> Land and Environment Court of New South Wales CITATION : Grimsey, D v Liverpool City Council [2003] NSWLEC 448 APPLICANT: Grimsey, D PARTIES : RESPONDENT: Liverpool City Council FILE NUMBER(S) : 40510 of 2003 CORAM: Bignold J KEY ISSUES: Costs :- Dismissal of proceedings for want of prosecution LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Rules CASES CITED: DATES OF HEARING: 03/09/2003 EX TEMPORE JUDGMENT DATE : 09/03/2003 APPLICANT: N/A SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr D R Baird, Solicitor SOLICITORS Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 3 September 2003 40510 of 2003 DAVID GRIMSEY v LIVERPOOL CITY COUNCIL JUDGMENT HIS HONOUR 1. This is an application by Notice of Motion filed on 14 August 2003 that class 4 proceedings brought by David Grimsey against the Liverpool City Council be dismissed for failure to prosecute and an order that the Applicant, Mr Grimsey, pay the Council's costs. 2. The application is supported by an Affidavit sworn by David Robert Baird oN 14 August 2003. Mr Baird is a Solicitor employed by the Solicitors for the Liverpool City Council in these proceedings having carriage of the matter. In his Affidavit, he sets out the history of the case which was commenced by class 4 application filed on 7 May 2003. In that application the Applicant, Mr Grimsey, claimed relief as follows: · A declaration that a statutory enforcement order issued by the Council pursuant to the Environmental Planning and Assessment Act 1979, s 121B was invalid and that the order be discharged. 3. He also claimed an order (I am referring to par 4) that the Council be restrained from continuing the prosecution of the Applicant for a breach of the purported order, such proceedings having been instituted by summons filed in the Liverpool Local Court being presently part heard by a Magistrate. 4. A declaration was also claimed (I refer to par 6) that development consent was not required in relation to the parking of heavy vehicles and trailers at the Applicant's residential premises. 5. That application as filed was supported by an Affidavit sworn by Mr Grimsey which annexes a copy of the statutory enforcement order which required in terms the recipient of the order, Mr Grimsey, to cease using the premises described as No 5 Quaama Cl, Prestons for an unauthorised use, being the parking of heavy vehicles, trucks and trailers and to remove all heavy vehicles and trailers stored at the premises and to cease parking heavy vehicles and trailers on the nature reserve adjacent to the residential premises. 6. As a result of apparent non-compliance with the statutory enforcement order the Council commenced proceedings in the Liverpool Local Court against Mr Grimsey for disobedience of that statutory enforcement order. 7. Whilst those proceedings were part heard before that Court he filed the present class 4 application claiming the relief to which I have referred. 8. The Solicitor to the Council has informed me from the bar table today that this Court last week heard a development appeal brought by Mr Grimsey against the Council's decision refusing development consent for the use of part of his residential premises for the parking of heavy vehicles and the like and that that appeal in class 1 of the Court's jurisdiction was heard and determined by Commissioner Moore last week by dismissing the appeal and refusing development consent. The Solicitor also informed me that the part heard prosecution proceedings before the Liverpool Local Court are to be resumed later this month. 9. The Affidavit in which Mr Baird recites the brief history of the case in this Court referred in particular to the directions made by the Registrar on 28 May 2003 requiring the Applicant to file and serve points of claim and Affidavits by 11 June 2003. 10. No points of claim being so filed, the Affidavit goes on to depose to a telephone conversation between the Deponent and the Solicitor, Ms Raphael, of Coustas & Co acting for the Applicant. The Affidavit indicates that Ms Raphael informed Council's Solicitor the Applicant's points of claim would be filed on 17 July 2003 and served by the close of business on 18 July 2003. This disclosure led to an agreement between the parties' Solicitors that a fresh time-table would be fixed and that the Council's Solicitors would mention the matter by consent at the next call-over. 11. That occurred on 18 July 2003 when the Registrar gave substitute directions including the direction that the Applicant file points of claim and Affidavits by 18 July 2003, that being of course the day upon which the orders were made but being the date agreed in the conversation between Ms Raphael on behalf of the Applicant and Mr Baird on behalf of the Council. 