E S Turnbull Pty Ltd v Wollongong City Council [1988] NSWLEC 1

Land and Environment Court of New South Wales

CITATION : E S Turnbull Pty Ltd v Wollongong City Council [1988] NSWLEC 1 APPLICANT E S Turnbull Pty Ltd PARTIES : RESPONDENT Wollongong City Council

FILE NUMBER(S) : 10433; 10434 of 1987 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act Watson v. Watson ((1968) ; Walker v. Walker ((1967); CASES CITED: Collier-Garland v. Northern Transport ((1964); Vasiljev v. Public Trustee ((1974); Carryer v. Kelly ((1969); Gesson v. Rockdale Municipal Council (Land and Environment Court,1987) DATES OF HEARING: DATE OF JUDGMENT: 05/03/1988

APPLICANT Mr. Kerr LEGAL REPRESENTATIVES: Mr. Tomasetti RESPONDENT Mr. Talbot

JUDGMENT:

HIS HONOUR: These are three appeals under section 56A of the Land and Environment Court Act from decisions of an Assessor on 30 November 1987 dismissing development applications to erect a dwelling on each of three parcels of land at Helensburgh.

The applications before the Assessor were from the deemed refusal of the respondent Council. Three days after the appeals were lodged with the Court the Council determined to refuse the applications for the following reasons:-

"l. Objectionable in the circumstances of the case in that the area of the subject land is below the minimum area for the erection of a dwelling-house within a l(b) Rural B zoning under the provisions of Wollongong Local Environmental Plan No. 38.

2. Objectionable in the circumstances of the case in that a dwelling on the subject land may have detrimental affects on the existing environment by reason of:

i potential bushfire;

ii stormwater/effluent run-off into Wilsons Creek;

iii extension of ribbon development; and

iv undesirable access onto Princes Highway.

3. Objectionable in the circumstances of the case contrary to public interest."

The minimum area for the erection of a dwelling house on the subject allotments in the l(b) zone is 10 hectares. The subject lots are 0.9472ha, 0.9750ha and l.497ha respectively and the applications were accompanied by an objection under State Environmental Planning Policy No. l.

The applicants submit that the decision of the Assessor to dismiss the appeals should be set aside on the basis that they were denied natural justice by the refusal of the Assessor to grant them an adjournment. On behalf of the applicants Mr. Kerr submits that his clients were denied procedural fairness by the Assessor in that some nine statements of expert witnesses, together with voluminous appendices, were served by the Council on the Friday before the Monday hearing contrary to the Court's Practice Direction. It appears that some of the documentation was not served until the Monday morning before the hearing was due to commence.

The matter was fixed for hearing by the Registrar on 29 October 1987, for 4 days commencing on 23 November 1987. At the call-over Council's representative handed to the Registrar, and to the applicants' representative, a letter dated 27 October 1987 which set forth the issues as perceived by the Council, and nominated a list of expert evidence proposed to be called and the brief nature of that expertise. The statements served on 20 November 1987 were generally in accordance with the letter.

The relevant Practice Direction issued by the Court is in the following terms:-

"Where expert evidence is to be called in a case, that evidence in written form must be filed with the Court and delivered to the opposing party no later than 14 days prior to the listed hearing date."

When the matter was called for hearing on 23 November 1987 Mr. Tomasetti, appearing for the applicants, made a lengthy application for an adjournment. The specific basis of the application was the late service on the preceding Friday of the 9 statements of expert witnesses proposed to be called by the Council. Mr. Tomasetti also relied on the fact that a number of lengthy appendices, mainly in the nature of reports, had not been provided until earlier in the morning. He had not had time to read them nor obtain instructions. In some instances he did not have a copy.

