Fox v Ginsberg (No 2)

[2011] NSWLEC 1205

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fox v Ginsberg (No 2) [2011] NSWLEC 1205
Hearing dates:	20 July 2011
Decision date:	20 July 2011
Jurisdiction:	Class 2
Before:	Moore SC
Decision:	Notice of Motion dismissed as to proposed orders 1 to 3 and returned to the Registrar for setting a timetable for dealing with the remaining matters
Catchwords:	Application to reopen after orders made but not entered; matter sought to be reconsidered subject to consideration at original on-site hearing
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	Fox v Ginsberg (2011) NSWLEC 1204 Autodesk Inc and Another v Dyason and Others [No 2] (1993) 176 CLR 300 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Wentworth v Woollahra Municipal Council [1982] HCA 41
Category:	Procedural and other rulings
Parties:	J Fox (Applicant) N Ginsberg (Respondent)
Representation:	Solicitors Mr T Sattler Sattler & Associates (Applicant) Respondent in person
File Number(s):	20155 of 2011

Extempore Judgment

1. The Notice of Motion that is before the Court this morning contains two parts, only one of which is within my jurisdiction to consider, and that is an application to reopen proceedings (see Fox v Ginsberg (2011) NSWLEC 1204), in order to reconsider the question of access for the construction works that have been ordered to be undertaken generally along the common boundary between the applicant's property and the respondent's property.

1. During the course of the on-site hearing, opportunities were provided to the parties to address the question of access. An option for access was canvassed that involved access through a neighbouring residential flat building. It was pointed out, at that time during the on-site hearing, that Commissioners of the Court did not have the power to deal with such applications, and in any event, the strata body of the residential flat building was not a party to the proceedings and could not be heard. That, in my view, was a substantial or substantive consideration of an element relating to access for the works sought.

1. The parties were also provided with an opportunity to address us on questions of access, there being a contention between them as to whose property should be used for the purposes of access for works to be undertaken. For reasons that it is not appropriate that I canvass, as they were not dealt with in the judgment, the Acting Commissioner and I concluded that it was appropriate to order that access for the reconstruction of the wall (we having determined that removal of the tree was not required,) should be undertaken via the property of the applicant.

1. Mr Sattler now moves the Court for a reopening on that point. The High Court has dealt with the question of reopening in a number of matters, the pre-eminent authority being that contained in Autodesk Inc and Another v Dyason and Others [No 2] (1993) 176 CLR 300, in which the Court adopted an approach summarised, in my view, by a sentence cited with approval by Dawson J from an earlier decision of the High Court in Wentworth v Woollahra Municipal Council [1982] HCA 41 and relevantly that quotation says:

Generally speaking, it [ that is, the power to reopen ] will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.

1. In this instance, the applicant has had an opportunity to be heard at first instance and the issue was dealt with and it was determined. Nothing arises, in my opinion, from the terms of s 22 of the Land and Environment Court Act 1979 that displaces the concept of finality of litigation - the orders having been pronounced and having dealt with all matters in dispute between the parties, save costs, a matter that is not capable of being dealt with by Commissioners of the Court.

1. Under the circumstances, I am not satisfied that the nature of the basis for reopening, that is dealt with in Autodesk , has been met. The element of the decision in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145, to which Mr Sattler has taken me to, is not relevant in my view, because there is no suggestion that an opportunity was not expressly provided, and indeed, that some submissions of a differing nature to those now sought to be canvassed were not made during the course of the hearing.

1. I have raised, however, in light of the matter being brought back this morning, the appropriateness of a variation, by consent, to the orders that would require the builder commissioned by Ms Ginsburg to construct the wall, being required to provide satisfactory proof of construction and site insurances to Ms Fox, before Ms Fox could be required to permit access to her property. Given that there is that agreement, that variation should be made, and if the parties are unable to provide me with an agreed form of words, I will insert one, as the matter needs to be finalised in my list by the close of business tomorrow.

1. I also observe that the imposition of that condition would require the insertion of a condition that would enable the parties to re-approach the Court for a variation of the required time for performance of the works, if there were any difficulty in finding a builder who had insurances that were satisfactory for the purposes of access through the applicant's property.

1. However, under the circumstances, I decline to grant the application to reopen, and as a consequence of that, the orders proposed in paras 1 to 3 of the Notice of Motion are dismissed.

1. The question of dealing with order 4 of the Notice of Motion as sought and the ancillary order in order 5 will be returned to the Registrar for the purposes of her setting a timetable for dealing with that matter.

Tim Moore

Senior Commissioner

Decision last updated: 21 July 2011