Charlton v Moore ( No 3)

[2009] NSWLEC 48

Land and Environment Court

of New South Wales

CITATION:

Charlton v Moore ( No 3) [2009] NSWLEC 48

PARTIES:

APPLICANT:
Belinda Lee Charlton

FIRST RESPONDENT:
Susan Rosalie Moore

SECOND RESPONDENT:
Alison Gay Howlett:

THIRD RESPONDENT:
Singleton Council

FOURTH RESPONDENT:
Gary Woodman

FILE NUMBER(S):

40130 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- whether hearing dates should be vacated.

CASES CITED:

Charlton v Moore (No 2) [2009] NSWLEC 46

DATES OF HEARING:

18 March 2009

EX TEMPORE JUDGMENT DATE:

18 March 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Larkin
SOLICITORS
Thompson Norrie

1ST-FOURTH RESPONDENTS:
Ms C Adamson SC
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

18 March 2009

40130 of 2009

BELINDA LEE CHARLTON v SUSAN ROSALIE MOORE & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a motion by the respondents to vacate the hearing dates which have been fixed for two days next week, 24 and 25 March. The applicant consents.

2 In my view, the hearing dates should be vacated for the reasons put forward by the respondents, as follows.

3 First, the fourth respondent was not joined to these proceedings until 16 March 2009 on which day the solicitor for the first, second and third respondents received instructions to act for the fourth respondent. The respondents’ solicitor would have insufficient time to take instructions and prepare the necessary evidence in the proceedings so far as they relate to the fourth respondent. This is highlighted by a current direction which require the respondents to file and serve evidence by 17 March 2009.

4 The second reason for vacating the hearing dates is that the applicant in her affidavit of 27 February 2009 refers to a discussion that she had with officers of McArthur Management Services who are currently engaged by the council, the third respondent, for the purpose of selecting suitable candidates for interview for the position of general manager. It is considered to be inappropriate for the solicitors for the respondents to contact those officers at this time because to do so would bring to their attention these proceedings and may affect the independence of the process. It is not expected that they will identify the candidates who will be interviewed by the full council until later this week. The solicitor for the respondents will have insufficient time available to consult with those potential witnesses and comply with the Court’s directions. The applicant has indicated that she is particularly sympathetic to this ground for vacation of the hearing dates.

5 The third reason for vacating that as a result of a recent amendment of the summons by the applicant, the solicitor for the respondents does not think it is likely that the proceedings will finish in the two days allocated. This has the potential to leave the matter part heard, which would seem to be highly undesirable in the perception of the solicitor for the respondents, from the point of view of each of the respondents because of the ongoing general manager selection process.

6 The fourth reason for vacating the hearing dates is that the first respondent is presently unwell and, consequently, it is difficult to obtain her instructions. Provided the interviews to be conducted by councillors for the General Manager’s position are deferred until after the outcome of this litigation, the first respondent is prepared to extend the undertaking given to the court on 27 February 2009 until the hearing of these proceedings.

7 The fifth reason for vacating the hearing dates is that the parties have agreed that there should be a mediation of this dispute and have agreed upon the identity of their mediator of choice. Subject to his availability, they have agreed that the mediation should occur on the dates allocated for the hearing which are sought to be vacated.

8 Finally, although this is put forward as of lesser significance, there is a new allegation of bias against the council itself as distinct from the existing pleaded allegation of bias against the first and second respondents. Amended points of claim containing that allegation were served in accordance with the Court’s directions yesterday, although the council is still considering its position in relation to that document.

9 I am satisfied that in these circumstances it is appropriate to order vacation of the hearing dates on condition that the parties proceed to mediation, if possible, on the dates to be vacated or as soon as possible thereafter. The parties have indicated that they are agreeable to that condition.

10 By consent I make the orders in paras 1 to 8 of the short minutes of order dated 18 March 2009, initialled by me and placed with the papers and I note the first respondent’s undertaking to the court therein.

11 I also make the following orders to reflect my reasons for judgment delivered yesterday in Charlton v Moore (No 2) [2009] NSWLEC 46:

(1) Order that, by 1 April 2009, the third respondent, by a proper officer of the third respondent, make all proper enquiries and then make a statement, to the best of the knowledge, information and belief of the officer, of the reasons for the third respondent's resolution made on 2 March 2009, being a statement that includes:


(i) the third respondent's findings on any material questions of fact,

(ii) the evidence on which any such findings were based,

(iii) the third respondent's understanding of the applicable law, and

(iv) the reasoning process that led to the decision.

(2) Order that the Third Respondent is to specify, by 12.00 noon on 20 March 2009, the identity of all persons who gave the instructions relating to the preparation of the report referred to in the minutes of the meeting of 2 March 2009 as having been “prepared for consideration of in the Committee of the Whole under Section 10(2)(e) and (g) ...”.