Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8)
[2013] NSWLEC 168
•03 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168 Hearing dates: 17 September 2013 Decision date: 03 October 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Respondents' notice of motion dismissed with costs.
Catchwords: CIVIL ENFORCEMENT: application to vary final orders pursuant to liberty to apply - whether Court has power to make varied orders as sought - scope of liberty to apply - whether Court should exercise its discretion to exercise liberty to apply - attempt to reopen proceedings - finality of litigation - application dismissed. Legislation Cited: Civil Procedure Act 2005, ss 4, 56
Environmental Planning and Assessment Act 1979, ss 5, 76A
Land and Environment Court Act 1979, s 56
Protection of the Environment Operations Act 1997, ss 3, 144
Water Management Act 2000, s 3
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Rules 2007, r 7.6
Uniform Civil Procedure Rules 2005, Pt 36 Divs 2 and 4, r 36.16
Wollondilly Local Environmental Plan 1991Cases Cited: Abigroup Ltd v Abignano (1992) 39 FCR 74; (1992) 112 ALR 497
Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570
Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121 LGERA 1
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Cristel v Cristel [1951] 2 All ER 574; [1951] 2 KB 725
De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207
Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
In the matter of L and B (Children) [2013] UKSC 8; [2013] 1 WLR 634
Fokas v Kogarah Council [2008] NSWCA 145
Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248
Jeray v Blue Mountains City Council [2010] NSWCA 281
Maritime Union of Australia v Geraldton Port Authority (No 3) [2000] FCA 1342; (2000) 106 IR 119
McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Muriti v Prendergast [2005] NSWSC 281
Phillips v Walsh (1990) 20 NSWLR 206
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50
Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 7); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 157
Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66Category: Principal judgment Parties: Wollondilly Shire Council (Applicant)
Foxman Environmental Development Services Pty Ltd (First Respondent)
Phillip Foxman (Second Respondent)
Botany Building Recyclers Pty Ltd (Third Respondent)Representation: Mr T Howard (Applicant)
Mr P Clay SC with Mr M Bennett (First, Second and Third Respondents)
Hones La Hood Lawyers (Applicant)
Whittens & McKeough (First, Second and Third Respondents)
File Number(s): 40578 of 2010
Judgment
The Foxman Entities Seek to Vary Orders Made by the Court to Remove Waste and Rehabilitate Land
By notice of motion filed 2 August 2013 the first and second respondents in proceedings no 40578 of 2010 ("the 2010 proceedings"), Foxman Environmental Development Services Pty Ltd ("Foxman") and Mr Phillip Foxman respectively, sought an order revoking, varying, supplementing or replacing, in whole or in part, orders made by the Court in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68.
The third respondent to the 2010 proceedings, Botany Building Recyclers Pty Ltd ("BBR") was joined in the application by reason of orders made in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 7); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 157 (at [39(3)]).
The respondents (collectively referred to as "the Foxman entities"), seek to vary the orders made in Wollondilly (No 5) (at [310]) pursuant to order 13 of those orders. That order granted:
(13) liberty to the parties to apply on five days' notice for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part, upon sufficient cause, such as, but not limited to, unforeseen or changed circumstances being shown);
The making of such an order in Class 4 civil enforcement proceedings is not novel. For example, in Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118, Preston J made a similar order in Class 4 civil enforcement proceedings (at [348(13)]):
13. An order reserving liberty to the parties to apply on 5 days' notice for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part upon sufficient cause, such as unforseen or changed circumstances, being shown).
The rationale for making such an order was expressed by Preston J in Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31 to be (at [20]):
20 The applicant also sought that the orders made should be final and bring the proceedings to a close. I agree. However, the nature of the work required by the orders and the period over which the work will be required to be undertaken makes it desirable to leave some capacity for the parties to seek, and the Court to make, variation to the orders if unforeseen events were to occur. For example, severe natural events, such as storms, flooding or fire, could adversely affect restoration work and require alternative work to be done. It is appropriate, therefore, to grant liberty to the parties to seek further or other orders.
Specifically, the Foxman entities wish to vacate orders (3) and (4) (made by the Court in Wollondilly (No 5) (at [310])) and order (8A) (made in Wollondilly (No 7)), which are as follows:
(3) an order that, within 90 days of the date of these orders, the first and second respondents remove, or procure the removal of, the fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A' and dispose of the waste at a waste facility or facilities licensed under the Protection of the Environment Operations Act 1997 ("the POEOA") to accept such waste;
(4) an order that, within 90 days of the removal of the fill material referred to in order 3 above, the first and second respondents remediate, or procure the remediation of, the land in accordance with a Remediation Management Plan approved by the applicant;
...
