Hurstville City Council v Jacobs
[2008] NSWLEC 237
•5 August 2008
Land and Environment Court
of New South Wales
CITATION: Hurstville City Council v Jacobs [2008] NSWLEC 237 PARTIES: APPLICANT:
RESPONDENT:
Hurstville City Council
Kevin Roy JacobsFILE NUMBER(S): 40013 of 2006 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- application to vacate hearing date and to stay proceedings. LEGISLATION CITED: Local Government Act 1993 (NSW), s 678 CASES CITED: Hurstville City Council v Jacobs [2007] NSWLEC 630 DATES OF HEARING: 5 August 2008 EX TEMPORE JUDGMENT DATE: 5 August 2008 LEGAL REPRESENTATIVES: APPLICANT:
Dr S. Berveling, barrister
SOLICITORS
HWL EbsworthRESPONDENT:
Mr K. R. Jacobs (in person)
SOLICITORS
N/A
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
5 August 2008
40013 of 2006
EX TEMPORE JUDGMENTHURSTVILLE CITY COUNCIL v KEVIN ROY JACOBS
1 HIS HONOUR: These proceedings by Hurstville City Council against Mr Kevin Jacobs are listed for hearing before me today. At the moment I am dealing with a notice of motion by Mr Jacobs filed on 29 July 2008 that the hearing date be vacated and that the council’s proceedings be stayed pending the further progress of his application for leave to appeal to the High Court of Australia No S334 of 2008 filed on 17 July 2008.
2 The proceedings listed for hearing before me today are constituted by the council’s further amended notice of motion filed on 2 June 2008 which seeks the following:
(a) that Mr Jacobs be found guilty of contempt of this Court for failing to comply with consent orders made on 21 April 2006 ( consent orders ) requiring that he comply with orders 1 and 2 of an order dated 3 November 2004 issued by the council ( council order ) in respect of property known as 75 Clarke Street, Peakhurst, by removing miscellaneous refuse, extraneous items, building materials and overgrown vegetation from the property to an approved waste facility in accordance with a specified timetable;
(b) that Mr Jacobs be punished for disobeying the consent orders by committal to prison or fine or sequestration of property; and
(c) that an order pursuant to s 678(10) of the Local Government Act 1993 (NSW), and ancillary or related orders, be made; primarily, that the council, its servants and agents be ordered to execute the council’s functions under s 678 by carrying out the work which was required to be carried out at the premises by paras 1 and 2 of the council order as modified by the consent orders.
3 It is necessary to say something about Mr Jacobs’ pending application for special leave to appeal to the High Court. The proceedings have a remarkably long history given their nature. They were commenced in 2006 and appeared to have been settled by the consent orders in April 2006. On 18 September 2007, Jagot J dismissed Mr Jacob’s notice of motion in which he sought to have the consent orders set aside: Hurstville City Council v Jacobs [2007] NSWLEC 630. His application for leave to appeal to the Court of Appeal was refused. On 17 July 2008 he filed an application for special leave to appeal from the decision of the Court of Appeal. The application for special leave to appeal to the High Court does not act as a stay of the Court of Appeal’s order, the order of Jagot J, the consent orders or the council order. It is relevant to take into account on the motion before me that Mr Jacob’s application for special leave to appeal to the High Court does not, on its face, appear to be strong.
4 Nevertheless, the council accepts that the contempt charges should be stood over until disposition of the High Court special leave application, but otherwise resists Mr Jacob’s motion. The council has handed up proposed short minutes of the orders which it would seek pursuant to s 678(10) of the Local Government Act 1993 if the hearing of that application were to proceed today.
5 Mr Jacobs makes the following submissions (as I understand them):
6 First, he says that he had received on 1 August 2008 a letter dated 30 July 2008 from the council’s solicitor with attachments, one of which was an affidavit of Julie Kisa (a council officer) sworn on 30 July 2008; and that this was many weeks beyond the time of 30 May 2008 by which the court directed the council to file and serve its evidence. The council responds that it does not seek to read that affidavit, but rather will seek to read annexure B to an affidavit of Jane Hewitt, also sworn on 30 July 2008. Annexure B is merely a chronology of events in this Court which appears to be uncontroversial and could be gleaned from the Court file. It could be put in submissions if the annexure to the affidavit were not read. I do not think that it constitutes any impediment to the matter proceeding today.
7 Secondly, Mr Jacobs says that the council was ordered to file and serve any amended motion and its affidavits by 30 May 2008; but that he did not receive its further amended notice of motion until 5 June 2008 and that another council affidavit was not served on him until 23 June 2008. I note that was another affidavit of Julie Kisa, updating her observations of the state of the property as deposed to by her in affidavits sworn and served in 2006. Mr Jacobs has not filed or served any evidence in relation to the matter listed for hearing today. Upon my inquiring as to the reason, he said it was because he had been busy with his High Court special leave to appeal application and his notice of motion which I am now hearing, and that the later service of the council material in June caused difficulty in that the school holidays were from 2 to 18 July 2008 and he has a teenage daughter of whom he has the care. It is true that the council was late in complying with directions as to service of further material by 30 May. However, given the passage of time since Mr Jacobs was served with the council evidence and its nature, I cannot see, on the material before me, that this has caused him any real prejudice such that the hearing should not proceed today.
8 Thirdly, Mr Jacobs says that on 16 May 2008, Lloyd J declined to accede to his application for an adjournment so that he may obtain legal advice to ascertain his options. He informed me that in fact he has received legal advice. I do not see that this is a factor which weighs in favour of his motion.
9 Fourthly, Mr Jacobs says that he thought his notice of motion could be heard a few days before today. I note that it was not filed until 29 July 2008. I do not see that this weighs in the scales.
10 Fifthly, Mr Jacobs says that he has been suffering from depression since 2001. This is not the subject of evidence before me. Even assuming it to be so, again I do not think it weighs significantly on the issue which I presently have to decide.
11 Sixthly, Mr Jacobs refers to his application for special leave to appeal to the High Court. I have earlier indicated that it does not operate as a stay and have expressed my view as to its strength. For present purposes, I give it very little weight.
12 Seventhly, Mr Jacobs says that the council order provided for the removal of weeds (his description) and that he had purchased herbicide and was awaiting the right weather conditions and had to concern himself with matters such as run-off. I note that the council order does not expressly refer to weeds, although it does refer to overgrown vegetation, and in addition requires him to remove from the premises items including, but not limited to, rusting and unused metal, unused timber, broken and disused plastic, unused bricks, broken concrete slabs and scattered rubble. Finally, Mr Jacobs says (as I understand him) that he has a development consent for a double garage at the foot of his property and he refers to further materials required for another matter pending in this Court concerning construction of a concrete wall. I do not think that these matters are sufficient reason to vacate the hearing date.
13 I dismiss Mr Jacobs’ notice of motion insofar as it seeks vacation of the hearing date in relation to the relief which the council seeks under s 678 of the Local Government Act 1993 and a stay of the proceedings for that relief. I will proceed to hear that matter.
14 By consent, I order that paras 1 and 2 of the council’s further amended notice of motion filed on 2 June 2008 relating to the contempt charge, be stayed until determination of Mr Jacob’s application for special leave to appeal to the High Court or further order. I direct the parties to re-list the matter promptly after determination of that special leave application.
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