Alexander v City of Marion (No 2) - [2017] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ALEXANDER & ANOR v CITY OF MARION & ORS (No 2)
[2017] SASC 140
Judgment of Judge Dart a Master of the Supreme Court
27 September 2017
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - GENERAL PRINCIPLES
Judgment delivered in 2010 refusing the plaintiffs permission to proceed with an application for judicial review - no appeal from decision - plaintiffs thereafter discontinued the proceedings - application pursuant to Supreme Court Civil Rule 242 to set aside the 2010 decision and reopen the proceedings - no proper basis to set aside 2010 decision.
Held:
1. Application to set aside 2010 decision dismissed.
Supreme Court Civil Rules 2006 Rules 200, 232, 242, referred to.
Alexander & Anor v City of Marion & Ors [2010] SASC 86; Anders & Anor v NACS Nominees Pty Ltd [2013] SASC 152; Copping & Ors v ANZ McCaughan Ltd & Ors 67 SASR 525; Leppa v Australian and New Zealand Banking Group Ltd [2012] SASC 81, considered.

ALEXANDER & ANOR v CITY OF MARION & ORS (No 2)
[2017] SASC 140
JUDGE DART:

This is an application by the plaintiffs made pursuant to Supreme Court Civil Rule 242 to set aside a judgment of the Court given in 2010. The plaintiffs wish to re-agitate the issues originally raised in the proceedings.
The first defendant says the application is without merit. It says that the Court should summarily dismiss the application. In my opinion, for the reasons that follow, that is the appropriate course to adopt.
Background
The plaintiffs are the registered proprietors of a residence at Trumara Road, Marino. Their property affords them significant views along the coast. Across the road from the plaintiffs’ residence there were at the material time a number of vacant allotments. This particular proceeding relates to a decision of the first defendant, the City of Marion, to grant development approval to the second defendant to build a residential property on one of the vacant allotments.
The plaintiffs sought an order in the nature of certiorari quashing the development approval, as well as declarations as to the validity of the approval. They also sought injunctive relief to prevent the second defendant relying on the development approval and to prevent the construction of the proposed residence. The proceedings were in the nature of judicial review.
On 1 April 2010 Bleby J delivered judgment in the matter.[1] His Honour refused permission for the plaintiffs to proceed with the action for judicial review.    Such permission was required at the time.[2]
[1]    Alexander & Anor v City of Marion & Ors [2010] SASC 86.
[2]    Supreme Court Civil Rules 2006, Rule 200.
The plaintiffs did not appeal the decision of Bleby J. Subsequently, they discontinued the proceedings. The plaintiffs were legally represented before Bleby J and at the time the matter was discontinued.
The application
Since these proceedings were dealt with in 2010 there have been a number of other applications for development approval on vacant land across from the plaintiffs’ residence. That seems to have spurred the plaintiffs to take action in this matter.
The basis of the application is set out in an affidavit of the first plaintiff, which provides as follows:[3]
3.There have been circumstances since that review was denied that have shown that my representation did not provide adequate representation and that the grounds for review being denied did not consider the facts of the information provided and this failure to find the facts has denied the ability to show that an entirely different outcome was appropriate and reasonable in the circumstances.
[3] Affidavit of Geoffrey Alexander sworn 16 November 2016, FDN10.
In essence, the plaintiffs are dissatisfied with the outcome before Bleby J. The dissatisfaction relates to the fact that the first defendant is continuing to approve the construction of properties on the vacant land across from the plaintiffs’ property and their views are being diminished.
The application is made pursuant to Rule 242, which provides as follows:
242—Power to correct, vary or set aside judgment
(1)The Court may correct an error in a judgment at any time.
(2)If satisfied that the justice of a case so requires, the Court may—
(a)vary a judgment; or
(b)set aside a judgment and reopen an action.
(3)The Court may act under this rule on its own initiative or on application by a party.
(4)If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.
On this application we are dealing with sub-rule (2). The Rule clearly anticipates there will be circumstances where, in the interests of justice, it is appropriate to set aside a judgment and re-open an action. It has been held that the Rule permits the Court to set aside a regularly obtained judgment, as well as an irregularly obtained judgment.[4] The Rule provides the Court with a wide discretion. The jurisdiction is to be exercised cautiously, having regard to the importance of the public interest in the finality of litigation.[5]
[4] Leppa v Australian and New Zealand Banking Group Ltd [2012] SASC 81 at [23].
[5] Copping & Ors v ANZ McCaughan Ltd & Ors (1997) 67 SASR 525 at 569.
Whilst the circumstances in which this Rule may have application cannot be completely defined, there are some matters which will generally inform the operation of the Rule. The first is that the Rule is not intended to be an alternative to an appeal. The decision of Bleby J could have been appealed. There is no proper explanation for the failure to do so.
Secondly, it is difficult to imagine circumstances, in a contested matter, where it would be appropriate to set aside a judgment unless there was a strong factor pointing to some unfairness in the original procedure which, in the interests of justice, required correction. There is no such fact or circumstance in the material put forward by the plaintiffs. The plaintiffs simply wish to re-agitate the matter in an endeavour to obtain a different result.
The plaintiffs claim that they were not adequately represented in the original hearing and, if they had been, other material would have been considered by the Court and a different outcome would have followed. The public interest in the finality of litigation strongly mitigates against the re-run of a hearing in the hope of obtaining a different outcome.
The first defendant seeks summary dismissal of the interlocutory application. In doing so, it relies on Rule 232, which provides as follows:
232—Summary judgment
(1)The Court may, on application by a party, give summary judgment for that party.
(2)Summary judgment may only be given if the Court is satisfied that—
(a)if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or
(b)if the applicant is a defendant—there is no reasonable basis for the claim against the applicant.
The first defendant says there is no reasonable basis for the application to set aside the judgment of Bleby J.
There is one further background matter which is relevant to this application. In 2015 the plaintiffs in these proceedings, together with other family members, commenced an action in the District Court against the City of Marion. The proceedings alleged that it was negligent and acted in breach of statutory duty in granting the subject development approval. The plaintiffs claim damages for loss of personal amenity and loss of the capital value of their property.
Those proceedings were summarily dismissed by a Master on 14 June 2016. That decision has been appealed. The decision on the appeal has not yet been delivered. The District Court proceedings are an attack on the first defendant in respect of its granting of development approval, which the plaintiffs say was negligent, a misfeasance of public office and a breach of statutory duty. The District Court proceedings traverse many of the same issues that the plaintiffs wish to agitate in these proceedings. It appears that it was the dismissal of the proceeding in the District Court led to the issue of the subject application. To attempt to litigate matters involving the same substratum of fact and the same parties in two courts is clearly an abuse of process.[6]
[6] Anders & Anor v NACS Nominees Pty Ltd [2013] SASC 152.
The material relied upon by the plaintiffs to support the application discloses no reasonable basis to support an order pursuant to Rule 242. The application is dismissed. I will hear the parties further on any consequential matters.