Falamaki v Wollongong City Council

CASES CITED: Wollongong City Council v Falamaki (No4)[2009] NSWLEC 83 Wollongong City Council v Falamaki (No3)[2009] NSW LEC 80 Wollongong City Council v Falamaki [1999] NSW LEC 23

APPLICANT Dr M Falamaki (Litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr S Sefton (Solicitor) SOLICITOR Fisher Cartwright Berriman

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20321 of 2009 Dr Masood Falamaki v Wollongong City Council

This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This judgement deals with my determination of Dr Falamaki's application to reopen and Dr Falamaki's appeal against Council's Order. Introduction 2 This is a class 2 appeal against a council order issued by Wollongong City Council that requires fencing to secure a construction site. This appeal was heard on 24 August 2009 and I reserved my decision. The next day Dr Falamaki wrote to the Chief Judge and asked if the matter could be reopened.

3 The Court has treated that correspondence as an application to reopen the hearing as under the Civil Procedure Rules s 14 the Court has the power to dispense with the requirement that the applicant file a notice of motion. Background 4 The matter came before the Acting Registrar on 22 June 2009 and certain directions for evidence were made and the matter was fixed for a s 34 conciliation conference on site, then back to council chambers in Wollongong. No agreement was reached at the s 34 conciliation conference before Commissioner Brown and the conciliation conference was terminated and the matter came before the Acting Registrar again on 22 July 2009 for further directions. On that occasion the Acting Registrar directed: 1. Dr Falamaki file facts and contentions by 5 August 2009. (The applicant did not comply with this direction.) 2. Dr Falamaki notify the respondent by 5 August of any evidence he intends to rely on that was filed in proceedings 40091 of 1997. 3. Dr Falamaki file any further evidence by 5 August 2009. 4. The respondent to file any further evidence in reply by 12 August 2009. 5. Dr Falamaki file any evidence in reply by 19 August 2009. 5 The matter was then fixed for hearing to commence on site with a view and resume in Court at Sydney on 24 August and 25 August 2009.

6 At the view Dr Falamaki represented himself and at the resumed hearing in Sydney he was represented by a barrister. At the resumed hearing I put on the record my observations and the evidence of the parties taken onsite at the view. I recall Dr Falamaki sat next to his barrister and gave him instructions throughout the resumed hearing.

7 Then the parties proceeded to tender their evidence. The council advised me that Dr Falamaki did not comply with the Court's directions for the filing of his evidence. At the resumed hearing Dr Falamaki barrister sought to tender an affidavit prepared by Dr Falamaki's consultant engineer Mr Philip Allen sworn 5 August 2009 filed in the registry that morning. Council objected to the tender on three grounds: prejudice because it had been filed out of time and on the basis that Mr Allen was not available at Court for cross-examination and relevance because it dealt with the cause of the flooding of Dr Falamaki's land and other irrelevant issues. After hearing submissions from both parties I accepted the grounds of objections and did not allow the applicant to rely on that affidavit.

8 However, Dr Falamaki had also included the same affidavit sworn by Mr Philip Allen on 5 August 2009 at Tab 1 of Dr Falamaki's affidavit sworn 6 August 2009, which was filed and served in accordance with the timetable. The Court in an attempt to progress the matter allowed the affidavit of Mr Philip Allen at Tab 1, over the objection of the council, except for the expert engineering report referred to in Mr Allen's affidavit. The engineering report was not read because it dealt with the cause of the flooding which I ruled was not relevant to the issues of this order appeal and because Mr Allen was not available for cross-examination. Before making this ruling I asked the applicant's barrister if Mr Allen was available for cross-examination and on instructions, he answered no.

9 The council also objected to other paragraphs in of Dr Falamaki's affidavit sworn 6 August 2009 on the basis that they contained statements, which were inflammatory and irrelevant. However, council agreed in an effort to progress the matter to allow the affidavit into evidence (apart from the engineering evidence prepared by Mr Philip Allen about the flooding of Dr Falamaki's land) on the basis that I would attach appropriate weight.