(8A) an order that, within 90 days from 18 September 2013, the third respondent removes, or procures the removal of, the waste fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A', and disposes of the waste fill material at a facility or facilities licensed under the POEOA to accept such waste; and
In lieu thereof, the Foxman entities urge the Court to make the following orders:
2 An order that the First and Second [and Third] Respondents carry out rehabilitation of the Oaks site in accordance with the Remediation Action Plan as authored by JBS&G and dated 30 August 2013 within .... days hereof.
3 An order that the First and Second [and Third] Respondents carry out rehabilitation of the Oaks site in accordance with the Additional Geotechnical Opinion as authored by JK Geotechnics and dated 26 July 2013 within .... days hereof.
4 An order that the First and Second Respondents [and Third] carry out management of the Oaks site in accordance with the Environmental Management Plan as authored by JBS&G and dated 30 August 2013.
The application is opposed by the applicant to the 2010 proceedings, Wollondilly Shire Council ("the council"). Initially the council sought to contend that the Court had no power to make an order such as order 13, however, this argument was later abandoned.
Instead, the council submitted that:
(a) first, the Foxman entities are asking the Court to make orders that are not within the power of the Court to make. This is because the scope of the proposed orders seeks to traverse the significant public interest in the finality of litigation because the orders will involve reopening the proceedings; and
(b) second, even if the Court considered that it had the power pursuant to order 13 to make the proposed orders, the Court should decline to do so in the exercise of its discretion because insufficient cause has been demonstrated warranting the making of the proposed orders.
Although not the subject of any application for expedition, the council suggested during the hearing of the application that the resolution of the motion has become urgent and requested its early determination. The Court has, to the extent possible, sought to accommodate this entreaty.
Does the Court Have the Power to Make the Orders Proposed by the Foxman Entities?
The council relied upon the principle of the public interest in the finality of litigation to argue that the Court had not, by the making of order 13, conferred upon itself the power to reopen, vary or set aside final orders disposing of the proceedings. The grant of liberty contained in order 13, it submitted, applied only to the implementation of those final orders. It did not permit a party to reopen its case in its entirety or to seek a fresh adjudication of issues which had been the subject of determination by the making of final orders. Order 13, therefore, was intended to be a supervisory order only and ought to be properly construed as such. In short, order 13 did not give rise to an opportunity for the unsuccessful Foxman entities to reagitate issues in respect of which they were wholly unsuccessful at trial. Exceptional circumstances were required to reopen final orders and none had been demonstrated.
By contrast, the Foxman entities submitted that the power to reopen, set aside and vary final orders exists and ought to be used when the interests of justice demand it (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 322). Furthermore, because this Court is a court "of particular statutory jurisdiction with special functions in the community, less than exceptional circumstances" may be required to permit reopening (citing In the matter of L and B (Children) [2013] UKSC 8; [2013] 1 WLR 634 at [41] as authority for this proposition).
They argued that because the various enactments vesting the Court with jurisdiction each contain objectives concerning the protection of, and the coordinated regulation over, the natural and built environment (for example, s 5 of the Environmental Planning and Assessment Act 1979 ("the EPAA"); s 3 of the Protection of the Environment Operations Act 1997 ("the POEOA") and s 3 of the Water Management Act 2000), these proceedings were not of an ordinary civil character and concerned public rights and interests warranting a relaxation of the rules. In civil enforcement proceedings, such as the present litigation, the concern of the Court is to achieve the most correct and preferable outcome and this may require flexibility by the Court in permitting the liberty to apply granted in order 13 to be used. The Court should be willing to reopen a matter to vary or set aside orders if there is a more appropriate remedy that could be granted than that originally favoured by the Court when it made its orders.
The Principle of the Finality of Litigation
It is almost trite law that the public interest in maintaining the finality of litigation requires great caution in the exercise of the power to set aside or vary orders, especially when the variation sought has the practical effect of facilitating a rehearing (Autodesk at 302-303, 309 and 317 and De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215).
In his oft-quoted seminal statement, Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 stated (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.
Thus in De L, the High Court stated the following applicable legal principles in respect of the power of a court to reopen, vary or set aside its judgments or orders (at 215, citations omitted):
It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice ...
And in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 the High Court reinforced the finality of perfected judgments as a central tenet of the administration of justice (at [34]):
A central and pervading tenet of the judicial system is that controversies, once resolved are not to be reopened except in a few, narrowly defined, circumstances.
