Land and Environment Court New South Wales

• Medium Neutral Citation: Der & Anor v King [2011] NSWLEC 23
• Hearing dates: 14 February 2011
• Decision date: 14 February 2011
• Before: Sheahan J

Decision

1. The time for appeal is extended to close of business 29 October 2010.

2. The appeal against the Commissioner's decision is dismissed.

3. The appellants are ordered to pay the respondent's costs of the application for extension and the appeal on a party/party basis, as agreed or assessed.

• Catchwords: APPEAL: No grounds particularised - lodged out of time - extension of time - no error of law found
• Legislation Cited: Land and Environment Court Act 1979
• Cases Cited: King v Der & Anor [2010] NSWLEC 1249; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; McGovern & Anor v Ku-ring-gai Council & Anor [2008] NSWCA 209; Sky Design & Concepts Pty Ltd v Pittwater Council [2008] NSWLEC 313
• Category: Consequential orders
• Parties: Jozef Der and Robert Der (Applicants); Frank King (Respondent)
• Representation: Counsel: Jozef Der in person (Applicant); Solicitors: Litigants in person (Applicant); Booth Brown Samuels & Olney (Respondent)
• File Number(s): 80005 of 2010

EXTEMPORE JUDGMENT

1 His Honour : Jozef and Robert Der (father and son respectively) seek to appeal, under s 56A of the Land and Environment Court Act 1979, against a decision given by Dixon C in class 8 of the court's jurisdiction, in favour of Frank King in the matter of King v Der (Matter No.80003 of 2010) on 24 September 2010 - [2010] NSWLEC 1249.

2 Various findings and orders were made by the learned Commissioner in favour of Mr King against both defendants, including orders as to monetary compensation and costs (see pars [110]-[114]).

3 A document in the form of a summons, dated 25 October 2010, was filed in this court on 29 October 2010, more than 28 days after delivery of the judgment and the making of orders. It is completed in quite informal language, but, in my discretion, I accept it as (1) a Notice of Appeal challenging the " whole decision " of the Commissioner, and (2) an application seeking leave to appeal out of time.

4 The appellants have explained that they cannot afford legal representation, but sought assistance at Lightning Ridge Local Court before posting the document to this court on 25 October 2010, the postmarked envelope having been retained in the court file, already more than 28 days after Dixon C's judgment.

5 In the section of the document headed " appeal grounds " the document says only " Appealing judgment of fines - amount in total ". The use of the word " fines " is clearly inappropriate.

6 Mr King retained a solicitor, Mr Nick Wilson, who participated in directions hearings held by telephone on 22 November and 13 December 2010, and filed a Notice of Appearance on 23 November 2010. A barrister, Mr R Chia, has appeared for Mr King today, but the Ders remain self-represented, despite being advised frequently, both by Mr Wilson and officers of the court, that they should seek legal advice and representation.

7 At the directions hearing on 22 November 2010, Mr Wilson expressed concern that the Ders had not raised any question of the Commissioner's having made any error of law, as required by the appeal provisions. At the directions hearing on 13 December 2010, the hearing of the appeal was fixed for today, face-to-face here in Sydney, at 10am, and directions were given for the filing and service of documents - the appellants were to file and serve their affidavit and bundle of documents by 4 February 2011, and the respondent to file and serve any affidavit evidence by 10 February 2011. The parties were granted liberty to restore to the directions list on 48 hours notice. These directions were confirmed by the Registrar in a letter to Robert Der dated 13 December 2010.

8 Apart from the originating summons, only a document entitled " affidavit ", and dated 12 January 2011, appears to have been filed by the appellants. It appears to be signed by Robert Der, has no text, and is accompanied by:

(1) a copy of an affidavit he swore on 8 July 2010, apparently in the original proceedings, concerning factual issues argued before the Commissioner, and

(2) a letter to him from the Mining Registrar dated 27 September 2010 concerning possible cancellation of the relevant mineral claim (30592), on the basis of pars [67] and [68] of the Commissioner's judgment, which note an admission made by the Ders in those proceedings.

9 Also in the appeal file is a letter dated 10 January 2011 from Jozef Der indicating that he would require a Serbian interpreter for today's hearing. On 12 January 2011 he was given advice in this respect, and the court is grateful for the valuable assistance provided by NATA accredited interpreter, Ms Mira Joksovik to Jozef Der as the advocate for both himself and his son today.

10 Mr Wilson wrote to the court on 10 February 2011 complaining, inter alia:

(1) that, despite the matter being adjourned from 22 November to 13 December 2010 to enable the Ders to obtain legal advice, and/or representation, they remain self-represented,

(2) that their summons identifies no questions of law as grounds for their appeal, and that lengthy conversations with one of the Ders (apparently Robert) on 20 and 31 January 2011 have not resulted in the appellants obtaining representation or filing any grounds of appeal, and

(3) that he had written to the Ders on 24 November 2010, inviting them to withdraw the appeal, or be held responsible for Mr King's costs of it.

11 Mr Wilson's letter advises that he had received on 20 January 2011 what he called "the Plaintiff's Appeal bundle ", which did not include any affidavit or exhibit material required for the appeal, nor any transcript. No appeal " bundle " at all has reached the court, but the court does have on file today a full transcript of the hearing at first instance.

