Costello and Condi & Anor (No 3) - [2012] FamCA 891

FAMILY COURT OF AUSTRALIA

COSTELLO & CONDI AND ANOR (NO 3)

[2012] FamCA 891

FAMILY LAW – PROPERTY – Application by husband and wife for amendment under the slip rule of a consent order made on 11 May 2005 dealing with their property and spouse maintenance – Order in preamble stated “property settlement pursuant to s 90C” – Whether obvious error – Amendment allowed for the preamble to the order to refer to s 79 and s 74 of the Family Law Act 1975 (Cth) and to add after “property settlement” the words “and spouse maintenance”

FAMILY LAW – PROPERTY – Application by a judgment creditor of the husband for extension of time to review the consent order made on 11 May 2005 and for review – No need – Determination that in all of the circumstances review of the consent order made on 11 May 2005 should be of the Court’s own motion but dealt with at the trial

FAMILY LAW – PROPERTY – Procedure – Two relevant files – Amalgamation not sought – But order made that slip rule application and application for review be dealt with as if filed in the earlier proceedings being the proceedings relating to the application for the consent order

Family Law Act 1975 (Cth) ss 37A(9), 37A(10), 71A(1), 74, 79, 90C, 90DA(1), 90K(3), 90K(1)(aa), 90KA(c)
Family Law Rules 2004 R 17.02, 17.03(b), 18.08

Brugman & Marley [2012] FamCA 106
Deputy Commissioner of Taxation v Healy [2003] WASC 38
Milham v Stanford (2001) FLC 93-073
Newmont Yandal Pty Ltd v The J Aron Corporation [2007] NSWCA 195
L Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 43 ALR 473
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
TheCommonwealth v McCormack (1984) 55 ALR 185
Vance & Vance [2011] FamCAFC 17

APPLICANT:

Mr Costello

FIRST RESPONDENT:

Mr Condi by his Case Guardian Mr E

SECOND RESPONDENT:

Mrs Condi

FILE NUMBER:

BRC

3380

2011

DATE DELIVERED:

26 October 2012
(Orders made 9 October 2012)

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

11 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC with him Mr Waterman

SOLICITOR FOR THE APPLICANT:

Slater & Gordon

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:

Ms Carew

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS:

Rice Naughton Buckley

Orders (9 October 2012)

IT IS ORDERED

Proceedings BRC3380/2011

The application in a case by the husband and the wife filed 29 May 2012, the response of the judgment creditor filed 26 June 2012 and all affidavits in support of each be dealt with as if each had been filed in proceedings BRF1265/2005, however, that material not be removed from the file in these proceedings.

Proceedings BRF1265/2005

The order made on 11 May 2005 is amended pursuant to the slip rule by amending the preamble to the order so as to read:-
By way of property settlement and spouse maintenance pursuant to ss 79 and s 74 of the Family Law Act 1975 (Cth):-
There be a review, on the Court’s own motion pursuant to s 37A(10) of the Family Law Act 1975 (Cth), of the order made on 11 May 2005 (as so amended) at or during the trial in proceedings BRC3380/2011 limited to the legal questions:
a.whether the order made on 11 May 2005 (as so amended) was made without power, so that it must be set aside and/or
b.whether the order made on 11 May 2005 (as so amended) ought in any event be set aside for the failure of the husband and the wife in their application for consent orders filed on 10 May 2005 to disclose the existence of certain liabilities and creditors.
All other relief in the application in a case by the husband and the wife filed 29 May 2012 and the response of the judgment creditor filed 26 June 2012 is dismissed.
There be no order as to costs in relation to the application in a case by the husband and the wife filed 29 May 2012 and the response to that application of the judgment creditor filed 26 June 2012, limited to par 2 of that response.
The costs of the parties in relation to the application for review sought by the judgment creditor of the order made on 11 May 2005 are reserved to the trial judge.

NOTATION

A sealed copy of these orders should be filed in both files BRF1265/2005 and BRC3380/2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Costello & Condi and Anor (No 3) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3380 of 2011

Mr Costello

Applicant

And

Mr Condi by his Case Guardian Mr E

First Respondent

And

Mrs Condi

Second Respondent

REASONS FOR JUDGMENT

Background

The background to this matter is as contained in my Reasons for Judgment 16 May 2012, to which, necessarily, I refer.
It is convenient to refer to the parties by their roles in the principal proceedings. Thus, I will refer to the respondents as the husband and the wife, and to the applicant as the judgment creditor (the applicant being a judgment creditor of the husband).

