Walker v Manly Council

[2011] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation:

Walker v Manly Council [2011] NSWLEC 21

Hearing dates:

17 February 2011

Decision date:

17 February 2011

Before:

Craig J

Decision:

1. Application for adjournment refused

2. Registrar's decision and orders made on 9 February 2011 to remain

Catchwords:

PROCEDURE:- application for adjournment - potential impairment of cognitive function by medication being administered - inadequacy of medical certificate - interests of justice - application refused - orders of the Registrar upheld

Legislation Cited:

Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979

Category:

Procedural and other rulings

Parties:

Hugh Walker (Applicant)
Manly Council (First Respondent)
Cheryl Forrester Babcock (Second Respondent)

Representation:

Counsel:
M D Seymour (Applicant)
A M Pickles (First respondent)
TS Hale SC with RM O'Gorman-Hughes (Second respondent)
Solicitors:
Sattler & Associates (Applicant)
Pikes Lawyers (First respondent)
Watson Mangioni Lawyers (Second respondent)

File Number(s):

40533 of 2010

EX TEMPORE Judgment

1. At the commencement of the hearing today, Mr Walker filed in Court, with the consent of the other parties, a notice of motion by which he sought two orders. First, was a review of the decision made by the Registrar on 9 February 2011 refusing to vacate the hearing dates that had been fixed to commence today. Secondly, application was made to adjourn the hearing of the proceedings by reason of the state of health of the Mr Walker.

1. In order to consider the application for adjournment and review of the Registrar's decision, it is necessary to state briefly some background facts. These proceedings were commenced by summons filed by Mr Walker on 5 July 2010. By that summons he seeks to challenge, as being invalid, a development consent granted by the first respondent to the second respondent on 8 August 2008. By that consent, approval was given to a twelve lot community title subdivision of land that appears to adjoin or be in close proximity to land owned by the applicant.

1. The Council's decision to grant development consent was publicly notified on 16 August 2008 in purported compliance with the provisions of s 101 of the Environmental Planning and Assessment Act 1979. The evidence before me on this notice of motion to adjourn the hearing does not explain why it was that proceedings were not commenced for almost two years after the consent was granted and the s 101 notice published.

1. In support of the motion to review and adjourn, the applicant relies upon the evidence that was led before the Registrar together with a further medical certificate provided by Dr Alex Lim on 15 February 2011. The application for adjournment is not opposed by the Council but is opposed by the second respondent.

1. The substance of the application for adjournment is really this. The applicant was injured when he fell from a ladder on 1 January 2011. His injuries were severe. Those injuries comprised eleven rib fractures, a comminuted fracture of the left clavicle, four fractured vertebrae where ribs join the spine, a collapsed left lung and blood deposits between the inside of the ribs and the lung. Those injuries resulted in Mr Walker being admitted to Royal North Shore Hospital where for some days he was treated in the intensive care unit. He spent a total of eight days in that hospital. Both during the time he spent in hospital and since his discharge, Mr Walker has taken analgesic drugs in order to treat his pain, including drugs that contain morphine.

1. At the time at which the motion to vacate the hearing dates was before the Registrar, the application was supported by an earlier medical certificate provided by Dr Lim. That certificate is dated 3 February 2011 and while it does not make the position abundantly clear, it would seem from evidence adduced today that Dr Lim is the general medical practitioner currently treating Mr Walker. Although the second respondent complained that the basis for Dr Lim's opinions is not made clear, I draw the inference that he is the treating general practitioner from the fact that there has today been produced in Court and read onto the record a list of the medication currently being taken by Mr Walker with the pharmacist's labels attaching to that medication indicating that the prescribing doctor is Dr Lim.

1. The motion to vacate the hearing dates and determined by the Registrar was not filed until 4 February 2011. The hearing dates of this matter had been fixed by the Registrar on 3 December 2011. That fact is relevant as the hearing dates were well known at the time at which Mr Walker sustained his injuries. Why it was that the application to vacate the hearing was not made until 4 February is not explained in the evidence before me.

1. As I have said, the evidence that has been brought forward today in support of the application for adjournment is the same as that which was before the Registrar, with the addition of a further medical certificate from Dr Lim to which I have earlier referred. While one does not doubt that Dr Lim's opinions are genuinely held, his evidence, by reason of its brevity, leaves much to be desired in the context of the application presently being made.

1. While it may have been thought appropriate or sufficient to annex a handwritten certificate to the affidavit of the applicant's solicitor in support of the motion before the Registrar, it was abundantly clear, as appears from the matters put to me, that following the Registrar's refusal of the application to vacate the hearing date, the second respondent indicated its opposition to any further application for adjournment of the hearing. This position was made clear to the applicant's solicitors when it was indicated that an application of the kind made this morning would be pursued.

