Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 2] [2008] WASC 10

CORAM: MARTIN CJ

HEARD: ON THE PAPERS

DELIVERED : 1 FEBRUARY 2008

FILE NO/S: COR 112 of 2007

BETWEEN: AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)
Plaintiff
AND
SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)
First Defendant
SUMMIT RESOURCES LTD (ACN 009 474 775)
Second Defendant

Catchwords:

Corporations - Inspection of books - Corporations Act 2001 (Cth), s 247A - Whether draft witness statement in possession of a party's former solicitor are 'books' of the party

Legislation:

Corporations Act 2001 (Cth), s 237, s 247A, s 431

Result:

The draft witness statement or statements are 'books of' the defendants

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Minter Ellison
First Defendant             :     Clayton Utz
Second Defendant         :     Clayton Utz

Case(s) referred to in judgment(s):

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 207
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Breen v Williams (1996) 186 CLR 71
Chantrey Martin (A Firm) v Martin [1953] 2 All ER 691; [1953] 3 WLR 459; [1953] 2 QB 286
Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125; (2000) 34 ACSR 245
Ex Parte Horsfall (1827) 108 ER 20
Finn v Firefast Pty Ltd [2004] QSC 203
Hall v Sherman [2001] NSWSC 810; (2002) 40 ACSR 40
Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205
Re Jet Corporation of Australia Pty Ltd [1985] VR 716
Wentworth v De Montfort (1988) 15 NSWLR 348

MARTIN CJ: On 3 September 2007, I granted, in part, an application by Areva NC (Australia) Pty Ltd (Areva) for inspection of documents pursuant to s 247A of the Corporations Act 2001 (Cth). I reserved to Areva liberty to apply to inspect other categories of documents. Areva asserts that drafts of a statement of the evidence to be given by a Mr Alan Eggers either should have been produced for inspection pursuant to the orders which I made, or, alternatively, if they do not fall within the scope of those orders, should be the subject of a further order granted pursuant to the liberty to apply. Because it is clear that the drafts of any statements of the evidence to be given by Mr Eggers would be directly relevant to Areva's assessment of the legal merits of the Summit parties' (being Summit Resources (Australia) Pty Ltd and Summit Resources Ltd) claims in proceedings CIV 2021 of 2006 (the substantive proceedings), it is clear that if they come within the scope of s 247A of the Corporations Act, their production for inspection would be consistent with the views I formed and expressed in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 207. Accordingly, it is unnecessary to determine whether the drafts fall within the scope of the orders already made, as if they do not, and they are within s 247A, it is clear that they should be the subject of such an order, consistently with the views expressed in my earlier reasons.
However, the Summit parties resist an order for inspection of the draft statements on two grounds. The first is the assertion that the draft statements are not 'books' of the Summit parties and cannot therefore be the subject of an order made pursuant to s 247A of the Corporations Act. The second ground of opposition is that the draft statements are the subject of legal professional privilege which has not been waived by the Summit parties.
The Summit parties rely upon an affidavit of Mr David Shaw, a solicitor and principal of the firm which had previously acted for Summit Resources (Australia) Pty Ltd in the substantive proceedings. He deposes that in or around late December 2006 and early January 2007, he met with Mr Eggers for the purpose of preparing his witness statement. He further deposes that in early January 2007, he commenced the drafting of Mr Eggers' statement. He further deposes that after reviewing the hard copy files and electronic records maintained by his firm, to the best of his knowledge and belief, the incomplete draft witness statement was never provided to Mr Eggers, or to any other officer or employee of the Summit parties, or to Mr Michael Lishman, or any other partner or employee of Cochrane Lishman.

Are the draft statement 'books' of the Summit parties?

