Land and Environment Court New South Wales Medium Neutral Citation: Reysson Pty Ltd v Roads and Maritime Services (No 4) [2016] NSWLEC 159 Hearing dates: 29 November 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Class 3 Before: Preston CJ Decision: (1) The applicant's further amended notice of motion filed on 29 November 2016 is dismissed. (2) The respondent is to pay the applicant's costs of the proceedings, other than the costs of the applicant's motion. Catchwords: JUDGMENTS AND ORDERS – setting aside, variation or correction – judgment given orally on a Sunday by telephone in the absence of the public – written reasons for judgment published later – alleged factual errors in determining amount of compensation – whether error arising from accidental slip or omission within slip rule – whether correction involves evaluative or discretionary judgment – slip rule inapplicable or inappropriate – judgment not given in open court – whether judgment given irregularly – whether judge "otherwise orders" – whether uniform rules for delivery of reserved judgments in the absence of the public applicable – whether sufficient cause shown to set aside judgment – judgment not given irregularly and not set aside – whether entry of judgment should be set aside – judgment given by telephone with parties – whether given in the absence of parties – whether discretion to set aside should be exercised – judgment not given in the absence of parties and not set aside COSTS – reserved judgment given by judge who then retired – costs reserved – resuming authority to pay costs of proceedings of dispossessed owner – motion by dispossessed owner to set aside, vary or correct judgment – motion dismissed – no order as to costs of motion Legislation Cited: Civil Procedure Act 2005 ss 4(1), 5(2), 71, 98, Sch 1 Judicial Officers Act 1986 s 44(1) Land Acquisition (Just Terms Compensation) Act 1991 s 66 Land and Environment Court Act 1979 ss 6, 11(3A), 16, 17, 18, 19, 20, 21, 21A, 21B, 21C, 24, 30(1), 30(3), 34(7), 34C, 37(1), 37(3), 56A, 57, 62, 74 Land and Environment Court Rules 2007 r 3.7 Uniform Civil Procedure Rules 2005 rr 1.5, 36.3, 36.3(1), 36.13, 36.15(1), 36.16(1), 36.16(3A), 36.16(3C), 42.1, Sch 1 Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Esso Australia Pty Ltd v Robertson [2005] VSCA 138 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 Green v Lord Penzance (1881) 6 AC 557 Ho v Loneragan [2013] WASCA 20 In re Silver Brothers Limited [1932] AC 514 In re Swire; Mellor v Swire (1885) 30 Ch D 239 Ivanhoe Gold Corporation Limited v Symonds (1906) 4 CLR 642; [1906] HCA 71 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 Melville v Phillips (1899) 9 QLJ 114 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 Palmer v Clarke (1989) 19 NSWLR 158 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 R v Casey; Ex parte Lodge (1887) 13 VLR 37 Reidy v Herry (1897) 23 VLR 508 Reysson Pty Ltd v Roads and Maritime Services (No 3) [2016] NSWLEC 69 Richmond v BMW Australia Finance Ltd (No 2) (2009) 174 FCR 232; [2009] FCAFC 25 Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 The Queen v Tait (1979) 46 FLR 386 Wandin Springs v Wagner [1991] 2 VR 496 Category: Principal judgment Parties: Reysson Pty Ltd (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: Mr T F Robertson SC with Mr P W Larkin SC (Applicant) Mr P C Tomasetti SC with Mr N M Eastman (Respondent) Solicitors: Storey & Gough (Applicant) Corrs Chambers Westgarth (Respondent) File Number(s): 2016/00155243 Publication restriction: No Judgment Judgment is delivered on a Sunday by telephone in the absence of the public 1. Reysson Pty Ltd ('Reysson') owned land at Banora Point in far north New South Wales that was compulsorily acquired by the Roads and Maritime Services ('RMS') for an upgrade of the Pacific Highway. Reysson objected to the amount of compensation offered for the acquisition and commenced proceedings under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ('Compensation Act') in the Court. 2. The Judge allocated to hear and dispose of the proceedings was Craig J (see s 30(1) of the Land and Environment Court Act 1979 ('Court Act')). Under s 37(1) of the Court Act, Acting Commissioner Parker, a land valuer, was allocated to assist Craig J. The role of the Commissioner was to assist and advise the Judge but not to adjudicate on any matter in the proceedings (s 37(3) of the Court Act). 3. Craig J heard the proceedings on 14-16, 20-23 and 26-27 November 2012 and 6-7 and 9-10 May 2013 and reserved judgment at the end of the hearing. 4. Craig J's 72nd birthday was on Monday 6 June 2016. Under s 44(1) of the Judicial Officers Act 1986, Judges retire on reaching the age of 72 years. Unlike Acting Judges, Judges of the Court, on reaching the age of 72 years, cannot complete or continue to deal with any matters relating to proceedings that had been heard before they turned 72 years of age (contrast s 11(3A) of the Court Act). 5. The last date for delivering judgment in the proceedings that Craig J had heard was, therefore, Sunday 5 June 2016 (by midnight on that day). 6. On Thursday 2 June 2016, Craig J listed the matter for judgment at 4.30pm on Sunday 5 June 2016 to be delivered by telephone. Craig J's associate notified the parties' solicitors of the listing for judgment by telephone. Reysson's solicitor, Mr Gough, said that he missed the Judge's associate's telephone call on Thursday 2 June 2016 but returned the call on the morning of Friday 3 June 2016. The Judge's associate said words to the effect of: His Honour intends to hand his judgment down this Sunday. He will telephone the parties and give his judgment over the phone. Will you be available at 4.30 to take the call? Mr Gough replied: Yes, I can take the call at 4.30. Mr Gough provided the telephone number on which he could be called by the Court at 4.30pm on Sunday. 1. On the morning of Friday 3 June 2016, Mr Gough also attended a retirement ceremony on the last sitting day of Craig J. 2. On Sunday 5 June 2016 at about 4.30pm, the parties' solicitors, Mr Gough for Reysson and Ms Davis for RMS, received a telephone call from Craig J's associate. Craig J and his associate were in a courtroom at the Land and Environment Court in Sydney with telephone conference call facilities. After introducing herself as calling from the Land and Environment Court and checking that both parties could hear her, she put Craig J on the telephone line. Craig J then said words to the following effect; In the matter of Reysson Pty Ltd v RMS I make the following orders: 1. I determine compensation for land being Lots 11 and 14 in DP 11348459 acquired on 30 April 2010 in the sum of $6,212,369. 2. Costs reserved. 3. Exhibits may be returned. I will publish my judgment. 1. At the conclusion of the Judge pronouncing judgment and orders, Mr Gough said the customary courtesy, "May it please the Court". 2. Craig J's written reasons for judgment were certified and signed by his associate and dated 5 June 2016. The reasons were published on the New South Wales Caselaw website, and, from there, were available on the Australasian Legal Information Institute website (AustLII): see Reysson Pty Ltd v Roads and Maritime Services (No 3) [2016] NSWLEC 69 ('judgment'). 3. Mr Gough says that he was able to obtain a copy of the written reasons for judgment electronically from AustLII on 6 June 2016. He received a hard copy of the written reasons for judgment that had been sent by the Registrar of the Court on 14 June 2016. The applicant is dissatisfied with the judgment and orders 1. Reysson is dissatisfied with the judgment and the order determining the amount of compensation awarded to Reysson ('the compensation order') because it claims that the amount of compensation awarded by Craig J is too low. Reysson has lodged an appeal against Craig J's decision to the Court of Appeal under s 57 of the Court Act. That appeal, however, is limited to questions of law. 2. Reysson also argued that Craig J made errors of fact in his decision. In particular, Reysson is concerned that Craig J made factual errors in deriving the market value of the acquired land from a comparable sale of other land. Reysson argued that these factual errors led the Judge to determine the market value of the acquired land to be lower than it should have been had he not made those factual errors. 