Baulkham Hills Shire Council v Stankovic

Bailey v Marinoff (1971) 125 CLR 529; Baulkham Hills Shire Council v Stankovic and Anor [2005] NSWLEC 110 ; DJL v The Central Authority (2000) 201 CLR 226; CASES CITED: Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 ; Michales v Dimoski and Ors [2007] NSWLEC 443; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438; Woollahra Municipal Council v Ferella (2005) 141 LGERA 166

APPLICANT Mr G Newport SOLICITORS LEGAL REPRESENTATIVES: Baulkham Hills Shire Council RESPONDENT Mr R Kent SOLICITORS Kent Attorneys

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41243 of 2004 Baulkham Hills Shire Council v Stankovic (No 2)

JUDGMENT 1 Her Honour: Following my judgment Baulkham Hills Shire Council v Stankovic and Anor [2005] NSWLEC 110 I made declarations and orders in relation to the First Respondent relating to land at Lot B, President Road Kellyville, on 22 March 2005 as follows:

1. An Order restraining the First Respondent by himself, his servants, agents or contractors from carrying out or undertaking on the property a use of pig keeping;
2. A declaration that the property is being used as a junk yard in breach of s 76B of the Environmental Planning and Assessment Act 1979;
3. An Order restraining the First Respondent by himself, his servants, agents or contractors from carrying out or undertaking on the property the use of a junk yard;
4. An Order that the First Respondent neatly stack all timber located on the property as at the date of these Orders into stacks at the locations marked "X" identified on the plan at Annexure A to these Orders within two months of the date of these Orders;
5. An Order that the First Respondent remove from the property all second hand and unused items such as old cars, white goods, general rubbish and accumulated used building material (with the exception of bricks located on the property as at the date of these Orders and timber identified in locations marked "X" identified on the plan at Annexure A to these Orders) within six months of the date of these Orders;
6. Direct that the issue of the making of an Order concerning the removal of bricks and timber located on the property be stood over before me on Tuesday 19 September 2006;
7. Grant liberty to all parties to apply for further Directions or Orders on 3 days' prior notice; and
8. Order that the First Respondent pay the Applicant's costs of the proceedings

2 The time to comply with orders 4 and 5 was extended on 7 February 2007 to 2 October 2007. The Council has filed a Notice of Motion which was set down for hearing seeking enforcement of order 6 of 22 March 2007 and order 5 of 22 March 2007 as amended on 7 February 2007. Order 4 of 22 March 2005 requiring the stacking of timber is not pressed because removal of timber is sought. First Respondent's Notice of Motion 3 The First Respondent has filed a Notice of Motion, which I gave leave to file in Court at the hearing, and sought leave to argue it instanter. It was served only the previous day on the Council well outside the timetable set by the Court on 9 November 2007. It seeks orders

1. That declaration 2 and orders 4 and 5 of 22 March 2005 be set aside.
2. The First Respondent be granted leave to file Points of Cross Claim in the form annexed hereto and marked "A".
3. The Second Respondent be granted leave to file Points of Defence in the form annexed hereto and marked "B".
4. Costs.
5. Any other order as the Court thinks fit. It was supported by an affidavit of the First Respondent sworn 4 December 2007. Council's submissions whether motion should be heard 4 The Council submitted that the Notice of Motion was well out of time given the timetable set by the Court on 9 November 2007, with no explanation proffered. On inquiry of the First Respondent's counsel the delay was attributed to the late receipt of relevant court transcripts for this matter. 5 Further, the First Respondent has not complied with orders made by the Court on 22 March 2007 as amended by orders dated 7 February 2007. He also prevented the Council's officers carrying out an inspection of the property on 3 December 2007 in defiance of a Court order made on 30 November 2007 specifically for that purpose. Consequently he is in contempt of court. There is authority that he should not be heard until the orders are complied with. 6 I have exercised my judicial discretion and determined to hear the First Respondent's motion despite its lateness and non-compliance with the March 2005 orders and the unsatisfactory behaviour of the First Respondent on 3 December 2007 when he prevented the Council's officers from conducting a court ordered inspection of the property, as the orders have an important impact on the Defendant. This behaviour is clear from the affidavit read by the Council of Mr Bourke, Council officer, sworn 4 December 2007 at par 12-21. I was mindful in making the decision to hear the motion that the Council's counsel considered he was able to deal with the submissions of the First Respondent's counsel for the first time when the motion was filed in Court.