Essentially Mr. Tomasetti submitted that he had not had the opportunity to properly prepare his client's case because of what had occurred. Mr. Tomasetti further submitted that he would not have the opportunity to object to any irrelevant material or be in a position to meet some of the material. Further, he would be disadvantaged in cross-examination of the witnesses. Other experts, besides Mr. Turnbull, a consultant town planner who made the application on behalf of the owners, may need to be called, including a traffic engineer. In passing it is noted that no report of Mr. Turnbull had been served by the applicants. In summary Mr. Tomasetti maintained that serious prejudice would accrue to his clients if an adjournment was not granted. It is not clear exactly what length of adjournment was sought though Counsel did state, "it is not possible for me to read the information overnight or over the next day or so, let alone Mr. Turnbull...". Mr. Tomasetti submitted that there was no real or substantial prejudic e to the Council if the matter was adjourned. If the application was not granted Mr. Tomasetti asked the Assessor to refer the question to a Judge.

Mr. Talbot, on behalf of the Council, opposed the application. He made, inter alia, the following points:-

* The development applications were supported by detailed submissions by Mr. Turnbull.

* Reasons for refusal were given on 31 August 1987.

* The letter (of 27 October 1987) delineating issues and identifying the areas of expert evidence, was served at the call-over on 29 October 1987.

* The statements served on 20 November 1987 were a direct reflection of the identified issues and sources of evidence referred to in the letter.

* If the matter did not proceed a substantial number of witnesses not within the normal management control of Council would have to be reorganised and inconvenienced. * Since the hearing was set for 4 days the conduct of the proceedings could be managed during the time rather than an adjournment of the proceedings to a different date. Mr. Talbot was happy for a view to be undertaken early in the proceedings if necessary. He also offered to take some of Council's witnesses in chief and agree to postpone cross-examination by Mr. Tomasetti. Further, he would have no objection to Mr. Tomasetti reserving the right to make objections to the admissibility of any documents or oral evidence.

* Council apologised for the failure to comply with the Practice Direction but submitted that in the time span between the fixing of the hearing date and the hearing it was inevitable that the 14 days limit would not be met.

* No report at all had been filed on behalf of the applicants, in particular by Mr. Turnbull.

By way of reply Mr. Tomasetti drew attention to the disparity between the prejudice to be suffered by his clients if an adjournment was not granted and the prejudice to the Council if it was granted. He submitted that the prejudice (to his clients) could never be remedied if the matter proceeded (Transcript p.16.8). Also by way of reply Mr. Tomasetti repeated his request that the matter be referred to a Judge if the application be refused. He also stated that if the application was declined he would not be able to represent his client but would have to withdraw.

The Assessor dealt with the application in the following words:-

"ASSESSOR: I don't intend to grant the application for the adjournment. First of all I would like to say that the practice direction of the court is more honoured than the breach I would think and that in the performance I haven't any statistics to that effect, but it is very, very rare indeed in that with these documents were exchanged 14 days in advance now. The practice direction of course is designed to facilitate the hearing of the proceedings but if it is not available by the parties well then we proceed the best way we can. Now this is a matter, well there is three matters, they are very simple matters each of them as important as they may be--

TOMASETTI: They are not simple Mr. Assessor.

ASSESSOR: Well they are simple matters, though the evidence may not be simple but it is strictly of the building of a house on a block of land and you can't get much simpler than that, now the issues may be a little more complicated though. But the issues as I understand it have been fairly well enunciated and some advanced knowledge has been given as to the type of evidence that is going to be called if not the evidence itself and a chance of it does appear that made a considerable effort of getting that information to you as early as they could. Well the second thing is that you will have the advantage of hearing the council's case. Now while it is your case and the prime responsibility is on the applicant to convince the court as to what proceedings should be reached, council is only in a defending role.

He will have the advantage of hearing all these reports read. He won't assume the reports have been read Mr. Talbot will have to take the witnesses - whether they read the whole report or not he will certainly have to take all the witnesses with the other - have all the advantage of hearing that. My experience with many of these reports is that a lot of it is factual material which is most likely controversial(sic). Now what I would like to do is go right through the council's case, you will have the advantage of cross-examining the witnesses. If you feel there is some aspect of the evidence that you can't cross-examine on that you would like to cross-examine further we might be able to make arrangements for those witnesses to come back another day to enable you to seek instructions or have discussions with other people with a view of perhaps cross-examining the next day. I don't intend to give you leave to go before a duty judge - this is my decision. If I'm wrong in law you have the course to appeal against that decision. I don't give permission for you to withdraw from the case. I can't prevent you from withdrawing if you wish. I don't think that that's something you should do because I don't think that you're disadvantaged. I think you're going to have the benefit of sitting back, the same as me, and listening to what is put before the court, and that's an advantage an appellant doesn't normally get in a court."

