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.