Land and Environment Court New South Wales Medium Neutral Citation: Young v King (No 4) [2012] NSWLEC 236 Hearing dates: 17, 18, 19 September 2012 Decision date: 19 October 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. The respondent's Notice of Motion filed on 18 September 2012 is upheld. 2. The applicant's Notice of Motion originally filed on 23 May 2008, as finally formulated on 27 March 2012, is dismissed. 3. Costs are formally reserved, and the parties are directed to file any Notices of Motion seeking costs orders within 28 days, and after 28 days to approach the Registrar within a further 14 days to fix a timetable for the filing of written submissions for the trial judge's consideration in chambers. 4. Exhibits are to be retained until the question of costs has been resolved. Catchwords: PRACTICE AND PROCEDURE: Application for summary dismissal of a Notice of Motion brought by an applicant to set aside orders made in her case in 2004 - jurisdiction of the court to consider such a motion - question whether a case is made out for such a motion if within jurisdiction - costs Legislation Cited: Civil Procedure Act 2005 Conveyancing Act 1919 Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Supreme Court Act 1970 Water Act 1912 Uniform Civil Procedure Rules 2005 Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Brown v Randwick City Council [2011] NSWLEC 172 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1982-3) 151 CLR 447 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kirk v Industrial Court of New South Wales; [2010] HCA 1; 239 CLR 531 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; 123 LGERA 179 Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777; (2004) 12 BPR 22,287 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; (1976) 28 FLR 195 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Romeo v Paplia [2012] NSWCA 221 R v Bolton (1991) 155 J.P.N. 620 Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 V'landys v Land and Environment Court of New South Wales [2012] NSWLEC 218 Young v King [2004] NSWLEC 93 Young v King (No.2) [2009] NSWLEC 125 Young v King (No 3) [2012] NSWLEC 42 Young v King [2011] NSWSC 793 Category: Procedural and other rulings Parties: Margo Young (Applicant) Brendan King (First Respondent) Kristina King (Second Respondent) Representation: Mr R Newell, Barrister (Applicant) Mr M Wright, Barrister (First & Second Respondents) L C Muriniti & Associates (Applicant) Terence Stern (First & Second Respondents) File Number(s): 40417 of 2003 Judgment Introduction The applicant's Notice of Motion 1Since 2008, the applicant has been asking the court to vacate or set aside consent orders made in these proceedings (40417 of 2003), on 19 February and 8 March 2004, by the then Chief Judge of the Land and Environment Court of New South Wales ('LEC'), McClellan J - Young v King [2004] NSWLEC 93. 2At long last the final version of her amended Notice of Motion ('NOM') to that effect came on for hearing on 17 September 2012. 3Mrs Young's position, put simply, is that she has discovered evidence which she contends establishes that those orders were procured "improperly", and, as events have unfolded, the court's orders have worked an injustice on her. Historically, courts never permit their orders to be a source of injustice (see Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110, at 114). 4Various allegations of improper behaviour, said to infect the 2004 orders, began to crystallize and develop shortly after her 2008 NOM was filed, and once she had embarked on its lengthy and complicated course of case management. 5Over the four years since the NOM was filed, the court has extended great latitude to Mrs Young and her present legal representatives, as an ever-expanding picture of a possible miscarriage of justice was being painted each time the matter came before the court. The Court's power 6Rule 36.15 of the Uniform Civil Procedure Rules 2005 ('UCPR') governs applications of this type, and provides as follows: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 7The orders sought to be set aside will be discussed shortly, but, in essence, the parties agreed to settle the original litigation on the basis of an undertaking proffered by the respondents. McClellan J decided to accept that undertaking, and, on that basis, ordered that the applicant's proceedings be dismissed, by consent, and that the respondents pay her costs. 8The court has not yet heard argument as to its power, under r. 36.15 or otherwise, to set aside the respondents' undertaking, as distinct from the court's substantive orders based upon it. The respondents' Notice of Motion 9On the second day of the hearing of the applicant's NOM (18 September 2012) - following the completion of her counsel's opening address, but before any of the applicant's substantive evidence was read in support of her NOM, or any arguments had been heard on its admissibility on such a NOM - the respondents' counsel moved the court to summarily dismiss the applicant's application, on the grounds (1) that this court lacks jurisdiction to grant it, and (2) that no case for it has been made out against the present respondents. 10Counsel for the applicant refutes these grounds, but also submits that the respondent's NOM is an "abuse of process", as it should have been brought long ago (see [356] and [357] below, for the competing submissions on this issue). 11I have decided to accede to the respondents' dismissal application, and my reasoning is at the heart of this judgment. 12However, while Mr Wright made clear (T18.9.12, p74, L31-32) that his dismissal application is based "entirely" on what was put to the court in Mr Newell's opening, rather than on the many exchanges between counsel, between 2009 and this 2012 hearing, this judgment must also deal with two other matters. 13It must explain, firstly, why it has taken until now for this 2008 NOM to come on for hearing, and secondly, how the court and the case finally arrived at this point, while the drainage problem at the heart of the matter still remains unresolved. Delay 14The respondents argue that the delays have resulted from (1) the constant discovery of new parties to, and aspects of, the conspiracy Mrs Young alleges operated against her interests, before, during, and since the 2004 hearing and orders; (2) the persistent evolution of new "angles" to her claims; even during the opening submissions on this NOM (eg s 121A of the Water Act 1912); and (3) what I described on the first day of this NOM hearing as her "flagrant disobedience" of directions given, as the court endeavoured to bring the matter "to a head". 15As counsel for the applicant conceded, when beginning his opening submissions (T17.9.12, p17, LL26-29): It's no secret that we have not always been quite certain about what happened, and that from [time] to time we have had a different theory about what would happen - what the case was about. History 16I sought to summarise, to some extent, the long and complex history of these proceedings in my two earlier judgments, delivered on 31 July 2009 - Young v King (No.2) [2009] NSWLEC 125 - and on 14 March 2012 - Young v King (No 3) NSWLEC 42. 17Regrettably, much of that history has now been questioned in the light of the discovery and evolution to which I have just referred, and the full history will, therefore, now be set out (or perhaps repeated) in this, my third judgment. Structure of this judgment 18I will set the necessary context for my decision on the respondents' NOM, by describing, in the following order: Relevant proceedings in this and other courts, past, current, and potential (commencing at [27] below); My earlier summary of relevant events from 2001 up to and including the commencement of these proceedings in 2003, and the hearing, by the LEC, in early 2004, of the substantive case as it was then formulated ([49]); The decision delivered by McClellan J in the substantive matter, on 19 February 2004 ([50]); The aftermath in this court of that decision, including amendment and formal entry of his Honour's orders ([58]); The post-judgment dealings between the parties (which included the commencement of proceedings in the District Court ('DC')), and the applicant's ongoing attempts, since she commenced, in 2008, her chosen process to secure a "reopening" of the matters dealt with by McClellan J ([61]); The attempts by this court to reduce the "heat" of the dispute, and to look for a mediated and lasting solution to the whole affair (my 31 July 2009 order, referring to a mediator the dispute as it then stood, remains on foot) ([90]); The escalation of the dispute, indeed its constantly "shifting sands", since it came back before this court in March 2011, after the failed mediation, and progressed towards this hearing ([108]); The formal 'grounds' upon which the applicant's NOM to "vacate" is to be argued, if the respondents' dismissal NOM were to fail ([273]); My accumulated impression of the applicant's case on her NOM, as gathered on the way to the commencement of this hearing ([285]); The latest formulation of the applicant's position, especially against the respondents, as now put before the court in her counsel's written and oral submissions. ([294]) 19I will then consider the respondents' NOM for summary dismissal of the applicant's NOM ([342]). Questions of Costs 20During the evolutionary phases of the litigation of the present application, each side has criticised the other for serving major written materials on the eve of a court listing. 21This unfortunate practice - pursued much more by the applicant than the respondents - has resulted in repeated adjournments, and deferrals, and a multiplicity of case management/directions hearings (approximately 30 in total), the costs of which will require close consideration by the court in due course (see judgment No 3, at [31]). 22The respondents have applied many times for costs orders in their favour, often on an indemnity basis, but the question has consistently been reserved. On 14 December 2011 (Tp11, LL39-43) I said, on the question of costs, that "at some point this sub-issue of the degree to which this matter has kept going for mention after mention without being properly articulated ... has got to be addressed", and then, on 23 January 2012 (Tp12, LL1-5), I indicated that I might have to hear some costs arguments, and require that any costs order against the applicant be satisfied, before I dealt further with her application. 23The respondents now seek that the summary dismissal of the applicant's NOM should attract an order for costs in their favour, on an indemnity basis. In their written submissions (par 88) they specifically ask to be heard on the question of costs. Also, during argument, they suggested that at least some of their costs ought be ordered to be paid by the applicant's lawyers personally (T18.9.12, p84, LL6-8). 24As I have decided to accede to the respondents' NOM, there is a prima facie entitlement on their part to an order for costs, on some basis, in their favour, but, as the costs issues were not argued at the September 2012 hearing, they are not addressed in this judgment. However, the regrettable level of detail into which this judgment is about to descend should (1) assist in crystallising those costs issues, and (2) facilitate their determination in due course. 25Because of that detail, and in the interests of saving further costs, I consider that the costs issues should be dealt with by written submissions, if no agreement can be reached within 28 days of the publication of these reasons. 26Regrettably for Mrs Young, in respect of costs, the High Court has said on many occasions that a party is bound by the conduct of litigation by its legal representatives - eg, University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, at 71, and Coulton v Holcombe [186] HCA 33; (1986) 162 CLR 1; see also the judgment of this court in Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68, at [44]-[55]. Proceedings involving the parties to this present case, and relevant other persons The Local Court 27McClellan J noted (at [7]-[9], quoted below in [52]), that there had been protracted negotiations between the parties , and some proceedings in the Local Court, pursuant to the Dividing Fences Act 1991, before any action was taken in this court. The proceedings in this court 28The substantive proceedings in this court ('the LEC case') were commenced on 14 April 2003 by Mrs Young, of 35 Calca Crescent, Forestville, against her next-door, down-slope neighbours to her north, the respondent Kings, of No. 37. 29Mrs Young says that No 35 was constructed in 1964, that she bought it in 1985, and that the Kings bought No 37 late in 1999. Some of the offending works at No 37, designed to expand use of a subfloor/basement area as perhaps a granny flat, appear to have commenced in the time of previous owners. 30The parties' local Council (Warringah) was not made a respondent to these proceedings, and one of Mrs Young's complaints against her former lawyers is that she gave them repeated instructions to join the Council as a respondent, and they advised her "that the Council wasn't a necessary party" - T24.2.12, p17, LL29-30). 31It would appear that the lots on which the parties live were created by a 1958 subdivision, which put in place, according to Mrs Young, and in order to take into account a "high" water table in the area, and the proximity of the land to Bates Creek, specific drainage arrangements for both groundwater and overland flow. Those arrangements included a rubble pit and "chimney" drain, on No 35, draining into an inception trench on No 37, and on towards a Council-approved stormwater outlet near the Northeast corner of No 37. 32In the substantive proceedings heard in 2004, Mrs Young sought 15 declarations, 9 injunctions, and an award of damages, and she filed extensive points of claim. 33She was represented at the time by Ian Hemmings of counsel, instructed by solicitor Jason Hones of Hones Lawyers. The Kings were represented by solicitor-advocate Stephen Griffiths, of the firm then called Pike, Pike & Fenwick ('Pikes'). 34The proceedings came on for hearing on 16 February 2004, and orders were made in February and March 2004. 35Both parties have changed their respective legal representation since the 2003-04 proceedings and events - Mrs Young is now represented by Robert Newell of counsel, instructed by Leonardo Muriniti, and Mr and Mrs King by Michael Wright of counsel, instructed by Terence Stern. 36When Mrs Young embarked on her attempt, in 2008, to set aside the 2004 orders, she charged the Kings with contempt of them, but that charge did not proceed. A District Court case 37On 4 July 2007, Mrs Young commenced her DC case (Matter No. 2857 of 2007, currently before Curtis J) against the Kings and Warringah Council, concerning the matters in dispute which had given rise to the 2003 LEC proceedings. 38This court has not been fully informed about the DC proceedings, other than from the inclusion among documents filed in this court of at least a draft of a statement of claim, and the transcript of one short hearing (18 November 2008). 39The draft amended (or further amended) DC Statement of Claim among the evidence has 19 prayers in all, including mandamus, five injunctions, an order under s 88A of the Conveyancing Act 1919 for a drainage easement over the Kings' land in favour of Mrs Young's land, orders setting aside the Council's development consent and construction certificate ('CC'), damages for loss of support, trespass per se, negligence, nuisance, mental distress, plus "aggravated damages", costs, and interest. 40During the DC hearing on 18 November 2008, Mr Wright outlined his clients' suggestion that an independent engineer be jointly appointed to design drainage works on the boundary between Nos 35 and 37, and, if necessary, for survey work to be done on both properties. Curtis J indicated that, while he may have come to some preliminary views, he would not publish them until options for a solution were explored in the LEC. 41Among other things, his Honour said (at T18.11.08, p2, LL43-46): 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 (Tp3, 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 ... 42On 22 July 2011, McDougall J in the Supreme Court ('SC') dismissed, with costs, an application by Mrs Young to have the DC proceedings removed into the SC, on the grounds that such a transfer was "premature and therefore lacking utility" [2011] NSWSC 793, at [8]. 43The DC case was stayed, by consent by, Curtis J on 12 August 2011, pending the outcome of the applicant's motion in this court. The applicant is expected to seek to amend her DC Statement of Claim, if and when the case is reactivated. Supreme Court cases 44On 15 February 2010, Mrs Young commenced her SC case (Matter No. 2010/41007, currently being case managed by Garling J) for damages for breach of duties, negligence, etc. 45This court has seen an amended Statement of Claim filed in November 2010 against the 5 named defendants, who are (1) Jason Hones, (2) his firm, (3) Ian Hemmings, (4) expert Dr Stephen Perrens, and (5) Perrens's firm (Hughes Truman) - all of whom were retained by Mrs Young for the LEC proceedings in 2003 (T15.3.11, p6, LL23-24). This court was told during the hearing dealt with in this judgment that Garling J is presently reserved on competing motions he heard earlier in 2012. (It may be that he heard them on or about 28 February, or perhaps in April.) 46The Kings are not involved in the applicant's current SC case, but they have also taken their own action in the SC, having sued Pikes for "breach of retainer, negligence and misleading and deceptive conduct" ('the Pikes case' - Matter No. 2010/38916). I have no substantive material before me in relation to that case. 47In addition, a trespass or nuisance case in the SC, and a further possible action for mandamus against the Council, have also been mooted by Mrs Young's solicitor and counsel, in correspondence, and during argument. Transfers among the courts 48Further questions may arise regarding possible transfer of matters from one court to another, consequent upon McDougall J's reasons for decision (at [42] above), which left the possibility open for a later time. Mr Newell suggested (T19.9.12, p100, LL10-18) that the DC proceedings should be transferred to the SC, and that both the DC and SC cases should then be transferred to the LEC. In any event, he has foreshadowed applications for documents in each court to be relied upon in the others. The history of the LEC case as earlier recounted 49In my judgment of 31 July 2009, referring to mediation various issues, which had arisen post-2004 in this matter, I recounted some relevant history, in the following terms (at [21]-[37]): I The evolution of the dispute in 2001-03 21 Mrs Young lives at No.35 and the Kings at No.37 Calca Avenue (sic), 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 leveled 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 "'our 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 (sic), 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) McClellan J's 2004 Decision in more detail 50Essentially, McClellan J sanctioned an agreement, said to have been made between the parties, under which the applicant agreed to her proceedings being dismissed on the basis of an undertaking given to the court by the respondents to do certain things to resolve her problem. There remained a dispute about costs, which his Honour determined by ordering that the respondents pay the applicant's costs. 51I believe that for present purposes I need to set out some of what his Honour said in his judgment of 19 February 2004 ([2004] NSWLEC 93). I commence my extracts at the point where his Honour dealt with the works done towards the Kings' creation of a granny flat, following their acceptance of plans and drawings apparently prepared late in 2000. It would appear that work actually commenced in June or July 2001. 52His Honour said (at [5]-[12]): 5 Work commenced on the site to effect the alterations. Excavation was carried out and other work consistent with the ultimate objective was undertaken. In particular, the existing wall of the cottage adjacent to where the granny flat accommodation was proposed was underpinned. Excavation to lower the area for the footpath was carried out, and a concrete footing, consistent with the footing required for the retaining wall on the boundary of the property shown on Mr King's plan, was poured. All of those works were apparently undertaken before the consent of the council was obtained. 6 The council's consent was ultimately obtained on 5 February 2002. As was appropriate, the conditions of approval noted that it related to proposed work only, not work which had been constructed without the prior consent of the council as nominated on the attached plans. Condition 20 of the approval required suitable drainage to be installed behind the proposed retaining wall, including an agricultural pipe to suit the local conditions. A dish drain was to be provided along the high side of the retaining wall to collect and dispose of all surface run-off. 7 Regrettably, the carrying out of the works which necessitated excavation on the boundary between number 37 and number 35, and the undertaking of other works which disturbed the land between the two properties, occasioned difficulties between the neighbours. There is in evidence lengthy correspondence between them reflecting elevated emotions and an incapacity to reach any common ground in relation to the matter. 8 The conflict between the parties extended to a dispute over the appropriate fence between the two properties. The plans indicate that there had previously been a weld mesh fence which was proposed to be replaced by a new wooden dividing fence. As it happens, a steel Colorbond facility has been provided. Apparently this was determined as appropriate following proceedings in the Local Court pursuant to the Dividing Fences Act 1991 (NSW). 9 At an early stage of the conflict, the Kings approached the Community Justice Centre to seek assistance in mediating the problem. As I understand it, the problem at that stage was confined to the proposed dividing fence. Mrs Young was not prepared to mediate that matter and it was ultimately resolved in the Local Court. 10 The correspondence between the parties is, as I have indicated lengthy, and there is little to be gained by my repeating it in these reasons. However, the dispute escalated and, by an application dated 14 April 2003, Mrs Young commenced proceedings in this Court seeking various declarations and orders. The matter was pleaded in points of claim, which were filed on 26 May 2003. 11 In that document it is firstly pleaded that between the period December 2000 to about October 2002, the respondent carried out, or permitted to be carried out, various unlawful works. Of the particulars provided, items (e), (f) and (i) are of significance in the ultimate resolution of this matter. 12 The particulars take the following form: '(e) Construction of a footing on the southern boundary; (f) Construction of a retaining wall on the southern boundary; ... (i) Underpinning of existing footings to the dwelling house.' 53His Honour then discussed, in rather a critical way, the pleadings filed ([13]-[15]), and continued (at [16]-[20]): 16 The evidence before me does not enable me to know whether that pleading was made with the express knowledge of Mr King. I also do not know whether it was made with knowledge of the development application and accompanying plans, which had been lodged with the council and approved in February 2002. However, if the solicitors had inquired of Mr King they would have been made aware that the plan identified the relevant structure as a retaining wall and that the footing which had been constructed was the footing for that wall. The relevant provisions of the local environmental plan have the consequence that a retaining wall is exempt if it has a maximum height of 900 millimetres above or below ground level and will be located at least 900 millimetres off any property boundary. In the present case, the retaining wall was proposed to be constructed on the boundary with the consequence that, in truth, there was no defence to the pleading that it had been constructed without consent. 17 With respect to para 3(f) of the points of claim, the same position exists. The footing was constructed for the purpose of the retaining wall, as the plan makes plain. Again, if inquiry had been made, it would have been obvious that the defence as pleaded could never be sustained. 18 The third matter is para 3(i) of the points of claim, which relates to the underpinning which had been carried out to the existing footings to the cottage at number 37. The defence admits that work had been carried out, but pleads: 'such development was exempt under Schedule 1 'Minor Internal Alterations to Buildings' of WLEP 2000 and otherwise deny that this development was unlawful'. 19 It is unnecessary to refer to the plans or to seek instructions in relation to this matter to understand that that defence could never have been sustained. Exemption is provided in the local environmental plan in relation to minor internal alterations, if they are: 'non-structural work such as replacement of doors, wall/ceiling or floor linings or deteriorated frame members, and renovations of bathrooms, kitchens, inclusion of built in fixtures such as vanities, cupboards and wardrobes. Applies only to renovations or alterations of previously completed buildings. Works shall not change room configuration, reduce window arrangements for light/ventilation needs, reduce doorways for egress or enclosed open areas'. 20 The work involved here was obviously structural and obviously external to the building. The pleading that it was minor internal alterations could never have succeeded. I shall return to those matters when I come to consider the ultimate course of these proceedings. 54His Honour then dealt with pre-trial offers/attempts to mediate the dispute ([21]-[24]), and continued (at [26]-[36]): 26 The matter progressed through this Court and was fixed for hearing commencing last Monday, which was 16 February 2004. When the matter was called on, Mr Ian Hemmings, appearing for the applicant, briefly opened his case. I then invited Mr Griffiths, the solicitor for the respondents, to tell me the position in relation to his clients' defence. At that stage Mr Griffiths indicated that he conceded that the works referred to in paras 3(e), (f) and (i) of the points of claim were carried out without consent. The parties by that stage were apparently engaged through their experts in discussion about what work might need to be done to rectify any environmental problem on the site occasioned by the works already undertaken. The experts were meeting in the precincts of the Court. By 3 o'clock on the Monday afternoon the experts had agreed on the works which needed to be done. They involve the reconstruction of the drainage for the retaining wall to ensure that the capacity of the downstream drains from the wall itself are adequate to dispose of the water in times of heavy flow. Evidence was given about the likely cost of these works and Mr Springett, a civil and structural engineer engaged by the respondents, confirmed that the cost was of the order of $1000. 27 Accordingly, by the end of Monday, the dispute between these parties had been entirely resolved except in relation to matters of costs. As part of the compromise which the parties reached in relation to the whole matter, the applicant did not press for relief beyond that which was agreed to be involved in the works agreed upon by the experts. The matter was disposed of by the respondents giving an undertaking to carry out those works. 28 As a consequence, it was unnecessary for me to explore all of the evidence prepared for this matter ... [except] insofar as it related to ... costs. ... 29 The necessity for carrying out the agreed works is to protect Mrs Young's property. In this respect, the experts are agreed that the drain which had been installed was inadequate. However, Mr 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. 30 Dr Perrens, an experienced hydrological engineer, had a different view. Both Dr Perrens and Mr Springett gave oral evidence in relation to this aspect of the matter. Dr Perrens drew upon evidence from piezometer readings taken in May/June last year, following a wet period which was identified to be a "one in five event", and found the piezometer readings to show an elevated water table adjacent to Mrs Young's house. 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. There is evidence of water impact upon that dwelling at present, although the evidence does not enable me to find whether or not that has been occasioned by the movement of ground water since the construction of the footing for the retaining wall. Of course, since the footing was constructed, Sydney has experienced, as has much of New South Wales, a dry period. 31 The evidence of Mr Springett was that drawing upon the modelling which Dr Perrens had undertaken of the effect of the lower drain, it had altered the draw down curve so that it would not be possible in future for water to rise to the level which it may previously have done, and, accordingly, the works which had been undertaken in his opinion improved the situation. 32 Mr Springett was not a satisfactory witness. On many occasions he failed to answer the question he was asked, and proffered opinions which were plainly designed to advocate a position rather than fulfil his role as an expert for the Court, namely to assist the Court to resolve the problem. 33 Whereas Mr Springett was unsatisfactory, Dr Perrens was the opposite and, having regard also to his qualifications and experience, I accept his evidence on these matters. In particular I accept his analysis of the situation having regard to the elevated piezometer readings and his conclusion that the construction of the footing without adequate drainage would have the consequence in significant wet periods of locally raising the water table adjacent to the cottage. This would occur because an inadequate drain would not allow sub-surface water to be removed as efficiently as would otherwise have been the case. 34 Accordingly, I am satisfied 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. 