[2003] HCA 2
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37
Source
Original judgment source is linked above.
Catchwords
[2003] HCA 2
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
EX TEMPORE JUDGMENT
LEEMING JA: Mr Franz Boensch seeks leave to appeal from the interlocutory judgment in class 3 of the jurisdiction of the Land and Environment Court determined on 28 July 2023: Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82. The proceedings are somewhat unusual. Speaking very generally (and without the benefit of most of the ordinary contents of the appeal books or any submissions from the respondents), it seems that Transport for NSW, a neighbouring landowner of land on Victoria Road, Rydalmere, brought proceedings in the Supreme Court by way of trespass against land of which Mr Boensch is registered proprietor.
Those proceedings came before Darke J in the Real Property List and by consent the parties consented to orders whereby Mr Boensch would seek a determination of their common boundary from the Registrar General. Those orders were made so long ago as 6 May 2022 and expressly contemplated on their face the possibility that the Registrar General might, by reason of the statutory regime shortly to be described, refuse to entertain the application. What was contemplated by that notation and in the condition to order 2(b) made on 6 May 2022 has, in short, happened. Thereafter, Mr Boensch sought to appeal to the Land and Environment Court.
What appears to me (but I may be wrong about this) to be the principal basis of his appeal was s 135J of the Real Property Act 1900 (NSW), which authorises an adjoining owner of land who is dissatisfied "with a determination under this Part" to appeal to the Land and Environment Court for determination by the Court of the position of the boundary. Section 135J falls within Part 14A of the Real Property Act. Within the same Part, s 135B authorises applications to be made for boundary determinations (such an application was that which was directed by the orders made by Darke J on 6 May 2022), and s 135D(2) provides that "the Registrar General must refuse to make the determination unless satisfied, on investigation, that there is doubt as to the position of the boundary concerned."
In addition to relying upon the statutory right of appeal conferred by s 135J, Mr Boensch in his Class 3 proceedings also sought to invoke his rights under the Encroachment of Buildings Act 1922 (NSW) and various provisions, notably s 28(2)(a) of the Coastal Management Act 2016 (NSW) and s 55N of the (former) Coastal Protection Act 1979 (NSW).
Mr Boensch's proceedings in the Land and Environment Court joined Transport of NSW and the Registrar General as first and second respondent. Both respondents sought for Mr Boensch's proceedings to be dismissed summarily, and the primary judge (Robson J) acceded to their application. Because the orders dismissing Mr Boensch's proceeding were the result of an application for summary dismissal, rather than the determination of the appeal following a final hearing, it is now (but it was not always) common ground that the decision is interlocutory and while an appeal is available to this Court pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW), not only is it confined in its scope to questions of law, but it is also by way of leave: s 57(4)(d).
What is not before me as far as I can see (despite my having raised it repeatedly with the parties) is the certificate of title for the land which is the subject of the dispute. However there is a variety of secondary evidence including surveys, plans and other diagrams before me which suggest, and it does not seem to be in dispute, that at least on one argument one of the boundaries of Mr Boensch's land is determined by or by reference to a Mean High Water Mark. The essence of the underlying dispute between the parties, at least so far as I understand it, is as to the location of that boundary. If as Mr Boensch contends it is wrongly described on what I apprehend is the certificate of title, then he maintains that he has a defence to the action for trespass which has been brought by Transport for NSW the subject matter of which as I understand it concerns some four shipping containers, a metal shed and various car parts which are located on land which Transport for NSW says is its land, as well as a retaining wall which is said to have been erected at least in part on that land.
I turn to the chronology, which matters in order to determine the principal motion which was debated before me today, namely, that brought by Transport for NSW filed on 15 March 2024.
As I said, the decision of the primary judge was made on 28 July 2023. That was a Friday. On the following Monday, Mr Boensch sent an email to the solicitor who appears before me today for the Registrar General and various solicitors of the firm Holding Redlich saying:
This email is a notification of an intention to appeal this judgment to the Court of Appeal by the applicant Franz Boensch.
