Land and Environment Court New South Wales Medium Neutral Citation: Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 6) [2013] NSWLEC 143 Hearing dates: 6 September 2013 Decision date: 06 September 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Notice of motion dismissed with costs. Orders made on 22 May 2013 to be entered forthwith. Catchwords: PRACTICE AND PROCEDURE: application to stay the Court entering orders - no basis for stay demonstrated - application dismissed - orders entered. Legislation Cited: Land and Environment Court Rules 2007, rr 5.2, 7.6 Uniform Civil Procedure Rules 2005, rr 36.11, 36.16 Cases Cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68 Category: Procedural and other rulings Parties: Wollondilly Shire Council (Applicant) Foxman Environmental Development Services Pty Ltd (First Respondent) Phillip Foxman (Second Respondent) Botany Building Recyclers Pty Ltd (Third Respondent) Representation: Mr T Howard (Applicant) Mr M Seymour (First, Second and Third Respondents) Hones La Hood Lawyers (Applicant) Whittens & McKeough (First, Second and Third Respondents) File Number(s): 40578 of 2010 EX TEMPORE Judgment The Foxman Entities Seek to Prevent the Court From Entering Earlier Orders 1By notice of motion filed 4 September 2013, the first, second and third respondents in these proceedings ("the Foxman entities"), seek an order that "until further order" the Court directs that orders made by it on 22 May 2013 (Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68 at [310]) not be entered. The motion does not stipulate what power the Court has to make such an order. 2The motion was supported by an affidavit sworn by Mr David Hwang on 4 September 2013. Mr Hwang is the solicitor with carriage of the proceedings on behalf of the Foxman entities. At paragraph three of his affidavit he states that the bases for the application are as follows: 3 Since the handing down of judgment on 22 May 2013, we have: a. been instructed that orders had not been served on a Respondent; b. provided advice to our clients on the understanding that the orders made on 22 May 2013 had not been entered; and c. made tactical decisions in the proceedings on the understanding that the orders made on 22 May 2013 had not been entered. 3The order sought in the notice of motion is opposed by the applicant in these proceedings, Wollondilly Shire Council ("the council"). 4In my opinion, the notice of motion should be dismissed and the orders of the Court made on 22 May 2013 should be entered forthwith. This is because the Foxman entities have not provided the Court with a sufficient reason for it to exercise its discretion in their favour and make the order sought. The Entry of Orders in the Court 5Rule 36.11 of the Uniform Civil Procedure Rules 2005 ("the UCPR") relevantly provides as follows: 36.11 Entry of judgments and orders (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a registrar, or (b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs. 6Thus, pursuant to r 36.11(2) of the UCPR, a judgment or order is usually taken to be entered when it is recorded in a court's computerised record system. However, by virtue of r 5.2(2)(h) of the Land and Environment Court Rules 2007 ("LEC Rules"), which expressly displaces r 36.11 of the UCPR, r 7.6 of the LEC Rules governs the entry of orders in this Court. It states: 7.6 Entry of judgments and orders (1) This rule applies to the entry of judgments and orders in all classes of the Court's jurisdiction. (2) Despite rule 36.11 of the Uniform Civil Procedure Rules 2005, unless the Court orders otherwise, a judgment or order is taken to be entered when a document embodying the judgment or order is first sealed by the Registrar. (3) In this rule, a reference to a judgment or order of the Court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the Court, or of which a certificate has been filed or registered in the Court, as referred to in section 133 (2) of the Civil Procedure Act 2005. (4) This rule does not limit the operation of rule 36.10 of the Uniform Civil Procedure Rules 2005. 7Rules 36.16 of the UCPR states: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. 8Therefore, in this Court, unless otherwise ordered, a judgment or order of the Court is not taken to be entered until a document embodying that judgment or order is sealed by the Registrar. It appears that through administrative oversight the 22 May 2013 orders made in Foxman (No 5) were not recorded in the Court's computerised record system and not sealed by the Registrar. In other words, the 22 May 2013 orders had never been entered by the Court. The oversight was discovered recently when, according to the affidavit of Mr Jason Hones, the solicitor for the council, sworn 5 September 2013, the council sought to obtain a sealed copy of the orders. 9Accordingly, the matter was brought to the Court's attention by the council during a directions hearing on 3 September 2013. At the directions hearing, the council requested that the Court enter the orders immediately. At the hearing the Foxman entities opposed the making of such a direction, claiming that if it were made they would be prejudiced. The Court directed, therefore, that the Foxman entities formalise their opposition to the Court making the direction sought and provide evidence of any prejudice claimed by them in affidavit form. The Orders Should be Entered Immediately 10Order 13 of the orders made on 22 May 2013 states as follows: (13) liberty to the parties to apply on five days' notice for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part, upon sufficient cause, such as, but not limited to, unforeseen or changed circumstances being shown); 11Applications have been made by both parties, especially by the Foxman entities in a substantive manner, to vary the orders made on that date pursuant to order 13. These applications are listed for hearing on 17 and 18 September 2013. 