Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd

Land and Environment Court (NSW)|2013-09-17|Before: Pepper J, The J, Mr P

40062 of 2011 Mr P Clay SC with Mr M Bennett (Applicant) Mr T Howard (Respondent) 40578 of 2010 Hones La Hood Lawyers (Applicant) Whittens & McKeough (First, Second and Third Respondents)

40062 of 2011 Whittens & McKeough (Applicant) Hones La Hood Lawyers (Respondent) File Number(s): 40578 of 2010 and 40062 of 2011

The Council Seeks its Costs of the Proceedings and an Amendment Pursuant to the Slip Rule 1Before the Court was a notice of motion filed by Wollondilly Shire Council ("the council") on 17 July 2013 ("the amended notice of motion"). 2The amended notice of motion was consequent upon the facts as found and the orders made by the Court in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68.

Costs of the Proceedings 3In Wollondilly (No 5), at the parties' request, the costs were reserved in both the 2010 proceedings (40578 of 2010) and the 2011 proceedings (40062 of 2011). 4Presumably out of abundant caution, the council sought orders in its amended notice of motion that, consequent upon its victory in the Class 4 proceedings, the first, second and third respondents ("the Foxman entities") were to pay its costs of the 2010 proceedings and the applicant, Foxman Environmental Development Services Pty Ltd ("Foxman"), was to pay its costs in the 2011 proceedings. 5It is now accepted by the parties that these orders should be made. This submission is unassailable in light of the council's success in both sets of proceedings (see s 98 of the Civil Procedure Act 2005 ("CPA") and r 42.1 of the Uniform Civil Procedure Rules 2005 ("UCPR"), and accordingly, the Court makes those orders.

Application to Amend the Orders Pursuant to the Slip Rule 6The council also seeks an order in the 2010 proceedings that, pursuant to r 36.17 of the UCPR, within 90 days of the date of these orders, the third respondent to the 2010 proceedings, namely, Botany Building Recyclers Pty Ltd ("BBR"), remove, or procure the removal of, the waste fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010, and annexed to Wollondilly (No 5) at annexure 'A', and dispose of it at a waste facility or facilities licensed under the Protection of the Environment Operations Act 1997 ("the POEOA") to accept such waste. 7A relevantly equivalent order was made against the first respondent, Foxman, and the second respondent, Mr Phillip Foxman, in Wollondilly (No 5) in the 2010 proceedings (at 310). 8In summary, the council submits that because of a finding that, in addition to Mr Foxman and Foxman, BBR had contravened various provisions of the POEOA, it must have been the intention of the Court to, not recorded as a result of accidental error or omission, in effect, include BBR in order 3 (or an equivalent thereof) made against Mr Foxman and Foxman in Wollondilly (No 5). For the reasons elaborated upon below, I agree.

BBR Contravenes s 143 and Other Provisions of the POEOA 9It should be recalled from the facts contained in Wollondilly (No 5) that BBR operated a waste storage and processing facility at Banksmeadow known as 'the Banksmeadow Waste Facility'. Material, which was found in Wollondilly (No 5) to constitute waste for the purpose of the POEOA, and in particular s 143 of that Act, was transported from BBR's Banksmeadow Waste Facility to land owned by Foxman. Mr Foxman was the sole director of both BBR and Foxman. 10Section 143 of the POEOA makes it an offence for a person to transport waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported. 11There was no evidence before the Court that either Foxman or BBR themselves physically transported the material to the land. Rather, the evidence disclosed that a separate company, Foxy's Transport Pty Ltd ("Foxy's"), was the entity that, on Mr Foxman's instruction, transported the material from the Banksmeadow Waste Facility to the land (at [228]). 12Applying principles of corporate attribution, BBR was found to have contravened s 143 of POEOA by reason of the acts of Mr Foxman as the directing mind and will of BBR and Foxy's (at [231]-[241]). In particular, it was found that BBR, acting on instruction from Mr Foxman, deliberately and intentionally allowed the fill material to be taken from the Banksmeadow Waste Facility to the land in question for that land's use as a waste facility. BBR was therefore held to have caused the waste to be transported by Foxy's to the land in contravention of s 143 (at [238]). 13It was further held that BBR permitted the transportation of waste to the land. The Court found that it was inconceivable, given the unique position of authority Mr Foxman held over the affairs of BBR, Foxman and Foxy's, and in light of the instructions he had given to move the waste from the Banksmeadow Waste Facility to the land, that BBR did not know, or was not aware of, the transportation of the waste to the land at the relevant time (at [239]-[241]). 14In addition to having found that BBR had contravened s 143 of the POEOA, BBR was also held to have breached s 142A of the POEOA insofar as it polluted the land or permitted the land to be polluted (at [253]), and moreover, that it had caused or permitted water pollution contrary to s 120 of that Act (at [257]). No finding was made that BBR had contravened s 144 of the POEOA, because that provision only applies to the owner or occupier of land that is used as a waste facility, which BBR was not. 15Other significant and presently relevant findings in respect of BBR in the reasons for judgment included that: (a) equipment owned by BBR and operated by persons employed by BBR assisted in moving and handling the waste material upon it being deposited on the receiving land (at [253]); and (b) BBR wanted to divest itself of waste material from the Banksmeadow Waste Facility and that the 2009 consent provided it with the mechanism by which to effect this purpose. In other words, the Court accepted that the proper characterisation of the transportation of the material from the Banksmeadow Waste Facility to the land owned by Foxman was not because it was required by the Foxman entities for development pursuant to the 2009 consent, but in order to facilitate the disposal of waste from the Banksmeadow Waste Facility, and the land in question provided a suitable vehicle for doing so (at [206]-[207]).

