Dibb v Transport for New South Wales (No 2)

[2024] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dibb v Transport for New South Wales (No 2) [2024] NSWCA 176

Hearing dates:

On the papers

Date of orders:

26 July 2024

Decision date:

26 July 2024

Before:

Payne JA; Kirk JA; Stern JA

Decision:

(1)   Dismiss the applicants’ notice of motion filed on 12 July 2024.

Catchwords:

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Court of Appeal – whether judgment should be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16

COSTS – Application to vary costs order – whether parties should be permitted to make further submissions on costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Anderson v Commissioner of Highways (No 2) [2019] SASCFC 140

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Banno v The Commonwealth (1993) 45 FCR 32

Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10

Dibb v Transport for New South Wales [2024] NSWCA 157

Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111

Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179

Majak v Rose (No 5) [2017] NSWCA 238

Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83

Roads and Maritime Services (NSW) v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197

Category:

Procedural rulings

Parties:

Mr Raymond Dibb (first applicant)
Mrs Wendy Dibb (second applicant)

Transport for New South Wales (respondent)

Representation:

Counsel:

R. Dibb (applicants, self-represented)
J. McKelvey (respondent)

Solicitors:

Corrs Chambers Westgarth (respondent)

File Number(s):

2023/365961

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 3

Citation:

[2023] NSWLEC 114

Date of Decision:

26 October 2023

Before:

Pain J

File Number(s):

2022/137180

JUDGMENT

1. THE COURT: On 28 June 2024 this Court dismissed an appeal by Mr and Mrs Dibb (the “applicants”) from orders of the New South Wales Land and Environment Court (“LEC”) made on 26 October 2023, and allowed a cross-appeal by Transport for New South Wales (the “respondent”): Dibb v Transport for New South Wales [2024] NSWCA 157. The applicants were ordered to pay the respondent’s costs of the appeal. In what follows, familiarity with this Court’s judgment on the appeal is assumed.

2. By notice of motion filed on 12 July 2024 (the “Motion”), the applicants seek orders setting aside both the judgment of this Court on the appeal, and the judgment of the LEC, or varying this Court’s judgment on appeal “having due regard to the contentions raised in the [applicants’] submissions concerning the judgment.” The applicants also seek orders that the respondent pay the applicants’ costs of the LEC proceedings on an indemnity or gross costs basis, and that the respondent reimburse the applicants their filing, hearing and out-of-pocket costs for the appeal proceedings. The applicants have filed an affidavit of Mr Dibb affirmed 12 July 2024 (the “Dibb Affidavit”) and written submissions in support of the Motion.

3. The Motion is brought pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16 (“UCPR”). Relevantly, r 36.16 provides:

(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 subrule (1), as if the judgment or order had not been entered.

4. In the Dibb Affidavit, the applicants (through Mr Dibb) voice their dissatisfaction with the judgments of the LEC and of this Court on appeal. They broadly contend that the decision of this Court was “highly arbitrary”, “a complete whitewash”, “a prioritisation of form over substance”, and “well-demonstrates the barriers” that have “prevent[ed] or stifle[d]” the applicants in putting forward their best case before the Court. They assert that the failure rate for appeals by dispossessed landowners is “unacceptably high on a statistical basis”. There is no need to engage with any of these assertions. They do not provide any basis for the relief sought by the applicants in the Motion. Somewhat surprisingly, in the final paragraph of the Dibb Affidavit the applicants indicate a willingness to enter an “ironclad confidential settlement” in which case they would be willing to accept for the existing judgments to stand. Again, this cannot provide any support for the relief sought in the Motion.

5. The applicants have also provided the Court with a document described as “Appellants’ Responses to Appeal Judgment”. It comprises 25 pages of detailed commentary, mostly critical, upon the judgment of this Court on appeal. This document is described in the Dibb Affidavit as “a stand-alone reference document that shows the full extent of our contentions in relation to the judgment.” In their written submissions on the Motion the applicants say that this document is “not for the Court to respond to”, but is instead to provide insight into the applicants’ contentions on the Motion. We have taken this document into account on that basis.

6. Having regard to s 56 of the Civil Procedure Act 2005 (NSW), which requires that the Motion be determined in a way that seeks to facilitate the just, cheap and quick resolution of the issues raised, on 17 July 2024, the parties were directed that the Motion would be heard on the papers without the need for any submissions from the respondent.

