Carlene Randall v City of Canada Bay Council (No 6)

Case •

[2016] NSWSC 36

•

08 February 2016

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Carlene Randall v City of Canada Bay Council (No 6) [2016] NSWSC 36
Hearing dates:5 February 2016
Date of orders: 08 February 2016
Decision date: 08 February 2016
Jurisdiction:Equity
Before: Kunc J
Decision:

Notice of Motion dismissed

Catchwords: JUDGMENTS AND ORDERS – Nature of misapprehension of facts or law sufficient to warrant setting aside judgment – UCPR Pt 36; r 36.16(1), (3A)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Constitution Act 1902 (NSW)
Conveyancing Act 1919 (NSW)
Interpretation Act 1987 (NSW)
Local Government Act 1993 (NSW)
Cases Cited: Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Balog v Independent Commissioner Against Corruption [1990] HCA 28; (1990) 169 CLR 625
Carlene Randall v City of Canada Bay Council [No 4] [2015] NSWSC 1759
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Cooper v Commissioner for Income Tax (Qld) [1907] HCA 27; (1907) 4 CLR 1304
Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
New South Wales v Commonwealth of Australia (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1
Rail Signalling Services Pty Ltd v Victoria Rail Track [2012] VSC 452
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category:Procedural and other rulings
Parties: Carlene Randall (Plaintiff)
City of Canada Bay Council (Defendant)
Representation:

F. Agresta (by leave for the Plaintiff)

 

Counsel: P.T. Newton (Defendant)

  Solicitors:
Mills Oakley Lawyers (Defendant)
File Number(s):2013/5606
Publication restriction:No

Judgment

Summary

  1. On 25 November 2015 the Court published its principal judgment in these proceedings (Carlene Randall v City of Canada Bay Council [No 4] [2015] NSWSC 1759) (the “Principal Judgment”). These reasons should be read in conjunction with the Principal Judgment. Defined terms in that judgment have the same meaning in these reasons.

  2. These reasons concern a notice of motion that was then filed by Ms Randall under UCPR Pt 36 r 36.16(3A) (“Ms Randall’s application”) to set aside or vary both the Principal Judgment and the orders made pursuant to it which dismissed Ms Randall’s claim and ordered her to pay the Council’s costs. The Court has determined to dismiss with costs Ms Randall’s application in the exercise of its discretion because, save as to one matter, the application constitutes an attempt to re-argue a number of the Court’s conclusions in the Principal Judgment and, insofar as the application raises a new argument, because that argument is both new and wrong. Ms Randall’s correct recourse is not this application but to appeal from the Principal Judgment.

Procedural history

  1. The appearances on the hearing of Ms Randall’s application were the same as they have been for some time in these proceedings. Mr F. Agresta appeared by leave (which was not opposed) for his wife, Ms Randall. Mr P.T. Newton of Counsel appeared for the Council.

  2. Immediately upon the Court publishing the Principal Judgment, and before he had read any part of it, Mr Agresta said that he expected to receive instructions from Ms Randall to bring an application under r 36.16(3A). The proceedings were adjourned to give Ms Randall time to consider her position.

  3. On 3 December 2015 the Court made orders which included:

1.   The Amended Statement of Claim is dismissed.

2.   The plaintiff pay the defendant’s costs of the proceedings.

3.   Stay orders 1 and 2 up to and including 5 February 2016.

4.   Extend the time within which any notice of appeal in relation to the Court’s judgment delivered on 25 November 2015 (the “Judgment”) and orders 1 and 2 above to 4 March 2016 or such later date as the Court or the Court of Appeal may order.

5. Any motion by the plaintiff under UCPR Part 36, r 36.16 in relation to the Judgment is to be filed in the Supreme Court Registry and served on or before 17 December 2015, the requirement for an affidavit to be filed at that time being dispensed with.

6.   On or before 22 January 2016 the plaintiff is to file and serve:

(a)   An affidavit in support of the motion referred to in order 5 above;

(b)   A schedule (which can be attached to the affidavit or be a separate document) identifying with precision each alleged misapprehension of fact or law in the Judgment sought to be relied upon and stating in relation to each:

(i)   by paragraph reference where in the Judgment it is to be found;

(ii)   what the plaintiff submits the correct position is;

(iii)   what difference the plaintiff submits the allegedly correct position would make to the outcome of the proceedings.

