Lane Cove Council v Ross (No 10)

[2013] NSWLEC 79

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 10) [2013] NSWLEC 79
Hearing dates:	29 May 2013
Decision date:	29 May 2013
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Application to re-open evidence refused.
Catchwords:	PROCEDURE: application to re-open evidence to tender transcript of related proceeding - no explanation for delay and failure to initially adduce evidence - application refused.
Legislation Cited:	Civil Procedure Act 2005, ss 56-60 Environmental Planning and Assessment Act 1979, s 96
Cases Cited:	Ross v Lane Cove Council [2012] NSWLEC 1364 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Mr Raymond Ross (Respondent)
Representation:	Mr N Eastman (Applicant) Mr R Ross (in person) (Respondent) Pikes & Verekers Lawyers (Applicant) N/A (Respondent)
File Number(s):	40628 of 2012

Ex Tempore Judgment

Mr Ross Seeks to Re-Open His Evidence on His First Application for an Adjournment

1. This is an application by Mr Ross to re-open his evidence on his first application for an adjournment at the start of the resumed hearing of part-heard Class 4 proceedings. Mr Ross seeks to put before the Court in support of his application, the transcript of Class 1 proceedings that took place before Dixon C in a related appeal against a refusal by Lane Cove Council ("the council") to grant a s 96 modification application under the Environmental Planning and Assessment Act 1979 ("the EPAA") (Ross v Lane Cove Council [2012] NSWLEC 1364).

1. In considering this application I have had regard to the principles contained in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 (at [10]-[15])) and ss 56-60 of the Civil Procedure Act 2005. I have also had regard to the fact that Mr Ross is now self-represented.

1. The application is refused principally on the basis of the delay. It is simply too late on the final day allocated for these part-heard Class 4 proceedings (fixed for three days), and day two of this adjournment application, to seek to tender evidence, which was not, as it could and should have been, annexed to any of the affidavits that Mr Ross has relied upon in support of this and other applications in these proceedings. For example, the transcript could have been annexed to the latest affidavit of Mr Ross which was filed in Court on 27 May 2013. I note that Mr Ross does not even have a copy of the transcript that he seeks to tender with him in Court.

Order

1. The application to re-open is therefore refused.

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