Hurstville City Council v Jacobs (No 2)

[2015] NSWLEC 161

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hurstville City Council v Jacobs (No 2) [2015] NSWLEC 161
Hearing dates:	9 October 2015
Date of orders:	09 October 2015
Decision date:	09 October 2015
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. The notice of motion filed 6 October 2015 is dismissed. 2. The hearing will proceed on Tuesday next, 13 October, 2015.
Catchwords:	PRACTICE AND PROCEDURE – application to vacate hearing date – unsatisfactory evidence to support motion – inadequate steps taken to obtain legal advice – application is belated – inconsistent with s 56 of Civil Procedure Act 2005 – vacation of hearing dates not in the interests of justice – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Hurstville City Council (Applicant) Kevin Roy Jacobs (First Respondent) The Estate of the late Ronald John Jacobs (Second Respondent)
Representation:	Counsel: M Cottom, solicitor (Applicant) Self represented (First Respondent) Submitting appearance (Second Respondent)       Solicitors: HWL Ebsworth Lawyers (Applicant) Self represented (First Respondent) Submitting appearance (Second Respondent)
File Number(s):	40060 of 2015

ex tempore Judgment

1. By notice of motion filed on 6 October 2015, Kevin Roy Jacobs seeks to vacate the hearing of two notices of motion fixed for hearing on Tuesday next, 13 October 2015. Each of those notices of motion was filed by Mr Jacobs and each has been supported by an affidavit sworn by him.

2. The first of the two notices of motion was filed on 21 August 2015. It seeks an order “that the consent order dated 22 May 2015 is found to be invalid” and secondly an order that the order entered on 2 June 2015 be set aside. Those orders are the same, the latter being the date upon which the Council sought to have the order made on 22 May 2015 entered by having it sealed and signed by the Registrar.

3. The evidence filed by Mr Jacobs in support of his notice of motion filed on 21 August 2015 is in the form of an affidavit prepared by him and is to the effect that the legal advisers representing him in May last, both solicitor and counsel, did not act in accordance with their instructions when indicating agreement to the terms of consent orders that were filed in Court and then made on 22 May 2015. The orders then made finally disposed of the proceedings brought against Mr Jacobs by the Council.

4. Those orders, which were mandatory in form, required Mr Jacobs to remove materials, described as being waste and car bodies, from residential premises occupied by him at 58 Johnstone Street, Peakhurst (the premises). The orders then made provided a timetable for the sequential removal of materials from the premises, identifying different parts of those premises from which particular items were to be removed.

5. Subsequent to the making of those orders and upon a sealed copy of them being served upon him, Mr Jacobs claimed that they did not reflect what he understood he had agreed to when, in discussion with his legal advisers, orders were made by the Court on 22 May. Thus the substance of the affidavit sworn by him in support of that notice of motion.

6. The second notice of motion, which is also fixed for hearing on Tuesday next, is one filed in case the first notice of motion, seeking to set aside the orders made by the Court, is unsuccessful. That second notice of motion seeks to amend the existing orders so as to extend the time by which various items, including car bodies and waste as described and defined in the orders of 22 May 2015, are to be removed from the premises.

7. The first of the two notices of motion that I have identified came before Moore AJ on 28 August 2015. At that time, his Honour gave directions for the sequence within which any evidence or further evidence directed to the motion, should be filed. The first direction that his Honour made was for any further evidence in support of the motion to be filed by Mr Jacobs within one week, that is by 4 September 2015. The directions then made also provided for the filing of evidence on behalf of the Council, with a further direction that the motion be then fixed for hearing. Liberty was reserved to apply in the event that there was a material slippage of the timetable.

8. On that same day, that is, 28 August 2015, the matter was fixed for hearing on 13 October 2015. Mr Jacobs accepts that he was in Court at the time at which the directions were made by Moore AJ and was also present when the hearing date was fixed. No further evidence was filed by Mr Jacobs in support of his motion.

9. The second notice of motion, filed on 1 September 2015, came before the Registrar on 8 September 2015 when Mr Jacobs was present before her. At that time, the Registrar fixed that notice of motion for hearing on 13 October so as to ensure that both notices of motion could be dealt with in the one day in order to avoid the additional costs incurred had separate hearing dates been fixed.

