Woollahra Council v Duarte (No 2)

[2013] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woollahra Council v Duarte (No 2) [2013] NSWLEC 12
Hearing dates:	8 February 2013
Decision date:	08 February 2013
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Hearing date vacated and new hearing dates fixed.
Catchwords:	PRACTICE AND PROCEDURE - motion to vacate hearing date.
Category:	Procedural and other rulings
Parties:	Woollahra Council (Applicant) Charmaine Duarte (First respondent) Rodney Duarte (Second respondent)
Representation:	COUNSEL: A Hudson (Applicant) C Duarte, in person (First respondent) R Duarte, in person (Second respondent) SOLICITORS: Wilshire Webb Staunton Beattie Lawyers (Applicant) N/A (Respondent)
File Number(s):	40330/11

EX TEMPORE Judgment

1. This is an unopposed motion by the first respondent, Charmaine Duarte, to vacate the hearing in three days time of two separate questions in the proceedings. The second respondent, Rodney Duarte, has filed a submitting appearance but appeared on the hearing of the motion to support it.

1. In summary, Ms Duarte's supporting affidavit states that on 17 January 2013 she received a notice of ceasing to act from her solicitor as a result of non-payment of fees. She alleges that she paid $15,000 to a man, whom she describes as a "disbarred solicitor" and whom I will call X, for his assistance in the matter and to pay for legal fees. She says that half that sum comprised a bank cheque for $7,500 payable to her solicitor's firm for counsel's fees which she instructed X to deliver to the solicitor. She says that instead X paid the bank cheque to that firm on behalf of a woman with the same surname as X for that woman's fees for counsel in another matter which has nothing to do with the respondents. Of the remaining $7,500, she says that only $2,700 was paid by X to her solicitor's firm. Thus, serious misconduct in the nature of fraud appears to be alleged against X resulting in Ms Duarte being legally unrepresented. It is because of the serious nature of this charge and the fact that neither X nor her former solicitor have been heard by me in relation to it that I think it is fair, at this stage, to refer to him anonymously as X.

1. As a result of these events, Ms Duarte now says that she needs an adjournment to obtain legal representation as she does not have the expertise to argue the case herself. She says that she has been trying without success to raise money for legal representation since she received her solicitor's notice of ceasing to act. She speaks of the possibility of having to sell her house to raise money.

1. In these extraordinary circumstances, I am persuaded that the hearing date should be vacated. I propose to appoint new hearing dates in about 10 weeks time. That will give Ms Duarte an opportunity to raise money to pay for legal representation. I also propose to direct the parties to confer within the next two weeks since the possibility of a settlement has emerged. Finally, it will be necessary to extend the time for compliance with Order 3 made on 23 November 2012 that the parties file an agreed statement of facts and an agreed bundle of documents by 25 January 2013. That order has not been complied with.

1. The orders of the Court are as follows:

(1)   The hearing date of 11 February 2013 is vacated.

(2)   The separate questions will be heard on 30 April and 1 May 2013.

(3)   The parties are to confer within 14 days.

(4)   Extend the time for compliance with Order 3 made on 23 November 2012 to 9 April 2013.

(5)   The costs of the second respondent's notice of motion filed on 6 February 2013 are reserved.