Ross Connell v Armidale City Council

[1998] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION:	Ross Connell v. Armidale City Council [1998] NSWLEC 117
PARTIES:	APPLICANT Ross Connell RESPONDENT Armidale City Council
FILE NUMBER(S):	30098 of 1997
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	Land and Environment Court Act 1979
CASES CITED:
DATES OF HEARING:	05/02/98
EX TEMPORE JUDGMENT DATE :	02/05/1998
LEGAL REPRESENTATIVES:	APPLICANT In Person RESPONDENT Mr S V Brockwell Messrs Weaver Gentle and Harrisson

JUDGMENT:

In this matter the council seeks, without notice, the dismissal of a class 3 application made by Mr Connell. The council relies on the affidavit of Mr R B Tumeth, sworn on 3 February 1998.

Mr Connell appeared this morning and I gave him leave to make an address to the Court. But Mr Connell's difficulty is that on 1 September 1997, in matter number 40023 of 1997, this Court declared Mr Connell to be a vexatious litigant for the purpose of s 70 of the Land and Environment Court Act 1979. Amongst other things the Court ordered that Mr Connell be restrained from continuing any existing proceedings taken by him against the Armidale Council without the leave of the Court.

The history of this particular matter is set out in Mr Tumeth's affidavit. The proceedings were filed on 29 July 1997, by Mr Connell. There was a callover on 12 August 1997, at which Mr Connell did not appear, but the respondent did, and the proceedings were adjourned to 26 August 1997. On that occasion Mr Connell did not appear, so the proceedings were adjourned yet again for a callover on 9 September 1997. On that day the order declaring Mr Connell a vexatious litigant had previously been made, but the parties who appeared; Mr Connell and Mr Brockwell, were unaware of its terms, as was the Registrar. In those circumstances the Registrar made various directions about the filing of points of assessment of compensation, points of claim, and points of defence. At the same time the Registrar adjourned the matter for a further callover on 22 October 1997. On 17 October 1997, according to Mr Tumeth's affidavit, he caused to be forwarded by mail to Mr Connell the council's points of assessment.

On 22 October 1997, the matter was again listed. There was an appearance on behalf of the respondent by Mr Brockwell, but Mr Connell was not there, and the proceedings were adjourned again till 4 February 1998.

The proceedings came on yesterday, 4 February 1998, and they were referred by the Registrar to the Duty Judge today, 5 February 1998.

These proceedings can only continue if there is a prosecution of them by Mr Connell. For that purpose, he requires the leave of the Court pursuant to the orders of 1 September 1997. Despite the matters that he has alleged from the bar table, he has taken no steps to seek that leave, or to take any action in this matter at all since the matter has been in the callover list. Mr Connell says, from the bar table, that he was ill during the month of August and I accept that may have been so. But since 1 September 1997, at least, Mr Connell has required leave to proceed with this case. He has not filed one document seeking such leave. Though the matter has been called over on three occasions since that period of time, Mr Connell has taken no steps.

The council applies under Pt 12, r 2(1) of the Land and Environment Court Rules, which provides that:

"If an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit."

I am satisfied that the applicant, Mr Connell, has not, within a reasonable time, taken the step necessary to bring these proceedings to a hearing. That step was to apply for the leave of the Court as required by the order of 1 September 1997. There has been ample opportunity. He has not availed himself of it. There has to come a time when Mr Connell's protestations from the bar table are transformed into action. They have not been transformed into action, and accordingly I am prepared to make the order which the council seeks.

My formal order is that these proceedings are dismissed. I order that the applicant pay the costs of the respondent as assessed or as agreed. The exhibits may be returned.