Land and Environment Court of New South Wales CITATION : Hawkesbury City Council v Jarvie [No. 2] [2002] NSWLEC 207 APPLICANT Hawkesbury City Council PARTIES : RESPONDENT Russell Alan Jarvie FILE NUMBER(S) : 40096 of 2001 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- application to reopen case - whether unnamed document constituted a notice of motion LEGISLATION CITED: CASES CITED: Sandlix Pty Limited v Hurstville City Council [2000] NSWLEC 98 DATES OF HEARING: 15/10/2002 EX TEMPORE JUDGMENT DATE : 10/15/2002 APPLICANT Mr A Walmsley (Solicitor) SOLICITORS A.R. Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT Mr R Jarvie (In person) SOLICITORS N/A JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40096 of 2001 COWDROY, J 15 October 2002 HAWKESBURY CITY COUNCIL Applicant v RUSSELL ALAN JARVIE Respondent Judgment [No. 2] Introduction 1 In this matter the Court made orders by consent on 5 August 2002, which were suspended for a period of 28 days to enable the respondent to file a notice of motion to set aside or vary such orders. Such provision was made because the respondent was not legally represented when the orders were made, and because it was requested by the respondent. 2 The Court records establish that on 5 August 2002 a sealed copy of the orders were forwarded to the respondent. The respondent denies their receipt. On 2 September 2002, being the second last day upon which the orders were to become final, the respondent attended at the Land and Environment Court Registry and filed an unspecified document. It does not accord with any of the Court forms and is not described as a notice of motion. The document was accepted by the Court Registry. 3 On 3 September the respondent says he telephoned the Registry and spoke to a Registry clerk to enquire of his defence which is contained in the documents which had been filed on the previous day. In the conversation he alleges that he was told that a notice of motion would be required and that he had three days in which to file it. Accordingly, on either 4 or 5 September a notice of motion was filed by the respondent. Such motion was filed out of time and does not comply with the Court's orders made on 5 August 2002. Accordingly the Court cannot pay regard to it. 4 The document filed on 2 September 2002 contains wording which could be construed as a challenge to the Court's orders. The Court also takes note of the conversation with the Registry clerk. The statements by the Registry clerk cannot override the effect of the Court order made on 5 August 2002. However, in Sandlix Pty Limited v Hurstville City Council [2000] NSWLEC 98 the Court considered a similar application to reopen proceedings. The Court determined that the application should be granted since the intention could be gleaned that the unrepresented litigant wished to move the Court. 5 In this case the Court considers that the interests of justice require that the proceedings be reopened for the same reasons referred to in Sandlix. Accordingly the Court construes the document filed on 2 September 2002 as a notice of motion which satisfies the requirement of order 5. Accordingly, the Court grants the application to set aside or vary the orders made on 5 August 2002. ********** 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.