Fleet v Blacktown City Council

[2010] NSWLEC 46

Land and Environment Court

of New South Wales

CITATION:	Fleet v Blacktown City Council [2010] NSWLEC 46
PARTIES:	APPLICANT Dr Robert Fleet RESPONDENT Blacktown City Council
FILE NUMBER(S):	41000 of 2009
CORAM:	Craig J
KEY ISSUES:	PRACTICE AND PROCEDURE :- vexatious litigant - whether a vexatious proceedings order should be set aside pursuant to s 9 of the Vexatious Proceedings Act 2008 - applicant left the hearing before presentation of the case was completed - notice of motion dismissed.
LEGISLATION CITED:	Vexatious Proceedings Act 2008
DATES OF HEARING:	22 March 2010
EX TEMPORE JUDGMENT DATE:	22 March 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr D Loether (solicitor) SOLICITORS Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Craig J

22 March 2010

09/41000 Dr Robert Fleet v Blacktown City Council

EX TEMPORE JUDGMENT

1 HIS HONOUR: By a summons filed in this Court on 18 December 2009, Dr Robert Fleet sought relief against Blacktown City Council (the Council) in the form of a number of orders pertaining to premises at 6 Sixth Avenue, Seven Hills, in the Sydney metropolitan area. The Council had granted development consent for the demolition of the dwelling erected on that land, that development consent having been granted on or about 2 October 2009. The applicant for that consent was Mr Vinodh Kumar Natarajn. It seems that the subject premises comprised a dwelling that had been owned by Dr Fleet’s late mother. Upon the grant of probate of the will of Dr Fleet’s late mother to the Public Trustee the premises were sold by the Trustee to Mr Natarajn and Ms Srinivasan.

2 The proceedings came before the Court on 26 February 2010 for determination of two notices of motion that were listed for hearing on that day before Justice Pain who was then sitting as the duty judge. The first was a Notice of Motion filed by Dr Fleet by which, in effect, he sought to have determined the substance of the proceedings which he had commenced in December last. The second Notice of Motion was filed by the Council and in which it sought two orders. The first order was one seeking dismissal of the proceedings on the basis either that there was no cause of action disclosed or that they were otherwise futile.

3 The basis upon which that order was sought related, amongst other things, to the fact that no evidence had been filed which demonstrated any legal basis for challenge to the validity of the Council’s decision. More importantly, the evidence filed for the Council was that the dwelling which Dr Fleet’s proceeding sought to preserve had already been demolished. That was the evidence of a Council officer who had inspected the premises on 7 January 2010.

4 As I have earlier indicated, the orders that were sought by Dr Fleet challenged the decision of the Council to consent to demolition and, importantly, sought relief by way of an injunction to restrain the Council or anybody else from acting upon the consent which would result in demolition of the dwelling.

5 The second order sought by the Council in its Notice of Motion was an order that Dr Fleet be declared a vexatious litigant in accordance with the provisions of the Vexatious Proceedings Act 2008 (the Act). The order was sought pursuant to s 8 of that Act.

6 In a judgment delivered by Justice Pain on 26 February, her Honour recorded that upon the two Notices of Motion being called for hearing before her that day, Dr Fleet, who appeared in person, sought to make submissions in support of the orders that he then sought. However, having addressed the Court “at the outset”, her Honour records that in the course of seeking an adjournment for the hearing of both motions, Dr Fleet left the precincts of the Court. Her Honour also records that she then briefly adjourned to enable her associate to speak to Dr Fleet and I infer, invite him to return in order to take part in the balance of the proceedings listed that day. He declined so to do. In consequence, her Honour proceeded to determine the Council’s Notice of Motion and made each of the orders that the Council sought. In particular, an order was made by her Honour that Dr Fleet “be prohibited from instituting any proceedings in this Court against Blacktown City Council without the prior leave of a Judge of this Court pursuant to s 8(8)(c) of the Act”.

7 By Notice of Motion dated 12 March 2010 and filed on 15 March 2010, Dr Fleet sought a number of orders, including an order under s 9 of the Act “for leave of this Court” to set aside the vexatious proceedings order made by Justice Pain on 26 February last. It was that Notice of Motion that came on for hearing before me today.

8 The hearing of the proceedings commenced at 10.00am and for a little over an hour Dr Fleet addressed the Court, tendered two medical certificates pertaining to his state of health, both on 24 and again on 26 February last, and, without having yet read, he referred to parts of his affidavit sworn on 15 March in support of his Notice of Motion. The medical certificates which were tendered by Dr Fleet were certificates dated 24 February and 18 March respectively and were couched in cryptic terms by Dr Van Zanden.

9 After proceeding for a little over an hour in what appeared to be an orderly way, Dr Fleet made observations as to the manner of his treatment before the Court on 26 February last. He sought to explain, I apprehend at least in part by reference to the medical certificates that had been tendered, the anxious state of mind which the course of the proceedings on 26 February created for him. He did so in the context of referring me to s 8(3) of the Act which in terms, proscribes the making of an order under that Act, “without hearing the person or giving the person an opportunity of being heard.”

10 At that point I indicated that I would give Dr Fleet the opportunity to read the judgment which had been delivered by Justice Pain on 26 February in which she had detailed his initial attendance at Court and then his subsequent departure. I indicated that he would need to address me and if necessary provide evidence as to the circumstances in which these events had occurred on 26 February in order to make good a submission that he had not been given an opportunity to be heard at that time. Dr Fleet then appeared to become very anxious, gathered his papers and indicated that he intended to leave because he was being denied a fair hearing. As he left the Court, although I invited Dr Fleet to remain and assured him that I was content to take as much time as it reasonably required in order to hear his argument, he said that he needed to attend immediately for medical examination and treatment. He then left the precincts of the Court.

11 In those circumstances, I have no option but to dismiss his Notice of Motion. It is to be regretted that Dr Fleet was unable to remain to finish or complete the presentation of evidence and such arguments as he wished to mount in support of his application, confined as it was to an application under s 9(2) of the Act. That having been said, and whilst I express regret that Dr Fleet chose to take the course that he did, clearly I am in no position to control the way in which he seeks to conduct his proceedings.

12 The orders of the Court therefore are:

1. The Notice of Motion filed on 15 March 2010 on behalf of the applicant is dismissed.

2. Exhibits may be returned.
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