Applications

The husband and the wife by application in a case filed 29 May 2012 seek that the order made by a Registrar on 11 May 2005 in proceedings BRF1265/2005 be amended under the slip rule by inserting the words “and spouse maintenance” after the word “settlement” and deleting “90C” and replacing with “79 and 74” where those words and numbers appear in the preamble to the order.
The order made on 11 May 2005 provides:
BY CONSENT IT IS ORDERED
By way of property settlement pursuant to s 90C of the Family Law Act:-
1.        Within thirty (30) days of these orders the husband shall transfer to the wife all his right title and interest in and to the matrimonial home situated at [Suburb B] in the State of Queensland …
2.        The husband shall pay to the wife a weekly sum of $450.00 indexed annually in accordance with the CPI index for her maintenance and support.
3.        Save as aforesaid, each party shall hereinafter hold as his and her own property all other assets and/or financial resources including but not limited to real estate, cash, bank and building society accounts, shares, motor vehicles, interest in businesses and superannuation and neither party shall hereinafter be entitled to claim against any such interest in property and/or financial resources so held by the other.
4.        Either party may have liberty to apply in respect of these orders by giving five (5) days notice to the other.
If amended in the manner sought, the order would provide, in its preamble:
By way of property settlement and spouse maintenance pursuant to ss 79 and 74 of the Family Law Act:-
By response filed 26 June 2012 the judgment creditor seeks that:
·The application of the husband and the wife and the response be dealt with as if each had been filed in proceedings BRF1265/2005; and that the application in a case, response and all affidavits in support of each be removed from the file in these proceedings and placed on the file in proceedings BRF1265/2005
·The application in a case of the husband and the wife be dismissed
·Time be extended to enable the judgment creditor to apply pursuant to Rule 18 of the Family Law Rules 2004 to review the order made on 11 May 2005 in proceedings BRF1265/2005
·The order made on 11 May 2005 in proceedings BRF1265/2005 be reviewed and discharged pursuant to Rule 18.08, s 37A(9) and/or s 37A(10) of the Family Law Act 1975 (Cth).

Procedural matters

It is both convenient and sensible to have the application in a case and response dealt with as if each had been filed in proceedings BRF1265/2005 and I will do so.
The Court, as a superior court, is a court of record. It would be inappropriate thus to order that the application in a case, response and affidavits in support of each be “removed” from the file in these proceedings to the file in proceedings BRF1265/2005, and unnecessary for efficacy to do so.
If I order amendment under the slip rule, however, that order properly should be made in proceedings BRF1265/2005.
Similarly, if I order a review, such order properly should be made in proceedings BRF1265/2005.
Ms Carew of Counsel, for the husband and the wife, resisted the “amalgamation” of the two proceedings. However, Mr North SC and Mr Waterman of Counsel, for the judgment creditor, did not seek amalgamation.

