Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Northey v Bega Valley Shire Council [2012] NSWCA 28
• Hearing dates: 20 February 2012
• Decision date: 06 March 2012
• Before: Barrett JA

Decision

Ms Northey's notice of motion filed on 12 December 2011 is dismissed with costs.

[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.]

• Catchwords: PROCEDURE - application for order setting aside order of dismissal for want of prosecution - whether order of dismissal made "irregularly" because of non-observance of rule 18.3 - order made in absence of party - whether any factor making it unjust that the order should stand - application dismissed
• Legislation Cited: Interpretation Act 1987, s 76(1)(b); Uniform Civil Procedure Rules 2005, rules 1.11, 12.7, 18.4, 36.15(1), 36.16(2)(b)
• Cases Cited: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755; Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131; Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404; Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239; Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380
• Category: Interlocutory applications
• Parties: Janice Louise Northey - Applicant; Bega Valley Shire Council - Respondent
• Representation: Mr C J M Palmer - Applicant; Mr E G Petersen - Respondent; Hassett Dixon - Applicant; Andrew Warren Associates - Respondent
• File Number(s): 2008/00281995

Judgment

1 This is an application by Janice Northey for an order setting aside an order made by Tobias JA on 21 March 2011 dismissing with costs an appeal initiated by her by notice of appeal filed on 28 July 2010. The appeal was dismissed under rule 12.7 of the Uniform Civil Procedure Rules 2005 for want of prosecution with due dispatch. It related to an order of Brereton J in the Equity Division dismissing with costs an application by Ms Northey for a permanent injunction restraining Bega Valley Council from demolishing a particular fence.

2 The present application is advanced under rule 36.15(1) and rule 36.16(2)(b) of the Uniform Civil Procedure Rules , it being Ms Northey's contention that one of those rules justifies the order she seeks.

3 Those rules are as follows:

Rule 36.15(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."

Rule 36.16(2)(b):

" The court may set aside or vary a judgment or order after it has been entered if:

...

(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."

4 The case sought to be made under rule 36.15(1) is based on the proposition that the Council's notice of motion on which the order of 21 March 2011 was made was served on a day that caused the requirement as to minimum time between service and the return date not to be observed. This, it is said, means that the order was made "irregularly" and is therefore susceptible to being set aside.

5 Rule 18.4 says that, unless the court otherwise orders, a notice of motion "must be served at least 3 days before the date fixed for the motion". In this case, the return date (or "date fixed for the motion") was 21 March 2011. There was no order displacing or modifying rule 18.4. In relation to the counting of days, counsel referred to rule 1.11:

"(1) Any period of time fixed by these rules, or by any judgment or order of the court or by any document in any proceedings, is to be reckoned in accordance with this rule.

(2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted.

(3) If, apart from this subrule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the registry is closed, that day is to be excluded.

(4) If the last day for doing a thing is, or a thing is to be done on, a day on which the registry is closed, the thing may be done on the next day on which the registry is open.

(5) Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not apply to these rules."

6 The "given day", for the purposes of rule 1.11(2) was the return day (or "date fixed for the motion") being 21 March 2011. That day was not to be counted. Since the relevant period is of three days, rule 1.11(3) applied to require the exclusion of days on which the registry was closed. Accordingly (and leaving out of account the return date itself):

the day that was one day before the return date of Monday 21 March was Friday 18 March;

the day that was two days before the return date of Monday 21 March was Thursday 17 March; and

the day that was three days before the return date of Monday 21 March was Wednesday 16 March.

7 The latest day that was "at least" three days before the return date of 21 March 2011 was therefore Wednesday 16 March 2011. Service on 16 March 2011 (or any earlier day) would thus have satisfied the rules.

8 Ms Northey gave evidence that she received the notice of motion "on or about 16 March 2011". There is evidence from an employee of the Council's solicitors that the notice of motion and supporting affidavit were posted to Ms Northey on 10 March 2011. She had no solicitor on the record and the documents were posted to her address as shown in the notice of appeal which she had filed herself. Posting was, under rule 10.5, an available method of service. The time of service, in such a case, is fixed by s 76(1)(b) of the Interpretation Act 1987 and, in the absence of evidence sufficient to raise doubt to the contrary, is taken to be the fourth "working day" after posting (a "working day" being a day other than a Saturday, Sunday, bank holiday or public holiday).

9 It follows that posting on Thursday 10 March 2011 resulted in service on Wednesday 16 March 2011, assuming there is no evidence sufficient to raise doubt.

10 Ms Northey's evidence does not raise doubt. It is entirely consistent with service on 16 March 2011. Indeed, as I shall mention presently, there is evidence that she had the documents on 16 March 2011 and that she received them, at the latest, on that day. I proceed on the basis, therefore, that the date of service was 16 March 2011.

