Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66 | Case summary

Wollongong City Council v Dr Masood Falamaki [2010] NSWLEC 66 | Case summary | Zoe

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1 HIS HONOUR: These proceedings have a long history. They were commenced in 1997 and concern the breach of a building approval granted on 8 December 1995 (the building approval) to Dr Masood Falamaki (Dr Falamaki) for the erection of a single dwelling house on land at Figtree near Wollongong. 2 On 17 February 1999, orders were made in this Court intending to resolve the dispute between the parties. Over 11 years later, the notices of motion now before the Court will, if successful, reopen for determination the very issues which were determined so long ago. 3 Sadly, had the terms of the orders made in February 1999 been observed, it is probable that the dwelling house then under construction would long since have been completed and enjoyed. Instead, there stands on the land only a structural steel skeleton that, apart from the effects of weathering, remains unchanged from the time of its first erection in April of 1997. 4 From the orders made in this Court on 17 February 1999, an appeal to the Court of Appeal has been pursued unsuccessfully, as has an application for special leave to appeal to the High Court of Australia. The present notices of motion follow two prior applications to this Court seeking to disturb those orders and which, apart from the extension of time for compliance with them, have also been unsuccessful. 5 For the reasons which I give below, I have determined that the important principles pertaining to finality of litigation must prevail (DJL v Central Authority [2000] HCA 17 201 CLR 226; Burrell v The Queen [2008] HCA 34 at [15]; 82 ALJR 1224; Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50) with the consequence that the notices of motion must be dismissed. The "special", "very special" or "exceptional" circumstances necessary to be demonstrated before final orders made by this Court are set aside have not been established (cf. Haig v Minister Administering the National Parks and Wildlife Act 1974) (1994) 85 LGERA 143, per Kirby P at 153). In giving my reasons for so concluding, it is convenient to refer to the parties by name rather than to their title in the proceedings. Background

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6 The building approval authorised the erection of a three-storey dwelling house on land known as 12 Arter Avenue, Figtree (the site), a site located on the lower slopes of the Illawarra escarpment above the City of Wollongong. Unsurprisingly, the building approval was a conditional approval requiring that both the terms of the grant itself and the conditions upon which it was granted be observed when undertaking the construction of the dwelling which it authorised. 7 Excavation of the site in preparation for construction of the dwelling took place in December 1996. Those works having been undertaken, in about February 1997 pad footings and foundation beams were completed. In April of that same year the erection of structural columns commenced. Work at the site was at that stage when it was claimed by Wollongong City Council (the Council) that the work undertaken was not in accordance with the building approval. That claim ultimately led to the commencement of proceedings shortly thereafter in which the Council sought a declaration that Dr Falamaki had carried out work in breach of the building approval together with a consequential order requiring the undertaking of remedial works or, alternatively, demolition. 8 The final hearing of the proceedings took place before Talbot J over five days commencing on 1 June 1998. On 19 June 1998 his Honour delivered judgment (Wollongong City Council v Masood Falamaki [1998] NSWLEC 130). His Honour's judgment determined the manner in which the proceedings should be resolved but he refrained from making any substantive orders at that time so that the parties could consider the terms in which such orders should be framed, having regard to the reasons for his decision. 9 Following a further hearing before Talbot J on 5 November 1998, orders to resolve the proceedings, consistent with the judgment delivered in June, were made (Wollongong City Council v Masood Falamaki [1998] NSWLEC 277). However, shortly thereafter Dr Falamaki filed a notice of motion seeking to vary those orders. 10 Dr Falamaki's notice of motion was heard by Talbot J on 17 February 1999 at which time his Honour again made orders intended to resolve the proceedings in their totality (Wollongong City Council v Masood Falamaki [1999] NSWLEC 23). It is those orders which are presently relevant (the primary orders). They are as follows - "1. The building partly constructed on the property known as 12 Arter Avenue, Figtree, be demolished and the land restored to its pre-development condition. 2. Order 1 is suspended and to have no effect until further order provided the Respondent complies with the following directions and orders: i) working drawings for the floor slabs of levels 1 and 2 confined within the retaining walls of the structure to be lodged with Wollongong City Council on or before 3 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that: (a) the working drawings are in accordance with the certified calculations and design documents for the proposed residence; and (b) the works when carried out in accordance with the working drawings for the floor labs (sic) of levels 1 and 2 confined within the retaining walls of the structure and the working drawings of the proposed retaining walls and drainage shown in drawing No. 979-1, 979-2 and 979-3 dated 25 January 1999 together with the existing structure will retain the surrounding lands. ii) Working drawings for the remainder of the proposed residence to be lodged with Wollongong City Council on or before 31 March 1999 and to be accompanied by a certificate by a suitably qualified and independent structural engineer that such working drawings are in accordance with the certified calculations and design documents for the proposed residence. iii) The Respondent shall commence retaining works on site within one month of lodgement of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. iv) All structural works necessary for the support of the surrounding lands to be completed within six months of the date of lodgment of the working drawings and certificate referred to in Order 2(i) subject only to any reasonable extension of time to take account of wet weather. (v) A clearing certificate by a suitably qualified and independent structural engineer that the structural works referred to in Order 2(iv) have been erected in accordance with the certified working drawings be provided to Wollongong City Council by the Respondent within one month of the completion of those works. 3. The Applicant pay the costs of the Respondent in respect of the notice of motion returnable 11 February 1998 and any costs thrown away by the Respondent following vacation of the hearing dates in February 1998. 4. Subject to Order 3, each party pay their own costs up to 18 June 1998.

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The exhibits may be returned." 11 Dr Falamaki appealed from the three judgments of Talbot J to the Court of Appeal. The judgment of that Court was delivered on 4 April 2001 (Falamaki v Wollongong City Council [2001] NSWCA 55). Ultimately, it refused leave to appeal, having determined that the primary orders were not final orders; dismissed the appeal as incompetent, but extended time for compliance with certain of the primary orders until later in 2001. It will be necessary to return to the judgment of the Court of Appeal later in these reasons. 12 An application for special leave to appeal to the High Court of Australia from the decision of the Court of Appeal was refused on 17 September 2002 (Falamaki v Wollongong City Council s 89/2001 [2002] HCA 460). 13 It would seem that no further work was undertaken on the site subsequent to the judgment of the Court of Appeal and dismissal of Dr Falamaki's application for special leave to appeal to the High Court. Thus, there remains on the site the partially completed steel structural frame first erected in about April 1997. 14 The proceedings were next revived in this Court when in February 2009 Dr Falamaki filed a notice of motion seeking to vacate order 1 of the primary orders (the order for demolition) and also seeking a declaration that he had otherwise complied with the requirements of order 2 for the provision of plans and structural engineering certificates. Ultimately, the relief sought by that notice of motion was amended so that it became an application for extension of time within which to comply with the outstanding requirements of the primary orders. As well, Dr Falamaki sought an alternate order to order 1 of the primary orders, proposing that in the event that he failed to comply with outstanding orders for provision of plans and structural engineering certification, the matter be returned to Court for further consideration. Those orders were opposed by the Council and in the alternative it sought a declaration that Dr Falamaki was in breach of the primary orders. It also sought an order allowing the Council to enter and carry out demolition of the existing structure in the event that Dr Falamaki failed to comply with the obligations otherwise imposed upon him by the orders. 15 Those notices of motion were heard before Pain J on 13 and 14 May 2009. Judgment was delivered by her Honour on 22 May 2009 (Wollongong City Council v Falamaki (No.3) [2009] NSWLEC 80). Apart from determining that Dr Falamaki's notice of motion, as amended in the course of the hearing, was unsuccessful in removing the requirement for demolition, her Honour indicated that she was prepared to extend time within which Dr Falamaki was to comply with other requirements of the primary orders. No orders were made by her Honour at the time of delivering judgment other than to request that the parties consider the terms in which orders should be framed to reflect the terms of that judgment. 16 On 1 June 2009 her Honour made final orders for disposition of the proceedings (the supplementary orders) and also determined outstanding questions of costs (Wollongong City Council v Falamaki (No. 4) [2009] NSWLEC 83). The supplementary orders were as follows: "1. That order 2 of the Orders be varied by deleting the phrase "until further order" wherever appearing;

