Eurobodalla Shire Council v Gerondal

EX TEMPORE Judgment 1Mrs Gerondal, the Respondent in Class 4 proceedings commenced by the Council in matter 40661 of 2011, has come before me today as list judge to make an oral application for a stay of the proceedings until 31 January 2012. The basis for doing that is a medical certificate from Dr Chong Ving Oy which is attached as exhibit F to an affidavit of 27 October 2011 of Ms Simmonds, the Council's solicitor. The certificate dated 23 October 2011 certifies that the doctor has examined Mrs Gerondal and confirms that she will be unfit for work, school, and usual activities from 23 October 2011 to 31 January 2012 inclusive, due to the need to correct diabetic retinopathy and cataracts by Dr Tridgell and other medical investigations. 2A further affidavit sworn 27 October 2011 by Mrs Gerondal was also filed in the matter. She identifies a number of concerns with the provision of evidence by the Council, in particular certain photographs to be relied on and the witnessing of an affidavit by a justice of the peace which I will come to in a moment. Her affidavit also refers to a callover of this matter before Biscoe J on 14 October 2011, which is a matter I will also refer to shortly. I note that I have read that affidavit. 3I have also read the affidavit filed in Court of Ms Simmonds dated 27 October 2011, which sets out some of the history of this matter and the nature of the Council's evidence filed to date in the proceedings. 4By way of history, orders were made by Murrell C in Class 1 proceedings on 31 August 2010. Those orders were the subject of a s 56A appeal heard by Craig J which was dismissed by his Honour on 2 May 2011. I think it is in everybody's interests and for clarity that I read out the form of the order of Murrell C. This is what appears at [12] of Craig J's judgment in Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 and is the order that the Council is seeking to enforce in these proceedings: I have already recorded that the appeal was upheld in part. The critical parts of the notice given by the Council are identified in [7] - [9] of the Commissioner's judgment. It is those parts of the notice that were varied on appeal. In fact, those parts were substituted by Order 2 of the Commissioner's orders which is in the following terms: "2. The Notice is varied as follows: Premises to which this notice applies: 19 (Lot 1 DP 806104) Munjeroo Lane, Bingie NSW This notice has been issued under Section 96 of the Protection of the Environment Operations Act because Eurobodalla Shire Council reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner. Eurobadalla Shire Council hereby directs the person nominated on the notice to take action as detailed below. Perusal of Council records shows no development consent has been sought or issued for the premises to be used for the purpose of a waste facility. Under the Protection of the Environment Operations (POEO) Act 1997 it is an offence to unlawfully transport waste to a place that cannot lawfully be used as a waste facility for that waste and/or use land as a waste facility without lawful authority. Action To Be Taken And Time Periods For Compliance: A. Cease transporting waste to the premises. This action is to be undertaken immediately, effective from 31 August 2010 and is to be ongoing. B. The applicant is to prepare and submit for the council's approval a plan of action for the removal of the waste materials from the property by 15 October 2010. Such a plan is to include a fenced footprint area of 10 x 10 metres to allow selected items only to be stored in an environmentally satisfactory manner that do not have the potential to pollute and a timetable for the removal of all other items. The only exceptions to the 10 x 10 footprint area is the ride-on lawnmower, 2 caravans; the bricks and pavers. The action plan is to provide a timetable for the removal of all other waste material, including unregistered vehicles, from the property that has been placed there without approval and monthly monitoring reports for the staged removal with the first due 1 December 2010 with the removal of all waste to be completed by 30 April 2011. C. The waste material removed is only to be removed to a place which can lawfully accept such waste material." 5This order stands as a result of Craig J dismissing the s 56A appeal by Mrs Gerondal against the order of Murrell C. 6These Class 4 proceedings were commenced on 1 August 2011 by the Council because the Council considers there has not been compliance with the order. For example, I am informed by its legal representative today that no plan for the removal of waste has been provided by Mrs Gerondal which is the first step required under the Court's order that should have been complied with. 7There have been numerous directions made in this matter as indicated on the court file. Probably of most relevance today were orders made by Sheahan J on 26 August that required Mrs Gerondal to file a defence and affidavits by 7 October 2011. 8The matter was also before the list judge Biscoe J on 14 October 2011. It was returned to the list, I think on the Court's motion, following a letter from Mrs Gerondal seeking a further two week extension to file evidence from the orders made by Sheahan J requiring her evidence by 7 October 2011. 9It appears from the court file that the Court sent an email notifying Mrs Gerondal and the Council's solicitors of the listing but she did not receive that email and she did not attend on that day. The Council's solicitor did attend. Biscoe J made an order extending the time for compliance with the 7 October 2011 timetable for two weeks as was sought by Mrs Gerondal. I mention this in some detail because the Council seeks its costs today of that motion. The order made by Biscoe J required Mrs Gerondal to file her defence and affidavits by 21 October 2011. 