Warringah Council v Franks - [2003] NSWLEC 193

Land and Environment Court

of New South Wales

CITATION: Warringah Council v Franks [2003] NSWLEC 193

PARTIES:
APPLICANT:
Warringah Council
RESPONDENT:
Phillip Franks

FILE NUMBER(S): 40123 of 1997

CORAM: Bignold J

KEY ISSUES: Costs :- Permanent stay application

LEGISLATION CITED: Land and Environment Court Rules, Pt 12 r 1, Pt 15 r 4, Pt 15 r 9;
Supreme Court Rules, Pt 44 r 5

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529;
DJL v Central Authority (2000) 74 ALJR 706;
Farrell v Bridge (1993) 81 LGERA 76;
Hamilton v Oades (1989) 166 CLR 486;
Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438

DATES OF HEARING: 28/05/2003; 25/06/2003

DATE OF JUDGMENT:
08/29/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Wheelhouse (Barrister)
SOLICITORS:
Wilshire Webb
RESPONDENT:
In Person

JUDGMENT:

IN THE LAND AND 40123 of 1997

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 29 AUGUST 2003

WARRINGAH COUNCIL

Applicant

PHILLIP FRANKS

Respondent

Judgment

A. INTRODUCTION

1 By Notice of Motion filed 18 March 2003 the Respondent seeks orders permanently staying two costs orders made against him in favour of the Warringah Council in two completed proceedings in this Court – one being matter No. 40123 of 1997 and the other being matter No. 40027 of 2000.

2 On its face the Respondent’s Notice of Motion is irregular because it was filed in the first mentioned proceedings but claimed relief not only in those proceedings but in the second mentioned proceedings, being wholly unrelated proceedings. However no objection in this behalf has yet been raised by the Council and the irregularity would be curable by the Respondent filing another Motion in the other matter.

3 The Respondent’s Notice of Motion was fixed for hearing on 28 May 2003. However by further Notices of Motion filed 13 May 2003 and 23 May 2003 respectively the respondent sought the vacation of the hearing of his substantive motion.

4 All three of the Respondent’s Notices of Motion came on for hearing on 28 May 2003 when the Council raised objection to the jurisdiction of the Court to grant the relief claimed in the Respondent’s substantive motion ie. the permanent stay of the costs orders made in the two separate proceedings that I have mentioned. In these circumstances the Council submitted that it would be futile to allow the proceedings to continue further.

5 Accordingly it was agreed between the parties that it would be more efficient for the Court to entertain the Council’s objection to jurisdiction than to determine the Respondent’s Motion to vacate the hearing date allocated for the Respondent’s substantive Motion seeking the permanent stay of the two costs orders made against the Respondent. However since the Respondent, who is a litigant in person, was not in the position to argue against the Council’s contention that the Court lacked jurisdiction to permanently stay the costs orders I invited Counsel for the Council to advance his argument and thereafter adjourned the hearing to enable the Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 193
Decision Date: 08/29/2003

CaseChat Overview and Summary

Warringah Council brought a motion in the Land and Environment Court of New South Wales against Phillip Franks seeking a permanent stay of two costs orders made against him in two separate proceedings. The court had to determine whether it had the jurisdiction to grant the permanent stay of the costs orders, which had already been perfected. The legal issues involved examining whether the court could revisit or stay perfected orders, both under common law and statutory provisions.

The court found that once an order disposing of a proceeding has been perfected, the proceeding is considered to be at an end, and the court lacks the jurisdiction to revisit or vary that order. This principle was supported by the High Court's decision in DJL v Central Authority, which was applied to this court in Starray Pty Ltd v Sydney City Council. The court held that there was no inherent or implied power to vary or stay a perfected order. The statutory power to set aside or vary an order also did not apply in this case, as the orders had been perfected, and the proceedings had concluded. Furthermore, the statutory power to stay the execution of a judgment or order did not provide a justifiable basis for permanently staying the costs orders. The court concluded that it did not have the jurisdiction or power to grant the permanent stay of the perfected costs orders made against Mr. Franks.

The court dismissed the respondent's Notice of Motion and reserved the question of costs. The orders made were as follows: 1) The respondent's Notice of Motion filed on 18 March 2003 is dismissed, and 2) The question of costs is reserved.

Orders