Slip rule

Rule 17.02 of the Family Law Rules 2004 provides:
RULE 17.02 ERRORS IN ORDERS
17.02(1) If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.
17.02(2) A Registrar may rectify an error that appears obvious on reading the order.
Example
A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error.
17.02(3) If the Registrar:
(a) is in doubt about whether there is an error in an order; or
(b) believes that an error in an order has, or may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
17.02(4) If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.
Note If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).
17.02(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent. (emphasis added)
Thus, the power in Rule 17.02 is limited to the rectification of an error that is obvious on reading the order, or which has arisen from an accidental slip or omission.
In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, McHugh JA (with whom Priestley JA and Clarke AJA agreed as to the result, but with separate observations as to the authorities) said at 452-3:
If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake. …
…
The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: … In general the test of whether a mistake or omission is accidental is …. if the matter had been drawn to the court’s attention would the correction at once have been made? (emphasis added)
The proper application of the slip rule has been the subject of extensive discussion and authority since Storey & Keers. However, McHugh JA’s analysis has received consistent approval. See, for example, Deputy Commissioner of Taxation v Healy [2003] WASC 38 per Hasluck J, who after considering the authorities as pars [15]-[24] concluded:
[26]… The decided cases suggest that the crucial considerations are whether the matter now sought to be corrected would have been attended to at once if the matter had been raised for consideration before judgment was entered and whether the matter to be resolved would require the exercise of an independent discretion or could be regarded as a matter upon which a real difference of opinion might exist. Further, it seems that the slip rule allows for the correction of any infelicity or ambiguity in the expression of the judgment which would result in the order of the Court having an untoward affect. (emphasis added)
The Court also however has inherent jurisdiction to protect the integrity of justice which is not confined by the slip rule or by words such as “accidental slip or omission”: Newmont Yandal Pty Ltd v The J Aron Corporation [2007] NSWCA 195 per Spigelman CJ, with whom Santow JA and Handley AJA agreed:
[18]… No authority was cited to the Court which indicates that the exercise of the inherent jurisdiction is confined by [the] terminology of the slip rule. There is no reason why the inherent jurisdiction of the Supreme Court should be so confined. The Rules of Court do not constitute some type of mini-code replacing the inherent jurisdiction. It may very well be that the Court’s inherent jurisdiction calls for a variation of orders in circumstances falling outside the slip rule.
[19]It is often said that the slip rule “reflects” the inherent jurisdiction. (See e.g. L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 at 594). That does not, however, mean that the inherent jurisdiction can be expressed in the same terms as the rule. … (emphasis added)
Spigelman CJ, after an exhaustive analysis of the authorities relating to the inherent jurisdiction, said:
[77]In the joint judgment of the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [34], Ivanhoe was referred to as authority for the following proposition:
An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. [Emphasis added]
[78]The other authority cited for that proposition was Ainsworth v Wilding [1986] 1 Ch 673 at 678, where Romer J referred to Mellow v Swire as authority for the proposition that:
… even where a judgment has been duly passed and entered it might still be altered by the Court if the Court saw that it did not truly represent the decision which the Court had pronounced or intended to pronounce.
[79]This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. [citations omitted].
[80]The formulation approved recently in DJL, should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them. (emphasis added)
The Family Court of Australia has jurisdiction only in relation to matters vested by Parliament. However, as a superior court it has inherent control over its own process and thus inherent jurisdiction to correct orders in the manner described in DJL.
I would refer also to Vance & Vance [2011] FamCAFC 17 at [13] - [18] per Boland J.
Further, it is not in doubt that the slip rule extends to remedy a situation which may have arisen as a result of oversight by a party’s legal representative, and that this is so even if the order has been drawn up and entered: L Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 43 ALR 473 at 475; The Commonwealth v McCormack (1984) 55 ALR 185 at 187; Milham v Stanford (2001) FLC 93-073 at [24] – [27].
The wife deposed that she intended that the consent order make provision for “property settlement and spouse maintenance”: affidavit filed 29 May 2012, par 2.
The consent order, in its operative part, in fact made provision for property settlement and spouse maintenance.
Section 90C of the Family Law Act 1975 (Cth) (the Act) is not a provision “pursuant to” which orders are made. Rather, it deals with the creation of a financial agreement during a marriage. There seems thus, at first blush, a plain error which is “obvious” on the face of the order, and “on reading” the order: Rule 17.02(2); with effect also that there was an “accidental slip” in the making of the order: Rule 17.02(3)(b).
In my reasons for judgment 16 May 2012 I said:
3.There is dispute as to whether the reference “s 90C” in the order should be amended under the slip rule so as to read “s 79”. I will return to this later. Plainly however as a consent property order can only be made under s 79 that is the provision under which the order was made.
…
37.Ms Carew of Counsel, for the husband and the wife, submitted, and Mr Waterman of Counsel, and Mr Muller, solicitor, for the first and second applicants respectively refuted, that because a property order can only be made under s 79, and a spousal maintenance order can only be made under s 74, the order would be likely to be amenable to correction under the slip rule. For present purposes, limited to the summary dismissal application, I accept Ms Carew’s submission. Although at present no application is made under the slip rule, I thus will proceed on the basis that such correction upon any future proper application is likely to be made, subject however to hearing full argument later if any slip rule amendment sought is opposed.
I say “at first blush” because of argument presented by Mr North SC and Mr Waterman, carefully and somewhat ingeniously crafted, to which I will refer to in due course.
As will be seen, Mr North SC and Mr Waterman submitted that the slip rule does not apply, because the matter of any “correction” requires the exercise of an independent discretion, in the sense that the matter the subject of application for amendment under the slip rule is controversial, or is a matter upon which a real difference of opinion might exist as to what the Court intended by the order.
Before considering the arguments of Mr North SC and Mr Waterman however, I would reiterate that s 90C is not a provision “pursuant to” which any Court order can be made. Its inclusion in the order thus seems plainly a mistake, at first blush, and in my view is one which, without more, if the matter had been brought to the Court’s attention, is a correction which at once would have been made, to delete “s 90C” as not truly representing what the Court intended to pronounce: Newmont Yandal (above) per Spigelman CJ at [78].
As to the sought inclusion of the words “spouse maintenance” after the word “settlement”, and to “79 and 74” instead of “90C”, the order made 11 May 2005 was made pursuant to an Application for Consent Orders filed 10 May 2005 in proceedings BRF1265/2005. To my mind, even a cursory glance at that Application for Consent Orders makes clear that the orders sought were for property settlement and spouse maintenance. Part G of the Application for Consent Orders was headed:
Part G Details for property or maintenance orders
with the instruction following:
Omit all of Part G if no property or maintenance orders are sought.
However, all of Part G is completed by the husband and the wife including the sub-part “Proposed division of property”.
Part H contains the heading:
Part H Effect of property orders sought
Similarly, an instruction immediately under that heading contains:
Omit all of Part H if no property or maintenance orders are sought.
However, similarly, all (or most) of Part H is completed.
It seems to me thus to be plain enough, indeed “obvious”, on the face of the 11 May 2005 order, that is, “on reading” the order, in particular in the context of the Application for Consent Orders, again, without yet having come to the argument of Mr North SC and Mr Waterman, that “79” should be substituted in the order under the slip rule, so that it should read in the preamble:
By way of property settlement pursuant to s 79 …
As to spouse maintenance, par 2 of the order 11 May 2005 expressly refers to the weekly sum of $450 indexed annually for the wife’s “maintenance and support”.
As a spouse maintenance order is not capable of being made under s 79, but only under s 74, similarly it seems to me to be plain enough, indeed obvious, on the face of the 11 May 2005 order, that is, “on reading” the order, that the words “and spouse maintenance” after “property settlement” should be included in the order, and that “74” thus be included after “79”, so that the order in its preamble would read, as sought:
By way of property settlement and spouse maintenance pursuant to ss 79 and 74:-