This sentiment has since been affirmed and reapplied by the High Court in Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 (at [15]-[16]):
15 Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid (14): "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud (15) and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
16 The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.
As was clarified in the subsequent decision of Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570 (at [6] per French CJ, Gummow and Hayne JJ), although it is not just accidents and oversights that can engage the jurisdiction of a court to set aside its decisions and orders, nevertheless the jurisdiction must be exercised with caution (citations omitted):
6. As Mason CJ rightly said in Autodesk Inc v Dyason [No 2] the exercise of the jurisdiction to reopen a judgment and to grant a rehearing "is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard". The jurisdiction is, however, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. That Mason CJ dissented in the result in that case does not deny the accuracy of the propositions just made.
In summary, the courts have emphatically and repeatedly emphasised that the power should be rarely used and that to reopen a final order or set aside a judgment requires "limited" or "exceptional circumstances" (Fokas v Kogarah Council [2008] NSWCA 145 at [27]; Jeray v Blue Mountains City Council [2010] NSWCA 281 at [12] and [15] and Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at [49]-[52]). As Pembroke J succinctly stated in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717, "litigants consumed by the uncompromising certainty of their own rectitude must accept the result, subject to their rights of appeal, and the exceptional but limited power to re-open" (at [34]).
The finality of a decision in this Court is enshrined in s 56 of the Land and Environment Court Act 1979 ("the LEC Act"). Section 56 relevantly provides as follows:
56 Nature of decision of the Court
Except as provided:
(a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction, or ...
a decision of the Court shall be final and conclusive.
In Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50, Lloyd J considered this provision in the context of an application made under r 36.16 of the Uniform Civil Procedure Rules 2005 ("the UCPR") to vary a time limit for compliance with orders that had been made and entered by consent. His Honour determined that the rule had no application because apart from exercises of the so-called 'slip rule', the UCPR could not displace the operation of s 56 of the LEC Act (at [25]).
The Court has subsequently resiled from this position (Presrod at [55]-[56] and Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66 at [42]-[44]), and it must be relevantly observed that his Honour did not consider the impact of s 56 of the Civil Procedure Act 2005 ("the CPA") in reaching the above conclusion.
Section 56 of the CPA states that the overriding purpose of that Act and of the UCPR, in their application to civil proceedings, is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Court must give effect to the overriding purpose in exercising any power given to it by the CPA, the UCPR, the Land and Environment Court Rules 2007 ("the LEC Rules") and the LEC Act (ss 4, 56(2) of the CPA and see Presrod at [55]).
Hence the scope and effect of order 13 must be viewed not only through the prism of s 56 of the LEC Act but also through the lens of s 56 of the CPA, and the scope of the operation of order 13 must be understood in this context. What must be avoided in the present application is any exercise of the Court's jurisdiction pursuant to order 13 that amounts to "a backdoor method by which unsuccessful litigants can seek to reargue their cases" (Autodesk at 303) thereby impermissibly derogating from the fundamental statement of finality contained in s 56 of the LEC Act.
Having regard to these principles, what remains to be determined is the scope of the liberty to apply reserved to the parties in order 13 and whether the proposed orders that are the subject of this application fall within it.
The Scope of Liberty to Apply
The Foxman entities submitted that the liberty to apply granted in order 13 ought to be construed liberally to permit either party to make an application varying the orders if facts have arisen since the original orders were made that would render compliance with those orders unjust.
In reply the council submitted that order 13 was directed only to matters of 'machinery' arising from the implementation of the Court's orders and could not be employed, as the Foxman entities sought to do, to reopen the the case and traverse the substantive content of the final orders made by the Court.
The traditional conception of an order reserving liberty to apply is that when final orders are drawn up, their working out or carrying out may involve matters on which it may be necessary to obtain a direction or decision of the court in order to give effect to or implement the orders; the liberty is not to be used to alter or change the substance of an order (Cristel v Cristel [1951] 2 All ER 574; [1951] 2 KB 725 at 728).
In Phillips v Walsh (1990) 20 NSWLR 206, an application was made for some substantive orders for the enforcement of, and consequent upon, a compromised agreement relating to the administration of a deceased estate. The Court was of the view that the relief sought was inappropriate and that fresh proceedings were necessary. After referring to Bailey v Marinoff, McLelland J stated (at 209-210, citations omitted):
One such principle of the general law is that when proceedings have been disposed of by a final order which has been entered, the proceedings are at an end and cannot be revived. There are a number of exceptions and qualifications to this principle but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order...
Thus in Abigroup Ltd v Abignano (1992) 39 FCR 74; (1992) 112 ALR 497 the Full Federal Court of Australia described the scope and proper application of liberty to apply as follows (at 509 per Lockhart, Morling and Gummow JJ):
The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made.