3. Reysson sought, by notice of motion, for the Court to correct the alleged errors of fact and to vary the compensation order made by Craig J, so as to increase the amount of compensation awarded to Reysson. Reysson sought to do so on four bases: 1. by correcting the judgment and compensation order under the slip rule in r 36.17 of the Uniform Civil Procedure Rules 2005 ('UCPR'); 2. by setting aside the judgment and compensation order under UCPR r 36.15 because the judgment was given irregularly; 3. by setting aside the entry of the judgment and compensation order under UCPR r 36.15 because the judgment that was entered had been given irregularly and then setting aside or varying the judgment and order under UCPR r 36.16(1); and 4. by setting aside or varying the judgment and compensation order under UCPR r 36.16(2)(b) because the judgment was delivered in the absence of the parties. The alleged factual errors 1. Reysson argued that Craig J made factual errors in deriving the market value of the acquired land from a comparable sale of other land, being Lot 8, Darlington Drive, Banora Point ('the sale land'). The sale land was located nearby to the acquired land and was sold close in time to the date of acquisition of the acquired land. Craig J accepted that the sale of the sale land gave the best indication of the market value of the acquired land. Craig J accepted the evidence of RMS' valuer, Mr Hamilton, that a rate of $168/m² could be deduced from the sale price of the sale land (Mr Hamilton's addendum expert report dated 5 October 2012 (Exhibit A in the proceedings) ('Hamilton report'), pp 5 and 6 and judgment at [80]). 2. However, the sale land was superior to the acquired land in three respects and, in order to derive a market value for the acquired land, Mr Hamilton said, and Craig J in his reasons accepted, that three adjustments needed to be made to the deduced rate of the sale land (judgment at [80], [87] and [88]). 3. First, the sale land was only one quarter of the size of the acquired land. Mr Hamilton said that developers pay more per m² of land area for smaller allotments than they pay for larger allotments. Mr Hamilton said, and Craig J accepted, that a deduction of 15% from the deduced rate of $168/m² for the smaller sale land should be made to account for the larger size of the acquired land (Hamilton report, p 6 and judgment at [86], [87] and [88]). 4. Second, unlike the acquired land, the sale land had an attractive aspect over a large lake or basin. Mr Hamilton said, and Craig J accepted, that the lake aspect would be attractive to a purchaser intending to acquire the sale land for the purpose of residential development. Craig J accepted that a further deduction of 10-15% from the deduced rate of the sale land of $168/m² would be appropriate to account for the inferior aspect of the acquired land (Hamilton report, pp 5-6 and judgment at [80], [86] and [88]). 5. Third, the sale land was nearly level and did not require the importation of fill, fill compaction or the construction of any retaining structures in order to be developed for the purpose of residential development, while the acquired land would require each of these civil construction works to be undertaken. A purchaser would pay less for the acquired land, to account for the costs of undertaking these civil construction works, than the purchaser would pay for the sale land, where no such civil construction works needed to be undertaken. Mr Hamilton allowed a reduction of 15% from the deduced rate of the sale land to account for the need to undertake the civil construction works (Hamilton report, pp 5-6 and judgment at [80] and [87]). 6. After considering these three adjustments to the deduced rate for the sale land, Mr Hamilton concluded: On balance the likely range of value for the subject property based on Sale 1 [the sale land] is from $80/m² to $100/m² of land area. This represents a discount for the reasons set out above of 40.5% to 52.4%. (Hamilton report, p 6). 1. After setting out Mr Hamilton's evidence on the three adjustments to the sale land, Craig J concluded: These deductions have the consequence that the deduced rate for the sale of $168/m², when applied to the Land, is approximately $80/m² to $100/m² of land area. (judgment at [88]). 1. Later, in his overall conclusion, Mr Hamilton concluded that the acquired land "has a value of $85/m² for the area that has been identified as being developable" (Hamilton report, p 17). 2. So too Justice Craig, later in his judgment (at [97]), found: I propose to adopt the rate of $85/m² as appropriate to be applied when determining the value of the Land. 1. Justice Craig increased the figure of $85/m² by $3/m² to $88/m² (see judgment at [97]) to reflect the fact that a purchaser acquiring the acquired land on an en globo basis would regard the northern part of the acquired land ('northern land') as adding value to the development of the southern part of the acquired land ('southern land') in providing a green buffer for the residential development of the southern land (judgment at [95]). Applying the rate of $88/m² to the gross residential area of 70,300m², Justice Craig determined the market value of the acquired land to be $6,186,400. 2. Reysson argued that Craig J erred in adopting the range of $80/m² to $100/m² as the likely range of value for the acquired land based on the deduced rate of the sale land as adjusted (judgment at [88]) and the rate of $85/m² as the appropriate rate to be applied (judgment at [97]). Reysson argued that these errors had two sources. 3. First, Reysson said that Craig J had accepted that the deduced rate of $168/m² for the sale land should be adjusted for "only" the three matters of size, aspect and fill and, furthermore, that the adjustments for these three matters should be limited to the percentage deductions stated by Mr Hamilton and accepted by Craig J, namely 15% for size, 10-15% for aspect and 15% for fill. Cumulatively, these percentage deductions added up to 40-45%, which, when applied to the deduced rate of $168/m², yields a range of value of the acquired land of $92.40/m² to $100.80/m². This is different to the range of $80/m² to $100/m² adopted by Craig J. 4. Reysson noted that Craig J adopted a rate of $85/m² as appropriate to be applied when determining the value of the acquired land. Reysson noted that this rate of $85/m² was the lower quartile of the range of $80/m² to $100/m² adopted by Craig J. Reysson noted that the lower quartile of what it said was the correct range of $92.40/m² to $100.80/m² would be $94.50/m². Reysson argued, therefore, that Craig J erred arithmetically in not finding that the range of value for the acquired land was $92.40/m² to $100.80/m² and that the appropriate rate to be applied in determining the value of the acquired land was $94.50/m². 5. Reysson argued that this conclusion flows from the language used by Craig J in two places in his judgment. 6. First, at [94] of the judgment, Craig J said: "Only those adjustments to which I have earlier referred are necessary to be considered". Reysson argued that "those adjustments" were "only" the three adjustments that Craig J had referred to at [87] and [88] of his judgment, being the "three adjustments [that] were made by Mr Hamilton to this sale [of the sale land]" for the differences in size, aspect and fill between the sale land and the acquired land (judgment at [87]). 7. Second, in the last sentence of [88], Craig J said: These deductions have the consequence that the deduced rate for the sale of $168/m², when applied to the Land, is approximately $80/m² to $100/m² of land area. 1. Reysson contended that "these deductions" refer to the three percentage deductions found in Craig J's judgment at [87] and [88] for the differences in size, aspect and fill between the sale land and the acquired land, namely 15%, 10-15% and 15% respectively. Reysson argued that it is these three percentage reductions which "have the consequence" of deriving the value of the acquired land from the deduced rate of the sale land. 2. Reysson argued that the application by Craig J of the factually erroneous figure of $85/m², rather than the figure of $94.50/m², reduced the market value of the acquired land. Adding $3/m² for the northern land to the $94.50/m² and applying the $97.50/m² to the land area of 70,300m² produces a market value of the acquired land of $6,889,400, rather than the $6,186,400 determined by Craig J. When the amount of disturbance of $25,969 determined by Craig J is added to this corrected market value, the total compensation that should have been awarded was $6,915,369, rather than the $6,212,369 ordered by Craig J. 3. The second source of factual error alleged by Reysson was that Craig J adjusted the deduced rate of the sale land ($168/m²) to take account of the increased costs of fill for the acquired land by deducting a percentage (15%) instead of the monetary rate for fill ($17.44/m²) that Craig J had earlier accepted to be correct. At [69] of his judgment Craig J had found: I prefer the evidence of Mr Thomson for the reason that his evidence is more directly related to the likely fill costs for the Land at the acquisition date. His costs for fill amounts to $17.44/m², assuming a gross residential area of 70,300 m² to be filled to achieve the required level. 