Chambers v Maclean Shire Council

[2002] NSWCA 364

CITATION:	CHAMBERS v MACLEAN SHIRE COUNCIL & ORS [2002] NSWCA 364
FILE NUMBER(S):	CA 40392/02
HEARING DATE(S):	4 November 2002
JUDGMENT DATE:	4 November 2002
PARTIES :	Anita Chambers - Claimant Maclean Shire Council - First Opponent Paul Smith - Second Opponent Yumi Smith - Third Opponent
JUDGMENT OF:	Sheller JA; Heydon JA; Campbell AJA

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	40140/01
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	T F Robertson SC - Claimant J B Maston - First Opponent Paul Smith (In person)
SOLICITORS:	Sylvia Winters - Claimant Pickering Priestley - First Opponent In person
CASES CITED:	N/A
DECISION:	1 That this application for leave to appeal is stood over to the Registrar's call over list for the purpose of fixing a date for hearing; 2 That the application be stood over for mention before me at 9.30 am on 2 December 2002; 3 That the first opponent, Maclean Shire Council, serve those vols 1 and 2 of its additional documents and its written submissions on the second and third opponents within seven days of today; 4 That the claimant, Anita Chambers, serve the white book and her written submissions on the second and third opponents within seven days of today; 5 That the second and third opponents file and serve on the claimant and the first opponent written submissions on the motion and on the appeal within 28 days of today, unless a decision is made within that time of which notice should be given to the other parties that the second and third opponents do not propose to proceed further with their application; 6 That service upon the third opponent be satisfied by service of documents on the second opponent.

CA 40392/02

SHELLER JA
HEYDON JA
CAMPBELL AJA

Monday, 4 November 2002

CHAMBERS v MACLEAN SHIRE COUNCIL AND ORS

JUDGMENT

(Application

1 SHELLER JA: This application for leave to appeal was listed for hearing this morning. When the matter was called on for hearing we were invited on behalf of the claimant and the first opponent, the Maclean Shire Council, to make consent orders in a form dated 31 October 2002.

2 Present in Court was Mr Paul Smith, the second opponent. Mr Smith informed the Court that he only learnt of these proposed consent orders late last week. He also told the Court that on behalf of himself and the third opponent, his wife, he opposed the making of the orders. It was pointed out to us by Mr Robertson of senior counsel, who appears for the claimant, that at some stage Mr Smith and his wife signed a form of submitting appearance which was served in some fashion upon the claimant and upon the first opponent. It appears, however, that this submitting appearance was not filed in Court. There was a good deal of discussion about how this occurred.

3 Mr Robertson made a formal application to the Court pursuant to s81 of the Supreme Court Act 1970 to have effectively the second and third opponents bound by their submitting appearance and on that basis leave them in a position where they could not resist the making of the orders that the other two parties proposed.

4 In the view of the Court, bearing in mind the short time available to Mr Smith to deal with that application and to deal with the application that the consent orders should be made, it seems that the appropriate way to deal with the application for leave to appeal this morning is to adjourn it to enable Mr Smith to have a proper opportunity to consider what has happened and to obtain legal advice. In saying this, the Court is conscious of the cost consequences that may occur if, for example, Mr Smith decides that he wishes to persist with an opposition to the proposed orders.

5 It is not, we think, appropriate to say anything about the merits of Mr Robertson’s application and, of course, we say nothing about the merits of the application for leave to appeal. These matters remain entirely in large. The reason for this adjournment is quite simply to enable Mr and Mrs Smith to have a proper opportunity to consider what has happened and then to make whatever application they wish to the Court in due course to deal with it.

6 As I have said, the proposal is that the application for leave to appeal be adjourned for mention before the Registrar for the fixing of another date for hearing. However, in order that the Court can keep control of events the application will be fixed before me for mention at 9.30 on a morning suitable to the parties. An appropriate time hence for that mention would seem to be about three weeks. The date that I would propose would be 9.30 am on 25 November.

DISCUSSION RE SUITABLE DATE FOR MENTION

ROBERTSON: Your Honour, before making final orders, can I suggest some procedural orders that might make the mention before you worthwhile. I seek the following orders;

1) Order that the first opponent serve vols 1 and 2 of its documents and submissions on the second and third opponents within seven days;
2) Order that the applicant serve the white book and her submissions on the second and third opponents within seven days;
3) Order that the second and third opponents, if they are so advised, file and serve any submissions on the motion summons and proposed appeal within 28 days;
4) Order that the service required by these orders on the third opponent be discharged by service on the second opponent.

SHELLER JA : Mr Maston, do you have any objection to any of that?

MASTON : No, your Honour.

SHELLER JA: Mr Smith, those proposed orders, the first two are to ensure that you have served upon you what might be called the material in the appeal and that seems appropriate. The third is to give you effectively 28 days within which to serve on the other two parties any submissions on either the motion before me or on the appeal that you may wish to make. Now that is in fairness to them so that they will know in advance what you propose to say, so that if you decide, or if you seek advice and on the basis of that advice you decide that you are going to take further steps in these proceedings, either on the motion or on the appeal, you let the other parties know well in advance what it is and why you want to do it, do you follow that?

SMITH : Yes.

SHELLER JA: And the other matter is simply that material that is served upon you is taken as being served on your wife as well so that one is not duplicating that, do you follow that?

SMITH: Yes.

SHELLER JA: The orders I will make are as follows:


1. That this application for leave to appeal is stood over to the Registrar’s call over list for the purpose of fixing a date for hearing;

2. That the application be stood over for mention before me at 9.30 am on 2 December 2002;

3. That the first opponent, Maclean Shire Council, serve those vols 1 and 2 of its additional documents and its written submissions on the second and third opponents within seven days of today;

4. That the claimant, Anita Chambers, serve the white book and her written submissions on the second and third opponents within seven days of today;

5. That the second and third opponents file and serve on the claimant and the first opponent written submissions on the motion and on the appeal within 28 days of today, unless a decision is made within that time of which notice should be given to the other parties that the second and third opponents do not propose to proceed further with their application;

6. That service upon the third opponent be satisfied by service of documents on the second opponent.

Those are the orders of the Court.

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