Thaler v Cooma Monaro Shire council (No 2)

[2014] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation:	Thaler v Cooma Monaro Shire Council (No 2) [2014] NSWLEC 51
Hearing dates:	8 May 2014
Decision date:	08 May 2014
Jurisdiction:	Class 6
Before:	Sheahan J
Decision:	Hearing dates vacated and directions made (see par [20])
Catchwords:	PRACTICE AND PROCEDURE: Vacation of hearing dates - principles to apply - utility of refusal when adjournment appears inevitable.
Cases Cited:	Aon Risk Services Australia Limited v ANU [2009] HCA 27; (2009) 239 CLR 175 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
Category:	Procedural and other rulings
Parties:	Andrew Thaler (Appellant) Cooma Monaro Shire Council (Respondent)
Representation:	Appellant in person R O'Gorman-Hughes, barrister (Respondent) Litigant in person (Appellant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	60566 of 2013

Judgment

Introduction

1. This is an application by Mr Thaler to vacate the dates set for the hearing next Monday and Tuesday of his Class 6 appeal against his conviction by the Local Court in Cooma for failing to comply with conditions of development consent.

1. The appellant's Notice of Motion ("NOM") seeking the vacation of the hearing was filed yesterday, and suggests that there be a mediation before the matter returns to the list.

1. The principles to apply to motions to vacate or adjourn hearings were concisely summarized in Kenoss Pty Ltd v Palerang Council ("Kenoss") [2013] NSWCA 174, by Ward JA, who said (at [13]):

The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.

1. The discretion, including as to costs as a remedy for resulting prejudice, has to be "exercised in the context of the common law adversarial system as qualified by changing practice and that this is not a system which today permits disregard of undue delay" (Kenoss at [16], citing Aon Risk Services Australia Limited v ANU [2009] HCA 27; (2009) 239 CLR 175, per French CJ at [24]).

This Appeal and Notice of Motion

1. After a series of directions hearings from 13 September 2013 up to and including 7 February 2014, the appeal was fixed for hearing on 12 - 13 May.

1. Under a series of directions and orders made largely by consent, the applicant was to file and serve his evidence, and written submissions setting out his grounds of appeal, by 11 April 2014, and the respondent its evidence and submissions by 2 May. None of those documents have been filed, but Mr Thaler told the Court he has 1,000 pages of material to place before the Court.

1. Council's solicitors sought to have the matter listed before the Duty Judge on Friday 2 May 2014 for further directions, and I, as List Judge, directed that the matter go before the Registrar for a telephone call-over, which occurred on Monday 5 May. The appellant indicated that he wanted to have the hearing vacated, so that the "extra ordinary (sic) meeting", or "mediation conference", which he has proposed for the parties, to be facilitated by the local State MP, could take place.

1. His NOM now before the Court is supported by an unsworn affidavit, in which he deposes (par 8) that it was only a week ago, on 1 May 2014, that he "received a credible offer from the State Member ... to facilitate" such a meeting/mediation, and (par 12) that he will seek to submit that proposal to the Council meeting scheduled for Monday 12 May, or (par 13) to the Council's June meeting.

1. He noted, in an email dated 5 May, that mediation had been suggested numerous times by various List Judges, and that he has "always been open to the idea of resolving this issue via mediation". He was not specific about the meaning of the term "this issue" in that comment, and appears from his materials to have many issues with the Council.

1. The Council has filed an affidavit in response. It does not (at least not yet) agree to any mediation. It opposes vacation of the hearing but accepts that, if 1,000 pages of material is now filed, next week's hearing would probably need to be adjourned.

1. Whether vacated or adjourned, the postponement of the full hearing is a direct result of the appellant's failure to comply with the timetable set in the pre-hearing directions.

Discussion

1. The only question before the Court in these appeal proceedings is the correctness or otherwise of the appellant's conviction.

1. While this Court supports mediation of civil disputes, the actual correctness of the conviction would not normally be regarded as susceptible to mediation.

1. The appellant contends, in various documents in the Court file, that the Council's prosecution, and its resistance to his appeal, are "purely vexatious ... payback", or "retribution", for his actions on various Council issues over the years, and today says that the Council is guilty of "clever and destructive lies". However, he has not articulated to the Court, in the usual way in which he was directed to do, his grounds of appeal against his conviction. One ground he raised this morning is an allegation of bias on the part of the Local Court.

1. The appeal as it stands must either be determined by this Court or withdrawn by the appellant. Part of the outcome of a mediation of the wider dispute between Council and the appellant could be some agreement as to its disposition, or perhaps its withdrawal, by consent. In the absence of a determination of the appeal in his favour, by this Court, the appellant's conviction in the Local Court stands.

1. Ward JA concluded in Kenoss (at [17]) that the circumstances of that case, and the efficient case management of matters within her court, did not satisfy her that she should vacate the hearing date. Her Honour, therefore, dismissed the motion, with costs.

1. The case management of the present appeal has been derailed by Mr Thaler's disobedience of directions, mostly made by consent, and such a long delay in his compliance, in terms of filing grounds of appeal, an application for leave to file fresh evidence, and his submissions, has not been satisfactorily explained in his supporting affidavit or his oral submissions today.

1. I regrettably have concluded that the hearing cannot proceed effectively next week, and ought be vacated today, rather than adjourned part-heard on Monday. That vacation is squarely the result of the appellant's continued failure to comply with the amended timetable(s) to which he agreed.

1. I will set a new timetable, in terms the appellant suggested in dialogue with the bench, and I have explained to Mr Thaler that he cannot expect any further extension.

1. The Orders of the Court are:

(1)   The hearing fixed for 12-13 May 2014 is vacated.

(2)   Each party is to pay its own costs of today.

(3)   I reserve the Council's costs thrown away as a consequence of the vacation of the hearing.

(4)   The parties are to file sworn originals of the affidavits upon which they respectively relied at today's hearing.

(5)   The appellant is to file and serve by 2 June 2014 any evidence on which he intends to rely in the appeal, written submissions setting out the grounds of his appeal, and any application for leave to rely on evidence beyond that which was before the Local Court.

(6)   The respondent is to file its response on the question of leave by 20 June 2014.

(7)   The matter to stood over to the List Judge list on Friday 4 July 2014 for the setting of hearing dates and the giving of any further directions in respect of determining the question of leave and/or the appeal itself.

(8)   Liberty to apply on 3 days notice.

**********

Decision last updated: 13 May 2014