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That the Orders be varied as follows: (i) order 2 (iv) be complied with by 22 February 2010; 3. Failing compliance with order 2 of the Orders as varied by order 2 above, order 1 of the Orders shall without further order operate, so as to oblige the Respondent to do the demolition and restoration work therein, such work to be completed by 22 April 2010; 4. Failing compliance with orders 2 and 3 above, the Applicant (should it elect to do so) is directed/authorised pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW), to enter the land at 12 Artery Avenue, Figtree and carry out work necessary to effect compliance with order 1 of the Orders; 5. The Respondent must pay the Applicant's reasonable costs and expenses of carrying out the works referred to in order 4 above; and 6. Costs are reserved." 17 It will be seen that the effect of the orders then made by her Honour were threefold. First, she declared that Dr Falamaki had failed to comply with certain of the primary orders. Secondly, she extended time for compliance with one of those orders. Thirdly, she ordered that in the event of Dr Falamaki failing to comply with orders made by Justice Talbot for the provision of plans and relevant certificates within the extended time limits that had been provided, demolition of the existing structures was required as was restoration of the land, such works to be completed by 22 April 2010. Expressed succinctly, she removed the contingency attaching to the primary orders upon which the Court of Appeal had founded its determination that those orders were not final (Falamaki v Wollongong City Council [2001] NSWCA 55 at [18]). Further, she authorised the Council to enter the site for the purpose of carrying out both demolition and restoration works in the event that Dr Falamaki failed so to do. 18 Not content with the further extension of time that had been given to him, by notice of motion filed on 26 June 2009 Dr Falamaki sought orders setting aside both the primary orders and the supplementary orders. The basis for that application was, in essence, that there was now fresh evidence available to him concerning the breach of the building approval; that the Council had, in the previous hearings, placed false evidence before the Court, had played tricks on Dr Falamaki so as to preclude consideration of the real evidence and that witnesses for, or officers of, the Council had lied to the Court. 19 Dr Falamaki's June 2009 notice of motion was heard and determined by Sheahan J on 10 July 2009 (Wollongong City Council v Falamaki (No. 5) [2009] NSWLEC 117). His Honour dismissed the notice of motion with costs. 20 By notices of motion filed in this Court on 18 February 2010, Dr Falamaki seeks a stay of both the primary orders and the supplementary orders and, as well, seeks, yet again, an order that both of those orders be set aside. His grounds for so doing are, in essence, the same as those upon which he relied in his unsuccessful application before Sheahan J, albeit he asserts that one further fact has come to light in the nature of "new evidence" which was discovered subsequent to his Honour's judgment. 21 There are two further matters by way of background that need to be noticed. First, by an order made in the Federal Magistrates Court on 8 December 2009, a sequestration order was made against the estate of Dr Falamaki under the provisions of the Bankruptcy Act 1966 (Cth). I was informed that Dr Falamaki has appealed to the Federal Court from the making of that order and that his appeal is fixed for hearing on 28 April 2010. By an order made by Moore J in that Court on 1 April, a conditional stay of the sequestration order was granted, expressly to enable Dr Falamaki to argue his notices of motion in this Court on 6 April. Other interlocutory orders, not presently relevant to these proceedings, were made by his Honour. Suffice to note for present purposes that the sequestration order did not act as a bar to Dr Falamaki proceeding with the present notices of motion (cf s 60 of the Bankruptcy Act). 22 Secondly, it is to be noticed that, with one minor exception, all of the judgments to which I have referred, involving Dr Falamaki and the Council, record that he has appeared in person. His self-representation has included not only hearings in this Court but also his appearances before both the Court of Appeal and the High Court. The one minor exception to which I have referred is that on the first day of hearing before Pain J on 13 May 2009, Dr Falamaki is recorded as having been represented by a solicitor. It would also appear that when proceedings were first instituted against him by the Council in 1997, Dr Falamaki was represented by a solicitor at an interlocutory hearing but that representation did not continue into the final hearing of the proceedings before Talbot J. The course of hearing of the present notices of motion