These formulations have subsequently been endorsed and applied in this and other courts (Maritime Union of Australia v Geraldton Port Authority (No 3) [2000] FCA 1342; (2000) 106 IR 119 at [6]-[10]; Bonnici v Ku-Ring-Gai Municipal Council [2001] NSWSC 1124; (2001) 121 LGERA 1 at [164]-[167]; Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 at 153; Muriti v Prendergast [2005] NSWSC 281 at [158]; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]-[102]; Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 at [50]-[56]; Brown Brothers at [15]-[20]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256; (2011) 288 ALR 385 at [46] and Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [30]).
It must be observed that many of these cases post-date the promulgation of the overriding purpose rule contained in s 56 of the CPA. Having said this, the scope of any reservation of a liberty to apply, such as order 13, must now be considered within the context of that provision.
An illustration of this proposition is the decision of Australian Hardboards. In that case, an order had been made for the specific performance of a deed and for a deposit to be paid. An order was made reserving liberty to apply to the Court for the purpose of "dealing with a matter involved in or arising in the course of working out the order" that the deed be specifically performed and the deposit paid. One of the parties sought further orders purportedly pursuant to the liberty to apply. The application was opposed on the basis that the orders sought were outside the scope of the liberty to apply and that the orders raised new issues not before the trial judge but known to the party at the time of the hearing. It was contended that the application was an attempt to reopen a matter that had already been finally determined by the Court, namely, the existence of the obligation to pay the deposit.
In respect of the liberty to apply, as noted above, Campbell JA described the power in an orthodox manner, viz, as enabling further orders to be made for the purpose of "working out the order" granting the principal relief already pronounced (at [50] and [52]). But his Honour went on to opine that there was no difficulty in exercising the liberty to apply for the purpose of dealing with facts that have arisen only since the original order was made (at [58]):
58 There is no difficulty about exercising a liberty to apply for the purpose of dealing with facts that have arisen only since the original order was made. Mahoney JA, in Wentworth v Woollahra Municipal Council (at 5) expressly so recognised, saying:
"In some cases, orders have been made which alter the effect of an existing order because of facts which were not before the Court which made the original order. It may be that such a supplemental order can be made because of facts which had occurred before the making of the original order but were not brought to the Court's attention: see Re Scowby [1897] 1 Ch 741. It has been held that supplemental orders can be made because of facts occurring after the making of the original order: Bailey v Marinoff (1971) 125 CLR 529 at 540, per Gibbs J; see also Ford-Hunt v Raghbir Singh [1973] 1 WLR 738; [1973] 2 All ER 700; Northern Counties Securities Ltd v Jackson & Steeple Ltd [1974] 1 WLR 1133 at 1138; [1974] 2 All ER 625 at 629; cf Easton v Brown (1981) 3 All ER 278 at 284(e). This jurisdiction has been long recognised in the practice books: AR Ingpen, FT Bloxam, and HG Garrett, Forms of Judgments and Orders in the High Court of Justice and Court of Appeal, Having especial reference to the Chancery Division with Practical Notes by the Late Hon. Sir H.W. Seton (1912) London, Stevens and Sons Ltd at 126, 816; SE Williams and F Guthrie-Smith, Daniell's Chancery Practice, 8th ed (1914) London, Stevens and Sons Ltd at 710, 712, 1139. See also the Annual Practice (1982), Notes to Order 20, r. 11/5; Halsbury's Laws of England, 4th ed, vol 37, par 29(n) at 117. There has been no finally authoritative examination of the nature of the supplemental orders which can be made."
Further, he debunked the notion that the only effect of a reservation of a liberty to apply was to permit persons having an interest in the relief to apply to the Court "in a summary way without again setting the case down" (at [63]). In particular, his Honour noted that under the present procedures of the Court "there is no need for applications under liberty to apply to be confined to pure matters of machinery" (at [64], citing Bonnici) and noting that (at [69]):
69 A reservation of liberty to apply, by a 21st century judge of the New South Wales Supreme Court, needs to be understood in the context of the particular practices and procedures that this Court has now. Section 56 of the Civil Procedure Act 2005 must be taken into account. ...
The Court concluded that there was no reason or principle why questions that are decided pursuant to reservation of a liberty to apply are restricted to those that the party that obtained the order in question wished to raise. Thus, in that case, both parties to a contract that has been ordered to be specifically performed could exercise the liberty to apply in order to determine any rights pursuant to the contract that have not been decided (at [77]). As Campbell JA observed, in the specific performance of contracts it is often necessary that the working out of the order that the contract be specifically performed raises questions of whether a defendant has rights that it can assert against the plaintiff (at [80]). It therefore followed that it was not an improper use of the liberty to apply to raise the issue of whether there had been a disposal of land by the relevant date, and if so, for what price.
