Briscoe-Hough v Minister for Local Government (No 4)

Category: Procedural rulings

Parties: Gregory Briscoe-Hough (Applicant) (Applicant on Notice of Motion)
Minister for Local Government (First Respondent) (Respondent on Notice of Motion)
Edward River Council (Second Respondent)

Representation: Counsel:
Self-represented (Applicant)
M Keene (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Self-represented (Applicant)
Corrs Chambers Westgarth (First Respondent)
Kell Moore Lawyers (Second Respondent)

File Number(s): 2024/00391391

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. On 28 July 2025, I delivered judgment in the matter of Briscoe-Hough v Minister for Local Government & Anor (No 3) [2025] NSWLEC 78 (**‘**Judgment’).

2. In his Summons for judicial review in this matter, the Applicant sought, inter alia, an order that a Performance Improvement Order (PIO) issued on 22 July 2024 by the First Respondent (the Minister) to the Edward River Council (the Council, the Second Respondent) be declared null and void.

3. The principal basis for the order sought by the Applicant was his contention that a previously issued Notice of Intention to Issue a Performance Improvement Order dated 17 June 2024 (Notice of Intention) did not comply with s 438C(2)(b) of the Local Government Act 1993 (NSW) (LGA).

4. For the reasons outlined in the Judgment, I dismissed the Applicant’s Summons. In summary, I did so because:

(a) the Notice of Intention was in compliance with s 438C(2)(b) of the LGA: Judgment at [18]-[33]; (b) I would not have found the PIO to be invalid even if I had found that the Notice of Intention did not comply with s 438C(2)(b): Judgment at [34]; and (c) there would have been no utility in granting the relief sought by the Applicant in any event, as the Council accepted the PIO, and complied with it: Judgment at [35]-[38].

5. It is apparent that the Applicant does not agree with my reasons in the Judgment. However, rather than commencing an appeal to the New South Wales Court of Appeal, the Applicant has filed a notice of motion dated 11 August 2025 in which he seeks an order (inter alia) that “the c**ourt amend the orders made on 28 July 2025 by way of enlivening the provisions of UCPR 36.15 on the basis that the defendant [sic] has acted in bad faith by not providing relevant material to the c**ourt”. The orders sought in the notice of motion in their entirety are as follows:

1 In noting that the inherent jurisdiction of a court serves the following general purposes:

- ensuring fairness and convenience in legal proceedings,

- preventing ineffective proceedings,

- preventing abuse of process,

that, in the interests of justice, the court amend the orders made on 28 July 2025 by way of enlivening the provisions of UCPR 36.15 on the basis that the defendant has acted in bad faith by not providing relevant material to the court that:

a) with reasonable diligence, could and should have been produced for use at the hearing to inform the court of how the Minister can (and should) properly fulfil the impugned provision as intended by Parliament;

b) would probably have had an important influence on the result of the case, and;

c) is in direct contrast with respondent's legislative responsibility, own established guidelines with the ratio of the decision arrived at that, in the absence of any evidentiary material being included from the respondent to support the mandatory provisions were assessed and provided so that the council could make a proper response and not merely 'parrot' the unsubstantiated allegations as fact, allegations have been established as fact;

d) exercised non-compliance with court orders and failed to respect existing authorities to deliberately delay proceedings limiting the timely corrective action open to the court.

2 In the alternative, under UCPR 36.16(1), consider the merits of the issues raised in respect of errors of law and fact (or both) to set aside or modify the judgement.

6. For the reasons that follow, the notice of motion should be dismissed.

Evidence

7. At the hearing of the notice of motion the Applicant again represented himself. The Minister was represented by Mr M Keene of Counsel. The Council did not appear.

8. The Applicant read an affidavit he swore on 11 August 2025 (Briscoe-Hough Affidavit). No objection was taken to any of it, although most of it is more akin to submission than evidence.

Resolution

Rules 36.15 and 36.16 of the UCPR not applicable to the Applicant’s complaints

9. The first rule relied on by the Applicant in his notice of motion is r 36.15 of the UCPR, which is in the following terms:

36.15 General power to set aside judgment or order

(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.

10. One thing that can be noted immediately about r 36.15 relevant to the Applicant’s motion is that it is not the means by which the merits of the Judgment under consideration are to be resolved as if under appeal. In other words, it is not the proper vehicle for contending that a judgment is affected by errors of law, or that different findings of fact based on the evidence should have been made: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [16].