Section 247A of the Corporations Act empowers the court to make an order authorising the inspection of 'books of' a company. The word 'books' is given an expansive definition by s 9 of that Act, and includes:
(a)a register; and
(b)any other record of information; and
(c)financial reports or financial records, however compiled, recorded or stored; and
(d)a document
…
It is clear that the draft or drafts of the statements of the evidence to be given by Mr Eggers are 'books'. In this case, the critical question is whether they are the books of the Summit parties.
In Hall v Sherman [2001] NSWSC 810; (2002) 40 ACSR 40, the same question arose in the context of s 431 of the Corporations Act. That section provides that a controller of property of a corporation is entitled to inspect at any reasonable time 'any books of the corporation that relate to that property'. The question in issue in that case was whether the expression 'books of the corporation' included not only books which were owned by the corporation, but also books which were in the possession of the corporation at the time of the appointment of the relevant controller.
Austin J followed the decision of Gobbo J in Re Jet Corporation of Australia Pty Ltd [1985] VR 716 and held that the expression 'books of the corporation' extended only to books which belonged to the company. Accordingly, his Honour concluded that books which did not belong to the company in question, but which were in its possession at the time of the appointment of the controller were outside the scope of s 431 of the Corporations Act.
Of course, those cases concern access to books by a controller of property. Section 247A is concerned with access to books by a member of a company or registered managed investment scheme. However, I can see no reason why the expression 'books of' would be given a broader meaning in the former context than in the latter. The decisions to which I have referred have stood unchallenged for some time. Although I am not, of course, bound to follow those decisions, uniformity of decision in the interpretation of uniform national legislation is an important consideration (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492), as is judicial comity. I would therefore only depart from those decisions if I was satisfied that they were wrong. I am not so satisfied.
Accordingly, in the present case the question becomes whether the draft or drafts of the statements of the evidence to be given by Mr Eggers 'belong' to the Summit parties in the sense that they are the property of those parties.
In Wentworth v De Montfort (1988) 15 NSWLR 348, the Court of Appeal of New South Wales was required to determine whether documents in the possession of a firm of solicitors were the property of the client. Hope JA, with whom Samuels and Mahoney JJA agreed, reviewed the authorities and texts on the subject. After that review, his Honour concluded that there were a number of factors relevant to the determination of ownership, including whether or not the client was charged with the creation of the document, and whether the solicitor created the document for his client's benefit and protection, or did so for his own benefit and protection. In the case of mixed purposes, Hope JA concluded that the client would ordinarily be entitled to the original of the document, but the solicitor would be entitled to retain a copy for his own benefit.
In the present case, I have no evidence as to whether or not the Summit parties were charged for the creation of the drafts of Mr Eggers' statement of evidence. However, as there is no evidence to the contrary, I am disposed to infer from the usual course of dealings between solicitor and client that Mr Shaw would have charged the Summit parties and been paid for the work that he did in relation to the preparation of the drafts of Mr Eggers' statement.
Some of the documents at issue in Wentworth v De Montfort included notes of conversations between the solicitors and persons other than the client. In that context, Hope JA observed at 358 ‑ 359:
Again a solicitor may interview a witness and take a statement from him. I would have thought that such a statement was taken for the benefit of the client as well as by the solicitor for his own purposes and undoubtedly the client would be charged for the taking of the statement. If a new solicitor took over a client's business, the former solicitor having been paid his fees, I would have thought that the former solicitor would be bound to hand over the statement to the new solicitor, although he could keep a copy for which he had not charged.
As I have indicated, Cordery suggests that both that 'entries of attendance' and 'proofs of evidence' are the property of the solicitor. No authority is cited for these suggestions, and I would have thought that they both fell squarely within the first of the four categories described by Cordery and that they each belonged to the client. The 'Guide to the Professional Conduct of Solicitors' issued by the (English) Council of the Law Society (1974) stated (at 39) that a memorandum of a telephone conversation with a third party made by a solicitor is the property of the client, and is accordingly to be handed over on a change of solicitors.