First Respondent's submissions on its Notice of Motion 7 In support of the Notice of Motion reliance was placed on the Points of Cross Claim attached to the motion which contained statements of oral representations said to have been made by an unidentified Council officer in 1995 to the First Respondent to the effect that it was all right to bring secondhand building materials onto his property. An affidavit of the First Respondent dated 4 December 2007 was also read which referred to matters related to purchase of the subject Kellyville property, his first approach to the Council, discussions with the Council about building materials and first approach to the Council about building a house. The affidavit also referred to issues concerning his health, financial situation and personal circumstances concerning family law proceedings. 8 The grounds in support of the Notice of Motion include reliance on Pt 15 r 9 of the Land and Environment Court Rules 1996 (the Court Rules). Part 15 rule 9 relevantly provides: The Court, may, on terms, set aside or vary an order in any of the following cases: (a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order, … (d) if the order is interlocutory, (e) if the order does not reflect the intention of the Court, … 9 These subsections were argued to apply because: (a) A party was absent because while the First Respondent was present he was unable, due to his personal circumstances, to present all matters relevant to the Court's consideration of the issues then before it. (b) orders 4 and 5 were interlocutory. (c) it could not be the intention of the Court to make a finding concerning the operation of a junkyard on the First Respondent's land as all relevant circumstances on that issue about whether a junkyard existed as matter of fact were not before the Court.

10 The Court also has a general power to set aside previous orders in the interests of justice in the exercise of its broad discretion. Here there has been a breach of procedural fairness which justifies setting aside the declarations and orders.

11 The personal characteristics of the First Respondent, being his age (60), that he is hard of hearing, English being his second language he therefore needed an interpreter, and that he was not legally represented mean that procedural unfairness occurred at the hearing giving rise to the judgment and orders issued in 2005 identified in par 1. No specific or general procedural unfairness in the conduct of the hearing is identified by the First Respondent in making the application such as, for example, a reference to irregularities as identified in the transcript.

12 There is utility in setting aside declaration 2 and orders 4 and 5 of 22 March 2005 and allowing the First Respondent to put his argument and evidence concerning representation by Council officer in 1995 because relevant matters should be put before me so that all issues relevant are able to be considered by the Court. The Council officer told the First Respondent in 1995 that he could bring secondhand materials onto the property and he acted on that representation including spending money to bring secondhand materials to the site.

13 The First Respondent is a pensioner and does not have money to pay for removal of material. He cannot do the work himself due to health problems. If Council undertakes orders and requires payment from the First Respondent he would have to sell his property to pay that debt. Extreme prejudice would occur because if the property is sold because he would lose a valuable business opportunity.

14 In determining whether the use of the land was as a junkyard there were important matters not before the Court in March 2005. The Court should look at the size of the property (five acres), specific goods on the property, the location and configuration of those goods, the overall volume of goods on the property and the aesthetic appearance from the street. Also there was no inventory before the Court so that order 5 was too broad.

Council's submissions 15 The Council argued the grounds put forward to demonstrate that there was utility in setting aside the declaration and orders to allow further argument were hopeless or irrelevant. On the estoppel argument the authorities suggest the case is hopeless. The identification of issues related to the junkyard issue were irrelevant. In any event Pt 15 r 9 cannot apply and Court has no inherent power to set aside orders apart from that. Finding 16 The well established principle of finality of litigation suggests that Court orders once made should not be lightly overturned. In this case the orders have been sealed and were therefore perfected quite some time ago in 2005. While the First Respondent's counsel emphasised that this matter is not final because it is still before the Court I consider declaration 2 and orders 4 and 5 that I made on 22 March 2005 are final orders. The matter only continues before the Court because of the need for enforcement of the original order 4 and the Council now seeking to have order 6 made.

