Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114

Clayton Jacobson and Lee Anne McMillan v Ballina Shire Council [2006] NSWLEC 114

The consent orders were perfected before the notice of motion was filed, none of the grounds in Pt 15 r 9 of the Land and Environment Court Rules 1996 applied, and no inherent or implied jurisdiction was enlivened. The applicants had retained their solicitor without limiting his authority, had adopted a strategy requiring the Class 2 appeal to be put aside or compromised, and the solicitor had at least implied authority to enter the consent orders. The Council and its solicitor had no notice of any limitation and the solicitor also had ostensible authority. The compromise was confined to the subject matter of the proceedings and did not involve collateral or extraneous matters. Refusing...

Jurisdiction
Australia
Judgment Date
17 February 2006
Procedural Posture
Class 2 Proceedings; Notice of Motion to Set Aside Consent Orders / Ex Tempore Judgment on Applicants' Notice of Motion Filed 30 June 2005
Outcome
Applicants' notice of motion dismissed; costs reserved.
Legal Topics
['application to Set Aside Consent Orders' 'implied and Ostensible Authority of Solicitor to Compromise Proceedings' 'statutory and Inherent Jurisdiction to Set Aside Perfected Orders' 'local Government Act Order Concerning Waste Management']
['practice and Procedure' 'local Government' 'land and Environment'] ['application to Set Aside Consent Orders' 'implied and Ostensible Authority of Solicitor to Compromise Proceedings' 'statutory and Inherent Jurisdiction to Set Aside Perfected Orders' 'local Government Act Order Concerning Waste Management']

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Procedural Posture

Class 2 Proceedings; Notice of Motion to Set Aside Consent Orders / Ex Tempore Judgment on Applicants' Notice of Motion Filed 30 June 2005

Legal Issues

  1. 1 ["Whether the applicants' notice of motion was incompetent because relief should have been sought by fresh proceedings." 'Whether Pt 15 r 9 of the Land and Environment Court Rules 1996 permitted the consent orders to be set aside.' 'Whether the Court had inherent or implied jurisdiction to set aside the perfected consent orders.' "Whether the applicants' former solicitor had actual, implied or ostensible authority to compromise the Class 2 proceedings by consent orders." 'Whether refusing to set aside the consent orders would involve injustice.']

Ratio Decidendi

The consent orders were perfected before the notice of motion was filed, none of the grounds in Pt 15 r 9 of the Land and Environment Court Rules 1996 applied, and no inherent or implied jurisdiction was enlivened. The applicants had retained their solicitor without limiting his authority, had adopted a strategy requiring the Class 2 appeal to be put aside or compromised, and the solicitor had at least implied authority to enter the consent orders. The Council and its solicitor had no notice of any limitation and the solicitor also had ostensible authority. The compromise was confined to the subject matter of the proceedings and did not involve collateral or extraneous matters. Refusing...

Court Disposition

Applicants' notice of motion dismissed; costs reserved.

Orders

  • ["The applicants' notice of motion filed on 30 June 2005 is dismissed." 'The costs of the notice of motion are reserved.']