State of New South Wales v Carver (No 2)

This is an application under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (the slip rule) to correct the terms of the orders I made in the principal judgment in this matter on 14 July 2023 (State of New South Wales v Carver [2023] NSWSC 828) (the principal judgment). Definitions in the principal judgment are used.

The slip rule provides:

The proceedings which culminated in the principal judgment were initiated by a Summons claiming possession of the land described in the Schedule to the Summons as:

In paragraph [6] of the principal judgment and consistent with the description in the Summons, I described the Cottage (occupied—unlawfully—by Mr Carver, a solicitor of this Court) as located:

However, the terms of the order I made were:

It will be observed that my order diverges from that claimed in the Summons. I omitted paragraph 2 of the description of the land in the Schedule to the Summons.

The error is entirely my own.

The Crown sought Mr Carver’s consent to correct the error. He withheld it. In the circumstances, the Crown initiated this application by Notice of Motion filed with leave granted on 15 August 2023. I made orders abridging the time for service and made it returnable before me today. The application is supported by the Affidavit of Hamish John Williams affirmed 14 August 2023.

Mr Carver articulated his reasons for withholding his consent in an email to the solicitor for the Crown dated 9 August 2023. It is appropriate to set out the substantive paragraphs of that communication in full:

His reasons are untenable and entirely lacking in merit. They are, as a basis for opposing correction of my error, spurious.

Paragraph 5 of the written submissions dated 23 June 2023 signed by counsel for Mr Carver provided to the Court for the purposes of the trial states as follows:

At the trial, Mr Carver conceded that the land was land of the Crown and did not put in issue that he bore the onus of establishing any defence. [2] So much is recorded at [10] of the principal judgment.

On 28 July 2023, Mr Carver moved an application for a stay of the order for possession on the basis that he intends to appeal the principal judgment. He had filed a Notice of Intention to Appeal. I was informed today from the bar table that he has not filed a Notice of Appeal but intends to do so. Counsel briefed by him on the stay application (who also appeared at the trial) did not succeed in articulating any grounds of appeal sufficient for me to conclude that an appeal has any reasonable prospects of success. On that basis, I refused a stay.

At no time during the course of the trial did Mr Carver, a conveyancing solicitor of 45 years’ experience, raise any issue that part of the land he occupies, has a different legal status to the other part or that it is not Crown land, or is somehow to be treated differently. During the course of the stay application, no such issue was raised as being one for appeal. To put it euphemistically, this makes his statement in the paragraph numbered 8 in his email somewhat surprising.

On 16 August 2023 at 12:15pm, Mr Carver wrote to my Associate advising that there would be no appearance by him today on the motion. In his email, he articulated a number of arguments as to why the Court should not make the orders sought in the Notice of Motion.

This morning, however, when the motion was called, Mr Tomasetti of senior counsel was present on Mr Carver’s behalf. He initially sought to appear as amicus curiae on the footing that he did not have instructions to appear. I declined this application, upon which Mr Tomasetti said immediately that he appeared for Mr Carver.

Mr Tomasetti sought an adjournment of the motion. The following exchange took place:

Leaving aside that the “substantive” point was never taken, even if it had substance, it is not a bar to the correction of orders which contain a plain error by omission.

In paragraph numbered 9 of Mr Carver’s email, he refers to the Court being “ex officio”. I take it that he intended to refer to say functus officio. The Court is not, and cannot be, functus officio so as to inhibit it from dealing with this application.

It is appropriate to record the following exchange which took place at the end of the Crown’s submissions on the application:

The Court orders:

In circumstances where the Crown sought the consent of Mr Carver to correct an obvious error and where, if consent was granted, the matter could have been dealt with in Chambers without the necessity for the Notice of Motion, I consider that Mr Carver should pay the Crown’s costs of the Notice of Motion filed 15 August 2023.

The Court orders that the first defendant is to pay the plaintiff’s costs of this application.