Young v King (No 6)

[2015] NSWLEC 111

Land and Environment Court

New South Wales

Medium Neutral Citation:	Young v King (No 6) [2015] NSWLEC 111
Hearing dates:	Pre-trial argument 28 August 2014 and 3 September 2014; Hearing dates 9 – 12 September 2014, and 28 – 31 October 2014
Date of orders:	09 July 2015
Decision date:	09 July 2015
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(1) The applicant’s notice of motion in proceedings 03/40417, seeking to have the orders of McClellan J set aside, and the matter re-opened, is dismissed. (2) The applicant’s summons in matter 14/40449 is dismissed. (3) The applicant is ordered to pay the respondents’ costs of the proceedings in this Court since 8 March 2004, on a party-party basis, as agreed or assessed. (4) Order 3 is stayed for 42 days and the parties are directed to file any notices of motion seeking a different costs order by 20 August 2015. (5) The Evidence Book and all exhibits are returned.
Catchwords:	PRACTICE AND PROCEDURE — Application under UCPR 36.15(1) to set aside consent orders made in civil enforcement proceedings seeking the removal of allegedly unlawful works and reinstatement of a pre-existing drainage system – remitter from Court of Appeal – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – whether the Court had the power at first instance to make the final orders – applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether the parties were mistaken as to the purport of the solution – whether the terms of the solution were uncertain – whether there had been fraud   JUDICIAL REVIEW – Application for prerogative relief to set aside consent orders made in civil enforcement proceedings seeking the removal of allegedly unlawful works and reinstatement of a pre-existing drainage system – referral by Court of Appeal – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – whether the Court had the power at first instance to make the final orders applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether the parties were mistaken as to the purport of the solution – whether the terms of the solution were uncertain – whether there had been fraud
Legislation Cited:	Civil Procedure Act 2005 Evidence Act 1995 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bankstown City Council v El Dana [2009] NSWLEC 68 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896 King v Griffiths [2013] NSWSC 808 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; 210 CLR 181 Monhem v Shields [2015] NSWCA 24 Permanent Trustee Co (Canberra) Ltd v Stacks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 Ras Behari Lal v The King Emperor [1933] All ER Rep 723 Romeo v Papalia [2012] NSWCA 221 Shields v Monhem (No 2) [2014] NSWLEC 99 University of Wollongong v Metwally (No 2) [1985] HCA 28 V’landys v Land and Environment Court of NSW [2012] NSWLEC 218; 193 LGERA 47 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 Young v Hones [2013] NSWSC 580 Young v Hones (No 2) [2013] NSWSC 1429 Young v Hones (No 3) [2014] NSWSC 499 Young v Hones (No 4) [2015] NSWSC 792 Young v Hones [2014] NSWCA 337 Young v Hones (No 2) [2014] NSWCA 338 Young v Hones [2015] HCASL 73 Young v King [2004] NSWLEC 93 Young v King (No 2) [2009] NSWLEC 125 Young v King [2011] NSWSC 793 Young v King (No 3) [2012] NSWLEC 42 Young v King (No 4) [2012] NSWLEC 236 Young v King (No 5) [2012] NSWLEC 280 Young v King [2013] NSWCA 364
Texts Cited:	Bell J, The Sir Maurice Byers Lecture, 20 August 2014
Category:	Principal judgment
Parties:	Margo Young (Applicant) Brendan King (First respondent) Kristina King (Second respondent)
Representation:	Counsel: Mr R Newell, solicitor (Applicant) Mr M Wright, barrister (First & second respondents)   Solicitors: L C Muriniti & Associates (Applicant) Stern Law (First & second respondents)
File Number(s):	40417 of 200340449 of 2014

Judgment

A: Introduction to this Judgment

1. Both matters now before the Court, after consideration by the Court of Appeal, deal with the efforts of Mrs Young (“Young”), since at least 2008, to have set aside consent orders that were made in settlement of Land and Environment Court (“LEC”) Class 4 proceedings 40417 of 2003, in early 2004.

2. Young’s efforts have run up against the principle of finality in litigation, but I have been dealing with her application since 2008, conscious of the dictum of Lord Atkin, in a very unusual criminal appeal, Ras Behari Lal v The King Emperor [1933] All ER Rep 723, at 726, that:

finality is a good thing but justice is a better.

3. It is also pertinent to recall the remarks of Deane J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387, at 434 – 5:

... it is in the overall interests of the administration of justice and of the preservation of at least some vestige of practical equality before the law that, in the absence of special circumstances, there should be an end to the litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal.

4. In her 2014 Sir Maurice Byers lecture, “Appellate Review of the Facts”, Bell J expressed a fear that some parties and their representatives have come to see the trial not as the final round of a dispute, but as a preliminary round, with the prospect that not only can the result be reviewed on appeal, but also that their cases can be re-crafted on appeal.

5. The interests of justice have led to Young’s being granted many indulgences at all stages of this matter.

6. Suggestions of an expert appraisal/determination of the matter, and one major attempt at its mediation, under the auspices of this Court, have borne no fruit. (This Court’s mediation order remains on foot, although the agreed mediator has now passed away.)

7. This, hopefully, is the final chapter in her LEC proceedings, except perhaps as to the costs.

8. Pursuant to orders made by the Court of Appeal (“CA” – see [33] – [34] below), I will deal with both matters together as they both rely on the same grounds and materials.

B: A Short History of Young’s Litigation Against Kings

9. This is the sixth judgment delivered by this Court in LEC matter 40417, but the first in LEC matter 40449 of 2014.

10. Put briefly, Young’s Class 4 proceedings against her neighbours (“the Kings”) were thought to have been “concluded” by orders made by the then Chief Judge of this Court, McClellan J, following an undertaking, acceptable to His Honour, being given by the Kings, after agreement on a “solution” was reached by a conclave of experts.

11. Her proceedings were dismissed, by consent, but the Kings were ordered to pay her costs, and later paid her $157,000 out of $270,000 (Tp315, L34).

12. Young has remained out-of-pocket from those events – she describes herself as now a pensioner, who has funded her litigation by mortgaging her house and borrowing from her sister.

13. During 2004, she became increasingly unhappy with the 2004 LEC result, and subsequent events and discoveries. She said (Tp111, LL41 – 46) that, between February and November 2014, she had become increasingly:

dissatisfied I had to compromise ... given that a solution ... had been found ... [I]t became increasingly evidence (sic) that there was something very wrong with the settlement, the undertaking, with everything, the whole process.

14. Her original legal advisors had rejected her instructions to join Warringah Council in the proceedings (an omission criticised by McClellan J), and, she says, they settled the proceedings, and accepted the undertaking, without her approval, and without properly advising her of the ramifications – they were, as her counsel has said, “buttering their own bread”.

15. Eventually, on 23 May 2008, she filed a Notice of Motion (“NOM”), seeking to set aside McClellan J’s orders, and “reopen” her LEC primary proceedings.

16. Rule 36.15(1) of the Uniform Civil Procedure Rules 2005 provides (emphasis mine):

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.

17. Between 2008 and 2012, I dealt with various elements of the ongoing dispute, and the history of the proceedings more generally, in three major Young v King judgments delivered up to 19 October 2012:

No 2 ([2009] NSWLEC 125) on 31 July 2009, referring the dispute to a mediator;

No 3 ([2012] NSWLEC 42) on 14 March 2012, setting the matter up for trial of Young’s 2008 NOM to “reopen”; and

No 4 ([2012] NSWLEC 236), on 19 October 2012, dismissing Young’s 2008 NOM (to which I will shortly return). Judgment No 4 reserved the question of costs.

18. For the purposes of the appeal books for an appeal to the CA brought by Young against judgment No 4, I published, on 27 June 2013, judgment No 5 ([2012] NSWLEC 280), concerning a ruling I had made, during the trial, on 17 September 2012.

19. This judgment will not repeat the extraordinary history recounted in those judgments, especially, in judgment No 4, at great length (408 paragraphs).

20. However, some recourse to them may be necessary to understand this judgment, e.g., to identify the roles/actions of various players in the matter (especially experts) at various times, and to follow the evolution of Young’s claims between the orders made in February/March 2004, and the major hearing before me in September 2012, and then subsequently.

21. Young has been represented in all her post-2004 proceedings in this Court by solicitor Leonardo Muriniti, and barrister (now solicitor advocate) Robert Newell. Kings have been represented in those matters by solicitor Terence Stern, and barrister Michael Wright.

C: Young’s 2008 NOM

22. Young’s NOM of 23 May 2008 finally came before me for determination in September 2012, in a form finally settled only on 27 March 2012.

23. Suffice to “set the scene” in this short history by repeating here the essence of Young’s case on the NOM, as set out in the executive summary her lawyers filed early in 2012, covering documents she had filed in the nature of pleadings. I set out this summary in judgment No 4 (at [232]), and Young adhered to it in her evidence before me on 10 September 2014 (Tpp70ff):

1.   The Kings purchased no 37 Calca Crescent, Forestville with the intention of illegally constructing a granny flat under their house.

2.   They deliberately undertook the work without Council Approval for the purpose of constructing a granny flat and removing subdivision drainage.

3.   Their plan was to shift the drainage burden resulting from the illegal works and removal of a sub-division drainage system to the Applicant or her property. This would require her to construct a drain to Starkey Street and to obtain an easement for that purpose at tremendous expense.

4.   The evidence shows that the Kings colluded with Council from an early stage (2001) resulting in the Applicant’s complaints being ignored and her land being left unsupported.

5.   The Kings destroyed evidence of an antecedent sub-division drainage system and fabricated evidence of build up of fill on the applicants land. The intention to fabricate this evidence is part of their logic in undertaking the works initially without an approval.

6.   The Kings could not drain their land following the illegal works so they colluded with council in a plan to assert that the sub-division drainage system worked such that the Applicant’s land was burdened with a drainage for the benefit of their lot no. 37.

7.   The Kings sought to get the Applicant to give a consent to her land for the purposes of a DA to build a fence – that DA would have given the Council the power to investigate and find that the applicant had to construct a drain on her land.

8.   The Council granted a Consent 1382 which was improper on numerous grounds and was invalid.

9.   The Council framed the Consent with a view to later giving a building certificate when circumstances could be contrived so that suitable drainage could be paced (sic) on no. 37.

10.   The Applicant consulted solicitors with a view to obtaining support for her land.

11.   The solicitors failed to join the Council and generally conducted the proceedings in the interests of the Council which by now was committed to orchestrating a drainage system on the Applicant’s land.

12.   In particular, the solicitors contrived to manage the issues in the case so that the removal of sub-division drainage by the Kings and its impact was air brushed out of consideration during the proceedings.

13.   The Respondents knew what the solicitors were doing and the purport of their agenda. They accordingly knew that the Applicant was not obtaining proper advice, was obtaining and largely dependent on improvident advice and was accordingly in a position of special disadvantage.

14.   The case came to Court in February 2004 without the Respondents proposing any plan to deal with the consequences of their excavation and without the Applicant’s solicitors having enquired as to the existence of an outlet on the [K]ings’ land.

15.   The solicitors settled the matter at Court without instructions by and without consultation with the Applicant. The settlement was based on an undertaking by Kings to lodge a DA for a retaining wall (for which they already had consent). The settlement was justified by reference to the work of a conclave of experts which produced a document called Exhibit A.

16.   Exhibit A proposed a very limited set of works and in particular the lowering of a 65 mm drain to the footing zone of a partially built retaining wall approximately on the boundary.

