Dubois v Di Carlo

[2013] FCCA 320

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUBOIS v DI CARLO [2013] FCCA 320

Catchwords:
PRACTICE & PROCEDURE– Slip rule – correction of plain error arising from position of apostrophe in word denoting singular when plural intended.

Legislation:
Federal Circuit Court Australia Rules 2001 r.16.05(e)

Cases cited:
Elyward Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385

Applicant: PHILIP JAMES DUBOIS

Respondent: SALVATORE DI CARLO

File Number: BRG 995 of 2006

Judgment of: Judge Burnett

Hearing date: IN CHAMBERS

Date of Last Submission: 20 May 2013

Delivered at: Brisbane

Delivered on: 21 May 2013

REPRESENTATION

Solicitors for the Applicant: K & L Gates

Solicitors for the Respondent: Russell & Company

ORDERS

1. Order 1 of orders made 26 September 2007 be amended to read:

   “The First and Second Supporting Creditors be substituted pursuant to s 49 of the Bankruptcy Act as Petitioners in the application”.

2. Order 2 of orders made 28 November 2008 be amended to read:

   “The Respondent pay the Applicant’s Applicants’ costs of and incidental to the Petition, including reserved costs, in an amount agreed between the parties and failing agreement as taxed in accordance with the Federal Court Rules”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 995 of 2006

PHILIP JAMES DUBOIS

Applicant

And

SALVATORE DI CARLO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants’ make an ex parte application for relief pursuant to Federal Circuit Court Australia Rules 2001 r.16.05(e), the slip rule. For reasons which follow it is, in my view appropriate, that the matter be determined ex parte because of the circumstances and nature of the relief sought. In any event the respondent has an entitlement to agitate the matter further if he considers he ought be heard.

2. The applicants’ complain that orders of 26 September 2007 contain a plain error in that they refer only to the first substituted creditor when they also have included the second substituted creditor. It is submitted that by reason of that error later orders do not give effect to the Court’s intent.

3. By application filed 11 September 2007 the applicants’ sought orders that both the first and second supporting creditors be substituted for the then extant applicant creditor. The material and heading of the application support the conclusion that an order was sought in those terms. So much is apparent because Dr Philip James Dubois was noted as the first of various members comprising the firm, Queensland X-Ray Services the second respondent. He was the member of that firm who swore affidavits and was the responsible officer of the firm for the conduct of the litigation on behalf of the firm. The order of 26 September 2007 was in error in noting only an order for substitution in respect of the first supporting creditor. This error appears to have been overlooked. It should be corrected.

4. The Court heading for the proceeding following substitution reinforces the omission. Documents filed by the respondent clearly indicate that he knew and understood that the substituted creditors extended beyond the creditor Dr Philip James Dubois but included others as his submission filed by leave on 29 August 2008 demonstrates.

5. The fact that the substituted creditors extended beyond the applicant Dr Philip James Dubois was also evident in the reasons of Wilson FM in his judgment of 29 August 2008. In his Honour’s written reasons concerning an application by the debtor for adjournment of the creditor’s petition there are numerous references to the substituted applicants (plural).

6. It is against that background that I note the reference to “applicant’s” (singular) in his Honour’s orders of 28 November 2008. In my view it is plain that at all times following the application for and orders made for substitution the reference to applicants before the Court was a reference to applicants plural they being the applicants to the application filed 11 September 2007. The application proceeded on that basis and was disposed of on such basis. It follows in my view that the failure of the order to reflect that matter is a plain error.

7. I am satisfied that it was the intention of his Honour to make an order in respect of all the persons and entities, then parties to the proceeding. Plainly the error in the order does not give effect to that intention. I consider this a matter upon which no real difference of opinion can exist: Elyward Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385.

8. His Honour’s intentions were not fulfilled because of a typographical error in the terms of order 2 of the orders made on 28 November 2008 because of the position of the apostrophe in the word applicants. It should be corrected.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date: 21 May 2013