Bennette v Byron Shire Council

[2000] NSWLEC 22

Land and Environment Court

of New South Wales

CITATION:	Bennette v Byron Shire Council [2000] NSWLEC 22
PARTIES:	APPLICANT: Jerry L Bennette RESPONDENT: Byron Shire Council
FILE NUMBER(S):	10216 of 1997
CORAM:	Talbot J
KEY ISSUES:	Practice & Procedure :- vacation of hearing dates
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	21/01/2000
EX TEMPORE JUDGMENT DATE :	01/21/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr D Miller (Barrister) SOLICITORS: Hertzberg Heydon RESPONDENT: Mr T Robertson (Barrister) SOICITORS: Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No. 10216 of 1997
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 January 2000

Jerry L Bennette
Applicant

v
Byron Shire Council

Respondent

EX TEMPORE REASONS FOR JUDGMENT


1. HIS HONOUR: Mr Miller has done the best that he can in the circumstances, but unfortunately his instructions do not extend to providing any grounds for an adjournment. This is the afternoon of the day before the matter has been set down for hearing for the third occasion outside Sydney. The hearing necessitates the Court dispatching a Commissioner to Byron Bay with the prospect of being there for a week, then only to be met by an application for adjournment at 10.00am on Monday. That prospect, in itself, is totally unacceptable so far as the administration of the court's business is concerned. The Commissioner can be gainfully employed in a busy list in Sydney and in fact will be so in the event that this hearing is vacated. There are other cases that demand the time of a Commissioner waiting to be heard next week which otherwise, as I understand the list, will be transferred to a vacation judge for hearing.

2. Those circumstances of course are sufficient for the Court to take action here and now and to ensure that a futile trip is not made. However, it is obvious, as Mr Robertson puts to me, that counsel and solicitors representing the respondent council and witnesses must be gathered, transported, presumably accommodated and other provisions made at a country courthouse in contemplation of a week's hearing. Notwithstanding that an adjournment application has been foreshadowed, it is the council's instructions to insist that the matter proceed. The circumstances are to some extent relieved by the frank admission by Mr Miller that, in accordance with his instructions, in the event that the adjournment application is refused, the matter will be discontinued.

3. I am informed from the bar table, and have no reason to doubt it, that on the last occasion before Lloyd J on 12 January this year, an application for adjournment was refused. Lloyd J apparently made observations, which I can reiterate whether or not he made them, that it would be an abuse of the Court's process to allow this matter to be further adjourned given that it was originally set down for hearing for two days on 1 and 2 October 1998 at Byron Bay and then subsequently set down 5, 6 and 7 October 1999 before it was again listed for 24, 25, 27 and 28 of this month.

4. Further I am at a loss to understand the submission that the granting of an interlocutory injunction in relation to the subject land would have the effect that the applicant would no longer be in a position to pursue this class one appeal.

5. Having regard to the whole of the history, the further application made by Mr Miller on the return of the respondent's Notice of Motion dated today, is refused.

6. I note the indication by Mr Miller that the proceedings will consequentially now be discontinued. Accordingly the Notice of Motion dated 21 January 2000 made returnable in stanter before me at 2.00 pm today and filed on behalf of the respondent is rendered otiose and must be dismissed.

7. Mr Miller are you going to formally discontinue now or undertake to file a notice of discontinuance this afternoon?

8. MILLER: My instructions are to discontinue, so I formally apply.

9. HIS HONOUR: Yes, all right well in that case I will note that the appeal is discontinued and I direct that the applicant's solicitor file a formal notice of discontinuance within the next seven days.

10. ROBERTSON: Would your Honour also note that the discontinuance was not with consent and would your Honour stand the proceedings over for the purposes of making of the respondent's application which we foreshadow for costs?

11. HIS HONOUR: Yes. Well is it the question of costs on this Notice of Motion or in the proceedings?

12. ROBERTSON: On the proceedings as a whole including this Notice of Motion.

13. HIS HONOUR: Yes all right, any question of costs in relation to the proceedings including today's Notice of Motion is reserved and I will list--

14. ROBERTSON: Just liberty to apply.

15. HIS HONOUR: Is that all you want me to do?

16. ROBERTSON: I think so.

17. HIS HONOUR: You don't want to throw it before the registrar so it happens?

18. ROBERTSON: I think we'll just seek liberty to apply on two days notice.

19. HIS HONOUR: All right, something else might happen.

20. ROBERTSON: Sort something out.

21. HIS HONOUR: Liberty to apply on the question of costs.

22. ROBERTSON: Yes, will that be before the registrar?

23. HIS HONOUR: It will be. Liberty to restore before the registrar on the question of costs rather than apply.

24. ROBERTSON: Would it be possible for your Honour's comments to be taken out for the assistance of the registrar?

25. HIS HONOUR: Yes.