35 It follows that the applicant has succeeded in these proceedings. 36 Of course, there were many other matters pleaded and, as I have indicated, some in the alternative. There were also other issues which have not required resolution. However, the applicant has substantially succeeded in the proceedings and will obtain undertakings which provide relief in relation to the adverse impact upon the applicant's dwelling. ... 55His Honour went on to address the question of costs, in the context of the evidence before him regarding some settlement negotiations ([37]-[82]). 56His Honour commented as follows, in regard to the substantive issues, in the course of his remarks which were mainly relevant to costs: 39 ... I am satisfied that a drainage problem had been created by the construction of the footing with inadequate drainage. ... 41 That offer was made in the belief that the applicant's ground water problems were being caused by an inadequate stormwater detention facility within her own property. In their offer, the respondents were offering to fund the reconstruction of a water detention pit in the belief that it would resolve the applicant's problems. However, no offer was made in relation to the drainage of the footings or any other rearrangement of the drainage conditions on the respondent's property. As I have found that the footing for the retaining wall has had the effect of interrupting the sub-surface flows, I am satisfied that it was not unreasonable for the applicant to reject that offer. ... 43 As it happens, the ultimate resolution of the drainage problem is consistent with the offer which was then made. However, there is one further matter to which I should advert. 44 At the time this offer was made, the applicant's experts were not aware of the nature, if any, of the drainage which had been placed adjacent to the underpinning of the main part of the cottage. Accordingly, they were not aware whether there was a drain in that location which could function to draw down the ground water on the respondent's property and also on the applicant's property. The presence of that drain was a feature of later discussions, which included a dispute in relation to a notice to produce which sought a video taken of the works during the course of their construction. The applicant requested that video but the request was declined unless the applicant was prepared to pay the cost of editing the video to remove material irrelevant to the construction activities. Although the parties exchanged correspondence about production of the video, it was not ultimately provided until last Friday, 13 February, and was shown to the applicant's experts on the afternoon of Monday, 16 February, after the proceedings had commenced. 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. ... 79 ... this matter required at an early stage for competent persons on either side to meet with a view to determining whether or not there was a problem and, if so, whether there was a solution. As is now apparent, there was a problem for which the solution was to do works costing in the order of $1,000. 80 This case presents considerable difficulties. The correspondence reveals a level of animosity between the parties which grew both prior to and during the course of the litigation. The matters raised in the points of claim provide a comprehensive account of problems perceived with the respondent's building works. I have already adverted to some of the problems which arise from the defence which was filed. It is not possible to know with any certainty what the fate of these proceedings would have been if, instead of denials being made, it had been accepted that some of the works, being those works relevant to the alleged drainage problems, were conceded to have been constructed without consent. It is also not possible to say with any certainty what may have occurred if a competent mediator had been engaged at an early stage. 81 .... In this case, the applicant has succeeded. By concession, she has established relevant breaches of the planning law and has obtained an undertaking that the works necessary to deal with the consequences of some of those works will be undertaken. ... 57His Honour went on to deal with the conduct of the then legal representatives on both sides ([83]-[90]), and included the following comment (at [86]): 86 During the course of the proceedings I also expressed concerns about the conduct of the solicitors for the respondents in relation to the filing and maintenance of a defence which, at least in certain fundamental respects, I am satisfied could never have been sustained. As I have indicated in the course of my reasons, the plans drawn up by Mr King for the building works on his property made plain that what was proposed was a retaining wall for which the footing was constructed before consent was obtained from the council. Being a retaining wall to be constructed on the boundary of the property, it was not exempt development under the Local Environmental Plan. In addition, the work by way of underpinning the existing cottage could never be described as 'minor internal alteration' even though this was pleaded in the defence (para 3(i)). "Finalising" the 2003-2004 litigation following the McClellan judgment 58Put shortly, McClellan J found little merit in the defences pleaded by the respondents to the applicant's proceedings, and accepted the respondents' undertaking to do what his Honour saw as the course which should be followed to rectify the environmental harm/threat. He, therefore, formally dismissed the proceedings, but awarded the applicant her costs. 59At the end of his judgment on 19 February 2004 (in [91]), McClellan J pronounced the following orders, which I quoted above, (at [49] 37, with emphasis added): 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. 60What then occurred in the matter was summarised in my judgment of 31 July 2009 (at [38]-[42]) as follows: 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. Dealings between the parties, following the 2004 orders 61The respondents satisfied the costs order made by McClellan J, paying an amount of some $157,000 to the applicant on account of her costs (T15.3.11, p20, L36). 62However, the implementation of the other orders made by McClellan J proved, and has remained, at the very least, contentious. 63As I noted in my July 2009 judgment (at [43]-[48]): 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. New Lawyers came into the matter in 2007-8 64The DC case was, as noted above, commenced on 4 July 2007. 65Among the affidavit materials in the LEC's court file for the present NOM there are items of correspondence between the parties' current solicitors, dating from early 2008. 66Muriniti wrote to Stern on 11 March 2008, shortly after obtaining his first instructions to act for Mrs Young. 67Muriniti indicated in that letter that he anticipated writing to this court asking for the proceedings "to be re-listed in light of your clients' apparent failure to comply with the undertakings which were given to the Court". 68He went on to speculate as to whether an order made by consent dismissing the proceedings was susceptible to vacation, and indicated his assumption that if the order cannot be vacated, his client would seek to commence proceedings for contempt. 69He also suggested that "separate fresh Class 4 proceedings be commenced against your clients, identical to the proceedings which were earlier brought before the Court, except that Warringah Council will be joined as a party this time, and the Court will be motioned to make an order that the evidence in the earlier proceedings be evidence in the new proceedings". 70The Muriniti letter continued: Consideration will then have to be given as to whether the proceedings in the Land and Environment Court should then be transferred to the Supreme Court, concurrent with the proceedings that are presently before the District Court also being transferred to the Supreme Court and both sets of proceedings being consolidated or otherwise heard concurrently. Whilst these matters are being attended to we suggest that by consent, the proceedings in the District Court be stayed. We request that you indicate whether your client is prepared to agree to the proceedings in the District Court being stayed whilst an approach is made to the Land and Environment Court as indicated above. In the event that your clients' consent is not forthcoming, we advise that we will motion the Court for a stay of proceedings pending a determination of the proceedings in the Land and Environment Court. 71Stern responded on 13 March 2008 that, on his instructions, the DC proceedings lacked merit. The Kings denied any breach of undertaking, and asserted that Mrs Young's conduct "was such as to constitute possible contempt of the Land and Environment Court, in that your client sought to frustrate and interfere with my clients' actions directed towards compliance with the undertaking, which they had given to the Court". 72Muriniti responded at length over several letters - dated 19 March 2008, 2 April 2008, 29 April 2008, and, eventually, 5 May 2008. 73In the letter of 5 May 2008, Muriniti noted that Stern had failed to give particulars of the "factual basis for making such a serious allegation", namely that Mrs Young was guilty of possible contempt. Muriniti went on to recount what he had gleaned from a perusal of the Council's file, namely, in his opinion, that the development application ('DA') lodged with the Council by the Kings in purported compliance with the undertakings given to the court, was not accompanied by any considered or detailed plans or specifications. "Such information as was provided by your clients in support of their development application was referred by our client to her expert, Dr Perrens for comment". Dr Perrens was alleged to have identified numerous areas of deficiency and concern, which were then conveyed to the Kings. 74It had not previously been put to Mrs Young that the DA lodged by the Kings would require her consent so that work might be undertaken on her land. On the basis of Dr Perrens' views, Mrs Young "was completely entitled and completely justified to require further and more detailed information", and the Kings failed to address her concerns and those of Dr Perrens. Accordingly, the Kings' DA did not advance further until, in about August 2005, the Kings "purported to lodge with Council a further plan in support of the development application which, on our present understanding, failed to address adequately all of our client's concerns and the concerns of her expert Dr Perrens". 75In those circumstances "our client could not provide her consent to the development application". 76Muriniti noted that Mrs Young had given no undertakings to the court that she would provide her consent to any work being undertaken on her land. In her view the Kings' undertakings were "to effect all necessary work in order to address the drainage problem which had been created by their actions". He further noted that Exhibit A did not indicate that any of the remedial work contemplated required any work to be undertaken on Mrs Young's land, such that her consent would be required. It was her understanding "that all remedial work ... would and could be effected within your clients' property and would not involve our client's property at all". 77That DA had been refused by Council, and Muriniti's letter of 5 May 2008 continued: 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. 78The letter proceeded to give various reasons for the assertion that the Kings had not complied with their undertakings, and suggested, on a without prejudice basis, that the parties adopt "a practical approach to be taken to attempt to resolve the primary matter in issue, viz: the existing drainage problem with which our client is confronted because of your clients' actions". The letter went on to propose detailed options involving basically a stay of the DC proceedings, and some application to the LEC to deal with the failure to perform the undertakings, noting: 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 (sic), the parties could refer the matter to the Land and Environment Court for an appropriate determination by the Court in lieu of the Council. 79The letter concluded: There is one further practical advantage of a stay of the District Court proceedings whilst the matters referred to above are addressed and that is that if there is a satisfactory resolution of those matters, then it can be expected that that will have a significant impact on the quantum of damages that might otherwise be available to our client if the drainage problem is not satisfactorily resolved. Accordingly we invite you to seek your client's urgent instructions and to advise us as to whether they would be agreeable to adopting one of the courses of action which have been proposed hereinabove and if so, we propose that by consent, the proceedings in the District Court be stayed temporarily to enable your clients to either make a fresh application to Warringah Council or otherwise, that an approach be made to the Land and Environment Court. 80Stern responded on 6 May 2008, in the following terms: I do not intend to respond in detail to the lengthy allegations that you make in that letter, except to say, that my client denies the allegations therein. It should, however, be apparent, even from the version of events that appear in your own letter, that your client has refused to consent to the development application that is the subject of the orders made in the Land and Environment Court and has instead demanded concessions that were not the subject of those court orders as their 'price' to provide their consent to our clients' development application. 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. I do agree that 'the situation calls for a degree of commonsense'. My client is prepared to discuss (on a without prejudice basis) why your client is refusing to consent to the Development Application that would allow for the works to be completed. I do not, however, see that any of the proposals made in your facsimile of 5 May 2008 provide the appropriate solution. Further, I do not understand the relevance of the District Court proceedings to this issue. 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. 81Muriniti wrote again on 8 May 2008, and his letter included the following: We refer to your letter dated 6 May 2008 and advise, with the greatest respect, that your clients' motion to have the proceedings dismissed for want of prosecution is misconceived. There has not been a failure to prosecute the proceedings, as alleged. The most that can be said is that there have been some delays that have been completely warranted and justified having regard to the fact that the matters in issue between our respective clients potentially straddle three different jurisdictions, namely the Land and Environment Court, the District Court and the Supreme Court. The causes of action which are presently pleaded in the District Court are causes of action which do not, in our respectful submission, fall within the jurisdiction of the Land and Environment Court. However, the proceedings in the Land and Environment Court, both those which have already taken place and those that are contemplated and the outcome of those proceedings will have an impact on matters which will need to be considered by the District Court and in fact, depending on the outcome of the proceedings in the Land and Environment Court, the extent of the proceedings in the District Court as well as the potential quantum of damages which may be available to our clients if they are successful will have to be determined by reference to what occurs in the Land and Environment Court. 82The letter went on to deal with the issue of res judicata, and to again propose a course of action involving a stay of the DC case, and the resolution of the issues that had arisen in respect of the LEC proceedings, essentially by having them reinstated and referring the dispute to mediation. Once the LEC issues have been resolved, it may prove possible to negotiate a possible resolution of the DC matter. The option advanced required Mrs Young to make the LEC application, and the Kings to not persist with any application to strike out the DC proceedings. The NOMs filed in this court in 2008 and since 83As foreshadowed in Muriniti's letter to Stern of 11 March 2008, the applicant filed in this court on 23 May 2008 the first of four NOMs that eventually came before me, on 26 March 2009. 84In my 31 July 2009 judgment, I noted as follows, in respect to the four NOMs (at [59]-[65]): 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. ... [citations now omitted] 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 ... [citations now omitted] 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. 85Whereas Jagot J seems to have regarded the contempt motion as the only course really open to Mrs Young to "enforce" the undertaking, after the lapse of time from 2004, I observe, with very great respect, that Mrs Young's decision to take that course regrettably served to inflame the conflict between the parties and their legal representatives, and to complicate early attempts by this court to find some resolution. 86On the other hand, Biscoe J's later hint that separate proceedings should perhaps be commenced to secure a reopening of the 2004 orders (as distinct from other relief) was not embraced. The Court of Appeal, in one of its many judgments in the Teoh v Hunters Hill Council litigation, namely its judgment No 5 [2012] NSWCA 75, noted (at [11]ff) a series of cases which indicated that it has long been "the convenient practice", "the proper method", "the preferable course", or "the better course" for attacks on judgments on the grounds of fraud to be made the subject of new and separate proceedings, rather than a motion in the original case. See also Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd ('Permanent Trustee') (1976) 15 ACTR 45; (1976) 28 FLR 195, per Brennan J (at FLR 198-9). 87None of the allegations and counter allegations which I recorded in my judgment of 31 July 2009 has yet been proven. 88In his written submissions of 14 September 2012, when dealing with the applicant's now developed "allegations of collusion, fraud and corruption", Mr Wright says (par 47): The first hint of these allegations appeared at a directions hearing before Biscoe J upon the filing of an affidavit of Mr Muriniti sworn 14 August 2008 referring at paragraph 8 to 'a course of conduct appears to have been engaged in both by the respondents and Warringah Council which involved numerous subtle but significant deviations from planning law and practice'. (Mr Wright cites, in fn 17, T15.8.08. p5, LL20-30, and notes that: "At that stage, the contempt allegations were still being pursued") 89Whatever may be the truth of any of the allegations of fraud or bad faith, each side became highly distrustful, over time, of the other's experts. Referral to Mediation 90After several appearances before me, commencing in March 2009, the parties finally agreed that this court should make an order under s 26(1) of the Civil Procedure Act 2005, and agreed also on the appointment of the Honourable M L Pearlman AO (since deceased) as a mediator. 91In the conclusion to my judgment of 31 July 2009, I said: 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. 92The effect of the orders which followed (in [76]) was to place before the mediator the substance of the NOMs, other than the question of contempt. I attached to my judgment a copy of Exhibit A, which (1) had come into existence at the joint expert "conclave" held at the court in February 2004, (2) proved crucial to McClellan J's decision, and (3) had been associated with his Honour's orders and the respondents' undertaking. 93Warringah Council was, in this court's view, a "key player in finding a resolution of the dispute between the parties", and remains so. 94Council was not a party to the LEC proceedings, but seemed (a) prepared to be joined if they are reopened, and (b) willing to participate in the mediation (see [16]-[17] and [74] of my July 2009 judgment). (On 10 May 2011, Ms Samantha Kelly, a solicitor acting for the Council in the DC proceedings, twice assured the court, intervening by leave, that, contrary to what Mr Newell was putting regarding the Council's attitude, Council remained willing to attend the mediation, "provided we are provided with some indication by the Applicant's solicitors prior as to what they want from us" - see T10.5.11, p19, LL38-40 - or "at least the pleadings" - p23, LL31-34 - see [118] below). 95The Kings' current legal representatives also wanted independent experts "engaged to assist in the process", but I preferred to allow the mediator to consider that option ([15] and [71]). I also left it to the mediator to indicate to the parties, and the court, what materials they may wish her to see ([19] and [74]). 96It was clear that, if the mediation did not succeed, or indeed did not proceed, the court would still have before it the NOMs which were listed for hearing together on 26 March 2009, three of them filed by Mrs Young and one filed by the Kings (see [84] above). The Attempted Mediation ends unsuccessfully 97On 11 November 2009, and 9 April 2010, Hon Mahla Pearlman wrote to me advising of the "progress" of the mediation, but on 16 June 2010 she advised me and the parties' solicitors that she had terminated the mediation because of the ongoing silence of the parties as to a date for it to be continued. 98However, the Order I made on 31 July 2009 referring the matter for mediation still stands - the fact that a mediation takes time to succeed does not mean that the subject matter is not suitable for that form of dispute resolution, and/or that the parties or the court should abandon it as an option. (T15.3.11, p9, LL15-33). 99Ms Pearlman agreed to remain on "stand by" ([115] below), but the parties showed little interest in resuming the process, and she passed away on 2 December 2011. No replacement has yet been discussed with the court. The charge of contempt is dropped 100The court was told on 26 May 2009 that Mrs Young's allegations (in NOM 1) that the Kings were in contempt of court would not proceed. 101Those allegations, and the Kings' NOM relating to their disposition as a priority/separate question (NOM 3), were formally withdrawn on 10 May 2011. 102As a consequence of those withdrawals, NOM 4 seeking to amend the statement of charge for contempt now also has no utility. The NOMs minus contempt 103The two NOMs which remain on foot are, therefore: (1) those parts of Mrs Young's NOM 1 filed 23 May 2008 (as amended 6 August 2008) which seek to "reopen" these LEC proceedings, to have this court: (a) vacate its order, made on 19 February 2004, dismissing the proceedings, and/or (b) make declarations that the respondents breached their undertaking to the court dated 8 March 2004, and/or (c) make declarations as to the effect of the court's orders of 19 February 2004; and (2) Mrs Young's NOM 2 filed 26 November 2008 seeking access to Kings' land for her experts (a surveyor and a plumber, and possibly also an engineer or hydrologist). 104NOM 1 has since been reformulated, and the respondents contend that NOM 2 must await the applicant's success on NOM 1, at which time the court will have to chart a new course for Mrs Young's proceedings, the focus of which is her application to re-agitate the substantive issues from the original hearing. 105Mrs Young's attempts to re-agitate the matter in this court flowed from the Kings' attempt to have Curtis J dismiss her DC proceedings, on the grounds of res judicata or estoppel following McClellan J's 2004 decision. 106Curtis J apparently encouraged the parties to return to the LEC to seek a solution to their ongoing dispute - by seeking to somehow have the LEC "enforce" the undertaking (?), rather than seeking a solution through pursuit of the contempt charge (DC transcript 18.11.08, p2, LL43-44 and p3, L40). 107In addition, in August-September 2008, Biscoe J (as List Judge) hinted that declaratory relief, such as is sought in NOM 1, might be more appropriately sought in separate proceedings, rather than in a motion to reopen (see [63]-[65] of my earlier judgment, and [86] above). The Matter returns to this Court 108On 22 June 2010, following Ms Pearlman's termination of the mediation, Stern asked me to relist the matter for directions, but it was not until 14 February 2011 that Muriniti advised me that his client was ready for the matter to be so relisted. 109On 28 September 2010, Muriniti wrote to my Associate, saying, inter alia: Since the matter was before His Honour there have been significant developments as a consequence of factual enquiries which have been undertaken. These developments have required that considerable thought be given by the Applicant as to the courses that should be adopted by her. The Applicant has commenced proceedings against her former legal representatives arising out of their handling of the 2003 Land & Environment Court Proceedings ('the 2003 proceedings'). We understand that the Respondents have also commenced proceedings against their own legal representatives arising out of the 2003 proceedings. We do not know what allegations are made in those proceedings. As matters stand, there are now three sets of proceedings arising out of the circumstances giving rise to the dispute including the determination of the 2003 proceedings. With a view to keeping costs and forensic processes within reasonable bounds, we have been seeking to determine the most efficient manner of resolving those proceedings. That consideration includes the order in which those proceedings should be resolved and whether, and if so how, they should be amalgamated. We are also giving consideration to the question of a mediation involving all of the stakeholders by reason of the various proceedings on foot. 110On 14 February 2011, Muriniti advised me that Mrs Young was ready for the matter to be re-listed, and I eventually brought the parties back before me on 15 March 2011. 111The chronology of events since that re-listing needs to be recounted now in regrettable detail. The Parties' many appearances 2011-2012 15 March 2011 112Mr Wright, counsel for the Kings, consistent with his position throughout the matter since it first came before me, again sought an order appointing an agreed independent engineer to address a list of questions, the answers to which could be put in a report to be provided to the mediator. (See Palmer J in Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777; (2004) 12 BPR 22,287 at [93] - [98]). Mr Newell handed up a draft of a document in which he articulated a series of grounds upon which Mrs Young will now seek to have me set aside McClellan J's orders and reopen the case ("the 'grounds' document"). 113Without closely examining Mr Newell's draft document, nor coming to a view on Mr Wright's draft order, I made the following "directions" on 15 March 2011, largely agreed among counsel and myself: His Honour to enquire if Mediator prepared to be further involved. Applicant to seek instructions that the contempt NOM be dismissed by consent, with the question of costs reserved. The following further directions were made: (1) Within 14 days the applicant will file and serve an affidavit in support of the renewal of her application to re-open, together with the recent expert reports on which she relies. (2) Within 14 days the applicant will provide to the respondent a list of the materials for which she will seek leave from the court to provide to the Council, together with the conditions on which and the purposes for which such documents are to be provided and used. (3)the parties are to spell out to the court precisely what materials they will rely upon in the further conduct of the matter. Stood over for further mention Tuesday 10 May 2011 at 9.30am. Liberty to apply on three days' notice. 114Later that day I wrote to Ms Pearlman and provided copies to both solicitors. Inter alia, I said, in light of the court's exchanges with counsel during the mention: The applicant wants to pursue her application to re-open, and have the court's orders of 19 February 2004 and 8 March 2004 set aside. She is apparently happy for the contempt matter to be dismissed, with the question of costs reserved. A document summarising the grounds relied upon for reopening was handed up to me, and the thrust of the results of the abovementioned factual inquiries was outlined from the bar table. The applicant contends that the 2004 orders are infected by error(s) in the 'expert conclave' process which led to them. Her counsel, Mr Newell, also wants me to grant leave for her to provide copies of affidavits, etc. to the Council. The respondents' position is that the order I made on 31 July 2009 referring the matter to you for mediation still stands, and that I should now proceed to appoint an independent engineer, hopefully one agreed upon by the parties and then appointed pursuant to UCPR 31.46, to report to the court on a list of questions, with such report to be then provided to you on the basis that your mediation be reinstated, and that you could call on the engineer's assistance if you so require. Mr Newell did not rule out the possibility of further mediation, but he had no instructions today to agree to the independent engineer proposal.... 115Ms Pearlman replied on 21 March 2011 saying that she "would be prepared to play a further mediating role in the matter at some convenient time after the next mention before you on 10 May 2011", but I had no call to reopen my contact with her about this case. 10 May 2011 116The directions I made on 15 March were not complied with by the time the matter returned on 10 May 2011. 117Mr Wright handed up on that morning: (a) a lengthy "urgent" letter Muriniti had sent to Stern late on 9 May 2011; and (b) a copy of the directions given by Curtis J in the DC proceedings on 6 April 2011. 