George M Adams - V - Waverley Council [1999] NSWLEC 7

LEGISLATION CITED: Judgments and orders Jurisdiction to set aside

DATE OF JUDGMENT DELIVERY: 02/05/1999

Applicant Applicant I J Hemmings LEGAL REPRESENTATIVES: (i/b John Burrell Solicitors)

Defendant M E McMahon (s)

This is a Notice of Motion by the respondent ("the Council") in a proceeding which was heard and determined by Assessor R R Hussey (as Commissioners were then called). The proceeding was an appeal by the applicant (Mr G Adams) under s 97 of the Environmental Planning & Assessment Act 1979 against the determination of the Council to refuse a development application for subdivision of No 2 Roscoe Street, Bondi into two allotments. The appeal was upheld by the Assessor, who granted development consent for the subdivision subject to a number of conditions which are set forth in Attachment "A" to the Assessor's judgment and which I attach to this judgment.

The Council seeks the following orders set out in its Notice of Motion:

"1. That the matter be referred to Assessor Hussey for consideration under the slip rule being the rule in Part 10 Rule 7 of the Land and Environment Court Rules.

2. That leave be granted to adduce further evidence on the practicality of the reciprocal right of way in favour of Lot A DP 439971 if the common manoeuvring area in Plan B in the Court's Order of 6th May, 1998 does not form part of the right of way.

That the Court's Order dated 6th May, 1998 in respect of the subdivision of Lots 2-4 Roscoe Street, Bondi, be amended by adding the words "for Lots 1 and 2 and Lot A DP 439971" in plan B after the words "common manoeuvring area" on that plan."

3. The property the subject of the proceeding before the Assessor was No 2 Roscoe Street, being Lot 4 in Deposited Plan 8368 and which was proposed to be subdivided into Lot 1 having a frontage to Roscoe Street and Lot 2 at the rear and having access to Roscoe Street by a right of way partly over Lot 1 and partly over the adjoining property. The property adjoining No 2 Roscoe Street is No 4 Roscoe Street (Lot A in Deposited 439971). On 14 March 1998 the applicant (together with his wife and their company) exchanged contracts for the sale of 4 Roscoe Street with Ms Nina Hopkins-Shirley as purchaser. Settlement of the contract took place on 29 October 1998. A condition in the contract is that it was subject to the vendor granting and the purchaser accepting a transfer granting a right of way, presumably so as to guarantee the purchaser vehicular access to the rear of the property which she had contracted to purchase. A transfer granting an easement for a right of way was attached to the contract and specifying a right of carriage way 3.5 metres wide granted by the vendor (the applicant) to the purchaser, such right of way running between Nos 2 and 4 Roscoe Street and partly over No 2 and partly over No 4.

There is no reference in the Assessor's reasons for judgment to the issue of whether the "common manoeuvring area" on the plan attached to the conditions of consent (and which is also attached to this judgment) forms part of the reciprocal right of way in favour of Lot A in Deposited Plan 439971. As can be noted from the plan, the effect of the judgment is that the reciprocal right of way over the "common manoeuvring area" is only in favour of the proposed Lots 1 and 2 and excludes Lot A in Deposited Plan 439971. This means that the property owned by Ms Hopkins-Shirley is excluded from that area and the right of way granted in favour of that property is limited to the 3.5 metre wide strip running between Nos 2 and 4 Roscoe Street. This has the effect of allowing vehicular access to Lot A in Deposited Plan 439971 but not making provision for any vehicles utilising such access to turn around and exit the property by being driven in a forward motion.

