Land and Environment Court New South Wales Medium Neutral Citation: McNeill v Avalon Surf Life Saving Club; McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 177 Hearing dates: 16 October 2013 Decision date: 16 October 2013 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [21]. Catchwords: PROCEDURE: application to vacate hearing date on medical grounds - adequacy of medical certificate - reasons for delay in making application - application granted - applicant to pay costs of vacation. Legislation Cited: Civil Procedure Act 2005, ss 56-60 Cases Cited: Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69 McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72 McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85 Palerang Council v Banfield [2012] NSWLEC 85 Category: Procedural and other rulings Parties: John McNeill (Applicant) Avalon Surf Life Saving Club (First Respondent) Pittwater Council (Second Respondent) Representation: Mr J McNeill (in person) (Applicant) Ms F Berglund (First Respondent) Ms M Carpenter (Second Respondent) N/A (Applicant) N/A (First Respondent) King & Wood Mallesons (Second Respondent) File Number(s): 40373 and 40349 of 2013 EX TEMPORE Judgment Mr McNeill Makes a Late Application to Vacate the Hearing Date on Medical Grounds 1On 30 August 2013 these matters were set down for a one day hearing on 16 October 2013. At the time the matters were allocated a hearing date, Mr John McNeill, the self represented applicant in the proceedings, was present. 2Having regard to the history of these and related proceedings commenced by Mr McNeill concerning the redevelopment of the Avalon Surf Life Saving Club ("the Club"), the first respondent, it is fair to characterise them as having been attended by a history of delay (see McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 69; McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 72 and McNeill v Avalon Surf Life Saving Club [2013] NSWLEC 85). 3Naturally, this has caused consternation to the Club, and to the second respondent, Pittwater Council ("the council"), as the costs of the proceedings have continued to increase. The Court was told by the respondents, albeit from the bar table, that such costs are likely to be irrecoverable against Mr McNeill. The Club and the council are therefore desirous to have the matters finally determined as soon as possible by the Court. The same cannot readily be said, however, of Mr McNeill. 4On 15 October 2013 at 10:21am Mr McNeill made an application by email to the Court's Registry to adjourn the hearing of today's matters. The reasons given were "medical grounds as well as the grounds that I do want to call quite a few witnesses and arrange a site visit which will require more than the 'one day' hearing set down for this Friday Oct 18". A medical certificate was attached. 5The medical certificate was issued by Dr Michael Bishop from the MBBS Vale Medical Clinic in Brookvale. It was dated 14 October 2013. The medical certificate stated that Dr Bishop had examined Mr McNeill on 14 October 2013 and that: In my opinion he is suffering from [sic] The ongoing effects of being knocked unconscious and suffering a near drowning episode on the 7th October 2013. He will be unfit to submit his legal documents for a court case from 07/10/2013 to 04/11/2013 inclusive. The note was signed by Dr Bishop. 6On 15 October 2013 the Registry wrote to the instructing solicitors of the council noting that Mr McNeill was seeking to adjourn the hearing of the matter on medical grounds and observing that Mr McNeill was under the impression that the matter was listed for hearing on Friday, 18 October 2013 and not Wednesday, 16 October 2013. The eCourt communication requested the council to advise the Court whether the council consented to or opposed the application. 7It appears that by oversight on the part of the Registry the Club was not a party to this eCourt communication, however, later that day the council passed on the eCourt communication to it. 8By way of telephone call, the council contacted the Registry the same day and indicated that it opposed any adjournment being granted. Consequently, Mr McNeill was advised by the Registry that the matter was listed for hearing today and that any application for an adjournment should be made directly to the trial judge. 9When the hearing commenced on 16 October 2013, Mr McNeill appeared in person and, consistent with his email communication to the Court, applied for an adjournment on medical grounds relying upon the certificate he had previously emailed to the Court. From the bar table Mr McNeill gave a complicated, if not fantastic, explanation of the circumstances surrounding the injuries described in the medical certificate. The details are not presently relevant other than to note that they resulted in injuries to Mr McNeill that largely correlated with the content of the certificate. 10Both respondents opposed the vacation of the hearing date. Collectively, they submitted that: (a)the medical certificate contained insufficient details warranting the vacation of the hearing date. In particular the certificate did not state that he was unfit to attend the hearing; (b)given that the injuries were sustained on 7 October 2013, the delay in seeking medical advice until 14 October 2013 and in making the adjournment application on 15 October 2013 had not been satisfactorily explained; (c)Mr McNeill had been present when the hearing date was allocated and the asserted error by him as to when the matters were to be heard was unsatisfactorily explained; (d)the parties were ready to proceed; (e)there was increasing concern about the ever augmenting legal costs of the proceedings in circumstances where the Club was a not for profit organisation with limited funds and the council was troubled by the adverse financial impact of the litigation on its ratepayers; and (f)Mr McNeill had previously sought an extension for compliance with a timetable for the preparation of the matters on a similar ground (before Biscoe J). On that occasion an almost identical medical certificate signed by the same doctor was relied upon by him. The Hearing Date is Vacated 11On balance, it is an appropriate exercise of my discretion, having regard to ss 56 to 60 of the Civil Procedure Act 2005, to grant the adjournment sought. 12First, in my view, the medical certificate contains sufficient information to justify the granting of the adjournment, albeit just. Unlike the medical certificates provided in Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 (at [4] and [9]-[10]), Palerang Council v Banfield [2012] NSWLEC 85 (at [10]-[12]) and Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 (at [1]-[2]), the nature of the condition said to support the application is stated in the medical certificate, together with a specified time period as to Mr McNeill's unfitness. 