Coshott v Spencer

[2022] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation:

Coshott v Spencer [2022] NSWSC 824

Hearing dates:

11 June 2021

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Summons commencing an Appeal filed 26 October 2020 is dismissed.

(2)   Plaintiff to pay the defendant’s costs.

(3)   If either party seeks an order different from Order (2), then any submission seeking such order together with any affidavit in support is to be filed and served within 21 days of this judgment. Any submission and affidavit in opposition to such order is to be filed and served within a further 21 days.

(4)   Such further determination as is required to be made will be made on the papers.

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — correction under slip rule — overriding purpose of Civil Procedure Act 2005 s 56

Legislation Cited:

Civil Procedure Act 2005 s 56

Legal Profession Act 1987 s 208J

Legal Profession Uniform Application Act 2014 s 71(3)

Local Court Act 2007 ss 39, 40, 41

Uniform Civil Procedures Rules 2005 rr 36.16, 36.17

Cases Cited:

Coshott v Barry (2015) 91 NSWLR 1; [2015] NSWCA 257

Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Ronald Coshott (P)
Keith Spencer (D)

Representation:

Counsel:
J O’Sullivan (P)
J Johnson (D)

Solicitors:
D Iacono (P)
Arch Law (Australia) Pty Ltd (D)

File Number(s):

2020/00308239

Publication restriction:

Not Applicable

Judgment

1. Mr Ronald Coshott (“the plaintiff”) appeals against an order made on 2 October 2020 by Atkinson LCM in the Local Court at the Downing Centre.

2. Mr Coshott was the defendant in Local Court proceedings commenced by Mr Keith Spencer who is the defendant in this Court.

3. In substance, this appeal is about $90 and involves dealing with nothing more than the finest technicality, a description accepted by counsel for the plaintiff.

4. For the reasons which are described below, I am of the view that the proceedings should be dismissed with costs.

Supreme Court Proceedings

5. On 26 October 2020, the plaintiff commenced proceedings in this Court by filing a Summons.

6. In that Summons he sought the following relief:

“1.   Appeal allowed.

2.    Judgment/order of the court below be set aside.

3.   The judgment registered in Local Court of New South Wales 2016/00243255 be set aside/permanently stayed.

4.   The writ issued by the Local Court of New South Wales 2016/00243255 be set aside/permanently stayed.

5.   The defendant pay the costs of and incidental to Local Court of New South Wales 2016/00243255.

6.   The defendant pay the costs of these proceedings.”

7. There are two grounds upon which the relief sought was based. They are as follows:

“1.   The primary judge erred in law by finding the inclusion of a court filing fee in the judgment registered upon the registration of Certificates of Determination did not mean the ‘judgment’ had been irregularly entered.

2.   The primary judge erred in law by acting ultra vires by varying/amending the ‘judgment’.”

Relevant Legislation

8. Section 39 of the Local Court Act 2007 (“the LCA”), provides that:

“[a] party to proceedings before the [Local Court] sitting in its General Division… may appeal to the Supreme Court, but only on a question of law”.

9. Section 40 of the LCA provides that where a ground of appeal involves a question of mixed law and fact:

“a party to proceedings before the [Local Court] … may appeal to the Supreme Court but only by leave of the Supreme Court”.

10. That section also provides that a party to proceedings may appeal to the Supreme Court only by leave with respect to an interlocutory judgment or order or an order for costs.

11. There is no right of appeal against a question of fact alone.

12. The powers of the Supreme Court in the determination of appeals from the Local Court are set out in s 41(1) of the LCA. That subsection provides that the Court may determine an appeal under the previously described sections:

“(a)   by varying the terms of the judgment or order, or

(b)   by setting aside the judgment or order, or

(c)   by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or

(d)   by dismissing the appeal.”

Local Court Proceedings

13. On 12 August 2016, judgment was entered in favour of the defendant in the amount of $17,094 (“the judgment”). That amount consisted of $17,004 – being the sum assessed as being due to the defendant for legal costs after a contested assessment process. That sum was the sum fixed by a Certificate of Determination of Costs. In addition, the sum of $90 was added to that sum for costs, which represented the filing fee for the Certificate in the Local Court.

14. To enforce the judgment, the defendant obtained a Writ in the Local Court of execution for the entire sum of $17,094. The plaintiff filed a Notice of Motion to set aside the judgment and the Writ.

