Young v King (No 4)
[2012] NSWLEC 236
•19 October 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Young v King (No 4) [2012] NSWLEC 236 Hearing dates: 17, 18, 19 September 2012 Decision date: 19 October 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. The respondent's Notice of Motion filed on 18 September 2012 is upheld.
2. The applicant's Notice of Motion originally filed on 23 May 2008, as finally formulated on 27 March 2012, is dismissed.
3. Costs are formally reserved, and the parties are directed to file any Notices of Motion seeking costs orders within 28 days, and after 28 days to approach the Registrar within a further 14 days to fix a timetable for the filing of written submissions for the trial judge's consideration in chambers.
4. Exhibits are to be retained until the question of costs has been resolved.
Catchwords: PRACTICE AND PROCEDURE: Application for summary dismissal of a Notice of Motion brought by an applicant to set aside orders made in her case in 2004 - jurisdiction of the court to consider such a motion - question whether a case is made out for such a motion if within jurisdiction - costs Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Dividing Fences Act 1991
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Supreme Court Act 1970
Water Act 1912
Uniform Civil Procedure Rules 2005Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68
Brown v Randwick City Council [2011] NSWLEC 172
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1982-3) 151 CLR 447
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kirk v Industrial Court of New South Wales; [2010] HCA 1; 239 CLR 531
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; 123 LGERA 179
Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777; (2004) 12 BPR 22,287
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; (1976) 28 FLR 195
Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192
Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110
Romeo v Paplia [2012] NSWCA 221
R v Bolton (1991) 155 J.P.N. 620
Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324
Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75
Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68
V'landys v Land and Environment Court of New South Wales [2012] NSWLEC 218
Young v King [2004] NSWLEC 93
Young v King (No.2) [2009] NSWLEC 125
Young v King (No 3) [2012] NSWLEC 42
Young v King [2011] NSWSC 793Category: Procedural and other rulings Parties: Margo Young (Applicant)
Brendan King (First Respondent)
Kristina King (Second Respondent)Representation: Mr R Newell, Barrister (Applicant)
Mr M Wright, Barrister (First & Second Respondents)
L C Muriniti & Associates (Applicant)
Terence Stern (First & Second Respondents)
File Number(s): 40417 of 2003
Judgment
Introduction
The applicant's Notice of Motion
Since 2008, the applicant has been asking the court to vacate or set aside consent orders made in these proceedings (40417 of 2003), on 19 February and 8 March 2004, by the then Chief Judge of the Land and Environment Court of New South Wales ('LEC'), McClellan J - Young v King [2004] NSWLEC 93.
At long last the final version of her amended Notice of Motion ('NOM') to that effect came on for hearing on 17 September 2012.
Mrs Young's position, put simply, is that she has discovered evidence which she contends establishes that those orders were procured "improperly", and, as events have unfolded, the court's orders have worked an injustice on her. Historically, courts never permit their orders to be a source of injustice (see Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110, at 114).
Various allegations of improper behaviour, said to infect the 2004 orders, began to crystallize and develop shortly after her 2008 NOM was filed, and once she had embarked on its lengthy and complicated course of case management.
Over the four years since the NOM was filed, the court has extended great latitude to Mrs Young and her present legal representatives, as an ever-expanding picture of a possible miscarriage of justice was being painted each time the matter came before the court.
The Court's power
Rule 36.15 of the Uniform Civil Procedure Rules 2005 ('UCPR') governs applications of this type, and provides as follows:
36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
The orders sought to be set aside will be discussed shortly, but, in essence, the parties agreed to settle the original litigation on the basis of an undertaking proffered by the respondents. McClellan J decided to accept that undertaking, and, on that basis, ordered that the applicant's proceedings be dismissed, by consent, and that the respondents pay her costs.
The court has not yet heard argument as to its power, under r. 36.15 or otherwise, to set aside the respondents' undertaking, as distinct from the court's substantive orders based upon it.
The respondents' Notice of Motion
On the second day of the hearing of the applicant's NOM (18 September 2012) - following the completion of her counsel's opening address, but before any of the applicant's substantive evidence was read in support of her NOM, or any arguments had been heard on its admissibility on such a NOM - the respondents' counsel moved the court to summarily dismiss the applicant's application, on the grounds (1) that this court lacks jurisdiction to grant it, and (2) that no case for it has been made out against the present respondents.
Counsel for the applicant refutes these grounds, but also submits that the respondent's NOM is an "abuse of process", as it should have been brought long ago (see [356] and [357] below, for the competing submissions on this issue).
I have decided to accede to the respondents' dismissal application, and my reasoning is at the heart of this judgment.
However, while Mr Wright made clear (T18.9.12, p74, L31-32) that his dismissal application is based "entirely" on what was put to the court in Mr Newell's opening, rather than on the many exchanges between counsel, between 2009 and this 2012 hearing, this judgment must also deal with two other matters.
It must explain, firstly, why it has taken until now for this 2008 NOM to come on for hearing, and secondly, how the court and the case finally arrived at this point, while the drainage problem at the heart of the matter still remains unresolved.
Delay
The respondents argue that the delays have resulted from (1) the constant discovery of new parties to, and aspects of, the conspiracy Mrs Young alleges operated against her interests, before, during, and since the 2004 hearing and orders; (2) the persistent evolution of new "angles" to her claims; even during the opening submissions on this NOM (eg s 121A of the Water Act 1912); and (3) what I described on the first day of this NOM hearing as her "flagrant disobedience" of directions given, as the court endeavoured to bring the matter "to a head".
As counsel for the applicant conceded, when beginning his opening submissions (T17.9.12, p17, LL26-29):
It's no secret that we have not always been quite certain about what happened, and that from [time] to time we have had a different theory about what would happen - what the case was about.
History
I sought to summarise, to some extent, the long and complex history of these proceedings in my two earlier judgments, delivered on 31 July 2009 - Young v King (No.2) [2009] NSWLEC 125 - and on 14 March 2012 - Young v King (No 3) NSWLEC 42.
Regrettably, much of that history has now been questioned in the light of the discovery and evolution to which I have just referred, and the full history will, therefore, now be set out (or perhaps repeated) in this, my third judgment.
Structure of this judgment
I will set the necessary context for my decision on the respondents' NOM, by describing, in the following order:
Relevant proceedings in this and other courts, past, current, and potential (commencing at [27] below);
My earlier summary of relevant events from 2001 up to and including the commencement of these proceedings in 2003, and the hearing, by the LEC, in early 2004, of the substantive case as it was then formulated ([49]);
The decision delivered by McClellan J in the substantive matter, on 19 February 2004 ([50]);
The aftermath in this court of that decision, including amendment and formal entry of his Honour's orders ([58]);
The post-judgment dealings between the parties (which included the commencement of proceedings in the District Court ('DC')), and the applicant's ongoing attempts, since she commenced, in 2008, her chosen process to secure a "reopening" of the matters dealt with by McClellan J ([61]);
The attempts by this court to reduce the "heat" of the dispute, and to look for a mediated and lasting solution to the whole affair (my 31 July 2009 order, referring to a mediator the dispute as it then stood, remains on foot) ([90]);
The escalation of the dispute, indeed its constantly "shifting sands", since it came back before this court in March 2011, after the failed mediation, and progressed towards this hearing ([108]);
The formal 'grounds' upon which the applicant's NOM to "vacate" is to be argued, if the respondents' dismissal NOM were to fail ([273]);
My accumulated impression of the applicant's case on her NOM, as gathered on the way to the commencement of this hearing ([285]);
The latest formulation of the applicant's position, especially against the respondents, as now put before the court in her counsel's written and oral submissions. ([294])
I will then consider the respondents' NOM for summary dismissal of the applicant's NOM ([342]).
Questions of Costs
During the evolutionary phases of the litigation of the present application, each side has criticised the other for serving major written materials on the eve of a court listing.
This unfortunate practice - pursued much more by the applicant than the respondents - has resulted in repeated adjournments, and deferrals, and a multiplicity of case management/directions hearings (approximately 30 in total), the costs of which will require close consideration by the court in due course (see judgment No 3, at [31]).
The respondents have applied many times for costs orders in their favour, often on an indemnity basis, but the question has consistently been reserved. On 14 December 2011 (Tp11, LL39-43) I said, on the question of costs, that "at some point this sub-issue of the degree to which this matter has kept going for mention after mention without being properly articulated ... has got to be addressed", and then, on 23 January 2012 (Tp12, LL1-5), I indicated that I might have to hear some costs arguments, and require that any costs order against the applicant be satisfied, before I dealt further with her application.
The respondents now seek that the summary dismissal of the applicant's NOM should attract an order for costs in their favour, on an indemnity basis. In their written submissions (par 88) they specifically ask to be heard on the question of costs. Also, during argument, they suggested that at least some of their costs ought be ordered to be paid by the applicant's lawyers personally (T18.9.12, p84, LL6-8).
As I have decided to accede to the respondents' NOM, there is a prima facie entitlement on their part to an order for costs, on some basis, in their favour, but, as the costs issues were not argued at the September 2012 hearing, they are not addressed in this judgment. However, the regrettable level of detail into which this judgment is about to descend should (1) assist in crystallising those costs issues, and (2) facilitate their determination in due course.
Because of that detail, and in the interests of saving further costs, I consider that the costs issues should be dealt with by written submissions, if no agreement can be reached within 28 days of the publication of these reasons.
Regrettably for Mrs Young, in respect of costs, the High Court has said on many occasions that a party is bound by the conduct of litigation by its legal representatives - eg, University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, at 71, and Coulton v Holcombe [186] HCA 33; (1986) 162 CLR 1; see also the judgment of this court in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68, at [44]-[55].
Proceedings involving the parties to this present case, and relevant other persons
The Local Court
McClellan J noted (at [7]-[9], quoted below in [52]), that there had been protracted negotiations between the parties , and some proceedings in the Local Court, pursuant to the Dividing Fences Act 1991, before any action was taken in this court.
The proceedings in this court
The substantive proceedings in this court ('the LEC case') were commenced on 14 April 2003 by Mrs Young, of 35 Calca Crescent, Forestville, against her next-door, down-slope neighbours to her north, the respondent Kings, of No. 37.
