Marshall v MacTiernan

[2010] WASCA 194

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MARSHALL -v- MACTIERNAN [2010] WASCA 194

CORAM:   McLURE P

MURRAY J

HEARD:   29 JULY 2010

DELIVERED          :   15 OCTOBER 2010

FILE NO/S:   FUL 176 of 2004

BETWEEN:   RAYMOND MARSHALL

INGRID MARSHALL
Appellants

AND

THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Respondent

Catchwords:

Costs - Application under O 21 r 10 of the Rules of The Supreme Court 1971 (WA) to amend costs order - Turns on own facts

Legislation:

Nil

Result:

Costs order amended

Category:    B

Representation:

Counsel:

Appellants:     In person

Respondent:     Ms R Young

Solicitors:

Appellants:     In person

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146

Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146(S)

Marshall v The Town Planning Appeal Tribunal of Western Australia [No 4] [2008] WASCA 258

1. McLURE P: The respondent seeks to amend a costs order under O 21 r 10 of the Rules of the Supreme Court 1971 (WA) (the Rules). The background to the matter is as follows.

2. On 26 July 2006 in Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146, orders were made in FUL 176 of 2004, Marshall v The Honourable Alannah Mactiernan, MLA Minister for Planning and Infrastructure in the following terms:

   1.The appeal be dismissed;

   2.The appellants pay the respondent's costs of the appeal, including reserved costs.

3. I later recalled the costs order to give the appellants the opportunity to file written submissions on costs for determination by the coram.  The costs were dealt with in Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146(S). On 18 October 2006 the court ordered that the appellants pay the respondent's costs of the appeal, including reserved costs, to be taxed.

4. On 4 October 2007, the orders made by the court on 26 July 2006 and 18 October 2006 were extracted in terms inconsistent with the pronounced orders.  The extracted orders were in the following terms:

   1.The application for leave to appeal dated 24 November 2004 be dismissed (extracted order 1).

   2.The appellants pay the respondent's costs of the application, including reserved costs, to be taxed (extracted order 2).

5. The correct orders should have been that the appeal be dismissed and the appellants pay the respondent's costs of the appeal, including reserved costs, to be taxed.  The error came to light on taxation.  The appellants did not consent to an amendment of the extracted orders to reflect the pronounced orders.

6. By application dated 25 June 2008, the respondent applied to amend the extracted orders to reflect the orders pronounced by the court, being that:

   1.The appeal be dismissed.

   2.The appellants pay the respondent's costs of the appeal including reserved costs.

1. The court heard the respondent's application and delivered judgment on 16 December 2008 in Marshall v The Town Planning Appeal Tribunal of Western Australia [No 4] [2008] WASCA 258. The court found that extracted order 1 was inconsistent with the order made on 26 July 2006 and amended the extracted order to read 'The appeal be dismissed'. However, the court omitted to make any determination in relation to the respondent's application to amend extracted order 2.

2. The court has power to amend extracted order 2 under O 21 r 10 of the Rules which provides that clerical mistakes in 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.

3. The court's failure to consider the respondent's application in relation to extracted order 2 was an accidental omission which must be rectified.  The necessary consequence of the amendment to extracted order 1 is that extracted order 2 be amended to read:

   2.The appellants pay the respondent's costs of the appeal, including reserved costs, to be taxed.

4. I would make an amended order in those terms.

5. MURRAY J:  I agree with McLure P.