Hurstville City Council v Jacobs (No 3) - [2015] NSWLEC 194

Land and Environment Court

New South Wales

Medium Neutral Citation: Hurstville City Council v Jacobs (No 3) [2015] NSWLEC 194
Hearing dates: 24, 25 November 2015
Date of orders: 25 November 2015
Decision date: 25 November 2015
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Grant leave to Michael Vassili to cease acting for the Applicant on the notice of motion filed on 1 September 2015, effective immediately.

2. Give leave for Mr Vassili to file and serve a Notice of Ceasing to Act for Mr Jacobs notwithstanding the requirements under r 7.29(2) of the Uniform Civil Procedure Rules 2005.

3. The notice of motion filed by the Applicant on 1 September 2015 is dismissed.

4. Exhibits, apart from Exhibit B, may be returned.
5. Stand over the proceedings to the Registrar’s List on Friday 4 December 2015 for the purpose of giving directions and fixing a date for hearing to determine the orders to be made for costs of the principal proceedings.
Catchwords: PRACTICE AND PROCEDURE – motion to extend time to comply with consent orders – application for adjournment refused – no sufficient cause shown to vary the time for compliance with consent orders – degree of injustice to the public – integrity of court processes – motion dismissed
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

By a notice of motion filed on 1 September 2015, Kevin Jacobs, the first respondent, seeks orders varying orders made by the Court on 22 May 2015 and entered on 2 June 2015. Those orders, which related to premises at 58 Johnstone Street Peakhurst (the Premises), required that waste materials and unregistered motor vehicles on the Premises be removed in a time sequence that was stipulated in the orders.
Expressed with greater particularity, the present notice of motion seeks to do two things. First, Mr Jacobs seeks to amend the dates by which compliance with two of the orders made on 22 May are required to be met. Second, he seeks a variation to the materials required to be removed in accordance with the third of those orders. The critical orders for present purposes may conveniently be referred to as Orders 1(a), 1(b) and 1(c).
Order 1(a) required that any unregistered motor vehicles located in the front yard and driveway of the Premises be removed to a location where they could lawfully be stored. Compliance with that order was required by 16 July 2015. It is accepted by the Council that the requirements of that order have been met albeit that compliance occurred a little after the stipulated date. Nothing presently turns upon the terms of that Order or the date by which compliance was met.
The issues that arise under the present motion are directed to Orders 1(b) and 1(c). Mr Jacobs seeks an extension of time by which compliance with each of those Orders is required. The further issue he identifies arises under Order 1(c) in that he seeks deletion from the description of materials to be removed any reference to “unregistered motor vehicles”.
Variation to the time for compliance with Orders 1(b) and 1(c) is sought under Order 7 of the orders made on 22 May. That Order reserved liberty to either party to apply on appropriate notice “to vary the time for compliance with these orders or [sic] upon sufficient cause being shown”.
Apart from the notice of motion filed by Mr Jacobs on 1 September, also listed before me when the hearing commenced yesterday (24 November 2015) was a notice of motion filed by the solicitors who had been retained by Mr Jacobs in October last. That notice of motion sought the leave of the Court for the solicitor on the record to file a notice of ceasing to act for Mr Jacobs, effective immediately. That motion was required because the time within which the solicitor proposed to terminate his retainer and give notice to that effect was less than the 28 day period required under the Uniform Civil Procedure Rules 2005.
The latter motion was supported by an affidavit sworn by Tadross Gabrial, who had the conduct of the matter for Mr Jacobs. In his affidavit, Mr Gabrial stated that although considerable work had been undertaken for Mr Jacobs in preparation for the present hearing, attempts to contact him for the purpose of obtaining instructions, securing payment of fees and to arrange a conference with counsel retained for the proceedings had not met with a timely response, with the consequence that the solicitor felt unable further to assist Mr Jacobs.
Mr Jacobs was present in Court when the motion by his solicitor was addressed. He was asked by me whether he wished to make any statement or any observation as to the application by his solicitor to be relieved of further representing him. He responded by indicating that he no longer wished to retain Mr Gabrial or the principal of the firm who he had retained in October last. Having regard to the content of Mr Gabrial’s affidavit and, more particularly, to the statement by Mr Jacobs that he no longer wished to continue the retainer, I gave leave to the solicitor to give the requisite notice forthwith and otherwise to act in accordance with the orders sought in the notice of motion. Those matters will be the subject of formal orders at the conclusion of this judgment.
Following my announcement of those orders, Mr Jacobs sought an adjournment of his notice of motion on the basis that he wished to retain another solicitor to act for him. Having heard his submissions together with those of Mr Cottom, who appeared for the Council, I refused the adjournment application, indicating that my reasons for so doing would be given at the time at which this judgment is delivered. What immediately follows, are those reasons.
The present notice of motion addressing the orders made on 22 May was prepared by Mr Jacobs without the benefit of any legal assistance. It was a notice of motion prepared following an earlier notice of motion that had also been prepared by him and filed on 21 August 2015. The latter notice of motion sought to set aside the orders made on 22 May. Those orders, it should be noticed, were made by consent when Mr Jacobs was legally represented both by solicitor and by counsel.
Both the notice of motion filed on 21 August and the present notice of motion were listed before the Registrar of the Court on 8 September. At that time, both were fixed for hearing on 13 October. Mr Jacobs is recorded as being present in Court when that fixture was made.
An application subsequently made by the applicant, Hurstville City Council (the Council), for the hearing of those notices of motion to be expedited, was dismissed by me on 18 September. The Council sought an earlier date for the hearing of the motions on the basis that the waste deposited on the Premises was unsightly and, more particularly, presented a potential health hazard. Thus, so it was submitted, the removal of that material was required to be undertaken with some urgency. The Council’s motion for expedition was dismissed, essentially because at the time of hearing that motion the Court did not have available to it any hearing date before 13 October. Although the Council’s notice of motion for expedition had been served, Mr Jacobs did not appear at that hearing.