13Although the certificate opines that Mr McNeill will be "unfit to submit his legal documents for a court case", and not that he is unfit to conduct a hearing, it can be reasonably inferred that if he is unfit to submit legal documents, he is unfit to run the hearing. Further, while the medical certificate relied upon by Mr McNeill has not been presented in the proper form, namely, by affidavit thereby permitting the opinion expressed therein to be tested by the respondents, on this occasion, latitude should be afforded to Mr McNeill as a self represented litigant. Having said this, it has been explained to Mr McNeill several times during the course of this application that should there be any further adjournments on any ground, the proper course is for Mr McNeill to file a notice of motion seeking appropriate orders and supported by affidavit evidence. 14Second, although there is some force in the criticism by the Club and the council that Mr McNeill is guilty of delay not only in seeking medical attention after the incident giving rise to his injuries, but also in making the application to vacate the hearing date, again, on this occasion, I am prepared to give Mr McNeill the benefit of the doubt. I do not consider a delay of a week between incurring the injury and seeking medical attention to be so egregious that it is fatal to the application. I note that upon finally obtaining the medical certificate, Mr McNeill acted promptly to notify the Court and the council that he would be seeking an adjournment of the hearing. 15Third, while I agree with the Club and the council that Mr McNeill's explanation that he forgot the precise date of the hearing and thought it was 18 October 2013, is somewhat unbelievable, again, I do not consider this to be adversely determinative. Plainly had this been the reason for seeking the vacation of the hearing date, it would not have been accepted by the Court. However, the mistake, if it be genuine, goes no further than to provide Mr McNeill with a partial answer to the respondents' claim that insufficient notice was given by him of the proposed vacation application. 16Fourth, I acknowledge and accept, particularly given the history of the proceedings, the frustration of the Club and the council in not having the matters finally determined in a more timely and efficient manner, and moreover, I accept their legitimate concern with respect to the mounting legal costs incurred by the continued delay. However, if Mr McNeill is not fit to conduct the hearing, it would be unfair on him to proceed. 17Fifth, in the absence of any cogent evidence from either the respondents or Mr McNeill as to what had occurred on a previous occasion before Biscoe J resulting in an extension of time for Mr McNeill to comply with directions of the Court, I attributed very little weight to this claim. 18Finally, although not the subject of substantive debate between the parties, it should be noted that the Court would not be prepared to vacate the hearing on the basis that Mr McNeill seeks to adduce further evidence by calling additional witnesses or desires the Court to visit the site of the development. It is too late for Mr McNeill to make such demands. But for Mr McNeill's medical incapacity, the hearing would have proceeded today absent any further evidence being filed on his behalf and absent an inspection by the Court of the Club. The time for Mr McNeill to have filed and served any evidence upon which he intended to rely at today's scheduled hearing was 12 August 2013. Although, by reason of the vacation of the hearing date, the Court cannot deny Mr McNeill pursuing any application to adduce further evidence or to request a site inspection by the Court, it was emphasised repeatedly to Mr McNeill, also in robust terms, that any application would be expected to proceed formally, that is to say, by way of notice of motion and supporting affidavit evidence. Costs 19The Club and the council sought an order that Mr McNeill pay their costs thrown away occasioned by the vacation of the hearing date. Mr McNeill opposed the making of such an order. 20In my opinion, the criticisms raised by the respondents in answer to the application to vacate the hearing date, while insufficient to successfully defend that application, are nevertheless sufficient to warrant the costs order they seek. Mr McNeill has sought, late, an indulgence from the Court which has been granted by the barest of margins. The Club and the council, having come prepared to defend the allegations made against them by Mr McNeill, should be compensated for the legal preparation costs thrown away by the vacation of today's hearing. In particular, although the delay did not operate to deny Mr McNeill the adjournment of the hearing he sought, in my view, had Mr McNeill sought medical assistance in a more timely fashion it is highly likely that the preparation costs incurred by the Club and the council today could have been minimised if not avoided altogether. It is therefore appropriate to order that Mr McNeill pay the Club's and the council's costs of the vacation. Orders 21Therefore, the formal orders of the Court are: (1)the hearing date of 16 October 2013 is vacated; (2)the matters are listed for final hearing on 6 November 2013 at 10am before Pepper J; (3)any further application for adjournment by the applicant is to be made by notice of motion accompanied by affidavit evidence. If the evidence to be relied on is medical, it is to be in the form of an affidavit deposed to by any medical practitioner upon whose opinion the applicant relies; (4)the applicant is to inform the Court, the first respondent and the second respondent in writing of an alternative address for service (in addition to his email address) within seven days; (5)all documents served by the applicant are to be served on both the first and second respondents; (6)the applicant is to file and serve his written submissions on both the first and second respondents and the Court by no later than 9am on 5 November 2013; (7)the applicant is to pay the first and second respondents' costs thrown away occasioned by the vacation of the hearing date; and (8)liberty to the parties to restore on 48 hours' notice (preferably before Pepper J). ********** 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: 18 October 2013