LOWER COURT Priestley JA JUDICIAL OFFICER :

Claimant in person COUNSEL : Opponents (2, 6) Mr Bateman Opponents (3, 4, 5) J Waters SOLICITORS : Claimant in person

LEGISLATION CITED : Supreme Court Act 1970 CASES CITED: House v The King (1936) 55 CLR 499 Wentworth v Wentworth (1994) 35 NSWLR 726 DECISION : Notices of Motion filed on 1 August 2000 and 18 October 2000 dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

040123/00

POWELL JA STEIN JA HEYDON JA Tuesday, 24 October 2000

DOMINIC WYKANAK v NATIONAL BROADCASTING CO (NBC) USA & ORS JUDGMENT

1 POWELL JA: I will ask Heydon JA to deliver the first judgment. 2 HEYDON JA: The court has before it a Notice of Motion apparently filed on 1 August 2000. It is an application by the claimant, hereafter called the applicant, made pursuant to s 46(4) of the Supreme Court Act 1970, to review orders made by Priestley JA on 31 July 2000. The orders sought in the Notice of Motion are as follows: "1. That the decision of Priestley JA given 31 July 2000 be reviewed. 2. That the review of the decision not be listed for appearance until a further 27 days. 3. That prior to an appearance after another 27 days on this application the claimant explore settlement of the issues with the respondents. 4. That in the Public Interest each Party bear their own costs for this application and in this matter. 5. A declaration that the Public Interest challenge against the initial development consent for the Bondi Beach olympic volleyball stadium is maintained in this action/application." 3 An affidavit dated 1 August 2000 was filed in support of the Notice of Motion. It is to the following effect: "1. That on 31 July 2000 I attended Court for an appearance in matter40123/2000. I think the Judge's name was Justice Priestley. 2. I have asked the Court of Appeal for a copy of the orders from yesterday. 3. I am exploring over the next 27 days settlement of this application/matter with the respondents. 4. This application is part of the ongoing Public Interest challenge to the initial development consent to the olympic Bondi Beach volleyball stadium construction. 5. Inter alia the Public Interest challenge has been because of unresolved Public Safety issues and Native Title issues. 6. I am motivated as a Litigant in Person and Bondi Ward Councillor of Waverley Council because of potential Public fatality as a result of the olympic stadium's construction to keep an ongoing challenge against the initial development consent to the olympic Bondi Beach volleyball stadium beach construction. 7. I have asked to be heard 3 Aug 2000 in the Land and Environment Court of NSW for a declaration that the consent to 'Development Application No. S38/5/99 lodged with the Department of Urban Affairs and Planning on 3 Aug 99, the Statement of Environmental Effects dated July 1999 prepared by S A Smits & Associates Pty Ltd' is invalid. 8. I am responsible for representing Public Safety issues at Bondi Beach and inter alia ran my election campaign on an antistadium platform because of Public Safety issues associated with its effects." 4 Though it was only returnable on 30 October 2000, there was also before the court this morning a Notice of Motion filed on 18 October 2000. It seeks the following orders: "1. That the Claimant be allowed to discontinue the matter on the terms that each party bear their own costs in this matter. 2. That in the event the Claimant is not able to progress this matter the Attorney General be substituted as the Claimant. 3. In the Alternative that the Claimant and relevant Partys enter into mediation in this matter. 4. If orders 1 to 3 are not granted that the Claimant be allowed to discontinue the matter." 5 In order to understand the reasoning which led Priestley JA to make the orders complained of and to understand the orders sought in the second Notice of Motion, it is necessary to set out part of the complex procedural history as it emerges from this Court's files. 6 Although evidently the applicant has brought other proceedings against some or all of the present opponents, on 25 November 1999 the applicant commenced proceedings number 40204 in the Land and Environment Court of New South Wales ("LEC Proceedings No 40204"). That was a Class 4 Application seeking final and interlocutory relief directed towards preventing the construction of a volleyball stadium on Bondi Beach for use during the Olympic Games. Interlocutory injunctions stopping work on the stadium were sought. 7 The application for interlocutory relief was returnable on 1 December 1999. On that day the application was called on before Lloyd J. There was no appearance by or on behalf of the applicant and Lloyd J dismissed LEC Proceedings No 40204 with costs. 