On 14 July 2016, I delivered a judgment, and made a series of orders, touching upon both matters now back before the Court - the original Class 1 proceedings (Welsh Property Consulting Pty Limited v The Hills Shire Council [2015] NSWLEC 1288), and an appeal brought under s 56A of the Land and Environment Court Act 1979 ("the LEC Act"): Welsh Property Consulting Pty Ltd v The Hills Shire Council [2016] NSWLEC 84.
I will not set out again all the background and reasons in my judgment of 14 July 2016. The parties sought a number of unusual orders in both the s 56A appeal and in the primary Class 1 appeal, and I determined that some ought be made and others not. My reasons are clearly set out in my judgment (at [48] - [58]). I declined to effectively uphold the s 56A appeal, by consent, but without giving reasons (see [54] - [58]).
The orders I made on 14 July 2016 were:
(1) By consent, and with the leave of the Court, the appeal brought by the Applicant pursuant to s 56A of the Land and Environment Court Act 1979 (matter no. 2016/150109, formerly 15/10750) is discontinued.
(2) The Applicant is to pay the Respondent's costs of that s 56A appeal in the agreed sum of $32,000.
(3) The appeal books filed in the s 56A appeal may be returned.
(4) The Notice of Motion recently filed jointly by the parties in the Applicant's Class 1 appeal (matter no. 2016/166969, formerly 14/11090) is dismissed, with each party to pay its own respective costs of it.
(5) The Council's Notice of Motion of 13 August 2015, seeking its costs of the Class 1 appeal, is stood over to the Registrar's list on Thursday 28 July 2016.
The parties have now made two more joint applications, essentially to set aside Orders (1) - (4) of 14 July 2016, and to have me resume consideration of the s 56A appeal.
Counsel for the parties do not impugn any of the reasoning in my judgment (Tp3, L43, and p4, LL20 - 27), but they now rely on an affidavit of the applicant/appellant's solicitor, Carl Reid, filed in each proceeding.
Reid deposes, "with the knowledge and consent of [Council's solicitor] Ms Jennifer Hutton" (some emphasis added):
4. By Orders made pursuant to that judgment on 14 July, the Court discontinued the s56A appeal and then dismissed the motion to set aside the Commissioner's decision.
5. The Court purported to make those Order's (sic) by consent. With respect, the parties did not, and do not, consent to the course that was adopted by the Court.
6. It was the parties intent that the proposed Orders be dealt with as a single whole. That is, the parties only consented the discontinuance of the s56A Appeal in the circumstances where the Court was then willing to set aside the Commissioner's decision and then make the Consent orders granting consent.
7. In the circumstances where the Court was not willing to make each of those Orders, the parties required (and still require) the Court to determine the s56A Appeal.
8. The Applicant apologises for any misunderstanding of the position that was presented to the Court in the joint submissions.
9. I request that the Court, with the consent of the Respondent, to (sic) grant the relief sought in the motions in each of proceedings 2016/166969 (Formerly 14/11090) and in 2016/150109 (formerly 15/10750) dated 28 July 2016.
10. Upon the making of those Orders, the decision of Commissioner Dixon will remain on foot, and be subject to the undetermined s56A Appeal already heard by your Honour.
11. Upon the determination of the s56A Appeal the parties will then be in a position to make decisions in respect of the future conduct of the proceedings.
As I pointed out during argument on 17 August (Tp1, L35), the Court does not "normally" deal in "packages" of orders. Nor does it make a suite of orders "automatically just because everyone wants them" (Tp3, LL1 - 7), or because parties simply say they "require" only them, regardless of what the Court thinks "appropriate" in the circumstances.
A careful re-reading of the transcript of argument on 1 June 2016, and of the subsequently filed joint written submissions of the parties, dated 5 July 2016, reveals that at no stage did either party make clear to the Court what Mr Reid says now was "the parties' intent", namely that they had agreed on a "package" they wanted the Court to implement on an "all or nothing" basis.
In an effort to be "just, quick and cheap", I agreed to consider the matter "on the papers" without a further hearing (T1.6.16, pp7 - 9).
The only reference to "package" on 1 June 2016 (Tp1.6.16, p8, L33) was to the various documents agreed to be submitted for my consideration in chambers.
My misgivings about what the parties were seeking on 1 June 2016 were made very clear during argument on that day (e.g. T1.6.16, p2, LL39 - 46; p5, LL19 - 37; p6, L47 - p7, L4; and p8, LL46 - 48), and they were not assuaged by my careful consideration, in chambers, of the "package" of documents which came forward on 5 July 2016. Nothing new was put to me regarding my concerns.
In arguing the "set-aside" motions on 17 August 2016, both counsel eloquently apologized to me for not making clear, on 1 June or 5 July, their shared intent that the relief sought was "one set of orders" (or none of them).
Counsel now say (T17.8.16, p4, LL25 - 26, and p5, LL6 - 7) that I "proceeded in part at least upon a misunderstanding of the parties' position", and that they (Tp5, LL42 - 43) "unfortunately took [me] down a route which led to a relief which we now invite your Honour to set aside".
As Mr Wright puts it (Tp6, LL7 - 14), in his oral submissions of support, by the Council, for the applicant/appellant's present applications:
... we had not ... properly conveyed the intent of the entirety of the orders. On reflection, and with the benefit of that imperfect thing called hindsight, what we should have included in the submissions was a discrete paragraph which made it abundantly clear that if your Honour was not minded to make the orders in the sequence that they were proposed, and in their totality, that the parties instead invited your Honour to dismiss that set of applications in their entirety and revert to a determination of the 56A appeal.
and, later (Tp6, LL30 - 38):
we were trying to establish a sequenced path within jurisdiction to achieve what was a consent result, and I am here because the council can't take advantage of a position which was not part of the agreement that the parties had reached. So to try to put us back in the position where we believe we were in terms of the agreement as to process that we'd reached, and then we have to join in the application, and then that would mean, if your Honour is minded to do it, going back to square one, which is where your Honour was, having reserved judgment on the appeal, and simply to deliver judgment on the appeal as it stood.
Counsel argue that the parties, while the s 56A appeal decision was reserved, came to a "commercial resolution" which included costs orders. I made costs orders in the "package" at which I arrived, and I pointed out on 17 August (Tp4, L49) that, in the absence of other elements of the parties' "package" having been accepted by the Court, it is another "commercial consideration" whether or not such costs orders are enforced.
In June/July the parties relied on Rule 36.15 of the Uniform Civil Procedure Rules 2007 ("UCPR"), and s 56A of the LEC Act (see judgment at [35] and [36]).
In these latest Notices of Motion they rely on UCPR 36.16, especially subrule (3A) (emphasis added):
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, ...
...
(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.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
...
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
The relief now sought is discretionary (see the word "may" throughout the rule), and, for the reasons given on 14 July and above, I have decided it is not "appropriate" (subrule 3A), and should not be granted.
The parties are bound by the way their representatives dealt with these matters in June and July: University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68, at 71, and Coulton v Holcombe [1986] HCA 33; 162 CLR 1; 65 ALR 656; see also the judgment of this court in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68, at [44]-[55].
I, therefore, make the following orders:
1. The orders made in these matters on 14 July 2016 are confirmed.
2. The Notices of Motion filed by the Applicant on 28 July 2016 are dismissed.
3. Each party is to pay its own costs of those Notices of Motion.
4. Council's Notice of Motion of 13 August 2015 is again referred to the Registrar for further directions. If Council wishes to proceed further with it, it should secure, electronically, its relisting before the Registrar.
[3]
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.
Decision last updated: 01 May 2018