The Summit parties seek to avoid the application of the principles enunciated by Hope JA in Wentworth v De Montfort by pointing to the fact that the documents in question are a draft or drafts of a proposed witness statement. They submit that there is no evidence that the solicitor intended to provide this draft or a copy of it to the Summit parties or anyone else. They submit that the evidence sustains an inference that the solicitor was still working on the draft, and did not intend to part with it until he had completed his work.
However, it seems that the conclusions to be drawn in respect of the intentions of the solicitor as to the future use to which the document would be put are not to the point of the principles enunciated by Hope JA in Wentworth v De Montfort. Those principles turn upon the question of the identification of the person for whose benefit the document was prepared. The decision in Wentworth v De Montfort stands for the proposition that a proof of evidence should be taken to be prepared by the solicitor for the benefit of the client and therefore belonged to the client. I can see no reason why any different conclusion should be reached in respect of the draft or drafts of a proof of evidence. In the present case, it is to be inferred from Mr Shaw's affidavit that the draft or drafts record statements made by Mr Eggers during the course of his meetings with Mr Shaw in late December 2006 and early January 2007. To that extent, the documents also fall within the category of documents identified by Hope JA as having been taken for the benefit of the client as well as for the solicitor. In respect of that category, Hope JA was of the view that property in the document belonged to the client, subject to the right of the solicitor to retain a copy for his own purposes.
The Summit parties also relied upon the observation of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at 80:
Documents prepared by a professional person to assist the professional person to perform his or her professional duties are not the property of the lay client; they remain the property of the professional.
Brennan CJ cited two authorities for that proposition. The first, Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205, concerned the question of property in books and records prepared by valuers who had been engaged to undertake the valuation of property on behalf of a local authority. MacKinnon LJ observed at 216:
If an agent brings into existence certain documents while in the employment of his principal, they are the principal's documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. … These pieces of paper, as it seems to me, cannot be shown to be in any sense the property of the plaintiffs, any more, as I suggested to Mr Macaskie during the argument, that his solicitor client or his lay client could assert that his notes of the argument he addressed to us could be claimed to be delivered up by him when the case is over either to the solicitor or to the lay client. They are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore they cannot be said to be the property of the principal.
That passage is entirely consistent with the principles enunciated by Hope JA in Wentworth v De Montfort, which focused critically upon the identification of the person for whose benefit the documents were produced.
The second case cited by Brennan CJ, Chantrey Martin (A Firm) v Martin [1953] 2 All ER 691; [1953] 3 WLR 459; [1953] 2 QB 286 concerned working papers brought into existence by chartered accountants in the preparation of an audit of a client's books. The Court of Appeal held that those working papers were the property of the chartered accountants and not the client. After referring to the decision in Ex Parte Horsfall (1827) 108 ER 20, which concerned the drafts of deeds, Jenkins LJ (giving the judgment of the court) observed at 293:
Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc., made by him for his own information in the course of his business which remains his property, although brought into existence in connexion with work done for clients.
Again, this passage seems to me to be entirely consistent with the principles enunciated by Hope JA in Wentworth v De Montfort.
Accordingly, when regard is had to the authorities cited by Brennan CJ in support of the observations which he made in Breen v Williams, it is clear that he was not advancing any proposition inconsistent with that enunciated in Wentworth v De Montfort. Rather, properly construed, he was reinforcing that proposition, by emphasising the importance of the identification of the person for whose benefit the document was produced.
In the present case, it seems to me that the proper inference to be drawn from the limited evidence before me is to the effect that the draft or drafts of the statement of the evidence to be given by Mr Eggers were prepared for the benefit of the Summit parties or, perhaps, for the benefit of both the Summit parties and their solicitor. As the decision in Wentworth v De Montfort establishes that in both cases, property in the original of the document resides with the client - in this case the Summit parties, I conclude that the draft or drafts of the statements of the evidence given by Mr Eggers and prepared by Mr Shaw at a time when he was acting for and on behalf of the Summit parties in relation to the relevant litigation are the property of and belong to those parties, and are therefore 'books of' those parties for the purposes of s 247A of the Corporations Act.

