Land and Environment Court of New South Wales CITATION : Maria Fokas v. Kogarah Municipal Council [1998] NSWLEC 84 APPLICANT Maria Fokas PARTIES : RESPONDENT Kogarah Municipal Council FILE NUMBER(S) : 20001 of 1998 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1993 Land and Environment Court Act CASES CITED: Holcombe v Coulton (1988) 17 NSWLR 71; Australand Holdings Pty Ltd v Hornsby Council (18 June 1998, 10338 & 30078 of 1997) DATES OF HEARING: 25/06/98 EX TEMPORE JUDGMENT DATE : 06/25/1998 APPLICANT Applicant In Person Solicitors Applicant NA LEGAL REPRESENTATIVES: RESPONDENT Mr G Johnsten Simpson & Harrison JUDGMENT: After apparently some earlier proceedings, a letter was written by Mrs Fokas to the Council on 18 December 1997. That letter is in evidence before me as Exhibit F2. At approximately the time that that letter was forwarded to the Council, the Council issued to Mrs Fokas an Order on 22 December 1997. The relevant communication is a letter of that date signed by Mr Young of the Council, which was in evidence before Assessor Brown as Exhibit 6. On 9 January 1998, Mrs Fokas lodged with this Court an application in Class 2 of the Court's jurisdiction appealing against the relevant order issued under s 124 of the Local Government Act 1993. Her evidence rightly suggests that that notice is dated 22 December 1998 but it is obviously a reference to Exhibit 6, dated 22 December 1997.That appeal was heard by Assessor Brown on 27 March 1998 and he delivered his judgment on 30 March 1998. Assessor Brown dismissed Mrs Fokas' appeal but gave her a further fourteen days from the date of his judgment to comply with the Council's order. The orders made by Assessor Brown appear to have been formally engrossed by the Court and the formal order bears the date 14 April 1998. On 14 April 1998 Mrs Fokas lodged with the Court a document, in the usual form for a Notice of Motion, in which she purported to seek, pursuant to s 56A of the Land & Environment Court Act, the setting aside of the decision of Assessor Brown. Attached to that document and marked as filed on 14 April 1998 are the following two reasons or grounds for appeal namely: "1. Mr Pavlovics statement was exchanged only nine days prior to the hearing. 2. Noise graphs showing the noise environment and done before I was having the pets were not exepted by the accessor." [sic] On 27 April 1998, a further document in Mrs Fokas' handwriting and on an Affidavit form sheet was filed and is headed "Further grounds for appeal". That document sets out seven additional grounds as follows: "1. I was given the statutory decleration form of Miss Kederian only during the Court to read it once. I was refused to have the copy of it. To my persistance I received a copy that was not readable. 2. I wish to speak about misunderstood of Asseccor. 3. I request Miss Kaderian to reappear in Court. 4. I also request Miss Simpson, Betty Rainolds and any other complainant to appear in Court. 5. I was restricted to speak about Council's reports. 6. I was restricted to speak about the neighbours letters. 7. I was given during the Court the information about the complaints that I requested from the Council long time ago. This did not allow me time to find out weather this information was correct." [sic] Whereas that document was filed on 27 April 1998, and Mrs Fokas produced to the Court a copy of it with a signature on the bottom of it, which she said was that of a Council officer, the Grounds of Appeal in that document were not known to the Solicitor for the Council until the Court provided him with a copy of it today. Nonetheless, the Council has not sought to adjourn the proceedings to allow these grounds to be considered and Mr Johnsten has made submissions regarding them in the course of these proceedings. On 28 April 1998, the day after the filing of that second Grounds of Appeal document, the Registrar of the Court warned the appellant that it was necessary for her to raise questions of law in order for her to appeal against the Assessor's judgment. It appears from the affidavit evidence presented by the Council that at that callover Mrs Fokas was advised to seek some legal advice and representation, and that on another occasion she was given the contact number of the Law Society Community Assistance Line so she could obtain legal advice. When the matter came before the Registrar on 26 May 1998 a further adjournment was refused by the Registrar and the Registrar then ordered the Council to file and serve by 9 June 1998, its intended Notice of Motion to strike out the s 56A appeal. It was determined by the Registrar that the Notice of Motion would be listed for decision by the Court today.It appears that the Notice of Motion was in fact filed on 2 June 1998, within the Court timetable, and evidence before me indicates that the notice of motion and two separate affidavits from Messrs Simpson and Young were in fact served. Indeed, Mrs Fokas acknowledged from the bar table the service of those documents upon her. It should be emphasised for the benefit of Mrs Fokas that these proceedings were not listed before a Judge of the Court today for the