Chin v Ryde City Council [2005] HCATrans 750 (9 September 2005)

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Chin v Ryde City Council [2005] HCATrans 750 (9 September 2005)

Last Updated: 22 September 2005

[2005] HCATrans 750

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S225 of 2004

B e t w e e n -

LARRY CHUNG KA CHIN

Applicant

and

RYDE CITY COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2005, AT 2.49 PM

Copyright in the High Court of Australia

MR L.C.K. CHIN appeared in person.

MR M.J. HEWETT: I appear for the Council, your Honour. (instructed by Pike Pike & Fenwick)

GUMMOW J: Yes, Mr Chin.

MR CHIN: Good afternoon, your Honours. Where can I – just here?

GUMMOW J: Yes, please.

MR CHIN: Thank you, your Honour. Your Honours, I will not hold you too long. It has been a long day for you, so I will be fairly quick and put forward my case seeking relief of this Court on the basis that the primary and secondary courts has made the gross error of law and therefore it is a gross miscarriage of justice in this matter.

The matter, your Honours, relates to a couple of doors that I put up in the duplex which is a two-storey duplexes. Prior to the doors put up I went to the respondent Council asking whether a development application was required and I was told by the staff that it was not necessary to hang doors and subsequently I have done that but two years later, your Honours, the matter becomes an issue and the respondent asks me whether I am prepared to remove the doors, so that it would be no more issue of the matter and I agree. So following that they say do not do anything until you receive a notice from the Council and I follow that.

In November 2001, on 27 November, the respondent Council instigated the matter pursuant to section 121B of the Environmental Planning and Assessment Act 1979 (NSW), your Honours. Under the Act if you go through the authorities and legislations and other materials, your Honours, which I have tagged for your easy references, I am sure your Honours are expert in law so I do not need to walk you through the meaning and interpretation of those sections and I just go straight on to mentioning the significance of the section, in particular, section 121D and section 121E, mainly to do with that the local council must follow the due process, basically, in order to give the accused a – you know, if they follow that due process, it means that they have followed the process of natural justice.

But in this case, your Honours, the respondent Council has done that. They have followed the sections from 121B all the way to sections 121N actually. In that course of actions the Council also – mind you, your Honour, they were acting as a judiciary as well – so the matter was heard before the full Council under the section J and K, pursuant to sections 121J and 121K, your Honours. So subsequently a judicial decision was made by the Council. So that the decision of the Council was that they sending me the notice and require me to respond in 14 days which is 28 February 2002.

On that occasion, your Honours, I have made the representation to the Council as well as previously and to the effect that I am willing, more than happy to comply and a letter received from the respondent and noting that the “intention to comply is noted” so which is dated 13 March 2002 and subsequently following other little process, subsequently on 18 April, your Honours, in 2002 the respondent is sending me a letter of compliance of this matter stating that the matter has been complied with. If you refer to, your Honours, to the tab No 15 and that is a significant authority – on that occasion Council has the authority under the Act.

So really I am relying on not only the legislation, the authorities of the case law, I am also relying on the authority of the Council. At that point in time they were acting as the authority in this matter. Subsequently the matter is resolved and I was told that is the end of the matter but suddenly, surprisingly, your Honours, on 20 May, just over four or five weeks later, I receive a summons which the respondent re-instigated the same matter which is based on exactly the same facts. Now, this matter went to the Land and Environment Court and - - -

GUMMOW J: Now, in order for this Court to intervene, you have to persuade us of error in what was said at page 25 in the book respecting the correct reading of section 76B plus section 125(1).

MR CHIN: Sure, your Honours. Page 26 was it, your Honour?

GUMMOW J: Page 25.

MR CHIN: Yes, 25. Your Honours, section 76B to start with, it is a irrelevant section, your Honours. A matter of this before you, your Honour, is to do with non-compliance. It has nothing to do with development being carried out on a vacant land. So the section 76B it is to do with illegal building works, in other words, without council consent and to be put on erection of a building unauthorised or without consent on a vacant land.

Also, section 125(1), your Honours – no doubt you have read through the section, I do not need to repeat – basically what it says is that if a council issued you a direction or an order, if that person failed to comply with that order or the direction, then that is construed as offence. But in my case, your Honours, I have rectified a non-compliance long before the second re-instigation process conducted by the respondent on 20 May 2002, your Honours.

