Parramatta Business Freedom Association Incorporated v Parramatta City Council [2012] NSWLEC 104

Land and Environment Court New South Wales

Medium Neutral Citation: Parramatta Business Freedom Association Incorporated v Parramatta City Council [2012] NSWLEC 104 Hearing dates: 7 May 2012 Decision date: 07 May 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Hearing date of 10 May 2012 vacated. Listed for hearing on 7-8 June 2012. Catchwords: Practice and procedure - vacation of hearing date. Category: Procedural and other rulings Parties: Parramatta Business Freedom Association Incorporated (Applicant) Parramatta City Council (Respondent) Representation: COUNSEL: Mr M Baird (Applicant) Ms K M Richardson (Respondent) SOLCIITORS: Barrak Lawyers (Applicant) Ashurst (Respondent) File Number(s): 40385 of 2012

EX TEMPORE Judgment 1This is a motion by the respondent council to vacate the hearing date on Thursday of this week. In these judicial review proceedings, the applicant challenges the validity of the council's ban on smoking in restaurants' outdoor dining areas on public footpaths. The proceedings were commenced less than two weeks ago and were returnable before the Court a week ago, on 30 April, pursuant to leave to serve the originating process on short notice. On that date, optimistically perhaps, a final hearing was fixed for Thursday of this week because of circumstances of urgency and in order to avoid an interlocutory hearing for an interim injunction. On the basis of such an early hearing, the council gave an undertaking to the Court to the effect that it will not enforce the ban before the Court determines the proceedings. 2The applicant then changed its entire legal team and, as a result, amendments to the originating process and evidence were not filed and served last Friday morning as they should have been under the original directions, but rather were served this morning (Monday). The council was therefore deprived of the opportunity to review and respond to that material on the Friday and over the weekend, in the context of a tight Court timetable where every day was important. 3Having reviewed that material this morning, the council has concluded that there is insufficient time to adequately respond to it before the hearing is due to commence in less than three days' time. Consequently, it seeks vacation of the hearing date and new hearing dates early next month. New hearing dates are available on 7 and 8 June. 4The applicant does not oppose the motion, nor should it given its role in bringing about the current situation. The council's position is entirely reasonable, having regard to the background. I therefore vacate the hearing date and appoint new hearing dates on 7 and 8 June 2012. 5The parties have now agreed on directions for the close of pleadings, evidence and submissions leading to the hearing on 7 and 8 June. Accordingly, I make orders in accordance with the agreed short minutes of order dated 7 May 2012, which I sign and place with the 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. Decision last updated: 10 May 2012