Michales v Dimoski

[2007] NSWLEC 443

Land and Environment Court

of New South Wales

CITATION:	Michales v Dimoski and Ors [2007] NSWLEC 443
PARTIES:	APPLICANT Paul Michales FIRST RESPONDENT Sash Dimoski SECOND RESPONDENT Hurstville City Council THIRD RESPONDENT Bernard Cohen FOURTH RESPONDENT Shifa Li
FILE NUMBER(S):	40253 of 2006
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- application to re-open case after dismissal or discontinuance - operation of Supreme Court Rules Pt 15 r 9. Practice and Procedure:- whether fresh proceedings can be commenced.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 96, s 101 Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 6 r 1, Pt 11 r 6, Pt 15 r 9 Supreme Court Rules 1970 Pt 13 r 5
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529; Bayne v Blake (No 3) (1909) 9 CLR 366; Charles Fortet Investments Ltd v Amanda [1964] 1 Ch 240; Derry v Peek (1889) 14 App Cas 337; DJL v Central Authority (2000) 201 CLR 226; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143; Jacobsen & Anor v Ballina Shire Council [2006] NSWLEC 114; Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 528; Max Sgammotta Architects v South Sydney City Council [1996] NSWLEC 144; Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438; Woollahra Municipal Council v Ferella (2005) 141 LGERA 166
DATES OF HEARING:	24 May 2007 25 May 2007 (submissions) 5 June 2007 (submissions) 29 June 2007 5 July 2007 (submissions)
DATE OF JUDGMENT:	4 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr B Stavropoulos (solicitor) SOLICITOR Stavropoulos Solicitors FIRST and THIRD RESPONDENTS Ms S Kluss SOLICITOR Hancock Alldis & Roskov SECOND RESPONDENT Mr M Fraser SOLICITOR Home Wilkinson Lowry FOURTH RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 September 2007

40253 of 2006 Paul Michales v Dimoski and Ors

JUDGMENT

1 Her Honour: The Applicant, who lives at 8 Ruby Street, Hurstville, has filed a Notice of Motion dated 11 May 2007 seeking various declarations and orders in relation to a development at 10 Ruby Street, Hurstville pursuant to development consent no 200400066 granted by the Second Respondent (the Council) to the First Respondent.

2 Both the First Respondent and the Council have filed Notices of Motion seeking orders for dismissal of the Applicant’s Notice of Motion (the 2007 NOM) because they submit it is an attempt, inter alia, to overturn a perfected judgment. Alternatively, if the Notice of Motion is treated as the commencement of fresh proceedings these should be summarily dismissed on various grounds. The Respondents’ Notices of Motion are before me in this hearing. The Applicant represented himself at the hearing. There was no appearance by the Third or Fourth Respondents. Subsequent to the hearing the Applicant’s solicitor filed a Notice of Appearance and I gave him leave to file and rely on written submissions.

Litigation history relied on by the Respondents

3 The history of these and previous Class 4 proceedings commenced in 2004 is set out in the affidavit of Mr Connell, solicitor for the Council, dated 26 April 2007, relied on by the Council. The 2004 Class 4 application dated 11 June 2004 sought, inter alia, a declaration that development consent no 200400066 granted by the Council to the First Respondent for development at 10 Ruby Street, Hurstville, approved at a Council meeting on 12 May 2004, was void and of no effect, and also sought consequential orders for demolition. By an amended application dated 28 June 2004 the First Respondent was joined. On or about 22 July 2004 a s 96 modification application was made by the First Respondent and this was approved by the Council on 3 August 2004. By consent the 2004 proceedings were dismissed on 6 August 2004 with each party paying its own costs.

4 The 2006 proceedings were commenced on 30 March 2006 and an amended application was filed on 9 June 2006. The Applicant was legally represented at that time. The amended application sought declarations that:

(i) numerous development consent conditions were breached;

(ii) the details of the plans lodged with the application for development were misleading because of incorrect NRL [natural ground level] figures;

(iii) the compliance and/or construction certificates did not ensure the works were in accordance with the development consent;

(iv) through various failures, the Council and Third Respondent caused damage, loss of privacy and enjoyment and reduction in value to the property at 8 Ruby Street;

(v) a masonry retaining wall was constructed without consent.

