Gerondal v Eurobodalla Shire Council

[2010] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION:

Gerondal v Eurobodalla Shire Council [2010] NSWLEC 52

PARTIES:

APPLICANT:
Paul Gerondal

RESPONDENT:
Eurobodalla Shire Council

FILE NUMBER(S):

60002 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- in the absence of a party his notice of motion seeking variation of orders was struck out - whether strike out order should be set aside.

LEGISLATION CITED:

Protection of the Environment Operations Act 1998, s 245

DATES OF HEARING:

12 March 2010

EX TEMPORE JUDGMENT DATE:

12 March 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Gerondal (in person)
SOLICITORS:
n/a

RESPONDENT:
Mr Hill (agent)
SOLICITORS:
Andrew Warren Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

12 March 2010

60002 of 2009

PAUL GERONDAL v EUROBODALLA SHIRE COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the applicant, Mr Paul Gerondal, which seeks to set aside orders made on 26 February 2010 that Mr Gerondal's earlier notice of motion filed on 1 February 2010 be struck out and that Mr Gerondal pay the costs of that notice of motion.

BACKGROUND

2 On 25 September 2009 the Court made orders including an order pursuant to s 245 of the Protection of the Environment Operations Act 1998 requiring Mr Gerondal to remove specified items from his land at Broulee within three months.

3 On 1 February 2010 Mr Gerondal filed a notice of motion seeking, first, an order extending time for compliance with the 2009 order and, secondly, an order that “the Court define and/or delete the items to be removed from the premises as broadly described in ‘the list’ in the order”.

4 Mr Gerondal’s notice of motion was heard by me on 12 February 2010. I made an order extending to 1 June 2010 the time for compliance with the 2009 order. With a view to later determining his motion for the second order relating to the definition of items, I made directions that the parties meet on the property on 22 February 2010 with a view to reaching agreement to any variation of the descriptions of items in para (ii) of the 2009 order, that the parties file a document setting out a list of agreed matters by 24 February 2010, and that the matter be re-listed for directions on 26 February 2010.

5 On 26 February 2010 the matter came before the list judge, Sheahan J, for directions. It was the first matter in the directions list, which commenced at 9.15am. Either at that time or shortly thereafter, a solicitor appeared for the respondent council but there was no appearance for Mr Gerondal. The matter was called in the usual way, three times, but there was still no appearance for Mr Gerondal. At 9.40am Mr Gerondal’s February 2010 notice of motion was struck out with costs.

6 In fact, Mr Gerondal and his wife had travelled from Canberra the previous afternoon to attend the directions hearing. They did not realise that this matter was the first matter in the list and was listed at 9.15am. Mr Gerondal was delayed in his arrival at Court by his wife's sudden illness and the immediate effect on her diabetic condition. They arrived at the Court registry at about 9.35am to check if an affidavit, which Mr Gerondal had sworn on 24 February 2010 and which he had sent to the Court for filing, had arrived. He was informed by the registry that they could not say because the file was in court. I note that his affidavit of 24 February 2010 bears the Court's file stamp for 26 February 2010 and that it was received at 11.50am on that date.

7 After visiting the registry, Mr and Mrs Gerondal went to the list judge’s court. They heard the sixth matter in the directions list being discussed. After some ten minutes or so they were told by a court officer that their case had been heard. They waited until the end of his Honour's list. They then addressed his Honour. The Court file bears his Honour's notation: “Mr and Mrs Gerondal arrived late. Explained she had been ill. Apparently they thought it would be held over until the end of the list".

CONCLUSION

8 In my view, in the extraordinary circumstances that I have recounted, this is an appropriate case for the Court to set aside the orders made on 26 February 2010. I so order.

9 I also make the following directions:

(a) the applicant’s notice of motion filed on 1 February 2010 is fixed for hearing with an estimated hearing time of less than one day. The parties are to approach the registry forthwith to obtain a hearing date, if possible on 26 April 2010;
(b) the applicant is to file and serve submissions ten days before the hearing;
(c) the respondent council is to file and serve submissions four days before the hearing.
(d) the costs of 26 February 2010 are reserved.