Land and Environment Court New South Wales

• Medium Neutral Citation: Kennedy v Stockland Developments Pty Limited (No 3) [2011] NSWLEC 249
• Hearing dates: 15, 16 and 22 December 2011
• Decision date: 22 December 2011
• Jurisdiction: Class 4
• Before: Pepper J

Decision

(1) Mr Kennedy's notice of motion filed on 24 November 2011 is dismissed;

(2) Mr Roy "Dootch" Kennedy is to pay Stockland's costs of the motion; and

(3) the exhibits are to be returned.

• Catchwords: PROCEDURE: the power of the Court to set aside or vary a judgment before orders have been entered - misapprehension as to the law - judgment varied; INJUNCTIONS: whether an injunction granted on a previous occasion should be discharged - whether the terms of the injunction were too wide - whether the circumstances had materially changed since the injunction was granted - whether the issuing of the injunction impermissibly infringed a common law right of free speech or a common law right to protest - whether onus was on the respondent to demonstrate to the Court that the injunction should be maintained - injunction maintained; COSTS: whether a costs order made and entered in the absence of the applicant should be set aside - costs order maintained - whether the proceedings were brought in the public interest - proceedings not brought in the public interest and costs follow the event
• Legislation Cited: Civil Procedure Act 2005 s 56; Environmental Planning and Assessment Act 1979 Pt 3A; Judiciary Act 1903 (Cth) s 78B; Land and Environment Court Rules 2007 rr 4.2(1), 7.6; Uniform Civil Procedure Rules 2005 r 36.16
• Cases Cited: Akari v Sole [2008] NSWSC 59; Australian Competition and Consumer Commissioner v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280; Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304; Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291; Commissioner of Police v Rintoul [2003] NSWSC 662; D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1; De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207; Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424; Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462; Diver v Neal [2009] NSWCA 115; DJL v Central Authority [2007] HCA 17; (2000) 201 CLR 226; Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576; Fokas v Kogarah Council [2008] NSWCA 145; Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170; Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291; Hearse v Pallister [2009] NSWSC 406; Jeray v Blue Mountains City Council [2011] NSWLEC 228; Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186; Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185; Martin v New South Wales Minister for Mineral and Forest Resources [2011] NSWLEC 38; McGinn v Ashfield Council [2011] NSWLEC 105; Mirembe Pty Ltd v Craig Dangar [2010] NSWSC 637; New Cap Reinsurance Corporation Ltd v AE Grant [2009] NSWSC 950; Nominal Defendant v Livaja [2011] NSWCA 121; Olofsson v Minister for Primary Industries [2011] NSWLEC 137; Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730; Smith v NSW Bar Association (1992) 176 CLR 256; Snowy River Alliance Inc v Water Administration Ministerial Corp (No 2) [2011] NSWSC 1132; State Rail Authority v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51; (1982) 150 CLR 29; Statewide Secured Investments Ltd v Hawkins [2011] NSWSC 144; Talbot-Price v Jacobs [2008] NSWCA 189; Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463; Wentworth v Woollahra Municipal Council No 2 [1982] HCA 41; (1982) 149 CLR 672; Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056Akari v Sole [2008] NSWSC 59
• Category: Interlocutory applications
• Parties: Roy "Dootch" Kennedy (Applicant); Stockland Development Pty Ltd (Respondent)
• Representation: Mr D Joyce (Applicant); Dr J Griffiths (Respondent); Environmental Defenders Office (Applicant); Herbert Geer (Respondent)
• File Number(s): 40977 of 2011

Judgment

Mr Kennedy Seeks the Dissolution of an Injunction

1 Before the Court was a notice of motion filed 24 November 2011 seeking that an ex parte injunction granted by Sheahan J on 31 October 2011 be dissolved and that a consequential order for costs made by his Honour on that day be set aside. The motion was one of several heard on the penultimate day of the 2011 law term in my capacity as duty judge.

2 The decision dismissing the motion and ordering that the applicant, Mr Roy "Dootch" Kennedy, pay the respondent's, Stockland Developments Pty Ltd ("Stockland"), costs of the motion, was made on 15 December 2011, with the Court indicating that more detailed reasons would follow on 16 December 2011.

The Court Varies the Reasons for its Earlier Judgment

3 On 16 December 2011, at 9am the Court delivered an ex tempore judgment, the substance of which is identical to these revised reasons save for one aspect. In these revised reasons, the Court has now, upon considered reflection and the discovery of case law that was not referred to me by either party during the hearing of the motion, come to a different conclusion to that expressed orally on 16 December 2011, as to the application of r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 ("UCPR"). Strictly speaking, this change in reasoning does not, in my view, affect the substance of the oral judgment delivered in so far as the Court's reasoning in respect of r 36.16(2)(b) did not constitute the primary reason for declining to set aside the orders made by Sheahan J on 31 October 2011, and moreover, the orders of the Court made earlier (which have not yet been entered: see r 7.6 of the Land and Environment Court Rules 2007 ("the LEC Rules")) remain unaltered.

4 In a civil trial the appropriate test for determining whether an alteration to an ex tempore judgment is permissible is whether the change is one of substance in fact (Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at [46] applied in Talbot-Price v Jacobs [2008] NSWCA 189 at [11]). For the reasons given above I do not consider that the change is one of substance in fact.

