Blacktown City Council v Wilkie (No 13)
[2012] NSWLEC 110
•11 May 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110 Hearing dates: 11 May 2012 Decision date: 11 May 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Hearing vacated with each party to bear their own costs
Catchwords: PRACTICE AND PROCEDURE: application to vacate by applicant -application caused by late amendment of notice of motion by second respondent, failure of second respondent to file his evidence in time and difficulties of the applicant in producing documents for inspection - probable need for vacation foreshadowed by applicant on last occasion - second respondent's failings due in part to late determination of grant of legal aid - hearing vacated - each party to bear their own costs Legislation Cited: Civil Procedure Act 2005, ss 56-60 Cases Cited: Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216 Category: Procedural and other rulings Parties: Blacktown City Council (Applicant)
Misty Wilkie (First Respondent)
Craig Floyd (also known as Mark Reid) (Second Respondent)
Graveyard Recycling Pty Ltd (Third Respondent)
Mario Constantine (Fourth Respondent)Representation: Mr D Jordan (Applicant)
Ms K Longin (Second Respondent)
Houston Dearn O'Connor (Applicant)
Woolf Associates (Second Respondent)
File Number(s): 40025 of 2001
Ex Tempore Judgment
The Council Seeks to Vacate a Hearing of a Notice of Motion
The background to this application is contained in earlier decisions of this Court in this matter, notably, Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216 (at [4]-[26]). These cases demonstrate that this matter has had a sad and sorry history with respect to non-compliance with orders by the second respondent, Mr Craig Reid, most of which have resulted in vacation of hearing dates.
On this occasion, however, it is the applicant, Blacktown City Council ("the council"), that is seeking a vacation of the hearing dates of Mr Reid's further amended notice of motion.
On 30 January 2012 the motion was initially listed for hearing on 14 March 2012, for one day. Since that time, much interlocutory water has passed under the procedural bridge.
Relevantly for present purposes, on 12 March 2012 the hearing date for the motion was vacated by the Acting Registrar upon the application of Mr Bruce Woolf of Woolf Associates on behalf of Mr Reid because Mr Woolf had only just received instructions to act on behalf of Mr Reid due to a delayed grant of legal aid, and he was not yet in possession of any material (he obtained instruction on 9 March 2012). The motion was relisted for hearing on 21 and 22 May 2012.
Orders had been previously made by the Court, on 30 January 2012, for Mr Reid to file and serve his evidence in support of the motion when it was initially listed for hearing on 14 March 2012. These orders were not complied with. The explanation given for this non-compliance was the delay in Mr Reid securing funding by way of legal aid.
On 4 May 2012 leave was sought by Mr Reid to file in Court the further amended notice of motion. After considerable argument, the Court granted leave. Plainly enough, the amendments to the motion required a new timetable to be set for the preparation of the hearing of the motion on 21 and 22 May 2012. Again the explanation given for the delay in amending the notice of motion was the time taken to determine Mr Reid's legal aid application.
On that occasion, the council candidly indicated that it was unlikely that it would be in a position to marshal its evidence in sufficient time to permit the hearing on those days to proceed. But the council agreed to make its best endeavours to comply in light of the extraordinary delay in finalising these contempt proceedings to date.
One of the amendments sought to the motion was an order that consent orders dated 18 February 2009 be set aside because the consent was elicited by a material mistake or irregularity, by illegality or against good faith and/or because the consent orders were futile and impossible to perform. These consent orders were signed by Mr Reid and by the council's solicitor. They varied order 5 made by the Court on 6 December 2001 that, in effect, required Mr Reid to remove certain material from the site the subject of these proceedings, and to deliver documentary evidence of that removal. It is Mr Reid's failure to comply with these orders that is the genesis of these contempt proceedings.
Also before the Court on 4 May 2012 was an application to set aside a notice to produce that had been served by Mr Reid on the council. After considerable discussion and sensible compromise by both parties, the terms of the notice to produce were varied to enable limited production of documents by the council. This result is to be lauded. Much of the notice to produce was liable to be set aside on the grounds of relevance and oppression, which invariably would have resulted in further delay and legal costs being incurred by both parties while Mr Reid sought to obtain this evidence by other means.
Again the council foreshadowed difficulties, given the imminent hearing date, of complying with the notice to produce in time to allow the documents, largely archived off-site, to be located and produced to Mr Reid.
Driven very much by the Court's desire to ensure that the motion was heard on the days it was listed for hearing, the Court made short minutes of order setting an ambitious timetable for Mr Reid to file and serve the evidence upon which he sought to rely in support of the notice of motion, and for the council to produce its documents pursuant to the amended notice to produce. It was further decided to bring the matter back for further directions once Mr Reid's evidence had been served.
Mr Reid met the timetable imposed upon him on 4 May 2012 for the filing of his evidence. However, that which had been foreshadowed by the council on that date, namely, its inability to finalise its evidence in reply, or locate and produce the documents required, came to fruition.
The council's difficulties are detailed in two affidavits. First, in an affidavit of Mr Steven Shneider sworn 10 May 2012, and second, in an affidavit of Mr Glenn Apps sworn 10 May 2012.
Mr Shneider is the solicitor for the council and has had an intimate involvement in this matter for a considerable period of time. In his affidavit Mr Shneider deposes to the steps necessary to sort through the archived material to locate the documents that are required to be produced by the council. He also outlines the steps and time it will take to prepare the council's evidence to meet the affidavit evidence recently filed by Mr Reid. According to Mr Shneider, it is impossible for the council to produce documents or to file and serve its evidence in sufficient time for the hearing of the newly revised notice of motion on 21 and 22 May 2012 to proceed.
The affidavit of Mr Glenn Apps, who is the Team Leader of Regulatory Planning for the council, is in similar terms. Mr Apps estimates that it will take him approximately 14 days to locate the material sought in the notice to produce and to prepare material by way of response to the evidence filed by Mr Reid.
The Hearing of the Motion Must be Vacated
Based on the uncontested material contained in these affidavits it would not be "just" in accordance with s 56 of the Civil Procedure Act 2005 (as informed by ss 57-60 of that Act) to compel the hearing of this notice of motion on 21 and 22 May 2012. It is, therefore, appropriate that I vacate the hearing dates as requested by the council.
Each Party to Bear Their Own Costs
Mr Reid seeks his costs thrown away by the vacation. This is opposed by the council.
In my view, the appropriate order is that each party should bear their own costs in this respect. Many of the reasons for this conclusion have already been given above.
In short, first, some of the evidence that has been filed, albeit in compliance with the short minutes of order made by the Court on 4 May 2012, is evidence that should have been filed much earlier by Mr Reid, given that this motion was initially listed on 30 January 2012 for hearing on 14 May 2012.
Second, in large part, the evidence that the council requires to meet the further amended notice of motion is responsive to the bad faith issue only recently included in the motion. It is a serious claim that the council must be permitted to defend properly.
Third, the council foreshadowed difficulty on the last occasion in complying with the timetable that the Court imposed.
Fourth, as discussed above, there was a very real risk that large parts of that notice to produce would have been set aside had it not been for the agreement by both parties to amend it. In such circumstances, it would be unfair to, in effect, punish the council for compromising its position.
Accordingly, the appropriate costs order is that each party should bear their own costs thrown away by reason of the adjournment of the motion.
Orders
The orders of the Court are as follows:
(1) the dates for the hearing of the further amended notice of motion on 21 and 22 May 2012 are vacated; and
(2) each party is to bear their own costs of the vacation and of this application.
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Decision last updated: 15 May 2012
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