Hayward v Hornsby Shire Council

Mr Hayward has filed an amended summons for judicial review of a stop work order (SWO) issued by the Respondent Hornsby Shire Council (Council) on 4 December 2020. The amended summons and a notice of motion seeking an extension of time to file the summons has been listed for final hearing on 17-18 March 2025.

The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.

5. Relevant principles were also set out in Jiang v Sydney Metro [2023] NSWLEC 126 (Jiang) at [43]-[48] (Pritchard J) referring to ss 56, 57 and 58 in the CP Act. Section 56 identifies the overriding purpose of case management is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 57(1) identifies the objects of case management in serving the dictates of justice as specified. Section 58 requires the Court to follow the dictates of justice in deciding whether to make any order or direction for the management of proceedings. The dictates of justice in s 58(2)(a) require a court to consider ss 56 and 57. The Court may have regard to matters identified in s 58(2)(b) in doing so. I have considered these sections in making my decision.

6. The proceedings have a lengthy procedural history in the court as set out below:

| Date | Event | | 04 December 2020 | SWO issued by Council. | | 14 June 2024 | Applicant filed summons commencing judicial review of the validity of the SWO and seeking a declaration as to its invalidity and costs. | | 02 July 2024 | Ms DeMarco was sent an email from a Registrar noting that Mr Hayward had received numerous appointments with duty lawyers at the Court | | 05 July 2024 | Notice of motion (NOM) 002 was filed by Mr Hayward, requesting legal assistance pursuant to the Uniform Civil Procedure Rules 2005 (NSW) Pt 7 Div 9 (UCPR). | | 09 July 2024 | NOM 003 was filed by Mr Hayward, seeking an extension of time by which to commence proceedings pursuant to UCPR r 59.10. | | 12 July 2024 | NOM 002 was dismissed by Robson J. Robson J also ordered a timetable for preparation for hearing. Mr J Fan appeared as amicus for Mr Hayward. NOM 003 was stood over for hearing at the substantive proceedings. | | 24 July 2024 | NOM 004 was filed by Mr Hayward, seeking a statement of reasons for the SWO from the Council under UCPR r 59.9. | | 26 July 2024 | NOM 005 filed by the Respondent, seeking summary dismissal under UCPR r 13.4 and costs. | | 02 August 2024 | NOM 004 was dismissed by Pritchard J. | | 30 August 2024 | NOM 005 was part heard before Duggan J. Her Honour adjourned the hearing to 16 September 2024 and directed: • the Council to file and serve supplementary submissions identifying with particularity the basis upon which it is submitted that the summons be struck out; • Mr Hayward to file an application for leave to appoint an agent; • Mr Hayward to file and serve any written submissions by 13 September 2024. | | 16 September 2024 | NOM 005 was heard. Ms DeMarco was appointed as agent for Mr Hayward. Judgment was reserved. | | 17 October 2024 | Duggan J delivered judgment on NOM 005: Hayward v Hornsby Shire Council [2024] NSWLEC 106. Mr Hayward was given opportunity to re-plead one ground (paragraph 15) and ordered to file amended summons by 01 November 2024. | | 31 October 2024 | The due date for the amended summons was extended to 08 November 2024. | | 08 November 2024 | The amended summons was filed by Mr Hayward. | | 25 November 2024 | Notice of appointment of solicitor for Mr Hayward was filed by Mr Tudehope. | | 13 December 2024 | Directions hearing: The matter was fixed for hearing and a timetable for evidence and court books and summary of arguments for hearing set down. (The timeline was extended 13 February 2025). | | 21 January 2025 | Mr Tudehope filed a notice of ceasing to act. | | 30 January 2025 | Ms DeMarco sent an email to the Court Registry stating that Mr Hayward was seeking legal representation. | | 12 February 2025 | Notice of appointment of solicitor for Mr Hayward was filed by Mr Smith. | | 13 February 2025 | Directions hearing: The timeline for evidence and court books and summary of arguments adjusted. The court book, evidence book, and the Council’s submissions became due on 11 March 2025. Mr Smith filed a notice of intention of ceasing to act. | | 21 February 2025 | Mr Hayward sent without leave a lengthy email to Pain J’s Chambers and the Council. | | 03 March 2025 | Pre-hearing mention to clarify what orders were sought by Mr Hayward in 21 February 2025 lengthy email. Ms DeMarco was given leave to appear as agent on that occasion. | | 10 March 2025 | Applicant filed NOM 006 to vacate hearing with a supporting affidavit. | | 14 March 2025 | Mr Smith filed a notice of ceasing to act for Mr Hayward. | | 14 March 2025 | Hearing of NOM 006 before Pain J. |

