Farrell v Bridge [1993] Nswlec 131 (18 August 1993)

[1993] NSWLEC 131

Land and Environment Court

of New South Wales

CITATION:	Farrell v Bridge [1993] NSWLEC 131 (18 August 1993) [1993] NSWLEC 1
PARTIES:	Farrell v Bridge [1993] NSWLEC 131 (18 August 1993)
FILE NUMBER(S):	50014 of 1988
CORAM:	Bignold J
KEY ISSUES:	:- Waste Disposal Act 1970 - conviction in 1988 of offence against the Act following entry of plea of guilty - fine imposed and costs - fine unpaid - Defendant's Notice of Motion to set aside or permanently stay judgment. Land and Environment Court Act 1979 - ss22 and 23 - Court lacks jurisdiction or power to recall or set aside 1988 Orders - Land and Environment Court has no inherent power to set aside the 1988 Orders. Supreme Court Rules 1970 - Part 44 r 7 - power to stay execution of judgment - no power to permanently stay execution whilst the 1988 Orders remain in force
LEGISLATION CITED:	Waste Disposal Act 1970 Land and Environment Court Act 1979 Supreme Court Rules 1970
CASES CITED:	(Bailey v Marinoff (1971) 125 CLR 529; ; Gamser v Nominal Defendant (1977) 136 CLR 145); Easyfind (NSW) Pty Ltd v. Paterson (1987) 11 NSWLR 98 at 108 ; State Rail Authority of New South Wales v. Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38.; Wentworth v. Woollahra Municipal Council (1982) 149 CLR 672 at 684; Wentworth v. Attorney General for New South Wales (1984) 154 CLR 518 at 526; University of Wollongong v. Metwally (No 2) (1985) 59 ALJR 481
DATES OF HEARING:	28/07/93
DATE OF JUDGMENT:	08/18/1993
LEGAL REPRESENTATIVES:	Mr D Harris (Sol) Mr R B Wilson (Barr)

JUDGMENT:

On 23 August 1988 the Defendant appeared before the Court in person and pleaded guilty to a charge brought against him alleging an offence against s23(6) of the Waste Disposal Act 1970 ("the Act ") in that between October 1987 and February 1988 he did fail to comply with a condition attached to a licence granted to him under that Act to transport waste.

After the Prosecutor had informed the Court of the nature of the offence and the circumstances of its commission, and the fact that this was the Defendant's first offence and that he had co-operated with the Prosecutor's investigation of the offence, I pronounced the following orders ("the 1988 Orders"):

"1. The Defendant be convicted of the offence charged.

2. A penalty of $1,000 be imposed in respect of the aforesaid conviction, such sum to be paid to the Registrar of this Court within 28 days of today's date.

3. The Defendant pay the Prosecutor's costs of $1,694 such sum to be paid to the Registrar of this Court within 60 days of today's date to be disbursed by him according to law."

The reasons for so ordering are set forth in my reasons for judgment (a copy of which is annexed hereto marked "A"). It may be noted that the fine imposed was the maximum penalty and that it has not been paid though the Prosecutor has been seeking to enforce it, having on two occasions obtained writs for levy of the Defendant's property. The legal costs have been paid.

More than four years after the aforesaid orders were made the Defendant, by its summons filed on 10 December 1992, (which has been treated as if it were a Notice of Motion) moved the Court to set aside the conviction or alternatively to permanently stay the enforcement of the 1988 Orders.

B. THE BASIS FOR THE DEFENDANT'S APPLICATION TO

SET ASIDE THE 1988 ORDERS

Although the Defendant adduced other evidence concerning the circumstances in which the Defendant changed his original plea of not guilty to the charge (which evidence is entirely unrelated to the sole ground upon which he ultimately claimed relief) I should, because of the grave import of the matter, record my finding that where the Defendant's evidence conflicts with the evidence presented by the Prosecutor I accept the Prosecutor's evidence and I reject the Defendant's evidence.

The sole ground upon which the Defendant claims relief is concerned with the fact that subsequent to the 1988 orders the Defendant was charged by the Prosecutor with 21 separate offences against s23(6) of the Act alleged to have been committed between 1 November 1988 and 28 August 1989 and all these charges were either withdrawn or dismissed by orders made by this Court on 21 September 1990 (vide proceedings Nos 50112 to 50123; 50147 to 50155 of 1989).

