Woollahra Municipal Council v Ferella [2005] NSWLEC 402 | Case summary

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a motion by the respondent, Mr Angelo Ferella, to vary orders made by the Court by consent on 16 April 2003. 2 By those orders the Court noted an undertaking given by Mr Ferella that he would undertake certain work at a property which included backfilling a void under a slab of a building in the course of construction on the land. The consent orders noting the undertaking were duly entered and sealed on 16 April 2003. 3 The question which arises is whether the Court has jurisdiction to now vary the orders in the manner sought by Mr Ferella. He seeks to be released from the undertaking to backfill the area under the slab. His reasons for doing so are that the subject backfilling works would be "difficult to carry out and costly", and it is said that an alternative program of works would achieve the intent and effect sought to be achieved; that is, by closing the void under the building and rendering the space unusable. 4 Where a judgment has been perfected and orders of the court have been drawn up, signed and sealed, it is not generally open for the court to subsequently review or alter its judgment. Reference need only be made to the judgement of Barwick CJ in the well-known case of Bailey v Marinoff (1971) 125 CLR 529 (at 530): 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 true 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. 5 In the same case, it was held by Menzies J (at 531) that the New South Wales Court of Appeal lacked any inherent jurisdiction to make an order in litigation which without any error or lack of jurisdiction has been regularly concluded and is no longer before the Court. 6 As was recognised in Bailey v Marinoff, however, the principal stated there may be subject to any specific and relevant statutory provision. Part 15 r 9 of the Land and Environment Court Rules 1996 (the "L&EC Rules') is such a provision, but is limited to the circumstances set out in the rule. It is conceded that the circumstances set out in the rule do not apply in the present case. 7 In DJL v Central Authority (2000) 201 CLR 226, the High Court, re-affirming Bailey v Marinoff, held that the Full Court of the Family Court of Australia being a statutory court had no power either inherent or implied to re-open perfected orders disposing of proceedings. In Starray Pty Limited v Sydney City Council (2001) 112 LGERA 438, Bignold J followed and applied DJL v Central Authority, holding that the position of the Family Court with respect to the absence of inherent jurisdictional power and the lack of any expressed or implied power applied with equal force to this Court, it too being a statutory creation. 8 Bignold J went on to hold that several earlier decisions of this Court which have held that the Court is vested with inherent power to re-open perfected judgments or orders can no longer be regarded as correctly stating the law. 9 In the present case however, Mr S J Phillips, who appears for Mr Ferella, submits that Starray v Sydney City Council should not be followed. Reliance is placed on, firstly, National Parks & Wildlife Service v Stables Perisher (1990) 20 NSWLR 573, in particular (at 581) where Gleeson CJ held that a court has an inherent or implied power to do all that it is necessary to enable it to act effectively within its jurisdiction, applying Connelly v Director of Public Prosecutions (1964) AC 1251 at 1301. 10 Reliance is also placed on Logwon Pty Limited v Warringah Shire Council (1993) 22 NSWLR 113 in which it was held by Sheller JA that the equivalent of the present Land and Environment Court rule, then Pt 13 r 9, is not a rule which limited the jurisdiction of the Land and Environment Court and that a compromise may be void or voidable for other reasons. 11 Reference is also made to Phillips v Walsh (1990) 20 NSWLR 206 in which McLelland J said (at 209-210): There are a number of exceptions and qualifications to this principle [that is the principle in Bailey v Marinoff ], but none that has any relevance to the present application, unless it be that subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstance or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the statement of claim or which is substantially different to that given by the final order: … 12 McLelland J was referring to the reservation of general liberty to apply which is implied in all orders made in Equity: The effect of the reservation [of liberty to apply] is to permit persons having an interest under it to apply to the court touching such interest in a summary way, without the necessity of again setting the cause down. The omission of the reservation does not, however, preclude the parties from applying to the court, for all orders carry with them, in gremio , liberty to apply, if necessary, to the court, but only with regard to matters arising in the carrying into effect of the judgment. Daniell's Chancery Practice (8th ed, (1914) vol 1, p 687).

The reservation of liberty to apply does not, however, entitle anyone to come and ask that the order itself be varied: Cristel v Cristel [1951] 2 KB 725. 13 I accept that Pt 15 r 9 of the L&EC Rules is not a complete or exclusive statement of the Court's power to vary or modify a perfected judgment. The question then is whether the Court has an inherent or implied power recognised by the common law to vary or alter the judgment in the circumstances of the present case. 14 In Logwon, Sheller JA helpfully referred to a judgment of Brennan J in Permanent Trustee Co (Canberra) Limited v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Brennan J sitting as the Supreme Court of the Australian Capital Territory, gathered the exceptions to the general rule; that is, the general rule described in Bailey v Marinoff into three classes. First, those which are founded upon the inherent jurisdiction of the Court to ensure that its procedures do not effect injustice; second, those which are authorised by statute; and third, those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable. 15 In the present case, the amendment or variation is not one which is authorised by statute, in this case Pt 15 r 9 of the L&EC Rules. Neither in the present case is this one where the judgment was obtained by fraud or by an agreement which is either void or voidable. Neither does it appear that in this case the judgment was one which effects an injustice. The judgment and the undertaking were entered into by a party with his eyes open knowing what he was doing at the time. In short, I do not think that this case falls with any of the three classes of exception to the rule in Bailey v Marinoff indentified by Brennan J. There is no doubt that where an undertaking is accepted and orders are made the undertaking has the same effect as an order and the Court will not interfere with an undertaking given in such circumstances: see Marsden v Marsden (1972) 2 All ER 1162. 16 It follows that I am not prepared to depart from what has been held by Bignold J in Starray. I must therefore dismiss the notice of motion. CLAY: I seek costs of this motion and costs of the motion for security for costs. I would have read the affidavit prepared in support of that motion for security on the substantive question on the respondent's motion going to discretion in any event, it deposing to the efforts made to recover costs which remain unpaid from proceedings two years ago. HIS HONOUR: There's a simple answer to that Mr Clay. If there is an order for costs that is outstanding then you can simply apply to stay any further proceedings until those costs are paid and the Court will grant a stay. The costs will be limited to the costs of the respondent's motion to vary the orders. 17 The formal orders are:

Woollahra Municipal Council v Ferella

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