10As I have already noted, the matter is before the Court today before the list judge at the request of Mrs Gerondal, who wrote to the Court asking that the matter be placed in the list. As explained already Mrs Gerondal is seeking a stay of the proceedings on medical grounds. 11In support of her application, Mrs Gerondal raises medical conditions, some of which are detailed in the medical certificate she has provided from her doctor. She has also given further unsworn evidence from the bar table concerning several incapacitating conditions which she considers prevent her doing anything further in this matter. For example, she has poor eyesight at present, requires a magnifying glass to read and can only read for a maximum of thirty minute intervals in a good light. 12She also identified conditions which further limit her physical capacities. For example, she cannot go outside in strong sunlight due to one of her medical conditions, or lift anything. This does not appear relevant to whether she can file a defence or any evidence in the proceedings but does appear to relate to whether she is able to comply with the order made by Murrell C. 13When it was suggested by me that she could gain the assistance of her husband she also detailed some of his medical issues, which I will not detail now in the interests of privacy, essentially suggesting that he could not be of great assistance. She did say that he could type up matters. 14The Council opposes the stay sought. The Council also seeks its costs of today. It submits that if the Court is minded to allow further extensions of time for compliance with the timetable these should be short. At this stage the Council remains unaware of any defence Mrs Gerondal may mount in the matter in the absence of any defence being filed by her. 15This is a difficult matter of balancing the respective interests of the parties. The Council seeks to enforce a court order, which it would appear on a preliminary basis has not been complied with. The matter is now longstanding and should be treated seriously for that reason alone. 16I have before me, however, Mrs Gerondal's medical position. The medical certificate does not identify that Mrs Gerondal is entirely incapacitated and she is clearly not, given her appearance in Court today. She is articulate, she is able to read, to a limited extent with the assistance of a magnifying glass, written material before her and she does have the assistance of her husband in doing so. 17I consider at the very least she should prepare a defence in this matter so the Council is able to understand its nature and that should be done this year. I will not at this stage, however, require Mrs Gerondal to provide evidence in response to that of the Council. That will be done at a later date should she choose to put on any evidence. 18Before I turn to timetable matters, I need to deal with further objections to the Council's affidavits raised by Mrs Gerondal today. A separate matter raised by Mrs Gerondal was her objections to the affidavits filed to date by the Council officers in these proceedings. One basis for objection is that these are witnessed by a justice of the peace who is also a Council officer and Mrs Gerondal considers this gives rise to a conflict of interest and is therefore a basis for rejecting the affidavit. 19Apart from making statements to this effect from the bar table, there is no evidence before the Court to support these allegations of conflict of interest. Even if there were such evidence, there is simply no basis for the Court to make any ruling in relation to the admissibility of these affidavits at this stage. In any event, the role of the justice of the peace is simply to confirm that the person signing a document does so in front of the justice of the peace. Even if these criticisms were able to be substantiated, the Court would not be inclined to make any ruling about the inadmissibility of this affidavit material on this basis. The Council is entitled to rely on these affidavits in these proceedings. 20The other concern raised by Mrs Gerondal about difficulty in reading the identifying number on photographs is easily overcome by the Council writing the number on the white border next to the photographs. This has now been done. 21I stress these matters, therefore, cannot be relied on by Mrs Gerondal as reasons for not responding to the Council's evidence. As I already indicated, I do require Mrs Gerondal to file a defence this year but I will allow her a lengthy period, taking into account the medical evidence that I have before me. I will allow her until 9 December this year to do that. 22I do not wish in the interests of privacy to further detail the medical conditions to which Mrs Gerondal has referred but I do say that if any future application for a stay is to be made on the basis of medical evidence there will have to be greater detail about the extent of Mrs Gerondal's incapacity in order to support such an application. 23I need now to deal with the Council's application for costs. The Council is seeking the costs of the callover before Biscoe J on 14 October 2011 and its costs of today. In relation to 14 October 2011, it appears that Mrs Gerondal was not notified in time of the listing of the matter before the Court and that resulted in her failure to appear on that occasion. I will not make any order in the Council's favour in light of that circumstance. The costs of today are the costs in the proceedings.