Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lambourne v Baker [2024] NSWCA 280 Hearing dates: 18 November 2024; 25 November 2024 Date of orders: 25 November 2024 Decision date: 25 November 2024 Before: Price AJA Decision: (1) Notices of motion 11 and 12 are dismissed. Catchwords: JUDGMENTS AND ORDERS – application to set aside orders under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – the slip rule – no basis established to set aside orders Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Johnston v The Greens NSW (No 2) [2021] NSWCA 291 Lambourne v Baker (No 2) [2021] NSWCA 282 Lambourne v Baker (No 5) [2024] NSWCA 241 Lambourne v Baker (No 4) [2024] NSWCA 132 Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR 24; [1986] HCA 40 Category: Consequential orders Parties: Marc Alan Lambourne (First Plaintiff) Glenn Craig Pollett (Second Plaintiff) Punters Show Pty Ltd (Third Plaintiff) Dallas Matthew Baker (First Defendant) Todd Cameron Buckingham (Second Defendant) BetMakers Technology Group Limited (Third Defendant) 12Follow Pty Ltd (Fourth Defendant) Operis Momentus Pty Ltd (Fifth Defendant) Representation: Counsel: A Cheshire SC (Defendants) Solicitors: M Lambourne (First Plaintiff, Second Plaintiff, Third Plaintiff) (Self represented) Vintage Law (Defendants) File Number(s): 2019/00407870 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Court of Appeal Citation: [2024] NSWCA 132 [2024] NSWCA 241 Date of Decision: 31 May 2024 11 October 2024 Before: Basten AJA Ward P, Mitchelmore and Kirk JJA File Number(s): 2019/00407870 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Ex Tempore JUDGMENT 1. This morning, I granted leave to Mr Marc Alan Lambourne to appear on behalf of Mr Glenn Pollett and Punters Show Pty Ltd. For convenience, I will refer to them as the plaintiffs as that is how they are referred to in the notices of motion. The plaintiffs have filed three notices of motion. They will be referred to by the proceeding numbers that they bear. Proceeding number 9 was filed on 30 October 2024. The plaintiffs have informed me that they are not proceeding with that motion and that motion has been formally dismissed. Notices of motion 11 and 12 were filed on 13 November 2024. 2. The defendants to notice of motion 11, Dallas Baker, Todd Cameron Buckingham, BetMakers Technology Group Ltd, 12Follow Pty Ltd and Operis Momentus Group Pty Ltd, are also defendants in notice of motion 12. In notice of motion 12, the principal registrar of the Supreme Court, the prothonotary of the Supreme Court, the registrar of the Court of Appeal and the defendants' solicitor have been joined as defendants. When the notices of motion were before me on 18 November, I informed the plaintiffs that notice of motion 12 was improperly commenced against the principal registrar, the prothonotary, the registrar, and the defendant's solicitor. They were not parties to any of the proceedings which are the subject of notices of motion 11 and 12. 3. The plaintiffs' initial submission on 18 November was that the Court should, before dealing with notice of motion 11, make an order in the terms of paragraph 5 in notice of motion 12 which is as follows: "That the First and Second Defendants do all necessary to execute order 5(b) made by this Court on 31 May 2024 in Lambourne v Baker (No 4), namely: "5(b) payment of the balance to the third appellant, (Punters Show Pty Ltd)." by paying to the credit of Punters Show Pty Ltd the funds held in court over and above the sum of $186,214.86". 1. In Lambourne v Baker (No 4) [2024] NSWCA 132 ("Lambourne (No 4)"), the orders made by Basten AJA included the following: "(5) Order that the sum of $210,249.00 paid into Court on 21 March 2022, together with such interest as may have accrued on that sum, be disbursed as follows: (a) payment of $186,214.86 to the respondents; and (b) payment of the balance to the third appellant (Punters Show Pty Ltd)." 1. The plaintiffs submit that there is no reason why the Court should not comply forthwith, with its own order made on 31 May 2024 and release the funds held in court, except the sum of $186,214.86, to Punters Show. In other words, the plaintiffs seek compliance with the Court's orders made in their favour, but not the payment of the moneys ordered by the Court in favour of the defendants. The plaintiffs contend that the outcome of notice of motion 11 cannot have a bearing upon compliance with order 5(b). 2. The orders made by Basten AJA in Lambourne (No 4), including order number 5, were challenged by the plaintiffs when they sought a review to the Court of Appeal. In Lambourne v Baker (No 5) [2024] NSWCA 241 ("Lambourne (No 5)"), the Court of Appeal constituted by Ward P, Mitchelmore JA and Kirk JA on 11 October 2024 dismissed the plaintiffs' notice of motion with costs. 3. In notice of motion 11 the plaintiffs ask that; "This Honourable Court reconsider its Reasons and orders dated 11 October 2024 in relation to the following matters, facts and circumstances:" 1. The matters, facts and circumstances are set out in paragraphs 1(a) to 1(v) that follow. 2. In short, the plaintiffs are asking the Court of Appeal to reconsider the orders it made dismissing the plaintiffs' application for review of Basten AJA's orders, including order 5(b). 3. The orders sought by the plaintiffs in notice of motion 11 go further back into the litigation between the parties than Lambourne (No 5), as in paragraph 2, the plaintiffs seek an order setting aside order 3A made on 19 November 2021. 4. The plaintiffs by this order are seeking to set aside costs order 3A made on 19 November 2021 in Lambourne v Baker (No 2) [2021] NSWCA 282 ("Lambourne (No 2)"). In that case, the Court of Appeal was constituted by Basten JA, Gleeson JA and Emmett AJA. Relevantly, order 3 was in the following terms: "(3) Set aside order 3A made on 24 September 2021 and in place thereof make the following orders: 3A (1) Order that the appellants pay 65% of the respondents' costs of the appeal; (2) Remit the question of costs of the proceedings in the Equity Division to the Equity Division." 