I note that s 77A has no application in relation to the slip rule amendments sought. First, it is not contended that the property transfer referred to in par 1 of the order was for spouse maintenance. Secondly, par 2, which expressly refers to spouse maintenance, does not require the payment of a lump sum but a periodic sum.
So far, I have dealt primarily with Rule 17.02(2), namely whether there is error obvious on the face of the order.
However, it is necessary to deal also with the question whether the amendment sought is amenable to correction as the result of accidental slip or omission: Rule 17.02(3)(b).
In respect of both of these matters however I must proceed immediately to the submissions of the judgment creditor.
Mr North SC and Mr Waterman pointed to certain parts of the Application for Consent Orders by the husband and the wife, in particular item 17, which inquired as to whether the parties previously had entered into a “binding financial agreement”, which the husband and the wife had marked against the word “Yes” an “X”, indicating a positive; and had attached, as requested at item 17, a copy of their “binding financial agreement”. The binding financial agreement attached to the husband’s and the wife’s Application for Consent Orders expressly was headed “Financial Agreement for the purpose of s 90C of the Family Law Act”, and by clause 3, provided:
3.Within (30) days of the date of this agreement or the date of any court order made pursuant to this agreement, [the husband] shall transfer to the [wife] all his right, title and interest in the former matrimonial home situated at [Suburb B]. (emphasis added)
Mr North SC and Mr Waterman submitted (folio 42):
26.The question is not whether there is an error or whether there were errors but whether any such error was a consequence of a clerical error or accidental slip or omission or was simply an erroneous but deliberate decision. (emphasis added)
The submission proceeded that, in light of clause 3, I ought not conclude, and that it is not open to me to conclude, that the reference to “s 90C” in the preamble to the order was merely a clerical error; but rather that I should conclude that the reference to “s 90C” was “quite deliberate”, having regard to item 17 in the Application for Consent Orders and clause 3 of the financial agreement.
However, clause 3 refers to “any court order made pursuant to this agreement”. Clause 3 thus itself contains an error, because, as earlier mentioned, the Court has no power to make any order pursuant to s 90C; nor indeed pursuant to any financial agreement. I note that pursuant to s90KA(c) a financial agreement, or a specified part of it, may be enforced “as if it were an order of the court”. However, presently this is not relevant because, plainly, any enforcement would be “pursuant to” s 90KA(c) and plainly not “pursuant to” s 90C.
The submission proceeded that the error by the husband and the wife was a “deliberate decision” such that they “intentionally” sought an order pursuant to s 90C believing, although erroneously, that such an order was available and within power under s 90C.
Thus, Mr North SC and Mr Waterman submitted, the order was obtained not as a consequence of any “inadvertence”, or “accidental slip”, but was sought deliberately.
I can dispose of this aspect of the matter shortly. First, although the husband is and at all times was a solicitor, in proceedings BRF1265/2005 he and the wife acted as litigants in person.
If it is sufficient, as firmly established by the authorities, that the slip rule can be applied where a party’s legal representative makes an inadvertent error; a fortiori, it can be applied in relation to litigants in person, albeit that the husband was and is a solicitor.
In all of the circumstances, in relation to Rule 17.02(3)(b), I conclude that the reference to “s 90C”, in the order made on 11 May 2005 was an error, made by ignorance, and thus, an “accidental slip”, because s 90C contains no power for the making of orders for property settlement or spouse maintenance; and that nothing in clause 3 of the financial agreement can change that raw fact. That is to say, whilst the husband and the wife plainly chose to include clause 3, as worded, in the financial agreement, and plainly chose to put “s 90C” in the preamble to the consent order which they sought (see the “Minutes of Consent”, ex 1 to the Application for Consent Orders), both demonstrably were erroneous by ignorance and thus, accidental slip legally, although the words and expressions in clause 3 and in the preamble to the order may have been deliberately chosen. That is because, as explained, the substance of the consent order which the husband and the wife sought simply could not be made by the power they purported to invoke.
Further, the argument of Mr North SC and Mr Waterman fails, in my view, because the relevant question is not whether there was an error or mistake in the Application for Consent Orders, but an error or mistake in the actual order, which demonstrably there was because as already explained, s 90C of the Act is not a provision containing a power to make the specific orders expressly sought. That is to say, plainly, by the completion by the husband and the wife of Parts G and H of the Application for Consent Orders, they intended to seek and obtain, in substance, a property order and a spouse maintenance order, each capable of being made only under s 79 and s 74.
The case is thus one which meets the test of whether, if the reference to s 90C and the circumstance of it being an error had been recognised by the Court before the order was made it would have been corrected “at once”, for the reason that it cannot be said that the Court ever intends to make an order on its face expressed to be pursuant to a power which does not exist. Orders are made by the Court, not “by” the litigants.