1. Reysson argued that Justice Craig ought to have used this monetary rate instead of the percentage deduction. Reysson argued that the total amount that should have been deducted from the deduced rate of $168/m² was 25%-30% (15% for size and 10-15% for aspect) of $168/m² (i.e. $42/m² to $50.40/m²) plus $17.44/m² for fill, being $59.44/m² to $67.84/m². Reysson used the larger total (rounded) amount of approximately $68/m² to derive a land value of $100/m². Adding the $3/m² for the northern land to this rate of $100/m², and applying the $103/m² to the land area of 70,300m² produces a value of $7,240,900, rather than the $6,186,400 determined by Craig J. When the amount of disturbance of $25,969 is added to this market value, the total compensation that Reysson claimed should have been awarded was $7,266,869, rather than the $6,212,369 ordered by Craig J. 2. Reysson, therefore, contended that Craig J's order determining the amount of compensation to be $6,212,369 should be corrected to be either: 1. $6,915,369 (if only the three percentage deductions are used); or 2. $7,266,869 (if two percentage deductions and a monetary deduction for fill are used). Correction under the slip rule 1. The first basis on which Reysson sought to correct the amount of compensation ordered was under the slip rule in r 36.17 of the UCPR. The slip rule provides: 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. 1. Reysson's argument was concerned with "error" rather than a "clerical mistake". Reysson characterised the first error that it said Craig J had made as "a computational error" and the second error that Craig J had made as "an error in inadvertently failing to input the quantum of the deduction for fill which he held to be correct". Reysson did not say, however, whether either error arose "from an accidental slip or omission". 2. Reysson nevertheless argued that the errors can be corrected under the slip rule. Reysson submitted that carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word "correction", citing Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195. 3. Reysson argued that the first error, the computational error, arose because Craig J, although finding that only the three percentage deductions for size, aspect and fill should be made from the deduced rate of the sale land, failed to apply these deductions to derive the arithmetically correct range of value for the acquired land. Reysson argued that the second error arose because Craig J, although making a finding on the monetary cost of fill for the acquired land, failed to apply that monetary rate, but instead applied the percentage rate for the deduction for fill in order to derive the value of the acquired land. Reysson's arguments, therefore, were that Craig J's order determining the amount of compensation, which included the value of the acquired land, should be corrected in order to carry into effect the intention of the Judge as reflected in those findings. 4. RMS submitted that the slip rule does not apply in the circumstances of this case. 5. First, there was no error in Craig J's finding that the range of value of the acquired land was $80/m² to $100/m² or that the rate of $85/m² was appropriate to be applied when determining the value of the acquired land. Those findings of value were deliberate and accorded with the Judge's intention. 6. As to the finding that the range of value was $80/m² to $100/m², Craig J accepted the evidence of Mr Hamilton. Craig J's findings and conclusion at [87] and [88] of his judgment mirror the findings and conclusion of Mr Hamilton's evidence in his report. Mr Hamilton proposed the three adjustments to the deduced rate of the sale value and the percentage reductions for each. But Mr Hamilton immediately followed this discussion of the three adjustments with his conclusion that "on balance" the "likely range" of the value of the acquired land was $80/m² to $100/m². Mr Hamilton then noted that this range of value represented a discount of 40.5% to 52.4%. This is evidently a greater range of value than the sum of the three percentage deductions given earlier, being 40% to 45%. 7. This was not a mistake by Mr Hamilton. Mr Hamilton said that the range of $80/m² to $100/m² represented a discount of 40.5% to 52.4% "for the reasons set out above". Those reasons included the reasons given by Mr Hamilton for making the three adjustments for size, aspect and fill (which went beyond merely estimating the respective percentage deductions) but also included other reasons such as the difference in development potential between the sale land and the acquired land. 8. Craig J paraphrased this evidence of Mr Hamilton concerning not only the three adjustments for size, aspect and fill and the percentage deductions that Mr Hamilton estimated for these adjustments but also Mr Hamilton's conclusion that the likely range of value for the acquired land based on the deduced rate for the sale land was $80/m² to $100/m². 9. RMS submitted, therefore, that there was no error in Craig J's finding that the range of value of the acquired land was $80/m² to $100/m². The finding was based on the evidence of Mr Hamilton. 10. As to the finding that the rate of $85/m² was appropriate, RMS submitted that that rate was within the range of value of $80/m² to $100/m² that Craig J had accepted. The Judge's rate accorded with Mr Hamilton's ultimate conclusion that the value of the acquired land was $85/m². RMS also submitted that the Judge was entitled, as the judicial valuer, to select the rate of 85/m² based on all of the evidence and all of the matters that the Judge had discussed earlier in the judgment. The rate did not necessarily have to be the arithmetical product of discounting the deduced rate for the sale land by the percentage deductions or the monetary rate for fill that the Judge had discussed earlier but could involve intuitive adjustments to the comparable sale of the sale land so as to derive the value of the acquired land. RMS cited Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 at 391 in support of the proposition that in all valuations, "there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning …". 11. RMS submitted that no error was involved in Craig J not applying the monetary rate for fill instead of the percentage deduction for fill. Craig J was entitled to accept Mr Hamilton's evidence which applied a percentage deduction. The fact that Craig J had made a finding concerning the monetary rate for fill earlier in the judgment did not demand that he use that rate to make the adjustment for fill instead of applying a percentage deduction for fill. It cannot be discerned from Craig J's judgment that he had always intended to apply the monetary rate for fill, rather than the percentage deduction, in adjusting the deduced rate for the sale land to take account of the need to fill the acquired land, but accidentally omitted to do so. 12. Second, RMS submitted that, even if there were to have been an error, the application of the slip rule to correct the error would only be appropriate if the solution to the error does not involve controversy or depend on an evaluative or discretionary judgment, citing Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446; Ivanhoe Gold Corporation Limited v Symonds (1906) 4 CLR 642; [1906] HCA 71; In re Swire; Mellor v Swire (1885) 30 Ch D 239. 13. RMS submitted that the correction of any error that Craig J might have made in deriving the rate of $85/m² to determine the value of the acquired land involves controversy and evaluative or discretionary judgments. First, the percentage deduction for aspect was not a single figure but a range of 10% to 15%. When this range is added to the other deductions, the range of deductions for the three adjustments becomes 40% to 45%. Applied to the deduced rate of $168/m² for the sale land, the range of value of the acquired land becomes $92.40/m² to $100.80/m². RMS asked rhetorically: what figure in this range should be selected and on what evaluative criteria? 