NEWCASTLE CITY COUNCIL v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 16 May 1988 [1988] NSWCA 103 Mahoney JA (MOTION) The Land and Environment Court has made orders against Mr Smith, the respondent in this notice of motion. Mr Smith has appealed against those orders. He has not pursued the appeal properly in accordance with the rules. The council has therefore applied to strike out his appeal on the ground that it has not been duly prosecuted within Pt51 r 17. It is that application which is now before this Court. The orders disclose the following position. On 21 August 1987 Perrignon J, a Judge of the Land and Environment Court, made orders against Mr Smith. Mr Smith in those proceedings appeared for himself. The proceedings were heard over a number of days. The orders which the learned judge made, and which are set out in the judgment now before this Court, include several declarations and an order that Mr Smith demolish and remove within six months from the date of the orders all of the sheds and other structures erected and standing on Lot 312, other than the cottage and shed, to which reference was made in the order. Mr Smith lodged an appeal to this Court against that judgment. The grounds of the notice of appeal are set forth in the appeal. The grounds relate, if I may summarise them briefly, to matters going to the proceedings before Perrignon J and his failure to adjourn the proceedings or to give time in relation to them; and to the fact that, as the notice of appeal suggests, some or all of the structures were erected at times before the legislation came into effect. Whether these be good and sufficient grounds of appeal is not a matter on which I need form an opinion at this stage. If an appeal is to be brought against those orders the appeal must be prosecuted with due speed. It cannot be allowed to move at the leisurely pace at which the present appeal has moved. And a fortiori an appeal cannot be used for the purpose of defeating or delaying the effect of orders. In saying this, of course, I form no judgment whether that was the purpose of the delay in the present case. In order that an appeal of this kind proceed it is necessary to have settled the material to be included in the appeal papers. That is provided for in Pt51 r20 et seq of the Supreme Court Rules. What happened in the present case is as follows. A date Has fixed for the settlement of the appeal papers when the notice of appeal was lodged. That date was 13 October 1987. On that date Mr Smith did not pursue the settlement of the appeal papers. A further date was fixed, namely, 12 November 1987. Again Mr Smith did not pursue that date. No further appointment appears to have been made for the settlement of the appeal papers. The reasons why the appeal papers were not settled on those dates have not been fully presented and I shall not express any opinion in relation to them. On 7 January 1988, presumably because no further date had been fixed for settlement of the appeal papers, the council wrote to Mr Smith telling him, in substance, that if he did not proceed with the preparation of the appeal in the 2 UNREPORTED JUDGMENTS proper way the council would move to strike out the appeal. Mr Smith did nothing by way of further preparation of the appeal in accordance with the rules. On 3 March 1988 the council therefore brought the present application to this Court for the purpose of striking out the appeal in the circumstances contemplated by pt51 r 17. The application has been before this Court on three prior occasions, on 21 March and 28 March and again on 18 April. On those occasions the application was adjourned in circumstances which it is not necessary to consider. However, the matter is now before this Court and I am dealing with it in exercise of the powers granted by s46 of the Supreme Court Act. Mr Smith has, in my opinion, not placed before the Court a proper and satisfactory explanation as to why the appeal has not proceeded in accordance with the rules to the extent that the rules provide for what is to be done at this stage. Mr Smith has informed the Court that he has insufficient funds to pursue the appeal. This matter has not been investigated. whether he has such funds or whether, for example, as I think was tentatively suggested during the course of the hearing, he might use the land in question or his interest in it for the purpose of supporting the appeal, is a matter on which I express no opinion. Legal aid has been applied for and refused. The Court has been informed that Mr Smith has applied to the Attorney General for assistance in relation to the matter and the Attorney General has found it inappropriate or impossible to grant the necessary assistance. Mr Smith has informed the Court today that over the weekend his position has been significantly affected in that his house has been destroyed by fire. The Court inquired whether for this reason Mr Smith desired to have a further adjournment of this matter, but he indicated that he did not, and that is understandable. The application has therefore proceeded before this Court. Mr Lindgren, a deponent for the council, was called for cross-examination. Mr Smith cross-examined Mr Lindgren generally upon matters which do not go to the heart of the present application; his cross-examination has been directed essentially to matters which were, I think, broadly relevant to the merits as a layman would see them of matters touching this application but, as I have said, not going to the heart of it. The council's claim is that Mr Smith has not done the acts required to be done under the rules and he has not prosecuted the appeal with due dispatch. Mr Smith has clearly not done what the rules required. He has not filed a draft index in accordance with Pt51 r 22, and he has not proceeded with the settlement of the appeal papers. The Registrar has therefore not been able to obtain from him an order for the relevant numbers of the appeal papers to be filed in due course. At this stage what is required to be done can be done without the significant expenditure of money