Lane Cove Council v Ross (No 12)

[2013] NSWLEC 82

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lane Cove Council v Ross (No 12) [2013] NSWLEC 82

Hearing dates:

27, 28 and 29 May 2013

Decision date:

29 May 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Application for adjournment refused with costs.

Catchwords:

PROCEDURE: application for adjournment of part-heard proceedings - current related Class 1 proceeding before the Court - absence of legal representation - medical condition - adequacy of medical evidence - application refused with costs.

Legislation Cited:

Civil Procedure Act 2005, ss 55-60

Environmental Planning and Assessment Act 1979, ss 76A(1), 96, 124, 149F

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Jeray v Blue Mountains City Council [2011] NSWLEC 218

Lane Cove Council v Ross [2012] NSWLEC 153

Lane Cove Council v Ross (No 2) [2012] NSWLEC 160

Lane Cove Council v Ross (No 3) [2012] NSWLEC 171

Lane Cove Council v Ross (No 4) [2012] NSWLEC 191

Lane Cove Council v Ross (No 5) [2013] NSWLEC 17

Lane Cove Council v Ross (No 6) [2013] NSWLEC 74

Lane Cove Council v Ross (No 7) [2013] NSWLEC 76

Lane Cove Council v Ross (No 8) [2013] NSWLEC 77

Lane Cove Council v Ross (No 9) [2013] NSWLEC 78

Lane Cove Council v Ross (No 10) [2013] NSWLEC 79

Lane Cove Council v Ross (No 13) [2013] NSWLEC 80

Palerang Council v Banfield [2012] NSWLEC 85

Ross v Lane Cove Council [2012] NSWLEC 1364

Category:

Principal judgment

Parties:

Lane Cove Council (Applicant)
Mr Raymond Ross (Respondent)

Representation:

Mr N M 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 Makes Another Application to Adjourn the Proceedings

1. On the first day of a three day resumed part-heard hearing in Class 4 proceedings, Mr Ross, appearing for himself, made an application to adjourn the continuation of the proceedings on the following seven grounds:

(a) first, Lane Cove Council ("the council") had breached an essential term of an alleged agreement reached with him and the Court on 13 August 2012, namely, that the Class 4 proceedings would not proceed until a merit application of the development had been finally determined. It was for this reason that Mr Ross had earlier consented to prayers for relief 1, 2 and 3 of the summons the subject of these proceedings made on that day (Lane Cove Council v Ross (No 4) [2012] NSWLEC 191). The council has reneged on its agreement and therefore these proceedings ought not continue;

(b) second, the Class 4 proceedings should not be determined until a related Class 1 building certificate appeal presently before the Court has been finalised;

(c) third, as a result of the agreement described above Mr Ross had not prepared any further defence of the proceedings and he is now prejudiced. Ms Melissa Benn, who, he told the Court, had been acting for him as his solicitor, told Mr Ross that he need not continue with the preparation of these proceedings;

(d) fourth, by reason of a change of ownership in the property, Mr Ross has been impeded in his capacity to make decisions concerning these proceedings. In addition, to make any further orders in the matter would be futile because the new ownership arrangements would prevent compliance with the orders and the Court could not look behind the change in ownership nor make orders against a non-party;

(e) fifth, until "late" on 24 May 2013, Mr Ross had been represented by Mr Rick O'Gorman-Hughes of counsel, instructed, he says, by Ms Benn. However, due to a dispute between himself and Ms Benn concerning the conduct of these proceedings, Ms Benn ceased to act for him, and as a consequence Mr O'Gorman-Hughes handed back his brief on that day because he would not accept a direct access brief. Accordingly, Mr Ross now found himself without legal representation at short notice and to continue the hearing in these circumstances would be unfair. In support of his claims, Mr Ross put before the Court an email from Mr O'Gorman-Hughes to himself, copied to "HP Legal", dated 24 May 2013 at 8.16am. The email stated:

Ray,

Please do not deposit funds directly into my account.

I will only continue to act if Melissa instructs me to. I have about an hour of additional work I can do before I hit the limit of her funds in trust.

Rick O'Gorman Hughes

Martin Place Chambers.

