Bostan v European Operations Company Pty Ltd (No 2)
[2023] FedCFamC2G 312
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bostan v European Operations Company Pty Ltd (No 2) [2023] FedCFamC2G 312
File number(s): MLG 2218 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 26 April 2023 Catchwords: FAIR WORK – Practice and Procedure – Slip rule – default judgment – accidental slip or omission rectified by amending orders. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Law) Rules 2021, r 17.05 Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian and New Zealand Banking Group Ltd v James [2021} FCA 768
Bostan v European Operations Co. Pty Ltd & Anor [2023] FedCFamC2G 262
Burrell v The Queen (2008) 238 CLR 218
Endresz v Commonwealth [2019] FCAFC 197
Lamont v University of Queensland (No.1) (2019) FCA 897
L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590
Division: Division 2 General Federal Law Number of paragraphs: 14 Date of hearing: 26 April 2023 Place: Dandenong (via MS Teams) Counsel for the Applicant: Mr Bunce Solicitor for the Applicant: Job Watch Inc. Appearance for the First Respondent: No appearance Appearance for the Second Respondent: Mr Di Nardo ORDERS
MLG 2218 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALEXANDRU-ANDREI BOSTAN
Applicant
AND: THE EUROPEAN OPERATIONS CO. PTY LTD
First Respondent
MARIO DI NARDO
Second Respondent
order made by:
JUDGE O'SULLIVAN
DATE OF ORDER:
26 APRIL 2023
THE COURT ORDERS THAT:
1.Pursuant to Rules 17.05(2)(f) and/or (h), of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’) that orders 2, 3 and 4 of the Court orders dated 14 April 2023 be varied as follows:
(a)reference to the ‘first respondent’ in order 2 be replaced with reference to ‘the respondents’;
(b)reference to the ‘first respondent’ in order 3 be replaced with reference to ‘the respondents’; and
(c)order 4 be varied to allow the applicant 7 days from the date that any varied orders are made to serve the varied orders on the respondents.
2.The orders made on 14 April 2023 when amended shall bear the following notation:
THE COURT FURTHER NOTES THAT:
A.These orders have been amended pursuant to r.17.05(2)(f) &(h) of the Rules by orders made on 26 April 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
INTRODUCTION
On 14 April 2023, for the reasons published as Bostan v European Operations Co. Pty Ltd & Anor [2023] FedCFamC2G 262 (‘the default judgment’), the Court granted default judgment and made various declarations against the first and second respondents.
These reasons, which should be read in conjunction with the default judgment and in which the parties will be referred to in the same terms, concern an application in a proceeding filed on behalf of the applicant on 21 April 2023 for the orders made in the default judgment to be slip ruled.
Upon the application in a proceeding being filed, the parties were advised by email on 21 April 2023 that the matter was listed on 26 April 2023 to consider whether orders pursuant to r 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘GFL Rules’) should be made.
Mr Bunce of Counsel appeared for the applicant via MS Teams. There was no appearance by the first respondent and the second respondent, who made an oral adjournment application which was opposed, appeared in person by telephone.
After hearing from the second respondent, the Court gave brief oral reasons dismissing the adjournment application as the respondents had no evidence to corroborate the claims in support of the oral application, had already been granted indulgences, had not properly participated in the proceedings since, had at all times been put on notice of the applications brought by the applicant and the considerations in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 did not warrant an adjournment given the discreet nature of the slip rule application and the respondents could still pursue what options they had available to them regardless.[1] After the oral adjournment application was refused, Counsel for the applicant identified the material relied on, all of which had been served on the respondents including written submissions dated 25 April 2023.
[1] see adjournment considerations in Lamont v University of Queensland (No.1) (2019) FCA 897 and Australian and New Zealand Banking Group Ltd v James [2021} FCA 768 at [44] – [47].
THE GFL RULES RELIED ON
In the application in a proceeding the following orders were sought:
1.An order pursuant to Rules17.05(2)(c), (f) and/or (h), or Rule 17.05(3), of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) that orders 2, 3 and 4 of the Court Orders dated 14 April 2023 be varied as follows:
(a)Reference to the ‘first respondent’ in order 2 be replaced with reference to ‘the respondents’;
(b)Reference to the ‘first respondent’ in order 3 be replaced with reference to ‘the respondents’; and
(c)Order 4 be varied to allow the applicant 7 days from the date that any varied orders are made to serve the varied orders on the respondents.
2.In the alternative, an order pursuant to Rules 17.05(2)(c), (f) and/or (h), or Rule 17.05(3) of the Rules that orders 2, 3 and 4 of the Court Orders dated 14 April 2023 be set aside and new orders made with the effect as described in Order 1 above.
Rule 17.05 of the GFL Rules reads as follows:
(1)The Court or a Registrar may vary or set aside a judgment or order before it has been entered.
(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the judgment or order; or
(h)there is an error arising in the judgment or order from an accidental slip or omission.
