Fokas v Kogarah Council [2008] NSWCA 145

New South Wales Court of Appeal

CITATION: Fokas v Kogarah Council [2008] NSWCA 145

HEARING DATE(S): On the papers

JUDGMENT DATE: 26 June 2008

JUDGMENT OF: Allsop P; Tobias JA

DECISION: (a) Summons for leave to appeal dismissed. (b) The applicant to pay the second respondent's costs of the summons.

CATCHWORDS: Leave application – Land and Environment Court – Uniform Civil Procedure Rules – Power of the court to set aside or vary judgment or order – Order dismissing proceedings – Discretion not to grant leave

Electricity Supply Act 1995 (NSW) LEGISLATION CITED: Environment Planning and Assessment Act 1979 (NSW) ss 96, 116F Land and Environment Court Rules 1996 (repealed) pt 15, rr 2 and 9 Uniform Civil Procedure Rules 2005 rr 13.4, 36.16 and 51.15

CATEGORY: Principal judgment

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 CASES CITED: De L v Director-General of Community Services (No.2) [1997] HCA 14; (1997) 190 CLR 207; (1997) 143 ALR 171; (1997) 71 ALJR 588 DJL v Central Authority [2000] HCA 17; 201 CLR 226; 170 ALR 659; 74 ALJR 706 Fokas v Kogarah Council & Anor [2008] NSWLEC 74

Maria Fokas PARTIES: Kogarah Council Energy Australia

FILE NUMBER(S): CA 40061/08

A: Self-represented COUNSEL: 1R: Submitting 2R: Mr A Galasso SC

A: Self-represented SOLICITORS: 1R:Pike Pike & Fenwick, Sydney 2R: Clayton Utz, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 40007/08

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 1 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Fokas v Kogarah Council & Anor [2008] NSWLEC 74

