Young v King

Land and Environment Court (NSW)|2009-03-26|Before: Sheahan J, McClellan J, Cowdroy J

CITATION : Young v King (No.2) [2009] NSWLEC 125 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES : FIRST RESPONDENT Brendan King

SECOND RESPONDENT Kristina King

LEGISLATION CITED: Civil Procedure Act 2005 Land and Environment Court Act 1979

Deputy Commissioiner of Taxation v Meredith (No.2) [2008] NSWCA 133 Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143 Lidoframe Pty Ltd (as Trustee for Logan Cypress & Framing Trust) v State of New South Wales [2006] NSWSC 1262 CASES CITED: Michales v Dimoski [2007] NSWLEC 443 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50 Sutherland Shire Council v Sawyer 109 LGERA 409; [2000] NSWLEC 162 Wexford Pty Ltd v Praveen Meckraj Doolub [2008] NSWLEC 952 Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, [2005] NSWLEC 402

DATES OF HEARING: 26 March 2009, 12 May 2009, 26 May 2009, 9 June 2009, 7 July 2009, 23 July 2009, 29 July 2009

APPLICANT Mr R Newell SOLICITORS L C Muriniti & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright SOLICITORS Terence Stern

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 His Honour: The purposes of this judgment are (1) to provide reasons for an order I propose to make referring the substantive dispute between the parties for external mediation, and (2) to summarise what I know of the matter in order to assist the mediator. 2 This is essentially - or, at least, it started out as - a dispute between two neighbours about relatively routine or minor drainage works, but, if this court has ever seen a case of civil litigation gone seriously wrong, this would be it. Final orders were made in March 2004 (by McClellan J), but there are four extant Notices of Motion now before the court, more than five years later. 3 Related proceedings between the parties are presently also running in the District Court. Warringah Council is a party to those District Court proceedings, but not to these Land and Environment Court proceedings. In addition, this court has been told that Mrs Young intends separately suing her former legal representatives over what has occurred. 4 I have declined to hear and determine the Notices of Motion, insisting that the legal representatives try to reach some agreement on a dispute resolution process which can be accepted by the parties and sanctioned by the court. Both sides contend that they have at various stages sought to initiate a mediation process, without success, and, in September 2003, before the court had the statutory power to order a mediation, Cowdroy J ordered a settlement conference which did not succeed. 5 Section 22 of the Land and Environment Court Act 1997 ("LEC Act") clearly imposes on this court an absolute duty, in every matter before it, to resolve "completely and finally … all matters in controversy between the parties", and to avoid "all multiplicity of proceedings concerning any of those matters". It is my considered view that now reopening these class 4 proceedings so that the parties can simply reagitate the original dispute in a further adversarial hearing will not achieve that s 22 objective in respect of the "matters in controversy" between these parties. 6 The present parties to these apparently completed proceedings have appeared before me on seven occasions this year, and the court has on those occasions expressed a strong inclination to invoke its power under Part 4 of the Civil Procedure Act 2005 ("CP Act") to refer the proceedings to a mediator, with or without the parties' consent, pursuant to s 26. Part 4 applies to class 4 proceedings in this court (CP Act s 4(1) and Schedule 1). Section 26(1) relevantly provides that: "If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned." 7 Section 27 (also in Part 4) imposes a duty on the parties "to participate, in good faith, in the mediation" so ordered. In the absence of any specific rules or practice directions in this court regarding referral of matters to mediation, I have had regard to the Supreme Court's "Practice Note SC Gen 6", published on 17 August 2005. Paragraph 7 of that Practice Note makes clear that "the parties themselves may, at any time, agree to mediation, nominate a mediator and request the court to make appropriate orders". Under par 15, the person to be appointed as a mediator must consent to being so appointed, and agree to comply with both Part 4 of the CP Act and of the Practice Note. Paragraph 18 suggests three alternative forms of order, and par 19 sets out a "Joint Protocol" regulating (1) the appointment of a mediator selected by the court in the absence of an agreed nomination (see also pars 10 and 23-30), and (2) the provision of basic referral information, at the instigation of the plaintiff/applicant, but by the Registrar. Section 28 of the CP Act regulates the payment of the costs of the mediation either by agreement among the parties or by order of the court. 