(c)   Full written submissions.

7.   The motion referred to in Order 5 is to be returnable before Kunc J at 9.30am on 5 February 2016.

…

  1. In making those orders I indicated to the Council that, in my view, to give effect to the overriding purpose under s 56 of the Civil Procedure Act 2005 (NSW) (the “CPA”), the Court did not expect the Council to incur any costs in relation to Ms Randall’s application until the matter came back before the Court on 5 February 2016. This was because Mr Agresta is bankrupt and, as he had informed the Court many times from the Bar table, Ms Randall is impecunious. The Council is already the beneficiary of a costs order against Ms Randall for what the Court infers are very substantial costs arising from the conduct of the hearing over several days across many months with substantial written submissions. I was concerned to ensure that the Council did not incur further, probably irrecoverable costs unnecessarily if the material filed by Ms Randall pursuant to the Court’s directions did not disclose an argument which raised issues sufficient to warrant a full contest. My intention was that if there was any matter raised by Ms Randall which did raise the need for a contest, then directions would be made for submissions from the Council. If not, I foreshadowed that I may well deal with her motion when it was returned on 5 February 2016. The latter is what occurred.

  2. Ms Randall complied with the directions which the Court had made.

  3. On 17 December 2015 (within the 14 days limited by r 36.16(3A)) Ms Randall filed a notice of motion for orders including:

1.   An order that apparently this court proceeded according to some misapprehension of:

(1)   relevant law, or

(2) the facts before it whether by the failure of this Court to consider some of Ms Randall’s pleadings of Ms Randall’s pleadings as particularised by the More and Better Particulars or correctness of some of Ms Randall’s submissions or matter regarding paragraph [3], [4], [7(2) to [7(5)], [9], [15], [28], [31], [39], [40], [43], [61] to [63], [65], [67], [68], [90], [94], [101] to [112], [121], [133] to [137], [144], [157] to [169], [171] to [174], [176] to [180], [187], [198], [193] to [195], [198], [200], [201], [203], [204], [208], [209], [211] to [221], [226], [229], [230], [232] to [237] to the judgment delivered on 25 November 2015

sufficient to enliven the power to this Court by r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (“UCPR”). Accordingly, this Court’s order 1 and 2 made on 3 December 2015 and the aforementioned paragraphs are set aside and order 3 made on 3 December 2015 is varied by extending the time to the day when the judgment is made on this motion.

The schedule and written submissions, that by order of this Court are to support this motion and be filed on or before 22 January 2016, particularise the matter regarding (1) and (2) above.

2.   A declaration the Mr Newton, on behalf of Council, made an admission that: it was clearly put by Council both before Justice White and the Court of Appeal that, as far as Council was concerned, the leases had been validly terminated by the notices.

3.   An order that the judgment delivered on 25 November 2015 is varied to incorporate the matter particularised in the schedule and written submissions that are to be filed on or before 22 January 2016 and the admission referred to in 2 above.

4.   An order that Ms Randall proved her case and is entitled to the relief sought under the Amended Statement of Claim and any relief consistent therewith.

5.   An order that the parties are to bring in short minutes of order in accordance with order 1 to 4 above and, failing agreement by the parties, the matter is to be listed before Kunc J for orders consistent with order 1 to 4 above.

…

  1. Furthermore, and of particular relevance to the determination of Ms Randall’s application, Mr Agresta produced 51 closely typed pages of submissions dated 22 February 2016 (which was obviously an error for 22 January 2016) (the “Submissions”).

  2. Prior to 5 February 2016 I carefully reviewed the Submissions. I formed the provisional view that, subject to anything further Mr Agresta may have to say, the material in the Submissions did not raise any issue on which I required to call on the Council. The Submissions did not, in and of themselves, satisfy me that there was any basis upon which Ms Randall’s application should succeed.

  3. When the matter came before me on 5 February 2016 I informed the parties of the matters set out in the previous paragraph. I asked Mr Agresta to put anything further from the bar table which he might like to put in support of Ms Randall’s application. Furthermore, in order to give Ms Randall procedural fairness, the hearing took the form of my going through the Submissions page by page with Mr Agresta, indicating to him where and why I did not agree with the arguments which he had made on behalf of Ms Randall and giving him an opportunity to respond. The Council did not take up my invitation to put any submissions in addition to the matters which had passed between the Bench and Mr Agresta.

