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Texts Cited: Nil

Category: Procedural rulings

Parties: Marc Alan Lambourne (First Applicant)
Glenn Craig Pollett (Second Applicant)
Punters Show Pty Ltd (Third Applicant)
Dallas Matthew Baker (First Respondent)
Todd Cameron Buckingham (Second Respondent)
BetMakers Technology Group Limited (Third Respondent)
12 Follow Pty Limited (Fourth Respondent)
Operis Momentus Pty Limited (Fifth Respondent)

Representation: Counsel:
MA Lambourne (Applicants) (Self represented)
AP Cheshire SC (Respondents)
Solicitors:
Vintage Law (Respondents)

File Number(s): 2019/00407870

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

This is the latest chapter in an ongoing litigious saga between the parties. The applicants, represented by Mr Lambourne who was granted leave to appear on behalf of the other two applicants, sought review under s 46(4) of the Supreme Court Act 1970 (NSW) and r 51.58 of the Uniform Civil Procedure Rules 2005 (NSW) of orders made by Price AJA (see Lambourne v Baker [2024] NSWCA 280 and Lambourne v Baker [2024] NSWCA 281).

On 25 November 2024, Price AJA heard two motions. The first sought review under the slip rule of the Court’s reasons and orders dated 11 October 2025 (see Lambourne v Baker (No 5) [2024] NSWCA 241). The second sought various orders concerning matters dating further back into the history of the litigation to 2021. His Honour ordered that the applicants’ two motions be dismissed and made a lump sum costs order in the amount of $10,000 in favour of the respondents.

In the present proceedings, the broad issues were whether: (i) Price AJA lacked jurisdiction or power to dismiss the motions or erred in principle; and (ii) a gross sum costs order should be made in favour of the respondents.

The Court held (Adamson JA, Ball JA and Griffiths AJA) dismissing the motion, with gross sum costs:

As to issue (i):

1. Price AJA had jurisdiction under s 46(2)(b) of the Supreme Court Act to consider whether or not the slip rule applied: [60]
2. There was no error of principle in the exercise of Price AJA’s powers. Nor was his Honour’s decision plainly wrong. A review under s 46(4) of the Supreme Court Act should not be permitted to be used as a surrogate appeal from an earlier decision by the Court constituted by three justices and should be directed at correcting a judgment, order or direction of a single Judge of Appeal: [86]-[87].

As to issue (ii):

1. There is sufficient basis for a gross sum costs order to be made, considering that further disputes are likely to arise if costs have to be assessed and the amounts involved would be disproportionately large: [92].

JUDGMENT

1. THE COURT: By notice of motion filed 20 December 2024, the applicants seek a review under s 46(4) of the Supreme Court Act 1970 (NSW) of orders made by Price AJA on 25 November 2024 (see Lambourne v Baker [2024] NSWCA 280 (Lambourne 1) and Lambourne v Baker [2024] NSWCA 281 (Lambourne 2).

2. Mr Marc Lambourne (the first applicant) is the sole director of the third applicant (Punters Show). Mr Lambourne and the second applicant (Mr Glenn Pollett) are shareholders of Punters Show. The first respondent, Mr Dallas Baker, is also a shareholder of Punters Show and was formerly the sole director of the company. The second respondent is Mr Todd Buckingham and the other three respondents are companies which have or have had some association with Mr Buckingham.

3. Mr Lambourne is not a solicitor, but he should have leave to represent both Punters Show and Mr Pollett, which is the course which has been previously adopted in Lambourne v Baker (No 5) [2024] NSWCA 241 and in the proceedings before Price AJA.

4. For the following reasons, the motion is dismissed, with gross sum costs.

Procedural background

5. This is the latest chapter in an ongoing litigious saga between the parties. The procedural history is described at some length in Lambourne v Baker (No 5). As Ward P noted there at [4] (Mitchelmore and Kirk JJA agreeing), the parties have been involved in litigation since 2016. The central dispute relates to a business venture concerning the production of an internet TV programme known as “Punters Show” and a related website. The business was directed to the thoroughbred racing industry. The applicants failed at first instance (see In the matter of Punters Show Pty Limited [2019] NSWSC 1777) (Equity Division Proceedings). They were ordered to pay the respondents’ costs.

6. The applicants appealed. The appeal, with reasons published on 24 September 2021, resulted in:

(a) an order made by consent regarding Mr Lambourne’s claim against Mr Baker; and (b) an order that Mr Baker pay Punters Show damages in the amount of $210,249 (see Lambourne v Baker [2021] NSWCA 229 (Basten and Gleeson JJA, and Emmett AJA) (Lambourne v Baker (No 1)).

7. There ensued a series of subsequent disputes which have aptly been described as “wasteful satellite litigation”, in both this Court and in the Equity Division.

8. It is necessary to say something more about some aspects of the procedural history, drawing heavily on the description in Lambourne v Baker (No 5) while acknowledging that the applicants contend that some aspects of those reasons for judgment reveal error or misunderstanding. Although in Lambourne v Baker (No 1) judgment was entered in favour of Punters Show against Mr Baker in the sum of $210,249, the Court did not make any order as to costs in relation to either the Equity Division Proceedings or the appeal (implicitly the costs order made in the Equity Division Proceedings was set aside). The parties were granted leave to reopen the orders within 14 days.

9. By a notice of motion dated 8 October 2021 (noting that the date of filing is contentious), the respondents sought various costs orders in their favour as well as a stay of the judgment debt in favour of Punters Show until the costs payable by the applicants at both first instance and on appeal had been determined.