17.   Exhibit A works could not have ever been implemented and the evidence shows that there was no bona fide intention of implementing them.

18.   The settlement required the lodgment for a DA but suspiciously permitted King to deny that he was responsible for the excavation and therefore for the drainage of the land

19.   The Applicant’s lawyers, the Council and the Respondents all understood that the footing which was subject of the undertaking would be demolished immediately following the trial

20.   They also expected the Council to find an alternative system on the Applicant’s land based on the manner in which the matter had settled and the need in the circumstances to drain the land.

21.   Plans were put forward by the Kings for the purposes of the DA which contained contrived ambiguities to make the applicant think that the undertaking was being complied with when it was being undermined by a proposal for demolition of the footing on which the undertaking was based.

22.   The Council and the Applicant’s lawyer colluded to conceal from the Applicant the purport of the drawings.

23.   The removal of the footing, on which the undertaking was predicated was a concomitant of the placement of a drain on the Kings land so that the removal was predicated upon the assumed insinuation of a drain on the Applicant’s land.

24.   Considerable efforts were made to obtain the Applicants consent to an amended DA involving her land in order to empower the Council to investigate her land but in the event that was not obtained.

24. The respondent Kings submitted:

1. that the LEC had no jurisdiction to set aside the original orders; and

2. that, in any event, Young had made “no case” for the 2004 orders to be set aside.

25. In dealing with submission number (1), I held (in judgment No 4, at [392]) that the applicant, instead of attempting to re-agitate in this Court the matter she had originally brought, and settled, should have taken “prerogative” proceedings in the Supreme Court (“SC”). Section 69 of the Supreme Court Act 1970 relevantly provides:

Proceedings in lieu of writs

(1)   Where formerly:

(a)   the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b)   in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c)   the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d)   shall not issue any such writ, and

(e)   shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f)   proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

...

(3)   It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4)   For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

...

26. In dealing with submission number (2), I held (at [400] – [402]) that, if I be wrong in my decision on submission (1), no case had been made out for Young’s NOM (to set aside the 2004 orders) to be upheld.

D: Young’s Two Court of Appeal Proceedings Against The Kings

27. Following judgment No 4, Young:

1. sought from the CA leave to appeal out of time (CA matter 2013/162966) against my decision; and

2. also sought from the SC “prerogative” relief in the nature of certiorari or mandamus (SC matter 2013/46239).

28. This Court was named as a respondent to those prerogative proceedings, and the Crown Solicitor entered, and maintained a submitting appearance on its behalf.

29. Newell informed this Court, on 21 March 2013, that Young hoped that all three of (a) her prerogative proceedings, (b) her application for leave to appeal, and (c) her substantive appeal, would be heard together by the CA.

30. The “prerogative” application was referred to the CA, which referred it to this Court for hearing, and it has now been renumbered LEC 14/40449.

31. On 22 August 2013, two judges of the CA (Leeming JA and Tobias AJA) granted Young leave to appeal against my judgment No 4. Following several directions hearings, the substantive appeal was fixed for hearing on 28 October 2013.

32. On 31 October 2013, Leeming JA (speaking for the CA) published a judgment, “on the papers”, and without holding a hearing, covering both Young’s appeal, and her application for prerogative relief: [2013] NSWCA 364.

33. In CA matter 162966, Leeming JA held that Mrs Young’s appeal against my decision in 40417 be upheld, with costs, and by consent, and His Honour ordered that the appealed NOM proceeding be remitted to me for re-determination.

34. On 5 November 2013, the CA (again per Leeming JA) made the following orders, also by consent, in SC matter 46329 (emphasis mine):

1. Proceedings 2013/46329 be transferred to the Land and Environment Court of NSW pursuant to s 149B of the Civil Procedure Act 2005.

1. The costs of proceedings 2013/46329 up to and including the date of the transfer be reserved and be determined by the Land and Environment Court of NSW.

2. Proceedings 2013/46329 upon being transferred to the Land and Environment Court of NSW be heard and determined by his Honour, Sheahan J, concurrently with the proceedings 2013/162966 remitted to his Honour, Sheahan J, pursuant to orders made by the Court of Appeal on 31 October 2013.

(On such transfers, see V’landys v Land and Environment Court of NSW [2012] NSWLEC 218; 193 LGERA 47).

35. The CA held that the High Court’s decision in Kirk v Industrial Court of New South Wales (“Kirk”) [2010] HCA 1; 239 CLR 531 made clear, on the question of jurisdiction, that this Court does not lack “implied jurisdiction to set aside a final order” of one of its judges.

36. His Honour said (at [4]) that the confirmation by Kirk of the existence of an entrenched supervisory jurisdiction in the SC did not “detract from the existing jurisdiction of other superior courts to set aside even perfected orders in limited circumstances”.

37. In respect of my summary dismissal of Young’s NOM, the CA held that I had erred in basing my decision solely on her counsel’s long-awaited opening statement to the Court, and on my adoption of the respondents’ submissions, regarding the adequacy of her evidence, without my actually having received that evidence.

38. Leeming JA noted (also at [4]) that a “no case” submission “needs to be put at the conclusion of the appellant’s case, rather than before the appellant’s evidence has been adduced”.

39. His Honour added (at [6], emphasis mine):

Especially given the further hearing which is to occur, it is unnecessary and inappropriate to say anything further about the substantive aspects of the dispute between the parties. ... one reason why the proceedings have taken the unhappy course that they have is that there has not been a clear and binding articulation of the case which the appellant wishes to establish. It is a matter for the judge who hears and determines the proceedings, but there is much to be said for a regime identifying with precision the allegations (some of which amount to fraud) sought to be made and established, without which the full extent of the issues to be proved may be unclear ... and it may be noted that at the hearing of the application for leave, when this was raised, counsel for the applicant said that he was "ready, willing and able to do that": ...

E: The CA Matters Remitted or Referred to This Court

40. The CA documents for both matters were received in this Court on 19 November 2013, and both remitters/referrals were set down for hearing in this Court in September 2014. Directions were settled on 18 June 2014 by the Registrar.

41. In August 2014, Young sought to relist the matter before me, in order to obtain leave to adduce further evidence, and pre-trial mentions/directions hearings occurred on 28 August 2014 and 3 September 2014.

42. The substantive joint hearing of the two matters took place on 9 to 12 September, but it was not concluded, and it continued 28 to 31 October, 2014.

F: Costs of the LEC NOM Proceedings Deferred

43. I dealt with the various costs issues in these LEC proceedings, their first time before me, in my judgment No 4 on 19 October 2012, at [20] – [26], and [406].

44. Kings had sought an order that all their costs in the LEC be paid (a) on an indemnity basis, and (b) not only by Young herself, as the unsuccessful party, but also by her counsel and her solicitor, jointly and severally, on a personal basis.

45. Young responded with a NOM seeking orders (1) that the Kings pay her costs, or (2) that each party pay its own costs, or (3) that the Kings pay her costs, except for those that were caused by her “lack of reasonably expected readiness”. Alternatively, she sought (4) that costs remain reserved, pending the resolution of all the proceedings in the SC, and the completion of any steps taken as a consequence of those proceedings.

46. I had hoped costs could have been determined “on the papers”.

47. Between delivery of judgment No 4 and this Court’s receipt of the CA papers on 19 November 2013, there was some activity in this Court on the reserved question of the costs.

48. It has now been generally agreed between the parties, and with this Court, that, in view of the CA’s decisions, all outstanding questions of costs in the LEC should await the outcome of these present proceedings.

G: Some Additional Background

49. What follows now is an attempt to provide a useful summary of the most relevant aspects of the long and complicated history of this matter, as recounted at great length in my earlier judgments, Nos 2 to 5.

The dispute between the neighbouring parties

50. The issue at the heart of this extraordinary litigation is drainage on and around the boundary between No 35 (Mrs Young) and No 37 (the Kings), Calga Crescent, Forestville.

51. These residential properties are, respectively, lots 20 and 21 in DP29320, which were created by a 1958 subdivision, which presumably incorporated a drainage system.

52. Young’s property is slightly “upstream” of Kings’, perhaps by 0.8m, and debate has raged about what drainage arrangements were in place, e.g. as at 2001 – there is wide variation in the detail shown in surveys and plans – and what were needed as a result of the Kings’ renovations.

53. Young bought her 1964 house in 1985, and the Kings bought their house in 1999, and appear to have occupied it themselves from December 2000.

54. Before me, on 10 September 2014, Young gave the following oral evidence (Tp153, LL 20 – 27):

... the Kings house was commenced to be built in 1961. The story is the land flooded and so the foundations stayed there and in 1963 the amended plans were lodged with the house built up above the ground with a flat roof to cater for the building height, so that the, the, the land on the southern side of the house had a 1.5 metre subfloor space underneath it. My house was built 3 metres from the Kings house and the land slopes through my front yard through the Kings land and should continue, and the, the drainage should continue down through to Bates Creek.

55. The dispute between the neighbouring parties arose when the Kings, in mid-late 2001, commenced (or, possibly, continued) works, which were directed towards establishing a “granny flat” in a sub-floor area of No 37.

56. Young’s case is that that work required a development consent (“DC”), but was commenced by the Kings without one.

57. She further claims that the construction work, including a concrete slab for the “granny flat”, caused water to dam on to her land, and rise, in rainfall events, to damage and jeopardise her house.

58. She claims that prior to the Kings’ works she never experienced any drainage problems, or “even a hint of rising damp”, but that, since then, rising damp has become “a perennial problem”.

59. She says (Tp153, LL27 – 29) that “... the whole overland and underground water flow has been dammed by new building work under the house on 37”.

60. Clearly, the dispute between the neighbours quickly became, and has remained, emotional and acrimonious, not only as between them, but also as between Young and Warringah Council.

61. To this day, she remains very aggrieved by the Council’s persistent refusal to intervene on her behalf in the matter of Kings’ unauthorised building work, which she says was illegal because it was falsely described as a change of use of rooms, when in fact it was the construction of a non-approved granny flat.

62. As might be expected, the Kings tell a markedly different story of their conflict with Young, and the dealings of all parties with the Council (Exhibit A24).

63. They say that Young had “water problems” at No 35 before they moved into No 37, and explored renovations, and that they put to her that her “serious surface water run off problem [was] causing a water problem inside [their] house” (fol 563), as well as to hers.

64. They identified the need for the three of them to reach agreement on a shared solution from the beginning, with Mr King bringing to bear his own engineering background, and the availability to him of the expertise of colleagues, to achieve a system to catch all the water on both properties and divert it to the street.

65. They say that, after congenial initial discussions, Young became “agitated”, and began threatening court action, but then had plumbing work done on her own pipes, which appeared to the Kings to be seriously blocked by tree roots etc.

66. While the Kings argued that much of their early work was “exempt development” under Council’s instruments, they acceded to a Council suggestion, after Young complained of “illegal works”, that they submit a DA covering all they proposed. They submitted their DA (1382) in around August 2001. Council closely interrogated the proposal, given Young’s objections, and Young also engaged a surveyor (C. C. Lethbridge – see Exhibit A24, fols 636 – 638, and 669 – 670).

67. DC was eventually granted on 5 February 2002, by a full Council meeting, initiated by a councillor to whom Young had complained. The Council vote was unanimous.

68. Kings also obtained a Building Certificate and a Construction Certificate to cover their works, which they described (Exhibit A24, fols 551ff) as:

Construction of retaining wall and path with improved drainage. Change of use of rooms for granny flat. Construction of garden shed.

