FAMILY COURT OF AUSTRALIA
| HARRELL & NESLAND | [2020] FamCAFC 21 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO SERVE NOTICE OF APPEAL – Where the parties have been involved in litigation since 2012 – Where the de facto wife was ordered to pay the de facto husband’s costs of the proceedings on a party and party basis – Where there was dispute over whether the costs order was to be pursuant to the Family Law Rules 2004 (Cth) or the Federal Circuit Court Rules 2001 (Cth) – Where the primary judge utilised the slip rule under r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) – Where there appears to be a disparity of approximately $250,000 between the amount of costs on the Federal Circuit Court scale and the costs on the Family Law Rules scale – Where the primary judge stated his intention was to order the costs be paid on the Family Law Rules scale – Where the de facto wife appeals from the primary judge’s utilisation of the slip rule – Where the de facto wife filed her Notice of Appeal within time but failed to serve her Notice of Appeal within time – Consideration of the principles of the slip rule – Consideration of Pawley & Pawley [2017] FamCAFC 136 – Where there is a need to have regard to all of the surrounding circumstances, in particular a full transcript, to determine whether it can properly be said that the slip rule has application in a given case – Where it is insufficient to simply rely on the primary judge’s assertion that his intention was for the costs to be assessed under the Family Law Rules scale – Where it cannot be said the de facto wife’s appeal lacks merit – Application for extension of time to serve the Notice of Appeal granted – Costs reserved. |
| Bankruptcy Act 1966 (Cth) Family Law Act 1975 (Cth) Pt VIIIAB Family Law Rules 2004 (Cth) rr 22.05, 22.45 Federal Circuit Court Rules 2001 (Cth) rr 16.05, 21.10, 21.11 |
| Emmert & Quarto [2019] FamCAFC 208 Endresz v Commonwealth of Australia (2019) 139 ACSR 561; [2019] FCAFC 197 Harrell & Nesland (No. 2) [2018] FCCA 961 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Lawrie v Lees (1881) 7 AC 19 Luck v University of Southern Queensland (2018) 265 FCR 304; [2018] FCAFC 102 McMahon and McMahon (1976) FLC 90-038; [1976] FamCA 22 Milham v Stanford (2001) FLC 93-073; [2001] FamCA 294 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 Oswald & Karrington (2016) FLC 93-726; [2016] FamCA 152 Pawley & Pawley [2017] FamCAFC 136 Pendleton & Pendleton [2018] FamCAFC 203 Quant & Bonde (2018) 58 Fam LR 379; [2018] FamCAFC 150 Ramsay Health Care Australia Pty Ltd v Compton (2016) 247… |
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- AGLC
- Harrell and Nesland [2020] FamCAFC 21
- Case
- [2020] FamCAFC 21
- Decision Date
CaseChat Overview and Summary
The case of Harrell and Nesland involved a dispute over the interpretation and application of Rule 16.05(2) of the Federal Circuit Court Rules, specifically concerning the court's authority to vary or set aside a judgment or order after it has been entered. The primary legal issues revolved around whether the court had the power to amend an order that was ambiguous or did not reflect the court's original intention, and whether the court could correct an order to include provisions that were not addressed at the original hearing. The court examined the principles established in previous cases, such as R v Cripps; Ex parte Muldoon, Skinner v Australian and British Land Co Ltd, and Lawrie v Lees, to determine the scope of the slip rule powers and the circumstances under which the court could exercise its implied jurisdiction to amend orders.
The court's reasoning in Harrell and Nesland was grounded in the historical context and the evolution of slip rule powers, as well as the intention of the primary judge. It was established that the court has the authority to amend orders that are ambiguously expressed or do not accurately state the court's decision or intention, as per Rule 16.05(2)(e). However, the court also recognised that the power to amend is limited when the amendment involves exercising a discretion or when there is a real difference of opinion. The court further clarified that the power to amend extends to cases where a matter was not dealt with due to inadvertence, but this power is restricted to correcting ancillary or consequential matters and not substantial questions.
Ultimately, the court in Harrell and Nesland held that the original order did not reflect the court's intention, and therefore, the order was varied to include the provision that was overlooked. The court also dismissed the respondent's application for dismissal of the applicant's Notice of Appeal and extended the time within which the applicant had to serve the Notice of Appeal. The costs of and incidental to the application were reserved for further determination.
ORDERS:
1. The time within which the applicant de facto wife had to serve the Notice of Appeal filed by her on 18 June 2019 be extended to 26 July 2019.
2. The respondent de facto husband’s application for dismissal of the applicant de facto wife’s Notice of Appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) be dismissed.
3. Each party’s costs of and incidental to this application be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
The court's reasoning in Harrell and Nesland was grounded in the historical context and the evolution of slip rule powers, as well as the intention of the primary judge. It was established that the court has the authority to amend orders that are ambiguously expressed or do not accurately state the court's decision or intention, as per Rule 16.05(2)(e). However, the court also recognised that the power to amend is limited when the amendment involves exercising a discretion or when there is a real difference of opinion. The court further clarified that the power to amend extends to cases where a matter was not dealt with due to inadvertence, but this power is restricted to correcting ancillary or consequential matters and not substantial questions.