8 The powers conferred on the courts by Part 4 of the CP Act are quite straightforward, and are frequently exercised, for example, in the Supreme Court. The preference, if not the usual course, is for the Judge to make a simple order referring the matter to a named mediator, outline some of the circumstances which make the order appropriate, and grant liberty to apply, e.g. Lidoframe Pty Ltd (as Trustee for Logan Cypress & Framing Trust) v State of New South Wales. [2006] NSWSC 1262. 9 The Part 4 option had little appeal for the respondents while the applicant maintained a charge of contempt of court against them, but she has indicated to the court (on and since 12 May this year) that she will withdraw the contempt prayers from among the relief sought in her Notices of Motion currently before the court. 10 Understandably, the respondents would prefer the contempt proceedings to be formally disposed of (by consent and/or withdrawal). They have also sought, without success, an undertaking from the applicant, if not to bring no further charges, at least to the effect that any discussions, correspondence, or expert report(s) involved in any settlement negotiations will not be used by her as the basis for any further contempt proceedings. As Mr Wright, counsel for the respondents, said (T26.3.09, p5, L25-29): "it is very expensive to prosecute contempt and is not conducive to the settlement of a dispute where one party might otherwise be able to enter into free and frank discussions about resolution if it did not have hanging over it or them the risk of conviction and punishment for contempt ". 11 I make it absolutely clear that the question of contempt is not referred to mediation. 12 In their May 2008 exchange of correspondence (fols 71-78 of Mr Stern's affidavit dated 20.2.09) the respective current solicitors for the parties (Mr Muriniti for the applicant, and Mr Stern for the respondents) made some tentative suggestions in either direction as to a "practical approach … to resolve … the existing drainage problem" which Mrs Young says confronts her because of the Kings' actions. Mr Stern said (fol 72): " The District Court proceedings essentially seek relief for matters that were already the subject of the Land and Environment Court proceedings. As such, your client is now precluded by the principle of res judicata from re-agitating those issues in the District Court (an alternative way of expressing this position is that your client's rights merged in the orders of 17 February 2004 (as amended on 19 February 2004)). In my opinion, the District Court proceedings should be struck out or alternatively permanently stayed. There is no reason to just have these proceedings temporarily stayed as the inherent flaw in the commencement of these proceedings will not be remedied by any possible orders or action that could be taken in the Land and Environment Court. I, therefore, recommend that the District Court proceedings be dismissed (with costs) and that the parties meet (on a without prejudice basis) to see if they can resolve the impasse that has developed in respect of the orders made in the Land and Environment Court". 13 On 17 November 2008, Mr Stern wrote a lengthy, detailed and open letter of offer to Mr Muriniti, "as a means of resolving finally this long running dispute". 14 The contents of those letters of May and November 2008 have been the subject of further close consideration in recent times, and agreement to an order for mediation has been reached. 15 The parties have also agreed upon a mediator to whom the matter can be referred (the Hon Mahla Liane Pearlman AO, a former Chief Judge of this court), but there remains much argument about the detailed arrangements, for example, whether independent experts should be engaged to assist in the process, and what materials should be provided to her. The court's preference is to formally refer the matter to the mediator and allow her to direct the process in consultation with the parties. 16 Warringah Council is a key player in finding a resolution of the dispute between the parties, and has indicated that it: (1) is prepared to be joined as a party if these proceedings are reopened, and, happily,