118Both counsel then addressed the court, and I granted leave for a solicitor representing the Council (Ms Kelly) to make a few remarks as to Council's position (see [94] above). Mr Newell confirmed that his client agreed with the contempt matter being dismissed by consent, with the respondents' costs reserved for further hearing. In consequence, Mr Wright withdrew NOM 3, by consent. At that time he sought no order as to costs regarding NOM 3, but he has since urged the court to reserve those costs as well (T16.6.11, p23, L46 - p24, L36). 119I then made again directions (1), (2) and (3) ([113] above), and stood the matter over for further mention on 24 May 2011. I asked Mr Newell to provide a final version of the 'grounds' document on or by that date. 24 May 2011 120During the mention on 24 May 2011, Mr Newell filed in court the following documents: (a) A so-called "final" version of the applicant's 'grounds' document, as I had requested; (b) An affidavit by the applicant dated 23 May 2011, but sworn (apparently) on 24 May, together with: (i) a copy of the amended Statement of Claim in her SC proceedings against Hones and four others; (ii) a copy of a report dated 22 May 2011 from Ross Fraser, of Ross Fraser Consulting Pty Ltd (Engineering and Management Consultants). Mr Fraser indicates in the opening paragraph that his report deals with the issues of water table, groundwater, surface water and drainage at 35 and 37 "related to the illegal construction at number 37", and the headings throughout the document reflect that description. He includes sections on Exhibit A as "a solution", and "Dr Perrens' Contribution", and a table of volumes and rates. I cursorily read his conclusion, but noted that he presented no CV to establish his qualifications to express it; (iii) a copy of a report dated 23 May 2011 from Anthony Mark Tuxworth (principal of Coastplan Consulting). I presume from his trading name that Mr Tuxworth is a qualified planner, but he also presented no CV. His opening paragraph says that he had "carried out a review of the development application submitted to Warringah Shire Council on 27 September 2001 by the owner of 37..." The report comprises 48 paragraphs over 8 pages, and it would appear that it is based on Council documents, but I have not examined it closely, nor seen the Council file; (c) An affidavit sworn 23 May 2011 by Warwick Davies, an expert geotechnical engineer (not to be confused with another expert in the case, John or Jack Davies). He provided his CV, had sworn two earlier affidavits in the proceedings (on 5 September 2003 and 12 December 2003), and had participated in the experts' conclave on 16 February 2004. It would appear that this new affidavit addressed in some detail (i) the issue of sub-division drainage, (ii) Mr Springett's and Dr Perrens's involvement, (iii) the conclave itself, and (iv) the notes he made at it, which resulted in Exhibit A. I surmised, from what I was told by Mr Newell, that the applicant would seek to rely on Warwick Davies to show that the expert conclave miscarried in some way, and/or did not produce Exhibit A as the expert-recommended solution to her problem; and (d) A schedule of documents - listing some 28 affidavits plus the Fraser and Tuxworth reports of May 2011- which the applicant wants provided to Council if the mediation is to resume, but "for the purposes of that mediation and limited to the purposes of that mediation" (T24.5.11, p3, LL33-34). From the Bar Table Mr Newell added to this list an affidavit by Jason Hones, dated 16 or 17 February 2004, to which McClellan J referred, on the issue of costs, in his judgment. 121Mr Newell confirmed that the list he provided ((d) above) included all the documents on which Mrs Young would rely at any hearing of her NOM 1 (T24.5.11, p9, L42-p10, L16), other than documents he had sought from the respondents via a Notice to Produce ('NTP') concerning their Pikes case in the SC. 122The respondents refused to produce those Pikes case documents, on the grounds of their asserted irrelevance to the applicant's current application, and Mr Wright filed in court, on 24 May 2011, a NOM to set the Notice aside, two affidavits in support, sworn (on 18 and 24 May) by Stern, and written submissions from himself. 123Mr Newell sought time to consider those affidavits and submissions, and Mr Wright sought time to consider the various documents Mr Newell had filed in court on behalf of the applicant. The court acceded to both requests, and stood the matter over again, to 16 June 2011. 124I add, for completeness, that, as at 24 May 2011: (i)in accordance with direction (2), the applicant had imposed a restriction on the use to which the listed materials could be put, namely only for the mediation; but that (ii)presumably because they needed to see the additional material now filed in court by the applicant, the respondents had not yet complied with the latter part of direction (3), namely to indicate the materials upon which they would rely. (iii)Mr Wright appeared unconvinced that any useful purpose would be served by continuing with the Pearlman mediation (see Tp54, LL28-49, p11, L32-p12, L16), but he told the court he would obtain firm instructions, once he had considered Mr Newell's new material. 125I gave directions to the following effect: (1) that the applicant file by close of business on 9 June 2011 her evidence and submissions on the relevance of the NTP, for hearing on 16 June 2011. (2) that the applicant submit a draft amended NOM seeking to set aside the orders of McClellan J. (The respondents argued that it should be limited to the "old" grounds of challenge, that the applicant should also particularise what orders she wants made in the proceedings instead, especially if she is seeking transfer of any part of the matter to the SC, and that she should also file draft Amended Points of Claim). (3) that the parties submit Short Minutes of Order disposing of the contempt charge. (Half of NOM 1 and all of NOM 4 being withdrawn by consent, with the respondents' costs reserved, and NOM 3 withdrawn, with costs reserved - see [100] - [101] above). 8 June 2011 126On 8 June 2011, Curtis J gave certain directions in the DC proceedings. 15 June 2011 127On 15 June 2011, Muriniti wrote to Stern, in long delayed reply to his letter dated 6 May 2008. 128His reply referred to that part of the May 2008 letter which said: It should, however, be apparent, even from the version of events that appear in your own letter that your client has refused to consent to the Development Application that is the subject of the orders made by the Land & Environment Court. 129Muriniti's letter said, in response to that: Your comment is difficult to interpret in light of the known facts. We note that it is the basis on which your clients have resisted the suggestion that they may not have acted in good faith and the reinstatement of the proceedings. As you claim that our client somehow ought to have given consent, we presume that you are asserting that a development application that was prepared for our client's signature, and that despite reasonable and repeated requests from your clients, our client refused to sign the form. In the circumstances, please provide us with answers to the following questions so that we may understand your position: 1. The only development application, the subject of the Undertaking (not an order) was a single development application to be lodged by your clients to complete the works in 'Exhibit A'. A single development application was in fact lodged with Warringah Council by your clients on 11 March 2004. In these circumstances, what development application is it that you refer to as being the subject of 'the orders' and how do you say that it is it (sic) so subject? We note that nothing in the Orders or 'Exhibit A' or anything put to Chief Justice McClellan suggests a development on our client's land. Indeed all of (sic) matters speak to the contrary. 2. If you are referring to a development application in respect of a development on our client's land, please state precisely what that contemplated development was and how that development relates to 'the orders'. 3. If a development over our client's land was contemplated by your clients (despite the fact that our client knows nothing about it) then please provide a copy of the development application which (necessarily) was prepared by your clients in order for our client to affix her signature by way of owner's consent. 4. Please indicate how it is claimed by your clients that our client refused to sign a development application in relation to her land. We note in this regard that we are instructed that our client has never been shown a development application which relates to her land or asked by your clients to sign a development application form of any kind. 130On the evening of 15 June 2011, Muriniti faxed to me a copy of his affidavit sworn 8 June 2011, and a copy of the applicant's submissions on the NTP. Nothing else was filed between 24 May and 16 June. The affidavit attached correspondence etc regarding the NTP, and so supplemented the information supplied by Stern on that aspect of the matter in his affidavit(s) of May 2011. 16 June 2011 131In court on 16 June 2011, Mr Newell filed, with leave, a further affidavit from Mrs Young, sworn on 15 June, in which she deposed that, when she filed NOM 1, she had been unaware that "Exhibit A" was not a drainage solution, and had not been put forward by the expert conclave as such. She deposed that, in about January 2011, she was present when Mr Newell questioned Warwick Davies about that aspect of the matter, and she heard Davies say, inter alia, that the exhibit was "just a set of notes which I made at the time in the experts conclave about further areas that should have been investigated". She referred to Warwick Davies's affidavit of 23 May 2011, in which he deposed to similar effect. 132Mr Wright informed the court that it was only Warwick Davies who could "sign off" on the legible transcription of Exhibit A, which the court had been asking for since prior to the mediation. 133Mrs Young further deposed that she was (1)unaware until mid 2009 that Warwick Davies 'did not accept that the lower drainage system had been installed by the Kings at all and had never accepted that it had'; and (2)unaware until about January 2010 that Ross Fraser considered the Perrens water modelling 'was not an indication of the water needed to be accommodated by any solution because it failed to take account of the impact of surface water on groundwater levels or flow'. 134During the mention on 16 June 2011, Mr Newell sought to add to the list of materials upon which the applicant would rely (see [120] - [121] above): * Jason Hones's affidavit 17 February 2004 (see [120] (d) above) * Margo Young's affidavit 15 June 2011 * Any exhibits to any of the affidavits in the list * The transcript of the hearing before McClellan J * His Honour's judgment 135Mr Wright handed up a copy of the orders/directions made in the DC case, by Curtis J on 8 June 2011. The questions of (a) further amending the DC Statement of Claim, and (b) possibly seeking to have the proceedings transferred to the SC, were still being explored with his Honour, along with some aspects of costs. The DC case was listed for further directions on 24 June 2011. (It was subsequently the subject of the decision by McDougall J not to remove it into the SC, and, on 12 August 2011, it was stayed by Curtis J (see [42] and [43] above.)) 136Mr Wright undertook to draft, and hopefully obtain agreement to submit to me in chambers, Short Minutes of Order regarding the disposal of the contempt proceedings, and the reservation of the respondents' costs of them. 137Attitudes to resuming the attempts to mediate the dispute seemed to be firming against that course, but no formal request has ever been made to have me vacate the referral order. There has been continued controversy regarding Council's attitude to being involved in the/any mediation - Mr Newell insisted that, despite what Ms Kelly had told the court ([94] and [118] above), Council had written a letter saying it was "not interested". No such letter has ever been produced to the court. 138Mr Newell handed up two alternative drafts of an amended NOM for "reopening". Both included (as par 3) a prayer for declarations in respect of "the Applicant's subsisting rights to seek further relief or alternative relief generally", and one version included requests for orders (pars 4 and 5) granting the applicant's expert surveyor and an expert plumber or other suitable expert access to the respondents' land pursuant to UCPR 23.8. He also asked the court to ensure that the respondents clearly articulated their grounds for opposing the reopening - see Court of Appeal discussion in Nowlan v Marson Transport Pty Ltd ('Nowlan') [2001] NSWCA 346; (2001) 53 NSWLR 116. 139There had also been continued debate regarding a "points of agreement" document, which Mr Newell contended had been prepared by town planners and then accepted into evidence by McClellan J. 140Mr Newell said on 10 May 2011 (Tp13, L43-p14, L3): The experts points of agreement, your Honour. A town planner was engaged by the applicant. He comes to court. He prepares a report saying there's no way a building certificate can issue. Then there's an experts points of agreement tendered. The transcript shows it's tendered. It's the town planner's points of agreement. You haven't seen it because it's not on the file any more. It's disappeared and well it might. The town planners agree that there's no problem issuing a building certificate provided the court is satisfied by the drainage. Well they might have said that but lawyers know that that's nonsense. Justice McClelland was not considering the drainage and he couldn't have if he wanted to because he was mislead so many times about what was going on. 141During the mention on 16 June 2011 (at Tp16), I refuted (correctly) the suggestion that a joint town planning report had been tendered at the 2004 hearing, and refuted (incorrectly) the suggestion that the transcript of that hearing referred to one. I said (Tp16, LL30-41): "The alleged joint report was not tendered and is certainly not in the file. All the exhibits that were tendered, and there was exhibit A and exhibits 1 and 2 - we all know about exhibit A. It's annexed to the judgment - were all retained and they were all in the file ... There may well be a joint town planners report somewhere, but it has never been tendered in the proceedings and it's not in the file." 142Later on 16 June 2011, Muriniti wrote to my chambers to draw my attention to pages 90 and 91 of the transcript of the hearing before McClellan J on 17 February 2004, especially to the following passage (p90, L42-p91, L7), Mr Griffiths having appeared as solicitor-advocate for Mrs Young at that hearing: Griffiths: ... There are points of agreement between the town planners that I would tender. They simply set out a final position in relation to what - I just take you to it. Your Honour they met last week. They agreed that subject to the court being satisfied as to drainage and land retention measures, we can see no potential environmental harm arising from the works that have been carried out. Subject to such measures being undertaken, we can see no town planning reason for the council to withhold the issue of a building certificate. Your Honour should be aware, although I don't know it has any precise bearing on the costs argument that we've got an application in to council at the moment for a building certificate, which is finding its way through council. The two town planners - - His Honour: Well do you want to tender the points of agreement do you? Griffiths: Yes. EXHIBIT #1 POINTS OF AGREEMENT TENDERED, ADMITTED WITHOUT OBJECTION" 143My Associate replied next day on my behalf, saying: His Honour appreciates what appears at pages 90-91 of the transcript of the hearing on 17 February 2004 regarding a town planners' 'points of agreement' document, but all the Court's official records of the hearing and exhibits confirm that what McClellan J admitted as Exhibit 1 was the Points of Claim as filed on the Applicant's behalf. All three exhibits in the original proceedings (Exs A, 1 & 2) remain in the Court file. 144Returning now to events in my court room on 16 June 2011, I note that Mr Newell asserted (Tp8) that there is a 60% chance that the applicant's house will collapse in ten years. That being so, he submitted, her damages cannot properly be assessed by the SC until her LEC proceedings are concluded. He also complained that she had never been told for what actual development works her "owner's consent" was required. 145Mr Wright again complained about the cost impacts of the applicant's failure to obey the court's directions, or to obey them in a timely fashion. 146I concluded that neither any costs matters, nor the contest about the NTP, should be dealt with until the respondents had put on their evidence and outline submissions on the reopening application - which I directed be by 16 September 2011. 147I thought that that would provide Mr Newell with adequate notice, as required by Nowlan, of the case made against the applicant's achieving a reopening of the proceedings. I directed him to serve by 17 October 2011 any evidence, and any submissions he wished to make, beyond the 'grounds' document, and I appointed 5 October and 18 October as dates for mention and further directions. The need to resolve the NTP question could be revisited, if necessary, on 5 October, prior to the filing of the applicant's reply by 17 October. 148I hoped that the parties and the court could (1) crystallise, through that process, an "agenda of issues", (2) identify all the documents to be relied upon, and (3) put the agenda into some order, so that sensible further directions could be given, and a way ahead identified, at the mention on 18 October - ie, a date for hearing could be fixed for the application, or the court could return the matter to the mediator, if the parties so agreed. June-October 2011 149On 21 June 2011, Muriniti again wrote to Stern, noting there had been no reply to the letter of 15 June ([127] - [129] above). 150The letter pointed out that the only DA ever lodged was that numbered 282/2004, lodged by the Kings on 11 March 2004 (i.e. following McClellan J's orders), which, in its terms, related exclusively to No.37 Calca Crescent, and no other parcel of land. He further noted that it did not indicate "even tangentially" that any work was required on Mrs Young's land. 151Muriniti asked for a response to his letter of 15 June, in order to clarify "how it is alleged that our client failed to give consent in circumstances that no DA was contemplated in relation to our client's land. It is no less important because of the costs incurred as a consequence of the position adopted by your client in your letter dated 6 May 2008". 152Muriniti continued: Our concern is compounded by the contents of your client's letter dated 17 May 2004 to Council. By letter dated 30 April 2004 it appears that the Council asked your client to amend the application client's consent. The Council stated: 'Based on the Council's understanding of the plans accompanying the development application, the proposed development including demolition works, appears to be located on both 35 and 37 Calca Crescent. Accordingly the application must be amended to refer to both 35 and 37 Calca Crescent Forestville'. The Council further stated; 'On the basis that the proposed development is situated on both 35 and 37 Calca Crescent, the development application must be accompanied by written owner's consent of the owner of 35 Calca Crescent pursuant to section 78A of the Environmental Planning and Assessment Act 1979 and Regulation 49 of the Environmental Planning and Assessment Regulations 2000'. The Council did not indicate how it had formed its understanding. The Council pointedly did not say with any specificity what works (in its 'understanding') involved no. 35 Calca Crescent. However, the Council made clear that a development application in terms relating to 37 did not relate to no. 35. Mr King replied by letter dated 17 May 2004. In that letter your client Mr. King stated: 'With reference to the photographs above the wall and drainage is to be constructed entirely within the boundary of no. 37 and consent from the owner of no.3 5 is unwarranted'. The Council did not write to your client to say that they had a different understanding of the DA so far as concerned its implications for no. 35. In the circumstances it appears that both the Council and your client took the position that a DA in relation to no. 35 was irrelevant to the proposed works. Both confirm that no such DA in respect of no. 35 was ever lodged. 153On 5 July 2011, Muriniti served, by letter, a NTP requiring the following to be produced by 22 July 2011 - copies of DAs, draft DAs, correspondence, and, relevantly (in item 4), "the video, or a copy of the video shown in 2004 Land & Environment proceedings on behalf of Brendan and Kristina King which video allegedly purported to show or demonstrate the existence of the lower drainage system". Stern responded in detail on 4 August 2011 (see Muriniti's affidavit No 2 dated 12 October 2011, Annexures 'O' and 'P'). 154On 4 October 2011, Stern wrote to Muriniti in respect of the provision by the applicant of an affidavit sworn by John Thomas (Jack) Davies, on 31 August 2011 in Mrs Young's SC case. Stern indicated that any application for leave to rely upon that affidavit in Mrs Young's LEC case, seeking to set aside the consent orders of 2004, would be opposed. 155Stern's letter of 4 October 2011 was handed up to the court by Mr Newell on 18 October. In it Stern also informed Muriniti that the Kings would now not be filing affidavit evidence in response to Mrs Young's application and her supporting material, and that the respondents would be pressing, on 5 October, for the applicant's application to be listed for hearing in February 2012. An estimated hearing time of 3-4 days was quoted, and he indicated that Mrs Young's witnesses would be required for cross-examination. 156Stern went on to raise some concerns about the 'grounds' document Mr Newell had produced and, particularly, the fact that it annexed the "Amended Statement of Charge" from the contempt proceedings "unilaterally abandoned by Mr Newell in May 2009". He continued: The convoluted allegations set out in the Amended Statement of Charge do not appear to have any intelligible relationship to the grounds you seek to rely upon in your attempt to set aside the 2004 consent orders notwithstanding the fact that you refer to the Amended Statement of Charge in paragraph 10 of the Grounds. 157Stern expressed the Kings' concerns that the inclusion of that annexure signalled "an intention to pursue further contempt proceedings against them", notwithstanding the concession in Muriniti's letter of 9 May 2011 that they would be "totally pointless". 158Stern then dealt with some of the contents of the letter Muriniti had sent on 9 May 2011, which Mr Wright had put before the court on 10 May 2011 ([117] above). That letter contained a series of allegations in relation to the "granny flat", which Stern said did not appear to coincide with the allegations in the 'grounds' document. 159Muriniti had foreshadowed "an application in the nature of mandamus to compel the Council to take proceedings to set aside consent 1382 on the basis that it was obtained by fraud", and had suggested that that "may be a more cost effective way to cut through the consent designed to protect the unlawful works". 160Stern sought clarification, and, especially, particulars, of any allegation of mala fides or fraud, and noted that the SC case included an allegation that Mrs Young's former lawyers were party to a scheme to trick her into having the relevant drain on her land. There was an attempt to orchestrate a situation which would permit the Council to order a drain on Mrs Young's land - the Council would go looking for a "pre-existing drainage system", other than the subdivision drainage system "that had been written out of history". 161Stern queried an assertion about "flawed water modelling", used to advance the agenda of the alleged conspirators by creating the impression that the problems caused by the Kings' unlawful works were minor, and that any drainage problems were primarily caused by Young's land, or the removal from it of a drain which had previously drained the granny flat area. A drain on Young's land would then drain Kings' land, and permit a building certificate to be issued for the Kings' works. There was also an implicit allegation against Dr Perrens, but the precise allegation was not made clear. He requested clarification and particulars regarding these issues. 5 October 2011 162When the matter returned to the court on 5 October 2011, Mr Wright announced the respondents' decision not to file any affidavit evidence in response to the applicant's materials, which now included the SC affidavit of 31 August 2011 by Jack Davies. (That affidavit became Annexure 'R' to Muriniti's second affidavit of 12 October 2011, and so, for the first time, came before this court). 163Mr Wright also indicated he would prepare an outline of the principles which the LEC should apply to applications of this sort, and that he would contest the relevance and admissibility (at least on the vacate/set aside application) of at least some of the applicant's materials. 164He also expressed concerns that the broadly stated allegations of mala fides, fraud, collusion and conspiracy on the part of the respondents and various third parties had not been specifically supported by evidence (Tp3, LL39-44). "Mr Newell should be directed today to file within seven days a proper grounds document identifying the conspiracy alleged against my client, apparently he's the architect, the council and anyone else who was a participant in this conduct." (Tp14, LL12-15). Mr Wright said he would seek production by the applicant of a range of documents, but wanted "a direction for formal written submissions which should connect the allegations contained in the 'grounds' to the evidence", and to relevant authority (Tp4, LL38-49). 165He was also concerned that both the applicant's draft amended NOMs ([138] above) contained (in par 3) "this exotic claim for some form of declaration as to Mrs Young's subsisting rights" (Tp5, LL45-46). Any question of substantive relief should be dealt with only if and when McClellan's original order dismissing the applicant's proceedings is set aside. 166Mr Newell indicated (1) that he would have Jack Davies re-swear his SC affidavit of 31 August in these LEC proceedings, (2) that he would subpoena the respondents to give evidence in these proceedings, (3) that he would seek a stay of the applicant's SC proceedings until these LEC proceedings are determined, (4) that the SC Statement of Claim would be amended, (5) that the stay application was listed in the SC for 31 January 2012, and (6) that the Kings should put on evidence on the question of their having "proceeded in good faith" (Tp9, LL46-47). 167He submitted that, if the LEC proceedings were "reinstated", and the original dismissal order varied, the applicant would seek transfer of the DC proceedings to the LEC, so "all of the matters are dealt with between the Council and the Kings in one proceedings as it should have been originally" (Tp10, LL11-19). Then a "serious question" would remain as to "whether the professional conduct proceedings would come here as well. That is a balance of convenience question. There is a common matrix of fact. There is a very coordinate liability of all of the parties" (Tp10, LL28-31). 168The essence of the applicant's case, according to Mr Newell, was and remained that "a very serious fraud has been perpetrated on Mrs Young. A number of people were knowingly involved. They were buttering their own bread in terms of their relationship with the Council and she paid $300,000 to run a case that got her nothing" (Tp10, LL34-37). He continued (Tp11, LL17-25, Tp12, LL31-34, and Tp13, LL17-20): (1) ... to our surprise Jack Davies, who didn't seem to be one of the most prominent witnesses for the case, seems to say in quite blunt terms that there isn't a solution. If there is a solution it's going to cost $200,000 and it looks like a maze of drains that go back down to Starkey Street as opposed to anywhere else. So, there never was a solution except once Mrs Young agreed to have a drain on her land, whatever that meant given that there was no outlet, she was going to be embracing what turns out to be a massive liability to obtain an easement, put in drains, the whole thing. (2) We say that there was an intention to achieve a certain outcome. The logic of that derives from a particular predicament arising out of the construction of the granny flat into the water table and the absence of any solution except a very expensive one on Mrs Young's land at Mrs Young's cost ... (3) Our position is very simple. We say the undertaking was a sham and that is revealed by what happened after. The conduct in good faith. The undertaking was a sham. The council's consideration of it was a manifest sham. The DA was a grotesque sham. 169Mr Newell further stated on 5 October 2011 that, on 18 October, he would make an application to me for permission to use in the SC case some documents from the LEC case. 170As at 5 October, there remained several "loose ends" of concern to me: the court was still awaiting an agreed and legible transcript of Exhibit A the dispute about the NTP calling for the Pikes case documents remained unresolved; the applicant had sought a site access order (UCPR 23.8), and the respondents still had before the court Short Minutes of Order for appointment of a court engineer, and had foreshadowed a NOM to that effect; the contempt matter had still not been formally disposed of, but Mr Newell continued to rely upon the Statement of Charge for present purposes (see "ground" 10, as it then stood); and the mediation order remained on foot, but the mediation seemed unlikely to proceed. (If it were to proceed, would the Council remain willing to participate, given the serious allegations made against it? - Mr Newell had never made good his claim that the Council had indicated in writing that it was "not interested" in mediation anyway). 