5 Alternatively, because the orders have not yet been entered, the Court has an inherent jurisdiction to set aside or vary the judgment (State Rail Authority v Codelfa Construction Pty Ltd (No 2) [1982] HCA 51; (1982) 150 CLR 29 at 38 and 45, Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302-303, Smith v NSW Bar Association (1992) 176 CLR 256 at 265, De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215, New Cap Reinsurance Corporation Ltd v AE Grant [2009] NSWSC 950 at [20] per Barrett J and Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304 at [28]-[33] per Ward J). The exercise of the jurisdiction is enlivened when "the Court has apparently proceeded according to some misapprehension of the facts or the relevant law" ( Autodesk at 303), where "there is some matter calling for review" (De L at 215 quoting Smith at 265) or "where the interests of justice so require" (Autodesk at 322).

6 The exercise is exceptional because it impinges upon the principle of finality of litigation, a principle that reinforces the respect that must be shown to orders that are final on their face ( Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; (1982) 149 CLR 672 at 684, De L at 215, Diver v Neal [2009] NSWCA 115 at [5] citing Codelfa at 38 and Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 at [27]-[32] per Basten JA).

7 But against this principle is balanced a recognition by the Court "that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice" (De L at 215). As Barrett J succinctly stated in New Cap Reinsurance (at [20]):

20 It seems to me that these principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513:

"I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps - but not necessarily - where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga's application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits."

8 A similar sentiment was recently expressed by Basten JA in Nominal Defendant v Livaja [2011] NSWCA 121 (at [23]):

23 Further, it is helpful to distinguish between a case such as Autodesk , where the High Court believed it had delivered a final judgment, a case such as Brooker v Friend (No 2) [2008] NSWCA 129, where this Court delivered its reasons, with proposed final orders, but sought submissions in respect of the appropriate form of the orders, and a case such as the present, where a trial judge, without the benefit of transcript, is delivering an oral judgment from handwritten notes. It is also desirable to distinguish between cases where, perhaps because of the delivery of formal written reasons, the application to vary the judgment is delayed, as compared with the present case, where it was made immediately the calculation had been expressed. The reason why such distinctions are important is that the public interest in the finality of litigation carries far less weight in some circumstances than in others. Where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged.

9 To leave unmodified the reasons for judgment previously delivered would, in my opinion, work a potential injustice for both parties, but particularly for Mr Kennedy, against whom the Court has made a finding of law premised on a misapprehension as to the application of r 36.16(2) of the UCPR. It is for these reasons that it is appropriate to vary the judgment.

Ex Parte Proceedings Before Sheahan J

10 It is necessary to briefly recite the history of the proceedings before Sheahan J giving rise to the application. Some of this background may be found in two earlier decisions of this Court in relation to the proceedings, namely, Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185 per Biscoe J and Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186 per Sheahan J.

11 The underlying substantive Class 4 proceeding to which this application relates is one of a number of judicial review proceedings brought by Mr Kennedy against Stockland, the developer of land at Sandon Point, a large coastal plain north of Wollongong.

12 Mr Kennedy is an Aboriginal person of the Yuni Nation with traditional links to the land and is the founder of the Sandon Point Aboriginal Tent Embassy.

13 Stockland is a corporation that has the benefit of an approved modified concept plan and development consent pursuant to the now repealed Pt 3A of the Environmental Planning and Assessment Act 1979 for the construction of 181 lot subdivision with ancillary works and a boundary readjustment.

14 Mr Kennedy claims that Stockland has breached its development consent by undertaking works not authorised by the consent for the purposes of clearing and constructing a shared road way and related infrastructure on land described as "Wilkies Walk". He also alleges that Stockland is carrying out construction of a road on the development site without consent and that Stockland has breached the National Parks and Wildlife Act 1974 by damaging or destroying objects of Indigenous cultural heritage and destroying a potential archaeological deposit.

15 The summons in the proceedings was filed on 27 October 2011, seeking declaratory and injunctive relief, the latter of which on both a final and interim basis.

16 The interlocutory application came initially before Biscoe J on 28 October 2011. His Honour referred the application to Sheahan J because Sheahan J was reserved in another Class 4 proceeding concerning the same parties and the same development in the same location (40880 of 2011).

17 Justice Sheahan heard the application for interim injunctive relief on 28 October 2011 and refused to grant the injunction sought.

18 On the morning of 31 October 2011, on the basis of affidavit evidence given by Mr Michael Braithwaite, the development manager of Stockland, regarding events at and on the development site on 29 and 31 October 2011 ("the protests"), Sheahan J made orders on an ex parte basis restraining unauthorised members of the public entering upon any part of the land specified in the orders. Justice Sheahan also ordered Mr Kennedy to pay Stockland's costs of the motion. No judgment was published in respect of the orders made.

19 The orders were as follows:

1. This motion is returnable instanter and is to be heard on an ex parte basis.

2. Until further order and subject to Order 3, all members of the public are restrained from entering upon any of the parts of the land within Lot 105 DP 1156609 (Lot 2 DP 595487), Lot 1 DP 1024490, Lot 1 DP 204631, Lot 22 DP 835200, Lot 101 DP 268549 and Lot 1 and Lot 2 DP 224431 which is located to the north of the temporary fence that has been positioned by the respondent on Lot 1 and Lot 2 DP 224431.

