North Sydney Council v O'Hara

[2002] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION:	North Sydney Council v O'Hara [2002] NSWLEC 239
PARTIES:	APPLICANT North Sydney Council RESPONDENT Louise O'Hara
FILE NUMBER(S):	40119 of 1999
CORAM:	Talbot J
KEY ISSUES:	Practice and Procedure :- application for adjournment and disqualification
LEGISLATION CITED:	Local Government Act 1993 s 124
CASES CITED:
DATES OF HEARING:	06/12/2002
DATE OF JUDGMENT:	12/11/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr D R Parry (Barrister) SOLICITORS Mallesons Stephen Jaques RESPONDENT In Person SOLICITORS N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40119 of 1999

Talbot J

11 December 2002

North Sydney Council

Applicant
v

Louise O’Hara

Respondent

Judgment

Introduction

1 On 6 December 2002 the respondent, Louise O’Hara, made an application to vacate the date set for hearing a notice of motion filed by the applicant, North Sydney Council (“the council”), whereby the council is seeking an order that the respondent pay the applicant’s costs of the proceedings.

2 Mrs O’Hara supported her application for an adjournment with an affidavit that itemised the grounds for the adjournment as follows:-

1 I do not have access to relevant documents or the facility to work on the documents
2 I am engaged in pre-arranged commitments in which I am indispensible [sic] . It is impossible to rearrange these commitments.
3 I need to seek work for next year

4 I need to take legal advice. Lawyers whom I have been able to contact are unable to assist at this time.

5 I only received Council’s legal submissions some weeks ago.

6 I am unable to deal with other basic commitments. One example is that I need to deal with an urgent dental problem
7 I need to visit my elderly and ill mother


8 The Court said that it would not want either party to return to the Court. I have therefore not allocated time to this matter which has alreaady [sic] done me so much harm.

9 Without a detailed bill of costs I am not able to deal with the legal issues of the matter.

10 I am unable to deal with health issues or follow my doctor’s advice because of the time taken out of my life by North Sydney Council.

12 Council told me in March that it was absolutely the end of the matter

13 I have contacted Mallesons who represent Council in order to obtain an agreement to adjourn the matter. Mr Causer is of the view that the Council wishes this matter to proceed.

He also insisted that this hearing would be the end of the matter but finally admitted that further proceedings would be involved.

It is impossible for me to place credence in information from Council or its representatives.

3 A further affidavit lists 24 points of contacts that Mrs O’Hara claims she approached in order to seek legal assistance for the hearing.

4 In further support of her application for an adjournment Mrs O’Hara has tendered a copy of a letter from the University of Sydney School of Information Technologies and a letter from Dr Michael Mason of Kent Street Medical Centre. The letter from the university merely states that “results for Comp5110” are needed by close of business on 13 December 2002. Mrs O’Hara explained that the letter is referring to a deadline for the marking of exam papers. No details beyond that are available to the Court.

5 Dr Mason refers to a number of ailments from which Mrs O’Hara is alleged to be suffering. The medical certificate does not refer to Mrs O’Hara by name. However, it concludes that at least two months rest and respite from the pressures of “repeated legal actions by North Sydney Council” and her work are required.

6 During the course of her submissions, Mrs O’Hara requested that I consider disqualifying myself from hearing the costs application as a consequence of my handling of the litigation up to date.

7 Mrs O’Hara’s notice of motion dated 2 December 2002 and her ex tempore oral application for me to disqualify myself from further hearing the matter were dismissed for the following reasons. It was not practicable to provide the full reasons when the determination was made in the course of a busy List Judge and Duty Judge combined list on 6 December 2002.

8 I have attempted to make it clear to Mrs O’Hara that, in my view, after taking account of the whole history of the litigation, it is in her best interest for the hearing to proceed on 16 December 2002. Having regard to the significant indulgences granted to Mrs O’Hara and her response thereto since the proceedings were commenced in August 1999, I am not confident that a further adjournment, until March 2003 or any other date, would result in any different outcome. In other words, in my view, no matter how much time the Court is prepared to grant Mrs O’Hara it is unlikely that she will ever reach a point where, in her opinion, the matter can proceed on the basis that she has been afforded a fair and reasonable opportunity to prepare for the hearing. Unless it is thought that the Court has given insufficient weight to Mrs O’Hara’s medical condition it must be stated that the Court has been beset with similar circumstances before in the case of Mrs O’Hara. Invariably, this occurs when a hearing has been imminent or she has not attended and subsequently seeks to have orders made in her absence overturned.