Mrs Young says that No 35 was constructed in 1964, that she bought it in 1985, and that the Kings bought No 37 late in 1999. Some of the offending works at No 37, designed to expand use of a subfloor/basement area as perhaps a granny flat, appear to have commenced in the time of previous owners.
The parties' local Council (Warringah) was not made a respondent to these proceedings, and one of Mrs Young's complaints against her former lawyers is that she gave them repeated instructions to join the Council as a respondent, and they advised her "that the Council wasn't a necessary party" - T24.2.12, p17, LL29-30).
It would appear that the lots on which the parties live were created by a 1958 subdivision, which put in place, according to Mrs Young, and in order to take into account a "high" water table in the area, and the proximity of the land to Bates Creek, specific drainage arrangements for both groundwater and overland flow. Those arrangements included a rubble pit and "chimney" drain, on No 35, draining into an inception trench on No 37, and on towards a Council-approved stormwater outlet near the Northeast corner of No 37.
In the substantive proceedings heard in 2004, Mrs Young sought 15 declarations, 9 injunctions, and an award of damages, and she filed extensive points of claim.
She was represented at the time by Ian Hemmings of counsel, instructed by solicitor Jason Hones of Hones Lawyers. The Kings were represented by solicitor-advocate Stephen Griffiths, of the firm then called Pike, Pike & Fenwick ('Pikes').
The proceedings came on for hearing on 16 February 2004, and orders were made in February and March 2004.
Both parties have changed their respective legal representation since the 2003-04 proceedings and events - Mrs Young is now represented by Robert Newell of counsel, instructed by Leonardo Muriniti, and Mr and Mrs King by Michael Wright of counsel, instructed by Terence Stern.
When Mrs Young embarked on her attempt, in 2008, to set aside the 2004 orders, she charged the Kings with contempt of them, but that charge did not proceed.
A District Court case
On 4 July 2007, Mrs Young commenced her DC case (Matter No. 2857 of 2007, currently before Curtis J) against the Kings and Warringah Council, concerning the matters in dispute which had given rise to the 2003 LEC proceedings.
This court has not been fully informed about the DC proceedings, other than from the inclusion among documents filed in this court of at least a draft of a statement of claim, and the transcript of one short hearing (18 November 2008).
The draft amended (or further amended) DC Statement of Claim among the evidence has 19 prayers in all, including mandamus, five injunctions, an order under s 88A of the Conveyancing Act 1919 for a drainage easement over the Kings' land in favour of Mrs Young's land, orders setting aside the Council's development consent and construction certificate ('CC'), damages for loss of support, trespass per se, negligence, nuisance, mental distress, plus "aggravated damages", costs, and interest.
During the DC hearing on 18 November 2008, Mr Wright outlined his clients' suggestion that an independent engineer be jointly appointed to design drainage works on the boundary between Nos 35 and 37, and, if necessary, for survey work to be done on both properties. Curtis J indicated that, while he may have come to some preliminary views, he would not publish them until options for a solution were explored in the LEC.
Among other things, his Honour said (at T18.11.08, p2, LL43-46):
I think that the contempt was ill conceived as a way for the plaintiff to get her remedy. It has not been helpful. Well I think that's a good idea. I think that everything you say is sensible. I've prepared rulings on the two motions.
And later (Tp3, LL28-31, 38-40, and 43-44):
I think it's a very good idea. In order for the contempt proceedings to evolve an enormous amount of money be spent on costs probably no point. So that I would think very seriously Mr Newell in advising your client the costs in this matter are already absurd. ...[T]he actual hearing of the contempt will require an analysis of the initial thumbnail sketch and an analysis of that which went to the council. It's going to be days. Going to be days and it's futile. It's wasted. ...[T]here comes a time for flexibility ...
On 22 July 2011, McDougall J in the Supreme Court ('SC') dismissed, with costs, an application by Mrs Young to have the DC proceedings removed into the SC, on the grounds that such a transfer was "premature and therefore lacking utility" [2011] NSWSC 793, at [8].
The DC case was stayed, by consent by, Curtis J on 12 August 2011, pending the outcome of the applicant's motion in this court. The applicant is expected to seek to amend her DC Statement of Claim, if and when the case is reactivated.
Supreme Court cases
On 15 February 2010, Mrs Young commenced her SC case (Matter No. 2010/41007, currently being case managed by Garling J) for damages for breach of duties, negligence, etc.
This court has seen an amended Statement of Claim filed in November 2010 against the 5 named defendants, who are (1) Jason Hones, (2) his firm, (3) Ian Hemmings, (4) expert Dr Stephen Perrens, and (5) Perrens's firm (Hughes Truman) - all of whom were retained by Mrs Young for the LEC proceedings in 2003 (T15.3.11, p6, LL23-24). This court was told during the hearing dealt with in this judgment that Garling J is presently reserved on competing motions he heard earlier in 2012. (It may be that he heard them on or about 28 February, or perhaps in April.)
The Kings are not involved in the applicant's current SC case, but they have also taken their own action in the SC, having sued Pikes for "breach of retainer, negligence and misleading and deceptive conduct" ('the Pikes case' - Matter No. 2010/38916). I have no substantive material before me in relation to that case.
In addition, a trespass or nuisance case in the SC, and a further possible action for mandamus against the Council, have also been mooted by Mrs Young's solicitor and counsel, in correspondence, and during argument.
Transfers among the courts
Further questions may arise regarding possible transfer of matters from one court to another, consequent upon McDougall J's reasons for decision (at [42] above), which left the possibility open for a later time. Mr Newell suggested (T19.9.12, p100, LL10-18) that the DC proceedings should be transferred to the SC, and that both the DC and SC cases should then be transferred to the LEC. In any event, he has foreshadowed applications for documents in each court to be relied upon in the others.
The history of the LEC case as earlier recounted
In my judgment of 31 July 2009, referring to mediation various issues, which had arisen post-2004 in this matter, I recounted some relevant history, in the following terms (at [21]-[37]):
I The evolution of the dispute in 2001-03
21 Mrs Young lives at No.35 and the Kings at No.37 Calca Avenue (sic), Forestville, with No.35 being generally uphill of No.37. Both are residential cottages on a sandstone substrate, and it is said (in McClellan J's judgment) that in heavy rainfall a high water table is evident in that area.
22 The materials suggested that in early July 2001 Mrs Young noticed that the Kings were excavating on their side of the common boundary, taking their ground level to approximately 90cm below hers, and that in mid-August 2001 she noticed piping being installed in further excavation. Concerned that the work (apparently involving establishment of a granny flat and an associated pathway on leveled ground nearby, closer to No.35) may not have had Council's approval, and concerned also about possible impacts on her property, she complained to Council and wrote to the Kings. In November 2001 the Kings removed the boundary fence and in January 2002 laid foundations for a retaining wall. Council apparently granted development consent for the relevant works, ultimately, on 5 February 2002. Condition 20 of that consent required suitable drainage to be installed behind the proposed retaining wall.
23 Mrs Young appears to have alleged that in September 2002 the retaining wall as it then stood was taken down to one layer of blocks on concrete foundations, and that those blocks and foundations were then concreted over to create a 'false foundation', and make the retaining wall on the boundary look like a "'our row' wall when it was really a 'six row' wall. In October 2002 a new dividing fence was erected, and she says that the foundations were further obscured by the subsequent laying of a concrete path. She is reported to have a residual concern that her property is not properly shored up, and that there is some evidence of cracking.
24 It is suggested that the survey information provided to Council by the respondents was false, and that there could well be serious drainage problems, as water 'dammed' on No.37 by the retaining wall or the granny flat, should gravitate to Calca Avenue (sic), rather than to and over one or more properties in Starkey Street directly behind No.37. There is also reference to a suspicion that the stormwater gathered on No.37 might be currently discharged to the sewer. All of this could prove to be a problem for the whole neighbourhood, and so a matter for the Council, as the Kings' works may have disturbed the subdivision drainage system as it was originally designed.
25 The Kings have asserted that they merely 'trimmed' the foundations to remove an encroachment on Mrs Young's property, and they have also complained that illegal fencing, faulty gutters, and illegal drainage for the stormwater on Mrs Young's property is adversely affecting their property.
26 Mrs Young made a series of complaints to Council and apparently repeated them in a letter dated 10 September 2002. Council responded in detail on 5 November 2002 (her letter is Exhibit 'N' and Council's is Exhibit 'T' to her affidavit of 10 October 2008 at tab 3 of Exhibit Y1 before me). She attached to her September 2002 letter a report from one of her engineering experts, John Davies, dated 10 August 2002.
II The LEC proceedings in 2003-04
27 Mrs Young commenced these class 4 proceedings on 14 April 2003 - she sought 15 declarations, 9 injunctions and other relief, including an award of damages.
28 Her Points of Claim pleaded trespass, and various illegalities affecting the Kings' works. Three items, in particular, engaged McClellan J's attention when the case came on for hearing before him on 16 February 2004 - construction of a footing on the southern wall, construction of a retaining wall on the southern boundary, and underpinning of the footings of the Kings house.
29 The Kings' Points of Defence admitted constructing footings for a 'fence' (not a retaining wall) but claimed it was 'exempt' development.
30 McClellan J noted that the Kings' DA plan identified the structure as a retaining wall, and that only a retaining wall of up to 900mm above or below ground level and 900mm off the boundary would be "exempt" development. Given that the wall/fence was on the boundary, His Honour concluded that the defence pleaded by the Kings was unsustainable, and drew similar conclusions in regard to the other two particular Points of Claim and the Kings' purported defences. As the Points of Defence denied that any development the respondents carried out was unlawful, His Honour concluded that their defence as a whole could not be sustained, and, at the hearing, the then solicitor for the Kings eventually conceded that all three of those elements of work were carried out without consent (see His Honour's judgment [10]-[26]).
31 The expert witnesses conferred and agreed that the drainage works as installed at that time were inadequate to protect Mrs Young's property. They agreed on the works which needed to be done - reconstruction of the drainage for the retaining wall to ensure that the capacity of the drains downstream from the wall itself is adequate to dispose of heavy flows. A cost in the order of $1,000 was estimated ([26]) and a joint report was prepared, becoming Exhibit A before McClellan J.