I reject therefore the argument of Mr North SC and Mr Waterman that the orders that the husband and the wife sought were not “obtained” as a consequence of any “inadvertence” or “accidental slip”. Rather, there was indeed “inadvertence”, meaning inadvertence to the correct statutory provision, and thus “accidental slip”, in the reference by the husband and the wife in their “Minutes of Consent” ex 1 to the Application for Consent Orders, by, plainly, reference to the wrong statutory provision in relation to the substance of the specific orders which they sought, which, as I have said, were capable of being made only under s 79 and s 74. Even if that analysis be wrong in fact, and “deliberate” on the part of the husband and the wife, having regard to clause 3 of their financial agreement, and the Minutes of Consent, it remains that orders are made by the Court, and not by litigants, such that the Court could not have intended to make an order by reference to a statutory provision under which the orders sought could not be made, but rather the Court would have intended to invoke, in the preamble to the orders, the correct statutory provisions pursuant to which the Court’s power to make the substantive orders sought could be made, namely s 79 and s 74.
I am satisfied thus as to the need for immediate amendment to the orders to delete the reference in the preamble “s 90C”.
The order thus with the deletion of “s 90C” in its preamble sensibly would read:
By way of property settlement pursuant to the Family Law Act:-
As to whether the order in its preamble should now be amended to include instead of “s 90C” the reference “ss 79 and 74” and the words “and spouse maintenance” after the words “property settlement” it is true, as Ms Carew submitted, that the order would have efficacy even without its preamble, which could be entirely deleted, the substance of the orders made, plainly enough, being by reference to ss 79 and 74. However, that is not a matter, as will be seen, which satisfies the argument presented by Mr North SC and Mr Waterman.
Mr North SC and Mr Waterman pointed to the circumstance that the husband did not provide an affidavit similar to that of the wife, so that there is no evidence of his intention (I have referred earlier to the wife’s affidavit as to her intention).
On 11 July 2012, however, I appointed a case guardian for the husband. Possibly (although I need not decide) the husband’s incapacity leading to the appointment of the case guardian is the reason why no affidavit was made by him similar to that of the wife.
Nonetheless, this is a distraction. It is the Court which makes orders, not the parties who seek the orders. Thus, I would refer to Newmont Yandal (above) and to DJL (above) as to the Court’s inherent jurisdiction to correct its own orders and to the circumstances that:
·an order may be amended by the Court if it did not truly represent the decision which the Court intended to pronounce (Newmont Yandal at [77] – [78] (citing DJL; and Ivanhoe) and at [78] - [79] citing Ainsworth; Mellow)
·the slip rule also allows correction where there is infelicity or ambiguity of expression which would result in the order being “of untoward effect”: DCT v Healy (above) [26]. (emphasis added)
The inclusion of “90C” has at least infelicity of expression (“inaptness of expression”: Oxford); when the substance of the order is considered. Further, absent the deletion of “90C”, the order of the Court would have “untoward effect” by the preamble to the order citing a plainly incorrect statutory provision in relation to the substance of the order made.
The question then follows whether the order should be further amended under the slip rule relating to “accidental omission” (Rule 17.02(3)(b)) by the inclusion of “ss 79 and 74” and the words “and spouse maintenance”.
As to whether they amount to “accidental omission”, as mentioned within the relevant rule, it seems to me that because the preamble to the order expressly included the words “by way of property settlement”, and because paragraph 2 of the order expressly referred to spouse maintenance, it must be uncontroversial that there was “accidental omission” of an inclusion, after the words “property settlement”, of the words “and spouse maintenance”. I am therefore readily satisfied, because of the inclusion of the words “property settlement” in the preamble, that there has been “accidental omission” of the words “and spouse maintenance” so that amendment should be allowed for the inclusion of those words.
As to the substitution of ss 79 and 74, in lieu of s 90C, I would make the same observation.
Readily, therefore, I will allow the amendments sought, under the slip rule, for the reasons explained, and further pursuant to the Courts inherent jurisdiction, as also already explained.
In so doing, I accept the force of Ms Carew’s submission that the substance of the orders made would have efficacy even without the preamble to the orders.
However, in all of the circumstances, I am satisfied that it is proper and just to allow the amendment sought, as I have said, under the slip rule, or pursuant to the Court’s inherent jurisdiction, to make plain the provisions pursuant to which the Court intended to pronounce, and pursuant to which the Court did pronounce, the consent orders.
Finally, by way of observation (not forming part of my reasoning) it seems to me that in relation to the judgment creditor once the expression “90C” is deleted from the preamble, which plainly must be done, for the reasons explained, it really does not matter to the judgment creditor whether the words and expressions sought to be included by the husband and the wife are or are not included in the amendment.