12Initially, the council contended that the Court did not have the power to make order 13. However, it has subsequently abandoned its opposition to any application brought by the Foxman entities to vary the final orders pursuant to order 13 on this basis. 13An order that has not been entered may be the subject of an application to vary it (r 36.16(1) of the UCPR). By comparison, an order that has been entered may only be set aside or varied in more circumscribed circumstances pursuant to r 36.16(2) of the UCPR. In particular, an order arguably cannot be the subject of such an application if it "determines any claim for relief" (r 36.16(3) of the UCPR). The equivocation arises because it is unclear whether subrules (3A) and (3B) of r 36.16 stand apart from the proscription contained in subrule (3). 14The Foxman entities argue that there is the risk that entry of the orders would unfairly limit them in their application presently listed for hearing on 17 and 18 September 2013. They submit that the balance of convenience favours the maintenance of the status quo pending the outcome of that hearing. I disagree. 15First, leaving aside the potential application of r 36.16(3) (even in light of order 13) there is no evidence before the Court upon which any weight may be placed that would permit the Court to find that any prejudice or unfairness would flow to the Foxman entities if the orders are entered forthwith. The affidavit of Mr Hwang is deficient in this regard absent any further details concerning the advice that has been given to, and the tactical decisions that have been made by, the Foxman entities. While the provision of this information may result in a waiver of legal professional privilege, if these are the bases upon which the order is sought, such may be the price that the Foxman entities must pay to obtain their order. 16Second, apart from the evidentiary difficulties identified above, the Foxman entities have not explained how entry of the orders would unfairly limit them, as they claim, in the applications presently listed for hearing on 17 and 18 September 2013, to vary the final orders made in Foxman (No 5) on 22 May 2013 pursuant to order 13. Upon the orders having been entered, the parties still have 14 days after the orders are entered to seek the setting aside or variation of those orders (r 36.16(3A) of the UCPR). Similarly, the Court may of its own motion, within 14 days after the orders are entered, set aside or vary those orders (r 36.16(3B) of the UCPR). The 14 day period will extend beyond the hearing on 17 and 18 September 2013. I do not understand, therefore, how entry of the orders will adversely affect that hearing. 17Third, even if the orders are not entered, any variation of them outside the ambit of order 13 will be subject to the significant limitation imposed by the public interest in maintaining the finality of litigation. This public interest requires great caution in the exercise of the power to set aside or vary the orders, especially where the variation sought would have the practical effect of reopening the proceedings to enable a significant rehearing (Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 18302-3, 309 and 317 and De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215). There can be no doubt, when regard is had to the application to vary the orders pursuant to order 13, that the latter is what is envisaged by the Foxman entities in an application under r 36.16(3A) of the UCPR. 19Fourth, once the 22 May 2013 orders are entered, and assuming the orders are sought to be varied or set aside either pursuant to r 36.16(3A) or (3B) within 14 days of the entry of those orders, the Court's power to vary or alter those orders is generally subject to the same limitations that the general law imposes on the variation of judgments and orders prior to entry. 20Fifth, it should be noted that at no stage prior to 4 September 2013 (the date of the filing of the notice of motion the subject of this hearing) have the Foxman entities disclosed to the Court or the council that in seeking to vary or revoke the Court orders, the Foxman entities would be relying on an alternate basis to that provided by order 13. 21The council seeks, as Mr Hones deposes in his affidavit, to enforce the orders made on 22 May 2013, but it cannot do so unless those orders are entered. Having gained the benefit of those orders, I agree that it is entitled to have them implemented (subject of course to any variation made to them by dint of the hearing on 17 and 18 September 2013). 22Having failed to convince the Court that any unfairness, prejudice or disadvantage will necessarily result by the Court entering the orders forthwith, this is precisely what the Court proposes to do. Orders 23For the reasons given above, the Foxman entities' notice of motion is dismissed with costs. 24The Court directs that the orders made by it on 22 May 2013 in Foxman (No 5) are to be entered forthwith. ********** Amendments 09 September 2013 - Amended paragraphs: 5, 6, 8, 9 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: 09 September 2013