Warringah Council v Franks

Land and Environment Court (NSW)|2003-08-29|Before: Bignold J, Mr J

The Applicant to provide by 5.00 pm today final supplementary submissions on availability of power to stay under Pt 44, r 5 of the Supreme Court Rules and to serve copy on Respondent.

Respondent to file submissions on jurisdictional question within 3 weeks and to serve copy on Applicant's Solicitors.

Applicant to file reply within 7 days after that date if it so desires.

B. THE RELEVANT FACTS 7 The two costs orders the subject of the Respondent's substantive motion seeking a permanent stay are as follows: (i) in Proceedings 40123 of 1997 Mr Franks was ordered on 24 July 1998 to pay 75% of the Council's costs as agreed or assessed in contempt proceedings brought by the Council against Mr Franks for disobeying an interlocutory injunction made by this Court; and

(ii) in Proceedings No.40027 of 2000 Mr Franks was ordered on 23 August 2001 to pay the Council's costs in civil enforcement proceedings brought by the Council against Mr Franks and his company Windy Dropdown Pty Limited. 8 Both costs orders made on 24 July 1998 and 23 August 2001 were perfected shortly after they were respectively made when action was taken pursuant to Part 15 Rule 4 of the Rules of Court which provides as follows: The Registrar is to sign and file a minute of a final order disposing of proceedings, and is to seal the minute with the seal of the Court. 9 In his affidavit sworn on 18 March 2003 in support of his Notice of Motion seeking permanent stay of the Court's costs orders Mr Franks asserts that the Council and its Solicitors "have engaged in a course of conduct designed to cause grave commercial and financial harm to me to the point of bankrupting me" (paragraph 2). 10 His affidavit then proceeds to recite Mr Frank's version and understanding of the two sets of proceedings in which the costs orders were made against him. 11 After traversing those litigation histories Mr Franks claims the permanent stay of the Court's costs orders made against him "in the interests of justice".

C. THE COUCNIL'S OBJECTION TO THE COURT'S JURISDCITION TO PERMANENTLY STAY THE COSTS ORDERS 12 The Council submits that this Court has no jurisdiction to grant the substantive relief claimed by Mr Franks because the costs orders form part of the orders made by the Court in both sets of proceedings finally disposing of the proceedings which orders have been perfected. 13 The relevant principle of law is found in the statement from the judgment of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 which was recently approved by the High Court of Australia in DJL v Central Authority (2000) 74 ALJR 706 in the following passage at 715: These qualifications apart, the rule was that restated by Barwick CJ in Bailey v Marinoff with respect to the New South Wales Court of Appeal: 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.

14 The decision in DJL has been applied to this Court by a number of decisions by different Judges of this Court. For example in Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438, I said at 441-442: 11. The argument that the Court possesses inherent power to vary a perfected order cannot be sustained in the light of the recent judgment of the High Court in the DJL case where the majority of the Court, in holding that the Full Court of the Family Court lacked the " power to re-open its final orders after entry " ( par 50 of the joint majority judgment) had earlier stated at par 25 that it was inaccurate to speak of a " non-common law Court " as possessing " inherent " jurisdiction or power, before expressing the following conclusion at par 45 to the question earlier posed at par 32 (namely " whether the creation of the Family Court as a superior court of record carried with it the statutory power to re-open a final order after entry ?"): The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as " a superior court of record ". Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.

These observations as to the position of the Family Court with respect to the absence of inherent jurisdiction or power and the lack of express or implied power, apply with equal force to this Court, it too being by statutory creation, a superior court of record. 13. It follows that the several earlier decisions of this Court which have held that the Court is vested with inherent power to re-open perfected judgments or orders, (including the recent decision of Talbot J in Memel Holdings Pty Ltd v Pittwater Council (2000) NSWLEC 227 upon which the Applicant relied) can no longer be regarded as correctly stating the law.

15 Leaving aside for the moment the question of the Court's statutory power (which may modify the common law principle) there is no inherent or implied jurisdiction or power vested in this Court to vary or revisit or stay a perfected order of this Court. 16 Mr Franks in his argument referred to the following passage in the joint judgment of Deane and Gaudron JJ in Hamilton v Oades (1989) 166 CLR 486 at 502: The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice. See Cocker v. Tempest (1841) 7 M & W 502. In the case of the Supreme Court of New South Wales that power is confirmed by s23 of the Supreme Court Act 1970 (NSW) which states that the "Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales." See Riley McKay Pty. Ltd. v. McKay (1982) 1 NSWLR 264; Jackson v. Sterling Industries Ltd. (1987) at p 617.