On 9 October, I dismissed a notice of motion that had been filed by Mr Jacobs on 6 October, seeking to vacate the hearing fixed for 13 October. He was self-represented at that time. His application was, in essence, that he needed more time to prepare for the hearing on the 13th. His explanation for delay in preparing for the hearing was not persuasive, resulting in my dismissal of his motion.
When the motions of 21 August and 1 September came before me for hearing on 13 October, Mr Jacobs was legally represented. By that time he had retained the solicitors to whom I have earlier referred. Mr M Fozzard of counsel then appeared for him. Mr Fozzard informed me that Mr Jacobs no longer pursued the notice of motion filed on 21 August, seeking to set aside the orders made on 22 May, and consented to an order that that notice of motion be dismissed. An order was so made.
Mr Fozzard then sought an adjournment of the present notice of motion in order to afford Mr Jacobs’ new legal team time for discussion with the Council’s legal representatives, in the hope that some agreement would be reached for the extended time by which orders 1(b) and 1(c) could be satisfied by Mr Jacobs. The Council consented to that course, with the legal representatives for each party expressing optimism that agreement would be reached. Upon that optimism being expressed, I agreed to their joint application to stand the matter over for mention before me on 27 October.
Unfortunately, the expectation expressed by the legal representatives of the parties was not realised. When the matter was mentioned before me on 27 October, I was informed by Mr Fozzard and by Mr Cottom that they had not been able to agree upon the extension of time sought by Mr Jacobs, with the result that the notice of motion of 1 September would need to be argued. The hearing of that motion was then fixed for hearing to commence yesterday, 24 November 2015.
In support of his present application for an adjournment, Mr Jacobs informed me that he had spoken to a Mr Baker, solicitor. He provided an appointment slip indicating that a meeting had been held with Mr Baker late last week. Mr Jacobs stated that he wished to consult Mr Baker further in relation to the present motion. There was no suggestion in what Mr Jacobs told me from the Bar table that Mr Baker had given advice about this particular matter, nor perhaps more importantly, was it suggested that Mr Baker was unable to attend Court yesterday on behalf of Mr Jacobs, at least for the purpose of seeking an adjournment of the present hearing.
In further support of his adjournment application, Mr Jacobs referred to a number of emails that he had sent to this Court commencing on Friday last, 20 November and then daily on Saturday 21, Sunday 22 and Monday 23 November. In all, some 19 emails had been sent to the Court, marked to the attention of my Associate. None of those emails nor the documents attached to them had been provided to the Council. As a consequence, I arranged for copies of the emails received by the Court to be provided to both Mr Jacobs and to Mr Cottom to enable their content to be considered in the context of the adjournment application. Mr Jacobs had not brought with him his computer or any printout of the emails that he had sent to the Court.
Having afforded both Mr Jacobs and Mr Cottom the opportunity to peruse these emails, Mr Jacobs then sought to tender them. The majority of them were not objected to by the Council and they became exhibits in the proceedings (Ex 1). They were said by Mr Jacobs to contain the material that he wished to include in a further affidavit supporting his substantive motion. In substance, they addressed either the relationship that he had with his most recent solicitors or with the solicitors who had acted for him at the time at which the consent orders of 22 May were made. In addition, the emails reflected the explanation that Mr Jacobs wished to give as to why he had not yet removed the material from the Premises that were the subject of Orders 1(b) and 1(c).
When asked about the additional evidence that he would wish to adduce in consultation with Mr Baker, Mr Jacobs stated that its substance was that found in the emails (Ex 1) but that he would wish to have put that material in more formal affidavit form. Having regard to the fact that the Court had accepted as evidence those materials, it seemed that the need for the formality of an affidavit in the circumstances of this case was unnecessary for the purpose of determining the substantive motion. Mr Cottom, on behalf of the Council, took no objection to the form of that material.
When determining Mr Jacobs’ application for an adjournment of his motion, it was necessary to give effect to the provisions of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW). Section 56 identifies the overriding purpose of the Act and rules of court in the conduct of proceedings of the present kind. The section applies to the conduct of civil proceedings in this Court. The overriding purpose expressed in subs (1) of s 56 is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.
Section 57 of the Civil Procedure Act addresses the application of the overriding purpose to case management. Subsection (1) of the latter section identifies the objects with which cases are to be managed. They include the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the Court, at a cost affordable by the respective parties. Section 58 identifies factors relevant to be considered when deciding a number of procedural matters, including an order granting an adjournment. Subsection (1) requires that the Court act in accordance with the dictates of justice. Subsection (2) identifies factors relevant to determining what are the dictates of justice in a particular case. Among such factors are consideration of the degree to which the respective parties have complied with directions or orders of the court (cf s 56(3)) and the degree of injustice that would be suffered by the respective parties as a consequence of any order granting an adjournment.
In the context of litigation of the present kind, where the principal proceedings have been brought by a public authority, presumed to be acting in the public interest, it seems to me that one must take into account what might generally be described as the degree of injustice to the public occasioned by delay in complying with orders, the purpose of which address matters of local amenity and public health. So also is it relevant to consider the integrity of the court processes when addressing an application to adjourn proceedings in which the party against whom an order has been made and who acknowledges that the requirements of the order have not been met.
The application of provisions similar to those in the Civil Procedure Act to which I have referred, have been authoritatively considered by the High Court in Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; 239 CLR 175. The Chief Justice there said at [5]:

“In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered soley by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”

Those observations are apt to be applied in the present case. They informed my decision to refuse the adjournment sought by Mr Jacobs. Applying them to the circumstance of that application, the matters that I considered relevant include:

this is the second occasion upon which Mr Jacobs’ motion has been fixed for hearing and in respect of which an adjournment has been sought;

the issue to be determined on the motion is relatively narrow and certainly straightforward, namely whether in the exercise of the Court’s discretion further time should be given to Mr Jacobs to remove waste material scattered around the Premises;

Mr Jacobs was sufficiently able to rely upon his own resources in preparing the notice of motion, an affidavit in support of it, subsequently attending the Registrar’s List at the directions hearing and later still, representing himself in moving, by further motion, to vacate the hearing;

as I have already noted, the absence of his intended legal advisor from any stage of this hearing suggests, at the very least, that the continued retainer of that advisor is uncertain; and

Mr Jacobs has already had two legal firms represent him with two different counsel appearing at different times. He is in dispute with the solicitors representing him at the time at which the orders were made and stated in clear terms yesterday that he no longer wished to continue the retainer of his second solicitor.

Further, the uncontested evidence before me demonstrates that there is a considerable volume of waste material deposited in the front and side yards of the Premises. Those Premises are located within a residential area, with the prospect that the height and volume of material is both unsightly and potentially harbours vermin and insects.
Having regard to these matters, it seemed to me that granting an adjournment to the present motion would not be consistent with the efficient disposal of the business of the Court, nor the efficient use of available judicial resources. The dictates of justice do not require that a further opportunity be afforded to Mr Jacobs to seek further legal representation having regard to the history of this litigation.
Having so determined to refuse the adjournment, I have proceeded to hear and determine Mr Jacobs’ motion.
Order 1(b) required the removal of accumulated waste, including recyclable material, from the front yard and driveway of the Premises “to a lawful waste facility or covered storage building on the Premises”. Removal of those materials was required to be completed by 31 August 2015. The term “waste” was defined in paragraph 10 of the Court’s orders. The motion sought to extend time for compliance with this order to 30 November 2015.
Order 1(c) required the removal of accumulated waste, “including recyclable material and unregistered motor vehicles” from external areas of the Premises that included “underneath sheds and buildings and between the buildings and side boundaries”. The waste and items included in that order were required to be removed to a lawful waste facility or within a covered storage building on the premises by 31 October 2015.
By his motion, Mr Jacobs sought to extend the time for compliance with Order 1(c) to 31 January 2016. He also sought the deletion from that order of any reference to “unregistered motor vehicles”.
The extensions of time sought by Mr Jacobs would necessitate, as he acknowledged, amendment to Orders 3, 4 and 5 of the orders made on 22 May. Orders 3 and 5 authorised the Council to enter the premises and remove waste in the event that Orders 1(a), 1(b) and 1(c) had not been complied with by the respective dates nominated in those orders. The only other precondition of the Council entering the Premises to remove waste was that seven days’ notice be given to Mr Jacobs of its intentions so to do. Order 4 entitled officers of the Council to enter the Premises for the purpose of inspection after 31 October 2015 upon giving Mr Jacobs 48 hours notice of an intention so to do.
The evidence adduced by Mr Jacobs was principally directed to his reasons for non-compliance with Orders 1(b) and 1(c) to date. He gave oral evidence and tendered documents directed to his own state of health which included both physical limitations as well as psychological assessment and treatment that he had received for depression.
His evidence also demonstrated the time that he has been devoting to his mother for whom he regarded himself as being the principal carer, although she is a resident in a nursing home. I accept his evidence that there is a deep and abiding emotional attachment to his mother. She apparently suffers a degenerative condition that makes dealing and communication with her somewhat of an ordeal. He attends the nursing home where his mother is a resident every second day and, I infer, spends a considerable part of those days with her.

The time spent with and visiting his mother is part of the evidence upon which Mr Jacobs relies to explain his failure to attend to compliance with the Court’s orders. He also identified litigation associated with his mother’s condition which has involved appearances before the Guardianship Tribunal.
Mr Jacobs also says that time spent in attending to the present proceedings has been considerable, including his attendances upon the solicitors who, until yesterday, were retained by him. He acknowledges that since 23 July last, when removal of unregistered motor vehicles from the front yard and driveway of the Premises was completed in accordance with the requirement of Order 1(a), the only work he has undertaken to comply with Orders 1(b) and 1(c) has been the removal of five lawn mowers and a narrow band of clay that was placed in the front yard.