10. The Council’s principal proceedings, in respect of which the orders the subject of Mr Jacobs’ motions were made, are directed to the removal of materials, described as waste, and also car bodies that are presently deposited on the premises. More recently, the Council unsuccessfully sought to have the hearing of Mr Jacobs’ motions expedited because of what was said to be the state of the premises. As I understood the Council’s position, it contended that the existence of those materials on the premises was or had the potential to create concern as to public health. Whether or not that position is ultimately proven to be the case is not a matter upon which I presently express any view. I simply identify the basis for the Council’s expedition application as being the need to address public health and safety, a matter that bears upon the present application to vacate the hearing fixed for Tuesday next.

11. The evidence that has been read by Mr Jacobs in support of his present motion to vacate the hearing dates next week is, with respect to him, unsatisfactory. That is regrettable but understandable as Mr Jacobs has, at least since the making of the final orders in May last, been self-represented. Nonetheless, I must consider such evidence as he has prepared and matters stated by him from the bar table that might support his application.

12. The two affidavits that he has filed in support of his motion to vacate the hearing seem to me to go no further than establishing that he has been before the Court several times since filing of his earlier notices of motion, including today, for the purpose of attending to procedural matters. Importantly, on the evidence before me, he has not responded to any substantive direction to prepare his motions for hearing, beyond the affidavit evidence to which I have earlier referred.

13. Mr Jacobs has stated from the bar table that he has been unwell for a short time with the flu and that he has a mother who is ill, requiring regular visits by him in order to attend to her needs. This has prevented him from preparing further evidence although he was unable to identify the nature of the further evidence that he would seek to file. He has also stated that he feels disadvantaged in presenting his case in the absence of legal representation to assist him and therefore needs more time to prepare.

14. Unfortunately, he acknowledges being aware since June or July last of the need for some legal representation to assist him in presenting the matters that he wishes to agitate in respect of his substantive motions. He did seek assistance from a solicitor at Blacktown who, I am told, then requested funds to be deposited into his trust account. I infer that those funds were not paid. What further steps he has taken to have that solicitor or any other legal practitioner assist him since the filing of his notices of motion in August and September are not disclosed in his evidence or by anything that he told me from the bar table, notwithstanding my endeavours to have him do so.

15. There can be no doubt that the present application by Mr Jacobs to vacate next Tuesday’s hearing is made belatedly. In deference to the orderly conduct of its business, including the position of other litigants, the Court seeks to preserve hearing dates that have been fixed unless good and substantial reasons are advanced as to the why a hearing should be vacated. The fact that the Court has set aside next Tuesday to hear Mr Jacob’s motions means that it is a day unavailable to other litigants who have been waiting to have their cases heard.

16. Further, vacating hearing dates that have been fixed, in the absence of good and substantial reasons so to do, is not consistent with the provisions of s 56 of the Civil Procedure Act2005 (NSW). That section requires that proceedings before the Court be determined on the real issues between the parties and in a manner that is just, quick and cheap.

17. I accept that by ss 57 and 58 of that Act the interests of justice are also required to be observed when exercising a discretionary power of the kind that is presently invoked. However, the interests of justice are not to be equated with the interests of a particular party; they must reflect the interests of all parties as well the interests of other litigants who are awaiting hearing of their cases with the expectation that they will be disposed of in an orderly and expeditious manner.

18. I am not satisfied that it is in the interests of justice that the hearing of the two notices of motion filed by Mr Jacobs and fixed for hearing next week should be further delayed. I note his observation that the existence of the litigation has caused him and is continuing to cause him considerable anxiety. I apprehend that his anxiety will not dissipate simply by adjourning the proceedings for later determination. Rather, it may be in his interests and certainly in the interests of all parties concerned with this litigation, to have it resolved once and for all, so that their respective positions are made certain.

19. For these reasons, the notice of motion filed by Mr Jacobs on 6 October 2015 seeking to vacate next weeks hearing is dismissed. The hearing fixed for Tuesday will proceed.

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Amendments

14 October 2015 - Representation: M Cottam changed to M Cottom

Decision last updated: 14 October 2015