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23 The present two notices of motion filed by Dr Falamaki were first returned before Pain J, sitting as Duty Judge, on 19 February 2010. Dr Falamaki appeared at that time when her Honour indicated that the hearing would be fixed for one day in March, subject to the availability of a judge who had not previously been involved in the matter. It would appear that Dr Falamaki accepted that course, including the estimated hearing time, and also indicated that he would be legally represented on the hearing. Ultimately, a hearing date of 5 March was offered but Dr Falamaki indicated that it was unacceptable to him because his counsel was not available on that date. It was then that the hearing date of 6 April was selected, being a date said by Dr Falamaki to be suitable to his counsel. 24 When the matter was called for hearing before me on 6 April Mr Mark McMurtrie announced that he appeared as agent for Dr Falamaki, as he was entitled to do pursuant to s 63(1) of the Land and Environment Court Act 1979. He informed me that he was the clerk to Mr Jerry Prus-Butwilowicz of the Queensland Bar who was unable to appear because of other commitments on that day. Mr McMurtrie frankly acknowledged that he had had little time to prepare for the hearing on Dr Falamaki's behalf. 25 Notwithstanding the events which surrounded Dr Falamaki's representation at the hearing, no application was made to me either by Dr Falamaki or Mr McMurtrie for an adjournment. Given the exigencies that surrounded his representation, I allowed far more latitude in the dual presentation of the evidence and argument than would have been the case had two legal representatives appeared for him. The limitations under which Mr McMurtrie laboured were exemplified by an exchange which took place on the second day of hearing. Mr McMurtrie was seeking to discuss an aspect of the principal judgment of Talbot J of 19 June 1998. When asked whether he had read that judgment he candidly replied that he had not "read it completely" but was relying upon instruction from Dr Falamaki. 26 As I have earlier indicated, Dr Falamaki's principal notice of motion was one seeking to set aside both the primary and the supplementary orders. His second notice of motion sought a stay until his principal notice of motion had been determined. Both were listed for hearing on 6 April. 27 In support of his notices of motion, Dr Falamaki had filed two short affidavits. The first, which was sworn on 18 February, attached a copy of an affidavit which he had sworn on 3 February 2010 and which had been filed in Supreme Court proceedings which he had instituted against the Council. I am informed that those proceedings are presently stayed. The second affidavit, also sworn by Dr Falamaki on 18 February, attaches a further affidavit filed in the Supreme Court proceedings. It contains material which both in form and substance is in large measure inadmissible in support of the current application. However, it did provide insight as to the basis upon which Dr Falamaki sought to sustain his applications. 28 Dr Falamaki then pointed to documents contained in some eight lever arch folders which he indicated he would seek to read and rely upon for the purpose of these proceedings. In addition, he identified miscellaneous documents upon which he would rely, including for example, a letter that he had sent by facsimile to the Registrar of the Court of Appeal (Exhibit 8) and a letter to the Registry of this Court dated 12 May 2009 (Exhibit 10). 29 Mr Shoebridge of counsel who appeared for the Council, informed me that apart from the two affidavits sworn by Dr Falamaki in support of his notice of motion on 18 February and the documents attached to those affidavits, no notice had been given to the Council of the intention to rely upon the voluminous material that Dr Falamaki had identified. Dr Falamaki's response was to indicate that although he had not expressly identified that material as being material upon which he would rely for the purpose of his present application, it was material that had otherwise been made available to the Council either for the purpose of the 2009 applications made to this Court or for the purpose of litigation being conducted by him against the Council in both the Supreme Court and the Federal Court. 30 Dr Falamaki then handed to me an outline of the submissions that he would wish ultimately to make (Exhibit 13). It is sub-headed "The Discovery of Fraud". It has proved to be a useful document, as it identifies the various bases upon which Dr Falamaki seeks to sustain the orders sought and summarises the "facts" or events on which he founds his claims. Importantly, that outline of submissions led Mr Shoebridge to make an application for summary dismissal of the notices of motion on what he called the General Steel basis (a reference to the decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). He accepted, for the purpose of arguing his summary dismissal motion, that those facts asserted in Dr Falamaki's outline of submissions, in so far as they were relevant, should be assumed as facts which Dr Falamaki could prove. 31 On that basis, I acceded to Mr Shoebridge's application for summary dismissal of the notices of motion. That is, I accepted that such of the facts stated in Dr Falamaki's written submission as were relevant to his application to set aside the primary and secondary orders should be assumed as being capable of proof. On the assumption that the facts capable of grounding the submission were capable of proof, the matter for my determination was whether they disclosed a claim which I am satisfied "cannot succeed" (General Steel (ibid) at 129). So to approach the task not only appeared to me to accord with principle but also was a means of proceeding with an application of this kind which gave effect to the provisions of s 56 of the Civil Procedure Act 2005 by facilitating "the just, quick and cheap resolution" of the critical issues raised by Dr Falamaki's notice of motion. 32 That being the course which I explained to Dr Falamaki would be pursued, in the interests of accommodating resolution of his notices of motion within a reasonable and appropriate time to resolve the matter, I proceeded at his request to receive as evidence many of the folders of material which Dr Falamaki had foreshadowed he would wish to tender. This evidence was received, subject to relevance, so as to assist Dr Falamaki in the event that he wished to expand upon any particular fact asserted in his outline of submissions. 33 At the conclusion of the hearing on 9 April, I reserved my decision and indicated that I would deliver judgment at 2.00pm on Wednesday 14 April. When the Court resumed on that day, Dr Falamaki sought leave to file in Court a further notice of motion seeking further time before judgment to make oral submissions as well as seeking a declaration that condition 6 of the building approval had not been breached by him. He was represented at that time, as agent, by one David-Wynn Miller. Mr Miller described himself as "plenipotentiary judge David-Wynn Miller from Milwaukee Wisconsin in the United States. 34 I indicated concern at the delay in delivery of judgment, given that the evidence had closed and submissions appear to have been completed. That said, in deference to Dr Falamaki I agreed to allocate a further two hours for the conclusion of the hearing at 2.00pm on Thursday 15 April. Although the Council objected to any further evidence being raised by dint of the new notice of motion and objected to any new matter being raised, no objection was voiced to my providing the additional time to Dr Falamaki so as to allow Mr Miller to complete submissions on his behalf. 35 I invited Mr Miller to focus the submission that he would give on 15 April upon the rule that Dr Falamaki invoked, namely Pt 36 r 15 and the cases that inform the operation of such a rule. It is appropriate for reasons which I will next make apparent, that I quote from the transcript both my observation to Mr Miller and his response. "HIS HONOUR: At 2 o'clock tomorrow the arguments will conclude, the hearing will conclude within that two hours and can I respectfully remind you that your focus would and should be upon the particular rule that authorises or rather provides to me a discretion to set aside perfected orders. There are a large number of decided cases that relate to that.