69. Young’s concerns were addressed in the Council papers (e.g., fols 628 – 630).

Young’s (primary) Class 4 proceedings

70. On 14 April 2003, Young commenced her/these Class 4 proceedings (40417) against the Kings, but, on the advice of her then counsel (Ian Hemmings), the Council was not joined as a respondent by her then solicitor, Jason Hones.

71. The proceedings came on for hearing 16 to 19 February 2004, before McClellan J, who published a judgment, and made the orders to which I have earlier referred: [2004] NSWLEC 93.

72. His Honour’s February 2004 orders (set out in my judgment No 2, dated 30 July 2009, [2009] NSWLEC 125, at [37]) relied upon an undertaking given by the Kings (set out in [39]). They were entered by the Registrar in slightly different terms ([38]), namely:

“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.”

73. Because Young raised with Hones some concerns, the parties came back before His Honour on 8 March 2004, and he made amended orders ([40]), reliant upon an amended undertaking ([41]), which was in these terms (some emphasis added):

“The Respondents undertake to the Court to:

1.   Carry out the works identified in Exhibit A within 21 days of granting of [DC] by Council or by the Court.

2.   Lodge a development application [“DA”] 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 [DA] 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 [DA] through Council.

4.   The Respondents are to complete the retaining wall works within 21 days of the granting of [DC] by the Council or by the Court.”

(See also my judgment No 4, at [59] – [60].)

74. As I noted (in judgment No 2, at [44]):

The effect of the March 2004 variation of the undertaking was to require Mr & Mrs King to seek [DC] 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.

75. I also noted the following (in judgment No 2, at [45] – [48]):

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.

...

48   Council having refused the DA, the drainage problem at the heart of the original proceedings apparently remains unresolved to this day.

(see also judgment No 4, at [63])

76. Both sets of orders, and both undertakings, relied upon a joint “report”, which was produced by experts during a “conclave” held during the trial.

77. That crucial document has consistently been referred to since as “Exhibit A”. (It can be found at various places in the materials, e.g. in Young’s affidavit of 23 May 2008, Annexure ‘MY17’, at fols 1176ff of the Evidence Book.)

Attempts at Enforcement

78. Young has long sought to have the Kings’ undertaking enforced, but she parted company, in about 2005, with/from her professional advisors at/in the original trial – Hones, Hemmings, and her primary expert (Stephen Perrens).

79. Eventually, on 15 February 2010, she brought SC proceedings against all of them (SC matter No 2010/41007, Young v Hones – “the SC Hones proceedings”), to which I will return ([99] below).

80. She also commenced, on 4 July 2007, District Court proceedings (No 2007/2857) against the Kings and the Council.

81. An attempt to remove the District Court matter into the SC failed (SC matter 2011/198778, decided by McDougall J on 22 July 2011 – [2011] NSWSC 793), and the District Court matter was stayed, by Curtis DCJ on 12 August 2011, pending the outcome of Mrs Young’s NOM in this Court.

Young’s conduct of her litigation

82. Clearly Young has been almost fully engaged in her litigation over many years – she abandoned, in 2001, attempts to work from home as a “home product distributor”, due to the “disruption to [her] life, as a result of the dispute and the proceedings” (Tp154).

83. Much has been said and written already about the way in which Young and her representatives have approached all her litigation, including her LEC proceedings. Although her present representatives have been criticised in various proceedings, she maintains her confidence in them, despite acknowledging that they are not experts in planning law.

84. The Young “camp” has frequently shifted ground, amended documents, ignored directions and correspondence, and caused delay, but she and her representatives have received many indulgences, because of a nagging concern in this Court – and I expect in other Courts – that she may have been the victim of at least an injustice, if not a fraud or a conspiracy of some sort. See, e.g., my remarks in judgment No 4 (at [3], [14], [15], and [20]ff), and No 5 (at [1], [5], [7], and [10]). In judgment No 4, I blamed Young’s legal team for many of the steps they took which led to some thirty listings before me prior to the September 2012 hearing.

85. I have already quoted (at [39] above) Leeming JA’s notation that Young’s case had, to that point, never been clearly and firmly articulated.

86. In one of its two Young v Hones decisions, the CA (Bathurst CJ, Ward and Emmett JJA) noted that a number of indulgences had been granted to Young, and that even Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 “is not authority for the proposition that a plaintiff can engage in endless attempts to formulate a proper cause of action”. The CA also commented upon the use of “emotive language in which correspondence has issued from her solicitors and submissions have been put on her behalf”. (See [2014] NSWCA 338, at [95], [118], and [119]).

87. The CA’s judgment said (at [119]):

Finally, the grievance obviously felt by Ms Young at what has occurred can be discerned from the emotive language in which correspondence has issued from her solicitors and in which submissions have been put on her behalf. There is no doubt that Ms Young considers that a great injustice has been done to her. Her Counsel has described the L&E proceedings, and the settlement of those proceedings, as no more than an "illusion". It may well be that it is this sense of grievance that has led to the apparent readiness of Ms Young to conclude that her professional advisers must have acted fraudulently in conducting the proceedings. However, it is a serious matter to allege fraud and it was incumbent on her present advisers not only to comply with their ethical obligations when so doing but also to apply objectivity when advising Ms Young and in pleading such a cause of action. Unfortunately, the manner in which the pleadings have been drafted and the tone of the correspondence and submissions made on Ms Young's behalf does not give rise to a great deal of confidence in this regard.

88. There appears to be no end to the amount of material Young and her advisors can generate for consideration by various Courts, whether in judicial review proceedings, or by way of the application to set aside McClellan J’s orders, or in proceedings brought against former advisors.

89. Young is forever discovering evidence, which, as I noted in judgment No 4 (at [3]), she contends establishes that the 2004 orders were procured “improperly”, and, as events have unfolded, have worked an injustice upon her. Each time the matter came before this Court, even for routine directions, an ever expanding picture of a possible miscarriage of justice was being painted.

90. She constantly identifies new parties to, and/or new aspects of, the conspiracy which she alleges operated against her interests, before, during, and after the 2004 hearing, and the making of orders by McClellan J. Young, Muriniti and Newell have flagrantly disobeyed directions, failed to meet timetables, and failed to be clear and fair in indicating the witnesses to be called or relied upon.

91. In this most recent phase of her substantive LEC proceedings, I received a further 16 large lever-arch folders of material upon which she intended to rely, but, fortunately, she did not seek to put all of it into evidence, so reducing the wastage of time and resources which this Court has been anxious to avoid.

92. However, more “nuances” were “discovered” in her case between the pre-trial hearing on 28 August 2014 and the commencement of the actual hearing on 9 September 2014, and then again while the most recent substantive hearing in this Court stood adjourned part-heard, from 12 September to 28 October 2014 (see Tpp324 – 335, which ended in a costs order against Young).

93. Wright put firmly, and adhered to, his well-founded objections to much of the material upon which Young sought to rely, and to her lawyers’ constant sniping insinuations of bad conduct on the part of himself and Stern.

94. The Court has remained concerned throughout the matter to provide Young herself with every opportunity to make good her claims of injustice, but I have seen absolutely nothing to discredit the high standing both Stern and Wright enjoy in the profession.

88. Ward JA, in an individual judgment in one of the CA’s Hones decisions ([2014] NSWCA 337), summarised Mrs Young’s fundamental position in all her litigation as follows:

44   The present proceedings in essence arise out of Ms Young's ultimate dissatisfaction with the rectification solution that the experts had agreed would be appropriate and on the basis of which she had settled the Land and Environment Court proceedings. That solution, which it is not disputed has never been implemented, is said by Ms Young to be unworkable and "illusory".

45   Ms Young contends that the effect of the settlement has been, as a practical matter, to shift from her neighbours to herself the burden of responsibility for drainage from her property and that this was part of a Council "agenda" (with which Ms Young has suggested the first, second and third respondents were complicit). Ms Young does not suggest any reason why Council would have had an interest as to who, as between Ms Young and her neighbours, should bear the burden of drainage from Ms Young's property; nor why the first, second and third respondents to the present proceedings would have promoted such an "agenda". That seems to be no more than a matter of conjecture.

46   Ms Young contends that the appropriate course to have been adopted was for the reinstatement of the neighbouring property, to put the property back in the position in which it was prior to the unauthorised works. Her complaint is that she is now unable, by virtue of the settlement, to pursue such a course of action.

...

216   The rationale for advocate's immunity was clearly stated in D'Orta. It rests largely, though not solely, in the public interest in the finality of litigation. The present case, where hundreds of thousands of dollars and much time and resources (both of the litigants and of the various courts involved) have been devoted to the attempt by Ms Young to resolve her initial dispute as to the building works and to change the result achieved by way of settlement of proceedings commenced and disposed of a decade ago, is a prime illustration of why such a defence is in the public interest.

217   ... the core of Ms Young's complaint is that the settlement that she reached was inadequate to achieve the outcome she desired. The fact that it can be cast as a complaint relating to non-joinder of a necessary party or the like does not detract from the fact that in substance she complains that the solution achieved in the settlement was illusory. ...

96. During argument and cross-examination before me in the late 2014 hearing, it became clear that Young’s objectives were (1) to succeed in a High Court appeal in Young v Hones, and re-open her claim against her former lawyers and expert, (2) to succeed in this Court, and re-open the orders made in 2004, and (3) to then seek to have any proceedings remitted by the High Court, and the stayed District Court proceedings transferred together to this Court, to be heard with the re-opened LEC proceedings, in which she would seek to join Council as a respondent (Tpp150 – 153). (She has since failed in the High Court appeal – see [115] below.)

97. She seeks to have all matters progress together, because (Tp152, L19) her “predicament has been caused by a lot of people”. She does not exclude the possible joinder of, for example, Warwick Davies, to the on-going proceedings (Tpp159 – 160), and has foreshadowed seeking costs from him and/or from Perrens.

98. As Wright submitted (Tp595, LL10 – 11), “there is nothing just quick or cheap about the plaintiff’s conduct of litigation either in this Court or the Supreme Court”.

The parties’ actions against their former advisors

99. I have already mentioned that Young brought SC proceedings (Young v Hones) against her principal advisors in the primary proceedings, but, for completeness, I also note, as I did in judgment No 4 (at [46]), that the Kings brought a SC claim against their own 2003 – 2004 lawyer (solicitor advocate Stephen Griffiths, of the firm then known as “Pike, Pike and Fenwick”) for “breach of retainer, negligence and misleading and deceptive conduct” (SC matter 2010/38916).

100. On 4 June 2013, Slattery J (King v Griffiths [2013] NSWSC 808) declined an application by Kings to separate the issues of liability and damages in those proceedings, and, after that judgment, the Kings’ case against the solicitor was apparently discontinued (see T9.9.14, p25, LL6 – 15).

101. On the other hand, Young’s proceedings against Hones, Hemmings and Perrens were pursued as far as the High Court.

102. At first instance, those Hones proceedings were dismissed by Garling J in 2013 (see [2013] NSWSC 580, and 1429), with costs.

103. The essence of His Honour’s decision(s) on the merits was that all defendants could rely on advocate/witness immunity as a complete answer to all of Young’s causes of action.

104. His Honour determined in a later, third judgment ([2014] NSWSC 499) that Young should pay a fixed total of $500,000 in respect of the defendants’ costs, but he stayed those orders “until further order”. His Honour made clear (at [139] of his judgment No 3) that he had borne in mind that an appeal from his substantive decision was about to come before the CA at that time.