5 Various orders were also sought such as an order requiring the relocation of a kitchen exhaust fan, the relocation of the hot water system, that a gap below a side boundary fence be filled, a masonry retaining wall between the properties be removed, the removal of windows, a reduction in height of the development at 10 Ruby Street Hurstville, and ground and first floor levels be lowered by 500mm and other costs to compensate for repair works the Applicant had to undertake and damages for loss of value to his property at 8 Ruby Street Hurstville. The Council’s solicitor wrote to the Applicant’s solicitor on 16 June 2006 stating that, inter alia, no valid claim against the Council was disclosed by the pleadings. By consent, orders that the Applicant pay the costs of the Respondents as agreed or assessed and dismissing the application were made on 4 August 2006. That order was perfected on 4 August 2006. A note after the orders stated that a notice of discontinuance was to be filed. A notice of discontinuance was filed by the Applicant’s solicitor on 20 September 2006. The Court registry noted the matter completed in October 2006. The Applicant has now filed the 2007 NOM.

6 An affidavit of Sash Dimoski, the First Respondent, dated 1 May 2007, was read, excluding par 6. The house at 10 Ruby Street was built pursuant to development consent no 200400066. The First Respondent sold the house to the Fourth Respondent on or about 5 April 2006. I note that the Third Respondent was the private certifier for the development. The affidavit also sets out the history of the two proceedings, similar to that identified by Mr Connell, and attached correspondence between the Council and the Applicant during 2004 and 2005 concerning the development at 10 Ruby Street.

7 On 20 January 2005, the Applicant wrote to the Council stating that the Council had sent to all adjoining neighbours a misleading development proposal showing false NRL (meaning natural ground levels) and that the Council "had been made aware of these false measurements prior to the ground floor slab being laid”. The letter requested the Council to respond to a series of questions such as "[w]hy has the development been allowed to go ahead in its current form" and "[w]hy have the neighbours not been informed of the error in the development?". The Council responded by letter dated 1 March 2005, stating that the proposal was not misleading and Council did not have a responsibility to check survey plans. The letter also stated that the development was proceeding in accordance with the approval as amended.

Applicant’s Notice of Motion

8 In order to understand the arguments it is necessary to set out in some detail the Applicant’s 2007 NOM, which the Respondents want dismissed. The declarations sought by the Applicant are as follows

1.1 The development application for property 10 Ruby street, Hurstville being in Lot 6 DP11797 architectural plans by the first respondent, was prepared by intentional fraudulent misrepresentation of the NRL natural ground level, in that the front north-east corner of the development N. R. L is 58.0 to 58.11 as stated on two independent surveys and that the architectural plans falsely state this point as 58.30.
1.2 The second respondent in assessing its application failed to inspect the surveyor plans it had before them diligently.
1.3 The third respondent was acting on a development consent that was flawed because the architectural technical data it had was flawed. The third respondent was aware the architectural technical data was flawed by way of the survey from the first respondent.
1.4 The second respondent notified residents of architectural plans not consistent with site conditions. Breach of section 79 of the environmental planning and assessment act.
1.5 The second and third respondent is and was aware of the intentional fraudulent misrepresentation of the architectural plans by way of the survey provided to them by the first respondent before development started and following that by a second survey provided to them by the applicant in these proceedings.
1.6 The consent authority acted upon architectural plans that did not correlate to the true contours of the site as is required under the act and as is confirmed by two independent specialist surveys.
1.7 The flawed architectural plans from the second respondent did not allow the neighbours and the applicant the opportunity to make submissions relevant to the site conditions during the submission period. A relevant submission by way of objection could not be made nor could the relevant grounds of the objection be submitted. See Section 79(5)
1.8 The Development assessment committee, including the Mayor and councillors, discussed architectural plans not relevant to the site and the report to the committee was incorrect, as it did not state that the architectural plans and N.R.L. was incorrect. And therefore does not comply with the technical requirements of the Hurstville Council code for single dwelling houses
1.9 The statement of environmental effects is invalid, as the architectural plans N.R.L do not correlate to the site conditions and is irrelevant in most points.
1.103 The impact of the development could not be accurately assessed by all affected by the development as the architectural plans it had before them was flawed.
1.11 The respondents notice of motion dismissed.

9 The orders 2.1 to 2.10 sought by the Applicant reflect these and other issues.

10 The major grounds raised in the declarations sought set out at par 8 are the alleged failure by the First Respondent to provide to the Council architectural plans based on accurate ground levels at 10 Ruby Street. This action is alleged to be fraudulent and it is also alleged that the Council and the Third Respondent (the certifier) were aware of this fraud. The fraud therefore infected the subsequent notification by the Council of the development to the neighbours including the Applicant because they were not made aware of the nature of the proposed development.