14. Reysson reasoned that because Craig J selected the rate of $85/m², which is the lower quartile of the range of $80/m² to $100/m², the same criterion should be applied to the range of $92.40/m² to $100.80/m² to select a figure of $94/m². RMS challenged this approach. In result, $85/m² might be the lower quartile of the range of $80/m² to $100/m² but this does not mean that Craig J selected $85/m² for that reason. Craig J did not expressly state why he selected the rate of $85/m², rather than any other rate within the range of $80/m² to $100/m², but the fact that it is the lower quartile of the range is unlikely to be the reason. Furthermore, RMS submitted that it is unknown whether Craig J, if he had known that the range was $92.40/m² to $100.80/m², would have selected the lower quartile in that range. Craig J may have adjusted what he considered to be the appropriate value, even to be outside of that range. He may still have selected $85/m² as the appropriate rate considering all of the evidence and all of the matters that he discussed in his judgment. All of this means, RMS submitted, that the Court cannot now discern what should be done to correct the rate of $85/m² that Craig J found to be the appropriate rate to be applied to determine the value of the acquired land. 15. Moreover, RMS submitted, there is plainly genuine controversy between the parties about the appropriate valuation adjustment to take into account the need for filling of the acquired land. Craig J was applying an evaluative judgment in selecting a percentage deduction rather than the monetary rate for fill. It is not appropriate for the Court now to substitute its evaluative judgment for that of Craig J. 16. I agree with RMS' submissions, for the reasons that it gives, that Reysson has not established that there is any error arising from an accidental slip or omission in Craig J's findings that the range of value for the acquired land was $80/m² to $100/m² or that the rate of $85/m² was appropriate to be applied when determining the value of the acquired land. 17. I also agree with RMS' submissions that, even if there were to be an error, the slip rule is not appropriate to correct Craig J's findings. Correcting the errors that Reysson alleges would involve evaluative or discretionary judgments that are not appropriate under the slip rule. Evaluative judgments would be needed to select the precise rate within the 'corrected' range of value of the acquired land. Evaluative judgments are also required in choosing between the alternative ways of adjusting the deduced rate for the sale land to derive a rate for the value of the acquired land: should it be by means of the three percentage deductions for size, aspect and fill, or should it be by means of two deductions for size and aspect and a monetary rate for fill? I am not able to discern what was the intention of Craig J in relation to these evaluative judgments. I am therefore not able to correct any errors in order to reflect Craig J's intentions. 18. I therefore reject the first basis under UCPR r 36.17 for correcting Craig J's order determining the amount of compensation to be awarded to Reysson. Setting aside judgment or order because of irregularity 1. The second basis on which Reysson contended that the errors can be corrected is by setting aside the judgment or order under UCPR r 36.15. Rule 36.15(1) provides: A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. 1. As the Court of Appeal held in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [16]: The focus of r 36.15(1) is on the judgment or order that is attacked, and the question is whether it was "given … entered, or … made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below. 1. Reysson focussed on the manner in which the judgment was given and the orders made by Craig J, being on a Sunday at 4.30pm by telephone to the parties, rather than in open court in the physical presence of the parties. Reysson argued that this was irregular in that it contravened the specific provision in s 62 of the Court Act, which provides: All proceedings before the Court shall, unless the Court otherwise orders, be heard in open court. 1. Reysson submitted that this statutory provision reflected the common law duty that proceedings be heard and judgment be pronounced in open court. It embodies the open justice principle: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [18]. 2. Reysson contended that "the proceedings" included not only any interlocutory or final hearings of the proceedings but also the giving of judgment disposing of the proceedings. Reysson submitted that courts have long accepted that the giving of judgment is part of judicial proceedings: Green v Lord Penzance (1881) 6 AC 557 at 683; Melville v Phillips (1899) 9 QLJ 114 at 116; Richmond v BMW Australia Finance Ltd (No 2) (2009) 174 FCR 232; [2009] FCAFC 25 at [22]; Ho v Loneragan [2013] WASCA 20 at [26]. Judgment is to be given in open court, unless under the authority of some statute: Melville v Phillips at 116; Palmer v Clarke (1989) 19 NSWLR 158 at 164-166, 172, 173; Wandin Springs v Wagner [1991] 2 VR 496 at 499; Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 at [23]; Richmond v BMW Australia Finance Ltd (No 2) at [23]; Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at [9]. 3. Reysson argued that the giving of judgment in the proceedings needed to be "heard in open court", unless the Court otherwise ordered. Reysson argued that the Court never ordered that judgment in the proceedings was to be given otherwise than in open court. Hence, Craig J gave his judgment and made orders in the proceedings in contravention of s 62 of the Court Act and, therefore, irregularly. 4. Reysson submitted that the irregularity of giving judgment and making orders otherwise than in open court, in breach of s 62 of the Court Act, was not authorised by s 71 of the Civil Procedure Act 2005 ('CP Act') and UCPR r 36.3. Section 71 of the CP Act provides: Subject to any Act, the business of a court in relation to any proceedings may be conducted in the absence of the public in any of the following circumstances: (a) on the hearing of an interlocutory application, except while a witness is giving oral evidence, (b) if the presence of the public would defeat the ends of justice, (c) if the business concerns the guardianship, custody or maintenance of a minor, (d) if the proceedings are not before a jury and are formal or non-contentious, (e) if the business does not involve the appearance before the court of any person, (f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit, (g) if the uniform rules so provide. 1. One of the relevant uniform rules is UCPR r 36.3(1) which provides: (1) If in any proceedings a judicial officer reserves his or her judgment or decision on any question, he or she: (a) may give the judgment or decision, either in open court or in the absence of the public: (i) at the venue for those proceedings, or (ii) at any other place at which he or she is authorised to hear or dispose of those proceedings, or (b) may reduce the judgment or decision to writing, sign it and forward it to the registrar at the venue for the proceedings. 1. Reysson argued that s 71 is prefaced by the words "[s]ubject to any Act". One Act to which s 71 of the CP Act is subject is s 62 of the Court Act. Reysson argued that s 71 of the CP Act, therefore, does not authorise the giving of judgment in the absence of the public. 2. Reysson similarly submitted that UCPR r 36.3 is subject to s 62 of the Court Act. First, UCPR r 36.3 cannot rise above s 71 of the CP Act. Second, s 5(2) of the CP Act provides that: Nothing in the uniform rules extends the jurisdiction of any court except to the extent to which this Act expressly so provides. 1. Reysson contended that to allow the Court to give judgment otherwise than in open court would be to extend the jurisdiction of the Court. Section 62 of the Court Act limits the Court to giving judgment only in open court; UCPR r 36.3(1) would authorise the Court to give judgment not only in open court but also in the absence of the public. This would be to extend the Court's jurisdiction. Section 5(2) of the CP Act prevents the UCPR from doing this. 2. Reysson submitted, therefore, that Craig J's judgment was given and the orders were made "irregularly". 