Carroll v Byron Shire Council

[2019] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carroll v Byron Shire Council [2019] NSWLEC 52
Hearing dates:	12 April 2019
Date of orders:	12 April 2019
Decision date:	12 April 2019
Jurisdiction:	Class 6
Before:	Sheahan J
Decision:	Leave to appeal refused, with costs.
Catchwords:	APPEAL: Application for leave to appeal out of time – refused because statute-barred – costs.
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Cases Cited:	Fletcher v Byron Shire Council [2010] NSWLEC 185 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Hussain v Liverpool City Council [2014] NSWLEC 45 Thaler v Cooma Monaro Shire Council [2015] NSWLEC 119
Category:	Principal judgment
Parties:	Patrick Carroll (Appellant) Byron Shire Council (Respondent)
Representation:	Counsel: Litigant in Person (Appellant) Mr D Baird, solicitor (Respondent)   Solicitors: Litigant in Person (Appellant) Marsdens Law Group (Respondent)
File Number(s):	2019/47097
Decision under appeal	Court or tribunal: Byron Local Court Jurisdiction: N/A Citation: N/A Date of Decision: 16 March 2017 Before: Magistrate J A Linden File Number(s): 2016/335030

EXTEMPORE Judgment

1. Mr Carroll filed in this Court, on 11 February 2019, an appeal against the severity of a sentence imposed upon him by Byron Local Court on 10 February 2017, after he had challenged two penalty infringement notices (“PIN”) issued to him, on 19 November 2015, for displaying certain signs in the Bryon area, without approval.

2. By February 2017, he appears to have relocated to the Gladstone area of Queensland, and he is now located at Smithfield near Cairns. Those relocations have hindered his communication with the Council and the Courts, as his filed documents make clear. He has come all the way from Cairns to Sydney for the List Judge directions hearing scheduled for this morning.

3. Byron Local Court imposed, in his absence, fines of $10,000 and $20,000, and a costs order for $1500, whereas the two challenged PINs were for $3000 each.

4. Mr Carroll sought annulment of the February 2017 fines and orders, but, rightly or wrongly, he failed to appear when that application was listed on 16 March 2017.

5. His application was dismissed, again in his absence, and the State authorities have, since early 2018, been seeking to enforce the Byron Local Court’s fines.

6. His efforts to obtain a grant of legal aid to deal with the resulting situation have been unsuccessful, and the Court’s duty lawyer scheme stopped assisting him in August 2018.

7. He also considers that he received, over time, conflicting information and advice regarding his situation.

8. He accepts (summons par 5) that his “petition for leave to appeal out of time is being made nearly two years after the default judgment on 16 March 2017”, but he submits that it is in the “interests of justice that [his] appeal be granted”.

9. On 5 April 2019, he filed a document entitled “Additional Material”, which is in the nature of submissions.

10. He submits that his appeal is made under s 32 of the NSW Crimes (Appeal and Review) Act 2001, and that “a late application to appeal a default judgment in any local court is not statute barred by operation of s 33, ... and may be granted” by this Court.

11. In fact it is s 31 and not s 32 which governs his appeal, but it is, indeed, s 33 which governs his leave application.

12. In oral submissions this morning he relied on Pepper J’s decision in Fletcher v Byron Shire Council (No 2) (“Fletcher No 2”) [2010] NSWLEC 226.

13. He also sought leave to provide, at the appeal hearing, additional evidence of his dealings with the Council over the relevant signage and its removal.

14. He claims, in his written submissions, that he did not know about the hearing on 10 February 2017, and that the Local Court knew that he was homeless at the time.

15. Those submissions go on to make arguments about the substantive issues the Court would consider if (or when) his appeal is heard.

16. Orally, he argues, as well, that the Council’s enforcement officer made errors of law in taking action against him, and that Council unreasonably refused to withdraw the PINs when he removed the signage.

17. A two paragraph footnote to that document disputes the completeness, if not the accuracy, of the transcript with which he and this Court have been provided, for the proceedings at Byron Local Court on 8 December 2016 and 10 February 2017.

18. In response to Mr Carroll’s written and oral submissions, Mr Baird relied on three decisions of this Court, the original Biscoe J decision in Fletcher v Byron Shire Council (“Fletcher”) [2010] NSWLEC 185, and two decisions of Craig J, namely Hussain v Liverpool City Council (“Hussain”) [2014] NSWLEC 45, and Thaler v Cooma Monaro Shire Council (“Thaler”) [2015] NSWLEC 119, both of which postdate Fletcher No 2, and refer to neither Fletcher judgment.

19. Even if I thought Fletcher No 2 stands for what Mr Carroll says it does – and I accept the Council’s contrary arguments in that respect – Hussain and Thaler are clearly against him.

20. He relied on par [51] of Fletcher No 2, and overlooked, for example, pars [1]-[6], which accurately set out what Pepper J was dealing with, namely an attempt to restrict fresh evidence.

21. The later decisions in Hussain and Thaler are not “clearly wrong”, so judicial comity dictates that I should follow them, and I am comfortable doing so.

22. I reject Mr Carroll’s rather quaint submission that I should grant his application, and await a Council appeal to a higher court to settle the relevant law.

23. Both the 28 day period in s 31(2) and the three month period in s 33 (2) have long since lapsed.

24. As Biscoe J said (in Fletcher at [11]), the Court is “powerless” to entertain Mr Carroll’s application, and, as Craig J said (in Hussain at [22]-[25]), the time limit in s 33(2) is designed to “bring finality” to proceedings, and the Court’s powers to intervene are exhausted even when the Court has genuine sympathy, as I do here, for an Appellant’s position.

25. As His Honour said (in Hussain at [25]) the Court cannot “exercise a jurisdiction that it does not have”. See also Thaler at [11]-[15], where Craig J, after explaining the statutory scheme, emphasised (at [15]) that “s 33(2) is clearly expressed to operate by imposing an absolute limit of three months within which leave to appeal can be sought”, and no other statutory provision permits any discretion to be exercised to exempt Mr Carroll from the restriction.

26. The application for leave to appeal out of time must and will be dismissed.

27. Council asks for an order that Mr Carroll pay its costs in the sum of $1900, and Mr Baird tendered a copy of his letter to him dated 21 March 2019.

28. Council’s arguments, which I have now accepted, were clearly set out in that letter, and, as Mr Carroll did not choose to withdraw his application, as he was invited to do, with no costs penalty, the Court should make the costs order now sought.

29. The orders of the Court are:

1. The summons seeking leave to appeal is dismissed; and

2. The Appellant is ordered pay the Council’s costs in the sum of $1900, subject to the Appellant having liberty to seek within 14 days to have those costs assessed according to law.

1. I will shortly publish these reasons as judgment [2019] NSWLEC 52.

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Decision last updated: 12 April 2019