FITZGERALD-STEVENS and LESLIGHTER

[2015] FCWA 33

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FITZGERALD-STEVENS and LESLIGHTER

[2015] FCWA 33

CORAM: WALTERS J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 16 APRIL 2015

FILE NO/S: PTW 5767 of 2008

BETWEEN: MS FITZGERALD-STEVENS

Applicant

AND

MR LESLIGHTER
Respondent

Catchwords:

FAMILY LAW – Property settlement – Comparatively small error in schedule of parties' property attached to final judgment – Slip rule – Whether real or genuine difference of opinion can exist as to the need to make changes requested – Whether independent exercise of discretion is required before making changes requested – Finding that slip rule applies and that errors should be corrected for the purpose of giving effect to the Court's intention as expressed in the final judgment

Legislation:

Family Law Act 1975 (Cth), s 75(2)
Family Law Rules 2004, r 17.02

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hanly

Respondent: Self Represented Litigant

Solicitors:

Applicant: Hotchkin Hanly

Respondent:

Case(s) referred to in judgment(s):

Brew v Whitlock (No 3) [1968] VR 504

Noetel & Quealey (2005) FLC 93-230

Russell v Russell (1999) FLC 92-877

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED

Background

1The subject of these comparatively brief Reasons is a request by the wife's solicitors for the Court to change the amount of money payable by the wife to the husband pursuant to the final orders made on 12 March 2015 ("the Orders") from $74,293 to $68,130. No other change to the Orders is sought. The wife's solicitors assert that the change is necessary because an error has occurred, which error can be corrected by what is commonly referred to as "the slip rule".

2The Orders were made pursuant to Reasons for Judgment ("the Judgment") delivered contemporaneously with the making of the Orders.

3I am satisfied that there has indeed been an error. It arises in the following manner:

a)The Judgment at [255] to [260] ("the Relevant Paragraphs") deals with the subject of loans made by the husband to three of his adult children. The loans are listed at items 8, 9 and 10 of the Property Schedule attached to the Judgment: see the Judgment at [184] and the Property Schedule itself.

b)There is no dispute that the figure in item 8 of the Property Schedule correctly reflects the findings in the Relevant Paragraphs.

c)The figures in items 9 and 10 of the Property Schedule, however, do not correctly reflect the findings in the Relevant Paragraphs. As is apparent from the Judgment at [259], the correct figures for items 9 and 10 should be $12,000 and $22,500. Those figures should have been included in the Property Schedule, but they were not. Instead, $10,000 appears for each of items 9 and 10 in the Property Schedule.

The Court has acknowledged the error

4After receiving a letter from the wife's solicitors pointing out the error (and recalculating the amount payable to the wife), the Court wrote to both parties in the following terms:

I acknowledge receipt of Mr Hanly's letter of 10 April 2015 regarding paragraph 259 of the Judgment in this matter and the figures contained in the Property Schedule attached to the Judgment.

His Honour Justice Walters has reviewed the Judgment and has confirmed that you have correctly identified an error in it. His Honour has confirmed that the figures contained in items 9 and 10 of the Property Schedule attached to the Judgment were incorrect and that the correct figures should have been $12,000 and $22,500 respectively. As a result, the total net value of the property to be retained by Mr [Leslighter] is $2,123,446. The total net value of the property to be retained by Ms [Fitzgerald-Stevens] remains unchanged at $1,687,991. The overall total should be $3,811,437 (as Mr Hanly indicated).

His Honour has also confirmed that the correct figure payable by Ms [Fitzgerald-Stevens] is $68,130 (instead of $74,293).

The above figure is reached on the following basis:

42.5% of $3,811,437 is $1,619,861. Given that Ms [Fitzgerald-Stevens] will be retaining net assets to the value of $1,687,991, the "shortfall" is $68,130. This is the amount payable to Mr [Leslighter].

Please confirm that you have no discomfort with the above calculations.

If we have not heard from you to the contrary (by letter or by email) by close of Registry business on Monday, 20 April 2015, his Honour will proceed to amend the final orders (pursuant to the slip rule) in accordance with the above calculations. At the same time, his Honour will issue an amended Judgment incorporating the correct figures. The pages of the Judgment that will require amendment are pages 55, 69, 70 and 71. The Property Schedule attached to the Judgment will also have to be amended.

5The 42.5% figure referred to in the Court's letter to the parties is in accordance with the finding in the Judgment at [396] to the effect that –

the overall distribution of the property between the parties should be on the basis of 57.5% to the husband and 42.5% to the wife.

6The original Property Schedule (as attached to the Judgment) is attached to these Reasons, marked "A". An amended Property Schedule – showing the corrected figures for items 9 and 10 – is attached to these Reasons, marked "B". It is apparent from the two Property Schedules that the figures referred to in the Court's letter to the parties are correct.

