ACM Landmark Pty Limited v Cessnock City Council

Director-General, Department of Land & Water Conservation v Pye (No 2) [1999] NSWLEC 45; CASES CITED: Ervin Mahrer & Partners v Strathfield Council [2002] NSWLEC 97; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; L Shaddock & Assoc Pty Ltd v Parramatta CC (No 2) (1982) 151 CLR 590

APPLICANT Mr PW Larkin (barrister) SOLICITOR Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston (barrister) SOLICITOR Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10377 of 2005 ACM Landmark Pty Limited v Cessnock City Council

EX TEMPORE JUDGMENT 1 Her Honour: The Applicant has filed a Notice of Motion dated 2 December 2005 seeking various orders in relation to costs matters. The motion is seeking to vary one order relating to costs made by Watts C on 17 November 2005. 2 On that day the Registrar handed down on behalf of the Commissioner a written reserved judgment and orders. The orders made by the Commissioner, inter alia, upheld the Applicant's Class 1 appeal. The orders were also contained in final signed and sealed orders issued by the Registrar at the same time as she handed down the Commissioner's judgment and orders. Order 3 sought to be to set aside is that each party is to pay its own costs of the proceedings. The Council does not oppose or support the motion and is here only to protect its position on costs given that prayer 4 in the motion seeks the Applicant's costs of the motion.

3 The Commissioner in his judgment of 17 November 2005 said on costs (at [104]) that "since the parties made no submissions on costs that each party would pay their own costs". In an affidavit of George Warren Williams dated 2 December 2005, he gives evidence that the parties had agreed after the Commissioner reserved his decision that they would ask the Court that costs be reserved. According to the transcript of the proceedings before the Registrar, she read out the final orders before the application for that order was made and had already prepared a final, sealed copy of the orders which she handed down to the parties. When the single representative of both parties sought to raise the issue of costs the Registrar advised that as final orders had been made that was the end of the matter.

4 Given that this notice of motion is seeking to vary orders which are sealed and final it is important to clarify the basis on which I can intervene, if at all. Generally the only basis for challenge will be by way of an appeal under s 56A of the Land and Environment Court Rules 1996 ("the Court Rules") apart from limited arguments related to the application of the Court Rules. The Applicant bases its motion on a number of grounds under the Rules and the Land and Environment Court Act 1979 ("the Court Act"). The motion is not framed as a s 56A appeal raising questions of law. The Applicant's arguments are as follows: (a) The "slip rule", developed in Ervin Mahrer & Partners v Strathfield Council [2002] NSWLEC 97, and which is set out in Pt 10 r 7(1) of the Court Rules should apply. (b) That the entry of the order by the Registrar was invalid, since it occurred prior to the order being given, and therefore can be set aside under Pt 15 r 9(b) of the Rules. (c) That the Respondent had originally consented to the making of an order that costs be reserved, and therefore, Pt 15 r 9(f) applies to give the Court power to set aside an order. (d) That under s69(8) of the Court Act, the Commissioner did not have power to make an order on costs without the concurrence of the Chief Judge, which did not occur in this case. (e) That by perfecting the order, the Registrar made it in the absence of a party, rendering Pt 15 r 9(a) of the Rules applicable (f) That there was non-compliance with Clause 10 of the Practice Direction 1993, as was then in force (g) That the Court has the power to vary the order under the principles of Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13. (a) Slip rule 5 The Applicant's primary argument is that the slip rule should be applied in these circumstances. Part 10 r 7 provides that: If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error.

6 The Applicant argued that there had been an error by Watts C in that he failed to provide an opportunity to the parties to address him on costs. Alternatively, the Applicant argued there was an accidental error by the legal representatives for the Applicant in that they failed to make submissions on costs at the end of the hearing before Watts C.

Finding on slip rule 7 I have not been provided with any evidence of what was said at the hearing, if anything, on the issue of costs. I infer from the statement at [104] of the Commissioner's judgment that nothing was said about costs at the hearing before the Commissioner reserved his decision.

8 The error in relation to the Commissioner's conduct relied on by the Applicant is more accurately characterised as a denial of procedural fairness, which would have to be argued in the context of a s 56A appeal as giving rise to an error of law. That is not a matter I can presently consider, given the form of the Applicant's motion.