15. The proceedings were first heard in the Local Court on 27 August 2020.

16. When the proceedings commenced, an application was made by counsel for the plaintiff for an adjournment. The matter proceeded initially and during the course of submission on that day, after the matter had been stood in the list, counsel for the plaintiff submitted that there was:

“an irregularity in the entry of the judgment for $17,094 because the $90 filing fee sum was not part of the Costs Certificate which led to the judgment debt”

and, accordingly, he submitted, the judgment had been entered irregularly.

17. Submissions were made with respect to this issue. There was no issue between the parties that the judgment sum of $17,094 included the $90 filing fee.

18. The following exchange took place:

“Her Honour:         So you’re saying the court made a mistake … ?

[Counsel for the plaintiff]:    Yes. It shouldn’t have registered judgment for the $90 filing fee because that’s not part of the costs assessment.

[Her Honour]:         Well, that’s an error on our part.

[Counsel for the plaintiff]:   The registry, yes, or whoever takes out the orders …”

19. Counsel for the defendant informed the Court that his client would concede that the judgment could be amended by the Magistrate by deleting the $90 filing fee.

20. It is a little hard to follow the complete course of the hearing in the Local Court because the transcript is not a complete one.

21. However, towards the end of that hearing, and prior to an adjournment being granted, counsel for the defendant drew the Court’s attention to r 36.17 of the Uniform Civil Procedures Rules 2005 (“the UCPR”) commonly described as the “slip rule” and submitted that it was open to the Court to make a correction of a judgment in circumstances where there had been a clerical mistake or an error arising from an accidental slip or an omission. He also went on to draw the Court’s attention to the provisions of r 36.16(3) of the UCPR. He submitted that there had clearly been a mistake in the Registry inserting the $90 additional sum. He drew attention to the provisions of s 56 of the Civil Procedure Act 2005 and submitted that the Court would simply correct any error.

22. Counsel for the plaintiff submitted that this was not a case in which the slip rule applied because the addition of the $90 was not a mistake or an accidental insertion or omission but, rather, was qualitatively different in that there was a conscious decision to add the $90 to the judgment debt. Although he accepted that it may have been a mistake at law to have inserted the $90 filing fee, counsel for the plaintiff submitted that that was not the sort of mistake that was caught by the slip rule.

23. The proceedings were then adjourned to 2 October 2020. An opportunity for further submissions in writing was given.

24. Further oral submissions were taken on that day and Atkinson LCM gave her decision orally.

Local Court Judgment

25. Her Honour commenced by identifying the fact that the substantive proceeding before her was a Notice of Motion that was filed on 8 July 2020, seeking interlocutory orders providing for the stay of the execution of a Writ and of the judgment entered in the proceedings on 12 August 2016. The Notice of Motion also sought that the Writ be set aside and consequential orders for costs be made.

26. Her Honour noted that when the matter first came before her and the parties were represented by counsel, an issue arose and she heard arguments upon whether or not the judgment could be corrected with respect to the $90 filing fee, and whether or not the slip rule would be an appropriate method of so doing.

27. Her Honour noted and outlined the submissions that had been put to her.

28. Her Honour noted the decision of the Court of Appeal in Coshott v Barry (2015) 91 NSWLR 1; [2015] NSWCA 257 and, in particular, the reference in that decision to a statement by Handley AJA in Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [42], where his Honour said that “… entry of judgment on a filed certificate is a ministerial act”, and that it did not involve the adjudication of a claim.

29. Her Honour went on to say this:

“What is apparent to me is that what occurred when the information was put onto JusticeLink as a judgment for the amount contained in the Costs Assessment Certificate plus the filing fee, this was an error on the part of the registry. There [were] no proceedings that were commenced to recover the filing fee and … it was an administrative step and there was no commencement of legal proceedings. There was no basis on which there was an entitlement to an award for the $[90].”

30. Her Honour referred to s 208J of the Legal Profession Act 1987 and its effective replacement, s 71(3) of the Legal Profession Uniform Application Act 2014. Her Honour noted that s 71(3) provided that:

“the [costs] certificate is, on the filing of the certificate in the [relevant court], and with no further action, taken to be a judgment of that court against the party to the assessment by whom the costs are payable …”

31. Her Honour went on to say this:

“The use of the words ‘taken to be a judgment of the court’ means that there is a judgment in place. … The only evidence before me is that there are in fact two costs assessment certificates, the originals of which are on the file that I have with me. There is no evidence that those documents are in any way invalid and by virtue of the operation of the Act of Parliament they are taken to be judgments of this Court.

