LANG v KIRKNESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and POWELL JJA 31 March 1995, 16 June 1995 [1995] NSWCA 254 NO APPEAL FROM JUDGMENT — NO QUESTION OF PRINCIPLE FACTS Mr and Mrs Kirkness, the respondents, have the benefit of a right of carriageway over the neighbouring land owned by Mr and Mrs Lang, the appellants. Part of this right of way was on an embankment across a water course. In 1989, heavy storms damaged the embankment. Mr and Mrs Kirkness set about to repair the damage. Unfortunately, this was not done to Mr and Mrs Lang's liking. The scene was thus set for a long and mutually self-destructive history of litigation. Held (per Meagher JA and Powell JA; Clarke JA concurring) The present appeal is an appeal from the orders of Windeyer J which merely enforced his judgment. The judgment itself is not on appeal. Accordingly, the appeal must be dismissed with costs. ORDERS The appeal is dismissed with costs. Clarke JA During the hearing of this appeal the Court was informed by the parties that the Court should clear up the whole matter. Indeed they said that that was why leave had been granted. The simple fact, however, is that leave to appeal was granted only in respect of the judgments referred to in Meagher JA's judgment and the Court is restricted to a consideration only of those judgments. Notwithstanding, the Court spent a considerable time discussing the matter with the parties in the hope of their agreeing to a resolution of this bitter and protracted litigation, even seeking to refer the whole dispute to mediation. All our attempts were unavailing - the parties stood their ground and no consent to a mediation was forthcoming. Nothing more could be done to bring the litigation to an end and the Court is required to rule on the narrow dispute the subject of the present appeal. For my part I agree with Meagher JA that no ground has been shown for upsetting the two judgments which simply gave effect to Windeyer J's decision. I agree with the orders proposed by Meagher JA. Meagher JA This is another bout of the cacoethes litigandi which has afflicted the Langs and the Kirknesses. In this bout, Mr and Mrs Lang are appealing against orders made by Bryson J and Cohen J in the Equity Division of the Court on 24th February and 13th March 1994 respectively, pursuant to leave granted (perhaps unreasonably) by this Court. In order to understand what is happening, it is necessary to recapitulate what has happened so far. In this regard I wish to express my gratitude to my brother Powell JA, who has succeeded in making sense of two Equity Division files and three Court of Appeal files. Without his assistance I doubt if I could construct an intelligible chronology. The litigation concerns some land situate at Galston, a suburb of Sydney. 2 UNREPORTED JUDGMENTS Before 1989, Mr and Mrs Kirkness became registered as the proprietors of Lot 3 DP 567756, which lot had then (and still has) the benefit of a right of carriageway over the neighbouring land, Lot 2 DP 567756. The only entrance to Lot 3 was through this right of way, part of which was on an embankment across a water course. In 1989, Mr and Mrs Lang became registered proprietors of Lot 2, the servient tenement. About this time heavy storms had damaged the embankment. Mr and Mrs Kirkness set about repairing the damage, which included pouring shotcrete on the downstream side of the embankment. This was not to the liking of the Langs. On 28 January 1992 - Rogers J - seemingly then vacation judge - granted leave to the Langs to commence proceedings against the Kirknesses for an injunction to restrain them from pouring concrete. The Kirknesses filed a cross-claim seeking declaratory relief relating to their right to repair their right-of-way. These proceedings were numbered ED 1330 of 1992. The proceedings commenced before Needham AJ on 2 April 1992. On the following day, 3 April 1992, Terms of Settlement were handed up to his Honour. Pursuant to these Terms, Needham AJ made an order by consent that "the Plaintiffs" (meaning thereby the defendants) were entitled to repair the embankment, subject to certain conditions; he noted the terms, and ordered that the summons be otherwise dismissed. The Terms of Settlement, far from settling anything, inflamed further litigation. In about May 1992 the Langs commenced to remove shotcrete which the Kirknesses had placed in the watercourse, but outside the boundaries of the right-of-way, alleging that to place the shotcrete there was not permitted by the Terms of Settlement, an