However, a notice of intention to appeal was not filed until 30 August 2023. In order to obtain the benefit of a three month period, rather than a 28 day period, for the filing of a notice of appeal, the rules provide that a notice of intention to appeal must not only be served but also filed: Uniform Civil Procedure Rules 2005 (NSW), r 51.8. Precisely how that 28 day period following the delivery of judgment on Friday 28 July 2023 is calculated is not entirely free from controversy. However, the weight of authority in this Court favours the view that one not only excludes Friday 28 July, a course which accords with r 1.11(2), but also that the litigant has until the Monday, four weeks thereafter. That may be seen, for example, in Stankovic v Peter Magee T/as Armstrong Legal [2014] NSWCA 191 at [10]:
The applicant filed the summons seeking leave to appeal on 29 August 2013 without, it would appear, previously filing a notice of intention to seek such leave. The judgment below having been delivered on Friday 26 July 2013, time would seem to have expired on Monday 26 August 2013. No prejudice is asserted or shown to have been caused by a delay of some three days. In my view the applicant should be granted the necessary extension of time.
See also Skates v Hills Industries Ltd [2021] NSWCA 142 at [52] and M & W Zaki Pty Ltd v MindChamps Preschool Ltd [2022] NSWCA 140 at [3]. Whether or not that is so is entirely immaterial. It is common ground that Mr Boensch was either two or three business days late in serving a filed notice of intention to appeal. It is not suggested that any prejudice was suffered by either respondent in those two or three business days, and if that were the only delay, there is no reason to take any course different from that which was adopted in the passage from Stankovic I have just mentioned, especially given the fact that Mr Boensch did give prompt (albeit unfiled) notice of his intention to appeal.
The non-compliance, however, with the time for filing a notice of intention to appeal, has consequences for the delay in filing a notice of appeal. That did not occur until 29 November 2023. It is not necessary to explore in full the ways in which the minor breach concerning the notice of intention to appeal works its way through the consequential delay with the notice of appeal, as occurred in oral submissions on behalf of Transport for NSW. Taking the most favourable view to Mr Boensch, that is to say, giving him a three month period within which to file a notice of appeal, he was approximately one month late in doing so. I do not understand there to be any dispute that Mr Boensch needs an extension of time, in order to bring his application for leave to appeal.
There is in fact no application formally before me today to extend the time for the appeal. That is consistent with the ordinary practice of this Court. One highly salient consideration in deciding whether to refuse or grant an extension of time, is the strength or otherwise of the appeal for which the extension of time is sought. Ordinarily, it is much more efficient for the strength or otherwise of the appeal to be determined following a full hearing of the appeal. Of course, there are exceptions to that rule, no differently from any other rule.
What has happened today is that the first paragraph of Transport for NSW's notice of motion filed on 15 March 2024 seeks to have the notice of appeal dismissed as incompetent. Seizing upon the fact that he needs an extension of time, it invites me to find that there is an inadequate explanation given by Mr Boensch for his delay and that the appeal enjoys insufficient prospects of success to warrant the extension of time. Submissions in support of those propositions were concisely and, if I may say so, effectively, advanced on behalf of Transport for NSW by Mr Shearer, who has only very recently come into the matter. He invited me to conclude that the appeal was at best "weak."
The difficulty I have in exercising the discretion to decline to extend time and here and now dismiss the appeal was debated in argument and comes about because of procedural difficulties which seem to have beset both respondents. I have already mentioned that I do not have the benefit of appeal books save for a version of a red book. Nor, more importantly, in an appeal which is confined to questions of law, do I have the benefit of any written submissions from either respondent on the substance of the matter. Undeterred by this, Mr Shearer orally sought to persuade me that the primary judge was right essentially for the reasons he gave on the various questions of law, notably the limited scope of s 135J of the Real Property Act. That is a little difficult though without a full analysis of the Act as rapidly became clear in argument.
Ultimately I understand Transport for NSW to accept, in my view entirely properly and consistently with Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, that (a) review at least to the extent of review for jurisdictional error must be available from the action of the Registrar General declining to determine the boundary, and (b) it would be necessary in order to construe the scope of the right of review conferred by s 135J and in particular the words quoted above, "a determination under this Part", to examine the scope of other avenues of judicial review. Unsurprisingly none of that may be seen in the written submissions supplied in support of his appeal by Mr Boensch. None of that seems to have been addressed by the primary judge (in making that observation I am not expressing any criticism of his Honour it may well be a reflection of the submissions that were made to him).
It seems to me that the question of the true construction of 135J(1) of the Real Property Act and whether as the primary judge held a "determination under this Part" does not extend to a refusal to make a determination has occurred in the present case, is a pure question of law. It would be possible for me sitting alone to determine that pure question of law. However there are two reasons which lead me to conclude that it would be wholly inappropriate for me to do so.
