Land and Environment Court of New South Wales CITATION : Hurstville City Council v Jacobs [2007] NSWLEC 630 APPLICANT Hurstville City Council PARTIES : RESPONDENT Kevin Roy Jacobs FILE NUMBER(S) : 40013 of 2006 CORAM: Jagot J KEY ISSUES: Civil Enforcement :- motion to set aside consent orders - practice and procedure - whether perfected orders could be set aside - motion dismissed LEGISLATION CITED: Local Government Act 1993 Bailey v Marinoff (1971) 125 CLR 529 ; Cachia v Colaco (2003) 132 LGERA 62; DJL v The Central Authority (2000) 201 CLR 226 ; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227; Mohinder Singh v Secretary, Department of Family & Community Services [2001] FCA 1281; CASES CITED: National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 ; Paino v Hofbauer (1988) 13 NSWLR 193; Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365 ; Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438; Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 ; Woollahra Municipal Council v Ferella (2005) 141 LGERA 166; Young v Jackman [1986] 7 NSWLR 97 DATES OF HEARING: 18/9/2007 EX TEMPORE JUDGMENT DATE : 18 September 2007 APPLICANT Dr S Berveling SOLICITORS Home Wilkinson Lowry LEGAL REPRESENTATIVES: RESPONDENT Mr K Jacobs (in person) SOLICITORS N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 18 September 2007 40013 of 2006 HURSTVILLE CITY COUNCIL Applicant KEVIN ROY JACOBS Respondent JUDGMENT Jagot J: 1 This is a notice of motion by the respondent to these proceedings seeking various orders of the Court. The notice of motion was filed on 16 August 2006 and, insofar as relevant, seeks orders that the Court: - (i) dispense with the need for technical compliance with the requirements of its Rules, (ii) exercise its inherent powers to control and supervise proceedings and to prevent injustice by (iii) dismissing certain consent orders entered into between the parties on 21 April 2006, such orders being sought on various grounds, which I summarise as follows, as set out in the notice of motion: (a) The respondent was not in a fit state of mind or health on or leading up to 21 April 2006 to agree to the orders entered into. (b) At the time of entering into the consent orders the respondent was unrepresented. (c) The respondent did not fully understand the sanctions for not complying with the consent orders for various reasons. (d) The original order under s 124 of the Local Government Act 1993 served by the Council did not address the real issue of unsightliness but submitted that it dealt with matters of public health. Accordingly the Council was said to have failed in its duty to assist the Court to further the overriding purpose of the Land and Environment Court Rules, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (e) Before the consent orders were made and since 10 August 2006 the respondent had removed all vegetation and used amounts of the materials the subject of the consent orders, and otherwise the Class 4 proceedings were an abuse of process. 2 In addition, the notice of motion asserted that the proceedings should be dismissed as the Council had unreasonably taken steps to avoid the proceedings being brought to a hearing, and that otherwise the Court should take into consideration the respondent's health issues with respect to various other matters before the Court, including a notice of motion for contempt by the Council, a notice of motion for costs by the Council and matters related thereto. 3 The consent orders the subject of this notice of motion were filed in the Court on 21 April 2006. In summary they provide by consent that the respondent, his servants, agents or assigns shall comply with terms 1 and 2 of an order issued by the Council of 3 November 2004 in respect of a property known as 75 Clarke Street, Peakhurst (being lot 160 in deposited plan 11124) by removing and keeping removed nominated items referred to in the orders as "materials", and removing and keeping removed overgrown vegetation as set out in a timetable specified in sub-paragraphs (a) through to (d) of the consent orders. 4 The evidence in support of the notice of motion on behalf of the respondent comprises extensive documents in the form of annexures to affidavits and otherwise tendered in the proceedings. The Council objected to the majority of the material on the grounds that it was irrelevant to the issues to which the notice of motion gave rise, but I admitted the material subject to relevance. 5 I indicated to Mr Jacobs through the course of the hearing that having reviewed the material it was obvious that very many parts of the so-called evidence were irrelevant to the issues which the Court was required to resolve. Accordingly, he should draw the Court's attention to those documents or matters which he said were important to resolution of the notice of motion and Mr Jacobs has done so through his submissions, to which I will come shortly. 