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40061/08 LEC 40007/08

ALLSOP P TOBIAS JA

Thursday 26 June 2008 MARIA FOKAS v KOGARAH COUNCIL & Anor Judgment on the papers 1 THE COURT: On 19 March 2008 the applicant, Maria Fokas, filed a summons seeking this Court's leave to appeal from an order of Justice Pain of the Land and Environment Court made on 3 March 2008 dismissing the applicant's Notice of Motion dated 5 February 2008 seeking orders that the decision of Justice Lloyd of that court made on 1 February 2008 be set aside. 2 The first respondent, Kogarah Council (the Council), has filed a submitting appearance save as to costs whereas both the applicant and the second respondent, Energy Australia, have consented to the application for the leave to appeal being dealt with by the Court on the papers and in the absence of any attendance of the parties or their legal representatives pursuant to Part 51, rule 51.15 of the Uniform Civil Procedure Rules 2005 (the UCPR). 3 The dispute between the parties arises out of the granting by the Council to the second respondent on 14 December 2007 of development consent (the consent) for the construction of an electricity zone substation and associated infrastructure upon the properties Nos.260-262 Railway Parade, Kogarah and 8 English Street, Kogarah (the properties). The applicant is the owner of the property No.14 English Street, Kogarah. 4 On 7 January 2008 the applicant instituted Class 4 proceedings in the Land and Environment Court in which she sought a declaration that the consent be stayed until the land to which it related was rezoned. 5 By Notice of Motion filed on 1 February 2008 the applicant sought leave to amend the proceedings by seeking a declaration that the consent be stayed until certain modifications were made to it pursuant to ss 116F and 96(2) of the Environment Planning and Assessment Act 1979 (the Act). 6 On 23 January 2008 the second respondent filed a Notice of Motion in the Land and Environment Court seeking an order that the proceedings be struck out upon the grounds that they did not disclose any reasonable cause of action or, in the alternative, that they were frivolous or vexatious. Lloyd J acceded to that application on 1 February 2008: Fokas v Kogarah Council & Anor [2008] NSWLEC 74. His Honour noted that during the course of argument the applicant appeared to accept that the proposed development was permissible within the relevant zone but nevertheless mentioned that she was entitled to an order that the consent be modified in accordance with the provisions of the Act to which we have referred in the preceding paragraph. In this respect she asserted that she was "a person entitled to act on a consent" within the meaning of s 96(1A) of the Act. 7 Lloyd J observed that, as an objector, the applicant could not be so described and that she had misconceived and misconstrued the relevant provision. Accordingly, pursuant to the provisions of Part 13, rule 13.4 of the UCPR his Honour found that no reasonable cause of action was disclosed in the Class 4 proceedings instituted by the applicant and that, accordingly, they should be dismissed with costs. 8 On 5 February 2008 the applicant filed a Notice of Motion in the Land and Environment Court seeking to set aside the orders of Lloyd J. The power that the applicant sought to have the Court exercise was that contained in Part 15, rule 9(c) of the Land and Environment Court Rules 1996 (the LEC rules). That rule empowered Court to set aside an order if it was obtained by fraud. In this context the applicant asserted that the second respondent's counsel did not, before Lloyd J, read the applicant's entire affidavit sworn on 29 January 2008 and filed in the original proceedings, the result being that his Honour did not adequately consider all relevant matters which the applicant sought to place before him. In particular she alleged that the Neighbour Notification of the second respondent's development application dated 1 November 2007, which was forwarded by the Council to, amongst others, the applicant, failed to indicate that the application related not only to the property at No.8 English Street, Kogarah but also to Nos.10 and 12 English Street, Kogarah. She also raised an issue in relation to the Electricity Supply Act 1995 (NSW) over which the Land and Environment Court did not have jurisdiction. 9 The applicant's Notice of Motion came before Pain J on 3 March 2008. On that date she filed a further affidavit in which she claimed first, that the proposed development was a major project that ought to have been assessed under Part 3A of the Act and, second, that the development the subject of the consent was designated development within the meaning of the Act and the provisions concerning such development had not been complied with. She also refiled her affidavit sworn 29 January 2008 highlighting those portions which she alleged had not been read to Lloyd J by the second respondent's counsel. 10 However, a reading of the transcript of the hearing before Lloyd J demonstrates that the applicant's affidavit was before his Honour in its entirety and that the whole of it was read by counsel to his Honour: see Transcript 1 February 2008, pp 7.49-8.40. 11 The applicant further relied upon Part 15, rule 2(1) of the LEC rules which requires the Court to determine the nature of the applicant's case and to thoroughly examine all of the written material filed on her behalf. No basis has been demonstrated to suggest his Honour did not, given the nature of the application before him, comply with this requirement. 12 The LEC rules were repealed with effect from 28 January 2008 and were replaced by the UCPR. Accordingly, it was to those rules that attention was directed by Pain J when dealing with the applicant's Notice of Motion to set aside the decision of Lloyd J. 13 Relevantly, her Honour referred to Part 36, rule 36.16 which is in the following terms: "36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered." 14 Her Honour held that the effect of Part 36, rule 13.16(3) was that even where subrule (3A) was engaged, as it was in the present case, nevertheless the Court's power to set aside or vary a judgment or order pursuant to subrule (1) was limited by subrule (3) to setting aside or varying a judgment or order which did not have the effect of, inter alia, dismissing the proceedings. 15 In this context her Honour said: "5 Part 36 r 36.16 of UCPR is potentially applicable in that it provides broad powers for the setting aside or variation of judgments in addition to Part 36 r 36.15 (which deals with judgments or orders made irregularly, illegally or in bad faith, none of which circumstances arise here). Part 36 r 36.16(1) specifies that an application to set aside or vary an order should be made before the entry of an order. In this case the Applicant's motion was filed on 5 February 2008 after the order was perfected on 1 February 2008. Rule 36.16(1) appears to be varied by r 36.16(3A) which allows 14 days after the order is perfected in which to file a notice of motion to set aside or vary an order or judgment. That was done here.