The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v. Sterling Industries Ltd., at p 639; Tringali v. Stewardson Stubbs & Collett Ltd. (1966) 66 SR (NSW) 335, at pp 340 and 344. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms "oppressive" and "vexatious" are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Co. Inc. v. Fay (1988) 62 ALJR 389, per Deane J at p 411; 79 ALR 9, at p 45. 17 But this inherent power to prevent an abuse of the Court's processes or procedures is not invocable to revisit, review or stay a perfected order of the Court, such as are the two costs orders in respect of which Mr Franks seeks a permanent stay. 18 Whilever those orders exist there can be no question of their existence constituting an abuse of process. 19 Accordingly, statutory power apart, this Court has no jurisdiction or power to permanently stay the two perfected costs orders made against Mr Franks. 20 The leads to a consideration of any statutory power. Part 15 rule 9 of the Rules of Court confers statutory power for the Court to 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. 21 It is clear that the Respondent's substantive Motion is not based upon a case covered by this Rule. 22 The statutory power to stay proceedings conferred by Part 12 rule 1 is not invocable in the present case because both proceedings in which the costs orders were made against Mr Franks have been concluded. There is simply nothing to stay. 23 This leads finally to consideration of the statutory power to stay the execution of the costs orders that is conferred by Part 44 rule 5 of the Supreme Court Rules (that are adopted by the Rules of this Court) in the following terms: The Court may, on terms, stay the execution of a judgment or order. 24 In the course of the Council's oral argument I raised the possibility of that power being available to Mr Franks and drew the parties' attention to my judgment in Farrell v Bridge (1993) 81 LGERA 76. 25 In its subsequent written submission the Council has submitted that that statutory power does not provide any justifiable basis or foundation for permanently staying the costs orders. Mr Franks in his written submission has sought leave to amend his substantive Motion to seek a stay of execution of both costs orders. The Council has opposed this amendment. 26 In my judgment the power conferred by Supreme Court Rules Part 44 Rule 5 would not on the facts of the present case justify the permanent stay of the costs orders for similar reasons to those given at p84 in Farrell v Bridge where I said: In my judgment this is not an appropriate case for the granting of a permanent stay of execution, because of the very existence of 1988 Orders. Whilst those Orders remain in force, and notwithstanding their susceptibility of being quashed on appeal, it is inconceivable and unjustifiable that this Court would permanently stay execution of the Orders. In my judgment if there is to be a stay of execution pursuant to Supreme Court Rules Pt 44 r 5, the only justifiable stay would be pending any appeal to the Court of Criminal Appeal. I am of the same opinion (for the same reasons) if the relevant source of power be found elsewhere eg Supreme Court Rules Pt 42 r 12 (stay of execution on account of matters occurring after judgment) - see Wentworth v. Attorney-General at 526 or in the Court's inherent power to prevent an abuse of its process - see Jago v. District Court (New South Wales) (1989) 168 CLR 23; National Parks and Wildlife Service v. Stables Perisher at 581. Whilst the 1988 Orders remain in force, there can be no suggestion that enforcement of the Orders involves any abuse of process. D. CONCLUSIONS AND ORDERS

27 For all of the foregoing reasons I hold that this Court has no jurisdiction or power (inherent or statutory) to permanently stay the perfected costs orders made against Mr Franks. 28 It would seem that Mr Frank's real complaint is directed against the decisions of the Judges of this Court who made the costs orders. He could have appealed those decisions. Apparently he did not. Although, theoretically, he may still seek leave to appeal, since some years have elapsed since the orders were made, that prospect does not appear good. 29 Accordingly I make the following orders:

The Respondent's Notice of Motion filed 18 March 2003 is dismissed.
The question of costs is reserved.

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.

CITATION : Warringah Council v Franks [2003] NSWLEC 193 APPLICANT: Warringah Council PARTIES : RESPONDENT: Phillip Franks FILE NUMBER(S) : 40123 of 1997 CORAM: Bignold J KEY ISSUES: Costs :- Permanent stay application LEGISLATION CITED: Land and Environment Court Rules, Pt 12 r 1, Pt 15 r 4, Pt 15 r 9; Supreme Court Rules, Pt 44 r 5 Bailey v Marinoff (1971) 125 CLR 529; DJL v Central Authority (2000) 74 ALJR 706; CASES CITED: Farrell v Bridge (1993) 81 LGERA 76; Hamilton v Oades (1989) 166 CLR 486; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 DATES OF HEARING: 28/05/2003; 25/06/2003 DATE OF JUDGMENT: 08/29/2003

(2001) 112 LGERA 438

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