Eurobodalla Shire Council v Gerondal (No 2)

[2012] NSWLEC 37

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eurobodalla Shire Council v Gerondal (No 2) [2012] NSWLEC 37

Hearing dates:

9 March 2012

Decision date:

09 March 2012

Jurisdiction:

Class 4

Before:

Pain J

Decision:

1. The Respondent's application for vacation of hearing dates of 15 and 16 March 2012 is dismissed.

2. Costs to be costs in the cause.

Catchwords:

PROCEDURE - exercise of discretion - whether to vacate hearing dates in light of medical evidence

Legislation Cited:

Civil Procedure Act 2005 s 56, s 57, s 58, s 61, s 66
Land and Environment Court Act 1979 s 56A
Protection of the Environment Operations Act 1997

Cases Cited:

Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222

Category:

Interlocutory applications

Parties:

Eurobodalla Shire Council (Applicant)
Monica Gerondal (Respondent)

Representation:

Mr P Larkin SC (Applicant)
Mrs M Gerondal (Respondent - in person)
Sparke Helmore Lawyers (Applicant)

File Number(s):

40661 of 2011

EX TEMPORE Judgment

1. I have before me today as duty judge a Notice of Motion filed on 5 March 2012 by Mrs Gerondal, the Respondent, seeking various orders. Prayers 4, 6 and 7 cannot be considered as the Court lacks jurisdiction or there is no utility in making them (especially prayer 7).

1. The main issue requiring urgent resolution is the application for vacation of hearing dates on 15 and 16 March 2012 (prayer 5).

Respondent's evidence

1. Mrs Gerondal has affirmed an affidavit dated 3 March 2012 in which she identifies some of the relevant history of the matter including a directions hearing before Craig J on 3 February 2012 at which she was required to have six questions answered by her medical practitioner if she wished to rely on her medical condition to vacate the hearing dates. She attaches a letter from her treating ophthalmologist Dr Tridgell dated 15 December 2011 which addresses these questions. He identifies her medical condition and also that the usual assistance for people with the medical conditions of Mrs Gerondal is to use degrees of magnification and such aids can be obtained from Vision Australia. He suggests making an appointment for an assessment and advice on magnification aids. A further matter raised in the affidavit concerns four subpoenas issued by Eurobodalla Shire Council (the Council) to various medical practitioners and Vision Australia concerning irregularities on the face of the documents (the Applicant is incorrectly described as Mrs Gerondal) which are said to render these false. Breach of human rights is alleged and loss of privacy as no prior permission was sought from Mrs Gerondal before this private information was sought. She has an appointment with Dr Tridgell on 28 March 2012 and wishes the matter stood over for at least six months to enable an improvement in her condition.

1. Short oral evidence and submissions were given by Mrs Gerondal that she had tried to get an appointment with Vision Australia in January but this coincided with another doctor's appointment, Dr Feltham. She further submitted that it was not possible to go to Vision Australia if no prescription had been issued for the last two years and because of her condition she cannot get a prescription issued. (Mr Jayne's evidence relied on by the Council is that the assessment with Vision Australia just takes longer if there is no recent prescription. See par 7 below). When asked by me whether she go to Vision Australia if there was an adjournment of the hearing, Mrs Gerondal said she did not know, she would wait and see what Dr Tridgell said on 28 March 2012 about a cure. She disputed the professional qualifications of Mr Tilia (see below) compared to those of Dr Tridgell and Dr Feltham.

1. Dr Chong Beng Ooi her treating doctor has also affirmed an affidavit dated 3 March 2012 which was filed in Court, attaching various medical certificates and identifying the nature of the condition resulting in vision impairment. One dated 10 January 2012 states that Mrs Gerondal is unable to prepare documentation in relation to the Court proceedings.

Council's affidavits

1. An affidavit of Ms Simmons, solicitor, dated 8 March 2012 and filed in Court outlines the history of matter and annexes transcripts of hearings before the Court.