Relevant to the discretion that I am required to exercise in considering Mr Jacobs’ motion, very little evidence has been provided to demonstrate the capacity that Mr Jacobs has to undertake the work required by the outstanding orders within the new time frame that he now propounds. As I have earlier recorded, by his motion, Mr Jacobs sought an extension of time to comply with Order 1(b) until 30 November. In an affidavit prepared by his former solicitor and sworn on 10 November, he states that he would be able to comply with that order by 4 December 2015. However, in the course of the present hearing, he stated that he would need “another month” to remove the material that is the subject of that order. When asked about the time for compliance with Order 1(c), he responded by indicating that as the original orders had allowed him a period of two months between compliance with Order 1(b) and Order 1(c), that same time difference was required so that a further two months after complying with Order 1(b) would be required. That response suggested to me that no fixed plan was in place and that compliance with any further date that might be nominated was, to say the least, fluid.
The only evidence offered by Mr Jacobs as to his capacity to comply with the orders, should the time for compliance be extended, was his purchase of a tow truck, essentially to remove the unregistered motor vehicles that were the subject of Order 1(a), and the purchase of a utility and a van that would be used for the purpose of transporting the materials from the premises over time. He stated that he had acquired a storage facility located on the mid-north coast of New South Wales, the journeys to which from the Premises occupied five or six hours in each direction, a circumstance that he said further explained the limitations upon his ability to remove materials from the Premises in a timely manner. He described the vehicles that he had acquired as “the resources” available to him to comply with the orders.
However, the evidence from Mr Jacobs himself acknowledges that all of those resources were available to him in June and July last. Clearly, they have not been utilised for the past four months in order to comply with the outstanding orders. His explanation for that failure was summarised in the final submissions that he made to me.
First, he submitted that these proceedings had been founded upon an order given to him by the Council in in the form of order 22A in the Table to s 124 of the Local Government Act 1993 (NSW). The requirements of the Council’s order had not been observed because of “family health issues that were at play”. I take that to be a reference both to his own medical condition and that of his mother.
Second, he stated that there were too many stresses and pressures applied to him in seeking to meet the requirements of the Council and at the same time addressing other matters that were burdening him. As a consequence, so he submitted, he was suffering depression that had limited his physical capacity to carry out the work required by the orders.
Third, he identified his own physical ailments affecting his capacity to perform the physical tasks necessary to remove the waste and other materials that were required to be removed from the Premises to address the Court’s orders. However, he did acknowledge that he had been able to remove the unregistered motor vehicles from the Premises using “mechanical devices” to lift materials from the ground onto the rear of a truck or trailer thereby limiting the physical pressure that would otherwise have been imposed upon him.
Fourth, he complained, although later withdrew the complaint, that the Council had not offered him assistance in meeting his obligations to clear the Premises of waste and accumulated materials. When asked what assistance he thought the Council might have provided he could only suggest a need for forbearance in pressuring him to comply.
Finally, he identified his distraction from obedience to the Court’s orders by referring to his involvement in the proceedings concerning his mother before the Guardianship Tribunal.
I accept, as I have already indicated, not only that there is a strong emotional attachment that Mr Jacobs has towards his mother, but also that there are both physical and perhaps psychological factors that inhibit his capacity to address Orders 1(b) and 1(c). Neither his evidence nor his submissions identify any realistic prospect that if the time for compliance with those orders is extended as he requests, the work will be undertaken and completed by the dates sought.
I have earlier referred to the terms of Orders 3 and 5 made on 22 May whereby the Council is able to enter the property and remove materials that are the subject of the orders, in the event of a failure to comply by the stipulated dates. It seems to me that it would be in the interests not only of the public, represented by the Council, but also in the interest of relieving Mr Jacobs of at least one of the pressures that clearly bear upon him, if those orders are allowed to take their course. Clearly, Orders 3 and 5 are presently able to be implemented by the Council because compliance by the dates nominated in Orders 1(b) and 1(c) has not occurred.
If the latter orders are implemented by the Council, as it has indicated it wishes to do, it will be required, as a public authority, to act reasonably and to incur only such costs as are reasonable in giving effect to those orders. Moreover, the requirement that the Council is to give Mr Jacobs seven days’ notice of the intention to implement Orders 3 and 5 would provide to Mr Jacobs the opportunity to identify those materials that he considers to be of value to him, set them aside and either remove them himself or come to an agreement with the Council as to their removal other than to a licensed waste facility.
Although he may not see it this way, it seems to me, for the reasons that I have stated, that by refusing to make orders in accordance with those sought by Mr Jacobs in his notice of motion, the self-help mechanism available to the Council may well reflect a benefit to him.
As no case has been made out by Mr Jacobs persuading me that I should exercise a discretion to extend the time for compliance with Orders 1(b) and 1(c), the notice of motion will be dismissed. By reference to the terms of Order 7 of the orders made on 22 May last, “sufficient cause” has not been shown such as to vary the time for compliance with the Orders.
The orders that I make therefore are as follows:

Grant leave to Michael Vassili to cease acting for the Applicant on the notice of motion filed on 1 September 2015, effective immediately.

Give leave for Mr Vassili to file and serve a Notice of Ceasing to Act for Mr Jacobs notwithstanding the requirements under r 7.29(2) of the Uniform Civil Procedure Rules 2005.

The notice of motion filed by the Applicant on 1 September 2015 is dismissed.

Exhibits, apart from Exhibit B, may be returned.

Stand over the proceedings to the Registrar’s List on Friday 4 December 2015 for the purpose of giving directions and fixing a date for hearing to determine the orders to be made for costs of the principal proceedings.

**********

Decision last updated: 15 December 2015

Medium Neutral Citation:	Hurstville City Council v Jacobs (No 3) [2015] NSWLEC 194
Hearing dates:	24, 25 November 2015
Date of orders:	25 November 2015
Decision date:	25 November 2015
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Grant leave to Michael Vassili to cease acting for the Applicant on the notice of motion filed on 1 September 2015, effective immediately. 2. Give leave for Mr Vassili to file and serve a Notice of Ceasing to Act for Mr Jacobs notwithstanding the requirements under r 7.29(2) of the Uniform Civil Procedure Rules 2005. 3. The notice of motion filed by the Applicant on 1 September 2015 is dismissed. 4. Exhibits, apart from Exhibit B, may be returned. 5. Stand over the proceedings to the Registrar’s List on Friday 4 December 2015 for the purpose of giving directions and fixing a date for hearing to determine the orders to be made for costs of the principal proceedings.
Catchwords:	PRACTICE AND PROCEDURE – motion to extend time to comply with consent orders – application for adjournment refused – no sufficient cause shown to vary the time for compliance with consent orders – degree of injustice to the public – integrity of court processes – motion dismissed
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