  4. At the conclusion of the hearing I informed the parties that I proposed to dismiss Ms Randall’s motion. The Council informed me that it sought its costs but that they were quite small because, in accordance with my earlier indication (see paragraph [6] above), they had not incurred significant costs. Mr Agresta conceded that he could not say anything to oppose costs being ordered against Ms Randall. The parties agreed that rather than waiting in Court for me to deliver an ex tempore judgment, I should deliver a reserved judgment and make the orders I had foreshadowed in their absence at a later date.

  5. These are the reasons for the orders I have today made in chambers dismissing Ms Randall’s application with costs.

Legal principles

  1. As will be seen, r 36.16(3A) is a gateway to the application of r 36.16(1):

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

…

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under sub rule (1), as if the judgment or order had not been entered.

…

(3C) Despite rule 1.12, the court may not extend the time limited by sub rule (3A) or (3B).

  1. Rule 36.16 must itself be interpreted and applied to give effect to the overriding purpose under s 56 of the CPA:

56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

  1. The operation of r 36.16 was considered by Campbell JA (with whom McColl and Handley JJA agreed) in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 (“Rockcote”). I respectfully adopt and apply his Honour’s analysis:

6 As recently explained in Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133, UCPR 36.16 recognises that, these days, court orders are entered by being recorded in the Court’s computer system, without reference to the parties. That entry takes place very promptly after the judgment is delivered and the orders orally pronounced. It occurs pursuant to UCPR 36.11, which provides:

(1) Any judgment or order of the court is to be entered.

(2) Unless the court orders otherwise, a judgment or order is taken to be entered:

(a) in the case of a court that uses a computerised court record system, when it is recorded in that system, or

(b) in any other case, when it is recorded, in accordance with the practice of the court, as having been entered.

7 UCPR 36.16 provides a window of 14 days after entry of judgment in which setting aside or variation can occur, notwithstanding that entry of judgment. As Basten JA pointed out in Meredith (No 2) at [15]:

The removal of the power to extend the 14-day period makes it sufficiently clear that the intention is that the period is not variable, but reflects the need for judgments and orders to be final and certain as to their operation.”

8 To the extent that that 14-day window exists, an exception has been created to the principle that ordinarily a court has no power to set aside a final judgment after it has been entered; DJL v Central Authority [2000] JCA 17, (2000) 201 CLR 226 at [38], Metwally v University of Wollongong (No 2) [1985] HCA 28, (1985) 59 ALJR 481, Bailey v Marinoff [1971] HCA 49, (1971) 125 CLR 529, Gamser v Nominal Defendant [1977] HCA 7, (1977) 136 CLR 145, Re Suffield (1888) 20 QBD 693, Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22, (2002) 54 NSWLR 146. As UCPR 36.16(3A) and (3B) expressly state, any setting aside of a judgment or order under that power is to be carried out “as if the judgment or order had not been entered”.

9 Courts have traditionally exercised great restraint concerning setting aside or varying a judgment or order that has been made, but not entered. In Autodesk Inc v Dyason (No 2) [1993] HCA 6, (1993) 176 CLR 300 at 302 Mason CJ accepted that “the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation”, and that “generally speaking it will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard.” He went on, at 303, to say:

“However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.”

10 Ms Carelli submitted that Rule 36.16(3A) should be read as being subject to the limitations imposed by subrule 3. I do not agree. As I read it, the power conferred by UCPR 36.16(3A) is subject only to the limitations that the general law imposed on the power to set aside or vary a judgment or order prior to that judgment or order being entered.

  1. Mr Agresta argued Ms Randall’s application by reference to Mason CJ’s dictum in Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302 (“Autodesk”) (and noticed by the Court of Appeal in Rockcote) of the necessity to identify “some misapprehension of the facts or the relevant law”. However, and with no disrespect intended, Mr Agresta interpreted those words as an invitation to traverse the Court’s conclusions in the Principal Judgment on the basis that if, in his submission, those conclusions were wrong, then they demonstrated the requisite “misapprehension of the facts or the relevant law”. That approach, in my opinion, cannot be what Mason CJ intended, both when the proper meaning of “misapprehension” is taken into account both on its own and in the context in which it appears.

