Wollongong City Council v Falamaki (No.5)

[2009] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION:	Wollongong City Council v Falamaki (No.5) [2009] NSWLEC 117
PARTIES:	APPLICANT Wollongong City Council RESPONDENT Masood Falamaki
FILE NUMBER(S):	40091 of 1997
CORAM:	Sheahan J
KEY ISSUES:	PRACTICE AND PROCEDURE :- application to reopen after final orders made
LEGISLATION CITED:	Land and Environment Court Act 1979
CASES CITED:	Bailey v Marinoff (1971) 125 CLR 529 Burrell v The Queen (2008) 82 ALJR 1224; 248 ALR 428 Deputy Commissioner of Taxation v Meredith (No.2) [2008] NSWCA 133 DJL v Central Authority (2000) 201 CLR 226 Haig v Minister Administering the NPW Act (1994) 85 LGERA 143 Michaels v Dimoski [2007] NSWLEC 443 Pittwater Council v Brown Brothers Waste Contractors Pty Llimited [2009] NSWLEC 50 Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 Woollahra Municipal Council v Ferella (2005) 141 LGERA 166 Wollongong City Council v Falamaki (No.3 [2009] NSWLEC 80 Wollongong City Council v Falamaki (No.4) [2009] NSWLEC 83
DATES OF HEARING:	10 July 2009
EX TEMPORE JUDGMENT DATE:	10 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr D Shoebridge SOLICITORS Fisher Cartwright Berriman RESPONDENT In Person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

10 July 2009

40091 of 1997 Wollongong City Council v Masood Falamaki

JUDGMENT

1 His Honour: This litigation has been running since 1997.

2 Its history need not be recounted in detail. Suffice to record that it came back to this court for final disposition in May of this year, and Justice Pain delivered two key judgments – (No.3) [2009] NSWLEC 80 on 22 May 2009, and (No.4) [2009] NSWLEC 83 on 1 June 2009.

3 Dr Falamaki filed a Notice of Motion on 26 June seeking vacation of not only Pain J’s orders, but also of Talbot J’s orders in 1998 and 1999, on the basis that there is now fresh evidence available, and that the Council (1) put before the court “false evidence”, (2) played “tricks” on him to preclude their Honours looking at the real evidence, and (3) “lied” to the court.

4 The Council moves the court today to strike out the Notice of Motion.

5 I allowed Dr Falamaki substantial latitude in presenting his arguments, and I have had a close look at his written submissions, and, as promised, a cursory look at the voluminous affidavits he has filed, but not formally read, in the proceedings, dated 14 May 2009 and 10 July 2009.

6 Much of the past litigation turned on a submission that Talbot J had not made “final” orders.

7 To accede to Dr Falamaki’s motion today would require the court to reopen the case because Pain J, in purporting to deal with it in a “final” way, had not made what should be seen as “final” orders in it.

8 The law has long recognised a doctrine of “finality in litigation”.

9 The Council submits today that that point was reached in this litigation on 1 June 2009.

10 There has been held to be an inherent power, in at least some courts, to reopen in the interests of justice, but it may not apply to a court of statutory creation (see DJL v Central Authority (2000) 201 CLR 226, and Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438). A statute or relevant rule may allow reopening (e.g. UCPR 36). It is a “limited, special, and wholly exceptional jurisdiction”, “not lightly to be exercised”, and there must be shown to be “exceptional circumstances”, often in the nature of some “unfinished business”. The courts will not simply respond to some “undefined feeling that an injustice has occurred which the court must correct”. See Haig v Minister Administering the NPW Act (1994) 85 LGERA 143, per Kirby P at 153-155. See also Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, and Pittwater Council v Brown Brothers Waste Contractors Pty Limited [2009] NSWLEC 50, in which Lloyd J made a thorough survey of relevant authority, and the discussion by Basten JA in Deputy Commissioner of Taxation v Meredith (No.2) [2008] NSWCA 133 at [6]-[7], [13]-[16] and [22], and Pain J’s analysis in Michales v Dimoski [2007] NSWLEC 443, at [28]ff.

11 Section 56 of the Land & Environment Court Act 1979 speaks of this court’s decisions as “final and conclusive”, once entered, subject only, it would appear, to (1) a successful appeal, (2) an appropriate application of the “slip rule”, or (3) a successful (but separate) challenge on the grounds of fraud or bad faith. (See generally UCPR 36.15 and 36.16, Bailey v Marinoff (1971) 125 CLR 529, and Burrell v The Queen (2008) 82 ALJR 1224, 248 ALR 428).

12 The Judge hearing a motion to reopen must first examine if the orders are “complete on their face”, and if they are “regularly made”. If the “working out or carrying out” of the orders make it “necessary to obtain a direction or a decision of the Court as to effectuating or implementing the orders”, that can be achieved pursuant to the exercise of liberty to apply.

13 There is no liberty granted in the circumstances of this case, and I am satisfied the orders of Pain J are “complete on their face” and “regularly made”, following lengthy argument and consideration.

14 The only avenue possibly available to Dr Falamaki is an appeal to a higher court.

15 His Notice of Motion is dismissed with costs.