Appeal Outcome: Special leave dismissed with costs by the High Court, 30 March 2010 s219/2009 s220/2009 s102/2009 [2010] HCASL 57 New South Wales Court of Appeal CITATION: Kevin Roy Jacobs v Hurstville City Council [2009] NSWCA 86 HEARING DATE(S): 6 April 2009 JUDGMENT DATE: 6 April 2009 JUDGMENT OF: Allsop P at 1; Tobias JA at 25 EX TEMPORE JUDGMENT DATE: 6 April 2009 DECISION: The orders of the court in relation to each summons is that the application for leave to appeal be dismissed with costs. LEGISLATION CITED: Local Government Act 1993 (NSW) CATEGORY: Principal judgment PARTIES: Kevin Roy Jacobs Hurstville City Council FILE NUMBER(S): CA 40376/08; 40381/08; 40402/08 COUNSEL: Self represented (Appellant) S Berveling (Respondent) SOLICITORS: Self represented (Appellant) HWL Ebsworth Lawyers (Respondent) LOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): 40013/2006 LOWER COURT JUDICIAL OFFICER: Biscoe J LOWER COURT DATE OF DECISION: 14 August 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40376/08 CA 40381/08 CA 40402/08 ALLSOP P TOBIAS JA 6 April 2009 KEVIN ROY JACOBS v HURSTVILLE CITY COUNCIL Judgment 1 ALLSOP P: The applicant, Mr Kevin Jacobs, has filed three summonses seeking leave to appeal arising out of orders made by the Land and Environment Court in a class 4 matter. 2 The controversy between Mr Jacobs and the Hurstville City Council began relevantly some years ago when the Council issued a notice under s 124 of the Local Government Act 1993 (NSW). The notice sought the removal of all miscellaneous refuse and extraneous items from the premises including, but not limited to, rusting and unused metal, unused timber, broken and disused plastic, unused bricks, broken concrete slabs, scattered rubble, et cetera, and required the cutting back and removal and disposal of all overgrown vegetation, alive and dead, from the premises to an approved waste facility. The reasons for the order were said to be that the accumulation of miscellaneous refuse, extraneous items and overgrown vegetation was providing a likely harbourage or likely breeding place for insects and vermin. 3 It is to be noted as relevant to something that will arise in a moment that the copy of the relevant letter identifies either Lot 160 or Lot 169, the photocopying is not clear, of Deposited Plan 11124 identified by way of a street address as 75 Clarke Street, Peakhurst. 4 By application 9 January 2006 and filed in the Land and Environment Court on the same date, the council sought orders that Mr Jacobs' comply with the notice under s 124 and costs. 5 On 21 April 2006, the Land and Environment Court made orders by consent, in effect in compliance with those that had been sought in the notice. 6 On 7 July 2006, the Council filed in the Land and Environment Court a notice of motion for contempt on the basis that the consent orders had not been complied with. 7 On 16 August 2006, Mr Jacobs filed in the Land and Environment Court a notice of motion seeking, relevantly, that the consent orders be set aside. 8 On 17 August, 22 September, 11 October and 1 November 2006, the Land and Environment Court made directions for the furtherance of Mr Jacobs' notice of motion to set aside the consent orders, in particular relating to the filing of evidence. 9 On 15 November 2006, the Council filed a notice of motion that Mr Jacobs' notice of motion be struck out. Litigation then ensued which came to this Court on two occasions. 10 In May 2008, the Land and Environment Court made directions for the pursuit of the Council's notice of motion for contempt. When that matter was before Justice Lloyd on 16 May there was said to be an amended notice of motion to be served. 11 On 2 June 2008, the Council filed and served a further amended notice of motion seeking orders for contempt as well as para 3 which sought orders under s 678 of the Local Government Act dealing with the Council being given authority to carry out the cleanup itself. This was filed on 2 June 2008 and in July 2008 affidavit material was served in support of it. 12 On 29 July 2008, Mr Jacobs filed and served a notice of motion seeking to vacate the hearing date of the Court's further amended notice of motion which had been allocated a date of 5 August. 13 On 5 August 2008, the Honourable Justice Biscoe heard and determined Mr Jacobs' notice of motion filed 29 July. It is the conduct of the hearing on 5 August and the orders made on 5 August and subsequently on 14 August by way of the slip rule which gives rise to these current applications. 14 First, after hearing the parties and partly by consent Justice Biscoe: (1) by consent stayed paras 1 and 2 of the Council's further amended notice of motion for contempt filed on 2 June until the High Court had heard Mr Jacobs' special leave application; and (2) dismissed the application by Mr Jacobs to vacate the hearing date in relation to the relief sought by the Council under s 678. 15 His Honour then went on to hear the matter under s 678 and relevantly made orders under that provision authorising the Council to undertake the relevant work dealt with by the evidence before his Honour. It is to be noted that the form of the order identifying the land on which the work was to be carried out was Lot 160 DP 11124 known as 75 Clarke Street, Peakhurst. It is common ground that Lot 160 was a misdescription and in fact the land correctly identified as 75 Clarke Street was in fact Lot 169 in the deposited plan 11124. 