Legal professional privilege

It is surprising that the Summit parties have raised an objection to inspection on the ground of legal professional privilege at this stage of these proceedings. That is because no similar objection was taken to the application for authority to inspect books and records which are plainly within the scope of legal professional privilege (see the description of the categories of documents, the subject of the orders which I made on 3 September 2007 - Areva NC (Autralia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 207, [32]).
As a result of orders already made, Areva has been entitled to inspect a vast array of information which is the subject of legal professional privilege in favour of the Summit parties and which bears upon the substantive proceedings which Areva seeks to conduct for, and on behalf of, Summit Resources (Australia) Pty Ltd pursuant to the relief which it seeks in the proceedings which it has brought under s 237 of the Corporations Act (COR 114 of 2007).
Significantly, the Summit parties do not submit that legal professional privilege is an insurmountable barrier to the making of an order for inspection under s 247A of the Corporations Act. They appear to accept, by their written submissions, that the decisions in Finn v Firefast Pty Ltd [2004] QSC 203 and Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125; (2000) 34 ACSR 245 correctly assume that an order can be made for the inspection of documents pursuant to s 247A of the Corporation Act, notwithstanding that they are the subject of legal professional privilege.
So, the position of the Summit parties appears to be that the existence of legal professional privilege is a relevant matter to be taken into account in exercising the discretion conferred by s 247A, and in determining the conditions upon which authority to inspect will be granted.
Taking that approach to the matter, in the context of the vast array of privileged information which has already been provided to Areva, I cannot see any basis upon which it could be concluded that the provision of authority to inspect the draft or drafts of the statements of the evidence to be given by Mr Eggers could cause any significant prejudice to the Summit parties. The stance taken by Mr Eggers, and the importance of his evidence is one of the issues identified by Mr Lishman in his letter of advice to the directors of the Summit parties of 5 July 2007. It is therefore reasonable to infer that it will be a topic of significance in the litigation of Areva's application under s 237 of the Corporations Act. The forensic purpose to be served by the provision of inspection of those documents to Areva is therefore potentially significant. On the other hand, there does not appear to me to be any basis for inferring that Areva will take any step which could result in the abrogation of legal professional privilege in the draft or drafts of the witness statements. And if the Summit parties have any particular concerns in that regard, they are matters that can be addressed by the imposition of conditions upon the authority to inspect. I will invite the Summit parties to make submissions on that subject before making any final orders.
Areva also submits that the Summit parties have in any event waived the legal professional privilege which attaches to the documents in question. The propositions advanced by Areva in support of that submission appear to me to be somewhat tenuous, but in light of the view which I have formed, it is unnecessary to resolve those questions.

Summary

In my opinion, the draft or drafts of the statements of the evidence to be given by Mr Alan Eggers which were prepared by Mr Shaw at a time when he was acting as solicitor for the Summit parties, are 'books of' those parties and can and should be the subject of an order for inspection by Areva made pursuant to s 247A of the Corporations Act. However, before making orders for inspection, I will invite the Summit parties to make submissions in respect of the conditions upon which inspection should be provided.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [No 2] [2008] WASC 10 (S)

CORAM: MARTIN CJ

HEARD: ON THE PAPERS

DELIVERED : 1 FEBRUARY 2008

SUPPLEMENTARY
DECISION :8 JULY 2008

FILE NO/S: COR 112 of 2007

BETWEEN: AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)
Plaintiff
AND
SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)
First Defendant
SUMMIT RESOURCES LTD (ACN 009 474 775)
Second Defendant

Catchwords:

Practice and procedure - Costs - Application to amend costs order - Slip rule - Whether slip rule applicable - Not characterised as an afterthought - Section 215(2) Legal Practice Act 2003 (WA)

Legislation:

Legal Practice Act 2003 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

The application falls within the scope of the slip rule, therefore, the plaintiff's application for an order varying the costs order is allowed

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Minter Ellison
First Defendant             :     Clayton Utz
Second Defendant         :     Clayton Utz

Case(s) referred to in judgment(s):

