Cappucio, Andrew v Chrysler Australia (Sales) Pty Ltd

[1980] FCA 80

Re: ANDREW CAPPUCIO
And: CHRYSLER AUSTRALIA (SALES) PTY. LIMITED and ANOTHER (1980) 42 FLR 274
No. 27 of 1977
Application to Judge sitting in Chambers for a certificate for attendance by
counsel - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Application to Judge sitting in Chambers for a certificate for attendance by counsel - certificate granted.

Practice - Procedure - Federal Court - Application to judge in chambers - Statement of claim - Application for leave to amend - Attendance of counsel - Whether proper case for counsel to attend - High Court Rules, O. 71, r. 62(1).

Practice - Procedure - Federal Court - Application to judge in chambers - Order entered - Order defective due to slip by counsel - Delay - Whether judge has inherent power to correct defective order - High Court Rules, O. 29, r. 11.

HEADNOTE

In September 1978 the plaintiff applied to a judge of the Federal Court of Australia in chambers for leave to amend his statement of claim. On that application senior and junior counsel appeared for the first-named defendant. At the hearing counsel accidentally made no request to the judge to certify that the application was one proper for the attendance of counsel and, accordingly, the order subsequently drawn up and entered in October 1978 did not contain any such certificate. The High Court Rules applied to the application and those rules provided (O. 71, r. 62 (1)) that where counsel attends at justices' chambers, the cost of such attendance shall not be allowed unless the justice certifies it to be a proper case for counsel to attend.

In March 1980 an application for such a certificate was made to the judge by the first-named defendant and about two days later taxation of the costs as between the plaintiff and the first-named defendant was said to have been completed. The application for the certificate was opposed by the plaintiff.

Held: A certificate should be granted certifying that the application made in September 1978 was one proper for the attendance of counsel because: (1) On a pleading summons, except in a very clear case, attendance of counsel is both justified and desirable.

(2) The grant or refusal of a certificate continued to be of relevance, notwithstanding that taxation of party and party costs had been completed.

Re Chapman (1882), 10 QBD 54, referred to.

(3) The delay has been great but nobody has been disadvantaged thereby.

Hatton v. Harris, (1892) AC 547, followed.

(4) A judge of the court has inherent power to correct an error in an order made by him, the error having arisen from an accidental slip.

Arnett v. Holloway, (1960) VR 22: Dougherty v. Dougherty (1889), 15 VLR 294; McKenzie v. Fyander, (1927) VLR 569, followed. Fritz v. Hobson (1880), 14 Ch 542; Chessum & Sons v. Gordon, (1901) 1 KB 694; Melbourne Harbour Trust Commissioners v. Cuming, Smith & Co. Propy. Ltd., (1906) VLR 192; Re Inchcape (Earl of), (1942) 1 Ch 394; Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co., (1973) 1 WLR 300, referred to.

HEARING

Canberra, 1980, March 19; June 4. #DATE 4:6:1980

APPLICATION.

Application to a judge of the Federal Court of Australia in chambers to correct a defective order, which was made by him in chambers some considerable time previously, by granting a certificate certifying that the earlier application had been one proper for the attendance of counsel.

K. J. Crispin, for the plaintiff.

B. J. Salmon, for the first-named defendant.

Cur. adv. vult.

Solicitors for the plaintiff: Giles & Pierce.

Solicitors for the first-named defendant: Stephen, Jacques & Stephen.

E. F. FROHLICH

JUDGE1

On 11 September 1978, I sat in chambers on an application made by summons dated 1 September 1978. By its summons, the plaintiff sought leave to amend his statement of claim to allege certain false representations and contraventions of paragraph 53(a) of the Trade Practices Act 1974 and sought orders shortening the time for pleading and for interrogation. On the application, Mr. Giles appeared for the plaintiff, Mr. J.J.A. Kelly, of Queen's counsel, and Mr. B.J. Salmon, of counsel, appeared for the first-named defendant and Mr. G.A. Stretton appeared for the second-named defendant. After argument, I ordered that the plaintiff have leave to amend his statement of claim generally within fourteen days, I made orders with respect to other matters of an interlocutory nature, I directed that the date fixed for the hearing of the action be vacated and I ordered that the plaintiff pay the costs of the application and the costs thrown away by the amendment to his statement of claim.