(2) is willing to participate in the suggested mediation, without being formally joined as a party. 17 It is crucial that the Council be at the table. Obviously the Council's files could be a fruitful source of useful material. It is extremely unfortunate, given the ongoing allegations of "illegal work", that the Council was not a party to these proceedings in 2003-04, but as serious questions have been raised about Council's consideration of the matter, nothing further should occur in its absence. The parties intend to explore with Council the prospect of its contributing to the costs of the mediation. 18 Obviously the huge costs already incurred on both sides of these proceedings so far will need to be considered at some stage during their finalisation. That was one issue which convinced me that no resolution could be achieved without expert assistance from a mediator and the involvement of the Council. 19 The mediator will eventually indicate what materials she may wish to see, but it is also appropriate that I provide some background to my decision to make a s 26 order, in order that she will know something of the history and subject matter at the outset of the mediation process. 20 What follows was gleaned from the court's 2004 judgment, and from such information available in the court file, to which the parties have so far consented to my having recourse. It does not amount to the making of any findings on the merits, as probably not all the relevant competing evidence has been placed before me, and none of what is before me has yet been properly tested. It is simply an attempt to summarise some issues and allegations known to me, in order to assist the mediator. Relevant History in more detail I The evolution of the dispute in 2001-03 21 Mrs Young lives at No.35 and the Kings at No.37 Calca Avenue, Forestville, with No.35 being generally uphill of No.37. Both are residential cottages on a sandstone substrate, and it is said (in McClellan J's judgment) that in heavy rainfall a high water table is evident in that area. 22 The materials suggested that in early July 2001 Mrs Young noticed that the Kings were excavating on their side of the common boundary, taking their ground level to approximately 90cm below hers, and that in mid-August 2001 she noticed piping being installed in further excavation. Concerned that the work (apparently involving establishment of a granny flat and an associated pathway on levelled ground nearby, closer to No.35) may not have had Council's approval, and concerned also about possible impacts on her property, she complained to Council and wrote to the Kings. In November 2001 the Kings removed the boundary fence and in January 2002 laid foundations for a retaining wall. Council apparently granted development consent for the relevant works, ultimately, on 5 February 2002. Condition 20 of that consent required suitable drainage to be installed behind the proposed retaining wall. 23 Mrs Young appears to have alleged that in September 2002 the retaining wall as it then stood was taken down to one layer of blocks on concrete foundations, and that those blocks and foundations were then concreted over to create a "false foundation", and make the retaining wall on the boundary look like a "four row" wall when it was really a "six row" wall. In October 2002 a new dividing fence was erected, and she says that the foundations were further obscured by the subsequent laying of a concrete path. She is reported to have a residual concern that her property is not properly shored up, and that there is some evidence of cracking. 24 It is suggested that the survey information provided to Council by the respondents was false, and that there could well be serious drainage problems, as water "dammed" on No.37 by the retaining wall or the granny flat, should gravitate to Calca Avenue, rather than to and over one or more properties in Starkey Street directly behind No.37. There is also reference to a suspicion that the stormwater gathered on No.37 might be currently discharged to the sewer. All of this could prove to be a problem for the whole neighbourhood, and so a matter for the Council, as the Kings' works may have disturbed the subdivision drainage system as it was originally designed. 25 The Kings have asserted that they merely "trimmed" the foundations to remove an encroachment on Mrs Young's property, and they have also complained that illegal fencing, faulty gutters, and illegal drainage for the stormwater on Mrs Young's property is adversely affecting their property. 