10. This gave rise to a second judgment of this Court (Basten and Gleeson JJA, and Emmett AJA) in Lambourne v Baker (No 2) [2021] NSWCA 282. On 19 November 2021, the Court ordered that: (a) the then appellants pay 65% of the respondents’ costs of the appeal; and (b) the question of the costs of the Equity Division Proceedings be remitted to that Division. The Court did not determine the stay order which had been sought in the 8 October 2021 motion.

11. After Williams J made costs orders in the Equity Division Proceedings on 31 January 2022 (see In the matter of Punters Show Pty Limited [2022] NSWSC 43), the issue of a stay was considered and determined by this Court on 2 March 2022 in Lambourne v Baker (No 3) [2022] NSWCA 25 (Basten and Gleeson JJA, and Emmett AJA). The Court ordered relevantly:

(1) Upon the first respondent paying into Court the judgment debt created by order (2) [sic: order (1)] made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021.

(2) The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents.

12. On 21 March 2022, Mr Baker caused the sum of $210,249 to be paid into Court.

13. The costs both of the appeal and in the Equity Division Proceedings were then assessed. This resulted in the following costs certificates:

(a) On 29 May 2023, the Manager, Costs Assessment certified that the sum of $207,067.43 was payable to Mr Baker by the applicants. (b) On 12 October 2023, the Manager, Costs Assessment issued a separate certificate certifying that a total of $315,956.56 was payable to the second to fifth respondents by the applicants.

14. After the time for seeking review of the first costs certificate had expired, on 20 June 2023 the respondents proposed to the Court’s Finance Registry that the funds paid into Court (i.e. the sum of $210,249) be accounted for, such that Mr Baker would receive $201,544.61 and the balance of $8,704.39 would be paid to the applicants.

15. By an email dated 28 June 2023, the parties were advised that the Court proposed to make those payments and to also add interest accrued on the amount of $8,704.39 payable to the applicants. After it emerged that Mr Lambourne had not received the certificate dated 29 May 2023, the parties were directed to proceed by way of notice of motion in relation to payment out of funds in Court.

16. On 15 December 2023, Mr Baker filed a motion seeking orders that the funds in Court be paid in the amount of $201,544.61 to him and as to $8704.39 to the applicants.

17. On 13 March 2024, the respondents filed another motion dated 11 March 2024 seeking to invoke the slip rule in respect to the orders made on 2 March 2022 in Lambourne v Baker (No 3) so as to create a stay “until all costs orders” in favour of the respondents had been assessed or agreed.

18. On 28 May 2024, Basten AJA heard what had become two amended notices of motion filed by the respondents (see Lambourne v Baker (No 4) [2024] NSWCA 132). The first amended motion sought to have paid out to the respondents an amount of $186,214.86 (representing 36% of the total amount of the total costs as subsequently described by Ward P in Lambourne v Baker (No 5) at [38]). This motion was referred to by Basten AJA as the “payment motion”.

19. The second amended motion, which his Honour described as the “slip rule motion”, sought an order that the whole amount of the funds paid into Court be paid out to the respondents. This meant that if such a payment out was made it would exhaust the entirety of the funds paid into Court towards discharging the applicants’ indebtedness relating to the costs orders made in both the appeal and Equity Division Proceedings.

20. On 31 May 2024, in Lambourne v Baker (No 4), Basten AJA dismissed the slip rule motion but granted the payment motion. The following relevant orders were made:

5. Order that the sum of $210,249.00 paid into Court on 21 March 2022, together with such interest as may have accrued on that sum, be disbursed as follows:

(a) payment of $186,214.86 to the respondents; and

(b) payment of the balance to the third appellant (Punters Show Pty Ltd).

6. There be no order as to the costs of the motions with the intention that each party bear its own costs.

21. It should also be noted that in Lambourne v Baker (No 4), Basten AJA explained at [9]-[14] why he refused Mr Lambourne’s application that his Honour recuse himself.

22. Following directions made by Basten AJA on 31 May 2024, a review was conducted of the orders made earlier that day. The review, sourced in s 46(4) of the Supreme Court Act and r 51.58 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), was heard and determined by the Court constituted by the President, Mitchelmore and Kirk JJA. The review resulted in orders and reasons for judgment dated 11 October 2024 in Lambourne v Baker (No 5), which we will now outline.

Lambourne v Baker (No 5) summarised

23. By a notice of motion filed 6 June 2024 (and amended on 9 September 2024), the applicants sought a review of Basten AJA’s orders on the basis that:

(a) his Honour failed to apprehend or fairly deal with the issue of quantum and, in particular, the applicants’ claim that there was no operative stay; (b) his Honour failed properly to address the entitlement of the respective parties to the sum paid into Court; and (c) there should be a permanent stay of the orders made by the Court on 19 November 2021 in Lambourne v Baker (No 2).

24. As Mr Lambourne acknowledged in oral address in the present review, the amended notice of motion did not explicitly challenge Basten AJA’s recusal decision. We acknowledge, however, that it may be arguable that the issue was raised indirectly and elliptically in prayer 5 of the motion, which sought to have set aside the orders made on 31 May 2024 “on the ground that they would damage public confidence in the administration of justice and they would otherwise constitute an abuse of the Court process”. We will return to address the recusal issue at greater length in due course.

25. Ward P (Mitchelmore and Kirk JJA agreeing) noted at [45] that Mr Lambourne accepted that an application for review under s 46(4) is not an appeal and that it was necessary to show that there “has been an error of principle in the exercise of the power or the decision was plainly wrong”, citing Collier v Lancer [2013] NSWCA 185 at [19] and also noting at [45] that “there is a heavy burden on a person seeking a s 46(4) review of a decision of an appellate judge” (citing Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48]).