6 For its part the Council first read into evidence at Mr Jacobs' request an affidavit of Julie Kisa sworn 8 August 2006 and, secondly, relied on an affidavit of the Council's solicitor, Ms Jane Elizabeth Hewitt, sworn 3 September 2007. 7 Because I consider so much of the material sought to be relied upon by Mr Jacobs as irrelevant to any matter that could arise under the notice of motion I propose to summarise my understanding of the grounds upon which Mr Jacobs seeks to set aside the consent orders and the material on which he relied in that regard. In summary, it seems to me that Mr Jacobs submits that the consent orders should be set aside for these reasons. 8 First, Mr Jacobs was unrepresented in the Class 4 proceedings and at the time the consent orders were made on 21 April 2006. Colloquially, he described his position as "outgunned" by the Council. 9 Secondly, Mr Jacobs says that he had been diagnosed with depression and was on medication. It is true that in the material provided as part of the affidavits there is evidence that Mr Jacobs had been diagnosed with a depressive illness and had been placed on medication, although whether or not that continued as at the date of the consent orders is not clear. But for present purposes I am prepared to assume it did continue and that Mr Jacobs did suffer from some depressive illness at all relevant times. 10 Thirdly, Mr Jacobs said that when the consent orders were made on 21 April 2006 he was not given the opportunity to obtain legal advice. 11 Fourthly, Mr Jacobs said that he (in effect) was required by the Court to enter into the consent orders and was unduly influenced either by the solicitor for the Council or by the Court to the end of entering into the consent orders when, in his view, the matter should just have proceeded to a hearing on the merits. 12 Fifthly, and in any event, Mr Jacobs believed he had complied with the Council's order. 13 Sixthly, Mr Jacobs says that although he responded with "yes" answers to questions from the Judge on 21 April 2006, the reason for that was that he could not say anything more than "yes" due to his poor state of mind. This can be contrasted with his responses and statements in Court on earlier occasions. Mr Jacobs submits that this establishes that he did not comprehend what was happening at the time on 21 April 2006 due to the circumstances surrounding his appearance in Court on that day, including depression, medication and lack of sleep. 14 Seventhly, Mr Jacobs described the Council's approach to the entire matter as dictatorial. There were no negotiations between him and the Council and in all of the circumstances leading up to the consent orders those propositions should be accepted. 15 Eighthly, Mr Jacobs submits that the consent orders should be seen as not reflecting the Court's intentions. 16 Finally, Mr Jacobs submits that the actual order issued by the Council under s 124 of the Local Government Act 1993 was unmeritorious and/or incorrect and/or based upon a false premise. It was caused by certain complaints of neighbours, which as I understand it were themselves unmeritorious or incorrect or really only constituted one such complaint, and in any event development on those neighbouring properties adversely impacted upon Mr Jacobs' own property. 17 For all those reasons Mr Jacobs submitted that the consent orders should be set aside. 18 For its part the Council made submissions that can be grouped into four sub-categories. 19 First, the Council said that Mr Jacobs' notice of motion to set aside the consent orders should not be entertained at all by the Court because the transcripts, particularly the transcript of 18 July 2006 (which I have available to me and was relied upon by both parties) shows that Mr Jacobs was clearly in breach of the consent orders. As such the Court should either find that there is no power to entertain a notice of motion by Mr Jacobs because it should be clearly satisfied that the Council's allegation of contempt in its own notice of motion filed 7 July 2006 was likely to be made out or in the alternative it should exercise its discretion against Mr Jacobs, having regard to such decisions as Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365 and Young v Jackman [1986] 7 NSWLR 97. 