7. Mr Hayward filed an affidavit dated 7 March 2025 in support of his notice of motion to vacate the hearing dates of 17-18 March 2025. He stated he had been assisted on several occasions by duty lawyers at this Court. He does not currently have legal representation. Mr Hayward stated that at a directions hearing on 13 December 2024, when the timeline for hearing was set down, he was represented by his former solicitor Mr Tudehope who accepted this timeline. Mr Tudehope later filed a notice of ceasing to act in this matter. Mr Hayward submitted that Mr Tudehope informed him that he did not want to proceed with the matter due to the operation of r 59.10 of the UCPR and would cease to act as his solicitor unless Mr Hayward withdrew the proceedings. Mr Hayward submitted the actions of Mr Tudehope prejudiced his ability to receive further legal representation and to compile and file evidence.

8. Mr Hayward submitted that his earlier notice of motion to receive a statement of reasons under UCPR r 59.9 was denied and that consequently ‘further prejudice ha[d] been inflicted upon [his] matter as a self-represented litigant’.

9. Mr Hayward submitted that the actions of the Respondent had also caused slippage of the timetable. He stated that the Respondent had ‘just’ emailed him some evidence previously denied and that the Respondents’ solicitors had ‘attempted to influence the solicitors’ he had retained. He submitted he was being put at risk of breaching court orders through ‘the actions of the Respondent’ in addition to the actions of his former legal representative Mr Tudehope.

10. Mr Hayward also stated that at the hearing of the Respondent’s UCPR r 13.4 application to strike out Mr Hayward’s summons, Duggan J raised that the Respondents had failed to notify Mr Hayward of the need for leave to appear via an agent, as he had sought to do. Mr Hayward stated that the Court had previously failed to advise him of the leave requirement for an agent as well. Mr Hayward asserted that the Court had been inconsistent in its approach to these proceedings given that unlike in earlier hearings, at the hearing of the UCPR r 13.4 application Duggan J had directed and allowed time for the formal appointment of Ms DeMarco as agent. Mr Hayward submitted that Duggan J also ordered the Respondent to file an amended notice of motion for their UCPR r 13.4 application which amounted to assisting the Respondent.

11. Mr Hayward stated that the Court had never ordered or directed the parties to participate in alternative dispute resolution and the Respondent had indicated it would not consent to alternative dispute resolution. Mr Hayward submitted this would have been an ‘appropriate step’. For these reasons Mr Hayward sought to vacate the hearing and requested a case management conference.

12. In addition to his affidavit dated 7 March 2025, Mr Hayward sought to rely on certain paragraphs of his submissions dated 21 February 2025. Those paragraphs were 1(r), 2(b), 2(g), 3(k) and 4(a).

Applicant’s submissions

13. Ms DeMarco as agent submitted that to hold the hearing next week will be a waste of the Court’s resources relying on the Land and Environment Court’s Case M**anagement P**olicy (17 May 2024) paragraphs 8.2, 8.4, 8.6 and 9. Mr Hayward has made every effort to comply with court orders and procedures given the complexity of these judicial review proceedings. Mr Hayward is not legally qualified and holding the hearing next week without legal representation is not in his best interest. Ms De Marco criticised decisions of the Court in not referring Mr Hayward to receive pro bono legal assistance, and not providing consistent advice to Mr Hayward in relation to appointment of an agent inter alia. Mr Hayward’s agent also criticised the Council’s actions which she submitted had failed to comply in numerous respects with the model litigant policy it is bound by and failed to self-report (what this referred to was unclear). ADR is an appropriate case management response and should be ordered in addition to vacation of the hearing dates.

Finding

14. The relevant principles to be considered under the CP Act are set out above. A large amount of material was relied on by Mr Hayward in his lengthy affidavit summarised above. I note that a number of assertions are made by him that I consider the Council would not agree with and to the extent there is criticism of the actions of judges of the Court and its registry staff would generally warrant limited attention. These are interlocutory proceedings and a very late application to vacate a hearing commencing on Monday next week so that cross-examination was not feasible. I have had regard to the affidavit noting that it contains assertions in addition to factual information. I do not consider the assertions made about the failure in behaviour by the Council or any aspect of the Court’s management of the matter can be established by such purported evidence. Mr Tudehope former solicitor is also criticised but I note is not here to defend himself.