26. Ward P noted that Basten AJA had given reasons for declining to recuse himself. Her Honour then added at [41] that there “is no challenge to that decision although Mr Lambourne raises this as a relevant consideration in his submissions (see below)”.

27. Later, at [64], the President noted that Mr Lambourne “also appears to re-agitate the recusal issue, although as we have noted there was no application for leave to appeal from his Honour’s rejection of that application”. Her Honour described this as having no relevance to the s 46(4) application which was before the Court.

28. As to the quantum issue, although Ward P said at [78] that Basten AJA may have erred in suggesting that payment into Court had been made within the time allowed for payment of a judgment debt without interest because interest had already commenced to run by the time Mr Baker caused the payment to be made into Court, the critical issue was whether the condition imposed on the grant of the stay required the payment into Court of not simply the judgment debt but also post-judgment interest accrued up to the time of payment into Court (see at [79]). Her Honour agreed with Basten AJA’s conclusion that order (1) of the 24 September 2021 orders required payment of the judgment debt created by the 24 September 2021 order, being an amount in the sum of $210,249 per se without any need to take into account interest after judgment. The President then added at [83] that, even if error had been established in relation to the quantum issue, the error would be immaterial because, once costs were determined through the costs assessment process, the set-off provided for by order (2) of the 24 September 2021 orders meant that Punters Show was only entitled to the balance of the sum paid into Court after that set-off.

29. Her Honour also explained at [85]-[87] why she viewed the applicants’ contention that there was no operative stay because they said the 8 October 2021 motion was not filed until 15 October 2021 (i.e. outside the 14 day limit set in Lambourne v Baker (No 1*)*) as not material. This was because, contrary to Mr Lambourne’s contention, the Court could have granted leave to extend the time for the filing of the motion dated 8 October 2021 or to dispense completely with the time requirement, particularly where the notice of motion had been forwarded to the Registry within the time specified.

30. The President explained why she rejected the applicants’ contention that Basten AJA erred in proceeding on the basis that the respondents were “entitled” to payment out of the amount assessed as the costs of the appeal. Her Honour explained at [93] that the effect of the set-off in the orders dated 2 March 2022 (see at [6] above) was that Punters Show’s entitlement to the judgment sum was subject to the order as to the costs of the appeal. Moreover, the President stated at [94] that the fact of registration of the costs certificate and enforcement of the judgment debt to which registration gives rise did not alter the fact that the respondents had an entitlement to those costs as agreed or assessed.

31. Her Honour also explained at [98]ff as to why the applicants’ complaints regarding the adequacy of Basten AJA’s reasons were not accepted.

32. It is well to set out the concluding paragraphs in the President’s reasons for judgment:

[105] For the reasons above, I consider that the stay did become operative on the payment into Court (on Mr Baker’s instructions or behalf) of the funds on 21 March 2022 and that there was no error in the order for payment out of the moneys held in Court after the respondents’ costs had been determined by reference to the costs assessment process and the set-off process that was provided for by order (2) was undertaken (i.e., after the assessed appeal costs were set off against the amount of the fixed sum judgment). The orders made by Basten AJA correctly provided for the payment to Punters Show of the amount to which it was entitled (out of the funds in Court) in respect of the judgment sum in its favour and for the balance of the funds in Court to be paid to the respondents in satisfaction of the assessed costs of the appeal proceedings. I would therefore dismiss the applicants’ notice of motion.

[106] I would also dismiss the respondents’ notice of motion. I do not consider it appropriate to revisit the basis on which Basten AJA made the orders for payment out of Court. The costs of the first instance proceeding were not part of the costs regime for which provision was made on 19 November 2021. While there is no doubt merit in reaching finality in the satellite litigation over costs, I do not consider it appropriate in the context of a review application in relation to his Honour’s decision now to embark upon a separate exercise in relation to the costs of the first instance proceeding (and I note that the circumstance in which the respondents urged this to be done – namely if Mr Lambourne’s contention were to be accepted as to the interest payable on the judgment sum forming part of the amount required to be paid into Court – does not arise on the conclusion I have reached as to that issue).

The proceedings before Price AJA

33. The Court File and the evidence discloses the following matters. On 30 October 2024, Mr Lambourne (evidently on behalf of all three applicants) filed a notice of motion (numbered 9) seeking that the Court reconsider its reasons and orders dated 11 October 2024 (referring to the reasons for judgment and orders made by the Court in Lambourne v Baker (No 5)). As recorded by Price AJA in Lambourne 1 at [1], the applicants did not proceed with this motion and it was formally dismissed. Nothing more needs to be said about it.

34. On 13 November 2024, Mr Lambourne filed two further notices of motion on behalf of the three applicants. The first (numbered 11) was said to rely on the slip rule in r 36.17 of the UCPR or, alternatively, the Court’s inherent jurisdiction and s 23 of the Supreme Court Act. An additional reference was made on page 2 to s 56 of the Civil Procedure Act 2005 (NSW). The motion asked the Court to reconsider the reasons and orders dated 11 October 2024 (i.e. Lambourne v Baker (No 5)) having regard to a long list of alleged errors in both those reasons and those of Basten AJA in Lambourne v Baker (No 4). The orders sought included the following:

(a) an order setting aside the orders made on 19 November 2021 in Lambourne v Baker (No 2) concerning the costs of the initial appeal and the remitter of the costs at first instance to the Equity Division; (b) an order that, until further order, the respondents and their solicitor be enjoined from taking any action to seek release of the funds held in Court in relation to this matter, with particular reference to the sum of $186,214.86 referred to in order (5)(a) made on 31 May 2024 by Basten AJA in Lambourne v Baker (No 4*)*; and (c) an order that the Registrar immediately release to Punters Show the balance of the funds held in Court in accordance with order (5)(b) dated 31 May 2024.