32 His Honour delivered his judgment on 19 February 2004 after a four day hearing - see [2004] NSWLEC 93.
33 His Honour noted (at [29]) that the respondents' engineer, Mr Robert Springett:
'held to the view that because a drain had been installed at a lower level than the retaining wall and adjacent to the underpinning of the main house structure, the sub-surface water would have been drawn down, and the inadequate drain at the high level behind the retaining wall was of no consequence.'
34 The applicant's expert, Dr Perrens, had a different view. McClellan J noted (at [30]) that:
'Although he accepts that the construction of the drain adjacent to the underpinning would have potentially beneficially altered the ground water movement on Mrs Young's property, he was nevertheless of the view that the construction of the footing of the retaining wall with inadequate drainage would have the consequence that water would be likely to back up behind the footing and rise to the surface, with the potential to cause damage to Mrs Young's house'.
35 McClellan J found Mr Springett 'not a satisfactory witness' (at [32]) and preferred Dr Perrens' evidence (see [31]-[33]). His Honour was satisfied (at [34]) that:
'the works which the respondents have agreed to undertake were made necessary by reason of the construction of the retaining wall which, it has been conceded, was constructed without consent. The retaining wall operates to interrupt the flow of sub-surface water and, accordingly, unless adequately drained, the problems which Dr Perrens identified are likely to occur.'
36 Later in his judgment, when examining the historical background of the case to decide the question of costs, McClellan J referred to a video taken during construction, and commented (at [44]):
'That video apparently confirms the presence of a drain adjacent to the underpinning which has a beneficial impact upon the sub-surface waters. However, as I have indicated, I am satisfied that although that drain has a benefit, the footing which has been constructed with inadequate drainage at a higher level is likely to have a detrimental effect.'
37 The following "formal orders" were made by McClellan J at the end of his judgment:
'1. I note the undertaking of the respondents provided in the document which I have initialled and dated and placed with the papers.
2. By consent of the parties, the proceedings are dismissed.
3. I order the respondents to pay the applicant's costs.
4. I reserve liberty to any party to apply generally.' (emphasis added)
McClellan J's 2004 Decision in more detail
Essentially, McClellan J sanctioned an agreement, said to have been made between the parties, under which the applicant agreed to her proceedings being dismissed on the basis of an undertaking given to the court by the respondents to do certain things to resolve her problem. There remained a dispute about costs, which his Honour determined by ordering that the respondents pay the applicant's costs.
I believe that for present purposes I need to set out some of what his Honour said in his judgment of 19 February 2004 ([2004] NSWLEC 93). I commence my extracts at the point where his Honour dealt with the works done towards the Kings' creation of a granny flat, following their acceptance of plans and drawings apparently prepared late in 2000. It would appear that work actually commenced in June or July 2001.
His Honour said (at [5]-[12]):
5 Work commenced on the site to effect the alterations. Excavation was carried out and other work consistent with the ultimate objective was undertaken. In particular, the existing wall of the cottage adjacent to where the granny flat accommodation was proposed was underpinned. Excavation to lower the area for the footpath was carried out, and a concrete footing, consistent with the footing required for the retaining wall on the boundary of the property shown on Mr King's plan, was poured. All of those works were apparently undertaken before the consent of the council was obtained.
6 The council's consent was ultimately obtained on 5 February 2002. As was appropriate, the conditions of approval noted that it related to proposed work only, not work which had been constructed without the prior consent of the council as nominated on the attached plans. Condition 20 of the approval required suitable drainage to be installed behind the proposed retaining wall, including an agricultural pipe to suit the local conditions. A dish drain was to be provided along the high side of the retaining wall to collect and dispose of all surface run-off.
7 Regrettably, the carrying out of the works which necessitated excavation on the boundary between number 37 and number 35, and the undertaking of other works which disturbed the land between the two properties, occasioned difficulties between the neighbours. There is in evidence lengthy correspondence between them reflecting elevated emotions and an incapacity to reach any common ground in relation to the matter.
8 The conflict between the parties extended to a dispute over the appropriate fence between the two properties. The plans indicate that there had previously been a weld mesh fence which was proposed to be replaced by a new wooden dividing fence. As it happens, a steel Colorbond facility has been provided. Apparently this was determined as appropriate following proceedings in the Local Court pursuant to the Dividing Fences Act 1991 (NSW).
9 At an early stage of the conflict, the Kings approached the Community Justice Centre to seek assistance in mediating the problem. As I understand it, the problem at that stage was confined to the proposed dividing fence. Mrs Young was not prepared to mediate that matter and it was ultimately resolved in the Local Court.
10 The correspondence between the parties is, as I have indicated lengthy, and there is little to be gained by my repeating it in these reasons. However, the dispute escalated and, by an application dated 14 April 2003, Mrs Young commenced proceedings in this Court seeking various declarations and orders. The matter was pleaded in points of claim, which were filed on 26 May 2003.
11 In that document it is firstly pleaded that between the period December 2000 to about October 2002, the respondent carried out, or permitted to be carried out, various unlawful works. Of the particulars provided, items (e), (f) and (i) are of significance in the ultimate resolution of this matter.
12 The particulars take the following form:
'(e) Construction of a footing on the southern boundary;
(f) Construction of a retaining wall on the southern boundary;
...
(i) Underpinning of existing footings to the dwelling house.'
His Honour then discussed, in rather a critical way, the pleadings filed ([13]-[15]), and continued (at [16]-[20]):
16 The evidence before me does not enable me to know whether that pleading was made with the express knowledge of Mr King. I also do not know whether it was made with knowledge of the development application and accompanying plans, which had been lodged with the council and approved in February 2002. However, if the solicitors had inquired of Mr King they would have been made aware that the plan identified the relevant structure as a retaining wall and that the footing which had been constructed was the footing for that wall. The relevant provisions of the local environmental plan have the consequence that a retaining wall is exempt if it has a maximum height of 900 millimetres above or below ground level and will be located at least 900 millimetres off any property boundary. In the present case, the retaining wall was proposed to be constructed on the boundary with the consequence that, in truth, there was no defence to the pleading that it had been constructed without consent.
17 With respect to para 3(f) of the points of claim, the same position exists. The footing was constructed for the purpose of the retaining wall, as the plan makes plain. Again, if inquiry had been made, it would have been obvious that the defence as pleaded could never be sustained.
18 The third matter is para 3(i) of the points of claim, which relates to the underpinning which had been carried out to the existing footings to the cottage at number 37. The defence admits that work had been carried out, but pleads:
'such development was exempt under Schedule 1 'Minor Internal Alterations to Buildings' of WLEP 2000 and otherwise deny that this development was unlawful'.
19 It is unnecessary to refer to the plans or to seek instructions in relation to this matter to understand that that defence could never have been sustained. Exemption is provided in the local environmental plan in relation to minor internal alterations, if they are:
'non-structural work such as replacement of doors, wall/ceiling or floor linings or deteriorated frame members, and renovations of bathrooms, kitchens, inclusion of built in fixtures such as vanities, cupboards and wardrobes. Applies only to renovations or alterations of previously completed buildings. Works shall not change room configuration, reduce window arrangements for light/ventilation needs, reduce doorways for egress or enclosed open areas'.
20 The work involved here was obviously structural and obviously external to the building. The pleading that it was minor internal alterations could never have succeeded. I shall return to those matters when I come to consider the ultimate course of these proceedings.
His Honour then dealt with pre-trial offers/attempts to mediate the dispute ([21]-[24]), and continued (at [26]-[36]):
26 The matter progressed through this Court and was fixed for hearing commencing last Monday, which was 16 February 2004. When the matter was called on, Mr Ian Hemmings, appearing for the applicant, briefly opened his case. I then invited Mr Griffiths, the solicitor for the respondents, to tell me the position in relation to his clients' defence. At that stage Mr Griffiths indicated that he conceded that the works referred to in paras 3(e), (f) and (i) of the points of claim were carried out without consent. The parties by that stage were apparently engaged through their experts in discussion about what work might need to be done to rectify any environmental problem on the site occasioned by the works already undertaken. The experts were meeting in the precincts of the Court. By 3 o'clock on the Monday afternoon the experts had agreed on the works which needed to be done. They involve the reconstruction of the drainage for the retaining wall to ensure that the capacity of the downstream drains from the wall itself are adequate to dispose of the water in times of heavy flow. Evidence was given about the likely cost of these works and Mr Springett, a civil and structural engineer engaged by the respondents, confirmed that the cost was of the order of $1000.
27 Accordingly, by the end of Monday, the dispute between these parties had been entirely resolved except in relation to matters of costs. As part of the compromise which the parties reached in relation to the whole matter, the applicant did not press for relief beyond that which was agreed to be involved in the works agreed upon by the experts. The matter was disposed of by the respondents giving an undertaking to carry out those works.
28 As a consequence, it was unnecessary for me to explore all of the evidence prepared for this matter ... [except] insofar as it related to ... costs. ...
29 The necessity for carrying out the agreed works is to protect Mrs Young's property. In this respect, the experts are agreed that the drain which had been installed was inadequate. However, Mr Springett held to the view that because a drain had been installed at a lower level than the retaining wall and adjacent to the underpinning of the main house structure, the sub-surface water would have been drawn down, and the inadequate drain at the high level behind the retaining wall was of no consequence.
30 Dr Perrens, an experienced hydrological engineer, had a different view. Both Dr Perrens and Mr Springett gave oral evidence in relation to this aspect of the matter. Dr Perrens drew upon evidence from piezometer readings taken in May/June last year, following a wet period which was identified to be a "one in five event", and found the piezometer readings to show an elevated water table adjacent to Mrs Young's house. Although he accepts that the construction of the drain adjacent to the underpinning would have potentially beneficially altered the ground water movement on Mrs Young's property, he was nevertheless of the view that the construction of the footing of the retaining wall with inadequate drainage would have the consequence that water would be likely to back up behind the footing and rise to the surface, with the potential to cause damage to Mrs Young's house. There is evidence of water impact upon that dwelling at present, although the evidence does not enable me to find whether or not that has been occasioned by the movement of ground water since the construction of the footing for the retaining wall. Of course, since the footing was constructed, Sydney has experienced, as has much of New South Wales, a dry period.