Neither Ms Hopkins-Shirley nor her husband, Mr M Shirley were parties to the proceeding before the Assessor. However, Ms Hopkins-Shirley wrote a letter to the Council on 27 April 1998 regarding the proposed development at No 2 Roscoe Street in which she, inter alia, requested the Council to view the application with favour. She also said in the letter, "I am satisfied that the proposed development will be of benefit to me as I presently have no off-street car parking and narrow side pedestrian access". It is clear that in order to efficiently use the right of way for vehicular access to her property, Ms Hopkins-Shirley would require access to the area marked "common manoeuvring area" on the attached plan so as to allow vehicles that have entered her property via the right of way to be turned around so as to leave the property in a forward direction. There is evidence before me of a meeting between Mr Shirley, Ms Hopkins-Shirley, Bronwyn Shirley, the applicant and Mrs Adams (the applicant's wife) in May 1998. The applicant indicated at that meeting the area marked "common manoeuvring area" on the attached plan of subdivision, shaded that area in with a pencil and said to those present the following words:

"Nina [Ms Hopkins-Shirley] will have no problem getting in or out as you will have the use of the full manoeuvring area here."

The first order sought by the respondent's Notice of Motion is that Assessor Hussey considered the matter pursuant to the Land and Environment Court Rules, Pt 10 r 7, commonly referred to as the "slip rule". This rule states:

"7(1) If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court on the application of any party or without any such application, may, at any time, correct the mistake or error.

Mr I J Hemmings, who appears for the applicant, submits that this rule does not apply in the present circumstances because there is no evidence to demonstrate that the order of the Assessor contains a clerical mistake, or an accidental error or omission. The primary instance in which the slip rule may be employed is to permit perfected orders that clearly do not reflect the intention of the Court as expressed in the judgment to be amended to reflect that intention. Inadvertence of counsel may also be an instance in which the slip rule will apply (cf L Shaddock & Associates Pty Ltd v Parramatta City Council (1983) 151 CLR 590). No evidence was adduced to this end in the present proceeding.

There is simply no evidence before the Court to indicate that the order of the Assessor in excluding the "common manoeuvring area" from the right of way granted in favour of Lot A in Deposited Plan 439971 was a clerical mistake or an accidental error or omission. There is no evidence that can be discerned from the Assessor's judgment which indicates that it was clearly his intention to include Lot A in Deposited Plan 439971 in the reciprocal right of way over that area, or that it was only a clerical mistake or in advertent omission that Lot A was not so included. In fact, the Assessor makes no reference to this issue in his judgment. If, for example, the judgment contained a reference to the manoeuvring area being common to Lot A as well as to the proposed Lots 1 and 2, then it could have been confidently said that the order contained either a clerical mistake or an accidental error or omission. In my view, therefore, the first order sought by the respondent's Notice of Motion must be refused.

The second order seeks leave to adduce fresh evidence before the Assessor on the practicality of the reciprocal right of way in favour of Lot A in Deposited Plan 439971 if the "common manoeuvring area" in the attached subdivision plan does not form part of that right of way. It therefore seeks to amend the perfected orders of the Court and to re-open a matter that has already been decided. The time within which to appeal to a judge of this Court on a point of law pursuant to the Land & Environment Court Act , s 56A, is 28 days ( Land & Environment Court Rules Pt 13 r 35(1)) and hence that time has now expired.

There are three sources of the Court's power to amend its perfected orders in the absence of any right of appeal. The first of these is that afforded by the Land and Environment Court Rules Pt 10 r 7. This power has been discussed in paragraphs 6-8 above. The second source of power also arises under the Court's Rules. Part 15 r 9 sets out a number of circumstances in which the Court may set aside or vary an order. That rule states:

"9. 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 or the order;

(b) if the notice of motion for the setting aside or variation is filed before the signing and filing of the minute or the order under rule 4;

(e) if the order does not reflect the intention of the Court;

(f) if the party in whose favour the order was made consents."

The third source of power of the Court to set aside its perfected orders is pursuant to its inherent jurisdiction. However, in Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ Said (at 530):

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of the Court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in substance, in my opinion, beyond recall by that court."

In the same case, Menzies J, in whose judgment Barwick CJ agreed, said (at 531-532):

"However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend to the making of orders in litigation that has been regularly brought to an end." (The emphasis is mine.)

This authority would prima facie indicate that there is no inherent power possessed by this Court to re-open proceedings where the orders of the Court have been regularly perfected.

