CHRISS v WILLIAMS [1988] NSWCA 22

CHRISS v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MAHONEY JJA 20 May 1988

[1988] NSWCA 22

Appeal — Stay of proceedings — Appeal from Land and Environment Court — Proceedings part-heard before Assessor in which applicants objected to application of Ordinance 70 to the reconstruction of wall near boundary — Separate proceedings heard by Judge of Land and Environment Court in which adjoining owner sought to have building consent of local council held invalid and to be joined as party to proceedings before Assessor — Application for joinder refused — Appeal to Court of Appeal on question of law — Application to Court of Appeal to stay proceedings before Assessor pending that appeal — Supreme Court Rules Pt 8 r8 made applicable to the Land and Environment Court with necessary adaptations — Right of adjoining owner under Pt8 r 8 to be joined as party to proceedings before Assessor — Policy of legislation as to being a party and as to being heard — Application made to Assessor in proceedings before him to be joined as party refused — Adjoining owner given right to be heard before Assessor — Held proper course for adjoining owner was to appeal to Judge of Land and Environment Court against refusal by Assessor to join him as party if error of law was alleged — Stay refused.

ORDERS Application for stay of proceedings refused.

Hope JA This is an application by notice of motion that pending the determination of an appeal from a decision of Bignold J in the Land and Environment Court in proceedings between Mr John Chriss as application and Mr and Mrs Williams and the Mosman Municipal Council as respondents, proceedings before Assessor Nott in the Land and Environment Court being proceedings between Mr and Mrs Williams and the Mosman Municipal Council and being numbered 20224 of 1988 should be stayed.

Mr and Mrs Williams are the owners of premises in 74 Wolseley Road, Mosman. Mr Chriss owns the adjoining premises, 72 Wolseley Road, Mosman. Many years ago a wall was erected between the two premises on land included in 74 Wolseley Road. Mr and Mrs Williams, wishing to erect a building on their land, sought and obtained a building consent from the Mosman Municipal Council. Although the precise position is not entirely clear it seems that the work originally envisaged the retention of the wall I have referred to, but when work was being carried out it became apparent that it would be better to demolish the wall and construct another one in its place.

The wall was accordingly demolished and the disputes that have arisen between the parties concern the reconstruction of a substitute wall. the wall, if reconstructed, would not comply with the requirements of Ordinance 70 under the Local Government Act in relation to its distance from the common boundary. The Council considered that the relevant provisions should be waived - if that is the appropriate expression - and proceedings were brought by Mr and Mrs Williams in the Land and Environment Court joining the Mosman Municipal Council as respondent, to have the Court affirm that the provisions of the Ordinance need not be complied with. It is apparent that the Council will not

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oppose that application, although it may be it will bring before the Court any matter the Court should have had before it to enable it to make a proper decision.

Mr Chriss brought separate proceedings in the Land and Environment Court, being proceedings number 40090 of 1988, against Mr and Mrs Williams and the Mosman Municipal Council seeking, among other things, a declaration that the building consent was invalid. In those proceedings Mr Chriss made an application to the Land and Environment Court for an order that he be joined as a party in the proceedings before Assessor Nott. The application was heard by Bignold J and was refused. An appeal against this decision has been made to this Court.

In the meanwhile the proceedings which are part-heard before Assessor Nott came on for further hearing. An application was made on behalf of Mr Chriss to be joined as a party and also for a stay to enable the matter to be tested in this Court in the event that that order was refused. Assessor Nott refused the application to join Mr Chriss as a party but was prepared, it would seem, in the event that he made the order sought by Mr and Mrs Williams, to stay that order to enable any available application to be made by Mr Chriss.

The application now before this Court is to stay the proceedings before Assessor Nott pending the hearing of the appeal brought from the decision of Bignold J. It is claimed that there was an error of law in his Honour's decision and accordingly an appeal in relation to that question of law lies to this Court.

Bignold J took the view that he ought not grant the order joining Mr Chriss as a party because he did not think Mr Chriss brought himself within the provisions of Pt8 r 8 of the Supreme Court Rules which, by virtue of the Land and Environment Court Rules, are made applicable to proceedings in that court subject to such adaptations as may be necessary. His Honour had regard to a decision in the Equity Division of this Court and to a decision of Cripps J in the Land and Environment Court, the latter decision however being based not on Pt8 r 8 but on s38 of the Land and Environment Court Act.