31 The evidence of Mr Springett was that drawing upon the modelling which Dr Perrens had undertaken of the effect of the lower drain, it had altered the draw down curve so that it would not be possible in future for water to rise to the level which it may previously have done, and, accordingly, the works which had been undertaken in his opinion improved the situation.
32 Mr Springett was not a satisfactory witness. On many occasions he failed to answer the question he was asked, and proffered opinions which were plainly designed to advocate a position rather than fulfil his role as an expert for the Court, namely to assist the Court to resolve the problem.
33 Whereas Mr Springett was unsatisfactory, Dr Perrens was the opposite and, having regard also to his qualifications and experience, I accept his evidence on these matters. In particular I accept his analysis of the situation having regard to the elevated piezometer readings and his conclusion that the construction of the footing without adequate drainage would have the consequence in significant wet periods of locally raising the water table adjacent to the cottage. This would occur because an inadequate drain would not allow sub-surface water to be removed as efficiently as would otherwise have been the case.
34 Accordingly, I am satisfied that the works which the respondents have agreed to undertake were made necessary by reason of the construction of the retaining wall which, it has been conceded, was constructed without consent. The retaining wall operates to interrupt the flow of sub-surface water and, accordingly, unless adequately drained, the problems which Dr Perrens identified are likely to occur.
35 It follows that the applicant has succeeded in these proceedings.
36 Of course, there were many other matters pleaded and, as I have indicated, some in the alternative. There were also other issues which have not required resolution. However, the applicant has substantially succeeded in the proceedings and will obtain undertakings which provide relief in relation to the adverse impact upon the applicant's dwelling. ...
His Honour went on to address the question of costs, in the context of the evidence before him regarding some settlement negotiations ([37]-[82]).
His Honour commented as follows, in regard to the substantive issues, in the course of his remarks which were mainly relevant to costs:
39 ... I am satisfied that a drainage problem had been created by the construction of the footing with inadequate drainage.
...
41 That offer was made in the belief that the applicant's ground water problems were being caused by an inadequate stormwater detention facility within her own property. In their offer, the respondents were offering to fund the reconstruction of a water detention pit in the belief that it would resolve the applicant's problems. However, no offer was made in relation to the drainage of the footings or any other rearrangement of the drainage conditions on the respondent's property. As I have found that the footing for the retaining wall has had the effect of interrupting the sub-surface flows, I am satisfied that it was not unreasonable for the applicant to reject that offer.
...
43 As it happens, the ultimate resolution of the drainage problem is consistent with the offer which was then made. However, there is one further matter to which I should advert.
44 At the time this offer was made, the applicant's experts were not aware of the nature, if any, of the drainage which had been placed adjacent to the underpinning of the main part of the cottage. Accordingly, they were not aware whether there was a drain in that location which could function to draw down the ground water on the respondent's property and also on the applicant's property. The presence of that drain was a feature of later discussions, which included a dispute in relation to a notice to produce which sought a video taken of the works during the course of their construction. The applicant requested that video but the request was declined unless the applicant was prepared to pay the cost of editing the video to remove material irrelevant to the construction activities. Although the parties exchanged correspondence about production of the video, it was not ultimately provided until last Friday, 13 February, and was shown to the applicant's experts on the afternoon of Monday, 16 February, after the proceedings had commenced. That video apparently confirms the presence of a drain adjacent to the underpinning which has a beneficial impact upon the sub-surface waters. However, as I have indicated, I am satisfied that although that drain has a benefit, the footing which has been constructed with inadequate drainage at a higher level is likely to have a detrimental effect.
...
79 ... this matter required at an early stage for competent persons on either side to meet with a view to determining whether or not there was a problem and, if so, whether there was a solution. As is now apparent, there was a problem for which the solution was to do works costing in the order of $1,000.
80 This case presents considerable difficulties. The correspondence reveals a level of animosity between the parties which grew both prior to and during the course of the litigation. The matters raised in the points of claim provide a comprehensive account of problems perceived with the respondent's building works. I have already adverted to some of the problems which arise from the defence which was filed. It is not possible to know with any certainty what the fate of these proceedings would have been if, instead of denials being made, it had been accepted that some of the works, being those works relevant to the alleged drainage problems, were conceded to have been constructed without consent. It is also not possible to say with any certainty what may have occurred if a competent mediator had been engaged at an early stage.
81 .... In this case, the applicant has succeeded. By concession, she has established relevant breaches of the planning law and has obtained an undertaking that the works necessary to deal with the consequences of some of those works will be undertaken. ...
His Honour went on to deal with the conduct of the then legal representatives on both sides ([83]-[90]), and included the following comment (at [86]):
86 During the course of the proceedings I also expressed concerns about the conduct of the solicitors for the respondents in relation to the filing and maintenance of a defence which, at least in certain fundamental respects, I am satisfied could never have been sustained. As I have indicated in the course of my reasons, the plans drawn up by Mr King for the building works on his property made plain that what was proposed was a retaining wall for which the footing was constructed before consent was obtained from the council. Being a retaining wall to be constructed on the boundary of the property, it was not exempt development under the Local Environmental Plan. In addition, the work by way of underpinning the existing cottage could never be described as 'minor internal alteration' even though this was pleaded in the defence (para 3(i)).
"Finalising" the 2003-2004 litigation following the McClellan judgment
Put shortly, McClellan J found little merit in the defences pleaded by the respondents to the applicant's proceedings, and accepted the respondents' undertaking to do what his Honour saw as the course which should be followed to rectify the environmental harm/threat. He, therefore, formally dismissed the proceedings, but awarded the applicant her costs.
At the end of his judgment on 19 February 2004 (in [91]), McClellan J pronounced the following orders, which I quoted above, (at [49] 37, with emphasis added):
1. I note the undertaking of the respondents provided in the document which I have initialled and dated and placed with the papers
2. By consent of the parties, the proceedings are dismissed.
3. I order the respondents to pay the applicant's costs.
4. I reserve liberty to any party to apply generally.
What then occurred in the matter was summarised in my judgment of 31 July 2009 (at [38]-[42]) as follows:
38 The formal orders as subsequently issued by the Registrar were in the following terms:
The Court orders that:
1. Application is dismissed.
2. The respondents to pay the applicant's costs.
3. Liberty to apply generally.
4. Note the undertaking of the respondents.
39 The respondents' undertaking, dated 19 February 2004, was in the following terms:
The Respondents undertake to the Court to:
1. Carry out the works identified in Exhibit A within 21 days.
2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 & 37 Calca Crescent, that wall to include the drainage works referred to in clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking. The Respondents are to make all reasonable endeavours to progress the development application through Council. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council.
40 On 8 March 2004, His Honour, on the respondents' motion, but with Mrs Young's consent, made the following further orders (as recorded in typewritten 'Associate's Notes' contained in the archived court file, there being no note of them on the court file cover):
1. Undertaking given to the court is, with the leave of the court, withdrawn.
2. Note Respondents' undertaking to the court in accordance with the amended form of undertaking which I have today initialled and dated.
3. Reserve liberty to either party to apply. (emphasis added)
41 The 'amended undertaking', dated by His Honour '8 March 2004', was in the following terms:
The Respondents undertake to the Court to:
1. Carry out the works identified in Exhibit A within 21 days of granting of development consent by Council or by the Court.
2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 and 37 Calca Crescent, that wall to include the drainage works referred to in Clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking.
3. The respondents are to make all reasonable endeavours to progress the development application through Council.
4. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council or by the Court. (emphasis added)
42 There was no change made to Exhibit A. The original exhibit was authored by one geotechnical expert involved in the hearing, Mr Warwick Davies, and is among the 2004 court papers. The parties are attempting to agree upon a legible transcription of it, but a photocopy of the handwritten original exhibit is attached to these reasons.
Dealings between the parties, following the 2004 orders
The respondents satisfied the costs order made by McClellan J, paying an amount of some $157,000 to the applicant on account of her costs (T15.3.11, p20, L36).
However, the implementation of the other orders made by McClellan J proved, and has remained, at the very least, contentious.
As I noted in my July 2009 judgment (at [43]-[48]):
43 It is submitted on Mrs Young's part that the (amended) undertaking was acceptable to her as there had been a representation made to the court that there was entirely adequate drainage on the Kings' side of the boundary.
44 The effect of the March 2004 variation of the undertaking was to require Mr & Mrs King to seek development consent from Warringah Shire Council in order for the required works to be carried out, rather than their being simply required to carry out certain works. It is not now possible to obtain a transcript of the proceedings before McClellan J on 8 March 2004, but it has been suggested in argument recently that the addition of the words 'or by the Court' in pars 1 and 4 of the amended undertaking may have been on the initiative of His Honour, he having taken into account the possible complication of Council's refusing consent and the matter of the works coming back before this court by way of, normally, an appeal in class 1 of this court's jurisdiction, or, perhaps, a further exercise of the 'liberty to apply' which His Honour had granted.
III The DA is made and refused 2004-06
45 On 8 March 2004 the Kings lodged a DA as envisaged by the undertaking, and, as earlier noted, Council eventually refused it on 30 June 2006. At least one ground for that refusal appears to have been Mrs Young's refusal to grant her consent to it - Mrs Young's then solicitor (Jason Hones) had lodged with Council on her behalf on 2 April 2004 a detailed objection to DA 2004.282A.
46 Mrs Young says she was neither warned that she would be asked to consent, nor asked to do so, but would do so if the details were correct. Her case is that (1) the depth of the retaining wall was misrepresented to the Council, and that (2) works should probably not be required on her land. She says she objected to the Kings' post-judgment DA because of (3) its failure to fulfil the clearly expressed requirements which led to her agreeing to the dismissal of her proceedings, and (4) the technical concerns of her experts.
47 No appeal was lodged with this court, nor was there any effort to exercise the 'liberty to apply', until 2008, in respect of the failure to obtain development consent.
IV The problem apparently persists
48 Council having refused the DA, the drainage problem at the heart of the original proceedings apparently remains unresolved to this day.
New Lawyers came into the matter in 2007-8
The DC case was, as noted above, commenced on 4 July 2007.