26 Mrs Young made a series of complaints to Council and apparently repeated them in a letter dated 10 September 2002. Council responded in detail on 5 November 2002 (her letter is Exhibit "N" and Council's is Exhibit "T" to her affidavit of 10 October 2008 at tab 3 of Exhibit Y1 before me). She attached to her September 2002 letter a report from one of her engineering experts, John Davies, dated 10 August 2002. II The LEC proceedings in 2003-04 27 Mrs Young commenced these class 4 proceedings on 14 April 2003 - she sought 15 declarations, 9 injunctions and other relief, including an award of damages. 28 Her Points of Claim pleaded trespass, and various illegalities affecting the Kings' works. Three items, in particular, engaged McClellan J's attention when the case came on for hearing before him on 16 February 2004 - construction of a footing on the southern wall, construction of a retaining wall on the southern boundary, and underpinning of the footings of the Kings house. 29 The Kings' Points of Defence admitted constructing footings for a "fence" (not a retaining wall) but claimed it was "exempt" development. 30 McClellan J noted that the Kings' DA plan identified the structure as a retaining wall, and that only a retaining wall of up to 900mm above or below ground level and 900mm off the boundary would be "exempt" development. Given that the wall/fence was on the boundary, His Honour concluded that the defence pleaded by the Kings was unsustainable, and drew similar conclusions in regard to the other two particular Points of Claim and the Kings' purported defences. As the Points of Defence denied that any development the respondents carried out was unlawful, His Honour concluded that their defence as a whole could not be sustained, and, at the hearing, the then solicitor for the Kings eventually conceded that all three of those elements of work were carried out without consent (see His Honour's judgment [10]-[26]). 31 The expert witnesses conferred and agreed that the drainage works as installed at that time were inadequate to protect Mrs Young's property. They agreed on the works which needed to be done - reconstruction of the drainage for the retaining wall to ensure that the capacity of the drains downstream from the wall itself is adequate to dispose of heavy flows. A cost in the order of $1,000 was estimated ([26]) and a joint report was prepared, becoming Exhibit A before McClellan J. 32 His Honour delivered his judgment on 19 February 2004 after a four day hearing - see [2004] NSWLEC 93. 33 His Honour noted (at [29]) that the respondents' engineer, Mr Robert Springett: " held to the view that because a drain had been installed at a lower level than the retaining wall and adjacent to the underpinning of the main house structure, the sub-surface water would have been drawn down, and the inadequate drain at the high level behind the retaining wall was of no consequence". 34 The applicant's expert, Dr Perrens, had a different view. McClellan J noted (at [30]) that: " Although he accepts that the construction of the drain adjacent to the underpinning would have potentially beneficially altered the ground water movement on Mrs Young's property, he was nevertheless of the view that the construction of the footing of the retaining wall with inadequate drainage would have the consequence that water would be likely to back up behind the footing and rise to the surface, with the potential to cause damage to Mrs Young's house". 35 McClellan J found Mr Springett "not a satisfactory witness" (at [32]) and preferred Dr Perrens' evidence (see [31]-[33]). His Honour was satisfied (at [34]) that: "the works which the respondents have agreed to undertake were made necessary by reason of the construction of the retaining wall which, it has been conceded, was constructed without consent. The retaining wall operates to interrupt the flow of sub-surface water and, accordingly, unless adequately drained, the problems which Dr Perrens identified are likely to occur." 36 Later in his judgment, when examining the historical background of the case to decide the question of costs, McClellan J referred to a video taken during construction, and commented (at [44]): " That video apparently confirms the presence of a drain adjacent to the underpinning which has a beneficial impact upon the sub-surface waters. However, as I have indicated, I am satisfied that although that drain has a benefit, the footing which has been constructed with inadequate drainage at a higher level is likely to have a detrimental effect." 37 The following "formal orders" were made by McClellan J at the end of his judgment: 1. I note the undertaking of the respondents provided in the document which I have initialled and dated and placed with the papers. 2. By consent of the parties, the proceedings are dismissed . 3. I order the respondents to pay the applicant's costs. 4. I reserve liberty to any party to apply generally." (emphasis added) 38 The formal orders as subsequently issued by the Registrar were in the following terms:

"The Court orders that: 1. Application is dismissed. 2. The respondents to pay the applicant's costs. 3. Liberty to apply generally. 4. Note the undertaking of the respondents." 39 The respondents' undertaking, dated 19 February 2004, was in the following terms: "The Respondents undertake to the Court to: 1. Carry out the works identified in Exhibit A within 21 days. 2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 & 37 Calca Crescent, that wall to include the drainage works referred to in clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking. The Respondents are to make all reasonable endeavours to progress the development application through Council. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council."

40 On 8 March 2004, His Honour, on the respondents' motion, but with Mrs Young's consent, made the following further orders (as recorded in typewritten "Associate's Notes" contained in the archived court file, there being no note of them on the court file cover): " 1. Undertaking given to the court is, with the leave of the court, withdrawn. 2. Note Respondents' undertaking to the court in accordance with the amended form of undertaking which I have today initialled and dated. 3. Reserve liberty to either party to apply ". (emphasis added) 41 The "amended undertaking", dated by His Honour "8 March 2004", was in the following terms: " The Respondents undertake to the Court to: 1. Carry out the works identified in Exhibit A within 21 days of granting of development consent by Council or by the Court . 2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 and 37 Calca Crescent, that wall to include the drainage works referred to in Clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking. 3. The respondents are to make all reasonable endeavours to progress the development application through Council. 4. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council or by the Court ." (emphasis added) 42 There was no change made to Exhibit A. The original exhibit was authored by one geotechnical expert involved in the hearing, Mr Warwick Davies, and is among the 2004 court papers. The parties are attempting to agree upon a legible transcription of it, but a photocopy of the handwritten original exhibit is attached to these reasons. 43 It is submitted on Mrs Young's part that the (amended) undertaking was acceptable to her as there had been a representation made to the court that there was entirely adequate drainage on the Kings' side of the boundary. 44 The effect of the March 2004 variation of the undertaking was to require Mr & Mrs King to seek development consent from Warringah Shire Council in order for the required works to be carried out, rather than their being simply required to carry out certain works. It is not now possible to obtain a transcript of the proceedings before McClellan J on 8 March 2004, but it has been suggested in argument recently that the addition of the words "or by the Court" in pars 1 and 4 of the amended undertaking may have been on the initiative of His Honour, he having taken into account the possible complication of Council's refusing consent and the matter of the works coming back before this court by way of, normally, an appeal in class 1 of this court's jurisdiction, or, perhaps, a further exercise of the "liberty to apply" which His Honour had granted. III The DA is made and refused 2004-06 45 On 8 March 2004 the Kings lodged a DA as envisaged by the undertaking, and, as earlier noted, Council eventually refused it on 30 June 2006. At least one ground for that refusal appears to have been Mrs Young's refusal to grant her consent to it - Mrs Young's then solicitor (Jason Hones) had lodged with Council on her behalf on 2 April 2004 a detailed objection to DA 2004.282A. 46 Mrs Young says she was neither warned that she would be asked to consent, nor asked to do so, but would do so if the details were correct. Her case is that (1) the depth of the retaining wall was misrepresented to the Council, and that (2) works should probably not be required on her land. She says she objected to the Kings' post-judgment DA because of (3) its failure to fulfil the clearly expressed requirements which led to her agreeing to the dismissal of her proceedings, and (4) the technical concerns of her experts. 47 No appeal was lodged with this court, nor was there any effort to exercise the "liberty to apply", until 2008, in respect of the failure to obtain development consent. IV The problem apparently persists 48 Council having refused the DA, the drainage problem at the heart of the original proceedings apparently remains unresolved to this day. 49 As Mrs Young's present solicitor (Mr Muriniti) said on 5 May 2008, before contempt was charged (see fols 75-76 of Stern affidavit 20.2.09): (i) (at fol 75) " It is our client's position that given your clients' failure to adequately address her concerns and the concerns of her expert, Dr Perrens, her reluctance to provide her consent for work to be undertaken on her property was quite proper and justified. In any event, it was not, in our respectful submission, sufficient for your clients to consider themselves released from their undertakings to the Court by virtue of the fact that the development application which was lodged by them in purported compliance with the undertaking had been disallowed by Council ." and (ii) (at fol 76) "The undertakings envisaged as an alternative that an approach could be made to the Court to obtain from the Court appropriate development consent if development consent was not forthcoming from Council. It is our respectful submission that that right was expressly stated in the undertakings in contemplation, both by the Court and by the parties, that in the event of any difficulties in procuring appropriate development consent from Counsel, the parties could refer the matter to the Land and Environment Court for an appropriate determination by the Court in lieu of the Council".