It is inappropriate to express any concluded view on the decision of Bignold J but I am by no means clear that his Honour approached the matter in the right way. Pt8 r 8 is not to be applied in the Land and Environment Court necessarily in the same way as it would be applied in this Court. It is to be applied with such adaptations as may be necessary. In this regard it is relevant to appreciate that in the Land and Environment Court matters of public law are commonly involved and not matters of private law as are commonly involved in the Supreme Court.

In the present case Mr Chriss claims that he is directly affected by any non-compliance by Mr and Mrs Williams with the relevant provisions of Ordinance 70. If he is so directly affected it would seem - although I express no concluded view about this - that he would be entitled to bring proceedings to restrain that infringement because of the special interest he has in having the provisions of the Ordinance complied with. If he is a person in that position it would seem to be strongly arguable he falls within the provisions of Pt8 r 8 in relation to proceedings which could result in non-compliance with the Ordinance. However the questions arise whether it is to this Court that it is appropriate that any application for a stay of the proceedings before Assessor Nott should be made, and whether it is to this Court that an appeal should be brought in respect of the question of the joinder of Mr Chriss.

As I have indicated Mr Chriss applied to Assessor Nott to be joined as a party, Assessor Nott being the person before whom the relevant proceedings were being heard. Assessor Nott refused that application There is an appeal from that refusal,

URJ CHRISS v WILLIAMS (Samuels JA) 3

if it involved an error of law, to a Judge in the Land and Environment Court. Bignold J made his order in proceedings other than the proceedings before Assessor Nott. They were separate proceedings and as it seems to me Pt8 r 8 involves the making of an order in the proceedings in which it is sought by the applicant to be made a party. If that view be right, any application by Mr Chriss under Pt8 r 8 to be joined as a party to the proceedings before Assessor Nott should properly have been made in proceedings number 20224 of 1988.

We have been referred to the provisions of Pt3 of the Land and Environment Court Rules but in my opinion those provisions would not enable a Registrar to make an order in the proceedings other than number 20224 of 1988 that Mr Chriss be joined as a party in those proceedings. This may seem to be a rather technical ground, but it seems to me it is relevant to the exercise by this Court of its discretion whether to grant a stay, having regard to the basis upon which it is made on behalf of Mr Chriss. These matters are singularly matters for the Land and Environment Court, and it is apparent from the legislative changes that have been effected that appeals from Assessors on questions of law should go primarily to a judge of that Court. It was the jurisdiction primarily of Assessor Nott to make a decision as to whether Mr Chriss should be made a party, and he was the only member of the Court who was seized of those proceedings. Bignold J did not have those proceedings before him and accordingly, in my view, it is appropriate that this Court should have regard, in considering whether it should grant a stay or not, to what Assessor Nott did and to whether there is an appeal pending from the decision of Assessor Nott.

The proper course for Mr Chriss to adopt is to appeal to a judge of the Land and Environment Court against the decision of Assessor Nott if it is thought that the Assessor has made an error of law, and any stay should be sought in that Court in aid of the appeal to the Judge against Assessor Nott's decision. In my opinion the present application should be refused with costs.

Samuels JA I agree. I would add only this: I concur in what my brother Hope has said to the effect that questions of practice and procedure of this sort should be left, in the first instance, to the Court dealing with the matter so that all the avenues for review and appeal in that Court are first explored The provisions of Pt8 r 8 of the Supreme Court Rules must be read - as I think Pt6 r 1 of the Land and Environment Court Rules contemplate - in the light of the very flexible provisions of s38 and s39 of the Land and Environment Court Act which - particularly s38 - base in the first instance Court the widest powers to mould procedures to the exigencies of the situation.

We have been told that Assessor Nott is perfectly prepared to allow Mr Chriss to address by counsel, to, in effect, lead evidence, and to cross-examine witnesses presented by other parties. This must be a powerful consideration when taking account of the question whether Pt8 r8 should be applied. These were matters essentially for Assessor Nott as the judicial officer seized with the responsibility for regulating and determining the proceedings, They involve considerations with which Bignold J would not necessarily have been familiar.

Further, although on an application for a stay it is not for us to make any final appreciation of the prospects of the appeal, the provisions of s87, s95 and s98 of the Environment Planning and Assessment Act which confer rights tantamount to those of the parties upon objectors in cases of designated development but do not offer those rights to objectors in other cases, would seem to me to offer strong support to the view ultimately taken by Bignold J

I agree with the orders proposed.

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Mahoney JA I also agree.

HOPE JA: The orders of the Court are the application is refused with costs.