Lonsdale & Anor v Gilbert & (2) Ors (No. 2)

[2007] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:

Lonsdale & Anor v Gilbert & (2) Ors (No. 2) [2007] NSWLEC 58

PARTIES:

APPLICANTS:
Jamie Darren Lonsdale and Trudy Lonsdale

FIRST RESPONDENT:
Paul David Gilbert

SECOND RESPONDENTS:
Barry Albert Ellston and Judith Ann Ellston

FILE NUMBER(S):

30860 of 2004

CORAM:

Lloyd J

KEY ISSUES:

Practice and Procedure :- - notice of motion to re-open - variation of final orders where judgment has been delivered - power under a reservation of liberty - appeal

LEGISLATION CITED:

Land and Environment Court Rules 1996 Pt 15 rr 4 and 9

CASES CITED:

Bailey v Marinoff (1971) 125 CLR 529 ;
Cristel v Cristel [1951] 2 KB 725;
DJL v Central Authority (2000) 201 CLR 226;
Lonsdale v Gilbert [2006] NSWLEC 30;
Lonsdale v Gilbert [2007] NSWLEC 36

DATES OF HEARING:

01/02/2007

EX TEMPORE JUDGMENT DATE:

1 February 2007

LEGAL REPRESENTATIVES:

APPLICANTS:
A Crossland (barrister)
SOLICITORS:
Turnbill Hill Lawyers

FIRST RESPONDENT:
P Sladen (agent)
SOLICITORS:
N/A

SECOND RESPONDENTS:
N/A

JUDGMENT:

- 3 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 1 February 2007

LEC No. 30860 of 2004

LONSDALE & ANOR v GILBERT & ORS (No. 2) [2007] NSWLEC 58

EX TEMPORE JUDGMENT

1 HIS HONOUR: The first respondent in the present proceedings, Mr Paul David Gilbert, applies by way of notice of motion to dismiss the motion for contempt which has been heard and in respect of which judgment has been delivered: Lonsdale v Gilbert [2007] NSWLEC 36. The first respondent’s motion also asks the Court to vary the orders of Bignold J in his Honour’s principal judgment which was delivered on 30 January 2006: Lonsdale v Gilbert [2006] NSWLEC 30.

2 A number of grounds are advanced in support of the motion. Firstly, it is said that his Honour reserved liberty to apply, which is Order 7 of the orders made by Bignold J on 30 January 2006 and which is as follows:

7. Liberty to apply on three days notice in respect of the outworking of the mandatory orders made for the removal of the encroachments.

3 The reservation of liberty to apply does not extend, however, to an application for substantive relief entirely different from that given in the final orders. Liberty to apply does not enable the final orders to be changed: it merely reserves the right to apply for further or other orders in giving effect to, or carrying out, the orders that have been made. That is, there is no power under a reservation of liberty to apply to change, or to substantially amend the orders that were made: Cristel v Cristel [1951] 2 KB 725.

4 Secondly, it is said that Pt 15, r 4 of the Land and Environment Court Rules 1996 (“the LEC Rules”) have not been complied with. Part 15, r 4 says that the Registrar is to sign and file a minute of a final order disposing of the proceedings and is to seal the minute with the seal of the Court. Judgments and orders take effect, however, when they are given or pronounced. In the present case the first respondent was represented in court when the judgment was delivered and the orders were pronounced. Moreover, subsequent correspondence between the parties demonstrates that Mr Gilbert was fully aware of the judgment and of the terms of the orders that were made.

5 It is then further said that there is power to set aside or vary the order under Pt 15, r 9 of the LEC Rules. In particular, there is an allegation that the original order was obtained by fraud. No satisfactory explanation is given, however, for the lengthy delay of about a year since the judgment was delivered and the bringing of the present motion.

6 Accordingly, in the exercise of the Court’s discretion, I decline to exercise the Court’s powers under Pt 15 of the LEC Rules. I decline to dismiss the applicants’ motion for contempt or to set aside the judgment and orders made by Bignold J on 30 January 2006.

7 In my opinion, the circumstances of the present case do not warrant reopening or revisiting the final orders made by Bignold J. The orders made by Bignold J are final orders and cannot be re-opened or re-visited - see Bailey v Marinoff (1971) 125 CLR 529 at 530 per Barwick CJ and DJL v Central Authority (2000) 201 CLR 226.

8 If the first respondent wished to challenge his Honour’s findings and orders the appropriate course was to appeal. No appeal was brought against the judgment and orders made by Bignold J on 30 January 2006. I am not sitting on an appeal from the judgment of his Honour. I decline to go behind the judgment and the orders. The first respondent’s notice of motion is dismissed with costs.

I hereby certify that the preceding 8 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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