  2. It is therefore necessary to consider carefully what the Court should understand Mason CJ meant in Autodesk by “misapprehension”. To embark upon this exercise is not to give his Honour’s words statutory force. It is r 36.16(1) in and according to its terms which is being applied. However, Mason CJ’s analysis has come to be accepted, as Rockcote demonstrates, as an authoritative exposition of circumstances in which the discretion vested in the Court by r 36.16 may be exercised.

  3. The fundamental point, in my respectful opinion, is that the type of “misapprehension” to which Mason CJ refers must be relatively straightforward and easily demonstrable, something of which it could be said that it was obvious, at least once it had been pointed out. I have reached this conclusion by reason of the following matters:

  1. The context provided by the words “However, it must be emphasised that the jurisidiction is not to be exercised for the purpose of reagitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put.” and “The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to reargue their cases.”.

  2. The use of the word “apparently”. This means that it must be “apparent”, the primary meaning of which is given by the Macquarie Dictionary as “capable of being clearly perceived or understood; plain or clear”. The use of the word “apparently” excludes a misapprehension that requires extensive consideration or reasoning to demonstrate.

  3. The previous two sub-paragraphs provide a context which confirms the ordinary meaning of “misapprehension”, again given by the Macquarie Dictionary, as “misunderstanding”. It is not something which is the product of a reasoned conclusion. In my respectful view, it is significant that Mason CJ did not use the word “error”, which is the necessary (but not always sufficient) prerequisite for a successful appeal.

  4. The express prohibition in r 36.16(3A) against extending the 14 day period also suggests that the misapprehension should be something reasonably obvious which can be discovered promptly and not something which requires extensive time or elaborate consideration to discern. In my respectful view that is another reason additional to that identified by Basten JA and quoted in Rockcote at [7] (see paragraph [16] above).

  5. It would be completely contrary to the overriding purpose of “just, quick and cheap” if r 36.16 were to be interpreted so as to permit it to become a vehicle for an unsuccessful litigant to reargue lost points or present new arguments which had occurred to the litigant after the judgment and, perhaps, in response to it. On the other hand, it is entirely consistent with the overriding purpose that immediately demonstrable misunderstanding (e.g. reference to an incorrect section of a piece of legislation, use of out-dated legislation, a mathematical error or misstatement of an obvious fact) should be promptly corrected.

  6. Apart from placing the trial judge in an invidious position, it would undermine the Court’s appellate scheme if r 36.16 were interpreted and applied so as to permit a “first go” at an appeal in front of the trial judge. The days are long gone when trial judges sat on appeals from themselves (a practice once justified on the basis that the appeal panel was enhanced by the trial judge’s own close knowledge of what had transpired at first instance).

  1. Finally, I should note that Mr Agresta’s submissions completely ignored the second part of Mason CJ’s analysis to the effect that it had to be shown that the relevant misapprehension “cannot be attributed solely to the act or default of the party seeking the rehearing”.

Consideration – the common law point

  1. The Submissions contained fourteen sections. The first section set out what Mr Agresta accepted was a completely new argument, to which I will refer as the “common law point”. The common law point was proposed as a direct answer to the Court’s conclusions in the Principal Judgment that, among other things, the Council could rely on the common law of ratification in relation to the decision to terminate the amended Leases (see Principal Judgment at [179]) and had a common law right to terminate the amended Leases for non-payment of rent (Principal Judgment at [174]).

  2. To explain the common law point Ms Randall first drew attention to s 51 of the Constitution Act 1902 (NSW):

51 Local government

…

(2) The manner in which local government bodies are constituted and the nature and extent of their powers, authorities, duties and functions shall be as determined by or in accordance with laws of the Legislature.

(3) The reference in subsection (2) to laws of the Legislature shall be read as a reference to laws that have been enacted by the Legislature, whether before or after the commencement of this section, and that are for the time being in force.

…

  1. She also relied on s 31(1) of the Interpretation Act 1987 (NSW):

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

…

  1. By reference to those provisions, but especially the Constitution Act, she submitted that because “laws of the Legislature” was defined as “laws that have been enacted by the Legislature”, this meant that the Council had no power to engage in conduct which relied or depended upon the common law. This included the common law relating to ratification of actions by corporate bodies and the common law of contract in relation to terminating a lease. Mr Agresta was unable to point to any authority to support what, if accepted, would be a very far reaching proposition.