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38 There are two general areas of legal discourse enunciating principles relevant to the consideration and determination of the present application. The first is that which I have already identified, namely those principles that pertain to the summary dismissal of an application, as they are articulated in General Steel Industries Inc v Commissioner for Railways (NSW). Caution is required before exercising the power peremptorily to dismiss a claim brought to agitate a complaint that on its face is justiciable. However, as the judgment of Barwick CJ in General Steel makes clear, the exercise of this peremptory jurisdiction is not reserved "for those cases where argument is unnecessary to evoke the futility" of the claim (ibid at 130). His Honour continued, "(a)rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 39 These principles are no less important to be considered when the application to which they are applied is one seeking to have final orders previously made in proceedings set aside for fraud, or, as Dr Falamaki has described it, by reason of the perversion of the course of justice. In Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534 the appellant had filed a statement of claim in the Equity Division of the Supreme Court seeking to set aside a verdict and judgment that had been obtained against her. The ground on which she sought to impugn the judgment against her was fraud. At first instance, the statement of claim was struck out. It was that determination which fell for consideration by the Court of Appeal. The appeal was dismissed. The leading judgment was delivered by Kirby P (Hope and Samuels JJA agreeing). His Honour first considered the approach enunciated in General Steel to the striking out of the appellant's statement of claim. In that context his Honour said this: " The existence of a previous judgment and the need, in the public interest, to bring litigation of issues to a close, may make the task of the court, in an application to strike out a statement of claim, easier to perform. But the test remains the same. Is the case sought to be put "hopeless" or "manifestly groundless"? It is in determining this question that the rules devised to protect finality become relevant." It is with these observations in mind that I consider Dr Falamaki's application. 40 The second area of legal discourse relevant to be considered is that alluded to by Kirby P (as he then was) in the passage from which I have quoted, namely the important public interest in the finality of judgments and orders, together with the jurisprudence that limits the scope for such orders to be set aside. 41 Dr Falamaki's application is expressly founded upon the provisions of Pt 36 r 15 of the Uniform Civil Procedure Rules 2005 (UCPR). That rule relevantly provides as follows - " 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith." 42 The rule needs to be understood not only in the context of the Civil Procedure Act 2005 but also in the context of the Land and Environment Court Act 1979 (the Court Act), s 56 of which provides as follows - " 56 Nature of Decision of the Court Except as provided: (a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Courts jurisdiction, … (b) … a decision of the Court shall be final and conclusive." The present proceedings are in Class 4 of the Court's jurisdiction thereby engaging paragraph (a) of s 56. The reference to Division 2 is a reference to those provisions of the Act which make specific provision for appeals from decisions of the Court. 43 The scope of s 56 was considered in this Court by Lloyd J in Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50. His Honour there said at [1]: "I shall begin with the premise that once a final order or judgment of a court has been perfected, the court's jurisdiction is exhausted and the court no longer possesses the power to vary or set aside its judgment or to further adjudicate on the matter. This principle finds statutory expression in s 56 of the Land and Environment Court Act 1979 - 'a decision of the court is final and conclusive'. The principle of finality dictates that once proceedings, in which all the concerned parties have participated, have concluded in a judgment, they cannot be reopened, subject only to the possibility of appeal as allowed by the Act." I would add to the exception expressed in the last sentence of the quoted paragraph that the general principle of finality must also be subject to the operation of Pt 36 r 15 of the UCPR, however limited the scope for application of that provision may be. 44 It was submitted by Mr Shoebridge that Pt 36 r 15 of the UCPR was the statutory expression of the inherent or implied power of this Court to protect the integrity of its proceedings. I agree with the substance of that submission. The statement of finality in s 56 of the Court Act is fundamental and the truly exceptional power afforded by Pt 36 r 15 must be understood in that context.

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45 The exceptional power to which I have just referred is so described as it accords with the principles pertaining to finality of orders to which I have adverted in [5] of these reasons. The cases to which I have there referred speak of this important principle as one informing the proper administration of justice. They emphasise the very limited basis upon which the discretion afforded by the rule to set aside a judgment and orders should be exercised. To the cases that I have cited in [5] might be added the observations of Basten JA in Deputy Commissioner of Taxation v Meredith (No. 2) [2008] NSWCA 133 at [6] - [7]. 46 In Burrell v The Queen [2008] HCA 34; 82 ALJR 1224 the plurality said: "[15] Secondly, it is important to recognise that underpinning considerations of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta - Ekenaike v Victoria Legal Aid (citation omitted): 'a central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.' That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded. [16] The third consideration of principle which is necessary to state at the outset is related to the second. 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." 47 Their Honours continued: [20] Identifying the formal recording of the order of a superior court of record as the point at which the 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." These observations are most apposite to the present matter given the long history of litigation and the various attempts to disturb the final orders made in the proceedings. 48 As I have earlier indicated, Dr Falamaki's outline of submissions is headed "The Discovery of Fraud". In essence, the opening passage of his submission identifies two matters as founding his complaint. The first is what he refers to as the perversion of the course of justice and the second refers to the availability of new evidence which, if available at the time of hearing leading to the making of the primary and supplementary orders would, so it is claimed, have led to a different result. The first of these claims is analogous to a claim that the judgments were obtained by fraud. Six principles applicable to the determination of such a claim were enunciated by Kirby P in Wentworth v Rogers (No. 5) (supra at 538 - 539). I do not intend to recite each of those principles in these reasons but all of them have been considered by me in determining this matter. However, some of them should specifically be noticed. 49 The principle thirdly noticed by his Honour was that "mere suspicion of fraud" will not be sufficient to secure relief. It must be demonstrated that new evidence going to fraud is so cogent and material "that it is reasonably probable that the action will succeed". 50 The fourth principle noticed by his Honour was that the allegation or even proof of perjury "will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment". The need for admissible evidence demonstrating that the successful party was responsible for the fraud which taints the challenged judgment was also emphasised. 51 In light of the arguments advanced by Dr Falamaki, to which I will next turn, it is appropriate to set out the terms in which his Honour identified the sixth principle. His Honour said (at 539): "Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment." Dr Falamaki's submissions

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52 Dr Falamaki divides his submissions into a number of principal claims and then proceeds to provide details of each. It is appropriate that I refer to each of these claims in the order in which Dr Falamaki addresses them in his written submission, although there is some duplication in the allegations of fact that are made among the various heads upon which he seeks to support his claim. 53 The first principal head upon which the claim is based is headed "Details of the Delay Tactics Adopted by the Council". Beneath this head, Dr Falamaki lists what he refers to as ten "perversions". Preceding the detail of these perversions is an observation by Dr Falamaki that as a result of a "decision" made by Bignold J in this Court on 6 May 1997, it was determined that condition 6 of the building approval was not breached. Condition 6 of the building approval required that "all proposed building works must comply with the recommendations of the geotechnical engineer's report no. SCL5000/1-65 dated 30 October 1995." The report was one prepared by Coffey Partners, a firm of consulting geotechnical engineers. It is in the form of a letter addressed to Dr Falamaki. 54 No judgment of Bignold J was, in fact, delivered. Dr Falamaki tendered a transcript of what occurred before his Honour on 6 May 1997. That transcript revealed that there was listed before the Court on that day an application by the Council for an interlocutory injunction. It was on that occasion that Dr Falamaki was represented by a solicitor. In the course of the hearing there was an exchange between his Honour and the solicitors appearing for the parties as to the terms of the building approval and the Coffey Partners report. In the course of that exchange, his Honour appears to have taken a view of the report and its meaning which differs from that ultimately taken by Talbot J. However, no judgment was necessary as the transcript reveals that in the course of the hearing an undertaking was proffered on behalf of Dr Falamaki that no further building work would be undertaken without notice first being given to the Council. The record from the Court file tendered by Dr Falamaki (Exhibit 5) also reveals that upon that undertaking being given, the hearing of the application for an interlocutory injunction was adjourned, with a note recording that the adjournment was to facilitate a conference between engineers "to seek an engineering solution in the short term to the risk to safety posed by the site in its present form." 55 Notwithstanding what the transcript records as having transpired before Bignold J on 6 May 1997, Dr Falamaki submits that the Council "lost its case". It will be necessary to return to the events of that day when dealing with further grounds upon which Dr Falamaki seeks to found his present claim. 56 As earlier recorded, Dr Falamaki's first generic basis of claim to set aside the primary and supplementary orders is that the Council employed tactics which delayed the construction of his dwelling. The basis for this general allegation is divided among ten 'perversions', for each of which he identifies particular facts. It is convenient to deal with each of these in order.

