Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McGinn v Inner West Council [2018] NSWCA 90 Hearing dates: 17 April 2018 Decision date: 01 May 2018 Before: Beazley P; Ward JA; Simpson AJA Decision: The notice of motion is dismissed with costs. Catchwords: CIVIL PROCEDURE – notice of motion to set aside judgment of Court of Appeal for fraud – whether there was new evidence on the basis of which judgment should be set aside Legislation Cited: Ashfield Local Environmental Plan 1985 Environmental Planning and Assessment Act 1979 (NSW), s 143 Evidence Act 1995 (NSW), ss 56, 143, 144 Cases Cited: McGinn v Ashfield Council [2011] NSWLEC 105 McGinn v Ashfield Council [2011] NSWLEC 84 McGinn v Ashfield Council [2012] NSWCA 238 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Category: Principal judgment Parties: Sophia McGinn (Applicant) Inner West Council (Respondent) Representation: Counsel: In person (Applicant) J Strati (Solicitor) (Respondent) Solicitors: In person (Applicant) Inner West Council (Respondent) File Number(s): 2011/239285 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: In 2011, the applicant, Ms Sophia McGinn, brought proceedings in the Land and Environment Court, challenging the validity of a development consent granted to the owner of a property adjoining her residence for the construction of an additional detached house at the rear of the existing house on the property. The application was dismissed by Biscoe J: see McGinn v Ashfield Council [2011] NSWLEC 84 and McGinn v Ashfield Council [2011] NSWLEC 105. On 6 August 2012, this Court dismissed Ms McGinn's appeal from the orders of Biscoe J: McGinn v Ashfield Council [2012] NSWCA 238. 2. By notice of motion filed on 28 November 2017, Ms McGinn sought an order that the judgment of this Court be set aside "on the ground that the judgment was fraudulently obtained" and that a new trial be ordered. The basis upon which Ms McGinn sought to set aside the judgment of this Court was that there was new evidence, namely, a s 149 planning certificate for the adjoining property, which stated that "dual occupancies (detached) development are prohibited". 3. In support of her notice of motion, Ms McGinn swore an affidavit on 2 November 2017, in which she deposed to the following matters: 1. That on 23 November 2010, development consent was granted to the owner of the adjoining property for a detached dual occupancy (affidavit (3)); 2. That construction of the detached dual occupancy began in 2011 (affidavit (4)); 3. That Ms McGinn moved out of her property in 2012 when this Court dismissed her appeal (affidavit (5)); 4. That on 27 September 2017, Ms McGinn noticed that the s 149 certificate for her property stated that detached dual occupancies were prohibited (affidavit (7)); 5. That Ms McGinn then ordered a s 149 certificate for the adjoining property, which also stated that detached dual occupancies were prohibited (affidavit (8)); 6. That thereafter, on 12 October 2017, Ms McGinn emailed the respondent referring to the discovery of the "new evidence" in the s 149 certificate for the adjoining property and proposed consent orders to resolve the dispute (affidavit (9)); 7. That the solicitor for the respondent responded, admitting the prohibition, but rejecting the "new evidence", stating that the consent had been granted seven years earlier (affidavit (10)); and 8. That Ms McGinn replied that there had been no amendments to the dual occupancy provisions since 2010, such that the "same prohibition applies in 2010". Ms McGinn stated that the solicitor did not reply (affidavit (11)). 1. Ms McGinn concluded her affidavit in para (12), stating: "Accordingly, the judgment at LEC and Court of Appeal was fraudulently obtained, an order of new trial is warranted …" She sought relief in accordance with the orders sought in the notice of motion. 1. Ms McGinn attached to her affidavit, as attachment 1, a copy of the s 149 planning certificate for the adjoining property. That certificate specified, in cl 4, that "Dual occupancies (detached)" were prohibited. 2. On 20 December 2017, Ms Jill Blunden, an employed solicitor of the respondent, filed an affidavit in which she annexed, relevantly, "a true copy of Ashfield Local Environmental Plan 1985 (NSW) as in force on 23 November 2010". In the downloaded version of that document, which was annexure C to her affidavit, the status information provides that the version attached is the "[h]istorical version for 15 December 2008 to 30 September 2011" and that it had been accessed on 20 December 2017. 3. Clause 13 of the Ashfield Local Environmental Plan 1985 provided, relevantly, as follows: "(1) Subject to subclauses (2) and (3), a person may, with the consent of the Council, within Zone No 2(a), 2(b) or 2(c): … (d) erect a second dwelling-house in addition to one already erected on an allotment … … if, but only if, not more than 2 dwellings will be on the allotment as a result of the development being carried out." 1. Ms Blunden also annexed to her affidavit a document entitled: "New South Wales Government Official notification of the making of statutory instruments and other legislative events" 1. The notification is stated to be for the week beginning 23 December 2013. Under the heading "Environmental Planning Instruments" is the entry "Ashfield Local Environmental Plan 2013 (2013-753) – published LW 23 December 2013". 2. Ms McGinn, in her written submissions, submitted that Ms Blunden's affidavit was not admissible, as the "statements of true copies", by which we understand Ms McGinn to refer to the documents annexed to Ms Blunden's affidavit, are irrelevant to the orders sought. She submitted that pursuant to the Evidence Act 1995 (NSW), s 56(2), evidence that is not relevant is not admissible. It followed, according to Ms McGinn's written submissions, that that left her "in the position to obtain a default judgment". Ms McGinn further submitted that as the affidavit was made by the respondent's solicitor, it constituted an admission that the respondent had no valid defence in opposition to the orders that she sought. 