1. An affidavit of Mr Tilia, research optometrist, dated 8 March 2012 which was filed in Court, provided a second opinion of an optometrist based on consideration of Mrs Gerondal's medical records. He basically agreed with the opinions on the medical records of Dr Feltham and Dr Tridgell. In relation to Vision Australia Mr Tilia stated at par 10:

I am familiar with the operations of Vision Australia. I have frequently referred patients to them and I have frequently obtained reports from them. Vision Australia routinely conducts tests which, provided the patient is cooperative, can determine whether or not the patient can be provided with magnification or visual aids so as to permit or improve the ability of the patient to read. The assessment provided by Vision Australia is free of charge. The magnification or visual aids they provide for reading are, usually, reasonably priced.

1. Mr Jayne, solicitor, affirmed an affidavit dated 2 February 2012 which was filed in Court, advising of inquiries made of Vision Australia of the availability of services and vision aids, confirming that appointments in Canberra were readily available in January and February 2012. Mr Jayne was told that as there was no recent prescription the process would take longer than usual, five to six weeks. He attached printed copies of the Vision Australia website showing that there are several locations available in NSW.

Respondent's submissions

1. Mrs Gerondal relies on the affidavit of Dr Ooi as providing evidence of her significant medical conditions and resulting visual impairment and the statement that she cannot prepare documents, to submit that she is so incapacitated that the hearing should be vacated for a period of some months. She has provided the letter from Dr Tridgell addressing the six questions required by Craig J and that also supports her application on medical grounds. She wants the matter stood over for six months to await the outcome of treatment. She disputes the professional opinion given by Mr Tilia because he is less qualified than her treating doctors.

Council's submissions

1. The Council relies on the lengthy history detailed in the affidavit of Ms Simmons from the issuing of an order by the Council for removal of waste under the Protection of the Environment Operations Act 1997 and its confirmation by a commissioner of the Court on 31 August 2010 maintained when an appeal under s 56A of the Land and Environment Court Act 1979 to a judge of this Court was dismissed on 2 May 2011. A summons seeking a declaration of non-compliance and consequential orders was filed on 1 August 2011. Numerous interlocutory orders have been made in relation to the timetable, including an application for the postponement of the proceedings before me on 11 October 2011 based on medical grounds. Orders modifying the timetable were made by me requiring a defence to be filed last year. Since then the matter has been before Craig J, n 9 December 2011. On 9 December 2011 orders were made for a further timetable and the matter set down for hearing on 15 and 16 March 2012, and confirmed on 3 February 2012. No defence has been filed.

1. Craig J stated on 3 February 2012 that if an application is to be made for vacation of the dates this was to be filed by 21 February 2012, returnable on 27 February 2012. This motion is therefore late having been filed on 5 March and heard today. Craig J made orders that certain questions be answered if there is to be further reliance on medical grounds.

1. The Council submits there is a history of non-compliance and defiance of the Council's, and now the Court's, orders and no defence has ever been provided or the grounds for this advised in any way, and the motion for vacation was filed out of time. Mrs Gerondal's condition does not prevent her being in Court as she is here today, as identified by Craig J on 3 February 2012 and by me in October 2011 when I noted that she was able to read with the assistance of a magnifying glass. There is no clear prognosis that her condition will improve if the matter is stood over for six months. Further she has not taken any steps readily available to her for assessment by Vision Australia so that with her co-operation visual aids would be available to assist her in reading.

1. The Court proceedings can be conducted in a way such as the reading aloud of all documents and the giving of oral evidence by Mrs Gerondal to ensure a fair hearing (ultimately a matter for the trial judge).

1. No utility is served by the postponement of the hearing for several months in these circumstances. Granting the adjournment is an indulgence and not justified in the circumstances.

Consideration

Vacation of hearing dates

1. Under the Civil Procedure Act 2005 (the CP Act) the Court has wide powers to make necessary orders in the conduct of proceedings: s 61. Section 58 identifies the relevant principles the Court must consider in making any orders including those matters referred to in s 56 and in s 57 which refer to the objects of case management. Section 58(2) identifies matters such as the dictates of justice. Under s 66 of the CP Act a court can adjourn any matter before it at any time.

