Byron Shire Council v Wookey

Representation: Counsel:
R Coffey (Applicant)
D Green, solicitor (Respondents)
Solicitors:
Wilshire Webb Staunton Beattie Lawyers
Green & Associates Solicitors

File Number(s): 2024/00278717

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. HER HONOUR: This matter has been on foot since the filing of a summons on 31 July 2024. By a Notice of Motion hearing before Pain J on 15 November 2024, her Honour made orders granting interim relief which preclude the occupation of certain buildings upon the First Respondent's land. The matter came before me for pre-trial mention with the expectation that the matter would be ready to proceed to the hearing that has been fixed on 3 and 4 April 2025. For the first time on that day, it was indicated by the solicitor for the Respondents through his associate who had attended, that and to the best of my recollection, “it may be the only practical outcome is that this matter needs the hearing date to be vacated.”

2. When I inquired as to why that was the only practical outcome in circumstances where this matter had been fixed for hearing for some considerable time and in circumstances where directions had been made for the filing and service of evidence that had not been complied with, and in circumstances where that associate could not, on that occasion, indicate why no evidence had been filed or whether, in fact, any evidence was proposed to be filed, that suggestion was given short shrift.

3. I made a direction on that occasion that if an application to vacate the hearing date was to be filed, that it was to be filed by 4pm yesterday, returnable at 2pm today. Notwithstanding that direction, the Notice of Motion to vacate was not filed until a time after 4pm and the affidavits in support were not available until sometime after the solicitor for the Respondents, Mr Green, arrived today for the 2pm hearing of the Notice of Motion at 2.30pm.

4. The affidavits upon which Mr Green relies is an affidavit sworn by himself, and an affidavit of each of the Respondents, Mr Wookey and Mr Webster. None of the affidavits indicate in any meaningful way what the reason for the non-compliance with the directions that have been made in the past was. However, Mr Green does depose at par 32:

I am still of the view that the respondents will not get a fair hearing without the documents we have sought and that they are prejudiced in that the position set out in the point’s defence remains unaltered.

5. When asked what the Respondents’ position was today, Mr Green has informed me that it is the Respondents’ intention to adduce lay evidence from three witnesses, Mr Davidson, Mr Wookey and Mr Webster, and potentially they will be seeking leave to rely upon the evidence of a town planner, Mr Chan. The necessity for that evidence, upon interrogation of Mr Green, identified that, in fact, the evidence of Mr Chan may not be required but a final decision had not been made.

6. With reference to the documents that Mr Green referred to, it appears that Mr Green still asserts that the Council has documents that his clients require. His clients have taken no steps within these proceedings to obtain those documents, and he now asserts that it may be that he needs to take no further steps but, again, a final decision is yet to be made.

7. In having regard to the matters which I am required to take into account as required by the provisions of the Civil Procedure Act 2005 (NSW) (CP Act) I am to take into account the dictates of justice. The overriding purposes of the CP Act are set out in s 56 and the dictates of justice are set out in s 58. In particular, for the purposes of determining the dictates of justice I must have regard to the provisions of ss 56 and 57 and I may have regard to:

8. The degree of difficulty or complexity to which the issues in the proceedings give rise;

9. The degree of expedition with which the parties have approached the proceedings including the degree to which they have been timely in their interlocutory activities;

10. The degree to which any lack of expedition in approach in the proceedings has arisen from circumstances beyond the control of the respective parties;

11. The degree to which the respective parties have fulfilled their duties under s 56(3);

12. The use that a party has made or could have made of any opportunity that has been available to the party in the course of the proceedings whether under the rules of Court; the practice of the Court or any direction of a procedural nature given in the proceedings;

13. The degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and

14. Such other matters that I consider relevant.

15. Speaking against the exercise of discretion in this case is that the Respondents have, notwithstanding a number of directions that have been made, failed to comply with any direction with respect to the filing of evidence. As I have observed, none of the affidavits upon which the Respondents seek to rely on in this Notice of Motion give any meaningful reason as to why they have been unable to comply with the directions. Mr Webster concedes that he has not given the proceedings priority, preferring to give his endeavour to his business and his aid travels. That, with respect, is not an excuse that would warrant a vacation of the hearing date. Mr Wookey, too, has sworn an affidavit outlining matters outside the scope of these proceedings such as GIPA applications, complaints to the ombudsman and his opinion in relation to the risk of fire, again none of which is relevant to the failure to comply.

