Forgall Pty Limited v Chief Executive of the Office of Environment and Heritage
[2013] NSWLEC 11
•07 February 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Forgall Pty Limited v Chief Executive Of The Office Of Environment and Heritage [2013] NSWLEC 11 Hearing dates: 7 February 2013 Decision date: 07 February 2013 Jurisdiction: Class 1 Before: Pain J Decision: 1. Application for adjournment of proceedings granted.
2. Appellant to pay Respondent's costs thrown away by reason of adjournment including costs of 7.02.2013.
3. The Respondent's right to apply for costs awarded in order 2 on an indemnity basis is reserved.
4. Telephone call-over time for the purpose of setting a further hearing date on first available date set for 11.02.2013 at a time to be advised by the Registry.
5. Grounds 6(a) and 6(b) be struck off the summons.
Catchwords: PROCEDURE - exercise of discretion to grant adjournment Legislation Cited: Civil Procedure Act 2005 s 56
Land and Environment Court Act 1979 s 63
Native Vegetation Act 2003 s 38Cases Cited: Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15
Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534Category: Procedural and other rulings Parties: Forgall Pty Limited (Appellant)
Chief Executive Of The Office Of Environment and Heritage (Respondent)Representation: Mr Wray (agent) (Appellant)
Mr E Muston (Respondent)
Office Of Environment and Heritage (Respondent)
File Number(s): 10952 of 2012
EX TEMPORE Judgment
This matter is listed for hearing today. It concerns a s 56A appeal against a commissioner's decision to issue a remediation order under s 38(1) of the Native Vegetation Act 2003 (the NV Act); Forgall Pty Ltd v Chief Executive of the Office of Environment and Heritage [2012] NSWLEC 1219. I received in chambers before court commenced a facsimile from Dr Sherif, a director of Forgall Pty Ltd the Appellant, sent according to notations on it at 6.45 pm yesterday, 6 February 2013, stating that he wished to seek an adjournment of the hearing today, that he received a letter at 5.30 pm yesterday advising that the Appellant's solicitor was withdrawing from representing the Appellant in the proceedings, that he could not attend personally today due to work commitments at Manning Base Hospital as no replacement doctor could be found, and he wishes to brief new counsel or represent himself at an adjourned hearing.
I granted leave earlier today to the Appellant's then solicitor to cease to act as solicitor for the Appellant in these proceedings.
Mr Wray, a retired farm contractor, was granted leave to appear as agent for Forgall Pty Ltd under s 63 of the Land and Environment Court Act 1979 (the Court Act) and makes the application for an adjournment essentially for the reasons stated in the facsimile received from Dr Sherif. He gave brief oral evidence and was cross-examined. The special circumstances relied on are that the former solicitor did not follow instructions given to him. He submitted an adjournment was fair in the circumstances.
The adjournment is opposed by the Respondent as the matter has been set down since last year, the application for an adjournment is made late and without adequate explanation for the circumstances which led to the solicitor ceasing to act on the eve of the hearing, and the appeal enjoys poor or no prospects of success.
The Court must weigh up the just, quick and cheap objectives of s 56(2) of the Civil Procedure Act 2005 (the CP Act) in making procedural determinations. The onus falls on the Appellant to justify why this indulgence should be granted. The timing of the solicitor ceasing to act is unfortunate to say the least and I am not apprised by Forgall Pty Ltd of any of the surrounding circumstances beyond that this occurred last night at about 5.30 pm. I am aware from the application for leave to file a Notice of Ceasing to Act made earlier today by the Appellant's former solicitor that he did not consider he was able to carry out the instructions received from the Appellant and act ethically in the matter in Court.
Whether the appeal enjoys some prospects of success is a material consideration I must weigh up. There are 13 appeal grounds identified of which grounds 1-12 relate to the operation of s 38(1)(a) of the NV Act, ground 13 to s 38(1)(b) in relation to area G. Grounds 6a and 6b relate to areas A, B and C. Grounds of appeal are limited to questions of law alone.
As the Respondent's counsel submitted, the concession of the Applicant before the commissioner as recorded at [3] of the original judgment was that the Court had jurisdiction in relation to areas A, B and C. The ground in 6a cannot be raised in light of that concession as the Appellant is bound by the way the matter was conducted before the commissioner. Appeal ground 6b appears to raise a question of fact and also cannot be raised in this appeal.
If s 38(1)(a) or (b) of the NV Act applies the commissioner had jurisdiction under the NV Act to make a direction where satisfied of the identified matters. The Respondent submitted that the jurisdictional precondition in s 38(1)(b) was found to exist by the commissioner (the parties agreed that native vegetation was cleared) at [91] and [92] of the judgment in relation to erosion and weed invasion and that is a finding of fact which cannot be challenged in the limited scope of a s 56A appeal. As the commissioner had jurisdiction under s 38(1)(b) in the alternative to subsection (a) the balance of the appeal grounds under s 38(1)(a) are arguably moot. In the limited time available to me to consider the numerous grounds of appeal I cannot conclude that there are no prospects of success in relation to ground 13 in part because I am aware from my judgment in Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15 that a statutory provision which requires satisfaction of a factual matter which is jurisdictional may potentially be able to be raised in an appeal of this kind. I am not being definitive on this question here nor am I in a position to rule that ground 13 enjoys no prospects of success. If s 38(1)(b) does found jurisdiction then the other appeal grounds are moot as these all concern s 38(1)(a) which can apply in the alternative.
The prejudice raised by the Respondent is that it has incurred costs in preparing for the hearing. The remediation notice made by the commissioner continues in force and Mr Wray submits without any evidence supporting his statement that it is being complied with. That statement is accepted for this application at least.
The matter is finely balanced but I consider that I should grant the adjournment sought which effectively vacates today's hearing, but the price of obtaining that indulgence from the Court is that the Appellant must pay the costs thrown away by the Respondent as a result of the late application for the adjournment made, essentially with no notice, today. The Respondent bears no responsibility for today's circumstances and should be compensated for its costs, costs being compensatory as identified in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. I do not consider the circumstances to the limited extent these are known at this stage justify an award of costs on an indemnity basis.
Orders
The Court makes the following orders:
(1) Application for adjournment of proceedings granted.
(2) Appellant to pay Respondent's costs thrown away by reason of adjournment including costs of 7 February 2013.
(3) The Respondent's right to apply for costs awarded in order 2 on an indemnity basis is reserved.
(4) Telephone call-over time for the purpose of setting a further hearing date on first available date set for 11 February 2013 at a time to be advised by the Registry.
(5) Grounds 6(a) and 6(b) be struck off the summons.
Decision last updated: 13 February 2013
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