12. In the absence of compliance with those directions by the Applicant, the Council's Solicitor wrote again to Ms Raphael on 24 July 2003, noting that despite the extension of time to file and serve the points of claim, they had not been served and calling upon the Applicant's Solicitor to file and serve the points of claim by the close of business on 25 July 2003, failure to do so leading to the Council's Solicitors seeking the client's instructions to bring the matter to the Court by Notice of Motion seeking the striking out of the class 4 application. 13. Mr Baird has informed me from the bar table today that no response was received to that letter of 24 July 2003. He has also tendered Exhibit 1, his letter to the Applicant's Solicitor following the appearance on 20 August in response to the Notice of Motion filed 14 August 2003, originally returnable on 20 August 2003, advising that that matter came before the Registrar on 20 August 2003 when the matter was set down for hearing before a Judge of the Court today and directing the Council's Solicitor to inform the Applicant's Solicitor. 14. He has also tendered correspondence (Exhibit 2) including facsimile transmission notifying the Solicitor for the Applicant of the Notice of Motion seeking dismissal of the proceedings for want of prosecution. 15. Again, Mr Baird has informed the Court that he has not received any communications, oral or written, from the Applicant's Solicitor. 16. I note from the Court file that on 20 August 2003, the Registrar independently wrote to the Solicitors for Mr Grimsey advising that there was no appearance at the call-over conducted by her on 20 August and advising that the Notice of Motion filed by the Council seeking dismissal of the application for want of prosecution had been fixed before a Judge of the Court today with advice that "If you fail to appear the orders may be made without reference to you". 17. There is nothing on the Court file to indicate any communication with the Court by the Applicant's Solicitor to that letter. 18. The application for dismissal is founded upon the provisions of pt 12 r 2 of the Rules of Court which relevantly provide: The Court may at any time prior to the hearing if satisfied that there is no good reason for the failure of the Applicant to prosecute the proceedings dismiss those proceedings . 19. Subrule (1) provides the power to order the dismissal of the proceedings upon the application of the Respondent if: The Applicant does not within a reasonable time take any step necessary to bring the proceedings to a hearing or unreasonably takes any step to avoid the proceedings being brought to a hearing . 20. I am satisfied on the evidence that the power conferred by Part 12 r 2 of the Rules of Court is relevantly enlivened by dint of the failure of the Applicant's Solicitor to file points of claim in accordance with the two sets of directions given by the Registrar in the proceedings. 21. Today's Motion has proceeded ex parte on the application of the Council and I am satisfied that the Applicant's Solicitor has had abundant notice of the proceedings but for whatever reason has not appeared today. 22. In the circumstances, I am satisfied that the case has been made out to grant the relief claimed in the Council's Notice of Motion. 23. Accordingly, pursuant to the Rules of Court Part 12 r 2, I order that the class 4 application proceedings be dismissed by reason of the failure of the Applicant to prosecute the proceedings. 24. The Council's Motion seeks costs. This matter is governed by of Part 12 r 2(3) which provides: If proceedings are dismissed under this rule pt 11 rr 5, 6 and 7 apply as though the dismissal were a discontinuance . 25. Relevantly Part 11 r 5 provides for the payment of costs consequent upon discontinuance brought about without the consent of the other party. Subrule (2) limits the costs: The costs of the party occasioned by the discontinued claim and reasonably incurred this before service on the party of notice of the discontinuance . 26. The application of those rules to the circumstances in the present case when the Court dismisses the proceedings pursuant to Part 12 r 2 are such that the costs payable are the costs occasioned by the dismissal of the proceedings being costs reasonably incurred by the Respondent up to and including the dismissal of the proceedings. 27. Accordingly, I make the following orders: 1. Pursuant to pt 12 r 2 of the rules of court the class 4 application proceeding be dismissed. 2. The Applicant pay the Respondent's costs being costs reasonably incurred by the Council up to and including the date of the dismissal of the proceedings in the sum agreed or, failing agreement, as assessed. 28. The exhibits should remain on the Court papers. 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.