3. Order 2 of the Court does not apply to the following persons:

(a) Persons authorised or permitted by the respondent to enter the subject land;

(b) Law enforcement officers, including the members of the NSW police force;

(c) Persons authorised to enter the land under an Act of Parliament.

4. These orders be entered forthwith.

5. The applicant pay the respondent's costs of this motion.

6. A copy of the Notice of Motion, and the affidavit of Michael Braithwaite affirmed on 31 October 2011 are to be served on the applicant or his agent forthwith.

7. These proceedings are again adjourned to 10am on Tuesday 1 November 2011.

20 The orders were entered on the 31 October 2011

21 On 1 November 2011, Mr Alan Oshlack, appearing as agent for Mr Kennedy, filed a notice of motion, to be heard instanter, seeking orders to join Anglican Retirement Villages to the proceedings and, relevantly, an "order setting aside the expartie [sic] orders of 31 October 2011".

22 Mr Oshlack relied on an affidavit sworn by himself on 1 November 2011, in which he responded to some of Mr Braithwaite's evidence, in particular, to allegations in respect of Mr Oshlack's involvement in the protests. Mr Oshlack asserted in that affidavit that the protests were "peaceful and within the law".

23 In relation to the application to set aside the ex parte injunctive relief granted on 31 October 2011, Sheahan J held the following (at [16]-[17]):

16 In the absence of any additional evidence having been presented to the court, and in the absence of the joinder of ARV, there is no basis upon which the court should revisit the decision to refuse an interim injunction last Friday.

17 Nor do Mr Oshlack's affidavit or comments from the bar table invalidate the concerns I expressed justifying the orders I made yesterday about public intervention in the construction work.

24 His Honour therefore dismissed the notice of motion and ordered Mr Kennedy to pay the Anglican Retirement Villages' costs of the joinder motion and ordered that, "the orders made on 31 October 2011 are to stand until further order."

Evidence of Mr Kennedy

25 In support of his present application to dissolve the interim injunction and cost order made by Sheahan J on 31 October 2011, Mr Kennedy relied on an affidavit of Mr Oshlack, affirmed 21 November 2011. This was the only affidavit read in support of the motion. In that affidavit Mr Oshlack deposed that he was at the site the subject of the proceedings on 31 October 2011. The affidavit deposed to an attempt by Mr Oshlack to appear, via Mr Nick Eastman (a barrister), at the hearing of the ex parte notice of motion. It appears that by the time Mr Kennedy was able to secure representation, the orders had already been made by Sheahan J.

26 Significantly, the affidavit deposed that when the notice of motion came before Sheahan J on 1 November 2011, while Mr Oshlack was permitted to make submissions to Sheahan J in relation to the joinder issue, he was not given an opportunity to make submissions in support of his application to set aside the orders made on 31 October 2011.

27 The affidavit further stated that Mr Kennedy is a person of extremely limited means who cannot afford to pay the costs ordered by the Court on 31 October 2011.

28 The affidavit deposed that there are "significant public interest cultural issues at the heart of these proceedings" and that the land known as "Wilkies Walk" has never been abandoned by Aboriginal Traditional Owners. Moreover, the land is in constant use by Mr Kennedy, by members of the Aboriginal Tent Embassy and by other local Aboriginal Traditional Owners, on a continuous basis for the purpose of assessing cultural heritage sites within, and adjacent to, the nearby Turpentine Forest.

29 Finally, Mr Oshlack described generally the Indigenous cultural significance of the land sought to be developed by Stockland.

30 Mr Oshlack was cross-examined on the contents of his affidavit. The cross-examination revealed that Mr Oshlack had appeared in "500 to 600" matters in this Court and was extremely familiar with its practice and procedure. This was so notwithstanding that he has no legal qualifications.

31 During cross-examination Mr Oshlack repeated the evidence that on 1 November 2011 he was not given the opportunity to be heard in relation to the setting aside of the orders made on 31 October 2011. He conceded, however, that at no point either prior to, or after, Sheahan J had delivered his ex tempore judgment did he raise with his Honour the fact that he had not been given an opportunity to address the Court in respect of the setting aside of the orders made on 31 October 2011.

The Evidence of Stockland

32 Stockland relied on an affidavit of Mr Braithwaite, together with exhibited documents. Mr Braithwaite gave a history of the underlying substantive proceedings and of the approval granted for the development.

33 Mr Braithwaite deposed that part of the Major Project Approval granted to Stockland requires that the development be carried out in several stages, stages 3 and 4 of which include the construction of a shared road along the boundary of land owned by Stockland and the land owned by the Anglican Retirement Villages. The road is to be constructed on an unformed pedestrian access path that runs along the boundary of the two lands pathways known as "Wilkies Walk". Once constructed, the shared road will provide for formal pedestrian access to McCauleys Beach from Sturdee Ave and will be called "Wilkies Walk Road". Accordingly, Wilkies Walk Road will be established over the Wilkies Walk pathway.

34 On 8 September 2010, Stockland obtained a construction certificate from a private certifier to carry out bulk earthworks for, amongst other things, the construction of Wilkies Walk Road.

35 On 28 October 2011, Stockland started carrying out earthworks on Wilkies Walk pathway.

36 Mr Braithwaite stated that for construction and safety purposes Stockland has temporarily closed Wilkies Walk until the construction of Wilkies Walk Road has finished and is safe for pedestrian use. This is consistent with what was proposed by Stockland in its Construction and Traffic Management Plan.

