Lambourne v Baker

1. [1]

   This morning, I granted leave to Mr Marc Alan Lambourne to appear on behalf of Mr Glenn Pollett and Punters Show Pty Ltd. For convenience, I will refer to them as the plaintiffs as that is how they are referred to in the notices of motion. The plaintiffs have filed three notices of motion. They will be referred to by the proceeding numbers that they bear. Proceeding number 9 was filed on 30 October 2024. The plaintiffs have informed me that they are not proceeding with that motion and that motion has been formally dismissed. Notices of motion 11 and 12 were filed on 13 November 2024.

2. [2]

   The defendants to notice of motion 11, Dallas Baker, Todd Cameron Buckingham, BetMakers Technology Group Ltd, 12Follow Pty Ltd and Operis Momentus Group Pty Ltd, are also defendants in notice of motion 12. In notice of motion 12, the principal registrar of the Supreme Court, the prothonotary of the Supreme Court, the registrar of the Court of Appeal and the defendants' solicitor have been joined as defendants. When the notices of motion were before me on 18 November, I informed the plaintiffs that notice of motion 12 was improperly commenced against the principal registrar, the prothonotary, the registrar, and the defendant’s solicitor. They were not parties to any of the proceedings which are the subject of notices of motion 11 and 12.

3. [3]

   The plaintiffs’ initial submission on 18 November was that the Court should, before dealing with notice of motion 11, make an order in the terms of paragraph 5 in notice of motion 12 which is as follows:

4. [4]

   In Lambourne v Baker (No 4) [2024] NSWCA 132 (“Lambourne (No 4)”), the orders made by Basten AJA included the following:

5. [5]

   The plaintiffs submit that there is no reason why the Court should not comply forthwith, with its own order made on 31 May 2024 and release the funds held in court, except the sum of $186,214.86, to Punters Show. In other words, the plaintiffs seek compliance with the Court's orders made in their favour, but not the payment of the moneys ordered by the Court in favour of the defendants. The plaintiffs contend that the outcome of notice of motion 11 cannot have a bearing upon compliance with order 5(b).

6. [6]

   The orders made by Basten AJA in Lambourne (No 4), including order number 5, were challenged by the plaintiffs when they sought a review to the Court of Appeal. In Lambourne v Baker (No 5) [2024] NSWCA 241 (“Lambourne (No 5)”), the Court of Appeal constituted by Ward P, Mitchelmore JA and Kirk JA on 11 October 2024 dismissed the plaintiffs’ notice of motion with costs.

7. [7]

   In notice of motion 11 the plaintiffs ask that;

8. [8]

   The matters, facts and circumstances are set out in paragraphs 1(a) to 1(v) that follow.

9. [9]

   In short, the plaintiffs are asking the Court of Appeal to reconsider the orders it made dismissing the plaintiffs’ application for review of Basten AJA's orders, including order 5(b).

10. [10]

    The orders sought by the plaintiffs in notice of motion 11 go further back into the litigation between the parties than Lambourne (No 5), as in paragraph 2, the plaintiffs seek an order setting aside order 3A made on 19 November 2021.

11. [11]

    The plaintiffs by this order are seeking to set aside costs order 3A made on 19 November 2021 in Lambourne v Baker (No 2) [2021] NSWCA 282 (“Lambourne (No 2)”). In that case, the Court of Appeal was constituted by Basten JA, Gleeson JA and Emmett AJA. Relevantly, order 3 was in the following terms:

12. [12]

    The plaintiffs were the appellants in Lambourne (No 2) and the defendants were the respondents.

13. [13]

    In Lambourne (No 5) at [11]-[44], Ward P detailed the extensive procedural history of proceedings between the parties.

14. [14]

    The reasons why I do not propose to make an order in the terms of paragraph 5 of notice of motion 12 is that I have before me both notices of motion 11 and 12 in which the plaintiffs seek that the Court of Appeal reconsiders its orders in Lambourne (No 5) and order 3A in Lambourne (No 2); all of the proceedings between the parties are interrelated and it would be unjust to the defendants to make the order which the plaintiffs seek in their favour in isolation. In notice of motion 11, another order that the plaintiffs seek, in paragraph 7, is in effect that the sum of $186,214.86 in order 5(a) in Lambourne (No 4) not be released to the defendants.

15. [15]

    I turn to notice of motion 11. The plaintiffs ask this Court to reconsider the reasons and orders made in Lambourne (No 5) on the facts and circumstances in 1(a) to 1(v). The plaintiffs found their application on the slip rule, r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), s 23 of the Supreme Court Act 1970 (NSW) and s 56 of the Civil Procedure Act 2005 (NSW).

16. [16]

    In written submissions, the plaintiff submitted that the grounds in the notice of motion were self‑evident and did not need any further explanation.

17. [17]

    The defendants' senior counsel submitted that none of the matters identified in the plaintiffs’ notice of motion 11 can be characterised as being within the scope of the r 36.17 of the UCPR. Senior counsel submitted that no clerical mistake or an error arising from an accidental slip or omission in a judgment or order has been identified.

18. [18]

    In further written submissions, the plaintiffs submitted that the defendants' senior counsel has not explained why each of the grounds of the motion did not fall within the slip rule principle as explained in the authorities which state that the field is not closed.

19. [19]

    The principles relating to the slip rule, which is embodied in r 36.17 of the UCPR are well established. In Johnston v The Greens NSW (No 2) [2021] NSWCA 291, the Court, Meagher and Brereton JJA, said at [6]:

20. [20]

    It is plain from the reading of the judgment of Ward P (with whom Mitchelmore and Kirk JJA agreed) that careful consideration was given to the arguments advanced by the parties, and detailed reasons were provided for the conclusions reached. There is nothing to suggest that any of the orders made were clerical mistakes.

21. [21]

    The slip rule is not an alternative method of advancing grounds of appeal.

22. [22]

    A number of matters advanced by the plaintiffs complain that the Court of Appeal failed to consider their submissions and arguments. This is a ground of appeal based on authorities such as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40.

23. [23]

    Other paragraphs complain about the failure of the Court of Appeal to provide the plaintiffs with the opportunity to make submissions. These are complaints of a denial of procedural fairness which would be grounds of appeal. Other paragraphs complain of mistaken determinations by the Court. These are complaints of errors of law.

24. [24]

    The true nature of the plaintiffs’ complaint is embodied in paragraph 22 of the plaintiffs' written submissions.

25. [25]

    The complaints in paragraph 22 are all grounds of appeal and not assertions of a clerical slip. It is true that the scope of the slip rule is not closed, however, it does not extend to grounds of appeal. The plaintiffs have a right to seek leave to appeal to the High Court of Australia. I do not propose to make the order sought in paragraph 1(a) to 1(v) of notice of motion 11.

26. [26]

    As to the order sought in paragraph 2, the plaintiffs seek to set aside under the slip rule cost order 3A made in Lambourne v Baker (No 2). In those proceedings, a joint judgment was delivered by the Court. The Court of Appeal gave reasons for its decision and there is no reason to suspect that order 3A was a clerical mistake under the slip rule. I do not propose to make the orders sought.

27. [27]

    When the proceedings were before me on 18 November, I informed the plaintiffs that I would not make the order sought in paragraph 10 in notice of motion 12; that the proceedings be referred for hearing by a Court presided by the Chief Justice. Our system of justice, as I have emphasised, does not permit parties to proceedings to select a judge who will hear their case. The notices of motion have been allocated to me as a referrals judge.

Orders

1. [28]

   Accordingly, I make the following orders:

   1. (1)

      Notices of motion 11 and 12 are dismissed.