Lane Cove Council v Ross

The Application for an Adjournment Must be Refused 19The principles governing this application to adjourn the part-heard Class 4 hearing and vacate the current hearing dates are contained within ss 56-60 of the Civil Procedure Act 2005 ("the CPA") (see also in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175). 20Applying these principles, it is apparent that the application must be refused. 21First, the application is made late without any real explanation for the delay in making it. The hearing dates were set down in March 2013. Almost two months has elapsed in the interim. Mr Ross has not explained why this application has been made so late, nor has he explained the delay in applying for a building certificate. Presumably the application for a building certificate could have been made by Ms Edilbi in November 2012. Mr Ross could have opposed the setting down of this matter for hearing in March 2013 on the basis of the foreshadowed building certificate application. Neither occurred. 22Second, I note that Mr Ross did not attend the Court when the matter was set down for hearing. Mr Ross' explanation for his absence was that he believed that Ms Benn would be appearing for him on 20 March 2013. This is, however, wholly inconsistent with the explanation Ms Benn gave to the Court for seeking to stand the matter over for two weeks. It is also not consistent with the fact that there has never been any notice of appearance filed by Ms Benn to appear as Mr Ross' solicitor on the record. In any event, liberty to restore was granted to the parties when the matter was set down for hearing, and this has not been exercised by Mr Ross until, in effect, the eve of the resumed hearing. 23Third, Mr Ross has already had an opportunity to have a merit assessment of the development. It was Mr Ross' decision to exclude the awnings from the consideration before the Commissioner. While his reasons for doing so were logical, it nevertheless remained his decision. The cases relied upon by Mr Ross may be distinguished on this basis. It was also Mr Ross' decision to discontinue those proceedings. 24Fourth, I do not accept, without more, that the council misled Mr Ross in its dealings with him. In any event, Mr Ross could have, at any time, lodged an application for a building certificate. I note, in this regard, that the appeal against the council's refusal to issue a building certificate has only recently been filed notwithstanding that the refusal occurred in March 2013. 25Fifth, this Court has a broad discretion under s 149F of the EPAA to grant relief in an appeal against the refusal of the council to issue a building certificate, just as it does to grant relief in these proceedings under s 124 of the EPAA. Whatever arguments Mr Ross may seek to make in an appeal pursuant to s 149F of the EPAA, can therefore also be made during the hearing of these Class 4 proceedings. Thus it is entirely conceivable that the drastic remedy of demolition and reinstatement that the council seeks in these proceedings will not, once the Court has heard all of the evidence in this matter, be granted and in lieu thereof, some other form of relief may be ordered permitting the retention of some or all of the unlawful development, including the awnings. 26Sixth, Mr Ross has not filed any evidence in accordance with the 20 March 2013 timetable for the preparation of the imminent Class 4 hearing. The almost irresistible inference is that this application, made on the cusp of the resumed hearing, has been brought in order to avoid the potential adverse consequences of his failure to comply with that timetable. 27Seventh, the fact that Mr Ross has, at various times during the Class 4 and Class 1 proceedings, been unrepresented does not warrant the adjournment of the Class 4 proceedings. Mr Ross has had ample time to prepare for next week's hearing, even taking into account his previously unrepresented circumstances. 28In short, the council is ready to proceed. It has filed its evidence and submissions in this matter. And, to reiterate, anything that could be put to support the merits of the issuing of a building certificate in respect of the development can equally be put by Mr Ross in these proceedings in order to craft a different form of relief to that which the council seeks. Although it may be presumed that Mr Ross will suffer prejudice if the hearing is not vacated, by reason of his failure to file any evidence to date concerning the appropriate relief to be granted in these proceedings, this has been brought about by Mr Ross' own inaction, and not through the fault of the council, as he suggests.