35. The second notice of motion, numbered 12, was said to rely upon various provisions in the UCPR relating to the Court’s powers to give directions to, or review actions and decisions by a registrar (rr 49.15, 49.16 and 49.17), as well as the Court’s inherent jurisdiction and s 23 of the Supreme Court Act.

36. The applicants filed an outline of written submissions dated 8 November 2024 in respect of what was then only notice of motion numbered 9. That notice of motion was subsequently superseded by notice of motion numbered 11. Among the matters raised in the applicants’ written submissions dated 8 November 2024, it was submitted that the Court had on 9 September and 11 October 2024, misunderstood the evidence and the applicants’ submissions “including the fact that the Recusal issue was being pressed” (at [18]). Later, at [23] the applicants’ written submissions said that there had been “no enquiry at all about the Recusal issue in circumstances where the filed evidence and submissions were focused on public confidence in the administration of justice being adversely affected by the Court’s Reasons published since 13 December 2019 in the related proceedings in the Supreme Court as well as in the Court of Appeal”.

37. The respondents provided written submissions in response dated 15 November 2024, which were primarily directed to the two motions dated 13 November 2024 (which were filed after the applicants’ written submissions in chief).

38. Both motions numbered 11 and 12 were heard by Price AJA on 18 and 25 November 2024. Mr Lambourne, who was granted leave to appear on behalf of the other two applicants, made oral submissions in respect of the slip rule application and the errors said to have been committed by the Court in Lambourne v Baker (No 5). He also took Price AJA to Basten AJA’s reasons in Lambourne v Baker (No 4) and, in particular, to order (5) made by his Honour. The transcript does not record any submission being made by Mr Lambourne to Price AJA concerning Basten AJA’s recusal decision. The hearing on 18 November 2024 was adjourned to enable the applicants to provide written submissions in reply to the respondents’ submissions dated 15 November 2024. Written submissions in reply dated 21 November 2024 were provided. (Many of those submissions are now repeated by the applicants in the materials before this Court.) No mention was made in the applicants’ written submissions concerning Basten AJA’s recusal decision.

39. The hearing of the motions before Price AJA then resumed on 25 November 2024.

40. After hearing oral submissions from the parties, Price AJA proceeded to deliver ex tempore reasons for judgment on 25 November 2024. Both motions were dismissed and a lump sum costs order was made in the amount of $10,000 (see Lambourne 1 and Lambourne 2 respectively).

41. In Lambourne 1, the formal order was that “Notices of motion 11 and 12 are dismissed”.

42. The formal orders made in Lambourne 2 were as follows:

(1) I make an order the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000.

(2) The orders are stayed for 28 days from today.

43. In his reasons, Price AJA noted that Mr Lambourne had submitted that, before the Court addressed the notice of motion numbered 11, the Court should make an order in terms of paragraph 5 of the notice of motion numbered 12. This order sought to compel the first and second respondents to do all things necessary to execute order (5)(b) dated 31 May 2024, namely to pay the balance of the funds in Court to Punters Show in an amount over and above the sum of $186,214.86. His Honour observed at [5] that the effect of this was that the applicants sought to achieve compliance with an order which the Court had made in their favour, but not the payment of the monies ordered by the Court in favour of the respondents.

44. Price AJA noted that order (5) dated 31 May 2024 was one of the orders challenged by the applicants in the review which resulted in Lambourne v Baker (No 5). He also noted that, by notice of motion numbered 11, the applicants asked the Court to reconsider its reasons and orders dated 11 October 2024 in relation to various specified matters. This led his Honour to conclude at [9] that the applicants were asking the Court to “reconsider the orders it made dismissing the [applicants’] application for review of Basten AJA’s orders, including order 5(b)”.

45. His Honour also noted that the relief sought reached even further back into the history of the litigation because the applicants sought an order setting aside order (3A) dated 19 November 2021, an order which was made in Lambourne v Baker (No 2).

46. Price AJA explained at [14] why he declined to make an order in terms of paragraph 5 of the notice of motion numbered 12. He said that all the proceedings were interrelated “and it would be unjust to the [respondents] to make the order which the [applicants] seek in their favour in isolation”. This is a clear reference to the fact that the applicants wished to prevent any payment out from Court funds to the respondents, while simultaneously seeking a payment out in their favour.

47. As to notice of motion numbered 11, his Honour noted that the Court was being asked to reconsider the reasons and orders in Lambourne v Baker (No 5). As to the applicants’ reliance on the slip rule, his Honour said that the slip rule in r 36.17 applies where “there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order”, citing Johnston v The Greens NSW (No 2) [2021] NSWCA 291 at [6] per Meagher and Brereton JJA and Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 at [111] per Spigelman CJ.

48. After referring to Ward P’s reasons for judgment in Lambourne v Baker (No 5), Price AJA concluded that none of the orders made on 11 October 2024 involved clerical mistakes. He emphasised that the slip rule was not an alternative method of advancing grounds of appeal. He described the applicants’ complaint that the Court failed to consider their submissions and arguments and other complaints of procedural fairness or mistaken determinations as grounds of appeal and not assertions of a clerical slip. In these circumstances, his Honour observed that the applicants’ remedy was to seek special leave to appeal to the High Court.

49. As to the application to set aside order (3A) dated 19 November 2021 in Lambourne v Baker (No 2), his Honour reasoned that the Court had given reasons for that order and no clerical mistake had been identified.

