Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146

Land and Environment Court New South Wales

Medium Neutral Citation: Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146 Hearing dates: 28 June 2012 Decision date: 02 July 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Amendment of orders pursuant to the 'slip rule. Order made permitting inspection of land to give effect to earlier orders of the Court. Catchwords: PRACTICE AND PROCEDURE - typographical errors in orders - application to amend orders pursuant to 'slip rule' - orders amended - application for order to inspect land - basis of power to order inspection - inspection ordered to give effect to earlier orders. Legislation Cited: Protection of the Environment Operations Act 1997, ss 96, 97 Uniform Civil Procedure Rules 2005 rr 2.1, 23.8, 36.11, 36.17 Cases Cited: Bobolas v Waverley Council [2012] NSWCA 126 Eurobodalla Shire Council v Gerondal (No 2) [2012] NSWLEC 37 Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Pittwater Council v Brown Brothers Waste Contractors Pty Limited [2009] NSWLEC 50 Category: Procedural and other rulings Parties: Eurobodalla Shire Council (Applicant) Mrs Monica Gerondal (Respondent) Representation: Mr P Larkin SC (Applicant) Mrs M Gerondal (in person) (Respondent) Sparke Helmore Lawyers (Applicant) N/A (Respondent) File Number(s): 40661 of 2011

Judgment

Typographical Errors are Discovered in a Judgment of the Court 1On 15 March 2012 Biscoe J delivered judgment in the decision of Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46. As the summons indicates, Eurobodalla Shire Council ("the council") commenced those civil enforcement proceedings, in Class 4 of the Court's jurisdiction, seeking a declaration that Mrs Monica Gerondal had infringed s 97 of the Protection of the Environment Operations Act 1997 by failing to comply with a Prevention Notice in respect of land owned by her issued under s 96 of that Act by a Commissioner of the Court. Injunctive relief was also sought to enforce the terms of the Prevention Notice. In addition, "given the history of defiance and default by Mrs Gerondal" (at [1]), orders were sought authorising the council to enter onto the land to effect compliance with the Prevention Notice at Mrs Gerondal's cost. 2A history of the proceedings prior to the hearing before Biscoe J is set out in his Honour's judgment at [2]-[14]. 3Mrs Gerondal participated in the hearing before Biscoe J. She was ultimately unsuccessful in resisting the relief sought by the council. His Honour therefore made the following orders (at [35]) (emphasis added): The orders of the Court are as follows: 1. Declaration that the respondent has breached the Protection of the Environment Operations Act 1987 ("POEO Act") by failing to comply with the prevention notice issued under s 96 of that Act by the applicant on 13 July 2009 and amended by the Land and Environment Court on 31 August 2010 ("the Prevention Notice"). 2. Order that the respondent: A by herself, her servants and agents, be restrained from transporting waste to the premises known as Lot 1 DP 806104 at 19 Munjeroo Lane, Bingie ("the Property"); and B complete, whether by herself or by servants, agents or contractors, the following works within 3 months from the date of this order: (a) Remove from the Property the items referred to in paragraph 3 of the affidavit of Nathan Ladmore of 11 August 2011 filed herein and shown in the photographs referred to in paragraph 3 and all other items which constitute "waste" within the meaning of the POEO Act but not including the ride - on lawnmower, two caravans, bricks, pavers, the boat shown in photographs B12 and B13 annexed to the said affidavit, the spherical barbeque on a stand shown in photograph B6 annexed to the said affidavit, and the tractor shown in photograph B5 annexed to the said affidavit provided that it is demonstrated to the satisfaction of the applicant that the tractor is in working condition. (b) The items removed from the Property under this order (whether or not they are sold) are only to be removed to a place which can lawfully accept such waste material. 3. Order that if the respondent does not completely comply with Order 2B above within 3 months from the date of the order, that the applicant by itself, its employees, agents or contractors, be entitled to enter the Property and carry out the works referred to in Order 2B within 6 months from the date of this order. 4. Order that if the applicant carries out works pursuant to Order 3, the respondent pay the applicant's reasonable costs thereof as agreed or assessed. 5. Order that the respondent pay the applicant's costs of these proceedings as agreed or assessed. 6, Liberty to apply on three days' notice. 