Baulkham Hills Shire Council v Stankovic

Autodesk Inc v Dyason [No 2] (1992) 176 CLR 300 Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110 CASES CITED: Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870 Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266 Baulkham Hills Shire Council v Stankovic (No 4) [2008] NSWLEC 273 De L v Director General New South Wales Department of Community Services [No 2] (1997) 190 CLR 207

TEXTS CITED: LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW (Service 30), [36.15.10] and [36.15.15]

APPLICANT Mr G Newport SOLICITORS LEGAL REPRESENTATIVES: Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41243 of 2004 Baulkham Hills Shire Council v Stankovic (No 5)

JUDGMENT ON NOTICE OF MOTION 1 Her Honour: The Respondent, Mr Stankovic, has filed a Notice of Motion dated 25 November 2008 seeking: … 2. That the costs order made 22 March 2005 in Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110 (hereinafter called the costs order) be dismissed. 3. Alternatively, that there be a stay of proceedings granted ex parte in relation to the costs order pending the finalisation of the proceedings. 4. Costs

2 The costs order in prayer 2 refers to order 8 made in orders perfected on 22 March 2005. 3 The Respondent represented himself at the hearing. 4 The Respondent was provided with copies of the relevant Uniform Civil Procedure Rules 2005 (UCPR), namely r 36.15, r 36.16 and r 36.4, so that he could identify what rule or rules he was applying under in seeking the orders sought in the Notice of Motion. He was also provided with provisions of the Legal Profession Act 2004, concerning the operation of cost assessors, and the Council's written submissions.

5 Rule 36.15 of the UCPR provides: (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

6 Rules 36.16(3), (3A), (3C) and (4) provide: (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. …

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B)

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. Respondent's submissions and evidence 7 The Respondent swore an affidavit dated 24 November 2008 and filed written submissions beforehand, which I have read and taken into account. The affidavit sets out the history of the proceedings in this Court, attaches the numerous judgments handed down by me, refers to two Notices of Intention to Appeal filed, states that he believes these refer to the 2005 orders including the 2005 costs order and also refers to bankruptcy proceedings against him which have been commenced by the Council in the Federal Magistrates Court. He states that he is aware the 2005 order is still enforceable. He also states that it is his belief that the September 2008 judgment has given rise to circumstances that need to be revisited, including the 2005 costs order. 8 The Respondent stated that the Notice of Motion is made, firstly, in reliance on r 36.15 on the basis that the costs order was entered irregularly. The basis for the submission that the order was made irregularly was that the Respondent believed that the proceedings were not then finalised and he did not understand that the costs order was also final. Further, there have been four judgments in this matter and the orders made in March 2005 have been amended significantly so that the costs order should be set aside pending the finalisation of this matter. The Respondent submits that all the previous decisions in the proceedings need to be revisited, including the 2005 costs order. The 2005 orders should not be treated as final orders. Alternatively, as a matter of fairness any costs penalty involved in the 2005 orders should be stayed or set aside pending the final outcome of the proceedings.

9 Reliance was also placed on r 36.16(3), relying on the same grounds. Council's submissions 10 The Council opposes the orders sought on various grounds. Its legal representative tendered copies of a default judgment obtained in Hornsby Local Court on 22 August 2007 and the determination of a costs assessor which gave rise to that judgment following the making of the costs order in this Court in March 2005. 11 The Council accepts that there is no time limit for the filing of a motion made in reliance on that rule (unlike r 36.16). In relation to r 36.15, the Council argued that there is nothing irregular about the costs order made on 22 March 2005 which was perfected and is final. No appeal has been lodged by any party in relation to the costs order. When the Respondent was legally represented and sought orders to set aside some of the orders made in March 2005 in 2007, the costs order (order 8) was not then sought to be set aside. 12 This Notice of Motion is filed years after the original order was finalised. It has been acted upon by the Council. Costs have been assessed and default judgment entered in the local court as provided for under r 36.4(2), whereby the costs order takes effect on the date the relevant costs assessor's certificate is filed. A costs assessor's certificate as to Determination of Costs was issued on 12 July 2007 and filed in Hornsby Local Court on 22 August 2007. The local court at Hornsby issued judgment for registration of the certificate. The Council is now proceeding to enforce that costs judgment in bankruptcy proceedings. Even if this Court considered that it could or should set aside the original costs order, the Local Court orders would appear to continue in force.

13 In relation to r 36.16, while r 36.16(3) provides wide powers to set aside a judgment, there is a strict time limit of 14 days identified in r 36.16(3A) which is obviously long passed (even taking into account that the UCPR commenced operation in this Court in January 2008 after this order was made). No extension of time is permitted: r 36.16(3C).