50. In Lambourne 2, Price AJA explained why it was appropriate to make a gross sum costs order. At [4] his Honour added:

In respect of the [applicants’] application for a stay, I have pointed out, as Mr Lambourne well knows, that he may apply immediately to vary or discharge the judgment that I have given today. However, I consider that it is appropriate to order a stay for 28 days to enable him to proceed with that application if he wishes to do so. Accordingly, I stay the orders for 28 days from today.

The present proceeding

51. By notice of motion filed 20 December 2024, the applicants seek a review under s 46(4) of the Supreme Court Act and r 51.58 of the UCPR of the orders made by Price AJA on 25 November 2024.

52. They seek declaratory relief in respect of various matters set out in paragraphs 7 and 8 of the motion, which include a claim that Price AJA did not have jurisdiction or power to determine the correctness or otherwise of the orders made in Lambourne v Baker (No 5). Declaratory relief is also sought in respect of eight claimed errors on the part of the Court in Lambourne v Baker (No 5). The Court does not have jurisdiction to grant that relief in a review under s 46(4) of the Supreme Court Act, which is confined to a review of a decision by a single Judge of Appeal. We will treat this part of the applicants’ motion as involving a claim that Price AJA erred in principle or was plainly wrong in not accepting the applicants’ claims that the slip rule applied to the alleged errors in Lambourne v Baker (No 5).

53. The applicants seek the following additional orders:

10 The Registrar is directed to pay out within seven (7) days to Punters Show Pty Ltd (as directed by Marc Alan Lambourne) the funds except for the sum of $186,249.00.

11 A written direction by email from Marc Alan Lambourne shall provide sufficient discharge to the Registrar.

12 Leave be granted to join the Registrar and Nicola Angela Craven to these proceedings.

13 The Orders of this Court made on 11 October 2024 are stayed until further order.

14 The proceedings be listed for determination by a Court constituted other than by:

(a) Ward P;

(b) Kirk JA;

(c) Mitchelmore JA;

(d) Basten AJA; and

(e) Price AJA.

15 Leave be granted for the parties to seek the costs of the proceedings from the Suitors Fund 1951.

54. The applicants filed written submissions dated 23 December 2024 in support of their motion. They did not serve any further written submissions in chief, but on 21 March 2025 they filed lengthy written submissions in reply dated 20 March 2025 to the respondents’ outline of submissions filed 10 March 2025.

Disposition

55. It is desirable to set out the terms of both ss 46(2), (4) and (5) of the Supreme Court Act, as well as r 51.58 of the UCPR, which are the provisions now relied upon by the applicants:

46 Powers of Judge of Appeal

…

(2) A Judge of Appeal may exercise the powers of the Court of Appeal—

(a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or

(b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.

…

(4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.

(5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section.

…

51.58 Review of order of Judge of Appeal

(cf SCR Part 51, rule 56)

(1) An application to the Court for the variation or discharge of an order of a Judge of Appeal must be made on notice of motion filed—

(a) within 14 days after the date on which the order is made, or

(b) within such extended time as the Court may fix.

(2) An application must be accompanied by written submissions.

(3) Written submissions filed with an application must—

(a) not exceed 5 pages, and

(b) be in typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and

(c) the lines of typing must be set at least 1.5 lines spacing from each other.

(4) An application under subrule (1)(b) must be included in the notice of motion.

Note: Rule 51.61(3) provides that an affidavit is not required to be filed with the notice of motion under this rule.

56. The principles applying to a review under s 46(4) of the Supreme Court Act are well settled. They were conveniently described by the Court in Collier v Lancer as follows:

[19] An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal (s 19(2) of the Act and UCPR, r 51.2 and r 51.58). An applicant for review must show is that there has been an error of principle in the exercise of the power or that the decision was plainly wrong (Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchie’s Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure.

[20] In Rinehart v Welker [2011] NSWCA 403, this court noted, at [48], the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal’s order set aside (referring there also to Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 at [14] and Lo v Iverarch [2009] NSWCA 92 at [29]).

These are principles which were applied by the Court in Lambourne v Baker (No 5).

57. We accept that the applicants are entitled to raise, on a review, the issue whether Price AJA lacked jurisdiction or power to dismiss motions numbered 11 and 12. For the following reasons, however, we are not persuaded that the applicants have made good this complaint.

58. In their written submissions dated 23 December 2024 in support of their motion the applicants contend that, acting as Referrals Judge, Price AJA “cannot review a decision or the orders of a properly constituted full bench of the Court of Appeal”, citing Rahman v Riordan [2010] NSWCA 288 at [3], [6] and [8], as well as Rahman v Riordan [2010] NSWCA 375 at [3].

59. Neither of the motions heard and determined by Price AJA involved a “review” of a judgment or orders of the Court of Appeal constituted by three justices. Rather, as is evident from the terms of the two motions, the applicants were relying on the slip rule (however manifested) or the powers conferred upon the Court in relation to actions and decisions of a Registrar under Div 4 of Pt 49 of the UCPR.

60. We consider that Price AJA had jurisdiction under s 46(2)(b) of the Supreme Court Act to consider whether or not the slip rule applied. His Honour was empowered by that provision to make “any order or give any direction in any appeal or other proceeding” other than an order or direction involving the determination or decision of the appeal or other proceeding. As Mahoney JA explained in Wentworth v Wentworth (1994) 35 NSWLR 726 at 728, s 46 “is a beneficial section and … should be given a broad and not a narrow construction”. As his Honour explained, this is partly because of the heavy workload of the Court. His Honour further observed that it was “proper” that a single judge of the Court is empowered to deal with matters which, of their nature, “do not warrant the attention of three judges of the Court”.