50 Mr Muriniti gave extensive particulars of the Kings' alleged failures in respect of the undertaking given to McClellan J, and responded to a suggestion made by the Kings' present solicitor (Mr Stern) that Mrs Young may herself be in contempt, in that she "sought to frustrate and interfere with" the Kings' attempts to comply. 51 Mr Stern responded on 6 May 2008, referring particularly to Mrs Young's refusal to consent to the Kings' DA, and her insistence on "concessions" the Kings say were not envisaged by the court, as the "price" for her consent (fol 71 of Stern affidavit 20.2.09): " The orders are quite clear, they require my client to 'make all reasonable endeavours to progress the development application through council' (which they have clearly done) and to perform certain works after that development application is granted (which they cannot do because of your client's refusal to grant their consent to the development application). The orders do not require my client to take any further action until the development application is approved ". V The related District Court proceedings 52 On 4 July 2007 (in order to meet the limitation period) Mrs Young commenced proceedings in the District Court seeking damages for the subject drainage/wall works. 53 The Kings have asked the District Court to dismiss those proceedings on the grounds of res judicata or estoppel, because of the proceedings before McClellan J. This court has had only limited information regarding the District Court proceedings, but I understand that that contention remains undetermined. 54 Curtis J is reported to have urged the parties again (1) to avoid what he may have said were "ill-advised" contempt proceedings, (2) to seek a "compliance solution" in this court rather than his court, and (3) to otherwise search for a practical outcome to their differences. The District Court transcript for 18 November 2008 records Mr Wright (counsel for the Kings) outlining the respondents' suggestion that an independent engineer be jointly appointed to design drainage works on the boundary, arranging, if necessary, for survey work "to be done on both properties" (T2, LL20-27). His Honour indicated that he had drafted his rulings on the matters before him, but would not make them while a solution was being sought in this court. 55 His Honour said (T18.11.08, p2, LL43-6): "I think that the contempt was ill conceived as a way for the plaintiff to get her remedy. It has not been helpful. Well I think that's a good idea. I think that everything you say is sensible. I've prepared rulings on the two motions." And later (T3, LL28-31, 38-40, and 43-44): "I think it's a very good idea. In order for the contempt proceedings to evolve an enormous amount of money be spent on costs probably no point. So that I would think very seriously Mr Newell in advising your client the costs in this matter are already absurd. …[T]he actual hearing of the contempt will require an analysis of the initial thumbnail sketch and an analysis of that which went to the council. It's going to be days. Going to be days and it's futile. It's wasted. …[T]here comes a time for flexibility …" 56 His Honour adjourned the matter for mention on 30 March 2009, but this court has been told that the District Court proceedings are currently listed for further mention in October 2009. I have not been told what occurred on 30 March. 57 Mr Newell, counsel for Mrs Young, told this court (on 7 July, at T9, LL1-11) that the District Court proceedings will require amendment. VI The Reactivation of these LEC proceedings - the 4 Notices of Motion 58 On 11 March 2008 Mr Muriniti informed Mr Stern that Mrs Young intended to attempt to reopen the proceedings in this court, and was considering contempt proceedings. A notice of motion was filed on 23 May 2008. 59 The four notices of motion currently before the court are as follows:

(a) NOM 1 is an amended NOM dated 6 August 2008 by the applicant (replacing the one filed 23 May 2008), alleging contempt of court and seeking (1) punishment of the respondents (pars 1, 2, 10, 11), and/or (2) declarations that the respondents breached their undertaking to the court dated 8 March 2004 (pars 3 and 4), and/or (3) various declarations as to the effect of the court's orders of 19 February 2004 (pars 6, 7, 8), and/or (4) an order vacating the order made on 19 February 2004 dismissing the proceedings, so as to reinstate them (par 9). A lengthy statement of charge dated 6 August 2008 is associated with this NOM.

(b) NOM 2 was filed on 26 November 2008 by the applicant, seeking orders granting access to the respondents' land by experts (specifically a surveyor and a plumber, but query also some engineer or hydrologist) acting for the applicant.

(c) NOM 3 was filed on 20 February 2009 by the respondents, seeking (a) separate (and primary) trial of that part of NOM 1 as alleges contempt, and (b) directions as to clarification by the applicant of the evidence relied upon in that regard.