  2. Conformably with the principles set out in paragraph [16] above, a new argument of this kind is insufficient to outweigh the importance of the principle of finality of litigation. Furthermore, Ms Randall made no attempt to demonstrate, having regard to the second part of Mason CJ’s dictum in Autodesk, that the alleged misapprehension “cannot be attributed solely to the neglect or default of the party seeking the rehearing”. Those two matters alone are sufficient to support the Court’s conclusion that the common law point should not be entertained as a basis to set aside the Principal Judgment.

  3. Even if the view expressed in the previous paragraph is wrong, the result is no different if the common law point is taken into account. That is because the common law point is wrong for the following three reasons.

  4. First, s 51(2) of the Constitution Act identifies where “the powers, authorities, duties and functions” of local government bodies are to be found, not what they can or cannot be. The section says nothing expressly about the inclusion or exclusion of the common law. In other words, it is a matter for the legislature whether local government bodies are given the benefit and burden of the common law.

  5. Second, there is no basis to imply into s 51 of the Constitution Act a limitation to the effect that the legislature cannot permit local government bodies to have the benefit and burden of the common law. In general, the Constitution Act should be interpreted in accordance with the principles of statutory construction: Cooper v Commissioner for Income Tax (Qld) [1907] HCA 27; (1907) 4 CLR 1304 at 1321. While not directly on point, the principles of interpretation that legislation is presumed not to interfere with fundamental common law rights (Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427) and that, in cases of ambiguity, there is a presumption that the interpretation of a statute consonant with the common law is to be preferred (Balog v Independent Commissioner Against Corruption [1990] HCA 28; (1990) 169 CLR 625) provide a helpful analogy. If the legislature, particularly in a statute as fundamental as the Constitution Act, wanted somehow to fetter its power to give local government bodies the benefit and the burden of the common law, it would have said so in clear terms. Section 51 simply has nothing to say on the subject of the non-application of the common law. This conclusion is also supported by the proposition that a constitutional grant of legislative power should be interpreted as broadly as the words permit: New South Wales v Commonwealth of Australia (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1 at [142].

  6. Third, s 51 does draw attention to the “laws of the Legislature”. For present purposes the relevant law is s 220 of the Local Government Act 1993 (NSW) (the “LGA”) as it was in 2003 (when the amended Leases were terminated):

220 Bodies corporate

A council is a body corporate.

Note: Part 8 of the Interpretation Act 1987 applies to statutory bodies. It contains provisions stating the general attributes of statutory incorporation (for example, perpetual succession, the requirement for a seal, the taking of proceedings, etc), it provides for judicial notice to be taken of a statutory corporation’s seal, it creates a presumption of regularity for acts and proceedings of a statutory corporation and contains other provisions.

  1. As the note to it indicated, s 220 had to be understood by reference to s 50 of the Interpretation Act 1987 (NSW) (the “IA”), which provided in 2003:

50   Statutory corporations

(1) A statutory corporation:

(a) has perpetual succession,

(b) shall have a seal,

(c) may take proceedings and be proceeded against in its corporate name,

(d) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and

(e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions.

  1. The answer to the common law point is sub-paragraphs 50(1)(d) and (e) of the IA, especially the latter. The reference in that sub-paragraph to “by law” includes the common law. The common law is “a law of the State” (Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at 51 per French CJ). In the absence of statutory limitation or modification, the Council could do, at common law, everything a body corporate could do “necessary for, or incidental to, the exercise of its functions”: see Rail Signalling Services Pty Ltd v Victoria Rail Track [2012] VSC 452 at [57] referred to in paragraph [141] of the Principal Judgment. The LGA, as one of the “laws of the Legislature” for the purposes of s 51(2) of the Constitution Act, constituted the Council as a body corporate with the power to do, for the purposes specified, anything a body corporate could do at common law. There is no doubt that in 2003 a body corporate was entitled to take advantage of the common law of ratification and common law rights in relation to contracts, including leases. There is no applicable statutory provision which displaces that conclusion in relation to the Council, nor can there be any doubt that what the Council did was “necessary for, or incidental to, the exercise of its functions”.