9 In order to put the application by Mrs O’Hara into context, it is appropriate to have regard to the entire history of this matter. Initially, however, it is helpful to trace the more recent history as it relates to the subject notice of motion.

10 On 20 June 2002 the applicant filed a notice of motion dated 19 June 2002 returnable 11 July 2002 seeking an order that the respondent pay the applicant’s costs of the proceedings.

11 On 10 July 2002 a telephone message was received in the Registry of the Court. The message was to the effect that Mrs O’Hara was required to appear as a witness in another court on 11 July 2002 and requested that the matter not be put down for further mention until March 2003.

12 By letter dated 11 July 2002 Mrs O’Hara was advised that a hearing had been set down before Justice Cowdroy for one day on 30 July 2002. The letter was sent to Mrs O’Hara by express post on 11 July 2002 at 3:30pm.

13 On 29 July 2002 a facsimile message was received in the Registry. The message purported to be in the form of a notice of motion seeking orders to vacate the hearing date with a further callover to take place not earlier than March. The notice of motion also sought an order that Justice Cowdroy be disqualified from hearing the matter and that the council provide information relating to costs incurred within 14 days. The facsimile message included a document in the form of an affidavit purporting to be signed by Mrs O’Hara. The affidavit stated that Mr O’Hara will “need at least 3 months to prepare for this hearing owing to the number and complexity of the hearings, and the time provided is grossly inadequate”. Her state of health and other commitments was also referred to.

14 The notice of motion was listed for hearing before me on 30 July 2002. Ms Duggan appeared for the council. Mrs O’Hara did not appear. Ms Duggan vigorously opposed the prospect of an adjournment referring to the already protracted history of the matter. Nevertheless, I vacated the hearing date and made the following directions:-

1. The respondent file and serve affidavits upon rely together with a list of documents upon rely by 4pm 22 October 2002.

2. The applicant file and serve affidavits in reply by 4pm 5 November 2002.

3. The applicant file and serve written submissions in chief by 4pm 5 November 2002.

4. The respondent file and serve written submissions by 4pm 26 November 2002.

5. Set the matter down for hearing (1 day) in December as a special fixture.

6. Parties approach Registrar this morning to obtain a hearing date.

7. Registrar to notify the respondent that the matter is set down for hearing as a special fixture and to serve a copy of the orders made today.

15 The following matters were the subject of a formal note that I directed be endorsed at the foot of the formal orders made on 30 July 2002:-

1. The applicant’s evidence in chief is the affidavit of Charmain Victoria Mary Barton sworn 19 July 2002.

2. It is not appropriate, nor is it usual, for the quantum of costs claimed by the applicant to be furnished to the respondent for the purposes of the hearing of the notice of motion dated 19 July 2002.

16 The Registrar forwarded a letter to Mrs O’Hara on 1 August 2002 advising the outcome of the hearing on 30 July 2002. The Registrar advised Mrs O’Hara in the letter that the matter would be dealt with to final conclusion on 16 December 2002 even if she did not attend.

17 The council has complied with the directions made on 30 July 2002.

18 On 2 December 2002 Mrs O’Hara filed the notice of motion seeking an order that the hearing set down for 16 December 2002 be adjourned.

19 Apart from the two affidavits by Mrs O’Hara the Court also read an affidavit by a solicitor employed by the council’s solicitors sworn on 3 December 2002. The council’s solicitor deposed to the fact that an amended notice of motion to be relied upon by the council was served on Mrs O’Hara on 26 November 2002. The amended notice of motion makes only formal changes to the relief the council is seeking. Furthermore, on 3 December 2002 the council’s solicitors caused a number of documents to be delivered to the respondent following a conversation with her on 2 December 2002 during which she indicated she was having trouble locating the documents.

20 Since the first callover on 3 August 1999, the matter has been listed on 28 separate occasions, either for callover, notices of motion or a hearing. Mrs O’Hara has not appeared on 11 of those occasions. On five of the 11 occasions when Mrs O’Hara did not appear the matter has been listed for a hearing.

21 There is a remarkable consistency in Mrs O’Hara’s reaction and behaviour in relation to the setting of hearing dates and meeting commitments to appear on particular days. Almost invariably she relies upon the following:-

(1) Illness;

(2) Lack of time to prepare;

(3) Intransigence of the council;

(4) The indisposition of a relative; and

(5) The behaviour of third parties.