Ultimately, the court in Harrell and Nesland held that the original order did not reflect the court's intention, and therefore, the order was varied to include the provision that was overlooked. The court also dismissed the respondent's application for dismissal of the applicant's Notice of Appeal and extended the time within which the applicant had to serve the Notice of Appeal. The costs of and incidental to the application were reserved for further determination.
ORDERS:
1. The time within which the applicant de facto wife had to serve the Notice of Appeal filed by her on 18 June 2019 be extended to 26 July 2019.
2. The respondent de facto husband’s application for dismissal of the applicant de facto wife’s Notice of Appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) be dismissed.
3. Each party’s costs of and incidental to this application be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The time within which the applicant de facto wife had to serve the Notice of Appeal filed by her on 18 June 2019 be extended to 26 July 2019.
2.
The respondent de facto husband’s application for dismissal of the applicant de facto wife’s Notice of Appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) be dismissed.
3.
Each party’s costs of and incidental to this application be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 16.05(2) of the FCC Rules provides:Setting aside or varying judgments or orders (1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered. (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in the judgment or order; or (h) there is an error arising in the judgment or order from an accidental slip or omission. Without descending into any detailed history of slip rule powers, it is often the case that orders which are ambiguous are the subject of amendment pursuant to a slip rule to remove that ambiguity. As Sir John Donaldson MR stated in R v Cripps; Ex parte Muldoon [1984] 1 QB 686 at 696, “if a court has reached a decision which is ambiguously expressed either in the reasoned judgment or in the formal orders giving effect to the decision, the ambiguity of expression can be removed in the exercise of the slip rule powers”. Moreover, since the first slip rule was articulated in 1828, the focus of cases, particularly the early foundational cases, has been on the intention of the primary judge. In a factual scenario similar to this case, Hodges J, in Skinner v Australian and British Land Co Ltd (1889) 11 ALT 57, made an order that the defendant pay the plaintiff’s costs but did not specify on which scale they were to be paid. In that jurisdiction, without a specific order that costs be paid on the Supreme Court scale, they were presumed to be paid on the County Court scale. Hodges J amended his order under the slip rule stating that he did actually intend the costs to be paid on the Supreme Court scale. His Honour referred to Lawrie v Lees (1881) 7 AC 19 where Lord Penzance said that every Court has the power to vary its orders “in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain” (at 35). This principle appear to be reflected in r 16.05(2)(e). However, issues arise where the amendment is one which requires the exercise of a discretion or one which attracts a real difference of opinion. One example of the latter of those is Milham v Stanford (2001) FLC 93-073 where it was held that a determination of which liabilities were to be included in an indemnity was not a matter capable of amendment pursuant to the slip rule as that was “a matter where a real difference of opinion can and in fact does exist” (at 88,286). More recently, Thackray J (with whom Loughnan J and I agreed) said this in Pawley & Pawley [2017] FamCAFC 136 (“Pawley”):31.All courts have implied jurisdiction to amend orders which do not accurately state what was actually decided or what the court intended to decide: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 389–399; DJL v The Central Authority (2000) 201 CLR 226. Consistent with this, r 16.05(2)(e) of the Federal Circuit Court Rules provides that the court “may vary or set aside its judgment or order after it has been entered if … the order does not reflect the intention of the Court”. Rule 16.05 goes further in permitting the variation or setting aside of an order on the basis that the order is “interlocutory”, but that is not a power the judge sought to rely upon here.32.Although the topic was not the subject of submissions, I consider that r 16.05 does not constitute a code which replaces the implied power of the Federal Circuit Court to control its own process, including the power to take action to prevent injustice. See the authorities discussed in Teo & Guan (2015) FLC 93-653 at [36] et seq and Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Ors (2007) 70 NSWLR 411 at [18].33.Therefore, although not provided for in r 16.05, I accept that the power of a court to correct its own order also extends to cases where a matter was not dealt with as a result of inadvertence: Raybos Australia Pty Ltd and Anor v Tectran Corportion Pty Ltd and Ors (1988) 77 ALR 190. However, there is a distinction between cases where an amendment of an order is proposed to give effect to the court’s original intention, and cases where the court proposes to correct an order by including a provision dealing with a matter that was not dealt with at the original hearing. In cases of the latter type, the power to amend appears to be limited to correcting only ancillary or consequential matters and not “substantial” questions. However there is no such limitation where a change is to be made to reflect the original intention of the court: Owston Nominees No 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558 at [25].34.In determining whether the original order reflected what the court decided (or whether it is appropriate to make an additional order to deal with an issue that was overlooked), it is necessary to look at the surrounding circumstances which include the reasons, the pleadings and, if necessary, the evidence and how the case was conducted: Owston Nominees at [27].(Emphasis added)
Ratio Decidendi
Legal Principle Established
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