1. The plaintiffs were the appellants in Lambourne (No 2) and the defendants were the respondents. 2. In Lambourne (No 5) at [11]-[44], Ward P detailed the extensive procedural history of proceedings between the parties. 3. The reasons why I do not propose to make an order in the terms of paragraph 5 of notice of motion 12 is that I have before me both notices of motion 11 and 12 in which the plaintiffs seek that the Court of Appeal reconsiders its orders in Lambourne (No 5) and order 3A in Lambourne (No 2); all of the proceedings between the parties are interrelated and it would be unjust to the defendants to make the order which the plaintiffs seek in their favour in isolation. In notice of motion 11, another order that the plaintiffs seek, in paragraph 7, is in effect that the sum of $186,214.86 in order 5(a) in Lambourne (No 4) not be released to the defendants. 4. I turn to notice of motion 11. The plaintiffs ask this Court to reconsider the reasons and orders made in Lambourne (No 5) on the facts and circumstances in 1(a) to 1(v). The plaintiffs found their application on the slip rule, r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), s 23 of the Supreme Court Act 1970 (NSW) and s 56 of the Civil Procedure Act 2005 (NSW). 5. In written submissions, the plaintiff submitted that the grounds in the notice of motion were self‑evident and did not need any further explanation. 6. The defendants' senior counsel submitted that none of the matters identified in the plaintiffs' notice of motion 11 can be characterised as being within the scope of the r 36.17 of the UCPR. Senior counsel submitted that no clerical mistake or an error arising from an accidental slip or omission in a judgment or order has been identified. 7. In further written submissions, the plaintiffs submitted that the defendants' senior counsel has not explained why each of the grounds of the motion did not fall within the slip rule principle as explained in the authorities which state that the field is not closed. 8. The principles relating to the slip rule, which is embodied in r 36.17 of the UCPR are well established. In Johnston v The Greens NSW (No 2) [2021] NSWCA 291, the Court, Meagher and Brereton JJA, said at [6]: "Rule 36.17, the slip rule, applies where 'there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order'. The slip rule may overlap with the Court's inherent power to correct an earlier order so as to truly represent 'what the Court has pronounced or had intended to pronounce', but that inherent power is not, and could not be, separately relied on. The phrase 'accidental slip or omission' is not entirely free from difficulty (see Newmont Yandal Operations Pty Ltd v J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 at [111] per Spigelman CJ), but on any view it does not extend to mistaken or allegedly mistaken conclusions reached deliberately in resolving issues that were the subject of argument. None of the alleged mistakes are 'clerical'". 1. It is plain from the reading of the judgment of Ward P (with whom Mitchelmore and Kirk JJA agreed) that careful consideration was given to the arguments advanced by the parties, and detailed reasons were provided for the conclusions reached. There is nothing to suggest that any of the orders made were clerical mistakes. 2. The slip rule is not an alternative method of advancing grounds of appeal. 3. A number of matters advanced by the plaintiffs complain that the Court of Appeal failed to consider their submissions and arguments. This is a ground of appeal based on authorities such as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40. 4. Other paragraphs complain about the failure of the Court of Appeal to provide the plaintiffs with the opportunity to make submissions. These are complaints of a denial of procedural fairness which would be grounds of appeal. Other paragraphs complain of mistaken determinations by the Court. These are complaints of errors of law. 5. The true nature of the plaintiffs' complaint is embodied in paragraph 22 of the plaintiffs' written submissions. "The Court with the greatest of respect, failed to address the relevant principles and the plaintiffs' submissions about the inadequacy of his Honour Basten AJA's Reasons dated 31 May 2024: (a) the Court ignored the plaintiff's submissions that part of the reasons would be bringing the administration of justice into disrepute; (b) failure to disclose judicial reasoning, see Lichaa v Boutros [2021] NSWCA 322 at [48]-[50]. (c) Williams v Harrison [2021] NSWSC 1488, where a self‑represented plaintiff was denied procedural fairness because he was not heard when he had a right to be heard and, as well, the magistrate failed to give reasons when obliged to do so: at [28]." 1. The complaints in paragraph 22 are all grounds of appeal and not assertions of a clerical slip. It is true that the scope of the slip rule is not closed, however, it does not extend to grounds of appeal. The plaintiffs have a right to seek leave to appeal to the High Court of Australia. I do not propose to make the order sought in paragraph 1(a) to 1(v) of notice of motion 11. 2. As to the order sought in paragraph 2, the plaintiffs seek to set aside under the slip rule cost order 3A made in Lambourne v Baker (No 2). In those proceedings, a joint judgment was delivered by the Court. The Court of Appeal gave reasons for its decision and there is no reason to suspect that order 3A was a clerical mistake under the slip rule. I do not propose to make the orders sought. 3. When the proceedings were before me on 18 November, I informed the plaintiffs that I would not make the order sought in paragraph 10 in notice of motion 12; that the proceedings be referred for hearing by a Court presided by the Chief Justice. Our system of justice, as I have emphasised, does not permit parties to proceedings to select a judge who will hear their case. The notices of motion have been allocated to me as a referrals judge. Orders 1. Accordingly, I make the following orders: 1. Notices of motion 11 and 12 are dismissed. ********** 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: 26 November 2024