Jonathan v Kyogle Council
[2011] NSWLEC 223
•25 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Jonathan v Kyogle Council [2011] NSWLEC 223 Hearing dates: 25 November 2011 Decision date: 25 November 2011 Jurisdiction: Class 1 Before: Biscoe J Decision: Proceedings dismissed.
Catchwords: Dismissal of proceedings for want of prosecution Legislation Cited: State Environmental Planning Policy No 15 Rural Land Sharing Communities, cl 7(1)(f) Category: Principal judgment Parties: Jonathan (Applicant)
Kyogle Council (Respondent)Representation: COUNSEL:
N/A (Applicant)
Mr J M Atkin (Respondent)
SOLICITORS:
N/A (Applicant)
Walters
File Number(s): 10008 of 2011
EX TEMPORE Judgment
These proceedings are an appeal by "Jonathan" against a refusal by the respondent, Kyogle Council, of a development application. The proceedings are part heard before a Commissioner and are listed on 5 and 6 December 2011 for further hearing.
I am now dealing with the council's notice of motion for an order that the Application be dismissed for want of prosecution; that the applicant pay the council's costs of the proceedings on an indemnity basis or such other basis that the Court determines; and that the council's costs be assessed in the amount of $136,000.
BACKGROUND
The proceedings were commenced in Class 1 of the Court's jurisdiction on 6 January 2011. The development application which the council refused was for 22 developments and one community building on a property owned by the applicant at 1411 Afterlee Road, Eden Creek. The property comprises about 80 hectares.
The council contended that the development was not permissible by reason of cl 7(1)(f) of State Environmental Planning Policy No 15 Rural Land Sharing Communities . This gave rise to a preliminary issue raised in a motion by the council. The applicant then elected to amend his application by deleting access through wildlife refuges.
Following a number of subsequent amendments to the plans between April and August 2011 (not all of which were undertaken with leave of the Court), the applicant provided on 23 August 2011 a plan on the express basis that it was his final plan. The applicant then proceeded to hearing without any evidence in support of that final plan.
At the hearing, which commenced before a Commissioner on 12 October 2011, the applicant sought to rely on a new plan that had been attached to one of the expert reports filed and served by him in the preceding week without seeking to amend the 23 August 2011 "final plan" or his application before the Court. The existence of this plan only became apparent on a reading of the expert report served by the applicant.
The applicant's request at the hearing to rely on that further plan was rejected. The applicant then sought an adjournment of the hearing which was granted. The applicant, by notice of motion dated 20 October 2011 then sought to "amend" the plan of 23 August 2011, but he did not by that motion seek to rely on the plan served during the week preceding the hearing (and which he had sought to rely on at the hearing) but relied on a further plan which, as the Commissioner found on 3 November 2011, was a completely new application.
To date the applicant has not provided any evidence in support of the plan before the Court of 23 August 2011.
The only material or evidence served by the applicant is either in support of the original development application plan (which has since been amended several times and which seems to have been preliminary in nature) or is contained in expert reports which address the plan first served during the week preceding the hearing. There has never been any application by the applicant to rely on the latter plan.
The Commissioner listed the matter before the Registrar for directions for the future conduct of the hearing at a telephone callover on 7 November 2011. At that callover the applicant said:
"I do not consent to be a party to these proceedings, even though I began them. I am a citizen of the Free State of Australia. I have seceded from the State of New South Wales and am no longer subjected to the laws of New South Wales. This Court has no jurisdiction. The matter raised by council will go before the Common Law Court of the Free State in March 2012. I believe council will be notified of the hearing date and I'm adding this, because it's not been written for me, that the Land and Environment Court will have what I am saying in writing as well."
Shortly thereafter, the applicant terminated his call during the course of the telephone callover. The Registrar proceeded to list the part-heard proceedings for hearing on 5 and 6 December 2011.
On 8 November 2011 the council's solicitors wrote to the applicant referring to the comments that he had made at the callover and notifying him that after he had terminated his call the Registrar had listed the part heard proceedings for hearing on 5 and 6 December 2011. The solicitors sought confirmation that he would attend Court to continue with his application. They said that if he did not give such confirmation, they would file a notice of motion for dismissal of the proceedings due to lack of prosecution and would seek costs.
The applicant replied by email on 11 November 2011. He said that, to be clear, he was not participating in the current proceedings or council process any further. He said that the matter had been listed for hearing in March 2012 in a Common Law Court convened by the citizens of the Free State of Australia, which is a religious State founded under s 115 of the Commonwealth Constitution.
A letter dated 11 November 2011 was received by the council from the "Free State of Australia" It is not entirely clear but it is likely that it was sent by the applicant. The letter stated that the applicant was a citizen of the Free State of Australia, a religious State within the territory of Australia. It stated that this Court does not have jurisdiction and is not in a position to make orders against a citizen of the Free State of Australia; that any purported order by the Court is not enforceable; and that should any attempt be made to enforce a purported order, those responsible will be liable before the Common Law Court of the Free State of Australia for charges not limited to trespass, kidnapping, assault and treason. The letter stated that the applicant had seceded from the State of New South Wales. The letter stated that the Free State of Australia Registry of Common Law will soon serve the appropriate documents that the council appear before the Common Law Court in March 2012.
On 16 November 2011, the Assistant Registrar of this Court wrote to the applicant notifying that the matter was listed for continuation of the hearing on 5 and 6 December 2011 before the Commissioner and that if he did not appear the respondent may seek orders in his absence that the proceedings be dealt with on the evidence currently on the file or that the proceedings be dismissed. The letter also said that if he did not appear the Court may determine the matter in his absence and he may be subject to a costs order. The letter suggested that he communicate with the council in an attempt to resolve the matter to avoid having to proceed on 5 December 2011.
By email dated 23 November 2011 to the Registrar, the applicant complained in general terms about the conduct of the council and the Court. He wrote that he had no money left to attend the hearing on the council's motion for dismissal and to present arguments for mitigation or refusal of a costs order. He said that he could not afford the costs of filing a further motion to discontinue and did not oppose the council's motion to dismiss his proceedings. He also alleged that he had been so traumatised by certain events that he was not of sufficiently sound mind to attend the hearing today. He requested that the issue of costs be held over for some reasonable time for him to recover from the traumas. He said that he disagreed with the council's current quantum of costs in the matter.
CONCLUSION
This is an unusually clear case of want of prosecution. Clearly, the applicant has no intention of prosecuting the proceedings any further. Indeed, he does not object to dismissal of the proceedings. The council will incur ongoing costs unless the proceedings are dismissed now. In my opinion, the proceedings should be dismissed for want of prosecution.
In view of the matters that have been put by the applicant relating to costs, I propose to reserve costs and fix a date for hearing of the costs issue. The council does not oppose that course.
ORDERS
The orders of the Court are as follows:
1. The proceedings are dismissed.
2. Costs are reserved
3. A date for hearing of the costs issue is fixed for 13 February 2012.
4. Directions re the costs issue as follows:
(a) The council is to file and serve any further evidence and submissions relating to costs by 9 December 2011.
(b) The applicant is to file and serve any evidence and submissions relating to costs by 13 January 2012.
(c) The council is to file any evidence in reply and any submissions in reply by 27 January 2012.`
Decision last updated: 30 November 2011
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