The particular aspect of the results of the proceedings in respect of those subsequent charges now relied upon by the Defendant is the fact conceded by the Prosecutor in the proceedings on those charges (which were heard together) that he could not establish the validity of any relevant licence granted under that Act before 23 March 1989 when a relevant delegation of powers (including the power to grant a licence) was made pursuant to s21(1) of the Act . This concession by the Prosecutor led to an application by the Prosecutor late in those proceedings to withdraw 13 summonses in respect of offences alleged to have been committed before 2 June 1989. (That was the date upon which the Prosecutor contended that a valid licence had been granted (by the authorised delegate) upon which the remaining charges could be sustained.) In the event I held that the licence purportedly granted on that date was invalid (for reasons unrelated to the absence of delegated authority which had been the reason for the Prosecutor's concession that it could not establish the validity of any relevant licence granted before 23 March 1989) and having held that the subsistence of a valid licence was an essential ingredient to the offence created by s23(6) of the Act , accordingly I dismissed the remaining summonses.

As I understand the Defendant's case he would now seek to establish, in the light of the Prosecutor's concessions at the trial of the 21 subsequent charges, that the licence being an essential ingredient to the offence the subject of the charge sustained by the 1988 orders was itself not a valid licence, apparently because of the inability of the Prosecutor to establish its validity on account of there being no relevant delegation to the person who purported to grant it.

In this respect, two matters should be noted. Firstly, the trial of the subsequent 21 charges did not establish that the licence relevant to the charge sustained by the 1988 orders was itself invalid. The validity of such a licence was not in issue at that trial because the subsequent charges alleging offences between November 1988 and August 1989 involved licences issued for the years 1988 and 1989 (under s25 of the Act , licences endure for one year following grant and are renewable) whereas the charge the subject of the 1988 orders involves an offence alleged to have been committed between October 1987 and February 1988 (and therefore at least involved the licence enduring in 1987).

Secondly, the Defendant does not have available evidence to establish the invalidity of the relevant licence and the Prosecutor is not now prepared to concede that it could not have proved the validity of the licence at the trial if the Defendant, instead of pleading guilty, had put the Prosecutor to the proof of the charge. In fairness to the Defendant, it appears that he may have misunderstood the Prosecutor's response to the Notice of Motion and has accordingly brought his case on the assumption that it was common ground that the Prosecutor could not have established the validity of the relevant licence had the 1988 charge been defended.

Accordingly the Defendant though presently lacking the evidence, is confident, based upon the success ultimately yielded to him by dint of the protracted process of putting the Prosecutor to strict proof in the course of the 1990 trial, that proper inquiry of the records of the Waste Disposal Authority will elicit either the requisite evidence or an appropriate concession from the Prosecutor.

Rather than further adjourn the matter, which appeared inevitable in view of the Defendant's misunderstanding of the Prosecutor's position, (and thereby further exacerbate the gross delay involved in seeking to have recalled the 1988 orders some five years after the event) with the concurrence of the Prosecutor, I propose to consider the case on the assumption that the requisite evidence is available with the result that, had the charge been defended and had the Prosecutor been put to proof, he could not have established the subsistence of a valid licence, being an essential ingredient of an offence against s23(6) of the Act as I had held at the 1990 trial, and hence the Defendant would have been entitled to an acquittal.

C. DOES THE COURT HAVE THE JURISDICTION OR THE POWER

TO SET ASIDE THE 1988 ORDERS?

The Prosecutor in his detailed written submissions asserts an absence of jurisdiction or power in the Court to recall the 1988 orders in order to entertain the Defendant's claim to relief.

The Prosecutor cites well known cases in the High Court of Australia ( Bailey v Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant (1977) 136 CLR 145) in support of the proposition:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of the Court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court." per Barwick CJ in Bailey at 530.

In Robinson v Shoalhaven City Council (1985) 55 LGRA 135, I applied these High Court decisions in holding that this Court lacked the power (statutory or inherent) to set aside a judgment given by consent in proceedings which had been regularly concluded: 137.

The Defendant seeks to circumvent this well established line of authority by denying the premise of the regular conclusion of the proceedings. He submits that the proceedings were not regularly concluded because, according to the assumption I have made, had the Defendant defended the charge the Prosecutor could not have proved the validity of the licence and hence the Defendant would have been entitled to an acquittal. Hence citing a passage from the judgment of Menzies J in Bailey at 531/532 the Defendant submits that since there has been a relevant error the proceedings were not regularly concluded by the 1988 Orders.