3. Reysson submitted that there is "sufficient cause" to set aside or vary the judgment and the compensation order for two reasons. First, the urgent necessity for Craig J to give judgment on the last day he could do so before turning 72 years of age, being the Sunday, may have contributed to the factual errors that Reysson alleged he made. The irregularity in giving judgment and the factual errors in the judgment were likely to be causally linked. Second, the factual errors made in the judgment in determining the amount of compensation are sufficiently prejudicial to Reysson as to be sufficient cause in themselves. These factual errors led to Reysson, the dispossessed owner of the acquired land, being awarded less compensation than it would otherwise have been awarded had the errors not been made. 4. Reysson argued that the Court, under r 36.15(1), should set aside the order made by Craig J and substitute an order awarding compensation in the amount of either $6,915,369 or $7,266,869, depending on which error the Court considers appropriate to correct. 5. RMS contested that UCPR r 36.15(1) is applicable in the circumstances of this case. RMS submitted that the judgment was not given and the orders were not made "irregularly". RMS submitted that the manner in which Craig J gave his judgment and made the orders, on the Sunday at 4.30pm by telephone to the parties' solicitors, was not in contravention of s 62 of the Court Act. 6. First, RMS submitted that s 62 of the Court Act did not apply to the giving of judgment. The Court Act draws a distinction between the "hearing" of proceedings and the "disposal" of the proceedings and between proceedings being "heard" and proceedings being "disposed of": see ss 6, 16, 17, 18, 19 (which apply to proceedings in Class 3 of the Court's jurisdiction, including Reysson's proceedings) 20, 21, 21A, 21B, 21C, 24, 30(3), 34(7), 34C and so on. Section 62 of the Court Act provides that proceedings are to be "heard" in open court, but does not say that the proceedings must also be "disposed of" in open court. Having regard to the distinction drawn between proceedings being heard and disposed of throughout numerous provisions of the Court Act, the reference in s 62 of the Court Act only to proceedings being heard but not being disposed of in open court should be considered to be deliberate. Hence, RMS argued, s 62 of the Court Act does not apply to the delivery of judgments. 7. Second, RMS argued that s 62 of the Court Act does not limit the operation of the CP Act or the UCPR. RMS submitted that s 71 of the CP Act allows the business of a court in relation to any proceedings (which includes giving judgment disposing of proceedings) to be conducted in the absence of the public in the circumstances specified in s 71 of the CP Act. One of those circumstances is "(d) if the proceedings are not before a jury and are formal or non-contentious". RMS submitted that the delivery of judgment falls into that category, both generally and in the particular circumstances of this case, where no objection was raised by either party's solicitor before or at the time fixed for delivery of judgment otherwise than in open court. 8. Another circumstance is "(g) if the uniform rules so provide". UCPR r 36.3(1) provides for a judge who reserves judgment to give the judgment either in open court or in the absence of the public. UCPR r 36.3(1) therefore authorised Craig J to give judgment in the absence of the public over the telephone to the parties' solicitors. 9. RMS submitted that neither the prefatory words "[s]ubject to any Act" in s 71 of the CP Act nor s 5(2) of the CP Act had the effect of precluding the application and operation of s 71 of the CP Act and UCPR r 36.3(1). 10. Third, RMS submitted that even if s 62 of the Court Act did apply to the giving of judgment, the Court can otherwise order. In this case, Craig J did otherwise order. Craig J listed the proceedings for the giving of judgment on Sunday 5 June 2016 at 4.30pm by telephone to the parties' solicitors. The Court's building would evidently be closed to the public on a Sunday at 4.30pm. The mode of delivery of the judgment by telephone to the parties' solicitors also necessarily precluded a hearing by the public and the physical presence of the parties when judgment was being delivered. Hence, Craig J's order fixing the date, time and mode of delivery of judgment necessarily was an order that judgment be given otherwise than in open court. This is sufficient to dispense with any requirement in s 62 of the Court Act that the giving of judgment in the proceedings be heard in open court. 11. RMS finally submitted that if the Court were nevertheless to find that judgment was given in contravention of s 62 of the Court Act and irregularly, the Court would not find that "sufficient cause" has been shown so as to exercise the discretion under UCPR r 36.15(1) to set aside the judgment or order determining the amount of compensation to be awarded to Reysson. RMS submitted that it is not appropriate to set aside the judgment or order in circumstances where: 1. Reysson waived or acquiesced in the irregularity. Reysson's solicitor, Mr Gough, was advised two to three days beforehand that judgment was to be delivered by Craig J on Sunday 5 June 2016 at 4.30pm by telephone. Mr Gough said he would be available to take judgment on the date and time specified and by that mode and he provided his telephone number to the Judge's associate. Mr Gough raised no objection to judgment being delivered otherwise than in open court. On the day and at the time that Craig J delivered judgment over the telephone, Mr Gough again raised no objection before or after the Judge pronounced the orders. Indeed, no objection was raised about the delivery of the judgment otherwise than in open court until the notice of motion was filed in court more than 14 days after the judgment and orders were entered. RMS submitted that in these circumstances any irregularity has been waived by Reysson. 2. Reysson has not established that Craig J made any error in his judgment or order that should be corrected. RMS reiterated its submissions on the slip rule that Craig J's findings that the range of value of the acquired land was $80/m² to $100/m² and that the rate of $85/m² was appropriate to be applied when determining the value of the acquired land, were open to him on the evidence and involved no error. In these circumstances, there is no sufficient cause to set aside the judgment and order that implemented these findings. 3. The irregularity and delivery of the judgment is causally unrelated to any error in the judgment regarding the findings as to the value of the acquired land or the calculation of the amount of compensation to be awarded to Reysson. 1. Reysson responded to RMS' submissions in (a) above, saying that it did not consent to the course of action Craig J took. Reysson was simply notified that Craig J was going to deliver judgment on Sunday 5 June 2016 at 4.30pm by telephone and Reysson was not given the opportunity to consent or not consent to that course of action. Reysson submitted that even if it had consented, that would be no answer to the complaints made here: The Queen v Tait (1979) 46 FLR 386 at 405. 2. I find that Reysson has not established that Craig J's judgment was given in contravention of s 62 of the Court Act and therefore irregularly. 3. I accept that the principle of open justice requires that proceedings be heard in open court, that the giving of judgment is part of the proceedings, and that judgment should be given in open court, unless there is statutory authority to do otherwise: Melville v Phillips at 115-116 and Palmer v Clarke at 164-166, 172 and 173. Section 62 of the Court Act reflects this principle of open justice. I do not agree with RMS that I should read s 62 of the Court Act to exclude the giving of judgment from its ambit. It is true that in numerous provisions in the Court Act the actions of hearing and disposing of proceedings are distinguished and that s 62 only refers to proceedings being heard and not being disposed of. Nevertheless, the open justice principle is "one of the most fundamental aspects of the system of justice in Australia" and "exceptions to the principle of open justice are few and strictly defined": John Fairfax Publications Pty Ltd v District Court of New South Wales at [18]-[19]. In light of this, I would not prefer a construction of s 62 of the Court Act that would exclude from its ambit the giving of judgment disposing of the proceedings. The words of the section, "all proceedings before the Court shall … be heard in open court", are capable of including, and should be read to include, the pronouncing of judgment in the proceedings shall be heard in open court. 