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

[2008] WASCA 258

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)


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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

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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.