Among the affidavit materials in the LEC's court file for the present NOM there are items of correspondence between the parties' current solicitors, dating from early 2008.
Muriniti wrote to Stern on 11 March 2008, shortly after obtaining his first instructions to act for Mrs Young.
Muriniti indicated in that letter that he anticipated writing to this court asking for the proceedings "to be re-listed in light of your clients' apparent failure to comply with the undertakings which were given to the Court".
He went on to speculate as to whether an order made by consent dismissing the proceedings was susceptible to vacation, and indicated his assumption that if the order cannot be vacated, his client would seek to commence proceedings for contempt.
He also suggested that "separate fresh Class 4 proceedings be commenced against your clients, identical to the proceedings which were earlier brought before the Court, except that Warringah Council will be joined as a party this time, and the Court will be motioned to make an order that the evidence in the earlier proceedings be evidence in the new proceedings".
The Muriniti letter continued:
Consideration will then have to be given as to whether the proceedings in the Land and Environment Court should then be transferred to the Supreme Court, concurrent with the proceedings that are presently before the District Court also being transferred to the Supreme Court and both sets of proceedings being consolidated or otherwise heard concurrently.
Whilst these matters are being attended to we suggest that by consent, the proceedings in the District Court be stayed.
We request that you indicate whether your client is prepared to agree to the proceedings in the District Court being stayed whilst an approach is made to the Land and Environment Court as indicated above.
In the event that your clients' consent is not forthcoming, we advise that we will motion the Court for a stay of proceedings pending a determination of the proceedings in the Land and Environment Court.
Stern responded on 13 March 2008 that, on his instructions, the DC proceedings lacked merit. The Kings denied any breach of undertaking, and asserted that Mrs Young's conduct "was such as to constitute possible contempt of the Land and Environment Court, in that your client sought to frustrate and interfere with my clients' actions directed towards compliance with the undertaking, which they had given to the Court".
Muriniti responded at length over several letters - dated 19 March 2008, 2 April 2008, 29 April 2008, and, eventually, 5 May 2008.
In the letter of 5 May 2008, Muriniti noted that Stern had failed to give particulars of the "factual basis for making such a serious allegation", namely that Mrs Young was guilty of possible contempt. Muriniti went on to recount what he had gleaned from a perusal of the Council's file, namely, in his opinion, that the development application ('DA') lodged with the Council by the Kings in purported compliance with the undertakings given to the court, was not accompanied by any considered or detailed plans or specifications. "Such information as was provided by your clients in support of their development application was referred by our client to her expert, Dr Perrens for comment". Dr Perrens was alleged to have identified numerous areas of deficiency and concern, which were then conveyed to the Kings.
It had not previously been put to Mrs Young that the DA lodged by the Kings would require her consent so that work might be undertaken on her land. On the basis of Dr Perrens' views, Mrs Young "was completely entitled and completely justified to require further and more detailed information", and the Kings failed to address her concerns and those of Dr Perrens. Accordingly, the Kings' DA did not advance further until, in about August 2005, the Kings "purported to lodge with Council a further plan in support of the development application which, on our present understanding, failed to address adequately all of our client's concerns and the concerns of her expert Dr Perrens".
In those circumstances "our client could not provide her consent to the development application".
Muriniti noted that Mrs Young had given no undertakings to the court that she would provide her consent to any work being undertaken on her land. In her view the Kings' undertakings were "to effect all necessary work in order to address the drainage problem which had been created by their actions". He further noted that Exhibit A did not indicate that any of the remedial work contemplated required any work to be undertaken on Mrs Young's land, such that her consent would be required. It was her understanding "that all remedial work ... would and could be effected within your clients' property and would not involve our client's property at all".
That DA had been refused by Council, and Muriniti's letter of 5 May 2008 continued:
It is our client's position that given your clients' failure to adequately address her concerns and the concerns of her expert, Dr Perrens, her reluctance to provide her consent for work to be undertaken on her property was quite proper and justified.
In any event, it was not, in our respectful submission, sufficient for your clients to consider themselves released from their undertakings to the Court by virtue of the fact that the development application which was lodged by them in purported compliance with the undertaking had been disallowed by Council.
The letter proceeded to give various reasons for the assertion that the Kings had not complied with their undertakings, and suggested, on a without prejudice basis, that the parties adopt "a practical approach to be taken to attempt to resolve the primary matter in issue, viz: the existing drainage problem with which our client is confronted because of your clients' actions". The letter went on to propose detailed options involving basically a stay of the DC proceedings, and some application to the LEC to deal with the failure to perform the undertakings, noting:
The undertakings envisaged as an alternative that an approach could be made to the Court to obtain from the Court appropriate development consent if development consent was not forthcoming from Council. It is our respectful submission that that right was expressly stated in the undertakings in contemplation, both by the Court and by the parties, that in the event of any difficulties in procuring appropriate development consent from Counsel (sic), the parties could refer the matter to the Land and Environment Court for an appropriate determination by the Court in lieu of the Council.
The letter concluded:
There is one further practical advantage of a stay of the District Court proceedings whilst the matters referred to above are addressed and that is that if there is a satisfactory resolution of those matters, then it can be expected that that will have a significant impact on the quantum of damages that might otherwise be available to our client if the drainage problem is not satisfactorily resolved.
Accordingly we invite you to seek your client's urgent instructions and to advise us as to whether they would be agreeable to adopting one of the courses of action which have been proposed hereinabove and if so, we propose that by consent, the proceedings in the District Court be stayed temporarily to enable your clients to either make a fresh application to Warringah Council or otherwise, that an approach be made to the Land and Environment Court.
Stern responded on 6 May 2008, in the following terms:
I do not intend to respond in detail to the lengthy allegations that you make in that letter, except to say, that my client denies the allegations therein. It should, however, be apparent, even from the version of events that appear in your own letter, that your client has refused to consent to the development application that is the subject of the orders made in the Land and Environment Court and has instead demanded concessions that were not the subject of those court orders as their 'price' to provide their consent to our clients' development application.
The orders are quite clear, they require my client to 'make all reasonable endeavours to progress the development application through council' (which they have clearly done) and to perform certain works after that development application is granted (which they cannot do because of your client's refusal to grant their consent to the development application). The orders do not require my client to take any further action until the development application is approved.
I do agree that 'the situation calls for a degree of commonsense'. My client is prepared to discuss (on a without prejudice basis) why your client is refusing to consent to the Development Application that would allow for the works to be completed. I do not, however, see that any of the proposals made in your facsimile of 5 May 2008 provide the appropriate solution. Further, I do not understand the relevance of the District Court proceedings to this issue.
The District Court proceedings essentially seek relief for matters that were already the subject of the Land and Environment Court proceedings. As such, your client is now precluded by the principle of res judicata from re-agitating those issues in the District Court (an alternative way of expressing this position is that your client's rights merged in the orders of 17 February 2004 (as amended on 19 February 2004)). In my opinion, the District Court proceedings should be struck out or alternatively permanently stayed. There is no reason to just have these proceedings temporarily stayed as the inherent flaw in the commencement of these proceedings will not be remedied by any possible orders or action that could be taken in the Land and Environment Court. I, therefore, recommend that the District Court proceedings be dismissed (with costs) and that the parties meet (on a without prejudice basis) to see if they can resolve the impasse that has developed in respect of the orders made in the Land and Environment Court.
Muriniti wrote again on 8 May 2008, and his letter included the following:
We refer to your letter dated 6 May 2008 and advise, with the greatest respect, that your clients' motion to have the proceedings dismissed for want of prosecution is misconceived.
There has not been a failure to prosecute the proceedings, as alleged. The most that can be said is that there have been some delays that have been completely warranted and justified having regard to the fact that the matters in issue between our respective clients potentially straddle three different jurisdictions, namely the Land and Environment Court, the District Court and the Supreme Court.
The causes of action which are presently pleaded in the District Court are causes of action which do not, in our respectful submission, fall within the jurisdiction of the Land and Environment Court. However, the proceedings in the Land and Environment Court, both those which have already taken place and those that are contemplated and the outcome of those proceedings will have an impact on matters which will need to be considered by the District Court and in fact, depending on the outcome of the proceedings in the Land and Environment Court, the extent of the proceedings in the District Court as well as the potential quantum of damages which may be available to our clients if they are successful will have to be determined by reference to what occurs in the Land and Environment Court.
The letter went on to deal with the issue of res judicata, and to again propose a course of action involving a stay of the DC case, and the resolution of the issues that had arisen in respect of the LEC proceedings, essentially by having them reinstated and referring the dispute to mediation. Once the LEC issues have been resolved, it may prove possible to negotiate a possible resolution of the DC matter. The option advanced required Mrs Young to make the LEC application, and the Kings to not persist with any application to strike out the DC proceedings.
The NOMs filed in this court in 2008 and since
As foreshadowed in Muriniti's letter to Stern of 11 March 2008, the applicant filed in this court on 23 May 2008 the first of four NOMs that eventually came before me, on 26 March 2009.
In my 31 July 2009 judgment, I noted as follows, in respect to the four NOMs (at [59]-[65]):
59 The four notices of motion currently before the court are as follows:
(a) NOM 1 is an amended NOM dated 6 August 2008 by the applicant (replacing the one filed 23 May 2008), alleging contempt of court and seeking (1) punishment of the respondents (pars 1, 2, 10, 11), and/or (2) declarations that the respondents breached their undertaking to the court dated 8 March 2004 (pars 3 and 4), and/or (3) various declarations as to the effect of the court's orders of 19 February 2004 (pars 6, 7, 8), and/or (4) an order vacating the order made on 19 February 2004 dismissing the proceedings, so as to reinstate them (par 9). A lengthy statement of charge dated 6 August 2008 is associated with this NOM.
(b) NOM 2 was filed on 26 November 2008 by the applicant, seeking orders granting access to the respondents' land by experts (specifically a surveyor and a plumber, but query also some engineer or hydrologist) acting for the applicant.
(c) NOM 3 was filed on 20 February 2009 by the respondents, seeking (a) separate (and primary) trial of that part of NOM 1 as alleges contempt, and (b) directions as to clarification by the applicant of the evidence relied upon in that regard.
