Abacus Australia Ltd v Bradstock G I S Pty Ltd
[2001] VSC 19
•13 February 2001
| SUPREME COURT OF VICTORIA | |
| COMMERCIAL AND EQUITY DIVISION | Not Restricted |
No. 4779 of 1998
| ABACUS AUSTRALIA LTD (ACN 008 664 140) | Plaintiff |
| v | |
| BRADSTOCK G.I.S. PTY LTD (ACN 060 643 647) | Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2001 | |
DATE OF JUDGMENT: | 13 February 2001 | |
CASE MAY BE CITED AS: | Abacus Australia Ltd v Bradstock G.I.S. Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 19 | |
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Judgment – Application to vary – Slip rule – Rule giving power to vary – Inherent power – Justice requiring variation – Rules 21.07 and 36.07 of Rules of Supreme Court.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr F. Holzer | Keith Hercules |
| For the Defendant | Mr T. North | Gadens Lawyers |
HIS HONOUR:
Application by summons brought by plaintiff seeking an order that a judgment entered in the proceeding dated 9 November 1999 be varied or amended to the effect that there be judgment for the plaintiff against the defendant for damages to be assessed.
The judgment
On 4 November 1999, Abacus Australia Ltd ("the plaintiff") as plaintiff issued a summons in the proceeding seeking judgment in default of delivery of the defence by Bradstock G.I.S. Pty Ltd ("the defendant") as defendant.
On 17 March 1998, the plaintiff issued a writ in the court against the defendant seeking injunctive relief and damages. The plaintiff made application for injunctive relief and after a contested hearing, Beach J on 24 March 1998 granted interlocutory injunctions. Thereafter pleadings were delivered and notices for discovery were served.
At a directions hearing on 29 July 1999, Master Bruce made the following order by consent –
"By 4.00 p.m. on 26 August 1999 the defendant give discovery of documents and in default the defendant's defence be struck out."
The defendant failed to provide an affidavit of discovery.
On 4 November 1999, the plaintiff filed a summons seeking judgment in default of defence.
The amended statement of claim dated 4 November 1998 concluded with a prayer for relief which sought permanent injunctions against the defendant, an order that the defendant deliver up certain documents to the plaintiff, damages, an account of profits and any necessary accounts and enquiries.
The plaintiff's summons sought permanent injunctions, an order for delivery up of certain documents, that damages be assessed and account of profits and any necessary accounts and enquiries.
In the affidavit in support evidence was adduced that the defence of the defendant had been struck out and that application was made for judgment in default of defence.
Counsel appeared on behalf of the plaintiff. No notice was given of the application to the defendant. The summons was returnable before a judge in the Practice Court.
The application was made pursuant to Rule 21.02 which by reason of paragraph 3 thereof applies where a defendant has served a defence and by order the defence is struck out.
The court is empowered by reason of Rules 21.03 and 21.04 to enter judgment in respect of a claim for damages and also injunctions.
The plaintiff's summons came on for hearing before Beach J on 9 November 1999.
The court record of the hearing which was prepared by the Judge's Associate records the judgment of the court as follows –
"Judgment for the plaintiff in the terms of the order of Beach J made 24/3/98.
Proceeding is referred to a Master of the court to have plaintiff's damages assessed on a date to be fixed.
Defendant to pay plaintiff's costs including reserved costs."
The reference to the orders made by Beach J on 24 March 1998 is a reference to the orders made on the application for interlocutory injunctions. The authenticated order of that date grants an interlocutory injunctions restraining the defendant from using information and communicating to others any confidential information and requiring the defendant to deliver up certain documents. The authenticated order also went on to provide that the costs of the application were reserved and that costs of an appearance on 19 March 1998 were to be costs in the proceeding.
The judgment as authenticated by the court on 22 November 1999 reads as follows –
"THE COURT ORDERS THAT:
1.Judgment for the plaintiff in the terms of the order of the Hon. Mr Justice Beach, made 24 March 1998.
2.The proceeding is referred to a Master of the court to have the plaintiff's damages assessed on a date to be fixed.
3.The defendant pay the plaintiff's costs including reserved costs."
It can be seen that the general form of order was in accordance with the court record prepared by the Judge's Associate.
Subsequent events
The authenticated orders made by Beach J were not served on the defendant until 21 February 2000. The defendant made application to set aside the orders of Beach J in March and after a contested hearing on 24 March 2000 Beach J dismissed the summons with costs to be taxed.
No attack was made on the form of the authenticated order before His Honour and the application sought to set aside the judgment on the basis that it was a regularly entered judgment but in the exercise of the discretion the court ought to set it aside and give the defendant an opportunity to go to trial.