10 The council relied on previous decisions including; Wollongong City Council v Falamaki (No. 3) [2009] NSWLEC 80 and Wollongong City Council v Falamaki [1999] NSWLEC 23 and asked me to note the findings which they submit estop Dr Falamaki from re-litigating issues which have been determined by the Court, in particular, issues generally in relation to the cause of the flooding and the collapse of the land. They also relied on a series of email exchanges between the council and Dr Falamaki and his consultant during the period 16 March 2009 and 18 March 2009.

11 In support of the urgency of the fencing I was taken to paragraph 45 of the judgment in Wollongong City Council v Falamaki (No. 3) [2009] NSWLEC 80 wherein Her Honour states: "I understand that the Council is taking action separately to have Dr Falamaki install a fence on the neighbouring land around the perimeter of the excavation. That would appear to be urgent…" Applicant's concessions 12 At that point in the hearing Dr Falamaki's barrister advised me that Dr Falamaki was prepared to make a number of concessions namely: he agreed to erect a fence around part of his property in particular at the front, rear and one side boundary of the property. This was acceptable to council who agreed that the existing paling fence on the northern boundary did not need to be replaced.

13 Furthermore, he agreed (with the consent of the council) a time frame for the erection of the fence; to commence the works within two weeks of the date of a Court order in the Class 2 proceedings and to complete the works within a period of six weeks from the date of the order of the Court.

14 Furthermore the council agreed to allow Dr Falamaki some flexibility in the positioning the fence because of the topography of the land. The order was amended to include the following agreed additional words: "Secure the property by a fence so near as practicable to the boundaries of the property." 15 The remaining issue for my determination was the type of fence to be erected by the applicant. Council' s order required an Australian Standard 4687 2007 temporary fence and hoardings or, alternatively, Australian Standard 1725 2003, chain link fabric security fencing and gates. Dr Falamaki said this was too expensive and was not able to be erected on the site because the land had been washed away and collapsed in areas. Dr Falamaki submitted a quote from Metro Constructions dated 12 May 2009, (Exhibit C) which estimated that the cost of the works required by council's order was about $35,000. Council disputed this estimate and said that the quote related to matters beyond the works in the order. Dr Falamaki proposed an alternate fence and relied on Mr Allens' recommendation and that part of his affidavit was read. After hearing submissions from both parties about the type of fence and the cost of the works I reserved my decision.

16 The next day Dr Falamaki sent the correspondence in annexure A to the Chief Judge seeking to reopen the hearing.

17 There appear to be two grounds for the application to re-open the matter namely: 1. That I was directed by the Chief Judge not to deal with certain matters which the applicant says are relevant; and 2. Dr Falamaki seeks to reopen the proceedings to tender expert evidence from Mr Philip Allen, Dr Falamaki's consultant engineer, which goes to the cause of the flooding of his land and damage to his fence. As detailed above this evidence was not admitted at the hearing because I accepted council's submission that it is not relevant to the issues of this appeal against council's order to secure the property by fencing. 18 First I wish to deal with Dr Falamaki s allegations about what he believes I said at the hearing. The correspondence states: "Prior to the hearing Commissioner Dixon advised the parties that you have instructed that the scope of her judgement is limited to the issue of fence only and she could not open the matter to find out why the fence was washed by the flood.... However, because of your directions Commissioner Dixon had no choice but to delete all those statements of all my affidavits that were dealing with the issue of the cause of the damage to the fences from the body of the affidavits and only looked to the issue that whether a fence is required to be around the site and if the answer is yes who has to pay for that and then what this practical way to install a fence there." 19 For the record it should be noted that the Chief Judge allocated this Class 2 appeal to me for final determination and at no time did I receive any direction from the Chief Judge or anyone else as alleged in the extract of the correspondence I have read out. I can only assume that Dr Falamaki may have misunderstood my comment at the beginning of the hearing onsite when I said, in the presence of both parties, that I am here to determine this Class 2 appeal which concerns an order under s 124 No. 21 of the Local Government Act 1993. My comment was in response to Dr Falamaki comments about the flooding of his property and the cause of the disrepair of the fence on the rear boundary. When Dr Falamaki started to tell me why his paling fence was falling over at the rear of the property I recall saying to him that I was required to deal with this Class 2 appeal only, that is, his appeal against the order issued by the council requiring that he fence his property to make it secure. 20 The second ground of the appeal relates to the exclusion of evidence on the cause of the flooding of the applicant's land which I have dealt with earlier in this judgment.