17 None of the parts of Pt 15 r 9 relied on by the First Respondent's counsel apply. The First Respondent was present when I made the order (ss a), the orders are not interlocutory (ss d), the orders do reflect the intention of the Court based on the reasons identified in my judgment handed down in March 2005 (ss e). 18 I considered the relevant authorities in relation to the setting aside of judgments under Pt 15 r 9 and whether the Court has inherent powers in Michales v Dimoski and Ors [2007] NSWLEC 443 at par 32-35: (iii) Inherent power to reopen proceedings? Is there otherwise an inherent power to allow the reopening of proceedings which are completed? In Bailey v Marinoff (1971) 125 CLR 529, Barwick CJ held at 530: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court, and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In DJL v The Central Authority (2000) 201 CLR 226, the High Court held that the Family Court of Australia did not have any inherent power to set aside perfected judgments. That finding was applied in this Court in Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 at [11] - [13] to the effect that only exceptions authorised by statute could apply to enable a perfected judgment to be set aside. Relevant authorities were considered by Lloyd J in Woollahra Municipal Council v Ferella (2005) 141 LGERA 166. His Honour stated that where a judgment has been perfected the Court cannot generally review or alter the judgment, relying on the well known dictum of Barwick CJ in Bailey v Marinoff, see [4] - [6]. His Honour considered numerous other authorities and concluded that this Court does have inherent jurisdiction to set aside perfected orders as identified in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 per Sheller JA at 27 (a decision made before DJL). In Ferella , Lloyd J stated at [14]: In Logwon , Sheller JA helpfully referred to a judgment of Brennan J in Permanent Trustee Co (Canberra) Limited v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Brennan J sitting as the Supreme Court of the Australian Capital Territory, gathered the exceptions to the general rule; that is, the general rule described in Bailey v Marinoff into three classes. First, those which are founded upon the inherent jurisdiction of the Court to ensure that its procedures do not effect injustice; second, those which are authorised by statute; and third, those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable. In Jacobsen & Anor v Ballina Shire Council [2006] NSWLEC 114, in which it was sought to reopen proceedings discontinued by consent, the matter was dealt with on the basis that the Court did have inherent powers to set aside a judgment.

If such discretion exists where the circumstances referred to in Pt 15 r 9 do not apply and the Court's order has been perfected, it should be exercised because the interests of justice require it. Relevant considerations were identified by the Court of Appeal in Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 by Kirby P at 153 (Priestley and Handley JJA concurring). His Honour concluded at 154 that the Court of Appeal had "limited, special and wholly exceptional jurisdiction" to re-open perfected orders. He declined to exercise that jurisdiction in that case for the reasons set out at 154 -156. The second reason identified was the need to take into account the principle of finality of litigation. Kirby P also referred to the necessity for parties to be bound by their conduct of the proceedings.

