Jarvie v Hawkesbury City Council
[2013] NSWSC 1636
•07 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Jarvie v Hawkesbury City Council [2013] NSWSC 1636 Hearing dates: 7 November 2013 Decision date: 07 November 2013 Jurisdiction: Common Law Before: Price J Decision: I grant leave to the plaintiff to discontinue the whole of these proceedings. The proceedings are discontinued. The plaintiff is to pay the defendant's costs as agreed or assessed.
Catchwords: APPEAL FROM LOCAL COURT - notice of discontinuance filed without consent of other party or with leave of the court - other party's consent to discontinuance provided to the court - order as to costs. Legislation Cited: Uniform Civil Procedure Rules 2005 r 12.7 Category: Interlocutory applications Parties: Russell Alan Jarvie
Hawkesbury City CouncilRepresentation: Solicitors: Mr S Dixon (respondent)
Mr R Jarvie (applicant) No appearance
File Number(s): 2012/370906
Judgment
His Honour: By way of a summons filed on 28 November 2012 Russell Alan Jarvie, the plaintiff, appealed against the judgment of Pinch LCM, delivered in the Local Court at Windsor on 31 October 2012. For present purposes, it is unnecessary to recount all of the journey that this appeal has taken in this Court, but it is appropriate to refer to the proceedings before Davies J on 17 September 2013.
The Hawkesbury City Council, the defendant, sought, by way of a notice of motion, an order that the appeal be struck out pursuant to rule 12.7 Uniform Civil Procedure Rules 2005. Whilst Davies J understood the Council's frustration, because of the very slow progress of the appeal, his Honour did not consider that the plaintiff's dilatory behaviour should deprive him of a hearing of the appeal. His Honour directed that the parties were to take the earliest convenient date for hearing, on the basis that it would take half a day, and was to proceed on any evidence filed to that time, but including the transcript of the Local Court proceedings. The plaintiff was ordered to pay the Council's costs of the motion. The appeal was subsequently listed for hearing before me today.
On 4 November 2013, the plaintiff filed a notice of discontinuance in which he states inter alia (at par 2):
"Each active party consents to the discontinuance.
This notice of discontinuance has been filed with the leave of
the court granted on 4th November 2013."
The notice of discontinuance will be marked exhibit A.
Enquiries with the registry of the court and interrogation of JusticeLink do not disclose any grant of leave to the plaintiff to file the notice of discontinuance. Furthermore, Mr Dixon, who appears on behalf of the Council, told me that the notice of discontinuance was not consented to nor was it signed on behalf of the Council.
The notice of consent, on the second page of the document, purports to contain the signature of the legal representative of Council, which is egregiously similar to the signature that appears as that of the plaintiff. Speaking frankly, the filing by the plaintiff of this notice of discontinuance appears to amount to an abuse of process.
However, the position taken by the Council is eminently reasonable. The Council is prepared to consent to the proceedings being discontinued provided there is an amendment to the terms of the costs order referred to in paragraph number six, under "Terms of Discontinuance" that "the plaintiff pay the defendant's agreed costs of the appeal." Mr Dixon asks, on behalf of the Council, that the proposed order be amended to "The plaintiff is to pay the defendant's costs as agreed or assessed".
I make the following orders:
1. I grant leave to the plaintiff to discontinue the whole of these
proceedings.
2. The proceedings are discontinued.
3. The plaintiff is to pay the defendant's costs as agreed or assessed.
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Decision last updated: 08 November 2013
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