(d) NOM 4 was filed on 23 February 2009 by the applicant, seeking leave to file an (or two separate) amended statement(s) of charge in respect of the alleged contempt.
60 The four NOMs were listed for hearing on 26 March 2009 and have been adjourned part-heard to 12 May 2009, and then to 26 May 2009, 9 June 2009, 7 July 2009, 23 July 2009 and 29 July 2009. During the hearing on 12 May 2009 Mrs Young's counsel, Mr Newell, informed the court that he had been instructed to 'withdraw' the contempt charge(s). That step would truncate NOM 1, and would appear to eliminate any utility in proceeding with either the respondents' NOM 3 or the applicant's NOM 4.
61 Persistence by the applicant with some further refined version of NOM 1, and with NOM 2, constitute an attempt to reopen these proceedings in what are argued to be the clearly 'exceptional circumstances' which are required to be established to justify reopening completed proceedings. ... [citations now omitted]
62 I have so far declined to grant any further amendment of NOM 1, as per the draft presented by the applicant, to which the respondents have objected because it goes beyond mere deletion of those elements of NOM 1 which dealt with the allegations of, and proposed punishment for, contempt. All three other NOMs remain on foot.
63 NOM 1 in its original form was listed before Jagot J as List Judge on 4 and 18 July 2008 for directions. It was amended on 6 August 2008 to include allegations of contempt, and to effect other changes in the prayers for relief. Since then the matter has been in the List Judge lists on 15 August and 19 September 2008 (both Biscoe J), 31 October, 21 November, 12 December 2008 and 13 February 2009 (all Pain J). (The District Court strike-out proceedings had been revived, and had been aired several times in that court in that period). NOM 2 was filed on 26 November 2008, NOM 3 on 20 February 2009, and NOM 4 on 23 February 2009.
64 The List Judges in this court, in the period July 2008-February 2009, expressed some 'misgivings' about the applicant's prayers for civil relief, such as declarations regarding breaches of the undertaking ... [citations now omitted]
65 Biscoe J referred to Mrs Young's prayers for declaratory relief as 'unorthodox', even 'bad', and possibly vulnerable to a strike-out application. Perhaps His Honour thought it would be necessary for her to seek such declarations in separate proceedings, rather than seek to reopen those in which the undertaking was given.
Whereas Jagot J seems to have regarded the contempt motion as the only course really open to Mrs Young to "enforce" the undertaking, after the lapse of time from 2004, I observe, with very great respect, that Mrs Young's decision to take that course regrettably served to inflame the conflict between the parties and their legal representatives, and to complicate early attempts by this court to find some resolution.
On the other hand, Biscoe J's later hint that separate proceedings should perhaps be commenced to secure a reopening of the 2004 orders (as distinct from other relief) was not embraced. The Court of Appeal, in one of its many judgments in the Teoh v Hunters Hill Council litigation, namely its judgment No 5 [2012] NSWCA 75, noted (at [11]ff) a series of cases which indicated that it has long been "the convenient practice", "the proper method", "the preferable course", or "the better course" for attacks on judgments on the grounds of fraud to be made the subject of new and separate proceedings, rather than a motion in the original case. See also Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd ('Permanent Trustee') (1976) 15 ACTR 45; (1976) 28 FLR 195, per Brennan J (at FLR 198-9).
None of the allegations and counter allegations which I recorded in my judgment of 31 July 2009 has yet been proven.
In his written submissions of 14 September 2012, when dealing with the applicant's now developed "allegations of collusion, fraud and corruption", Mr Wright says (par 47):
The first hint of these allegations appeared at a directions hearing before Biscoe J upon the filing of an affidavit of Mr Muriniti sworn 14 August 2008 referring at paragraph 8 to 'a course of conduct appears to have been engaged in both by the respondents and Warringah Council which involved numerous subtle but significant deviations from planning law and practice'.
(Mr Wright cites, in fn 17, T15.8.08. p5, LL20-30, and notes that: "At that stage, the contempt allegations were still being pursued")
Whatever may be the truth of any of the allegations of fraud or bad faith, each side became highly distrustful, over time, of the other's experts.
Referral to Mediation
After several appearances before me, commencing in March 2009, the parties finally agreed that this court should make an order under s 26(1) of the Civil Procedure Act 2005, and agreed also on the appointment of the Honourable M L Pearlman AO (since deceased) as a mediator.
In the conclusion to my judgment of 31 July 2009, I said:
73 Section 34 of the CP Act makes it absolutely clear that the parties are entirely free to engage the same mediator, or another one, if they so choose, in respect of any other disputes between them, but this court can order the mediation of only matters which fall within this court's jurisdiction, and not of the District Court proceedings or of any possible or proposed further proceedings, involving, as suggested, the applicant's former lawyers.
74 On the question of material to be provided to the mediator, I have earlier referred to the possible value of Council files, which could provide a documentary history of relevant matters since McClellan J's decision. Council's letter of agreement to participate in the mediation sought copies of 'all the pleadings filed and the evidence served in the Land and Environment Court proceedings'. Some of that material was put on to support the now-abandoned contempt allegation, and Mr Wright does not want the mediator's view 'coloured' by such 'prejudicial' material. The court may also be required to grant leave for some of the filed material to be made available to the mediator, given that some affidavits put before the court contain material obtained on subpoena. I propose to grant the parties liberty to apply, and will endeavour to satisfy any requests made of the court by Ms Pearlman.
75 Once the mediation is concluded, the court would expect its outcome to be reported, and any 'loose ends' or 'unfinished business' can then be attended to. Some costs aspects may then still need the court's attention.
The effect of the orders which followed (in [76]) was to place before the mediator the substance of the NOMs, other than the question of contempt. I attached to my judgment a copy of Exhibit A, which (1) had come into existence at the joint expert "conclave" held at the court in February 2004, (2) proved crucial to McClellan J's decision, and (3) had been associated with his Honour's orders and the respondents' undertaking.
Warringah Council was, in this court's view, a "key player in finding a resolution of the dispute between the parties", and remains so.
Council was not a party to the LEC proceedings, but seemed (a) prepared to be joined if they are reopened, and (b) willing to participate in the mediation (see [16]-[17] and [74] of my July 2009 judgment). (On 10 May 2011, Ms Samantha Kelly, a solicitor acting for the Council in the DC proceedings, twice assured the court, intervening by leave, that, contrary to what Mr Newell was putting regarding the Council's attitude, Council remained willing to attend the mediation, "provided we are provided with some indication by the Applicant's solicitors prior as to what they want from us" - see T10.5.11, p19, LL38-40 - or "at least the pleadings" - p23, LL31-34 - see [118] below).
The Kings' current legal representatives also wanted independent experts "engaged to assist in the process", but I preferred to allow the mediator to consider that option ([15] and [71]). I also left it to the mediator to indicate to the parties, and the court, what materials they may wish her to see ([19] and [74]).
It was clear that, if the mediation did not succeed, or indeed did not proceed, the court would still have before it the NOMs which were listed for hearing together on 26 March 2009, three of them filed by Mrs Young and one filed by the Kings (see [84] above).
The Attempted Mediation ends unsuccessfully
On 11 November 2009, and 9 April 2010, Hon Mahla Pearlman wrote to me advising of the "progress" of the mediation, but on 16 June 2010 she advised me and the parties' solicitors that she had terminated the mediation because of the ongoing silence of the parties as to a date for it to be continued.
However, the Order I made on 31 July 2009 referring the matter for mediation still stands - the fact that a mediation takes time to succeed does not mean that the subject matter is not suitable for that form of dispute resolution, and/or that the parties or the court should abandon it as an option. (T15.3.11, p9, LL15-33).
Ms Pearlman agreed to remain on "stand by" ([115] below), but the parties showed little interest in resuming the process, and she passed away on 2 December 2011. No replacement has yet been discussed with the court.
The charge of contempt is dropped
The court was told on 26 May 2009 that Mrs Young's allegations (in NOM 1) that the Kings were in contempt of court would not proceed.
Those allegations, and the Kings' NOM relating to their disposition as a priority/separate question (NOM 3), were formally withdrawn on 10 May 2011.
As a consequence of those withdrawals, NOM 4 seeking to amend the statement of charge for contempt now also has no utility.
The NOMs minus contempt
The two NOMs which remain on foot are, therefore:
(1) those parts of Mrs Young's NOM 1 filed 23 May 2008 (as amended 6 August 2008) which seek to "reopen" these LEC proceedings, to have this court:
(a) vacate its order, made on 19 February 2004, dismissing the proceedings, and/or
(b) make declarations that the respondents breached their undertaking to the court dated 8 March 2004, and/or
(c) make declarations as to the effect of the court's orders of 19 February 2004;
and
(2) Mrs Young's NOM 2 filed 26 November 2008 seeking access to Kings' land for her experts (a surveyor and a plumber, and possibly also an engineer or hydrologist).
NOM 1 has since been reformulated, and the respondents contend that NOM 2 must await the applicant's success on NOM 1, at which time the court will have to chart a new course for Mrs Young's proceedings, the focus of which is her application to re-agitate the substantive issues from the original hearing.
Mrs Young's attempts to re-agitate the matter in this court flowed from the Kings' attempt to have Curtis J dismiss her DC proceedings, on the grounds of res judicata or estoppel following McClellan J's 2004 decision.
Curtis J apparently encouraged the parties to return to the LEC to seek a solution to their ongoing dispute - by seeking to somehow have the LEC "enforce" the undertaking (?), rather than seeking a solution through pursuit of the contempt charge (DC transcript 18.11.08, p2, LL43-44 and p3, L40).
In addition, in August-September 2008, Biscoe J (as List Judge) hinted that declaratory relief, such as is sought in NOM 1, might be more appropriately sought in separate proceedings, rather than in a motion to reopen (see [63]-[65] of my earlier judgment, and [86] above).
The Matter returns to this Court
On 22 June 2010, following Ms Pearlman's termination of the mediation, Stern asked me to relist the matter for directions, but it was not until 14 February 2011 that Muriniti advised me that his client was ready for the matter to be so relisted.