Respondents’ submissions on dismissal of the 2007 NOM

11 The First Respondent adopted the Council’s arguments and made brief submissions only. The orders sought in the 2007 NOM are challenged on various grounds as follows:

(i) Orders/declarations which the Court simply will not make under any circumstances (and I note the Court has no power to make). The orders/declarations which fall into this category are (Applicant’s numbering from the 2007 NOM):

2.1 The architectural plans, be declared invalid
2.2 The report to the Development Assessment Committee be declared invalid
2.3 (first 2.3) The Development Assessment Committee meeting in relation to this development be declared invalid
2.6 (second 2.6) The paying of Hurstville Council rates by the applicant be suspended and a new council that follows all laws relating to its existence as a council be appointed by the court for the applicant.

(ii) Orders/declarations which have no utility. The orders/declarations which fall into this category are (Applicant’s numbering from the 2007 NOM):

2.1 The architectural plans, be declared invalid
2.2 The report to the Development Assessment Committee be declared invalid
2.3 (first 2.3) The Development Assessment Committee meeting in relation to this development be declared invalid
2.6 (second 2.6) The paying of Hurstville Council rates by the applicant be suspended and a new council that follows all laws relating to its existence as a council be appointed by the court for the applicant.
2.10 If it is not complying for the court to deal with the said development and the three respondents as it sees fit (the Council also submits this is too vague).

(iii) Orders/declarations which in substance are the same as raised in previous proceedings and therefore the Court is functus officio. The orders/declarations which fall into this category are (Applicant’s numbering from the 2007 NOM):

2.3 (second 2.3) The development consent no 20040066, be declared invalid.
2.7 The costs order ordered by the court on the 4th of August 2006 be withdrawn
2.8 the notice of discontinuance lodged by the applicant's solicitor on the 20 September 2006 be withdrawn
2.9 For the court to decide whether the development at 10 Ruby Street is a complying development within the meaning of the Environmental planning and assessment act and its regulations, the local government act and its regulations, and the Hurstville city council code for single dwelling houses. And any other acts or codes or standards.
If it is complying then for the court to order the following 4 Impact adjustments within 28 days in order for the occupants at 8 Ruby Street to enjoy the peace and privacy and views it enjoyed before the development at 10 Ruby Street took place.
2.9(i) An order for the removal or relocation of the kitchen exhaust fan to Australian Standards 1668.2 part 5.
2.9(ii) The relocation of the outdoor Hot water system to below the fence line.
2.9(iii) An order for the removal of the retaining wall along the northeast boundary back to original natural ground level.
2.9(iv) An order for the removal of the increase in the level of the ground along the northeast boundary back to original natural ground level.
2.9(v) An order for the windows at the rear of 10 Ruby Street adjacent to the northeast boundary between the said properties, which unreasonably overlook the applicant’s backyard, be eliminated.
2.10 If it is not complying for the court to deal with the said development and the three respondents as it sees fit.

(iv) Orders/declarations which are statute barred because of the operation of s 101 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The orders/declarations which fall into this category are (Applicant’s numbering from the 2007 NOM):

2.3 ( second 2.3 ) The development consent no 20040066 be declared invalid
2.4 The two section 96 modifications lodged as a result of the Land and environment court appeal no 40703/2004 be declared invalid.
2.9 see above

(v) As a perfected judgment was entered on 4 August 2006, Pt 15 r 9 of the Land and Environment Court Rules 1996 (the Court Rules) does not apply and there is no basis on which these issues can be entertained. The orders/declarations which fall into this category are

(Applicant’s numbering from the 2007 NOM):
2.7 The costs ordered by the court on the 4th of August 2006 be withdrawn.
2.8 The notice of discontinuance lodged by the applicants solicitor on the 20 September 2006 be withdrawn.

12 The First Respondent also argued that order 2.5, the occupation certificate be declared invalid, and 2.6 (first 2.6) the final occupation certificate be declared invalid, were beyond power in these proceedings.

Applicant’s evidence and submissions

13 At the hearing the Applicant was unrepresented. He sought to rely on extensive evidence and written submissions and relied on voluminous material contained in a bundle of documents described as a Statement of Issues filed in Court. The issues go beyond those identified in the declarations in the 2007 NOM set out above. Additional issues identified include amenity issues said to result from the development at 10 Ruby Street, Hurstville, and are matters that fall outside the issues before me in these motions.

