Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206

Land and Environment Court New South Wales

Medium Neutral Citation: Chami v Lane Cove Council (No 2) [2015] NSWLEC 1206 Hearing dates: 27 May 2015 Date of orders: 15 June 2015 Decision date: 15 June 2015 Jurisdiction: Class 1 Before: Moore SC Decision: See orders at ( …….) and directions at (….) below Catchwords: APPLICATION TO REOPEN Legislation Cited: Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Cases Cited: Autodesk Inc and Another v Dyason and Others [No 2] [1993] HCA 6; (1993) 176 CLR 300 Chami v Lane Cove Council [2015] NSWLEC 1003 Pollock v Hicks [2015] NSWCA 122 Ross v Lane Cove Council [2012] NSWLEC 1364 Single v Van Motman [2015] NSWLEC 1133 Category: Procedural and other rulings Parties: Sarab Chami (Applicant) Lane Cove Council (Respondent) Representation: Counsel: Mr R Ross, agent (Applicant) Mr S Griffiths, solicitor (Respondent)

Solicitors: N/A (Applicant) Pikes and Verekers Lawyers (Respondent File Number(s): 10398 of 2014

Judgment

Introduction 1. SENIOR COMMISSIONER: On 6 May 2015, Mr Ross, in his role as agent for Ms Chami, filed a Notice of Motion seeking changes to a number of matters that had been required to be undertaken by Ms Chami as a consequence of determinations set out in my preliminary determination in this matter (Chami v Lane Cove Council [2015] NSWLEC 1003 – hereafter referred to as Chami v Lane Cove). 2. On the return date set for that Notice of Motion, 15 May, I advised Mr Ross, consistent with the approach of treating him as Ms Chami's agent as a self-represented litigant (see, for example, [31] and [88] of Chami v Lane Cove) that she would need to make an application for leave to reopen the proceedings. 3. This procedural advice is consistent with the approach of courts to self-represented litigants as recently summarised by Gleeson JA in the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 (at 91 – 95). 4. Although, at an earlier mention on 15 March, Mr Griffiths, solicitor for Lane Cove Council (the Council) had suggested that I could and should require Ms Chami to be represented by a lawyer, I then indicated to Mr Griffiths that I considered that such a suggestion, if pursued by me, would be entirely improper. I did, however, indicate to Mr Ross on that occasion that it might be prudent for Ms Chami to consider seeking legal representation if she wished to pursue an application to reopen the proceedings. 5. The matters that were discussed in Ms Chami's affidavit sworn on 5 May 2015 (read in the further Notice of Motion proceedings that are the subject of this judgement) were confined to matters relating to the balcony area at the western end of the uppermost level of her dwelling and to the undercroft level at the rear of the first habitable level of the dwelling (proposed amendments to Schedule 1 of Chami v Lane Cove as set out in the Notice of Motion filed on 6 May). 6. The directions that I gave on that occasion to permit the bringing of any further Notice of Motion which did seek leave to reopen were in the following terms: 1. The applicant is to file and serve any Notice of Motion for leave to reopen by 4:30 PM on Friday 22 May; 2. If direction (1) is complied with, any such Notice of Motion is set down as returnable in court before Senior Commissioner Moore at 3 PM on 27 May; 3. If direction (1) is complied with, the respondent is to advise the applicant by 5 PM on Monday 25 May if the deponent of any affidavit in support of the Notice of Motion to reopen is required for cross-examination; and 4. Notice pursuant to direction (3) is to be provided by email to Mr Ross's email address as noted on the cover sheet of the applicant's affidavit dated 5 May 2015. 1. On 21 May, a further Notice of Motion was filed together with a further affidavit from Ms Chami dated 20 May. That Notice of Motion was set down for hearing before me on 27 May. The relief sought in the Notice of Motion was in the following terms: 1. Leave to reopen the proceedings is granted. 2. Order staying order 1 in Item 1-3 in Schedule 1 works contained in Chami vs Lane Cove Council [2015] NSWLEC 1003 dated 23rd Jan 2015 3. Schedule 1 works contained in Chami vs Lane Cove Council [2015] NSWLEC 1003 dated 23rd Jan 2015 be amended as follows: Item 1- Undercroft south side openings Proposed south side door to undercroft area shall be glass sliding 2400W x 2300H instead of 820W x 2040H solid door. High level opening to remain to provide cross ventilation or suitable window in opening to be provided.Item 2- 2nd floor garden box Garden box to remain as configured permitting balcony width to be 3 m as per DCP, without the placement of soil. Potted plants to be provided as required. Item 3: Lift openings on each level to be provided with stainless steel sliding doors. Any further orders that the court sees fit. 1. At the commencement of the hearing on 27 May, Mr Ross moved on this motion and proposed to read both of Ms Chami's affidavits. 2. Mr Griffiths indicated that, with respect to the 20 May affidavit, he objected to a variety of elements contained in it. His objections were on various grounds that are, in my assessment, unnecessary to canvas given the overall conclusion that I have reached concerning the three elements in the application to reopen. Importantly, discussed at greatest length during the proceedings, were matters pressed by Ms Chami as to the safety or otherwise of undertaking the proposed works to the balcony at the western end of the uppermost level of her dwelling. I will return to this matter further. 3. I also observe that there was a deal of inappropriate and intemperate language used by Mr Ross (as was the case during the earlier, lengthy phase of the proceedings) and I have, for this phase as with the last phase, had no regard to the context or content of such remarks. To some extent, they may be explicable by the close involvement that Mr Ross has had with the wide range of proceedings that have taken place in the past concerning this dwelling or they may arise from the fact that, although leave has been granted for Mr Ross to act as Ms Chami's agent in the proceedings, he is not legally qualified. I consider it appropriate, during this phase of the proceedings, to make appropriate allowance concerning the use of language by him (as I did during the 2014 hearings). 4. I should also observe, in this broad context, that, in his general submissions toward the end of the proceedings on this motion, Mr Griffiths suggested, without notice to me (and I assume, from Mr Ross's reaction, without notice to Mr Ross) that I should revoke Mr Ross's leave to act as Ms Chami's agent. During the hearing, I emphatically rejected that proposal and I here confirm that rejection. 5. Should Mr Griffiths be instructed to seek revocation of Mr Ross's leave to act as Ms Chami's agent, such an outcome should be sought by Notice of Motion supported by what is said to be the proper evidentiary basis for such an outcome (as I indicated, during the course of these proceedings, would be the appropriate course for the Council to pursue if it wished to do so). 6. It was clear during the 2014 proceedings (and reinforced by some of the language used by Mr Ross during the course of the hearing of this application to reopen) that there is a deal of animus inherent in the attitude of Mr Ross (and by reasonable inference, by Ms Chami) to the Council. Whatever the basis for that, real or imagined, is entirely irrelevant in my deliberations on this application (as it was also irrelevant to my consideration of matters arising from the 2014 hearings). 7. Before I turn to the specific matters, I should observe that the general tests of whether leave should be given to reopen, as discussed by the High Court (Autodesk Inc and Another v Dyason and Others [No 2] [1993] HCA 6; (1993) 176 CLR 300), are generally applicable to applications to seek to reopen matters when orders have been made in that would otherwise dispose of some or all issues in dispute between the parties. The position in these proceedings is, to some limited extent, different from that position. This arises because, in my January judgement (Chami v Lane Cove), I made a series of factual findings but, because of the nature of these being building certificate proceedings, had confined myself to setting out those works necessary to be undertaken prior to the dwelling being put in a condition making it appropriate to require the Council to issue such a certificate.