Blacktown City Council v Wilkie (No 14)
[2012] NSWLEC 252
•12 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252 Hearing dates: 12 November 2012 Decision date: 12 November 2012 Jurisdiction: Class 5 Before: Pepper J Decision: Adjournment granted
Catchwords: PROCEDURE: application to adjourn two day hearing of notice of motion by second respondent - extensive history of delay by second respondent in proceedings - sudden illness of second respondent's barrister requiring hospitalisation - adjournment granted - second respondent to pay witness costs thrown away. Legislation Cited: Civil Procedure Act 2005, s 56 Cases Cited: Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216
Blacktown City Council v Wilkie (No 12) [2011] NSWLEC 238
Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110Category: Procedural and other rulings Parties: Blacktown City Council (Applicant)
Misty Wilkie (First Respondent)
Mark Reid (also known as Craig Floyd) (Second Respondent)
Graveyard Recycling Pty Ltd (Third Respondent)
Mario Constantine (Fourth Respondent)Representation: Mr I Bourke (Applicant)
Mr J Doyle (Second Respondent)
Houston Dearn O'Connor (Applicant)
Woolf Associates (Second Respondent)
File Number(s): 40025 of 2011
Ex Tempore Judgment
Mr Reid Again Applies for an Adjournment
This is an application by the second respondent, Mr Mark Reid, to adjourn a two day notice of motion by reason of the sudden illness of Ms Katica Longin, the counsel appearing for Mr Reid, who is the applicant on the notice of motion.
The notice of motion has been set down for hearing since 27 July 2012.
To state that the notice of motion, and indeed the proceedings generally, have been characterised by a significant history of delay, would be a gross understatement.
In Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110 I noted that the background to this application is contained in earlier decisions of this Court, in particular, as contained in Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216 (at [4] to [26], and see also Blacktown City Council v Wilkie (No 12) [2011] NSWLEC 238). I do not repeat that background here, but rely upon it, and the matters discussed in Wilkie (No 11), (No 12) and (No 13), for the purpose of the present application.
In Wilkie (No 13) I made the following observation (at [1]), which sadly remains apposite:
...These cases [the earlier Wilkie decisions] demonstrate that this matter has had a sad and sorry history with respect to non-compliance with orders by the second respondent, Mr Mark Reid, most of which have resulted in vacation of hearing dates.
The Court and the council once again find themselves in the frustrating position of having to entertain another application to delay the final determination of this matter.
The reason for the present application is set out in more detail than would otherwise be necessary, or appropriate, but for the extraordinary number of applications made by Mr Reid for an adjournment of these proceedings.
It is as follows. It appears (some of this evidence was presented from the bar table) that sometime either Friday evening or Saturday morning circumstances arose which necessitated Ms Longin's immediate hospitalisation. It is not known, according to the medical report of Dr Lynn Townsend, a fellow in obstetrics and gynaecology at the Royal Hospital for Women, dated 11 November 2012, when Ms Longin will be discharged. In any event, even upon discharge, it is probable that Ms Longin will not be in a position to proceed with the notice of motion for some time.
Mr Justin Doyle appeared today for the second respondent as a matter of courtesy to the Court. He is, for today's purposes only, instructed by Mr Woolf of Woolf Associates. Neither Mr Doyle nor Mr Woolf, the Court is told, is in a position to proceed with the notice of motion. No doubt this is due to the suddenness of Ms Longin's illness. The council was, however, otherwise ready to proceed.
Further complicating the matter is that Mr Bourke, who appears for the council, is now in all likelihood not available until June 2013. This will result in the council having to brief another barrister in order to prepare for and answer the notice of motion, thereby resulting in further wasted costs with no apparent result.
The position of the council, whilst sympathetic to Ms Longin, is thus one of exasperation occasioned by the prospect of further delay. It is no doubt for this reason that the council neither consents nor opposes the proposed adjournment.
The Adjournment is Reluctantly Granted
Although these are Class 4 proceedings, the contempt charge that Mr Reid faces is very serious, with his imprisonment a potential outcome. Given this, and in light of the medical evidence presented to the Court verifying Ms Longin's sudden illness, the Court must accede to the application to adjourn the hearing of the notice of motion. Although to do so is neither "quick" nor "cheap", it is the "just" outcome in all the circumstances (see s 56 of the Civil Procedure Act 2005), the council suffering no irremediable prejudice by the further protraction of the proceedings.
Costs
The council has sought an order that costs be reserved generally and an order that the specific witness costs for Mr Michael Edwards, an geophysical waste expert, and Ms Irene Linkenbagh, a solicitor who acted for the council in respect of these contempt proceedings in 2008, but who now resides in Cooma - both of whom have sworn affidavits for the purposes of the notice of motion and both of whom were required for cross examination - be awarded in its favour.
I consider both orders sought to be appropriate in the circumstances.
Orders
The Court therefore lists the hearing of the further amended notice of motion on 18 and 19 March 2013 at 10am. This is the first date available to both the Court and the council.
In so doing, the Court notes that it cannot, at this stage at least, conceive of any circumstance that would give rise to another successful adjournment of the notice of motion. Mr Woolf, who instructs Ms Longin, is put on notice that if counsel for the second respondent is unavailable on these dates for whatever reason, the Court expects him to be in a position to deal with the notice of motion.
The Court also orders that the second respondent pay the council's costs thrown away as follows:
(a) the costs of travel and the appearance of Ms Irene Linkenbagh, fixed in the amount of $700; and
(b) the costs of travel and appearance of Mr Michael Edwards, fixed in the amount of $160.
With the exception of the costs order made above, the costs of today and otherwise thrown away by the adjournment are reserved.
Finally, the parties are granted liberty to restore on three days' notice.
**********
Decision last updated: 13 November 2012
3
3
1