The importance of this decision is twofold: first, it reinforces that a liberty to apply may not be used by a party to traverse the substance of final orders; and second, it clarifies that the reservation may nevertheless be employed to clarify the scope of final orders, including to determine any unresolved rights that flow from the making of final orders and that are necessary to give effect to those orders, and to vary or make consequential orders to facilitate compliance with the final orders where new facts and circumstances emerge after the making of those orders.
But it remains the case that a party may not avail itself of a liberty to apply to vary or set aside the substance of any final orders.
The Foxman entities placed considerable reliance upon the decision of L and B to argue that some lesser threshold applied to the reopening of orders in civil enforcement proceedings in this Court pursuant to the liberty to apply. But the decision is distinguishable for several reasons. First, it appears to be against the weight of authority binding upon this Court. Second, and in any event, as is evident from the circumstances of the case, the facts underpinning that case are very different from those in the present proceedings.
In L and B, a judge gave an oral judgment in which she concluded that a father had been responsible for a child's injuries. As a consequence of the judgment, the local authority's care plan was for the child to join her brother in the care of his maternal grandparents. By email dated the day after the delivery of the oral judgment, the father asked the judge to deal with a number of matters not specifically dealt with on the previous days. A directions hearing took place approximately a month later, confirming the directions set by the judgment and providing that the Court would distribute a perfected judgment, as requested by the father in two weeks' time and that the judgment would be deemed to have been handed down on the day of distribution. When the perfected judgment was distributed, the judge stated in the judgment that she had reconsidered the matter and had reached the view that in fact she could not, on the evidence, identify the perpetrator of the child's injuries. Counsel for the mother did not subsequently challenge the judge's liberty to change her conclusion but requested the judge to extend the judgment to make good the asserted deficiencies. The judge did so and delivered a brief judgment stating that on the balance of probabilities she could not exclude the mother. The mother appealed. The Court of Appeal allowed the mother's appeal and ordered that the initial findings made by the judge should stand with regard to the perpetration of the child's injuries. The father appealed. It fell to be determined whether the judge had the jurisdiction to change her mind in light of the fact that the earlier announced conclusion and the oral judgment had not been made the subject of a perfected order, and if so, whether she ought to have exercised it.
The Supreme Court held that the judge was entitled to reverse her decision at any time before her order was drawn up and perfected. In exercising that jurisdiction she was not bound to look for exceptional circumstances. Even if the orders of the Court had been sealed, the Court held that, given the Court's wide case management powers under the Civil Procedure Rules and the Family Procedure Rules, which included a power to vary or revoke previous case management orders, the sealing of the order sought to be varied or revoked made little difference. Rather, the question was whether it was proper to vary the order (at [37]). The Court emphasised that the power did not enable a "free for all" in which the previous orders could be revisited at will, but the power had to be exercised judicially and not capriciously, and moreover, exercised in accordance with the overriding objective of justness (at [38]). In family law proceedings, the overriding objective was to enable the Court to deal with cases justly, having regard to any welfare issues involved. It would be inconsistent with this objective if the Court could not revisit factual findings in light of later developments (at [38]). A relevant factor was whether any party had acted upon the decision to his or her detriment, especially in a case where it was expected that they might do so before the order was formally drawn up.
L and B turned upon the specific procedural rules governing the drawing up and perfecting of orders. Under the relevant Civil Procedure Rules, once the orders had been sealed by the Court, there was no jurisdiction for a judge to change his or her mind unless the Court had an expressed power to vary its previous order. The proper route of challenge was by way of appeal (at [19]). This may be contrasted with the rules governing the entry of judgments and orders and the setting aside and variation of judgments and orders contained in Pt 36 Divs 2 and 4 of the UCPR and r 7.6 of the LEC Rules. Moreover, as the Court noted, "children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family" (at [41]). Cases concerning the paramount interests of a child cannot be, in my opinion, comparable to civil enforcement proceedings in an environmental and planning context.
The Court Does Not Have the Power to Entertain the Proposed Orders
As will become apparent from the discussion below, the effect of the proposed orders is to seek to reopen and revisit issues of liability already determined by the Court in Wollondilly (No 5).
Having regard to the almost unanimous articulations of the principle of the finality of litigation discussed above and the proper scope of a reservation of liberty to apply, in my opinion, the Court has no jurisdiction to entertain the Foxman entities' application in light of the specific relief sought by them.
