13 One option for the Court is to set aside the consent orders 1 and 2 but not order 3 which otherwise dismisses the proceedings. The costs judgment could stand as it addresses the balance of the proceedings not dealt with by the consent orders 1 and 2. Even if the orders made on 22 October 2008 are set aside there is an enforceable agreement in place as can be seen from the correspondence and the defence filed in the matter. The letter from the Respondent's solicitors dated 7 November 2008 (exhibit 1) confirms a willingness to enter into a binding deed of agreement that the work required to be done under the consent orders by the Respondent be carried out. As the work the subject of the proceedings will be carried out by the Respondent there is no utility in the matter continuing to another hearing.
Finding
14 Following the Council opening its case and after lunch on the first day of the hearing, the parties entered into consent orders as identified above on 22 October 2008 and a further order was made, not by consent, that the proceedings be otherwise dismissed save as to costs. I have made a determination of costs based on the conduct of the proceedings as set out in Wescombe No 1. The Council's submission that in light of the High Court decisions in Coombwood, Thompson and Hillpalm (albeit concerning different facts) orders 1 and 2 made on 22 October 2008 would not be able to be imposed appear to be correct as a matter of general principle. Order 3 made on 22 October 2008 was within the Court's power to make and can stand regardless of any order I make in relation to consent orders 1 and 2.
15 The particular circumstances of this matter need to be considered however. As submitted by the Respondent, the findings of Stein J (Handley and Heydon JJA concurring) in Sahade at [5] where his Honour stated that, in making an order, the Court will need to be satisfied that the person bound by the order is in a position to remedy or restrain a breach of the Act, not that the respondent in the proceedings committed the breach, has application in this matter. In this case consent orders 1 and 2 and order 3 were not made until after lunch on the first day. The Council opened its case in the morning and the Court was informed by the parties about the matters in issue. In the course of opening, the Council had amended the orders sought in its application so that the Respondent was able to confirm to the Court that she was willing and able to comply with orders requiring her to undertake work on her property within a certain timeframe after the owners of neighbouring properties had undertaken work on their land. In these circumstances I was aware without determining the substantive issues in the matter that the Respondent was in a position to remedy or restrain any breach of the Act without making a finding that she was in breach. That suggests I could properly make the consent orders in these particular circumstances.
16 Alternatively, the Respondent has submitted that s 16(1A) of the Court Act provides a jurisdictional basis for making the orders. While I consider that is certainly arguable in light of the potentially wide application of that section, as recognised in obiter in quite different circumstances by Spigelman CJ in Caverstock, the findings of the High Court in Hillpalm suggest that cannot be correct in this case.
17 Even if I am wrong in holding at par 15 that I could properly make the consent orders, as argued by the Respondent I must exercise my discretion in determining whether I should set aside the orders made on 22 October 2008. There are two important considerations in relation to that exercise of discretion. Firstly, it is important to consider the utility (or lack thereof) in making the orders sought by the Council's Notice of Motion. The Respondent agreed that she must undertake the work identified in the consent orders. She has also offered, via her solicitor, to enter into a binding deed to that effect. In these circumstances there is no utility served by setting aside the consent orders as the relief sought in the proceedings has been agreed to by the Respondent. The lack of utility is particularly important given the circumstances of the settlement. It is likely that substantial costs were incurred in preparing for the hearing as the matter did not settle until after lunch on the first day and after the Council's counsel had opened his case. Expert witnesses were briefed and attended to give evidence. The usual costs of case preparation would have been incurred by both parties.
18 Secondly, there is the important principle of the finality of litigation as pointed out in the Respondent's submissions and as referred to in numerous cases. In De L Toohey, Gaudron, McHugh, Gummow and Kirby JJ considered the court's discretion to vacate earlier orders. While it was unnecessary to exercise discretion in that matter, their Honours said at 223:
It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confession, not done all that might have been done to raise the point when it was timely and appropriate to do so. Especially in this Court, judges are entitled to look to the parties, at least where they are legally represented, to defend their own interests and to alert the Court to any claimed immunities which rest upon legal provisions.