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'Perversions 1 and 2' - engineering calculations 57 The essence of the Council's case was that the depth to which the site was excavated by Dr Falamaki significantly exceeded that shown on plans that were the subject of the building approval with, as it feared, the prospect of greater site instability. As a result of that perceived instability, it requested that earth loads be calculated so that its consultant engineer, Mr Dennis Thomas, could assess the stability of the structure that had been erected. It was the intention of the Council that the calculation of earthloads, when provided, would be analysed by Mr Thomas in an analytical computer model that he was to prepare. 58 The earthload calculations were provided but it is claimed by Dr Falamaki the model was not, at that time, sufficiently prepared to carry out the analysis. 59 Before the analysis was undertaken the Council requested that further calculations be provided because of what, it claimed, was an omission from those that Dr Falamaki had provided. A geotechnical consultant was retained by Dr Falamaki who confirmed the earthload calculations that had earlier been provided to Mr Thomas. 60 Mr Thomas completed his modelling exercise in July 1997 and opined that on the basis of the calculations provided the structure would fail and be substantially damaged. The late receipt of that information and the necessity for Dr Falamki thereafter to retain his own consultants in order to respond to Mr Thomas is said to have delayed the hearing, which ultimately took place in June 1998 much longer than would have been the case had Mr Thomas provided his evidence in accordance with the time table that had been set for the provision of that evidence. 61 Accepting as I do for the purpose of Dr Falamaki's application that the events occurred as I have described them, they can in no way satisfy the principles applicable to the application of Pt 36, r 15 of the UCPR. These were events that preceded the final hearing of the matter by Talbot J in June 1998 and, if otherwise relevant, were appropriate to be considered at that time. As it happened, although delay is not mentioned in his Honour's judgment ([1998] NSWLEC 130) the evidence of Mr Thomas is discussed at some length. It is evidence which his Honour rejects and he does so in what can only be described as strident terms. 'Perversion No. 3' - false report to WorkCover Authority 62 Having received the analytical results of Mr Thomas's modelling in October 1997, the Council notified the WorkCover Authority of those results. As a consequence, that Authority also issued Dr Falamaki with a notice requiring that he undertake no further work. 63 The legislation administered by the WorkCover Authority played no part in the determination as to whether Dr Falamaki had breached the provisions of the Local Government Act 1993, being the legislation which founded the action brought by the Council and the breach of which founded the decision of Talbot J. His Honour was not required to consider that legislation and, so far as his judgment reveals, he did not do so. If that action was thought to be relevant then it was able to be agitated at the hearing in June 1999. The action of the Council in referring the matter to WorkCover Authority in reliance upon a report prepared by an independent consultant that it had retained cannot sustain an application of the kind that Dr Falamaki now makes.

[27]

'Perversion Nos. 4 and 5' - structural certification 64 Dr Falamaki submits that a component of the deliberate delaying tactics adopted by the Council was to argue that he personally should not be permitted to certify the structural stability of his proposed dwelling. He further argues that when a certificate was obtained from an independent consultant, the Council wrongly submitted that it was not in accordance with the certificate that Talbot J had foreshadowed would be required. The complaint articulated in Dr Falamaki's submission is in substance that by taking these points, the Council occasioned him delay in embarking upon the task of proceeding with his construction. Such a complaint is encapsulated in paragraph 29 of Dr Falamaki's outline of submission where the following appears: "29 The question is why I shouldn't I (sic) be compensated by Council for so many months delay in construction as well as all these allegations." 65 In order to address this aspect of the claim, it is necessary to refer to the June 1998 judgment of Talbot J. That judgment reveals that there were two broad areas of debate agitated before his Honour. The first related to the breach of the building approval in the context of the obligations imposed by condition 6 of that approval. His Honour considered both the architectural plans that had been approved as well as the Coffey report provided to Dr Falamaki on 30 October 1995, being the document referenced in condition 6. His Honour concluded that the work carried out was in breach of condition 6, essentially by reason of the extent to which the site had been excavated. 66 Subsequent to the grant of the building approval, Dr Falamaki had submitted structural drawings which an officer of the Council had approved. It was acknowledged by the Council that the excavation carried out on the site reflected the extent of excavation identified in those structural drawings but, as his Honour held, approval of the structural drawings could not, in law, amount to an amendment of the building approval. Thus he determined that a breach of the approval had occurred. Notwithstanding that finding, the judgment was beneficial to Dr Falamaki in that his Honour exercised his discretion substantially in favour of allowing the building to proceed, subject to appropriate certification of structural stability. 67 The second area of debate in the proceedings was directed to this latter matter, namely structural stability. It was in that context that his Honour rejected the evidence of Mr Thomas and preferred the evidence of Dr Falamaki's expert engineers. 68 Those engineers, both structural and geotechnical, had identified the potential for landslip on the site and the need for there to be measures taken to avoid landslip, particularly having regard to the extent of excavation, and at the same time ensure structural stability. Importantly, his Honour made the following finding: "Having heard all the expert evidence, the Court is satisfied that the structure can be completed in a way which ensures the appropriate loads are supported and the site is made safe from landslip." 69 Having made that finding, his Honour then identified the need for appropriate certification to achieve the objects of his finding. Although Dr Falamaki was himself a well-qualified structural engineer, his Honour indicated that the application would be dismissed if before 30 September 1998, design certification was provided by the consultant structural engineer called by Dr Falamaki at the hearing or "such alternative structural engineer who was acceptable to council, other than Dennis Thomas". The judgment then identifies the form that such a certificate should take. 70 In his judgment delivered on 5 November 1998 ([1998] NSWLEC 277), his Honour dealt both with the request by Dr Falamaki that he personally be permitted to provide the relevant certification and also the complaint that the certificate that had been provided was not sufficient. His Honour determined that an independent certification was required and that the certificate thus far provided was insufficient. 71 The aspects of delay of which Dr Falamaki now complains are therefore matters that were the subject of earlier determination. Indeed, the third judgment of Talbot J delivered on 17 February 1999 ([1999] NSWLEC 23) reflects the fact that the same complaint about delay was aired before his Honour. At [38] of that judgment his Honour said as follows: "There is no evidence to support an allegation by Dr Falamaki that the council thereafter adopted a policy to prolong the matter against the interests of the respondent." The context of that paragraph makes clear that the "allegation" related to events that occurred after 6 May 1997, being the date upon which the Council's application for an interlocutory injunction was adjourned on the basis of an undertaking given by Dr Falamaki. 72 Furthermore, if the delay under this head of complaint was seen to be material to disturbing the primary orders, the opportunity so to contend was available to Dr Falamaki when he appealed to the Court of Appeal from the making of the primary orders. Applications of the present kind cannot be used either to advance an argument not taken on appeal or to use such process as a "backdoor" means of appeal.