105. Young’s appeal against Garling J’s decision(s) was unsuccessful, and the CA published two judgments on 1 October 2014 – [2014] NSWCA 337, and 338 – to both of which I have already referred.

106. In one of those judgments – Young v Hones (No 2) [2014] NSWCA 338 – the CA gave its unanimous reasons for its decision, on 2 May, to refuse Young leave to appeal against Garling J’s refusals to (a) adjourn the hearing on 23 August 2013, and/or (b) allow her to file a further amended statement of claim.

107. In the other – Young v Hones [2014] NSWCA 337 – three judges of appeal each gave their reasons for dismissing Young’s appeal against Garling J’s decisions to separate the immunity questions, and to dismiss the proceedings, on the basis of His Honour’s findings on the validity of the defendants’ reliance on immunities.

108. The CA (in No 337) upheld His Honour’s decision on immunity, and dismissed Young’s appeal with costs. The primary judgment was that of Ward JA ([41] – [304]), but both other judges gave short concurring judgments (Bathurst CJ at [1] – [40], and Emmett JA at [305] – [315]).

109. Ward JA noted (in No 337, at [70] and [73]) that Young’s claim against the lawyers turned on the allegation that the Council “was a necessary party” to the proceedings, because of the actual relief she was seeking beyond declarations, e.g. orders for reinstatement of Kings’ land and buildings to their pre-work condition, but Her Honour saw no need “for present purposes” to decide the issue.

110. Central to Young’s cases is that “the conduct in the conclave [which produced the infamous Exhibit A] was questionable” (Tp10.9.14, p55).

111. Young’s claim against the engineers (judgment No 337, at [99]) was that they failed to provide proper advice prior to the settlement of the proceedings, on the basis of ([100]) “a wholly inadequate alternative to the s 124 order”. Ward JA added ([101] – [102]):

101   ... the undertaking did not contemplate that the neighbours would take responsibility to drain their land; the settlement did not provide for an enforceable obligation or otherwise ensure that the neighbours would take responsibility to drain their land; the settlement did not contemplate that the neighbours construct and provide drainage through their land for the retaining wall necessary to support Ms Young's land "in contradistinction to the 20cm retaining walls approved by Council"; and the settlement prevented Ms Young returning to court to seek an appropriate remedy "in circumstances that such an appropriate remediation was not achieved by [the undertaking accepted in relation to the development application]".

102   Particulars of the loss and damage allegedly suffered "by reason of" the settlement, and that it is alleged would not have been suffered but for the alleged breaches and contraventions are identified (after [108] of the amended statement of claim), as being: diminution to the value of Ms Young's house; further prospective damage to Ms Young's house; loss of opportunity, or a lessening of ability, to vindicate Ms Young's rights by reason of the illegal works undertaken by the neighbours by reason of an arguable res judicata following the dismissal of the Land and Environment Court proceedings; damages by reason of the costs and prejudice inherent in the need to take further proceedings to regularise the planning instruments and/or to obtain a remedy by way of reinstatement or remediation; and loss in the form of fees paid to the first respondent for which pursuant to the retainer in circumstances where it is alleged there was a total failure of consideration for the retainer (reference being there made to the alleged inadequacy of the settlement).

112. I have earlier quoted Her Honour’s remarks at [44] – [46] and [216] – [217] of judgment No 337 (see [95] above), and I would now draw attention also to her remarks at [270], [275], [276], and [288] – [289]:

270   It is apparent from the pleading that what Ms Young alleges is that the engineer respondents were retained at a time when the proceedings were on foot ([90]); they were retained to advise in connection with the alleged unlawful works the subject of the proceedings ([90]); and on an unspecified date in 2003, but logically this must have been after the retainer in November 2003, the request was made that they prepare an "appropriate remediation plan" ([92]). The amended statement of claim further pleads that the fifth respondent was briefed with the court documents ([95]) and participated in the expert conclave on the first day of the hearing ([103]). It is not disputed that he gave evidence at the costs hearing as to the drainage consequences of the works. Evidence of those consequences would presumably have been relevant not only to the negotiation in the expert conclave of an agreed remediation plan but also, had there been no settlement and had the hearing proceeded in the ordinary course, to the question whether, in the discretion of the court, there should be an order for reinstatement of the neighbouring property.

...

275   This is not in my opinion a case where advice is sought, unconnected to the conduct of litigation, of an hydrological engineer as to how best to remedy a drainage problem and that advice (assumed to be negligent for the purposes of this hypothesis) is later relied upon (perhaps unbeknownst to the engineer) by the client in agreeing to certain drainage works as a consequence of which the client incurs loss. This is a case where advice was sought in the context of a litigious dispute, and in the course of ongoing litigation, as to what would be appropriate works to remedy the problem that was the very subject of the litigation; the expert both participated in the discussions that led to the compromise and gave evidence at the hearing that followed acceptance of the compromise; and the alleged negligence is a breach of a duty to advise or warn Ms Young of matters going to the adequacy of the basis on which the proceedings were ultimately settled.

276   There is in my opinion a sufficient connection between the alleged negligent conduct in this case and the settlement of the proceedings to bring the conduct within the reach of the witness immunity, whether or not at the time the expert was retained the retainer contemplated the giving of expert evidence at the hearing.

...

288 ... It was open to his Honour to conclude that the engineer respondents' retainer, at the very least by the time of the expert conclave, extended to the participation by them at the experts' conclave (a matter that was pleaded in the amended statement of claim - [103]).

289   In any event, even if the original retainer did not extend, implicitly or otherwise, to the potential giving of expert evidence in the proceedings, the fact is that the fifth respondent did participate in the conclave and did give evidence in the proceedings and the complaint made against him is of failure to give advice or warnings up to the time of settlement but for which it is said the proceedings would not have been settled on the terms that they were.

113. Her Honour commented, in closing (at [301] – [302]):

301   In the present case, a forensic decision was made by Ms Young (up until her belated attempt further to amend her pleading) not to plead fraud or conduct amounting to fraud in her statement of claim (perhaps to avoid assuming the onus of proving such serious allegations) and to leave until the time for filing of a reply any allegation amounting to mala fides as a basis for denying the applicability of advocate's immunity. A further forensic decision was made by her to consent to the determination as separate questions of law in advance of other issues in the proceedings of the questions as to the availability of the immunity defences. That meant that a final decision was made on those issues based on the pleadings as they then stood or were taken to stand.

302   Ms Young is bound by the consequences of those forensic decisions. In the event, the determination (correct in my opinion) that immunity is a complete answer to the various claims raised by Ms Young illustrates the public interest in the maintenance of such a defence; since, were such a defence not to have been considered until after a hearing on the merits, this would have the consequence that issues in part explored in the Land and Environment Court hearing (on the costs hearing) and settled following the settlement discussions that took place during the course of that hearing and with the assistance of the expert witnesses, would have been re-opened and re-litigated at no doubt considerable expense. That is precisely the result that the High Court in D'Orta emphasised should be avoided.

114. In his concurring judgment, Emmett JA commented (at [312] – [314]):

312   Ms Young now complains that she has been deprived of the opportunity of pleading fraud, lack of good faith, or breach of fiduciary duty by way of reply. She says that advocate's and witness immunity would not be an answer to such claims. However, an allegation of fraud, lack of good faith, or breach of fiduciary duty involves a separate cause of action. It may well be that advocate's immunity and witness immunity would not be an answer to such claims. However, that is not a matter properly to be raised in reply. Those causes of action are quite different from the causes of action presently relied on by Ms Young, which are limited to negligence on the part of the lawyers in relation to the commencement and conduct of the proceedings in the Land and Environment Court and the advice and evidence given by the engineers. The issue of whether the preliminary questions were correctly answered by the primary judge must therefore be decided on the basis of the amended statement of claim as filed on 5 August 2013.

313   While it does not appear to have been raised as a ground of appeal, Ms Young, in her written submissions, complains that, notwithstanding that she consented to the procedure adopted by the primary judge, that procedure should not have been adopted. The course adopted by the primary judge, in directing the separate determination of the questions, was an undesirable course to adopt in the circumstances. The separate questions should not have been raised at that stage in the proceedings, because no defence had been filed to the pleading filed on 5 August 2013, and of course there had been no reply. Rather, his Honour appears to have proceeded on the basis that the defences to the earlier statement of claim could stand insofar as they raised the question of immunity. Nonetheless, Ms Young consented to the determination of the separate questions in advance of the closure of the pleadings.

314   Having regard to the manner in which the appeal was conducted on behalf of Ms Young, the task of deciding the substantive and important questions of law raised by the appeal has been made considerably more difficult. There is much to be said for remitting the matter to the Common Law Division for pleadings to be completed and for the proper formulation of questions for trial. That course, however, would involve the parties in considerably greater expense and no party contended for that course to be adopted.

115. An application made by Young for special leave to appeal to the High Court against the CA decision in Young v Hones was dismissed (on 6 May 2015), after this judgment had been reserved: [2015] HCASL 73.

116. On 10 June 2015, Garling J heard an application by the defendants in the Young v Hones matter for either an order, essentially, that His Honour’s stay order had been dissolved, or an order dissolving it. Young opposed those orders, and His Honour declined “to make any further order today in [those] proceedings”: Young v Hones (No 4) [2015] NSWSC 792.

117. His Honour expressed the view (at [15]) that the stay had “ceased to be operative by reason of the final determination of the proceedings by the orders of the Court of Appeal made on 1 October 2014”, but he appeared to acknowledge (see [7], [16], and [17]) that Young may seek to revive the question of a stay on those consent orders, after the delivery of my judgment in these present proceedings.

H: The Remitted and Transferred Matters

Pre-trial events 2014

118. The parties have not agreed that the evidence in one matter should be the evidence in the other, but it seems to be clear enough that the grounds for relief in both are the same.

119. As Wright pointed out (T28.08.14, p14), the basis of the judicial review proceedings “has to be extremely narrow”. That issue is pleaded precisely the same way as the Rule 36.15 claim, and the matters to which I can properly have regard are only those which were before the Judge in making the decisions that are now challenged.

120. Young is seeking to set aside entirely all that happened in her case in this Court in February and March 2004, so that McClellan J’s decision is treated as a nullity, and everyone goes back to where they started, leaving it open for vastly altered pleadings and more defendants.

121. In terms of “containing” the factual material, Wright argued (T28.8.14, p15) that Young has known since 2004 the factual basis upon which she can rely. She has been represented continuously by Newell and Muriniti since they took over her District Court proceedings against the Kings, in about March 2008.

122. On 23 June 2014, Muriniti filed a Statement of Claim and “Further Amended Grounds of Application” in the prerogative relief matter, now re-numbered (LEC) 14/40449.

123. On 8 August 2014, Stern filed a Defence to the Statement of Claim, and a Response to the Grounds document.

124. On 28 August 2014, I granted leave to Young to rely on six specified additional affidavits, and I made further directions for the hearing scheduled to commence on 9 September.

125. Copies of five of the additional affidavits, and an unsworn copy of the sixth, were put before the Court in an exhibit folder which I marked as “Exhibit A1”. Wright complained that the late evidence was material “in chief”, and not material in response to any evidence put on by the Kings – it “should have been put on years ago”, no explanation was given for the way Young’s matter continued to evolve, and the material was not produced in a timely manner. He also pointed out that most of the affidavits that were prepared for the purpose of the 2004 hearing and filed by the parties were not read in proceedings before McClellan J “so there’ll be a real question as to the relevance of that material” (Tp21, LL21 – 23).