GUMMOW J: Yes, the point against you is that at one stage you were in breach. That is what - - -

MR CHIN: The breach was to do with the non-compliance and I also submit the case law, your Honours. If you go to the tab No 16 which is the case which I submitted in my application book as well as the authorities and legislations and other materials, and that is the case, it is Wyong Shire Council v Ardi Pty Ltd and, your Honours, this case is directly relevant to the case of mine which is before you and which is exactly the same thing. Ardi Pty Ltd was being accused of turning the duplex into a residential flat building and the case law and authority I can draw from here, your Honours, is that if you go to page 91 of the LGERA law book, page 91, at the bottom paragraph, under “Discretion”, your Honours, I just read out:

The majority of the orders which the council seeks would require the respondent to comply with the terms of the development consent, and to be restrained from using and occupying the premises in breach of the development consent. A further order would require the removal of the lockable doors.

And further, her Honour, Pearlman, goes to say on the next page 92 under line 29 and follow:

I consider that the breach of the development consent which has been established is not merely technical, and that it is a “continuing breach by conduct which would quite easily be modified to bring it into compliance with law”. It is appropriate that the Court should make the orders which relate to compliance with the development consent, and which restrain occupation or use otherwise than in accordance with the development consent.

However, I am prepared, in the exercise of the Court’s discretion, to refrain from ordering the removal of the lockable doors. Although the lockable doors facilitate the use of the premises as a residential flat building by contributing to the physical layout of the premises as separate dwellings, a critical factor remains the use of the premises. So long as the premises are used in compliance with the development consent, it is not essential that the lockable doors be removed, and I accept that they do serve a security purpose.

So on that basis her Honour allowed the doors to remain and, your Honour, if you read on in the next case which I have included in my presentation today which is the case, tab No 17, which is Blue Mountains City Council v Koprivnjak and in that case, your Honour, I mainly would like to draw your consideration into the fact that the authority here which I draw upon, your Honour, is the fact that clearly the law would not allow anyone to re-instigate over and over again.

So the authority here is that, your Honour, if you read through on page 189 of the case, that gives you – on that page, that gives you, the second paragraph gives you the background of the breach which is a summons relates to carrying out development on a certain site, a building site meaning, between 1 August 2001 and September 2001 without development consent. With this particular authority what I try to present to your Honours is that the law clearly here is stating that no one is allowed under the law to re-instigate and re-instigate over and over over the same factual matter which has been already resolved, so on that basis his Honour - - -

GUMMOW J: This was the case of two court proceedings, was it not, the Blue Mountains Case?

MR CHIN: That is correct, your Honour, because the first was instigated at the local court level then subsequently the Council re-instigated the same matter in the Land and Environment Court. So the authority here, your Honours, is very clear, that without any doubt that the law would not permit anyone, whether it is a criminal or civil matter, to go on forever. So what the primary and secondary court have done in my case, your Honours, is that they have created a very serious and a dangerous case.

So what it means is that after the completion of the second instigation – which the respondent are relying on a date, by the way, they rely on a particular date. On 20 November they allege that I was in breach of the non-compliance. I accept that, your Honour, and I apologised subsequently to the respondent, but the thing was that I have done what I can to rectify the problem and the dangerous situation created by the court - - -

GUMMOW J: The point against you is that as at 21 November there was a breach of the law and you have been fined in respect of it.

MR CHIN: Yes, that is right, your Honours. What I am trying to say - - -

GUMMOW J: It has been fixed up so there will not be further breaches but there was at least that breach and that is what the authorities have fixed on.

MR CHIN: Yes, but what I am trying to say to the Court here now is that I asked the Court to intervene because it is setting out a very dangerous and grossly injustice – a case law because what it means is that there is nothing
to stop the respondent to turn around and say, “Okay, I am going to re-instigate again the same matter, this time on 9-10 November”, your Honours.

GUMMOW J: Well, that might be a different matter.

MR CHIN: And then subsequently and go on and on, again, so - - -

GUMMOW J: No, that might attract the sort of decision of Justice Cowdroy in the Blue Mountains Case, but that is not yet this case.

MR CHIN: Yes, but nonetheless, your Honour, what I am trying to say is that the case did, you know, instigate it once before under the section 121B and that should be the end of the matter. Therefore, I am seeking the Court to intervene in the interests of the natural justice and Australian democracy, your Honours. I would ask this Court respectfully to consider my request, your Honours.

GUMMOW J: Thank you.

MR CHIN: Thank you, your Honour.

GUMMOW J: Thank you. Yes, we do not need to call on you, Mr Hewett.

We have considered the submissions in writing and made orally but we see no error in the statutory construction given in the judgment of Justice Hodgson in the court below. Accordingly, special leave is refused. No question of costs, is there?

MR HEWETT: I am instructed to seek costs, your Honour.

GUMMOW J: We will not make a costs order. Special leave is refused.

The Court will now adjourn to 10.15 am on Tuesday 27 September at Canberra.

AT 2.59 PM THE MATTER WAS CONCLUDED