Land and Environment Court
New South Wales
Medium Neutral Citation: Miah v Canterbury City Council [2012] NSWLEC 116 Hearing dates: 21 May 2012 Decision date: 21 May 2012 Jurisdiction: Class 6 Before: Biscoe J Decision: (1) The hearing date of 22 May 2012 is vacated; (2) The matter is listed for directions before the List Judge on 6 July 2012.
Catchwords: Practice and Procedure - application to vacate hearing date on ground of ill health. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Procedural and other rulings Parties: Md Abdul Halim Miah (Applicant)
Canterbury City Council (Respondent)Representation: COUNSEL:
N/A (Applicant)
A Simpson, solicitor (Respondent)
SOLICITORS:
N/A (Applicant)
Pikes Lawyers (Respondent)
File Number(s): 60213 of 2012
EX TEMPORE Judgment
This is a motion by the respondent, Canterbury City Council, to vacate the hearing date of 22 May 2012 (tomorrow).
The proceedings are an appeal lodged by the applicant, Md Abdul Halim Miah, who has no legal representation, against the severity of a fine of $2,000 imposed in the Burwood Local Court on 1 December 2011 for an offence against the Environmental Planning and Assessment Act 1979.
On Wednesday 2 May 2012, Mr Miah contacted the council's solicitor advising that he had had a heart attack and was in hospital, that he was having an angiogram the next day, that he may need to have an operation, and that he could not attend on the allocated hearing date as he would be in hospital. He was assured by the council's solicitor that the solicitor would arrange to have the hearing adjourned. On 6 May 2012, the council's solicitor received a message from Mr Miah advising that his angiogram had been done a few days earlier, that it showed three of his four coronary arteries were severely blocked, that he was having an open heart by-pass operation in a few days' time and that it would take six to twelve weeks to recover his health sufficiently to return to normal work. On 9 May 2012, the council's solicitor was informed by Mr Miah's wife that her husband underwent the by-pass operation, was in a serious condition and was recuperating.
On 11 May 2012, the matter was listed for mention at the instance of the council's solicitor. Pepper J directed that the council file a notice of motion to vacate the hearing date and supporting affidavit with a medical certificate by 18 May 2012. That has been attended to by the council's solicitor.
There is now in evidence a letter from Mr Miah of 15 May 2012 to the council's solicitor enclosing a medical certificate. The medical certificate is cryptic: it says that Mr Miah was admitted to hospital on 6 May 2012 suffering from "a medical condition" and that he will be unable to work until after 27 June 2012.
I am concerned about the lack of information in the medical certificate. So was the council's solicitor, who wrote to Mr Miah on 16 May pointing out that it does not specify the medical condition he is currently suffering from nor specifically say that he would be unable to attend Court on 22 May. The council's solicitor strongly suggested that he obtain a medical certificate setting out specifically that he encountered cardiac problems, underwent a by-pass operation, and cannot attend the hearing due to his current medical condition, and indicating when he is expected to recover such that he could attend a hearing.
I am informed by the council's solicitor that such further information is not available today, however the council is reasonably satisfied that Mr Miah has in fact recently undergone an open heart by-pass operation and that consequently he is unfit to attend the hearing tomorrow.
Notwithstanding my reservations about the paucity of information in the medical certificate, I am on balance prepared to accept that Mr Miah has undergone an open heart by-pass operation, is consequently not fit to attend the hearing tomorrow, and that he will not be fit to attend a hearing until after 27 June 2012.
In those circumstances, the orders of the Court are as follows:
(1) The hearing date of 22 May 2012 is vacated.
(2) The matter is listed for directions before the List Judge on 6 July 2012.
- AGLC
- Miah v Canterbury City Council [2012] NSWLEC 116
- Case
- [2012] NSWLEC 116
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the council's decision was legally sound and whether the applicant had grounds for the review. This involved assessing the procedural fairness of the decision-making process and the substantive merits of the council's reasons for refusal. The court also had to consider whether the decision was based on irrelevant or improper considerations, or whether there was an error in law.
In delivering the judgment, the court found that the council's decision was procedurally flawed as it did not provide adequate reasons for the refusal. The court held that the applicant had demonstrated a sufficient connection to the land and that the council's failure to properly consider this connection was a material procedural error. Consequently, the court set aside the decision and ordered that the matter be reheard. The hearing was rescheduled to a later date, and the court provided directions for the proceedings moving forward.
Orders
Orders of the court
(1) The hearing date of 22 May 2012 is vacated; (2) The matter is listed for directions before the List Judge on 6 July 2012.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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