20 Secondly, and in the alternative, the Council submitted that there was no inherent jurisdiction to set aside a perfected order of the Court but rather Pt 15 r 9 of the Land and Environment Court Rules provided the exclusive source of power to do so. 21 Thirdly, the Council submitted that when regard is had to the provisions of Pt 15 r 9 the facts are that none of the circumstances set out therein are available. Part 15 r 9 provides that the Court may on terms set aside or vary an order in any of the following cases: ( a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of the motion for the order, (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4, (c) if the order was obtained by fraud, (d) if the order is interlocutory, (e) if the order does not reflect the intention of the Court, (f) if the party in whose favour the order was made consents. 22 Dealing with each of those subparagraphs the Council said: (1) With respect to (a) the transcript of 21 April 2006 clearly shows that Mr Jacobs was present at the time the consent was made. (2) With respect to (b), the timing of the notice of motion for the setting aside of the order, the notice of motion was filed on 16 August 2006 in circumstances where the evidence showed that (at the latest) the sealed order had been made available to the parties on 2 May 2006, at which time the sealed order was served by the Council's solicitor on Mr Jacobs, and indeed was probably available as early as 27 April 2006, at which time Mr Jacobs himself in one of the annexures to his affidavit forming a chronology of relevant events acknowledged that he had received a sealed copy of the consent orders. The Council therefore said that it was clear that the notice of motion for the setting aside of the order had not been filed before the signing and filing of the minute of the order under r 4. (3) With respect to (c), if the order was obtained by fraud, the Council submitted that there was no such allegation. (4) With respect to (d), if the order is interlocutory, the Council submitted that it was clearly a final order. (5) With respect to (e), if the order does not reflect the intention of the Court, the Council submitted that the transcript of 21 April 2006 clearly disclosed that the order did reflect the Court's intention. (6) And with respect to (f), if the party in whose favour the order was made consents, the Council said that it did not consent to the setting aside of the order. 23 For those reasons the Council said that none of the criteria in Pt 15 r 9 had been satisfied and it necessarily followed that there was no facility for the Court to set aside or vary the order made on 21 April 2006. 24 The fourth class of the Council's submissions in effect responded to the various classes of matters put by Mr Jacobs. In summary the Council said that Mr Jacobs' personal circumstances were not relevant to the powers available to the Court under Pt 15 r 9, nor were the merits of the original order under s 124 of the Local Government Act 1993 relevant. 25 The Council also said that if one had regard to the evidence, particularly that of the transcript of the attendance before the Court on 17 March 2006 and the correspondence between the Council's solicitor and Mr Jacobs leading up to the consent orders, it showed that Mr Jacobs was very much aware of what was happening with relation to the consent orders. As to Mr Jacobs' references to depression, the Council said that the evidence supported that Mr Jacobs had been suffering from a depressive illness between 2002 and 2004 but not as at 2006. 26 The Council said with respect to Mr Jacobs having raised a concern about the endorsement notified on the order as served under Pt 42 r 8 of the Supreme Court Rules, that the endorsement was precisely the same as the effect of what Talbot J had said to Mr Jacobs before the orders were made on 21 April 2006. Otherwise, that when the material was looked at in context, none of Mr Jacobs' submissions could either be made out or could be relevant to the jurisdiction to set aside consent orders which had been duly entered on or about at the latest 27 April 2006. 27 The applicable principles with respect to an application such as that made in the present notice of motion are well known. 28 In Bailey v Marinoff (1971) 125 CLR 529 at 530 Barwick CJ said: 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 due 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. 