37 Notwithstanding that the Major Project Approval does not require Stockland to provide an alternative temporary pathway to McCauleys Beach from Sturdee Ave, Stockland has nevertheless taken steps to establish such a pathway for general public use.

38 Wollongong City Council ("the council") granted Stockland approval to construct the temporary pathway on 17 October 2011.

39 Stockland has erected temporary cyclone fencing on either side of the temporary pathway. The temporary pathway is approximately 2.5-3m wide and has been formed using gravel that has been levelled out.

40 Mr Braithwaite gave evidence concerning the works program to be carried out on the development site as authorised by the council. Under this program no construction work will be carried out from 23 December 2011 to 3 January 2012.

41 Mr Braithwaite states that the earthworks to be carried out on Wilkies Walk are the remaining bulk earthworks to be completed as part of the Major Project Approval. The next major stage involves the construction of roads and sewer works. In order to progress the sewer works, however, Stockland must carry out the earthworks on Wilkies Walk so that cut and fill from that area can be placed on parts of its land to ensure an even balance of cut and fill in accordance with the approved plans.

42 Mr Braithwaite deposed that the earthworks on Wilkies Walk Road are scheduled to be completed by mid January 2012, subject to favourable weather and no interruption. The earthworks cannot be delayed, according to Mr Braithwaite, because, as indicated above, the sewer works, which are to be carried out as part of the sequence of construction works, can only be commenced once the earthworks are finalised. It is therefore imperative to Stockland that its contractors be permitted to carry out the bulk earthworks on the development site unimpeded.

43 Mr Braithwaite deposed to the financial costs being incurred by Stockland as a consequence of the development. He stated that if Stockland is delayed in undertaking the earthworks on Wilkies Walk this will cause Stockland to incur financial loss in relation to the existing 25 contracts for sale of residential lots within stages 3 and 4 of the development. Stockland has agreed to an estimated completion date of March 2012 with these purchasers.

44 While Mr Braithwaite was not able to identify precisely the total number of contracts that may be affected by any delay, or the extent of the financial loss that would be incurred by Stockland in the event of such delay, he estimated that the revenue forgone would be "in the millions of dollars for this financial year". Furthermore, Stockland would lose over $15,000 per day if contractors cannot work on the development site. This amount comprises the monies Stockland is contractually bound to pay contractors under existing agreements.

45 Mr Braithwaite stated that as a direct result of the protests that took place on the site on 29 and 31 October 2011, Stockland had incurred approximately $35,000 worth of costs relating to the employment of four additional security guards; the payment of Stockland's contractor, Menia Civil, for the stopped works; and the payment of legal fees incurred as a result of defending Stockland's ability to continue working on the site.

46 Mr Braithwaite also deposed to the existing safety issues requiring the maintenance of the injunction. Legislation requires a perimeter of fencing be erected around construction sites where there are uncontrolled hazards present on the site, which is presently the case. Stockland also enforces strict safety standards on the site. Persons who do not abide by these standards are prohibited from entering the site. These standards, amongst other things, require contractors to stop heavy machinery immediately if any unauthorised persons enter the site. Because the movement of plant equipment on the site creates very significant safety hazards, only authorised persons are permitted to enter the site in areas where the heavy machinery is being used.

47 Mr Braithwaite stated that if the injunction granted by Sheahan J on 31 October 2011 is dissolved, he anticipates, based on past experience with this site, that the part of the site where earth works are currently been undertaken will again be disrupted by unauthorised persons entering the site in protest of the development.

48 Mr Braithwaite was not cross-examined on the contents of his affidavit.

49 Stockland also placed before the Court a New South Wales Police Force COPS report dated 29 October 2011. The Report concerns a "group of people protesting and have chained themselves to the gates". The report states that at about 10.10am police were called to the Stockland development site (described above) to a protest being held by the public with respect to development on the site. When the police arrived, they saw a group of about 10-15 protestors in the area. One male had locked himself to an entry/exit gate with a bicycle lock. Another protestor was sitting on a mound of dirt and refused to leave when asked. The police approached this protestor and informed him that he was to leave the area because he was trespassing. The protestor started to yell, telling the police that the workers were trespassing on his land. The protestor was escorted from the grounds.

50 The police spoke to Mr Oshlack who informed them that he was a representative for the Sandon Point Aboriginal Tent Embassy and that his intentions were to hold a peaceful protest. Initially, an agreement was brokered through Mr Oshlack that the protestors were not to return to the site if work ceased for the day. The site manager proposed to work on a different section of the development site and Mr Oshlack agreed to this proposal. However, while the diggers moved to a different location, another protestor entered the site and locked himself to a digger with a bicycle lock. When the police approached and attempted to remove the protestor, he threw the key into long grass. Ultimately the key was found, the protestor was unlocked and was issued with a 'move on direction' to leave the area, which was complied with.

51 Other police in a separate location removed protestors who had gained entry onto the site and were attempting to stop the diggers from operating. These persons were removed without incident. The site manager was spoken to again and informed police that work would stop for the day. Workers began to leave the site along with protestors.

52 The COPS report went on to state that:

During the incident that started at 10.10am and finished at 12.05pm Saturday 29th October 2011 no work was done resulting in a considerable loss of money for the Stockland Group and for the site managers company.

