Director General, Department of Services, Technology and Administration v Veall (No 3)
[2011] NSWSC 541
•06 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: Director General, Department of Services, Technology and Administration v Veall & Ors (No 3) [2011] NSWSC 541 Hearing dates: 6 May 2011 Decision date: 06 May 2011 Jurisdiction: Common Law Before: BUDDIN J Decision: Corrections to judgment
Catchwords: Introduction agency - allegations of misleading and deceptive conduct - allegations of unconscionable conduct - accessorial liability of the defendants - ex parte proceedings Cases Cited: Burrell v The Queen (2008) 238 CLR 218
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Others (2007) 70 NSWLR 411Category: Procedural and other rulings Parties: Director General, Department of Services, Technology and Administration (Plaintiff)
Hollie Veall (First Defendant)
Helen Dimitrijevski (Second Defendant)
Zivko Dimitrijevski (Third Defendant)Representation: Counsel:
G Sarginson (Plaintiff)
No appearance (Defendants)
Solicitors:
Ms B Mauro (Plaintiff)
File Number(s): 2009/325996
Judgment
On 3 May I published my reasons for making findings in respect of the first and third defendants on the issue of liability. I have not been asked at this stage to make final orders. Before those findings were entered in the computerised court record system, I requested that counsel for the plaintiff examine the judgment to see if there were any aspects of it that required the removal of personal details. I also requested that counsel check for any factual errors. That was done for more abundant caution because this part of the proceedings has been conducted on an ex parte basis. I received a response from the solicitor for the plaintiff setting out a large number of suggested corrections. There was also a request that the address of a former client of TLC should be removed. Given the state of the evidence in respect of that issue, I have acceded to that request.
The question which then arises concerns the other matters which may require correction. In due course, counsel for the plaintiff indicated that a not inconsiderable number of the suggested corrections were not pressed.
The remaining suggested corrections fall in the following broad categories:
(a) spelling or typographical errors;
(b) the correct name of a service provided by TLC;
(c) the correct date on which, or period of time during which, an event or events occurred; and
(d) other minor factual errors.
Although I bear responsibility for any errors which have occurred, I should record that I placed considerable reliance upon a document prepared by the plaintiff's legal representatives (which I used as an aide-memoire) that comprehensively summarised the evidence. As I have observed elsewhere, the evidence was voluminous. It is unsurprising then that some inaccuracies, particularly in relation to dates, appear in that document.
Upon the assumption that it is necessary to do so, given that this is an interlocutory judgment, I have given consideration to UCPR r 36.17 (the slip rule) which is in the following terms:
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
I am completely satisfied that each of the corrections which I intend to make is permitted by the application of that rule. The matters referred to in category (a) are examples of "a clerical mistake". I am equally satisfied that the remaining matters can be described as errors "arising from an accidental slip or omission".
In considering the issue I have had regard to the principles enunciated in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Others ( 2007) 70 NSWLR 411. See generally Burrell v The Queen (2008) 238 CLR 218.
In the ordinary course of events, I would not be inclined to make many of the corrections that have been suggested. However, in my view, it is appropriate to do so because, as I have said, the matter has proceeded ex parte. More important however, is the fact that this is only the first step in these proceedings. There still remains to be determined the question of remedies as well as the foreshadowed proceedings which the plaintiff presently intends to pursue in respect of the second defendant. It is thus important that the record should be accurate at this stage of the proceedings. If there is a legitimate basis upon which it can be corrected, and I believe that there is, then it should be.
There is only one respect in which I intend to make an alteration to a finding and that concerns the finding in relation to the first defendant. I have simply decided to insert the date from which she was employed with TLC which is a considerably shorter time than the overall period during which TLC conducted its activities. That alteration, of course, operates to her advantage. In no other respect has there been alteration to the analysis of the law or its application to the factual findings which I have made. Moreover, I am satisfied that none of the corrections operates to the disadvantage of either of the defendants. Nor, of course, do any of them affect the substance of anything that is contained in the unrevised judgment.
The corrections which were suggested by the plaintiff's solicitor, together with written submissions on the issue which were prepared by counsel for the plaintiff, will remain with the file.
**********
Decision last updated: 21 June 2011
1
1
0