Fleet v Blacktown City Council

[2010] NSWLEC 39

Land and Environment Court

of New South Wales

CITATION:	Fleet v Blacktown City Council [2010] NSWLEC 39
PARTIES:	APPLICANT Dr Robert Fleet RESPONDENT Blacktown City Council
FILE NUMBER(S):	4100 of 2009
CORAM:	Pain J
KEY ISSUES:	PRACTICE AND PROCEDURE :- whether summons should be dismissed because no cause of action disclosed - whether vexatious proceedings order should be made
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 r 13.4 Vexatious Proceedings Act 2008 s 8
CASES CITED:	Dr Robert Fleet v Public Trustee & Ors (No 2), NSWSC, Palmer J, 18 December 2008 (unpublished)
DATES OF HEARING:	26 February 2010
EX TEMPORE JUDGMENT DATE:	26 February 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr P Kelso (solicitor) SOLICITORS Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

26 February 2010

4100 of 2009 Fleet v Blacktown City Council

EX TEMPORE JUDGMENT

1 Her Honour: Two Notices of Motion are listed before me today as duty judge. The first motion was filed by the Applicant on 19 February 2010 and seeks various orders which largely mirror the orders for relief that he seeks in his summons filed on 18 December 2009. The Applicant represented himself. The Respondent Blacktown City Council (the Council) was represented by its solicitor, Mr Kelso.

2 Also before me is a Notice of Motion filed by the Council’s solicitor, Mr Kelso, which seeks an order (prayer 1) that the summons be dismissed as no reasonable cause of action is disclosed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (the UCPR) and also in prayer 3 that the Applicant be prohibited from instituting any proceedings in this Court against the Council without the prior leave of a judge of this Court as provided by s 8(c) of the Vexatious Proceedings Act 2008.

Ex parte hearing

3 I note for the record that the Applicant addressed the Court at the outset. In the course of seeking an adjournment for the hearing of the motions he decided that he would leave the precinct of the Court. I adjourned the matter briefly so that my associate had the opportunity to go and ask him if he wished to return. He did not to return. Following that development, Mr Kelso, appearing for the Council today, made an application that the Council’s motion be heard on an ex parte basis.

4 My understanding is that the Applicant was served with the Council’s motion that is before me today in accordance with the usual rules of service. That is evidenced by the affidavit of Mr Kelso dated 22 February 2010 which makes clear that a sealed copy of the Notice of Motion and the supporting affidavits of Mr Apps sworn 22 January 2010 and of Mr Kelso sworn on 4 February 2010 were served on the Applicant at the postal address that he provided to the Court when he filed his summons.

5 On 24 February 2010 the two motions were set down for hearing by the registrar. The Applicant was present in the Court when the motions were set down for hearing this afternoon. He clearly did have Notice of the Motion and the supporting material in relation to it.

6 I consider in all the circumstances it is appropriate that the matter proceed on an ex parte basis.

Council’s Notice of Motion

7 Turning then to whether I should make the two orders sought in the Council’s motion, as already noted there are two affidavits in support. The affidavit of Mr Apps sets out a number of the matters relevant to property at Seven Hills which I understand was the property of the Applicant’s mother, now deceased. As events have transpired since her death, that property has been vested in the public trustee and then sold to Mr Natarajan and Ms Srinivasan. Mr Natarajan made an application to the Council for development consent for the demolition of the house on that property. Mr Apps’ affidavit sets out that process and identifies the Council’s notice of determination to grant the application for demolition on 2 October 2009.

8 I also note in that affidavit that at par 7, at an inspection on 7 January 2010, Mr Apps found the dwelling house previously erected on it had been demolished. His affidavit refers to an affidavit filed by the Applicant sworn 18 December 2009. He responds to par 17 of that affidavit where the Applicant says that he applied to the Council for an extension of time to lodge an objection to the development application then before the Council for demolition of the house. In par 6(a) of his affidavit, Mr Apps says that he searched the relevant Council files and made inquiries of relevant officers of the Council. He can find no record of any request by the Applicant on or about 30 September 2009 in which he sought an extension of time to present evidence in support of his objection to the development application.

9 Mr Apps also responds to par 20 of the Applicant’s affidavit of 18 December 2009 concerning the payment of rates in relation to the house that was then on the property at Seven Hills, to the effect that the Council no longer accepted payment of rates from the Applicant from July 2009. That was the date when the Council was notified there had been a transfer of the property to the present owners who made the development application.