purpose of dealing as such with the merits of her appeal under s 56A against the decision of the Assessor. The purpose of today's hearing was to consider the formal Notice of Motion and the submissions of the Council that the Grounds of Appeal so far filed by Mrs Fokas did not disclose the Question of Law on which the Court could entertain that appeal. The difficulty in matters such as this is the fact that aggrieved persons find it necessary to appeal and represent themselves in such matters. This Court has extended a wide latitude indeed to Mrs Fokas to explain her grievances at great length and in order for the Court to be fair to her in determining whether to grant the Council's motion to strike out her appeal. Mrs Fokas has taken the Court to many of the comments in Assessor Brown's judgment in which she says he fell into error. The Court has on occasion obtained for her some legal advice during the hearing before Assessor Brown and referred her on another occasion to the Community Assistance Service of the Law Society. Mrs Fokas has told the Court today that she has not been able to obtain or afford representation for today's hearing. My task is to ascertain from the documents filed and submissions made orally to the Court today what the Grounds of Appeal actually are, and then to determine whether or not they amount to a competent appeal in the sense that they disclose issues of law for a Judge to consider in accordance with the principles which have been acknowledged by Mrs Fokas as having been established by the leading case of Hope v Bathurst City Council (1980) 144 CLR 1. Those principles are conveniently collected at page 2-1712 of T.F.M. Naughton's Practice Book regarding this Court. What the appellant has to demonstrate to succeed in a s 56A appeal and/or in order to succeed in Council's Notice of Motion is to demonstrate on a prima facie basis that the Assessor relevantly made an error of law. I have closely read the Assessor's judgment on three occasions and I have carefully considered Mrs Fokas' specific submissions in regard to relevant parts of it. With respect, it would appear to me that the Assessor went to some lengths to summarise the evidence and submissions made by both parties in the appeal. The grounds argued before me today as the basis for an appeal under s 56A seem to me to fit into the following categories: * Mrs Fokas asserts that the Assessor wrongly allowed some written materials to be accepted into evidence. In particular, she complains about the evidence of Mr Pavlovic. The acceptance of evidence by judicial officers including Assessors of this court is a matter of discretion and a matter of serious concern at every occasion. I have closely examined Exhibit 12 which was before the Assessor and Mr Pavlovic's statement, although late, is, as the Assessor said in his judgment, basically a chronology of events. I can find no error of law in the exercise of the Assessor's discretion in admitting that document. * She complains that the Assessor accepted oral evidence given by the witnesses Kederian, Young and Pavlovic with which she still takes issue. She seeks some way they may be called again. Indeed, she has asked the Court to hear the whole case again, and in particular, to review the Council's decision or otherwise on adopting the policy under which the orders have been made against her, and she also wants an opportunity to question all the complainants to the Council at a later hearing. The Court must explain to Mrs Fokas that it is not for the Court to order a re-hearing in this matter. Council officers were cross-examined by her in the hearing before Assessor Brown about the policy and the complaints, and, while it is a troubling situation that Mrs Fokas has now been able to produce to the Court some documents which appear in Exhibit F1 and, at least on some interpretation, might indicate that the evidence given as to the date of adoption of Council policy might be inaccurate, there are serious limitations on the Court as to what steps can now be taken to address such matters. As Mr Johnsten pointed out, the leading case in this State on such matters is the case of Holcombe v Coulton (1988) 17 NSWLR 71. This case was recently considered again by this Court when Lloyd J considered a s 56A appeal in the matter of Australand Holdings Pty Ltd v Hornsby Council (18 June 1998, 10338 & 30078 of 1997). That judgment was in fact delivered one week ago, on 18 June 1998, and his Honour relied upon the following passage from Holcombe v Coulton in the Court of Appeal, per McHugh JA (who has since become a Judge of the High Court of Australia): "Under the adversary system of justice, the function of the trial court is to determine disputes in respect of issues formulated by the parties, and the function of an appellate court is to correct any error of the trial court in making its determination ... To allow a party to raise in an appellate court a matter which was not litigated in the trial court not only undermines the respective functions of the trial and appellate courts and the policy of law but perhaps more importantly it deprives the appellate