Review of the order made 11 May 2005 – whether it should be “discharged” pursuant to Rule 18.08, s 37A(9) and/or s 37A(10).

Mr North SC and Mr Waterman submitted that at the time the order was made there existed a binding financial agreement between the husband and the wife made under s 90C of the Act so that s 71A(1)(a) of the Act (relied upon by Ms Carew) does not apply.
Section 71A of the Act, in Part VIII, which relates to “Property, Spousal Maintenance and Maintenance Agreements”, provides:
SECTION 71A THIS PART DOES NOT APPLY TO CERTAIN MATTERS COVERED BY BINDING FINANCIAL AGREEMENTS
71A(1) This Part does not apply to:
(a)       financial matters to which a financial agreement that is binding on the parties to the agreement applies; or
(b)      financial resources to which a financial agreement that is binding on the parties to the agreement applies.
71A(2)   Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1).
Paragraphs (caa) and (cb) of the definition of matrimonial cause in subsection 4(1) presently are not relevant.
Ms Carew had submitted that s 90DA(1) of the Act has effect that any financial agreement between the parties is of “no force or effect” until a “separation declaration” is made, with effect that, per force of s 71A(1) the jurisdiction of the Court under Part VIII is not ousted, in particular, relevantly, in relation to s 79 and s 74.
It is desirable to set out s 90DA.
SECTION 90DA NEED FOR SEPARATION DECLARATION FOR CERTAIN PROVISIONS OF FINANCIAL AGREEMENT TO TAKE EFFECT
90DA(1) A that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the of the , all or any of the or financial resources of either or both of the spouse parties:
(a)  at the time when the agreement is made; or
(b)  at a later time and before the termination of the marriage by divorce;
are to be dealt with, is of no force or effect until a separation declaration is made.
90DA(1A) Subsection (1) ceases to apply if:
(c)  the spouse parties divorce; or
(d)  either or both of them die.
90DA(2) A separation declaration is a written declaration that complies with subsections (3) and (4), and may be included in the financial agreement to which it relates.
90DA(3) The declaration must be signed by at least one of the spouse   parties to the .
90DA(4) The declaration must that:
(e)  the spouse parties have separated and are living separately and apart at the declaration time; and
(f)  in the opinion of the spouse parties making the declaration, there is no reasonable likelihood of cohabitation being resumed.
90DA(5) In this section:
declaration time means the time when the declaration was signed by a spouse party to the financial agreement.
Definition of “declaration time” amended by No 115 of 2008, Sch 3, Pt 1[16].
separated has the same meaning as in section 48 (as affected by section 49). (emphasis added)
Mr North SC and Mr Waterman submitted that there is a clear distinction in the Act between a financial agreement being “binding” on the parties to it, and whether, if ever, it becomes of “force or effect”, by reason of a “separation declaration”. Thus, it was argued a financial agreement becomes “binding” when (but only when) the formalities under s 90G are fulfilled, but although “binding”, nonetheless is of no “force or effect” until there be a “separation declaration”; further that pursuant to s 71A(1)(a), the non application of Part VIII arises once there is a financial agreement that is “binding” on the parties to it, with effect that the binding financial agreement evidenced by and attached to the Application for Consent Orders has the necessary effect that on 11 May 2005 the Court had no power to make a s 79 property order.
There is difficulty here I think, in the argument of Mr North SC and Mr Waterman, because, on the one hand, for part of the argument, it was submitted that as at 11 May 2005 there was a binding financial agreement between the husband and the wife, but, on the other hand, and for the converse part of the argument, and even if the s 79 order be set aside upon review, or under s 79A (as the judgment creditor seeks in the principal action) the judgment creditor seeks that the binding financial agreement be declared invalid and/or set aside as not complying with s 90G of the Act and/or be set aside pursuant to s 90K(1)(aa)(i) and (ii) of the Act, with consequential relief that the wife divest herself of the husband’s former right, title and interest in the matrimonial home by transferring it back to him: Reasons for Judgment 16 May 2012 at [11] and [122] – [148].
These matters, in my view, should be dealt with at the trial, in that the matters raised for review in any event will arise at the trial.
Ms Carew submitted that pursuant to s 37A(9) and/or R 18.08, only “a party” is competent to be an applicant for review and that the judgment creditor is not a party to proceedings BRF1265/2005.
Mr North SC and Mr Waterman submitted that the judgment creditor in effect became a party to those proceedings by being joined as a respondent to the application in a case of the husband and the wife filed 29 May 2012 by naming him as a respondent; such that although that application in a case was filed in the present proceedings, any order by me (which I have indicated I will make) that the application in a case be treated as if it had been filed in proceedings BRF1265/2005 has effect, relevantly, that he is now a party to those proceedings. Technically, that is probably correct. However, I need not decide it presently.
That is because, in the alternative, Mr North SC and Mr Waterman submitted that if I am not persuaded that the judgment creditor has standing to apply for review under s 37A(9) and/or R 18.08, the case is one in which pursuant to s 37A(10), the Court of its own motion may review the exercise of power by the Registrar in relation to the making the 11 May 2005 order.
Mr North SC and Mr Waterman submitted (written submissions filed 11 July 2012, folio 42):
51.It is important to note that the Court’s power to review a Registrar’s decision pursuant to s 37A(10) is not constrained by any limitation of time. The absence of an express time limit is of significance. There should be no such limit on a Court’s power to control its own processes. In Brugman & Marley there was no objection from the Respondent to the Court giving leave to the Applicant to make the application for review out of time. Kent J however observed as follows (at [5]):
“… there was no objection from the Respondent to the Court giving leave to the Applicant to make that application out of time, and in any event, I record that under s 37A(10) of the Act, the Court may of its own motion review an exercise of power by a Registrar pursuant to a delegation under that section. I would have been prepared in any event to treat the subject application before me as a matter for review by me of the power purportedly exercised by the Registrar and any extension of time for that purpose would be inevitable.” (emphasis added)
52.In those circumstances the question of whether the Court would of its own motion at this stage review the decision of the Registrar made on 11 May 2005 is not directly influenced by the considerations affecting an application by a party for leave to extend time. In any event the absence of jurisdiction to make the order under consideration renders such question of delay and prejudice less compelling, if of any significance at all.
53.The power under s37A(10) is referred to by Nicholson CJ in Sommerville and Sommerville (2000) FLC 93-042 at [142]-[149]. His Honour there declined to invoke it as “there was nothing wrong with the original order”: (see [148]). His Honour regarded the exercise of that power as being “confined to circumstances where in the exercise of its supervisory functions [the Court[ considers that an order should not have been made and that it was necessary to intervene to set it aside”: (see at [149]). It is submitted that in so confining the operation of the power under s37A(10) , his Honour aptly described the very circumstances under consideration here.
54.In determining whether or not to review the decision of its own motion other matters to which the Court would properly have regard include:
a)that on its face the order made was beyond power;
b)that the order cannot ever properly have been regarded as an appropriate basis for the transfer of the legal interest in the land by the husband to the wife and the validity or otherwise of that transfer ought properly be considered by reference to the matters to be litigated in proceedings No. BRC 3380/2011 with respect to the binding financial agreement and not otherwise;
c)Mr Costello is a person aggrieved by the continuance of that order and any prejudice occasioned to Mr and Mrs Condi by a review at this stage ought to be seen in light of the clear prejudice to Mr Costello of an order apparently without power continuing to have effect;
d)the administration of justice is not enhanced by the Court, now made aware that a previous order is on its face entirely without power, doing nothing about it when it is within the Court’s power to remedy the error;
e)issues of prejudice and delay carry little if any weight where the error is one that goes to jurisdiction;
f)in circumstances such as these, where the making of an order which is beyond power may go undetected for long periods of time, the power under s37A(10) for the Court to review an order of its own motion at any time may be seen as a recognition by the Legislature of the necessity for the due administration of justice for the Court to have the capacity to overturn orders purportedly made under delegated authority when the abuse of power is ultimately detected.