The Injunction Should Not be Discharged

53 Mr Kennedy seeks the dissolution of the injunction granted by the Court on 31 October 2011 on several bases. First, Mr Kennedy complained about the ex parte nature of the injunction, submitting that he had been denied procedural fairness in the making of the order, particularly in circumstances where there was no real urgency in seeking it by Stockland.

54 It is inherent in the very nature of an ex parte order that the person against whom the order is sought is not afforded an opportunity to be heard in respect of it. This does not render the order irregular and automatically liable to be set aside. In circumstances where the protest appeared to be ongoing, where Stockland was incurring financial loss as a consequence of the protestors entering onto the development site and where those protestors may have been putting their safety at risk, it was, in my view, entirely appropriate that the orders were sought on an ex parte basis, and moreover, that they were sought with haste.

55 In any event, I find that Mr Kennedy was given an opportunity to revisit the orders when the matter came before Sheahan J on 1 November 2011.

56 No transcript of the proceedings before his Honour on that date was placed before me. While I acknowledge Mr Oshlack's evidence that he was not given an opportunity to be heard in respect of the setting aside of the orders made by the Court on 31 October 2011, I do not accept that is in fact what occurred. As Mr Oshlack readily admitted in cross-examination, he is a very experienced participant in proceedings in this Court. In addition, Mr Oshlack is not known for any want of courage. I find it inconceivable that had Mr Oshlack genuinely wanted to be heard on the setting aside of the orders made on 31 October 2011, that he would have not sought an opportunity to do so. In the absence of any transcript before me to indicate a contrary position, I infer that the only reason why Mr Oshlack did not address the Court on the setting aside of those orders on that day was because he elected not to do so. I note that Mr Kennedy has not pursued any appeal rights he might have in respect of the alleged denial of procedural fairness.

57 Second, Mr Kennedy submitted that the terms of the injunction were too wide, preventing, as it does, any unauthorised member of the public from entering onto the relevant parts of the development site the subject of the order. It was submitted by Mr Kennedy that the injunction should have been directed only to Mr Kennedy because he is the person bringing the underlying proceedings.

58 But to limit the scope of the injunction in this way would be to thwart its very purpose, namely, to stop protestors, in addition to Mr Kennedy, from entering onto the development site. Merely because these other protestors are not a party to the summons initiating the proceedings does not preclude them from being included within the ambit of the injunctive relief sought. In any event, the injunction does not prevent, as was suggested, all members of the public from entering onto the site; it merely prevents all "unauthorised" persons from doing so.

59 Third, it was argued by Mr Kennedy that the circumstances have materially changed since the injunction was issued. The change in circumstances relied upon by Mr Kennedy were two-fold: first that the protest, which had been of limited duration, had now ceased; and second, that the significance of the site had now become apparent as evidence by the affidavit evidence of Mr Oshlack.

60 Given Sheahan J's familiarity with the proceedings, and in particular with the development site, I do not accept that the claimed cultural significance of the land in question was not known to the Court at the time the injunctive relief was granted. I also do not accept that a protest that took place over two days was of limited duration. I reject the submission, principally on the basis of the COPS report, that the protest was as "peaceful" as Mr Kennedy sought to characterise it. Moreover, I readily infer that the only reason why the protests ceased was because of the issuing of the injunction and that the only reason why the protests have not resumed is because the injunction currently remains in place.

61 Fourth, Mr Kennedy submitted that there were other more appropriate remedies available to Stockland. These remedies included either the commencement of civil proceedings for trespass or simply to leave it to the police to enforce the applicable law. Both these proposed alternative courses are unsuitable. In the first place, it is not clear to me why Stockland ought to be put to the expense and inconvenience of commencing civil proceedings in the manner suggested when it was entitled to seek the relief it sought. To do so would only spawn satellite litigation and would not be "just, quick and cheap" pursuant to s 56 of the Civil Procedure Act 2005. Secondly, I do not understand how the involvement of the police can be characterised as less "heavy handed", with its potential resultant criminal charges, than the civil relief that Stockland has pursued before the Court.

62 Again, it must be emphasised that to the extent that Mr Kennedy feels an injustice was perpetrated upon him by the ex parte nature of the application before Sheahan J, this was, in effect, cured by the inter partes application before the same judge on 1 November 2011.

63 Fifth, Mr Kennedy emphasised the peaceful nature of the protest and relied on the COPS report to submit that the protestors were not disruptive and had obeyed police demands, and that therefore, the continuation of the injunction was not necessary. But, again as stated above, a fair reading of the COPS report reveals the contrary, in my view.

64 Sixth, Mr Kennedy stated that the issuing of the ex parte injunction impermissibly infringed common law rights of free speech and to protest. Initially, Mr Kennedy had sought to submit that the issuing of the injunction infringed Mr Kennedy's implied freedom of political communication, however, in the absence of any notices issued under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General the Court declined to entertain this argument.

65 Mr Kennedy relied on several cases to demonstrate that a common law right of free speech and a common law right to protest existed in Australia. The first case was Evans v State of New South Wales [2008] FCAFC 130; (2008) 168 FCR 576. In Evans, the applicants applied for declarations that a provision of the World Youth Day Act 2006 and clauses of the World Youth Day Regulation 2008 were invalid. The applicants intended to protest during the world youth day celebrations on issues of sexual tolerance, contraception and reproductive freedom. The applicants submitted that the Act and the Regulation would prevent them from carrying out their planned protest activity. However, an analysis of that decision reveals that the challenge to the Act and the Regulation was on the basis that both impermissibly burdened the implied freedom of political communication under the Constitution of the Commonwealth . Accordingly, the case is distinguishable and the remarks relied upon by Mr Kennedy at [72] of the judgment must be read in this light.

