Thaler v Cooma Monaro Shire Council (No 2) [2014] NSWLEC 51

Land and Environment Court New South Wales

Medium Neutral Citation: Thaler v Cooma Monaro Shire Council (No 2) [2014] NSWLEC 51 Hearing dates: 8 May 2014 Decision date: 08 May 2014 Jurisdiction: Class 6 Before: Sheahan J Decision: Hearing dates vacated and directions made (see par [20]) Catchwords: PRACTICE AND PROCEDURE: Vacation of hearing dates - principles to apply - utility of refusal when adjournment appears inevitable. Cases Cited: Aon Risk Services Australia Limited v ANU [2009] HCA 27; (2009) 239 CLR 175 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Category: Procedural and other rulings Parties: Andrew Thaler (Appellant) Cooma Monaro Shire Council (Respondent) Representation: Appellant in person R O'Gorman-Hughes, barrister (Respondent) Litigant in person (Appellant) Bradley Allen Love Lawyers (Respondent) File Number(s): 60566 of 2013

Judgment

Introduction 1This is an application by Mr Thaler to vacate the dates set for the hearing next Monday and Tuesday of his Class 6 appeal against his conviction by the Local Court in Cooma for failing to comply with conditions of development consent. 2The appellant's Notice of Motion ("NOM") seeking the vacation of the hearing was filed yesterday, and suggests that there be a mediation before the matter returns to the list. 3The principles to apply to motions to vacate or adjourn hearings were concisely summarized in Kenoss Pty Ltd v Palerang Council ("Kenoss") [2013] NSWCA 174, by Ward JA, who said (at [13]): The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. 4The discretion, including as to costs as a remedy for resulting prejudice, has to be "exercised in the context of the common law adversarial system as qualified by changing practice and that this is not a system which today permits disregard of undue delay" (Kenoss at [16], citing Aon Risk Services Australia Limited v ANU [2009] HCA 27; (2009) 239 CLR 175, per French CJ at [24]).