Hawkesbury City Council v Jarvie [No. 2]

[2002] NSWLEC 207

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Jarvie [No. 2] [2002] NSWLEC 207

PARTIES:

APPLICANT
Hawkesbury City Council

RESPONDENT
Russell Alan Jarvie

FILE NUMBER(S):

40096 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- application to reopen case - whether unnamed document constituted a notice of motion

LEGISLATION CITED:

CASES CITED:

Sandlix Pty Limited v Hurstville City Council [2000] NSWLEC 98

DATES OF HEARING:

15/10/2002

EX TEMPORE
JUDGMENT DATE :

10/15/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Walmsley (Solicitor)

SOLICITORS
A.R. Walmsley & Co

RESPONDENT
Mr R Jarvie (In person)

SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40096 of 2001

COWDROY, J

15 October 2002

HAWKESBURY CITY COUNCIL

Applicant
v

RUSSELL ALAN JARVIE

Respondent

Judgment [No. 2]

Introduction

1 In this matter the Court made orders by consent on 5 August 2002, which were suspended for a period of 28 days to enable the respondent to file a notice of motion to set aside or vary such orders. Such provision was made because the respondent was not legally represented when the orders were made, and because it was requested by the respondent.

2 The Court records establish that on 5 August 2002 a sealed copy of the orders were forwarded to the respondent. The respondent denies their receipt. On 2 September 2002, being the second last day upon which the orders were to become final, the respondent attended at the Land and Environment Court Registry and filed an unspecified document. It does not accord with any of the Court forms and is not described as a notice of motion. The document was accepted by the Court Registry.

3 On 3 September the respondent says he telephoned the Registry and spoke to a Registry clerk to enquire of his defence which is contained in the documents which had been filed on the previous day. In the conversation he alleges that he was told that a notice of motion would be required and that he had three days in which to file it. Accordingly, on either 4 or 5 September a notice of motion was filed by the respondent. Such motion was filed out of time and does not comply with the Court’s orders made on 5 August 2002. Accordingly the Court cannot pay regard to it.

4 The document filed on 2 September 2002 contains wording which could be construed as a challenge to the Court’s orders. The Court also takes note of the conversation with the Registry clerk. The statements by the Registry clerk cannot override the effect of the Court order made on 5 August 2002. However, in Sandlix Pty Limited v Hurstville City Council [2000] NSWLEC 98 the Court considered a similar application to reopen proceedings. The Court determined that the application should be granted since the intention could be gleaned that the unrepresented litigant wished to move the Court.

5 In this case the Court considers that the interests of justice require that the proceedings be reopened for the same reasons referred to in Sandlix. Accordingly the Court construes the document filed on 2 September 2002 as a notice of motion which satisfies the requirement of order 5. Accordingly, the Court grants the application to set aside or vary the orders made on 5 August 2002.

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