7. For the reasons that follow, the Motion should be dismissed. As the respondent was not required to file submissions, there should be no order as to the costs of the Motion.

Applicable principles

8. The principles that govern an application pursuant to UCPR, r 36.16 were recently summarised by this Court in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [13]-[22]. The power conferred under UCPR, r 36.16 is to be exercised “sparingly and with caution” having regard to the importance of the finality of litigation, and “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13] (Leeming and Simpson JJA, Emmett AJA) (“Majak”). The jurisdiction is not 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. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their case: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 (Mason CJ).

9. Whilst jurisdiction under UCPR, r 36.16 may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

Determination

10. The applicants advance, in essence, four contentions in support of the relief sought in the Motion.

11. First, the applicants contend that the public interest in favour of prioritising the protection of landowners who have been dispossessed by a unilateral exercise of executive power should be weighed above the public interest in the finality of proceedings. The applicants rely in this regard upon the special nature of proceedings arising out of compulsory acquisition of property. In support, they rely upon the general principle that applicants in first instance proceedings arising out of compulsory acquisition of property should not be deterred by the prospect of an adverse costs order if their case proves unpersuasive and should be entitled to recover their costs of those proceedings: Banno v The Commonwealth (1993) 45 FCR 32 at 51 (Wilcox J); see also as to this Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 at [60]-[72] (Basten JA, Macfarlan JA and Handley AJA agreeing). Consistent with this general principle, the respondent was ordered to pay the applicants’ costs at first instance. As explained in the judgment of this Court in Roads and Maritime Services (NSW) v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41 at [123] (per Sackville AJA), no such principle applies on appeal. The applicants also rely upon the general principle that doubts in determining compensation for compulsorily acquired land should be resolved in favour of the landowner, as demonstrating the “special nature” of such proceedings: Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10.

12. This contention should be rejected. The applicants have now had the benefit of detailed consideration of their contentions following a ten-day hearing in the LEC and a two-day hearing in this Court, in which the applicants were permitted to substantially amend their notice of appeal for the third time on day two of the appeal hearing. In these circumstances, the interest in the finality of legal proceedings must be accorded due weight. It is not in any way displaced by the character of these proceedings as arising out of a compulsory acquisition of property.

13. Second, the applicants submit that they did not have an adequate opportunity to present submissions on appeal. Broadly, the applicants submit that they should have been specifically asked by the Court what evidence they relied upon in support of their grounds of appeal, or what matters they wished to raise in support of specific contentions they advanced on appeal. The applicants contend that, from a layperson’s perspective, “appeal cases require directions from the Court on what the Court wants to hear because of the restricted time allocated for appeals.” The applicants say, “as unrepresented litigants, they were caught out” in this regard. The applicants complain further that the Court found (at [51]) that the evidence adduced did not come close to proving fraud by the respondent in adducing evidence on the question of hydrology. The applicants contend that they had sought, but were not permitted, to adduce such evidence on appeal. The applicants say that they now wish to be heard on matters that the Court determines are of primary importance from the “array” of pleaded grounds.

14. These contentions should be rejected. The applicants were given a reasonable opportunity to be heard on appeal. The applicants filed detailed written submissions on both the appeal and the cross-appeal. The applicants also relied upon two further sets of written submissions handed up on day two of the appeal hearing, one on the application to further amend their notice of appeal and the other on the cross-appeal. The issues to be determined on appeal arose from the applicants’ notice of appeal (ultimately from the third amended notice of appeal) and submissions, having regard also to the submissions advanced by the respondent. The applicants were well apprised of those issues and addressed those issues in their submissions.

15. Whilst, somewhat inevitably, over the course of an appeal hearing some issues will assume greater significance than others, it was for the applicants to advance the material upon which they wished to rely in support of the grounds of appeal they advanced before the Court. An adversarial justice system requires the parties to bring their own arguments, and evidence, to court: see eg Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [94]. Consistent with the principles set out above, the matters relied upon by the applicants do not provide any basis for this Court now to set aside or review its decision under UCPR, r 36.16.