(d) NOM 4 was filed on 23 February 2009 by the applicant, seeking leave to file an (or two separate) amended statement(s) of charge in respect of the alleged contempt. 60 The four NOMs were listed for hearing on 26 March 2009 and have been adjourned part-heard to 12 May 2009, and then to 26 May 2009, 9 June 2009, 7 July 2009, 23 July 2009 and 29 July 2009. During the hearing on 12 May 2009 Mrs Young's counsel, Mr Newell, informed the court that he had been instructed to "withdraw" the contempt charge(s). That step would truncate NOM 1, and would appear to eliminate any utility in proceeding with either the respondents' NOM 3 or the applicant's NOM 4. 61 Persistence by the applicant with some further refined version of NOM 1, and with NOM 2, constitute an attempt to reopen these proceedings in what are argued to be the clearly "exceptional circumstances" which are required to be established to justify reopening completed proceedings. See Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143, per Kirby P at 153-155. See also Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, [2005] NSWLEC402, and Pittwater Council v Brown Brothers Waste Contractors Pty Ltd ("Brown Bros") [2009] NSWLEC 50, in which Lloyd J made a thorough survey of relevant authority; the discussion by Basten JA in Deputy Commissioner of Taxation v Meredith (No.2) [2008] NSWCA 133 at [6]-[7], [13]-[16] and [22], and Pain J's analysis in Michales v Dimoski [2007] NSWLEC 443, at [28]ff. 62 I have so far declined to grant any further amendment of NOM 1, as per the draft presented by the applicant, to which the respondents have objected because it goes beyond mere deletion of those elements of NOM 1 which dealt with the allegations of, and proposed punishment for, contempt. All three other NOMs remain on foot. 63 NOM 1 in its original form was listed before Jagot J as List Judge on 4 and 18 July 2008 for directions. It was amended on 6 August 2008 to include allegations of contempt, and to effect other changes in the prayers for relief. Since then the matter has been in the List Judge lists on 15 August and 19 September 2008 (both Biscoe J), 31 October, 21 November, 12 December 2008 and 13 February 2009 (all Pain J). (The District Court strike-out proceedings had been revived, and had been aired several times in that court in that period). NOM 2 was filed on 26 November 2008, NOM 3 on 20 February 2009, and NOM 4 on 23 February 2009. 64 The List Judges in this court, in the period July 2008-February 2009, expressed some "misgivings" about the applicant's prayers for civil relief, such as declarations regarding breaches of the undertaking (in respect of which, see the various decisions in the litigation Sawyer v/ats Sutherland Shire Council (matters 40215 of 1999 and 40015 of 2000) - Sutherland Shire Council v Sawyer [2000] NSWLEC 162, 109 LGERA 409, and especially the unreported decision of Cowdroy J in matter 40215 on 4 February 2000 where His Honour declined to make a declaration concerning an admitted breach of Sawyer's undertaking, and the unrepresented Mr Sawyer acquiesced in His Honour then making an order against him to the same effect). 65 Biscoe J referred to Mrs Young's prayers for declaratory relief as "unorthodox", even "bad", and possibly vulnerable to a strike-out application. Perhaps His Honour thought it would be necessary for her to seek such declarations in separate proceedings, rather than seek to reopen those in which the undertaking was given. 66 The four Notices of Motion in these proceedings were then listed for hearing before me on 26 March 2009, and these proceedings have remained in my list ever since.