11 Because service on 16 March 2011 was consistent with rule 18.4, no "irregularity" attended the obtaining of the order and the case based on rule 36.15(1) fails.

12 I turn, therefore, to rule 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called "an elementary rule of justice".

13 It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand.

14 In arguing that a court should set aside an order that was regularly made, an applicant under rule 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3:

"It may be assumed, without deciding, that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard."

15 This passage enjoins "great caution" in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard.

16 The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4:

"The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere."

17 Examples of cases in which such a factor indicative of injustice has been found to be at work are:

(a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131;

(b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that "nothing would happen" while negotiations continued: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755;

(c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and

(d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404.

18 Although she had initiated the appeal without the intervention of a solicitor, Ms Northey apparently had contact with both Etienne Lawyers, a firm of solicitors, and Mr David Raphael of counsel in the months before 21 March 2011. On 27 October 2010, on the eve of an occasion on which the appeal was to be before the court, Mr Brown of Etienne Lawyers informed the Council's solicitor, Mr Warren, by email that his firm had been contacted by Ms Northey but had not taken her on as a client as she had said that she was impecunious and could only proceed with her appeal if granted legal aid. However, Mr Brown said that his firm was prepared to appear the next day "as an assistance to the court" and to "advise the court of what is happening with her legal aid application if we could be informed of what the current status is". Mr Raphael of counsel appeared at the directions hearing on 28 October 2010.

19 The matter was before the court again on 2 December 2010 and 10 February 2011. Mr Raphael appeared on each occasion.

20 On 16 January 2011, Mr Brown wrote to Mr Warren saying that Legal Aid had "replied" (although he did not say what Legal Aid had said in their reply) and that counsel had agreed to provide an opinion and would do so by 31 January 2011.

21 The matter was listed on 9 March 2011. There was no appearance by or for Ms Northey and the registrar wrote to her (care of Etienne Lawyers at an address in Castlereagh Street) informing her that the next fixture was on 21 March 2011 at 9am, also that if there was no appearance then the court might dismiss the proceedings. Ms Northey says that Etienne Lawyers' address at that time was in Martin Place and that she did not receive the letter.

22 On 16 March 2011, Ms Scaron of Etienne Lawyers emailed Mr Warren, the Council's solicitor, saying that that firm had just received a grant of legal aid to assist Ms Northey in relation to her appeal and that Ms Northey had provided them with a copy of the notice of motion (this is the evidence to which I have referred that shows that Ms Northey received the document, at the latest, on 16 March 2011). Ms Scaron then referred to steps that had been taken towards preparing appeal books and sought consent to dismissal of the notice of motion. That request was denied by the Council's solicitor by email on the same day.

23 Ms Northey has put into evidence a letter from Legal Aid dated 10 March 2011 authorising the commissioning of advice on whether she had prospects of success in her appeal as a preliminary to consideration of a grant of legal aid (legal aid was ultimately refused on 30 June 2011). It was submitted that Ms Scaron's email proceeded upon a misapprehension.

24 Ms Northey gives evidence of having spoken to Mr Brown of Etienne Lawyers after the order of dismissal was made on 21 March 2011. She says that he told her that he thought Mr Raphael was going to appear for her pro bono because her application for legal aid was still pending. Ms Northey spoke to Mr Raphael's secretary who said that they had tried to contact her many times but could not get hold of her to obtain instructions.

25 The true position on 16 March 2011 and up to the hearing on 21 March 2011 was that Ms Northey had received only a limited grant of legal aid and that Etienne Lawyers had been authorised only to advise on prospects in the appeal. Ms Northey says she thought at the time that Mr Brown of Etienne Lawyers (or Mr Raphael, at his request) would appear on the hearing of the motion - an assumption or expectation quite at odds with the limited nature of the task that Mr Brown's firm had been funded to perform but consistent, no doubt, with the fact that Etienne Lawyers and Mr Raphael had both assisted her in the past.

26 Ms Northey says that she could not attend court in person on 21 March 2011 because she was stranded on her property by floods that affected the Bega district for several days from 19 March 2011. She says that she had no telephone service at her home from 19 March 2011. However, she had not attended court herself since 2 August 2010 and, on the three later occasions already mentioned (all before 21 March 2011), she was represented by Mr Raphael.

27 Counsel for Ms Northey submitted that there is evidence from which the court ought infer that a third party hostile to her communicated with Legal Aid and interfered with her application for aid. The evidence consists of an email chain sent by "al wonder" to Legal Aid purporting to be from the "Tantawanglo Concerned Group" and providing information suggesting that Ms Northey had assets of a value that would disentitle her to legal aid. There is a stamp on an email of 29 March 2011 indicating receipt by "Director Gants" on 31 March 2011. But there is no evidence that Legal Aid took any notice of the content of the email - and it would be surprising if such a public authority put any weight at all on anonymous and unsupported assertions.

