North Sydney Council v O'Hara
[2000] NSWLEC 119
•06/07/2000
Land and Environment Court
of New South Wales
CITATION: North Sydney Council v O'Hara [2000] NSWLEC 119 PARTIES: APPLICANT
RESPONDENT
North Sydney Council
O'HaraFILE NUMBER(S): 40119B of 1999 CORAM: Cowdroy J KEY ISSUES: Costs :- notice of motion for costs - notice of motion for stay of Court's orders. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 1996 Pt 15 r 9, Pt 12 r 1CASES CITED: Autodesk Incorporated and Anor v Dyerson and Ors No 2 (1992-1993) 176 CLR 300;
Bailey v Marinoff (1971) 125 CLR 529DATES OF HEARING: 7/6/00 EX TEMPORE
JUDGMENT DATE :06/07/2000 LEGAL REPRESENTATIVES:
APPLICANT
Mr P ClaySOLICITORS
Mallesons Stephen JaquesRESPONDENT
SOLICITORS
In person
n/a
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40119B of 1999
CORAM: Cowdroy J
DECISION DATE: 7 June 2000
Applicant
Respondent
1. Before the Court today are two notices of motion each instituted by the respondent Ms O'Hara. They arise following a judgment delivered by this Court on 31 March 2000.
2. The first notice of motion relates to the question of costs of these proceedings. In the judgment which was delivered on 29 November 1999 the Court made no order as to costs but made a direction that any application for costs of that hearing and reserved costs be stood over until the work referred to in [par] 2 of those orders had been completed.
3. In the judgment of 29 November 1999 the Court provided a period of time, namely four months, to allow the respondent to carry out the work which was the subject of an order made by Commissioner Bly on 30 September 1997. That work was not carried out in the requisite time and the matter came back before the Court on 31 March 2000 and culminated in the judgment of the Court of that day.
4. The Court ordered that the question of costs be stood over to a date to be fixed upon application to the registrar. Pursuant to that order the council has made application to the Court for costs and a hearing date for that matter has been fixed for Friday 9 June.
5. Ms O'Hara seeks to have that issue postponed pending completion of the work. Ms O'Hara has explained that she is not in good health and a medical certificate of Dr Michael Mason has been tendered in evidence. That discloses that the respondent suffers from two illnesses in respect of which additional stress would cause her further anxiety. Unfortunately, due to some inability of Ms O'Hara to attend Court at the callover, the date was fixed for the hearing in her absence.
6. I am satisfied that the question of costs is one which can be agitated at a later date without any prejudice to the council and possibly to the benefit of Ms O'Hara. It is not essential that the question of costs be determined on Friday. Further, the work the subject of the orders has still to be performed and I consider that Ms O'Hara would be placed in a more advantageous position if she were able to direct her energies in that direction and assisting in the completion of that work rather than being troubled by yet another hearing before this Court on the question of costs.
7. Ms O'Hara is self represented. She does not know what is involved in a hearing on costs. I think that in fairness to Ms O'Hara she is entitled to be told by way of an affidavit precisely what the council seeks for its costs so that she may in response prepare for any such hearing.
8. Bearing in mind those considerations the Court:-
1. Grants the application of Ms O'Hara to vacate the hearing date for 9 June 2000 in respect of costs.
2. Orders that the matter of costs be re-listed before the Registrar to obtain a further hearing date when the work the subject of these proceedings has been completed.
3. Directs that within 7 days of the date of the callover Ms O’Hara is to be served with an affidavit setting out the basis of the council’s claim and the details thereof to enable her not less than 14 days to consider and respond to it.
4. The costs of this motion and any costs thrown away by the adjournment of the costs hearing are to be included in the final hearing on costs.
9. A second notice of motion has been filed by Ms O'Hara seeking a stay of the Court orders contained in the judgment of 31 March 2000. In her affidavit in support sworn on 16 May 2000 Ms O'Hara deposes that she has undertaken substantial work and other arrangements have been progressed. She also raises the fact that a summons has been issued in the Court of Appeal arising out of the judgment. The Court has also been provided with voluminous evidence contained in exercise books detailing the extent of the research which Ms O'Hara has undertaken over many months.
10. It is not clear upon what basis the application has been filed. Pt 15 r 9(b) of the Land and Environment Court Rules 1996 (“the Rules”) permits a party to move the Court to set aside or vary an order if the notice of motion seeking such order is filed before signing and filing of the minute of the order of the Court pursuant to Pt 15 r 4 of the Rules.
11. This is not an application to vary an order but rather an application for a stay. Pt 12 r 1 of the Rules provides that at any stage of any proceedings the Court may on terms order the proceedings be stayed. However this rule relates to proceedings which are current and not those which have been completed. In this case the orders have already been taken out and there is no provision in the rules which enables an application of the kind that has been filed to now be brought before the Court.
12. The Court is therefore powerless to grant the orders sought unless it drew on an inherent power to order a stay of the proceedings. The High Court of Australia in Bailey v Marinoff (1971) 125 CLR 529 has held that a Court has no inherent power to set aside a final judgment once it has been passed and entered and perfected. Further, it is questionable whether the Court has any inherent power to grant a stay. The only Court that could grant such relief would be the New South Wales Court of Appeal.
13. Even if power existed to stay the orders the question is whether there is anything which has been advanced by Ms O'Hara to warrant any stay of the Court's order. The Court has made its decision. In Autodesk Incorporated and Anor v Dyerson and Ors No 2 (1992-1993) 176 CLR 300, the High Court of Australia considered the circumstances in which a hearing should be reopened. The Chief Justice at the time, that is Justice Mason, said at 302:-
These examples 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 a good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law.
14. Assuming that the application now before the Court is in the nature of a reopening application for the purpose of granting a stay, the Court is entitled to consider the evidence that has been adduced by the respondent in support of her application. For this purpose the Court has considered the material advanced by Ms O'Hara. The Court has also considered the chronology of the events which has preceded this application.
15. In the Court's view nothing has been advanced of any kind which would warrant any variation of the order already made, that is by way of reopening of the orders of 31 March, nor is there any ground to warrant a stay of proceedings. If Ms O'Hara has advanced in her preparations she may well be able to have the work completed before council is called upon or is in a position to carry out that work. If not, then the orders of the Court have full operation and will entitle the council to carry out the work.
16. The Court is mindful that the origin of the Court's orders go back to 30 September 1997. Almost three years have elapsed, yet the work referred to has not been carried out. It remains incomplete and the work that has been done is yet to be subject to the scrutiny of the council's experts.
17. I should also say that I am satisfied that no injustice of any kind is being done to Ms O'Hara. As is demonstrated by the record of the proceedings the Court has extended to her every opportunity to carry out the work but unfortunately, despite her best endeavours the work remains incomplete. It is that matter which the orders of the Court address. It is time that the work be attended to without further delay.
18. The relationship between Ms O’Hara and the council is not amicable. The reason for the deterioration of relations is not apparent. However it would appear that if Ms O'Hara were prepared at least to co-operate with the council it may be in her interests to do so, particularly if she is unable to have the work completed by the time the council are ready to move in and complete the work.
Orders
19. The notice of motion seeking a stay of the Court's orders is dismissed.
20. The costs of this motion are to be costs in the principal proceedings.
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