Source and Resources Pty Ltd v Department of Environment, Climate Change and Water

[2010] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:	Source and Resources Pty Ltd v Department of Environment, Climate Change and Water [2010] NSWLEC 228
PARTIES:	APPLICANT Source and Resources Pty Ltd RESPONDENT Department of Environment, Climate Change and Water
FILE NUMBER(S):	10816 of 2009
CORAM:	Craig J
KEY ISSUES:	PRACTICE AND PROCEDURE :- application for adjournment of proceedings at commencement of hearing of Class 1 appeal- notice of ceasing to act given by appellant’s solicitor on day of hearing- sole director of the appellant wished to maintain the appeal – further legal representation to be sought and additional evidence filed – adjournment application opposed - complex issues – concurrent prosecution proceedings arising from same events – interests of justice - proceedings adjourned.
LEGISLATION CITED:	Civil Procedure Act 2005 Native Vegetation Act 2003, ss 38, 39 Native Vegetation Conservation Act 1997 (repealed)
CASES CITED:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
DATES OF HEARING:	29 September 2010
EX TEMPORE JUDGMENT DATE:	29 September 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr K Alexander (Director) RESPONDENT M G Higgins (Barrister) SOLICITORS Gordon Plath, Department of Environment, Climate Change and Water

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

29 September 2010

10816 of 2009 SOURCE AND RESOURCES PTY LTD v DEPARTMENT OF ENVIRONMENT, CLIMATE CHANGE AND WATER

EX TEMPORE JUDGMENT

1 HIS HONOUR: Listed before the Court today is an appeal in Class 1 of the Court’s jurisdiction brought by Source and Resources Pty Limited (the Company). The appeal is one brought pursuant to s 39 of the Native Vegetation Act 2003. It was commenced in November 2009 following the service of a notice upon the Company pursuant to s 38 of the Native Vegetation Act. In short, that notice required remedial work to be undertaken in respect of the applicant’s property located at Pambula on the South Coast of New South Wales.

2 The Class 1 application was prepared and filed by a solicitor acting for the Company. The proceedings have been listed a number of times before the Court, including several callovers before the list judge. Since the proceedings were commenced, a number of particular directions have been made, in addition to the Court’s usual directions, all of which required the preparation and filing of documents. Those documents included statements of facts and contentions by both parties. A direction made in August last required the filing and service of evidence by both parties. Those directions have been observed by the respondent.

3 Although the Company has, to date, been represented by a solicitor, it is a matter of some regret that the various directions that have been made by the Court do not seem to have been fully observed. There has been one affidavit only filed on behalf of the Company and its solicitor has filed a very brief statement of facts and contentions.

4 Save for the filing of those documents, there has been no specific identification of issues indicating the basis of the Company’s challenge to the respondents notice nor has there been a response to the respondent’s request for further and better particulars of the Company’s statement of facts and contentions. A requirement to provide those particulars has been the subject of several directions made by the Court.

5 The proceedings have been listed on three occasions recently before the List Judge. On each occasion there has been an appearance by a legal representative of the respondent who has indicated that the matter is mentioned on behalf of the solicitor for the Company. The latter is said to have indicated his consent in the directions then made. Importantly, the hearing dates of 29 and 30 September were confirmed without demur. Confirmation that the hearing would proceed today was confirmed as recently as Friday last, 24 September 2010.

6 However, on 23 September 2010, the Company’s solicitor filed with the Court a notice of intention to file a notice of ceasing to act for the Company. The notice indicated that after seven days from the date of service of the notice, the solicitor would file in the registry of the Court and serve upon the Company a notice that he had ceased to act as the applicant’s solicitor. This notice was filed in purported compliance with UCPR 7.29. However, the terms of that rule do not appear to have been observed in that the notice was filed less than 28 days prior to the date upon which the present hearing was fixed to commence.

7 Today, the Court has received from the Company’s solicitor a notice of ceasing to act. Once again, that notice would not appear to have been given in accordance with the Rule. Nonetheless, it is clear that the solicitor who was retained by the Company and who has participated in the preparation of the matter for hearing, to the extent to which any such preparation has been undertaken, no longer intends to act for the Company. That state of affairs is regrettable.

8 When the matter was before the List Judge last Friday (24 September), a Mr Mitchell, solicitor, announced an appearance, indicating that he acted for a second mortgagee of the Company and that although he did not appear for the Company he appeared as a matter of courtesy as “amicus curiae”. I am told that he foreshadowed the possibility that he may in future appear in the proceedings, no doubt with the intention of protecting the interests of the second mortgagee.

9 When the matter came on for hearing today, Mr Alexander appeared for the Company. There was no other appearance by or on its behalf. Mr Alexander informed me that he is the sole director of the Company and that he along with other members of his family are the only shareholders in that Company. His statement is not challenged by the respondent. Mr Alexander acknowledged that the Company is in debt. Indeed, it is in arrears with payments due to the second mortgagee. He informed me that there is little in the way of financial resources available to the Company.