[28]

'Perversion No. 6' - breach of condition 6 of the building approval 73 The essence of Dr Falamaki's claim in this regard is that he prepared for the hearing before Talbot J in June 1998 on the basis that his compliance with condition 6 of the building approval was not in issue. He says that he took that position because at the hearing before Bignold J on 6 May 1997, that judge had "determined" that Dr Falamaki was not in breach of any obligations said to flow from the Coffey report. He also relies upon an affidavit sworn on 11 February 2008 (sic) by Bruce Hargreaves, a geotechnical consultant, to which a report of the same date is annexed in which Mr Hargreaves opines that Dr Falamaki did not breach condition 6 of the building approval. His report revealed that he reached this conclusion upon his analysis of the building approval, the approved plans and specifications as well as the various engineering reports provided to the Council in 1997 and 1998. 74 This claim by Dr Falamaki simply cannot be sustained as a basis for setting aside the primary orders. I have already referred to the transcript of proceedings before Bignold J on 6 May 1997. No determination was then made by his Honour as to the absence of breach of condition 6 of the building approval. Even if Dr Falamaki had misunderstood observations made at that time by his Honour, it ought to have been abundantly clear at the hearing before Talbot J, some 13 months later, that breach of condition 6 and the impact which the Coffey report had upon determination of that breach was a critical issue in the proceedings. The judgment of Talbot J of 19 June 1998 demonstrates as much. 75 Moreover, the judgment of Talbot J of 19 June 1998 records that Mr Hargreaves gave evidence at the hearing, having been called to do so by Dr Falamaki. His judgment records that Mr Hargreaves had viewed the approved plans, expressed surprise at the risk classification that Coffey had assigned to the site in its report of 30 October 1995. Mr Hargreaves is recorded as having said that he would "have discouraged such an extensive cut" as that which in fact had been undertaken by Dr Falamaki on the site. 76 In short, nothing in the principal judgment of Talbot J indicates that Dr Falamaki laboured under some misapprehension that breach of condition 6 of the building approval was not an issue in the proceedings. However, even if I accept that Dr Falamaki did, until judgment, labour under that misapprehension, it is reasonable to assume that upon reading the judgment of Talbot J, that misapprehension would have become apparent to Dr Falamaki. 77 There were a number of occasions subsequent to the handing down of that judgment on 19 June 1998 which Dr Falamaki had to expose such misapprehension. First, there were two days of hearing before Talbot J on 3 and 5 November 1998 when the terms of orders were argued. Again on 2 and 3 February 1999 there was a further hearing before the same judge prior to the primary orders being made. Neither of those two further judgments of Talbot J reveal that the point now taken was raised before him. 78 Furthermore, the hearing of Dr Falamaki's appeal to the Court of Appeal did not take place until 22 September 2000. The opportunity to raise the misapprehension as to the basis upon which he had prepared for hearing in June 1998 was then able to be raised. The judgment of the Court of Appeal does not record any such submission being advanced before it. There is no evidence before me that Dr Falamaki did so. 79 In his affidavit and report of 11 February 2008, expressing the opinion that condition 6 of the building approval had not been breached, Mr Hargreaves identifies one of the documents that he considered for the purpose of reaching that conclusion was the specification for the proposed building which was identified by reference in the building approval. Dr Falamaki complains that this document was not tendered before Talbot J and therefore was a document "deliberately withheld" by the Council. 80 Certainly, the specification for the proposed dwelling is not identified as a document that was considered by before Talbot J. However, if it was considered to be relevant to the case sought to be advanced by Dr Falamaki, it was open to him to tender it. He candidly acknowledged that a copy of the specification was at all times in his possession but that its significance to the Council's claim against him and his defence of it did not occur to him until some time "between 2002 and 2004". 81 This circumstance is unfortunate but the rule which Dr Falamaki invokes for the purpose of his present application does not permit judgments to be set aside by reason of inadvertence to tender evidence or ignorance of evidence seen years after the determination to be potentially relevant to an issue agitated at the original hearing. Moreover, the evidence does not persuade me that failure to tender the specification to Talbot J (assuming that to be the case) was part of some deliberate attempt by the Council to secure an improper advantage over Dr Falamaki in seeking to sustain its claim that the building approval had been breached by him. Even if I were to have a suspicion that such a course of conduct was being pursued (and presently I do not) that would not be a basis upon which to take the exceptional course of setting aside the primary orders (Wentworth v Rogers (No. 5) (supra)).

[29]

' Perversion Nos 7 and 8' 82 The Council drafted the primary orders in such a way that Dr Falamaki lost the benefit of the home loan provided to him and was denied the right of a full appeal. 83 Dr Falamaki complains, as part of the conduct of the Council that he seeks to impugn, that draft orders were submitted to Talbot J prior to the primary orders being made in a form that had two consequences. The first was that Dr Falamaki lost the balance of his approved home loan from ANZ Banking Group Limited. The second consequence is, so he claims, that the orders were not final orders with the consequence that his appeal to the Court of Appeal was dismissed as incompetent. 84 There is an obvious and fundamental difficulty with this basis of claim. While draft orders were submitted to Talbot J, the orders made in the form of primary orders were orders of the Court and not of the Council. Clearly, his Honour considered the draft but ultimately made orders that reflected the reasons for decision that he had given in each of the three judgments leading to the making of the primary orders. 85 Dr Falamaki referred me to the decision of Dowd J in the Supreme Court on 2 September 2002 (ANZ Banking Group Limited v Masood Falamaki [2002] NSWSC 847). The facts recited reveal that a home loan had been obtained by Dr Falamaki from the Bank in order to finance the construction of his dwelling on the site. The loan was secured by mortgage on that land. Dr Falamaki was in default under the mortgage by reason of his failure to make repayment instalments. The Bank sued for the amount due under the mortgage and obtained default judgment. Dr Falamaki sought to have the judgment set aside but was unsuccessful in so doing. His complaint was that the bank had failed to advance the funds under the mortgage so as to enable him to comply with remedial works which the Bank had required to be undertaken following the terms of the primary orders coming to the knowledge of the bank. He asserted in those proceedings that the Bank was under a duty to advance the funds which he sought from it. He was unsuccessful in that contention and thus the default judgment against him stood. 86 After identifying a provision of the mortgage which entitled the Bank to call in the loan if there was a "material adverse change" to the security offered, Dowd J said at [25]: " … it is clear, on the evidence, that the property with a Land and Environment Court demolition order affecting it was diminished in value and in any event, that Dr Falamaki had not replied to the Bank's request particularly as set out in the letter of 30 March 1999, to comply with its requirements." It was not the Council's draft orders which had brought about this diminution in value but rather the orders that the Court made following a full hearing of both the claim and Dr Falamaki's defence. 87 The other aspect of this particular 'perversion' is that the draft orders prepared by the Council were in some way framed so as to deny to Dr Falamaki a full appeal to the Court of Appeal from them. He seeks to bolster this complaint by dint of the fact that the Council took the position that the orders made were "final" thus entitling Dr Falamaki to appeal as of right. 88 I have already dealt with the distinction that needs to be drawn between drafts minutes of order handed to the judge for the purpose of assisting in formulating orders and the making of the primary orders by the Court on 17 February 1999. 89 Importantly, the orders made by the Court of Appeal refusing leave and dismissing the appeal as incompetent belie the substance of the reasons given (Falamaki v Wollongong City Council [2001] NSWCA 55; 113 LGERA 207). The leading judgment was delivered by Handley JA (Priestley and Powell JJA agreeing). His Honour succinctly summarised the facts and the history of the litigation before this Court. He next turned to determine whether the primary orders were final orders. Having determined that they were not final, it was recorded that leave to appeal would be required. His Honour then continued at [18]: "The Court treated the appeal as an application for leave and heard full argument so that it could determine the appeal, without a further hearing, if leave were granted." What follows in the judgment then readily demonstrates that Dr Falamaki's submissions were heard and considered as if he was exercising an appeal as of right. 90 The reasons of the Court of Appeal determined that Talbot J was correct to find that Dr Falamaki had acted in breach of the building approval. Although Dr Falamaki obviously argued against the terms of order 2 of the primary orders, the Court of Appeal determined that the discretion of the trial judge had not miscarried in imposing the requirements of that order upon Dr Falamaki. 91 Contrary to his assertion, it is obvious that the matters which Dr Falamaki thought appropriate to agitate on an appeal as of right were fully agitated and determined by the Court of Appeal. It was Dr Falamaki who was the appellant and it was for him to address the question as to whether leave to appeal was required. As it happens, its seems that the Council itself believed that his appeal was as of right for it failed to take the point that the appeal was incompetent. Such a course speaks against conduct on the part of the Council directed to frustrate and delay Dr Falamaki's home building enterprise.