4. However, the duty to give judgment in open court is subject to statutory authority to do otherwise. The first statutory authority for giving judgment otherwise than in open court is the words in s 62 of the Court Act itself, namely "unless the Court otherwise orders". This authorises the judge (or other officer who is hearing proceedings before the Court) to order that the judgment will be given otherwise than in open court. 5. In this case, Craig J fixed the date and time for, and the mode of delivery of, judgment as being Sunday 5 June 2016 at 4.30pm over the telephone to the parties' solicitors. This order of Craig J fixing the date, time and mode of giving judgment is an order under s 62 of the Court Act that judgment be given otherwise than in open court. 6. It was not necessary for Craig J to make a separate order, expressly invoking the power to otherwise order under s 62 of the Court Act. It was sufficient to make an order, communicated to the parties, fixing the date, time and mode of giving judgment that in terms authorised the giving of judgment otherwise than in open court. This mode of giving judgment was authorised by UCPR r 36.3(1). 7. The second statutory authority to give judgment otherwise than in open court was in s 71 of the CP Act and UCPR r 36.3. Section 71 of the CP Act authorises the business of the court in relation to any proceedings to be conducted in the absence of the public in specified circumstances, including if the uniform rules so provide. The uniform rules do so provide. Rule 36.3(1)(a) of the UCPR provides that a judge who reserves judgment: (a) may give the judgment or decision, either in open court or in the absence of the public: (i) at the venue for those proceedings, or (ii) at any other place at which he or she is authorised to hear or dispose of those proceedings 1. In this case, Craig J gave judgment on Sunday 5 June 2016 at 4.30pm at the venue of the proceedings (at the Land and Environment Court in Sydney) in the absence of the public by stating his orders orally on a telephone call with the parties' solicitors. Craig J did not state his reasons when he stated his orders orally. He did state, however, that he would publish his written reasons later. Craig J's written reasons for judgment were published electronically on Caselaw and AustLII within a day and copies were sent by the Registrar of the Court to the parties' solicitors. Reysson's solicitor received a copy on 14 June 2016. 2. This course of stating orally the orders and publishing the written reasons later was authorised by UCPR r 36.2(1) (and is also an inherent power of a superior court, which the Land and Environment Court is: s 5(1) of the Court Act). 3. The manner in which Craig J gave his reserved judgment, was, therefore, authorised by UCPR r 36.3(1). 4. I do not accept Reysson's submission that the prefatory words of s 71 of the CP Act, "[s]ubject to any Act", cause s 62 of the Court Act to be dominant and prevail over s 71 of the CP Act and the uniform rules incorporated by s 71(g), including UCPR r 36.3. The CP Act applies to the Land and Environment Court in relation to all civil proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction: s 4(1) and Sch 1 of the CP Act. These proceedings are in Class 3 of the Court's jurisdiction. Section 71 of the CP Act, therefore, applies to all civil proceedings in the Court. 5. Reysson's argument is predicated on the claim that s 71 of the CP Act and s 62 of the Court Act are inconsistent. Thus, Reysson submitted that the former must give way to the latter. Yet, to adopt the phrase of Viscount Dunedin, this only occurs "when the two statutes cannot live together": In re Silver Brothers Limited [1932] AC 514 at 523. Section 62 of the Court Act and s 71 of the CP Act are able to be read together without inconsistency. Section 62 of the Court Act embodies the general principle that proceedings are to be heard in open court but s 71 of the CP Act provides, by way of statutory exceptions, the circumstances in which proceedings may be heard in the absence of the public. One of those circumstances is "if the uniform rules so provide". The UCPR provide that a reserved judgment may be delivered in the absence of the public. Reading the two statutes together in this way, there is no inconsistency between s 71 of the CP Act and s 62 of the Court Act so as to cause the words "subject to any Act" in s 71 of the CP Act to give primacy to s 62 of the Court Act. 6. The third statutory authority is r 36.3 itself. The UCPR apply to the Land and Environment Court in relation to civil proceedings in Class 1, 2 or 3 (other than proceedings under s 56A of the Court Act), 4 or 8 of the Court's jurisdiction: r 1.5(1) and Sch 1 of the UCPR. Some parts and rules have been excluded (see r 1.5(2) and (3) and Sch 1), but Pt 36, which deals with judgment and orders, has not been excluded. The UCPR are, therefore, rules of the Court and apply in addition to any local rules made under s 74 of the Court Act. 7. Rule 36.3 authorises the Court to give reserved judgment in the way specified in the rule. As I found above, r 36.3(1) authorised Craig J to give judgment in the absence of the public in the manner he did on Sunday 5 June 2016. 8. I do not accept Reysson's argument that UCPR r 36.3 impermissibly extends the jurisdiction of the Court, contrary to s 5(2) of the CP Act. Authorising the delivery of reserved judgments in the specified ways other than in open court does not extend the jurisdiction of the Court. In any event, s 5(2) permits the uniform rules to extend the jurisdiction of the Court "to the extent to which the Act expressly provides". Section 71 of the CP Act expressly provides that the business of the Court (which includes giving judgment) can be conducted in the absence of the public if the uniform rules so provide. This provides the express authority for UCPR r 36.3. 9. For these reasons, I find that the manner in which Craig J gave judgment did not contravene s 62 of the Court Act and that judgment was not given irregularly. 10. Even if Craig J's judgment could be said to have been given irregularly (contrary to what I have found), I am not satisfied that sufficient cause has been show to exercise the discretion in UCPR r 36.15(1) to set aside the judgment or order. I agree with the three submissions of RMS in this regard. 11. First, Reysson waived or acquiesced in any irregularity of Craig J delivering judgment at a date and time and in a mode that was inconsistent with being delivered in open court. Reysson's solicitor raised no objection at the time of being notified of the date, time and mode of giving judgment, before or at the time of giving judgment, or immediately after the giving of the judgment. 12. I do not accept Reysson's submission that it did not consent to the Judge's course of action or, even if it did, that waived the irregularity. It is true that when Craig J, through his associate, notified the parties' solicitors that he would give judgment on the Sunday at 4.30pm by telephone, he did not expressly invite submissions or their consent to that course. But that is always the situation when a matter is listed for delivery of judgment. This does not deny the parties the opportunity to make a submission that the proposed date, time, or mode of delivery of judgment is irregular in the circumstances. In this case, the parties' solicitors could have, and should have if they objected, submitted to Craig J that the proposed date, time and mode of delivery was irregular. They did not. Hence, they waived the irregularity. The decision in The Queen v Tait is not to the point. It is not suggested that the parties expressly consented to Craig J's date, time and mode of delivery of judgment or that such consent would provide a warrant for such delivery. Instead, the point is that the parties waived any irregularity and this waiver is relevant to take into account in the Court now deciding whether to exercise the discretion to set aside Craig J's judgment on the basis of that irregularity in the delivery of the judgment. 13. Second, Reysson has not established that Craig J made any error in his determination of the market value of the acquired land and, hence, in determining the compensation to be awarded to Reysson, for the reasons I have given earlier. 14. Third, Reysson has not established that any irregularity by not giving judgment in open court was causally related to any error (if there be any error) in the judgment regarding the market value of the acquired land or the acquired amount of compensation to be awarded to Reysson. It is speculation to suggest that the Judge would not have made the factual errors that Reysson alleged he made had he delivered the judgment in open court rather than by telephone to the parties. 