The Prosecutor disputes the proposition that the 1988 orders involve any relevant error relying upon the following established propositions:

1) by his plea of guilty to a criminal charge a defendant admits every element of the offence and the plea cures any defects in proof in the prosecution case;

2) though a plea of guilty may, by leave of the Court, be withdrawn at any time until sentence is passed, once sentence is passed and entered, the Court is functus officio.

The Defendant's answer to these arguments is that by pleading guilty to the charge he was unaware that the relevant licence was invalid and that this Court, being a superior court of record with continuity, is not functus officio even after it has passed sentence, and possesses inherent power to set aside the 1988 Orders which have been obtained irregularly.

The Defendant submits that the requisite jurisdiction or power to grant the relief claimed is founded upon (or by analogy to) the following principle stated in Daniell's Chancery Practice 5ed p 1,471 which was applied by Helsham CJ in Equity in Hillman v Hillman (1977) 2 NSWLR 739 at 745:

"It is a general rule, that whenever a party, by fraud, accident or mistake, or otherwise, has obtained an advantage in proceedings in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, a Court of Equity will interfere to prevent a manifest wrong, by restraining the party whose conscience is thus bound, from using the advantage he has there gained."

In relation to the principle stated in Daniell , I should at once say that in the present case, there is no question of fraud in the present case and hence there is no evidence to support the view that the Prosecutor, when either laying or presenting the charge, knew that the relevant licence granted to the Defendant was invalid. Accordingly, there is no question of fraud in the present case and hence there is no scope for the application of that principle in the present case to the extent that the principle is based upon fraud.

In so concluding I would accept that when the Defendant pleaded guilty to the charge he was unaware that the relevant licence was invalid. In other words although the Defendant's plea of guilty necessarily involved an admission of the essential legal ingredients of the offence ( R v O'Neill [1979] 2 NSWLR 582 at 596) the Defendant did not have a full appreciation of all that it involved (cf S v. Recorder of Manchester [1971] AC 481 at 502).

If follows that I am prepared to find that both the Prosecutor and the Defendant were mistaken in regarding the relevant licence as valid.

However does such a mistake vitiate the 1988 Orders or lead to the conclusion that they were irregularly obtained?

In my judgment those orders cannot be regarded as a nullity (cf In Re Padstow Total Loss and Collision Assurance Association (1882) 20 Ch D 137; Cameron v. Cole (1944) 68 CLR 571; Taylor v. Taylor (1979) 143 CLR 1). At the highest they may be regarded as the result of an erroneous judgment, capable of being quashed on appeal for the reasons I shall presently state.

However the relevant mistake is not of such a kind as to vitiate the 1988 Orders. For example it does not involve a denial of natural justice to a person against whom an order is made, which would invest the court which made the order with inherent power , ex debito justitiae, to set it aside: Taylor v. Taylor .

Nor do I think that the existence of such a mistake or such an erroneous judgment means that the 1988 Orders were not regularly obtained or that the proceedings were not regularly concluded, so as to justify a departure from the principle of finality established in Bailey v. Marinoff as for example occurred in TJM Products v. A & P Tyres (1987) 78 ALR 579 where Fisher J in the Federal Court held that the because entry of the Court's order had involved an abuse of the Court's process, the litigation had not been regularly concluded.

Finally I do not think the relevant mistake and erroneous judgment so infect the 1988 Orders that the Court is justified in invoking some wider principle for granting relief, as was suggested, obiter, by Young J in Easyfind (NSW) Pty Ltd v. Paterson (1987) 11 NSWLR 98 at 108 "the court will never permit its own order to be a source of injustice...".

In R v Liberti (unreported 16 July 1991) Kirby P presiding in the Court of Criminal Appeal said (at pp8 and 9) that a plea of guilty should be taken to relate only to those facts of which the accused was aware and that an accused person is normally entitled, where represented, to look to the lawyers to explain the legal significance of the admitted facts and ultimately is entitled to look to the Court "to offer protection from a conviction which is not, in law, sustained by the facts". However I do not understand this statement to justify this Court assuming the power to set aside the 1988 Orders.

In Liberti the Court of Criminal Appeal acknowledged its power to set aside a conviction recorded following a plea of guilty, at least if one of the following two conditions applies:

1) the Defendant did not appreciate the nature of the charge or did not intend to admit guilt; or

2) on the admitted facts, the Defendant could not in law have been convicted of the offence charged.

