Miah v Canterbury City Council [2012] NSWLEC 116

Land and Environment Court New South Wales

Medium Neutral Citation: Miah v Canterbury City Council [2012] NSWLEC 116 Hearing dates: 21 May 2012 Decision date: 21 May 2012 Jurisdiction: Class 6 Before: Biscoe J Decision: (1) The hearing date of 22 May 2012 is vacated; (2) The matter is listed for directions before the List Judge on 6 July 2012. Catchwords: Practice and Procedure - application to vacate hearing date on ground of ill health. Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Procedural and other rulings Parties: Md Abdul Halim Miah (Applicant) Canterbury City Council (Respondent) Representation: COUNSEL: N/A (Applicant) A Simpson, solicitor (Respondent) SOLICITORS: N/A (Applicant) Pikes Lawyers (Respondent) File Number(s): 60213 of 2012

EX TEMPORE Judgment 1This is a motion by the respondent, Canterbury City Council, to vacate the hearing date of 22 May 2012 (tomorrow). 2The proceedings are an appeal lodged by the applicant, Md Abdul Halim Miah, who has no legal representation, against the severity of a fine of $2,000 imposed in the Burwood Local Court on 1 December 2011 for an offence against the Environmental Planning and Assessment Act 1979. 3On Wednesday 2 May 2012, Mr Miah contacted the council's solicitor advising that he had had a heart attack and was in hospital, that he was having an angiogram the next day, that he may need to have an operation, and that he could not attend on the allocated hearing date as he would be in hospital. He was assured by the council's solicitor that the solicitor would arrange to have the hearing adjourned. On 6 May 2012, the council's solicitor received a message from Mr Miah advising that his angiogram had been done a few days earlier, that it showed three of his four coronary arteries were severely blocked, that he was having an open heart by-pass operation in a few days' time and that it would take six to twelve weeks to recover his health sufficiently to return to normal work. On 9 May 2012, the council's solicitor was informed by Mr Miah's wife that her husband underwent the by-pass operation, was in a serious condition and was recuperating. 4On 11 May 2012, the matter was listed for mention at the instance of the council's solicitor. Pepper J directed that the council file a notice of motion to vacate the hearing date and supporting affidavit with a medical certificate by 18 May 2012. That has been attended to by the council's solicitor. 5There is now in evidence a letter from Mr Miah of 15 May 2012 to the council's solicitor enclosing a medical certificate. The medical certificate is cryptic: it says that Mr Miah was admitted to hospital on 6 May 2012 suffering from "a medical condition" and that he will be unable to work until after 27 June 2012. 6I am concerned about the lack of information in the medical certificate. So was the council's solicitor, who wrote to Mr Miah on 16 May pointing out that it does not specify the medical condition he is currently suffering from nor specifically say that he would be unable to attend Court on 22 May. The council's solicitor strongly suggested that he obtain a medical certificate setting out specifically that he encountered cardiac problems, underwent a by-pass operation, and cannot attend the hearing due to his current medical condition, and indicating when he is expected to recover such that he could attend a hearing. 7I am informed by the council's solicitor that such further information is not available today, however the council is reasonably satisfied that Mr Miah has in fact recently undergone an open heart by-pass operation and that consequently he is unfit to attend the hearing tomorrow. 8Notwithstanding my reservations about the paucity of information in the medical certificate, I am on balance prepared to accept that Mr Miah has undergone an open heart by-pass operation, is consequently not fit to attend the hearing tomorrow, and that he will not be fit to attend a hearing until after 27 June 2012. 9In those circumstances, the orders of the Court are as follows: (1)The hearing date of 22 May 2012 is vacated. (2)The matter is listed for directions before the List Judge on 6 July 2012. 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: 21 May 2012