Land and Environment Court New South Wales Medium Neutral Citation: Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 4) [2011] NSWLEC 133 Hearing dates: 3 August 2011 Decision date: 03 August 2011 Jurisdiction: Class 3 Before: Pepper J Decision: 1. the application is dismissed; and 2. the applicant is to pay the respondent's costs of the motion Catchwords: PROCEDURE - whether a judgment of the Court not yet entered should be set aside - whether the Court's decision was based upon misapprehensions as to fact and/or law - whether error in a later decision infected the judgment to be set aside - principle of finality of litigation - application refused Legislation Cited: Civil Procedure Act 2005, ss 56, 98 Land Acquisition Act (Just Terms Compensation) Act 1991 Land and Environment Court Rules 2007, r 3.7(2) Uniform Civil Procedure Rules 2005, rr 36.16(1), 42.1 Cases Cited: Aktas v Westpac Banking Corp Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570 De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 Fokas v Kogarah Council [2008] NSWCA 145 Gattuso v Liverpool City Council [2011] NSWLEC 110 Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 3) [2011] NSWLEC 94 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority of New South Wales (No 4) [2011] NSWLEC 81 Category: Procedural and other rulings Parties: Diane Kay Halley (Applicant) Minister Administering the Environmental Planning and Assessment Act 1979 (Respondent) Representation: Counsel: Mr T S Hale SC (Applicant) Mr R P L Lancaster SC (Respondent) Solicitors: Bradfield & Scott Lawyers (Applicant) Pikes Lawyers (Respondent) File Number(s): 31077 of 2008 EX TEMPORE Judgment Introduction 1On 31 May 2011, the Court ordered that the applicant in Class 3 compulsory acquisition proceedings pay the costs of the respondent (Halley v Minister Administering the Environmental Planning and Assessment Act 1979 (No 3) [2011] NSWLEC 94). 2By notice of motion filed 14 June 2011, the applicant now seeks, pursuant to r 36.16(1) of the Uniform Civil Procedure Rules 2005 ("the UCPR") to set aside this judgment. 3Rule 36.16(1) provides that a court may set aside or vary a judgment or order if the notice of motion for the setting aside or variation is filed before entry of the judgment or order: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. 4In support of the application the applicant relied on two affidavits of Mr Bruce Kerridge sworn 14 July and 28 July 2011. Mr Kerridge is a solicitor with the firm Bradfield & Scott and has carriage of the matter for the applicant in the proceedings. 5The earlier affidavit was rejected in its entirety, its content wholly in the nature of submissions. The later affidavit deposed to the uncontested fact that no judgment or order has been entered and that there is no sealed judgement or order on the Court file, nor are there any sealed documents that embody the judgment or order of the Court in respect of Halley (No 3) . 6Because the motion does not disclose a sufficient basis upon which to set aside the judgment, the application is dismissed with costs. The Power to Set Aside a Judgment or Order is Sparingly Used 7In the decision of De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 the High Court stated the following applicable legal principles in respect of the power of a court to reopen, vary or set aside its judgments or orders (at 215, emphasis added and citations omitted): The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. 8But as was clarified in the subsequent decision of Aktas v Westpac Banking Corp Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570 (at [6] per French CJ, Gummow and Hayne JJ) it is not just "accidents and oversights" that can engage the jurisdiction of a court to set aside its decisions and orders (citations omitted): 6. As Mason CJ rightly said in Autodesk Inc v Dyason [No 2] the exercise of the jurisdiction to reopen a judgment and to grant a rehearing "is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard". The jurisdiction is, however, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. That Mason CJ dissented in the result in that case does not deny the accuracy of the propositions just made. 9However, as all courts have emphatically and repeatedly emphasised, the power should be rarely used and that to reopen a final order or set aside a judgment requires "exceptional circumstances" (Fokas v Kogarah Council [2008] NSWCA 145 at [27] and more recently in this Court see Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority of New South Wales (No 4) [2011] NSWLEC 81 at [4] and [6] per Pain J, albeit in the context of varying a judgment but nevertheless apposite). The Judgment Should Not Be Set Aside 10The applicant submitted that there were two errors that had been committed by the Court in Halley (No 3) that warranted the setting aside of the judgment: (a)first, that the judgment had proceeded upon a misapprehension of fact and/or law that there was an "altered legal landscape" (Halley (No 3) at [49]) by reason of the promulgation of s 98 of the Civil Procedure Act 2005 ("the CPA"), r 42.1 of the UCPR and r 3.7(2) of the Land and Environment Court Rules 2007 ("the 2007 Rules"); and (b)second, that by reference to a later decision in Gattuso v Liverpool City Council [2011] NSWLEC 110, where the Court incorrectly referred to an objection by an applicant to a determination by the Valuer General of compensation in respect of land compulsorily acquired as an "appeal" (at [1], [8], [136] and [137]), the Court proceeded under the misapprehension in Halley (No 3) that it was being asked to determine costs in the context of an appeal and not in the context of a determination of compensation by the Court to which the applicant was entitled under the Land Acquisition (Just Terms Compensation) Act 1991. 11Turning to the first asserted misapprehension, properly analysed this amounts to no more than a contention that the Court committed an error of law in relation to the effect of the post 2005 legislative framework for determining awards of costs in compulsory acquisition proceedings and the extent to which the earlier decisions pre-dating this framework could be distinguished. In my opinion, this is an insufficient basis for setting aside the judgment in Halley (No 3) . It amounts to no more than a submission that the Court 'got it wrong'. While this may found the basis of an appeal, it cannot found the basis of the setting aside of the judgment. 