Land and Environment Court New South Wales Medium Neutral Citation: Woollahra Council v Duarte (No 3) [2013] NSWLEC 70 Hearing dates: 15 May 2013 Decision date: 15 May 2013 Jurisdiction: Class 4 Before: Craig J Decision: 1. Vacate the hearing listed for 21 and 22 May 2013. 2. I fix the hearing of these proceedings for Monday 24 June 2013. 3. I direct that any further affidavit to be relied upon by the first respondent be filed and served by 31 May 2013. 4. I direct that any affidavit in reply be filed and served by 14 June 2013. 5. I extend the time for compliance with Order 3 made on 23 November 2012 to 19 June 2013. 6. Note that the Council accepts the conclusion contained in paragraph 15 of the affidavit of Simon Taylor sworn 15 March 2012 is based on matters set out in paragraphs 8 to 14 of that affidavit, it being accepted that upon this concession being made the first respondent would not wish to cross-examine Mr Taylor. 7. Grant liberty to the parties to apply on 2 days' notice. 8. The costs of the first respondent's notice of motion are reserved. Catchwords: PRACTICE AND PROCEDURE - application to vacate hearing dates - second such application - discretionary considerations - application granted Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 Cases Cited: Woollahra Council v Duarte (No 2) 2013 NSWLEC 12 Category: Procedural and other rulings Parties: Woollahra Council (Applicant) Charmaine Duarte (First respondent) Rodney Duarte (Second respondent) Representation: A Hudson (Applicant) R M O'Gorman-Hughes (Respondents) Wilshire Webb Staunton Beattie Solicitors (Applicant) Self-represented (Respondents) File Number(s): 40330 of 2011 EX tempore Judgment 1Charmaine Duarte applies by motion to vacate the hearing of this matter fixed for 21 and 22 May 2013. The applicant, Woollahra Council (the Council) states that it wishes to have the matter proceed although it does not strongly oppose the vacation of hearing dates. Its position, as I understand it, is that it wishes to have the matter resolved as soon as is reasonably possible. Indeed, the Council made no submission against vacating the hearing date and did not challenge Ms Duarte upon her evidence or submissions. 2These proceedings have been on foot since 2011. There have been a number of occasions upon which the matter has been before the Court at which time Ms Duarte has been represented by different legal practitioners and, on at least one occasion, by herself. 3The matter was originally listed for hearing in February of this year. Shortly prior to the commencement of the hearing, Ms Duarte applied to vacate the hearing dates. Her application was supported by an affidavit in which she deposed to the fact that the solicitor who had formerly represented her had terminated her retainer in January 2013. 4The application then made was successful, Biscoe J acceding to the application in the circumstances fully described in his Honour's judgment (Woollahra Council v Duarte (No 2) [2013] NSWLEC 12). In short, his Honour described the circumstances justifying vacation of the hearing dates at that time as "extraordinary". His Honour refers to the prejudice occasioned to Ms Duarte having regard to the conduct of a consultant whom she had retained, described as a "disbarred solicitor" and who his Honour referred to simply as X. His Honour so described that person because the allegations made by Ms Duarte against him arguably amounted to fraud. 5Following his Honour's vacation of the February hearing dates, the hearing was fixed for two days next week, namely 21 and 22 May. That fixture was made when Ms Duarte appeared before the Registrar together with the solicitor for the Council and those dates were accepted as being suitable to both parties. 6The substance of Ms Duarte's present application to vacate next week's hearing is found in an affidavit sworn by her on 14 May 2013 in support of her notice of motion. She identifies two bases upon which her application is supported. First, she is not legally represented and feels inadequate in conducting her own case. Second, she relies upon the same circumstances as those that were identified in the judgment of Biscoe J to which I have earlier referred. However, she adds to those circumstances the fact that the former consultant referred to as X had since obtained a default judgment against her for fees in excess of $35,000 before deducting the sum of $15,000 that she had paid on account. In a contested hearing recently concluded, that default judgment has been set aside. Ms Duarte says she is embarrassed by the lack of funds to retain legal representation, particularly as she has recently incurred fees in the contested application to set aside the default judgment. 7The sum claimed against her by X is said to relate to work undertaken by that consultant on behalf of Ms Duarte in respect of the proceedings before this Court. While it was not my function to review those fees other than to observe the quantum of the account, it does seem to me to be extraordinary that a consultant who is no longer a legal practitioner would have incurred fees of the magnitude claimed for steps taken or advice given in connection with the proceedings that had not progressed to a hearing and could not have involved Court appearances when the matter has been listed for mention. Only three affidavits have been prepared on behalf of Ms Duarte for the purpose of the forthcoming hearing and the preparation of those affidavits would seem to be comprehended in the work for which X has charged. 8When the matter commenced before me this morning, Ms Duarte was self-represented and was clearly in a distressed state. She feared that she was unable adequately to defend her position against the claims that the Council brought against her. The proceedings listed for next week required the determination of two questions that had been the subject of an order made by this Court for separate determination. First, the Court is required to determine whether a development consent granted by the Council for alterations and additions to premises located in Edgecliff Road, Woollahra had lapsed by application of the relevant provisions of the Environmental Planning and Assessment Act 1979. Secondly, if the consent has not lapsed, the Court is required to determine whether, in carrying out building work to those premises, that work had been undertaken in accordance with the conditions of the development consent. 