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. The Council Wishes to Inspect the Property 23The council also seeks an order that it be permitted to inspect the property referred to in the orders, as amended, namely, Lot 1 DP 806104 at 19 Munjeroo Lane, Bingie, in order to ascertain whether there has been compliance with, and if so to what extent, the orders made by Biscoe J on 15 March 2012. 24Inspection is necessary, according to the affidavit of Ms Deborah Lenson sworn 20 June 2012, on behalf of the council, to obtain quotes for the council to carry out the removal of items pursuant to order 3 of the orders made on 15 March 2012. This is consistent with the council's Procurement Policy, which aims to ensure that the council contracts for services and uses resources in an efficient, effective and ethical manner. The Policy relevantly provides that all procurement must be on a competitive basis, and requires the council to ensure that the process for awarding contracts, including contracts to remove waste, is transparent. It is Ms Lenson's belief that an inspection of Mrs Gerondal's property for the purpose of obtaining quotes will ensure compliance with order 3 in the most efficient and cost effective manner to both the council and, importantly, to Mrs Gerondal. 25A court order for inspection is necessary because, as the affidavit of Ms Naomi Simmons, the council's solicitor, sworn 19 June 2012, demonstrates, Mrs Gerondal will not consent to the inspection absent such an order. 26Mrs Gerondal objected to any court ordered inspection of her property, including an inspection pursuant to the orders made by Biscoe J on 15 March 2012, on the basis that such an order is an infringement of her privacy and may cause damage to her property, thereby resulting in breaches of various environmental statutes. 27I do not agree. In any event, the current state of affairs has been brought about by Mrs Gerondal's continued intransigence in not complying with the Prevention Notice and, as Biscoe J observed in Gerondal (No 3) (at [14]): 14 Since the commencement of the proceedings, despite orders made against her at five different interlocutory hearings, Mrs Gerondal has not complied with a single direction made by the Court at any time during the course of these proceedings. She has not filed a defence or any affidavits in the principal proceedings. She tendered no evidence at the hearing before me. 28The Court's power to order an inspection is at least two-fold: (a)first, pursuant to the liberty to apply contained at order 6 in the orders made by Biscoe J (at [35]) on 15 March 2012 (Pittwater Council v Brown Brothers Waste Contractors Pty Limited [2009] NSWLEC 50 at [19]-[20]). This is because the order for inspection supplements the primary orders made by Biscoe J and is necessary to give full effect to them; and (b)second, pursuant to r 23.8 of the UCPR, which permits the Court to make orders for the inspection of any property for the purpose of enabling the proper determination of any matter in question in any proceedings. 29It is also arguable that the Court has power to order an inspection pursuant to the plenary power contained in r 2.1 of the UCPR. 30The council submitted that, absent an order for inspection, it would be highly unlikely that Mrs Gerondal would permit council officers, together with potential contractors, onto her land to provide estimates for the removal of the waste. As the council stated, it is under a time limitation to complete the removal of the waste pursuant to order 3 of the orders of Biscoe J within six months of the date of the orders. That is to say, by 15 September 2012. 31In my opinion, it is an appropriate exercise of the Court's discretion to order the inspection. On the evidence before me, which includes the evidence given by Mrs Gerondal at the hearing on 28 June 2012, Mrs Gerondal will not permit sufficient, or indeed any, time to effect compliance by the council with order 3, by giving permission to the council to enter upon her land for the purpose of obtaining the relevant quotes. This is so notwithstanding that it is in Mrs Gerondal's interests that the most cost effective estimate is obtained by the council for the removal of the waste. This is because order 4 of Biscoe J's orders states that if the council is to carry out the removal of any waste from Mrs Gerondal's property, she must pay the council's reasonable costs of doing so. Costs 32The council seeks an order that Mrs Gerondal pays the costs of the motion on the basis that, these being Class 4 proceedings in the Court's jurisdiction, costs typically follow the event. Mrs Gerondal has been unsuccessful in resisting any of the orders sought by the council. 33Mrs Gerondal submits that there should be no order as to costs because the mistakes contained in the judgment and orders of Biscoe J were not in any way attributable to her and that by reason of the errors she has been inconvenienced, if not "misled". In addition, Mrs Gerondal claims that she is impecunious and cannot afford to pay any costs ordered. 34It is correct that the errors contained in Gerondal (No 3) are not the fault of Mrs Gerondal, however, Mrs Gerondal could have agreed to the amendments. That she chose not to is her right. But, as a consequence of her resistance to the application, the council has incurred costs for which they are entitled to be compensated consequent upon their complete success on the motion. Moreover, the claimed inability of Mrs Gerondal to satisfy any costs order is not a matter that is relevant to the Court's determination to award costs in this instance (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534). 35It follows that Mrs Gerondal must pay the council's costs of the motion. Orders 36Consistent with the reasons above, the orders of the Court are as follows: (1)pursuant to r 36.17 of the UCPR, the orders made on 15 March 2012 are amended as follows (see the amended order at Annexure 'A' to these reasons): (a) in order No 1, replace "Protection of the Environment Operations Act 1987" with "Protection of the Environment Operations Act 1997"; (b) in order No 2A, replace "19 Munjeroo Land" with "19 Munjeroo Lane"; (2)the applicant by itself, its employees, agents or contractors have liberty to enter onto and inspect the respondent's premises, known as Lot 1 DP 806104 at 19 Munjeroo Lane, Bingie between 2 July 2012 and 6 July 2012, between the hours of 10.00am and 4.00pm; and (3)the respondent is to pay the applicant's costs of this motion. ********** Annexure 'A' AMENDED JUDGMENT / ORDER COURT DETAILS Court Land and Environment Court of New South Wales Class 4 Registry Sydney Case number 40661 of 2011 TITLE OF PROCEEDINGS Applicant Eurobodalla Shire Council Respondent Monica Gerondal DATE OF JUDGMENT / ORDER Date made or given 15 March 2012 Date entered 30 March 2012 TERMS OF JUDGMENT / ORDER MADE BY THE COURT 1Declaration that the respondent has breached the Protection of the Environment Operations Act 1997 ("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"). 2Order 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 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. 3Order 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. 4Order that if the applicant carries out works pursuant to Order 3, the respondent pay the applicant's reasonable costs thereof as agreed or assessed. 5Order that the respondent pay the applicant's costs of these proceedings as agreed or assessed. 6Liberty to apply on three days' notice. SEAL AND SIGNATURE Court seal Signature Capacity Date NOTICE Subject to limited exceptions, no variation of a judgment or order can occur except on application made within 14 days after entry of the judgment or order. To Monica Gerondal: TAKE NOTICE You are liable to imprisonment or to sequestration of property if: (a) where this order requires you to do an act within a specified time, you refuse or neglect to do the act within that time; (b) where this order requires you to do an act forthwith or forthwith upon a specialised event, you refuse or neglect to do the act as the order requires; or (c) where this order requires you to abstain from doing an act, you disobey the order. 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: 03 July 2012