court of the benefit of the views of the trial court". While not actually sitting in the s 56A appeal in this matter, I have had the necessity to review these matters in some detail and I regret to say that if the evidence was inadequate before the Assessor, or he gave it inappropriate weight, or wrongly attributed weight to some of it, that, essentially on the evidence before me, would be an error of fact and not an error of law. * The next ground Mrs Fokas relies upon is the circumstances in which the list of complaints in Exhibit 8 came into being, and the reliance the Assessor placed on it. Mr Young in his affidavit of 10 June gave evidence to this Court in respect of these circumstances, and submissions have been made by Mr Johnsten as to the reasons Council wished to retain some control over the contents of the written documentation that was in the Council's file, as listed and/or summarised by Mr Young in Exhibit 8. Regrettably for Mrs Fokas' position, the circumstances of the coming into existence of Exhibit 8 do not raise a question of law. The written complaints in the Council file were available to her when the file was made available for cross-examination of Council's witnesses, and it is not unusual or in any way improper that, given the circumstances, those documents are not otherwise made available to her. If Mrs Fokas had had some legal representation on her behalf at the previous hearing, these documents may indeed have been tendered, but they were not, and the list was prepared and tendered. * Her next claim is that the Assessor was wrong to uphold emergency procedures available to Council under the Local Government Act 1993. At page 5 of Assessor Brown's judgment he says: "In issuing the Order, the Council used the immediate compliance provisions of s 137(2) of the Act and while the use of this section is not without some doubt, it was not a matter raised by Ms Fokas. The hearing was conducted almost exclusively on the merits of the Order and the judgment reflects this approach, although it is appropriate, in my view, to allow at least 14 days to comply with terms of the Order." Therefore, the substance of the situation as I see it is that while Assessor Brown may have had in his own mind some questions regarding the exercise of the power, the exercise of the power was not challenged before him. Any wrong that may have so resulted to Mrs Fokas was, in Assessor Brown's view, addressed by the provision of 14 days grace to comply with his order following his dismissal of the appeal. * The next ground was that the Assessor was wrong to exclude some noise evidence she prepared, and that he was also wrong to restrict her opportunities to speak. By the use of the word "speak" I presume she means "submit" regarding documents referred to in her submissions and written notice of appeal. Again, these are matters for the discretion of the Assessor in conducting the appeal. The noise evidence issue would not seem to me or to Assessor Brown to be relevant to the substance of the appeal and I see no error of law in his exclusion of the evidence. * One other matter I can deduce from the argument before me is a complaint about the use of the word "notice" and "order", which has caused some confusion and concern to the appellant. I can see no error of law in the use of such terminology given that, as Mr Johnsten has pointed out, "notice" is a word used to describe a document containing orders. Accordingly, I can find no error of law in the Assessor having adopted that terminology. * Lastly, there is some complaint that Mrs Fokas did not get copies of some actual exhibits. The Court does endeavour, within reason, to ensure that parties provide each other with copies of exhibits. However, there is no obligation on the part of the Court to provide photocopies of exhibits. In any event, Mrs Fokas was afforded access to those exhibits in the Court during the hearing before Assessor Brown, and again today, and was given the opportunity to cross-examine the witnesses. Indeed, a similar comment should be made in regard to her complaint about the use of the word "draft" on the document purported to be the Council's relevant policy. While the word "draft" appears on the document that became Exhibit 1, the evidence before the Assessor about its adoption as policy was not contradicted. He accepted the word of the officers that it had in fact been adopted as policy by the Council on 10 June 1997, and there was no evidence at the hearing before him that it did not. At the end of the day I have come to the conclusion that the Notices of Appeal and supporting documentation filed by Mrs Fokas in the matter do not disclose a competent appeal under s 56A of the Court's jurisdiction and I accordingly grant Council's application. Exhibits in the hearing before the Assessor should be returned to the Council and the Exhibits tendered today, namely Exhibits F1, F2 and F3 from Mrs Fokas should be returned to her. On the question of costs I exercise the Court's discretion and order that both parties should pay their own costs of this Notice of Motion. 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.