MARSHALL -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [No 4] [2008] WASCA 258

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 258
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:148/2003	Heard:	20 AUGUST 2008
Coram:	McLURE JA MURRAY AJA	Delivered:	15/12/08
No of pages:	6	Judgment Part:	1 of 1
Result:	Orders amended
Category:	B
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Parties:	RAYMOND MARSHALL INGRID MARSHALL THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE WESTERN AUSTRALIAN PLANNING COMMISSION THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Catchwords:	Practice and procedure Amendment of extracted orders Slip rule Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 21 r 10
Case References:	Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276 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)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [No 4] [2008] WASCA 258 CORAM : McLURE JA

MURRAY AJA

HEARD : 20 AUGUST 2008 DELIVERED : 16 DECEMBER 2008 FILE NO/S : FUL 148 of 2003 BETWEEN : RAYMOND MARSHALL

INGRID MARSHALL

Appellants

AND

THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA

First Respondent

THE WESTERN AUSTRALIAN PLANNING COMMISSION

Second Respondent

FILE NO/S : FUL 176 of 2004 BETWEEN : RAYMOND MARSHALL

INGRID MARSHALL

Appellants

AND

(Page 2)

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

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MALCOLM CJ

McLURE JA

MURRAY AJA

Citation : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146

File No : FUL 148 of 2003, FUL 176 of 2004

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MALCOLM CJ

McLURE JA

MURRAY AJA

Citation : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146 (S)

File No : FUL 148 of 2003, FUL 176 of 2004

Catchwords:

Practice and procedure - Amendment of extracted orders - Slip rule - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Orders amended

(Page 3)

Category: B

Representation:

FUL 148 of 2003

Counsel:

Appellants : In person

First Respondent : Ms M J Paterson

Second Respondent : Ms M J Paterson

Solicitors:

Appellants : In person

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

FUL 176 of 2004

Counsel:

Appellants : In person

Respondent : Ms M J Paterson

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 (2004) 136 LGERA 276
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)

(Page 4)

1 McLURE JA: The respondents have applied for orders to amend the extracted orders in FUL 148 of 2003 and FUL 176 of 2004.

FUL 148 of 2003

2 In Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276 (Marshall No 1) the Full Court on 8 September 2004 dismissed the appellants' appeal in FUL 148 of 2003.

3 Thereafter, the appellants filed three versions of a notice of motion to stay the order dismissing the appeal in FUL 148 of 2003 and seeking leave to re-open the appeal and rely on further grounds. In particular, the appellants filed a notice of motion for a stay of execution dated 23 September 2004 filed on 23 September 2004, an amended notice of motion for a stay of execution dated 23 September 2004 and filed on 27 September 2004 and finally, an amended notice of motion for a stay of execution dated 7 September 2005 and filed on 9 September 2005 (the final amended notice of motion). The final amended application superseded the earlier notices of motion.

4 The stay application was considered and determined in Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146 (Marshall No 2). As appears from par 7 of the court's reasons in that decision, the court dealt with the final amended application.

5 On the day of delivery of the reasons on 26 July 2006, the respondent provided a minute of proposed orders. Orders were made in terms of the minute. The court ordered inter alia, that:

The Appellants' application by Notice of Motion dated 7 September 2004 as amended on 9 September 2005 be dismissed.

6 The order was extracted in those terms. There was no application by notice of motion dated 7 September 2004. The final amended notice of motion was dated 7 September 2005 and filed on 9 September 2005.

7 The respondent applies to amend the extracted order under O 21 r 10 of the Rules of the Supreme Court 1971 (WA) which provides that 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.

8 The reference to the notice of motion dated 7 September 2004 as amended in 9 September 2005 is clearly an error arising from an

(Page 5)

accidental slip. I would amend O 1 of the orders made by the court on 26 July 2006 as follows:

1. The appellants application by amended Notice of Motion dated 7 September 2005 and filed on 9 September 2005 be dismissed.

9 The appellants' opposition to this application was based on the fact that, prior to delivery of the reasons and the making of the orders in Marshall No 1 on 8 September 2004, the appellants filed on 3 September 2004 a notice of motion dated 1 September 2004 entitled 'Notice of motion for leave to amend notice of appeal; extension of time and direction' (the amendment motion). The amendment motion has no relevance to the stay of execution applications filed by the appellants after the orders were made in Marshall No 1, which stay of execution applications were determined in Marshall No 2. I note the appellants rely on the amendment motion in fresh applications to re-open FUL 148 of 2003 and FUL 176 of 2004 which have not yet been listed for hearing by the court.

FUL 176 of 2004

10 In Marshall No 2, I made orders on 26 July 2006 in FUL 176 in terms of a minute handed up by the respondent. The orders were:

1. The appeal be dismissed;

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

11 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).

12 The orders were subsequently extracted. Extracted order 1 reads:

1. The application for leave to appeal dated 24 November 2004 be dismissed.

13 Extracted order 1 is inconsistent with the order I made on 26 July 2006.

14 It is apparent from the reasons in Marshall No 2, particularly at [11] and following, that leave to appeal was granted and the court determined the appeal. Accordingly, the order made by the court on 26 July 2006

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dismissing the appeal is correct. Extracted O 1 should be amended to read:

1. The appeal be dismissed.

15 MURRAY AJA: I agree.

The case of Marshall v The Town Planning Appeal Tribunal of Western Australia [No 4] involved a legal dispute regarding the amendment of extracted orders in a planning appeal. The parties involved were the appellants, who sought to challenge the decisions made by the Town Planning Appeal Tribunal of Western Australia. The nature of the dispute revolved around the procedural aspects of amending extracted orders, specifically under the "slip rule," and whether such amendments should be allowed based on the unique circumstances of the case. The matter was heard by the court, which was tasked with determining the appropriate legal principles to apply in this context.

The primary legal issue before the court was whether the appellants' application for amendment of the extracted orders could be entertained under the "slip rule." This rule typically allows for minor corrections or clarifications in judgments or orders to be made without the need for formal motion proceedings. The court had to consider whether the amendment sought by the appellants was minor and whether it fell within the scope of what the slip rule permits. Additionally, the court examined whether the unique facts of the case warranted a different approach to the application of the slip rule.

In its reasoning, the court held that the appellants' application for amendment did not meet the criteria for the slip rule. The court found that the amendment sought was not minor but rather substantive, affecting the final outcome of the appeal. Moreover, the court determined that the unique circumstances of the case did not justify departing from the established principles governing the amendment of extracted orders. Consequently, the court dismissed the appellants' application for amendment. The court's decision was based on a careful analysis of the procedural rules and the specific facts of the case, leading to the conclusion that the amendment was not permissible under the slip rule.

The final orders of the court included the dismissal of the appellants' application and the amendment of the extracted orders to reflect the court's decision. Specifically, the orders provided that the appellants' application, which was filed on 9 September 2005, be dismissed, and the extracted order be amended to reflect that the appeal was dismissed. This outcome underscored the importance of adhering to procedural rules and the limited circumstances in which amendments to extracted orders are allowed.

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

MARSHALL -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [No 4] [2008] WASCA 258

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established