66 The second case the Court was referred to was Commissioner of Police v Rintoul [2003] NSWSC 662. In that case, the Commissioner of Police sought an order prohibiting the holding of a public assembly proposed by the defendants and others whereby refugee activists planned to assemble and protest outside the private residence of the then Immigration Minister, Mr Phillip Ruddock MP. The Commissioner sought an order that the public assembly be prohibited. Emphasising the importance of freedom of expression and assembly, balanced against a significant invasion of privacy, the Court ordered that the assembly could proceed (at [23]). However, in my view the case must be distinguished from the present facts on the basis that the protest was to be carried out on public land.

67 The third case relied upon by Mr Kennedy was Australian Competition and Consumer Commissioner v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513. That case concerned consideration of the principles guiding the granting of injunctive relief pursuant to s 80 of the Trade Practices Act 1974 (Cth) in relation to the conduct of directly or indirectly aiding and abetting in the contravention of other provisions of that Act. Again the facts of that case are significantly divorced from those in this application. In Dataline the Australian Competition and Consumer Commission alleged that Dataline and another company had contravened the Trade Practices Act in various ways and in numerous transactions, including resale price maintenance, misleading and deceptive conduct, unconscionable conduct and undue harassment and coercion, with respect to the provision of internet services to virtual law service providers who in turn sold such services to customers. As a consequence of the conduct, declaratory relief was ordered and injunctive relief was granted, restraining the person who effectively controlled the companies from identified resale price maintenance.

68 In my opinion, none of the above cases stand as authority for the proposition that there exists at common law in Australia a right to free speech or a right to protest.

69 In any event, as noted above, the terms of the injunction do not prevent any member of the public, including Mr Kennedy, any member of the Sandon Point Aboriginal Tent Embassy or any Indigenous person from protesting on public lands. All that the injunction does is prevent such protests taking place on land either owned or controlled for the purposes of development by Stockland absent any authority to do so from Stockland.

70 Finally, Mr Kennedy submitted that the onus was not on him to demonstrate why the injunction should be dissolved, but rather the onus was on Stockland to demonstrate to the Court why the injunction should be maintained. For this proposition Mr Kennedy relied on the decision in Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730.

71 But in my view, that decision does not stand for the proposition that Mr Kennedy maintains. In Resort Hotels an injunction had been granted ex parte by Rolfe J and was expressed to operate "until further order". In accordance with directions that Rolfe J made on the day the injunction was granted, the summons in the matter was returnable three days later. On the date it was to be returned, it was adjourned by consent in order for the matter to be heard on an interlocutory basis. McLelland J stated the following (at 731):

It is sometimes convenient, for a variety of reasons, for the court when granting an ex parte injunction, to express the injunction to operate "until further order" rather than as is the more usual practice up to and including the date of return of the summons or notice of motion as the case may be. However, when that occurs the practice of the court is ordinarily that on the return of the summons or on the notice of motion the injunction should be discharged unless the plaintiff shows sufficient reason for its continuation. In other words, the mode in which the duration of the ex parte injunction is expressed should not be allowed to affect the substance of the matter, or the onus, on the first occasion on which the defendant has any opportunity at all to put its case to the court.

Therefore, in such a situation as this, the approach of the court should in general be that it is up to the plaintiff to establish a case for continuation of the injunction.

72 The hearing of this application does not constitute a date of return of the summons. Put another way, it is not presently the case that any continuation of the ex parte injunction will be allowed to affect the substance of the matter or jeopardise any opportunity Mr Kennedy has to put his case to the Court. I do not accept that the decision stands as authority for the proposition that the onus remains on Stockland to demonstrate why the injunction should be continued.

73 However, even if this conclusion is incorrect, I would nevertheless refuse to discharge the injunction given the evidence presently before the Court on the motion. This evidence strongly suggests that if the injunction were to be dissolved, there would be a very real risk that third parties would enter onto the site in order to protest against the development. In addition to the detrimental financial impact this would have on Stockland, the Court is concerned about the possibility that harm may befall the protestors in circumstances where heavy earthmoving machinery is in operation on the site. This latter fact is given significant weight by the Court.

74 For all these reasons, it is my opinion that the injunction granted by Sheahan J on 31 October 2011 should remain in place.

The Earlier Costs Order

75 In respect of the application to set aside the costs order made by Sheahan J on 31 October 2011, I also decline to set aside that order for the following reasons.

76 First, to do so would be to traverse the orders made by Sheahan J on 1 November 2011. For the reasons discussed above, I do not accept that Mr Oshlack was denied the opportunity of addressing the Court on that occasion in respect of the earlier costs order and, in my view, the appropriate time for Mr Kennedy to apply to set aside that costs order was when the matter was before the Court on that date.