15. In relation to the submissions dated 21 February 2025, the criticism of the Council to the effect that these contain a lot of unsubstantiated assertions is valid. I have also considered the additional paragraphs identified above to the extent they are relevant to support this application. I have also read the parts of the lengthy SMOs sent by email this morning to the extent these were referred to.

16. Contrary to Mr Hayward’s submissions, there is no basis for finding the proceedings have been irregularly dealt with in the Court. That Mr Hayward does not agree with a decision of a judge or judges does not render the proceedings irregular. Further there is no demonstrated failure by the Council to act as a model litigant as asserted by Mr Hayward. Similarly criticism of Mr Hayward’s legal representative said to have rendered him vulnerable in that court orders were not complied with is not accepted based on the record of proceedings before the Court.

17. Substantial reliance was placed by Mr Hayward on case management principles as supporting the order for vacation sought expressly in the NOM. The SMOs provided by Mr Hayward at 9:25 am by email this morning without leave also contained orders for referral of the proceedings to ADR, with reliance placed on Class 4 case management procedures, the purpose of which is to ensure the just, quick and cheap resolution of Class 4 proceedings. I observe there it is the responsibility of parties, their legal representatives and agents to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Legal advice

18. These judicial review proceedings have a lengthy procedural history. The principal argument underpinning Mr Hayward’s case today as I understand it is that as a legally unrepresented applicant Mr Hayward is seriously disadvantaged given their complexity and would greatly benefit from legal advice to put his case and needs that opportunity in the interests of justice. Mr Hayward also asserted that he is entitled to legal representation. As this is a civil matter I am not aware of such an entitlement.

19. It is clear from the procedural history above that Mr Hayward has had numerous opportunities to obtain legal advice and representation through the duty solicitor scheme at the Court, appearance by a solicitor as an amicus before Robson J and with subsequently two solicitors going on and off the record. That Mr Hayward is unhappy with the decision of Justice Robson in relation to NOM 002 is irrelevant to the matter today.

20. Given the history of Mr Hayward seeking to get legal representation the question arises of whether the Court can be satisfied that if the matter were to be vacated today it is likely that legal representation would be available in the future. Given the substantial assistance and representation that Mr Hayward has already had from the legal profession, I do not see any basis for thinking that Mr Hayward would be successful in obtaining legal representation if the hearing was to be vacated.

No additional evidence identified

21. As the Council submitted Mr Hayward has also not identified any additional evidence he wishes to rely on, so that the purpose of vacating the hearing dates in that regard is not apparent on that basis.

ADR not appropriate

22. Mr Hayward seeks an order that the matter be referred to ADR processes at this extremely late stage. It has criticised the Council for not agreeing to such a course. I do not agree with Mr Hayward’s submission that referral to ADR will not prejudice the Council's interests given the history of this matter noting that an application for mediation was made unsuccessfully by Mr Tudehope former solicitor of Mr Hayward on 13 December 2024. The Council’s reluctance to agree to ADR processes, and I consider the unlikelihood this matter would settle through such a process, cannot found any criticism of the Council. No basis is established by Mr Hayward to have the matter referred to ADR.

23. The court is mindful of the need to use limited judicial time available appropriately and efficiently. Much judicial and registry time has been devoted to this matter already and a very late vacation of hearing dates is unlikely to result in the effective use of the judicial time which would become available as a result.

24. Case management principles are to be applied in light of all the overall circumstances before the Court mindful of the overriding purpose of matters being conducted in a way that fulfils the duty to be just, quick and cheap. The factors referred to in Kenoss at [13] (Ward JA) are highly relevant in these circumstances concerning possible prejudice to both parties, the circumstances of the application and the consideration of the Court’s management overall.

25. Considering what remains for determination, the SWO was issued in 2020, the amended summons has one paragraph (15) with four sub-arguments, and an extension of time of some 3.5 years is needed by Mr Hayward to progress the matter at all. Taking all these matters into account I consider Mr Hayward’s NOM should be dismissed. I decline to vacate the hearing dates of 17-18 March 2025.

Order

26. The Court orders:

27. The Applicant’s notice of motion dated 10 March 2025 is dismissed.

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