4On 30 March 2012 the following orders made by the Court on 15 March 2012, were entered ("the orders") (emphasis added): 1 Declaration that the respondent has breached the Protection of the Environment Operations Act 1987 ("POEO Act") by failing to comply with the prevention notice issued under s 96 of that Act by the applicant on 13 July 2009 and amended by the Land and Environment Court on 31 August 2010 ("the Prevention Notice"). 2 Order that the respondent: A by herself, her servants and agents, be restrained from transporting waste to the premises known as Lot 1 DP 806104 at 19 Munjeroo Land, Bingie ("the Property"); and B complete, whether by herself or by servants, agents or contractors, the following works within 3 months from the date of this order: (a) Remove from the Property the items referred to in paragraph 3 of the affidavit of Nathan Ladmore of 11 August 2011 filed herein and shown in photographs referred to in paragraph 3 and all other items which constitute "waste" within the meaning of the POEO Act but not including the ride-on lawnmower, two caravans, bricks, pavers, the boat shown in photographs B12 and B13 annexed to the said affidavit, the spherical barbeque on a stand shown in photograph B6 annexed to the said affidavit, and the tractor shown in photograph B5 annexed to the said affidavit provided that it is demonstrated to the satisfaction of the applicant that the tractor is in working condition. (b) The items removed from the Property under this order (whether or not they are sold) are only to be removed to a place which can lawfully accept such waste material. 3 Order that if the respondent does not comply with Order 2B above within 3 months from the date of the order, that the applicant by itself, its employees, agents or contractors, be entitled to enter the Property and carry out the works referred to in Order 2B within 6 months from the date of this order. 4 Order that if the applicant carries out works pursuant to Order 3, the respondent pay the applicant's reasonable costs thereof as agreed or assessed. 5 Order that the respondent pay the applicant's costs of these proceedings as agreed or assessed. 6 Liberty to apply on three days' notice. 5Prior to the hearing of the proceedings before Biscoe J on 15 March 2012, Mrs Gerondal had applied for a vacation of the hearing dates. The application was heard before Pain J on 9 March 2012 (Eurobodalla Shire Council v Gerondal (No 2) [2012] NSWLEC 37). The application was dismissed. 6During the course of those proceedings, and indeed throughout all of the proceedings before the Court concerning the Prevention Notice, including the description contained in the summons, reference was made to the "Protection of the Environment Operations Act 1997". Regrettably, however, the ex tempore judgment of Biscoe J handed down on 15 March 2012, and the orders entered on 30 March 2012, made reference to the "Protection of the Environment Operations Act 1987". There is no such legislation. 7It appears that a typographical error was made wherein the year of the statute was transcribed as "1987" and not "1997". The error is reproduced throughout the judgment (including the cover sheet) and in the orders entered on 30 March 2012. 8As a consequence, the council now applies to have the orders amended pursuant to the 'slip rule'. 9The application to amend came before me in my capacity as Duty Judge. Although additional orders were sought by the council, the hearing of the application occupied approximately five hours of the Court's time. Because another duty judge matter required the Court's attention immediately after the conclusion of the application, I made orders in favour of the council in the form found at the conclusion of this judgment and indicated to the parties that I would publish my reasons at a later date. This judgment contains those reasons. 10The 'slip rule' is a reference to the correction of a judgment or order pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 ("UCPR"). The rule provides as follows: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 11This rule is the only provision that expressly permits the correction of an order or judgment that has been formally entered under r 36.11 of the UCPR. It applies only to the correction of clerical errors or accidental omissions or slips, that is to say, mistakes upon which no real difference of opinion can exist. It does not confer power to supplement or vary final orders by making substantive alterations to determine points that were not argued, considered or decided at the hearing. 