77 Alternatively, if, as was submitted on his behalf, Mr Kennedy was denied procedural fairness on the issue of costs when the matter was heard before the Court on 1 November 2011, he had the option of seeking leave to appeal against Sheahan J's decision. This has not been pursued. To grant Mr Kennedy another opportunity to set aside the orders made by the Court on 31 October 2011, especially in light of the passage of time that elapsed since the orders were made on 1 November 2011, would be to impermissibly infringe the principle of the finality of litigation (see the cases referred to above). Indeed, in my opinion, the present application is somewhat redolent of an abuse of process.

78 Second there is no basis for setting aside the costs order because, in my view, it is plainly correct. Mr Kennedy sought to argue that because the proceedings have been brought in the public interest, it is not appropriate for the Court to make any costs orders, and therefore, the earlier costs order made on 31 October 2011 ought not stand. However, for the reasons discussed in greater detail below, I do not accept that these proceedings have been brought in the public interest.

79 Stockland submitted that, in any event, the Court had no power to vary the costs order made by Sheahan J by reason of the operation of r 36.16 of the UCPR. That rule provides as follows:

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.

80 Stockland submitted, in particular, that the time limit specified in subrr (3A)-(3C) apply to all orders that have been entered. In the present case the relevant costs order was entered on 31 October 2011, but the notice of motion seeking to set aside the costs order was not filed until 24 November 2011, that is to say, well outside the 14 day time limit prescribed in subr (3A), and therefore, the Court had no power to set aside the costs order. Stockland relied on a triumvirate of Court of Appeal cases as authority, namely, Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 432, Coastwide Fabrication & Erection Pty Ltd v Honeysett (No 2) [2009] NSWCA 291 and Habib.

81 Mr Kennedy argued that the 14 day time limit contained in subr (3A) did not apply to any application to set aside or vary an order made pursuant to r 36.16(2)(b). I agree.

82 In my view the proper construction of r 36.16(2), that is to say, one that is harmonious with the overall subject-matter, scope and purpose of r 36.16, makes it plain that the rule provides three exceptions to the general rule that a court may vary or recall a final judgment before it has been formally entered, but that it has no power to set aside or vary a final judgment after it has been perfected (Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530 per Barwick CJ, DJL v Central Authority [2007] HCA 17; (2000) 201 CLR 226 at [38], D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] and Meredith (No 2) at [7]). The first is contained in subr (2) (default and ex parte orders), the second is contained in subr (3) (interlocutory orders), and the third is contained by the combined operation of subrr (1) and (3A) of the UCPR ( Fokas v Kogarah Council [2008] NSWCA 145 at [21]).

83 Accordingly, the only factual pre-condition to the exercise of the discretion under r 36.16(2)(b) is that the order in question "was made in the absence of a party", viz , Mr Kennedy (Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056 at [10] and Akari v Sole [2008] NSWSC 59 at [21], where the notice of motion to set aside default judgment was not filed until October 2006 despite default judgment being entered on 8 August 2006. See likewise Hearse v Pallister [2009] NSWSC 406 at [1], [22]-[24] and [30] per Hall J, Mirembe Pty Ltd v Craig Dangar [2010] NSWSC 637 at [1] per Brereton J and Statewide Secured Investments Ltd v Hawkins [2011] NSWSC 144 at [4] per Garling J). To hold otherwise could conceivably result in substantial injustice in circumstances where, for example, orders had been made in the absence a party who, through no fault of their own, did not acquire knowledge of the making of the order until after the 14 days had passed. To the extent that this conclusion is inconsistent with the views expressed by Moore AJ in Jeray v Blue Mountains City Council [2011] NSWLEC 228 (at [35]), I note that his Honour's opinion was expressed only in passing and is obiter dicta in any event.

84 None of the cases referred to by Stockland concerned the application of r 36.16(2)(b) of the UCPR and may be distinguished on this basis (see, for example, Habib at [17] which tends to support Mr Kennedy's position).

85 But even accepting that the Court has, in this instance, the power to set aside the costs order made by Sheahan J on 31 October 2011, it must decline to do so. While the affidavit evidence of Mr Oshlack satisfactorily explains Mr Kennedy's failure to attend on 31 October 2011, there is no satisfactory explanation for his failure to set aside the order on 1 November 2011. Furthermore, Mr Kennedy is not able to demonstrate the merits of some alternative order ( Mirembe at [2], Hawkins & Tarrant at [64] and Hearse at [31]). That alternative order, namely, that there be no order as to costs, is premised entirely on the basis that the proceedings are brought in the public interest. For the reasons given immediately below, I consider that neither the proceedings nor the applications brought on 1November or 15 December 2011 were brought in the public interest by Mr Kennedy.

86 It follows that the Court declines to exercise its discretion under r 36.16(2)(b) of the UCPR to set aside the Court's orders made and entered on 31 October 2011.

Costs of the Motion

87 Mr Kennedy submitted that he ought not be made to pay the costs of the motion because the proceedings and/or this application have been brought in the public interest. In this regard, he relied on r 4.2(1) of the LEC Rules.

88 Rule 4.2 of the LEC Rules states that the Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

89 The principles to be applied when exercising the costs discretion in public interest litigation have been stated by Preston CJ in Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 and applied and endorsed subsequently by this and other Courts (see, for example, Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 at [202], Martin v New South Wales Minister for Mineral and Forest Resources [2011] NSWLEC 38 at [43], Olofsson v Minister for Primary Industries [2011] NSWLEC 137 at [58], McGinn v Ashfield Council [2011] NSWLEC 105 at [17], Friends of Turramurra Inc v Minister for Planning (No 2) [2011] NSWLEC 170 at [31] and Snowy River Alliance Inc v Water Administration Ministerial Corporation (No 2) [2011] NSWSC 1132 at [6]).

