Eurobodalla Shire Council v Gerondal (No 2) [2012] NSWLEC 37

Land and Environment Court New South Wales

Medium Neutral Citation: Eurobodalla Shire Council v Gerondal (No 2) [2012] NSWLEC 37 Hearing dates: 9 March 2012 Decision date: 09 March 2012 Jurisdiction: Class 4 Before: Pain J Decision: 1. The Respondent's application for vacation of hearing dates of 15 and 16 March 2012 is dismissed. 2. Costs to be costs in the cause. Catchwords: PROCEDURE - exercise of discretion - whether to vacate hearing dates in light of medical evidence Legislation Cited: Civil Procedure Act 2005 s 56, s 57, s 58, s 61, s 66 Land and Environment Court Act 1979 s 56A Protection of the Environment Operations Act 1997 Cases Cited: Kadian v Richards [2004] NSWSC 382; (2004) 61 NSWLR 222 Category: Interlocutory applications Parties: Eurobodalla Shire Council (Applicant) Monica Gerondal (Respondent) Representation: Mr P Larkin SC (Applicant) Mrs M Gerondal (Respondent - in person) Sparke Helmore Lawyers (Applicant) File Number(s): 40661 of 2011

EX TEMPORE Judgment 1I have before me today as duty judge a Notice of Motion filed on 5 March 2012 by Mrs Gerondal, the Respondent, seeking various orders. Prayers 4, 6 and 7 cannot be considered as the Court lacks jurisdiction or there is no utility in making them (especially prayer 7). 2The main issue requiring urgent resolution is the application for vacation of hearing dates on 15 and 16 March 2012 (prayer 5).

Respondent's evidence 3Mrs Gerondal has affirmed an affidavit dated 3 March 2012 in which she identifies some of the relevant history of the matter including a directions hearing before Craig J on 3 February 2012 at which she was required to have six questions answered by her medical practitioner if she wished to rely on her medical condition to vacate the hearing dates. She attaches a letter from her treating ophthalmologist Dr Tridgell dated 15 December 2011 which addresses these questions. He identifies her medical condition and also that the usual assistance for people with the medical conditions of Mrs Gerondal is to use degrees of magnification and such aids can be obtained from Vision Australia. He suggests making an appointment for an assessment and advice on magnification aids. A further matter raised in the affidavit concerns four subpoenas issued by Eurobodalla Shire Council (the Council) to various medical practitioners and Vision Australia concerning irregularities on the face of the documents (the Applicant is incorrectly described as Mrs Gerondal) which are said to render these false. Breach of human rights is alleged and loss of privacy as no prior permission was sought from Mrs Gerondal before this private information was sought. She has an appointment with Dr Tridgell on 28 March 2012 and wishes the matter stood over for at least six months to enable an improvement in her condition. 4Short oral evidence and submissions were given by Mrs Gerondal that she had tried to get an appointment with Vision Australia in January but this coincided with another doctor's appointment, Dr Feltham. She further submitted that it was not possible to go to Vision Australia if no prescription had been issued for the last two years and because of her condition she cannot get a prescription issued. (Mr Jayne's evidence relied on by the Council is that the assessment with Vision Australia just takes longer if there is no recent prescription. See par 7 below). When asked by me whether she go to Vision Australia if there was an adjournment of the hearing, Mrs Gerondal said she did not know, she would wait and see what Dr Tridgell said on 28 March 2012 about a cure. She disputed the professional qualifications of Mr Tilia (see below) compared to those of Dr Tridgell and Dr Feltham. 5Dr Chong Beng Ooi her treating doctor has also affirmed an affidavit dated 3 March 2012 which was filed in Court, attaching various medical certificates and identifying the nature of the condition resulting in vision impairment. One dated 10 January 2012 states that Mrs Gerondal is unable to prepare documentation in relation to the Court proceedings.