There is, however, direct authority on the existence of this Court's wide inherent jurisdiction. This Court is established as a superior court of record ( Land & Environment Court Act, s 5(1)). Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 concerns the question of the Court's power to set aside consent orders which have been made by the Court. In that case Sheller JA, with whom Powell JA agreed, as did Kirby P (apart from Kirby P's preference for the use of the term "implied" jurisdiction as opposed to "inherent" jurisdiction), after stating that a superior court of unlimited jurisdiction possessed an inherent jurisdiction to vary orders that have been perfected, said (at 28):

"The legislature by vesting in a superior court a particular jurisdiction (Pt 3 of the Land & Environment Court Act ) does not detract from the inherent jurisdiction except to the extent it does so expressly or the inherent jurisdiction is inconsistent with the particular jurisdiction vested. Such is the consequence of establishing a court as a superior court."

Sheller JA (at 28) also referred to the decision of Brennan J in Permanent Trustee Co (Canberra) Limited ( as executor of estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195, in which Brennan J held that there were three situations in which a court could vary its perfected orders, as follows:

(i) those in which the inherent jurisdiction of the Court is relied upon to ensure that the court's procedures do not effect injustice;

(iii) those that 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 Logwon Sheller JA concluded as follows (at 30):

"A superior court's inherent jurisdiction to uphold, protect and fulfil its functions by ensuring that justice is administered according to law and in an effective manner in my opinion enables it in the absence of a statutory limitation to discharge or revoke a consent order made by it giving effect to a compromise of proceedings before the court and entered into a party by mistake."

It would seem from the above that the ratio dicidendi of this decision is limited to this proposition: that the inherent jurisdiction of this Court to re-open proceedings in which the orders have been perfected may be employed to revoke consent orders that have been entered into by a party by mistake.

Sheller JA in Logwon (at 30) also states, however, that the Court has the power to vary or set aside an order obtained, inter alia, by fraud by the Land & Environment Court Rules ,. Pt 15 r 9(c) (then Pt 13 r 7) and observed that the rule makes no mention of the more general jurisdiction referred to by Brennan J in Permanent Trustee , namely, situations where the compromise is void or voidable for other reasons. Sheller JA said (at 30):

"I do not regard this rule as limiting the jurisdiction of the Land & Environment Court, but rather as spelling part of it out."

In Haig v Minister Administering the National Parks & Wildlife Act 1974 (1994) 85 LGERA 143, Kirby P, speaking of the power of the Court of Appeal to correct orders said (at 153):

"The question remains as to whether the jurisdiction to correct is available in the case of a perfected order. While the Minister asserted that this Court had no such jurisdiction, at least in a case such as the present, it is my view that such a jurisdiction exists. It is confined to the most exceptional circumstances. It is true that earlier decisions doubt the existence of this jurisdiction, statute apart: see, eg, Bailey v Marinoff . However, later decisions have acknowledged the inherent jurisdiction in a court such as this to set aside a previous order in limited circumstances. …. However, it has been emphasised that such an inherent power, where it exists, is 'not lightly to be exercised'. It is truly exceptional."

It should be noted that, in my opinion, there is perhaps a difference between the standing of the Court of Appeal in the context of Haig and this Court in the present proceeding. Kirby P makes reference to the fact that the High Court's inherent jurisdiction to correct its perfected orders is explained in terms of it being the final court of appeal in this country (at 153). Kirby P then refers to Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 in which the Court of Appeal observed that there was no appeal as of right from the Court of Appeal to the High Court (at 153-154). Handley JA expressed no opinion on whether the Court did in fact have power to re-open its perfected orders and Priestley JA agreed with Handley JA.

In my opinion the judgment of Sheller JA in Logwon is the decision of most relevance to the question raised by this Motion. His Honour there holds that the inherent power is derived from the essential quality and nature of a court that is established as a superior court of law. Moreover, the Rules of the Court (in particular the Land and Environment Court Rules Pt 15 r 9) do not serve to limit the inherent jurisdiction of the Court, but rather spell out part of that jurisdiction.