14 An affidavit of the Applicant sworn 23 May 2006 stated that he lodged an Freedom of Information (FOI) request with the Council in April 2006, which was annexed to his affidavit. The application sought, inter alia, "[a]ny evidence of independent surveys or surveyors report in respect of 10 Ruby Street, Hurstville". An affidavit sworn 13 March 2007 by the Applicant was also relied on in part. The Applicant stated that when he received a response to his FOI request, no survey plan was provided. On 22 February 2007 he attended a meeting with the Council’s administration manager and a survey report of PT Wright Registered Surveyor was provided. He states that the First Respondent lodged that survey in support of development consent no 200400066. Part of an affidavit sworn by the Applicant on 26 April 2007 was also sought to be relied on. It was agreed with the Applicant that for the purposes of the hearing of the 2007 NOM, the substantive grounds which the Applicant wished to rely on were that the development consent no 20040066 was obtained by fraud, the First Respondent mislead the Council into granting the development consent and there was a breach of natural justice by the Council in relation to the Applicant. It did not appear from the parties’ submissions at that stage that I needed to rule on these issues substantively and consequently the affidavit evidence did not need to be formally read. Nor was any evidence contesting the events identified in the affidavits tendered by the Respondents. I have some difficulty deciding how I should consider the Applicant’s evidence given later submissions filed by his solicitor.

15 The later submissions made by the Applicant’s solicitor, who was instructed after the hearing was completed and was therefore not present, assume that the affidavit evidence was relied on. His submissions refer to the affidavit of 23 March 2007, which I note is the filing date of the affidavit sworn 13 March 2007, referred to above. He argued that as this evidence was uncontradicted it should be accepted. He further stated that the Court should infer there had been fraud in relation to the provision of inaccurate architectural plans to the Council, and the fraudulent withholding of a survey from the Applicant by the Council, inter alia.

A. Finding on whether some orders can be made

16 Categories in par 11 (i) and (ii) identified above by the Respondents overlap. I agree that those orders have no utility, and the Court has no power to make them. Orders 2.1, 2.2, 2.3 (first), 2.5/2.6 (first), 2.6 (second) and 2.10 cannot be made whether in this motion or in fresh proceedings if the motion is so regarded.

17 I will consider the arguments raised in par 11(iii), (iv) and (v) in more detail for the remaining orders. More than one ground applies to some of the orders. Whether fresh proceedings are able to be commenced raises slightly different issues to those that arise if the motion is an application to reopen existing proceedings. I will consider the argument relevant to the reopening of these proceedings first.

B. Reopening proceedings where perfected judgment (par 11(v))
Parties’ arguments

18 While in written submissions the argument that a perfected judgment cannot be reopened was applied to only those sections identified above at par 11(v), the Council made an oral submission that this argument applies generally to the whole of the 2007 NOM because the Applicant is seeking to reopen proceedings which have been concluded and the orders doing so have been perfected. Such an argument clearly does apply to the whole of the Applicant’s motion that remains for consideration.

19 The Respondents argued that the orders of 4 August 2006 have been perfected so that Pt 15 r 9(b) of the Court Rules cannot apply. No other section of Pt 15 r 9 applies in the circumstances of this case.

20 In his written submissions filed after the hearing at which he was not present, the Applicant’s solicitor argued that Pt 15 r 9 (c) of the Court Rules, the order was obtained by fraud, and (e), if the order does not reflect the intention of the Court, did apply. The Court was asked to infer that the Council had fraudulently withheld from the Applicant a survey report of PT Wright which agreed with a survey obtained by the Applicant from another surveyor. These surveys, it was said, proved that the architectural plans submitted by the First Respondent as part of the development application contained incorrect (and deliberately false) natural ground levels. The PT Wright survey was not produced by the Council until the Applicant attended the Council’s chambers in February 2007. This inference could be drawn on the basis of the circumstances identified in the Applicant’s affidavit sworn 23 March 2007 (as above, this is the filing date of the affidavit sworn 13 March 2007). This evidence was said to be uncontroverted. Numerous cases were referred to in the written submissions which emphasised that fraud was a basis for setting aside judgments, for example Derry v Peek (1889) 14 App Cas 337, per Lord Herschell.

