Khattar v Holroyd City Council [2005] NSWLEC 411

Land and Environment Court of New South Wales

CITATION : Khattar v Holroyd City Council [2005] NSWLEC 411

George Khattar (Appl) PARTIES : Holroyd City Council (Resp)

FILE NUMBER(S) : 11636 of 2004

CORAM: McClellan CJ

KEY ISSUES: Question of Law :- Whether the applicant has received a fair hearing

DATES OF HEARING: 28 June 2005 EX TEMPORE JUDGMENT DATE : 06/28/2005

T S Hale SC (Appl) Maclarens (Sols - Appl)

LEGAL REPRESENTATIVES:

G McKee (Resp) McKees Legal Solutions (Sols - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

TUESDAY 28 JUNE 2005

11636/04 KHATTAR v HOLROYD CITY COUNCIL

JUDGMENT 1 HIS HONOUR: This matter comes before me this afternoon because the Commissioner has referred four questions identified as questions of law, to me for consideration pursuant to s 36(5) of the Land and Environment Court Act 1979. 2 I apprehend that the questions were raised because of submissions which have been put to the Commissioner during the course of the proceedings. However whether or not that be the case, my discussion with senior counsel for the applicant confirms that he does not now propose to make submissions to the effect of any of the propositions. 3 The questions framed in the document are as follows:

A. Is unsworn material provided orally by a non-expert during the course of a view to be given the same weight as if the same material had been given as sworn evidence during the court hearing?

B. If the answer to (1) is "yes", is any distinction to be drawn between such material where it relates to general matters of concern and such material where it contains assertions as to the existence of facts or the occurrence of events which facts or events, if accepted, are prejudicial to a party?

C. Is it a denial of procedural fairness to allow unsworn evidence to be taken during the course of a view from a person where:

i. there is no notice given of that evidence; and/or ii. that person does not give evidence on oath?

D. If the answer to (3) is "no" in either instance, is any distinction to be drawn between such material where it relates to general matters of concern and such material where it contains assertions as to the existence of facts or the occurrence of events which facts or events, if accepted, are prejudicial to a party? 4 Full argument has not taken place in relation to any of these questions. However discussion with counsel makes plain that the question which could arise in relation to the present proceedings is whether or not the applicant has received a fair hearing. That question arises in the context that the applicant seeks to extend the hours of operation of an existing hotel. Apparently, the application has been the subject of a number of objections from local people who complain that the existing operation of the hotel is interfering with their amenity. Apparently, although I have not seen them, their complaints have been recorded in letters lodged with the Council and have been confirmed in discussions which have taken place with the Commissioner on-site. 5 The applicant sought that one of the objectors be available to be cross-examined in the courtroom. Arrangements were made for this to happen, and it has taken place. In relation to another person, the applicant sought to have that person available to be cross-examined in the courtroom, but his business commitments did not permit that to occur. The applicant has, to date, not pursued that application, and I leave the matter today on the basis that the applicant's counsel will consider after discussion with counsel for the respondent whether that person is still required for cross-examination. The applicant, may be content to confine itself to a submission, that because the evidence has not been tested in the courtroom, the Commissioner should give the matter less weight in his ultimate deliberations. 6 I have asked counsel for the applicant whether he proposes to make submissions to the effect of any of the questions of law identified by the Commissioner. I am told that he will not. My tentative conclusion is that senior counsel, in taking that position, has adopted a prudent course. It is necessary to remember that s 38 of the Land and Environment Court Act was deliberately framed by the legislature to ensure that proceedings in this Court were conducted with as little formality and technicality...as the proper consideration of the matters before the Court permit (see s 38(1)). That subs is followed by s 38(2) which provides that the Court is not bound by the rules of evidence "but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits." 7 Section 38(2), to my mind, makes plain that the Court is not confined to receiving information in relation to the issues before it to a procedure which follows the rules of evidence. Indeed, s 38(2) says expressly to the contrary and provides that the Court may receive that information "in such manner as it thinks appropriate." It has been the practice of this Court for a considerable period of time to receive "evidence" from objectors and other people on-site during the course of a view of the premises. That view traditionally takes place as the first step in a hearing under the current procedures of the Court. That step has been taken mindful of the power given to the Court in s 38(2). 8 However s 38(2) does not displace an obligation for the Court procedures to be fair. If in the circumstances of a particular case, fairness requires that a particular witness come to court to be cross-examined, then the Court will make appropriate arrangements for that to occur. That does not mean that in every case where such a request is made, fairness will only be provided if the person does come to court and is cross-examined. However there will undoubtedly be cases where that will be the situation. 9 In the present case, as I have indicated, the applicant and the respondent will speak to one another in relation to whether or not a particular person is required to attend for cross-examination. The parties may, and sensibly could, agree that in the absence of that person having his or her evidence tested in the courtroom, the Commissioner should give less weight to it. However that is a matter for the parties to consider and for the Commissioner ultimately to address after hearing submissions from both sides. 10 Before I leave the matter, I should make plain that when a Commissioner of the Court is undertaking the task required of them in determining an appeal in relation to a development application, they must discharge the obligation of fairness and weigh the evidence which is before them, giving to each component of it, appropriate weight. However, that is a matter which falls within their discretion. And at the end of the day, it is for the parties to put before the Commissioner those submissions which they believe may persuade the Commissioner to give the weight which they seek to any component of the evidence. As I have indicated, provided the process is fair, it seems to me the Court must be faithful to the legislation and conduct its proceedings in the most efficient manner which it can to achieve a speedy resolution of the dispute. 11 Accordingly, in the circumstances, I decline to answer the questions of law, the matter is referred back to the Commissioner for resolution. **********

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