Having so recognised the existence of its power to set aside a conviction the Court went on to caution restraint. Thus at p3 of his judgment the President stated:

"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be admission by that person of the necessary legal ingredients of the offence. See R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v. Sagiv (1986) 22 A Crim R 73 at 81."

There is therefore no doubt that the Court of Criminal Appeal possesses jurisdiction and power to set aside the conviction recorded in the 1988 Orders. The availability of this avenue of appeal at once removes the present case from the sphere of "irremediable injustice" where even in that sphere that consideration must be weighed against the public interest in maintaining the finality of litigation and will only prevail in "quite exceptional" circumstances: see State Rail Authority of New South Wales v. Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38.

Since the decision in Bailey the High Court of Australia has given further consideration to the question of that Court's power to recall a judgment it has pronounced and I propose to trace those developments in order to establish whether they have displaced or modified the principle established in Bailey .

In Codelfa (where the Court's judgment had not been passed and entered) the Court entertained no doubt that the Court had jurisdiction - see at 38 (per Mason and Wilson JJ) and at 45 per Brennan J "that jurisdiction inheres in this Court as a final Court of Appeal to prevent irremediable injustice being done by a Court of last resort, but the occasions for its exercise must be rare indeed."

In Wentworth v. Woollahra Municipal Council (1982) 149 CLR 672 at 684, the Court referred to its then recent decision in Codelfa and stated that the circumstances in which the Court would re-open a judgment which it had pronounced are extremely rare and generally speaking will be exercised only where the applicant "can show that by accident without fault on his part he had not been heard."

In Wentworth v. Attorney General for New South Wales (1984) 154 CLR 518 at 526, the Court in considering the power of the Court of Appeal to set aside its previous order, re-affirmed the general principle that there is no inherent power to set aside a judgment by reason of changed circumstances. The Court acknowledged that there are exceptions to the general rule which it was unnecessary to attempt to define apart from holding that the order in that case was procedural", which if carried out, would ultimately result in a futility". The Court held the inherent power extended to that case and was properly exercised in setting aside the order.

In University of Wollongong v. Metwally (No 2) (1985) 59 ALJR 481 at 482 the Court "assumed, without deciding" that it had power to vacate its previous order, notwithstanding that it had been perfected. It cited Codelfa in support of its statement:

"If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation."

In Smith v. New South Wales Bar Association (1992) 66 ALJR 605 at 608, the Court said:

"It has long been the common law that a Court may review, correct or alter its judgment at any time until its order has been perfected.

.....
.....

The power is discretionary and, although it exists up until the entering of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation."

Most recently in Autodesk Inc v Dyason (No 2) (1993) 67 ALJR 270 Mason CJ having cited some of the earlier decisions in support of the existence of jurisdiction of the Court to re-open a judgment stated at 270:

"But these statements do not exclude the exercise of jurisdiction to re-open a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders."

The Chief Justice proceeds to cite three examples which:-

"...indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a Court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating 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 re-argue their cases."

Brennan J at 274 and Dawson J at 279 each affirms the jurisdiction of the Court to re-open a judgment ("at least" or "at all events") prior to the formal entry of that judgment.

The foregoing survey of recent decisions of the High Court leads me to the conclusion that the principle established by Bailey has not been abrogated, except possibility in relation to judgments of the High Court as this Nation's final court of appeal.

It follows that there is no inherent jurisdiction or power vested in this Court to recall the 1988 Orders. Even if it can be said on the basis of the assumption I have been prepared to make, that those orders are tainted by some error, that error does not change the fact that, for the reasons given, the proceedings were regularly concluded in this Court and, in consequence, the correction of any error must be cured by the appeal process provided by the Criminal Appeal Act 1912 . In Autodesk , Brennan J, citing In Re Harrison's Share under a Settlement (1955) Ch 260, observed that the approach of courts from which an appeal lies is not so strict and it may be preferable for such courts to recall an erroneous judgment rather than allow it to stand until it is quashed on appeal. However as his Honour notes In Re Harrison was a case of an unperfected judgment and accordingly the principle in Bailey is not in question.

There remains the possibility of a statutory provision conferring the requisite jurisdiction or power. In this respect the Defendant advances two possible statutory sources namely (i) ss22 and 23 of the Land and Environment Court Act 1979 and (ii) Pt 13 r 1 of the Land and Environment Court Rules .

