Solowave Pty Limited v Sydney City Council

Adams v Waverley Council [1999] NSWLEC 7; CASES CITED: Bailey v Marinoff (1971) 125 CLR 529; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143

APPLICANT: Mr T To (barrister) SOLICITORS: Gadens LEGAL REPRESENTATIVES: RESPONDENT: Ms Prue Whitford (solicitor) SOLICITORS: Maddocks

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11504 of 2004 Solowave Pty Limited v Sydney City Council

JUDGMENT 1 Her Honour: The Applicant filed a Class 1 Application on 6 December 2004 appealing against development consent conditions required by Sydney City Council ("the Council") for D/2004/675 a change of use of first floor premises and use of the second floor premises leased by the Applicant. On 20 September 2005, the Registrar dismissed the Class 1 proceedings pursuant to Pt 13 r 12 of the Land and Environment Court Rules 1996 ("the Court Rules").

2 The Applicant filed a Notice of Motion dated 25 October 2005 moving the Court for orders that:

1. The Registrar's order dismissing the proceedings made on 20 September 2005 ("Dismissal Order"), be set aside pursuant to Pt 15 r 9 of the Land and Environment Court Rules
2. Such further or other order as the Court thinks fit. Background 3 The Applicant relied on the affidavit of Mr Todd O'Connor, a consultant of the Applicant, affirmed 28 October 2005. The Council relied on two affidavits of Ms Prue Whitford, the Council's solicitor, sworn 23 September 2005 and 2 November 2005.

4 The circumstances in which the Registrar dismissed the proceedings are evidenced in the affidavit of Ms Whitford sworn 23 September 2005. On 25 January 2005, the proceedings were adjourned. On 22 February 2005, the proceedings were again adjourned to allow the Applicant to lodge an application pursuant to s 82A of the Environmental Planning and Assessment Act 1979 ("EP&A Act"). The proceedings were further adjourned to allow the Council to consider the s 82A application.

5 On 15 June 2005, the Court directed the Applicant to file an amended statement of issues. On 12 July 2005, the proceedings were adjourned to allow the parties to consider whether the nominated acoustic expert, Mr Cooper, would be an appropriate Court appointed expert.

6 On 11 August 2005 the Applicant was locked out of its premises by its landlord. Subsequently, on 12 August 2005 the Applicant initiated Supreme Court proceedings against its landlord. These proceedings were adjourned on 16 August 2005 to allow the Applicant time to obtain resolution of the Supreme Court proceedings.

7 On 5 September 2005, the Applicant's solicitor filed a Notice of Ceasing to Act. On 6 September, the Council sought an adjournment of seven days to allow the Applicant to find alternative legal representation. On 8 September 2005, the Council's solicitors wrote to the Applicant at the address provided on the Notice of Ceasing to Act informing it of the adjournment and the purpose of the adjournment.

8 When the matter was listed on 13 September 2005, there was no appearance on behalf of the Applicant. The Registrar adjourned proceedings for a further seven days. On 13 September 2005, the Council's solicitors wrote to the Applicant at the address provided on the Notice of Ceasing to Act informing it of the further adjournment. On 14 September 2005, the Registrar of this Court wrote to the Applicant at the address provided on the Notice of Ceasing to Act. The Registrar informed the Applicant that pursuant to Pt 13 r 11 of the Court Rules the matter had been adjourned to 20 September 2005 and that if the Applicant failed to appear the matter would be struck out.