19 Applying these authorities here, as I did in Michales, and assuming that I have inherent power to reopen proceedings by setting aside these orders, I do not consider the circumstances outlined by the First Respondent's counsel are so exceptional that I should exercise my discretion to allow the setting aside of perfected orders given the importance of the principle of finality of litigation. No failure on the part of the Court to afford procedural fairness was identified at the hearing or any other time. Rather the personal characteristics of the Respondent (age, poor hearing, poor English), lack of legal representation and a supposition that had he been legally represented his lawyers would have put before the Court the matters raised in argument on the motion by his current legal representatives, were said to demonstrate the procedural unfairness, suggesting the declaration orders of 22 March 2005 should be set aside. No part of the transcript of the hearing is referred to as suggesting there was unfairness to the First Respondent at the time. Nor did he raise any difficulty with the Court about representing himself at the hearing in March 2005. The transcript of the hearing shows that he participated in the hearing and gave oral evidence about, inter alia, the 1995 representation of the Council officer now relied on in the Points of Cross Claim attached to the motion. He did not raise the estoppel argument now raised in submissions. The circumstances relied on are solely the personal characteristics of the First Respondent and are matters which he could have raised as impediments to a fair hearing but did not at the time of the Court hearing. It is not accurate to characterise this application as based on a failure of procedural fairness. I consider the submissions are really directed to whether the interests of justice require the perfected orders to be set aside. 20 Individually or collectively the matters relied on are not sufficiently substantial to justify, in the interests of justice, the setting aside of final declarations and orders made over two years ago given the important consideration of finality in litigation. 21 In relation to whether there is utility in the setting aside of orders, which are matters I consider are of secondary consideration given the procedural impediments to setting aside perfected orders, the First Respondent's legal representative has identified matters she says should have been put to the Court in relation to the issue of whether the use of the land was as a junkyard and also estoppel arguments. I agree with the Council's counsel that these appear hopeless or irrelevant. Even had I considered these submissions to be well founded I would not exercise my discretion to allow the orders to be set aside in the circumstances identified. It is not enough to identify legal arguments which should have been put during the hearing in the absence of considerations such as allegations of fraud.

22 I therefore decline to make the orders sought in the First Respondent's Notice of Motion and it is dismissed. Council's Notice of Motion 23 The Council's Notice of Motion seeks orders that:

1. An order that the First Respondent remove from the property all second hand and unused items such as old cars, white goods and general rubbish by the close of business on 16 November 2007.
2. An order that the First Respondent remove from the property all timber and bricks and accumulated building material located on the property as at the date of these Orders by the close of business on 16 November 2007.
3. In the event that the First Respondent fails to comply with Order 1 within the time prescribed therein, an Order that the Applicant by its servants or agents enter the property and remove from the property the material referred to in Order 1 by 31 January 2008.
4. In the event that the First Respondent fails to comply with Order 2 within the time prescribed therein, an order that the Applicant by its servants or agents enter the property and remove from the property the material referred to in Order 2 by 31 January 2008.
5. (not pressed)
6. An Order that the Applicant may sell materials removed pursuant to Orders 3 and 4 above by whatever means it deems appropriate or in the event that such materials cannot be sold within a reasonable time, dispose of such materials.
7. An Order that the First Respondent pay the Applicant the costs and expenses of removal of materials as provided in Orders 3 and 4, the disposal of such materials (if disposal takes place) pursuant to Order 6 and the cost of the works provided in Order 5, less the proceeds of sale of materials referred to in Order 6, in such total amount as determined by this Court.
8. Liberty to apply to the Court for a determination of the amount referred to in Order 7 on 7 days prior notice.
9. Such further or other Orders as this Court deems appropriate in the circumstances.
10. Liberty to apply for further or other directions or Orders on 3 days notice.
11. Direct that the matter be adjourned to 7 March 2008 for mention before Her Honour Justice Pain.
12. Cost [sic] reserved.

I note different dates are now sought in submissions for completion of orders 1 to 4 of 8 February 2007. Council's submissions 24 The Council relied on the affidavits of Mr Bourke and Mr Berios. The evidence of Mr Bourke contains the following summary of events from the following affidavits: (a) affidavit sworn 11 October 2004: (i) Complaints concerning storage of building materials and car bodies and rubbish ( par 3, 16, 25, 26, 35 and 43). (ii) Inspections of property from 16 August 2001 (par 7) to 11 October 2004 (par 50) and the condition of the premises was unchanged over this period. (iii) Service of First Notice of Intention to issue an Order on 26 October 2001 (par 10) to Order issued on 14 October 2003 (par 40). (iv) Unsatisfactory condition of the premises including keeping of pigs and a requirement that the offending material be removed so as not to provide a harbourage for vermin or become a fire hazard. (b) affidavit sworn 11 March 2005 - inspection on 10 March noting that "there had been little, if any, change in the amount of material that was being stored on the premises" (par 3). (c) affidavit deposed 15 September 2006 - inspection on 1 September 2006 observing piles of timber, motor vehicles (now covered and overgrown with blackberry bushes) and other household goods (par 6 and 9).