6-17 October 2011 171On 13 October 2011, Muriniti filed a NOM dated 12 October 2011, in which the following three orders were sought: 1. Leave to rely on the Affidavit of John Thomas Davies sworn 31 August 2011 in the Supreme Court proceedings JLN. 2010/41007 which Affidavit will be re-sworn mutatis mutandis in these proceedings. 2. Leave to rely on the DVD recording produced in response to a Notice to Produce served on the Respondents in these proceedings which Notice to Produce is dated 5 July 2011. 3. Leave to rely and to use for the purposes of the Supreme Court proceedings JLN. 2010/41007 documents set out in the Schedule which is annexed hereto and marked with the letter "A". 172He also filed, on 12 October 2011, two affidavits sworn by him that day, which the court numbered as his affidavits 1 and 2 of that date. Affidavit number 1 was filed in support of ensuring that the contents of the LEC file might be relied upon in the SC proceedings, and it annexed the Amended Statement of Claim filed in those proceedings, dated 10 November 2010. Affidavit number 2 attached the correspondence starting with Muriniti's letter to Stern, dated 11 March 2008 ([66] - [70] above). From the outline given above it is clear that there was no correspondence appended to that affidavit, for the period mid 2008 to mid 2011. A further copy of the Stern letter of 4 October 2011, was annexed to affidavit No.2, as was a copy of Jack Davies's SC affidavit 31 August 2011. 173When the court resumed on 18 October 2011, Mr Newell filed yet another amended version of the 'grounds' document (summarised in judgment No 3 at [38], to which I will return), and an affidavit sworn in the LEC proceedings by Jack Davies on the 14 October 2011. I have not yet examined, even in a preliminary way, the LEC affidavit of Jack Davies, but Mr Wright told the court on 18 October that he had taken into account the SC version when deciding not to file evidence in reply to the applicant's LEC NOM. 174Also placed before the court on 18 October was an affidavit from Mrs Young, sworn 12 October 2011, which annexed a detailed chronology authored by her. It ran for 69 pages, commenced in 1958, and concludes on 13 July 2006. She deposed that the events and facts set out in the chronology are, to the best of her knowledge and belief, true and correct. 175On 17 October 2011, Muriniti wrote to Stern in reply to Stern's letter of 4 October. Muriniti was concerned to reassure Stern that Mrs Young did not intend to even contemplate further contempt proceedings. She was always reluctant to bring them, and it was only after the Kings filed their motion in the DC that she brought her motion in the LEC, with no reference to contempt. It was Jagot J, on 14 June 2008, who, Muriniti says, "made clear that there was no other way to approach the matter". The contempt claim was withdrawn on 12 May 2009, and that fact was recorded in my judgment of 31 July 2009. 176The letter went on to be critical of the time lapse between 23 May and 16 September, during which the Kings did not declare their position in respect of evidence, but notes that, in that time, Mrs Young was not called upon to clarify her position in respect of contempt. It went on to indicate that Mrs Young will give to the Kings and to the court an undertaking not at any time to take contempt proceedings, or seek any third party to do so, arising out of the Kings' "conduct including but not limited to any alleged failure to comply with the undertaking given on 19 February and 8 March 2004". The Statement of Charge had been annexed to the 'grounds' document, as it highlighted "the failure to advance the undertaking and by implication that the obligation had not been discharged". 177Muriniti gave notice of his intention to amend the annexure to the 'grounds' document to remove from it any references suggestive of contempt. 178The letter continued: In apparent connection with the 'Amended Charge issue', your counsel's submissions on 5 October 2011 suggested that he did not understand how matters which occurred after the final orders were made might be material to our client's application. We understand from that that your clients will not be making any submission that any events which occurred after the Final Orders militate against those orders being varied as sought by the Applicant. In your letter you state: 'The convoluted allegations set out in the statement of charge no intelligible relationship to the grounds you seek to rely upon to set aside the 2004 consent orders ...' In fact, as you are aware, the 'intelligible relationship' which you seek was articulated when the document was handed up in Court on 23 May 2011 [sic - 24 May 2011]. Counsel for the Applicant pointed out that it was to show that the Applicant gained no benefit from the Agreement underlying the final orders. It is obvious why that matter is material. His Honour indicated: 'I understand the argument' [see T24/5/11, p3, LL13-27]. Your counsel was present when this occurred. There are other aspects speaking of an intelligible relationship. Without being exhaustive, at the centre of the matter is the state of knowledge with which our respective clients were affected at the time of giving the undertaking. It is now clear that the undertaking is not something that could be implemented with any utility. Subsequent conduct of your clients showing that no serious attempt was being made to implement an arrangement would tend to show knowledge that the undertaking work was of no real utility and known by your clients to be such. Your client's post-undertaking conduct is entirely inconsistent with a belief on their part that a solution had been framed by the experts which would address the problem as understood by Justice McLellan (sic) and our client. Generally, the fact that no steps have been taken for the purpose of rectifying the serious problems created by illegal construction has always been the gravamen of our client's application for relief. Indeed, it is necessarily so. It is material that the Court's decision whether to vary the final orders is made is one which depends upon a discretion to be exercised by reference to all of the circumstances of the case. Whatever the formal grounds which afford a court the jurisdiction to vary potentially Final Orders, the Court's decision whether or not to do so remains a discretionary one. In the circumstances, the matters that the Court will likely consider will never be limited to the precise matters from which the right to exercise the discretion derives. 179The letter concluded with an observation that the Kings should "feel at liberty to assist (and indeed comfortable in assisting) the Court in relation to this extremely serious matter". 18 October 2011 180When the matter returned to court on 18 October 2011, Mr Wright indicated some prejudice from the fact that the material served in the applicant's NOM and affidavits of 12-13 October amounted to some 169 pages, and had been followed at 5pm on 17 October by a copy of a further amended 'grounds' document, raising new allegations, but containing "numerous typographical errors", and not attaching the stated annexure. A complete and revised copy was handed to him in open court. Mr Newell indicated that the annexure, while based on the Statement of Charge, asserted a failure to take reasonable steps, but not that such failure amounted to contempt (Tp14, LL15-24). 181To bring the matter closer to finality, Mr Wright wanted the court to set a February 2012 hearing date, and then make consequential directions, including an allowance for the requesting of further particulars of the amended 'grounds' document. 182He said (T18 .10.11, p2, LL6-15): The other matter I need to put on record today, your Honour, is that insofar as I can discern there is not in the grounds document any allegation of fraud, collusion or conspiracy made against the Kings either individually or together. Your Honour has heard repeated statements about my clients' conduct made in open court before. Not only is there no reasonable basis for any allegation against them, there is no rational basis nor is there, and as far as I can see in the document given to us last night, any identified ground. I'd be asking Mr Newell to withdraw expressly in open court before your Honour any allegation of that nature against my client and we'll be writing separately to them in the next few days demanding that any such allegations be retracted. 183Mr Newell was critical of the respondents' lawyers for not notifying, until 4 October, that no evidence would be filed by the respondents. He asserted that "that should have been said on 24 May" (Tp3, L8). I preferred to see it as a considered response by the respondents, made after appropriate time had been taken to study the materials relied upon by the applicant. 184As noted earlier ([154]ff), Mr Newell handed up Stern's letter of 4 October, and later he also handed up a copy of the letter Muriniti sent on 17 October. He commented, in respect of contempt, that "whatever they need to put that thing to bed, we will do" (Tp5, LL46-47). Also, "The respondents are peculiarly placed to assist the Court in relation to this matter in the application before the Court and it would be most regrettable if any - if they were in any way inhibited from doing that. So we're trying to do everything we can to make it possible for them to do that." Mrs Young will provide an undertaking of some sort (Tp14, LL29-33). 185Mr Wright pointed out that, as early as 17 November 2008, Stern had written to Muriniti asking the applicant to withdraw the contempt charge, and give an undertaking that no further contempt proceedings would be commenced. The charge was ultimately abandoned on 12 May 2009, but with no particular guarantee given that it would not be recommenced. Mr Newell had the onus of proof, and how the respondents addressed the application can not be influenced by some "exactional price" concerning the threat of contempt. (T18.10.11, p7, LL10-11) "We can't be coerced or cajoled or prodded to assist him by the proffering of this undertaking." 186Mr Newell denied that he was trying to exact a price for anything (Tp9, L41), and assured the court that he did not want any suggestion that the contempt hanging over the respondents was a reason for their not giving evidence (Tp8, LL20-24). He would rely, at the hearing of the NOM, on the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 187Mr Wright reiterated his contention that the undertaking in McClellan J's orders was shown to be impossible to perform, yet it was now being alleged that the Kings had made no bona fide effort to perform it (Tp7, LL30-34). 188Mr Wright frequently interrupted to complain that what was being said in open court by Mr Newell against the respondents, and others, was stronger than what was pleaded against them in the 'grounds' document, and that such statements are never withdrawn, nor incorporated into a formal document. 189Mr Newell went on to explain what changes had been made to the 'grounds' document (see Tpp11 and 12). He also asserted (Tp12 , LL19-25) that the respondents were on notice "of facts which would suggest to a reasonable person that Mrs Young's lawyers could not be acting in her interests, that's the proposition and that test comes straight from Armadio [sic - presumably a reference to the High Court's decision in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1982-3) 151 CLR 447, quoted by Mr Newell in his written submissions at par 54]. You only have to be on notice of the facts and then you have to inquire. Notice of facts which would suggest that possibility. And then there has to be an inquiry if you want to rely on the agreement, so we rely on that." 190It was clarified (at Tp17) that the SC case would be the subject of competing applications by the parties, on 31 January 2012. The SC defendants were applying to strike those proceedings out, and Mrs Young was applying to amend them, and stay them pending the outcome of her LEC application. (At the time this judgment was reserved, this court was told that Garling J's decision on those competing motions was still reserved). 191When, on 18 October 2011, the discussion turned to Mrs Young's NOM, dated 12 October 2011, Mr Wright expressed concern that its inclusion of the DVD item (see "2" in [171] above) indicated that past assurances given that the applicant's evidence was complete were out-of-date. The relevant NTP sought production of images shown at the court in 2004. It appears that the DVD produced in response to the NTP comprised, in effect, 3 "videos". The transcript of the hearing before McClellan J confirms that neither he nor the applicant's representatives saw any video at that time. The expert(s) saw one "video", possibly in the company of Mr King, and perhaps Mrs King, according to Mr Newell. Some evidence was given to McClellan J about what was in it, and it was "supposed to have changed the course of events" (Tp19, LL2-3). An argument on the question of costs as to why it hadn't been produced earlier in the present proceedings was foreshadowed. 192That which appears to have been shown, to at least the experts at the original hearing, depicted some sort of drainage arrangement under ground level, where there had been an excavation. The other two videos now on the DVD apparently show a pit being dug on Mrs Young's land. Mr Newell certainly does not concede that those two videos where shown at the original hearing - what was shown at court in 2004 would now be the subject of additional evidence from Warwick Davies. The whole DVD matter arose only after Mr Wright informed the applicant and the court that he was not putting on any affidavit evidence from the Kings, and Warwick Davies had already provided sworn evidence about what he saw. 193At that point (Tp20), Mr Wright sought an adjournment of the motion so that Mr Newell could identify in writing to the respondents how he intended to make use of the DVD evidence in relation to his third amended 'grounds' document. 194Mr Newell conceded that the motion should be stood over, and that he should provide a summary of the evidence upon which Mrs Young will rely. However, Mr Newell went on to say (Tp21, L30) that Warwick Davies was no longer "in our camp", but the applicant would be relying on his evidence for the fact that he said certain things in his affidavit. "We don't suggest anything that he said is true". 195During the hearing on 18 October 2011, the following documents were filed in court: (1) (pursuant to leave) Affidavit of John Thomas Davies dated 14 October 2011. (2) A copy of a (revised ?) document entitled "Grounds of Application to Set Aside Orders". The pages were not numbered, but the substantive document comprised 15 paragraphs, plus an annexure which appeared to be some adaptation of the former Statement of Charge for Contempt. (3) A letter from Stern to Muriniti dated 4 October 2011 (the day before the mention on 5 October - see [154] - [161] above). (4) Muriniti's reply to Stern, dated 17 October 2011. 196Muriniti's letter of 17 October: (a) confirmed that Young had withdrawn the contempt allegation on 12 May 2009, and had no intention of commencing fresh proceedings. "The reference to the Amended Statement of Charge (and any other references suggestive of a contempt frame of mind) will be removed from the document to prevent a dead horse being flogged". (b) noted that, on 5 October 2011, Mr Wright indicated that he did not understand how matters occurring after the final orders were made, might be material to the application to set them aside. "We understand from that that your clients will not be making any submission that any events which occurred after the Final Orders militate against those orders being varied as sought by the applicant". (c) asserted that the "intelligible relationship" ([156] and [178]) had been articulated by counsel for the applicant on 23 May 2011, when he pointed out that the intention was to show that the applicant gained no benefit from the agreement underlying the final orders. Muriniti noted that that matter is "material", and that I had indicated at the time that I understood the argument. The letter continued (as already quoted in [178] above): There are other aspects speaking of an intelligible relationship. Without being exhaustive, at the centre of the matter is the state of knowledge with which our respective clients were affected at the time of giving the undertaking. It is now clear that the undertaking is not something that could be implemented with any utility. Subsequent conduct of your clients showing that no serious attempt was being made to implement an arrangement would tend to show knowledge that the undertaking work was of no real utility and known by your clients to be such. Your client's post-undertaking conduct is entirely inconsistent with a belief on their part that a solution had been framed by the experts which would address the problem as understood by Justice McLellan (sic) and our client. Generally, the fact that no steps have been taken for the purpose of rectifying the serious problems created by illegal construction has always been the gravamen of our client's application for relief. Indeed, it is necessarily so. (d) went on to note that the court's decision on varying final orders is a matter of discretion, and that "the matters that the Court will likely consider will never be limited to the precise matters from which the right to exercise the discretion derives". (e) concluded with a promise to give the respondents and the court an undertaking that Mrs Young will not at any time take contempt proceedings, or seek to induce any third party to bring them, in respect of "your clients' conduct for the purposes of the Land and Environment Court. That conduct includes but is not limited to any contempt arising from any alleged failure to comply with the undertaking given by your clients to (sic) on 19 February 2004 and 8 March 2004". 197I stood the matter over to 10 November 2011. 18 October - 28 November 2011 198On 18 October, I directed (T p23) that counsel for the parties confer on a series of directions I could make in chambers. No draft was forthcoming. 199On 24 October 2011, Stern wrote to my Associate and requested that the matter be re-listed on 27 or 28 October, "with respect to the issue of directions". On 25 October, my Associate asked both solicitors for a written indication of why a further mention was required, and why agreement could apparently not be reached on directions. 200Stern replied later on 25th that Mr Wright had requested the further mention because draft short minutes had been submitted to Muriniti on 18 October, and there had been no response, despite follow-up letters on 19 and 20 October. He wrote a second letter to my Associate later on 25 October, adding a complaint that, on 19 October, he had written to Muriniti requesting formal service of a copy of the annexure to the amended 'grounds' document, and had not received it. My Associate sent a further fax to Muriniti, requiring his response to my Chambers letter by Wednesday 26 October at 12 noon. 201At 10.53am on 26 October, Muriniti faxed letters to both Stern and to my Associate, explaining that there had been a death in his family, and that he and Mr Newell were engaged in another case due to commence on 31 October and expected to run for eight weeks. He agreed that clearly the timetable could not be adhered to, and asked for the request for particulars. He later forwarded to Stern a corrected version of "Annexure A to the Statement of Grounds", and indicated that that 'grounds' document might again change, depending on the outcome of matters he outlined in the covering letter, which indicated that, subject to production and examination of the Pikes case documents, the applicant: (1) would be in a position to finalise affidavits and list of affidavits by 8 November; (2) would expect to require two weeks to answer the request for particulars; (3) should be in a position to finalise her 'grounds' document by 8 November. 202He proposed that the applicant provide her further submissions in relation to "the Griffith documents", (which I take to mean submissions on why the NTP for the Pike case documents should not be set aside), by close of business Friday 28 October 2011. He explained that the Pike documents might affect the 'grounds', etc, so the resolution of the dispute about producing those documents should be resolved "as a matter of expedition". 203My Associate notified both solicitors that I would retain the mention appointed for 10 November, and not accede to Stern's request that it be brought forward. I endorsed the proposal that the parties meet to try and resolve at least their procedural differences, and expressed the hope that that would produce an agreed set of directions, and a list of issues to be discussed, if not decided, on 10 November. 204Stern's request for particulars was made on 31 October 2011 (filed in court on 30 November 2011, and now before me again as Exhibit R2). 205Muriniti wrote to Stern on 7 November 2011 promising the applicant's reply "as soon as practicable". Stern wrote again to Muriniti on 8 November asking what timeframe was "practicable", and suggesting a 14 day delay deferment of the directions hearing. Muriniti replied on 9 November consenting to an adjournment for 14 days. As the unrelated but lengthy DC hearing involving Muriniti and Mr Newell had been adjourned part-heard, Mr Newell was now engaged in settling the reply to Stern's request for particulars. He required 14 days to complete the task (till 21 November?). (In fact the reply was not sent until 23 January 2012 - now Exhibit A1) 206The parties having agreed to vacate the mention on 10 November, I signified my agreement to re-listing the matter at 4pm on Wednesday 30 November 2011. 29 November 2011 207On 29 November 2011, Muriniti wrote at length to Stern. In that letter he expressed concern about the inconsistent use of terms such as "conspiracy", "fraud" and "collusion", and said: "It is our client's position that there was collusion for the improper purpose of an agenda to cause our client to have a drain on her land to drain your client's land. The purpose was to legitimate an illegal granny flat", and that a number of parties so acted prior to the proceedings commencing, during the proceedings, and after the proceedings in this respect. Collusion was said to be an important aspect of the SC case, and may be important in the DC case. Fraud is asserted in the formal 'grounds' document in the LEC case, only as the logical alternative to mistake by the legal representatives of the applicant during the negotiations for the underlying agreement. 208The letter continued: At the same time, it is clear that the events which occurred could not have happened without collusion. Moreover, after mature consideration we consider that the fact of collusion sheds considerable light on the logic of events so as to inform the probabilities of our client's formal assertions. Our client does not resile from the proposition that the events which occurred were underwritten by a collusive course of conduct by certain parties. Moreover, we are anxious for your client to fully appreciate the circumstances of our client's claim. Our client hopes that your clients will consent to the Final orders being vacated so that the issues may be determined on the merits. 209Muriniti went on to suggest that he had found it impossible to properly convey the background to the applicant's case by way of "particulars framed in the customary manner", and his thinking had moved towards an outline which describes the material facts and explains how they support the ultimate inferences, i.e. a "nature of the case statement", which would deal, in an integrated way, with everything that had occurred, and outline complaints against all the material players (including lawyers, experts, Council etc). It should limit the time that will be needed for submissions, and he hoped that it would force an agreement about the setting aside of the final orders, "bearing in mind the manifest injustice that has been worked". 210In pars 14 and 15 of the letter, Muriniti said: You should not assume from these comments that it is alleged (or will be alleged) that your clients (in contradistinction to their then lawyers) actively colluded with our client's lawyers for the purposes of and at the time of the 2003 proceedings. Your client only acted through his lawyers for the purposes of the proceedings. Certainly, it will be alleged that your clients understood that our client was at a disadvantage in that they were on notice of facts that would compel a reasonable person to contemplate that others were colluding to our client's disadvantage. So much is clear from the Grounds themselves which rely upon unconscionable conduct based on those facts. It will be material that your clients maintain proceedings against their former lawyers arising out of the final orders. There may therefore be an issue whether or not the material conduct of those lawyers may be brought home to your clients in the sense that it was the product of their express instructions. The Pike documents will shed light on this critical issue. 211Muriniti explained (par 19) that Mrs Young had been caring for her sister during chemotherapy, so further time might be required to finalise the 'nature of the case' document. The NTP issue about the Pikes case documents should be dealt with urgently, as it ought be resolved before the applicant files her further affidavits. 212Meanwhile, the following evidence was being prepared for the applicant (par 22): (a) Warwick Davies will say that only one video was shown to the conclave, and that depicts the lower drain upon which he commented. He will also say that removal of the spoon drain as recommended, is not proper practice. Dr Perrens must have known that a major drain was to be installed on the applicants land. Hence he indicated to Mrs Young that the dish drain was not necessary. (b) Ross Fraser will prepare a further report dealing with the implications of the statement by Perrens that a dish drain was not necessary. (c) There will be reports by a town planning engineer setting out the impediments to consent for a granny flat and associated works. 213Muriniti further indicated (par 25) that he would write under separate cover with further documents that the applicant will rely upon for the purposes of her motion. "We submit that the effect of the documents is that your client has insinuated collusion by our client's lawyers". 30 November 2011 214By 30 November the 'nature of the case' document was expected to comprise about 100 pages and to be available soon, but the production of the Pikes case documents was still pressed, and the applicant still had further evidence to file. Mr Newell suggested that "the so-called fraud and collusion issue", was "not one of the formal grounds that's been notified in the Statement of Grounds". 215While the 'nature of the case' document and the answers to the request for particulars should clear the way for a hearing date to be appointed, he acknowledged that there may be some amendments to the case following the production of the Pikes case documents. He might require an affidavit from Warwick Davies clarifying that only one of the three videos produced had been shown to the court, while the other two show a pit being built. He had also asked Warwick Davies to comment about a dish drain that was going to play a major role in understanding what had occurred. He suggested that Council had prescribed a dish drain on the retaining wall, but the applicant said it was never built and could never had done the job. The applicant would allege that the disappearance of the dish drain was part of an agenda to replace it with a drain on Mrs Young's land. 216Mr Wright complained about Muriniti writing to Stern a five page letter to explain why it was not possible to answer the request for particulars. 217I gave the following directions, that: the 'nature of the case' document be served by close of business Wednesday 7 December; a list of evidence relied upon for the NOM to set aside the NTP be filed and served also by close of business Wednesday 7 December; a hearing date be fixed for that NOM on the next occasion, namely at a mention on 14 December. 14 December 2011 218The appointed mediator, the Hon M L Pearlman AO, died on 2 December 2011. 219When the matter came back before the court on 14 December, nothing new had been filed. Distinctions began being drawn in argument as between responsibility for the overland flow on No. 35, a dish drain, and a solution for sub-surface water. 220I commented that, while it was necessary to resolve the question of production of the Pikes case documents, it was more important that the applicant's case be properly articulated for the respondent's consideration as a matter of absolute priority. Mr Wright could not determine whether the NTP is an abuse of process until he knows exactly what case it relates to. Generally, an attempt to obtain access to plainly privileged material from proceedings against solicitors, will be seen as a "fishing expedition". 221Mr Wright also informed the court that he was serving a NTP, seeking from Mrs Young all documents relating to the involvement of her then legal practitioners in the 2003-04 proceedings. Her allegation in these proceedings was now that she was not a party to any agreement to resolve the matter, and it was entered into "through the wrong doing expressed in various ways of her former legal practitioners" (T14.12.11, p9, LL1-3). The notice would also embrace instructions given to the various experts at various stages of the proceedings, including for this application. (The NTP was served shortly after 14 December) 222There remained "on the table" the suggestion by Mr Newell that he would subpoena Mr & Mrs King in Mrs Young's case, and Mr Wright submitted that fairness and avoidance of abuse of process required me to deal, in due course, with the question as to whether or not that should be permitted. 