Wallin v Lake Macquarie City Council

[2000] NSWLEC 8

Land and Environment Court

of New South Wales

CITATION:	Wallin & Anor v Lake Macquarie City Council [2000] NSWLEC 8
PARTIES:	APPLICANTS: G C Wallin and P J Wallin RESPONDENTS: Lake Macquarie City Council R D Tiernan MJB Building Services
FILE NUMBER(S):	40300A of 1996
CORAM:	Lloyd J -
KEY ISSUES:	Orders :- Notice of motion for stay on ground that the previous orders need to be re-visited - ground not available.
LEGISLATION CITED:
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 402
DATES OF HEARING:	20/01/00
EX TEMPORE JUDGMENT DATE :	01/20/2000
LEGAL REPRESENTATIVES:	APPLICANTS: G C Wallin (In person) P J Wallin (In person) FIRST RESPONDENT: M Green (barrister) SOLICITOR: P A Rees

JUDGMENT:

IN THE LAND AND Matter No: 40300A of 1996

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 20/01/2000

G C Wallin & Anor

Applicant

v

Lake Macquarie City Council & Ors

Respondent

JUDGMENT

HIS HONOUR:

1. On 6 November 1997 after an eleven day hearing I delivered judgment in proceedings number 40300/96. In those proceedings the present applicants, Mr and Mrs Wallin, claimed a declaration that a building approval granted by the first respondent, Lake Macquarie City Council, to the third respondent for the erection of a dwelling house at 31 Frederick Street, Dudley is void and of no effect; together with consequential relief.

2. The applicants also claimed that the building as erected at 31 Frederick Street did not comply with nor did it conform with the building approval; and a mandatory injunction was sought for the rectification of the building so as to comply with such approval. As I have said, the hearing ran for some eleven days and on 6 November I delivered a judgment in which I dismissed the application with costs.

3. An appeal was brought against my decision in the Court of Appeal. After a hearing the Court of Appeal dismissed the appeal with costs. On Monday 1 November 1999 the applicants sought a stay in the Court of Appeal of the enforcement of the costs order made in the Land and Environment Court. That application was heard by the President of the Court of Appeal, who dismissed the application. The present notice of motion before me is to stay the writ of execution for costs caused by the decision in proceedings number 40300 of 1996.

4. In support of the notice of motion the applicants claim that the proceedings 40300 of 1996 need to be revisited because

(i) a development approval is required; and

(ii) public notification thereof is required, in addition to the building approval that had been granted.

5. There are three hurdles for the applicants to overcome. In my view none of them have been overcome. The first is that there is no inherent power in a court to deal further with a matter which has been determined by formal order where that order has been duly entered. I refer to Bailey v Marinoff (1971) 125 CLR 529. This principle prevents me from revisiting the orders made in the proceedings. The second hurdle is that the decision in proceedings which have been determined precludes the parties from raising further causes of action or issues in future proceedings which they could and should have raised in the former litigation: see Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. The third matter is the doctrine of merger in judgment. The merger affects causes of action other than the precise one sued upon. An example is Trawl Industries of Australia Pty Ltd v Effem FoodsPty Ltd (1992) 36 FCR 402 in which Gummow J held that judgment in an action for breach of section 52 of the Trade Practices Act barred a subsequent action for negligent misrepresentation arising from substantially the same facts.

6. Consistently with the three principles to which I have referred I regret to say that I must decline to grant the order that Mr and Mrs Wallin seek. The notice of motion dated 13 January 2000 is dismissed.

GREEN: I seek costs your Honour.

G WALLIN: I object to costs your Honour, with principle to point 5, this is material they withheld and there was more than that they withheld and I'm going to be insistent and demand justice and I'll take issue in other courts, and I believe it's wrong to give the opponents costs after deceitfulness which they have done upon us. I was wondering your Honour if I could have exhibit A back so I could use it in further proceedings too please sir to save costs for myself.

HIS HONOUR: Yes, the exhibit may be returned. I make an order that the applicants must pay the costs of the notice of motion.