This followed a previous email sent on 24 May 2013 at 4.37am from "Ross Consulting" and signed "Ray", who I infer is Mr Ross, to Mr O'Gorman-Hughes, that relevantly stated:

I will arrange for funds to be deposited directly into Rick's account for today's work and Rick's time on Monday on a day by day basis if that is suitable. Rick, can you do this urgently please?

(f) sixth, the council had not properly served Mr Ross with evidence and submissions upon which it intended to rely during the continuation of the Class 4 proceedings, both by hard copy and by email as required by a previous Court order. Mr Ross submitted that this form of service was ordered by the Court at some earlier point in time in the proceedings when a person named "Mr Duncan Scott" was representing him in the proceedings; and

(g) seventh, Mr Ross is currently suffering from a migraine condition and on strong medication rendering him unable to continue to participate in the proceedings. Mr Ross tendered a medical certificate from Dr Deepika Malhotra which states, "Mr Raymond Ross is receiving medical treatment for the period 29/05/2013 inclusive. He will be unfit to continue his usual occupation." He also tendered a prescription for Panadeine Forte and Valium, signed by the same doctor and dated 29 May 2013.

1. The background to this application is contained in the following earlier judgments in this and related proceedings: Lane Cove Council v Ross [2012] NSWLEC 153; Ross v Lane Cove Council [2012] NSWLEC 1364; Lane Cove Council v Ross (No 2) [2012] NSWLEC 160; Lane Cove Council v Ross (No 3) [2012] NSWLEC 171; Ross (No 4); Lane Cove Council v Ross (No 5) [2013] NSWLEC 17; Lane Cove Council v Ross (No 6) [2013] NSWLEC 74; Lane Cove Council v Ross(No 7) [2013] NSWLEC 76; Lane Cove Council v Ross (No 8) [2013] NSWLEC 77; Lane Cove Council v Ross (No 9) [2013] NSWLEC 78; Lane Cove Council v Ross (No 10) [2013] NSWLEC 79 and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80.

1. From these judgments emerges a clear pattern of delay and obfuscation by Mr Ross in this matter. This application is, in my opinion, no exception.

Evidence of the Parties

1. Mr Ross relied on two affidavits in support of his application, the first sworn on 20 May 2013 for the purposes of an earlier adjournment application by him (heard on 22 May 2013: Lane Cove Council v Ross (No 6) [2013] NSWLEC 74), and the second sworn on 27 May 2013, filed in Court with leave.

1. Mr Ross also relied upon an outline of written submissions, that contained some evidentiary material. The relevance of paragraphs 1 to 19 of those submissions was not clearly established, but I have nevertheless given Mr Ross the benefit of the doubt and taken them into consideration. Paragraphs 20 to 36 were relevant, and I have taken them into account in determining this application. The remainder of the document, however, detailed matters that were not, in my opinion, relevant to the issues raised on the adjournment application. The list of authorities attached to the end of that document also did not appear to be germane to this application.

1. Mr Ross was cross-examined, the substance of which I will return to below.

1. The council relied on four documents tendered in the proceedings:

(a) a letter dated 12 April 2013 from Pikes & Verekers Lawyers, the council's lawyers, to Mr Ross which had enclosed, by way of registered post, the expert affidavits of Mr Kevin Leedow and Mr Kerry Nash, together with exhibits to Mr Nash's affidavit;

(b) an affidavit of Mr Raymond Ross sworn 10 August 2012 stating at paragraph four that the property was purchased with "family funds" and that due to a family dispute, as at that date, although he had purchased the property on 25 July 2007, registration of the transfer had been delayed;

(c) a file note of Mr Rajiv Shankar, a council officer, dated 22 May 2013. The file note detailed an attempt by Mr Shankar and other council officers to inspect the unlawful development on the property. Mr Ross refused Mr Shankar and the officers entry onto the property and told them that he was not the owner of the property; and

(d) a transcript of the proceedings before the Court on 13 August 2012 (that culminated in the decision in Ross (No 4)).

The Adjournment Application is Refused

1. The substance of the first and second grounds for an adjournment raised by Mr Ross was dealt with by me in Ross (No 6) and I rely on the reasons and findings contained in that judgment.

