Supreme Court New South Wales Medium Neutral Citation: Young v King [2011] NSWSC 793 Hearing dates: 22/07/2011 Decision date: 22 July 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Order for removal into Supreme Court refused. Summons dismissed with costs. Catchwords: PRACTICE - case management - application to transfer proceedings from District Court to Supreme Court where unresolved issues remained in related proceedings in other courts - application premature and lacking in utility - application dismissed without prejudice to further proceedings. Legislation Cited: Civil Procedure Act 2005 (NSW) Land and Environment Court Act 1979 (NSW) Category: Procedural and other rulings Parties: Margo Young (Plaintiff) Brendan King (First Defendant) Kristina King (Second Defendant) Warringah Shire Council (Third Defendant) Representation: Counsel: R D Newell (Plaintiff) M L Wright (First and Second Defendants) V Walsh (Solicitor) (Third Defendant) Solicitors: L C Muriniti & Associates (Plaintiff) Terence Stern Solicitor & Attorney (First and Second Defendants) DLA Piper Australia (Third Defendant) File Number(s): 2011/198778 Judgment (ex tempore) 1HIS HONOUR: The plaintiff, who is the plaintiff in certain proceedings in the District Court, seeks an order that those proceedings be removed into this court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). There is an obvious problem with the making of such an order, because at least part of the relief claimed is beyond the jurisdiction of this court by reason of s 71 of the Land and Environment Court Act 1979 (NSW). That is because the first claim for relief is an order, for mandamus against the third defendant, a council and planning authority. It would also appear that claims for relief setting aside a development consent and construction certificate issued by the third defendant are also beyond the jurisdiction of this court. 2When confronted with those problems, Mr Newell, who appeared for the plaintiff, sought leave to amend the summons so as to claim a further order that, if the District Court proceedings were transferred into this court, they would then be transferred into the Land and Environment Court pursuant to s 149B of the Civil Procedure Act . 3The underlying difficulty in all this is that there were earlier proceedings in the Land and Environment Court, between the plaintiff and the first and second defendants, relating to certain development carried out by the first and second defendants. Those proceedings were resolved by consent. Unless and until the consent orders can be set aside (in the Land and Environment Court) there are serious obstacles to the plaintiff's obtaining other of the relief that she wishes to pursue, including relief for mandatory injunctions relating to support and the like and damages. 4Apparently, there is an application pending in the Land and Environment Court for the earlier proceedings to be "reopened", which I take to be a reference to the setting aside of the relevant orders pursuant to UCPR r 36.15, or perhaps pursuant to the inherent power of the Land and Environment Court. Certainly, if the underlying agreement pursuant to which the consent orders were made can be set aside on the grounds that it was void, or procured by fraud or the like, there may be some basis for attacking the consent orders. 5Be that as it may, it seems to me that there is no utility in making the orders sought at the present time. I accept that multiplicity of proceedings should be discouraged. Nonetheless, until it is known what will happen in the Land and Environment Court (in relation to the application to set aside the earlier orders made by that court), there is no utility in transferring the District Court proceedings to this court. 6Mr Newell sought to counter that by saying that in those circumstances his client could commence fresh proceedings in the Land and Environment Court, and that if that were done, there would then be a basis for transferring the District Court proceedings to this court and hence to the Land and Environment Court. Alternatively he said, those fresh Land and Environment Court proceedings could be transferred to this court; and once again the District Court proceedings could be brought up into this court. All that may be true; but it is hypothetical. Until it becomes more than hypothetical, there seems to me to be no utility in going further. 7There is an added complication. There are proceedings pending in the Common Law Division of this court for damages. They are brought by the present plaintiff against her former legal advisers (who acted or appeared for her in the Land and Environment Court proceedings) and, it appears, expert witnesses who were retained for her in relation to those proceedings. I do not know what is happening in those proceedings. It may be that, when all the dust in relation to the various pending applications has settled, and it is known what, if anything, is happening in the Land and Environment Court, consideration should be given to the fate of those proceedings as well. 8Nonetheless, I am concerned today with the application for transfer. Whether that proceeds on the basis of the summons as it presently stands, or the summons as proposed to be amended, it seems to me to be premature and therefore lacking utility. 9The court has power either to stay or to dismiss. A stay is of uncertain value, in circumstances where it is contingent on events of which the court might or might not be informed. On the other hand, dismissal "without prejudice" pursuant to s 91 of the Civil Procedure Act will protect the plaintiff's position. In the event that it became necessary to remove the proceedings into this court, either so that the Land and Environment Court proceedings (whatever they may be) can be removed here also or so that the removed proceedings in this court can be removed to the Land and Environment Court, that application can be made. 10Thus, I wish to make it clear that I have not made a determination on the merits of the claim for relief. I have decided, as a matter of case management and bearing in mind the objectives set out in s 56 of the Civil Procedure Act , to dismiss these proceedings generally, but on terms that the dismissal does not operate as a bar to the bringing of fresh proceedings, subject to any condition that may be imposed on application by the defendants. 11I order that the summons be dismissed with costs. ********** 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. Decision last updated: 02 August 2011