90 In Caroona , his Honour formulated a three-step approach for determining when litigation may be properly said to have been brought in the public interest (at [13]). Step one is the characterisation of the proceedings as "public interest" litigation. The following considerations are relevant in determining whether litigation can be properly characterised as having been brought in the public interest:

(a) the public interest served by the litigation;

(b) whether that interest is confined to a relatively small number of members from the applicant group in the immediate vicinity of the development, concerned with their own private amenity, or whether the interest is wider involving a significant number of members of the public and concern for a wider and significant geographic area;

(c) whether the applicant is seeking to enforce public law obligations;

(d) whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and

(e) whether the applicant has no pecuniary interest in the outcome of the proceedings.

91 These considerations are not exhaustive and it is not necessary to answer them in any particular way in order for litigation to be classified as in the public interest or not.

92 Step two is to determine whether there are any additional circumstances that may render the litigation public interest litigation. Merely because a litigant makes claim to some notion of public interest does not entitle him or her to be granted an indemnity from costs. Thus the "something more" requirement ( Caroona at [13] and [17]).

93 In the second step, once litigation has been characterised as having been brought in the public interest it is necessary to examine closely the nature, extent and other features of the public interest involved in the particular litigation to ascertain whether or not they provide justification in the circumstances of the case for departure from the usual rule that costs follow the event ( Caroona at [15]-[16]).

94 The "something more" may, for example, be found in the magnitude of the public interest itself ( Caroona at [59]). There are at least five additional categories of circumstances that have been identified as constituting "something more" for the purpose of step two ( Caroona at [60]):

(a) the litigation raises one or more novel issues of general importance;

(b) the litigation has contributed, in a material way to the proper understanding, development or administration of the law;

(c) where the litigation has been brought to protect the environment or some component of it, the environment or particular component of it is of significant value and importance;

(d) the litigation affects a significant section of the public; and

(e) there was no financial gain to the applicant in bringing the proceedings.

95 Step three is to determine whether there are any countervailing circumstances (Caroona at [18]-[19]). These may include that (Caroona at [61]):

(a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation;

(b) the question of public interest raised is narrow;

(c) the applicant has unreasonably pursued or persisted with points that had no merit or with issues that were not eminently arguable; and

(d) there was disentitling conduct by the applicant, such as the impropriety or unreasonableness in the conduct of the litigation.

96 Turing to the first step, I accept that the proceedings may be characterised as public interest litigation. I do so not withstanding the submission of Stockland that the characterisation must only apply to the application before the Court and not the underlying substantive proceedings.

97 In my view both may be characterised as having been brought in the public interest. This is because, notwithstanding that Mr Kennedy is the applicant in both the notice of motion and the underlying substantive proceedings, he has nevertheless brought the proceedings on behalf of the Indigenous persons he claims to represent, including the Aboriginal Traditional Owners referred to in the affidavit of Mr Oshlack. I do not doubt that Mr Kennedy has made the application to discharge the injunction not only on his behalf, but also on behalf of any person, Indigenous or otherwise, who may seek to protest upon the land the subject of the injunction. As Mr Oshlack stated in his oral evidence, this includes not only Mr Kennedy, but also himself, other members of the Sandon Point Aboriginal Tent Embassy, Aboriginal Traditional Owners, Aboriginal persons generally and anyone who may be affected by the development works.

98 However, I am unable to identify the "something more" required by step two. Mr Kennedy submitted that the litigation raised an issue of general importance, namely, whether it was appropriate in the circumstances to issue an ex parte injunction that would have the effect of stifling common law rights of free speech or to protest. But as has been explained above, this misconceives the nature, scope and effect of the injunction granted. Moreover, I do not consider any of the issues raised by Mr Kennedy to be either novel or of sufficient general importance that this second step is satisfied.

99 With respect to step three, I accept the submission of Mr Kennedy that he was not seeking to vindicate rights of a commercial character or that he alone stands to benefit from the application. While it is strictly correct to state, as Stockland did, that if the injunction were lifted Mr Kennedy would be a beneficiary of its dissolution, he would not be the only beneficiary and a wider class of persons would benefit from the setting aside of that order. However, in my view, Mr Kennedy has unreasonably pursued, in light of the fact that this is the second attempt to set aside the orders made by Sheahan J on 31 October 2011, this application and, as the hearing has revealed, has persisted with points that have little, if any, merit and were not eminently arguable. I would therefore find that there are countervailing circumstances that mean that even if steps one and two were satisfied, Mr Kennedy nevertheless ought to pay Stockland's costs.

100 I therefore do not find that the proceedings, either generally or in so far as they relate to this application or the application bought on 1 November 2011, have been brought in the public interest.

101 It follows that because these are Class 4 proceedings where costs follow the event, Mr Kennedy must pay Stockland's costs of the motion.

Orders

102 The orders of the Court are therefore as follows:

(1) Mr Kennedy's notice of motion filed on 24 November 2011 is dismissed;

(2) Mr Roy "Dootch" Kennedy is to pay Stockland's costs of the motion; and

(3) the exhibits are to be returned.

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Decision last updated: 22 December 2011