1. In short, there has already been, in my opinion, a merit assessment afforded to Mr Ross in these proceedings by way of the Class 1 appeal before Dixon C against the council's refusal to approve a s 96 modification application (Ross v Lane Cove Council). It was Mr Ross who chose to discontinue that appeal. That this did not resolve the matter satisfactorily to Mr Ross does not mean that there has been no merit assessment of the development. True it is that there is currently before the Court another Class 1 appeal, this time against the council's subsequent refusal to issue a building certificate in respect of the development, but given that the appeal against the refusal to issue the certificate was filed on 1 May 2013, after these proceedings had been set down for hearing in March 2013, the absence of an adequate explanation given for the delay in filing the Class 1 appeal means that I do not consider the extant Class 1 proceedings to be a sufficient reason to warrant the adjournment of these part-heard Class 4 proceedings. There is, moreover, nothing that cannot be put by Mr Ross in these part-heard Class 4 proceedings that would otherwise be raised in the pending Class 1 appeal. The Court's discretion to order relief in these proceedings under s 124 of the Environmental Planning and Assessment Act 1979 ("the EPAA") is as broad as it is under s 149F(3) of that Act.

1. Furthermore, I do not accept, on the evidence before me, that there was ever an agreement of the type asserted by Mr Ross, namely, that these proceedings would not, under any circumstances, proceed, absent a full merit assessment of the whole of the development, either by way of a s 96 modification application or by way of a building certificate application. In any event, as I have stated above, Mr Ross has had the benefit of a merit assessment already (see Ross (No 6)).

1. With the exception of costs, Mr Ross unequivocally consented to the orders made on 13 August 2012 granting declaratory and injunctive relief. He did so because this resulted in the adjournment of the proceedings for 90 days to allow a merit assessment of the impugned development by way of a s 96 modification application. In doing so, Mr Ross properly and candidly admitted on that day, that he had "no leg to stand on" in respect of the alleged breaches of s 76A(1) of the EPAA. Thus he admitted to breaching the EPAA and he consented to the making of orders 1, 2 and 3 of the summons (see Ross (No 4)) on this basis.

1. With respect to the change of ownership of the property, a fact that was acknowledged by the council, the material relied upon by the council and the cross-examination of Mr Ross strongly suggested that the change of ownership was a sham transaction to avoid the operation of any relief ordered by the Court under s 124 of the EPAA. For example, under cross-examination Mr Ross conceded that Ms Chami and Ms Edilbi were related (both have been put forward by Mr Ross as the new owner of the property), that the property was not sold in an arm's length transaction, and that it was sold for considerably less ($1 million) than its original purchase price (approximately $1.6 million).

1. I do not need to finally determine this issue for the purpose of this application, however compelling the evidence appears to be in support of the council's contention. Suffice it to say, that these are matters for submission, evidence and determination in the substantive part-heard Class 4 proceedings, relevant, as they are, to the exercise of the Court's discretion to order demolition and reinstatement, or some other form of relief consequent upon the breaches of the EPAA admitted by Mr Ross.

1. Mr Ross has given evidence in cross-examination that he will continue to carry out development works on the property. He has also admitted to being the person responsible for breaching the EPAA by engaging in development on the property outside the terms of the consent. This is sufficient to engage s 124 of the EPAA, to permit these resumed proceedings to continue, and to enable the relief sought by the council to be assessed.

1. That Mr Ross has not prepared his defence to these part-heard proceedings is his own fault. Mr Ross relies upon a claim that Ms Benn apparently told him that he did not need to do anything further in these proceedings. There is no objective evidence to verify any such communication between himself and Ms Benn and I do not accept that it occurred. Orders were made on 20 March 2013, sometime after the Class 1 appeal before Dixon C had been discontinued, for the filing of Mr Ross' evidence in these proceedings. That he has not complied with the timetable is his choice.

1. Mr Ross submitted that it was unfair that the Court made orders on 20 March 2013 in his absence. Mr Ross was present on the last occasion that the matter was before the Court on 27 February 2013 when the directions hearing on 20 March 2013 was set down. That he did not attend on 20 March 2013 was a matter for him. I do not accept, as I have previously stated, that Ms Benn was acting for him as he asserts on that occasion (see Ross (No 6)). Indeed, she expressly stated that she was not. That Mr Ross has not filed any evidence for the purposes of these resumed proceedings and now finds himself to be at an evidentiary disadvantage is, as I have stated above, a disadvantage of his own making.