223Mr Wright was concerned also to ensure that the 'nature of the case' document was regarded as a totally separate matter from the provision of appropriate particulars. He complained about Mr Newell's use of expressions such as his allegation of "a Swiss watch conspiracy" instigated by the Kings: You simply cannot continue to make such gratuitous and serious allegations against a person in open court. So if there is a case, and we have not wanted a case of conspiracy made, but if it is alleged it has to be alleged in the proper way (T14.12.11, p13, LL26-30). 224Mr Wright also noted that there had been "a shift away from those forms of allegations to something in the nature of an unconscionable conduct allegation based upon actual or constructed (sic) knowledge of circumstances" (Tp13, LL33-36). 225The matter was adjourned to Monday 23 January 2012 at 9.30am. The applicant was directed to file and serve the 'nature of the case' document, and provide the particulars requested on 31 October, by close of business 21 December, all without prejudice to the respondents' right to seek further or additional particulars if required after any production of the Pikes case documents. It was hoped that, on 23 January, a date prior to the end of February could be found for the hearing of the NOM on the NTP for those documents. 23 January 2012 226No documents were filed before the matter returned to court on 23 January 2012, but, on that day, Mr Newell provided a copy to the court of a letter dated that day providing answers to particulars requested in the letter of 31 October 2011 (see [204] and [205] above). Attached to the letter of particulars (Exhibit A1) is an annexure containing a purported response to questions 12-14. 227The matter was stood over again, for further mention and possible disposal of some interlocutory issues at 9.30am Friday 24 February 2012. 228The respondents submitted that an order setting a "final" deadline for the applicant's 'nature of the case' document should be self-executing. Mr Newell predicted it would now be 180 pages long, and formally undertook to the court to produce it by close of business Friday 27 January. At Mr Wright's request, he also promised a précis or executive summary, although he suggested that the particulars, now provided, performed that function. 229As the respondent's NTP ([221] above) had not been complied with, Mr Newell undertook to comply by close of business Monday 30 January 2012. 27 January 2012 230A bundle labelled "Applicant's Nature of the Case Statement" was delivered to my chambers at 5pm on 27 January 2012. 231It contained no index, but appeared to comprise three separate documents - "Part 1" (92 pages of paragraphs numbered 1 to 252), "Part 2" (a further 81 pages of paragraphs numbered 357 to 625), and a "Further Amended Statement of Claim" for the DC case, detailing elements of allegedly illegal works carried out by or for the respondents, several of which elements were said to constitute trespass on No. 35; alleging "false statements" by Council in its dealings with Mrs Young, and extensive breaches in its exercise of power and duty; and alleging nuisance, loss of support, trespass, and negligence, as well as statutory breaches. 232Pursuant to the direction, the applicant also filed an Executive Summary which I now set out here in full: 1. The Kings purchased no 37 Calca Crescent, Forestville with the intention of illegally constructing a granny flat under their house. 2. They deliberately undertook the work without Council Approval for the purpose of constructing a granny flat and removing subdivision drainage. 3. Their plan was to shift the drainage burden resulting from the illegal works and removal of a sub-division drainage system to the Applicant or her property. This would require her to construct a drain to Starkey Street and to obtain an easement for that purpose at tremendous expense. 4. The evidence shows that the Kings colluded with Council from an early stage (2001) resulting in the Applicant's complaints being ignored and her land being left unsupported. 5. The Kings destroyed evidence of an antecedent sub-division drainage system and fabricated evidence of build up of fill on the applicants land. The intention to fabricate this evidence is part of their logic in undertaking the works initially without an approval. 6. The Kings could not drain their land following the illegal works so they colluded with council in a plan to assert that the sub-division drainage system worked such that the Applicant's land was burdened with a drainage for the benefit of their lot no. 37. 7. The Kings sought to get the Applicant to give a consent to her land for the purposes of a DA to build a fence - that DA would have given the Council the power to investigate and find that the applicant had to construct a drain on her land. 8. The Council granted a Consent 1382 which was improper on numerous grounds and was invalid. 9. The Council framed the Consent with a view to later giving a building certificate when circumstances could be contrived so that suitable drainage could be paced (sic) on no. 37. 10. The Applicant consulted solicitors with a view to obtaining support for her land. 11. The solicitors failed to join the Council and generally conducted the proceedings in the interests of the Council which by now was committed to orchestrating a drainage system on the Applicant's land. 12. In particular, the solicitors contrived to manage the issues in the case so that the removal of sub-division drainage by the Kings and its impact was air brushed out of consideration during the proceedings. 13. The Respondents knew what the solicitors were doing and the purport of their agenda. They accordingly knew that the Applicant was not obtaining proper advice, was obtaining and largely dependent on improvident advice and was accordingly in a position of special disadvantage. 14. The case came to Court in February 2004 without the Respondents proposing any plan to deal with the consequences of their excavation and without the Applicant's solicitors having enquired as to the existence of an outlet on the [K]ings' land. 15. The solicitors settled the matter at Court without instructions by and without consultation with the Applicant. The settlement was based on an undertaking by Kings to lodge a DA for a retaining wall (for which they already had consent). The settlement was justified by reference to the work of a conclave of experts which produced a document called Exhibit A. 16. Exhibit A proposed a very limited set of works and in particular the lowering of a 65 mm drain to the footing zone of a partially built retaining wall approximately on the boundary. 17. Exhibit A works could not have ever been implemented and the evidence shows that there was no bona fide intention of implementing them. 18. The settlement required the lodgment for a DA but suspiciously permitted King to deny that he was responsible for the excavation and therefore for the drainage of the land 19. The Applicant's lawyers, the Council and the Respondents all understood that the footing which was subject of the undertaking would be demolished immediately following the trial 20. They also expected the Council to find an alternative system on the Applicant's land based on the manner in which the matter had settled and the need in the circumstances to drain the land. 21. Plans were put forward by the Kings for the purposes of the DA which contained contrived ambiguities to make the applicant think that the undertaking was being complied with when it was being undermined by a proposal for demolition of the footing on which the undertaking was based. 22. The Council and the Applicant's lawyer colluded to conceal from the Applicant the purport of the drawings. 23. The removal of the footing, on which the undertaking was predicated was a concomitant of the placement of a drain on the Kings land so that the removal was predicated upon the assumed insinuation of a drain on the Applicant's land. 24. Considerable efforts were made to obtain the Applicants consent to an amended DA involving her land in order to empower the Council to investigate her land but in the event that was not obtained. 233Mrs Young's alleged "damages" were particularised, in the DC document included in the bundle, as: (1) Loss in market value $350,000. (2) Unrecovered expenses of $105,000 in respect of the Land and Environment Court proceedings. (3) Bank interest on moneys borrowed to fund legal expenses. (4) Costs and expenses of seeking to address the fact of the unlawful and trespass works which are in part protected by unlawful Council instruments. (5) Further particulars which will be provided at trial. (6) Costs of creating an easement to facilitate subdivision drainage. 24 February 2012 234On 24 February 2012, I heard (or, it could be said, concluded the part-heard hearing of) the respondent's NOM to set aside the applicant's NTP seeking the Pikes case documents. 235Early in the argument (Tp6, L30), Mr Wright tendered (as Exhibit K1 for that hearing) correspondence exchanged between the respective solicitors during February 2012. That exhibit was returned when I handed down my decision setting aside the NTP regarding the Pikes case documents (judgment No 3) on 14 March 2012, so I cannot set out any of the contents of that correspondence. 236During that hearing I made the following remarks relevant to the question of the jurisdiction of this court, as distinct from the other two courts engaged to assist Mrs Young (Tp12, LL1-22): ... it's not just a normal liberty to apply situation, and we know there's law about liberty to apply is to facilitate orders not to reopen orders ...Of the three courts this Court is the one with the limited jurisdiction in terms of causes of action that we can deal with so ultimately there's going to be an issue, no matter how you unpack the nature of the case document as to what relief can be obtained here. ... I have to be careful in determining what might be germane to the issues that are within the jurisdiction of the Land and Environment Court in the Land and Environment Court pleadings, for want of a more general term, to not make a decision that would rule out at all times your trolley of documents being produced in the District Court or the Supreme Court. 14 March 2012 237On 14 March 2012, I delivered my judgment on the NTP (judgment No 3), setting it aside, and reserving again the question of costs. My key findings were stated as follows ([106]-[107]): 106. The court has closely examined the 'Grounds', the 'Nature' documents, the applicant's written submissions on the NTP issue, the transcript of the hearing on 24 February, and the notes and transcripts of the twenty odd occasions counsel for the applicant has had the opportunity to address the court to explain the applicant's case. 107. Much of what those sources contain has been quoted or summarised above. The action the respondents have taken against Pikes is obviously specific to their former professional arrangement, which would involve some privileged communications, and I am not persuaded that the necessary nexus, forensic purpose, or relevance have been established, such that the respondents should be required to produce the documents sought. 238I then said (at [116]-[118]): 116 The applicant asserts a major injustice, and must now formalise the course she wishes to follow, and, at long last, prepare to prosecute her NOM to have McClellan J's orders set aside, regardless of what occurs contemporaneously in her District Court and Supreme Court proceedings. 117 Both parties must assist in putting the court record in order, and in arriving at the best way forward, towards resolving this unfortunate dispute. 118 Unfortunately, the applicant and her legal team have a disturbing record of disobeying this court's directions, and derailing its timetables, by changing their course virtually at midnight on the eve of any mention or directions hearing. 239I identified a series of issues that needed attention to ensure that the applicant's NOM to set aside the 2004 orders could be listed, at long last, for its substantive hearing ([122]-[123]), and made a series of directions, designed to be fulfilled within generous periods totalling 84 days, so that in June the court could fix the hearing date for September ([123]). In handing down the written judgment, I remarked (T p3): I will not entertain variations of that timetable. I think the deadlines that we are going to set, we set, have to be observed in this occasion. The only exception to that I make is the one I've mentioned which is, if the parties can agree to resume the mediation, we have to find a new mediator, of course, because of the death of the Honourable Marla Pearlman, but all that's in here. 240For completeness I set out paragraph [122] of that judgment: 122 Accordingly, the court makes the following orders and directions: 1. The respondents' NOM dated 24 May 2011 is upheld, and the applicant's NTP dated 29 or 30 March 2011 is set aside. 2. The costs of the dispute about the NTP are reserved. 3. The exhibit tendered at the hearing of the respondents' NOM is returned. 4. Within 14 days, the applicant must elect which of the two alternative formulations of her NOM to set aside the orders made and entered by the court in the substantive proceedings in February/March 2004 she wishes to press. 5. Within 14 days, the applicant is to comply with the respondents' NTP requiring production of her solicitor's file, and a disk containing its contents, with the cost of the disk to be applicant's costs in the cause unless a suitable contribution to that cost is negotiated with the respondents. 6. Within 28 days, the applicant must settle the final form and terms of her 'Grounds of Application to Set Aside Orders' document, her 'Nature of the Case' Statement, and a list of the affidavits and other evidence upon which she will seek to rely at the hearing of her NOM, and, also within those 28 days, must file all additional evidence upon which she intends to rely, in order that the respondents are clearly on notice of the case they are required to meet. 7. Within 28 days, the parties are to agree upon, and submit to the court, an intelligible translation of the document known as 'Exhibit A', referred to in the orders and undertaking under attack in the NOM. 8. Within 28 days, the applicant is to submit to the court the signed undertaking she has promised, committing not to bring against the respondents any further charges of contempt of the court's 2004 orders. 9. Within 42 days, the respondents are to request all further and better particulars they require in respect of the applicant's NOM, her 'Grounds of Application to Set Aside Orders' document, and her 'Nature of the Case' Statement, in their final form. 10. Within 56 days, the applicant is to provide responses to any request for particulars made pursuant to par 9 of these orders, and provide, to the respondents and the court, a list of all the evidence upon which she intends to rely at the hearing of her NOM. 11. Within 70 days, the respondents are to file, and notify the applicant and the court of, all evidence upon which they intend to rely at the hearing of the applicant's NOM. 12. Within 84 days, both parties are to file chronologies of relevant events, and written outlines of their submissions on the NOM to set aside the court's 2004 orders, and to notify each other of witnesses required for cross-examination at the hearing of that NOM. 13. The parties are granted liberty to apply to the court, jointly, to relist the matter on 72 hours notice, but only in the event that they agree to seek the appointment of a new mediator, pursuant to the order made by this court on 31 July 2009. 241Mr Wright complained (Tpp4 - 5) that "yet further subpoenas and notices to produce have been served by Mrs Young's side ... yet more forensic exploration is being undertaken", and he urged the court to bring the preparation for the hearing of Mrs Young's NOM "to some kind of finality" 14 March to June 2012 242On 17 and 19 April 2012, in compliance with direction 6, requiring the 'grounds' and 'nature of the case' documents to be filed, in final form, a revised ("second amended ...") 'grounds' document, and a 'nature of the case' bundle of documents were filed. 243The 'grounds' set out in that April 2012 version have not been amended further, despite an opportunity to do so ([262] below), and they are summarised at [281] below. 244The new 'nature of the case' bundle was in five parts - part 1 headed "Up to consent" (120 pars), part 2 "From consent to construction certificate" (44 pars), part 3 "Solicitors consulted prior to commencement of trial" (161 pars), part 4 "Trial and settlement (undertaking)" (64 pars), and part 5 "After trial" (108 pars). No further executive summary was filed with this bundle, and I have not examined it in any detail. 245Also, in late March, and during April, 2012, the following material was filed on the applicant's behalf: 1. Her chosen formulation (by letter of 27 March) of the amended NOM, being the shorter of the two drafts - direction 4; 2. The agreed "transcription" (cf "translation") of Exhibit A - direction 7; 3. Mrs Young's written undertaking, dated 14 December 2011, not to "commence or prosecute or ... assist any third party to commence or prosecute any proceedings for contempt" against the Kings - direction 8; 4. "Reports" by surveyor Michael Basile, and engineer Mike Brearley, dated April 2012; 5. The following affidavits: (a)one by engineer Ross Fraser, dated 12 April 2012, annexing his reports dated 12 April 2011 and 22 May 2011 (b)three (?) by engineer John Thomas Davies, being one dated 31 August 2011, and the other dated 14 October 2011, but filed twice (c)two by geotechnical engineer Warwick Davies, dated 23 May 2011 and 12 April 2012 (d)three by the applicant, Margo Young, one dated each of 23 May 2011, 15 June 2012, and 12 April 2012, the latest comprising 421 paragraphs. 18 June 2012 246As envisaged by the 14 March directions (Judgment No 3, at [123]), the matter came before me again on 18 June for the purpose of setting the applicant's NOM down for hearing, and making "any necessary further/final pre-hearing directions". 247Mr Newell's submissions were said to be in near-final form - in fact they were delivered to my chambers that morning - but he also wanted to file late evidence (Tp1). The applicant had decided not to rely on Warwick Davies, but to "attack" him, apparently over the ambit of "Exhibit A" (Tpp1-3). 248The applicant did not, however, provide a list of the evidence upon which she intended to rely, and I set out for counsel my understanding of the degree of the parties' compliance with my directions of 14 March. 249I also raised (1) the need for formal written submissions to be made regarding this court's jurisdiction to deal with Mrs Young's NOM, and (2) the need for any recusal application to be dealt with in advance of the hearing (Tpp4-6). Both parties responded that they respectively had no intention of asking me to recuse myself. 250Mr Wright reiterated that the respondents would not be filing any affidavits, and indicated that he would not be requesting particulars of the 'nature of the case' document. He would rely on the 2004 transcript and judgment, and Exhibit A, and would put on submissions in reply to Mr Newell's. 251Mr Wright said (Tp7, L28 - p8, L7): Two things have arisen though since we were last before your Honour in relation to shape, if it has one, of the applicant's case. The first is that there are now very broad ranging allegations made not only against lawyers, who were the applicant's lawyers, namely the solicitor and barrister who appeared for her in the original proceedings but now also against the lawyers who represented my clients. Those are put more forcibly and in some ways generically in the submissions that were received today. So there is a significant change in the case in that sense, that lawyers are now not just the lawyers representing the applicant but the lawyers who were involved in the proceedings. The submissions received today also fundamentally change the applicant's approach to the undertaking itself and the evidence which would have been relied upon, as we had always understood the case developing in the last, at least two years, as to not only what did happen but on the applicant's case what should have happened, reading the submissions today it was discernable, somewhat surprisingly, at this late stage that now a blackout has been given to Mr Warwick Davies, and far from him being the true author of exhibit A and part of the applicant's solution - not withstanding that he was an expert involved on her behalf in the years before that - he is put in the parcel of the wrong doers. And that's a very significant change to the applicant's case and it doesn't form part of lease as I've understood it. It doesn't form any part of the nature of the case statement. Now if that's the case we're actually looking at a very different factual construction of what happened around the creation of exhibit A and what is said to be the applicant's position as to what should have happened before the proceedings were heard, and in an ideal world what should happen as overall solution to the alleged problem. I don't know what we're to do about that, given that it's now articulated for the first time in the submissions that were produced today. 252The question of final directions was stood over to 26 June 2012. 253A bundle entitled "Detailed Chronology of relevant events" was also delivered to my chambers during the day, on behalf of Mr Newell. The main document in that bundle is really a detailed history set out in chronological order, and runs for 119 numbered pages, followed by voluminous documents under 25 tabs. Pages numbered 118-119 of the chronological document comprise a "chronology of works on No 37 ..." (Mrs Young's earlier chronology document had been filed in her affidavit of 12 October 2011 - see [174] above - but ran to only 69 pages). 26 June 2012 254When the matter returned to court on 26 June, Mr Newell acknowledged that his submissions articulating the applicant's case, still nearing final form, were or would be, in some respects, framed differently from what appeared in the 'nature of the case' document. 255He would argue that this court had "implied jurisdiction" to deal with Mrs Young's application, and he would argue the application on the 'grounds' document, rather than the 'nature of the case' document. 256He would seek to file and rely on another affidavit from Mrs Young, clarifying "what advice she received, what communication she had, and what she did not ... we say the solicitors said very little to her and the respondents said very little to her about a very critical issue" (Tp4, LL13-33). 257Mr Wright noted from the respondent's draft written submissions (Tp5, L14) "a significant shift in the nature of the so-called conspiracy", and remained concerned that (Tp10, L26) "the ground keeps shifting", and that the allegations against the Kings "involve extremely serious criminal conduct" (Tp12, L6). 258He complained about possible further evidence, and the service of yet another NTP on the respondents. He had still not seen any outline of what the applicant wanted to put to the respondents, if and when they are called to give oral evidence, and foreshadowed (Tp6) making applications to set aside both the subpoenas served on the respondents, and also the NTP. 259Mr Newell denied (Tpp7-8) that the applicant's abandonment of Warwick Davies "signals a great change in the case". It was merely "a refinement in respect of certain allegations". The applicant will attack Exhibit A, in the creation of which Warwick Davies had played a role, so Mr Davies should not be put forward as "our witness". The applicant's submissions will explain how the 'grounds', which won't change, are made out by the evidence, and he did not propose to amend the 'nature of the case' document, which had "led to a more concise understanding that can be recorded in a more cost effective way in the submissions". 260Mr Wright's concerns remained (Tpp11-14), and he wanted notice of "whether the nature of the case statement is to be relied upon at all". 16 July 2012 261I made a series of directions on 26 June, and stood the applicant's NOM over for hearing on 17 September. 262The directions were the subject of some negotiation between the parties, and with my chambers, and were finally settled on 16 July, in the following terms: 1. The Applicant's application to set aside the 2004 consent orders is fixed for hearing over four days before His Honour Mr Justice Sheahan commencing at 10am on Monday 17 September 2012. 2. The Applicant is to notify the Respondents within seven days of the date of these orders of any intention to apply for leave to amend the Statement of Grounds document. 3. The Applicant is to notify the Respondents within seven days of the date of these orders whether she intends to rely upon the document described as 'Nature of the Case Statement', and if so, what reliance is to be placed upon that document. 4. The Applicant is to serve on the Respondents within seven days of the date of these orders a schedule of the affidavit and documentary evidence upon which she relies being that evidence already served and in respect of which leave to rely has been granted. 5. The Applicant is to notify the Respondents within seven days of the date of these orders as to whether it is the Applicant's intention to subpoena either or both of the Respondents to give oral evidence at the hearing and if the Applicant has that intention, the Applicant is to serve at the same time notification is given under this order, a written statement as to the evidence it expected each Respondent will be asked to give. 6. The Applicant is to serve on the Respondents within seven days of the date of these orders, a notice identifying any further affidavits in respect of which leave to rely is to be sought. 7. The Applicant is to file and serve written submissions on or before Monday 23 July 2012. 8. The Respondents are to file and serve on the Applicant written submissions, a chronology and a notice of witnesses required for cross-examination on or before Monday 13 August 2012. 9. The parties are to address in their written submissions the question of whether this Court has jurisdiction to hear the Applicant's notice of motion to set aside the 2004 consent orders. 9a. The Applicant is to file and serve any written submissions in response to the Respondent's submissions by Friday 24 August 2012. 10. If any party intends to make an application in relation to the question whether His Honour, Mr Justice Sheahan, should hear the Applicant's notice of motion, the court is to be informed of the intention to make that application on or before 31 July 2012. 11. The parties have liberty to restore the matter on 48 hours notice. July - September 2012 263On 23 July, Muriniti sought some indulgence - "best efforts", but "an inevitable short delay" - regarding the applicant's compliance with those directions, due to his and Mr Newell's commitments to another matter. 264By 30 August, the applicant's final submissions had still not been provided, a delay which completely disrupted the timetable I had set, and required the respondents to seek an extension for filing their submissions. 26565 paragraphs of applicant submissions reached me on 4 September, under cover of a letter to my Associate from Muriniti, emailed on 7 September. On 10 September, my Associate asked Muriniti to "proofread" and refine that document, and submit a final version of the applicant's submissions by close of business Wednesday 12 September. A reformatted and signed set of "final" applicant submissions was filed on 13 September. It was 25 pages shorter, and I have disregarded the earlier longer document. 266On 14 September, the respondents filed a NOM, and two affidavits in support, for consideration "instanter" on 17th, seeking to set aside the subpoenas served on the respondents to give oral evidence at the hearing. The hearing commences on 17 September 2012 267When the hearing of the applicant's NOM commenced on 17 September, I noted that of the eight "final" directions affecting the applicant, five had not been complied with. 268Following further directions given during the first day (Tp16), the applicant submitted overnight her "schedule of ... affidavits" (and reports) upon which she sought to rely (36 items), a list of five "respondents' affidavits notionally reserved", and a list of other documents upon which she would also seek to rely (the three LEC judgments, the 2004 transcript, a late affidavit from Mrs Young, and a supplementary expert report). 269The first item of business for the court on that first hearing day was the NOM to set aside the subpoenas (see T17.9.12, pp1-15). After argument, I declined to set them aside, but I ordered that the applicant call the respondents only at "the end of her other evidence". 270Mr Newell then opened the applicant's case for more than three hours - on the afternoon of 17 September and the morning of 18 September (Tpp17-65). 271That opening developed her argument, supposedly in its final form, in regard to the NOM, and Mr Wright frequently interrupted to draw the court's attention to what he saw to be differences, in the argument advanced, from the 'grounds' set out in the various versions she had filed of that document. 272During the hearing (on 19 September), I granted leave to the respondents to file in court a NOM to set aside NTPs dated 19 June and 17 September 2012, together with an affidavit in support from Mr Stern, both dated 18 September. That NOM has yet to be argued. The 'grounds' document 273I turn, now, to consider in detail the 'grounds' upon which the applicant seeks vacation of the 2004 orders. 274In judgment No 3, I summarised the 18 October 2011 version of the applicant's 'grounds' document (at [38]), but directions were later given, on both 14 March and 16 July 2012, imposing deadlines on its revision, given that the court did not require production of the Pikes case documents. 275A "second amended" version of the 'grounds' document was filed on 17 April, and is the latest before the court - no further version followed the July direction. 