1. I would have thought that in these circumstances any further medical evidence to be adduced in support of an adjournment application would have addressed the shortcomings of the report adduced in evidence before the Registrar. I would have expected that any further medical evidence would be far more fulsome in its detail than had been the case of the report dated 3 February and, by reason of the foreshadowed opposition to any application would have been provided in the form of an affidavit. Preparation of evidence in the form of the latter would perhaps have demonstrated to Dr Lim the need to prepare his evidence with some rigour.

1. Perhaps more significantly, it was made clear to the applicant's solicitors upon service of Dr Lim's report of 15 February that if reliance was to be placed upon it, Dr Lim was required to attend. No doubt because he is a busy medical practitioner, Dr Lim has not attended to explain his evidence and thus its shortcomings remain.

1. In his medical certificate of 15 February, Dr Lim has written that Mr Walker is not fit to attend Court "due to pain and clouded memory and thought processes caused by morphine based pain killers he is taking". The report continues, "the stress of being cross-examined in court will make him worse." One of the shortcomings of that report as identified by the second respondent is an absence of any demonstration as to how Dr Lim reached the conclusions that he expressed. Whether it is based upon a general medical consensus that morphine based drugs have the effect that he identifies or whether based on examination of Mr Walker is not stated. If it is based upon some examination of Mr Walker then one would have expected a statement as to the nature of that examination demonstrating the impairment to his cognitive functions that Dr Lim identifies.

1. Mr Hale SC, who appears for the second respondent, has tendered to the Court an extract from a medical text suggesting that the effects on cognitive and psychomotor functions "are less clear, but are thought to be minimal for most patients receiving stable opioid doses chronically." I readily accept that a statement so cryptically expressed and at such a level of generality should not necessarily be transposed so as to reflect the way in which the medication taken by Mr Walker will affect him. Nonetheless, one would have expected in the face of the controversy obviously identified, that medical evidence would be forthcoming seeking to demonstrate the extent to which medication presently being taken by Mr Walker will effect his capacity to give evidence.

1. The applicant's case has not yet been opened to me. However, so far as I understand it from the brief outline given by the parties, the evidence that is to be led or potentially led from Mr Walker is within a narrow compass. It is directed to the inspection by him of a document or documents at a Council facility, said to be a Council library, where Mr Walker attempted to identify documents demonstrating sections of a road or roads to be constructed as part of the community title subdivision. The evidence of what he inspected will go to a time in 2008 prior to the determination by the Council to grant development consent. As I have said, the affidavit going to this matter has not yet been read and the extent to which it is admitted, requiring any further evidence in chief or cross-examination, is not yet clear.

1. The evidence led on behalf of the second respondent for the purpose of opposing the adjournment application supports a number of her submissions. First, reference is made to the delay, unexplained at present, in the commencement of proceedings. Secondly, reference is made to the potential prejudice that the second respondent suffers by further delay in these proceedings. That prejudice, so it is said, flows from the practical blight that attends its land by reason of the challenge to the development consent. The evidence indicates that in reliance upon the development consent granted by the Council in August 2008, expense was incurred and works undertaken on the second respondent's land preparatory to subdivided lots being offered for sale. Indeed, there is some evidence from an estate agent indicating that the lots created by the subdivision had significant value but that while the practical blight created by the proceedings exists, sales cannot realistically proceed. That evidence, admitted only for the purpose of the motion, reveals that to the extent to which some interest had been shown by potential purchasers of these lots, that interest has diminished because of the present proceedings.

1. When determining an application of this kind I am, of course, required to pay heed to the interests of justice. So much is required by s 58 of the Civil Procedure Act 2005 but, as that section makes clear, the dictates of justice require even-handed treatment, taking into consideration the interests of all parties concerned. Further, in taking account of the interests of justice I am also required to take into consideration a number of matters identified in s 58(2) of that Act. Those considerations include the degree of expedition with which the respective parties have approached the proceedings and amongst others the degree of injustice that would be suffered by the respective parties as a consequence of any order that I make.

1. Applying these discretionary considerations, I have decided that the present application for adjournment should be refused. It seems to me that with a keen eye to ensuring that justice is done, the matter can proceed. If it happens that Mr Walker is required to give evidence and, if in the course of that evidence, it becomes apparent that he is suffering a disability such that he cannot do justice to the evidence that he is required to give, then I will indicate to the parties that such an impression has been formed and entertain any further application that is then made.

1. I have reached the decision that the matter should proceed having regard to all of the circumstances that I have earlier outlined but particularly taking account of the delay in commencement of proceedings and, more importantly, the delay in bringing any application for adjournment.

1. A further consequence of my decision at the present time is that I will not disturb the decision of the Registrar made on 9 February last. Furthermore, I will not disturb any of the orders that were then made including the order that the applicant should pay the costs of the respondents in relation to the notice of motion for vacation of the hearing date.

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Decision last updated: 02 March 2011