Leichhardt Municipal Council v O'Neill
[2011] NSWLEC 78
•06 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Leichhardt Municipal Council v O'Neill [2011] NSWLEC 78 Hearing dates: 6 May 2011 Decision date: 06 May 2011 Jurisdiction: Class 4 Before: Pepper J Decision: Notice of motion dismissed and application to vacate refused. Leave granted to remove first respondent as a party to the proceedings.
Catchwords: PROCEDURE: - consent application to vacate hearing dates - genuine attempts to resolve the matter - matter characterised by unexplained delay - consent application refused Legislation Cited: Civil Procedure Act 2005 ss 56, 57, 58, 59 60 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Category: Procedural and other rulings Parties: Leichhardt Municipal Council (Applicant)
Matthew Thomas O'Neill (First Respondent)
Rubbells Pty Limited (Second Respondent)Representation: Ms R McCulloch (Applicant)
Mr B Campbell (Second Respondent)
Pikes Lawyers (Applicant)
Nicole Leggat & Associates (Second Respondent)
File Number(s): 40888 of 2009
EX TEMPORE Judgment
Introduction
Before me is a notice of motion filed on 5 May 2011, seeking an order that the hearing dates of 11-12 May 2011 be vacated and that the parties be permitted to approach the Registrar to obtain new hearing dates.
The parties were granted leave to approach the Registrar for hearing dates on 11 February 2011 as a result of the matter coming before me as List Judge. The hearing dates were allocated by the Registrar with the consent of both parties.
In respect of the first respondent, Mr Matthew Thomas O'Neill, I was informed by both the parties that he is not an active party, has not filed an appearance in this matter and if the matter is to proceed to hearing, Leichhardt Municipal Council ("the council") will seek orders having the first respondent removed from the proceedings.
For the reasons given below the application is refused.
Factual Background
The substance of the proceedings relates to a hotel, namely, Ruby L'otel at 68 Victoria Road, Rozelle, which has a courtyard at the rear of the premises. The courtyard has generated significant noise issues, which form the substance of the orders sought in the summons. The summons seeks relief in the nature of a declaration and orders that the respondents be restrained from using the premises, and in particular, the courtyard, until such time as all conditions of development consent D/2006/242 have been complied with.
At the time of the application there has been substantial but not complete compliance with the conditions of consent.
A review of the file quickly reveals that the proceedings, which were commenced on 25 November 2009, have had a long history of delay, occasioned in part by the default of the parties in complying with Court orders and at other times occasioned by genuine attempts to resolve the matter absent the need for a final hearing (there have been, for example, several attempts at mediation). The result has been that on most occasions that the matter has come before the Court, the parties have requested additional time to either get the matter ready for hearing or to avoid incurring any further costs pending settlement discussions.
The notice of motion was supported by an affidavit of Mr James Miller, sworn 4 May 2011. Mr Miller is a director of Rubbells Pty Ltd, the second respondent in the proceedings. The second respondent is the manager of the hotel.
Mr Miller states in his affidavit that he has been involved in discussions with Ms Margaret Lyons, of the council, in an attempt to address any concerns the council have in relation to the use of the premises.
Mr Miller states that on 4 April 2011, orders made by me on 11 February 2011 were amended by consent between the council and the second respondent relating to the time for the service and filing of affidavits by the second respondent. A considerable number of further affidavits were filed and served by the parties pursuant to that timetable variation. It is not necessary for me to set these out because it is not a complaint of either party that the hearing dates ought to be vacated by reason of their inability to meet any evidence that has been recently filed. It should be noted, however, that when the matter came before the Court on 4 April 2011 there was no suggestion that the matter was not ready for hearing.
The affidavit of Mr Miller states that, critically, on 8 September 2010 a s 96 of the Environment Planning and Assessment Act 1979 ("the EPAA") modification application was submitted by Ms Dianne Tipping, the property owner, to the council. The modification application included amendments and various building changes to include new acoustic walls, bi-fold doors and importantly, a roof over the rear courtyard/beer garden in order to mitigate the noise complaints. It was the completion of these works that was to largely resolve the proceedings.
The council issued a notice of determination on 15 November 2010 and a construction certificate was obtained on 2 December 2010. Construction works were commenced on 6 December 2010 and I am informed by Mr Campbell, appearing on behalf of the second respondent, that these works were completed sometime between 11-25 February 2011. This is so notwithstanding that when the matter came before Pain J on 3 December 2010, an undertaking was given by the second respondent that the works would be completed by 11 February 2011.
An acoustic report following on from the completion of the works and an additional report were submitted to the council. Compliance with a condition regarding further acoustic testing was, however, delayed due to inclement weather during March 2011. Eventually a certificate of compliance was issued by Mr Nick Koikas on 29 March 2011 that was subsequently submitted to the council by the second respondent.
