RONALD DAVID SMITH v NEWCASTLE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, MAHONEY and CLARKE JJA 31 July 1989 [1989] NSWCA 186 Samuels AP This is an appeal from a decision of Perrignon J in the Land and Environment Court in proceedings which terminated by a judgment delivered on 21 August 1987. The proceedings, which were brought by the respondent, the Council, against Mr Smith, the appellant, complained of the use that he was making of land which was subject to flooding and which presented potential dangers to adjoining occupiers of that land, unless proper heed was paid to restrictions upon the way in which the land could be used. The evidence which the learned judge accepted and which was not challenged by any evidence led by the appellant who gave none - was that the appellant had deposited unauthorised filling on the land and had concentrated there various types of what were described as "shack" structures, a Cessna aircraft, rubble, timber, fill, bottles, motor vehicles and a large quantity of used motor vehicle tyres. The land, of which the appellant is registered as the sole proprietor in fee simple, is approximately forty hectares in area. Evidence was led from an engineer employed by the Department of Public Works that the presence of these artifacts would result in the concentration or diversion of flood or storm waters which would, if there were an inundation of the kind to which this country is prone, have the effect of producing a higher flood velocity through the area. Accordingly, the uses which the Council sought to have discontinued did not merely involve questions of technical planning regulation or aesthetics but represented a potential danger to the property of adjoining occupiers. The learned judge came to the conclusion that there was no legal ground or licence upon which Mr Smith could rely, that no development consent or building approval had ever been sought or given for the sheds and structures which had accordingly been erected illegally and in breach of the interim development order which affected the land. Permission to use the land as an airstrip had been refused as long ago as 1978. The judge, therefore, made certain recommendations and orders, the orders including directions that the material in question should be removed. As I have said, those orders were made on 21 August 1987 after proceedings which commenced on 20 February 1987 and continued for four days in February, on 31 March, on two days in April and finally to conclusion in August. During the course of the case the appellant complained of ill-health from time to time and secured various adjournments on that account. At the end of the case, when the Council's evidence was completed, the appellant sought but was refused an adjournment "for possibly 3 or 4 months" to enable him to prepare his own evidence and to arrange for aldermen of the respondent to inspect the property. The learned judge rightly regarded the application as wholly without merit and refused it. He invited the appellant to give evidence, but the appellant declined to do so. 2 UNREPORTED JUDGMENTS The appellant filed a notice of appeal which contains five grounds, which I confess I find extremely difficult to understand. Two of them relate to what is alleged to be the judge's error in refusing an adjournment, a ground, of course, which has obvious difficulties since it disputes a classical exercise of judicial discretion. The third ground asserts that the material was on the land for agricultural purposes, a question of fact which the judge determined against the appellant. The fourth relates to a wind sock which had been erected on the land because the appellant flew an aircraft on and off, from time to time, although use of the land as an airstrip had been refused. The fifth ground relates also to the erection of structures and seems to me to offer no rational ground of appeal known to the law. This notice of appeal was filed within time and the appeal papers settled in October 1987. There followed a long series of adjournments and delays which it would be too tedious to indicate in detail. There are two affidavits of Mr Ross Lindgren, the solicitor for the respondent, one sworn 25 February 1988 and the other 28 July 1989 which indicate the course of events. The respondent applied to strike out the appeal for want of prosecution but for various reasons that order was not made although other orders were made designed to encourage the appellant to proceed with reasonable expedition. Finally the appellant signed an undertaking to pay the costs of the Appeal Books, which were duly printed - four volumes of evidence and submissions. There was then filed by the appellant in June 1988 a motion for leave to offer fresh evidence. A good deal of time was taken up in obtaining his compliance with the rules relating to such matters, a compliance which I think, in fact, was never fully effected. The respondent throughout this time, made no endeavour to execute the orders, it being its policy, we are told, not to do so because an appeal had been filed. It is perhaps better to say nothing about that save to observe that it was part of the respondent's case that the concentration of material on the land formed a potential danger to adjoining occupiers whose interests, presumably, it was the respondent's responsibility to protect. The appellant, very early in this sequence of events, had applied for legal aid, which had been refused. Throughout the period which has gone by he has made various applications to the court based upon poor health relating to stomach ulceration. This condition apparently became more emphatic this year and ultimately it appears that he underwent surgery or at least surgery was to be performed on 20 June 1989. There was a medical certificate indicating that he should be fit again early in July, and the appeal, which had previously been fixed but which had been removed from the list in order to meet the appellant's situation, was refixed for today. The appellant then wrote to the Registrar a letter dated 21 July 1989 in which he said that he would not be able to attend Court today because of the effects of his surgery, and that he was convalescing in a private home in Newcastle, not being fit enough to return to his own home. The letter informs the Registrar that the appellant's next appointment with "the Surgeons" is set down for 4 November 1989. It ends with the gloomy prognosis that "it may be several months before I am fit enough to proceed." A medical certificate is enclosed, which is dated 20 July, and says that he is suffering from "post surgery" and "is unfit for work from 20 July 1989 to 20 August 1989". It appears that the appellant is an invalid pensioner and no doubt the provision of medical certificates is a fairly routine matter. There is nothing in this certificate to indicate the precise nature of the disability which prevents attendance, or even that the doctor who signed it was URJ RONALD DAVID SMITH v NEWCASTLE CITY COUNCIL (Clarke JA) 3 aware that it was to be used for the purpose of obtaining an adjournment of court proceedings on the ground that the appellant - who appears, of course, in person - would be unable to conduct them. This is merely an outline of the matters which have occurred, and which have not occurred, in the two years which have elapsed since the orders were made in the court below. I have read the transcripts of the various interlocutory proceedings before the Court, and it is evident that the appellant has received every consideration, despite the fact that during that time I am satisfied that he has deliberately delayed the proceedings for his own advantage. I do not doubt that he has had surgery. I do not know the nature of it because the appellant has not provided us with any details. But I am not prepared to accept that he is unable to proceed today, or even to appear before the Court. The appeal has, so far as I can see - and I bear in mind I have heard no argument from the appellant - minimal merit. The notice of motion to adduce fresh evidence on its face has none. In my view the time has come to bring this sorry state of affairs to a close. I would refuse the adjournment, and consequently in my judgment the appeal should now be dismissed. That is the order which I propose. Mahoney JA On the evidence which is before the Court, such as it is, I am not satisfied that an appropriate case for adjournment has been made out. Mr Smith has been before the Court on a number of occasions and I would infer that he is aware of the kind of material which is appropriate to justify an adjournment, particularly an adjournment in these circumstances. I would, therefore, join in the order for dismissal of the appeal which is proposed. I would, however, add one qualification: having regard to the circumstances and to the state of the evidence, I would direct that the order not take effect until entered; that it not be entered for one month; that notice of what has occurred today be properly served upon the appellant and that he have liberty to apply to set aside the order, if proper evidence to that effect can be adduced within that time. Subject to that, I agree with the order which is proposed. Clarke JA I agree with the orders proposed by Samuels AP and I do not think there should be any stay of those orders. The Court's order is that the appeal is dismissed. EMMETT: The Council has already had several cost orders against the appellant. I would seek another one and would be seeking the general costs of the appeal. SAMUELS AP: We order the appellant to pay the respondent's costs of the appeal and of the motion including any reserved costs.