Jeffrey v Canterbury-Bankstown Council

[2021] NSWLEC 15

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jeffrey v Canterbury-Bankstown Council [2021] NSWLEC 15
Hearing dates:	16 February 2021
Date of orders:	16 February 2021
Decision date:	16 February 2021
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [11]
Catchwords:	REVIEW OF REGISTRAR’S DECISION - unavailability of counsel for the Applicant - matter set down for hearing on a date when the Applicant’s counsel was not available - reason for unavailability of counsel not given to Assistant Registrar - Applicant’s counsel not available as undertaking a two-week hearing in the Federal Court on a pro bono basis - matter of policy appropriate to support barristers undertaking pro bono briefs - no prejudice to Applicant or Respondent if hearing delayed - appropriate to vacate hearing date set by the Assistant Registrar - new hearing date convenient to counsel for both parties allocated
Legislation Cited:	Land and Environment Court Act 1979, s 56A
Category:	Procedural rulings
Parties:	Vanessa Jeffrey (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Mr M Seymour, barrister (Applicant) Mr M Bonanno, solicitor (Respondent) Solicitors: CLS Legal (Applicant) Canterbury-Bankstown Council (Respondent)
File Number(s):	346861 of 2020
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: On 7 and 8 October 2020, Acting Commissioner Clay heard a Class 1 appeal in these proceedings. On 25 November 2020, the learned Acting Commissioner gave a reasoned decision - at the end of which he concluded that it was appropriate that the Applicant’s appeal be dismissed and that the development application for a change of use at 605 Canterbury Road, Belmore to be used as a funeral home be refused. The proponent of that development, Ms Jeffrey, has appealed pursuant to s 56A of the Land and Environment Court Act 1979 against the Acting Commissioner’s decision.

2. Mr Seymour of counsel has had an involvement in these proceedings with respect to this proposed development since mid-2019.

3. The matter was listed for directions before the Assistant Registrar. During the course of this directions hearing, the Assistant Registrar set the matter down for final hearing on 13 April 2021. During the course of that directions hearing, Mr Seymour did not represent the Applicant, but Mr Poisel of counsel did on that occasion.

4. I have an affidavit from Mr Bonanno, solicitor for Canterbury‑Bankstown Council (the Council), which deposes to the brief conversation which took place before the Assistant Registrar at that time. The question of Mr Seymour’s availability was raised when a date in June or July 2021 was sought for the matter.

5. The Assistant Registrar, consistent with the general practice of this Court, declined to take the question of availability of counsel as an appropriate matter to permit a lengthy deferral of what would otherwise be a one‑day hearing.

6. The Applicant in the Class 1 proceedings has sought a review of the Assistant Registrar’s decision. As the review is not an appeal, I am not seeking to find fault in what the Assistant Registrar did on the occasion that the matter was before her. What I am undertaking is a hearing on the information that is now available to me as to whether, on review, I should make some differing order to that which was made by the Assistant Registrar.

7. I am advised by the affidavit of Mr Johnathon Perkins, solicitor (an affidavit read on behalf of the Applicant), that the reason for Mr Seymour’s unavailability on dates that encompass the hearing date that was set by the Assistant Registrar is that he is undertaking a two‑week hearing in the Federal Circuit Court where he is appearing pro bono.

8. I am satisfied that, as a matter of policy, it is desirable to the extent reasonably possible that this Court encourage and take account of members of the private Bar who are prepared to undertake trials on a pro bono basis – particularly as, in this case, it is a lengthy trial being undertaken on a pro bono basis. That matter was not drawn to the attention of the Assistant Registrar on the date when she set the matter down for hearing on 13 April 2021.

9. I am satisfied, under all the circumstances, that it is appropriate to endeavour to accommodate Mr Seymour, as a matter of public interest, given that Mr Seymour’s client does not press that there is any particular prejudice that arises if the matter is deferred for sufficient period of time to also enable the Council’s counsel to be accommodated. There is no prejudice to the Council if I do so.

10. I have discussed with Mr Seymour and Mr Bonanno what might be a mutually available earliest date able to be accommodated in the Court’s diary. That date is 30 June 2021, a date currently advised to me as available (but a date that will need to be confirmed with the Listings Manager by the parties). I am therefore satisfied that it is appropriate to vacate the presently listed hearing date of 13 April 2021 and tentatively set the matter down for hearing on 30 June 2021 - subject to confirmation with the Listings Manager.

11. I therefore make the following orders:

1. The hearing listed for 13 April 2021 is vacated;

2. The matter is listed for hearing on 30 June 2021, commencing at 10.00 am by Microsoft Teams (subject to being confirmed with the Listings Manager); and

3. The parties are to settle revised timetabling orders leading up to the hearing on 30 June 2021.

12. The first of those timetabling orders should be that such timetabling orders as have already been made for preparation for a hearing on 13 April 2021 are vacated. If the timetabling orders are provided to my Associate today, I will make those orders in chambers.

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Decision last updated: 24 February 2021