126. Exhibit MY6 to Young’s material is three volumes “primarily of materials in the applicant’s possession from” Jason Hones’s file for the 2004 hearing, handed over to her shortly after. Young claims that she produced all that she collected from the firm when she withdrew her instructions, but there is a clear dispute between the parties as to the completeness of that material.

118. Newell insisted that the allowance of the additional evidence permitted him to dispense with calling the Kings to give oral evidence in Young’s case, and dispensed also with the need to inspect the Kings’ property, and any need to call Perrens to give sworn evidence about his inspection. Newell claimed that my granting of leave would shorten the trial substantially.

119. I could find no real reason to refuse leave, except that those documents should have been made available a long time ago. I allowed reliance on the six, but on the understanding that the provenance of all the material would be explained immediately (T28.08.14, p26).

120. In the absence of agreed short minutes, I asked Wright to dictate onto the transcript the directions he thought necessary and appropriate, and he undertook to then also submit a formal written version of them for me to check against both my notes and that transcript (see Tpp28 – 34).

121. The following also came to the Court’s notice during that pre-trial hearing on 28 August, 2014:

1. Unpleasantness continued in the communications between the law firms representing the parties, and there was continuing argument about the adequacy of the schedule of materials upon which Young said she wished to rely;

2. Newell announced that he was no longer a barrister, but now appeared for Young, as a solicitor;

3. Newell proposed to tender, rather than read, some affidavits from that era as evidence of the making of assertions, rather than their truth, but Wright wanted to be told, in each case, the basis on which those documents were being tendered;

4. Wright disputed the need to comply with a Notice to Produce (“NTP”) issued by Newell on 12 August;

5. With one of Young’s witnesses, Ross Fraser, in Indonesia, and unavailable for cross-examination (Tp23), Newell indicated that he would call Jack Davies, but not Warwick Davies (Warwick apparently being the author of Exhibit A);

6. Newell alleged that the advisors who were defendants in “the Garling matter” are now “in the Kings’ camp”; and

7. Wright was apprehensive that some attempt would still be made by Newell to get the Kings into the witness box at the hearing before me.

131. Newell’s submissions sought to venture into many matters of serious factual controversy, and also raised the prospect of some issue estoppel flowing from some decision of the Local Land Board. A Jones v Dunkel submission, regarding Kings’ not calling Hones and Hemmings as witnesses, was notified late, and then withdrawn.

132. In order to define better the issues I would have to decide, Wright suggested (subs par 4) that Young’s case on both matters had “narrowed” from 2012, in a letter dated 25 August 2014 (see Muriniti 27 August 2014, Annexure ‘FF’), to be now based on jurisdictional error in the 2004 orders, and on Exhibit A being void for (a) uncertainty, (b) common mistake, and/or unilateral mistake, as to stipulation of a discharge point, and (c) fraudulent misrepresentations by the Kings to the Court regarding the adequacy of drainage, and their intention to obtain a building certificate for existing work.

133. Wright said (T28.08.14, p17, LL29 – 38):

... last time we were dealing with this compendious fraud. We are now dealing with an attempt - and no doubt there are other reasons for that - to narrow it down to something which does not involve a specific and direct allegation against the council, Mr Hemmings, Mr Holmes (sic), Dr Perrens, in the background Mr Griffiths, except to the extent now it's suggested that the Kings are tainted by whatever conduct he may have been guilty of before the chief judge.

The pleading groans at the seams because that lurking complex of allegations against others can’t just be hidden.

and (L50) that there was/is a “pecking order of naughtiness” among the alleged conspirators.

134. Any mistake on Young’s part as to what the Court accepted by way of an undertaking from the Kings, and the orders which followed from it, flowed from the failings of her own lawyers.

135. As NTP issues remained in dispute, I re-listed the matter for further pre-trial directions on 3 September. On that day also, Muriniti filed in the registry a NOM by Mrs Young, and an affidavit by her in support, seeking orders that the Kings be ordered to comply with NTPs served on them 12 and 27 August 2014.

136. On 3 September 2014, Wright sought to upset Young’s NTPs. He said, more generally (T03.09.14, p1, LL35 – 41):

A matter of ongoing concern for the respondents is the piecemeal manner in which the applicant continues to change, supplement, vary, explain and not explain the evidence upon which she relies at the hearing. I shouldn't need to remind Mr Newell when I bring to your Honour's attention that that was the first pre trial direction that he complied with on 20 June. We're still seeing changes and variations to the schedule of evidence upon which the applicant intends to rely, including further additions as of yesterday or this morning.

137. Wright also called on Newell to explain the basis upon which he claimed he was entitled to introduce affidavit evidence without calling the deponents, particularly when they were primary witnesses to the case which he sought to make (Tp2). In particular, Wright was concerned about Perrens and Warwick Davies, whose affidavits did “not go to the matters directly informing the discussion between the experts which produced exhibit A”.

138. Newell again claimed that those affidavits would be tendered to establish the fact of the assertions made, rather than their truth. Some might be tendered as “an admission”. He commented (Tp6, LL44 – 48):

the assertions go to inform the state of mind of parties, the state of mind of parties about each other's state of mind, the representations made to the Court by the material, the matrix in which representations specifically pleaded are to be understood. The assertions say a great deal without calling those deponents.

139. He claimed that affidavits sworn for the proceedings in 2003 were relevant to the understanding of the ambit of the dispute as it affected the experts, and that they informed what both the Court and Young understood about the ambit of the dispute.

140. There remained a tone of fraud and “grand conspiracy” in the dispute, and Wright put to the Court that Newell’s case is that Exhibit A was not indeed a contract. McClellan J was satisfied that, on the evidence he received, the work identified in Exhibit A should form the basis of the defendants’ undertaking, and that he should accept the undertaking, and make the orders dismissing the proceedings.

141. There was some evidence, including oral evidence from Perrens and Springer, underpinning His Honour’s decision to accept the undertaking. If Newell wanted to rely on something Perrens did before the hearing, or in the course of the production of Exhibit A, it was still incumbent upon him to call him as a witness. Wright’s position was that if the affidavits put before the Court in 2004 were to be relied upon in this hearing, he required the deponents to attend for cross-examination.

142. I indicated (Tp13) that I did not want the hearing derailed by a huge argument about objections to material, as I did not want to “artificially shut Mrs Young out if some mischief has been done to her in the process”. I suggested provisional admission of the evidence, because the burden was on Young’s side to establish the relevance of all of the material before the Court.

143. The basis of proposed tenders had to be established and explained to the respondents; Young’s historical narrative might be good “storytelling”, but it was not “evidence”, and did not make its annexed, supportive material admissible (see Tp14, LL17 – 20).

144. On 3 September 2014, it became quite clear that time did not permit the resolution of the disputes about the NTPs between that date and the commencement of the trial.

145. The respondents objected to the NTPs on the basis that they were repressive, an abuse of process, and “fishing”, and Wright complained that they were “not even adjectivally relevant to the proceedings”. He said that the judgment I delivered in March 2012 (Young v King No 3) should apply to these documents as well.

The September/October 2014 Hearing

146. I made plain on several occasions during the four days of hearing, 9 – 12 September 2014 (e.g. Tp53, LL32 – 36, and Tp60, LL27 – 29), that Young was to have “every opportunity” to tell her story. Objections to her written material were noted, without being fully argued, orally, and most of the four days was occupied by Wright’s cross-examination of Young (Tpp67 – 323).

147. Despite her lawyers’ failure to comply, adequately, if at all, with all the pre-trial directions (Tpp58ff), which were really important, given there were now two separate cases before the Court, Young had before the Court many affidavits and voluminous annexures.

148. On the first day of hearing (9 September 2014), I determined (Tp51, L34) that I would not enforce the two NTPs.

149. In an affidavit filed in support of her NOM “pressing” for the notices to be complied with, Young put before this Court an affidavit which she had sworn in her District Court proceedings, on 23 June 2011 (Young 2 September 2014, Annexure ‘A’). That affidavit had become controversial in the SC Hones proceedings, as it apparently had been made available, somehow, to Hones’s solicitors, without Young’s consent.

150. In that 2011 affidavit, Young expressed some views about the “complexities” in her District Court and LEC proceedings.

151. She said (in par 4) “that the complexities of the matter do not arise peculiarly out of planning law learning though those matters have been manipulated”. She went on to explain that the complexities, in fact, arose out of the following:

1. Pleadings which were manipulated by her former legal representatives to record a set of circumstances which were contrary to her instructions, and which advanced the “agenda” of the Kings and the Council, to orchestrate circumstances leading to an order that a drain be installed on her land;

2. A false paper trail was designed by her former legal representatives to mislead and fabricate a false history to assist the Council in its agenda to place a drain on her land to drain the Kings land;

3. Water modelling was manipulated to suggest the existence of a minimal drainage problem caused by the Kings’ illegal works;

4. The problems associated with surface water flows which were ignored, or “airbrushed from consideration”;

5. Systematic and misleading assertions, both in writing and orally, which were designed to conceal the contemplated existence of a second DA (over her land);

6. The concealment of the fact that the undertaking given by the Kings was a sham;

7. That the DA lodged by the Kings pursuant to the undertaking was a sham;

8. That the purported consideration of the DA lodged by the Kings pursuant to the undertaking was a sham;

9. That the Kings, the Council, Young’s former legal representatives, and related parties, engaged in misleading and ambiguous communications designed to conceal their conduct and their agendas; and

10. Communications were manipulated to conceal the fact that there had been an intention to advance a second DA over Young’s land, with consequences which were alien to her expectations.

152. Young expressed her belief that the Kings “need and have always planned (with the collusion of Council) to place a drain on [her] land”. The issues arising included res judicata, professional indemnity, contract, the finality or otherwise of orders, the circumstances in which an agreement is void or voidable, and advocate’s immunity.

153. She deposed that she subsequently became aware “that Exhibit A was not a drainage solution, and was not intended to be a drainage solution”, but “merely a collection of notes recording various aspects of discussions which the experts held in 2004 in the conclave”. She alleged that Hones and Perrens, however, continued to encourage the idea that Exhibit A was “the solution”. She says Perrens chose his words carefully to create an understanding on her part, without actually saying, that it was a solution.

154. As a result of extensive investigation, Young had arrived at the following conclusion (par 46):

... the course of conduct to which I have been subject was by reason of an intention by the Kings and Council by collusion to intimidate or otherwise cause me to place a drain on my land for the purpose of draining King’s land following the construction of an illegal granny flat below the water table. For that purpose, the Council deliberately considered a DA lodged by the Kings for a change of use of rooms (for a granny flat) when what had in fact occurred was a new construction. That is the conclusion to be drawn from the evidence gathered to date.

155. When the latest hearing before me resumed on 28 October 2014, Newell sought to call, contrary to clear arrangements to which he had committed, Warwick Davies and Stephen Perrens.

156. Counsel (Mr Gray) appeared on Perrens’s behalf, strenuously to oppose his being called, given (1) that a leave application was underway to have the High Court over turn his success in Young v Hones in the CA, and (2) that Newell had foreshadowed (Tp55) bringing an application for a costs order against Perrens in this Court.

157. I declined to allow Newell to call Warwick Davies and Perrens. I set aside their subpoenas, and ordered Young to pay their “costs thrown away” (Tp335).