allegation which was, of course, denied by the Kirknesses. This led, on 26 May 1992, to McLelland J granting to the Kirknesses leave to file summons numbered ED 3114/92 in which the Kirknesses sought a mixture of declaratory and injunctive relief to the effect that they were entitled to terminate, and had in fact terminated, the contract embodied in the Terms of Settlement. This summons was heard by Brownie J on 23 and 24 June 1992 - or, rather I should say, certain issues raised by the summons were heard by Brownie J on those days. On 26 June Brownie J delivered what was described as a judgement, in which he stated "I have concluded that Mr and Mrs Lang are in breach of contract in jackhammering away the wall'. However, as he was about to leave the country, the only order which his Honour made was "I reserve judgement". On 6 August 1992, having apparently repaired back to Sydney, delivered what was again described as a "judgement", although in terms it was inconclusive. His Honour ended by directing the Kirknesses to bring Short Minutes of his "Judgment". Nothing of real consequence seems to have happened between August 1992 and June 1993, but in the latter month an agreement for the reinstatement of the embankment was apparently reached between Messrs Gutteridge Haskins and Davey, the Kirknesses engineers, and a Mr Moore, the Lang's engineer. It will be recalled that Brownie J delivered judgement in ED 1330/92 in August 1992, but no formal declaration or orders were made to give effect to that judgment until 6 July 1993. An appeal was then lodged by the Langs to the Court of Appeal. In the meantime, proceedings ED 3114/92 were re-listed before Windeyer J on 13 September 1993, seemingly so that the balance of the questions raised by the summons in those proceedings should be dealt with. The Kirknesses counsel URJ LANG v KIRKNESS (Meagher JA) 3 summarized the question to be answered as "what work if any the plaintiffs are entitled to do to regain access to their home at Galston." (it is to be noted that since May 1992 one has the unusual spectre of two streams of litigation, 1330/92 and 3114/92, proceeding concurrently in the Equity Division, between the same parties, and dealing with the same subject matter. One finds proceedings commenced as new proceedings for final relief which one might have expected to be commenced as interlocutory motions in the existing proceedings. One also has apparent breaches of s63 of the Supreme Court Act requiring the avoidance of multiplicity of proceedings. The 3114/92 proceedings before Windeyer J were adjourned so that the parties' engineers would discuss what was euphemistically referred to as "the basic problem". By the time Windeyer J resumed the hearing, he was asked to, and did, make consent orders to give effect to a new agreement reached between the engineers. Later a stay was sought of his order, which he, refused. The Kirknesses' engineers, Messrs Gutteridge Haskins and Davey, therefore proceeded to prepare plans giving effect to the engineers' new agreement for the purpose of tendering a Building Application to the Hornsby Council. These were submitted to the Langs for signature in November 1993, and the Langs refused to sign them. The Kirknesses then applied for orders requiring the Langs to execute the plans, and in default to permit the Registrar to sign them instead of the Langs. This application was successful, having come before Windeyer J on 1 February 1994. Having lost the day on the Building Application, the Langs, started proceedings in the Land and Environment Court seeking, inter alia, a declaration that a development approval was necessary to execute the agreed works. They obtained such a declaration before Talbot J. Thereafter exactly the same performance took place with regard to the Development Application which had previously taken place with regard to the Building Application. The Langs refused to sign it. Then the Kirknesses obtained an order in the Equity Division ordering the Langs to sign it and permitting the Registrar to do so on their behalf if they refused. The Court of Appeal (Clarke JA, Powell JA and I) heard the Langs' appeal (CA 40685/94) from Brownie J's order in the 1330/92 proceedings on 26 July 1994. We gave judgment on 16 August 1994. We disagreed with Brownie J's reasoning, upheld the appeal, set aside the orders below, and in lieu thereof ordered that the proceedings be dismissed with costs. That, in effect, I would have thought extinguished the 1330/92 proceedings. So far as I know, no