Mr. Tomasetti then asked for a view that afternoon so he could return to his chambers to read the documentation. The Assessor declined this application for reasons he gave (see p.19.5 Transcript). Mr. Tomasetti then asked for an adjournment until 2.00 p.m. to approach a Judge. The Assessor declined this application but granted a 5 minute adjournment to enable instructions to be taken. At some stage later, and certainly in excess of 5 minutes, the Court reconvened and Mr. Tomasetti indicated he would approach the Chief Judge to review the Assessor's decision. He asked that the matter be stood down. The following exchange then took place:-

"ASSESSOR: I don't intend to do that, I intend to continue. If you wish to leave to see His Honour perhaps your instructing solicitor can carry on in your absence.

TOMASETTI: Well unfortunately he's not here today but I'll have to do it myself. So if the court is inclined just to proceed then I'll have no alternative but to stand and withdraw and go and see His Honour. And I mean this with the greatest respect Mr. Assessor, I'm not seeking to put the court over any kind of barrel, I'm only following my instructions through, and I would--

ASSESSOR: It's most unusual.

TALBOT: Well Mr. Assessor I think out of respect to my friend and comity, or whatever it is, if my friend is in that situation where he would be seeking to adjourn for a short period in order to see the judge I would have to consent to that course, but only for that purpose, if indeed the court was inclined to grant that application, having heard what I've just said. I don't put anything else other than that to my friend, but having regard to the fact my friend--

ASSESSOR: This is extraordinary. As far as I'm concerned it's in everybody's interest this appeal be continually heard. I can't see there's any prejudice to anybody. As I said before you've got the benefit of hearing the council's case before you even start yours, and that must be an advantage to you."

As a result the Assessor again adjourned for a short time though it appears to have been longer than anticipated by the Assessor (p.21 Transcript). Upon resumption Mr. Tomasetti reported that the Chief Judge had declined to make the order he had sought and added, "...so my instructions therefore are to not withdraw the appeal, but we will be withdrawing our representation from court within the appeal". The Assessor then asked who was going to present the applicants' case and Mr. Tomasetti replied, "Nobody". The Assessor said, "Well you don't have my permission to withdraw. I can't prevent you from walking out the door; I don't intend to try. But you certainly don't have the court's permission to withdraw. It has been listed for 4 days, the applicants were fully aware that it has been listed for 4 days, of its own volition it instructs you not to proceed any further".

Apparently Mr. Tomasetti and his clients then left the Court room and did not return. The Assessor then proceeded to hear the case. He reserved his decision until 30 November 1987 when he delivered written reasons. The written reasons, in addition to dealing with the merits, canvassed in some detail what had occurred in Court on 27 November - see pages 2-8 inclusive of his Judgment. I will not repeat any of the Assessor's Judgment, suffice to say that he summarised the proceedings and indicated that leniency would be granted to Mr. Tomasetti in the conduct of the case and an adjournment could be considered at the end of his case if he needed to call additional evidence not then available ( see pp. 5-6).

Any consideration of the subject appeal must take account of the differing context of Class 1 and 2 proceedings in the Court from more traditional Court proceedings. Firstly, it is the practice of the Court that the respondent (usually a Council) begins and presents its case first rather than the applicants. Secondly, by reason of sections 38 and 29 of the Land and Environment Court Act a different means of procedure and reception of evidence pertains than is usually the case with a Court. Further, in this case the application was heard by a lay Technical Assessor appointed under the Court Act.