158. However, I granted Newell leave to recall Young at that stage, for further re-examination and cross-examination.

159. On 29 October 2014, the Court received extensive oral evidence from Young’s consulting engineers, Jack Davies and Michael Brearley.

160. Jack Davies had acted for her since late 2001, when she retained him to deal with Council on her behalf. It was he who referred her to Hones, who later (September 2003) recommended she also engage Perrens (Tp168). Jack Davies also “oversaw” for her what was being offered by way of resolution (Tp165, LL10 – 14ff).

161. Brearley had become involved in the matter, on her behalf, only in April 2012.

162. On 30 October 2014, Newell and Wright tendered some further documentary evidence (Exhibits A4 – 23, and R6 – 10). Wright called no witnesses, and counsel’s closing submissions commenced.

163. Newell addressed into 31 October 2014, and tendered another exhibit (Exhibit A24). Wright’s submissions and Newell’s reply occupied the rest of that day, and this judgment was reserved.

164. During November, as arranged, counsel “submitted”, without any additional submissions, some competing schedules of transcript and exhibit references.

I: Counsel’s Submissions

165. Although the contest before me this time was more confined than in 2012 it remained still quite wide and very complex.

166. The grounds for relief based on UCPR 36.15(1) and/or SC Act s 69 are the same. In addition, however, Newell sought to argue (NOM subs, par 11) that s 73 of the Civil Procedure Act 2005 “provides a power to set aside orders”.

167. That section provides:

Power of court to determine questions about compromises and settlements

(1)   In any proceedings, the court:

(a)   has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and

(b)   may make such orders as it considers appropriate to give effect to any such determination.

(2)   This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.

168. As Wright points out in response (subs par 24), that section was introduced to resolve any doubt about the necessity of separate proceedings to enforce settlements; it was never intended to provide an additional avenue for re-opening concluded proceedings.

169. Newell’s submission is rejected, and the Court will focus on the two usual avenues – UCPR 36.15 and SC Act s 69.

170. At the core of Young’s case is what Wright continues to describe as her “conspiracy theory” (or theories), involving a “hierarchy of villainy” (Tp581, L13), in which Council is the “arch villain” (Tp570, L30).

171. As Wright submits, there is, in the evidence, no basis for all the accused players to embrace such an elaborate scheme to prejudice her interests, and force her downstream neighbour’s drainage to become her responsibility. Young must be called upon to produce “genuinely probative and strong evidence” to discharge her onus and upset the 2004 orders: Briginshaw v Briginshaw (“Briginshaw”) [1938] HCA 34; 60 CLR 336, at 361 – 362, and s 140 of the Evidence Act 1995, which provides:

Civil proceedings: standard of proof

(1)   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)   the nature of the cause of action or defence; and

(b)   the nature of the subject-matter of the proceeding; and

(c)   the gravity of the matters alleged.

172. In his reply submissions, Newell (Tp600, LL34 – 36, and p601, LL12 – 13) eschewed Wright’s repeated use of the word “conspiracy”, but he and Young remain seriously concerned “about the conduct of a number of persons” who should be “brought [to] account”.

173. The trouble with Newell’s written submissions (and much of Young’s material) is their focus on post-2004 events and discoveries. They amount to retrospective reconstruction of words and events completely outside their context at the time. As “setting aside” applications have to review what occurred at the time the relevant orders were made, much of those submissions and materials are irrelevant and unhelpful. I have had regard to all of them, but they do not need to be set out here.

174. On this occasion, however, Young had her first chance to tell me her story, both by her documentary evidence, and by her frank and candid responsiveness to extensive cross-examination. In their final submissions, counsel described her evidence and demeanour in very different terms:

175. Newell said I would find her “entirely rational”, “intelligent”, “sensible”, “cautious and careful”, and “a thoughtful, careful person who did not reach conclusions glibly”, who has shown “determination” and “tremendous resilience”, and gave clear-instructions to her original lawyers, who did not act faithfully or engage with her adequately (see Tp600, L40 – p601, L11, and p607, LL41 – 45).

176. Wright’s descriptions were interspersed throughout his oral submissions, and some of those will be set out now.

177. He made the following submissions about the conspiracy he said continued to be alleged (Tp570, LL6 – 45):

There are enormous difficulties confronting a plaintiff who seeks to establish any one of those broad general grounds. I have dealt with them in the submissions. They are grounds common to both proceedings. Even, although those still appear to be the broad grounds upon which the plaintiff relies, we keep having added to them new dimensions of the matters which have allegedly fed this profound sense of grievance that Mrs Young, through Mr Newell, continually tells your Honour she feels. They all come back to one amorphous ever-changing incomprehensible mess, and that is this conspiracy theory.

...

One of the great difficulties your Honour has in understanding the case as it’s now put with particularity is there are statements made about what was done to Mrs Young but almost always there is no statement as to who did it and in what combination or for what reason. It is still apparently - and your Honour sees this from the letter of 24 October 2014 annexing the new version of the conspiracy theory expressed through Mr Brearley and the statements in the letter - the council that is the arch villain behind all of this and it’s the council that has a purpose, still unexplained, of shifting the drainage burden to Mrs Young’s land.

The instruments of the conspiracy are still Hones, Hemmings, Perrens, apparently Warwick Davies, apparently Mr Griffiths, wittingly or otherwise, and beneath it all, possibly still at the bottom as was put to your Honour 25 months ago, or finding a different place in the order of villainy or somewhere, are the Kings. Again, the allegation is there was not a single purpose by the Kings but an overarching purpose by the council to shift the drainage burden to Mrs Young’s land. And, as we now understand the expression of the case, that involves something called “an implied approved drainage system”; whatever that could possibly mean I don’t know but the suggestion most recently put is that the only way you can look at these plans, including the construction certificate plans, is that it presupposes that something exists over there on the other side of the boundary.

178. He added (Tp575, LL16 – 47):

In 2003, when not satisfied with the responses she was getting from the council universe, apparently we now know that that’s because the council had an agenda. We still don’t know why or for what motive, but we’re told the council had an agenda. We now know - we don’t know why - that somewhere in amongst the mix in 2001, when the Kings deviously went to the Community Justice Centre and invited Mrs Young to join them, that lurking in amongst all of that processing of intent was the idea that somewhere down the track there would be “an independent expert” appointed to take Mrs Young’s rights out of consideration by an agreement in the parties.

Was that something that council orchestrated? How did it happen? Where did they meet? What were the discussions? We’re now told, as of the submissions made and I think you’ve heard in open Court, that that’s somehow or other is the centrepiece of what Mrs Young was being misled into doing. How that could possibly work, your Honour doesn’t know, but that’s the centrepiece.

My guess, for what it’s worth, is that at the end of 2008, when this was going on and on and on, we thought an inordinately lengthy period of time of six months from 30 May 2008, when the matter was brought to focus in the District Court and brought back to this Court by of motion, that the impasse had to be broken. An open offer was made by the Kings to Mrs Young that the matter be the subject of report and recommendation by an independent engineer.

...

A second letter went saying that Kings did not object to a surveyor looking at the Kings’ property, but the surveyor should look at both properties and in 2008, despite the fact that the Kings are apparently a party to this enormous conspiracy, they open the door to review by independent people.

179. He returned to this theme at the conclusion of his oral submissions (Tp600, LL19 – 27):

It all seems to feed back into one of the many dimensions of the conspiracy theory. We have Jabba the Hutt sitting at the council like this emanation of evil, somehow or other invisibly directing that all things should happen to ensure that Mrs Young is disadvantaged. But there is simply no evidence - no evidence - to support the proposition that Mrs Young has been conspired against by anybody. In the application she makes to your Honour, both the judicial review proceedings and the notice of motion should be dismissed. She has been given every opportunity to put her case forward and ultimately I’ll have to be heard separately in relation to the question of costs.

180. Of Young personally, her level of knowledge and understanding, her conduct, and her evidence, he said (Tp574, LL3 – 46):

The implication your Honour has been asked to accept is that the plaintiff is a victim of the conduct of others, untutored, unknowledgeable, utterly dependent upon the advice, in particular, of Mr Hones and Mr Hemmings and the advice they gave to her in 2003 and 2004 and, most fundamentally, in the presentation of her case before the Court on 16 to 19 February 2004. She would love to have your Honour accept her as a defenceless victim.

She is anything but and that was a significant part of the cross-examination over those three days and why in reality it took so long because I needed to take Mrs Young through the chronology of events and what I’m going to submit to your Honour is that the evidence makes absolutely clear that from the very outset it is apparent that Mrs Young is both strong-willed, forceful and able to pursue her own interests. She is intelligent, articulate, focused and she has been utterly determined and relentless in pursuing her “right”, her sense of grievance against the Kings from the middle of 2001.

She has written focused, repeated lengthy letters to the council, setting out her complaints. She has required council officers to attend and have exposed to them her concerns about what the Kings are doing. She has lobbied the councillors relentlessly in relation to DA 1382.01, had Councillor Sutton come to the land, look at matters and apparently make representations on her behalf, lobbied each and every councillor in the process of its consideration of DA 1382, ensure that the application was brought for council’s consideration, where it was voted down 90 (sic – “9-0”), including the vote of Councillor Sutton obviously.

Thereafter she has engaged some local person, whose name I forget, who is stronger in the community, to lobby on her behalf before the council. Where she has had a concern about an issue she has pursued every possible avenue to have it considered and determined in her favour. She has spoken to the department responsible for the administration of the Water Act. She has spoken to the council ombudsman. She has spoken to the general manager of the council. She has gone to the New South Wales Ombudsman. There is barely a door she has not knocked on in all these years to pursue her rights.

181. He added (Tp578, LL3 – 39):

It is clear from her own evidence that she would not just accept at face value anything anybody told her and if she disagreed with it, she'll have expressed her disagreement and she would test it.

So for her to suggest, through Mr Newell or indeed in a self serving way she often did in the witness box, that somehow or other she just didn't know what was happening to her is just utterly unacceptable. She was a very focused, determined litigant, ensuring that she was fully informed throughout the process of litigation as to what her solicitors were doing for her.

It appears that the way it's put in relation to the hearing itself is that she wasn’t told what was happening. She sat through the four days at the hearing. She had opportunities, if she needed them, to ask Mr Hones or Mr Hemmings what was going on. She attempted to impose herself into the conclave. She demanded that she be admitted to it. She was refused access. She had the form of agreement by the end of the first day or the second day. She knew what was being done in Court and she knew what the result was.

It just beggars belief that she'll suggest to your Honour that because Mr Hemmings didn't buy her a sandwich and didn't tell her what was going on at lunch time she was so browbeaten and disadvantaged that she couldn’t possibly ask him or Mr Hones what was being done on her behalf. If she had any issue about it your Honour should be in no doubt from what you have seen of her in the witness box and the history of her correspondence, that she would've intervened in no uncertain terms. She was satisfied of what was being done on her behalf. It is absurd for her to suggest before your Honour now that she simply did not know or understand the effect of the things being done.

Even if she didn't, with respect, it doesn't matter because it's pain her properly authorised agents did and they did their duty to the Court and they did their duty to her by resolving the matter as they did. The fact that she doesn't like the result now because she's got new lawyers who are willing to tell her that she was so hard done by does not lay a basis for your Honour to set aside a final binding order, or to determine the contract which supported the undertaking is void on any basis.