The Court Should Decline to Exercise its Discretion to Reopen or Vary the Orders
Even if the conclusion above is incorrect, I would nevertheless dismiss the application because the Foxman entities have not demonstrated "sufficient cause" to warrant the exercise of the discretion.
The Foxman entities submitted that two events that had occurred subsequent to the reservation of the decision and prior to its publication amounted to sufficient cause for the purpose of order 13. These were that:
(a) first, on 16 May 2013, the National Environment Protection (Assessment of Site Contamination) Measure 1999 ("the National Measure") was amended by the National Environment Protection Council. This amendment has since been endorsed by the New South Wales Environment Protection Authority ("NSW EPA"). Accordingly, there has been a recent adoption of a new nationally consistent approach to the assessment of site contamination. The amended National Measure emphasises that the assessment and management of asbestos contamination should take into account the very low human health risk posed by most occurrences of soil contamination by bonded asbestos. The approach advocates that, where there is a very low human health risk in the circumstances, remediation options for asbestos which minimise soil disturbance are preferable; and
(b) second, no significant instability has occurred to the fill areas and batters on the land. Grass cover and revegetation on the site has assisted with the stability and control of surface erosion.
The Foxman entities relied upon the following evidence in support of their proposed orders:
(a) an affidavit of Mr Brian Furr sworn 2 August 2013. Mr Furr is the principal environmental scientist at JBS&G (NSW & WA) Pty Ltd ("JBS&G"). Mr Furr is an expert in the field of land contamination. In expressing his opinions, Mr Furr had regard to the National Measure and the Guidelines for the Assessment, Remediation and Management of Asbestos-Contaminated Sites in Western Australia, WA Department of Health, 2009 ("the 2009 Guidelines"). He noted that the 2009 Guidelines had, similar to the National Measure, since been endorsed by the NSW EPA under the provisions of the Contaminated Land Management Act 1997, as part of the 2013 amendments to the National Measure. It was Mr Furr's opinion that, having regard to the amount of time that the material had been situated on the land, and having regard to the vegetation cover, the "removal of the material would now present a greater risk to human health than retaining the material on site, subject to implementation of a remediation action plan". Moreover, it was his view that, the fill material on site did not represent a serious risk to human health because only bonded asbestos fragments had been discovered at the surface of the fill material and no asbestos fibres, and, in particular, no airborne asbestos fibres, had been detected in any analysis or monitoring conducted of the fill material on site. With the implementation of an Environmental Management Plan ("the EMP") that JBS&G had prepared in relation to the land, Mr Furr was of the opinion that in its current state, if left undisturbed, the potential for release of asbestos fibres was minimal and in-situ capping and ongoing management was sufficient to remediate the land. It was his opinion that the removal of the material for disposal offsite would present an unnecessary increased risk of potential exposure to asbestos for workers conducting the removal works and the general public;
(b) the EMP prepared by JBS&G dated 30 August 2013 for the management of the asbestos on the land. JBS&G opined that with the EMP in place, the site could be considered to be suitable for rural use;
(c) a Remedial Action Plan ("RAP") also prepared by JBS&G dated 30 August 2013. The RAP was said to be consistent with, amongst other things, the National Measure. The RAP concluded that both the eastern and western fill areas were considered to be impacted with bonded asbestos and required remediation. The preferred remediation strategy (contained in section 5.4 of the RAP) was the consolidation and isolation of the soil by onsite containment within a properly designed barrier and ongoing management in accordance with the EMP. The RAP "noted that there must be acceptance by the ultimate custodian of the land that future controls will be implemented, and that a notation will be made on the Title of the land". All surface asbestos was to be removed by hand picking and disposed of at an appropriately licensed waste disposal facility; and
(d) a report by JK Geotechnics dated 26 July 2013 by Mr Bruce Walker. The report stated that the conditions that Mr Walker had observed during a site survey on 21 June 2013 were similar to those in 2010 except that there had been substantial revegetation of the batters and areas affected by earthworks carried out prior to his 2010 report. While he did not observe any examples of overall instability of the batters and works, he noted that there were signs of movement in some of the locations. In particular, in the western fill area tension cracks were present. In the eastern fill area there was a localised small slope failure and the presence of tension cracks at the edges of major fill batters. It was Mr Walker's opinion that "the presence of tension cracks at the edges of the major fill batters in the Western and Eastern Fill Areas is indicative of poor compaction and possible future edge slumping/instability during periods of wet weather". He recommended that maintenance work be carried out as soon as possible to infill the tension cracks and improve surface water drainage to reduce the possibility of instability or slumping occurring. In the remaining fill areas and the fire trails, in order to achieve the widths to comply with Rural Fire Services requirements, he "still consider[ed] that the remedial works discussed in [his] 2010 Report, and as agreed in the Joint Expert Conferences, should be carried out to provide adequate stability in the long term."
