Land and Environment Court New South Wales Medium Neutral Citation: Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52 Hearing dates: 9 May 2014 Decision date: 09 May 2014 Jurisdiction: Class 5 Before: Pepper J Decision: Hearing dates vacated. Catchwords: PROCEDURE: application to vacate hearing dates due to illness of witness - properly particularised medical certificate provided - application granted. Legislation Cited: Civil Procedure Act 2005, ss 56, 58 Cases Cited: Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 Palerang Council v Banfield [2012] NSWLEC 85 Thaler v Cooma Monaro Shire council (No 2) [2014] NSWLEC 51 Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48 Category: Interlocutory applications Parties: Wingecarribee Shire Council (Prosecutor) Mr Paul O'Shanassy (Defendant) Representation: Mr T Howard SC (Prosecutor) Mr M Pesman SC (Defendant) Shaw Reynolds Bowen & Gerathy Pty Ltd (Prosecutor) Mr P O'Shanassy (In person) (Defendant) File Number(s): 51130 of 2012 EX TEMPORE Judgment The Prosecutor Applies to Vacate Hearing Dates Due to the Illness of a Witness 1In Wingecarribee Shire Council v O'Shanassy (No 3) [2014] NSWLEC 48 the Court permitted the prosecutor, Wingecarribee Shire Council, to reopen its case to read the affidavit of Mr Jim Allman affirmed 14 April 2014. The significance of this was that, as that judgment disclosed, the photographs associated with that affidavit, if admitted into evidence and assuming the prosecutor is able to successfully demonstrate that they were taken on the dates alleged by Mr Allman in his affidavit, could have the capacity to seriously adversely impact Mr O'Shanassy's credit with respect to the central issue in the proceedings, namely, when the impugned earthworks the subject of the criminal proceedings took place. 2As a result of leave having been granted to the prosecutor to reopen its case Mr Allman was required for cross-examination. That questioning was to occur today. 3However, due to the sudden illness of Mr Allman, the prosecutor seeks to vacate today's hearing. Mr Paul O'Shanassy, the defendant, neither opposes nor consents to the application. 4In support of its application, the prosecutor relies on a medical certificate of Dr Stephen Barnett dated 8 May 2014. It is not necessary to provide the details of the contents of that medical certificate, suffice it to say that a fulsome description of Mr Allman's illness was given by Dr Barnett, which makes it tolerably clear that Mr Allman is not fit to attend Court today. Indeed, he currently requires hospitalisation. 5Unlike 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 supporting the application is more than adequately stated in Dr Barnett's medical certificate, and moreover, that description leaves no doubt that Mr Allman will be unfit for Court not just today, but for the immediate future. Applicable Legal Principles 6The principles to apply to motions to vacate or adjourn hearings were pithily summarised by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (at [13], recently quoted by Sheahan J in Thaler v Cooma Monaro Shire council (No 2) [2014] NSWLEC 51 at [3]): 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. 7Mindful of the overriding purpose described in s 56 of the Civil Procedure Act 2005, exercised in accordance with the dictates of justice as described in s 58 of that Act, and having regard to the medical evidence presented to the Court, it is more than appropriate for the Court to accede to the prosecutor's application and to vacate today's hearing date. 8As a consequence of the vacation, it is also necessary to vacate what was to be the listing of the matter for final oral submissions on 16 May 2014. This is because it is unlikely that as at that latter date, Mr Allman's evidence will have been completed. Orders 9Today's hearing date and the hearing of the matter on 16 May 2014 are therefore vacated. 10For additional orders, see the short minutes of order made by the Court after discussion with the parties. ********** 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: 09 May 2014