At the hearing of that application, no request was made that I certify that the application was one proper for the attendance of counsel and, accordingly, the order subsequently drawn up and entered on 5 October 1978 did not contain any such certificate. However, as this action was commenced on 29 December 1977, the Rules of the High Court applied in so far as they were capable of application and subject to any direction of the Court or a Judge. See s.38 (2) Federal Court of Australia Act 1976. Order 71, Rule 62 (1) of the Rules of the High Court provide that, where counsel attends at Justices' Chambers, the costs of such attendance shall not be allowed unless the Justice certifies it to be a proper case for counsel to attend. On 19 March 1980, Mr. B.J. Salmon applied to me for such certificate. The application was opposed by Mr. K. Crispin, who appeared on behalf of the plaintiff.

Had I been asked on 11 September 1978 so to certify, I would have certified that the matter was a proper one for the attendance of counsel. The 26 September had been fixed as the date of trial and yet, on 11 September, an application was made for a substantial amendment to the pleadings and for orders with respect to the time to be taken for other interlocutory proceedings. On the hearing of the application for amendment, Mr. Kelly QC pointed out that the statement of claim had already been amended once and that there were unsatisfactory aspects of the further amendment sought. After considering the pleadings, I came to the view that the statement of claim both as drawn and as sought to be amended, was embarrassing. Accordingly, I vacated the date for hearing and gave leave to the plaintiff to amend his statement of claim generally. On a pleading summons, except in a very clear case, attendance of counsel is both justified and desirable. In this action, the claim as made was not a simple one. In my opinion, the attendance of counsel on the summons was appropriate and, if asked on 11 September 1978 to do so, I would have so certified.

Mr. Crispin submitted that the purport of Order 71 Rule 62 (1) was that counsel's fees for attendance at chambers should be allowed only in special circumstances. However, the correct principle is that a certificate should be given for counsel's attendance whenever such attendance is appropriate. Counsel's attendance on a pleading summons is ordinarily both appropriate and desirable.

It was next submitted by Mr. Crispin that no certificate should be granted having regard to the failure of counsel to request such certificate at the hearing on 11 September 1978, to the lapse of time which has since occurred and to the fact that the taxation of costs has been completed. Mr. Salmon said that the certificate was not sought on 11 September 1978 because it was not appreciated that such a certificate was required. He said that, although a similar rule appears in Order 65 Rule 38 of the Rules of the Supreme Court of the Australian Capital Territory, it has not been the practice when applications are made to that Court to seek such a certificate. Such argument mistakes the clear distinction between an application made to a Judge sitting as the Court and an application made to a Judge sitting in Chambers. The Rule with respect to attendance at Judges' Chambers does not apply to a motion made in Court. It is common for applications to be so made in proceedings in the Supreme Court of the Australian Capital Territory. But the application made to me in September 1978 was an application made to me as a Judge sitting in Chambers. I use the words "in Chambers" to mean public Chambers not private Chambers. The application was made to me as a Judge not as the Court, notwithstanding that, when sitting in Chambers, a Judge sits as part of the Court exercising the power of the Court. See Kotsis v. Kotsis (1970) 122 CLR 69 per Walsh J at pp.99-100. Such distinction is clearly maintained by both the Rules of the High Court and the Rules of the Supreme Court of the Australian Capital Territory.

Mr. Salmon explained the subsequent delay on discussions which he said had taken place between the parties with respect to this matter. Mr. Crispin and Mr. Salmon disagreed as to these events particularly as to whether or not the taxation of costs had been completed. However, since the hearing on 20 March 1980 there has come to my hand a certificate dated 22 March 1979 signed by the District Registrar certifying, " . . . that pursuant to the order of Mr. Justice Davies made on 11th day of September 1978 I have taxed the bill of costs of the first-named defendant, Chrysler Australia (Sales) Pty. Limited, and have allowed the same the sum of $493.90." For the purposes of this application, I am not prepared to go behind that certificate. I take it that the taxation as between the plaintiff and the first-named defendant has been completed. Nevertheless, a party and party taxation is not the only taxation to which Order 71 Rule 62(1) applies. That Rule applies equally to a taxation as between solicitor and client. See Re Chapman (1882) 10 QBD 54. The grant or refusal of a certificate therefore continues to be a matter of relevance.