21 Further, in relation to Pt 15 r 9(e), the Applicant’s solicitor argued the order for dismissal did not reflect the Court’s intention because the Applicant had suffered a breach of natural justice of such magnitude that the order could not reflect the intention of the Court. Where there is the conscious or unconscious failure of a public authority to produce a document in its possession and control which is vital to the case then any court order which allowed that circumstance to continue could not be said to reflect the Court’s intention.

22 The Applicant’s solicitor also argued that the Court has inherent power to set aside a void or voidable judgment irrespective of any specific power given to it by statute. There had been a fundamental breach of procedural rules by the Council resulting in unfairness.

Finding
(i) Identifying the causes of action

23 As far as I can ascertain, there are three causes of action identified in the Applicant’s Notice of Motion. Firstly, an order is sought that development consent no 200400066 is invalid. This order was sought in the 2004 proceedings. It was also implicitly, if not literally, an order sought in the 2006 proceedings (see par 4 and 5 above). The grounds of challenge now relied on are fraud evidenced by the preparation of misleading architectural plans, the First Respondent misleading the Council into granting development consent based on that fraud and breach of natural justice by the Council because of the notification of fraudulent plans.

24 One of the grounds of challenge raised in the 2006 proceedings was that the plans lodged by the First Respondent were inaccurate in relation to NRL figures. That issue is also raised in correspondence in 2004 and 2005 between the Applicant and the Council attached to the First Respondent’s affidavit referred to above at par 7. The grounds raised in the 2007 NOM are similar except that the inaccuracy in the plans is now argued to be the result of fraud, a more serious allegation.

25 Secondly, failure to comply with the development consent conditions was raised in the original 2006 proceedings and also by implication in orders 2.9(i), (ii), (iv) and (v), which mirror orders sought in the 2006 proceedings (see amended Class 4 application filed 9 June 2006). This ground is pleaded differently in the 2007 NOM from the pleadings in the 2006 proceedings, as requiring the Court to determine if the development is complying development, but I infer the issue sought to be raised is that development consent conditions were not complied with. Alternatively, the Applicant may seek to argue that development consent is required.

26 Thirdly, there may be a cause of action based on the failure to obtain development consent for a retaining wall (declaration 1.5 in the 2006 proceedings, see amended Class 4 application filed 9 June 2006). This order appears at order 2.9(iii) in the 2007 NOM, although is differently pleaded as identified above.

27 On reviewing all the pleadings in the 2004 and original 2006 proceedings it is clear several of the causes of action raised in the 2007 NOM have been raised in some form of pleading previously. The order for invalidity of development consent has been sought before. What is new are the three grounds of challenge based on fraud identified in the declarations and in argument.

(ii) Part 15 rule 9

28 I should firstly consider whether Pt 15 r 9 applies in the circumstances of this matter. Part 15 r 9 provides:

9 Setting aside, varying order
The Court, may, on terms, set aside or vary an order in any of the following cases:

(a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order,
(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4,
(c) if the order was obtained by fraud,
(d) if the order is interlocutory,
(e) if the order does not reflect the intention of the Court,
(f) if the party in whose favour the order was made consents.

29 The 2007 NOM was filed after the signing and filing of the minute of order dated 4 August 2006, so that Pt 15 r 9(b) does not apply. In relation to r 9(c), fraud, the evidence from the Applicant concerning the failure to provide the survey report is not contradicted directly by the Respondents as, not surprisingly, their arguments focussed on the fact that a perfected judgment had been filed, inter alia. Accepting on the Applicant’s affidavit evidence to the extent this was referred to in Court, although not formally read, that there has been a failure to provide to the Applicant the relevant survey report by the Council, it does not follow that I should infer there has been fraud on the part of any party as the Applicant’s solicitor argued. I should note that proving fraud on the civil onus of proof requires more than an inference arising because a document was not provided by the Council in a timely way. As noted in Ritchie’s Uniform Civil Procedure NSW at [35.15.20]:

Mere suspicion of fraud is insufficient and the party seeking to set aside the judgment impugned must clearly establish the fraud alleged: Birch v Birch [1902] P 130 at 136, 139; McHarg v Woods Radio Pty Ltd [1948] VLR 496; Ronald v Harper [1913] VLR 311; and must show that the successful party was itself implicated in the fraudulent conduct: Ronald v Harper [1913] VLR 311 at 318.

There are other possible explanations for the events relied on by the Applicant.

