Restifa & Partners Pty Limited v Sutherland Shire Council [2008] NSWLEC 267

Land and Environment Court of New South Wales

CITATION : Restifa & Partners Pty Limited v Sutherland Shire Council [2008] NSWLEC 267

APPLICANT Restifa & Partners Pty Limited PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10696 of 2008

CORAM: Preston CJ

KEY ISSUES: Costs :- failure to comply with Court's directions - necessity to re-list before the Court for further directions - defaulting party to pay costs of re-listing and court attendance

Civil Procedure Act 2005 LEGISLATION CITED: Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005

DATES OF HEARING: 10 September 2008

EX TEMPORE JUDGMENT DATE : 10 September 2008

APPLICANT Mr A Whealy (solicitor) SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly (solicitor) SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

10 SEPTEMBER 2008

10696 OF 2008

RESTIFA & PARTNERS PTY LIMITED V SUTHERLAND SHIRE COUNCIL

JUDGMENT

1 HIS HONOUR: The matter has been listed before me today on the applicant's motion because of a non-compliance by the Council with the Court's directions. The Court has now made appropriate directions to enlarge the time by which the Council is to comply with one of the directions so as still to be able to maintain the case management on 19 September 2008. Application for costs 2 The applicant applies for costs of the application today. In essence, the applicant's argument is that it was necessary to re-list the matter to obtain directions from the Court in order to maintain the date that had been scheduled for case management. The Court's prior directions had required each of the applicant and the Council to exchange certain information, including suggested amendments and conditions to address the Council's contentions, by 4 September 2008 in preparation for the case management scheduled on 19 September 2008. 3 The applicant had provided its material to the Council, by at least 5 September 2008. The applicant's solicitors contacted by email the Council's solicitors on 5 September 2008, the day after the date by which the Council was required to provide the information, namely, 4 September 2008, inquiring about the Council's information which had not been received by the applicant. The applicant's solicitors advised that if the Council did not provide the information by the following Monday, 8 September 2008, they would apply to re-list the matter before the Court for further directions. This is the course that the applicant ultimately took. 4 The Council and its solicitors failed to provide any information in accordance with the Court's directions by 4 September 2008 or, indeed, to date. Furthermore, the Council and its solicitors failed to respond to the applicant's inquiry as to when the information would be received, so as to avoid the re-listing of the matter before the Court. 5 The Court's directions were designed to ensure the proper and orderly preparation of the matter for hearing. The matter is a complicated one with many issues. A case management will be beneficial in scoping the issues and identifying the nature and extent of evidence. However, in order for that case management to be productive, there needs to be an exchange of information, including suggested amendments and conditions, between the applicant and the Council. To achieve this goal, the Court made directions on the last occasion for the exchange of information (directions 1 and 2) and listing for case management (direction 3). A failure of a party to comply with the directions will mean that the case management will not be as productive as it was intended to be, thereby hindering the proper and orderly preparation of the case for hearing. 6 It is quite clear from the Civil Procedure Act 2005, Uniform Civil Procedure Rules 2005 and the Land and Environment Court Rules 2007, as well as the Court's Practice Note Class 1 - Development Appeals, that there is a duty on parties to comply fully with the Court's directions and, furthermore, there is an obligation on the lawyers for parties not to do anything which would put parties in breach of their duty. This duty meant that each of the parties should have complied with the Court's directions 1 and 2 to provide their respective information, suggested amendments and suggested conditions, by the directed date. 7 The Council's solicitor acknowledges that the Council did not comply with the Court's direction 2. The Council's solicitor did forward a document to the applicant's solicitor. This document was an internal Council memorandum dated 14 July 2008 addressing issues concerning de-watering of the brick pits and the ornamental pond. However, it was a document that was already in existence before the Court made its directions. There was no consideration by the Council as to the matters that could be done by the applicant to address the contentions of the Council in relation to these issues, nor were there any suggested conditions which would address that issue. Furthermore, there was no other topic that was addressed by the Council. The document does not purport to be a response to the Court's direction 2. 8 The Council's solicitor has informed the Court that the reason for non-compliance by the Council is human resources issues at the Council. Persons who would have provided information or done the work required to comply with direction 2 were on leave or performing other duties. Accordingly, the Council's solicitor was not in a position to provide the information as the Court had directed because the solicitor in turn had not received anything from the Council due to these human resources problems. 9 I understand that from time to time parties do encounter difficulties in complying with the Court's directions. Nevertheless, there is an obligation, first, to organise their affairs in such a way that priority is given to the Court's directions but, if that is not possible, then to advise the other party of the difficulty and seek to come to an accommodation whereby the time period for compliance with the direction can be enlarged and still, hopefully, achieve the next attendance before the Court that had been directed. If no accommodation can be reached, then the matter ought to be re-listed before the Court so that appropriate directions can be made. 10 In this case, the Council and its solicitor took no steps to contact the applicant to see whether an accommodation could be reached to extend the time by which the Council could comply with the Court's directions, or to re-list the matter before the Court for the purpose of adjusting the directions. These failures involve a breach of the Council's duty and of the Council's solicitor's duty. 11 In circumstances where the Council has failed to comply with the Court's direction to supply information, where such direction was critical in order for the scheduled case management to have utility, and where the Council took no steps to advise the applicant of when it would be in a position to comply with the Court's direction or even whether it would comply with the Court's direction, the applicant was left with no choice but to re-list the matter before the Court, as it did, to seek further directions. 12 At the re-listing before me today the Council's solicitor has explained the situation which led to the Council's non-compliance and the Council has offered to provide the information directed if the time period for compliance were to be enlarged to 16 September 2008. This date was selected in order to ensure that the case management listed for 19 September 2008 could proceed as directed. Whilst it is commendable that this has occurred, such an offer should have been made last Friday, 5 September 2008, when the applicant communicated with the Council requesting advice from the Council as to when it would comply. If the offer was not made then it should certainly have been made by the following Monday, 8 September 2008. If that had been done, then this directions hearing would have been avoided and the parties would not have incurred the cost of attending. 13 In the circumstances, I am satisfied that it is fair and reasonable that the respondent pay the applicant's costs of re-listing the matter before the Court today and of the directions hearing before me today. Order 14 Accordingly, I order that the respondent pay the applicant's costs of the re-listing of the matter before the Court today and of the appearances today. Directions 15 In proceedings 10696 of 2008, Restifa & Partners Pty Limited v Sutherland Shire Council, I make the following directions:

(1) Order 2 made on 21 August 2008 is varied to enlarge the time to 16 September 2008.

(2) Order 3 is vacated and instead the following directions are made: (a) by 16 September 2008, the respondent is to provide to the applicant an indication of their response to the applicant's bundle and schedule filed on 5 September 2008; and (b) by 18 September 2008, the applicant is to provide to the respondent an indication of their response to the suggestions of the respondent provided to them by 16 September 2008, pursuant to order 2 of 21 August 2008 as varied.

(3) The date for the case management on 19 September 2008 at 10.00 am is maintained. **********

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