12It was telling in this regard that Mr Hale SC, who appeared for the applicant, could not, when repeatedly pressed by the Court, take the Court to a single decision that was factually analogous to the error presently alleged wherein a court had permitted an earlier judgment to be set aside. 13It was perhaps for this reason that Mr Hale SC further submitted that his client had been denied procedural fairness because she had not been given the opportunity of addressing the Court on this "altered legal landscape". In addition, had the opportunity been afforded to her, she would have submitted that in fact the legislative scheme prior to 2005 governing awards of costs in compulsory acquisition proceedings was relevantly identical to the present statutory scheme and thus there was no basis for distinguishing the earlier decisions in the manner in which the Court had purported to do in Halley (No 3) . In support of this submission, Mr Hale SC relied upon the decision in Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 (especially at 265). 14But Smith may be distinguished from the present application on the basis that the error central to that decision was, unlike the present application, a mistake of fact. It provides, in my view, no present assistance to the applicant. 15Two additional observations ought to be made. First, the importance of the post 2005 legislative regime, including the effect of r 3.7(2) of the 2007 Rules, was squarely raised with the applicant and the applicant was afforded the opportunity to comment on it (see, for example, Halley (No 3) at [40]). 16Second, and in any event, there has been, in my opinion, no misapprehension as to either the facts or the law. This is because both decisions post-dating (such as Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 and Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 153; (2010) 175 LGERA 189) and pre-dating the enactment of the CPA, the UCPR and the 2007 Rules were considered and analysed by the Court (at [44]-[63] in Halley (No 3) ) and the Court nevertheless ordered the applicant to pay costs. While it is correct that the Court in Halley (No 3) was not, in contrast to the present application, taken in detail to the legislative provisions governing awards of costs in compulsory acquisition cases prior to 2005 this does not, in my opinion, provide a sufficient basis for the Court to set aside its earlier decision in light of its extensive review of the case law in Halley (No 3) . It is not the case that the Court omitted to take into account a seminal decision, a critical statutory provision or a material fact that would warrant the relief sought and the decision subsequently being reconsidered. 17In respect of the second asserted misapprehension, I accept that in Gattuso the Court wrongly made reference to the proceedings being an "appeal" - which plainly it was not - rather than an "objection" to the Valuer General's determination of compensation and the subsequent determination by the Court of the compensation awarded to the applicant - which plainly it was. But not only was Gattuso a decision handed down after the decision in Halley (No 3) , the applicant could not point to anything in either the language or reasoning of Halley (No 3) that would indicate that the misdescription in the latter judgment had somehow infected the reasoning process in the former. 18Finally, even if I were to accept the arguments advanced by the applicant that the judgment in Halley (No 3) was premised upon misapprehensions as to fact and/or law in the manner described and that these misapprehensions were of a sufficient character that would enable the judgment being set aside, I would nevertheless decline the relief sought on the basis that to do so would be futile. This is because there would be no prospect of any different order being made by the Court in light of the detailed consideration afforded to the decisions both before and after the 2005 legislative enactments and the finding made by the Court that "on any measure she [the applicant] was unsuccessful in the litigation" (at [73] in Halley (No 3) ). 19Ultimately, in my opinion, the applicant seeks to cavil with the decision of the Court in Halley (No 3) . She is entitled to do so, but only in this instance by exercising her right of appeal and not by way of an application to re-open. As Pembroke J succinctly stated in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 (at [34]): [34] ... The law is not an exact science and on issues such as these, reasonable minds may occasionally differ. That is why an unsuccessful party has a right of appeal. Adherence to the principle of finality of litigation is of paramount importance in the administration of justice. The judicial system would become discredited if decisions were unduly subjected to further consideration. Litigants consumed by the uncompromising certainty of their own rectitude must accept the result, subject to their rights of appeal, and the exceptional but limited power to re-open: DJL v The Central Authority (2000) 201 CLR 226 at 262-263 (Kirby J). 20In short, were the result in this applicantion otherwise, the jurisdiction to set aside the judgments and orders of this Court would amount to no more than "a back door method by which unsuccessful litigants can seek to reargue their cases" (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 per Mason CJ). Conclusion and Orders 21In my view, the principle of finality of litigation strongly militates against setting aside the judgment in Halley (No 3). Furthermore, to do so would not, as the applicant argued, facilitate the just, quick and cheap resolution of the real issues for determination in the proceedings (s 56 of the CPA). 22It follows that the application must be dismissed. 23In the circumstances it is therefore appropriate that the applicant pay the respondent's costs of the motion, but not, as was sought by the respondent, on an indemnity basis. ********** 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. Decision last updated: 05 August 2011