30 Further, given that the order dismissing the proceedings was made at the mutual request of the parties, it is also debatable whether any argument that consent orders were obtained by fraud from the Court can arise. The Court orders were based on the parties’ mutual consent only rather than in reliance on any factual circumstance.

31 In relation to r 9(e), under which an order may be varied or set aside if it does not reflect the Court's intention, the difficulty in accepting the Applicant’s solicitor’s argument on this matter is that the Court’s orders for dismissal in the 2006 proceedings (and the 2004 proceedings) were made by the parties by consent. It is difficult to argue in these circumstances that the orders do not reflect the Court’s intention. I do not therefore consider that Pt 15 r 9 applies to enable these proceedings to be reopened.

(iii) Inherent power to reopen proceedings?

32 Is there otherwise an inherent power to allow the reopening of proceedings which are completed? In Bailey v Marinoff (1971) 125 CLR 529, Barwick CJ held at 530:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a 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. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

33 In DJL v The Central Authority (2000) 201 CLR 226, the High Court held that the Family Court of Australia did not have any inherent power to set aside perfected judgments. That finding was applied in this Court in Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 at [11] – [13] to the effect that only exceptions authorised by statute could apply to enable a perfected judgment to be set aside. Relevant authorities were considered by Lloyd J in Woollahra Municipal Council v Ferella (2005) 141 LGERA 166. His Honour stated that where a judgment has been perfected the Court cannot generally review or alter the judgment, relying on the well known dictum of Barwick CJ in Bailey v Marinoff, see [4] – [6]. His Honour considered numerous other authorities and concluded that this Court does have inherent jurisdiction to set aside perfected orders as identified in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 per Sheller JA at 27 (a decision made before DJL). In Ferella, Lloyd J stated at [14]:

In Logwon , Sheller JA helpfully referred to a judgment of Brennan J in Permanent Trustee Co (Canberra) Limited v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Brennan J sitting as the Supreme Court of the Australian Capital Territory, gathered the exceptions to the general rule; that is, the general rule described in Bailey v Marinoff into three classes. First , those which are founded upon the inherent jurisdiction of the Court to ensure that its procedures do not effect injustice; second , those which are authorised by statute; and third , those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable.

34 In Jacobsen & Anor v Ballina Shire Council [2006] NSWLEC 114, in which it was sought to reopen proceedings discontinued by consent, the matter was dealt with on the basis that the Court did have inherent powers to set aside a judgment.

35 If such discretion exists where the circumstances referred to in Pt 15 r 9 do not apply and the Court’s order has been perfected, it should be exercised because the interests of justice require it. Relevant considerations were identified by the Court of Appeal in Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 by Kirby P at 153 (Priestley and Handley JJA concurring). His Honour concluded at 154 that the Court of Appeal had “limited, special and wholly exceptional jurisdiction” to re-open perfected orders. He declined to exercise that jurisdiction in that case for the reasons set out at 154 -156. The second reason identified was the need to take into account the principle of finality of litigation. Kirby P also referred to the necessity for parties to be bound by their conduct of the proceedings.

36 The Applicant, Mr Michales, was not legally represented at the hearing, but was represented subsequently by a solicitor. It was agreed for the purposes of the hearing of the motion that Mr Michales wished to challenge development consent no 200400066 on the basis that it was obtained by fraud in relation to incorrect architectural plans, that the First Respondent mislead the Council into granting the development consent because of that fraud, and there was a breach of natural justice in relation to the Applicant. Mr Michales argued that the matters he raised had not been determined by the Court in these or the previous proceedings and were serious issues because the development consent granted and now implemented impacted on his family on a daily basis.

37 The 2007 NOM is effectively the third attempt to obtain a declaration of invalidity of development consent no 200400066 (see order 2.3 (second)). The 2004 Class 4 proceedings sought the same order. The 2006 proceedings did not expressly seek such an order but some of the declarations sought could only arise if such a declaration were made. The grounds of challenge identified in the 2006 proceedings included that incorrect natural ground levels were identified in the plans lodged as part of the development consent being challenged.

38 In bringing this motion the Applicant raises new grounds of challenge based on an allegation of fraud relying in part on new evidence which he did not have when his solicitor consented to dismissal of the proceedings in August 2006. The evidence of the parties discloses that the development consent under challenge was granted on or about 12 May 2004 and has been acted upon. These proceedings commenced in April 2006 and were dismissed by consent on 4 August 2006. The FOI request to the Council for the survey report was dated April 2006. Documents in response were supplied on 21 April 2006. No survey report was provided to the Applicant until February 2007 by which time the 2006 proceedings had been dismissed in August 2006 and discontinued in September 2006.

