Pittwater Council v Brown Brothers Waste Contractors Pty Limited

Brown Brothers' contentions 14 Mr P Clay, appearing for Brown Brothers, relies upon the following grounds in support of the notice of motion. 15 Mr Clay firstly submits that the consent orders reserving liberty to apply enable either party to make an application varying any part of the orders at any subsequent time. I reject the submission. The words "liberty to apply" do not confer the right to ask the court to vary the order: Cristel v Cristel [1951] KB 725. Rather, the words mean that when the orders are drawn up, their working out or carrying out may involve matters on which it may be necessary to obtain a direction or a decision of the court as to effectuating or implementing the orders: see Australian Hardboard Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 where Campbell JA (Tobias JA concurring) identified the relevant authorities at [50] - [57]. 16 The authorities do not support Mr Clay's contention. In Phillip v Walsh (1990) 20 NSWLR 206, an application was made for some substantive orders for the enforcement of, and consequent upon, a compromised agreement relating to administration of the estate of the deceased. McLelland J was of the view that the relief applied for was inappropriate to be sought by application in the concluded proceedings and should have been made in fresh proceedings commenced for that purpose. McLelland J said at 209 -210: … subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. 17 Phillips v Walsh was referred to in Woollahra Municipal Council v Baranov (2006) 144 LGERA 96 at [19]. In that case, a council sought an order for payment of a specific sum after final orders had been issued. In refusing to make the order sought by the council, Jagot J held that such order was not within the court's power, given that final orders had been made. Additional cases where the court refused to make orders that a certain sum be paid as that was an amendment of the final order include Dowdle v Hillier (1949) 66 WN (NSW) 155. 18 More recently, in Australian Hardboard Ltd v Hudson Investment Group Ltd there was an application for leave to appeal against a judgment staying proceedings in the Equity Division of the Supreme Court on the basis that the issues in dispute between the parties could have been determined pursuant to an earlier judgment in the Commercial List as part of the reservation of liberty to apply. Campbell JA held that liberty to apply cannot be used to alter the substance of an order already made (at [52]). His Honour went on to explain at [56]: ...what can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made. If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply.

I note that Young CJ in Eq was in dissent as to the overall outcome in that case, but specifically agreed with procedural principles which were applied by Campbell JA. 19 The principle which governs the reservation of liberty to apply was clearly stated in Daniell's Chancery Practice (8th ed, 1914, vol 1 at p 687): The effect of the reservation [of liberty to apply] is to permit persons having an interest under it to apply to the court touching such interest in a summary way, without the necessity of again setting the cause down. The omission of the reservation does not, however, preclude the parties from applying to the court, for all orders carry with them, in gremio, liberty to apply, if necessary, to the court, but only with regard to matters arising in the carrying into effect of the judgment. 20 Thus, when a primary order may need to be supplemented by further orders to give full effect to it, the court may in appropriate circumstances make further orders. A typical instance where liberty to apply is commonly used is in specific performance suits. After a decree for specific performance is made, it is common for the plaintiff to approach the court under the reservation of liberty to apply for further orders to give effect to the decree, such as orders for the execution of a memorandum of transfer, or for the discharge of a mortgage. But the court does not have jurisdiction to alter the decree. The reservation of liberty to apply cannot be used, however, to alter the substance of a final order: Cristel v Cristel, Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, Australian Hardboard Ltd v Hudson Investment Group Ltd at 214 [52]. 21 Mr Clay next relies upon rules of the court which, he submits, allows the court to vary final orders. It has long been settled that, absent any statutory authority, the court has no power either inherent or implied to re-open final orders disposing of proceedings: Bailey v Marinoff (1971) 125 CLR 529 at 530, DJL v Central Authority (2000) 201 CLR 226. As Barwick J said in Bailey v Marinoff at 530: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. 22 Mr Clay relies, firstly, upon Pt 1 r 12 of the Uniform Civil Procedure Rules 2005 (UCPR), adopted by this court: 1.12 Extension and abridgment of time (cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2) (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 23 Mr Clay also submits that another rule expressly permits the court to vary an order - Pt 36 r 16 (3) of the UCPR: 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

... (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. 24 Finally, Mr Clay relies upon Pt 6 r 6.3 of the Land and Environment Court Rules 2007: 6.3 Extension and abridgment of time (cf UCPR rule 1.12)

(1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 25 In my opinion, however, none of these rules enable the court to vary the orders made on 9 August 2007. Apart from accidental slip or fraud, the power of the court under the rules to extend or abridge any time fixed by an order of the court, or to set aside or vary any judgment or order, can only apply to interlocutory, conditional or procedural orders and not to any final orders. This is because s 56 of the Land and Environment Court Act states that, except in the case of an appeal, "a decision of the court shall be final and conclusive". A "decision", in my opinion, means a final judgment or order. A rule of the court cannot be used to alter the final decision or to vary its terms - there must be finality in litigation to ensure public confidence in the administration of justice. 26 Moreover, s 56 is not expressed to be subject to rules. Subordinate legislation cannot override the provisions of an Act: s 32, Interpretation Act 1987; Water Board v Glambedakis (1992) 28 NSWLR 694 per Kirby P at 701-702; Carden v Willoughby Municipal Council (1985) 56 LGRA 366 at 368 per Kirby P, at 372 per Mahoney JA, McHugh JA concurring. 27 Part 36 r 16(3) of the UCPR also expressly excepts from its operation any judgment or order so far as it determines any claim for relief, or determines any question arising on any claim for relief, or dismisses proceedings, or dismisses proceedings so far as concerns the whole or part of any claim for relief. Cases which have involved the application of the equivalent of Pt 1 r 12 of the UCPR and Pt 6 r 6.3 of the Land and Environment Court Rules (Pt 2 r 3 of the Supreme Court Rules 1970), have been limited to conditional orders: see, for example, FAI General Insurance Company Ltd v Southern Cross Exploration N L. (1988) 165 CLR 268 and Paino v Hofbauer (1988) 13 NSWLR 193. 28 In Burrell v Queen (2008) 82 ALJR 1224, 248 ALR 428, the High Court considered the power of a supreme court of record to re-open a proceeding and reconsider the orders made. The High Court held that the Court of Criminal Appeal lacked power to re-open the appeal after the final orders has been formally recorded. In Burrell, their Honours Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said at [16]: It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly. 29 Their Honours continued at [20]: Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

Conclusion 30 Orders 1 and 2 of the consent orders made on 9 August 2007 have to be read together and amount to a final determination of the relief claimed. The reservation of liberty to apply does not enable the court to revisit these orders, since there is nothing in their terms which contemplate the making of any further order, neither is there anything which required the further working out of these orders. The orders are complete on their face. Neither do any of the rules relied upon by Mr Clay give the court jurisdiction to vary final orders regularly made. This is not an application to correct an order on the ground of some slip or oversight, neither is it a separate action impeaching a judgment for fraud, as to which the Court retains an inherent or implied jurisdiction. 31 It follows that the respondent's amended notice of motion dated 2 April 2009 to vary the court orders made on 9 August 2007 should be dismissed with costs. I hereby certify that the preceding 31 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H 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.