Hoxton Park Residents' Action Group Inc. v Liverpool City Council [2010] NSWSC 1312

Reported Decision : 178 LGERA 275

New South Wales Supreme Court

CITATION : Hoxton Park Residents' Action Group Inc. v Liverpool City Council [2010] NSWSC 1312

HEARING DATE(S) : 28-29 October 2010

JUDGMENT DATE : 12 November 2010

JURISDICTION : Equity Division

JUDGMENT OF : Rein J

DECISION : Proceedings dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

CATCHWORDS : PROCEDURE - Supreme Court procedure - New South Wales - procedure under Uniform Civil Procedure Rules - summary disposal - whether proceedings should be dismissed under UCPR 13.4(1) or pleadings should be struck out under UCPR 14.28(1) - CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - restrictions on Commonwealth and state legislation - laws relating to religion (Constitution, s 116) - where plaintiffs challenged development approval given by local council to Islamic school - whether Commonwealth legislation providing for funding to non-government schools (Schools Assistance Act 2008 (Cth)) infringed s 116 of the Constitution by establishing a religion, imposing a religious observance or prohibiting the free exercise of religion - whether legislation circumvented s 116 of the Constitution - whether state legislation (Education Act 1990 (NSW)) can infringe s 116 of the Constitution and effect of the Australia Act 1986 (Cth) - LOCAL GOVERNMENT - powers, functions and duties of councils generally - powers generally - extent of powers - whether state can delegate power to local councils so that local councils can approve construction of building to be used as school containing place of worship - CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - whether councils have lawful existence - whether Commonwealth Constitution affords councils their existence and legitimacy - whether failure of 1988 referendum to include reference to local government in Commonwealth Constitution relevant - whether ss 106 and 107 of the Commonwealth Constitution preclude the existence of councils - whether s 128 of the Commonwealth Constitution precludes the existence of councils - operation and effect of the NSW Constitution - whether NSW Constitution authorises legislation creating and recognising councils - whether s 220(1) of the Local Government Act 1993 (NSW) invalid and consideration of effect of alleged invalidity - TORTS - nuisance - who may sue for - whether association with no interest in land has standing to sue in nuisance - whether individual can sue in public nuisance - whether individual can sue in private nuisance without having suffered special loss or damage - TORTS - negligence - dangerous and injurious things - whether engaging in hazardous activity of itself constitutes negligence