[31]

'Perversion No. 10' - the obtaining of a sequestration order against the estate of Dr Falamaki 95 This complaint is really an aspect of the previous claim which Dr Falamaki makes. It asserts that the taking of proceedings against him to secure a sequestration order was part of "a new policy for vacating the hearing" of his Supreme Court proceedings. 96 A bankruptcy notice had been served by the Council upon Dr Falamaki apparently based upon an unsatisfied order for costs which the Council had obtained against him. It was the Council who was the applicant for the sequestration order made on 8 December 2009. 97 I have to assume that the sequestration order was regularly made by the Federal Magistrates Court. As earlier recorded, Dr Falamaki has exercised his right to appeal from that order to the Federal Court of Australia. It will be for that Court to determine on the evidence before it whether the sequestration order should be set aside. 98 For reasons previously discussed in respect of Dr Falamaki's reliance upon delay in the conduct of the Supreme Court proceedings, a claim alleging that an order was improperly obtained in the Federal Magistrates Court can have no bearing upon whether the question as to whether long standing orders of this Court should be set aside. 'Forensic evidence' revisited 99 In sections B, C and D of his outline of submissions, Dr Falamaki identifies three matters upon which he relies which go to the conduct of the trial before Talbot J. The first matter repeats the claim earlier made that had the written specifications which were the subject of the building approval been tendered at the trial, the Council's application would have been dismissed. 100 I have earlier dealt with the absence of the specification and nothing further need be added in the present context. 101 The second matter to which Dr Falamaki draws attention is a video tape recorded by him at the time at which excavations were carried out on the site. This video tape was not tendered at the hearing before Talbot J as it has only become available recently. When this video tape was made available to Dr Falamaki's consultant, Mr Hargreaves, he opined that on his viewing of it, it appeared that tightly jointed rock was not available at a depth above that to which the excavations were in fact carried out. 102 There are good reasons why this evidence can offer no support to Dr Falamaki's application. First, the control of the video tape was exclusively in the hands of Dr Falamaki. If it was thought to be relevant at the hearing before Talbot J, then it was for him and him alone to seek to use it. It would, in any event, have been only confirmatory of evidence that could properly have been given at the hearing of what was seen at the time of excavation. 103 Secondly, the evidence could only have been relevant to the second issue which was considered by Talbot J, namely the question of both structural and site stability. However necessary it may have been from a structural view point to excavate as Dr Falamaki did, it was the extent or depth of that excavation which constituted the breach of the building approval which Talbot J found. It was acknowledged in the judgment that the depth of excavation was to the level indicated in the structural drawings but they did not, in law, have the legal effect of amending the building approval. 104 The third aspect of the claim under this head is directed to the date upon which the structural columns were first erected on the site. Nothing of relevance turns on the debate as to the precise date upon which structural columns were erected as there is no contest as to the fact that they were so erected and in place at the time at which the principal judgment was delivered in June 1998.

[32]

No landslide for the past 13 years 105 Dr Falamaki claims comfort in the fact that there has been no landslide for the past 13 years with two consequences. First, that fact undermines evidence given before Talbot J and secondly impugns the motives of Council officers, including those of Dennis Charles Williams whom Dr Falamaki accuses of giving false evidence. 106 While it may be the case that a landslide has not occurred for the past 13 years, that fact cannot impugn the evidence given before Talbot J. The experts then called, including Mr Hargreaves, for Dr Falamaki, expressed concern about site stability. The fact that their concerns have not materialised into a landslide event in no way affects that evidence. 107 Moreover, the finding of Pain J in her judgment of 22 May 2009 ([2009] NSWLEC 80) does not support an implicit assertion from Dr Falamaki that there is no instability demonstrated to have occurred. At [15] of her judgment her Honour indicated that Mr Hargreaves and Mr Stone, the Council's geotechnical consultant, had agreed that the stability of the soil at the site had been compromised by the depth of cut undertaken on the site in 1996 and this had increased the risk of instability leading to landslip. They acknowledged that the site could be made safe by appropriate works but they also agreed that fretting and erosion had occurred at the site over the years causing the soil progressively to deteriorate. Her Honour continued to summarise their evidence thus: "This in turn has resulted in neighbouring soil slipping into the excavation and caused the excavation to encroach into adjoining properties. The land on the southern boundary is presently steralised from development as a result." 108 Dr Falamaki alleges that there is inconsistency between a report provided to the Council by Mr Williams in which he stated that no landslip had been observed since 1997 and a subsequent "statement" for which he says Mr Williams is responsible, namely submissions prepared for this Court on 11 May 2009. Based upon the evidence which Pain J received and summarised, it would appear that Dr Falamaki fails to appreciate the significance of the difference between a landslip on the one hand and instability of the slope occasioned by excavation on the other. In short, the evidence of Dr Falamaki's own consultant, Mr Hargreaves, does not support the contention which he makes in this regard. 109 Nothing in the material which Dr Falamaki has provided supports an inference that any "evidence" given by Mr Williams caused any of the judgments or orders given and made in this Court to miscarry. While affidavits were sworn by Mr Williams, none of the judgments record that those affidavits were read and certainly none of the judgments record any evidence given otherwise by Mr Williams. Even if, as is alleged by Dr Falamaki, Mr Williams perjured himself in those affidavits ( and I have no rational basis upon which to conclude that he did), they played no part in the formulation of judgments delivered in this Court. They cannot be used, therefore, to impugn the judgments in the manner in which Dr Falamaki seeks to do. The fact that Mr Williams may have been the officer of the Council responsible for the general running of this litigation cannot, of itself, constitute any further basis upon which to set aside the judgments.