61. Those observations have particular relevance here. As noted above, the motion numbered 11 essentially relied on the slip rule as set out in r 36.17 of the UCPR, which overlaps with the Court’s related powers under either its inherent jurisdiction or s 23 of the Supreme Court Act. As Price AJA correctly pointed out, the slip rule is not an alternative way to advance grounds of appeal. It is also to be contrasted with the Court’s power of review under s 46(4) of the Supreme Court Act, which was not the power exercised by his Honour.

62. The applicants’ reliance on the Court’s decisions in the Rahman v Riordan litigation is misconceived. Allsop P’s observations at [3], [6] and [8] in the first of those decisions were directed to an application which sought to have the Court set aside orders made by two judges refusing leave to appeal. It is plain from the terms of [3] that the application was not based on the slip rule. The same may be said regarding Macfarlan JA’s observation at [3] of the second decision in that litigation. The circumstances of the Rahman v Riordan litigation are far removed from those here.

63. The applicants complain that they had understood that their motions were referred to Price AJA primarily to determine whether or not they should be referred to the same bench as in Lambourne v Baker (No 5). But they do not raise a complaint of procedural unfairness. This may be because there was no unfairness in circumstances where Price AJA briefly adjourned the proceedings several times to give the applicants more time. And, as noted above, the hearing was ultimately adjourned on 18 November 2024 for five business days to enable the applicants to file written submissions in reply, which they did.

64. In support of their claim of lack of jurisdiction, the applicants emphasise that they drew to Price AJA’s attention a passage from White J’s judgment in J Aron Corporation v Newmont Yandal Operations Pty Ltd (2006) 202 FLR 359; [2006] NSWSC 849 at [4]. There, in respect of an application under the slip rule, his Honour observed that such an application should normally be made to the judge who made the order sought to be set aside but that because the primary judge there had recused himself, another judge at first instance could exercise the jurisdiction. Those observations were directed to the application of the slip rule to a decision at first instance.

65. The constitution of the Court to hear an application relying upon the slip rule is a matter for the Court to determine. As Price AJA correctly pointed out, it is not for a litigant to determine that matter. His Honour made those observations in response to Mr Lambourne’s application for the Chief Justice to be involved in a hearing of the motions.

66. It may be accepted that, speaking generally, it is desirable that an application relying on the slip rule be heard and determined by the Court responsible for the orders the subject of that application, but that does not mean that there is a universal rule to that effect. Any such proposition sits uncomfortably with the observations of Mahoney JA in Wentworth v Wentworth, as set out above, regarding the need for flexibility so as to permit some matters in the Court’s appellate jurisdiction to be heard and determined by a single judge in the interests of efficiency and the due administration of justice. All the more so in circumstances where, in its very terms, the applicants’ motion filed 20 December 2024 set out a list of judges who should not hear and determine the motion, which list included all three of the judges who constituted the Court in Lambourne v Baker (No 5).

67. The power of a single judge, in an appropriate case, to hear a slip rule application, even though not a member of the Court who made the subject orders, is illustrated by Slee v Carson (Court of Appeal (NSW), Mason P, 13 July 1998, unrep). Mr Carson filed a notice of motion relying upon the slip rule as then set out in Pt 20 r 10 of the Supreme Court Rules 1970 (NSW), as well relying on the Court’s inherent jurisdiction. The application was heard by the then President of the Court of Appeal, sitting as a single judge. The President had not been a member of the Court which made the subject orders to which the slip rule application was directed. His Honour refused to apply the slip rule.

68. In considering the applicants’ claims relating to Price AJA’s jurisdiction, it is also well to bear in mind the observations of the High Court in Owners of the Ship, “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at [29] that it “is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

69. Turning now to the balance of the applicants’ motion, we are not satisfied that the applicants have established any error of principle in the exercise of Price AJA’s powers or that his Honour’s decision is plainly wrong. It is also to be borne in mind that the review relates to matters of practice and procedure which ordinarily attract particular restraint by a review court.

70. First, the applicants seek to challenge Price AJA’s failure to intervene under the slip rule to correct that part of Lambourne v Baker (No 5) which addressed Basten AJA’s recusal decision (see at [23] and [24] above). They contend that the issue was adequately raised by them in [58]-[60] of their written submissions filed 27 August 2024 prior to the hearing in the Court on 9 September 2024. Those submissions were as follows:

[58] Punters Show has dealt with the recusal issue last to allow this Honourable Court to have an overview of the comparative merits in the proceedings. The recusal application is seriously made, and the Court is usually required to deal with it as a matter of priority.

Please refer to [3] in Dobey & Shey (No 2) [2019] FamCAFC 171, referring in turn to [111] of the relevant High Court decision in Concrete Pty Limited v Parramatta Design [2006] HCA 55.

Please also refer to paragraphs (95) et seq. of the August affidavit.

[59] In the very peculiar circumstances of this case the transcript of the 28 May 2024 proceedings and the 31 May 2024 Reasons may be taken into account: Vakauta v Kelly [1989] HCA 44 at [11] and [18].

[60] It is respectfully submitted that failure to expunge the Reasons and orders published on the internet on 31 May 2024.would bring the administration of justice into disrepute.

71. In his oral address in the present review, Mr Lambourne acknowledged that he did not elaborate upon those written submissions in oral address to the Court on 9 September 2024.

