Mandurah Enterprises Pty Ltd v Western Australian Planning Commission
[2008] WASCA 211 (S)
MANDURAH ENTERPRISES PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASCA 211 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 211 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:39/2007 | 10-11 JUNE 2008 & 6 FEBRUARY 2009 | |
| Coram: | McLURE JA BUSS JA MURRAY AJA | 17/10/08 | |
| 19/02/09 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed with costs | ||
| B | |||
| PDF Version |
| Parties: | MANDURAH ENTERPRISES PTY LTD (ACN 008 722 638) NEIL ROBERT GRAHAM VALMAI EVELYN GRAHAM WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Application to vary costs order Slip rule Whether omission accidental Whether court has inherent jurisdiction to vary order Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 21 r 10, O 43 Supreme Court (Court of Appeal) Rules 2005 (WA), r 63 |
Case References: | Burrell v The Queen (2008) 82 ALJR 1221 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 The State of Western Australia v Wallam [2008] WASCA 117 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANDURAH ENTERPRISES PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASCA 211 (S) CORAM : McLURE JA
- BUSS JA
MURRAY AJA
DECISION : 20 FEBRUARY 2009 FILE NO/S : CACV 39 of 2007 BETWEEN : MANDURAH ENTERPRISES PTY LTD (ACN 008 722 638)
- First Appellant
NEIL ROBERT GRAHAM
VALMAI EVELYN GRAHAM
Second Appellants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : MANDURAH ENTERPRISES PTY LTD & ORS -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASC 43
File No : CIV 1037 of 2006
Catchwords:
Practice and procedure - Application to vary costs order - Slip rule - Whether omission accidental - Whether court has inherent jurisdiction to vary order - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 21 r 10, O 43
Supreme Court (Court of Appeal) Rules 2005 (WA), r 63
Result:
Application dismissed with costs
Category: B
Representation:
Counsel:
First Appellant : Mr R I Viner QC & Ms L E Rowley
Second Appellants : Mr R I Viner QC & Ms L E Rowley
Respondent : Mr R M Mitchell SC & Mr E M Heenan
Solicitors:
First Appellant : Deacons
Second Appellants : Deacons
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Burrell v The Queen (2008) 82 ALJR 1221
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
The State of Western Australia v Wallam [2008] WASCA 117 (S)
(Page 4)
1 McLURE JA: The appellants applied to vary the costs order made by the court on 17 October 2008 in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211. At the hearing of the application on 6 February 2009 the court dismissed the application with costs. These are my reasons for joining in those orders.
2 The parties were provided with an advance copy of the judgment in the appeal which was delivered on 17 October 2008. After hearing from the parties, the court made the following orders:
(1) The appeal be dismissed, save in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme.
(2) The notice of contention be dismissed.
(3) Order 1 of the order of Le Miere J made on 23 February 2007 be set aside so far as it dismisses the appellant's application for declaratory and other relief in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme.
(4) The application for declaratory and other relief in relation to that portion of Lot 30 on Diagram 74229 zoned 'Industrial' under the Peel Region Scheme be remitted to the trial judge for determination according to law and in accordance with these reasons.
(5) Each party bear their own costs of the appeal.
3 On 13 November 2008 the orders were entered in accordance with O 43 of the Rules of the Supreme Court 1971 (WA) (Rules) which applies to the Court of Appeal (r 63 of the Supreme Court (Court of Appeal) Rules 2005 (WA)).
4 The appellants seek to vary order 5 by adding that each party also bear the costs of the proceedings at first instance. The proposed variation is inconsistent with order 2 made by the primary judge on 23 February 2007. Order 2 is in terms that the plaintiffs (appellants) pay the defendant's (respondent's) costs of the application to be taxed. Order 3 of the orders made by the Court of Appeal on 17 October 2008 (setting aside order 1 but not order 2 made by the primary judge) was made by consent. Order 2 made by the primary judge would have to be set aside before making the variation sought by the appellants.
(Page 5)
5 At the hearing on 17 October 2008 the appellants did not seek an order that the costs order made by the primary judge be set aside nor did it seek an order that each party bear their own costs of the proceedings at first instance. It is apparent from the transcript of the hearing on 17 October 2008 that the extracted orders reflect the objectively determined intention of the coram. There was no objectively determined or subjective intention of the coram to order that each party bear their own costs of the proceedings at first instance.
6 The appellants contended that this court had jurisdiction to vary the costs order under O 21 r 10 of the Rules, known as the slip rule, or in the inherent jurisdiction of the court. Order 21 r 10 provides:
Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.
7 There was no mistake or accidental slip or omission by the court or its officers. The accidental slip or omission, if there be one, is that of the appellants' legal advisers. The slip rule also applies to mistakes or errors by a party's legal representative: L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590, 594.
8 In Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, the New South Wales Court of Appeal construed the New South Wales equivalent of O 21 r 10 which is in materially the same terms. The court held that an omission or mistake should not be treated as accidental if the proposed correction requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist; it should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once. I see no justification for taking a different approach to the construction of O 21 r 10 of the Rules.
9 Applying the test in Storey, the variation proposed by the appellants cannot be characterised as accidental. The facts and discretionary considerations relating to the appropriate costs order in the appeal in which there was an unsuccessful notice of contention are not the same as those relating to the costs of the proceedings at first instance. If the application in relation to the costs below had been made at the appropriate time, it cannot be said it would clearly have been made if asked for. The merits of the application are neither obvious nor compelling. Accordingly, the slip rule has no application.
(Page 6)
10 The appellants also rely on the inherent jurisdiction of this court to vary an order to avoid injustice, relying on Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 and Monaco v Arnedo Pty Ltd (1994) 13 WAR 522. This court in The State of Western Australia v Wallam [2008] WASCA 117 (S) was required to determine the question of its jurisdiction as an intermediate appellate court to reopen or reconsider a formally recorded order. Applying a long line of High Court authority culminating in Burrell v The Queen (2008) 82 ALJR 1221, the court in Wallam concluded that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions, this court does not have jurisdiction to reopen or reconsider an extracted order. The slip rule is one of the narrow exceptions. The appellants were unable to point to any other provision of the Rules or Supreme Court Act 1935 (WA) which would enable this court to make the variation order.
11 This court having no jurisdiction to make the order, it is unnecessary to determine whether the limitations applying to an intermediate Court of Appeal also apply to a final order made at first instance or whether the effect of the orders made in the appeal is that the costs order made by the primary judge is not final.
12 BUSS JA: For the reasons expressed by McLure JA, I joined in the orders made by the court on 6 February 2009.
13 MURRAY AJA: I agree with McLure JA.
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