11. Rule 36.16(1) of the UCPR, relied on in Order 2 for relief in the Applicant’s notice of motion, is relevantly in the following terms:

36.16 Further power to set aside or vary judgment or order

(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 (other than a default judgment given in open court), 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.

12. The purpose of r 36.16 is “to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal”: Majak v Rose (No 5) [2017] NSWCA 238 at [12]. It has a limited role and must be exercised “sparingly and with caution” as it represents an exception to the fundamental principle of finality. It does not, for example, “give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak at [12]-[13].

13. In the context of a qualification on the principle of finality in litigation, Mason CJ stated at 302 in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.”

This was quoted and further elaborated by the Court of Appeal in Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 at [17]:

“To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.”

14. These principles apply equally to r 36.16(1), which the Applicant erroneously relies upon in his notice of motion (because my order dismissing his Summons had already been made), as well as r 36.16(3A): New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [19]. It is clear from the authorities that the purpose of r 36.16 is to allow repair of judgments that are based on misapprehension, oversight, or inadvertence as distinct from deliberate decisions which are incorrectly made and which should otherwise be addressed via appeal: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4].

15. For the same reasons discussed relating to r 36.15, namely that the Applicant’s motion is best characterised as an attempt to re-agitate the arguments he raised at the hearing of his Summons, there is no basis for setting aside the matter under r 36.16(3A).

16. As to the allegation that the Minister has acted in “bad faith by not providing relevant materials to the court” as set out in Order 1 sought in the Applicant’s motion, this appears to relate to the contention that the Minister needed to produce to the Court at the hearing of the Summons “relevant material… that… could and should have been produced for use at the hearing to inform the court of how the Minister can (and should) properly fulfill the impugned provision as intended by Parliament”: Order 1(a) of the notice of motion.

17. There was no claim in the Summons though that the Minister did not or could not have “formed the opinion that improvement is required” by the Council: s 438C(2)(b). Rather, the challenge was to:

(a) whether the Notice of Intention complied with the requirements of s 438C(2)(b), and whether to be valid that Notice of Intention must be one that “includes the evidence the Minister relies on for his reasons”: Ground 2 of the Applicant’s Summons; and (b) whether because of the failure to “provide the required evidence” in the Notice of Intention, the subsequently issued PIO was “invalid due to jurisdictional error”: Ground 3 of the Applicant’s Summons.

18. In the Judgment, I found that the Notice of Intention did not need to include or attach the evidence supporting the Minister’s opinion that improvement by the Council was necessary. It is sufficient in my view that the Notice of Intention outlines the general nature of the evidence relied on by the Minister: Judgment at [33]-[34]. The Minister has not acted in bad faith in the manner alleged by the Applicant in his notice of motion.

19. It is also apparent from the submissions of the Applicant, and the contents of his affidavit, that he disagrees with my findings in the Judgment. For example, he considers that I have “conflated the subjunctive allegations and purported reasons of the r**espondent as ‘evidence’ and misdirected itself”, and he complains that I “gave no consideration of this ‘real decision’ evidentiary line or case law in support of what distinguishes a mere advertence to and what constitutes proper consideration in c**ouncil reports and decision making”: Briscoe-Hough Affidavit at [3]. I infer that he disagrees with my construction of s 438C(2)(b) of the LGA, and with my finding that the Minister’s Notice of Intention was in compliance with that provision: Briscoe-Hough Affidavit at [4], [6]-[8] and [15]-[16].

20. The Applicant also complains that I did not consider his contention that a Notice of Intention or a PIO is ineffective if a new governing body is elected after the date on which a Notice of Intention or PIO is issued. This issue was raised in the Applicant’s Summons at Ground 4. I disagree that I did not address it: Judgment at [15].

21. The Applicant is entitled to disagree with my Judgment, and to consider that it contains error. The motion he has filed and the rules he relies on are however not the means to test either my Judgment, or the Applicant’s views about it. In effect, the Applicant is seeking to argue an appeal, before me, of the Judgment I have delivered. The avenue he has chosen is not the proper course to seek to set aside the orders I made in the Judgment.

22. The Applicant’s notice of motion should be dismissed.

Orders

1. The Applicant’s notice of motion of 11 August 2025 is dismissed.
2. Costs of this motion are reserved, and any argument concerning them can be included in the 5 pages of submissions on costs I ordered in relation to the Summons hearing on 28 July 2025.

**********