1. As submitted by the Council this matter has a long history commencing with the issuing of the order to remove waste from Mrs Gerondal's premises by the Council on 13 July 2009. Since the commencement of these proceedings, there has been a consistent failure to comply with Court orders. Ultimately the Court must consider if there is any utility in postponing the hearing in light of any perceived injustice to Mrs Gerondal given her medical condition. Mrs Gerondal does have vision impairment as a result of her various medical conditions and Dr Ooi considers she cannot prepare documents for the Court case. Dr Tridgell in his letter dated 15 December 2011 identifies the nature of the conditions and that Vision Australia is the organisation to provide assistance. I am not convinced that Mrs Gerondal has made adequate attempts to explore the option of attending Vision Australia which her specialist recommended. I am not assisted by further unsubstantiated oral evidence from Mrs Gerondal of medical advice purported to be given to her in January this year by Dr Feltham and Dr Tridgell that she could not get a prescription. There is no written evidence before me about that matter. If adjourned there is no clear end point at which Mrs Gerondal appears to consider she will be well enough to participate in a hearing. The thrust of her evidence is that she will need to be cured before a hearing can take place. One option clearly available on the evidence is for Mrs Gerondal to seek assistance from Vision Australia which is readily available to her so that she can manage her visual impairment with appropriate aids. An option for the Court would be to adjourn the matter to allow Mrs Gerondal time to visit Vision Australia. When asked whether she would attend Vision Australia if an adjournment were granted she was equivocal, so that it was unclear that course would be taken as she wished to wait for another opinion from Dr Tridgell. In light of this state of affairs I agree with the Council's submissions that it is entirely unclear that were the matter to be adjourned there would be a point in the foreseeable future where certainty about her medical condition is achieved and the matter could proceed with Mrs Gerondal having sought the assistance available to her.

1. If I weigh up what I observed of Mrs Gerondal today in Court I consider she was well able to present her case with the assistance of her husband. She has not attended today with a magnifying glass as she did before me last year. While the hearing procedures may need to be modified to accommodate the need to have material read out to her and it is likely she will have to give oral evidence, I do not perceive that she is so incapacitated that she cannot attend and participate adequately in the hearing with the assistance of her husband in reading the material. She was clearly able to listen to and understand all matters raised today and on the previous occasions before me. She has had the Council's evidence on which it relies since August and October 2011.

1. These are difficult circumstances to weigh up. On balance I consider I should not grant the adjournment of the hearing, and the parties will all have to use their best endeavours to achieve a fair hearing, possibly with the reading aloud of written evidence and the giving of oral evidence if necessary. How that is best achieved will ultimately be a matter for the trial judge.

Subpoena (prayers 1, 2 and 3)

1. Mrs Gerondal also challenged subpoenas issued to medical practitioners treating her and to Vision Australia. These have been answered and access to documents already granted to the Council. The incorrect identification of Mrs Gerondal as the Applicant not the Respondent on the subpoenas is no basis for their being declared invalid as the documents otherwise make clear the Council is the party issuing the subpoenas. In terms of whether there has been a breach of privacy, as held in Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222, where a party places in issue his or her health, that is a matter which can give rise to the issuing of subpoenas in relation to medical records. That has occurred here as a result of Mrs Gerondal's application.

1. Mrs Gerondal also referred to breaches of ACT and NSW privacy laws and Commonwealth privacy principles without elaboration. It is unnecessary that I explore the application of these Acts. I decline to make the orders sought in relation to the four subpoenas. The subpoenas were validly issued.

Orders

1. The Court makes the following orders:

1.   The Respondent's application for vacation of hearing dates of 15 and 16 March 2012 is dismissed.

2.   Costs to be costs in the cause.

Decision last updated: 14 March 2012