72. In the notice of motion numbered 11, the applicants requested the Court to reconsider the reasons and orders in Lambourne v Baker (No 5) in relation to, among other things, “mistakenly assuming that the [applicants] were not pressing for review of his Honour’s refusal to recuse himself at the 28 May 2024 hearing”. In Lambourne 1, Price AJA noted at [15] that he was asked by the applicants to reconsider the reasons and orders on the facts and circumstances set out in [1](a)-(v) of notice of motion numbered 11, which included the claim relating to recusal. His Honour addressed all those facts and circumstances collectively and concluded at [20] that the Court in Lambourne v Baker (No 5) had given “careful consideration” to the arguments advanced by the parties and had provided detailed reasons for the Court’s conclusions. His Honour added that there was nothing to suggest that any of the orders were “clerical mistakes”, as would be required to attract the slip rule (which is not an alternative method to agitating grounds of appeal).

73. We are far from persuaded that his Honour’s approach discloses an error of principle or was plainly wrong. As noted above, Ward P’s reasons at [41] and [64] directly addressed the recusal issue. Her Honour noted at [64] that the issue had no relevance to the application then before the Court. This was said after Ward P noted that it appeared that Mr Lambourne re-agitated the issue. Her Honour then noted (correctly) that there was no application for leave to appeal from Basten AJA’s recusal decision. It was plainly open to the Court to take that approach. It is understandable why Price AJA said what he did in rejecting the applicants’ contentions in support of this aspect of notice of motion numbered 11. His Honour correctly emphasised the fact that the complaints (including in relation to the recusal issue) truly involved grounds of appeal. They were an attempt, in effect, to circumvent the narrow ambit of the slip rule.

74. We would also add it was open to the applicants to seek special leave to appeal in relation to this matter from Lambourne v Baker (No 5), but they did not do so.

75. Secondly, the applicants complain of Price AJA’s failure to correct the omission in Lambourne v Baker (No 5) to address the principles discussed by Lindsay J in JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501 at [95]-[114]. That discussion relates to the position where monies paid into Court are subject to trust obligations. That is to be distinguished from the position here, where the issue is one of the entitlement to payment out by the competing parties.

76. Thirdly, the applicants complain that Price AJA erred in not correcting the failure of the Court in Lambourne v Baker (No 5) to consider their complaint that the respondents had not filed a notice of motion within 14 days as directed by order (4) dated 24 September 2024. But this contention was in fact addressed at some length by the Court in that decision at [52]-[53] and [85]-[87]. The President explained there why the Court was not functus officio even if the motion dated 8 October 2021 was not formally filed until 15 October 2021 (noting that Ward P found at [16] that the 8 October 2021 motion was stamped in the Registry as e-filed on 8 October 2021). The Court had a discretion to extend the time for filing the motion or to dispense with the time requirement entirely. Her Honour explained at [87] why it was likely that leave to extend time would have been granted, if requested. We respectfully agree. Price AJA did not err in concluding that the slip rule did not apply to this issue.

77. Fourthly, as to the applicants’ repeated complaint that there has been a failure to determine the source of the monies which were paid into Court on 21 March 2022, the Court explained in Lambourne v Baker (No 5) at [62], [76]-[77] that the issue was not material to the matters then before the Court. Price AJA did not err in declining to apply the slip rule to this issue.

78. Fifthly, Mr Lambourne contended that there were several errors in the Headnote to Lambourne v Baker (No 5) which he described as misleading and affected public confidence in the due administration of justice. It is unnecessary to particularise those claimed errors simply because, as the Court pointed out to Mr Lambourne during the hearing, the Headnote does not form part of the Court’s reasons for judgment.

79. Sixthly, as to the other matters raised in the applicants’ motion numbered 11, although not all the matters were addressed individually by Price AJA, his Honour dealt with them collectively with particular reference to the applicants’ written submissions in reply dated 21 November 2024 (see at [18]). After correctly setting out the principles relating to the slip rule, his Honour stated at [20] that the Court in Lambourne v Baker (No 5) had given “careful consideration” to the parties’ arguments and provided detailed reasons for the Court’s conclusions. His Honour made plain at [20] that none of the orders made by the Court in Lambourne v Baker (No 5) involved “clerical mistakes”. His Honour then further explained at [22]-[23] why the applicants’ other complaints did not attract the application of the slip rule but needed to be challenged by way of appeal. No error of principle has been established in respect of this analysis or in his Honour’s conclusionary reasons at [25]-[26].

80. Seventhly, the applicants contended in their written submissions in reply filed 21 March 2025 that the observations in Johnston v The Greens (which were referred to approvingly in Lambourne v Baker (No 5)), did not assist the Court, nor did any reference to there being a “heavy burden”. The applicants contended that the “more authoritative statement” is in Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13], per Leeming, Simpson JJA and Emmett AJA.

81. There are two difficulties with these contentions. First, the Court in Lambourne v Baker (No 5) was undoubtedly correct to view the principles in Johnston v The Greens as authoritative and relevant to the slip rule. The principles (which are outlined at [44] above, are uncontroversial). Secondly, it is notable that the applicants only set out one sentence from [12]-[13] in Majak v Rose. The paragraphs in their entirety are as follows:

[12] The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the “overriding purpose” of facilitating the “just, quick and cheap resolution of the real issues” between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).

82. The applicants have overlooked the fact that these paragraphs are directed to the Court’s power under r 36.16 of the UCPR, which is not the provision relied upon by them in the present proceeding. The other cases cited by the applicants in their reply submissions do not support their claim that the principles in Johnston v The Greens are not authoritative and are inapplicable here.