(d) affidavit deposed 4 October 2007 - inspection on 2 October 2007 noting an accumulation of material including rubbish and failure to comply with orders (par 7).

(e) Affidavit deposed 15 November 2007 - inspection on 13 November 2007 observing accumulation of rubbish - photographs taken (par 7-16). 25 The affidavit of Mr Berios sworn 15 October 2007 deposes to an inspection on that date and photographs confirming the failure to comply with the order (par 5 and 7).

26 The orders sought in the motion should be made exercising the Court's discretion because there is a substantial delay in these being complied with by the First Respondent, the premises continue to be in an unsightly condition, harbour vermin and are a fire hazard. While the First Respondent's conduct to date suggests that compliance is unlikely the Council has sought orders which allow the First Respondent until 8 February 2008 to comply with the orders.

First Respondent's submissions 27 The First Respondent's counsel submitted that the orders 1 and 2 should not be made because they were too broad. Further, once the material the subject of order 1 is removed the remaining reusable building material would not constitute a junkyard and could remain. As a final order had not been made in relation to the bricks and timber it is still open to the Court to hear the estoppel argument the First Respondent wishes to rely on. Once the current Family Court proceedings are finalised the First Respondent can proceed with the development of his land as he intends to do and the building materials can be used.

Finding 28 In relation to whether my orders were final, it is clear from the reading of my judgment that I dealt finally with the issue of whether there was a junkyard on the First Respondent's land on the basis of the evidence which included that there was substantial quantities of bricks and timber. I do not consider there is any basis to consider the estoppel argument. 29 There is clearly a failure to comply with order 4 made by me on 22 March 2005 given the affidavit evidence of the Council which demonstrates that there has not been compliance with the Court's orders of 22 March 2005 as extended in February 2007. This is the subject of order 1 of the Council's Notice of Motion. The Council needs to clarify under what power it considers the Court should act in making orders for the Council to go on the land and do the work the subject of the orders. In the Council's written submissions, s 678(10) of the Local Government Act 1993 (the LG Act) was relied on but the decision I made on 14 March 2005 was not enforcing a LG Act order. Section 678(10) is directed to the enforcement of s 124 orders issued under the LG Act. The only cases referred to were those making s 678(10) orders. The Council also stated in submissions that it relied on s 124 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as providing the Court with broad powers to enforce orders. Specific examples of the use of the powers in the way sought here were not provided and would be of assistance. 30 If I make the order for removal of items referred to in order 1 more specificity as to which items are to be removed is necessary and this requires an inventory of what is on the property to be prepared. There was discussion during the hearing of the need to prepare an inventory and one possibility is that the First Respondent's solicitor undertake that task. I will make an order today requiring that an inventory be prepared. Given the recent difficulty of Council officers entering the property to execute an inspection despite a Court order being issued to enable that to occur, I will also make orders providing for the safe conduct of Council officers on the land if orders for verification of this inventory are required at some stage. 31 Order 2 in the Council's Notice of Motion concerns the removal of bricks and timber and building materials. The presence of bricks and timber on the property was the subject of order 6 in the 22 March 2005 orders and was stood over by me for 18 months at that time (see par 27 of Baulkham Hills Shire Council v Stankovic and Anor [2005] NSWLEC 110) to enable the First Respondent to pursue his building application with the Council. The Council now presses for the removal of that material. My understanding is that the matters referred to in the affidavit of the First Respondent sworn 4 December 2007 concerning his efforts to develop the property and that these are currently stalled due to Family Court proceedings commenced in 2006 is relied on in relation to the exercise of the Court's discretion in further postponing the making of this order, now order 2 in the Council's Notice of Motion.

32 I will make a final decision about Order 2 when the inventory has been received and the extent of the bricks and timber on the property has been fully identified. 33 The balance of orders sought by the Council should be stood over pending the preparation of the inventory.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.