15. There is also a further discretionary reason why it is inappropriate to exercise the discretion under r 36.15 to set aside Craig J's judgment. As I have found when dealing with the slip rule, even if there were to be errors in the findings of Craig J in deriving the market value of the acquired land, these errors cannot be corrected without making evaluative and discretionary judgments. Evaluative and discretionary judgments are required in selecting the particular rate within the range of value of the acquired land that should be applied to determine the value of the acquired land. Evaluative or discretionary judgments are also required in choosing between the alternative ways of adjusting the deduced rate of the sale land to derive a rate for the value of the acquired land (should it be the three percentage deductions or two percentage deductions and a monetary rate for fill?). I cannot discern from the reasons for judgment what was the intention of Craig J in relation to these evaluative judgments. 16. This means that there would need to be a rehearing of the proceedings in order to determine what adjustments should be made. To embark on a rehearing of the proceedings subverts the principle of finality and the overriding purpose in s 56 of the CP Act to facilitate the just, quick and cheap resolution of proceedings. As the High Court said in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at 223 [15], cited with approval by the Court of Appeal in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) at [32]: Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17 [34]: 'A central and pervading tenet of the judicial system is that controversies, once resolved, are, not to be reopened except in a few, narrowly defined, circumstances'. That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in the doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded. See also Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16 at [30] and [107]. 1. A court should be slow to adopt an interpretation or application of uniform rules allowing final judgments to be set aside that would subvert these fundamental principles: see Perpetual Trustee Australia Ltd v Heperu Pty Ltd (No 2) at [17], [33], [44] and [45]. 2. These proceedings were heard over 13 days, starting over 4 years ago. Considerable costs, delay and inconvenience to the parties would be involved in rehearing the proceedings in order to determine once again the value of the acquired land and, hence, the amount of compensation to be awarded to Reysson. There is also uncertainty as the outcome of any rehearing. There is no certainty that the judge rehearing the proceedings would make the findings made by Craig J or the findings urged by Reysson about what comparable sales should be used or, if the sale of the sale land is to be used, how the deduced rate for that sale should be adjusted to derive a value for the acquired land. The judge on the rehearing may come to an entirely different value of the acquired land, and hence a different amount of compensation to be awarded to Reysson, than Craig J did or Reysson submits should now be made. 3. The necessity for a rehearing and the costs, delay, inconvenience and uncertainty associated with any rehearing are factors weighing against setting aside the judgment and compensation order of Craig J merely because of an irregularity in the way in which he delivered judgment and made the orders. 4. I therefore reject the second basis under UCPR r 36.15 for setting aside Craig J's order determining the amount of compensation awarded to Reysson. Setting aside entry of judgment or order 1. The third basis upon which Reysson argued Craig J's order should be set aside was under UCPR r 36.16(1). This basis posed difficulties for Reysson. The orders made by Craig J on 5 June 2016 were entered in the Court's computerised record system the next day. Rule 36.16(1) only applies before entry of an order. If notice of motion for the setting aside or variation of the order is filed within 14 days of the order being entered, the Court can determine the matter and set aside or vary the order under r 36.16(1) as if the order had not been entered: r 36.16(3A). However, Reysson did not file a notice of motion within 14 days of Craig J's orders being entered. The Court does not have the power to extend the 14 day time limit for filing the notice of motion (r 36.16(3C)). 2. Reysson sought to overcome this problem in two ways. 3. Initially, Reysson argued that the irregularity and the manner in which Craig J gave judgment caused the orders he made to be void. Reysson relied on decisions that have held that judgments of inferior courts not pronounced in open court are not judgments at all and are void, such as R v Casey; Ex parte Lodge (1887) 13 VLR 37 at 40 and Reidy v Herry (1897) 23 VLR 508. Reysson argued that if the orders that were entered were void, then the entry itself must be invalid – a void order cannot be entered. Reysson argued that the entry of the orders should therefore be set aside. Once that is done, r 36.16(1) can be invoked because the orders will no longer have been entered. 4. However, as RMS pointed out, the Court is a superior court and its decisions are never void but rather are valid and effectual until set aside by a court of competent jurisdiction: see State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [22]. 5. Reysson's next argument was that the entry of the order could be set aside under UCPR r 36.15 because of the irregularity in the way in which the judgment was given and the orders were made otherwise than in open court. Once the entry of the orders was set aside, the power under UCPR r 36.16(1) would become available. 6. This argument fails for the same reasons I have given in relation to setting aside the judgment or order under r 36.15. The power under r 36.15 is not available or appropriate to be exercised to set aside the entry of the judgment on the basis of any irregularity in the giving of the judgment and the making of the order. Setting aside judgment or order because of the absence of the parties 1. The final basis upon which Reysson argued that the Court should set aside or vary Craig J's order determining the amount of compensation to be awarded to Reysson was UCPR r 36.16(2)(b), which provides: The court may set aside or vary a judgment or order after it has been entered if: … (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order 1. Reysson noted that the parties or their legal representatives were not physically present at the venue at which Craig J orally stated the orders (the Land and Environment Court in Sydney). 2. Reysson noted that the Court is a statutory court. It argued that there is no statutory provision which authorises the giving of judgment via telephone or which has the effect of permitting a party to apply to "attend" a hearing via telephone or video link. 3. Reysson submitted that r 36.16(2)(b) focusses upon where the judgment or order is "given or made". That is the location of the judge giving the judgment. Craig J's delivery of the judgment was "in the absence of" the parties. The solicitors for the parties, listening to judgment being given by telephone from a remote location, were "absent" from the place that judgment was given. There was no opportunity for the parties to participate in this stage of the proceedings by, for example, listening to the orders being pronounced by the judge, giving instructions to their solicitor or counsel, receiving advice, having counsel at the ready, or making an application. They had no presence, either in fact or in any notional sense. 4. RMS contested that the parties were not present when Craig J gave judgment by telephone with the parties' solicitors in attendance. RMS submitted that judgment given by telephone with the consent of the parties and where they are in attendance on the telephone line is not a judgment given in the absence of the parties. 5. RMS also submitted that the Court has a discretion under r 36.16(2)(b) as to whether to set aside or vary a judgment. If, contrary to RMS' primary submission, giving judgment by telephone with the parties in attendance on the telephone nevertheless is in the absence of the parties, RMS submitted that Reysson acquiesced in that process. The parties' solicitors were notified that the judgment was to be given by telephone and, hence, that the parties would be physically absent from the venue at which the Judge would be telephoning the parties in order to give judgment. No objection was raised by either party when they were notified that judgment was to be given by telephone or before or at the time that the Judge stated orally the orders over the telephone. In these circumstances, RMS submitted, the Court would not now set aside or vary the orders on the basis that the parties were physically absent when judgment was given. 