In all the circumstances, I think that, if I have power to do so, I should grant the certificate. A mistake was made by counsel and should be corrected. The delay has been great but I do not think that anyone has been disadvantaged thereby. The question of delay was considered in Hatton v. Harris (1892) AC 547. At p.564 Lord Macnaghten said,
"Then, said the Attorney-General, 'forty years have passed since the decree in Hill v. Knipe; after such a lapse of time the decree must stand, whether it be right or wrong; it cannot be touched now.' But, my Lords, lapse of time has nothing to do with the question. The present Order, following the Slip Order of 1843, says that the correction of an error arising from an accidental omission may be made at any time."

Delay and the manner in which it may influence the discretion to amend was also considered in Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. (1973) 1 A11 ER 569 at p.575. Counsel's mistake arose from the practice commonly adopted in the Supreme Court of the Australian Capital Territory whereby applications in interlocutory matters are made by way of motion to the Court. The failure to ask for the certificate was, therefore, a mistake on the part of counsel which, though not inexcusable, nevertheless was understandable. As such it is, I think, just to correct it.

Therefore, the issue turns upon my power now to give a certificate whether by way of amendment of the Order which has been entered pursuant to the Slip Rule contained in Order 29 Rule 11 of the Rules of the High Court, or pursuant to the inherent power which I have as a Judge of the Court. In my view, there is appropriate power which may be exercised. The order which had been entered is defective in that it does not contain a certificate which it should have contained and would have contained had counsel not in error failed to request it. The grant of a certificate would not now change or make an alteration of substance to the order made on 11 September 1978 but rather would give proper effect to what was then in mind by the order for costs thereby made. Such an amendment was made in Dougherty v. Dougherty (1889) 15 VLR 294 and in McKenzie v. Fyander (1927) VLR 569, in which case, Mann J said,
"The proper time to apply for a certificate is of course at the time the order is made. But I think I have power to give one subsequently, and I am prepared to exercise it in this case."

His Honour then signed a certificate endorsed upon the order. Other decisions which support the power to grant a certificate at the present time are Fritz v. Hobson (1880) 14 Ch 542; Chessum & Sons v. Gordon (1901) 1 KB 694; The Melbourne Harbour Trust Commissioners v. Cuming, Smith & Co. Propy. Ltd. (1906) VLR 192; Re Inchcape (Earl of) (1942) Ch 394 and Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co., cited above. The high point of the authorities to the contrary is In re Wetzell; Ex parte The Commissioners of The State Savings Bank (1919) VLR 14. However, the authorities were fully considered by the Full Court of the Supreme Court of Victoria in Arnett v. Holloway (1960) VR 22. In that case, Lowe, O'Bryan and Pape JJ took a wide view of the power conferred by the Slip Rule. They reversed a decision of Adam J in which his Honour, after examining the authorities, considered that he did not have power to amend the order which had been made. At p.35, their Honours said,
"In these circumstances, even if the learned judge's view that O. XXVIII, rule 11 is confined to cases where the judgment as recorded has failed to express the intention of the Court be correct (and upon this we express no views), we think that he should have decided that this judgment did not express his intention which, we think, was to give costs on the Supreme Court scale. The fact that in the circumstances as now known he could only give effect to that intention by specifically 'otherwise ordering' does not, we think, affect the question.

We think that this was a case in which the learned judge, having regard to what he has said, should have made the order sought, and that justice required that the judgment be amended accordingly."

I am therefore of the opinion that I have power to grant the certificate and I am of the view that justice would be best achieved if I were to do so. I shall endorse the certificate upon the Order which was entered on 5 October 1978.

In the circumstances of this application, I think that each party should bear his or its own costs. The first-named defendant seeks the exercise of a discretion to correct an error made by its counsel; yet time and effort have been expended as a result of the plaintiff's unsuccessful opposition to the order sought. Accordingly, I make no order as to costs. I certify for counsel.

I note that, as this action commenced prior to 1 August 1979, and as no contrary order or direction has been made, the Rules governing this application are the repealed Rules, which incorporate by reference the Rules of the High Court, and not the Federal Court Rules (Statutory Rule No.140 of 1979).