3. We reject Ms McGinn's submission to which we have just referred. The Evidence Act, ss 143-144 provide, relevantly, as follows: "143 Matters of law (1) Proof is not required about the provisions and coming into operation (in whole or in part) of: (a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory, or … (d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called). (2) A judge may inform himself or herself about those matters in any way that the judge thinks fit. … 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: … (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit …" 1. A local environmental plan is made under the Environmental Planning and Assessment Act 1979 (NSW), Pt 3, Div 3.4 and is an instrument of a legislative character made under an Act. Accordingly, proof of the Ashfield Local Environmental Plan 1985 was not required. Ms Blunden's affidavit was a convenient manner for the material to be placed before the Court: see the Evidence Act, s 143(2). Likewise, annexure D to Ms Blunden's affidavit, being the New South Wales Government official notification of the making of statutory instruments and other legislative events, was admissible as an official notification of the making of the Ashfield Local Environmental Plan 2013. 2. This material establishes that under the Ashfield Local Environmental Plan 1985, detached dual occupancies were permitted with the consent of the Council. It also establishes that a new Ashfield Local Environmental Plan was made and published on 23 December 2013. That a new plan was made on that date also appears from the s 149 certificate upon which Ms McGinn relied. That certificate, under the heading "Section 149(2) details", states that: "In accordance with section 149(2) of the Environmental Planning and Assessment Act 1979, at the date of this certificate the following information is provided in respect of the prescribed matters to be included in a planning certificate. 1 RELEVANT ENVIRONMENTAL PLANNING INSTRUMENTS (a) The following environmental planning instrument applies to the land: Ashfield Local Environmental Plan 2013 Effective Date: 23 December 2013" (emphasis added) As already indicated, cl 4 of the certificate specified that detached dual occupancies were prohibited. 1. It will be immediately apparent that the s 149 certificate upon which Ms McGinn relied is in respect of a local environmental plan which was introduced in December 2013, more than three years after the grant of the development consent, more than two years after the decisions of the Land and Environment Court and more than one year after the decision in this Court. Accordingly, the basis upon which Ms McGinn sought to challenge the decision of this Court was misconceived. 2. Whilst dual occupancies are prohibited under the Ashfield Local Environmental Plan 2013, that instrument was not in force at the time the development consent challenged by Ms McGinn was granted. Rather, the planning instrument under which the development consent was granted was the Ashfield Local Environmental Plan 1985. As we have said, detached dual occupancies were permitted under that plan with consent. 3. Strictly, that is enough to dismiss Ms McGinn's notice of motion. However, it is appropriate to make the following observations. 4. The principles governing an application to set aside a judgment for fraud are well established: see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, especially at 538-539. Of particular relevance to Ms McGinn's application is that fraud must be established by strict proof on the basis of new material. As the Court emphasised in Wentworth v Rogers (No 5), there is a public interest in the finality of litigation. It is for that reason that strict proof of fraud is required. 5. Although Ms McGinn sought to rely upon the s 149 certificate that she had obtained in September 2017 as new evidence, her application to set aside the judgment for fraud was based upon a misconception. As we have explained, subsequent to the grant of the development consent that was the subject of the judgment Ms McGinn seeks to have set aside, a new local environmental plan has been made. This is apparent on the face of the s 149 certificate upon which Ms McGinn relied. 6. It is also appropriate to observe that an application to set aside a judgment for fraud should be made in a separate proceeding: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 693, 696-697, 701. Ms McGinn's failure to bring fresh proceedings may not of itself have been fatal to her application, as the Court may have been able to make directions to permit such proceedings to be brought and litigated in the usual course. This would have required the matter to be referred to the Common Law Division to be heard and determined on evidence. Having said that, the Court would not have made any such direction in this case, for the reasons we have given, as there was no factual basis whatsoever to establish fraud or any other form of irregularity. 7. It should also be noted that Ms McGinn's application suffered from a further difficulty in that, even had she been successful in having the orders made as sought in her notice of motion, the judgments of Biscoe J in the Land and Environment Court would have remained in force. 8. Before concluding, we note that at the commencement of the hearing of the notice of motion, Ms McGinn made applications that Beazley P and Simpson AJA recuse themselves on the ground of apprehended bias. Those applications were rejected. After an adjournment, Ms McGinn made a further application, particularly directed to Beazley P, that she recuse herself for apprehended bias. That application was also refused. The transcripts of the reasons for refusing the disqualification applications have been placed on the Court file. Order 1. The notice of motion is dismissed with costs. ********** 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: 01 May 2018