6. RMS also repeated the submissions that it had made in relation to UCPR r 36.15 that Craig J did not make any error in his judgment but that if there was an error, it was causally unrelated to giving judgment in the absence of the parties. 7. I agree with the submissions of RMS. Judgment was not given in the absence of the parties. Craig J stated orally the orders, as permitted by UCPR r 36.2, in a telephone conference call with the parties' solicitors in attendance. The parties were not absent when he stated the orders. But even if it could be said that they were absent, Reysson waived its entitlement to be physically present at the venue where the Judge stated orally the orders. Reysson's solicitor was notified that the judgment was to be given by telephone and, hence, that the parties would not be physically present when the Judge gave judgment but raised no objection at that time or when judgment was being given by telephone. The other discretionary factors that I have referred to when dealing with UCPR r 36.15 also make it inappropriate to exercise the discretion in r 36.16(2)(b) to set aside or vary the order. 8. I therefore reject the fourth basis under r 36.16(2)(b) to set aside or vary Craig J's order determining the amount of compensation awarded to Reysson. Conclusion 1. Reysson has not established that the judgment and orders of Craig J should be set aside on any of the four bases that it has proposed. The motion should therefore be dismissed. Costs 1. In his judgment and orders, Craig J reserved the question of costs. Reysson sought, by the notice of motion, an order that the RMS pay its costs of the proceedings. 2. Reysson noted that the power to award costs in proceedings in Class 3 of the Court's jurisdiction under the Compensation Act is under s 98 of the CP Act. That section provides that "costs are in the discretion of the court": s 98(1)(a) of the CP Act. The local rule dealing with costs of certain types of proceedings, r 3.7 of the Land and Environment Court Rules 2007, does not apply to proceedings under the Compensation Act. UCPR r 42.1 which provides that "the court is to order that costs follow the event unless it appears to the court that some other order should be made", also does not apply as it is an excluded provision in respect of proceedings in Class 1, 2 and 3 of the Court's jurisdiction: see r 1.5(2) and Sch 1. Accordingly, the discretion under s 98 of the CP Act to order costs remains unfettered. 3. In Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 at [70]-[72], the Court of Appeal held: In other respects, however, the appellants' propositions may be accepted. They support the proposition that a claimant for compensation in respect of a compulsory acquisition should usually be entitled to recover the costs of the proceedings, having acted reasonably in pursuing the proceedings and not having conducted them in a manner which gives rise to unnecessary delay or expense. That approach is also consistent with the absence of any general presumption that costs should follow the event: the owner who has been compulsorily dispossessed is entitled to take reasonable steps to seek the judgment of the Court in respect of the adequacy of any compensation offered. Whether steps taken in maintaining proceedings are reasonable will depend upon the circumstances of the particular case. These may include a comparison between the positions adopted by the parties at the commencement of proceedings and the final outcome. To the extent that a claimant obtains less than the valuation provided by the Valuer-General, the claimant has been unsuccessful in the litigation. That will be a factor to be taken into account, but the weight given to that factor may depend upon the extent of the failure. The Court may also take into account the time and expense incurred in relation to specific items. Beyond such general statements, it is unhelpful to go, lest the very generality of the discretion be thought to be fettered in some way. In short, the purpose of an award of costs must be taken into account, namely to compensate the party for expenditure incurred in the course of litigation; the nature of the litigation and the reasonableness of the conduct of the litigation are central considerations. 1. Reysson submitted that an award of costs in its favour is appropriate as Craig J awarded compensation in an amount ($6,212,369) greater than the amount contended for by RMS in the proceedings ($5,491,468.68): see judgment at [14]. 2. RMS did not dispute that it was appropriate for the Court to order RMS to pay Reysson's costs of the proceedings in the circumstances. 3. In relation to the costs of Reysson's motion, Reysson contended in its written submissions in reply that, regardless of the outcome of the motion, RMS should pay Reysson's costs of the motion. In final oral address, however, Reysson submitted that if it was unsuccessful, the appropriate order in the circumstances was that there should be no order as to the costs of the motion. The motion was brought in proceedings under the Compensation Act in which an award of costs in Reysson's favour was appropriate, for the reasons given generally in Dillon v Gosford City Council and in the specific circumstances that Reysson was awarded compensation in an amount greater than RMS claimed should be awarded. The events that gave rise to Reysson bringing the motion were not of Reysson's doing. The extended delay in the delivery of the reserved judgment and the imminent retirement of Craig J led Craig J to decide, on his own motion, to fix a date, time and mode of delivery of judgment that was not usual, being on the last day that he could deliver judgment, a Sunday. This reasonably gave rise to Reysson's argument that the judgment was given irregularly. The written reasons for judgment that Craig J published, after having stated the orders orally, contained inconsistencies in language which reasonably gave rise to Reysson's arguments that he had made accidental slips or omissions that should be corrected or other factual errors justifying setting aside or varying the judgment and orders. Reysson's arguments for correcting, varying or setting aside Craig J's judgment and orders were clearly arguable. There was also public benefit in raising for the Court's determination statutory provisions dealing with the Court giving judgment and making orders in open court that had not been previously decided. In these circumstances, Reysson submitted that, although it was unsuccessful, it should not be ordered to pay RMS' costs of the motion. 4. RMS submitted that it should be awarded costs of the motion. Reysson was unsuccessful on the motion. The motion was separate to, and should not be subsumed in, the costs order for the proceedings. 5. I agree with Reysson's final submission that the appropriate exercise of the discretion under s 98 of the CP Act is to make no order as to costs of the motion, for the reasons it gave. Reysson, as an owner of land who has been compulsorily dispossessed, was entitled to take reasonable steps to seek the judgment of the Court in respect of the adequacy of the compensation offered by RMS. This included taking reasonable steps after judgment was given if it reasonably considered that the judgment was given irregularly or contained errors that affected the adequacy of the compensation awarded. Any irregularity or error in the judgment was not caused by any conduct of Reysson. Despite not being accepted, Reysson's arguments that the judgment was given irregularly and contained factual errors were not unreasonable. The statutory provisions concerning the Court giving judgment and making orders in open court or in the absence of the public had not been the subject of previous judicial decision. Reysson's conduct in bringing and arguing the motion were reasonable. In these circumstances, there should be no order as to the costs of the motion. Orders 1. The Court orders that: 1. The applicant's further amended notice of motion filed on 29 November 2016 is dismissed. 2. The respondent is to pay the applicant's costs of the proceedings, other than the costs of the applicant's motion. ********** 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: 09 December 2016