El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979

Judgment 1THE COURT: The appellants have applied under r 36.17 of the Uniform Civil Procedure Rules 2005 ('UCPR') to correct certain of the orders made by the Court on 28 February 2014. 2The application was made by letter from the appellants' solicitors to the Registry dated 10 March 2014, rather than by notice of motion as required by r 18.1 of the UCPR. However, the appellants advised that their application was made with the consent of the respondent's solicitors. In the circumstances of the case, the Court considers it is appropriate to dispense with the requirement for the application to be made by a notice of motion and is prepared to accept the letter as sufficient to make the application (see s 14 of the Civil Procedure Act 2005 and r 18.2 of the UCPR). 3The corrections sought were to Orders 1 and 3 of the Court's orders of 28 February 2014. Order 1 extended the time for the appellants to file and serve the notice of appeal to 24 April 2014. The appellants seek to correct the year of the date from "2014" to "2013". The appellants had sought in their leave application for the time to be extended to 24 April 2013. They had purported to file a notice of appeal by 24 April 2013. The Court inadvertently nominated the current year 2014 instead of the previous year 2013 in its Order 1. The correction sought by the appellants should be made. 4Order 3 of the Court's orders sets aside all of the orders made by the Land and Environment Court of 6 December 2013. The appellants seek to correct this order so as to limit the orders of the Land and Environment Court set aside by this Court to only Order 3 rather than all of the orders. Order 3 of the court below was the order specifying the amount of compensation to which that court determined the appellants were entitled. The appellants submitted that the orders of the court below setting aside the Valuer-General's determination (Order 1), upholding the appellants' objection to the Valuer General's determination (Order 2), and ordering the respondent to pay the appellants' costs of the proceedings in the court below (Order 4), should not be disturbed. 5The proposed correction to Order 3 of this Court's orders does not fall within the ambit of r 36.17, as it does not involving correcting a clerical mistake or an error arising from an accidental slip or omission. 6Order 1 of the court below purported to set aside the determination of the Valuer-General under s 47 of the Land Acquisition (Just Terms Compensation) Act 1991 ('the Act') of the amount of compensation to be offered by the respondent under s 42 of the Act. The respondent was required to, and did in fact, offer compensation to the appellants in the amount determined by the Valuer-General. The appellants lodged under s 66(1) of the Act an objection to the amount of compensation offered by the respondent. That objection having been duly lodged, the Land and Environment Court was required to hear and dispose of the appellants' claim for compensation (s 66(2) of the Act and s 24(1) of the Land and Environment Court Act 1979). 7The orders the Land and Environment Court could make in the proceedings brought by the appellants were constrained by that function of hearing and disposing of the appellants' claim for compensation. Primarily, this involved the Land and Environment Court determining the amount of compensation to which the appellants were entitled under Pt 3 of the Act and making an order giving effect to that determination. However, the Land and Environment Court's function in hearing and disposing of the appellants' claim for compensation did not involve either the setting aside of the Valuer-General's determination under s 47 of the amount of compensation to be offered by the respondent or the upholding or refusing of the appellants' objection lodged under s 66(1) of the Act. Although the lodging of an objection to the amount of compensation offered by the respondent was the process by which the proceedings were originated, the Land and Environment Court's function was not to determine that objection as such but rather the appellants' claim for compensation that the lodging of the objection brought before the court. 8For these reasons, Orders 1 and 2 of the court below ought not to have been made. This Court, therefore, in setting aside Order 3 of the court below determining the amount of compensation also set aside the allied Orders 1 and 2. 9Order 4 of the court below was that the respondents pay the appellants' costs of the proceeding in the court below. This was no doubt determined on the basis that the amount of compensation determined by the court below was greater than the amount of compensation the Valuer-General determined should be offered, and the respondent did offer, to the appellants, and hence the appellants were successful in their objection to the amount of compensation offered. 10As Order 4 of this Court makes plain, the court below on the remitter is to determine the appellants' claim for compensation according to law. The court below will make a fresh order disposing of the appellants' claim for compensation by determining the amount of compensation to which the appellants are entitled. Once the appellants' claim for compensation is redetermined according to law, the question of the appropriate costs order can be redetermined in light of the amount of compensation determined. 11Although it seems unlikely to occur in this case, theoretically, if the amount of compensation determined on a remitter were to decrease from that previously determined so as to be lower than the amount determined by the Valuer-General and offered by the acquiring authority, the question of whether a different costs order ought to be made would need to be considered. 12It was for this reason that this Court set aside the costs order in the court below with the expectation that a fresh costs order would be made after, and in light of, the redetermination of the appellants' claim for compensation. 13For these reasons, the correction the appellants seek, of the substitution of an order setting aside only Order 3 of the court below for the order this Court made of setting aside all of the orders the court below made, is not a correction of a mistake or error falling within the ambit of r 36.17. 14However, there may be power under r 36.16(1) and (3A) of the UCPR to vary this Court's orders. The judgment and orders of this Court were taken to be entered when they were recorded in the Court's computerised court record system, which was on the day judgment was delivered on 28 February 2014. Application to vary the orders was made on 10 March 2014, which is within 14 days after the orders were entered. As noted above, this Court considers it appropriate in the circumstances of this case to dispense with the requirement for a notice of motion and has accepted the letter as sufficient application. In these circumstances, the Court has power to vary its orders as if the judgment and orders had not been entered (r 36.16(3A)). The power to vary the orders is under r 36.16(1). 15Nevertheless, although there may be power, not all of the variations sought by the appellants, with the consent of the respondent, are appropriate to be made. As noted above, Orders 1 and 2 of the court below were not orders that it had power to make in disposing of the appellants' claim for compensation. It would not be appropriate to vary this Court's order setting aside those orders of the court below so as to reinstate orders that were outside power. 16Order 4 of the court below stands in a different position. As noted above, ordinarily it is appropriate, where the determination of the amount of compensation by the court below is set aside and the matter is remitted to that court to redetermine the claim for compensation according to law, for the decision and order as to the costs of the proceedings in the court below to be also set aside and redetermined after the claim for compensation is redetermined. 17However, in this case, the parties consent to the decision and order as to the costs of the proceedings to date in the court below remaining, regardless of what might be the outcome on the redetermination of the appellants' claim for compensation on the remitter or any determination of costs of the proceedings on the remitter. As the parties consent, this Court is prepared to vary its Order 3 so as to except from its order setting aside the orders of the court below Order 4 of the court below, thereby reinstating the order as to the costs of the proceedings in the court below. 18The Court, therefore, makes the following orders: (1) Order 1 of the Court's orders of 28 February 2014 is corrected by omitting the year "2014" and instead inserting "2013". (2) Order 3 of the Court's orders of 28 February 2014 is varied by inserting after the words "the orders" the words "(except Order 4)".