10 In another affidavit dated 4 February 2010, Mr Kelso attests to the fact that he has undertaken numerous searches which show that the Applicant is an undischarged bankrupt.

11 Mr Kelso has also referred me to a list of vexatious proceedings orders made in respect of various people in the Supreme Court of New South Wales, including an order made on 18 December 2008 in relation to Robert Fleet, the Applicant in these proceedings, by Palmer J (Dr Robert Fleet v Public Trustee & Ors (No 2), NSWSC, Palmer J, 18 December 2008 (unpublished)).

12 I have the benefit of reading the judgment handed down by Palmer J on 18 December 2008 when he made that order. It is a useful judgment to read in that it makes some reference to the extensive history of litigation before the Supreme Court involving the Applicant. It notes that he appears to be under some stress and perhaps psychological disability, which is certainly what I observed in relation to his behaviour in Court today. It refers to the fact that he is bankrupt and also refers to the history of the proceedings before Windeyer J which concluded in a judgment on 20 October 2008. Taking all these matters into account, Palmer J made a vexatious proceedings order in relation to the Applicant which states that the registry of the Supreme Court is not to accept any documents initiating proceedings in that Court filed on behalf of the Applicant without the prior leave of a judge of that Court.

13 In relation to the affidavit evidence and additional material relied on, Mr Kelso submitted that, as provided under UCPR r 13.4, there is essentially no reasonable cause of action disclosed under r 13.4(2). Under r 13.4(2) the Court may receive evidence on the hearing of an application for an order under r 13.4(1) as I have done.

14 It is clear from the evidence before me in the affidavits that the demolition of the house the subject of the Applicant’s summons has taken place pursuant to the development consent granted by the Council. Consequently the numerous orders sought in the summons filed by the Applicant in relation to prevention of the demolition of the house are futile given that the house has now been demolished.

15 I agree with Mr Kelso’s submissions that the summons contains a large number of other orders sought by the Applicant which are outside the jurisdiction of the Court. I agree with him that the only orders sought that are potentially within jurisdiction are orders 3, 5F, G and also 8, but in relation to those the issue of futility arises given that the house has been demolished.

16 It is therefore appropriate that I make an order under r 13.4(1)(b), that there is no reasonable cause of action disclosed in the Applicant’s summons. That is prayer 1 in the Council’s Notice of Motion.

17 The further order sought in prayer 3 is a vexatious proceedings order. In order to make a vexatious proceedings order I need to be mindful of the requirements under the Vexatious Proceedings Act. I note first of all that under s 8 of that Act, vexatious proceedings are defined and, in particular, the relevant provision that I need to be mindful of is that the proceedings have been instituted or pursued without reasonable ground. There is a similarity between that provision and the finding I have already made in relation to the application of r 13.4(1)(b) of the UCPR.

18 With that in mind, by virtue of s 8(8) the Land and Environment Court can make a vexatious proceedings order in relation to a person. Under s 8(8)(c) I am able to make any other order the Court considers appropriate in relation to proceedings by the person in the Court.

19 Under s 8(1) an order can be made where the Court is satisfied that (a) the person has frequently instituted or conducted vexatious proceedings in Australia. Under s 8(2), for the purposes of s 8(1), an authorised court may have regard to orders made by any Australia court or tribunal. In that regard, I take into account the order made by Palmer J on 18 December 2008.

20 I note under s 8(3) I must not make a vexatious proceedings order unless the person has been given an opportunity to be heard. I have already identified in the course of this judgment that the Applicant chose to leave this hearing. I consider he was given an opportunity to be heard but has chosen not to remain in Court to avail himself of it.

21 In this case, the Court is being asked to make the order on the application of a person against whom vexatious proceedings have been commenced, being the Council. In terms of the requirements under s 8, I am able to make the vexatious proceedings order which the Council is seeking and I am satisfied that I should do so. The Applicant should be prohibited from instituting any proceedings in this Court against the Council without the prior leave of a judge of this Court pursuant to s 8(8)(c) of the Vexatious Proceedings Act.

Orders

22 The Court makes the following orders:

1. Applicant’s summons is dismissed as no reasonable cause of action is disclosed pursuant to UCPR r 13.4(1)(b).
2. A vexatious proceedings order that the Applicant be prohibited from instituting any proceeding 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 Vexatious Proceedings Act 2008.