The first is that it is a question of general application as to which so far as I am aware and certainly so far as I have been told by the parties is not the subject of any existing authority. And it is far from clear to me for reasons that I have sought already to indicate that I have had anything like the benefit of full submissions on the point. It may well be that Robson J was entirely correct to conclude as his Honour did, but it is plain that his Honour has not addressed all of the matters to which I have referred.
The second reason is that if I were to decide the matter here and now, in the way sought by Transport for NSW, then Mr Boensch would have an entitlement pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) to review my decision before this Court constituted by three Judges of Appeal and precisely the same issue would arise. Either my decision would be held to be right or be held to be wrong, and it is clear that determining the matter at this early stage by a single judge not on a final basis would not resolve Mr Boensch's proceedings in this Court if he were prepared to review my orders.
Nothing in what I have seen in the litigious history of Mr Boensch persuades me that there is anything other than a real prospect that were I were to rule as invited by Transport for NSW that s 135J(1) was as narrow as held by the primary judge he would not seek to review that decision.
Those appear to me to be very powerful reasons to let this appeal take its ordinary course and to have the matter determined ideally after better argument and certainly with the benefit of written submissions which I have not enjoyed before this Court constituted by three Judges of Appeal.
I would add to that that the Registrar General has on very short notice from me appeared only in the afternoon of the hearing today. The Registrar General has confirmed that the Registrar General's attitude is to let the appeal take its ordinary course. The consequence of that is that in determining the construction of s 135J I have not had the benefit of submissions from the Registrar General.
I have focussed so far on s 135J(1) because on a reading of the reasons for judgment of the primary judge it appeared to be the principal basis or matter arising for determination before his Honour and prominent in the grounds of appeal. There are other questions of law that Mr Boensch has mentioned. They include the construction of s 28 of the Coastal Management Act, and those matters confirm my conclusion that this is not a case where I should conclude that an extension of time should not be given and therefore the appeal should be dismissed.
Those are the reasons for dismissing paragraph 1 of Transport for NSW's notice of motion, a result which I indicated I had reached shortly before the lunchtime adjournment.
The second aspect of Transport for NSW's application anticipated the possibility that the appeal would not be dismissed as incompetent and instead sought security for costs. The notice of motion nominated the amount of $68,317.13. It did not specify a time for the provision of that security, and for the reasons I am about to give, that is at the heart of the problems confronting this aspect of the notice of motion. I have mentioned that although the notice of appeal filed by Mr Boensch in November 2023 was late, I do at least have the benefit of his written submissions on the appeal. They were filed I think also a little late, but so long ago as 6 March 2024. On the other hand, there has been a series of non-compliance by both respondents, each of whom is in effect a representative of, or an emanation of, or an authority established by statute by, the State of New South Wales.
The procedural history so far is presently as relevant as follows. Mr Boensch's appeal came before the Registrar of this Court for the first time on 7 February 2024. As is usual, a date for the final hearing in this Court was then and there given. That date was 26 April 2024, that is to say Friday week, and I note that next Thursday is Anzac Day so it is in five working days. The appellant's submissions were to be filed and served by 26 February and as I have noted as it happens, they were about eight or nine days later than the timetable. The respondents' submissions were to be filed and served by 25 March 2024.
The matter came again before the Registrar on 28 February 2024 and the time was extended so that the respondents were to file and serve their submissions by 3 April 2024.
Neither of those orders was complied with and the position today, a week and a bit before the appeal is to be heard, is that neither respondent has supplied written submissions responding to those supplied by Mr Boensch on 6 March 2024. Conspicuous by its absence from the affidavit material supplied by Transport for NSW in support of its application for security for costs was any explanation for why there had been repeated non-compliance with this Court's orders.
Mr Shearer, who as I have said has only very recently come into the matter, anticipated the difficulties that the non-compliance with the timetable might occasion and proposed a further revised timetable which had the respondents filing and serving their submissions by next Monday 22 April 2024. Ms Jeavons, who joined us for the afternoon, having apparently been under the impression that her client was not a party to the motion, advised that the Registrar General's submissions had been either finalised or were nearly finalised and could be supplied by next Monday if indeed not earlier, and that they had not been filed previously because of the pendency of Transport for NSW's motion. It may well be that there was an oversight by either or both respondents and I am not to be understood as making some finding that there was a deliberate non-compliance with the orders. However it is to be regretted that respondents both of whom have an interest in the outcome of the particular appeal and at least one of whom has an ongoing interest in this Court's determination of the construction of the Real Property Act have not earlier provided submissions on matters which, as I say, I regard as of some importance. Nonetheless the belatedly constructive effective approach propounded by Transport for NSW does provide at least a chance for the appeal being heard and determined on the date set for next Friday.