by Mr Smith. The expenditure of money will, of course, occur as and when the appeal books have been printed by the Court and it is necessary for Mr Smith either to pay for them or to give the appropriate undertaking to do that. However, in order to give that undertaking so to pay for them, it will be necessary for him to have the money to do so. Therefore, in a practical sense, his financial position is at present relevant. Taking that into account, all that can be said at the present time is that he has not complied with the rules and he has not prosecuted the appeal with due diligence. In coming to the latter conclusion I have taken into consideration the difficulties which he says he has in relation to finances, and I have in mind that this has not been fully investigated. I shall assume, however, broadly in his URJ NEWCASTLE CITY COUNCIL v SMITH (Mahoney JA) 3 favour, that he has not presently available to be paid over a sum of money sufficient to meet the provision of the appeal books. I therefore find: that the draft index has not been filed in the appropriate time; that otherwise the rules have not been complied with; and that Mr Smith has not prosecuted the appeal with due diligence within the rules. It is my intention to direct the following: that the draft index be filed on or before a date which I shall fix, probably two weeks from day's date; that an appointment for settlement of the appeal papers be fixed for a date which I shall fix probably three or four weeks thereafter. I shall direct, if Mr Smith does not comply with the rules on that date, then the present matter be re-listed before this Court on a date a week or two weeks after that date for the purpose, subject of course to such circumstances as may appear in the opinion of the Court then dealing with the matter, of striking out the appeal. I shall seek the submissions of the parties in relation to the fixing of those dates in due course. Before concluding the matter, it is proper to add the following observations. The Court is careful not to strike out an appeal where failure of due prosecution of it or non-compliance with the rules in relation to it have resulted substantially because of the lack of means of the appellant. The grounds of appeal in the present case, bearing in mind that they have perhaps been drawn without full legal assistance, are not completely inappropriate to an appeal to be brought in this regard. The refusal of an adjournment, if made out in accordance with the authorities, may constitute a ground on which an appeal can be brought to this Court from the Land and Environment Court. It may be (I express no opinion whatsoever on the matter) that if the structures were erected prior to the relevant date for the purpose of the planning appeal restrictions there might be a ground of appeal. As Ihave said, I have not attempted to analyse the learned judge's judgment, or the extent to which he has dealt with these matters and the way in which they will be dealt with on appeal. If the only ground for failure to proceed with this matter be a lack of means, then I note that it is open to a party in appropriate circumstances (I do not say that this is one) to apply to the Supreme Court for an order for relief against the cost of the matter in relation to fees and it may be the cost of providing appeal books. If this be done, then the appropriate information must be placed before the Supreme Court and the proper officer of it, in order to enable a decision to be made. I do not in saying this invite Mr Smith to make such an application but I draw his attention to the fact it may be made. If he is to make it, it will be necessary for him to provide to the relevant officer of the Court full information to satisfy the Court as to the requirements for any such waiver. The second matter I would draw attention to is this: as I have said, I have not formed any final view whether what has been done has been done for the purpose of delaying these proceedings or with that in mind. I would say, however, that there is a substantial public interest in the enforcement of orders made for the protection of the environment and generally under environmental law. The order made by the learned judge of the Land and Environment Court was made in proceedings which apparently first came before that court on 18 March 1986. The proceedings, as I have said, took place over a significant period of time. Having heard what was put by Mr Smith, his Honour made the orders 4 UNREPORTED JUDGMENTS which he did. The time for enforcement of the orders, that is the delay granted by his Honour in relation to the enforcement of the orders, has now expired. It expired in February last. The fact that an appeal has been lodged is of itself no ground for refusing endorsement of the orders and a fortiori the fact that an appeal has been lodged should not be seen as a means whereby the proper prosecution of the orders and, if necessary, the demolition of the structures on the land can be delayed. These are matters which in the public interest may have to be undertaken. For these reasons I propose to make orders of the nature I have indicated. (Discussion ensued) The orders I make are that the draft index be filed on or before a date two weeks from today; that the appointment for settlement of the appeal papers be fixed for a date four weeks from that date, and if Mr Smith does not comply with the rules by that date then the matter is to be restored for hearing before this Court on a date two weeks thereafter with a view to determining whether an order striking out the appeal for non-compliance with the rules should be made. The costs of this matter today will be costs in the motion. I order that the motion be stood over to a motion day which will formally be six weeks from today's date. That will mean that control of the motion will not be lost but it will come back before the Court at an appropriate time for consideration. If that is not the date on which it is to proceed in accordance with the timetable I have established, then an appropriate adjournment can be given.