However, the council continued to have concerns surrounding the plan of management submitted to it by the second respondent. Therefore, an amended plan of management was prepared and submitted to the council on 12 April 2011, together with a further s 96 of the EPAA modification application.
Critically, Mr Campbell indicated to the Court that after the amended plan of management had been submitted nothing further was heard from the council until he spoke to Ms McCulloch, the council's legal representative, on 3 May 2011. Further, it was not until he spoke to Ms McCulloch on that date that it became apparent that the council had ongoing concerns with the amended plan of management and that these concerns needed to be resolved before the plan of management would be approved. This is no doubt what prompted the notice of motion to be filed.
Mr Campbell was not able to give the Court a reason for the delay between 12 April 2011 and 3 May 2011, although he suggested that perhaps the second respondent had been directly in contact with the council. Given the imminent proximity of the hearing, this was, in my view, remarkable.
Likewise, Ms McCulloch was not able to inform the Court why there was no contact between the council and the second respondent during this period (indeed she had not even been informed of the further s 96 application). One possible reason for this oversight which was proffered by Ms McCulloch was because the legal officer of the council had been on medical leave due to spinal surgery. No affidavit to this effect was put before the Court. She did not know who had assumed responsibility for the legal officer's duties in the interim.
In Mr Miller's affidavit he indicated that he had been advised by his solicitor that the council wished to meet with him at the end of the week commencing 9 May 2011 to discuss the amended plan of management. This meeting could not take place any earlier because of the unavailability of the council's legal officer.
Mr Miller stated that once the interim occupation certificate was issued, the plan of management was approved by council and the council had the opportunity of monitoring the plan of management for a period of time, then all issues forming the basis of the current proceedings would be resolved. It had been hoped that this could be achieved prior to the hearing dates of 11-12 May 2011, however, this was now not possible, and therefore, the parties sought to vacate the hearing dates.
Submissions
The parties submitted, in essence, that although they are confident that the matter can be resolved in its entirety, more time is required to permit this to occur.
The parties further submitted that if the application to vacate is not granted then they would be forced to proceed with the legal proceedings resulting in wasted costs, given that the matter could and would be resolved with only minimal additional delay. Thus to force the matter on for hearing having regard to the genuine attempts that had, and were continuing to be made by the parties to finally resolve the proceedings would be neither "just, quick" nor "cheap" as required by s 56 of the Civil Procedure Act 2005 ("CPA").
While there is some force in this submission, the Court nevertheless declines the application.
In doing so the Court has had regard to the matters contained in ss 56-60 of the CPA. In particular, s 58 states that the Court must, particularly when making an order granting an adjournment or stay of proceedings, have regard to the dictates of justice. The factors the Court can have regard to in assessing the dictates of justice are set out in s 58(2)(b). These include the degree of expedition with which the respective parties have approached the proceedings.
The Court was also mindful of ss 59 (the elimination of the delay) and 60 (the proportionality of costs).
While the Court accepts that there has been legitimate attempts to date to resolve the proceedings, these attempts have not proceeded with the degree of alacrity necessary, either generally given the history of this matter, or as required after 11 February 2011, given that it was known by the parties after this date that the matter had been set down for hearing.
That no attempt was made by the second respondent after the lodgement of the amended plan of management and s 96 modification application on 12 April 2011 to progress resolution of the matter until 3 May 2011, is, absent any explanation whatsoever, indefensible given the immediacy of the hearing date.
A similar criticism may be made of the council, although I acknowledge the incapacitation of the council's legal officer. But these were the council's proceedings. As a consequence, and again in light of the imminent hearing, it was incumbent upon the council to contact the second respondent with whatever concerns it had with the amended plan of management and any other matters. In this regard, its actions were, in my view, inexcusable.
The Court has also had regard to the efficient utilisation of Court resources in the administration of justice ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [23]). Two days of the Court's time had been set aside to hear this matter which, at this late stage, cannot be allocated to other parties. While this can never be determinative, this factor combined with the unexplained delay between 12 April and 3 May 2011 in progressing to progress the resolution of the matter and the not inconsiderable history of delay and timetable defaults, leads me to decline the exercise of the Court's discretion in favour of granting the vacation.
This conclusion is reached notwithstanding that it will result in some wasted costs by both parties. But these costs should not be overly burdensome insofar as the parties claim, the proceedings are close to resolution, and therefore, many of the issues initially forming part of the proceedings no longer exist thereby obviating proof or determination. Thus I do not consider that disproportionate costs will result by refusing the application (s 60 of the CPA).
Orders
In conformity with the reasons expressed above, the orders of the Court are that:
(1) the notice of motion is dismissed; and
(2) leave is granted to the council to amend the summons to remove Matthew Thomas O'Neill as a party to the proceedings.
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Decision last updated: 11 May 2011
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