Frigger v Nigam
[2007] WADC 138
•14 AUGUST 2007
FRIGGER -v- NIGAM [2007] WADC 138
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 138 | |
| Case No: | CIV:1305/2005 | 9 FEBRUARY 2007 | |
| Coram: | FENBURY DCJ | 14/08/07 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Order to be amended | ||
| PDF Version |
| Parties: | ANGELA FRIGGER SHARAD CHANDRA NIGAM |
Catchwords: | Costs order made in relation to appeal against cost orders made by Deputy Registrar Plaintiff, then appellant, succeeded in obtaining an order for costs in her favour No reference in order to costs of taxation of costs thrown away "Slip rule" Turns on own facts |
Legislation: | Nil |
Case References: | Frigger v Nigam [2006] WADC 28 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SHARAD CHANDRA NIGAM
Defendant
Catchwords:
Costs order made in relation to appeal against cost orders made by Deputy Registrar - Plaintiff, then appellant, succeeded in obtaining an order for costs in her favour - No reference in order to costs of taxation of costs thrown away - "Slip rule" - Turns on own facts
Legislation:
Nil
Result:
Order to be amended
(Page 2)
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr S V Forbes
Solicitors:
Plaintiff : Not applicable
Defendant : Stewart Forbes
Case(s) referred to in judgment(s):
Frigger v Nigam [2006] WADC 28
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
(Page 3)
1 FENBURY DCJ: This matter comprised a five minute hearing of an application by way of a letter that a Deputy Registrar of the Court treated as a motion to amend an order for costs made by me on 21 September 2006 in respect of an appeal against a Deputy Registrar's decision concerning costs (Frigger v Nigam [2006] WADC 28).
2 Ms Frigger was successful in the appeal and she obtained an order for costs in her favour. Ms Frigger represented herself and did not seek any special order in respect of costs she had a right to claim by reason of being successful in the appeal. These costs were, it seems, related to the costs of taxation which may have been thrown away.
3 The extracted order for costs was in the following terms:
"The respondent (defendant) do pay the appellant's costs of the appeal heard on the 1st of February 2006 to be taxed if not agreed."
4 In the very brief hearing before me that occurred on 9 February 2007 the applicant submitted that she was entitled to request that the order for costs she obtained following her success on the appeal should include costs in relation to taxation thrown away. At least this is so far as I could ascertain from Ms Frigger. She sought an amendment to the order pursuant to the slip rule maintaining that being unrepresented she did not realise that she had a right to have the costs of taxation thrown away specified and that an order would have been made if she had asked for it.
5 Order 21, r 10 of the Rules of the Supreme Court 1971 enables the amendment of judgment and orders and specifies as follows:
"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal."
6 In my view an unrepresented party to an action who out of ignorance omits to request an order relating to a special or discrete issue on costs, the order being likely to be made if sought would be entitled to seek relief under the slip rule. McHugh JA of the New South Wales Court of Appeal (as he then was) in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 451, 452 refers to the "expansive view" that is to be taken of the slip rule and its application. At par (f) his Honour lays down the principles and states:
(Page 4)
- "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. Matters such as costs or interest on a judgment for example are almost always incidentally involved in proceedings, and the Court has power to deal with them even though they are not specifically raised at the hearing provided, of course, the omission was accidental."
7 The issue at hand, as I have stated, is whether Ms Frigger's failure to ask for a specific order relating, apparently, to costs thrown away, is a matter that can be cured by reliance upon the slip rule.
8 In my view it can. I feel able to make a ruling about this in spite of the reference in counsel for the defendant's submissions to a desire to adduce evidence following the late filing of Ms Frigger's brief affidavit. As I have indicated Ms Frigger has represented herself at all material times and Mr Nigam has been represented by counsel. Both Ms Frigger and counsel were present when the orders were made. Ms Frigger made no submissions about the terms of the order for costs. It was she who attended to extraction of the order. Counsel for the defendant was present but he also made no submissions about the order for costs sought or made.
9 It was my intention at the time that I made the order for costs that Ms Frigger be entitled to recover the costs which were recoverable by her pursuant to the Rules of the Supreme Court. It seems to me to be fair and just that if she fails through ignorance to make a specific claim that would have entitled her to some further costs then it should be possible for the order made by me to be so amended pursuant to the slip rule.
10 As to the terms of any amendment to be made following my abovementioned remarks I require the parties to submit a minute of the appropriate order. I will make orders in this matter in Chambers at 9.15 am on Friday 24 August 2007. The parties are to provide a minute to my Associate by 4.00 pm Wednesday 22 August 2007.
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