22 It is not practicable to deal with all of such matters in detail in these reasons but the actual events are well documented in the Court file.

23 On one occasion, namely 27 February 2001, after Justice Bignold had referred the parties to the Registrar for the purpose of obtaining a hearing date, Mrs O’Hara refused to discuss her availability and informed the Registrar “It is none of the Court’s business why I am not available”. She subsequently applied to vacate the hearing dates set by the Registrar on the ground that she had ongoing commitments on the days fixed, namely 5 and 6 April 2001. The notice of motion seeking a vacation of the hearing dates was not filed until 21 March 2001.

24 A certificate from Dr Mason dated 2 October 2000 relied upon by Mrs O’Hara to rescind orders made in her absence on that day and again on 5 July 2001 when she made one of her many applications for an adjournment are both remarkably similar in terms to the form of certificate produced to the Court on 6 December 2002. Dr Mason also certified on 13 July 2001 that she was unfit to attend Court on 11 July for reasons following the consistent pattern.

25 Commissioner Bly (who was then an Assessor of the Court) decided on 30 December 1997 that orders issued by the council dated 6 December 1996 under s 124 of the Local Government Act 1993 in relation to Mrs O’Hara’s property at 21 Willoughby Road, Kirribilli should be set aside and replaced with the following:-

a) Repair or replace the centre verandah post within a period of twelve months from the date of this order.
b) Replace broken and dislodged roof and slate tiles and replace rusted, holed or missing gutters and down-pipes within a period of eighteen months from the date of this order.

26 These class 4 proceedings were commenced by the council following the default by Mrs O’Hara, who failed to comply with the orders made by Assessor Bly.

27 On 9 July 2001 a substantive hearing commenced before me. As appears from the reasons I delivered on 11 July Mrs O’Hara was granted an adjournment late in the day on 9 July 2001 to enable her to instruct an engineer to report on the structural integrity of the roof of her home. When the matter resumed on 11 July 2001 Mrs O’Hara did not appear. Orders were made in her absence. Predictably, Mrs O’Hara, thereafter, file a notice of motion seeking to vary the orders made in her absence. Taking the pragmatic approach, as can be seen by reference to my reasons for judgment delivered on 27 November, I varied the orders to allow one final opportunity for Mrs O’Hara to complete the work herself. This time the orders were made in her presence.

28 Her behaviour in July 2001 is typical of her conduct that, in my view, is plainly designed to frustrate the Court’s attempts to bring the matter to a head and hence final conclusion by the making of final orders. My judgment delivered on 11 July 2001 provides some insight into the protracted and convoluted nature of the proceedings. Mrs O’Hara never misses an opportunity to defer the final outcome. The Court’s patience has been tried beyond reasonable limits. I can think of no other case where the Court has been so indulgent. Four judges and an Assessor have been involved in trying to bring finality over the years.

29 Although not conclusive, it is nevertheless indicative of the concessions given to the respondent that there have been 29 separate appearances in this matter, including this occasion, since Assessor Bly made orders in the class 2 proceedings. It is fair to observe that rather than the council being to blame for repeated action against Mrs O’Hara, the opposite is the case. Her campaign has been one of constant obstinance, attrition and obsession. She has attempted to derail due process at every opportunity. It is unreasonable to expect the Court to tolerate this behaviour any further.

30 I am not satisfied that Mrs O’Hara can ever be convinced that she is being dealt with fairly and in the interest of justice. Further adjournments and postponement of an ultimate hearing in the litigation are not, in my opinion, in Mrs O’Hara’s interest. They are certainly not conducive to the efficient and effective conduct of the Court’s business. The council has achieved the end it has been seeking for over six years. The question of costs is the only remaining issue because the roof the subject of the council’s complaint has been repaired. It is time for the litigation to be brought to a close. The question of costs will now be dealt with on the day set down nearly five months ago. That date was appointed following vacation of the previous date set on 30 July 2002. Mrs O’Hara’s convenience was fully taken into account at that time. There is no new issue to cause the Court to disturb that decision.

31 No case has been made out that would persuade me to disqualify myself from hearing the costs argument. Rather than displaying any attitude or behaviour that would cause a reasonable observer, properly informed, to apprehend a bias against the interests of Mrs O’Hara, in my opinion she has been shown befitting courtesy and consideration for her arguments. Her apprehension appears to arise solely out of the fact that I have made findings against her submissions. That is no ground for disqualification.