(3)This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.
Rule 17.05 of the GFL Rules provides that the Court may vary or set aside an order after it has been entered if “there is an error arising in the judgment or order from an accidental slip or omission”.
In Burrell v The Queen the High Court relevantly said, at [18] – [21] (internal citations omitted):[2]
[18]The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?
[19]The end of a court's powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court's orders were the criterion, there would never be an end to some disputes. And because one party's assertion of error cannot provide a sufficient criterion, a court's belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this re-argument of issues that would constitute the departure from the principle of finality.
[20]Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
[21]The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.[3]
[2] Burrell v The Queen (2008) 238 CLR 218.
[3] see also Endresz v Commonwealth [2019] FCAFC 197
CONSIDERATION
Given the grounds relied on before an error can be corrected, by means of the slip rule, it must be demonstrated that the mistake concerned was as a result of inadvertence. In her affidavit affirmed 21 April 2023 filed in support of the application in a proceeding Ms Marchetti deposed:
2.On 5 April 2023, JobWatch filed an Outline of Submissions on behalf of the Applicant. Annexed to the Outline of Submissions was a Draft Order, which sought the following orders:
8.Pursuant to section 545 of the Act, the first respondent pay as compensation to the applicant the amount of $20,374.91 forthwith, comprising:
(a) $4,951.84 – outstanding wages;
(b) $704.32 – accrued annual leave;
(c) $1,826.92 – one week’s pay in lieu of notice;
(d)$7,891.83 – compensation for economic loss arising from the adverse action;
(e)$5,000.00 – compensation for non-economic loss for hurt and humiliation caused by the adverse action.
9.Pursuant to section 547 of the Act, the first respondent pay the applicant pre-judgment interest on the sum of $20,374.91.
10.The matter be listed for further directions at on on the matter of penalty.
3.On 6 April 2023, Ms Katherine Gamble, Lawyer at JobWatch, emailed Judge O’Sullivan’s Associate attaching a Microsoft Word Document version of the Outline of Submissions with the Draft Order Annexed.
4.Paragraphs 8 and 9 of the Draft Order only refer to the ‘first respondent’. However, this was an oversight and did not reflect JobWatch or the Applicant’s intention, which was always to ask the Court to issue orders against both respondents. In paragraphs 8 and 9 of the Draft Order, JobWatch intended to refer to the ‘respondents’ collectively.
5.The Applicant’s intention to refer to the ‘respondents’ jointly, rather than only to the first respondent, in paragraphs 8 and 9 of the Draft Orders, is demonstrated by the following:
a.The Applicant’s Application in a Proceeding filed on 15 February 2023, which sought the following orders against the respondents collectively:
1.Orders on default that the First and Second Respondents are individually and collectively in default pursuant to rr.13.04(2)(a) and (b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules).
2.An order that judgment be entered against the First and Second Respondents pursuant to rr.13.05(2)(d) and 13.06(1)(e) of the Rules in favour of the Applicant, including:
a.An order that the Respondents pay compensation to the Applicant for economic loss resulting from the contraventions of the Fair Work Act 2009 (Cth) (FW Act); and
b.An order that the Respondents pay compensation to the Applicant for non-economic loss resulting from the contraventions of the FW Act.
c.An order that the Respondents pay interest to the Applicant on the underpayments that occurred during and arising out of the Applicant's employment….
b.The Applicant’s Outline of Submissions filed on 5 April 2023, which sought a declaration that the second respondent was a person involved in the contraventions of the first respondent of sections 340, 351, 352, 90, 117 and 323 of the Act. This declaration was sought because the Applicant was seeking orders for compensation and pre-judgment interest against both respondents, not only the first respondent;
c.The Applicant’s ‘Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection’ filed on 3 October 2022, which listed two respondents and did not state that compensation was being sought only from the first respondent.
The slip rule is available to permit a court to vary an order that has been entered if, through some slip or omission, the order omits matters, including an order, that should have been included or made, or includes matters, including an order, that ought not to have been included or made. The rule has been applied to a broad range of errors.[4]
[4] see T-S Capital Partners LLC v Paltar Petroleum Limited (administrators appointed), in the matter ofPaltar Petroleum Limited (No.1) [2019] FCA 635 at [20].
In addition to clerical errors of judges or court staff involved in the drafting and entering of orders and judgments, the slip rule has been applied to errors made by litigants and their legal representatives.[5]
[5] L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 2) (1982) 151 CLR 590. See also Tarrant J Amending Final Judgments and Orders, The Federal Press, 2010, pages 23-44.
In the circumstances given the findings in the default judgment I have come to the conclusion that the errors, as demonstrated by Ms Marchetti’s affidavit and for the reasons in the applicant’s submissions, are ones which are amenable to correction pursuant to the slip rule.
CONCLUSION
Accordingly, I will make the orders (and the Notation) set out at the beginning of these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 26 April 2023
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