9 On 20 September 2005, there was no appearance on behalf of the Applicant. Pursuant to Pt 13 r 12 of the Court Rules, the matter was struck out. On 20 September 2005, the Registrar wrote to the Applicant at the address provided on the Notice of Ceasing to Act informing it that the matter had been struck out and that the matter had been listed before a Judge of the Court for a hearing on costs. Relevant provisions 10 Part 15 r 9 of the Court Rules states: 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 for the order, (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4, (c) if the order was obtained by fraud, (d) if the order is interlocutory, (e) if the order does not reflect the intention of the Court, (f) if the party in whose favour the order was made consents. 11 The parties agreed the Court has power to set aside the Registrar's orders under the Court Rules. The issue is whether the Court should exercise its discretion to set aside the order made by the Registrar dismissing the proceedings. Applicant's submissions 12 The Applicant submitted that in the circumstances of the case the application to have the Registrar's order set aside should be granted subject to an order that the Applicant pay the Council's costs thrown away. If the Applicant was forced to lodge a fresh appeal, all steps taken by the parties thus far would be duplicated without any additional utility, but to considerable additional cost to the parties. As no prejudice to the Council exists, save for the issue of costs, then the interests of justice are better served by allowing the application. The Applicant accepted that it was fair and reasonable that it bear the costs thrown away by the Council by reason of its failure to appear. Council's submissions 13 The Council submitted that the Court should decline to set aside its perfected order to dismiss the appeal of 20 September 2005. A perfected order should only be set aside in exceptional circumstances. The Council argued that the Court must consider the conduct of the Applicant, by which the Applicant was bound. As the Applicant had given no good reason for its failure to appear, the circumstances did not call for any departure from the well settled principles in relation to the setting aside of perfected orders and of finality and certainty. Finding 14 The Council argued the principles of finality and certainty should apply particularly where there is a perfected order of the Court. The cases they relied on of Bailey v Marinoff (1971) 125 CLR 529, Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143, and Adams v Waverley Council [1999] NSWLEC 7 all concern circumstances where there has been a final hearing in a matter, orders perfected and one party has made an application to reopen the case to raise further matters.

15 In Bailey, the High Court considered whether the Court of Appeal had inherent jurisdiction to vary a perfected order. On 10 February 1970 the Court of Appeal ordered the appellant to file and serve appeal books prior to 31 March 1970. Appeal books were filed on 31st March 1970 but were served late. The Court of Appeal intervened to prevent the appeal being dismissed. This decision was appealed. A majority of the High Court upheld the appeal holding that the Court of Appeal had no inherent jurisdiction to reopen the perfected order when the matter was no longer before the Court.

16 In Haig, which dealt with statutory powers to correct or change perfected orders under the Supreme Court Rules 1970, Kirby P as he then was, considered the circumstances in which the Court could reopen perfected orders. The Court of Appeal had previously ordered that the matter be remitted to this Court for the proper determination of compensation under the Public Works Act 1912. The order of the Court of Appeal was perfected on 10 April 1991. On 31 May 1994, Bignold J of this Court determined the amount of compensation pursuant to the Public Works Act 1912. Subsequently, the appellant appealed to the Court of Appeal moving to set aside the original orders dated 10 April 1991. Kirby P stated that the Court would do this in exceptional circumstances only and declined to do so on the facts of that case. 17 Here the Court is being asked to set aside the Registrar's order made in the absence of the Applicant or its representatives. There has clearly been no final determination of the matter, so that the circumstances here are quite different to those in Bailey and Haig. I do not consider these cases are therefore directly applicable to this case.

18 The Applicant argued that the test for the exercise of my discretion in this case is to consider how the interests of justice are best served. The Council has agreed that it suffers no prejudice if the case continues to run in the event I grant the Applicant's motion and award costs in the Council's favour. The Applicant's consultant Mr O'Connor stated on oath in his affidavit that he is instructed to commence a new appeal if this motion is not granted so that these proceedings are dismissed. According to Mr O'Connor this would result in a considerable amount of effort and money spent in the preparation of these proceedings going to waste. On balance, all these factors suggest I should grant the Applicant's motion.

19 I note however that I do not consider the Applicant has put forward an adequate explanation as to why it failed to take action to participate in the Court proceedings given that it received at its post office address three letters, two from Council's solicitors dated 8 September 2005 and 13 September 2005, and one from the Court dated 14 September 2005 advising of the need to attend court at call-overs on 13 September 2005 and 20 September 2005. A further letter from the Court dated 20 September 2005 advising of the Registrar's order for dismissal was also sent. No director of the company has provided sworn evidence of why its employee Mr O'Connor, who apparently has responsibility for the conduct of this case on behalf of the Applicant, was not made aware of this correspondence until after 19 October 2005. It is incumbent on a party in proceedings, here a company engaged in a commercial activity, to conduct its affairs in such a way that its case is pursued in an orderly and efficient manner. The Applicant must ensure it does so from now on. Costs 20 Each party should pay its own costs of this Notice of Motion. I will in due course make an order that costs thrown away by the Council as a result of this motion are payable. It is desirable that the parties reach agreement on the amount of those costs or at least the period to which those costs relate. The parties are to advise the Court within seven (7) days what has been agreed on this matter. If no agreement is reached a further call-over will be necessary. Orders 21 The Court orders that:

1. The Registrar's order dismissing the proceedings made on 20 September 2005 be set aside.
2. Each party pay its own costs of the Notice of Motion dated 25 October 2005.

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