The Registry has acted incorrectly and there is no basis for it to have exercised the power to have added the $[90], the amount of the filing fee, to the judgment. There was no determination by the Court and as the Court of Appeal said it was an administrative step. In my view this is sufficient reason for me to be able to exercise the powers that I have under r 36.16 to vary the judgment so that it is for the amount set out in the Costs Assessment Certificate.”

32. Her Honour went on to deal briefly in her reasons with the orders sought in the Notice of Motion and noted that there was no basis for making any of the orders sought in that Motion.

33. Her Honour formally dismissed the Notice of Motion filed by the plaintiff. She ordered that the plaintiff pay Mr Spencer’s costs of the Motion on the ordinary basis. She said this:

“The other order I am going to make as an ancillary order is that the judgment is varied to … correct the mistake that has been made by the Registry in entering the full amount.”

34. The formal order was expressed in these terms:

“Okay. So, the judgment is varied to $17,004 to correct the error made by the Registry when entering the amount of the judgment onto JusticeLink.”

Supreme Court Proceedings

35. As earlier noted, the Summons commencing the appeal in this Court appealed from the whole of the decision below. However, the grounds upon which that appeal was based made it plain that the only order that was being challenged was the order made by Atkinson LCM which varied the judgment so as to delete the $90 fee.

36. Whilst it is correct that the orders sought mirrored those sought in the Notice of Motion which the Local Court dismissed, no argument was advanced in this Court which attacked the Magistrate’s judgment on the Motion.

Plaintiff’s Submissions

37. Counsel for the plaintiff submitted that the Magistrate acted ultra vires by amending the judgment to remove the filing fee with the consequence that the judgment is in fact wholly invalid.

38. Counsel submitted that the judgment which the Magistrate purported to amend was a “deemed judgment” for the sole purpose of enforcement of the Costs Assessment Certificate. He submitted that if such a “deemed judgment” is not entered in accordance with the law, it is a nullity. Consequently, if the judgment was a nullity, it was not open to the Local Court to amend or change or correct the judgment or vary it in any way. He submitted that the “judgment” of the Local Court should therefore be set aside.

39. Counsel for the plaintiff conceded that Mr Spencer was entitled to file the Costs Certificate for $17,004 in the Local Court and that, upon filing, that Certificate was taken to be a judgment of the Court which could be enforced.

40. Counsel also accepted that the filing of the Certificate in this case was a regular step and that it was enforceable as a judgment. He also accepted that there was nothing to stop the Local Court freshly exercising its ministerial power to enter the judgment correctly. And, further, that if that was to occur then the date of any such judgment would be the date upon which the Certificate was filed.

41. In oral submissions in reply, and in the course of discussion with the Bench, it became apparent that the appeal was dealing only with the variation order made by Atkinson LCM. Counsel for the plaintiff accepted that there had never been an application to the Local Court to set aside the original judgment for $17,094 – which had been entered in August 2016. He accepted that on appeal the powers of the Supreme Court did not enable it to set aside that original judgment and that, accordingly, if the Court was to uphold the appeal and to set aside the order of Atkinson LCM, then his client would be confronted with an existing judgment from 2016 in the sum of $17,094.

42. Understood in that way, it is apparent that the plaintiff’s appeal would have the effect (if upheld) of placing him in a more disadvantageous position than he would be if the order appealed against remained – to the extent of $90.

Defendant’s Submissions

43. The defendant accepted that the issue of the validity of the variation order was a question of law and that the plaintiff had a right of appeal pursuant to s 39 of the LCA.

44. Counsel for the defendant submitted that it was open to the Magistrate to correct the judgment because it had been entered an administrative (or ministerial) act consequent upon the filing of a Costs Certificate. He submitted that the Local Court had that power either by reason of the slip rule or, alternatively, if that was not the appropriate rule, it had an implied power to correct its own records.

45. Counsel for the defendant submitted that whatever it was that the Magistrate had done by way of variation, it had no effect on the underlying substantive entitlement of his client to the sum of $17,004 because that entitlement arose pursuant to the Costs Assessment Certificate, itself issued pursuant to the Legal Profession legislation.

Discernment

46. I accept that the appeal dealing with what can be described as a variation order raises a question of law and, accordingly, the plaintiff has a right of appeal.