In Luka v Lake Macquarie City Council (unreported, Land & Environment Court of New South Wales, 24 July 1994) Bignold J held (at 28) as follows:

"The Court possesses the jurisdiction to permit the applicant to re-open her case as sought in her Notice of Motion. The vital question is whether, in the exercise of its discretion, the Court should permit the re-opening)."

It thus seems clear that this Court possesses an inherent jurisdiction to set aside its perfected orders. It is not clear when the Court's jurisdiction to set aside its perfected orders may always be applied. One such case is where consent orders are agreed to in which one of the parties has acted under a mistake. In the instance of a judgment being obtained by fraud, the power to re-open is both inherent and statutory pursuant to the Land & Environment Court Rules , Pt 15 r 9, as is the case for merely clerical errors ( Land & Environment Court Rules , Pt 10 r 7). There are other circumstances set out in Pt 15 r 9. It is unclear to what other situations the Court's inherent power will extend. Sheller JA in Logwon held that the instances when the Court can order that a matter be reheard are not limited to those listed in the Rules (Pt 10 r 7 o Pt 15 r 9). As noted in paragraph 15 above, his Honour stated that the Rule (now Pt 15 r 9) merely spells out part of this Court's inherent jurisdiction to correct its perfected orders. The essential question is whether the facts and circumstances in this case fall within the facts and circumstances set out by the Rule and/or by the wider inherent jurisdiction under which the Court can vary its perfected orders.

I should say at this point that this issue is unaffected by the fact that the original decision is that of an Assessor. An Assessor (now called a Commissioner) constitutes the Court when hearing and deciding proceedings and therefore nothing in this case turns upon the fact that the order in question was made by an Assessor of the Court and not by a Judge ( Land & Environment Court Act 1979, s 36(2), (3)). The decision was made in the exercise of the jurisdiction of the Court and the orders are clearly orders of the Court (cf North Sydney Municipal Council v Hunglen Pty Ltd (1992) 74 LGERA 313 at 317 per Bannon J).

In my opinion, therefore, there are two relevant bases that exist for the re-opening of the proceedings in the present case. These are the second and third sources of power noted in paragraphs 10 and 11 as follows:

(i) pursuant to the Land & Environment Court Rules Pt 15 r 9(c), on the gound of a judgment obtained fraudulently. As noted above, that rule states:

"The Court may, on terms, set aside or vary an order in any of the following cases -

(ii) pursuant to the inherent jurisdiction of the Court, noted in Logwon , to re-open in the instance of a compromise of proceedings based on a party's unlateral mistake (Sheller JA in that judgment also refers to a broader category of the instance of a compromise which is void or voidable for other reasons).

Part 15 r 9(b) of the Rules is not limited to orders that have not been perfected, because paragraph (b) specifies that as one of a number of circumstances in which an order may be set aside.

The evidence reveals that in May 1998 the applicant indicated to Mr Shirley and Ms Hopkins-Shirley that they would have vehicular access to the area marked "common manoeuvring area" on the relevant plan of subdivision. The applicant's evidence that this comment was made without prejudice is irrelevant. Neither is it relevant that the meeting did not take place prior to the exchange of contracts. No evidence as to the date of the May meeting was adduced. The affidavit evidence does not disclose at what stage in May the meeting between the applicant and his wife and Mr Shirley and Ms Hopkins-Shirley took place. The hearing before the Assessor took place on 5 May 1996 and the decision of the Assessor was delivered on 6 May 1996. There are, therefore, two possible situations presented by the evidence before the Court. The first and in my opinion most likely, situation is that the misrepresentation was made before the conclusion of the proceedings. It appears that the plan attached to the Assessor's judgment (and also attached to this judgment) was prepared and submitted by the applicant to the Court prior to the conclusion of the proceedings. If the misrepresentation was made prior to the conclusion of the proceeding there is no doubt, in my opinion, that the rights of the Council to properly present its case in the proceeding were affected by a fraudulent misrepresentation made by the applicant. The decision of Ms Hopkins-Shirley to maintain her support for the development application was based on a misrepresentation by the applicant and materially affected the way the Council would have approached its case. In my opinion it was a judgment obtained by the fraud of the applicant. If this scenario be the case I would set aside the order pursuant to my power to do so established by the Land & Environment Court Rules Pt 15 r 9(c), that is, in the instance of an order obtained by fraud. The setting aside of the Assessor's order falls within the kind of relief sought by paragraph 2 of the Council's Notice of Motion.