9 In relation to the error on the part of the Applicant's legal representatives, the case of Ervin Mahrer considered a similar situation. In that case a Class 1 appeal was dismissed with an order that there be "no order as to costs". The Respondent opposed this and filed a motion to recover its costs. The original orders were then perfected. Justice Bignold held that the Court had no inherent power to reopen perfected court orders, but that the order as to costs could be varied under the "slip rule", Pt 10 r 7 of the Court Rules. In Ervin Mahrer the motion to recover costs was filed before the orders were perfected, unlike the present case. Justice Bignold referred to L Shaddock & Assoc Pty Ltd v Parramatta CC (No 2) (1982) 151 CLR 590 in the High Court to support this approach.

10 In Director-General, Department of Land & Water Conservation v Pye (No 2) [1999] NSWLEC 45, Lloyd J applied the "slip rule" to amend an order so as to award costs where the solicitors had omitted to apply for costs prior to the order in Class 5 proceedings being perfected. His Honour relied on the High Court authorities of Shaddock and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 62 ALJR 151 at [14]-[16] to hold that the "slip rule" extends to cover an omission or matter resulting from the inadvertence of a party's legal representative which was not dealt with at hearing. At [18], Lloyd J held that the "slip rule" is available regardless of whether orders had been perfected. I adopt and apply Lloyd J's findings in this case as outlined in these paragraphs.

11 Given this case law and the circumstances here, I consider that it is open to the Court to apply the slip rule to set aside Order 3 of the orders of this Court made on November 17 and to substitute the order that costs be reserved.

(b) Application under Pt 15 r 9(b) 12 Part 15 r 9(b) states: The Court, may, on terms, set aside or vary an order in any of the following cases: … (b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4 13 The Applicant argued that the final signed order prepared by the Registrar was not made under Pt 15 r 4 as before that rule can apply Pt 15 r 5 should be complied with. Accordingly Pt 15 r 9(b) can apply. Part 15 r 4 provides that the Registrar is to sign and file a minute of the final order disposing of proceedings, and is to seal the minute with the seal of the Court, whilst Pt 15 r 5 provides that a final order disposing of any proceedings takes effect when it is given or made, unless otherwise ordered by the Court.

14 Where there is a reserved judgment the order will be given or made when it is pronounced in Court. Until that time no "final order" exists within the meaning of Pt 15, according to the Applicant. It is therefore implicit in the operation of Pt 15 that a final order ought not be signed and sealed under Pt 15 r 4 until after the final order in r 5 has been given or made, in this case delivered in Court. Accordingly it is open to the Applicant to apply under Pt 15 rule 9(b) for a variation of the order. If this is not correct then r 9(b) will be otiose in these circumstances.

15 Given my finding on the application of the slip rule it is unnecessary that I resolve the arguments put by the Applicant in relation to the operation of Pt 15 r 4, r 5 and r 9. I make some preliminary observations that the Registrar does not appear to be precluded under Pt 15 of the Court Rules from issuing a final signed order in the way she has done in this case. There is nothing in the Court Rules which requires any specific time period to elapse between the giving of the order under r 5 and the signing and filing of the final order under r 4. Indeed there will be circumstances such as the issuing of an interlocutory order where it is desirable that a signed and sealed order issue immediately. I agree with the Applicant's submissions that the result is that the opportunity to apply under Pt 15 r 9(b) to vary any orders is not available to a party in these circumstances. It is important that the Court have in place administrative processes which ensure fairness to all parties before the Court and to that end I have referred the issues raised by this argument to the Chief Judge of this Court for consideration of whether the existing processes of the Court are appropriate.

(c) Application under Pt 15 r 9(f) 16 This rule provides that: … the Court may set aside or vary an order if the party in whose favour the order was made consents

17 The Council has not consented to this notice of motion. It does agree that the parties had agreed that costs ought to be reserved at the time th matter was before the Registrar. As it is not clear that the Council does consent to orders being set aside as sought in this motion, I do not think this rule can be relied on by the Applicant.

18 It is unnecessary to consider any further arguments but I note that, apart from the argument related to the application of Pt 15 r 9(a) (issue (e)), the balance of arguments made by the Applicant are more appropriately raised in the context of a s 56A appeal. As I have determined that I should apply the slip rule it is unnecessary for the Applicant to apply to amend the motion so that it is framed as a s 56A appeal.

19 I will make the orders sought in prayers 1 and 2 of the notice of motion. I do not think it appropriate for me to make the order sought in prayer 3 that the matter be referred to Watts C for determination. The matter should be referred to the Registrar's list for determination of its further conduct. I order that each party pay their own costs for today's proceedings. Orders 20 The Court makes the following orders:

1. That order 3 made by this Court on 17 November 2005 in these proceedings be set aside.
2. That the costs of these proceedings be reserved.
3. That each party pay their own costs of today's motion.
4. The matter is to be listed before the Registrar on 10 February 2006.

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