1. That Mr Ross has been prejudiced by Mr O'Gorman-Hughes handing back his brief sometime "late" on Friday 24 May 2013, and that he therefore finds himself unrepresented today is, in my opinion, insufficient to warrant, without further explanation and evidence, an adjournment of the proceedings. The circumstances of the handing back of that brief remain opaque. It is not clear to me that Ms Benn ever acted for Mr Ross, although such an inference is available to be drawn from the emails tendered by Mr Ross. But even assuming that such an inference may be drawn from these emails, it must be contrasted with the statement made by Ms Benn to the Court on 20 March 2013 that she represented Ms Edilbi, the new owner of the property, and the absence of any notice of appearance filed by her in these proceedings. In those circumstances, I find that whatever informal arrangement may have been made between Ms Benn and Mr Ross, at no point has she ever acted for him in any formal sense during these proceedings.

1. Mr Ross refused to waive privilege, as is his right, with respect to the events surrounding the handing back of the brief. To reiterate, this has meant that the factual matrix surrounding the handing back of the brief is not fully known. It is not known, therefore, whether the handing back of the brief occurred in circumstances that were improper and that have resulted in genuine unfairness to Mr Ross. It is not known, for example, if Mr Ross was aware that Mr O'Gorman-Hughes would not accept a direct access brief. If he was, then Mr Ross should have taken steps to regularise his legal representation by Ms Benn in order to protect his position. In short, I do not know whether the handing back of the brief occurred in circumstances where no blame can be attributed to Mr Ross and that to refuse to adjourn the proceedings would be unjust to Mr Ross. Mr Ross bears the onus of proof in this application and he has failed to discharge it in respect of this ground.

1. In addition, there has been no evidence put before the Court of any attempt by Mr Ross to obtain other legal representation or assistance. Presumably, as the emails demonstrate, funds were not an issue. Funds were available to be transferred into Mr Rick O'Gorman-Hughes' account, funds that presumably could have been used to obtain alternate legal representation.

1. I am therefore not convinced that the absence of legal representation is an adequate reason to allow the adjournment.

1. To the extent that Mr Ross submitted that the council has not properly served him with the evidence and submissions upon which it intended to rely, first, there is no record of any order having been made by the Court in the form described by Mr Ross. Second, the evidence demonstrates that he has in fact been served with the expert reports of Mr Kevin Leedow and Mr Kerry Nash, and it has never been suggested by him that he has not received the affidavits of Mr Adrian Moore upon which the council also intends to rely. The council's written submissions were, moreover, handed to Mr O'Gorman-Hughes on 22 May 2013 in Court. It is assumed that Mr Ross has received them. Accordingly, Mr Ross has been served with a copy of all of the evidence and submissions upon which the council seeks to rely in these Class 4 proceedings.

1. Seventh, Mr Ross states that he is currently suffering from a medical illness, namely, a migraine condition. Relying on the decisions in Palerang Council v Banfield [2012] NSWLEC 85 (at [10]-[12]) and Jeray v Blue Mountains City Council [2011] NSWLEC 218 (at [9]-[11]), I find that his supporting medical evidence is inadequate to prove this claim. There is no mention in the medical certificate to verify the condition that Mr Ross states that he suffers from. The medical certificate merely states that he will be "unfit to continue his usual occupation". The medical certificate is silent as to why or how he is unfit. It does not state that he is unfit to attend Court. It does not state for how long Mr Ross will be unfit. Medical evidence in this form does not assist the Court and does not assist Mr Ross. The prescription is similarly of limited utility.

1. I therefore remain unconvinced that the medical condition which Mr Ross claims he currently suffers from is sufficiently debilitating that it warrants the adjournment of these resumed part-heard proceedings.

Conclusion

1. To conclude, I remain unconvinced that any of the grounds raised by Mr Ross warrant adjourning these proceedings. The council is, as it stated on 22 May 2013, ready to proceed. Having regard to the principles contained in ss 56-60 of the Civil Procedure Act 2005 and the principles articulated in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, to further adjourn these proceedings would be neither "just" nor "quick and cheap".

Orders

1. Mr Ross' application for an adjournment is refused. Mr Ross must pay the council's costs of the application. The exhibits are to be returned.

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Decision last updated: 06 June 2013