That may seem a long way away from the application for security for costs but the fact of the matter is that for reasons that are not known to me and I completely accept are not known to Mr Shearer, his client's motion for security for costs was only filed on 15 March and has only come for hearing before me five working days before the appeal is to be heard. In some ways that makes the application easier to deal with. As I indicated during argument, there is no point in making a conventional order say that the appellant provides security in a certain amount within 14 or 21 days of today in default of which the appeal is stayed. The appeal is listed for hearing imminently, and it is both respondents' positive position that it be heard on Friday week 26 April 2024. Accordingly, order for security in the conventional form would have no utility whatsoever.
Confronting this difficulty candidly, Mr Shearer said that the order he would seek would be an order that security be provided by say next Monday, and apprehending the potential for prejudice, his submission was that because Mr Boensch would be unable to provide any substantial amount of security either in the short, medium or long term, the extremely short timetable did not give rise to any substantial prejudice.
Although I appreciate the artful way in which counsel's submission grappled with the factual difficulties he was confronted with, I do not accept that that submission is an answer to the difficulties confronting the motion.
The basic point is that applications for security for costs should be brought promptly. When an application for security for costs is brought in the Court of Appeal, that promptness needs to be informed by the reality that most ordinary appeals are allocated hearing dates on the first return date. It is true that that accelerated timetable that applies in this Court may give rise to practical difficulties in some matters. To the extent that that presents a difficulty in cases where the respondent it unapprised of any entitlement to apply for security for costs, this case is undoubtedly not such a case. That is because prominent in the submissions and materials before me is the fact that these same parties who are actively involved in the motions, namely Mr Boensch and Transport for NSW, have in November 2023 and January and February of this year been litigating in the Equity Division over the costs of various interlocutory orders, and one of the aspects that has emerged and indeed affidavits that have been read in the Equity Division have been supplied to me is Mr Boensch's relative impecuniosity. That evidence was deployed in support of an application for a gross sum costs order in relation to some interlocutory costs which a judge in the Equity Division was persuaded to make, although his Honour was not persuaded to order that the costs be enforced forthwith.
All that I am saying is that in the particular facts of this case, there was no reason for Transport for NSW to be unaware that there was an available basis for seeking security for costs of his appeal. The appeal was filed in November 2023. The evidence is not entirely clear as to this point but taking the most favourable approach to Transport for NSW, that notice was served in mid-January 2024. As I say the matter came before the Registrar on 7 February and it was not until 27 February 2024 that an initial threat of security for costs was made having regard to investigations stated concerning Mr Boensch's financial position, and it was not until 15 March that the formal notice of motion was filed.
That is to say, the notice of motion seeking security for costs was filed a little around six weeks before the time the appeal was listed for hearing and after the respondents were in receipt not only of the notice of appeal but also the appellant's submissions.
There is nothing novel about the proposition that applications of this nature should be made promptly. In Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231 at [16], this Court constituted by Bell P, Simpson AJA and me said:
An application for security for costs should be made promptly: see Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [68] ff and the cases there cited. A defendant in possession of sufficient information to justify an order who stands by while a plaintiff expends resources (and time) on preparation may fail if an application is later made: Morris v Hanley [2001] NSWCA 374.
That paragraph so it seems to me aptly describes the position that Transport for NSW finds itself in today.
Transport for NSW relied upon an earlier decision of PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 although that was a reference to security for costs being ordered at trial. The application of principle governing the order for security for costs for appeals is quite different from that at trial, at least in most cases. It reflects the basic fact that the incurring of costs is quite different in this Court than it is at trial. In this Court the record has already been established. From a respondent's point of view the principal expense often (I am putting to the side unusual cases such as where there is a substantial notice of contention) is in the supply of written submissions responding to those of the appellant and in the preparation and hearing of the appeal itself. There is often little cause for any substantial expense to be incurred in the initial stages which involve the preparation of appeal books.