On 28 September 2010, Muriniti wrote to my Associate, saying, inter alia:
Since the matter was before His Honour there have been significant developments as a consequence of factual enquiries which have been undertaken. These developments have required that considerable thought be given by the Applicant as to the courses that should be adopted by her.
The Applicant has commenced proceedings against her former legal representatives arising out of their handling of the 2003 Land & Environment Court Proceedings ('the 2003 proceedings'). We understand that the Respondents have also commenced proceedings against their own legal representatives arising out of the 2003 proceedings. We do not know what allegations are made in those proceedings.
As matters stand, there are now three sets of proceedings arising out of the circumstances giving rise to the dispute including the determination of the 2003 proceedings. With a view to keeping costs and forensic processes within reasonable bounds, we have been seeking to determine the most efficient manner of resolving those proceedings. That consideration includes the order in which those proceedings should be resolved and whether, and if so how, they should be amalgamated.
We are also giving consideration to the question of a mediation involving all of the stakeholders by reason of the various proceedings on foot.
On 14 February 2011, Muriniti advised me that Mrs Young was ready for the matter to be re-listed, and I eventually brought the parties back before me on 15 March 2011.
The chronology of events since that re-listing needs to be recounted now in regrettable detail.
The Parties' many appearances 2011-2012
15 March 2011
Mr Wright, counsel for the Kings, consistent with his position throughout the matter since it first came before me, again sought an order appointing an agreed independent engineer to address a list of questions, the answers to which could be put in a report to be provided to the mediator. (See Palmer J in Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777; (2004) 12 BPR 22,287 at [93] - [98]). Mr Newell handed up a draft of a document in which he articulated a series of grounds upon which Mrs Young will now seek to have me set aside McClellan J's orders and reopen the case ("the 'grounds' document").
Mrs Young may well have sought to bring her NOM by exercising the liberty to apply granted by McClellan J, but the formulation of the motion itself was seriously questioned, early on, by the List Judges (see [85] - [86] above), as the authorities clearly and firmly establish that such liberty is designed solely to facilitate the "working through" of orders/undertakings, and not a post-facto attack on them. (See Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201, at [50]-[57].)
Gradually over time (2009-12), as Mr Wright noted (T18.9.12, p78, LL4-8), that early litigation strategy was "completely abandoned" by the applicant as Mr Newell's "case theory" evolved, and, as he says (in his written submissions, par 38):
The applicant does not now seek to work out the order (or undertaking) but to depart from it completely and to embark upon a complete reagitation of a very significantly expanded case at the same time that she proceeds against multiple other defendants.
Mr Wright submitted orally (Tp78, LL9-12):
There could not be a clearer inconsistency between the idea of coming back to fix an undertaking which is now said never to have been possible, never intended to have been possible, as a solution to the dispute between the Kings and Mrs Young.
In Mr Wright's view (T18.9.12, p71, LL37-47), Mrs Young may rely on only the "very limited statutory referral jurisdiction" provided for in UCPR 36.15, with all its exceptions, which he says were not expanded by cases such as Logwon, and also with any limitations now imposed by Kirk. He made clear also (Tp78, L39) that, even if Mr Newell were relying upon "implied jurisdiction" ([255] above), the respondents would be making the same dismissal application, now that the applicant's case has been defined.
I now, therefore, turn to consider the line of relevant cases.
The headnote to the Court of Appeal's 1993 decision in Logwon, upon which the applicant heavily relies, records that it is authority for the proposition that the LEC is a superior court of limited jurisdiction, including, absent any statutory limitation, jurisdiction to discharge or revoke a consent order, made by it, but entered into by a party under a mistake. The principal judgment was delivered by Sheller JA. Kirby P and Powell JA concurred in the decision to dismiss the appeal, from a decision by Bignold J, refusing to set aside two sets of consent orders, but each concurring judge made some remarks of his own.
Powell JA said (at 34G-35):
... in cases in which an application to set aside an order might conveniently be made by motion on notice in the proceedings in which the order was made - indeed, at one stage, in September 1990 such an application was proposed in this case - it seems to me that, in cases in which the ground upon which the application is sought to be based is fraud, or unilateral mistake, the need to have the alleged fraud, or the nature of the alleged mistake, properly pleaded and particularised, and the allegations of fraud or mistake established by the type of evidence which such allegations require, make inappropriate the use of a procedure which is designed for the determination of interlocutory applications.
Kirby P addressed his remarks (at 16-17) to a suggestion made by Sheller JA (at 27G) that the LEC "has an inherent jurisdiction which supports the power which it affirmed to set aside consent orders in specified circumstances".
Kirby P preferred the term "implied authority", but acknowledged that the distinction between "implied" and "inherent", a distinction which he considered to be both "compelling", and supported by "legal history and legal principle", was of no significance to the case at hand. However, he perceived "real difficulties in purportedly assigning to statutory courts inherent powers" - inherent powers require no statutory authorisation. The SC's inherent jurisdiction comes from its "historical origins and its nature", not from the Supreme Court Act 1970.
His Honour continued (at 17F-G):
The Land and Environment Court, like all other courts created by statute in this country, is not of the same lineage. It does not share the same history. It does not enjoy the same general jurisdiction. Its powers must therefore be traced, directly or indirectly, to its charter. This is the statute creating it and later statutes conferring jurisdiction upon it. To the express powers conferred by such statutes are added a wide penumbrum of powers implied
both in the language of the relevant statutes and derived from the nature and purposes of the court as a court. Beyond that, however, I would not go. History and the sources of the powers of statutory courts forbid it. Policy and principle also suggest the contrary. I would reserve talk of inherent jurisdiction to the Supreme Court and the High Court entertaining appeals from them. Statutory courts enjoy jurisdiction implied in the way in which I have described.
The foregoing distinction is doubtless elusive, perhaps metaphysical. However, it may, in another case, be important. In otherwise concurring with the reasons of Sheller JA in this case, I would not wish the point to be lost.
Sheller JA described the complex litigation between the parties, and the history of the matter. The relevant aspect of the matter as it came before the Court of Appeal was an allegation of mistake as to the effect on the consent orders of relevant conditions of consent. Bignold J had upheld his jurisdiction to set aside the consent orders, and found that the company's mistake(s) afforded no basis for avoiding either set of consent orders, and that there was no evidence that the Council made any false representation.
Sheller JA considered, in a general way, this court's jurisdiction (at 26F-29B), then, specifically, settlement agreements and consent orders (29C-30A), and then similarities with equitable principles regarding compromises (30A-F), before upholding (at 30F-G) Bignold J's decisions (1) that he had jurisdiction, and (2) against the application.
Mr Newell (written submissions, par 2, pp1-4) quoted extensively from Sheller JA's judgment (27G-30A), and (par 3) from Brennan J's judgment in Permanent Trustee, upon which Sheller JA had also relied. He then (par 4) quoted from Teoh No 3, and referred (pars 5-9) to other authorities and to UCPR 36.15. The balance of his written submissions (pp7-33) dealt with the factual bases upon which he argued in favour of relief for Mrs Young.
Prior to Kirk, but well after Logwon, I considered the law, as it then stood, on applications to "reopen" (including for alleged fraud) in TeohNo 3.
Relevantly, Mrs Teoh (1) had joined the Council in her substantive proceedings, but, like Mrs Young, (2) was tardy in making her reopening application, (3) did not commence separate proceedings in respect of her allegations of fraud, and (4) constantly "shifted her ground" in attempting to upset the court's primary decision (see [16]-[22]). I set out the relevant principles at some length ([44]-[61]), and concluded that relief should be refused. The Court of Appeal has, on six occasions, declined to intervene (most recently on 23 August 2012 in Teoh v Hunters Hill Council(No 6) [2012] NSWCA 260).
Mr Wright submits (par 18) that the High Court's 2010 decision in Kirk limits the LEC's "jurisdiction to set aside a final perfected order", and (in par 19) he set out the relevant paragraphs of the joint judgment of the plurality (comprising six of the judges), notably pars [96]-[99]. Their Honours said (at [98]-[99]):
98 The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, 'with such exceptions and subject to such regulations as the Parliament prescribes', s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the 'Federal Supreme Court' in which s 71 of the Constitution vests the judicial power of the Commonwealth.
99 There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of 'distorted positions'. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
Mr Wright also says (fn. 5 on p8) that my statement of principles in Teoh No 3 remains correct.
Section 58(3) of the Land and Environment Court Act 1979 enables an appeal from a consent order to the Court of Appeal, by leave, in class 4 proceedings such as these, and that is the only place for a "final' decision of the LEC to be reviewed. Mrs Young has never made an application for such leave, and the Kings have never sought to be released from their undertaking.
The significance of Kirk in this respect was noted by Preston CJ in Brown v Randwick City Council [2011] NSWLEC 172, and by Craig J in Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373.
Since Kirk, according to Mr Wright (par 24), it is clear that this court "does not have an unfettered implied jurisdiction to set aside final binding orders ...". He went on to submit (pars 25-6) that:
25. The earlier identification of an implied jurisdiction [in Logwon] now must be understood in the light of the findings in Kirk concerning the Constitutional character of the Supreme Court.
26. In any event, even if the Court were to accept that the implied jurisdiction in Logwon was available, the applicant's evidence does not support any of the bases relied upon by the applicant to suggest that the exceptional jurisdiction should be exercised.
The power conferred on this court by UCPR 36.15 is extremely limited (affirmed by the Court of Appeal in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324, at [25]). It is discretionary, and is not supplemented by any overriding question of the "interests of justice" (Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, at [58] per Craig J).
Since I reserved my decision on the present matter, Biscoe J has delivered his judgment in V'landys v Land and Environment Court of New South Wales ('V'landys') [2012] NSWLEC 218, in which his Honour considered Kirk, without any direct reference to Logwon or Teoh No 3, no doubt because of their significant factual differences from the case his Honour was deciding.
Mr V'landys objected to a DA lodged with Hunters Hill Council by his neighbours, the Dives. The DA was refused by the Council, but granted by a Commissioner of this court in a Class 1 appeal. The Council did not bring a s 56A appeal, and Mr V'landys had no appeal right. He applied to the SC (Court of Appeal) for relief in the nature of certiorari to quash this court's decision - see Lowy v The Land and Environment Courtof NSW [2002] NSWCA 353; 123 LGERA 179 - and his proceedings were transferred to this court to exercise the SC's jurisdiction.