8 On the same day, 1 December 1999, the applicant commenced proceedings number 40929 of 1999 in the Court of Appeal ("CA Proceedings No 40929") by Holding Summons filed under Pt 51 r 4 of the Supreme Court Rules. That Holding Summons sought an order granting leave to appeal against Lloyd J's decision. 9 On 7 December 1999 the applicant filed an Amended Holding Summons. The effect of the amendment was to remove one opponent, namely Waverley Council. That left six opponents. The first was described as "National Broadcasting Company (NBC) USA". The second was described as "Olympic Co-ordination Authority". The third was described as "Minister for Urban Affairs and Planning NSW". The fourth was described as "Minister for Land and Conservation NSW". The fifth was described as "Director General Department of Urban Affairs and Planning NSW". The sixth (referred to in the file as the seventh) was described as "Minister for the Olympics NSW". 10 On 4 February 2000 the applicant filed a Notice of Motion containing eight paragraphs purporting to seek directions, although in fact two of the orders sought were interlocutory injunctions pending the hearing of the appeal and another was a stay of Lloyd J's costs order. That motion was returned before Deputy Registrar Howe on 21 February 2000. A legal representative appeared for the second opponent and the seventh opponent. Another legal representative appeared for the third, fourth and fifth opponents. The applicant asked for an adjournment until after a Federal Court hearing on 2 March 2000 relating to some of the native title issues he wished to ventilate on the motion. Deputy Registrar Howe, after inquiring whether court time was not being wasted, referred to Pt 51 r 4 of the Supreme Court Rules and pointed out that the applicant had until 1 March 2000 to file an Ordinary Summons for Leave to Appeal. He stood the Notice of Motion over until 6 March 2000. 11 On 6 March 2000 the applicant appeared, as did legal representatives for the second to the fifth and seventh opponents. The applicant said he was not ready to proceed and asked for an adjournment on the ground that he needed more time to serve the first opponent in the United States of America. Deputy Registrar Howe dismissed the Notice of Motion with costs. That is an important event in the sense that it triggered what are described below as Court of Appeal proceedings number 40123 of 2000. 12 On 1 March 2000 the applicant filed an Ordinary Summons for Leave to Appeal. On 13 March 2000 Clayton Utz who were acting for the second and seventh opponents filed a Response to the Summons. The first return date for the Ordinary Summons filed on 1 March 2000 was 17 April 2000. The applicant appeared in person. The second to the fifth and the seventh opponents were represented. The matter was adjourned to 1 May 2000 by Registrar Irwin. 13 On 1 May 2000 before Registrar Irwin the applicant appeared. The second to the fifth and the seventh opponents were represented. Registrar Irwin directed that any application by the applicant for leave to discontinue be filed by 5 May 2000 and stood the matter over to 8 May 2000. 14 On 5 May 2000 the applicant filed a Notice of Motion to that effect. It was dated 17 April 2000 and returnable on 15 May 2000. 15 On 8 May 2000, neither the applicant nor any representative of the applicant appeared, though the second to the fifth and the seventh opponents were represented. Registrar Irwin adjourned the matter to 15 May 2000. 16 On 15 May 2000 the applicant did not appear in person or by a representative. However, the second to the fifth and the seventh opponents were represented. Counsel for the second and seventh opponents indicated that his clients would be content for the proceedings to be dismissed with each party paying its or his own costs. The matter was stood over to 19 June 2000. 17 On 19 June 2000 the applicant and representatives of the second to the fifth and the seventh opponents appeared. For the first time a representative of the first opponent also appeared. Registrar Irwin stood the matter over to 26 June 2000. 18 On 26 June 2000, after a debate recorded over ten pages of transcript, in the course of which the applicant expressly indicated his consent to what was proposed, Registrar Irwin made consent orders approximately simultaneously with the first opponent filing a notice of appearance. The Registrar said: "By consent I make orders in terms of paragraphs 1(a) and 1(b) of the Notice of Motion filed on 15 May. The Court notes the agreement between the parties."