The second and less likely possibility presented by the evidence is that the misrepresentation of the applicant to Mr Shirley and Ms Hopkins-Shirley occurred after the Assessor decision was delivered. If this be so then the misrepresentation acted so as to limit the likelihood of an appeal by the Council pursuant to the Land & Environment Court Act , s 56A because it acted to ensure that any potential for complaint or any representation to be made by Ms Hopkins-Shirley would be reduced, if not completely thwarted. The time for instituting an appeal is 28 days from the date of the decision ( Land & Environment Court Rules, Pt 13 r 35(1)). If the meeting between the applicant and Mr Shirley and Ms Hopkins-Shirley occurred in the period between the Assessor handing down his decision and the perfection of the orders, then in my opinion, the situation would not be covered by Pt 13 r 9(c) or any other paragraph of that rule, because the judgment was not obtained by fraud. There is a question whether such a situation is included within the category referred to by Sheller JA in Logwon of instances where a compromise obtained is due to the mistake of one of the parties or is otherwise void or voidable.

Sheller JA in Logwon was considering consent orders. The resolution of the proceeding in the present case did not occur through the parties' consent. In my opinion, however, the special and extraordinary facts of the present case indicate that it is analogous to the situation described by Sheller JA in Logwon , for the reason that the mistake of Ms Hopkins-Shirley, apart from being caused by the behaviour of the applicant, was contributed to by her relationship of proximity to the applicant. The contract for the sale of land stipulated a right of way in favour of Lot A. Ms Hopkins-Shirley expressed her support for the proposed subdivision because she was under the mistaken belief or misapprehension that Lot A would have the benefit of the common manoeuvring area shown on the plan of subdivision. That mistaken belief or misapprehension was one which was induced by the applicant, Mr G M Adams. The principal point of connection between the highly unusual circumstances of the present case and the circumstances of proceedings resolved by compromise is the proximity of the parties. Moreover, the Council here was charged with representing the public interest including the interest of the owner of the neighbouring property, Ms Hopkins-Shirley.

It might be thought that since the development application was for the proposed subdivision only of No 2 Roscoe Street, that any condition attracting a benefit to No 4 Roscoe Street (Lot A) is irrelevant. The right of way upon which the subdivision is dependent, however, is to be created partly over Lot A. It does not seem to be an irrelevant consideration for Lot A to be burdened by the right of way without receiving the benefit of the common manoeuvring area shown on the plan of subdivision.

I note that in Logwon the question of whether the mistake of the party entering the agreement was induced by or based on the misrepresentation of the other party is not considered by Sheller JA until his Honour comes to consider whether to exercise the discretion to re-open (at 31). It is therefore not part of the question of whether the jurisdiction exists in the particular case, but rather whether that jurisdiction should be exercised.

I have come to the conclusion that the orders of the Assessor should be set aside under the Land & Environment Court Rules , Pt 15 r 9(c) on the ground that it was obtained by fraud. The fraud was the unilateral mistake of Ms Hopkins-Shirley where the mistake was induced by a material misrepresentation of a party, Mr Adams. Mr Adams was aware of Ms Hopkins-Shirley's mistake, or being aware of it, ensured that neither Ms Hopkins-Shirley nor the respondent discovered Ms Hopkins-Shirley's mistake.