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gould v Vaggelas (1985) 157 CLR 215
Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S)
Kokos International Pty Ltd v Libra Motors Pty Ltd (No 3) [2007] WASC 301
Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 103 FLR 290

MARTIN CJ: The plaintiff, Areva NC (Australia) Pty Ltd (Areva), applies for an order varying a costs order made in its favour on 3 September 2007 so as to include a direction that the limit which would be imposed by item 11 of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) be removed and for orders that its costs include matters which occurred subsequent to the making of the costs order on 3 September 2007.
At least in respect of that part of the orders sought which would remove the limit applicable to the taxation of costs awarded in Areva's favour, Areva accepts that the application must be brought within the 'slip rule', which in Western Australia is provided by Rules of the Supreme Court 1971 (WA) O 21 r 10, which states:
Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.

The substantive merits of the costs application

Section 215(2) of the Legal Practice Act 2003 (WA) empowers the court to remove any limit upon the amount of costs allowable in respect of a particular matter imposed by a relevantly applicable legal costs determination if the court is of the opinion that the amount of costs allowable would be inadequate 'because of the unusual difficulty, complexity or importance of the matter'. In Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) (at [11] ‑ [21]), I expressed the view that the proper application of s 215(2) requires the court to undertake a two‑stage test.
The first step in the process required by s 215(2) is to assess whether there is a fairly arguable case to be put before a taxing officer to the effect that the bill should properly tax out at more than the limit that would be imposed by the costs determination. Areva has filed written submissions identifying the substantive amount of work involved in the preparation, presentation and argument of the originating application which it brought. As the defendants do not challenge the proposition that it is fairly arguable that Areva's costs should be taxed at more than the limit imposed by the relevant item in the costs determination (item 11 - which would impose a maximum of $27,456), it is unnecessary for me to detail the work done. It is sufficient for me to observe that, having regard to the description of the work done, and my own knowledge of the case and the issues which were ventilated during its argument, I am satisfied there is a fairly arguable case to be put before a taxing officer to the effect that Areva's bill should tax out at more than the amount of $27,456.
The second step in the process required by s 215(2) of the Legal Practice Act is to determine whether there is the required causal nexus between the arguable case to be put before the taxing officer and either the unusual difficulty, complexity, or importance of the matter. Again, Areva's submissions address in detail the reasons why it is said that this matter falls within each of the three categories specified by s 215(2) of the Legal Practice Act. As the defendants do not challenge Areva's assertion, it is unnecessary for me to go into those issues in detail, other than to observe that I am satisfied, based on Areva's submissions and my knowledge of the case, that Areva's application falls within each of the three categories, in that it was unusually difficult, complex, and of significant importance to the parties, and that those characteristics are causally related to the fairly arguable case to the effect that Areva's taxed costs should properly exceed the amount limited by the relevant costs determination.
Accordingly, the defendants do not substantially challenge the proposition that if an application had been made on 3 September 2007 for an order of the kind which is now sought, that application should have been granted. However, they oppose Areva's application to the effect that an order of that kind should now be made, on the basis that the application either does not fall within the slip rule, or alternatively, that if it does fall within the slip rule, the discretion conferred upon the court by that rule should not be exercised in Areva's favour.

