Fokas v Kogarah City Council and Anor

[2008] NSWLEC 98

Land and Environment Court

of New South Wales

CITATION:	Fokas v Kogarah City Council and Anor [2008] NSWLEC 98
PARTIES:	APPLICANT Maria Fokas FIRST RESPONDENT Kogarah City Council SECOND RESPONDENT Energy Australia
FILE NUMBER(S):	40007 of 2008
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- whether power to set aside final order of judge dismissing a class 4 application
LEGISLATION CITED:	Electricity Supply Act 1995 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 Pt 36 r36.15, r36.16
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 DJL v Central Authority (2000) 201 CLR 226 Fokas v Kogarah Council & Anor [2008] NSWLEC 74
DATES OF HEARING:	3 March 2008
EX TEMPORE JUDGMENT DATE:	3 March 2008
LEGAL REPRESENTATIVES:	APPLICANT In person FIRST RESPONDENT Ms C Schofield (solicitor) SOLICITOR Pike Pike and Fenwick SECOND RESPONDENT Mr A Galasso SC SOLICITOR Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 March 2008

40007 of 2008 Fokas v Kogarah City Council and Anor

EX TEMPORE JUDGMENT

1 Her Honour: A Notice of Motion has been filed by the Applicant, Mrs Fokas, seeking orders that a decision of Lloyd J made on 1 February 2008 be set aside. His Honour handed down an ex tempore judgment, Fokas v Kogarah Council & Anor [2008] NSWLEC 74, and made an order perfected on that day that the Applicant’s Class 4 application be dismissed and that the Applicant pay costs. The Notice of Motion before me today seeks orders that the decision be set aside and the Class 4 application continue with further directions. The motion identifies the grounds as a failure by Lloyd J to consider all the parts of an affidavit filed by her in the proceedings and that there is a failure to comply with some provisions of the Electricity Supply Act 1995. I note this Court has no jurisdiction to deal with issues under that Act. In a further affidavit which is the Applicant’s submissions, which I allowed to be filed in Court today, additional matters are raised concerning her assertion that the development in issue is designated development and therefore she has appeal rights as an objector, and that notification as procedures required by the Environmental Planning and Assessment Act 1979 were not correctly followed, inter alia.

2 While the Notice of Motion was also described as seeking a variation of Lloyd J’s decision what is sought is that it be set aside as that is the only basis on which the Applicant’s Class 4 application can proceed. On one view this is an appeal against Lloyd J’s final decision and the only course open to the Applicant is to file a summons for leave to appeal in the Court of Appeal.

3 The Uniform Civil Procedure Rules 2005 (UCPR) now apply in this Court and should also be considered.

4 Part 36 r 36.16 states:

(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.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment, or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(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.

5 Part 36 r 36.16 of UCPR is potentially applicable in that it provides broad powers for the setting aside or variation of judgments in addition to Part 36 r 36.15 (which deals with judgments or orders made irregularly, illegally or in bad faith, none of which circumstances arise here). Part 36 r 36.16(1) specifies that an application to set aside or vary an order should be made before the entry of an order. In this case the Applicant’s motion was filed on 5 February 2008 after the order was perfected on 1 February 2008. Rule 36.16(1) appears to be varied by r 36.16(3A) which allows 14 days after the order is perfected in which to file a notice of motion to set aside or vary an order or judgment. That was done here.

6 Rule 36.16(3) states that in addition to its powers under subrule (1) and (2) the court may set aside or vary any judgment or order except so far as it, in ss (b), dismisses proceedings. The operation of that part of the UCPR means that I do not consider I can entertain the Applicant’s Notice of Motion to set aside the final order of Lloyd J to dismiss the Class 4 application. I note that none of the circumstances referred to in r 36.16(2) as a basis for setting aside or varying a judgment or order arise here.

7 I am confirmed in this view given the important principle of finality of litigation whereby final orders even if made on an interlocutory basis should generally stand in the absence of substantial irregularities or good faith or fraud. The general rule is that the court may amend, vary or recall a final judgment before it has been formally entered, but that a court ordinarily has no power to set aside a final judgment after it has been entered, see DJL v Central Authority (2000) 201 CLR 226, Bailey v Marinoff (1971) 125 CLR 529. The Uniform Civil Procedure Rules appear to allow additional time in which to seek a review but these are qualified by r 36.16(3) in relation to the orders the Court can consider in any application to set aside orders.

8 To the extent that the Applicant now wishes to raise fresh issues not previously before Lloyd J and not the subject of the Class 4 application which has been dismissed then she may be able to commence fresh proceedings. What she cannot do is through this motion revive the proceedings which have been dismissed.

9 It follows from my findings above that the Applicant’s Notice of Motion dated 5 February 2008 should be dismissed.