Land and Environment Court of New South Wales CITATION : Michelsen v Gosford City Council [2002] NSWLEC 249 APPLICANT: Michelsen PARTIES : RESPONDENT: Gosford City Council FILE NUMBER(S) : (4)0483 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- strike out Motion for class 4 proceedings for failure to comply with directions. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/12/2002 EX TEMPORE JUDGMENT DATE : 12/20/2002 APPLICANT: N/A SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr J Thompson, Barrister SOLICITORS P Donnellan and Co JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . . (4)0483 of 2002 Coram : Bignold J 20 December 2002 A. F. MICHELSEN Applicant v GOSFORD CITY COUNCIL JUDGMENT 1. This is an application by Notice of Motion filed 24 October 2002 to strike out a class 4 proceedings, which were commenced in the Court on 9 August 2002. 2. The application has been before the Court on a number of occasions, and directions were given by consent by the Registrar on 1 November on the callover of the Council's strike-out Motion requiring the Applicant to file an amended application within 21 days, and to join other persons as defendants. That direction has not been complied with, and when the matter came before me for hearing, as fixed on 6 December 2002, the Applicant did not attend, but Mr Thompson, on behalf of the Council mentioned it on the Applicant's behalf. 3. On that occasion, I made orders by consent standing the proceedings over for further directions before me today, reserving the question of costs, requiring the Applicant to comply with the directions made by consent on 1 November by the Registrar on or before today, and requiring the Applicant to provide some medical certificate to the Council as to his inability to attend on the hearing fixture on 6 December 2002. 4. The Council's Solicitor notified Mr Michelsen by letter on the same day of the orders made by consent in his absence on 6 December 2002, and Mr Michelsen has not attended today. 5. It appears from the history of the case, and from the nature of the process, that Mr Michelsen has experienced great difficulty in formulating any legal claim against the Council. Hence the Council's inevitable strike-out Motion. It would appear, as Mr Thompson on behalf of the Council, helpfully put to me on the last occasion, that reading the documents that have been filed by Mr Michelsen, including the originating process (if one might call it that) that he has two complaints in respect of both the zoning and a development consent that has been granted by the Council in respect of land adjoining his property situate at Terrigal Drive, Terrigal. 6. In support of the Motion today the Council relies upon the affidavit of John Bramwell, Team Leader of the Northern Assessment Team of the Council. In that affidavit he deposes to the grant of the relevant consent, the processes that were undertaken in relation to the processing of that application, including public notification and the like, the fact that the Applicant in these proceedings made submissions in respect of the public notification of the development application, and the outcome of the Council's determination which was to grant consent subject to conditions. 7. Mr Thompson has drawn my attention in particular to par 21 of the affidavit of Mr Bramwell indicating that public notice pursuant to the Environmental Planning and Assessment Act, s 101 had been given as required by the regulations in the local newspaper on 27 February 2002, with the consequence that the provisions of s 101 would appear to operate so as to exclude the present challenge (if such be the case) in the Applicant's proceedings to the validity of that consent by virtue of the fact that the statutory period of three months for the commencing the proceedings expired well before the commencement in August of this year of the proceedings. 8. The other affidavit that is being relied upon by the Council is the affidavit of Bruce Ronan, Senior Land Use Planner. His affidavit, sworn on 4 December 2002, details the history of the zoning of the subject land, and the Applicant's land itself is commonly zoned with that land. That indicates that the re-zoning to "Residential A5" was effected by Gosford Local Environmental Plan No 2000 on 12 February 1988, but that the zoning of the lands took effect under the Gosford Planning Scheme Ordinance (since amendment No 6 was published on 11 July 1980) which permitted residential flat development. It would appear in those circumstances, so the Council's submission went, that I am bound to accept the fact that a challenge to the zoning of both the neighbouring land and the Applicant's land appears to be hopelessly out of date. 9. In the course of giving reasons for judgment on the Motion, a facsimile transmission received, apparently from Mr Michelsen, by the Court addressed to myself was handed to me. It states in terms, Before passing judgment, it's been impossible to seek legal assistance due to my hospitalisation during November 2000, being housebound to do so. The Bar Association tried to contact me when I was in hospital but could not contact me at the time. If this is struck-out the decision will mean either having to move, or face amputation of both legs because of my diabetic peripheral neuropathy, by these losses I would lose by this development. I cannot appear before you today because I am not fully mobile so to do. 10. Mr Thompson, on behalf of the Council, has no objection to my noting that intervention by way of the receipt of the facsimile, but nonetheless submits that it all comes too late in the piece, and that the relief claimed in the Notice of Motion should be granted. 11. In my opinion the failure to put his case in order, and to comply with the Court's Directions designed to have the claims properly articulated, is significant. It is regrettable that the Applicant is obviously most distressed by the circumstances of which he complains. He has not been legally represented, and I have tried myself to understand the nature of his grievances, and with great difficulty can do no better than Mr Thompson's analysis that it appears to be a legal grievance, if it can be so translated, upon the grant of the development consent for the development of the residential flat building on the adjoining land, and the zoning of both the Applicant's land and the neighbouring land to permit residential flat development. 12. I have great sympathy for the Applicant and his present plight which appears to be dire, based on his recent representation of it at least. Nonetheless, the case cannot be hanging over the Council's head, and the failure to prosecute it with any kind of efficiency must ultimately lead to the decision that the case must be struck out. 13. However, because of the particular plight pleaded by Mr Michelsen, and his apprehension of the dire consequences for him of the failure of his case, my decision to uphold the Council's strike-out Motion should be understood on the basis of the Applicant's failure to comply with the relevant directions of the Court, failure to properly plead a case and failure to present any opposition to the Council's Notice of Motion, and in the circumstances I would provide that the order by stayed for a period of 60 days from today's date. And I would further order that if the Applicant moves to set aside the judgment within that 60 day period, the judgment will continue to be stayed until the determination of any application to set aside. In other words the judgment, as Mr Thompson aptly put it, is more in the nature of a default judgment. 14. For all the foregoing reasons I order that the class 4 proceedings be dismissed, with costs I take it, Mr Thompson? THOMPSON: I'm not instructed to press for costs, but it might be useful to note-- HIS HONOUR: Reserve the question of costs? 15. The question of costs in the proceedings is reserved. The order dismissing the proceedings is stayed for a period of 60 days. If within that period the Applicant moves to set aside the order, on showing good cause, the stay will be extended pending the decision on any such application to set aside the order. 16. The exhibits may stay with the file DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.