276The April 2012 version, upon which the applicant's case is presently to be argued, came into being after the belated provision by the applicant of particulars the respondents requested in respect of the annexure to the 'grounds', as revised during October 2011. Particulars are provided 277The particulars were sought by Stern on 31 October 2011 (Exhibit R2 before me), and answers were provided by Muriniti on 23 January 2012 (Exhibit A1 before me). Mr Wright (in his memo of 19 September 2012) points out that Muriniti made no reply at all to the following request made at the end of Stern's letter of 31 October: Allegations of Fraud and Collusion Your counsel, Mr Newell, has made repeated allegations of fraud and collusion against the Respondents in open Court. I assume that those allegations have been made with your knowledge and on your express instructions. However, no part of the Further Amended Grounds or of Annexure A identifies or particularises those allegations of fraud or collusion. In your response, I invite you to identify and to provide full particulars of the precise allegations of fraud and collusion made against the Respondents. (I also note, in passing, that Mr Newell had occasionally implicated Stern and Wright in his off-hand allegations against their clients, but never put specific complaints before the court) 278Three numbered requests and the responses to them became especially relevant during the argument of the summary dismissal NOM. The three requests were as follows: 12. By what acts, facts, matters and circumstances is it alleged the Applicant's lawyers were intentionally acting contrary to her interests? I assume that the expression 'Applicant's lawyers' is intended to refer to each of the Applicant's former solicitor and barrister. Confirm that this is the case in your response and ensure that you provide particulars in respect of each of them. 13. By what acts, facts, matters and circumstances is it alleged the Respondents knew that the Applicant's lawyers were so acting? Please answer in respect of each of the Respondents. 14. By what acts, facts, matters and circumstances is it alleged that each of the Respondents 'were on notice of facts that would lead a reasonable person to know' that the Applicant's lawyers were so acting? In answering, please identify the specific facts of which each of the Respondents is alleged to have been on notice. 279The belated response to those three requests formed the contents of Annexure A to the letter of particulars, and ran to 37 paragraphs over 6 pages, introduced by the following paragraph: Where the word lawyers is used the reference refers to the Applicant's lawyers being Hones lawyers and the Applicant's counsel. It is not material to identify the precise acts of the solicitor and counsel separately where it is apparent that the conduct of the proceedings leading to the prejudice clearly indicates that the Applicant is a victim of an intentional breach of fiduciary duty emanating from her legal team. The solicitor and Counsel acted together. (Mr Wright points out (in his memo of 19 September) that, during his opening, Mr Newell widened that meaning of "lawyers" to include the respondent's former lawyer (Griffiths) and his firm (Pikes).) 280The detailed allegations which followed are too extensive to set out here, but they dealt, inter alia, with the respondents' (1) alleged commitment "to an agenda to have the Council find a pre-existing drainage system on the Applicant's land which benefited no. 37"; (2) alleged "special knowledge" that the drainage they installed "behind the retaining wall footing immediately after proceedings were commenced" was "inadequate", "could not address" the issues then of concern to the applicant, and so could not "be the foundation for a settlement as in the event it was"; (3) removal, after the 2004 orders were made, "of the footing and 65 mm drain", indicating their knowledge that "it had no proper purpose except to [found] an illusory settlement", which they must have known the lawyers would collude in, making their undertaking meaningless; (4) other "special knowledge", including (a) of outcomes which would damage the applicant's position in many specified ways, and serve the Council's agenda, and (b) of reasons the Council had not been joined by the applicant in her proceedings; (5) knowledge that their massed footing, the purpose of which was "to act as a dam in that they could drain their land", could never be approved, was, therefore, temporary, and would have to be demolished/removed; (6) knowledge of the significance of not identifying an appropriate and legal drainage outlet on their land; (7) knowledge that the settlement based on Exhibit A was entered on the applicant's behalf, without her instructions, and "manifestly contrary to her interests". (In his memo of 19 September, Mr Wright relies on disparities between Mr Newell's oral opening and very many, indeed most, of the paragraphs of Annexure A.) Final 'grounds' 281The 'grounds', as they now stand, may be summarised as follows: (1)Any agreement or purported agreement represented by McClellan J's orders was made by the applicant's legal representative without her authority, and without consulting her, and in breach of her instructions and of an express limitation on the authority she gave them in her costs agreement. (2)The orders made by McClellan J were entered on or about 2 March 2004 "irregularly", as they do not conform to the orders his Honour pronounced on 19 February 2004, and are alleged not to reflect his intention in making them, namely that, pursuant to liberty to apply, the applicant would be able to seek an appropriate remedy if the work the subject of the respondents' undertaking was not performed, or could not be performed, or if for some other reason, a remedy was necessary in the interests of justice. (3)Any agreement or purported agreement formally represented by his Honour's orders and each of them, is void for uncertainty. (Five particulars are provided concerning drainage matters, and the retaining wall required by cl 2 of the undertaking). (4)The underlying agreement is void by reason of common mistake, in that the subject matter of the agreement was a purported solution, proposed by experts, to the drainage problems on No 35 Calca Crescent, caused by the unlawful works performed by the respondents, whereas in fact, no such expert solution was ever proposed by the expert conclave, and Exhibit A did not indicate a solution to the drainage problems on No 35. (5)The underlying agreement is void by reason of common mistake, in that its subject matter was the disconnecting of the upper drain from the stormwater system draining to the street, and taking that upper drain to the rear of No 37. (Reference is made in this ground to a letter from the expert Springett to Pikes, dated 5 January 2004). (6)The underlying agreement is void, or liable to be avoided, for common mistake, or, in the alternative, unilateral mistake, and/or, in the alternative, is impeachable by reason that it is the consequence of the fraudulent or male fides conduct by the solicitor and/or counsel for the applicant. (Detailed particulars are included, one of eight being an allegation of male fides or fraud in the breaching or purported breaching of the underlying agreement). (7)The underlying agreement is liable to be set aside in equity, having been procured or obtained unconscionably, insofar as the respondents knew, or were on notice of facts that would lead a reasonable person to know, that the applicant's lawyers were intentionally acting contrary to her interests, or were acting in the interests of another party. The applicant was at a special disadvantage for the purposes of the underlying agreement, in that she was manifestly in need of, but was not receiving, disinterested legal assistance and advice for the purposes of conserving her interests in connection with the making of the underlying agreement. (8)The underlying agreement was obtained and the 2004 orders entered as a consequence of systematic collusion among the then legal representatives of the parties, and the proceedings were managed, and their settlement was framed, by them, "with a view to advancing an agenda (in the interests of Warringah Council)", detailed particulars of which agenda are given. (9)The underlying agreement is void in that it is illegal, or can be performed only in an illegal manner. (Particulars are given, largely asserting that the work the subject of Exhibit A would require the granting of consent, a consent which could never lawfully be granted in the circumstances). (10)The underlying agreement is void in that it is and was at all material times impossible to perform. (Again very detailed particulars are provided). (11)Further, or in the alternative, the underlying agreement is void or voidable, in that the agreement or purported agreement, if any, was predicated upon knowingly false representations made by the respondents. (The particulars given again refer to the January 2004 Springett letter, and possible male fides or fraud upon the applicant, by her then solicitor and/or counsel). (12)The applicant did not obtain any benefit from the underlying agreement, in that the respondents did not advance, in good faith, the DA the subject of the undertaking. (For particulars the reader is referred to the annexure to the 'grounds' document. That annexure was the subject of much controversy during case management, as it was originally the substance of a since withdrawn contempt charge, brought by the applicant against the respondents). (13)The respondents did not intend, when giving the undertaking, to comply with its terms in good faith, in that, as disclosed by the Springett letter, the respondents had no such intention of performing the works the subject of the undertaking. A possible alternative ground based on the uncertainty of the agreement is also included in Ground 12. (14)The consent the subject of the class 4 proceedings (consent No 1382) is fatally and fundamentally flawed, on a number of grounds, of which the following particulars are given: (a)The Consent is fundamentally at variance with the Development Application to which it purports to relate in manifest breach of section 80 Environmental Planning and Assessment Act 1979: (b)The Consent does not specify the portion of the development work the subject of the DA which has been approved (and no record of that portion has been maintained collaterally the four corners of the Consent) in manifest breach of Section 80 Environmental Planning and Assessment Act 1979; (c)The Council in granting the consent never properly examined the drainage issues obviously associated with the work; (d)By reason of the forgoing matters the Consent is a source of conflict and confusion and is calculated to afford protection to work which is causative of environmental problems. (15)To permit the consent to remain in place has implications for the community, beyond the private interests of the applicant and the respondents, in that the "environmental problems caused by the works" may have impacts on other parties, and consent 1382 is calculated to mislead subsequent purchasers of, or stakeholders in, No 37 Calca Crescent. (16)The applicant relies generally upon the court's inherent or implied power to set aside final orders, in order to prevent abuse of process, or injustice. The Annexure to the 'Grounds' Document 282There was annexed to the earlier versions of the 'grounds' document the "Amended Statement of Charge" referable to the contempt charge which was no longer proceeding. With the abandonment of that strategy, and the undertaking not to revive it, the "charge" morphed into a plain "annexure" to the 'grounds' document. Mr Newell had earlier explained (T24.5.11, p3, LL26-27) that the charge had been included as "just a way in which the particulars of the lack of good faith are articulated". 283In both its original and later forms, the annexure alleges breaches by the respondents of the undertaking they gave to the court on 8 March 2004 in three primary respects: (i) failure to submit a competent DA for new retaining wall and drainage system within 21 days; (ii) failure to submit a DA which included the drainage works referred to in clause 1 of the undertaking; and (iii) failure to use all reasonable efforts to progress through Council a DA for a retaining wall and drainage systems as required by the undertaking. 284The version of that document attached to the latest version of the 'grounds' again provided very detailed particulars of those alleged breaches. The court's impression of the applicant's case prior to the September 2012 hearing 285The suggestions of collusion, dating back to 2008-9, flowered into an allegation of at least one (perhaps criminal) conspiracy, in which some combination of the following was, or must have been, involved - the respondents, their lawyers and advisors over time; the local council, its officers, and its advisors; and her own former solicitor, barrister, and expert(s). 286However, it appeared to me, as I prepared for this recent hearing, by reviewing all that had been said to me at the many pre-hearing mentions reported above, that: (i) the applicant's central factual point was that the respondents constructed their granny flat too low in the water table for it to be drained into the subdivision drainage system, and too low to drain to Calca Cres as required by the original development consent. She says that the respondents know that, and that the Council refused to do anything about it, thereby committing "serious and contrived breaches of [its] statutory duties" in respect of stopping the unlawful works, and/or requiring their demolition, and/or its failure to consider the late, pre-hearing (31 December 2003), application for a building certificate. (ii) the applicant alleges that the respondents - and the Council? - always planned that the constructed footings would disappear, once the applicant conceded she would have to be responsible to drain her land to Starkey Street. (iii) the applicant alleges that the Council was misled by the respondents' claims, namely that, firstly, all they were seeking was its consent to change the use of rooms under the house, rather than to establish them, and, secondly, the level of the retaining wall was as surveyed, when they had actually concreted the land to that level (0.8m c.f. 1.2m). It was the applicant's submission that that tainted development consent 1382 of 5 February 2002 with fraud, and shows that Council dealt with the applicant "dishonestly"; (iv) the applicant also alleges that what happened in the 2004 hearing was "puppeteered" by Wilshire Webb, at the time the law firm preferred by the Council, and that Council has in some way "falsified" its file or paper-trail; (v) the applicant believes that (perhaps as part of a conspiracy) the court was also misled, otherwise McClellan J would never have left her without any remedy in the event of the undertaking proving impossible to perform. The proceedings could have been adjourned while the undertaking was fulfilled; (vi) the applicant alleges that her lawyers at trial, Hones and Hemmings, were to some extent "in collusion with Council", and were "parties to a scheme to trick [her] into having a drain on her land", whereas she has consistently resisted any suggestion of drainage being put, or added to, on her land to facilitate the neighbours' works. (She described the pre-existing drainage arrangements, and relied on her expert, Jack Davies. Mr Newell described the system - at T10.5.11, p5, LL26-44). The court had been left unclear as to whether there is some distinction to be drawn between what has been referred to as the "pre-existing drainage system", and the so-called "subdivision drainage system", and which, if either, drained 35 and/or 37 to Bates Creek (at or near the western boundary of Garigal National Park). The power by which Council could order that a drain be put on the applicant's land for the respondents' purposes, as appears to have been contemplated by Council following an approach from Mr King, was not identified; and (vii) the applicant alleges that water modelling done by the applicant's expert, Perrens, and relied on, at least at the conclave, was "methodologically flawed". While it may have been useful to inform consideration, it was not a good basis upon which to design any solution. 287A large number of experts had some input to this dispute, and into these proceedings, at various stages. Some of them were involved, at some stage and to some extent, in the formulation of "Exhibit A" on which McClellan J's decision turned in respect of relief. Mrs Young now criticises all experts except Jack Davies, who attended the conclave for some time, but apparently not when the video was shown and the exhibit was drawn up. 288Mrs Young came to assert that relevant experts did not see Exhibit A as presenting for the court a solution to her problem, but rather as containing the answers to a series of questions, which avoided at least one key issue before the court at that time, namely the alleged "damming" of "overland flow" by the respondents' "illegal works", with the inevitable effect that Mrs Young's drainage problem would become far worse (query "ten to a hundred times") than what was put to the court in Exhibit A, which dealt only with subsurface water, and cannot be implemented, in any event, in the absence of an "outlet" on Mrs Young's land. (See T15.3.11, p1, LL21-30; p7, LL45-52; p8, LL25-40; p12, LL12, 21 and 28, and p15, L36). 289In the result, only the demolition of at least some of the respondents' unlawful building works (involving either or both of the granny flat and/or the footings of the retaining wall on the boundary) would protect Mrs Young's property from consequential damage. The continued existence/presence of the relevant works gives rise to questions of encroachment, trespass, nuisance, etc, some of which may lie beyond any remedy within this court's jurisdiction (T15.3.11, p8, LL25-40, and p14, LL40-43). 290Mrs Young's action against advisors and representatives is obviously of relevance to the issues presently before this court, insofar as she believes she can use some of the evidence she has assembled for that action to make good her claim that the judgment of this court in the original proceedings - including the court's requirement of, and reliance upon, the expert conclave - miscarried. Clearly, serious complaints have now been made about how her solicitor and barrister framed, conducted and settled those proceedings in 2003-4; proceedings which, she says, were brought, from her point of view, to set aside the then recently granted (illegal) development consent and CC, to have the unlawful works removed, to have her land reinstated, and to obtain an award of damages. 291The Council complained (per Ms Kelly at T10.5.11, p20) that Muriniti's correspondence and Mr Newell's submissions, on at least 10 May 2011, were at variance with the DC claim, as currently pleaded, against Council and the Kings. Amendment of those pleadings is pending, and the DC case may be removed to the SC in due course. It was also suggested that the Council could be joined in the LEC case if it is reopened. 292The court's view of the dispute, at that stage, had also been informed, of course, by the executive summary Mr Newell provided in respect of the 'Nature of the Case' Statement, as filed on 27 January 2012. I set out that executive summary in judgment No 3 (at [39]), and above (at [232]). 293It is against all that background that the movement in the applicant's position over time must be deduced from now comparing with the above what Mr Newell finally put to the court on 17-18 September 2012, and it is to summarising those submissions that I must now turn. Applicant's case as outlined in September 2012 294The court has the benefit of both written submissions from the applicant, and Mr Newell's lengthy opening statement. 295The written submissions go into substantial detail arguing the 'grounds' upon which the applicant seeks to set aside the 2004 orders, but, as the focus of this judgment is the respondent's NOM to have the applicant's NOM summarily dismissed, and as the respondent took that step only after the opening statement, what follows in this section of the judgment summarises that oral statement, rather than the detailed written submissions. 296In the final version of his written submissions, dated 11 September 2012, and received on 13 September, Mr Newell says (in par 10): The circumstances in which the claims in these proceedings were purported to be settled in 2004 involved a fraudulent scheme to shift a drainage burden to the Applicant which had been historically and naturally the burden of no. 37 Calca Crescent ('No. 37') as the downstream property. 297Mr Newell commenced his oral submissions, on 17 & 18 September, by defining what he called "the unique characteristic" of the case (T17.9.12, p17, LL31-37) as: ...the complaint is made not only about what happened, but what happened by reason to what was intended to happen in the fullness of time, but has not yet happened. As matters presently stand, whatever work might have been done hasn't been done, and there is no retaining wall, and I suppose it could be called a stalemate, but in any event the work hasn't been done, and it's fair to say that there's an ongoing environmental problem. 298He then went on to say that the "one thing" which had not shifted for some time about the applicant's case was that the Kings - and others who had become involved "for various reasons over time" - had, at all material times, "an anxiety to shift a drainage obligation to Mrs Young's land from their own land'. He added (Tp17, LL44-46): How that was viewed in terms of the pre existing drainage system and how the pre existing drainage system was to be used to bring about that outcome has changed a bit but that is essentially the proposition. 299The "half baked" attempts by a former owner of No 37 to establish a habitable space in the "basement room" area, were embraced by the respondents, but required a DA, the consequences of which they intended to evade (see Tp18). 300The "half baked" excavation "must have adulterated the drainage situation that had been put in place at the time of the subdivision", and a carport, established at the rear of the property on the north-eastern corner of the house, also without approval, and in the path of the flow of water, must be "a further unapproved adulteration of drainage arrangements" (Tp18, LL33-39). These works were properly the concern of the Council, but, on the applicant's case, the Council "had stood by and nothing had happened about this unapproved work" (L45). 301The Kings' further work on No 37 (including on its boundary with No 35) commenced about the middle of July 2001, but without any DA being lodged. On the applicant's case, the works involved extension of the wall of the "granny flat" down to the rock below. 302In order to establish the basement room, there had to be "a substantial excavation ... on the boundary" between Nos 37 and 35. An excavation of up to 1.2m was carried out, without development consent, because the Kings intended to "claim that there was a difference in levels between the two properties that was attributable to the build up fill on No 35 by Mrs Young or a previous owner of No 35" (see Tp19, LL18-21). If a DA had been lodged, a Council inspection would have readily revealed the fact "that the levels of each lot were the same at and near the boundary" (Tp19, LL24-25), and "no one has ever explained why Mrs Young would have built up her land [with] fill so as to have a change in levels" (Tp32, LL6-8). 303An excavation would require a retaining wall and something in the nature of an interception trench. In the absence of some agreement to the contrary, they would need to be located on the Kings' land, relatively close to the house - Mr Newell says (Tp20, L27) "inconveniently or unpleasantly close" to the house. "If on the other hand the retaining wall could be positioned on the boundary and the interception trench on Mrs Young's land, No 35, then that consequence could be avoided, there would be plenty of space for a comfortable path which would affect the amenity of the property and not to mention its resale value" (Tp20, LL28-32). 304Such a trench would require periodical maintenance, for which the host landowner would be responsible, and, in the end result, drainage would be required to the rear of the properties, namely into Stanley St, rather than towards the front into Calca Cres. Those drainage arrangements would require Council approval to contemporary standards (Tp20, L43-p21, L11). Substantial costs would likely be involved, because of the uncertainty of the level of the rock, and those costs would always be outside the reach of the applicant (Tp21, L22-33). 305Mr Newell accuses the Council of "flagrantly ignoring its duty, to the detriment of Mrs Young", such that "there must have been something that happened between the Kings and the Council at the time of the purchase of the property" (Tp21, LL35-44). In his written submissions (at par 13) he said that "the facts suggest that the Kings claimed a representation by the Council (whether express or implied) upon which they allegedly relied in purchasing the house". He went on (at pars 14-15) to allege that ... The inactivity of the Council in the face of the Kings' blatantly illegal work (and the Applicant's diligent complaints) suggests that the Council was made to understand that the Kings would sue the Council if they were prevented from realising what they perceived as the value of the basement room and/or made to reinstate the damaged sub-division drainage system in accordance with current standards. In other words, a stop work order was understood by the Council to be the expected catalyst of threatened proceedings by the Kings against the Council. That is because such an order would have run counter to the compliance representation. In this way, the Kings' agenda became (or became coincident with) the Council's agenda. 306When Mrs Young discovered the excavation in the middle of 2001, she sought the assistance of the Council, and council officer David Page came and inspected, allegedly telling her that there was "nothing illegal going on" (Tp22, L10). When she persisted, he allegedly told the Kings to put in a DA "within a short space of time" (LL12-13). The Kings approached Mrs Young and gave her a document, dated 22 August 2001, which they asserted was a DA. Her case is that its purpose was to intimidate her into agreeing to having a drain on her land, perhaps "to avoid being sued" for negligence (Tp23, LL4-8), but it was merely a letter to the Council, which she later ascertained had never been sent. It allegedly contained an assertion that "excess water is flowing from the southern property, that is her property, that causes damage and health problems in a play area and in the house and generally creates a picture of damage by reason of water ... originating from No 35" (Tp22, LL9-26). 307The applicant asserts that the respondents are claiming that the retaining wall was needed to replace some "tin and wire arrangement", which was not successfully containing the allegedly built-up soil on Mrs Young's land, and "had no drainage whatever" (Tp22, LL32-36). The question of a drainage outlet was not discussed at that time (L47). 308Mr King thereafter alleged that he had excavated only 20cm of his land, and contended that such a degree of excavation was "exempt development", which "made a negligible contribution to the difference in levels between the two properties at the boundary" (Tp23, LL24-32), Mrs Young having built up her land by 60cm (or, as Mr Newell says, in his written submissions, "at least 40cm"). 309Mr Newell contends that the allegation that Mrs Young had built up her land was an "entire fabrication" (Tp23, L38), "only developed after there is an excavation" (Tp25, LL36-37)). The strategy was to "fix" Mrs Young with the liability for the damming of surface water on her side of the retaining wall (Tp25, LL45-46). 310Mr Newell builds on that series of allegations to submit (Tp26, LL13-15) "that the Court case was managed on the basis that the question of the surface water and the question of the fill allegation was (sic) left out of sight until the matter could be settled and taken back to the council". 311In any event, because of Mrs Young's continued agitation, the Kings lodged DA 1382 with the Council during September 2001, and Mr Newell contends (Tp27) that it sought approval of three things - a change of use of rooms to create a granny flat, a retaining wall, and "improved drainage". 312The DA inferred that there was already in place an approval for a basement area, but it did not disclose the existence of substantial excavation. The Council-stamped consent plans included a notation on the southern elevation plan "retaining wall to replace pieces of tin behind old fence" (Tp27, L39), and the CC issued at the end of 2002 contained drawings with the notations "masonry fence to hide building fill on 35 Calca" (Tp30, L28), and "dish drain to be inserted subject to removal of fill on 35" (Tp31, L6). 313Mrs Young says that the terms of the CC shows full commitment of the Council to the notion that there was fill on her land, and, therefore, she should be responsible for surface water. By issuing the consent on 5 February 2002, with the stamped drawings, the Council committed itself to an account of matters contrary to both the truth of the position and the best interests of Mrs Young, setting the stage for her to become responsible for the damming effect of the retaining wall. "There was no way the drain could go on No 37 because the footing was encroaching on No 35" (Tp29, LL42-43). A paper trail was later constructed as though the footing were not a footing for a retaining wall, but one for perhaps a fence (Tp29). The Council would ultimately say that the excavation was at 0.8m below the surface of Mrs Young's land - the total of Mr King's 20cm excavation, plus 60cm of fill on Mrs Young's land (Tp29). If fill were removed, Mr King might be responsible for a dish drain, but if it were to stay, and a retaining wall had to be built to retain it, Mr King would not be responsible for the surface water (Tp31). 