Stankovic v The Hills Shire Council - [2015] NSWCA 279 - NSWCA 2015 case summary — Zoe

Stankovic v The Hills Shire Council - [2015] NSWCA 279 - NSWCA 2015 case summary — Zoe

THE COURT: The applicant, Milovan Stankovic, seeks leave to appeal from a judgment of Pain J given in the Land and Environment Court on 14 March 2005. The application, dated 21 May 2015, was filed in this Court on 5 June 2015. The applicant therefore requires an extension of time within which to seek leave to appeal, a period in excess of 10 years.
There has been much water under the bridge during that period. One of the orders made by Pain J on 22 March 2005, being the critical order for present purposes, was that Mr Stankovic pays the costs of the Baulkham Hills Shire Council of the proceedings in the Land and Environment Court, being matter 41243 of 2004. (The Council, by a different name, is the present respondent.)
It is common ground that the costs were not paid in a timely fashion, as a result of which the Council instituted bankruptcy proceedings in the Federal Magistrates Court in 2009. A sequestration order was made following which a writ was issued by the official receiver appointing trustees. Further steps were taken in the Federal Magistrates Court (and the Federal Court of Australia), none of which are subject to appeal to this Court and none of which are presently relevant except that the various steps taken appear to have resulted in Mr Stankovic losing his land at Kellyville which he had owned. The Court was informed that there is a dispute as to the distribution of the proceeds of the sale of that property. That again is not a matter which is currently before this Court.
The basis on which Mr Stankovic seeks to appeal against the judgment of Pain J delivered on 14 March 2005, and the orders entered on 22 March 2005, is that the same proceedings had been disposed of by an order made on 16 February 2005 dismissing the proceedings for want of prosecution. The dismissal occurred because the Council failed to attend Court on that day for the hearing of the case. Why the order is made is not entirely clear as the hearing had been delayed for several months as a result of applications by Mr Stankovic.
The Council's case had been based on the presence on the land (accepted by the applicant) of up to 100 pigs which he claimed he kept for his own "enjoyment" and not as part of a business. [1] The property was also used as a "junk yard" which was a prohibited use under the relevant Local Environment Plan.
On 6 December 2007 Pain J delivered a further judgment in the same matter, setting out the orders made on 22 March 2005. The 2007 judgment dealt with a motion to set aside three of the orders made on 22 March, but not on the basis the proceedings had earlier been dismissed, nor did the motion deal with the costs order, being order 8.
The applicant provided the Court with a transcript of the hearing before Pain J on 14 March 2005, which revealed the course of the proceedings. Mr Galasso, appearing for the Council, explained in some detail what orders were sought against Mr Stankovic and on what grounds. Mr Stankovic, appearing for himself, engaged in the discussion as the judge sought to ensure he understood the substance of the proceedings. Mr Stankovic gave evidence. Following that evidence, Mr Galasso addressed the Court.
The hearing was completed and the judge reserved, proposing to return to deliver her judgment at 3pm. She in fact returned apparently shortly before that time to say that she had been provided with a copy of a letter provided to the Chief Judge by Mr Stankovic. She asked Mr Stankovic if there was anything he sought to say in relation to the letter. He then provided a history of the proceedings, noting that the matter had been set down for hearing on 19 January but he had been unable to get legal aid and had sought an adjournment to 16 February 2005. He explained that when he had turned up on that day the Council was unrepresented and he understood the proceedings to have been dismissed. He said that he had not raised the issue before Pain J that morning because he had forgotten about it. Pain J then explained that although the matter had been dismissed, the Council was entitled to have it reinstated and that a timely application had been made to that effect.
In the exchanges which followed, Mr Stankovic acknowledged the Council's right to have the matter reinstated but suggested, in effect, that there had been an element of judge-shopping on the part of the Council, to his disadvantage. Mr Galasso explained that the original hearing had been fixed before Lloyd J, who had made an order dismissing the proceedings, and on the motion of the Council had reinstated them. Mr Galasso noted that there had been "an administrative hiccup in a change of solicitors", the circumstances being set out in an affidavit in support of the motion to reinstate the proceedings. He further noted that the motion itself had been adjourned from the return date to ensure that Mr Stankovic was personally served.