Mr V'landys was concerned about four conditions of consent, and submitted that the Commissioner's decision should be set aside on two alternative grounds, alleging jurisdictional error, and error of law on the face of the record. The proceedings were defended by the Dives, with Council and the court submitting, save as to costs.
Biscoe J referred to paragraphs [98] and [99] of Kirk (quoted above at [381]), and to several other paragraphs of the High Court's decision, and said (at [39]-[41] - some citations omitted):
39. The Supreme Court has supervisory jurisdiction to enforce the limits of the exercise of judicial power by all other State courts, including other superior courts of record such as the Land and Environment Court (so constituted by s 5 of the LEC Act), as well as enforcing the limits of the exercise of executive power: Kirk at [98] - [99]. The supervisory jurisdiction of the Supreme Court permits the grant of prerogative relief (a) in the nature of certiorari, mandamus or prohibition where there has been jurisdictional error ... and (b) in the nature of certiorari where there has been error of law which appears on the face of the record: s 69(3) Supreme Court Act. For the purposes of the latter, "the face of the record" includes the Commissioner's reasons for his determination: s 69(4). Ordinarily, a determination of jurisdictional error makes consideration of whether there is an error of law on the face of the record superfluous: Kirk at [78]. A privative clause in a State statute which purports to strip the Supreme Court of a State of its supervisory jurisdiction by granting relief on the ground of jurisdictional error is beyond the power of the State legislature: Kirk at [55].
40. Jurisdictional error is a failure to comply with an essential precondition or limit to the valid exercise of a power ... Kirk at [66]. In other words, jurisdictional error is an error of law of such a nature that it renders the decision invalid as being beyond power ...
41 Jurisdictional error can occur at any stage of the decision-making process. Thus, failure to accord procedural fairness during the hearing is a species of jurisdictional error: Kirk at [60].
His Honour went on to examine (in [42]-[49]) other relevant authorities, and noted that "jurisdictional error', by administrative tribunals and inferior courts, can embrace some types of mistake, lack of procedural fairness, and bad faith. See Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, and Kirk at [72].
Having considered all these authorities, I am satisfied that Mrs Young should have sought relief by way of prerogative type proceedings to the SC, rather than by way of a post-facto application to this court.
The "No Case" Submission
The second ground upon which Mr Wright asks the court to summarily dismiss Mrs Young's NOM is that no case for it can be made out against the present respondents.
In case I am wrong in my conclusion on the jurisdiction argument, I turn now to consider that second ground.
As stressed throughout this judgment, the applicant's case "grew" as time went by. She bears the onus of establishing one or more bases upon which the 2004 orders can and should be set aside.
The primary basis she relies upon to set aside those orders is the alleged conspiracy, which the authorities say should have been the subject of fresh/separate proceedings. (Mr Wright also argues (par 52) that fresh/separate proceedings are required when the ground is that "the settlement agreement is void for uncertainty or voidable").
In any event, Mr Wright argues that the conspiracy alleged by Mr Newell is not supported by any of the evidence dealt with, but only from the bar table, on the approximately thirty occasions on which the parties' respective counsel have debated aspects of the matter in front of me.
Mr Wright's comprehensive written submissions deal with the applicant's NOM, and were filed before the applicant's oral opening, but his summary dismissal NOM is based solely on that opening, and not on all that went before it, up to and including Mr Newell's lengthy and comprehensive written submissions (as to which, see [295] - [296] above).
Nonetheless it is worth quoting in support of Mr Wright's NOM some of what he had said in his written submissions of 14 September 2012 on the applicant's NOM, based on her then filed evidence:
47. Mr Newell's oral and written submissions have been replete with allegations of collusion, fraud and corruption. ... Mr Newell has come back to the Court at repeated directions hearings to report that further investigations have led to remarkable new discoveries of nefarious conduct by the ever-burgeoning class of conspirators he says are arrayed against his client.
48. The allegations of fraud and corruption against the respondents (and others) involve serious criminal conduct. The allegations are scandalous. There is no evidence whatsoever to support them. They should never have been made but have been repeated constantly in written submissions and in open Court by Mr Newell. The applicant has been invited to withdraw the allegations but has not done so. The allegations made now over a period of several years could hardly be more serious particularly where they are made against professional people who are not parties to and are not represented in the proceedings in which the allegations have been made.
...
53. The allegation of 'collusion' appears repeatedly throughout the applicant's submissions.
54. The Macquarie Australian Encyclopaedic Dictionary defines 'collusion' as 'an agreement or cooperation, usually secret, for the purpose of fraud, deception, or the gaining of an advantage' and 'conspiracy' as '2. a combination of persons for an evil or unlawful purpose
55. Stroud's Judicial Dictionary of Words an Phrases (7th edition) says '"Collusion" only signifies agreeing together' ... 'But not infrequently 'collusion' is 'a deceitful agreement, or compact, between two or more, for the one party to bring an action against the other for some evil purpose.'
56. The essence of conspiracy is an agreement between two or more persons to carry out an unlawful act. The actus reus is the agreement to carry out the crime or unlawful purpose.[R v Bolton (1991) 155 J.P.N. 620]
57. The essence of the allegations made against the respondents and others here is that some form of agreement existed to perpetrate a fraud on the applicant 'by shifting a drainage burden onto her land.'
58. Whilst 'collusion' has been adopted as the preferred terminology in the applicant's submissions, the allegation is one of a grand conspiracy involving multiple participants, all of whom must have agreed together, over a period of years, to advance the criminal purpose of unlawfully shifting a drainage burden to the applicant's land (referred to in the applicant's submissions as 'the Agenda').
59. The applicant's case theory of the Conspiracy began to develop it seems over the period from about mid-2009. It is still developing or at least was until the directions hearing before the Court on 18 June 2012 when Mr Newell announced that Warwick Davies had been uncovered as a co-conspirator. The respondent's former solicitors have also been implicated in the plot.
60. If the underlying purpose of the Conspiracy was to 'shift a drainage burden to the applicant's land', a very complex and sophisticated scheme must have been hatched at an early stage and then orchestrated with relentless Machiavellian cunning.
61. Who was the mastermind?
62. What was the motive?
63. It would seem that the Court is asked to accept that from as early as 1999 or 2000, the respondent's conceived the scheme and then co-opted un-named officers of Warringah Shire Council to shift the drainage burden to the applicant's land or those officers conceived the scheme and the co-opted the respondents. The applicant was then provoked or goaded into commencing these proceedings so that the proceedings could then be manipulated to produce the result that a 'sham undertaking' could be proffered to the Court.
64. The underlying motive is said to be to advance the 'Agenda' of the Council. This must also involve questions of 'corrupt conduct' within the meaning of sections 7 and 8 of the Independent Commission Against Corruption Act 1998 and, if done maliciously, would expose the responsible council officers to an action for misfeasance in public office.
65. At different but unidentified points of time from the inception of the Agenda to the making of the consent orders in February 2004, a host of other co-conspirators had to be recruited into the scheme.
66. Willing experts had to be located on both sides of the issue in the proceedings so that together, they could assist in advancing the premeditated 'solution' which became known (aptly with hindsight) as 'Exhibit A'.
67. The co-conspirators include the applicant's former solicitor, then the applicant's former barrister, then Dr Perrens, then (it is now revealed) Warwick Davies. At some stage, in the course of 2003 and early 2004, the respondent's former solicitors must also have been co-opted into the plot in order to perpetrate this fraud on the applicant.
68. At different points in time, it seems that the Council's external solicitor was also a direct participant (or an accessory after the fact) in perfecting the scheme.
69. Within the Council, numerous unidentified officers must have had the cunning and foresight to perceive that such a dire threat existed to the Council's interests, it was necessary for them to adopt a drastic but highly illegal and corrupt course of action to protect the Council's interests.
70. How and why did all these people manage to conceive such a complex agreement to perpetrate a fraud on the applicant? Those questions are not answered anywhere in the applicant's evidence.
71. There is not a scintilla of evidence of the essential element of the Conspiracy - the agreement.
72. In the absence of that evidence, the allegations should never have been made.
I accept those submissions.
The early allegations of collusion/fraud/conspiracy were detailed in late November 2011 ([207]), and they then "flowered" and widened, over the time since then, as recorded above (see [232], [257], [279], [281], [285], [286] (vi), [320] - [323], and [327] - [328]), but the respondents have not been implicated directly (c.f. [210]).
All that is put against them, in the end, are imputations of knowledge and/or of motive, and the invitation to the court to deduce that no alternative explanations or descriptions of their conduct work. The case against them, in the end, is a series of opinions, purportedly expert or otherwise, put to me from the bar table.
Discretion
The only ground upon which the applicant argued that the respondents' motion should not result in a dismissal of hers was their so-called delay. It is clear from what I have written that I find no merit in that submission.
Conclusions
The respondents' NOM must, therefore, succeed, on either or both grounds, and the applicant's must be summarily dismissed, as a result. I will make orders to those effects.
A number of matters (NTP disputes, NOMs re access, experts etc) remain outstanding, but they now have no utility, and do not require any specific order to be made.
The applicant must expect to pay the respondents' costs of her motion, but the details of a costs order will be reserved for my consideration of written submissions, unless agreement can be reached on its terms. I will allow some time for negotiations.
The exhibits retained by McClellan J will remain with the file. One exhibit tendered at the hearing of the NTP dispute (Judgment No 3) was returned. Those exhibits tendered before me at the September hearing should be retained, pending finalisation of the question of costs.
Orders
The formal orders of the court will, therefore, be:
(1) The respondent's Notice of Motion filed on 18 September 2012 is upheld.
(2) The applicant's Notice of Motion originally filed on 23 May 2008, as finally formulated on 27 March 2012, is dismissed.
(3) Costs are formally reserved, and the parties are directed to file any Notices of Motion seeking costs orders within 28 days, and after 28 days to approach the Registrar within a further 14 days to fix a timetable for the filing of written submissions for the trial judge's consideration in chambers.
(4) Exhibits are to be retained until the question of costs has been resolved.
**********
Decision last updated: 19 October 2012
22
21
8