That gives rise to a peculiarity of Transport in NSW's application for security for its costs. In the Land and Environment Court, where on its application for summary dismissal, it was successful, the evidence before me is that Transport for NSW's total costs were $21,409. The evidence before me is that Transport for NSW has already incurred and anticipated costs of responding Mr Boensch's appeal in this Court are $87,217.26. It is difficult to see why the costs of responding to an application for leave to appeal on questions of law in this Court should be many times the costs of obtaining the orders at first instance where Transport for NSW was the moving party. An examination of the evidence reveals that at least one substantial contributing factor to this disproportionality of costs is the amount of costs that has been spent in this application for security for costs. It is very difficult to read the annexure to the affidavit in support by Ms Christine Helen Jones, because the typeface is either six or seven point, and the photocopying is very blurred. But doing the best I can, of the more than 90 lines of work descriptions and hourly rates and amounts charged that have been compressed onto a single A4 page, it appears that around half, or perhaps slightly less than half, of the total costs are devoted to this belated application for security for costs. Certainly, the majority of the costs in Ms Jones' affidavit are either costs that have already been incurred, or are costs incurred in support of the application for security for costs. It is difficult to see why any security should be ordered in relation to costs which have already been incurred.
Mr Shearer, in answer to my question on this point, said that there was a broad discretion to order security for costs, and the discretion extended to ordering security for costs which had already been incurred. I accept that submission. However, in the ordinary course, orders for security for costs relate to costs to be incurred into the future. It is ordinarily quite unfair to permit one party to proceed to incur costs, only later to find that the price of hearing and determining the appeal is to provide security. That is one reason why orders for security for costs should be sought and made early in the proceedings. It is also ordinarily unfair for one side, a respondent, to be permitted to incur expense and time, defending an appeal, and then belatedly to seek to improve its position, and to obtain security for those costs, in the event that its defence is successful. That is another reason why applications should be heard and determined promptly.
Those considerations loom very large in the present case. If the appeal date is maintained - and that is the avowed preference of both respondents, including that of the Registrar General, who has not participated in Transport for NSW's notice of motion, and whose stance is that the appeal should be progressed as efficiently as possible - then only an order that requires Mr Boensch to provide some measure of security in the next days, by which I mean two or three or four days, will have any effect. As previously noted, if a conventional form of order, which provides for security in 14 or 21 days is made, that will have no impact upon the hearing of the appeal.
As indicated shortly before giving these reasons, I am not minded to deny Mr Boensch his entitlement to have his appeal on Friday week, on a belated application by Transport for NSW for security to be provided in a few days, in circumstances where Transport for NSW has not itself complied, either with the principles governing the prompt application and determination of applications for security for costs, or with the orders repeatedly made by the Registrar of this Court to supply submissions in answer to his appeal. In those circumstances, it is not necessary to say anything more about the quantum of the costs, for which security was sought. For those reasons, I shall dismiss the notice of motion filed 15 March 2024.
Also before me, but occupying vastly less time, is a notice of motion of Mr Boensch's dated 27 March 2024. Its essence was to seek the following.
First he sought to expand his appeal, to seek leave from various interlocutory judgments, in the Equity Division of this Court, to be joined within it. As pointed out to him, and as I apprehend he accepted, albeit reluctantly, that gives rise to substantial administrative problems. Even if the appeal were not to proceed on Friday week, there would be difficulties, because different material was before the two different judges, and so there would be a need for different appeal books, or at least some delineation, so as to make it clear what evidence was relevant to each appeal. But in circumstances where, as again I indicated to Mr Boensch during the argument, I am minded to maintain the hearing date of Friday week, it is plainly impossible for any application for leave to appeal, from those judgments, to be somehow merged within that appeal.
The second order relates to a matter which is obviously of some concern and importance to Mr Boensch, although it may well be of limited or no importance to the issues in this Court (as opposed to the Land and Environment Court). It is that Mr Boensch is of the view that there was some evidence that was, in his words "concealed" from him. As I understand it, there is, within that category, evidence that he wishes to rely upon that was not before Robson J. Mr Boensch, like any other litigant, has an entitlement to make application to adduce further or fresh evidence before this Court.
In an appeal which is confined to questions of law, Mr Boensch should be under no misapprehension that it is difficult to see how any such evidence will be relevant. Another way of putting this is that, although I do not have submissions from both sides, given the limited scope of the right of appeal that Mr Boensch has engaged, it seems prima facie unlikely that the outcome in this Court will turn on evidence, as opposed to legal submissions principally on statutory construction. But it is not my role, nor is it within my power, to exclude Mr Boensch from making such submissions as he sees fit. It is, after all, his appeal.