The slip rule

It is important at the outset to observe that the purpose of the slip rule is to avoid injustice to litigants - see Gould v Vaggelas (1985) 157 CLR 215 at 274 ‑ 275. As a provision intended to have the beneficial effect of avoiding injustice, its potential application should not be constrained by a narrow or restrictive approach to the circumstances in which it might be applied:
Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation. (Gould above at 275)
It is clear that in this case, if the discretion conferred by the rule is not exercised, Areva will suffer an injustice by being denied an order that it would have obtained had application been made at the appropriate time. The essential questions to be resolved are:
(a)whether Areva's application falls within the slip rule; and, if so,
(b)whether there are factors which militate against the exercise of the discretion in Areva's favour.
In relation to the first issue, the defendants submit that Areva's application for a special costs order is properly characterised as an 'afterthought' which falls outside the scope of the slip rule. The defendants rely in this regard upon observations in respect of 'afterthoughts' in Gould at 274 ‑ 275 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407.
However, there is nothing in those cases which would suggest that the characterisation of an application under the slip rule as an 'afterthought' takes the matter outside the scope of the slip rule. On the contrary, in each of those cases, it is clear that the only relevance of the characterisation of the application in that way was in relation to the exercise of the discretion under the slip rule.
The defendants also rely upon passages in the decision in Kokos International Pty Ltd v Libra Motors Pty Ltd (No 3) [2007] WASC 301 at [94], which suggest that characterisation of a realisation that an order requires correction as an 'afterthought' would take the matter outside the slip rule. In that case, Johnson J, relied upon observations made by Asche CJ in Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 103 FLR 290 at 295. However, in that case Asche CJ concluded, on the particular facts there under consideration, that the omission of the plaintiff's solicitor to ask for a significant and substantial proviso to the final orders made in the case could not properly be characterised as an 'accidental slip or omission'. So, that case stands for the obvious proposition that the question which must be asked, in order to assess whether an application falls within the slip rule, is whether an error in the relevant judgment or order came about as a result of an accidental slip or omission. It does not stand for the proposition that there is some particular category of accidental slip or omission which, when recognised, results in a subsequent application being characterised as an 'afterthought' which falls outside the scope of the slip rule. It is also significant that Asche CJ observed, in the course of his reasons in that case (at 295):
Omissions to seek costs or interest can be true examples of oversight because they are usually a necessary part of the proceedings, and omission to ask for them at the time when they should be sought can almost invariably be explained in only one way.
In this case, evidence has been given as to the circumstances which gave rise to the omission to seek an order pursuant to s 215(2) of the Legal Practice Act at the time the costs order was made in September 2007. That evidence establishes that Areva is primarily represented by solicitors and counsel based in New South Wales, who were not aware of the particular costs regime applicable in Western Australia at the time the costs orders were made. Western Australian counsel received the judgment of the court, but he was not counsel who had been engaged in the argument of the matter, and any failure on his part to address the question of whether or not a special costs order was required could, I think, be fairly characterised as an accidental slip or omission.
Accordingly, for these reasons, it appears to me to be clear that Areva's application falls within the scope of the slip rule.
In relation to the exercise of discretion under that rule, the defendants reiterate their submissions in respect of the characterisation of Areva's application as an 'afterthought' and point to the delay in the bringing of the application which is said to bring the administration of justice into disrepute, and to challenge the public interest in the finality of litigation.
The evidence to which I have referred establishes the circumstances which gave rise to Areva's accidental slip or omission. In my view, there is no substance in the proposition that the subsequent realisation of that slip or omission should properly be characterised as an 'afterthought', in the sense in which that term is used in the authorities to which I have referred, and which gives rise to a discretionary factor adverse to an applicant under the slip rule. In relation to delay, although the costs orders which are sought to be varied were made on 3 September 2007, they were not the last step in these proceedings by any means. Since those orders were made, the documents the subject of the proceedings were produced (in 62 lever arch folders) and inspected, and further issues arose between the parties in respect of the question of whether or not particular categories of documents fell within the terms of the earlier order, or, alternatively, ought be the subject of orders pursuant to a liberty to apply which was reserved to Areva. Those issues were not finally resolved until February 2008, and Areva's application in respect of a special costs order was foreshadowed within a month or two of the resolution of those issues.
Therefore, it does not seem to me that Areva's delay in making its application can, in those circumstances, be characterised as undue or unreasonable, nor can it be said that Areva's application offends against the public interest in the finality of litigation.
Accordingly, as I am satisfied that Areva's application falls within the scope of the slip rule, that prejudice would be occasioned to Areva if the orders which it seeks are not made, and that there are no discretionary factors which significantly militate against the exercise of the powers conferred by the slip rule in Areva's favour, I propose to make the orders sought.

[2008] WASC 10

1 February 2008