This submission is to similar effect to that which I rejected in Robinson in the following passage at 137:

"The applicant seeks to found jurisdiction in the powers conferred by Pt 13, r 1 of the court's rules and s22 of the Land and Environment Court Act 1979 (to the same effect as Pt 40, r 1 of the Supreme Court Rules and s63 of the Supreme Court Act 1970 respectively). However this submission is misguided since these provisions provide no statutory power to set aside judgments given by the court in respect of proceedings no longer before the court and beyond its recall . For the same reason the applicant's reliance on s 23 of the Land and Environment Court Act 1979 is misguided since the powers thereby conferred are predicated on there being "matters in which it (ie the court) has jurisdiction."

With the benefit of the more comprehensive arguments advanced in the present case, I adhere to the views expressed in Robinson noting that subsequently in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 579, Gleeson CJ has held that ss22 and 23 of the Land and Environment Court Act do not confer jurisdiction upon this Court or extend jurisdiction elsewhere granted to it. Accordingly I must reject the Defendant's argument that the Court is vested with statutory jurisdiction or power to set aside the 1988 Orders.

For all of the foregoing reasons I conclude that the Court has no jurisdiction or power to recall or to set aside the 1988 Orders.

For completeness, I should also say, that if contrary to my conclusion just expressed, the Court possesses the requisite jurisdiction, and that jurisdiction confers judicial discretion, I would decline, on discretionary grounds, to exercise it in favour of the Defendant on account of the excessive delay in seeking the relief, which delay has not been satisfactorily explained or otherwise justified by the Defendant.

D. DOES THE COURT HAVE POWER OR JURISDICTION TO STAY THE

EXECUTION OF THE 1988 ORDERS?

As I earlier mentioned the Prosecutor has twice obtained the issue of a writ of execution, however to-date no execution has been effected in respect of the outstanding fine.

The issue of these writs was authorised by Supreme Court Rules Pt 42 r 3 and Pt 44 which are applicable to proceedings in Class 5 of this Court's jurisdiction by virtue of Supreme Court Rules Pt 75 rr 2 and 6 and Land and Environment Rules Pt 6 r 2 : see also Farrell v. Robert Ussher (unreported 15 February 1991); Farrell v. Diamond (unreported 15 July 1993).

In my judgment the Court clearly has the power to stay execution of the 1988 Orders pursuant to Supreme Court Rules Pt 44 r 5.

The Defendant submits that the Court should exercise this power in his favour by permanently staying execution and thereby avoid the consequence of the Court and its processes becoming an instrument of injustice, in the sense of the fine being recovered under the 1988 Orders.

In my judgment this is not an appropriate case for the granting of a permanent stay of execution, because of the very existence of 1988 Orders. Whilst those Orders remain in force, and notwithstanding their susceptibility of being quashed on appeal , it is inconceivable and unjustifiable that this Court would permanently stay execution of the Orders. In my judgment if there is to be a stay of execution pursuant to Supreme Court Rules Pt 44 r 5, the only justifiable stay would be pending any appeal to the Court of Criminal Appeal.

I am of the same opinion (for the same reasons) if the relevant source of power be found elsewhere eg Supreme Court Rules Pt 42 r 12 (stay of execution on account of matters occurring after judgment) - see Wentworth v. Attorney-General at 526 or in the Court's inherent power to prevent an abuse of its process - see Jago v. District Court (New South Wales) (1989) 168 CLR 23; National Parks and Wildlife Service v. Stables Perisher at 581. Whilst the 1988 Orders remain in force, there can be no suggestion that enforcement of the Orders involves any abuse of process.

E. CONCLUSIONS AND ORDERS

For all the foregoing reasons I conclude that the Court lacks the jurisdiction or power to recall or to set aside the 1988 Orders, and although it possesses the power to stay the execution of those orders, that power is not available in the present case to grant a permanent stay of execution, whilst the Orders remain in force.

If the Defendant wishes to initiate an appeal to the Court of Criminal Appeal against the 1988 Orders it would appear to be appropriate for a limited stay of execution to be granted pending that appeal. Liberty to apply on three days notice is reserved for that purpose.

Accordingly I make the following orders:

1. The Defendant's Notice of Motion is dismissed.

2. Liberty to apply on three days notice for the purpose of obtaining a limited stay of execution.

3. Exhibits to be returned.

4. The question of costs is reserved.