If I were to exercise the power under s 37A(10) of the Act, to review the exercise of power by the Registrar of the Court’s own motion, such would circumvent both the need for the judgment creditor to apply for an extension of time in which to file an application for review, and indeed to seek it under s 37A(9).
Mr North SC and Mr Waterman made clear, in relation to the merits of any review, that reliance is placed solely on the absence of power to make the order made, on 1 or 2 legal bases, first that s 90C of the Act is not a source of power for the Court to make or to have made the order; and secondly that (in effect) even if the slip rule is applied to make clear that the order was made under s 79 and s 74, s 71A(1) has effect that there was no power to make the s 79 order pursuant to which the husband’s interest in the former matrimonial home was transferred to the wife, that being, in particular, the order which the judgment creditor seeks to have declared invalid and/or set aside.
In terms of the Court’s time, and its best use, Mr North SC and Mr Waterman initially submitted that the review should be conducted before the trial, because if upon review the order is set aside then the judgment creditor would no longer need to seek an order in the present proceedings that pursuant to s 79A it be set aside. However, Mr North SC and Mr Waterman conceded that the judgment creditor nonetheless would continue to apply for relief under s 90K(3) for an order that the financial agreement be declared invalid or set aside under s 90K(1)(aa) and consequentially for the husband’s interest in the former matrimonial home to be retransferred to the wife.
It will readily be seen (Reasons for Judgment 16 May 2012) that although the “tests” under s 79A and s 90K(1)(aa) are different, the evidence relevant to factual findings for both of those applications basically is likely to be the same so that, in my view, there would be no saving of trial time if there should be early and separate review.
Mr North SC and Mr Waterman relied also on s 79(10)(a) as entitling the judgment creditor to have been a party to the 2005 proceedings, and raised as a further ground of review the question whether the Court was misled by the Application for Consent Orders when it made the consent order in circumstances where there was no reference in the filed Application for Consent Orders to the judgment creditor in respect of his unpaid wages; no reference to any other outstanding creditors; and/or liabilities in respect of the husband’s legal practice; and other matters including non-disclosure of the circumstance that the husband’s legal partnership had been dissolved on 3 May 2005 and a receiver appointed to it by the Supreme Court of Queensland on 4 May 2005. In respect of these matters, the Reasons for Judgment 16 May 2012 deal with them comprehensively: see, eg [91] – [99].
Mr North SC and Mr Waterman however further conceded (written submissions, folio 44):
25.In raising this ground of review it is conceded that unless the facts are not in issue it would require a full hearing which could be conveniently dealt with at the trial, …
I am very familiar with this matter. My Reasons for Judgment 16 May 2012.
It seems to me impossible to think that in relation to, in particular, the judgment creditor’s reliance on s 90K(1)(aa)(i) and (ii) that “the facts” would not be in issue, particularly in the circumstances that what is squarely alleged is that the husband entered into the financial agreement for the purpose or for purposes that included the purpose of defrauding or defeating the judgment creditor; or with reckless disregard of the interests of the judgment creditor; most strenuously resisted by the husband.
Ms Carew of Counsel, in oral argument on 11 July 2012, submitted that the s 71A(1)/s 90DA(1) matters, being matters of statutory interpretation, and dependant upon the facts as they may be found, also should await the trial and more fulsome submissions than available presently, in particular as to the statutory interpretation matters, by reference to extrinsic materials if necessary.
There is merit thus in the approach of Counsel for the review to be conducted as part of the trial proceedings. Review prior to the trial of the substantive matters in the current proceedings would not (to borrow from the language of authorities dealing with preliminary determination of discrete issues) if decided one way be likely to put an end to the current proceedings or even to narrow the issues in the current proceedings.