47. It is clear that the plaintiff does not maintain any appeal, or seek to argue any error of law, arising from the dismissal by the Local Court of the Notice of Motion which he filed. Even if he did seek to raise such an appeal, it would require leave. No grounds are put forward upon which a grant of leave could be made.

48. The first question to be determined is whether the Local Court had the power to vary the judgment which had been issued in the sum of $17,094 so as to reduce it to the sum of $17,004 thereby reflecting the figure contained on the Certificate of Costs Assessment which had been filed.

49. In my view the Court had such power.

50. As is apparent from the authorities, and as was common ground in the proceedings on appeal, the entry of judgment into the records of the Local Court was an administrative act which occurred in the Registry. That administrative act did not affect in any way the validity of the Costs Assessment Certificate or its effect as a judgment once filed. Rather, it was a means of recording the consequence of that Costs Certificate, namely that it could be enforced as a judgment.

51. That being the nature of the entry into the Local Court records, a correction could be made by the Local Court pursuant to its implied power so to do: see Frumar at [44].

52. As well, it seems to me that r 36.17 of the UCPR (the slip rule) provides a more than adequate head of power to the Local Court, when asked to vary an order so as to correct an obvious error, to do so. The Local Court, in my view, had the power pursuant to r 36.17 to correct the sum of money in which the judgment had been entered to reflect what was an obvious clerical error.

53. For both of those reasons, I am satisfied that the Court had the power to correct the error. No-one suggests that the substance of the variation order made by the Magistrate involved any misunderstanding of what she was being asked to do or any other error. Her order was plainly correct.

54. The question then becomes whether the original judgment which was issued for $17,094 was, at the time it was issued, invalid; and, accordingly, any variation of that original order was ineffective because the original judgment was a nullity.

55. I do not regard the original judgment that was issued by the Local Court as a nullity. It was issued for an incorrect sum. That does not make it a nullity. What had occurred as a matter of substance was that the relevant Costs Assessment Certificate was filed; it was in the sum of $17,004 and was taken to be a judgment of the Court. That remains the position. There has never been any conduct of any kind to invalidate the Costs Certificate, nor any suggestion that it was irregularly or improperly filed. That entitlement to a deemed judgment continues to exist. When the Local Court issued a Certificate of Judgment, it was doing so to reflect its record. There was an error in its record. However, the judgment remains valid, and the variation order does not affect that.

56. As well, I observe that there was no application before the Local Court at any time to set aside the original judgment for $17,094 on the basis that it was invalid or had been improperly entered. Rather the only proceedings before the Local Court, which were dismissed by the Magistrate, were to stay the judgment and to deal with a Writ of Execution. No appeal is brought against the dismissal by the Magistrate of those orders.

57. In those circumstances, there is no reason to conclude that the original judgment, although for the wrong sum, was in any way invalid.

58. Finally, even if I be wrong about the existence of the power in the Local Court to vary the judgment, a question arises as to what would be the appropriate relief in this Court.

59. As is clear, the substantive proceeding before the Local Court was the hearing and determination of the Notice of Motion brought by the plaintiff. The Court dismissed that Motion, and no appeal is brought against that dismissal. The only order which the Court made and which is now appealed was one varying the judgment. If this Court was to set aside that order, there would be no basis for this Court to remit the matter to the Local Court for determination in accordance with this judgment. That is because there would be nothing left to remit.

46. The overall effect of setting aside the Magistrate’s order would be to leave the judgment of $17,094 in place, as it has been since 12 August 2016.

47. In my view, this would be an inappropriate exercise of the Court’s discretionary jurisdiction which exists under s 41(1) of the LCA.

48. Even if I were wrong on the question of the existence of power in the Local Court, I would still, in those circumstances, exercise the Court’s discretion to dismiss the appeal.

49. In my view, the appeal by the plaintiff, for all of these reasons, should be dismissed. Costs should follow the event.

50. The parties asked for the Court to permit any other orders with respect to costs to be the subject of further submissions.

Orders

65. The Court makes the following orders:

1. Summons commencing an Appeal filed 26 October 2020 is dismissed.

2. Plaintiff to pay the defendant’s costs.

3. If either party seeks an order different from Order (2), then any submission seeking such order together with any affidavit in support is to be filed and served within 21 days of this judgment. Any submission and affidavit in opposition to such order is to be filed and served within a further 21 days.

4. Such further determination as is required to be made will be made on the papers.

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Decision last updated: 24 June 2022