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[1982] HCA 41
High Court of Australia
1982-07-01
Brennan JJ, Powell J
Original judgment source is linked above.
The applicant, who now appears in person, seeks to argue a number of grounds in support of her application. However, as we had occasion to point out recently in State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. [35] , the circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
Of the grounds advanced by the applicant in the present case one ground only - that the Court omitted to consider her claim for an injunction - could conceivably answer this description. However, on examination it is evident that this ground is without merit. The applicant points out that by her notice of appeal to this Court she asked for relief by way of declaration and injunction as well as relief by way of damages. However, she fails to acknowledge that Mr. Beaumont Q.C., who then appeared for her, in argument confined her case for relief to a claim for damages under s. 68. He did so because, during the course of the proceedings, the applicant had sold the property which, she claimed, had been adversely affected by the alleged breach of cl. 43(1)(a). A reading of the transcript makes it plain that the applicant's claim for relief was confined in the manner indicated. During the course of his argument, Mr. Beaumont said:
there was another supervening event, namely the sale of the house, which means that damages is the only issue. That is the only claim that my client can possibly make .
Mr. Beaumont rightly took the view that the sale by the applicant of her property deprived her of a basis for obtaining injunctive relief against the Kladis maintaining on the adjacent land a building which infringed the Ordinance and that her only arguable claim for relief was for damages. At no stage of his argument did he depart from this approach. In his concluding remarks he described the case as one in which prima facie an injunction should be granted and urged that if for discretionary reasons an injunction was considered inappropriate nonetheless damages should be awarded under the statute. These remarks could not be read as altering the complexion of the case as it had been presented and fought in this Court. They are no more than a statement of the foundation on which the claim for damages was presented as the sole issue for determination.
The conclusion that a case for declaratory and injunctive relief was not argued on the appeal is fatal to the next ground advanced by the applicant, namely, that the Court erred in failing to decide whether there was a breach of cl. 43(1)(a). There was no need to decide whether there was a contravention of the Ordinance because the Court concluded that the claim to damages under s. 68 could not be maintained even it there was a breach. Her final ground - that the Court misconstrued s. 68 - is an attempt to reargue the substantial question decided in the appeal after hearing full argument from counsel for the parties. As such it stands outside the Court's jurisdiction to vacate the orders already pronounced.
There is a cross-application by the respondent Council for an order for costs of the appeal pursuant to leave reserved in that respect when judgment on the appeal was pronounced. We consider that the Council is entitled to costs of the appeal. In this respect we mention three considerations which persuade us to this conclusion. The Council was joined as a party to the proceedings against whom relief was sought. Until the hearing of the appeal it seemed that the applicant was asserting that the Council as well as the Kladis was liable in damages. The Council was accordingly entitled to be represented on the hearing of the appeal, the outcome of which was in favour of the Council.
Miss Wentworth's application is dismissed with costs.
On the Council's application order that Miss Wentworth pay the Council's costs of the appeal (excluding the costs of the application).
Wentworth
Woollahra Municipal Council
High Court of Australia Gibbs C.J. Mason, Murphy, Aickin and Brennan JJ. Mason A.C.J. Wilson and Brennan JJ. Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41