29 In National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 581 Gleeson CJ held that this Court did have an inherent or an implied power to do all that was necessary to exercise its jurisdiction. Similarly, in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Sheller JA at 27 referred to the fact that courts have powers "simply because it is a court of a particular description". At 30 Sheller JA, with whom Powell JA agreed, held that the then equivalent provision of Pt 15 r 9 of the Land and Environment Court Rules was not the exclusive power of this Court to set aside or vary a final order and explained the applicable principles at 28 to 29 as follows (excluding case references): A superior court has power to review, correct or alter its judgment at any time until its order is perfected… There is no reason to suppose the Land and Environment Court does not have such power. It is assumed by Pt 13, r 7(b) of the Land and Environment Court Rules 1980. The occasion for exercising such a discretion is discussed in Smith v New South Wales Bar Association…. By contrast, as a general rule, a perfected judgment cannot be recalled or varied: see Bailey v Marinoff…. However a judgment even though perfected may be impeached on grounds of fraud and there is an inherent jurisdiction to alter an order where its form as entered or filed does not express or clearly express the intention of the court or where having been made ex parte, procedural fairness demands it…. 30 Both of the decisions in National Parks and Wildlife Service v Stables Perisher and Logwon v Warringah Shire Council predated the decision of the High Court in DJL v The Central Authority (2000) 201 CLR 226 in which the Court not only affirmed the general principle that where a court has entered final orders it is generally not open to it to review or alter those orders, but also held that the Family Court, being a statutory court, had no inherent or implied power to reopen perfected orders. 31 Subsequent to the decision in DJL there have been various views expressed in this Court as to whether or not Pt 15 r 9 is an exhaustive statement of the jurisdiction of this Court to set aside or vary an order (See for example Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 227, Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, Wollong Pty Ltd v Shoalhaven City Council (No 2) (2002) 122 LGERA 178 and Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438, as well as Cachia v Colaco (2003) 132 LGERA 62. 32 It seems to me that in these circumstances I should consider the respondent's notice of motion having regard both to Pt 15 r 9 and, if it exists, any inherent jurisdiction of the Court to ensure that its procedures are not used to effect injustice or to enforce a void or voidable agreement. 33 With respect to Pt 15 r 9, I am satisfied that none of the circumstances specified in the rule have been or could be established on the evidence in this case. The transcript of 21 April 2006 clearly shows that Mr Jacobs, the respondent in the proceedings, was present when the consent orders were made. It also shows that before the consent orders were made Mr Jacobs was asked whether he understood those orders and was confident they were reasonable, to which Mr Jacobs answered "yes". Mr Jacobs was also asked whether he realised that the orders that were about to be made against him were formal orders and that if he did not comply with them for whatever reason then he would be in default of a court order, which could bring about very serious sanctions by way of fines or even in an extreme case imprisonment. The Judge then said to Mr Jacobs that he therefore assumed that he had seriously considered his capacity to deal with this and was happy for the orders to be made in the terms because "you can do it?" to which Mr Jacobs answered "yes". Before making the orders the Judge noted that the respondent (namely Mr Jacobs) had satisfied the Judge that he (that is, Mr Jacobs) fully understands his position and accordingly the Court made the consent orders of 21 April 2006. In addition, and consistent with the submissions made on behalf of the Council, it is also clear that the respondent's notice of motion filed on 16 August 2006 was not filed before the signing and filing of the minute of the order under r 4. Nor did Mr Jacobs make any submission about fraud with respect to the consent orders, and I should say on the evidence no such suggestion could have been made. The orders are clearly not interlocutory but are final orders. Insofar as Mr Jacobs submitted that the orders did not reflect the intention of the Court, I am unable to agree. It seems to me to be clear from the transcript of the 21 April 2006 that the orders do reflect the intention of the Court, and of course the Council does not consent to the setting aside of the consent orders. 34 It follows that none of the evidence raises any basis upon which a conclusion could be drawn that any of the circumstances in Pt 15 r 9 have been satisfied. 