  2. The Court rejects the common law point set out in section 1 of the Submissions. The Submissions referred to it as the “recurring hurdle” to much of the Council’s case. As will be seen in what follows, insofar as other sections of the Submissions rely on the common law point as a “recurring hurdle”, those parts of the Submissions are also rejected.

Consideration – the balance of the Submissions

  1. I will now turn to the balance of the Submissions. While I will briefly say something about each of the sections, none of them provides a sufficient basis to engage the jurisdiction to set aside the Principal Judgment because, as Mr Agresta conceded towards the end of his oral submissions (T45:40-49), the balance of the Submissions are “better or differently put argument to the same effect as the same that was put to [the Court] at the hearing”. As I understood him, the only part of the Submissions which Mr Agresta contended was really new or additional was section 1. Applying Mason CJ’s dictum in Autodesk, r 36.16(1) cannot be successfully engaged by a party repeating better or differently (at least as far as the party is concerned) arguments which were put at the trial and considered by the Court. The conclusion that the balance of the Submissions is no more than an attempt to reargue points that were put at the trial is sufficient to dispose of Mr Randall’s application. Lack of success on those points is not, in and of itself, sufficient to demonstrate a relevant misapprehension by the Court (see paragraph [19] above). However, I shall now briefly consider sections 2 to 14 of the Submissions.

  2. Section 2 of the Submissions contended that the Court had misapprehended the form of Ms Randall’s claim. This argument had a number of different elements.

  3. The first was that while (in paragraph [57] of the Principal Judgment) the Court had noted the basis of Ms Randall’s complaint, it had (in paragraph [62] of the Principal Judgment) focused on allegations of fraud and had overlooked that Ms Randall also relied on the relevant conduct being “against good faith” for the purposes of r 36.15(1).

  4. That submission is incorrect. Paragraph [61] of the Principal Judgment observed of Ms Randall’s case that “the main emphasis was on “against good faith””. The Court expressly referred to the relevant legal principles in relation to “against good faith” in paragraph [66] of the Principal Judgment, noting that it required “misconduct or dishonourable conduct”. However, paragraphs [62] and [63] of the Principal Judgment made it clear that Mr Agresta ran Ms Randall’s case on the basis that the Council and its officers had behaved in a way that was fraudulent or deceitful. Ms Randall cannot now resile from that. In any event, the same conduct was relied upon as being against good faith. The difficulty for Ms Randall was that she failed to prove that conduct to the requisite standard (formerly known as the Briginshaw standard), irrespective of whether it was to be characterised as fraudulent, deceitful, dishonest or against good faith.

  5. A second complaint was that the Court wrongly failed to apply the decision of the High Court in Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 because that case post-dated the decision of the New South Wales Court of Appeal in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, to which the Court had referred (see paragraph [65] of the Principal Judgment). I am unable to perceive any difference in principle between those cases on the question of what constitutes fraud or false representation and how it should be proven.

  6. Third, Ms Randall contended that the Court had misapprehended the facts by failing to make express reference to the signed minutes of Council meetings which demonstrate that there had been no decision taken by the Council in a duly constituted meeting to terminate the amended Leases prior to their termination. However, express reference to those minutes was unnecessary. It was common ground between the parties that there had been no such decision prior to the amended Leases being terminated. In considering the knowledge of the relevant Council officers, the Court did not overlook the contention that those officers knew that there had been no such decision (see sub-paragraphs [117](10) and (11) of the Principal Judgment).

  7. A final point in section 2 of the Submissions was raised by the Court’s reference to the decision of the High Court in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530. Contrary to the Submissions, the Court did not apply that decision in the Principal Judgment but only referred to it. Furthermore, as paragraph [48] of the Principal Judgment demonstrates, the Court was well aware that Ms Randall also sought to invoke the Court’s inherent power to set aside the relevant judgments and orders and, save in two discrete parts of the Principal Judgment identified in paragraph [48], expressly considered both the statutory and inherent power of the Court without distinction.