182. Of her engagement of Jack Davies, he said (Tp574, LL38 – 47, and p575, LL11 – 14):

Throughout 2002, and after the DA was granted in February 2002, she has pursued and pursued and pursued the issues which are of concern to her. She engaged Jack Davies in November 2001. He has made repeated reports on her behalf or, more correctly, submissions in the form of an advocate, invariably adopting the very words that Mrs Young herself has used in the instructions she gives to him to the council, “To whom it may concern”, to the council, repeatedly to the council. In particular, she has Mr Davies adopt and put to the council matters like the spring/watercourse/underground channel, the alleged 1.5 metre uninhabitable floor space, the alleged subdivision drainage system and the main rubble pit.

...

... that letter is a perfect example of the intensity and the focus and the intelligence that Mrs Young has always brought to the pursuit of her rights. Mrs Young is no victim. She has been an aggressive and relentless advocate in her own interests for all these years.

J: Consideration

183. The specific grounds upon which Young now relies to have the 2004 orders set aside are:

1. the undertaking was uncertain (as to the stipulation of a discharge point);

2. the parties suffered from a “common mistake” (as to the stipulation for a discharge point);

3. Young was mistaken (as to the stipulation of a discharge point);

4. the Kings made fraudulent representations to McClellan J in respect of the undertaking;

5. the Court had no power to make orders reflecting the undertaking.

184. The first point to be made is that, despite Newell’s s 69 submissions (pars 29ff), no questions of jurisdiction arise in this matter (Wright at Tp576, LL29 – p577, L8, and see [35] above). McClellan J clearly acted within power in making orders of a type made daily in this Court, and there is no doubt that I have the power to make the orders Newell and Young now seek (see judgment No 4, at [364] – [392], to which I still adhere).

185. Although Young’s case has significantly “narrowed” since my dismissal of it in Young v King (No 4), and Newell eschewed, in terms, the “conspiracy” case, there remains at the heart of the matter the allegation of a grand “conspiracy”, or a major “collusion”, involving the Council, the Kings and the parties’ legal teams, and respective experts, the purpose of which, for reasons never made clear, was to shift the drainage burden from the Kings’ land to Young’s.

186. Newell rightly sought to focus his final submissions on the parties’ understanding, albeit over time, of the 2004 settlement agreement, which was said to be “a solution” to the drainage problem, and was the basis of McClellan J’s orders (see [73] above). However, the parties’ intentions must be determined at the time the contract was made, not some years after the event, Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603, at [239] – [273].

187. In Romeo v Papalia (“Romeo”) [2012] NSWCA 221, Sackville AJA (with whom Basten and Campbell JJA agreed) said, at [79] – [80]:

79 In general, a judgment that has been entered cannot subsequently be challenged.

…

80 However, a judgment that has been entered is not unassailable. It may be challenged on the ground that it was obtained by fraud or mistake or by an agreement which is void or voidable: Permanent Trustee Co (Canberra) Ltd v Stacks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45, at 48, per Brennan J.

188. In Romeo, the CA upheld the rejection by Sackar J of an application to set aside a consent judgment. Importantly for the present matter, there was no dispute about the authority of agents to bind principals, whether authority is conferred expressly or implicitly.

189. Frequently in this Court the evidence indicates that the aggrieved party has not paid timely and adequate attention to key documents relevant to the proceedings and/or their settlement: see, e.g. my judgment in Shields v Monhem (No 2) [2014] NSWLEC 99, and the CA decision upholding it, Monhem v Shields [2015] NSWCA 24.

190. Hones and Hemmings committed Young to the settlement based on Kings’ undertaking and Exhibit A, authored by the experts on both sides, Young being represented by Perrens and Warwick Davies. She was closely cross-examined about her understanding at the time, and she gave the following evidence (at Tp212, LL1 – 44):

HIS HONOUR

Q. Given or shown?

A. I was given the, the document, the, the handwritten notes of Davies which is referred to as exhibit A on the second of the first, at the end of the first day or the end of the second day at the end of the day.

Q. Were you given a copy or just shown it?

A. I was given a copy.

WRIGHT

Q. So you’d had the opportunity in the course of those days, either from the 16th or 17th through to the 19th to read exhibit A?

A. Well I looked at it. It’s, it’s hard, probably difficult reading, you know, since it wasn’t flowing, it wasn’t in sentences. It was bits of information on the paper and, yes.

Q. Let me ask you again then. You had a copy of it, you knew that that was what the orders referred to and they’re actually initialled 19 February 2004 but there’s another date appearing on the left hand side of 17 February 2004 - do you see that?

A. Yes I do.

Q. They were finally given, signed by both of the Kings on 19 February 2004 and you knew that it was referring to the document you had as exhibit A, correct?

A. Yes.

Q. If there was any part of either this document, at page 690, or exhibit A which you did not understand, you had the opportunity didn’t you to seek advice from Mr Hones and Mr Hemmings as to what it meant?

A. Yes.

Q. Did you do that?

A. No, I thought I understood it.

Q. You understood what it meant so you didn’t feel the need to get advice from Mr Hones or Mr Hemmings as to what exhibit A meant at that time?

A. No, because I don’t--

Q. You were clear on what it meant?

A. I thought I understood it from what I heard in court.

191. Earlier (at Tp195, L12 – p196, L39) she had given the following evidence :

Q. Did you think about your position after court and overnight and wonder about what it was that was happening during the day?

A. Well, over the night I - it was a lot for me to take in. What I believed had occurred was that a solution had been found to the problem, or what I thought was my problem. I didn't have any discussions with anybody after the court.

HIS HONOUR

Q. Did nothing happen in the courtroom involving you during the afternoon?

A. Involving me?

Q. Yes, you went off to the coffee shop at lunchtime and came back. What happened during the afternoon before his Honour?

A. At about 3--

Q. From your point of view. I'm getting all this from your point of view. I can read the transcript but I want to know what you thought was going on.

A. Okay. At about 3 o'clock Mr Hemmings said to the court he wanted to hand up an agreed position paper.

Q. At 3 o'clock?

A. About 3 o'clock I think it was. I don't think - I'm not sure when it got handed up but Mr Hemmings started talking about the work that was to be done.

Q. Did his Honour make orders on the afternoon of the 16th?

A. No.

Q. You didn't see exhibit A on the 16th?

A. Now, Mr Hones handed me a copy of exhibit A, but I'm not sure if it was the first day, after the court, on the way out, or whether it was the second day, on the way out, but it was late, at the end of a day and it was handed to me without any words.

WRIGHT: Was there anything else your Honour.

HIS HONOUR: No, no, it just seemed a chance to - nobody spoke to me after court. I just wanted to know what happened; there's a couple of hours missing.

WRIGHT

Q. You don't remember whether you were given exhibit A on 16 February?

A. I'm sorry, I didn't hear that.

Q. You do not remember now whether you were given exhibit A on 16 February 2004.

A. No. It was either after the court on the 16th or the 17th.

Q. But you do remember that at about 3 o'clock the judge was back on the bench, Mr Hemmings and Mr Griffiths were appearing before him, and Mr Hemmings informed his Honour that the experts had agreed on the works which needed to be done, is that right?

A. Something to that effect, yes.

Q. Again doing the best you can by memory, because we can all look at the transcript, did Mr Hemmings identify, that you heard in court on the afternoon of 16 February 2004, what works were to be done?

A. Mr Hemmings was saying that the work that had to be done was you had to take the, the drainage line, because it's not - it's trying to discharge to the front and it's not going to discharge into the front, and you need to take it, and you need to take it to the rear, and you need to take it to the base of the footing because it's not currently at the base of the footing. So basically I heard him describe taking it, the drainage line in question, which was supposed to be draining to the front but which the experts said wasn't draining to the front correctly, and you're supposed to lower it so that it drains at the base of the footing and you direct it to the rear yard of 37.

Q. You heard that said in court on 16 February?

A. Yes. I think it was the 16th, yes, in the afternoon.

Q. At no point, either at court or after court on 16 February, did you approach Mr Hemmings or Mr Hones and ask them what that meant in relation to the conduct of your case.

A. Well, it seemed to me, the way it was explained to the court that it was the, the answer.

Q. That was being said to the court on your behalf by your barrister, Mr Hemmings, wasn't it?

A. Yes.

192. The Kings’ undertaking, based on Exhibit A, envisaged a stock standard “drain and retain” solution to the problem. Such a solution was what Young had really sought in the original proceedings. On the first day of the hearing before McClellan J her counsel (Hemmings) said (Exhibit A20, fol 757):

We want a retaining wall finished because at the moment that is not supporting our land. We want the retaining wall finished and we want adequate drainage works installed, it’s as simple as that.

193. Under Exhibit A, the proposed drainage for that wall would be “isolated” from the storm water drainage system on the land which drained to Calga Crescent, and instead would drain to the rear yard of No 37. To give effect to this change in drainage, an existing 65mm pipe would need to be disconnected from the front of No 37, and lowered to the existing wall footing zone, to the lowest extent possible, in light of the grade to a discharge point at a Reduced Level of 7.95.

194. Young now seeks to re-open these proceedings because she has, since 2004, come to various opinions that Exhibit A was not, in fact, a solution to her problem.

195. Unfortunately for Young, dissatisfaction with the final outcome of proceedings, which were settled on her behalf by her legal representatives, and/or on their advice, is not a reason to re-open proceedings. That is “the insurmountable obstacle” to her case (Tp591).

196. Young now asserts that she held fundamental misapprehensions as to the purport of these works, namely she was unaware that:

1. The proposed wall would be on the Boundary, and therefore require works, and drainage on her land (Tp357, LL18 – 40);

2. There was no “legal and effective” drainage outlet stipulated in Exhibit A at the rear of No 37 (Tp555, LL41 – 50);

3. When the undertaking was given, the 65mm drain was already draining to the rear of No 37 (Tp560, LL30 – 38); and

4. The agreement “pre-supposed” a drainage burden on her land (Tp330, LL 20 – 31).

197. It is on the basis of these misapprehensions that Young asserts (1) that Exhibit A was “uncertain”, (2) that she and/or the Kings were mistaken as to the purport of it, and (3) that fraudulent misrepresentations were made to the Court that Exhibit A was a “solution” to the drainage problem, and, therefore, (4) that the undertaking, and the orders reflecting it, should be set aside (see [183] above).

198. I turn now to deal with those assertions.

Uncertainty?

199. The undertaking is part of the settlement contract, and the terms of it are to be construed objectively. The subjective opinion or evidence of one party to a contract is completely irrelevant to establishing whether its terms are uncertain.

199. As stated by Gleeson CJ, Gummow and Hayne JJ, in their joint judgment in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; 210 CLR 181, at [11], quoting Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896 98 at 912:

Interpretation of a written contract involves, as Lord Hoffmann has put it[2]:

"the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract"

201. Accordingly, the “speculative opinions” of Young herself, and of experts she later engaged to “interpret” Exhibit A, are irrelevant to the determination of whether the terms of the agreement were uncertain (defendants’ subs, par 42).

202. Most significantly, the undertaking cannot be rendered uncertain by the belated “discoveries and revelations” to which Young and her legal advisors claim to have become privy years after the agreement was reached.

203. As Wright said (subs par 70):

What occurred in Court in February 2004 is to be ascertained from the judgment and the transcript and not from the plaintiff’s self serving reconstructions formulated a decade after the actual events.

204. He correctly submitted (at Tp567) that, in construing the undertaking objectively, all I should have regard to are (Tp567):

1. the order made by the court recording the undertaking, including Exhibit A;

2. the Judgment of McClellan J;

3. the transcript of those proceedings; and

4. to the extent that they may be relevant, the original pleadings.