39 In light of the need for finality of litigation and the Court Rules which operate to ensure this, I do not consider that there are exceptional circumstances which mean that it is in the interests of justice that I should allow the Applicant’s motion to proceed as a reopening of these proceedings. As identified above most of the orders sought are not able to be granted by the Court (par 16) or have already been raised in previous litigation which has been finalised (par 23 – 27). I have not specifically commented on the declarations sought by the Applicant but these are not generally in a form that is appropriate for the Court to make. Accordingly, the 2007 NOM must be dismissed.

(iv) Part 11 rule 6

40 The application of another Court rule also suggests that the proceedings cannot be reopened. There are no specific Court rules dealing with dismissal of proceedings but such an order is intended to be final and to bring proceedings to an end. In relation to the Notice of Discontinuance filed by the Applicant’s solicitor, Pt 11 r 6 of the Court Rules states:

A discontinuance under this Part as to any claim is not, subject to the terms of any consent to the discontinuance, a defence to further proceedings on the same claim, or any claim which is substantially the same.

41 The Council relied on Max Sgammotta Architects v South Sydney City Council [1996] NSWLEC 144 per Stein J where his Honour held that Pt 11 r 6 does not permit the resurrection for further hearing of proceedings which have been formally discontinued. The Applicant cannot reopen these proceedings in light of Pt 11 r 6 of the Court Rules.

C. Commencement of fresh proceedings - issue estoppel (par 11(iii))

42 The Respondents argued that the 2007 NOM, if considered as the commencement of fresh proceedings, should be summarily dismissed.

43 I have already noted that certain orders identified in par 16 are not orders the Applicant can seek in proceedings of this kind under the EP&A Act. Orders 2.7 (costs order withdrawn) and 2.8 (Notice of Discontinuance withdrawn) could not arise in fresh proceedings. That leaves for consideration orders 2.3 (second) that the development consent be declared invalid and 2.4, that two [sic] s 96 modifications be declared invalid, which could theoretically be included in new proceedings if available. It is unclear to me on what legal basis orders 2.5 (occupation certificate invalid) and the first 2.6 (occupation certificate invalid) (see par 12) could arise in new proceedings if what is sought is a declaration of the invalidity of a development consent. The effect of the order sought in 2.9 is also unclear but it appears that it raises causes of action pursued in previous proceedings.

Respondents’ submissions

44 The Respondents argued the Court is functus officio and the principle of issue estoppel applies. “Anshun estoppel” (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) was also relied on as that arises in circumstances where a party “prosecutes a cause of action to its conclusion by judgment or settlement” and later “seeks to prosecute against the same defendant another cause of action which should reasonably have been prosecuted in the first proceedings”, see Palmer J in Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431 at [36].

Applicant’s submissions

45 The Applicant argued that as there had been no hearing on the issue of whether incorrect architectural plans were relied on fraudulently by the First Respondent, which infected the decision-making of the Council and the Third Respondent as raised in his 2007 Notice of Motion, the Court could not be functus officio. As the relevant survey report was only obtained from the Council by the Applicant in February 2007 and was significant new evidence, it was not a matter that could have been raised earlier in any proceedings. The Applicant’s solicitor’s written submissions referred to above at par 20 in relation to the 2007 NOM stated the same considerations in relation to fraud arise if fresh proceedings are being considered as apply to the reopening of proceedings.

Finding

46 Whether I should, or am now in a position to, exercise my discretion to permanently stay new proceedings based on the three grounds based on fraud requires the weighing up of several issues.

Issue estoppel/Anshun estoppel

47 Finality of proceedings is an important consideration giving rise to the principle of issue estoppel. Where relief sought in new proceedings is identical to that in finalised proceedings, principle suggests that this motion if treated as new proceedings cannot proceed because matters raised therein have already been decided against the plaintiff in previous proceedings between the parties, Bayne v Blake (No 3) (1909) 9 CLR 366. According to Ritchie at [14.28.17]:

Abuse of process – issue estoppel Proceedings will also be regarded as abuse of process to the extent that they involve an attempt to relitigate particular issues that were determined either explicitly or necessarily, in earlier judicial proceedings (including proceedings determined by consent). Such a determination gives rise to “issue estoppel”: Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 …

48 The Respondents also relied on Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd) which is the principle that:

. . .parties must bring forward all material matters for determination in the proceedings, meaning that the parties cannot raise in subsequent proceedings matters that could, and should reasonably, have been raised in earlier proceedings. The Anshun principle applies even though the matter was not essential to the determination of the earlier proceedings, and consequently is not barred by either the doctrine of res judicata or issue estoppel in the strict sense. It can apply where the earlier proceedings ended in compromise rather than formal judgment: Johnson v Gore Wood and Co (a firm) , above. Further, a claim that could have been raised in earlier (concluded) proceedings and which, if allowed, would lead to inconsistent judgments, may be barred under this principle: Port of Melbourne Authority v Anshun . . .