314It is her case that the retaining wall was designed to support "a recent and substantial excavation" (Tp28, L21), which had not been the subject of any DA, nor any building certificate application. A concrete massed footing was built, encroaching on the applicant's land, and it is her case that it was the respondents' intention that she should understand that that footing had been approved by the Council, and was there to stay, and that she had no alternative, if she were to drain her land, but to agree to a having drain on her land. 315Mrs Young frustrated her alleged opponents' scheme by declining to agree to a DA involving No 35. 316It was at about the time of the issuing of the CC that Mrs Young retained Hones and Hemmings. She complained that the consent required a building certificate application to be made for unspecified works that had been carried out, and she was unable to understand why a CC had been issued referring to a fence when the consent to which it related referred to a retaining wall. 317Despite her complaints about the Council, the lawyers advised against joining it in the proceedings they were commencing. Mr Newell concedes that not all of Mrs Young's complaints could be accommodated by judicial review proceedings in this court, but he alleges that some of the real issues in her predicament were deliberately side-stepped. For example, her lawyers advised her that the principal problem was the question of sub-surface water, rather than surface water (these allegations against Hones are developed at Tpp33ff). The expert reports put forward solutions for the drainage of sub-surface water, but do not specify an outlet, although the need for one is acknowledged. Mr Newell said (Tp35, LL36-38): "there couldn't have been a substantial dispute between the parties if there wasn't a problem about the outlet". Mr Newell suggests that Mr King at that time considered himself "untouchable by the institutional framework", because Mrs Young's lawyers "had shown no intention of advancing a case in her interests and he knew he had Council under control" (Tp36, LL36-43), and he went on to develop (at Tp37) the argument that there was collusion among all the named parties "for the purpose of achieving the outcome" (Tp37, L13). 318After the proceedings were commenced on about 14 April 2003, the Kings (query on 28 April) put in what they called "drainage", which was essentially a weep hole arrangement associated with "the bit of half-baked retaining wall that they had built, a mass (sic) footing with a layer of blocks across the top. And they then relied upon that drain as the basis of the way they would precede (sic) with the Court case" (Tp38, LL16-21). 319The Kings ran the case in the full knowledge that they had no proper defence. That was the subject of some criticism in McClellan J's judgment, and (Tp38, LL37-39) "there needs to be an explanation and a reason for how they could expose themselves to those kinds of costs without having special knowledge that the case would not be run in a legitimate manner" - the Council was not joined; the Points of Claim side-step the real issue of the extent of excavation; the change of use proposition is based on a false assumption, and so on. 320Mr Newell then made several allegations (Tp39) about the state of mind of the Kings - about what they "must have known", or "what they must be taken to have known", or what they "knew". For example, they must be taken to have known that the manner in which the proceedings were run by the applicants lawyers did not bear scrutiny; they put forward no remediation plan to avoid demolition; the method of settlement of the case was preordained before the expert reports were finalised (see Tp40); the strategy was to cloak the "settlement" with the benefit of "advocate immunity" (Tp41, L18-19); the outcome was "illusory", or perhaps "farcical", "because it could never be implemented and it was obvious to the people I've just [enumerated] that it could not be implemented" (Tp42, LL21-24); the massed footing could never get a building certificate. (The building certificate application of 13 December 2003 was never progressed - "it was simply a device to cause the Court to understand that in fact the mast (sic) footing was the subject of the ... settlement so far as it was framed by the Exhibit A obligations" (Tp42, LL33-6)). 321Mr Wright (Tp41, LL30-50) pressed Mr Newell to clearly state what he was putting against the respondents, in respect of the allegedly pre-arranged result of the litigation, and Mr Newell responded (Tp42, LL3-12): Well the answer to that is that I previously said the matter was pupeteered by the council, in particular the council's lawyers who oversaw that matter. The council was not a party but had a watching brief and took a considerable interest in the proceedings through its lawyers, Wilshire Webb. The parties to the agreement, which is inferred from conduct - and I'll have to make a submission about that, are the respondent's lawyer, Mr Griffith's, Mr Hones, for the applicant, Mr Hemmings for the applicant, and the experts, Mr Springett, Mr Perrons (sic) and Mr Warwick Davies being the experts, they were all conscious of and engaged in conduct which facilitated the outcome, which involved the settlement at court on 16 February 2004. 322Mr Newell contended that the respondents were "parties to the agreement" (Tp42, L49), and that the settlement was "mumbo jumbo calculated to support the apparent need for the lodgement of a DA with the Council" (Tp43, LL9-10). Its purpose was to cause Mrs Young to give her consent for a DA to be lodged over No 35, so that the Council would be empowered to investigate her land, and "to facilitate the discovery that she was responsible, by reason of the retaining wall now made necessary, for that retaining wall, in whole or in part but sufficiently to be responsible to have a substantial drainage obligation, and there by to be required to construct a drain to Starkey St" (Tp43, LL16-22). Hones put a document to Mrs Young which Mr Newell says Wilshire Webb invited Hones to create. 323Mr Newell then went on, however, to concede that Mr King was (Tp44, LL7-10) "not as involved as the council and the lawyers in outcomes although he's a beneficiary of them and he knows exactly where they have to go, he's able to sit back and not actually get involved in some of the machinations that are required". 324The history of the matter following the 2004 court case is of a continued effort to get Mrs Young to give her consent to a DA over No 35. There were some developments with the format of the Kings' DA, because of the involvement originally of engineer Bennett and then engineer Boyden, and some new council officers (Tp44). Some of the drawings show a footing of 0.8m, when the massed footing was known to be at 1.2m, and Mr Newell submits (Tp45, LL3-15) ... the plan is to simply sidestep any question about the massed footing being at 1.2 or it being the actual foundation for the retaining wall that the paper trail will show was put in, and I come back to this your Honour, if the massed footing is not going to stay or is not going to be the subject of the building certificate application, the settlement at Court was a conscious fake. It was a nonsense. It settled, exhibit A is framed on the basis that Mrs Young and the Court were to understand that that massed footing would be fixed up in two respects, that the drainage would be adjusted, a building certificate would be obtained and then a retaining wall would be built pursuant to a further DA to go up on the foundations of that footing, and the evidence shows that nobody had any intention - and when I say nobody, I mean the Kings, the council, Mr Hones, none of those people had any intention of that massed footing staying or playing a role in the resolution of the matter. 325The day after the settlement (ie 20 February 2004), Hones wrote to Wilshire Webb urging that, in consequence of McClellan J's judgment, the building certificate then under consideration should not be issued. Mr Newell developed this into some complex component of the overall plan (Tp45). 326On the morning of 18 September 2012, Mr Newell continued with his opening submissions, and returned, firstly, to the fact that there was no existing approval for a basement room. He also mentioned again the failure of the consent to specify work that was excluded (condition 3), in the sense of construction work done prior to the granting of consent. By failing to specify what work was excluded, the Council avoided stating whether it was proceeding on the basis of an excavation that required prospective regulation by a building certificate, or on the basis that there was no excavation that would require a building certificate (Tp49). That reserved for the Council the ability to later claim there was no excavation and that they had none in contemplation when imposing Condition 3 - "that's part of the course of unacceptable conduct by the council", constructing a "reality" on its file (Tp49, LL39-41). 327He then submitted (Tp50, L15-p52, L50): The applicant's position in relation to the respondents is that originally the respondents created the circumstances which shaped and made the collusion necessary. They created the false allegation of fill on Mrs Young's land, and they created the circumstance in which the council was married to the notion of fill on Mrs Young's land and was thereafter unable by reason of its conduct, in particular the instruments which it issued to explain its conduct. So that the position is that the respondents clearly understood the dynamics of what was occurring because they had fore knowledge of the very predicament the dynamics would address. ... from the time proceedings were commenced, the problem became the problem of the council in such a way, it's not necessary to assume the [active] involvement of the respondents from that point because the council had a serious predicament and it's certainly not the respondents who had any influence over the legal representatives of the applicant. The case against the lawyers, while it's in my submission inescapable, is in its nature a circumstantial case ... [There] is no need to assume forensically that they were actively involved in the conspiracy from the time that the council owned the problem caused by the commencement of the proceedings. That was a very serious problem for the council. It was critical as they could not explain their conduct. On the one hand it was critical for them not to be joined as a party to the proceedings, and it was critical that the proceedings be managed so as to sidestep the council's misconduct. The respondents in the events which occurred were beneficiaries and we will say knowing beneficiaries of the course of conduct by the applicant's lawyers, but because it is not necessary to assume in the known circumstances that they were active participants from the time the proceedings were commenced, and because their own lawyer, Mr Griffiths, it is suggested was acting in the interests of the council even more than he was in the interests of Mr King, so that there was a commonality but there's still an opposition of interest between Griffiths and King. It would not be appropriate to consider that the respondents are active participants in what is inferred by circumstantial evidence for the purposes of the management of the proceedings, in particular the trial. However, from the time that the undertaking was accepted, the respondents did perform an act in accepting the undertaking which involved them actively in achieving the outcome that the council sought, that the giving of the undertaking to do work which was going nowhere and which was never in fact going to be done, was a necessary step in advancing the agenda pursuant to which the council would get control of the matter and would impose obligations on Mrs Young. ... ... the respondents gave the undertaking in bad faith, with no intention of performing it, and in the knowledge that they would not perform it and that that matter would not be brought to the attention of the applicant by her solicitors. So in the giving of the undertaking itself, there was the necessary common purpose and parallel conduct for Mr and Mrs King to be involved in a conspiracy. At the same time, the claim against Mr King is sufficiently made out in that he understood that he knew or was on notice of sufficient facts and he seems to have been - it's my submission he was on notice of more than sufficient facts to know that the agreement - it was unconscionable to take the benefit of the agreement into which Mrs Young was [purportedly] induced to enter for the purposes of the settlement of proceedings. ... ... the Kings knew that the undertaking was a sham. They couldn't fail to know the undertaking was a sham. The reason for that is that the Kings were present in Court, they knew what exhibit A said, they understood that the undertaking exhibited the peculiar circumstance that it was to be achieved by disconnecting the drain that was draining to the front of the property and taking it to the rear of the property. ... ... the undertaking was given in the full knowledge that the things undertaken to be done would never be done, in this particular case for the mundane reason that he purported to believe it had already occurred. And of course Mr Springett's conduct is difficult to explain, to put the matter charitably, because he participated in the conclave and prepared a report on the conscious basis that the property drained to the front. 328Springett was an engineer retained by the respondents and participated in the conclave. McClellan J referred to him in judgment No 1, at [26]-[33], and I referred to him in judgment No 2, at [33] and [35]. (Those paragraphs are set out above in [54] and [49] respectively). Springett's letter to Pikes, dated 5 January 2004, is relied upon by Mr Newell and the applicant (see 'grounds' (5), (11), and (13), summarised in [281] above). 329Against the Council, Mr Newell went on to allege (Tp52, LL34-50) that it "prepared the consent on the basis to insinuate that drainage would be to the front", as drainage to Starkey St at the rear would require an easement, and: It was not intended that Mrs Young understand at that time or maybe ever, that when a drainage arrangement was in place, whether it was her obligation or that of the Kings, it would involve a very substantial project in draining to Starkey Street. To prevent her knowing that, the consent was drafted in such a way as to insinuate the drainage to the street, Calca Crescent, was in contemplation. 330She then asked Council to produce a survey showing that drainage to Calca Crescent was possible. Council decided to pander to her understanding (Tp53, LL14-15), and produced Lethbridge's 2002 survey, which, it is alleged, King had provided to Council. 331Mr Newell then returned (at Tp54) to the Springett letter of 5 January 2004, which Kings attached to their post-settlement DA, in purported compliance with their undertaking, "to deal with the problem that the Council had originally insinuated that drainage would be to Calca Crescent" (LL23-24). Following the conclave, "somehow the drain to Calca Crescent had to be disconnected from the stormwater" (LL25-26), and Mr Newell says (LL31-37): ... the experts in fact had to mandate drainage to the rear because they knew that there could not be drainage to Calca Crescent, but they did not want to say that because they did not want to underscore that the whole notion of drainage to Calca Crescent had been a false proposition for the purpose of misleading the applicant. So a pretext had to be developed in the context of the undertaking to cause the undertaking to involve connecting to the rear - draining to the rear. 332Mr Newell says that the Springett letter, which predated the 2004 hearing, was "contrary to the basis on which [the respondents] ran the case", but accommodated Council's need not to consider whether the drain would operate to the rear or to Calca Crescent "because it's presented as already draining to the rear", and whether it should, in approving such an arrangement, insist on surveys, nomination of outlet etc (LL40-8). 333The DA drawings "created the impression it already existed " (Tp55, L1), so that Mrs Young would interpret the proposal "as proposed work as opposed to existing work while the Council was to interpret the work as existing so that it had no duty to perform... The applicant could hardly be told that the work had already been done because she'd wonder what she ran the case for" (Tp55, LL4-25). 334Mr Newell says that the respondents had no intention of implementing the DA, but it accommodated "the Council's difficulties in managing their (sic) file so as to avoid their duty" (LL27-30). The massed footing, "which is ... the foundation for the work in Exhibit A, was intended as a matter of the Council's paper trail to disappear", rendering the undertaking "an entire sham", which gave Mrs Young "nothing whatever ... apart from the dismissal of proceedings". Once the DA put the matter back in Council's hands, hopefully Mrs Young would give her consent, and Council could deal with her land (LL30-44). 335Mr Newell then turned his attention again (at Tp56) to Hones's letter of 20 February 2004 to Wilshire Webb, which was "published to Mrs Young", and (Tp56, L36-p57, L40) had been: ... drafted to suggest to the applicant that she's somehow been successful on the one hand, but on the other hand Hones lawyers are providing a pretext to the council not to further consider or issue the building certificate on which the whole undertaking was premised. Without a building certificate for the massed footing and the drainage arrangements associated with it, the retaining wall could never be built on the foundation of the massed footing. So that the whole rug was pulled out from the undertaking within 24 hours ... ... the agenda was that the massed footing should disappear without the applicant understanding that that was an intended matter ... facilitated by Mr Boyden, 'who submitted drawings with the revised DA, which were' [contrivedly] ambiguous, ... in order to create the impression, on the one hand, that the footing is staying, but can be read just as plausibly to later record that the footing had disappeared as a part of the proposal. There's a notation which reads "Compendiously demolished footings and associated drainage pipe work to grade to rear masonry block retaining wall and drainage pipe to be constructed. The choice of words I say is ambiguous in that it can be read and it was read by the applicant as meaning that the footing would be demolished to permit grading to the rear as contemplated by exhibit A, only insofar as necessary to permit grading to the rear. On the other hand it could be read as meaning that the footing referred to in exhibit A and the associated drainage would be entirely demolished. So, what the council would have on its file is a record showing that as a matter of expressed process and proposal that footing disappeared. The council would not have to explain why it wasn't involved in considering whether that footing should disappear because it's been described on the drawings by Mr Boyden as a fence. Now, the purpose throughout - at various points in these proceedings of describing the footing as a footing for a fence, that description being offered by variously Mr King or his representatives from time to time, is of course to affix to it a label which would convey that it was exempt and would justify conduct on the part of the council, which would justify the council not giving consideration to whether it should be demolished ... The fact that the footing was to disappear and it was to be labelled as - called a fence footing for the purpose of its disappearance was something that had been prefigured by the conduct of certain parties on behalf of Mrs Young. 336Mr Wright pressed Mr Newell to explain what he meant by the footing "disappearing" - was it disappearing "in fact", or "from the record"? Mr Newell replied (Tp57, L46-p58, L5): We don't know, we know that it was to disappear from the file and the file was to say it was gone. And I expect that it would in fact have disappeared, all we know is the file was written up on the basis that the narrative called for it to disappear or to have disappeared. Now, that consequence did not just happen by reason or at the time that the Boyden drawings were submitted because, as I was about to say, that outcome was prefigured by the conduct of Mr Hemmings and of Mr Davies and the preparation of the cross sections which he annexed to his report of December 2003. (It was Warwick Davies who called the footing a "fence" in "ambiguous" drawings, prepared so that Council could justify its conduct - Tp58, LL10-15). 337Mr Newell then (Tp58) reminded the court that the words "after consideration by the Council" had been deleted from the initial wording of the 2004 undertaking, so as to convey, he says, that the Exhibit A works could be undertaken without any DA being lodged. When the Kings commenced work on 5 March 2004 on that premise the matter was brought back to McClellan J on 8 March, and amendments were made (see [59] - [60] above). 338Mr Newell submitted (Tp58, L45-p59, L4): ...the undertaking was not only given in bad faith in that there would be no substantive outcome as a result of it for the benefit of Mrs Young, but that it was also framed in a direct manner with a view to permitting the council to conduct itself in the manner that it wanted to - that it needed to for the purpose of sidestepping the predicament that it had created for itself and to facilitate the process of shifting a drain to Mrs Young's land. The central proposition is that the council would be prepared to believe or accept that there was fill on Mrs Young's land, and therefore would cooperate in imposing an obligation on her for drainage, which was justified by reference to that fact. 339Mrs Young was never given the usual DA form, upon which to signify her consent, only a collateral document (Tp60, LL21-3). When it was clear she would not consent, and Hones did not explain to her what precisely was proposed, a couple of meetings were arranged by Council to discuss the DA. These were not held until September 2004, and then February 2005. Council was represented at them by a Mr Hoffman (Tp61). Mr Newell records that Mrs Young confronted Boyden, and that Perrens took issue with the Boyden drawings. Those exchanges confirmed for Mrs Young that the footing was actually at 1.2m, not 0.8m, but there was little interest, on the part of the others, in acknowledging that fact. 340Minutes were prepared of the February 2005 meeting, but Mr Newell alleges that Dr Perrens sent different versions of them to the Council and Mrs Young. He submitted (Tp62, LL28-37): The copy that went to Mrs Young said that no dish drain would be necessary. Whereas the copy that he sent to the council made no reference to a dish drain not being necessary your Honour, and the significance of a dish drain of course is that if Mr King is going to drain the surface water in accordance with Mrs Young's known expectations, then there would have to be a dish drain. ... The minutes sent to Mrs Young stated that a dish drain would not be necessary. The version that was sent to the council omitted that statement. 341Mr Newell went on (Tpp62-5) to deal with the refusal of consent on 30 June 2006, the various offers of settlement made in the proceedings on and after 9 May 2003, the controversy that has arisen over the conclave, and the various alleged failures of Hones and Hemmings in their dealings with Mrs Young, especially regarding the 2004 settlement (which she says was, in some respects, contrary to express limitations she placed on their authority), and Exhibit A. In his written submissions (at par 71), Mr Newell says that "Exhibit A is systematically drafted to advance the elements of the Agenda - This could only happen if all of the lawyers and experts were complicit". It is (at par 72) "dishonest", "deliberately vague and evasive", and (par 76) was "understood by both lawyers to be a sham" (details in pars 75-77). He says (in par 78): The conduct of the experts generally must have been orchestrated by both lawyers to have achieved the matters consistent with the Council Agenda. In particular, it cannot be said that the experts were on a frolic of their own in effecting the machinations for which they were responsible. The Respondents' application for summary dismissal 342At the close of the applicant's opening address, Mr Wright moved for the summary dismissal of her application that the court vacate its 2004 orders, and invited the applicant's legal advisors to get instructions to withdraw it, and pursue a remedy for her in the SC case. 343Leaving aside Mr Wright's points on this court's jurisdiction, he put to me, on the question of "case to be tried", (T18.9.12, p69, LL41-42) that: There is simply, on the case put, no causal link to the result that Mrs Young complains of and (LL37-39): ... there can be no basis ... of suggesting that there was any so called fraud, or any tainting of the so called contract, for which my clients can be said to be directly responsible. 344There is a major allegation of collusion, but most of the alleged "deliberately and carefully identified" parties to it are not before this court to defend themselves. The Kings are alleged to have gained "special knowledge" as a consequence of fraud by those parties, and such allegations should have been fully pleaded in properly constituted proceedings. The "overarching" allegation in the case as now opened is against Mrs Young's former lawyers, and, when invited to do so, the applicant failed to particularise any allegations of fraud and collusion against the respondents (see [277] above). 345If Mrs Young is correct in her complaints, her remedy is to be found elsewhere, principally in her SC case, where many, if not most, of the alleged conspirators are already parties. 346The applicant alleges that the "primary beneficiary" of the conspiracy is the Council, whose "vulnerability" on the facts is at the centre of the matter. 347However, Mr Wright deduced from Mr Newell's opening that the primary cause of the applicant's "loss" was "negligence and breach of retainer" on the part of her 2003-4 legal representatives, whom she is pursuing in the SC case - she alleges that they "had express knowledge and instructions" from her (T18.9.12, p66, LL34-35), which required that any result of her litigation must involve acceptance by the Kings of their obligation to drain their own land (LL40-42). 348The applicant goes beyond that case, however, to assert that the respondents must have known the nature of those instructions (L50), but, at this hearing, as submitted by the respondents, Mr Newell pursued a "very cautious, deliberate navigation around and [away] from the serious allegations that in the past have been made directly against them" (Tp68, LL27-29), based upon a "vague" assertion that dealings between them and the Council, dating back to their purchase and their first DA, "created or induced a level of vulnerability in the council, which predisposed it to ... a shifting of some kind of drainage burden to Mrs Young's land ..." (Tp68, LL31-41). 349It is alleged that, "when the proceedings were commenced, a different course of conduct, very deliberate, emerged" (LL43-44), but Mr Wright submitted that Mr Newell's opening did not assert any direct involvement by the respondents (or their then solicitors) in "any kind of collusion or conspiracy" with Hones, Hemmings, Perrens, Warwick Davies, the Council, its solicitors, or any combination of them, in the course of the applicant's 2003-4 litigation (Tp68, L46-p69, L2). 350The alleged "gravamen" of the applicant's case on her motion is that the agreement underpinning the 2004 orders is voidable, for the range of reasons "pleaded" in the 'grounds' document, and that damages awarded by the SC or the DC "isn't going to solve her problem" (T18.9.12, p75). Her ongoing problem can best/only be solved, according to Mr Newell, by setting aside the 2004 orders, reopening the LEC proceedings, and letting this court make orders that solve it. "It's ... as much in the interests of the Kings as it is in the interests of the applicant for that to occur" (Tp76, especially LL10-13). 351Mr Wright counters that the applicant came back to the LEC in 2008 "with the intention of enforcing the undertaking" given by the respondents, but has now expanded on that objective to embrace a "whole [new] case theory", which implicates the respondents "in these evil deeds of others" (Tpp77-78). To succeed on her application "to reopen", the applicant has to prove fraud, but the only fraud she finally alleges is on the part of "someone else" (Tp80). It is not enough to implicate her lawyers, and assert that the respondents in some way benefited from their "misconduct", and/or had "special knowledge of it" (Tp80, LL34-48), and of the "closed confidential relationship which existed between Mrs Young and her advisors. It seems to be a process of implication based on speculation, none of which could be, even on a generous view, a proper process of inference" (Tp81, LL27-31). The allegation "seems to be put on the basis that they cannot but have known ..." (LL36-40). 352As Mr Wright says (Tp82, LL19-21): What can they have possibly known about the instructions that Mrs King [sic] gave and what the lawyers did that would suggest that by first giving the undertaking and then pursuing its implementation, they have acted in bad faith. 353As he elaborated (Tp83, LL11-20): How could it be said for example that one way or the other my clients, who were respondents to these proceedings, could have had any responsibility for whether the council was joined or not. Particularly the way it's now expressed. There are these statements about some kind of conduct by my clients way back in 1999 when they bought the house, then when they lodged their development application and did their work, which was calculated to produce a degree of vulnerability in the council. It's then led this to become some kind of predisposition or intention of the council to act in a way with others, third party, to direct its interests. 