Jacobs v Hurstville City Council

[2009] HCATrans 190

[2009] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S102 of 2009

B e t w e e n -

KEVIN ROY JACOBS

Applicant

and

HURSTVILLE CITY COUNCIL

Respondent

Application for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 12 AUGUST 2009, AT 10.03 AM

Copyright in the High Court of Australia

MR K.R JACOBS appeared in person.

MS J.A. HEWITT:   Your Honour, I appear for the respondent.  (instructed by HWL Ebsworth Lawyers)

HIS HONOUR:   Ms Hewitt, can I ask you two questions.  Firstly, what is the Council’s attitude to this application today?

MS HEWITT:   My instructions are that the Council neither opposes or consents and says it is a matter for the Court, your Honour, in relation to the reinstatement application.

HIS HONOUR:   Right.  The second thing is, am I right in thinking that Council has removed this material from the property, that it has happened?

MS HEWITT:   Yes, the Council has undertaken the works in accordance with the orders of Justice Biscoe in the Land and Environment Court.  So the offending material has been removed.

HIS HONOUR:   So what is left for the dispute?

MS HEWITT:   Well, we say there is nothing left in dispute.  The Council did have some contempt proceedings on, but has sought to have that motion dismissed so it is not pressing any orders for contempt in the Land and Environment Court.  So we say there is basically no utility in any further litigation in this matter because the work has been done.

HIS HONOUR:   Right, thank you.  Well, Mr Jacobs, what is the use for you in pressing on here?

MR JACOBS:   I believe we are more advanced as Ms Hewitt has allured to.  The appeal in the Court of Appeal was a judgment of Justice Biscoe of 5 August dismissing my notice of motion to vacate the hearing date of 5 August.

HIS HONOUR:   Yes, but, Mr Jacobs, we have to get down to the practicalities.  The practicalities are this dispute seems to be all about the Council’s requirement, which you dispute, to remove this material.  It has been removed.  Why would this Court get involved in the dispute?  We have a lot of cases to deal with.

MR JACOBS:   I believe it was illegitimate that the materials were removed from my property because they were ‑ ‑ ‑

HIS HONOUR:   Assume it was, what happens then?

MR JACOBS:   Well, I believe I should be compensated.

HIS HONOUR:   You would not get that by relief in this Court in this application you have.  You see what I mean.

MR JACOBS:   Yes.  It has a very long history.

HIS HONOUR:   I know, I have been looking at the file.

MR JACOBS:   And I believe it should never have gone to the Land and Environment Court.

HIS HONOUR:   You might be right about that, too.

MR JACOBS:   Because I had removed the materials but unfortunately the Council kept moving the goalpost further and further away until it was absolutely unattainable to satisfy the Council and in doing that the Council issued more orders on me to do other works at the same time.  So it just became ‑ ‑ ‑

HIS HONOUR:   I understand all of that and I understand why you are very involved in the dispute, but just stand back and look at it for a minute.  Why would this Court get involved at this stage when the practicalities seem to be as they have been indicated by the Council’s representative this morning?

MR JACOBS:   I believe I have been persecuted and it is Australian law to protect the smaller person from larger corporations.

HIS HONOUR:   All right.  Now, is there anything else you want to say on your application which is to restore your matter because you have not complied with the requirements of the Rules?

MR JACOBS:   I had complied with the specified rules ‑ ‑ ‑

HIS HONOUR:   You have to file a written case and a draft notice of appeal.

MR JACOBS:   ‑ ‑ ‑ filing the written case because I had fractured my ribs so I was incapacitated.

HIS HONOUR:   Yes, I follow that, but how soon would you do that?

MR JACOBS:   Within 28 days.  I am actually waiting for transcripts from the Supreme Court.  I ordered them quite late because of financial situation.

HIS HONOUR:   There is also a problem, is there not – there were three summonses you had in the Supreme Court?

MR JACOBS:   Yes.

HIS HONOUR:   I think your documents at the moment only deal with one.

MR JACOBS:   I was of the opinion that they should not have been combined.

HIS HONOUR:   Well, you may, but all I am saying to you is you have to get it in proper order.  If I am going to give you a permission to, an indulgence to do this out of time, you have to do it in proper order.

MR JACOBS:   Well, I believe it is in proper order.

HIS HONOUR:   I do not think it is and it is my view that matters.  You have to get it in order and you have to apply for the whole three matters.

MR JACOBS:   In one go?

HIS HONOUR:   Yes.

MR JACOBS:   Well, there are three separate applications in the Supreme Court.

HIS HONOUR:   I am not debating it with you.

MR JACOBS:   And there were three separate fees paid and unbeknownst to myself the Council’s solicitor and the registry got together and combined the three together.  There was a period of two weeks basically between the ‑ ‑ ‑

HIS HONOUR:   We cannot go back into all of that, Mr Jacobs.  If you want to get an indulgence from the Court you have to get your record in proper order.  I am telling you to get it in proper order.  It has to be amended as I have indicated.  If you have any difficulties with that discuss it with our Registrar who is a very helpful person and it has to be done within 28 days.  If it is not done according to the requirements of the Rules, that will be the end of it.

MR JACOBS:   Twenty eight days from today?

HIS HONOUR:   Yes.

MR JACOBS:   Yes.  So 30760, 30780 and 40 has to be grouped together.

HIS HONOUR:   So pursuant to rule 41.10.4, I make an order that the application for special leave be deemed not to be abandoned on terms that within 28 days of today the steps spelled out in rule 41.10.4 are taken.  Do you understand that, Ms Hewitt?

MS HEWITT:   Yes, your Honour.

MR JACOBS:   Could you just restate that clause, please, your Honour?

HIS HONOUR:   Yes – 41.10.4.

MR JACOBS:   Yes.

HIS HONOUR:   So I am ordering that the application is deemed not to be abandoned provided that within 28 days of today the steps in rule 41.10.4 are taken.  The costs of the application today will be costs in the special leave application.  Having said all of that to you, Mr Jacobs – do you have a note of that – you really should think about what the Court has been putting to you about putting this dispute behind you.  I will not say any more.

MR JACOBS:   The issue is the property is worse than ever now because I was a quite substantial way towards the stormwater drainage work and the backfill, the PVC pipes and other equipment necessary to complete the work has been removed from the property and where the trenches were dug that fill was just tipped out willy‑nilly, which has exacerbated the weed problem.  It has just spread it even further and further to that my two lawnmowers were taken from the property.  They were there to maintain the vegetation and they were removed from the property.

HIS HONOUR:   I am not going to get into any more detail, Mr Jacobs, but I just make that order.  All right.

MR JACOBS:   Thank you, your Honour.

AT 10.11 AM THE MATTER WAS ADJOURNED