Other matters

Observation as to utility of the judgment creditor seeking to set aside the binding financial agreement if the s 79 order is set aside

If the judgment creditor succeeds in having the s 79 order set aside under s 79A, then not only will a review of it not be required, but potentially the Court would not need further to consider setting aside the binding financial agreement unless the parties actually separated or one of them signed a separation declaration neither of which presently is foreshadowed.
That is because the transfer document relating to the transfer to the wife of the husband’s interest in the former matrimonial home expressly was pursuant to the s 79 order, and not pursuant to or purportedly pursuant to the binding financial agreement. Thus, if the s 79 order is set aside, by consequential relief the Court will be enabled to order retransfer of the husband’s interest back to him. Potentially, any continued existence of the binding financial agreement would have no effect on that relief, it being of “no force or effect” until one of the requisite matters, as mentioned, should occur.

Procedural matters

On 11 July 2012 I had anticipated entertaining only the application by the husband and the wife under the slip rule. However, in the response of the judgment creditor, as mentioned, he has sought review of the 11 May 2005 order. During argument on 11 July 2012 Counsel agreed that I should and indeed invited me to deal with the application for review on the papers, which I have done.

Conclusions relating to review

I am persuaded by Counsels submissions that there should be a review of the 11 May 2005 order and that such should occur by the Court of its own motion pursuant to s 37A(10). The central matter on review will be whether the Court order 11 May 2005 was made without power, such that it should not have been made, and/or necessarily should be set aside because of the prior existence of a binding financial agreement, so that there was not jurisdiction; or alternatively or in addition if, as appears to be the case by reference to the Application for Consent Orders, the husband and the wife failed to disclose to the Court in the Application for Consent Orders the specific matters to which already I have referred. The Court in my view would act of its own motion in respect of any of these matters to preserve its own integrity and the integrity of the judicial process.
Further, as observed in Brugman & Marley [2012] FamCA 106 by Kent J:
6.Plainly enough, there is authority in this and other courts to the effect that an Order made by a federal Court, albeit that there is a lack of jurisdiction to make that Order, is nevertheless not void or a nullity, and I refer to In the Marriage of Wade-Ferrell & Anor [2001] FCA 138 (“Wade-Ferrell”). However, an order made with a lack of jurisdiction is voidable and liable to be set aside.
7.Wade-Ferrell is authority for the proposition that a court would have little option but to set aside an Order where it is demonstrated to have been made for want of jurisdiction …
Accordingly, I will order review under s 37A(10), and as mentioned earlier that such occur at the same time as the trial.
In the circumstances it is not necessary for me to deal with the application by the by the judgment creditor, as if he were a party to the 2005 proceedings, to extend time for a review. In this regard I would refer to the parties’ written and oral submissions as to merits (dealt with sufficiently already); alleged delay (the husband and the wife alleging that 7 years delay is not explained and that the judgment creditor does not depose when he first became aware of the 11 May 2005 order); the judgment creditor in turn attacking that it is inappropriate for the husband and the wife to allege delay when he was not given notice of the 2005 proceedings, as he should have been given; or joined as a party, pursuant to s 79(10); and further submitting that until late May 2012 he had no knowledge of the matters necessary to consider whether to seek an application for review that is until after the file in proceedings BRF1265/2005 was inspected by his solicitors pursuant to my orders made on 16 May 2005; then inspected and copied on 17 May 2005; the husband and the wife submitting that severe prejudice would arise to them by the grant of an extension of time for review, largely because of their personal circumstances, referred to extensively in the Reasons for Judgment 16 May 2005 and the material in support of the application for appointment of a case guardian for the husband; and asserting also that the judgment creditor does not assert any prejudice or injustice if his application for extension of time to review should fail; the judgment creditor asserting, against this, that the merits would indicate substantial injustice to him if he is not heard upon a review; and that it is difficult for a party to complain that he or she would lose the benefit of a judgment or order if it be demonstrable that it was one which never could be made within the Court’s power, citing Brugman & Marley (above).
In the circumstances of my decision that the review should be conducted under s 37A(10) these matters are now academic and need not be determined.

Costs

It is proper in all of the circumstances that the costs applications of the parties be reserved and I will so order.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 26 October 2012.

Associate:

Date: 26 October 2012