Walton v Blacktown City Council

[2011] NSWLEC 211

Land and Environment Court

New South Wales

Medium Neutral Citation:	Walton v Blacktown City Council [2011] NSWLEC 211
Hearing dates:	16 November 2011
Decision date:	16 November 2011
Jurisdiction:	Class 1
Before:	Biscoe J
Decision:	Extend time to file amended summons commencing appeal and other orders indicated in paragraphs 9 and 10 of judgment.
Catchwords:	PRACTICE & PROCEDURE:- motion to dismiss as vexatious etc appeal from decision of Commissioner - motion to extend time for filing amended summons concerning appeal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 97(1) Land and Environment Court Act 1979 s 56A Uniform Civil Procedure Rules 2005 r 13.4
Category:	Interlocutory applications
Parties:	Lance Walton (Applicant) Blacktown City Council (Respondent)
Representation:	COUNSEL: Mr C Adamson (Applicant) Mr D Loether, solicitor (Respondent) SOLICITORS: Chris Adamson (Applicant) Bartier Perry (Respondent)
File Number(s):	10829 of 2011

EX TEMPORE Judgment

1. These proceedings are an appeal against a decision of a Commissioner of the Court under s 56A of the Land and Environment Court Act 1979. Such an appeal is limited to questions of law.

1. I am now dealing with two notices of motion. The first is by the respondent, Blacktown City Council for an order that the appeal be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, which provides:

"13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

1. The second notice of motion, filed subsequently, is by the applicant, Mr Lance Walton, seeking an extension of time for the filing and service of an amended summons commencing the appeal.

1. The background is that Mr Walton and Ms Linda Walton appealed under s 97(1) of the Environmental Planning and Assessment Act 1979 against conditions imposed by Blacktown City Council when granting a deferred commencement consent on 9 March 2011 for a five bedroom group home at 8 Kirkman Road, Blacktown.

1. On 17 August 2011 a Commissioner of the Court allowed the appeal in part and approved the development application subject to conditions. Those applicants had legal representation before the Commissioner.

1. On 13 September 2011, and without the benefit of legal assistance, Mr Walton filed a summons commencing an appeal against the whole of the Commissioner's decision under s 56A of the Land and Environment Court Act . The appeal grounds specified in that summons are incomprehensible.

1. The events thereafter in the way of communications between the parties and at directions hearings are recounted in the affidavit of the council's solicitor. In a nutshell, the applicant was informed that the council could not understand the grounds of appeal and this was mentioned at directions hearings before the Registrar. The Registrar directed the applicant to file and serve an amended summons that clearly articulated the grounds of appeal.

1. He filed a document entitled "Amended Facts and Contentions" covering about 30 pages, which is incomprehensible.

1. Later, on 26 October 2011, he filed an amended summons commencing an appeal covering about 24 pages, which is also largely incomprehensible.

1. Further criticism may be made of the applicant's filed documents that they include numerous acerbic, impolite and otherwise inappropriate comments. All those documents were drafted by Mr Walton without legal assistance.

1. This history led to the council filing on 31 October 2011 a notice of motion to dismiss the appeal proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules.

1. However, by 11 November 2011 the applicant had retained the solicitor who had represented him in the proceedings heard by the Commissioner. With the assistance of that solicitor, the applicant filed a notice of motion on 11 November 2011 seeking an extension of time for filing and service of an amended summons. The solicitor's supporting affidavit indicated that he was first instructed in the appeal on 9 November 2011 and needed a short period in which to review the matter and to investigate the prospects of the appeal.

1. It was in these circumstances that the two notices of motion came before me for hearing today.

1. A significant development occurred at the hearing today. The applicant's solicitor handed to me, and sought leave to file, an amended summons commencing the appeal. It appears to overcome the very considerable problems associated with the documents earlier filed by the applicant. Except for this development, I would have been minded (subject to hearing submissions) to uphold the respondent's complaint and to make a guillotine order giving leave to the applicant to file an amended summons within 14 days, failing which the proceedings would be dismissed.

1. Now, by consent, I propose to: extend the time to file an amended summons commencing this appeal to today; grant leave to file the amended summons today in Court; dismiss the council's notice of motion save as to costs; order the applicant to pay the respondent's costs of the proceedings after 5 October 2011 to today; and give directions as to evidence and submissions in readiness for the hearing of the appeal.

1. Accordingly, by consent, I make orders in accordance with the short minutes of order dated 16 November 2011, which I sign and place with the papers. I note that the matter will be before the list judge for directions on 10 February 2011 to obtain a hearing date for the appeal.

Decision last updated: 21 November 2011