The husband opposes the proposed changes

7The husband does not consent to the course of action proposed by the Court. On 14 April 2015, he emailed the Court in the following terms:

I am in receipt of a copy of correspondence from Mr JG Hanly, of Hotchkin Hanly, that alludes to a discrepancy in the cash amount, that His Honour has directed, be paid to me, by Ms [Fitzgerald-Stevens], as part of a significant final readjustment of assets.

As I have not signalled that I shall make an application to adjust the aforesaid subject matters that would further favour me, and that the sum, which Mr Hanly alleges was a result of a miscalculation, by the Court, I vehemently oppose any additional adjustment, particularly, that, the position arrived at by His Honour, has had a tortuous and prolonged path.

Should, however, Mr Hanly proceed with his puerile and evocative intentions, now that we are so close, after many years, and hundreds of thousands of dollars in legal fees being expended, to a settlement, I would, however reluctantly, make application, to reopen court proceedings, notwithstanding, that there is a multitude of serious infractions, that I am, at the moment, not intending to ventilate.

Please note - a copy of the correspondence hereto, has been forwarded to Hotchkin Hanly, for the attention of Mr Hanly.

8The husband's email does not clearly assert that the error described in the Court's letter has not occurred. Instead, he appears to argue that the matter should lie where it has fallen (as it were) because, in his opinion, the Judgment contains other errors which, if corrected, would lead to an overall result more favourable to him than the result reflected in the Orders and the Judgment as they currently stand.

Legal principles

9The Court appears to have two choices in the present circumstances. The first is to proceed to amend the Judgment and the Order to rectify what it regards as an obvious error. The second is to leave the matter in the hands of the parties, accepting that one or other (or both) may elect to appeal.

10Rule 17.02 of the Family Law Rules 2004 – known as the slip rule – is as follows:

17.02 Errors in orders

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.

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.

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).

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).

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

11The law relating to the slip rule was discussed in detail by the Full Court in Russell v Russell (1999) FLC 92-877 ("Russell") at pp 86,436-7 and Noetel & Quealey (2005) FLC 93-230 ("Noetel & Quealey ") at [61] to [73]. In the latter case, it said at [62]:

The slip rule is a well settled common-law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.

12Having regard to the discussions in Russell and Noetel & Quealey, the following principles or considerations appear relevant:

a)An error of fact made by a trial judge can form the subject of intervention by an appellate court, but not every mistake of fact requires appellate intervention.

b)A court's power to correct errors in orders arising from accidental slips or omissions exists independently of the provisions of r 17.02. In other words, courts have an inherent or implied power to amend judgments (and orders) which do not correctly state what was actually decided and intended. Rule 17.02 simply reflects the common law.

c)Although the slip rule is very wide in its scope, and the circumstances in which it has been applied are numerous and varied, it is not available "as a matter of course".

d)If a real or genuine difference of opinion can exist as to whether the proposed amendment is required, the slip rule will not apply.

e)The slip rule extends to the intention which the Court would have had if the accidental slip or omission had not occurred. The slip rule is not excluded simply because the making of the relevant orders or the giving of the relevant judgment reflected the judge's intention at that time – provided that the judge's intention was affected by the accidental slip or omission.

f)An omission or mistake should not be treated as accidental for the purposes of the slip rule if the proposed amendment "requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist": see Russell at [69], where the Full Court cited with approval the following passage from Brew v Whitlock (No 3) [1968] VR 504-507:

In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right. Not only what was omitted, but what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run. (Emphasis added.)

g)The impact of any proposed amendments on each party’s financial position is a relevant consideration. A significant impact (in other words, a significant proposed amendment to orders to give effect to the slip rule) will almost certainly require "an independent exercise of discretion". The Full Court referred to the dilemma in Russell at [80]:

In our view, because of the impact which the amended orders would have on the wife's financial position, the making of those orders must be said to have required an independent exercise of discretion. Furthermore, it must be remembered in this regard that under s 79(2) of the (Family Law Act), the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour (the trial judge) has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.

Discussion

13In my opinion, it is sensible and principled to deal with an obvious error by applying the slip rule if it is possible to do so, thereby avoiding the possibility (or likelihood) of the parties subjecting themselves to the cost of an appeal. This is not an irrelevant consideration, as the Full Court recognised in Russell at [74]. It is also relevant, it seems to me, to have regard to the impact on the parties from the point of view of time, stress and anxiety if an appeal must be pursued. Both parties wish to bring these long-running proceedings to a conclusion, and it is in the public interest for that to occur. Those considerations do not mean that the slip rule should be applied where it is inappropriate to do so, but they mitigate against any inclination the Court may have to sit on the fence and let the parties sort the problem out themselves. After all, the error in this case is that of the Court; it is not an error of the parties' making.