I am not minded to accede to his application, in paragraph 2 his notice of motion, to grant unfettered leave to adduce this evidence, in support of his appeal. However, I will make directions, which are designed to do what I can to make the hearing efficient and fair, that any application he makes, to adduce further or fresh evidence in support of his appeal, together with an affidavit, explaining why it was not adduced before Robson J, be filed and served no later than 4pm Wednesday 24 April.
The third order sought by Mr Boensch concerns an expert assisting the Court. As indicated to him because the issues in this court are questions of law, there is no occasion to take that course.
The remaining orders in his notice of motion, I suggested to him, were essentially administrative or interlocutory, and he did not dispute that characterisation. There is no need to mention them any further. So subject to the direction that I have indicated I will make, there is no basis made out for any of the orders sought in the notice of motion dated 27 March 2024, which I shall dismiss. I am happy to hear the parties as to costs, but I am minded to think the cost should follow the event, so that I should dismiss Transport for NSW's notice of motion with costs, and I should dismiss Mr Boensch's notice of motion with costs. That is the usual position under at UCPR r 42.1.
Before I take that course, though, let me turn to the remaining procedural matters. I raised with the legal representatives of both respondents, as well as Mr Boensch, as to whether this was an appropriate case for the appointment of an amicus. Mr Boensch embraced the suggestion; both Mr Shearer and Ms Jeavons said that it was inappropriate. In particular, Mr Shearer said by reference to Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37; [2011] HCA 54 at [4], that I would need to be satisfied that the Court would be significantly assisted by the submissions of the amicus. I am not persuaded that the appointment of an amicus would substantially increase either side's costs. If I were to take that step, the appeal would still be heard and determined in a day. And it is quite possible that the focus that an amicus might give would streamline the hearing of the appeal.
However, on reflection, I am not presently satisfied that it is appropriate at this stage to appoint an amicus. In part, that is because the appeal is so soon, and there will be practical difficulties in obtaining someone prepared to give his or her own time on a pro bono basis to assist this Court. And in part it is because, as already discussed, the respondents have not supplied their submissions to date.
I have flagged with the parties the possibility that when the submissions are supplied, and more particularly, when the appeal is heard, and I mean no disrespect to Mr Boensch in making this observation, but his relative inability to assist on questions of law (I am of the view having heard him at some length that he is more than capable of assisting the Court on questions of history and fact on his land) may give rise to some difficulty, but that is going to be a matter that will have to be dealt with by the Court of Appeal constituted by three Judges of Appeal. So having floated the idea of appointing an amicus, I, at this stage, am disinclined to do so.
Finally, in terms of procedural orders to permit the appeal to be heard and determined, and again, I will hear from the legal representatives of the respondents because it concerns them, my understanding is that, constructively, they are prepared to assume the burden of preparing blue and black books for the hearing and determination of the appeal. If that understanding is correct, in my view, it accords with sensible, efficient practice when dealing with an unrepresented litigant. It can actually, in many cases, save money if the represented litigants assume what is the appellant's burden of preparing the appeal books because it is easy for them to take that course and reproduce the material that is necessary, rather than spending more money going through proposed appeal books prepared by an unrepresented litigant and pointing out what needs to be included and what should be excluded.
As I say, the proposed short minutes of order that was supplied to me before lunchtime by Mr Shearer, seem to proceed on the basis that, constructively, Transport for NSW has already adopted that course, at least in part, and has circulated a draft red and black book on 7 April and 26 March, respectively, and proposes to provide a blue book as well. I would encourage the respondents also to supply an orange book. It might be an orange book that excludes Mr Boensch's submissions in reply, because if the respondents only supply their submissions by next Monday, he realistically will not be able to supply submissions and supply before Wednesday. And it seems desirable that the members of the Court who are hearing and determining the appeal have the books before close of business on Wednesday.
I will now hear from the parties about costs in the form of procedural orders to ready this matter for hearing next Friday.
[DISCUSSION CONCERNING COSTS]
I have heard short submissions on costs. There is a limited opposition to an order for Transport for NSW to pay Mr Boensch's costs following its motion because of the issue of an extension of time. In the scheme of things that is relatively immaterial, and I am disinclined to depart from UCPR 42.1 on that basis. For his part, Mr Boensch suggests that there be no order for costs. That reflects the fact that he frankly recognises that as an unrepresented litigant, he is not entitled to anything other than expenses and disbursements for costs. Once again, I am not persuaded that that is the basis to depart from UCPR rule 42.1. The orders therefore will be that each notice of motion is dismissed with costs.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 April 2024