  8. Sections 3 and 4 of the Submissions depended upon the common law point and are rejected accordingly.

  9. Section 5 of the Submissions sought to repeat an argument that had been made at the hearing and was considered by the Court in relation to s 85(1)(d) of the Conveyancing Act 1919 (NSW) (see paragraphs [202] to [204] of the Principal Judgment). As a re-agitation of an earlier argument which demonstrates no relevant misapprehension by the Court, this section of the Submissions is rejected.

  10. Sections 6 and 7 of the Submissions depended upon the common law point and are rejected accordingly.

  11. Section 8 may be passed over as introductory to what follows.

  12. Section 9 is perhaps based on a misunderstanding of the Principal Judgment at paragraph [159], where the Court observed that “Ms Randall’s “no valid termination” argument is new”. The Submissions contended that argument was not new.

  13. However, as it was put at the hearing, the “no valid termination” point had to be new. This was because, as was acknowledged in paragraph [113] of the Principal Judgment, the argument was pleaded in paragraph 2A of the ASC as based on “fresh material facts which alone, or in combination with previously known facts raises serious questions to be tried”. At the same time, the Principal Judgment acknowledged (at paragraph [160]) that “while Ms Randall’s “no valid termination” argument may be new, the validity of the Council’s termination of the Leases and subsequent re-entry was very much in issue with the earlier proceedings”. Section 9 of the Submissions identifies no misapprehension on the part of the Court in relation to the “no valid termination” argument. It does no more than seek to put again a point that was lost.

  14. Section 10 of the Submissions re-agitated the contention, which was fully dealt with in the Principal Judgment (see paragraphs [108] to [109] and [116]), that the notices given to Phoenix in relation to the amended Leases were false and known to be false by Council because of the absence of a decision of the Council. The section takes issue with the Court’s findings in relation to this question and concerning the question of delegation to the Mayor and General Manager, but does not establish any misapprehension by the Court.

  15. Section 11 was devoted to setting out, again, why Ms Randall does not agree with the earlier decisions of the Court of Appeal concerning the termination of the amended Leases. These matters were fully canvassed at the hearing before me. No basis is disclosed to interfere with the Principal Judgment or the orders made pursuant to it.

  16. Section 12 of the Submissions drew attention to various pieces of evidence about Phoenix’s financial affairs that were before the Court at the hearing but which were not the subject of specific argument at that time. This section sought to refer to that material to demonstrate Phoenix’s solvency. Mr Agresta (T38:42-43) submitted of this section “It’s matters there that were in front of you but were not argued in front of you, yes that’s correct. You made a point of it so I answered back”. With respect, the answer back does not take matters any further and, in particular, does not disclose any relevant misapprehension.

  17. Section 13 re-agitated matters arising from the evidence that was before the Court at the hearing concerning Phoenix’s alleged loss of income. The relevance of this section, Mr Agresta accepted (T41:9-10), depended upon acceptance of the common law point. The material in section 13 may therefore be passed over accordingly.

  18. Finally, section 14 of the Submissions engaged with what was described as the “questionable” 2001 Delegation. It was in the context of section 14 of the Submissions that Mr Agresta accepted (T45:40-44) that what he had done was to put better or differently arguments that had been dealt with at the hearing. Those arguments concerned Ms Randall’s contention that by reason of s 371 of the LGA the actions ultimately relevant in these proceedings could not be delegated and had not been validly delegated to either the Mayor or the General Manager. These contentions were resolved in paragraphs [176]-[180] of the Principal Judgment. No relevant misapprehension is disclosed. Furthermore, in this section Mr Agresta sought to incorporate additional contentions that common law matters could not be delegated. Those contentions depended upon acceptance of the common law point and are rejected accordingly.

Conclusion

  1. Neither the Submissions nor anything put during the course of last Friday’s hearing has persuaded me that the Court should exercise its discretion under r 36.16(1) to set aside any part of the Principal Judgment or the orders made to give effect to it. It follows, as I foreshadowed to the parties at the hearing, that the Court’s orders are:

  1. The plaintiff’s notice of motion filed 17 December 2015 is dismissed.

  2. The plaintiff is to pay the defendant’s costs of that notice of motion.

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Decision last updated: 08 February 2016

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Cases Citing This Decision

1

Randall v City of Canada Bay Council [2017] NSWCA 1
Cases Cited

24

Statutory Material Cited

5

Randall v City of Canada Bay Council (No.4) [2015] NSWSC 1759
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133