21 Dr Falamaki raises the rules of the Court and the fact that the council did not request Mr Philip Allen to be available for cross-examination before the hearing. I sought to explain the rules of the Court to him. The relaxation of formality in s 38 of the Act is not a licence to set aside the requirements of procedural fairness to both parties: Burwood Municipal Council v Harry [1991] III LGRA1. This is a Court hearing and it has an adversarial aspect: Sequel v Waverley Council [2005] NSWCA 310. Each party needs an opportunity to contradict or correct evidence and an opportunity to present its case to the decision maker on relevant issues. However, the main objection to Mr Allen's affidavit is relevance and it is for the reason that I excluded the evidence in the hearing. The cause of this collapse or washing away of Dr Falamaki's land is not relevant to whether the land should be fenced for safety and security reasons as ordered by the council.

22 I explained excluded that part of Mr Allen's affidavit that dealt with the cause of the flooding because it was not relevant to the issues in the order appeal.

24 The application to reopen was raised promptly by Dr Falamaki in his correspondence (annexure A) sent to the Chief Judge after the conclusion of the hearing on 24 August 2009 before I made final orders.

25 Section 38 of the Land and Environment Court Act 1979 deals with the procedure in Class 2 of the Court's jurisdiction. The Court is not bound by the rules of evidence in Class 2 proceedings and s 38 (2), provides that the Court may inform itself on any matter, in such manner as it thinks is appropriate and as the proper consideration of the matters before the Court permits.

26 I am empowered to deal with this appeal against the council's order under the Local Government Act 1993 and my powers are articulated in section 184 it states: On the hearing of the appeal the Court may do the following things: (a) revoke the order (b) modify the order (c) Substitute the order for any other order that the Court could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fits, or (f) make any order with respect to the order as the Court thinks fits." 27 In the interests of having the matter dealt with justly, quickly and cheaply in accordance with the overriding purpose as set out in section 56 and having regard to the Court's rules in sections 57 and 58 and 59 of the Civil Procedure Act 2005 the evidence about the cause of the flooding and drainage issue was appropriately excluded because the cause of the flooding of the property is not relevant to this class 2 order appeal hearing. I recall explaining to Dr Falamaki in the hearing that he may have recourse to examine that issue in other proceedings in perhaps other jurisdictions and I suggested he get some legal advice.

28 Nothing has been submitted today to convince me that Mr Philip Allen's expert engineering evidence is relevant to Dr Falamaki's appeal against council's order and its admission would have only caused delay and increased costs to both parties. I must be concerned with proportionality of expense to the issues in dispute.

29 This morning Dr Falamaki has advised me that he does not press the tender of further evidence. That is that he does not wish to re-agitate my ruling on the admission of certain evidence including the affidavit evidence of Mr Allen because that evidence would go to matters such as the cause of the flooding.

30 The council has asked does Dr Falamaki now withdraw his application to reopen? Dr Falamaki says no.

31 On that basis I must formally deal with his application if it is not to be withdrawn.

32 However, it is clear now, as Dr Falamaki is not seeking to file any further material his application is based on the matters raised in his correspondence to the Chief Judge. The first ground is that I was directed by the Chief Judge to exclude relevant matters. I have already dealt with that ground and do not accept that ground as a reason to reopen for the reasons stated above.

33 The second ground appears to be that I have excluded relevant evidence namely that of Mr Philip Allen in respect of the flooding of the land and I have also dealt with that matter and reject that ground as a reason to reopen the hearing.

34 I might add that the reopening of a hearing at this stage, while it is in the Court's discretion, is something that is not done lightly by a Court. There is no evidence before me to suggest that the applicant has been denied any opportunity to fairly put his case on relevant matters to the Court. He has made various concessions during the hearing and the order has been amended to accommodate his evidence. He has agreed to the timetable for the works and I have listened carefully to his evidence and submissions as I have listened to council's case.

35 There is no reason put forward to support the application to reopen this hearing. Dr Falamaki was given a fair opportunity to put his case in the substantive proceedings before me and despite filing this application to reopen does not put any further material before the Court but refuses to withdraw his application. In the circumstances having regard to the matters raised there is no basis to reopen this hearing. I decided that the application to reopen be dismissed and costs reserved.