9While the final determination of the proceedings was not listed to occur next week, no doubt to accommodate a further hearing directed to the exercise of the Court's discretion, it is accepted by the Council consistently with its second amended summons, that if Ms Duarte is ultimately unsuccessful in resisting the orders sought in that summons, substantial works will be required to the premises in question. As I understand the Council's case, if successful those works will be directed to lowering the height of the building in question which is said to exceed that limited by the conditions of the development consent. 10When exercising the discretion invoked by the present motion, I am required to apply the provisions of the Civil Procedure Act 2005. By s 56 of that Act, the Court is required to conduct proceedings in a way that achieves a just, quick and cheap resolution of the real issues between the parties. Aspects of that requirement are elucidated in the succeeding sections of the Civil Procedure Act, including s 58 which relevantly provides that in deciding whether to make an order granting an adjournment, the Court is required to act "in accordance with the dictates of justice". Section 58(2) identifies elements of "the dictates of justice" to which regard must be had in making any order. While the provisions are not exhaustive in defining or explaining that term, they include "the degree of difficulty or complexity to which the issues in the proceedings give rise" and also "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction". 11While it would be extremely unusual to make an order vacating a hearing for the second time, I am persuaded that in the present circumstances the dictates of justice demonstrate that such a course is appropriate. In particular, I am concerned that if Ms Duarte is ultimately unsuccessful in defending the claims made against her, the making of orders sought would impose a significant financial impost upon her. I make that observation on the assumption that the separate questions earlier identified are determined adversely to her and that the discretionary evidence upon which she proposes to rely is not sufficient to avoid the making of orders that the Council seeks. As would be obvious, I am not determining at the present time that this will be the case but for the purpose of considering the present application that possible outcome bears upon the exercise of my discretion. 12Further, I am greatly concerned that in the distressed state in which Ms Duarte appeared before me today, she may be unable fairly to present a case in response to that which the Council seeks to make. With these matters in mind, and during a short adjournment, I gave consideration to the provisions of Pt 7, r 7.36 of the Uniform Civil Procedure Rules 2005 as they relate to the appointment by the Registrar of a pro-bono barrister or solicitor to assist Ms Duarte. Although no formal order was made by me under that rule, informal enquiries made by the Registrar of the Court determined that counsel was available, in the first instance, to offer some advice to Ms Duarte before I gave judgment formally determining the present motion. 13When the hearing resumed at 2.00pm, Mr R M O'Gorman-Hughes of counsel appeared for Ms Duarte, indicating that he was prepared to provide advice to her today and to appear on the present motion on a pro-bono basis. He further indicated that he was prepared to appear for Ms Duarte on the hearing of the matter, at a reduced fee agreed to by her, albeit that he could not complete adequate and proper preparation of the matter for a hearing due to commence next week. 14It seemed to me that with the intervention of Mr O'Gorman-Hughes and the acceptance by Ms Duarte that she had been afforded a chance to have her case presented and argued by counsel, proceedings could be conducted on an efficient basis and in a way that best served the interests of justice for both parties. This would be achieved, so it seems to me, if the hearing dates were vacated. 15When foreshadowing this course to the parties, I indicated that I would only accede to the application if the proceedings could be fixed for a hearing within about one month. Having established that either 24 or 25 June 2013 was available in the Court's diary for the matter to be heard I indicated that unless the parties were prepared to accept those dates I would not be prepared to vacate next week's hearing. In the circumstances, each party indicated that those dates would be acceptable to them. Clearly enough, circumstances that may prevail at the time will need to be considered but any further attempt to vacate the hearing that I am about to fix is likely to be met with strong resistance, not only from the Council, but from the Court itself. 16For all these reasons, I propose to vacate the hearing in this matter presently fixed for 21 and 22 May 2013. Both Mr Hudson, the Council's solicitor who says that he intends to conduct the hearing himself, and Mr O'Gorman-Hughes have indicated that the hearing of the case should not occupy more than one day. On that basis I am prepared to fix the matter for one day in the hope that economy of time can be achieved by sensible agreement of facts so that the essential issues raised by the two questions posed for separate determination can be determined in an efficient manner. 17The orders that I make are therefore as follows: 1. Vacate the hearing listed for 21 and 22 May 2013. 2. I fix the hearing of these proceedings for Monday 24 June 2013. 3. I direct that any further affidavit to be relied upon by the first respondent be filed and served by 31 May 2013. 4. I direct that any affidavit in reply be filed and served by 14 June 2013. 5. I extend the time for compliance with Order 3 made on 23 November 2012 to 19 June 2013. 6. Note that the Council accepts the conclusion contained in paragraph 15 of the affidavit of Simon Taylor sworn 15 March 2012 is based on matters set out in paragraphs 8 to 14 of that affidavit, it being accepted that upon this concession being made the first respondent would not wish to cross-examine Mr Taylor. 7. Grant liberty to the parties to apply on 2 days' notice. 8. The costs of the first respondent's notice of motion are reserved. ********** 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: 27 May 2013