The council relied upon an affidavit of Dr Daniel Martens sworn 13 September 2013. Dr Martens reviewed the material contained in Mr Furr's affidavit, the EMP, the RAP and the geotechnical report of JK Geotechnics. Having been asked to comment upon whether or not there were any changed circumstances concerning the controls and/or measures that would cause him to alter the opinions expressed by him earlier in the proceedings (Wollondilly (No 5) at [147]-[151] and [153]), he answered in the negative.
His reasons were as follows:
(a) the JK Geotechnics geotechnical report noted a number of indications of slope instability within the fill material, that would require substantial remedial works in order for it to be stabilised. Thus, if anything, the geotechnical conditions at the site had worsened;
(b) the RAP did not provide any new data in relation to the contamination of the land. If anything, it recommended that further testing and evaluation be undertaken in order to properly characterise the fill material;
(c) the EMP did not provide any new data in relation to the site contamination;
(d) the affidavit of Mr Furr did not provide any new data in relation to the land. Moreover, Mr Furr had conducted, by his own admission, only an "ad hoc" inspection of the land on 25 June 2013. There was no evidence, in Dr Martens' opinion, to justify the assertion that the soil contamination and sampling undertaken in 2011 was generally in accordance with the National Measure. To the contrary, it had been Dr Martens' evidence during the hearing that sampling sufficient to meet the National Measure had not been undertaken (Wollondilly (No 5) at [149]). Finally, there was no evidence to support Mr Furr's conclusion that the removal of the material would present a greater risk to human health than retaining the material on site subject to the implementation of the RAP. Again, to the contrary, it was Dr Martens' view that in order to retain the fill on site, substantial earthworks would be required in order to, first, stabilise the fill, and second, cap it. As the JK Geotechnics report demonstrated, the fill remains in an unstable condition; and
(e) it was his firm opinion that removal of the fill material remained the "simplest and lowest risk option for site remediation". There was nothing that he had seen in the material provided by the Foxman entities in support of the proposed orders that had caused him to change his mind in this regard.
None of the authors of the various expert reports were cross-examined.
I accept the evidence of Dr Martens. With the exception of the amendment in 2013 to the National Measure and the adoption by the NSW EPA of the 2009 Guidelines, there have been no changed circumstances, other than the deterioration in the stability of some of the waste material deposited on the land, that would warrant the Court being satisfied that "sufficient cause" had been demonstrated in order to enliven the jurisdiction of the Court to exercise the reserved discretion and to make the orders sought pursuant to the liberty to apply, or in the alternative, to, in fact, exercise that discretion.
The material relied upon by the Foxman entities amounts to an attempt to reagitate the principal findings made in the proceedings. Put bluntly, the Foxman entities are seeking, through the vehicle of the proposed orders, what can only be described as a second bite of the cherry.
Nowhere is this more evident than when examining the degree to which the orders proposed by the Foxman entities are inconsistent with the Court's findings of fact and law as set out in the judgment and with the relief granted by the Court.
The Court found that the fill material as deposited on the land was "waste" within the meaning of the POEOA and met neither the 2008 nor 2010 waste exemptions (at [92]-[210]). Further, the Court found that there was widespread presence of asbestos throughout the fill material (at [217]-[219]) and that the land was being used as a "waste facility", as that term is defined in the POEOA (at [224]-[225]). Moreover, the Court held that the land could not lawfully be used as a waste facility for that waste. The Court also found that the filling of the land with the waste constituted a "land filling operation" as that term is defined in the Wollondilly Local Environmental Plan 1991 ("the LEP") (at [264]-[266]), and that this use of the land constituted a "waste management facility or works" under the EPAA (at [267]-[270]). Finally, in the 2011 proceedings (40062 of 2011) the Court held that the development described in the 2010 Statement of Environmental Effects prepared in respect of the land was designated development (at [291]-[307]).
The proposed orders stand in conflict with these findings, and the judgment read as a whole, because the Foxman entities are asking the Court to make orders which would, in effect:
(a) permit the land to continue to be used unlawfully as a "waste facility" in contravention of s 144 of the POEOA;
(b) permit the land to continue to be used as a "land filling operation", as defined in the LEP, absent the necessary development consent having been obtained to use the land for that purpose, contrary to s 76A of the EPAA;
(c) permit the land to continue to be used as a "waste management facility or works" as defined in the Environmental Planning and Assessment Regulation 2000, being a form of designated development for which there was no consent, again in contravention of s 76A of the EPAA;
(d) conflict with order 2 insofar as the Court would be permitting the Foxman entities to do that which the Court had restrained them from doing; and
(e) conflict with order 8 insofar as the Court would be permitting the ongoing use of land as a waste facility contrary to the terms of the restraint imposed in that order in circumstances where there was no evidence to suggest that the requisite permits had been obtained.