10 Mr Alexander also informed me that he is 83 years of age and that he wished to maintain the appeal although he was unprepared to run the appeal today. He applied to have the proceedings adjourned. He did so on the basis that he wished to seek legal representation, that there was further evidence that he wished to file and that he had not had an opportunity to consider in detail the voluminous affidavit evidence that had been filed on behalf of the respondent. Mr Alexander was not able to identify with any precision the evidence that he would propose to give, but indicated that he wished to prepare and present a detailed chronology, apparently supporting a contention that the notice that is the subject of the appeal was unreasonable in its requirement.

11 In support of his application for an adjournment Mr Alexander also informed me of two discussions that he had last week which bear upon his present predicament. First, his solicitor who had acted pro-bono, apparently as a long-time family friend, had only then indicated an inability to continue to act in the proceedings both because of his unfamiliarity with the jurisdiction of the Court and also because of the overwhelming volume of evidence that the respondent had filed.

12 Secondly, Mr Alexander had been in discussion with the second mortgagee, as a result of which he had understood that Mr Mitchell, solicitor, might be prepared to appear for the Company in these proceedings. However, he frankly acknowledged that late on Friday evening last, either he or his wife was advised by the second mortgagee that it was not prepared to fund an appearance by Mr Mitchell at today’s hearing.

13 By reason of those two events, occurring only last week, Mr Alexander said that he had no option but to travel to Sydney today in order to make the application for adjournment of the proceedings. He repeats that he feels under considerable disability in endeavouring to conduct the proceedings by himself.

14 Mr Alexander’s application for an adjournment was opposed by the respondent. In the course of the debate about the adjournment, it was indicated on behalf of the respondent that there are currently proceedings before this Court in Class 5 of its jurisdiction. In those proceedings, the Company is being prosecuted for a breach of the Native Vegetation Act. The charge alleges that the breach arises out of the very same circumstances that gave rise to the notice served upon the Company pursuant to s 38 of the Native Vegetation Act and which is the subject of appeal in these proceedings. As I will shortly make apparent, that information has considerable bearing upon the outcome of the adjournment application.

15 Exhibit 1 tendered to me by the respondent, supporting its opposition to the adjournment application, demonstrates the effort with which the respondent has approached the preparation of this matter for hearing. The exhibit also demonstrates the endeavours that it has made to ensure that it understood the case sought to be advanced on behalf of the Company. Correspondence included in the exhibit demonstrates the extent to which the respondent has experienced difficulty in obtaining information about the Company’s case, being information which one would ordinarily expect a solicitor acting for the Company to have provided.

16 Current principles informing the approach to case management requires that a laissez faire approach be disavowed. As the decision of the High Court in Aon Risk ServicesAustralia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 demonstrates, part and parcel of the process of case management requires that close consideration be afforded to the public interest which includes not only the particular interests of the parties but also confidence in the administration of justice generally. The latter consideration involves acknowledgement that parties to other litigation have been displaced or held back in order to accommodate the hearing of the case at hand and thus confidence in the administration of justice is lost when the Court is seen to accede to the vacation of hearing dates or the granting of adjournments without adequate justification. Furthermore, s 56 of the Civil Procedure Act 2005 mandates that proceedings before the Court be conducted so as to ensure the just, quick and cheap disposal of proceedings.

17 These matters provide strong support for the submission of the respondent that no adjournment of these proceedings should be granted. That support having been acknowledged, it is nonetheless necessary that in responding to the Company’s application, I reflect closely upon the interests of justice.

18 I can accept that the solicitor who has hitherto acted for the Company was well-meaning in providing his services free of charge but, as events have turned out, that benevolence has created the problem which both the Company and the Court faces today. Given the proximity to the hearing when the Company’s solicitor determined that he was no longer prepared to act for it, one would have expected that he would communicate in some form, perhaps by affidavit, matters that informed his decision to take that course and otherwise identified matters relevant to the position in which the Company finds itself.

19 That concern having been expressed, I must nonetheless confront the position in which the Company finds itself today. There are several factors that I find are significant.

20 It appears that a basis upon which Mr Alexander wishes to argue the case on behalf of the Company is that there was no breach of the law by it which could found the notice given by the respondent. Apparently, the absence of breach to found the giving of the notice involves a consideration of not only the Native Vegetation Act but also the legislation that preceded it, namely the Native Vegetation Conservation Act 1997 (now repealed). Without intending disrespect to Mr Alexander, if these matters are to be argued, involving questions of statutory interpretation, they require articulation by somebody better able to articulate them than Mr Alexander has indicated a capacity so to do. That is an incapacity that he acknowledges.