6 Rule 36.16(3) states that in addition to its powers under subrule (1) and (2) the court may set aside or vary any judgment or order except so far as it, in ss (b), dismisses proceedings. The operation of that part of the UCPR means that I do not consider I can entertain the Applicant's Notice of Motion to set aside the final order of Lloyd J to dismiss the Class 4 application. I note that none of the circumstances referred to in r 36.16(2) as a basis for setting aside or varying a judgment or order arise here. 7 I am confirmed in this view given the important principle of finality of litigation whereby final orders even if made on an interlocutory basis should generally stand in the absence of substantial irregularities or good faith or fraud. The general rule is that the court may amend, vary or recall a final judgment before it has been formally entered, but that a court ordinarily has no power to set aside a final judgment after it has been entered, see DJL v Central Authority (2000) 201 CLR 226, Bailey v Marinoff (1971) 125 CLR 529. The Uniform Civil Procedure Rules appear to allow additional time in which to seek a review but these are qualified by r 36.16(3) in relation to the orders the Court can consider in any application to set aside orders." 16 Her Honour then noted that the applicant wished to raise fresh issues not previously raised before Lloyd J and which had not been the subject of her Class 4 proceedings, which his Honour had dismissed. The applicant could, she said, only raise these issues by commencing fresh proceedings. What she could not do through the motion before her Honour was to revive proceedings which had been dismissed. 17 The applicant in her written argument sought, in effect, to challenge the correctness of Pain J's construction of rule 36.16(3). The second respondent in its written response did no more than indicate that it did not concede that her Honour's construction was not correct. It therefore did not advance reasons as to why it might be correct. In our view her Honour erred in the construction she adopted. 18 It cannot be gainsaid that if rule 36.16(1) be taken on its own, it would confer a discretionary power to review, correct or alter any judgment or order that has not been entered: De L v Director-General of Community Services (No.2) (1997) 190 CLR 207 at 215 where Toohey, Gaudron, McHugh, Gummow and Kirby JJ in their joint judgment observed (omitting footnotes): "The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require'. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case." 19 There can be no doubt that their Honours were referring to the power of the Court to reopen a final order which would include an order such as that made by Lloyd J in the present case dismissing the applicant's Class 4 proceedings. 20 The power of the Court to set aside or vary a judgment or order under rule 36.16(1) is extended by subrule (3A) to a situation where the notice of motion for the setting aside or variation of the judgment or order is filed within 14 days after the judgment or order has been entered. As her Honour noted in [5] of her reasons, that had occurred in the present case. 21 The power to set aside or vary a judgment or order referred to in subrule (3) is stated to be in addition to the Court's powers under subrules (1) and (2). That is, it is an additional power which may be exercised where the notice of motion to set aside or vary the relevant judgment or order is not filed within 14 days after the judgment or order is entered or where the ground for setting aside or varying the judgment or order is not encompassed by the three grounds referred to in subrule (2). However, the Court's additional power under subrule (3) to set aside or vary any judgment or order in circumstances which do not attract the power under the combined operation of subrules (1) and (3A) on the one hand and subrule (2) on the other, is limited: that power does not extend to setting aside or varying a judgment or order which falls within subparagraphs (a) or (b) of subrule (3). 22 Accordingly, in our view the present case attracted the power of the Court to set aside the order of Lloyd J pursuant to the combined operation of subrules (1) and (3A). It did not engage the additional but limited power to set aside or vary a judgment or order provided in subrule (3), which only applies in the circumstances referred to in the preceding paragraph. Her Honour erred in holding otherwise. 23 As we have indicated, the basis upon which the applicant seeks leave to appeal from Pain J's decision to dismiss her notice of motion to set aside the order of Lloyd J is, as her Honour noted, the alleged failure by Lloyd J to consider all paragraphs of the applicant's affidavit sworn 29 January 2008 and filed in her Class 4 proceedings and an alleged failure to comply with certain provisions of the Electricity Supply Act 1995. 24 As we have observed at [10] above, a reading of the transcript of the hearing before Lloyd J reveals that there is no substance in the first of these grounds and, as her Honour correctly observed, the Land and Environment Court has no jurisdiction to deal with issues under the Electricity Supply Act. 25 However, in a further affidavit sworn 3 March 2008 and filed in the application before Pain J, the applicant raised the additional matters to which we have already referred, being first, that the Council did not correctly follow its notification procedures in that the Neighbour Notification received by the applicant did not include a reference to the properties Nos. 10 and 12 English Street, Kogarah as being land the subject of the original development application; second, that the proposed development was a major project that ought to be assessed under Part 3A of the Act; and, third, that it was designated development within the meaning of the regulations made under that Act which required the carrying out of procedures which had not occurred. 26 In our view, there is nothing in the material provided to us by the applicant that reveals there to be any substance in any of the three grounds which she now wishes to litigate with respect to the validity of the consent. Furthermore, the principle of the finality of litigation referred to in the joint judgment in De L, which we have set out above, militates against the grant of leave to appeal in the present case given that the grounds upon which the applicant now seeks to challenge the validity of the consent were matters which she clearly could have raised before Lloyd J, but did not. As their Honours said in De L in the passage cited: "It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', ie without the attribution of neglect or default to the party seeking reopening." 27 To reopen a final order requires exceptional circumstances which, in our opinion, have not been established in the present case. There is no utility in granting leave to appeal. Even though her Honour erred in finding that she did not have power to determine the applicant's notice of motion, for the reasons that we have given such notice of motion would inevitably fail. Therefore the orders made by her Honour were the inevitable fate of the applicant's motion and would be its inevitable fate if it were remitted to the Land and Environment Court for further hearing. We would therefore refuse to grant leave to appeal. 28 Accordingly, the Court makes the following orders: (a) Summons for leave to appeal dismissed.

(b) The applicant to pay the second respondent's costs of the summons.

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