It is not in dispute that such procedures were available under the Land and Environment Court Rules 1996 which were then in force. Part 13, r 29 as noted by counsel for the respondent provided that, if the applicant did not appear at the time and place fixed for the hearing, the court might dismiss the proceedings. No doubt that is the rule pursuant to which the order was made dismissing the proceedings on 16 February 2005. In respect of the court's powers to reinstate the proceedings, the power is available if made within a period of 28 days after the date of the dismissal order, pursuant to then Pt 15, r 9. There is also a power under Pt 15, r 3.
It is clear from the chronology set out before that the application was made within 28 days because the proceedings were dismissed on 16 February and the hearing before Pain J occurred within that period. As a matter of form, Mr Stankovic has still not challenged the order reinstating the proceedings in the Land and Environment Court. Nevertheless that technicality may be overlooked on the basis that his challenge to the orders made in the reinstated proceedings should be understood as based on the fact that the proceedings had earlier been dismissed and that they were then terminated beyond reinstatement.
He submitted there had been no exercise of a discretion apparent from the judgment of Pain J. That is only partly so. The proceeding had been reinstated by Lloyd J in the circumstances noted above. The argument then depended on the fact that there was no order in evidence before this Court evidencing a reinstatement of the proceedings, but there is no reason to doubt that an order was made. Pain J referred to it, as did Mr Galasso. Further, the orders of the Land and Environment Court and in particular those made by Pain J are not a nullity because there is some prior step which should have been taken but which has not. They are the orders of a superior Court of record, that is the Land and Environment Court, [2] and are effective and binding on the parties until set aside. [3]
Counsel appearing today on a pro bono basis for Mr Stankovic submitted that it was appropriate for the Court to adjourn today's hearing to see if there were records in the Land and Environment Court file of the reinstatement order on which it was submitted the validity of the proceedings before Pain J depended.
There is, however, no basis for the belief that no such order existed. Indeed, there is nothing beyond unsupportable speculation for the proposition that no order was made. Counsel appearing in the proceedings said that an order had been made. The Judge accepted that it had been made. Indeed, Mr Stankovic, who appeared in the proceedings, appeared to accept in the course of the discussion that there was a power to make such an order, and said nothing more about it not having been made. [4] In addition, as I have noted, at least in 2007 the issue could have been raised by the applicant at the hearing of the motion in which he sought the setting aside of some of the orders which had been made by Pain J. That was not done. No doubt, as counsel submitted, allowance should properly be made for the fact that the applicant was then appearing for himself, but the fact that he was conscious of the issue as to the dismissal of the proceedings is not in doubt. He had written the letter to the Chief Judge noting that fact prior to the hearing before Pain J. That was the issue which was discussed at the end of the proceedings before Pain J.
On the material before this Court there is no hint of any irregularity in the proceedings in the Land and Environment Court being reinstated in the manner described above. There is, accordingly, no basis for adjourning these proceedings so that some enquiry may be made as to the content of any file that might still be held in the Land and Environment Court.
The submissions made seeking to challenge the validity of the proceedings before Pain J are misconceived. Quite apart from the lapse of time, the application for leave to challenge the costs order made on 22 March 2005 is unarguable. The application should be dismissed on that basis. However the application and indeed the further application for an adjournment of the proceedings today should also be dismissed on the basis that it is now far too late to raise any issue of the kind referred to above.
Even were the application not hopeless, there is no justification proffered for the Court extending time for anything remotely like the period required in the present case. The Court makes the following orders: (1) Dismiss the summons seeking leave to appeal filed on 5 June 2015. (2) Order that the applicant pay the respondent's costs of the application.