36 I will now deal with the substantive proceedings.

37 Council has served an order dated 24 April 2009 under s 124 No. 21 of the Local Government Act 1993, which requires Dr Falamaki to secure his property by installing perimeter fencing to the boundaries in accordance with AS 4687-2007 Temporary Fencing and Hoardings, or alternatively AS 1725-2003, Chainlink Fabric Security Fencing and Gates.

38 The reasons for the order are stated to be: 1. There is unimpeded access to the property and, 2. The construction site requires perimeter fencing to be installed so as to restrain access to the premises. 39 During the hearing Dr Falamaki agreed to fence his property and the council agreed to amend the order to accommodate the topography of the land. The amendment is discussed earlier in this judgment.

40 The remaining issue for my determination is the type of fence to be erected by Dr Falamaki.

41 Council' s order requires an Australian Standard 4687 2007 Temporary Fence and Hoardings or, alternatively, AS 1725 2003, Chainlink Fabric Security Fencing and Gates. Dr Falamaki says this is too expensive and is not able to be erected on the site because the land has been washed away and is collapsed in areas. Dr Falamaki submits a quote from Metro Constructions dated 12 May 2009, (Exhibit C) which estimates that the cost of the works required by council's order is about $35,440.

42 The Council does not accept Dr Falamaki's estimate of the works and submits that it is clear on the face of the document (exhibit C), that the quote relates to works beyond the scope of the fencing in the order. 43 Dr Falamaki submits he will install the fencing proposed by his engineer Mr Philip Allen and refers to annexure A2 of Mr Philip Allen affidavit sworn 5 August 2009 which states: "The temporary fences in front of the property could be with the following details: Star posts and signs plus 90 x 4 x 4.1 rural netting that comes in rolls of 50 m with a height of 1.8 m".

44 Dr Falamaki submits, and the council concedes, an existing 1.8 m fence is erected on the northern boundary of the premises and no further fencing is necessary on that boundary.

45 The council agrees that it only requires fencing as detailed in the order on the three unfenced boundaries.

Section 180 of the Local Government Act 1993 46 Section 180 of the Local Government Act 1993 provides the opportunity to appeal an Order under the Act Dr Falamaki has 28 days from the date of service of order to file an appeal. Dr Falamaki has lodged this appeal within time.

47 As stated earlier in this judgment my powers are set out in Section 184 of the Act, I will repeat it again, it provides: "On the hearing of the appeal the Court may do the following things: (a) revoke the order (b) modify the order (c) substitute the order for any other order that the Court could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fits, or (f) make any order with respect to the order as the Court thinks fits." Findings 48 I reject Dr Falamaki's evidence as to the estimated cost of the fencing required by the Order. The Metro Construction quote (exhibit C) clearly relates to the works beyond those described in the Order. The quote refers to "supply machinery and trucks to clean site of all long grass, rubbish and debris and take all rubbish and debris to the tip. " This is not work required to comply with council's order for the securing of the property by a fence . Dr Falamaki has submitted that he needs to clear the land to erect the fence but the order has now been amended to allow him to: "install perimeter fencing as near as practicable to the boundaries ..." This is an attempt to accommodate the topography of the land.

49 I accept the council's evidence that it is appropriate that the fencing be of an Australian Standard in the terms of the order and I reject the alternative fencing proposed by Dr Falamaki because it is on council's evidence not adequate or of an appropriate standard to effectively secure the property.

50 I find that there is suitable fencing on the northern boundary of the site and accept the agreed position of the parties that there is no further need to fence that boundary.

51 Having considered the evidence, the submissions and the relevant legislation I determine that: 1) The appeal is upheld in part to the extent that the order is modified as follows. 2) Pursuant to 184(b) of the Local Government Act 1993 the modified order is: Secure the property by installing perimeter fencing as near as practicable to the boundaries in accordance with AS 4687 - 2007, Temporary Fencing and Hoardings, or alternatively, AS 1725 - 2003, Chain Link Fabric Security Fencing and Gates, on all boundaries except for the existing 1.8 metre fence on the northern boundary. The works the subject of the order are to commence within two weeks of the date of this order and completed within six weeks of the date of this order. 3) The exhibits are retained. 4) The costs are reserved.

      S Dixon
      Commissioner of the Court
      ljr

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