application for special leave has been made to the High Court against the Court of Appeal's orders. On 14 November 1994, the Kirknesses - who, by this time, were acting for themselves - presumably because their money had run out - filed a Notice of Motion - (entitled, if you please, in both 1330/92 and 3114/92) - seeking the following orders: "1. Clarify which Supreme Court orders prevail: Windeyer J in case 3114/92 or Needham J in case 1330/92. "2. If Windeyer J orders prevail: enable amendment to the design basis incorporated in those orders to eliminate the 2nd culvert. "3. If Needham J orders prevail: clarify the time frame to execute those orders. "4. Require specific performance of that agreement including that the defendant will forthwith sign all necessary documents for the approval and construction in accordance with the GHD design. 4 UNREPORTED JUDGMENTS "5. Resolve of outstanding issues of case 3114 of 1992." One does not know whether to marvel more at the procedural absurdity of the Motion or at its sincere ingenuousness. In any event, it was shunted off to be heard by Bryson J in the Equity Division, for hearing on 9 February 1995. Meanwhile, on 18 November 1994 there was filed by the Langs a summons purportedly in matter CA 40685/94, seeking an extension of time for the filing of an application for leave to appeal from the decision of Windeyer J on 1 February 1994, (ordering the Langs to sign the Building Application), and an order granting leave to appeal from that decision. The Court of Appeal (Kirby P, Mahoney JA, and Clarke JA) refused to grant the relief sought and dismissed the summons with costs. Thereafter the Langs filed an application for special leave to appeal to the High Court of Australia from the Court of Appeal's refusal to grant leave to appeal from the judgment of Windeyer J. I do not know the fate of that application. An application to stay Windeyer J's order was dismissed. At this stage procedural irregularities went riot. On 28 December 1994 the Langs filed a Notice of Motion seeking the following orders: "1, That the Orders of Needham J N 1330/92 prevail after the reinstatement of orders No 1330 of Needham J by the Court of Appeal on 16 August 1994(sic). "2. Orders that the Orders Windeyer J No 3114 of 1994 are set aside." They then filed a document called "Amendment of Motion", seeking the following relief: » 1. An Order that all motions are dismissed. "2. An Orders(sic) that the plaintiffs, their servants and agents are restrained from trespassing onto the defendant's land. "3. An Order that the plaintiffs, their servants and agents are not allowed to carry out any work on the defendant's land until the High Court has heard the case has issued a judgment." Each document was filed in both 1330/92 and 3114/92 Bryson J dismissed both of them. Meanwhile, the Kirknesses Notice of Motion of 14 November 1994 remained undisposed of. That came before Bryson J on 24 February 1995. At an ex parte hearing, Bryson J ordered: " 1. That the (Langs) by themselves and their agents be restrained from obstructing temporary access for construction purposes at the fork in the road shown in the site plan on the (GHD) plan 'repair of causeway over all plan and details in the plan.' Drawing No. 26316-01. "2. That each of the (Langs) within 2 days of service of the order upon him or her remove rockery and building materials obstructing use of the fork in the road for vehicles to turn around and reverse in the construction site shown in the plan." It would seem that the Langs did not comply with Bryson J's orders, because on 6 March 1995 the Kirknesses filed a motion seeking a declaration that the Langs were in contempt. That came on for hearing before Cohen J on 13 March 1995, when the Langs, by leave, failed a Notice of Motion, which was, I gather, heard together with the Kirknesses' Notice of Motion. On the hearing of these Notices of Motion Cohen J made the following order: "Order that each defendant on or before 17 March 1995 remove building materials obstructing the use of the area at or near the fork in the carriageway where their drive meets the area of the right of carriageway on their land being that area shown in the photograph Ex B in these proceedings on which are placed building materials; and URJ LANG v KIRKNESS (Powell JA) 5 further that they remove the rockery, stone and timberwork shown in the photograph Ex 1 which is at a lower level than a line extending in an easterly direction from the edge of the concrete driveway shown in those photographs, in