[33]

'New Evidence' 110 In a further claim that Talbot J would not have made the orders that he did on 17 February 1999, Dr Falamaki again refers to the specification approved as part of the building approval, the video tape which Dr Falamaki took at the time of excavation and the opinion expressed by Mr Hargreaves in reports on 11 February 2008 and 23 June 2009 based on those additional materials. I have already addressed Dr Falamaki's claims in respect of each of those items. Even in conjunction with other matters Dr Falamaki raises, they provide no basis upon which to set aside the primary orders. 111 Under this head Dr Falamaki refers again to the evidence of Council's structural engineering consultant, Mr Dennis Thomas. It is referred to by Dr Falamaki as "false evidence". Even if that be a correct description of it, the rejection of it by Talbot J means that it played no part in the determination and formulation of orders made by his Honour. For reasons earlier indicated, it founds no basis for impugning those orders. 112 Dr Falamaki then identified as being false, the evidence given by Mr Welham who was the author of the Coffey Partners report of 30 October 1995 and who gave evidence before Talbot J. The "falsity" of the evidence is said to be his opinion that suitable materials to found footings for the proposed dwelling were likely to be found at 2.9m whereas the video tape taken by Dr Falamaki and "only recently available" showed otherwise - at least that is the opinion of Mr Hargreaves as expressed in a report by him on 23 June 2009. 113 The premise upon which Dr Falamaki seeks to make the assertion of false evidence on the part of Mr Welham is not well founded. Mr Welham expressed his opinion based on bore hole logs and which was explained by him before Talbot J. The fact that the recently produced video tape may, according to Mr Hargreaves interpretation of it, demonstrates a location of what was considered to be the foundation material identified by Mr Welham does not mean that his evidence was false. If shown the video tape, which obviously did not occur, he might well interpret it differently. 114 It is further claimed that "false evidence" was given by Mr D R Sherson, another geotechnical and structural consultant retained by the Council for the purpose of the proceedings heard by Pain J on 22 May 2009. A claim that it was false evidence and in some way infected the judgment of Pain J does not stand scrutiny. 115 In 1987 Dr Sherson had apparently expressed an opinion in respect of the site, to the effect that it was stable so as to accommodate the erection of a structure. In giving his evidence before Pain J, he expressed concern as to the stability of the site and the existing structure upon it. He had initially believed that his 1987 report was in respect of a different site but when the detail of the report was drawn to his attention, he acknowledged that it related to the subject site. 116 A challenge to the credit of Mr Sherson is recorded as having been made before Pain J. That attack was based upon submissions that the opinion being expressed before her Honour was in conflict with the opinion that he expressed in 1987. Her Honour dealt with that argument thus at [44]: " His conclusion in 1987 that shales in the area are stable and free from any landslip movement does not mean he cannot form a view in 2009 that there are potential landslip issues on the site because of the excavation work undertaken there by Dr Falamaki. Circumstances have clearly changed and the site is now in a different condition to ten years ago." The question of Mr Sherson's credit having been so determined, there is no basis upon which I can determine otherwise. 117 Dr Falamaki's final complaint under this head is repetitive of what he has already submitted under other heads of claim. In short, he relies upon the misapprehension under which he approached the hearing before Talbot J by reason of the observations made by Bignold J in May 1997; he relies upon the "false evidence" claims and the consequences that befell him as a result. I have already dealt with those matters and do not need to say anything further about them.

[35]

121 There are two subtexts which emerge from the submissions of Dr Falamaki in relation to the judgments of both Talbot J and Pain J which need to be noticed. The first is a repeated claim of bias by Talbot J by reason of his retainer by the Council before taking judicial appointment. The question of bias was raised before Talbot J and dealt with in the judgment delivered by him on 17 February 1999 [1999] NSWLEC 23 at [16] - [22]. His Honour rejected any claim for reasonable apprehension of bias. 122 Dr Falamaki also raised the apprehended bias of Talbot J in his appeal to the Court of Appeal. That challenge was unsuccessful ([2001] NSWCA 55 at [31]). In the context of a determination of that question, no support is provided for Dr Falamaki's present application by repetition of that claim. 123 In responding to the submission made by the Council, Dr Falamaki seeks to assert that by reason of observations made by Pain J at the outset of the hearing before her on 13 May 2009, he felt constrained to amend the notice of motion that he had then initially filed. It will be recalled from my earlier recitation of the events surrounding the notice of motion filed on 13 February 2009 that it sought an order to set aside the order made for demolition and other orders, not dissimilar in kind, to those which he now seeks. They are recorded in her Honour's judgment (Wollongong City Council v Falamaki (No. 3) [2009] NSWLEC 80 at [4]). However, the judgment also records that on the first day of the hearing alternate orders were sought when Dr Falamaki was represented by a solicitor. It was upon the amended notice of motion that her Honour proceeded to decide the matter and make the orders that she did. 124 Dr Falamaki is bound by the manner in which the proceedings were conducted before her Honour, including the course taken by his solicitor. He does not adduce any evidence to indicate that the solicitor acted beyond his instructions. Thus, Dr Falamaki's present application gains no purchase by lamenting the course that was taken in those proceedings. Conclusions and orders

[36]

125 None of the matters raised by Dr Falamaki either individually or collectively can sustain the drastic step of setting aside the primary and supplementary orders. For the reasons that I have explained, none of the matters relied upon by Dr Falamaki demonstrate the "special" or "exceptional" circumstances necessary to be demonstrated in order to sustain the application that he makes. The factual basis upon which he seeks to sustain his claim demonstrates a claim that cannot succeed. So to do would be contrary to the finality injunction found in s 56 of the Court Act that, appeal rights aside, decisions of the Court are "final and conclusive". 126 Moreover, the discretion available under Pt 36 r 15 is one to be exercised with considerable caution given the primacy of the statutory provision speaking of the finality of judgments and orders. None of the circumstances relied upon by Dr Falamaki identify irregularity in the manner in which the proceedings were conducted, nor do they indicate any illegality in contravention of any rules. They certainly do not demonstrate, even at a prima facie level, judgments or orders that have been obtained against good faith. They do not demonstrate misconduct or dishonourable conduct of the Council such that it would be seen as undermining the authority of either the primary or supplementary orders or the judgments behind them (Kendell v Carnegie [2006] NSWCA 302; 68 NSWLR 193). 127 I have considered Dr Falamaki's claims at some length in deference to his general circumstances and particularly having regard to his position as a self represented litigant. It is probable that the determination by Sheahan J on 10 July 2009 effectively disposed of Dr Falamaki's present application. However, I have not determined the matter on that basis and I was not invited so to do by the Council. 128 In addition to the matters to which I have referred, the exercise of my discretion to dismiss Dr Falamaki's notices of motion is founded upon the following further matters:

Wollongong City Council v Dr Masood Falamaki

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