354The applicant's conspiracy scenario allegedly commences with Hones's dealings with Council, when he was first instructed by Mrs Young. He failed to act in her interests, from the start, and served the interests of the Council, initially by resisting its joinder in her 2003 proceedings in this court, and then by conspiring with its solicitor, David Thomas (of Wilshire Webb) and "faceless bureaucrats in the council", who sought to protect it from the "risk" to which it appeared "vulnerable" from its dealings with the respondents. He disregarded the applicant's "clear express instructions" (so summarised by Mr Wright at Tp69). (In Mr Wright's written submissions he cites Romeo v Papalia [2012] NSWCA 221, where the Court of Appeal considered actions taken by a solicitor, possibly beyond his client's authorisation). The Applicant's submissions in response 355Mr Newell conceded (Tp97, LL27-35) that, in any "hierarchy of culpability": Mrs Young's lawyers would be at the top, the council would be second, and the experts would be - the experts would be second and council would be third, and Mr King would be at the bottom. But having said that Mr King is involved essentially in what occurred because he gave the undertaking as I submitted yesterday in the full knowledge that it was a sham. He knew what he did was a sham, he knew how he was to benefit by reason of the sham, and none of this could have happened without him giving [the] undertaking with that knowledge and with the intention of benefiting from it. 356The application to have the applicant's NOM dismissed should have been brought by the respondents more "promptly", once the 'grounds' document had been finalised, so bringing it now is a "conspicuous abuse of process" (T18.9.12, p90, L40). As Mr Newell said (T18.9.12, p85, LL4-7, and L31): "It does not sit well, to put the matter mildly, for the respondents to come here now and say they want the application dismissed when they cannot muster an argument as to why the agreement is not void for uncertainty", and against the "other grounds that attack the agreement", including (Tp86, LL16-18) the unconscionability of the respondents' taking advantage of the disadvantaged position in which Mrs Young was placed, and of which (Tp88, L35) "the Kings were on notice". 357Mr Wright's response to this "abuse of process" submission that his NOM should have been brought earlier was to ask (Tp93, LL1-5): ... against what [?] Mr Newell constantly comes before your Honour changing his case,... Every time there is a complaint about the way his case is articulated he changes it. 358Mr Newell submits that the consent orders are "nothing more than creatures of the agreement which founded them" (Tp84, L41), and can be set aside on any of the grounds upon which that underpinning agreement can itself be set aside (LL42-43), or upon the grounds that the orders were "obtained irregularly, illegally, or against good faith" (Tp89, L1). 359One "obvious example" of "against good faith" (Tp89, L10), according to Mr Newell's submission, relying on a remark I made in Teoh v Hunters Hill Council (No 3) ('Teoh No 3') [2009] NSWLEC 121; (2009) 167 LGERA 432, at [69], is "collusion between legal representatives" (Tp89, L9). 360On the question of jurisdiction, and the significance to it of the decisions in Logwon Pty Ltd v Warringah Shire Council ('Logwon') (1993) 33 NSWLR 13, and Kirk v Industrial Court of New South Wales ('Kirk') [2010] HCA 1; 239 CLR 531, Mr Newell said (Tp91, LL12-21) that he did not: ...understand them. No, I don't understand how the well known position of the Supreme Court, as a prerogative Court, cuts across the right of the jurisdiction of a superior Court of record, such as this Court, albeit a statutory Court to do what Logwon said it could do. I see nothing in Kirk, I see nothing in what is extracted in the submissions for the respondents about Kirk to suggest that that power has been taken away or that Logwon is incorrect. ... Kirk ... has to do with a privative clause and it is said that the privative clause had to be struck down because it could not offend the constitutional position of the Supreme Courts of the states. 361He went on to assert (Tp92, LL1-2) that Kirk, "properly understood", establishes no principle that would "cut down" Logwon. (See also Tp98, L40-p99, L13). 362In this respect, Mr Newell submitted (Tp89, L44-p90, L7, and then Tp98, LL6-10, and LL21-29): ... if it were the case that Mr King was uninvolved somehow in that dishonesty that somehow that would mean these orders should not be set aside. The question is whether the orders are obtained against good faith, it is not a question of whether somehow Mr King should, on some expanded concept of causation be held to be at fault. Having said that the lawyers for Mr King were his agents and insofar as Mr King remained silent about the matter, it has to be inferred, in my submission,[that] they were acting on his instructions and that what they did was on his instructions... Jones v Dunkel being what it is, there isn't any other conclusion except that what the respondent's lawyers did was on their instructions. ... Clearly ... what Mr King's lawyers did was done on his behalf. But it certainly cannot be said by Mr King that it was not done on his behalf and with his instructions where he refuses to say that that's the case. ... The transcript references to which my friend takes the Court really simply underscore the role of the lawyers and their obvious culpability. It does nothing to address to somehow quarantine the matter in a way that it does not involve Mr King but more importantly it doesn't address the grounds themselves. There is no argument from the grounds, to explain why such a quarantining in terms of the juridical issue to be established would displace the applicant's ability to rely on the grounds in question. Many of the grounds have absolutely nothing to do - nothing whatever to do with this whole collusion question in any event. The agreement is alleged to be void. 363The "settlement" reached in 2004 required of the Kings (Tp90, LL10-17): ... cooperation in putting forward an undertaking in bad faith and with no intention that it be implemented or that it could be implemented and that is beyond sensible dispute, in my submission. He put forward an undertaking - a DA which blatantly contradicted the undertaking that he had given, made it completely [nugatory] and furthermore it had regard in its structure to an agenda that was a historical agenda of his own. The Court's jurisdiction, post Kirk 364In the "final" directions I made on 16 July 2012, I required both sides to address in their written submissions the question of whether this court actually has jurisdiction to hear the applicant's NOM to set aside the 2004 consent orders (direction 9, quoted in [262] above). 365The jurisdiction issue raises the question of whether the LEC is to be treated as a "supervised statutory court", as envisaged by Kirk (T18.9.12, p73, LL20-45). Mr Wright had a lot to say about Kirk, contrasting this court's statutory character with the SC's constitutional character (T18.9.12, p78, LL37-39), but Mr Newell was dismissive of any possible relevance Kirk could have to his NOM. 366Mrs Young may well have sought to bring her NOM by exercising the liberty to apply granted by McClellan J, but the formulation of the motion itself was seriously questioned, early on, by the List Judges (see [85] - [86] above), as the authorities clearly and firmly establish that such liberty is designed solely to facilitate the "working through" of orders/undertakings, and not a post-facto attack on them. (See Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201, at [50]-[57].) 367Gradually over time (2009-12), as Mr Wright noted (T18.9.12, p78, LL4-8), that early litigation strategy was "completely abandoned" by the applicant as Mr Newell's "case theory" evolved, and, as he says (in his written submissions, par 38): The applicant does not now seek to work out the order (or undertaking) but to depart from it completely and to embark upon a complete reagitation of a very significantly expanded case at the same time that she proceeds against multiple other defendants. 368Mr Wright submitted orally (Tp78, LL9-12): There could not be a clearer inconsistency between the idea of coming back to fix an undertaking which is now said never to have been possible, never intended to have been possible, as a solution to the dispute between the Kings and Mrs Young. 369In Mr Wright's view (T18.9.12, p71, LL37-47), Mrs Young may rely on only the "very limited statutory referral jurisdiction" provided for in UCPR 36.15, with all its exceptions, which he says were not expanded by cases such as Logwon, and also with any limitations now imposed by Kirk. He made clear also (Tp78, L39) that, even if Mr Newell were relying upon "implied jurisdiction" ([255] above), the respondents would be making the same dismissal application, now that the applicant's case has been defined. 370I now, therefore, turn to consider the line of relevant cases. 371The headnote to the Court of Appeal's 1993 decision in Logwon, upon which the applicant heavily relies, records that it is authority for the proposition that the LEC is a superior court of limited jurisdiction, including, absent any statutory limitation, jurisdiction to discharge or revoke a consent order, made by it, but entered into by a party under a mistake. The principal judgment was delivered by Sheller JA. Kirby P and Powell JA concurred in the decision to dismiss the appeal, from a decision by Bignold J, refusing to set aside two sets of consent orders, but each concurring judge made some remarks of his own. 372Powell JA said (at 34G-35): ... in cases in which an application to set aside an order might conveniently be made by motion on notice in the proceedings in which the order was made - indeed, at one stage, in September 1990 such an application was proposed in this case - it seems to me that, in cases in which the ground upon which the application is sought to be based is fraud, or unilateral mistake, the need to have the alleged fraud, or the nature of the alleged mistake, properly pleaded and particularised, and the allegations of fraud or mistake established by the type of evidence which such allegations require, make inappropriate the use of a procedure which is designed for the determination of interlocutory applications. 373Kirby P addressed his remarks (at 16-17) to a suggestion made by Sheller JA (at 27G) that the LEC "has an inherent jurisdiction which supports the power which it affirmed to set aside consent orders in specified circumstances". 374Kirby P preferred the term "implied authority", but acknowledged that the distinction between "implied" and "inherent", a distinction which he considered to be both "compelling", and supported by "legal history and legal principle", was of no significance to the case at hand. However, he perceived "real difficulties in purportedly assigning to statutory courts inherent powers" - inherent powers require no statutory authorisation. The SC's inherent jurisdiction comes from its "historical origins and its nature", not from the Supreme Court Act 1970. 375His Honour continued (at 17F-G): The Land and Environment Court, like all other courts created by statute in this country, is not of the same lineage. It does not share the same history. It does not enjoy the same general jurisdiction. Its powers must therefore be traced, directly or indirectly, to its charter. This is the statute creating it and later statutes conferring jurisdiction upon it. To the express powers conferred by such statutes are added a wide penumbrum of powers implied both in the language of the relevant statutes and derived from the nature and purposes of the court as a court. Beyond that, however, I would not go. History and the sources of the powers of statutory courts forbid it. Policy and principle also suggest the contrary. I would reserve talk of inherent jurisdiction to the Supreme Court and the High Court entertaining appeals from them. Statutory courts enjoy jurisdiction implied in the way in which I have described. The foregoing distinction is doubtless elusive, perhaps metaphysical. However, it may, in another case, be important. In otherwise concurring with the reasons of Sheller JA in this case, I would not wish the point to be lost. 376Sheller JA described the complex litigation between the parties, and the history of the matter. The relevant aspect of the matter as it came before the Court of Appeal was an allegation of mistake as to the effect on the consent orders of relevant conditions of consent. Bignold J had upheld his jurisdiction to set aside the consent orders, and found that the company's mistake(s) afforded no basis for avoiding either set of consent orders, and that there was no evidence that the Council made any false representation. 377Sheller JA considered, in a general way, this court's jurisdiction (at 26F-29B), then, specifically, settlement agreements and consent orders (29C-30A), and then similarities with equitable principles regarding compromises (30A-F), before upholding (at 30F-G) Bignold J's decisions (1) that he had jurisdiction, and (2) against the application. 378Mr Newell (written submissions, par 2, pp1-4) quoted extensively from Sheller JA's judgment (27G-30A), and (par 3) from Brennan J's judgment in Permanent Trustee, upon which Sheller JA had also relied. He then (par 4) quoted from Teoh No 3, and referred (pars 5-9) to other authorities and to UCPR 36.15. The balance of his written submissions (pp7-33) dealt with the factual bases upon which he argued in favour of relief for Mrs Young. 379Prior to Kirk, but well after Logwon, I considered the law, as it then stood, on applications to "reopen" (including for alleged fraud) in Teoh No 3. 380Relevantly, Mrs Teoh (1) had joined the Council in her substantive proceedings, but, like Mrs Young, (2) was tardy in making her reopening application, (3) did not commence separate proceedings in respect of her allegations of fraud, and (4) constantly "shifted her ground" in attempting to upset the court's primary decision (see [16]-[22]). I set out the relevant principles at some length ([44]-[61]), and concluded that relief should be refused. The Court of Appeal has, on six occasions, declined to intervene (most recently on 23 August 2012 in Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260). 381Mr Wright submits (par 18) that the High Court's 2010 decision in Kirk limits the LEC's "jurisdiction to set aside a final perfected order", and (in par 19) he set out the relevant paragraphs of the joint judgment of the plurality (comprising six of the judges), notably pars [96]-[99]. Their Honours said (at [98]-[99]): 98 The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, 'with such exceptions and subject to such regulations as the Parliament prescribes', s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the 'Federal Supreme Court' in which s 71 of the Constitution vests the judicial power of the Commonwealth. 99 There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of 'distorted positions'. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics. 382Mr Wright also says (fn. 5 on p8) that my statement of principles in Teoh No 3 remains correct. 383Section 58(3) of the Land and Environment Court Act 1979 enables an appeal from a consent order to the Court of Appeal, by leave, in class 4 proceedings such as these, and that is the only place for a "final' decision of the LEC to be reviewed. Mrs Young has never made an application for such leave, and the Kings have never sought to be released from their undertaking. 384The significance of Kirk in this respect was noted by Preston CJ in Brown v Randwick City Council [2011] NSWLEC 172, and by Craig J in Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217; (2011) 185 LGERA 373. 385Since Kirk, according to Mr Wright (par 24), it is clear that this court "does not have an unfettered implied jurisdiction to set aside final binding orders ...". He went on to submit (pars 25-6) that: 25. The earlier identification of an implied jurisdiction [in Logwon] now must be understood in the light of the findings in Kirk concerning the Constitutional character of the Supreme Court. 26. In any event, even if the Court were to accept that the implied jurisdiction in Logwon was available, the applicant's evidence does not support any of the bases relied upon by the applicant to suggest that the exceptional jurisdiction should be exercised. 386The power conferred on this court by UCPR 36.15 is extremely limited (affirmed by the Court of Appeal in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324, at [25]). It is discretionary, and is not supplemented by any overriding question of the "interests of justice" (Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, at [58] per Craig J). 387Since I reserved my decision on the present matter, Biscoe J has delivered his judgment in V'landys v Land and Environment Court of New South Wales ('V'landys') [2012] NSWLEC 218, in which his Honour considered Kirk, without any direct reference to Logwon or Teoh No 3, no doubt because of their significant factual differences from the case his Honour was deciding. 388Mr V'landys objected to a DA lodged with Hunters Hill Council by his neighbours, the Dives. The DA was refused by the Council, but granted by a Commissioner of this court in a Class 1 appeal. The Council did not bring a s 56A appeal, and Mr V'landys had no appeal right. He applied to the SC (Court of Appeal) for relief in the nature of certiorari to quash this court's decision - see Lowy v The Land and Environment Court of NSW [2002] NSWCA 353; 123 LGERA 179 - and his proceedings were transferred to this court to exercise the SC's jurisdiction. 389Mr V'landys was concerned about four conditions of consent, and submitted that the Commissioner's decision should be set aside on two alternative grounds, alleging jurisdictional error, and error of law on the face of the record. The proceedings were defended by the Dives, with Council and the court submitting, save as to costs. 390Biscoe J referred to paragraphs [98] and [99] of Kirk (quoted above at [381]), and to several other paragraphs of the High Court's decision, and said (at [39]-[41] - some citations omitted): 39. The Supreme Court has supervisory jurisdiction to enforce the limits of the exercise of judicial power by all other State courts, including other superior courts of record such as the Land and Environment Court (so constituted by s 5 of the LEC Act), as well as enforcing the limits of the exercise of executive power: Kirk at [98] - [99]. The supervisory jurisdiction of the Supreme Court permits the grant of prerogative relief (a) in the nature of certiorari, mandamus or prohibition where there has been jurisdictional error ... and (b) in the nature of certiorari where there has been error of law which appears on the face of the record: s 69(3) Supreme Court Act. For the purposes of the latter, "the face of the record" includes the Commissioner's reasons for his determination: s 69(4). Ordinarily, a determination of jurisdictional error makes consideration of whether there is an error of law on the face of the record superfluous: Kirk at [78]. A privative clause in a State statute which purports to strip the Supreme Court of a State of its supervisory jurisdiction by granting relief on the ground of jurisdictional error is beyond the power of the State legislature: Kirk at [55]. 40. Jurisdictional error is a failure to comply with an essential precondition or limit to the valid exercise of a power ... Kirk at [66]. In other words, jurisdictional error is an error of law of such a nature that it renders the decision invalid as being beyond power ... 41 Jurisdictional error can occur at any stage of the decision-making process. Thus, failure to accord procedural fairness during the hearing is a species of jurisdictional error: Kirk at [60]. 391His Honour went on to examine (in [42]-[49]) other relevant authorities, and noted that "jurisdictional error', by administrative tribunals and inferior courts, can embrace some types of mistake, lack of procedural fairness, and bad faith. See Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, and Kirk at [72]. 392Having considered all these authorities, I am satisfied that Mrs Young should have sought relief by way of prerogative type proceedings to the SC, rather than by way of a post-facto application to this court. The "No Case" Submission 393The second ground upon which Mr Wright asks the court to summarily dismiss Mrs Young's NOM is that no case for it can be made out against the present respondents. 394In case I am wrong in my conclusion on the jurisdiction argument, I turn now to consider that second ground. 395As stressed throughout this judgment, the applicant's case "grew" as time went by. She bears the onus of establishing one or more bases upon which the 2004 orders can and should be set aside. 396The primary basis she relies upon to set aside those orders is the alleged conspiracy, which the authorities say should have been the subject of fresh/separate proceedings. (Mr Wright also argues (par 52) that fresh/separate proceedings are required when the ground is that "the settlement agreement is void for uncertainty or voidable"). 397In any event, Mr Wright argues that the conspiracy alleged by Mr Newell is not supported by any of the evidence dealt with, but only from the bar table, on the approximately thirty occasions on which the parties' respective counsel have debated aspects of the matter in front of me. 398Mr Wright's comprehensive written submissions deal with the applicant's NOM, and were filed before the applicant's oral opening, but his summary dismissal NOM is based solely on that opening, and not on all that went before it, up to and including Mr Newell's lengthy and comprehensive written submissions (as to which, see [295] - [296] above). 399Nonetheless it is worth quoting in support of Mr Wright's NOM some of what he had said in his written submissions of 14 September 2012 on the applicant's NOM, based on her then filed evidence: 47. Mr Newell's oral and written submissions have been replete with allegations of collusion, fraud and corruption. ... Mr Newell has come back to the Court at repeated directions hearings to report that further investigations have led to remarkable new discoveries of nefarious conduct by the ever-burgeoning class of conspirators he says are arrayed against his client. 48. The allegations of fraud and corruption against the respondents (and others) involve serious criminal conduct. The allegations are scandalous. There is no evidence whatsoever to support them. They should never have been made but have been repeated constantly in written submissions and in open Court by Mr Newell. The applicant has been invited to withdraw the allegations but has not done so. The allegations made now over a period of several years could hardly be more serious particularly where they are made against professional people who are not parties to and are not represented in the proceedings in which the allegations have been made. ... 53. The allegation of 'collusion' appears repeatedly throughout the applicant's submissions. 54. The Macquarie Australian Encyclopaedic Dictionary defines 'collusion' as 'an agreement or cooperation, usually secret, for the purpose of fraud, deception, or the gaining of an advantage' and 'conspiracy' as '2. a combination of persons for an evil or unlawful purpose 55. Stroud's Judicial Dictionary of Words an Phrases (7th edition) says '"Collusion" only signifies agreeing together' ... 'But not infrequently 'collusion' is 'a deceitful agreement, or compact, between two or more, for the one party to bring an action against the other for some evil purpose.' 56. The essence of conspiracy is an agreement between two or more persons to carry out an unlawful act. The actus reus is the agreement to carry out the crime or unlawful purpose.[R v Bolton (1991) 155 J.P.N. 620] 57. The essence of the allegations made against the respondents and others here is that some form of agreement existed to perpetrate a fraud on the applicant 'by shifting a drainage burden onto her land.' 58. Whilst 'collusion' has been adopted as the preferred terminology in the applicant's submissions, the allegation is one of a grand conspiracy involving multiple participants, all of whom must have agreed together, over a period of years, to advance the criminal purpose of unlawfully shifting a drainage burden to the applicant's land (referred to in the applicant's submissions as 'the Agenda'). 59. The applicant's case theory of the Conspiracy began to develop it seems over the period from about mid-2009. It is still developing or at least was until the directions hearing before the Court on 18 June 2012 when Mr Newell announced that Warwick Davies had been uncovered as a co-conspirator. The respondent's former solicitors have also been implicated in the plot. 60. If the underlying purpose of the Conspiracy was to 'shift a drainage burden to the applicant's land', a very complex and sophisticated scheme must have been hatched at an early stage and then orchestrated with relentless Machiavellian cunning. 61. Who was the mastermind? 62. What was the motive? 63. It would seem that the Court is asked to accept that from as early as 1999 or 2000, the respondent's conceived the scheme and then co-opted un-named officers of Warringah Shire Council to shift the drainage burden to the applicant's land or those officers conceived the scheme and the co-opted the respondents. The applicant was then provoked or goaded into commencing these proceedings so that the proceedings could then be manipulated to produce the result that a 'sham undertaking' could be proffered to the Court. 64. The underlying motive is said to be to advance the 'Agenda' of the Council. This must also involve questions of 'corrupt conduct' within the meaning of sections 7 and 8 of the Independent Commission Against Corruption Act 1998 and, if done maliciously, would expose the responsible council officers to an action for misfeasance in public office. 65. At different but unidentified points of time from the inception of the Agenda to the making of the consent orders in February 2004, a host of other co-conspirators had to be recruited into the scheme. 66. Willing experts had to be located on both sides of the issue in the proceedings so that together, they could assist in advancing the premeditated 'solution' which became known (aptly with hindsight) as 'Exhibit A'. 67. The co-conspirators include the applicant's former solicitor, then the applicant's former barrister, then Dr Perrens, then (it is now revealed) Warwick Davies. At some stage, in the course of 2003 and early 2004, the respondent's former solicitors must also have been co-opted into the plot in order to perpetrate this fraud on the applicant. 68. At different points in time, it seems that the Council's external solicitor was also a direct participant (or an accessory after the fact) in perfecting the scheme. 69. Within the Council, numerous unidentified officers must have had the cunning and foresight to perceive that such a dire threat existed to the Council's interests, it was necessary for them to adopt a drastic but highly illegal and corrupt course of action to protect the Council's interests. 70. How and why did all these people manage to conceive such a complex agreement to perpetrate a fraud on the applicant? Those questions are not answered anywhere in the applicant's evidence. 71. There is not a scintilla of evidence of the essential element of the Conspiracy - the agreement. 72. In the absence of that evidence, the allegations should never have been made. 400I accept those submissions. 401The early allegations of collusion/fraud/conspiracy were detailed in late November 2011 ([207]), and they then "flowered" and widened, over the time since then, as recorded above (see [232], [257], [279], [281], [285], [286] (vi), [320] - [323], and [327] - [328]), but the respondents have not been implicated directly (c.f. [210]). 402All that is put against them, in the end, are imputations of knowledge and/or of motive, and the invitation to the court to deduce that no alternative explanations or descriptions of their conduct work. The case against them, in the end, is a series of opinions, purportedly expert or otherwise, put to me from the bar table. Discretion 403The only ground upon which the applicant argued that the respondents' motion should not result in a dismissal of hers was their so-called delay. It is clear from what I have written that I find no merit in that submission. Conclusions 404The respondents' NOM must, therefore, succeed, on either or both grounds, and the applicant's must be summarily dismissed, as a result. I will make orders to those effects. 405A number of matters (NTP disputes, NOMs re access, experts etc) remain outstanding, but they now have no utility, and do not require any specific order to be made. 406The applicant must expect to pay the respondents' costs of her motion, but the details of a costs order will be reserved for my consideration of written submissions, unless agreement can be reached on its terms. I will allow some time for negotiations. 407The exhibits retained by McClellan J will remain with the file. One exhibit tendered at the hearing of the NTP dispute (Judgment No 3) was returned. Those exhibits tendered before me at the September hearing should be retained, pending finalisation of the question of costs. Orders 408The formal orders of the court will, therefore, be: (1)The respondent's Notice of Motion filed on 18 September 2012 is upheld. (2)The applicant's Notice of Motion originally filed on 23 May 2008, as finally formulated on 27 March 2012, is dismissed. (3)Costs are formally reserved, and the parties are directed to file any Notices of Motion seeking costs orders within 28 days, and after 28 days to approach the Registrar within a further 14 days to fix a timetable for the filing of written submissions for the trial judge's consideration in chambers. (4)Exhibits are to be retained until the question of costs has been resolved. ********** 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: 19 October 2012