16. I do accept that in respect of each of the witnesses, they have in recent times suffered from the natural disasters including Cyclone Alfred and an event in January 2025 but, again, each of those events were well after the occasions on which the directions were made.

17. I further do not consider these proceedings to be sufficiently complex that the directions that were made which took account of the complexity of the matter would dictate that the directions could not be complied with. I also take into account that on a number of occasions in which the matter has been before me that the solicitor who has been instructed to attend has not been sufficiently instructed by the Respondents such that they can provide any meaningful assistance to the Court in relation to understanding why the proceedings have so far gone off the rails, or what could be done to bring it back into a state of affairs where the hearing date could be retained. That, of itself, speaks against the exercise of the discretion.

18. That being said, I must also take into account the fact that it would appear, at least from the submissions made by Mr Green today, that the Respondents’ wish to put on evidence to support their defence and that he indicates that a direction to put that evidence on which contains a “guillotine order” which I understand to mean that the Respondents would not be permitted to rely upon any evidence not filed within such a direction could be made. He has indicated the Respondents would need two weeks to put their evidence on.

19. By that, I also take it to mean that he will take all action that is necessary to put the evidence on including not only preparing the affidavits but obtaining all the necessary documentation he says he requires to comply with such a direction. He also indicates that it would be appropriate in the circumstances for the Respondents to pay the Council's costs thrown away as a consequence of the vacation and that is a matter I take into account.

20. The matter which I consider is of significant weight in the exercise of my discretion is that Pain J made orders granting the interlocutory relief on 15 November 2024. Those orders operate in a way that any risk of the delay of these proceedings has been moderated by compliance with those orders. There is no suggestion by the Council that those orders are not presently being complied with or that there is a risk for which those orders do not address. Mr Green does not seek to modify the terms of any of those orders.

21. Taking all of those matters into account, I propose to vacate the hearing dates of 3 and 4 April 2025 on condition.

22. I accept the Council's submissions that the necessity to vacate the hearing date is wholly the responsibility of the Respondents and the inaction that they have taken in relation to the past orders and directions of this Court. However, I do accept that the directions proposed by Mr Green would give the Respondents their last chance to adduce evidence and they cannot expect that they will be given another chance, and the fact that the directions with the guillotine order was proposed by the Respondents through their solicitor I consider to be of significant weight.

Orders

16. The Court makes the following orders and directions:

17. Vacate the hearing listed on 3 and 4 April 2025;

18. Direct the Respondents to file and serve all evidence upon which they seek to rely, on or before 4pm on Friday, 11 April 2025. The Respondents will not be permitted to rely upon evidence not filed and served in accordance with this order;

19. Direct the Respondents to file and serve its written submissions by 4pm on Thursday, 17 April 2025;

20. The matter is fixed for hearing for three days on a date before Duggan J;

21. Order the Respondents pay the Applicant’s costs, thrown away as a consequence of the vacation;

22. Direct the parties by 4pm on Monday, 31 March 2025 to advise as to whether any dates are available, if not the alternative available dates not beyond June 2025;

23. Direct the Respondents to advise the Applicant and the Court by 4pm on Tuesday, 1 April 2025 as to whether some or all of their witnesses’ evidence may be taken by AVL. If there is agreement, short minutes of order are to be filed and orders made in chambers. If there is not agreement, the parties should exercise the liberty to fix a time for argument; and

24. Liberty to approach the Associate to Duggan J on short notice.

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