16. Third, the applicants contend that the Court erred in its judgment (at [172]) in stating that neither party submitted that the costs of the appeal should not follow the event. In this regard, the applicants point to their written submissions on the appeal at [135]-[137], where they sought an order for indemnity costs as regards the costs at first instance. Those submissions did not go to the costs of the appeal. Moreover, in circumstances in which the respondent was entirely successful on the appeal and cross-appeal, there is no reason why the respondent should be ordered to pay the costs of the proceedings at first instance on an indemnity basis. Nor is there any basis upon which this Court should order that the respondent reimburse the applicants their filing, hearing and out-of-pocket costs for the appeal proceedings. The applications for such orders in the Motion are refused.

17. The applicants also point to their response to the application by the respondent for leave to cross-appeal, in which the applicants asked that there be no order for costs on the cross-appeal. In support of this request, the applicants relied in this document upon the general approach, discussed above, to costs in first instance proceedings arising out of a compulsory acquisition of property and upon the decision in Anderson v Commissioner of Highways (No 2) [2019] SASCFC 140 at [8]-[9], where the Full Court of the Supreme Court of South Australia held that an appellant should not be penalised in costs where the appeal raised a novel point of statutory construction and raised a question of public interest.

18. The applicants’ submissions on the cross-appeal do not address the costs of the appeal and do not support the applicants’ contention that there should have been no order for costs on the cross-appeal in this case. The questions of statutory construction raised in the cross-appeal were determined by this Court in Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197 (“Drivas (CA)”), handed down between the proceedings at first instance and the appeal. The applicants’ submissions on the cross-appeal did not raise a matter of public interest. Further, as set out above, the general approach to costs in cases arising out of compulsory acquisition of property do not apply on appeal. Moreover, this was not a case in which it was appropriate to separately consider the costs of the appeal and the cross-appeal. The respondent was successful on both. Very little time was spent on the cross-appeal during the hearing (in part because the applicants helpfully handed up further written submissions on the cross-appeal during the hearing), and the written submissions as to the appeal were significantly longer and more detailed than those on the cross-appeal. Whilst the appeal raised multiple questions requiring detailed consideration of the evidence and transcript, the cross-appeal raised in essence one issue, being the significance of the decision of this Court in Drivas (CA).

19. In these circumstances, there is no merit in the applicants’ contention that the Court should now give them a further opportunity to make submissions as to the costs of the appeal or cross-appeal. Contrary to the suggestion in the “Appellants’ Responses to Appeal Judgment”, had they wished to do so, the applicants could readily have made submissions as to costs during their oral submissions, in their two sets of written submissions on the appeal or in their further written submissions on the cross-appeal handed up at the hearing. The applicants were in no way precluded from doing so.

20. Fourth, the applicants submit that, in a number of instances the Court misapprehended the facts and law. Within this broad ambit, the applicants contend that in its judgment on appeal:

1. The Court misunderstood the decision in Drivas (CA); and

2. The Court attributed to the applicants forensic decisions taken by their Senior Counsel at first instance.

21. Further the applicants contend that the Court’s finding (at [127]) that there was “no substance to the contention that the primary judge failed to value the Property on the basis of its highest and best use” was a “contention” that “could only have been answered by an array of the town planning and valuation evidence” which would have been “detailed” and “time consuming.”

22. Having regard to the principles set out above, none of these matters provides a basis to set aside or review the Court’s judgment or orders under UCPR, r 36.16. Each of the contentions set out above is properly characterised as an attempt by the applicants to reagitate the matters raised in their grounds of appeal or on the cross-appeal, and to supplement the submissions they made on the appeal and cross-appeal. Nor do any of the matters identified in the “Appellants’ Responses to Appeal Judgment” take the matter further. The matters there set out amount to no more than the expression of disagreement with the Court’s decision (including, at some length, with the decision to refuse leave to rely upon further evidence on appeal), the enumeration of reasons why they contend that the Court erred, and continuing complaints about how Senior Counsel ran their case at trial. To the extent that, in this document, the applicants contend that they were not given an opportunity to explain matters, did not have the opportunity to support the grounds of appeal by reference to matters of fact, or did not have the opportunity to make submissions on appeal, those assertions are rejected. The applicants’ written and oral submissions were replete with factual references and it was readily apparent that the applicants were aware of the need to support their submissions, if appropriate, with evidentiary references.

23. In these circumstances, the application to set aside or vary the judgment of this Court under UCPR, r 36.16 should be dismissed.

Conclusion

24. The Court makes the following order:

1. Dismiss the applicants’ notice of motion filed on 12 July 2024.

**********

Decision last updated: 26 July 2024