14For the reasons given in the Judgment, my decision was to the effect that the parties' property – as described in the Property Schedule – should be divided between them on the basis of 57.5% to the husband and 42.5% to the wife. It was my intention that the Orders would reflect and implement my decision in that regard. It is clear beyond argument, however, that the Property Schedule contained the errors to which I have referred and that the percentages were applied to incorrect figures.

15In my opinion, no real or genuine difference of opinion can exist as to whether the proposed amendment to the figures in the Property Schedule is required. I made clear findings regarding the quantum of the loans referred to in items 9 and 10 of the Property Schedule, but the schedule did not reflect those findings. The more important question is whether a real or genuine difference of opinion can exist as to whether the proposed amendments to the Orders and the Judgment are required.

16To answer this question, I must consider whether the proposed amendments require the exercise of an independent discretion. In other words, it is not enough to acknowledge that a mathematical error has occurred; it is also necessary for the remedy to be clear. What should be done to make the Orders and the Judgment right must be apparent: see the passage from Brew v Whitlock (No 3) referred to above.

17My task in considering the question of whether the proposed amendments require the exercise of an independent discretion is made easier when regard is had to the fact that the proposed amendments have very little impact (comparatively speaking) on the parties' respective financial positions. The net value of the property available for distribution between them will increase from just below $3.8 million to just above $3.8 million (the precise figures being $3,796,937 and $3,811,437). Both parties will retain precisely the same property they were to retain pursuant to the Judgment and the Orders, save that the wife will be required to pay the husband $68,130 instead of $74,293. In a very real sense, the change is de minimus.

18Still, there can be no doubt that it is the justice and equity of the actual orders to be made that must be considered, and not (solely) the justice and equity of any proposed percentage distribution. As foreshadowed in the Court's letter to the parties, the correction requested by the wife will require amendments to the Judgment at [325] on page 55; it will also require amendments to various paragraphs on pages 69, 70 and 71 of the Judgment. The amendment to [412] on pages 70 and 71 of the Judgment is simply an amendment to the figure contained in the Orders. Similarly, the amendment to [403] on page 69 is arithmetical. However, the other changes to the Judgment (at [404] to [410] on pages 69 and 70) involve a consideration of whether the proposed orders would still be just and equitable if the husband's Parliamentary pension had been treated as a financial resource (as opposed to an item of property).

19The fact of the matter is that the calculations in the Judgment at [404] to [410] comprise little more than a cross-check of conclusions already reached in the paragraphs leading up to [403] – which conclusions deal with the parties' contributions (in all their guises) and the applicability of the s 75(2) factors.

20The carrying out of the cross-check (as I have described it) involved discretionary elements: see, for example, the Judgment at [407] and [408]. The changes resulting from the error described above mean that slightly different figures must be inserted in those paragraphs and minor consequential amendments made. As foreshadowed above, the question then arises as to whether the process of changing the figures and making minor consequential amendments requires "an independent exercise of discretion". Put another way, does the Court have to reconsider whether the property settlement orders made after the proposed amendments remain just and equitable? In my opinion, it does not. The changes proposed are minimal and have no impact whatsoever upon the Court's findings in relation to the parties' respective contributions and the applicability or otherwise of the s 75(2) factors. Although the proposed changes have an (extremely modest) impact on the value of the property available for distribution between the parties, no real or genuine difference of opinion can exist as to whether they have an impact on the justice and equity of the overall result. It is clear beyond argument that they do not.

21No independent exercise of discretion was required in carrying out the cross‑check described above, which, after all, was no more than an ancillary or collateral exercise for the purpose of reviewing and validating conclusions already reached by the Court. Although figures are to be altered and minor consequential amendments made, no real or genuine difference of opinion can exist as to whether those alterations or amendments impact on the justice and equity of the overall result. Once again, it is clear beyond argument that they do not. If the error had been more significant, then I accept that an independent exercise of discretion may have been required. As indicated above, however, the error itself was comparatively minor and the effect of the amendments required to correct the error are minimal.

22I am satisfied that the slip rule applies and that I should rectify the obvious error which has been identified. I am also satisfied that all changes or amendments to be made to the Orders or to the Judgment are for the purpose of giving effect to the Court’s intention as expressed in the Judgment.

Orders

23As foreshadowed in the Court's letter to the parties, I shall amend the Orders pursuant to the slip rule. At the same time, I shall formally recall the Reasons and arrange for them to be replaced with amended Reasons for Judgment incorporating all necessary corrections. The pages of the Judgment that will require amendment are pages 55, 69, 70 and 71. The Property Schedule attached to the Judgment will also be amended.

24I have not ignored the fact that the husband appears to be dissatisfied with certain aspects of the Judgment. His rights of appeal remain, including his rights to apply for any relevant extension of time within which to appeal.

I certify that the preceding [24] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate

“A”

“B”