12 Mr Jozef Der today explained that the lateness of the commencement of the appeal (i.e. 3-7 days late) resulted from:

(1) communications problems between himself and Robert caused by Robert's diagnosed mental illness and his medication, and Jozef's limited understanding of English,

(2) their necessary preoccupation with the threat of cancellation of the mineral claim, and

(3) unavailability of affordable and practical legal assistance in such a remote location as Lightning Ridge.

13 Mr Chia submits that the lack of particularising any grounds of appeal, despite frequent entreaties to do so, and the appellants' lack of compliance with directions, would be sufficient to satisfy the court that the appeal proceedings lack merit, and that the court's discretion to extend the time for appeal should not be exercised in the Ders' favour. He also points out that no evidence has been produced to substantiate the Ders' claims in respect of their impecuniosity or Robert's having disabling health problems.

14 The court can clearly see the difficulties experienced by self-represented appellants of allegedly modest means seeking to overturn a decision they cannot bring themselves to accept, and I grant leave to appeal out of time.

15 I turn, therefore, to the arguments mounted against the Commissioner's decision. Such arguments as were advanced from the bar table today by the Ders suffer from various fairly obvious shortcomings. Nonetheless, I have tried to afford both the Ders every opportunity to put their case.

16 Firstly, there is no appropriate bundle of documents. Jozef Der says that he and Robert could not afford to pay for the transcript of the first instance hearing until this morning, and so no references are provided to points in the hearing, or in the judgment where the Commissioner has fallen into error.

17 Secondly, Jozef Der pleads that he is merely trying to assist his son, who cannot now confirm to him what the court record and Mr Wilson both indicate occurred in various communications regarding the conduct of this appeal.

18 The fact remains, however, that the court allowed two months for the appeal to be properly prepared for hearing, and Mr Der Senior has to accept the circumstances under which he is left to argue the case.

19 Effectively, he wants to have Mr King's proceedings heard again. He says today that the encroachment on mining lands was by King against Der, rather than the other way around, which I note is contrary to an admission made in the proceedings, and he further says that any compensation orders should also be the other way around. He says also that the orders are unfair because he and his family do not have the resources to meet them, and that he and Robert have been subjected to inappropriate surveillance of their mining activities.

20 All that was put to me this morning was that the Ders believe that the Commissioner:

(1) accepted false evidence from various witnesses,

(2) accepted measurements prepared without relevant expertise, and

(3) appeared inappropriately interested in Mr King's opals.

21 Despite being asked to identify which of Mr King's witnesses Mr Der asserts lied to the court, he failed to do so. (I note that six witnesses gave oral evidence to the Commissioner). This challenge has not been made out. On the question of the measurements, all he would say before me was that their source was " a shopkeeper ", but I note from Dixon C's judgment that a dispute about official measurements was clearly ventilated before her. This challenge has also not been made out. Neither challenge, if made good, would establish an error of law.

22 On the question of inappropriate behaviour on the part of Mr King and/or the Commissioner, Mr Der asserts conversations both during and outside the hearing, concerning opals, and Mr King emphatically refutes the allegations that any impropriety was involved.

23 The court has now examined the transcript. Clearly Mr King had an opal at court (Tp13, L40); he tendered some photographs of opals ( Exhibit H , Tp24, LL15-20); and he later tendered an opal, without objection from the appellants, for inspection by the Commissioner, who expressed her admiration of it, ( Exhibit P , Tp157). (The Exhibit P retained in the court file is two photographs of a beautiful opal, so clearly if an actual opal was before the court it was handed back).

24 Had the appellants any concern about any conduct, outside the formal hearing, which induced some apprehension of bias in advance of the judgment, that apprehension should have been formally raised, by relisting the case, so that the issue could be dealt with. It should not be simply a " throw-away " argument raised in the very last moments of an appeal hearing. See discussion in, for example, my judgment in Sky Design & Concepts Pty Ltd v Pittwater Council [2008] NSWLEC 313, in which case the allegation/apprehension was not raised until the substantive reserved decision was challenged in a s 56A appeal, as here. See also McGovern & Anor v Ku-ring-gai Council & Anor [2008] NSWCA 209 at [108]ff.

25 Recusal from a case can occur at any time up to the actual delivery of final judgment, but the " taint " attaching to any decision must be " firmly established " by the party complaining (see Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 549 per Kirby J in [135]).

26 I find no substance in this attack on the Commissioner and her decision in this case. I need only add that Mr King sought damages of $76,149 plus interest and costs, and was awarded only $14,120 inclusive of interest, plus legal costs (subject to strict quantification).

27 As all three grounds of appeal raised at today's hearing have failed, the court makes the following orders:

1. The time for appeal is extended to close of business 29 October 2010.

2. The appeal against the Commissioner's decision is dismissed.

3. The appellants are ordered to pay the respondent's costs of the application for extension and the appeal on a party/party basis, as agreed or assessed.

28 I will publish these reasons later today and forward a copy by mail to the Ders.

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Decision last updated: 01 March 2011