The defendant did not appeal the order made by Beach J dismissing the summons.
On 28 November 2000, the plaintiff filed a summons to have the damages assessed. It came on before Master Evans on 19 December 2000 and he indicated that there was no judgment for damages and accordingly he could not assess the damages.
This prompted the plaintiff to issue its summons on 4 January 2001 to amend or vary the form of order.
It is clear that until Master Evans raised the question, the matter had proceeded on the basis that the order was in proper form and more significantly the parties had understood what it meant.
Plaintiff's summons
The plaintiff's summons seeks an order that the judgment dated 9 November 1999 be amended or alternatively varied to provide that there be judgment for damages or alternatively that the judgment be amended or varied in such other way as the court "may deem meet".
Mr North of Counsel who appeared for the defendant submitted that there was no power in the court to amend or vary the judgment and after some discussion I granted leave to the plaintiff to amend the summons by identifying the bases of the jurisdiction relied upon. The plaintiff relies upon Rules 21.07 and 36.07 and the inherent jurisdiction of the court.
It is also noted that the plaintiff only seeks to vary paragraph 2 of the authenticated order so that it was clear there was interlocutory judgment for damages to be assessed.
The day prior to the hearing, late in the afternoon, the defendant, through its solicitors, delivered affidavit material and submissions which raised issues as to setting aside the judgment as being irregular and seeking an order that the defendant in effect have leave to proceed. Mr Holzer of Counsel for the plaintiff sought an adjournment on the grounds that his solicitor needed time to obtain instructions and to consider the question of briefing senior counsel. After some debate I ruled that I would hear the application of the plaintiff with respect to the form of the judgment and that if it was set aside then the question of the defendant having leave to proceed could be the subject of a further hearing.
Jurisdiction
Order 21 is concerned with, inter alia, judgment in default of pleading.
Rule 21.07 provides -
"The court may set aside or vary any judgment entered or given in accordance with this order."
(Emphasis added.)
It is to be observed that the court may vary any judgment which was entered in accordance with Order 21. The judgment was in fact entered in accordance with Order 21.
Rule 36.07 is the "slip rule" and provides –
"The court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission."
It is observed that the jurisdiction is confined to correcting a clerical mistake in a judgment or an error in a judgment arising from any accidental slip or omission.
In addition to the powers in the Rules, the court has an inherent jurisdiction to amend or vary a judgment or order which has been authenticated where there is some error and the court takes steps to ensure that the authenticated order states correctly what the court decided and intended. See Lawrie v Lees (1881) 7 App Cas 19 at 34-5. The inherent power also enables the court to clear up any ambiguity or uncertainty and also to correct any mistake or error made by an officer of the court in drawing up the judgment. See Oxley v Link (1914) 2 KB 734 at 738 and 746.
But the general rule is that once a judgment or order has been authenticated in a form which correctly expresses the intention with which it was made by the court, the court has no jurisdiction to review, vary or set it aside and the only avenue open to any party to attack the judgment is to appeal.
In Bailey v Marinoff (1971) 125 CLR at p.530 Barwick CJ said –
"Once an order disposing of a proceeding has been perfected by being drawn up as the requisite record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court."
In the same case at p.539 Gibbs J said –
"It is a well settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. … The rule rests on the obvious principle that it is desirable that there be an end to litigation on the view that it would be mischievous if there were jurisdiction to re‑hear a matter decided after full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court but is inherent in the court."
(Emphasis added.)
This present application is unusual in that it is the plaintiff who obtained the judgment who seeks to have it varied to give effect to what it sought in the summons seeking judgment in default of defence. In my opinion the rules referred to and the inherent power of the court permit a plaintiff to make application to vary the judgment in its favour.
The slip rule
There is no evidence as to what occurred before Beach J on the application which led to the judgment being pronounced. Further, the judgment as authenticated followed precisely the court record prepared by the Associate.
In my opinion there is no evidence that there was a clerical mistake made in the judgment. Further, I am not persuaded that there was an error in the judgment arising from some accidental slip or omission. The Court Record of Hearing completed by the Associate records the judgment of the Court. The summons sought a number of orders including interlocutory judgment for damages to be assessed. The application was unopposed and it would be expected that the court would pronounce judgment in accordance with the terms of the summons.
But it is not possible to say what the learned Judge said at the time. What his Associate recorded became the authenticated judgment of the Court.
It follows that the Court could not find that the circumstances which attract the operation of the slip rule have been established. What was recorded could have been what the Judge pronounced.
Power to vary
Rule 21.07 gives the court a power to vary any judgment entered or given in accordance with order 21. This includes a judgment given in default of defence.