Mr. Kerr places reliance on the Practice Direction. Of course, compliance with the Direction may be waived by the Rules and I would respectfully agree with the comments made by the Assessor on observance of the Direction. It should also be emphasised that pursuant to the Direction the statements of experts are not to be filed by one side and then replied to by the other - rather, they are to be exchanged.

The applicants sought to stress the fact that the Assessor refused the application without reading the statements and appendices. It was said that he could not appreciate the prejudice to the applicants if he did not peruse the documents. I do not think this is so. The Assessor had the benefit of extensive descriptions of the documents from Mr. Tomasetti which he appears to have accepted at face value. The documents were never produced to the Assessor by Mr. Tomasetti for his perusal, nor did he invite the Assessor to read them.

Mr. Kerr also submits that the manner in which the Assessor dealt with the application is such that a suspicion would reasonably be engendered in the minds of the public that the Assessor did not bring "a fair and unprejudiced mind" to the application (Gas and Fuel Corporation of Victoria v. Wood Hall & Leonard 1978 VR 85). I can see no substance in this submission. There is no material before the Court to suggest even a glimmer of bias. Certainly, his failure to read the documents when he was not even invited to do so by the applicants' Counsel provides no evidence of any suspicion of bias.

Watson v. Watson ((1968) 70 SR (NSW) 203) makes it clear that an appellate Court ought be very slow to interfere with the discretion to grant or refuse an adjournment. The discretion must of course be exercised judicially and not according to "whim or fancy". According to Holmes J.A. (p.211) the test is - would the refusal of an adjournment prejudice a party to the point that he is denied justice - citing Walker v. Walker ((1967) l WLR 327). In the latter case Sir Jocelyn Simon P. speaks of a refusal of an adjournment resulting in a "serious injustice" to the party seeking it. The other cases referred to in argument by Mr. Kerr - Collier-Garland v. Northern Transport ((1964) 82 WN (Part l) (NSW) 125), Vasiljev v. Public Trustee ((1974) 2 NSWLR 497), Carryer v. Kelly ((1969) 90 WN (Part l) (NSW) 566) and Gesson v. Rockdale Municipal Council (Land and Environment Court, Unreported 18 December 1987), all concern very different factual situations to the present.

I am unable to conclude that the refusal of the adjournment by the Assessor resulted in a serious injustice to the applicants. Indeed, I have difficulty in perceiving any element of injustice in the decision. In my opinion it is apparent that the prejudice to the applicants occurred by reason of their Counsel and consultant withdrawing from the case and leaving the Court. That was a decision taken by them and quite obviously against the wishes of the Assessor. The transcript makes it plain that the Assessor wanted Mr. Tomasetti to stay. However, he and indeed everyone associated with the applicants' case, left the Court before any evidence was presented. By this action the prejudice was thereby created to the applicants' case. In my opinion it was not the refusal to grant the adjournment which caused that prejudice.

Indeed, any prejudice to the applicants in the late service of statements could well have been overcome by sensible case management over the 4 days allocated for the hearing had Mr. Tomasetti continued to take part in the case. In my view the Assessor made it clear to the applicants that the case could be managed in such a way as to overcome the difficulty they believed they had been placed in as a result of the late service. I reject the submission of Mr. Kerr that the Assessor was "vague" in any offer to assist the applicants. I am sure that the position was abundantly clear to Counsel for the applicants. If he had been in any doubt he could have sought clarification. In my opinion the withdrawal of Counsel and the consultant from the case was ill advised, unnecessary and unfortunate.

I conclude that the refusal of the adjournment by the Assessor did not constitute an error of law nor was there any breach of the rules of procedural fairness. Incidentally, the applicants had a further option - to withdraw and discontinue the applications. They chose not to do so but to seek to appeal against the decision. In either event no necessary permanent harm may have been done to their cause because they may still lodge fresh development applications with the Council. The proposed change of zoning mentioned at the hearing before the Assessor has not yet come to fruition so the use is still a permissible one with consent, provided the relevant development standard is relaxed.

The appeal is dismissed with costs and the orders of the Assessor are confirmed.

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