Lane Cove Council v Ross (No 8)

[2013] NSWLEC 77

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane Cove Council v Ross (No 8) [2013] NSWLEC 77
Hearing dates:	28 May 2013
Decision date:	28 May 2013
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Application for leave to file affidavit in court refused.
Catchwords:	PRACTICE AND PROCEDURE: late application to file an affidavit in Court - no explanation for delay - no utility in filing affidavit due to incomplete nature of evidence in affidavit - application refused.
Legislation Cited:	Civil Procedure Act 2005, ss 56-60
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 File in Court an Affidavit

1. This is an application by Mr Ross to seek leave to file in Court an affidavit sworn by him today (28 May 2013), on day two of three day resumed part-heard Class 4 proceedings. The affidavit is for the purposes of a recusal application made by Mr Ross on the first day of the resumed hearing, which is now (the recusal application, that is) in its second day.

1. The necessity for the late filing of the affidavit is, according to Mr Ross, because the affidavit inserts transcript excerpts that were not contained in an earlier version of the affidavit that was filed, with leave, in Court on 27 May 2013 (the leave having been consented to by the council on that occasion).

1. The application is opposed by the council principally on three grounds:

(a) first, because the transcript is incomplete, comprising only excerpts;

(b) second, it is not clear how the transcript excerpts were obtained. In short, in their current form they are no more than a record of what somebody else has heard; and

(c) third, because Mr Ross had in his possession a copy of the unfiled affidavit since at least 10am today and did not provide the council with a copy of it at that time. That is to say, he has deliberately delayed giving a copy to the council.

1. While I am less persuaded by, although there is certainly merit in, the third reason provided by the council, I am wholly persuaded by the first and second reasons.

1. The transcript references are selective excerpts only. It is not known by who, it is not known how, and it is not known when these excerpts were compiled. It is not known, therefore, if the excerpts are accurate. In my view, it would be unfair to the council not to provide it with the whole of the transcript that is to be relied upon by Mr Ross so that the council can not only verify the accuracy of the transcript excerpts, but also can ensure that other relevant parts of the transcript are put before the Court.

1. In addition, no cogent explanation has been given by Mr Ross for not including these excerpts in his affidavit dated 27 May 2013, filed in Court yesterday, or why complete transcript is not able to be tendered.

1. Given that it is now halfway through a three day hearing that has yet commenced dealing with the substance of the proceedings, to allow this affidavit to be filed would not be "just, quick and cheap" (s 56 of the Civil Procedure Act 2005). It would result in further adjournment and delay in finalising the recusal application while, for example, the council sought to obtain full copies of the transcripts.

1. Finally, I note that the Court does not have, as Mr Ross stated, these transcripts available to it.

Orders

1. Having regard to the principles contained in ss 56-60 of the Civil Procedure Act, I refuse Mr Ross leave to file the affidavit.

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