The Relief Sought by the Council Against the Foxman Entities 16Pursuant to prayer for relief 4 of the Amended Summons filed in Court on 8 October 2010, the council sought an order against Mr Foxman and Foxman pursuant to s 124 of the Environmental Planning and Assessment Act 1979 ("the EPAA") that: ... within 90 days of the date of these orders, the Respondents remove, or procure the removal of, the fill material from the Land as identified in the survey prepared by Lean & Hayward dated 26 May 2010 annexed hereto and marked "A" (the "Lean & Hayward Survey") 17It was this prayer for relief that became order 3 in the judgment (at [310]). 18An almost identical order was sought in prayer 11 of the Amended Summons in respect of contraventions of the POEOA under s 252 of that Act: An order that, within 90 days of the date of these orders, the Respondents remove the Waste which has been deposited on the Land in the locations nominated as fill material in the Lean & Hayward Survey and dispose of the Waste at a waste facility or facilities licensed under the Protection of the Environment Operations Act to accept such waste. 19Order 3 of the Court's orders was made under the heading in the judgment "Relief Under s 124 of the EPAA". No equivalent order was made by the Court in respect of the relief sought under s 252 of the POEOA notwithstanding that it was sought by the council against the Foxman entities. The reasons for not doing so are explored below, but for the sake of clarity and completeness such an order should have been made. 20In any event whether such an order ought to have been made does not resolve the subject matter of the council's application, viz, whether or not the Court intended to make an order against BBR requiring it, together with Mr Foxman and Foxman, to remove the waste material in the time and manner specified in order 3. 21It is convenient to note at this juncture that it is not contended by the council that the Court intended to make an order against BBR by including it within the terms of order 3 as part of the grant of relief under s 124 of the EPAA. And nor could it. No finding was made by the Court that BBR had or was likely to breach the EPAA.

Legal Principles Governing the Application of the Slip Rule 22Pursuant to r 36.17 of the UCPR, the Court has the power to correct any error arising from an accidental slip or omission in a judgment or order ("the slip rule"). The rule provides that: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 23Traditionally, the authorities have described the rule as applying to the correction of clerical errors or accidental omissions or slips, that is to say, mistakes upon which no real difference of opinion can exist and upon which no further exercise of a court's discretion is required. It does not confer power to supplement or vary final orders by making substantive alterations to determine points that were not argued, considered or decided at the hearing. 24Thus in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 McHugh JA stated the following in relation to the slip rule and the jurisdiction of the Court to correct accidental slips or omissions (at 449E-G): The Courts of Common Law and the Court of Chancery had inherent power to correct any clerical mistake or error in a judgment or order if it was the result of an accidental slip or omission: Lawrie v Lees (1881) 7 App Cas 19 at 34-35. This power was an exception to the general principle that a party is bound by judgment or order once it has been drawn up unless he can set it aside: Kinch v Walcott [1929] AC 482. But although the principle of the slip rule is clear enough in conception, its application in practice has often proved difficult. The dividing line between a mistake or error which Is the result of an accidental slip or omission and a mistake or error which is the difficulty became much greater when it was decided that an error might be the result of an accidental slip or omission even though, because of the inadvertence of the party's legal representative, the point was not raised at the hearing of the action: cf L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595. 25In that decision his Honour further opined that the rationale of the slip rule as requiring (at 453E): ...that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist ... In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [1892] AC 547 (at 588) if the matter had been drawn to the court's attention would the correction at once have been made? 26But the scope of the slip rule was more recently considered by the Court of Appeal in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411. In particular, the common law rule was assessed in light of the promulgation of s 56 of the CPA, or 'the overriding purpose rule'. 27In Newmont Yandal the Court of Appeal observed that caution must be exercised in the application of case law from the past or from other jurisdictions when applying the slip rule in a modern context because of the enactment of s 56 (at [26]-[27]): 26. Accordingly, this Court, unlike other courts which have the traditional form of slip rule, is required to approach the task of interpreting the relevant words, including "error", "accidental slip or omission" and "correct", in such a manner as to give effect to the overriding purpose. Such an interpretive requirement may lead to different results in New South Wales when compared with the past or with other jurisdictions. 27. Similarly, the Court must seek to give effect to the overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to r 36.17. In each respect this constitutes a substantive difference, which requires the Court to treat prior case law and the case law from other jurisdictions with some care. 28In Newmont Yandal Spigelman CJ noted that what constitutes an 'error' that is suitable for correction under the slip rule remains somewhat elusive (at [23]): ... There is a substantial body of case law about whether or not a particular "slip or omission" was "accidental". There is a more limited body of case law on what constitutes an "error" and what is a permissible "correction". It is, of course, important that the Court apply the actual formulation in the rule. Many of the cases, for example those which state that a "deliberate" decision is not within the rule, can be understood as a way of expressing the proposition that the act or omission there relied upon was not "accidental". 29Hence if a judge "assesses the evidence wrongly or misconstrues or misappreciates the law, the resulting award or judgment will be erroneous but it cannot be corrected ... The remedy is to appeal" (Mutual Shipping Corp of New York v Bayshore Shipping Co of Monrovia [1985] 1 All ER 520 at 530 per Donaldson MR, quoted in George v Webb [2012] NSWSC 86 per Ward J at [23]). 30But after reviewing the authorities, the Court of Appeal in Newmont Yandal held that by reason of the insertion of the overriding purpose rule into the CPA, the slip rule may be applied to carry into effect the actual intention of the judge making the order to ensure that the order does not have a consequence which the judge clearly intended to avoid (at [116]). As a result, orders may be corrected under this rule to avoid or ameliorate "an unforeseen and unintended legal consequence" (at [58] and [60]). 31The relevant intention is the objective intention of the decision-maker at the time the original orders were made (George v Webb [2012] NSWSC 86 per Ward J at [26] and El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2013] NSWLEC 25 at [12]).