14 These proceedings are at an end and there is nothing to stay. Further, there is no inherent jurisdiction in the Court to stay proceedings, more so in light of the provisions in the UCPR which now apply in this Court. 15 Alternatively, if the Court does have discretion to set aside the order, such discretion should not be exercised. Exceptional circumstances need to be present to set aside an issue finally determined and, given that there are no exceptional circumstances in this case, the Court would not do so here. De L v Director General New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 and Autodesk Inc v Dyason [No 2] (1992) 176 CLR 300 suggest that the omission sought to be rectified must not arise through the party's neglect or fault. Finding 16 I have delivered four judgments to date in these proceedings. The substantive matter in issue was the subject of the declaration sought by the Council and made by me in February 2005 in Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110 (Stankovic No 1). Consequential orders were made and perfected with the fixing of the Court seal and entry of the judgment on 22 March 2005. That included a costs order in the Council's favour as it was the successful party in order 8. Some consequential orders were stood over for a lengthy period to enable the Respondent to lodge a development application. In Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870 (Stankovic No 2) I dismissed the Respondent's Notice of Motion when he was legally represented to set aside three declarations and orders made in 2005. Similar issues of finality of litigation also arose on that occasion. That motion did not refer to the costs order made in March 2005 (order no 8). 17 Two judgments in September 2008 dealt with amendments to the consequential orders made in March 2005, not the substantive matters considered. In Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266 (Stankovic No 3, 18 September 2008) I considered further evidence concerning the material on the Respondent's land. Due to further late submissions from the Respondent, a further judgment with final orders was delivered shortly afterwards (Baulkham Hills Shire Council v Stankovic (No 4) [2008] NSWLEC 273 - Stankovic No 4). There are no matters remaining for determination by me in these proceedings at present and there is consequently nothing to stay, as one of the orders in the Notice of Motion seeks. Further, contrary to the Respondent's submissions, there is no matter now before me in these proceedings which requires finalisation and in relation to which the costs order ought be set aside. 18 I do not agree with the Respondent's submission that the judgments in September 2008 affect in any fundamental way the March 2005 declaration and orders. The September 2008 judgments are a refinement of the earlier 2005 orders. There is no reason to revisit the 2005 orders based on the September judgments. 19 The costs order made in March 2005 was made on the Council's application. I determined that costs ought be awarded as the Council was successful in its Class 4 application, the usual order in Class 4 proceedings. There has not been and is not now any appeal on foot in relation to the March 2005 costs order. I note that the Notice of Intention to Appeal filed by the Respondent attached to his affidavit refers to the material date as a judgment delivered on 24 September 2008, not a judgment handed down in 2005. The Council's Notice of Intention to Appeal also refers to a judgment of 24 September 2008. At the present time there is no appeal on foot against the 2005 costs order, contrary to the belief expressed in the Respondent's affidavit. 20 In relation to whether r 36.15 applies, there is nothing irregular to which the Respondent has referred which suggests that r 36.15 can apply. His principal ground that there has been an irregularity, in his statement in his affidavit, about his belief concerning the effect of the order does not mean the entry of the order by me was irregular. Irregularity suggests that there must be some error of some kind in the entry of the order, confirmed by authority cited in LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW (Service 30), [36.15.10] and [36.15.15]. There is none in this matter.

21 Reliance is also placed on r 36.16. There is a strict time bar for proceedings under r 36.16 which has not been complied with and I do not consider that rule can apply. 22 The only other basis on which the costs order may be able to be set aside is if the Court has inherent jurisdiction to set aside final orders. The Council has submitted that, given the UCPR provisions in r 36.16 which provide unlimited challenge (contrary to previous rules applying in this Court) but for a limited time only, there is no inherent jurisdiction. Whether the Court has inherent jurisdiction to set aside orders in light of the UCPR is not a matter I consider I can finally rule on in this matter given that the Respondent was not legally represented and I have not had full legal argument on this significant issue. 23 For completeness I will assume that I do have inherent jurisdiction to determine as a matter of discretion whether final orders ought be set aside. I agree with the Council's submissions referring to De L and Autodesk that such discretion should be exercised only in exceptional circumstances. 24 While I appreciate that the Respondent finds himself in a potentially difficult position with pending bankruptcy proceedings in the Federal Magistrates Court to be heard in early 2009, there are numerous circumstances to consider. The length of time which has elapsed since the final costs order was made in March 2005 is substantial. The actions of the Council in seeking to have the order enforced, as they are entitled to do, as identified in their submissions means that, regardless of what I do in this matter, the costs order has taken effect by the operation of r 36.4(2). There is nothing irregular about the manner in which the order was made and finally entered.

25 The Respondent's belief that the subsequent changes to some of the orders made in 2005 meant that all orders were not to become final is unfortunately not correct. I am also aware, having had the Respondent before me on numerous occasions for mentions and hearings since 2005, that he has been advised on more than one occasion that the orders made in March 2005 were final and binding upon him and that he should seek leave to appeal if he wished to overturn them. The Respondent could have appealed within time or sought leave to appeal the original costs order since March 2005. He still has not done so according to the Notice of Intention to Appeal filed by him on 16 October 2008 as that is an appeal in relation to my judgment of 24 September 2008.

26 I have set out in my earlier judgments, particularly Stankovic No 2 and Stankovic No 3, the Respondent's personal circumstances and note that he states in his affidavit in these proceedings that he is elderly and an invalid pensioner and is presently involved in Family Court proceedings with his wife. He has informed the Court on previous occasions that he is joint owner with his wife of the land where he lives and that land is worth several million dollars (Stankovic No 3 at [16]). It is highly unfortunate that arrangements cannot or have not been made for a charge to be created over the property in favour of the Council for the amount of costs payable in the absence of a loan to pay the fine being obtained. 27 There is no basis on which I can find exceptional circumstances exist whereby I should exercise my discretion to set aside the costs order, assuming that I have such discretion. The Respondent's Notice of Motion should be dismissed.

Orders 28 The Court makes the following orders: 1. The Respondent's Notice of Motion dated 25 November 2008 is dismissed. 2. Costs reserved. ADDENDUM - 19 DECEMBER 2008

After judgment was handed down and an order reserving costs made, Mr Pearce solicitor for Baulkham Hills Shire Council, the Applicant, made an application seeking his costs of the Notice of Motion. After submissions her Honour varied the costs order. The orders of the Court are: 1. The Respondent's Notice of Motion dated 25 November 2008 is dismissed. 2. The Respondent is to pay the Applicant's costs of the Notice of Motion dated 25 November 2008 as agreed or assessed on or by 19 December 2010.

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