SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
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Details
- Case
- [2015] ACTSC 149
- Decision Date
CaseChat Overview and Summary
The case of Brennand v Hartung (No 3) involves the plaintiffs, Brennand and others, and the defendants, Hartung and others. The dispute revolves around the application of the slip rule in correcting inadvertent errors in court orders, specifically in relation to costs orders. The proceedings were initially heard by Master Harper who made various orders, including refusing an extension of time and striking out the Statement of Claim. The plaintiffs subsequently appealed against the dismissal of their claims, and the appeal was dismissed in the Brennand Appeal Decision, with some amendments to the Costs Certificate. The current case focuses on rectifying errors in the orders made by Master Harper.
The central legal issue before the court was whether the slip rule could be applied to amend orders made by Master Harper to correct inadvertent omissions, particularly regarding the costs orders. The court needed to determine if the omission of an order that was clearly contemplated by the reasons for decision could be corrected under the slip rule. Additionally, the court had to consider whether an order for costs was appropriate in this context, given that the error was made by the court and no prejudice was suffered.
In resolving these issues, the court found that the slip rule could indeed be applied to amend the orders made by Master Harper to include a forgotten order regarding costs. The court noted that while the precise time when an order is perfected is not entirely clear, the recording of the orders in the associate’s notes and their inclusion in a standard form headed “Order” indicated that the orders had passed into the court record. The court also observed that the ordinary principles of costs should apply, and since no prejudice was suffered, there was no need for an order for costs in this case. The court emphasised the importance of the suitors’ fund in such circumstances.
The court’s final order was to amend the orders of the Master in Brennand v Hartung [2012] ACTSC 150 to include a further order that the plaintiffs pay the defendants’ costs of the application dated 12 September 2012. This amendment was made to rectify the inadvertent omission and bring the orders in line with the reasons for decision.
The central legal issue before the court was whether the slip rule could be applied to amend orders made by Master Harper to correct inadvertent omissions, particularly regarding the costs orders. The court needed to determine if the omission of an order that was clearly contemplated by the reasons for decision could be corrected under the slip rule. Additionally, the court had to consider whether an order for costs was appropriate in this context, given that the error was made by the court and no prejudice was suffered.
In resolving these issues, the court found that the slip rule could indeed be applied to amend the orders made by Master Harper to include a forgotten order regarding costs. The court noted that while the precise time when an order is perfected is not entirely clear, the recording of the orders in the associate’s notes and their inclusion in a standard form headed “Order” indicated that the orders had passed into the court record. The court also observed that the ordinary principles of costs should apply, and since no prejudice was suffered, there was no need for an order for costs in this case. The court emphasised the importance of the suitors’ fund in such circumstances.
The court’s final order was to amend the orders of the Master in Brennand v Hartung [2012] ACTSC 150 to include a further order that the plaintiffs pay the defendants’ costs of the application dated 12 September 2012. This amendment was made to rectify the inadvertent omission and bring the orders in line with the reasons for decision.
Orders
Orders of the court
1. The orders of the Master in Brennand v Hartung [2012] ACTSC 150 be amended to add a further order as follows:
3A The plaintiffs pay the defendants’ costs of the Application in Proceeding dated 12 September 2012.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The proceedings had a chequered progress as is set out in my decision Brennand v Hartung [2014] ACTSC 326 (Brennand Appeal Decision) at [14]. On 28 September 2012, Master Harper made various orders including refusing an extension of time, for which the plaintiffs had applied under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and striking out the Statement of Claim that they had filed. He also made, and intimated (a matter that will be dealt with below) the making of, costs orders. See Brennand v Hartung [2012] ACTSC 150 (Brennand (No 2)). On 18 July 2013, Master Harper dismissed an application to join a third defendant and, on reviewing a draft Statement of Claim that had been filed consequent upon the striking out of the earlier statement of claim, considered that none of the present claims could succeed and dismissed the proceedings. See Brennand v Hartung [2013] ACTSC 132 (Brennand (No 3)) The plaintiffs appealed against that decision and sought a review of a decision of the Deputy Registrar on an assessment of costs. I dealt with them in the Brennand Appeal Decision, dismissing the appeal and review generally, save for an amendment to the Costs Certificate of the Deputy Registrar to reflect an admitted offset that needed to be recognised. On 22 January 2015, I made costs orders consequent upon my decision dismissing the appeal. See Brennand v Hartung (No 2) [2015] ACTSC 2. Part of my decision related to orders of Master Harper in Brennand (No 2) where his Honour clearly intended certain orders but made them either elliptically or inadequately. While the intention was clear, I suggested in the Brennand Appeal Decision (at [154]), that the record should be rectified by application under r 6906 of the Court Procedures Rules 2006 (ACT). As noted in R v Cripps; Ex parte Muldoon [1984] QB 686 at 694, such a provision is commonly called “the slip rule”. The slip rule is usually applied to perfected orders for, until an order is perfected, it can be recalled, reconsidered and revealed. See In Re Suffield & Watts; Ex parte Brown (1888) 20 QBD 693 at 697; DJL v The Central Authority (2000) 201 CLR 226 at 244. It has been pointed out in Norman v Norman (1992) 6 WAR 372 at 375 that the precise time when an order or judgment is perfected is not entirely clear. Here, the order was set out in a document headed “Order” in a standard form published with the reasons in Brennand (No 3). The orders were also recorded in the associate’s notes, signed by her. In criminal proceedings, such as a sentence, this recording by the associate appears to be the point when the orders of the court pass into the court record: Jovanovic v The Queen (1999) 92 FCR 580 at 590; [48]. On the other hand, there is a prescribed form for orders: Form 2.45 (Prescribed Form AF 2006-473). It also has provision in it for a date to be inserted when the order is “entered”. Many courts have specific provisions as to when an order will be perfected or authenticated. See, for example, Deputy Commissioner for Taxation v VATS [2014] FCCA 1744 at [36]; Cowdery v Adidem Pty Ltd (t/as The Body Shop) [2014] VSC 132 at [42]; DIB Group Pty Ltd v Coolebah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [72].
Ratio Decidendi
Legal Principle Established
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