83. We have taken into account all the written and oral submissions by the parties in respect of the motion filed on 20 December 2024 (noting that Mr Lambourne declined the opportunity to make oral submissions in reply after the Court declined his application to provide post-hearing reply submissions in writing). The applicants’ previous submissions in reply filed 21 March 2025 have been considered, notwithstanding that, as is clear on their face, large parts of those submissions are not truly in reply.

84. In addition, they raise matters which post-date Price AJA’s orders. This includes criticisms levelled at the conduct of both the present Registrar of the Court of Appeal and the respondents’ instructing solicitor.

85. The applicants sought to justify those matters by reference to what they described as “the major premise to be considered in these proceedings”, namely “the maintenance of public confidence and the administration of justice”. The importance of those matters cannot be overstated, but an important element of the administration of justice is that parties adhere to well established protocols and procedural requirements, including the proper ambit of reply submissions and the need to confine submissions and the evidence to the matters at hand. In this case, those matters needed to be directed to the application under s 46(4) of the Supreme Court Act and related powers and, in the case of notice of motion numbered 12, to rr 49.15, 49.16 and 49.17 of the UCPR and related powers. It is important that parties adhere to these basic protocols and procedural requirements, which are consistent with the overarching object in s 56 of the Civil Procedure Act and are reflected in the doctrine of finality in litigation.

86. Finally, it is important to reiterate that a review under s 46(4) of the Supreme Court Act should not be permitted to be used as a surrogate appeal from an earlier decision by the Court constituted by three justices. In its terms, such a review is directed only to a judgment, order or direction of a single Judge of Appeal. As is evident from the applicants’ oral and written submissions in the present proceeding, their real objective was to have the Court impermissibly reconsider the reasons and orders of both Basten AJA in Lambourne v Baker (No 4) and those of the Court in Lambourne v Baker (No 5).

87. To the extent that the submissions were advanced as substantive reasons in support of the orders now sought by the applicants, they are based on a misunderstanding of the nature of an application to correct a judgment or order under the slip rule and the nature of a review of the decision of a single Judge of Appeal concerning those matters. The application to amend or correct a judgment or order under the slip rule is not a vehicle for challenging what are said to be errors in the reasoning of the Court that led to the judgment or orders or what is said to be a failure of the Court to deal properly with submissions made by a party. The appropriate vehicle to deal with those matters is the exercise of whatever rights of appeal are available. And on a review of a decision of a single judge dealing with an application under the slip rule, the question is whether the judge dealing with that issue made an error of principle or reached a decision that was plainly wrong.

88. For all these reasons, the applicants’ motion filed 20 December 2024 will be dismissed.

89. The respondents seek:

(a) a gross sum costs order in relation to their costs of the motion; (b) an order that the gross sum costs amount be paid out of the applicants’ entitlement to the monies paid into Court (or alternatively, an order that the applicants are not entitled to file any further motion in these proceedings unless and until the sum ordered is paid); and (c) the Court’s assistance in enforcing Basten AJA’s order (5)(a) dated 31 May 2024 ordering the applicants to pay $186,214.86 to the respondents.

90. In support of their application for a gross sum costs order, the respondents relied on an affidavit by Ms Nicola Angela Craven dated 24 March 2025. For the reasons given in that affidavit, Ms Craven estimated the respondents’ total fees in opposing the motion filed 20 December 2024 to be $14,300 (including senior counsel’s fees in the amount of $11,000), including GST. Ms Craven estimated that $14,000 including GST would be recovered upon an assessment.

91. Mr Cheshire SC sought a gross sum costs order on an indemnity basis in the full amount of $14,300. He submitted that such an order was appropriate because the applicants’ motion was “hopeless”.

92. We accept that this is an appropriate case in which to make a gross sum costs order. The proceedings have already generated too many satellite disputes. Further disputes are likely to arise if costs are assessed. The amount of costs is relatively small and the costs involved in resolving any disputes concerning the assessment of those costs are likely to be disproportionately large. The Court has before it sufficient evidence to enable it to assess costs on a gross sum basis. That evidence was not challenged by the applicants. However, we are not satisfied that this is an appropriate case in which to award costs on an indemnity basis. We consider that a gross sum costs order should be made in the amount of $13,000 (including GST), which reflects costs on the ordinary basis.

93. We note that Price AJA also made a gross sum costs order in the amount of $10,000 (excluding GST), for the reasons set out in Lambourne 2 at [2], with which we respectfully agree.

94. Mr Cheshire submitted that the costs awarded in relation to the application before the Court should be paid out of the amount held in Court. We do not accept that submission. There is no reason to vary the orders made by Basten AJA. The respondents have other costs orders in their favour (see e.g. Lambourne v Baker (No 1)) which, as a result of the orders made by Basten AJA, will not be paid out of the monies held in Court. We see no reason to treat the present costs order and costs order made by Price AJA any differently from those.

95. As noted at [53] above, the applicants sought leave to have costs paid from the Suitors’ Fund. We decline to make that order. Section 6 of the Suitors’ Fund Act 195**1 (NSW) has no application to proceedings under s 46(4) of the Supreme Court Act as they are not an appeal for the purposes of that provision.

96. Finally, and for completeness, there is the question of the stay dated 3 February 2025, as ordered by McHugh JA. The dismissal of the motion filed 20 December 2024 means that stay is now lifted.

97. The Court Registry should proceed to make the payments out of the funds held in Court in compliance with order (5) dated 31 May 2024 made by Basten AJA.

Conclusion

98. For all these reasons, the Court makes the following orders:

99. The motion filed 20 December 2024 be dismissed.

100. The applicants pay the respondents’ costs of the motion filed 20 December 2024 in the gross sum of $13,000 (including GST).

101. Lift the stay made on 3 February 2025.

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