Carlene Randall v City of Canada Bay Council (No 3)

[2015] NSWSC 1397

Supreme Court

New South Wales

Medium Neutral Citation:	Carlene Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397
Hearing dates:	21 September 2015
Date of orders:	21 September 2015
Decision date:	21 September 2015
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Notice of motion dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – Application to reopen hearing to rely on further submissions which summarise existing submissions and evidence – No issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Levenstrath Community Association Inc v Council of the Shire of Nymboida [1999] NSWSC 989 Phoenix Commercial Enterprises Pty Ltd v The City of Canada Bay Council [2009] NSWSC 17 Phoenix Commercial Enterprises Pty Ltd v The City of Canada Bay Council [2010] NSWCA 64
Category:	Procedural and other rulings
Parties:	Carlene Randall (Plaintiff) City of Canada Bay Council (Defendant)
Representation:	Counsel: F. Agresta (by leave on behalf of the Plaintiff) P.T. Newton (Defendant)   Solicitors: Mills Oakley Lawyers (Defendant)
File Number(s):	2013/5606
Publication restriction:	No

EX TEMPORE Judgment

1. HIS HONOUR: By notice of motion filed on 14 September 2015 the plaintiff, Ms Carlene Randall, seeks leave to reopen her case to file additional submissions which comprise seven and a half pages of close typed text and seven and a half pages of footnotes ("Additional Submissions"). Ms Randall has been represented this morning, as she has been on all earlier occasions before me (with one minor exception) by her husband, Mr Ferdinando Agresta. He has done so with the leave of the Court.

2. The defendant, the City of Canada Bay Council (the “Council”), for whom Mr P.T. Newton of Counsel appeared (as he has on all earlier occasions), opposes the notice of motion.

3. This motion is another step in a long running dispute between Ms Randall and Mr Agresta on the one part and the Council on the other. It has its origins in litigation in this Court between their company Phoenix Commercial Enterprises Pty Limited and the Council. That litigation resulted in a judgment of White J, Phoenix Commercial Enterprises Pty Ltd v The City of Canada Bay Council [2009] NSWSC 17 and some judgments of the Court of Appeal, primarily Phoenix Commercial Enterprises Pty Ltd v The City of Canada Bay Council [2010] NSWCA 64.

4. In these proceedings Ms Randall seeks to have the orders that were made against Phoenix in the proceedings to which I have just referred set aside. She relies upon the Court's jurisdiction in UCPR Pt 36 r 36.15(1):

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

5. These proceedings were heard on 5 and 6 May, 18 July and 28 November 2014. On that last day I reserved judgment. However, as a result of further applications by Mr Agresta and with the consent of the Council, further submissions were filed culminating in what were described as the "Plaintiff's Written Submissions in Reply" dated 6 March 2015. At least as far as the Court was concerned, and it seems both parties, as at that date the hearing of the proceedings was at an end, everyone had said everything that they wanted to say and all that remained was for the Court to deliver its reasons.

6. Ms Randall's present motion came, with no disrespect intended, somewhat "out of the blue". Mr Agresta has informed the Court that the Additional Submissions do not contain any new submissions but, as he puts it, for the assistance of the Court he has prepared a synopsis of Ms Randall's arguments and evidence on what he has submitted is one of the critical issues for determination by the Court.

7. I have, in the course of preparing the Court’s final reasons, been reviewing the parties' submissions that have been filed to date. Mr Agresta's description of the Additional Submissions is correct. They contain nothing new but purport to synthesise many pages of submissions (I have received in excess of 160 pages from him already) with cross-references to evidence and authorities.

8. Mr Agresta has informed me that his sole motivation, mindful of Ms Randall's obligations under s 56 of the Civil Procedure Act 2005 (NSW) (the “CPA”), is to provide further assistance to the Court

9. Mr Newton for the Council opposes the Court receiving the Additional Submissions for two reasons. First, he says that the case is over and that nothing new has happened that would warrant the Court receiving them. Second, he submits that it would involve the Council in additional and unnecessary expense in having to consider the Additional Submissions, review their correctness and then prepare such documents as the Council may be advised in response. There is evidence from the Council's solicitor on this application that his estimate of the costs to the Council of dealing with the Additional Submissions in the way in which I have just referred will exceed $8,000 on a solicitor/client basis.

10. There is force in Mr Newton's submissions. While Mr Agresta may have the best of intentions in preparing the Additional Submissions, they are detailed and contain sixty two footnotes cross-referencing the evidence, transcripts and legal authorities. It is not to the point that all of that material is already before me. If leave is granted to allow the Additional Submissions to be relied upon, the Council will have to go through this document in detail.

11. Furthermore, as Mr Newton has pointed out, the Additional Submissions (as one might expect and intending no criticism) are one sided. They represent Ms Randall's view of things. The Council would not only have to satisfy itself as to the correctness of everything in the Additional Submissions, but it would need, in fairness, to be given the opportunity to prepare its own equivalent document so that the Court had the benefit of a similar synopsis summarising Council’s position. The Court has no difficulty in appreciating, given the amount of material relied on by Mr Agresta, that would be no small task. The estimate of at least $8,000 in solicitor/client costs seems to me to be entirely reasonable.

12. Any decision in relation to Ms Randall’s motion is primarily governed by s 56 of the CPA, which requires the Court to exercise its discretions under the rules with a view to achieving the overriding purpose of those rules: the just, quick and cheap resolution of the issues really in dispute between the parties. It is that principle which I bear firmly in mind in dismissing Ms Randall’s motion for the following reasons.

13. Nothing new has happened since the Court reserved its decision and when the Additional Submissions were received. Even allowing for the fact that the Additional Submissions contain nothing new, they nevertheless represent a reorganisation and synthesis of a great deal of material which the Court already has before it and which is already the subject of extensive written submissions from both sides.

14. While the Court is conscious of Mr Agresta's concern that, as a person without legal training, he may not have put everything as eloquently as he would have wished in Ms Randall's interests, the fact remains that over four days of hearing and a great many pages of written submissions, Ms Randall has had an extensive opportunity to have put on her behalf everything that she might wish to say. There has been a full and detailed engagement by the Council with all of the factual and legal propositions which Mr Agresta has sought to deploy in Ms Randall's interests.

15. Finality of litigation (both as to argument and result) is an important principle. The hearing of these proceedings was concluded. Other than referring to an understandable but perhaps unnecessarily self-effacing admission of the occasional lack of eloquence, Mr Agresta does not suggest today that there is something that he would have wished to put in Ms Randall's interests, in a substantive sense, that has not been put. He has found one additional authority (Levenstrath Community Association Inc v Council of the Shire of Nymboida [1999] NSWSC 989) which I will receive on the basis that it has been provided without further comment.

16. Taking into account:

1. the importance of the finality of litigation;

2. the lack of any suggestion that any new point needs to be made on behalf of Ms Randall;

3. the full engagement between the parties in extensive written submissions that has already taken place; and

4. the additional costs to which the Council will be put in circumstances where Mr Agresta concedes from the bar table that both he and Ms Randall are impecunious,

the Court concludes that it would be inimical to the just, quick and cheap resolution of these proceedings to accede to Ms Randall’s notice of motion.

17. Mr Newton applies for his client's costs of the motion. Mr Agresta submits that the costs of the motion should be costs in the cause. The Court does not accept Mr Agresta's submission. This has been a discrete issue in the proceedings and the usual rule that costs follow the event should apply.

18. The orders of the Court are:

1. Dismiss the plaintiff's notice of motion filed 14 September 2015.

2. The plaintiff pay the defendant's costs of and incidental to the motion.

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Decision last updated: 23 September 2015