35 Let me now turn to the inherent jurisdiction of the Court to ensure that its processes are not used to effect injustice. This inherent jurisdiction, assuming it exists in this Court, has to be approached on a principled basis. In this regard I accept the Council's submissions that the evidence (in particular the transcript of 17 March 2006 and the correspondence which is annexures D, E and F to the affidavit of Ms Hewitt, but also the consent orders themselves and the fact that they bear handwritten amendments which I can only infer were made as a consequence of discussions between Mr Jacobs and Ms Hewitt on or about 21 April 2006) does not support any inference that Mr Jacobs was so affected by whatever his psychological condition at that time that he did not understand the orders he was entering into. In other words I think it is clear from the evidence that Mr Jacobs and the Council entered into fairly detailed negotiations about the form that these consent orders should take over the weeks leading up to 21 April 2006. The consent orders were amended on various occasions, sometimes as required by Mr Jacobs but sometimes not, and culminated in an agreement which by 21 April 2006 both parties were content to have reflected by way of consent orders. 36 In Paino v Hofbauer (1988) 13 NSWLR 193, McHugh JA dealt with the circumstances in which a consent order based on some form of compromise agreement could be set aside and emphasised that it would need to be an exceptional case before the court would exercise any discretion in favour of the person seeking to set aside such an order. In Mohinder Singh v Secretary, Department of Family & Community Services [2001] FCA 1281 the Full Court of the Federal Court dealt with an application to set aside a consent order and referred to Paino v Hofbauer, and in that case reached the conclusion that there was no objective basis, despite the applicant's perceptions in that matter, upon which to set aside the consent orders. 37 I have reached a similar conclusion in this matter that it is not in the interests of justice to set aside the consent orders and that none of the material relied upon by the respondent raises any ground upon which the orders would be set aside. Insofar as it is necessary to do so it seems to me that the following observations can be made about each of the grounds relied upon by the respondent. 38 It is true that Mr Jacobs was unrepresented at the mention on 21 April 2006 but that state had not prevented him from corresponding with the Council's solicitors about the terms of the consent orders, making submissions about the terms of the consent orders to the Council's solicitors and otherwise dealing with the matter at the Court attendances which occurred before 21 April 2006. The fact that Mr Jacobs was unrepresented is not a ground to set aside the orders. I have already said with respect to the evidence about Mr Jacobs' depression, medication and suggested mental state that he was in on 21 April 2006 that nothing in the circumstances suggests to me that he was not capable of comprehending what was occurring at that time and the fact that he gave one word "yes" answers to the questions that were being asked of him by the Judge does not suggest anything other than an acceptance that the matter had been resolved by agreement. The same conclusion must apply with respect to the suggestion that he had no opportunity to get legal advice. The fact is that consent orders were proposed for some weeks before 21 April 2006 and I do not accept that any of material shows that Mr Jacobs was somehow deprived of an opportunity which he otherwise would or could have taken at that time. Any suggestion that either the Court or Ms Hewitt somehow unduly influenced Mr Jacobs to enter into the consent orders is simply not borne out by any of the evidence, nor are the submissions that the circumstances leading up to 21 April 2006 somehow prevented or disabled Mr Jacobs from comprehending what was happening at that time. 39 Otherwise I accept the Council's submissions that many of the submissions made by Mr Jacobs about the merits of the s 124 order, the circumstances with his neighbours and otherwise are simply not relevant to the question whether or not the consent orders can and, if they can, should be set aside. 40 For these reasons it is clear in my view that this is not a case where if there were any inherent jurisdiction to set aside the consent orders that it would be in the interests of justice to do so. To the contrary, it would be against the interests of justice in circumstances where on 21 April 2006 the parties by agreement finally resolved their dispute in terms consistent with the consent orders that were filed in Court on that day and thereafter perfected by the Registrar. 41 For these reasons, the notice of motion filed on 16 August 2006 must be dismissed and I so order. [The parties addressed on costs] 42 The respondent is to pay the applicant's costs of the respondent's notice of motion filed 16 August 2006, as agreed or assessed. **************************** 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. 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