The Orders Must be Amended 32There can be no doubt that the council sought the relief it now seeks against BBR in the proceedings. This is evident from the relief it claimed in the Amended Summons and in the written submissions it filed both before and during the proceedings, and by its conduct at the hearing. 33In the judgment the Court stated the following in respect of the council's entitlement to relief pursuant to s 252 of the POEOA against the Foxman entities, including BBR (at [258], emphasis added): 258. The council has proved the breaches alleged by it against the Foxman entities under the POEOA. It follows that the council is entitled to relief pursuant to s 252 of the POEOA. These breaches include both past breaches and, to the extent that the waste remains on the land, continuing breaches. The nature and scope of the relief sought is discussed below. 34Having regard to the findings made by the Court in respect of BBR's liability for contraventions of the POEOA, especially s 143 of that Act, and the reasons for those findings, the implicit but nevertheless discernible objective intention of the Court was to grant the relief sought by the council consequent upon those breaches of that Act and make the orders sought pursuant to s 252 of the POEOA, including an order to the effect of order 3 against BBR. That it did not do so was due to inadvertence. 35To the extent that the Foxman entities submitted that the moment that the Court accepted that it was a matter of controversy as to whether the amendment should be made it was not a suitable exercise of the discretion contained in the slip rule, this contention must be rejected. The submission is akin to arguing, in this instance at least, that because the application is opposed there can be no room for the application of the slip rule. Plainly this is incorrect. 36The orders are therefore amenable to variation by application of r 36.17 of the UCPR. Not only is such an amendment necessary to avoid the unintended consequence of BBR avoiding the relief sought by the council against it and to which the council was entitled, there can be no doubt that had the matter been drawn to the Court's attention at the time the orders were made, the correction would have been immediate. 37Although not necessary to articulate a reason for the omission, having regard to the relief sought in the Amended Summons and the structure of the orders made in the judgment, it may be inferred that the error arose from a desire by the Court not to duplicate order 3 by making an order in the same terms in the grant of relief under s 252 of the POEOA. In seeking to avoid the repetition, the Court has inadvertently overlooked making an equivalent to order 3 in respect of BBR.

Costs of This Application 38The council, having enjoyed unqualified success in prosecuting its amended notice of motion, sought an order that the Foxman entities pay its costs of the application. There is no reason why the Court should not accede to the making of such an order.

Orders 39In conformity with the reasons above, the Court orders that: (1)in proceedings no 40578 of 2010, the first, second and third respondents are to pay the applicant's costs of the proceedings up to and including 22 May 2013; (2) in proceedings no 40062 of 2011 the applicant is to pay the respondent's costs of the proceedings up to and including 22 May 2013; (3) pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 the orders made in Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Services Pty Ltd v Wollondilly Shire [2013] NSWLEC 68 are amended by adding after order 8 the following order: (8A) an order that, within 90 days from 18 September 2013, the third respondent removes, or procures the removal of, the waste fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A', and disposes of the waste fill material at a facility or facilities licensed under the POEOA to accept such waste. (4) the first, second and third respondents in proceedings no 40578 of 2010 are to pay the applicant's costs of, and incidental to, the applicant's amended notice of motion. Annexure A

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2013

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