(Ritchie at [14.28.20])

49 Ritchie also states at [143,515] that the doctrine does not apply where the court has never gone into the merits: see Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12. It is less clear that Anshun estoppel applies in this case where there has been no hearing of the issues by the Court, and the evidence now relied on only came to light after proceedings were discontinued. I note the decision of Palmer J in Pigmy does refer to its application in the context of the settlement of proceedings but not if proceedings are discontinued.

50 The grounds of challenge raised in previous proceedings are identified above at par 23 - 27. The Applicant is prevented on the basis of issue estoppel from raising matters again which were the subject of finalised proceedings. That would usually include any attempt to institute proceedings seeking the same relief, in this case invalidity of development consent no 200400066. Given the incomplete state of the evidence and argument on the fraud grounds I do not consider I should rule out finally in this judgment the possibility of any further proceedings based on that allegation. As already noted at par 29, proving fraud requires more than asking the Court to infer it because a survey was not provided by the Council in a timely manner.

Statute barred by s 101 EP&A Act (par 11(iv))

51 The Respondents argued that as the relevant notices referred to in s 101 were published for development consent no 200400066 on 17 June 2004 and for the s 96 modification of the consent on 21 October 2004, certain orders are statute barred. The Applicant’s claims do not fall into any of the very limited exceptions to the operation of s 101. The 2006 proceedings, now finalised, were also commenced after the time period specified in s 101 (three months from the date of notification of development consent).

52 The Applicant argued that the Hickman principle and further principles identified by the Court of Appeal in Maitland City Council v Anambah Homes Pty Ltd (2005) 147 LGERA 234 and Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 apply so that s 101 does not act as a bar. That is the extent of the submissions from the Applicant’s solicitor on this complex issue.

53 It is difficult to rule finally on the application of s 101 given the state of the evidence and argument on issues that generally require far greater consideration in the context of a final hearing. I note that in Lesnewski the Court of Appeal held that a breach of natural justice being an essential ingredient in the legislative scheme under the EP&A Act was a basis for lifting the time bar under s 101. Whether an allegation of fraud as the basis for invalidity of a development consent overcomes s 101 requires further argument before determination by a judge.

Summary dismissal

54 In a further general submission the Respondents argued there should be an order for summary dismissal of the proceedings under Pt 13 r 5 of the Supreme Court Rules 1970 which applies by virtue of Pt 6 r 1 of the Court Rules. The Council argued that no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and/or are an abuse of court process. The proceedings are doomed to failure, Charles Fortet Investments Ltd v Amanda [1964] 1 Ch 240. It is difficult on the evidence before me to finally conclude that there are no reasonable prospects of success, leaving aside the procedural issues raised against the Applicant’s case.

55 The Applicant has commenced two previous proceedings seeking the same or similar orders. New proceedings would be the third attempt to litigate the invalidity of development consent no 200400066, albeit on new grounds alleging fraud. Given the state of argument on substantive issues raised concerning fraud (about which I make no finding) and a breach of natural justice based on that fraud, I will not rule finally in this judgment that fresh proceedings based on these grounds cannot be instituted. If fresh proceedings are ultimately instituted which seek appropriate declarations and orders, unlike the 2007 NOM which raises a number of inappropriate declarations and orders, some of the issues raised by the Respondents and referred to in this judgment may well be ventilated again. This judgment does not preclude that course. The Applicant and his legal advisors need to weigh carefully whether they consider they can discharge the onus of proving the allegation of fraud if fresh proceedings are commenced.

56 Costs in Class 4 proceedings are awarded under s 69 of the Land and Environment Court Act 1979. In Class 4 proceedings costs are generally awarded on the basis that these should “follow the event”. I have not heard argument from the parties on costs and will provide the opportunity to do so before finalising the orders.