VII Inflammation of the dispute by allegations of contempt 67 Eventually Mrs Young decided to "bite the bullet and allege contempt", a course which Jagot J seems to have regarded as the only one really open to Mrs Young after all this time, as a motion brought in exercise of liberty to apply would appear to need a specific, achievable objective (see Lloyd J in Brown Bros). However, the applicant has thereafter failed at almost every opportunity to meet the court's timetable, and several costs orders have been made against her. All of this procedural "argy-bargy" has not been helped by changes in legal representation on both sides at crucial times during the history of the litigation, and by drawn-out contests at various directions hearings about the interpretation of various events and comments, and about the nature of a contempt charge laid by a lay person in a civil matter of this type. (See discussion of this issue by Einstein J in Wexford Pty Ltd v Praveen Meckraj Doolub [2008] NSWSC 952, at [16]-[27] and [61]-[65]). 68 The dispute has also been played out against the background of some lengthy and argumentative correspondence passing between solicitors, and continuing vague references by the applicant to possible illegality in the actions of the Kings and/or of the Council - such as allegations (1) that they are "manipulating" the planning system (T26.3.09, pp11-12), (2) that Mr King may have fabricated at least one letter found on the Council file (dated 16 October 2002, but received by Council on 8 March 2004) to subvert the undertaking and shift the responsibility for any remaining problem to Mrs Young once her proceedings were dismissed, and/or (3) otherwise provided false survey or other information to Council (T7.7.09, p12, L6). Mr Newell asserted to Curtis J (at T15.10.08, p17) that "a fraudulent survey was obtained saying that a wall at 1.2 [metres] was actually at 0.8". 69 It has been suggested that an expert now engaged by Mrs Young (Ross Fraser) believes there may be, in fact, no drainage at all adjacent to the granny flat wall - one of the bases upon which the subject undertaking was framed in the first place. 70 The Kings contend that (1) they made "all reasonable endeavours" to honour the undertaking in their dealings with Council, and (2) that their DA was scuttled by Mrs Young. Conclusion 71 I stress again that none of the allegations and counter allegations recorded above in these reasons has been proven, but, whatever may be the truth of any of the allegations of fraud or bad faith, as a basis to consider reopening the proceedings, each side has become highly distrustful of the other's experts. I have a serious residual concern that any mediation of the remaining serious dispute between the parties may not succeed unless the process is informed by opinions expressed by relevant experts acceptable to both parties, and perhaps given access to both properties to prepare their reports. This is an issue which will obviously require the mediator's early consideration. 72 I congratulate the parties on, finally, agreeing to the court proceeding to make an order under s 26(1) of the CP Act, and to the appointment of the Hon M L Pearlman as the mediator. She was nominated by the applicant and her appointment was not opposed by the respondents. 73 Section 34 of the CP Act makes it absolutely clear that the parties are entirely free to engage the same mediator, or another one, if they so choose, in respect of any other disputes between them, but this court can order the mediation of only matters which fall within this court's jurisdiction, and not of the District Court proceedings or of any possible or proposed further proceedings, involving, as suggested, the applicant's former lawyers. 74 On the question of material to be provided to the mediator, I have earlier referred to the possible value of Council files, which could provide a documentary history of relevant matters since McClellan J's decision. Council's letter of agreement to participate in the mediation sought copies of "all the pleadings filed and the evidence served in the Land and Environment Court proceedings". Some of that material was put on to support the now-abandoned contempt allegation, and Mr Wright does not want the mediator's view "coloured" by such "prejudicial" material. The court may also be required to grant leave for some of the filed material to be made available to the mediator, given that some affidavits put before the court contain material obtained on subpoena. I propose to grant the parties liberty to apply, and will endeavour to satisfy any requests made of the court by Ms Pearlman. 75 Once the mediation is concluded, the court would expect its outcome to be reported, and any "loose ends" or "unfinished business" can then be attended to. Some costs aspects may then still need the court's attention. Orders 76 The orders of the court are:

(1) Pursuant to the provisions of Part 4 of the Civil Procedure Act 2005, these proceedings, save for any question of contempt, are referred to the Honourable Mahla Liane Pearlman AO for mediation.

(2) The parties are to share equally the costs of the mediation but shall have liberty to explore with Warringah Council its possible contribution to those costs and, if the said Council agrees to so contribute, the parties shall share equally the balance of such costs.

(3) The parties are granted liberty to apply, jointly or severally, on three working days' notice. 77 The attachment which follows is a photocopy of Exhibit A from the proceedings before McClellan J.

23/06/2010 - Cover sheet change of applicant's surname - Paragraph(s) cover sheet

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.

(2005) 141 LGERA 166

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