The power to vary a judgment entered in default of delivery of defence was introduced into the 1986 Rules. The previous Rules did not provide the power. On the other hand the previous Rules, namely, the 1957 Rules, did give power to the court to vary a judgment entered in default of appearance. See Order 13, Rule 10.
The English Rules of 1965 also empowered the court to vary any judgment entered in default of defence. See Order 19, Rule 9.
Despite the presence of the power to vary a judgment there is a surprising dearth of authority in relation to the exercise of the power.
In Ban Hin Lee Bank Berhad v Sonali Bank, judgment delivered 28 November 1988, (see Independent Newspaper) the Court of Appeal varied the amount of the default judgment to correct the rate of interest.
In my opinion there is no reason to restrict the clear discretion which is given to the court by Rule 21.07 to vary a judgment in appropriate circumstances. The court would not vary a judgment unless there was good cause and in the absence of proof of some error, so that what was recorded did not give effect to the object of the proceeding and what the Court intended to do.
The inherent power is available to ensure justice is done, although it is unlikely that it would be exercised if rights were established and relied upon – see Meyer v Meyer (1948) p.89 at 95. Evershed LJ op cit described the inherent power when he said –
"I prefer not to attempt a definition of the extent of the court's inherent power to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so".
(Emphasis added.)
It is undesirable to limit the scope of the powers – see Thynne v Thynne (1955) p.272 at p.313. See also Bailey v Marinoff, supra, at p.544.
Rule 21.07 and the inherent power of the court give the court jurisdiction in an appropriate case to vary an order. The word "vary" in Rule 21.07 should not be given a restricted meaning and covers a change, amendment, modification or alteration of an order. The rule and the inherent power should be applied where the purposes of justice require the court to vary the order.
In the present matter the plaintiff by its summons sought the appropriate relief which was in the form set out in the statement of claim and which sought, inter alia, judgment for damages to be assessed. Under the Rules of Court the plaintiff was not obliged to give the defendant notice and all the plaintiff had to establish was the fact of default and judgment would then follow in the usual form.
The plaintiff did adduce the necessary evidence to the court and the court in the absence of good cause, was obliged to give judgment in accordance with what was sought in the summons.
Given the substantial experience of Beach J I have no doubt that it was the intention of the court to enter judgment for the plaintiff for damages against the defendant to be assessed in accordance with the Rules of Court. The actual record of the court, in my view, provides the evidence that the Judge intended that there be judgment for damages and that they be assessed.
The plaintiff seeks the variation of the order to give effect to what it sought and what the court intended to do. No rights in the meantime had been established and the proposed variation to the judgment will not affect the rights of any other person or cause prejudice to any person. In my opinion the purposes of justice require that the court does vary the order as sought by the plaintiff in the summons.
Whilst the plaintiff has not sought a variation of the other paragraphs of the judgment, in my opinion in the exercise of the inherent power of the court the authenticated order should be corrected to give effect to what the court obviously intended and to ensure that the judgment on the court record is in proper form.
Accordingly, I am prepared to make the following orders:-
1.That the judgment of the court authenticated on 22 November 1999 be varied by deleting paragraphs 1 and 2 thereof and substituting the following –
1.An injunction restraining the defendant by its servants, agents or howsoever otherwise from
(a)using information the defendant has received whilst acting as insurance broker for the scheme or arrangement for insurance maintained by the plaintiff on behalf of its members for insurance against professional liability as accountants being the names and addresses of the members of the plaintiff, particulars necessary for the completion of a proposal for professional indemnity insurance and the issuing of a professional indemnity insurance policy and the payment of subscriptions (a confidential information) for the purpose of
(i)writing to or otherwise communicating with members of the plaintiff for the purpose of soliciting or otherwise attempting to obtain the professional indemnity insurance business of the members of the plaintiff;
(ii)attempting to obtain proposals for professional indemnity insurance from members of the plaintiff;
(b)communicating the confidential information to any person other than the plaintiff, the insurer to the insurance scheme or solicitors, investigators or others retained by the insurers to the insurance scheme and the plaintiff for the purpose of the insurance scheme.
2.The defendant to deliver up to the plaintiff –
(a)any proposals for professional indemnity insurance received by the defendant from members of the plaintiff for the period commencing 1 April 1998;
(b)all copy insurance policies, copy proposal forms, quotations, statements and other documents received or created by the defendant while acting as broker for the insurance scheme.
3.That the defendant pay the plaintiff damages to be assessed by a Master of the court on a date to be fixed.
4.That paragraph 3 (of the order) be amended by deleting "3" and substituting "4".
I will hear the parties on the question of costs of the present application.
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CERTIFICATE
I certify that this and the 9 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 13 February 2001.
DATED: this thirteenth day of February 2001.
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Associate
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