21 The second matter I take into account relates to the events that gave rise to the giving of the notice. Although the notice itself was given to the Company in October of last year, the clearing of land that is said to found the giving of that notice is alleged to have been undertaken between November 2007 and March 2008, with the discovery of that clearing having been investigated in March of that same year. However, it was not until October 2009 that the respondent gave the notice arising from those events, although I suspect that a draft notice was given in advance of the final notice. It is not suggested that any further clearing work has been undertaken since the notice was given to the Company requiring the cessation of any clearing activity on the land that is the subject of these proceedings.

22 The third and most significant matter that I take into account is the prosecution pending against the Company and which I am told has been fixed for hearing in November of this year. While I accept the submission advanced on behalf of the respondent that, in principle, a court can undertake the hearing of civil or disciplinary proceedings against a party even though criminal prosecutions have also been commenced, one does need to exercise great care in respect of a party who finds itself in concurrent litigation of that kind.

23 I acknowledge that the solicitor acting for the Company ought to have contemplated the potential difficulty that the Company faced in having the two sets of proceedings running together. Although I have no way of knowing what was in the mind of that solicitor, I accept that there may have been a course to be followed in running the present proceedings which avoided prejudice to the Company in defending the prosecution listed for hearing in November. Such a course is one that I would imagine would need to be carefully steered and by someone who was legally competent so to do.

24 I am now confronted with the situation that the Company is unrepresented and its sole director, Mr Alexander, has not demonstrated to me a sufficient understanding of the significance attaching to evidence given in the course of these proceedings that may impinge upon the imminent prosecution of the Company in criminal proceedings.

25 Although the issue is finally balanced, taking into account the matters that I have identified, I am of the opinion that, in the interests of justice, it is appropriate to accede to the application for an adjournment sought by Mr Alexander. I am conscious of the acknowledgement by Mr Alexander that the Company cannot fund an order for payment of costs thrown away by the adjournment. He has stated that, by reason of its interest in the land, the second mortgagee may be prepared to bear those costs. However, I cannot rely upon that circumstance as a basis upon which to assure me, or more importantly, to guarantee to the respondent that such costs will be paid.

26 I record these matters, pertaining to costs thrown away, in order to indicate that I have considered them as a factor weighing against the grant of an adjournment. However, in the particular circumstances that I have outlined, the fact that the Company may not be in a position to pay the costs does not outweigh the justice of the case that I believe dictates the granting of an adjournment. Nonetheless, I will make an order that costs thrown away be paid in the hope that it is not an exercise in futility. Given Mr Alexander’s indication that the second mortgagee has an interest in securing development of the site, it may be prepared to fund those costs. Clearly enough, I cannot make an order against the second mortgagee.

27 [His Honour then addressed Mr Alexander as follows:

“As a result of that Mr Alexander you get your adjournment. Given the basis upon which I have granted the adjournment, it means that this case should not be heard until after the criminal proceedings that are pending against your company are heard at the beginning of November. That means what I will do is make an order that requires that the matter be listed after the date upon which that matter is listed but I would not want you to think that you can secure a continuous adjournment by then applying when your criminal proceedings come on for some adjournment of those so that these proceedings will then be put back even further.
Obviously I cannot forestall a proper application for an adjournment but you now know, as I understand it, that your solicitor, at least Mr Hagan, will no longer be appearing for you in those proceedings and you will need to make, if you intend to have legal representation, you will need to make arrangements to that end promptly because as I said given what has occurred today the chances of you getting an adjournment of those proceedings because you are then not legally represented I would have thought present considerable difficulty to you.
You will need to proceed promptly to prepare such further evidence as you intend to prepare. That carries with it two obligations. Firstly, to do that and secondly, if you intend to obtain legal representation, which clearly it is in your interest to do, you will need to engage those services very promptly. It may be that that legal representative will in turn inform you as to whether or not there is further evidence that you need beyond what you foreshadowed to me, namely your own evidence, but the matter will need to be prepared properly, carefully and expeditiously.
I think what I should do and I am only foreshadowing this at the moment, to make sure that this matter moves along, is to indicate the time before which a hearing should not be fixed but I should direct that the matter come back before me for directions to ensure that you are getting this matter ready for hearing.”]

28 These are the orders that I make:

1. I vacate the hearing fixed for today, namely the 29 ^th , and for tomorrow, 30 September 2010.

2. The matter is to stand in the Registrar’s list on Thursday 30 September 2010 for the purpose of fixing a hearing after 19 November for two days.

3. The applicant is to file and serve upon the respondent answers to the request for particulars made on 2 August and 16 September (the dates of the letters) on or before 29 October 2010.

4. You are to file and serve upon the Department any further evidence upon which you wish to rely on or before 29 October.

5. I list the matter for mention before me for further directions on 2 November 2010 at 9.30am.

6. I order the applicant to pay costs thrown away by the granting of the adjournment today, such costs to be in the sum of $10,000 and to be paid to the respondent within two months of today’s date.

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