I have also come to the conclusion that even if I am wrong and the first factual situation is not correct and hence the second factual situation presented by the evidence be correct, namely that the fraudulent misrepresentation of the applicant to Mr Shirley and Ms Hopkins-Shirley occurred after the conclusion of the proceeding, the inherent jurisdiction of the Court to re-open concluded proceedings referred to by Sheller JA in Logwon may be applied. I come to this conclusion, if the second factual situation presented by the evidence be the case, for the following reasons:

· the applicant must have known that the reason that the issue of access to the common manoeuvring area was not argued in the proceeding was because Ms Hopkins-Shirley assumed that access to that area would be available to the owner of Lot A. Notwithstanding that, the applicant submitted a plan to the Court excluding Lot A from the reciprocal right of way over the "common manoeuvring area" shown on the plan of subdivision. He then, shortly after the judgment was delivered and while the Council still had a right of appeal, indicated to Mr Shirley and Ms Hopkins-Shirley that they would have access to this area. Whilst I am not convinced that this behaviour constitutes a fraudulently obtained judgment, I am convinced that the conduct is unconscionable to say the least. The Council had its rights of appeal pursuant to the Land and Environment Court Act , s 56A possibly thwarted by the applicant's misrepresentation. · The orders of the Court effect a considerable injustice not only on Ms Hopkins-Shirley, but also on the Council as the body charged with upholding relevant planning law. The ability of the Council to fulfil an object of the Environmental Planning & Assessment Act , s 5 was impeded by the applicant's misrepresentation. For example sub-paragraph (a)(ii) of that section states that an object of the Act is to encourage "the promotion and co-ordination of the orderly and economic use and development of the land". This Court decides issues that affect the rights not merely of the parties in Court but the public interest. · The judgment may have, without any intention on the part of the Assessor, affected the private rights of a third person pursuant to a contract for the sale of land. The contract was settled on 29 October 1998 after being exchanged on 14 March 1998. · In Haig v The Minister Kirby P (at 154) referred to Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 395 in which the Court of Appeal expressed the view about the exercise of the discretion to re-open proceedings that "plainly [the discretion] ought to exist. But it is a discretion to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal". I think that that statement applies to the present case. The order sought to be challenged does not go to the substance of the application approved by the Assessor. The part of the particular condition, the practicality and justice of which is sought to be argued, could accurately be described as an incidental matter which would not necessarily disturb the grant of development consent to the subdivision.

In arriving at these conclusions I have had regard to the importance of the principle of the finality of litigation. This principle demands consideration and implores the decision-maker to uphold the limited nature of the inherent jurisdiction to re-open perfected orders in all but the most exceptional of circumstances. However, the authorities indicate that there are very limited circumstances where the facts of the particular case will outweigh the importance of this principle. On the most likely scenario presented by the evidence, the Land & Environment Court Rules Pt 15 r 9(c) spells out a circumstance that would ordinarily be within the inherent jurisdiction, that is, the power of the Court to vary its orders in the circumstances of a fraudulently obtained judgment.

Even if I am wrong on this point and the second scenario be the case, the present circumstances fit within the exercise of the Court's inherent jurisdiction as discussed by Sheller JA in Logwon .

The orders of the Assessor should be set aside. The matter should be remitted to Commissioner Hussey (as Assessors are now called) and the Council should be given leave to adduce fresh evidence on the question of whether the reciprocal rights of way referred to in condition 5 of the orders made by the Assessor should include the land marked "common manoeuvring area" on the subdivision plan.

The final point that should be mentioned is the third order sought in the Council's Notice of Motion, that is the orders of the Assessor be amended in a material way. It is not appropriate that I make such an order. That is a matter for the Commissioner. The matter should be referred to him for further hearing.

35 1. Orders 1, 2 and 3 of the judgment of Assessor Hussey in the proceeding are set aside.

2. The matter is remitted to Commissioner Hussey for rehearing.

3. The rehearing shall address the question of whether the land marked "common manoeuvring area" on the attached plan of subdivision is to be included in the reciprocal right of way in favour of Lot A in Deposited Plan 439971.

4. The parties have leave to adduce fresh evidence at the rehearing, limited to the subject matter of Order 3 above.

5. The parties have leave to approach the Registrar to obtain a date for the rehearing.

6. The question of the cost of the Notice of Motion is reserved.

I certify that this and the 21 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.