205. Based on those limited sources, the undertaking, as expressed in Exhibit A, when construed objectively, was, in my view sufficiently “certain”. It was a simple “drain and retain” solution to the problem, involving the isolation of drainage for a completed retaining wall, and a change of the drainage of that wall from the front of No 37 to the rear at a level of RL 7.95. I support that finding with the following reasons:

206. Young’s complaints in regard to the alleged uncertainty of the undertaking were expressed (at Tp556) thus:

The difficulty we say there is that the exhibit A provides for the 65 millimetre drain to be taken to 7.95 in the rear yard of number 37. As I have submitted, it’s impossible to enforce - that’s an illusory obligation because it doesn’t specify any kind of discharge point. 7.95 does not define any point; 7.95 is only a level. If the matter were to provide any protection whatever or to be coherent in terms of why it stipulated that it would go to 7.95, that would have to define a grade in the case of a drain. It would have to protect the notion of a grade by stipulating the level against the distance travelled of the drain.

…

This does no such thing but, most particularly, it just does not specify a place to discharge the water.

207. Although some details of the exact operation of the drainage scheme were left unresolved, including the precise location of the outlet at the rear of No 37, the terms of it were sufficiently certain for them to be attributed meaning, at that time, by the Kings, and by Young and/or her legal representatives. As stated by Wright (at Tp592):

Three of the elements upon which Mr Newell focuses attention is the allegation that there was this discharge point that wasn't catered for. Again, not to labour it, if it wasn't catered for then there are people who should be sued for it. But the truth of the matter is that what the experts addressed in producing exhibit A was a need to lower the 65 millimetre drain, and it was to discharge to the rear. That's what it does. There is no basis at all to suggest, certainly by reference to any control that your Honour has been directed to, that that fails and is uncertain because it happens to discharge to an identified level. There is nothing inherently wrong with the idea that when you are taking water from the basis of a wall in the drain which has existed, so it's lowered for the purpose, it s taken to the rear away from the wall and discharges to a level.

You had three engineers, all of whom were qualified to address that question, accepting that that was how their solution should work.

208. The clarity of the works required by Exhibit A is reinforced by the fact that Young first sought to have the undertaking enforced. She brought contempt proceedings (defendant’s subs par 51) and sued the Kings in the District Court for their alleged non-compliance with it (par 52).

209. For their part, the Kings acted upon it. They lodged a DA in an effort to comply with it, only to be thwarted by Young’s refusal to give owner’s consent, contrary to the advice of her lawyer. As stated in the written submissions of the defendant (pars 41 and 48):

41.   It is readily apparent from the terms of the undertaking and from the judgment that the steps required to fulfil the undertaking were capable of being implemented and were in fact implemented in accordance with the terms of the consent orders as modified on 8 March 2004.

…

48.   Events subsequent to the giving of the undertaking demonstrate that the undertaking was not only capable of being implemented but was in fact implemented to the extend possible. The defendants’ made reasonable endeavours to comply with the undertaking immediately after the conclusion of the proceedings in the period between 19 February 2004 and 8 March 2004 and thereafter by the lodging of the 2004/282DA. They made reasonable endeavours to progress the development application through the Council until it was finally refused in 2006.

…

210. Despite the absence of any stipulation of a particular discharge point at the rear of No 37, the agreed settlement was, in the Court’s view, sufficiently “certain”, and Young fails on that ground.

Mistake?

211. Young alleged that she, and/or the Kings, were mistaken as to the purport of Exhibit A, therefore rendering the undertaking void.

212. The nature of this alleged mistake was expressed by Newell (at Tp558):

Mrs Young understood, certainly after the hearing, must have understood that this was an arrangement to drain her land and that there was necessarily a discharge point for the purposes of the substantial drainage arrangement stipulated.

213. Young gave oral evidence that she was also mistaken as to the need for works to be done on her land to give effect to the Exhibit A works (see [196] above).

214. In my opinion, these claims of mistake disregard the principle of “agency”.

215. It is well established that litigants are bound by actions taken in their name by representatives: see, e.g., University of Wollongong v Metwally (No 2) [1985] HCA 28, Coulton v Holcombe [1986] HCA 33; 162 CLR 1, and Bankstown City Council v El Dana [2009] NSWLEC 68.

216. Hones, Hemmings and Perrens were Young’s agents when Exhibit A and the orders were agreed upon. The orders made reflected those agreements, and the actions of the three, in formulating, accepting and entering into that agreement, bound Young as if she had entered into the agreement herself: Romeo ([187] above).

217. It is common ground that Young authorised her legal representatives to settle the proceedings on her behalf, in accordance with the Kings’ implementing the Exhibit A “solution”. It may be that this “solution” was not adequately explained to her, but she had access to a copy of the exhibit during the hearing before McClellan J, and had ample opportunity to ask her legal representatives to have Exhibit A explained to her if she was unclear on any aspect of it (see [190] above, and Tp578).

218. Young’s hindsight, in realising that she may have made a “mistake” in accepting Exhibit A as the solution, is not a “mistake”, in any legal sense which might render a contract void.

219. She must establish that Hemmings or Hones were mistaken as to the actual terms of Exhibit A. No evidence was adduced to prove such a mistake, and the 2004 transcript makes clear that the legal representatives were clear on what Exhibit A involved, as illustrated in the following passage of transcript (Exhibit A20, fol 783), explaining Exhibit A to McClellan J:

… in relation to the retaining wall drainage system, what needs to happen is, the system that’s there needs to be changed and what you need to do, is you need to isolate the drainage system for the wall from the storm drainage and where as at the moment it discharges into the stormwater drainage to the street, you now need to change it so it drains to the rear yard … And the next part of the works that need to be done is lower existing 65 mil (sic) pipe to wall footing zone at lowest level possible considering grade for outlet to rear yard ...

220. Young, therefore, has failed to prove that the agreement is void on the basis of either common or unilateral mistake.

Fraud?

221. The plaintiff asserted that a number of misrepresentations were made to the Court as to the purport of “Exhibit A”, which amounted to “fraud”, and, therefore, the orders should be set aside, as they were made “against good faith” (UCPR 36.15).

222. The specific misrepresentations alleged are:

1. that Exhibit A purportedly provided a “drainage solution” for Young’s property, that included a stipulation for a specific discharge point on No 37 (applicant’s subs 03/40417, par 72); and

2. that the 65mm drain was draining to the front of No 37 at the time of the hearing before McClellan J (applicant’s subs 14/40449, pars 19 – 28).

223. These alleged misrepresentations were explained by Newell, (at Tpp559 – 561), as follows:

Exhibit A, as the pleadings are set out, is constructed in such a way that it conveys to the Court, in combination with other matters put to the Court from the bar table and from the witness box, that this is an arrangement to drain to a pit in the rear yard of number 37 and that an entirely adequate drainage system had been identified shortly before the trial, enabling the matter to resolved without any orders for demolition…

So that the Court was clearly, on the totality, told in the presence of Mrs Young, who also understood that, that this was an arrangement, according to which the adequate drainage system, characterised by an adequate outlet in the rear 37, was the foundation of the exhibit A solution for the reasons that are contained in the evidence. The 65 millimetre drain does not have significant capacity. The grade is never stipulated for it to be put to an outlet. The outlet itself does not exist as a legal outlet. It’s a closed pit and in all those circumstances it must have been known by Mr King that the Court had been misled.

…

One of them is the representation in relation to disconnecting from the front and going to the rear. It was an element of the exhibit A solution. It was identified in the evidence of experts that there was a difficulty draining to Calca Crescent of this 65 millimetre drain and in the circumstances what was proposed was that the drain would, according to the evidence which Mr King was in Court to hear, according to the evidence it would be addressed by disconnecting from the front and draining to the rear, again with all the problems of no outlet nominated or stipulated.

In the circumstances what was represented to the Court was that the water was draining at that stage as a matter of the structures put in place to the street and the disconnection from the front and the realignment of the drain to the rear was the essence of the solution to the problem. Without that the mischief deposed to by the experts in the Court case would not have been addressed. If, as an example, the drain was already draining to the rear, then by necessary implication the notion of taking it to the rear was going to be of no utility at all in dealing with what the experts understood to be a demonstrable problem.

…

how it is that each of Mr King, Mr Springett and Mr Griffiths were able to offer an undertaking to the Court to disconnect from the 65 millimetre drain and take it to the rear in circumstances that it was the known state of affairs that it was already draining to the rear.

224. In civil matters involving serious allegations of fraud, findings of fraudulent behaviour must have a strong evidentiary basis, pursuant to the principle articulated in Briginshaw (see [171] above).

225. In Briginshaw, Dixon J stated that the civil standard of proof “on the balance of probabilities”, was a test of “reasonable satisfaction”, and whether satisfaction is reasonable is not “found as a result of a mere mechanical comparison of probabilities”. Rather (at 361 – 362):

Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer … In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

(See also s 140 of the Evidence Act, [171] above.)

226. Whilst not altering the civil standard of proof, allegations of fraud must be supported by strong and probative evidence, and such findings should not be made lightly.

227. Although a plethora of material was tendered, I was not taken to any evidence of any real, probative value, which would warrant a finding of fraudulent behaviour by anyone involved in these proceedings. Young’s case is full of insinuations, and I agree with the statement made by Wright (Tp567, LL40 – 41) that “the evidence in this case and the way it is relied upon is so vast and complex that the allegations become almost impossible to unravel”.

228. Newell sought to describe the case (at Tp562, LL16 – 17) as “a riddle, wrapped in a mystery, inside an enigma” (although he quoted Winston Churchill inaccurately), and that is a fair description of how he put Young’s position to the Court.

229. In such circumstances, it would be entirely inappropriate to make a finding of fraud against anyone involved in the matter.

230. I am not satisfied, on the balance of probabilities, that the Kings, and/or their representative, made any fraudulent representations to the Court.

231. Young, therefore, also fails on this ground.

K: Conclusion and Orders

232. As Young has failed on all her grounds of challenge, no questions of discretion need be considered.

233. I have found no basis upon which the orders of McClellan J should be set aside, under either UCPR 36.15(1), or SC Act s 69.

234. The Kings appear to be clearly entitled to an order for their costs, but, after the 2012 decision (judgment No 4), they sought indemnity costs, against Young, and personal costs orders against Newell and Muriniti, and Young sought different orders (see Section F above – pars [43] – [48]).

235. In his written submissions on this occasion (par 81), Wright expressed the desire to be heard on costs, and Young’s capacity to meet any costs orders in this Court (and others) has been explored, at least in a preliminary way, during her cross-examination.

236. She gave evidence that maintenance and repairs to her house have not been done (Tpp188 and 209), and that she realised how difficult it will be for her to fund the costs orders already made against her (see Tp153, L48 – p154, L16, pp313 – 316, and pp361 – 364, and see also [12] above).

237. The Court, therefore makes the following orders:

1. The applicant’s notice of motion in proceedings 03/40417, seeking to have the orders of McClellan J set aside, and the matter re-opened, is dismissed.

2. The applicant’s summons in matter 14/40449 is dismissed.

3. The applicant is ordered to pay the respondents’ costs of the proceedings in this Court since 8 March 2004, on a party-party basis, as agreed or assessed.

4. Order 3 is stayed for 42 days and the parties are directed to file any notices of motion seeking a different costs order by 20 August 2015.

5. The Evidence Book and all exhibits are returned.

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Decision last updated: 09 July 2015