12Mrs Gerondal opposed the making of the amendment to change the order to refer to the correct year of the legislation. She did so on two bases: first, because the reference to the "1987" Act was not accidental because it appeared consistently throughout the entirety of the decision of Biscoe J; and second, because, as a consequence of the misdescription of the Act, she was confused as to the meaning and application of the orders. 13Mrs Gerondal also complained that the orders made by Biscoe J should be impugned on the basis that they are expressed in terms of futurity. That is to say, the orders do not convey any requirement for immediate implementation or compliance (Bobolas v Waverley Council [2012] NSWCA 126 at [48]). Accordingly, she claimed that she was not certain whether the orders required present compliance or whether they constituted some sort of warning notice in anticipation of an order requiring her to remove waste from the property in question at a later date. 14Assuming there was merit in this argument, the invalidity of the orders on this basis was not a matter that could be dealt with on the present application. This was explained at length to Mrs Gerondal. 15In any event, in my view, the present orders may be distinguished from those the subject of the appeal in Bobolas on the basis that, on any reading, the timeframe for implementation and compliance with the orders is clear on the face of the orders. 16To permit the council to test the statements made by Mrs Gerondal that the incorrect reference to the year of the legislation resulted in confusion, Mrs Gerondal proceeded to give sworn evidence of this alleged confusion and uncertainty (albeit by way of affirmation), about which she was cross-examined by the council. 17Her evidence revealed, and I so find, that Mrs Gerondal was in fact under no misapprehension whatsoever as to what piece of legislation was being referred to in the orders or what she was required to do in order to comply with them. To that extent that Mrs Gerondal sought to indicate otherwise, I find that her testimony was untruthful. 18I have no hesitation in finding that Mrs Gerondal was aware, at all times, that any reference to the "Protection of the Environment Operations Act 1987" was a mere typographical mistake by Biscoe J, and moreover, that his Honour plainly meant it to be a reference to the "Protection of the Environment Operations Act 1997". 19Given the extensive history of these proceedings, involving, as they do, several hearings, including both final and interlocutory, in all of which, with the exception of the decision by Biscoe J, there is extensive reference to the "Protection of the Environment Operations Act 1997", I also have no hesitation in finding that the mistake contained in the judgment and orders of Biscoe J on 15 March 2012 was a mere clerical mistake. It is an appropriate exercise of my discretion under r 36.17 of the UCPR that the mistake be rectified by deleting all references to the "Protection of the Environment Operations Act 1987" and inserting in their place a reference to the "Protection of the Environment Operations Act 1997". 20In addition to the error described above, the orders, but not the judgment, entered on 30 March 2012 contained another error. Throughout the judgment of Biscoe J handed down on 15 March 2012, the land the subject of the relief was described as "Lot 1 DP 806104, also known as 19 Munjeroo Lane, Bingie New South Wales (the Bingie land)" (emphasis added) (at [1]). But in the version of the orders entered on 30 March 2012, the land was described as "Lot 1 DP 806104 at 19 Munjeroo Land, Bingie ('the Property')" (emphasis added). The council therefore seeks to amend the orders pursuant to r 36.17 of the UCPR so that the reference to "Land" in order 2A is altered to "Lane". 21Mrs Gerondal again strenuously objected to the making of the amendments. She similarly asserted that, as a consequence of the error, she was confused as to whether the orders related to her land and thus whether or not she was required to comply with them. She maintained this argument notwithstanding that, on at least two occasions, she told the Court that she had removed some, but not all, of the waste material from the property at 19 Munjeroo Lane, Bingie. When asked during cross-examination why she had removed any of the waste material from her property if she was genuinely of the opinion that the orders did not, or might not, apply to her, she responded that she did so because she "felt like it". 22Again, I did not find Mrs Gerondal's evidence to be truthful in this regard. On the contrary, it is my view that she was aware, at all times, that the reference in order 2A to 19 Munjeroo "Land" was a reference to her property at 19 Munjeroo Lane. Furthermore, I am in no doubt that Mrs Gerondal was aware, at all times, that the orders applied to her insofar as they required her to remove waste from that property.