28 Ms Northey has also put into evidence documents suggesting that a neighbour with whom she has been in dispute made representations to the Council which were harmful to her case.

29 Against the background of this evidence, I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the perfected order to stand.

30 The allegations concerning representations by supposedly hostile parties to Legal Aid and the Council do not point to any such factor. It is not shown that either recipient of the representations acted upon them - added to which, the matters do not appear to have any relevance to the circumstances surrounding the making of the 21 March 2011 order.

31 That leaves the circumstances concerning Etienne Lawyers and Mr Raphael.

32 Mr Raphael had appeared for Ms Northey on several occasions. The basis of his retainer is not disclosed by the evidence. Etienne Lawyers had also assisted her. Again, the precise basis of their retainer does not appear. It seems plain enough, however, that neither the barrister nor the solicitors had any expectation of being paid by Legal Aid since Ms Northey did not have any grant of legal aid until shortly before Ms Scaron's email of 16 March 2011 to Mr Warren - and that involved only limited assistance to explore the prospects of success. Both the solicitors and the barrister must be taken to have acted pro bono on an ad hoc basis on isolated occasions without any continuing retainer, without any expectation of being paid by Ms Northey and probably without any ongoing duty to protect Ms Northey's interests.

33 As at 21 March 2011, any expectation that Ms Northey had of being represented in court by Etienne Lawyers or Mr Raphael depended on their being willing to act again on this pro bono and ad hoc basis and, importantly, on her asking them to attend. Ms Northey does not say in her evidence that she requested or instructed either Etienne Lawyers or Mr Raphael to attend on 21 March 2011. Nor does Ms Scaron's email of 16 March 2011 contain any suggestion that Etienne Lawyers would be appearing on 21 March 2011 or instructing Mr Raphael to do so. Ms Northey refers to an expectation that they would do so but the basis for the expectation is not explained.

34 Ms Northey knew from at least Wednesday16 March 2011 that the Council's motion would be before the court on 21 March 2011. She became floodbound, she says, on Saturday 19 March 2011. She gives no evidence of any step taken by her on Wednesday 16, Thursday 17 or Friday 18 March 2011 to arrange representation at the hearing the following Monday. She refers to no more than an assumption that one of the lawyers who had assisted her in the past, apparently without payment, would do so again. Nor does she give any reason why such an assumption could or should be regarded as well-based.

35 This cannot be viewed as a case in which lawyers instructed by the party concerned failed to protect the party's interests. Rather, it is a case where the party concerned, who had at least three working days to make some arrangement for representation, took no positive step in that direction, being content merely to assume that professional people who had given free assistance in the past would spontaneously do so again.

36 For these reasons, there cannot be seen to be any factor making it unjust for the order of 21 March 2011 to stand in favour of the party upon whose application it was made.

37 There are two matters that firmly consolidate the conclusion that the discretion to set the order of 21 March 2011 aside should not be exercised.

38 First, Ms Northey's notice of motion was filed on 12 December 2011, that is, more than eight months after the making of the order of 21 March 2011 and Ms Northey's becoming aware of it. The strength of any claim a party may have to have a perfected order set aside necessarily diminishes with the passage of time. This is a very important aspect of the great value attached to certainty in the outcome of litigation. It is one thing for a party who feels aggrieved to apply within a few days or perhaps a few weeks after learning of an order made in the party's absence. A party who does not apply for eight months must, of necessity, present a very much more compelling case to disturb the finality of the order in question. Ms Northey says she could not afford to act earlier, but that of itself cannot overcome the effect of what is, in reality, a very substantial delay.

39 The second matter tending strongly against exercise of the discretion is that the fence in question (that is, the fence that Ms Northey sought to have the Council enjoined from demolishing) was in fact demolished in July 2011, some four months after Mrs Northey's appeal was dismissed for want of prosecution. The substantive issue in the appeal has therefore disappeared, leaving only a challenge by Ms Northey to the costs order made against her in the Equity Division. There could be no suggestion on appeal that the costs order was not the logical and proper consequence of the outcome at first instance. Reinstatement of the appeal would mean that the merits of what has become a hypothetical dispute on the substantive issue of removal of the now demolished fence had to be decided solely for the purpose of determining whether the costs order should stand. This is inconsistent with the general principle that cases which have become moot generally should not be argued and determined merely to decide questions of costs.

40 Ms Northey's notice of motion filed on 12 December 2011 is dismissed with costs.

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Decision last updated: 06 March 2012