In addition, in my opinion, the emphasis placed on the National Measure, as amended in 2013 is exaggerated. First, it must be remembered that the National Measure is no more than a guideline with no binding force.
Second, as the National Measure itself states (emphasis added):
This guidance is not applicable to asbestos materials which are:
· waste such as demolition materials present on the surface of the land...
This description is apt for the waste fill material that has been deposited on the land.
Third, as the National Measure itself states, if visible asbestos is present and may be disturbed during work activities, it must be removed. This includes "removing visible fragments of bonded [asbestos] from ...those areas of the site where intrusive works may be carried out... Visible asbestos should be removed prior to excavation/construction works commencing". Thus the import of National Measure is not as equivocal as that submitted by the Foxman entities in respect of leaving asbestos contaminated soils and material in-situ.
Fourth, while the National Measure emphasises that asbestos only poses a risk to human health when fibres are made airborne and inhaled, and hence if it is bound in a matrix such as cement or resin (capping) it will not be readily made airborne except through substantial physical damage (see section 4.6), as the geotechnical evidence discussed in Wollondilly (No 5) demonstrates, and as confirmed in the recent report of Mr Walker dated 26 July 2013, further handling of the fill, including compaction and the requirement for additional fill to be added to the land (Wollondilly (No 5) at [176]-[178] and [288]) raises a real risk that substantial physical damage could occur to the bonded asbestos present in the waste material thereby causing airborne asbestos fibres to be released. In my view, therefore, the National Measure not only does not assist the Foxman entities in the circumstances of this case, its amendment and adoption after the decision was reserved is insufficient to amount to a sufficient cause for the Court to exercise its discretion pursuant to the liberty to apply for the purpose of making the proposed orders.
The reasons discussed above in respect of the National Measure resonate with equal force in relation to the 2009 Guidelines. These were the subject of expert evidence and discussion before the Court (Wollondilly (No 5) at [149], [153] and [287]-[288]). The Court considered these Guidelines in the exercise of its discretion to grant the relief sought. That they have been subsequently endorsed by the NSW EPA does not cause the Court to resile from the findings and orders previously made. That the 2009 Guidelines were only in draft form when last considered by the Court is immaterial.
In any event, the Court must weigh up matters in addition to those contained in the National Measure and the 2009 Guidelines. In exercising its discretion pursuant to order 13, the Court must also have regard to any other considerations that inform the exercise of its power. These include the matters set out in the judgment concerning the circumstances of and by which the land was contaminated with waste (Wollondilly (No 5) at [102]-[103]). For example:
(a) the evidence of Dr Martens as to the extensive quantity of asbestos distributed throughout the fill material and, although the asbestos is bonded, the fact that the fill will require further handling by earthmoving machinery in order to render it stable thereby importing the risk of breaking, or further breaking, down the asbestos and releasing harmful fibres (at [288(f)]);
(b) the evidence of Dr Martens stating that although entombment or capping of the waste is possible, this would be difficult on the land because of the steep slopes, the nature of the soils and the presence of ridge lines and valleys (at [288(f)]);
(c) the finding that it was not possible to simply remove "hot spots" of asbestos contamination (at [288(f)]);
(d) the finding that the Foxman entities had acted deliberately and in determined contravention of the directions of the council and other regulatory agencies in importing the waste fill material onto the land (at [289(f)]); and
(e) the finding that neither the RAP nor the EMP deals with the existing contamination of the land by lead and other foreign materials (at [289(d)]).
Conclusion
While it may be accepted that the liberty to apply reserved in order 13 extends the ability of the Court, if necessary, to vary final orders in order to accommodate greater flexibility in the carrying out of those orders, in the present case the Foxman entities have failed to demonstrate sufficient cause as to why the Court should revisit the orders made in the judgment. The amended National Measure and the 2009 Guidelines do not, in my opinion, amount to such cause, either by themselves, or when regard is had to the totality of the findings of fact and law made in the judgment. The application must therefore be dismissed with costs.
Orders
The orders of the Court are as follows:
(1) the first, second and third respondents' notice of motion is dismissed;
(2) the first, second and third respondents are to pay the applicant's costs of, and incidental to, the notice of motion; and
(3) the exhibits are to be returned.
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Decision last updated: 03 October 2013
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