both cases, so as to permit construction vehicles to turn around and reverse into the construction site shown in the plan referred to in O.1 made on 24 February 1994." The Langs, thereafter, or so it would seem, applied for either a stay of the orders of Bryson J and Cohen J pending an application for leave to appeal from those orders, or alternatively, an extension of the time of compliance with those orders; and, on 17 March 1995, Cohen J refused a stay but granted an extension. Then, on 20 March 1995, the Court of Appeal, in an evil hour, granted leave to appeal from the orders of Bryson J and Cohen J, and also a stay until further order of the Court. That is the matter which is now before us. Each party appeared without legal representation. Mrs Lang appeared on behalf of herself and her husband; Mr Kirkness appeared on behalf of his wife and himself. Neither Mrs Lang nor Mr Kirkness have legal qualifications. Past litigation had beggared them beyond the point of affording legal representation. Of the concepts of issues in contention, or of legal relevance, they were entirely innocent. They were total strangers to the idea that the Court could only act on evidence which was before it, and not on assertions of fact made at the Bar table but nowhere evidenced. But, whilst ignorant of issues, relevance or evidence, their mutual hatred and instinct for self-destruction remained unimpaired. Mrs Lang made it plain that, under no circumstances were she and her husband prepared to permit Mr or Mrs Kirkness to encroach one centimetre onto the land which she and her husband owned even if entitled to do so, whilst Mr Kirkness made it equally plain that he and his wife would not rest content until they had an embankment to their liking, whatever the cost to the Langs. The Langs asserted that the orders of Windeyer J could not be sustained, and the Kirknesses asserted they could. Superficially there seemed some substance to the Langs' assertion in this regard. However, there are two problems to our investigating this matter. One is that Windeyer J's decision was not on appeal. Leave to appeal from it had already been refused, and a special leave application in relation to it was awaiting hearing in the High Court. The other is, we have no idea what the true facts were on which Windeyer J adjudicated. No further application was made to grant leave to appeal from his decision. The importance of these facts is that the appeals which were listed before us, those against the orders of Bryson and Cohen J, were appeals against orders which merely gave effect to Windeyer J's judgment. As long as Windeyer J's judgment remains intact, their orders are also inviolable. The result, in my opinion, is that the appeal should be dismissed with costs. Powell JA Perhaps, as Meagher JA has suggested in his Judgment, it was in an evil hour when the Court of Appeal, as then constituted, granted leave to appeal from the Orders which Bryson J and Cohen J had made in February and March 1995 for the purpose of enabling the Kirknesses to enforce the Orders made - originally by consent in September 1993, and, later, after he had held that the engineer's plan conformed with the agreement made in September 1993 - by Windeyer J. However, as one of those who constituted the Court when that leave was given, I can but say that I was encouraged to join in the grant of leave by the statements made by Mrs Lang - from which statements Mr Kirkness did not then dissent - that, if leave were granted, the Court would then be enabled to sort out 6 UNREPORTED JUDGMENTS the appalling mess into which the proceedings between the parties had descended, a sentiment which, as Clarke JA has noted, was repeated by the parties on the further hearing before us. Regrettably, while hope may spring eternal, that object has proved to be incapable of achievement, for the inescapable fact is that the parties, far from being willing to join in any course which would enable the Court to resolve their difficulties, appear to be embarked upon a course which will lead to their mutual self-destruction. As the Orders made by Bryson J and Cohen J do no more, in substance, than give effect to the agreement and Orders made in September 1993 and the Orders made by Windeyer J in February 1993, which agreement has not, and none of which Orders has, been set aside, it is inevitable that these Appeals must be dismissed with costs. The appeal is dismissed with costs. Counsel for the Appellant: B LANG IN PERSON Counsel for the Respondent: TJ KIRKNESS IN PERSON