16 His Honour gave ex tempore reasons on 5 August for both the refusal of the application to vacate the hearing date in relation to the s 678 matter and for the orders under that section. 17 On 14 August 2008, orders were made apparently pursuant to the slip rule, replacing the orders made on 5 August with further orders by reason of the fact that there had been a failure to attach one of the annexures referred to in order 1(d) and secondly by reason of the need to address timing questions for the service of the order consequent upon that change. No change was made to the reference to Lot 160; no complaint had at that point been made about any lack of clarity. 18 The three notices of motion filed in this court for leave to appeal are numbered 40376/08, 40381/08 and 40402/08. I will refer to these as the first, second and third motions, respectively. 19 Mr Jacobs in his oral submissions today clarified the nature of the complaints represented by the three applications for leave to appeal. In the first application, 40376, his substantial complaint was that there had been a denial of procedural fairness by the Land and Environment Court, in proceeding with the application under s 678. He indicated that he was taken by surprise by the application being heard on that day, that there was a lateness in filing of evidence, that he had had insufficient time to prepare the matter and that there was incomplete negotiations for the selection of an appropriate single expert if the court thought that appropriate. 20 His Honour's reasons reveal a difficulty with all these submissions. First, the notice of motion was served on 5 June therefore Mr Jacobs was aware of the terms of the summons two months before the hearing. Secondly, there was a degree of lateness in filing the material in early to mid-July by the respondent council but some of that evidence was not relied upon. Thirdly, it became plain in discussion between bench and bar involving Mr Jacobs that his difficulties on the day stem from the fact that he only brought to court material which was sufficient for his prosecution of his motion to vacate the hearing date. He had in his possession at home material that had been exhibited to affidavits served in the previous month which today he indicates he would have wanted to tender had he been given the opportunity in relation to the hearing of the application under s 678. 21 In my view there are no reasonable grounds to expect that Mr Jacobs would be successful on an appeal claiming denial of procedural fairness when one takes into account the background to the hearing on 5 August and the terms of the primary judge's reasons which are in substance not complained of. 22 The second summons, 40381, complains about the technical form of the order because of Lot 160. In my view there is no reasonable basis to contemplate that an appeal in this respect would be successful. The orders, though containing a minor error, are sufficiently clear to identify what they were relating to. That said, if there is any aspect of this matter which may go to a defence of a contempt application, that issue will be available to the defendant in that application. Therefore, in relation to the second summons, I do not see any basis for granting leave. 23 In relation to the third summons, that is 40402, as argued this really was an extension of the complaint in the first summons. Mr Jacobs sought to identify material that he would have been able to tender on the s 678 hearing if he was in a position and ready to prosecute the defence of that motion. The material was at home and was in his possession and, as I would understand, the material had been exhibited to affidavits filed the previous month. For the same reasons that I would not conclude that there was any real likelihood of success on the first summons dealing with a denial of procedural fairness, I would also conclude that there is no reasonable prospects of any success in the appeal on the third summons. 24 For those reasons in respect of each summons I would dismiss the summons with costs. 25 TOBIAS JA: I agree with the President but would add this further observation. During the course of his submissions Mr Jacobs referred to the fact that a deal of the material in respect of which the Council order had been issued was required by him for the purpose of building a garage in respect of which he had obtained Council approval. However, I note from the orders made by the court both on 5 and 15 August, as well as in the consent orders that were made in 2006, that the type of material which may have been of assistance to Mr Jacobs in constructing the garage was exempted from the order. I refer in particular to the forty-four gallon drum and six drums of aggregate referred to in order 1(a) and the whole concrete sleepers and whole bricks and large sandstone blocks and timber entry doors referred to in subparas (b), (c) and (d) of order 1. 26 It is clear to me that the Council took an extremely benign view in relation to the material to which the order should apply in making an effort to ensure, with Mr Jacobs' agreement, that any material that could be legitimately used for the purposes of carrying out development on his property was not the subject of the order. 27 Subject to those observations I agree with the orders proposed by the President and with his Honour's reasons. 28 ALLSOP P: The orders of the court are in relation to each summons the application for leave to appeal be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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