FAMILY COURT OF AUSTRALIA
| HARRELL & NESLAND (NO. 2) | [2021] FamCAFC 35 |
| FAMILY LAW – APPEAL – COSTS – SLIP RULE – Where the primary judge made a costs order in the respondent’s favour pursuant to r 21.02 of the Federal Circuit Court Rules 2001 (Cth) requiring costs to be assessed on a party and party basis without making an order referring the costs for taxation under Chapter 19 of the Family Law Rules 2004 (Cth) – Dispute over the scale which governed the assessment – Where the primary judge amended the order as to costs pursuant to the slip rule (r 16.05(2)(e) of the Federal Circuit Court Rules), to provide the costs order be referred to taxation under Chapter 19 of the Family Law Rules – Where the primary judge said it was his original intention to make that order – Where the amended order causes a disparity in excess of $250,000 – Where there is nothing on the face of the record, the reasons, the surrounding circumstances, the evidence or how the case was conducted to demonstrate that the primary judge had the intention to refer the costs for taxation under Chapter 19 of the Family Law Rules – Where the primary judge erred – Appeal allowed – Comments made about r 16.05(2)(h) of the Federal Circuit Court Rules which deals with the ability to make an order under the slip rule arising from a unilateral accidental slip or omission by the court or a legal practitioner – Costs certificate granted to the respondent. |
| Family Law Act 1975 (Cth) s 117(2A) Family Law Rules 2004 (Cth) ch 19, Sch 3, r 22.45 |
| Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Harrell & Nesland (2020) FLC 93-940; [2020] FamCAFC 21 Harrell & Nesland (No.2) [2018] FCCA 961 L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590; [1982] HCA 59 Newmont Yandal Operations Pty Ltd v The J Aron Co and The Goldman Sachs Group Incand Ors (2007) 70 NSWLR 411; [2007] NSWCA 195 Owston Nominees No 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558; [2003] FCA 629 Ramsay Health Care Australia Pty Ltd v Compton (2016) 247 FCR 387; [2016] FCAFC 125 Storey & Keers Pty Ltd and Anor v Johnstone (1987) 9 NSWLR 446 Whitlock v Brew (1968) 118 CLR 445; [1968] HCA 71 |
| APPELLANT: | Ms Harrell |
| RESPONDENT: | Mr Nesland |
| FILE NUMBER: | BRC | 6489 | of | 2012 |
| APPEAL NUMBER: | NOA | 56 | of | 2019 |
| DATE DELIVERED: | 12 March 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 22 September 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 May… |
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- Harrell & Nesland (No. 2) [2021] FamCAFC 35
- Case
- [2021] FamCAFC 35
- Decision Date
CaseChat Overview and Summary
The case of Harrell & Nesland (No. 2) involved an application by the respondents seeking to set aside or vary an order made by Kent J. The respondents argued that the order did not reflect the intention of the court and that there was an error due to an accidental slip or omission. This application was made under r 16.05(2)(e) and (h) of the FCC rules. The primary judge, Kent J, had made an order which the respondents contended was not reflective of the court's true intention and contained errors. The respondents sought to have the order varied or set aside based on the grounds provided by the FCC rules.
The legal issues before the court involved the interpretation and application of r 16.05(2)(e) and (h) of the FCC rules. Specifically, the court had to determine whether the order made by Kent J did indeed reflect the court's intention and whether there were any errors caused by an accidental slip or omission. The court also had to consider the surrounding circumstances and the reasons for the judgment to ascertain the actual intention of the court at the time the order was made. The respondents had to demonstrate that the order did not align with the court's true intention and that there were errors which warranted the order being varied or set aside.
In deciding the case, the court examined the order made by Kent J and the reasons provided for the judgment. The court considered the evidence and how the case was conducted to determine if the order reflected the court's intention and if there were any errors. The court noted that while the slip rule allows for amendments to orders that do not reflect the court's intention, a retrospective recollection by a primary judge of the order they intended to make is not conclusive. The court concluded that the order made by Kent J did reflect the court's intention and there were no errors caused by an accidental slip or omission. Therefore, the application by the respondents to set aside or vary the order was dismissed.
The final orders of the court were that the application by the respondents to set aside or vary the order made by Kent J was dismissed. The court found that the order did reflect the court's intention and there were no errors that warranted the order being varied or set aside. The court's decision was based on a thorough examination of the order, the reasons for the judgment, and the surrounding circumstances of the case.
The legal issues before the court involved the interpretation and application of r 16.05(2)(e) and (h) of the FCC rules. Specifically, the court had to determine whether the order made by Kent J did indeed reflect the court's intention and whether there were any errors caused by an accidental slip or omission. The court also had to consider the surrounding circumstances and the reasons for the judgment to ascertain the actual intention of the court at the time the order was made. The respondents had to demonstrate that the order did not align with the court's true intention and that there were errors which warranted the order being varied or set aside.
In deciding the case, the court examined the order made by Kent J and the reasons provided for the judgment. The court considered the evidence and how the case was conducted to determine if the order reflected the court's intention and if there were any errors. The court noted that while the slip rule allows for amendments to orders that do not reflect the court's intention, a retrospective recollection by a primary judge of the order they intended to make is not conclusive. The court concluded that the order made by Kent J did reflect the court's intention and there were no errors caused by an accidental slip or omission. Therefore, the application by the respondents to set aside or vary the order was dismissed.
The final orders of the court were that the application by the respondents to set aside or vary the order made by Kent J was dismissed. The court found that the order did reflect the court's intention and there were no errors that warranted the order being varied or set aside. The court's decision was based on a thorough examination of the order, the reasons for the judgment, and the surrounding circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
This jurisdiction is encapsulated in r 16.05(2)(e) and (h) of the FCC rules which are as follows:16.05Setting aside or varying judgments or orders(2)The Court or a Registrar may vary or set aside a judgment or order after it has been made if:…(e)it does not reflect the intention of the Court; or…(h)if there is an error arising in the judgment or order from an accidental slip or omission. The overall purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274–276). An order which is the product of an intentional decision and correctly records that intention is not amenable to being amended under the slip rule even though it is based upon an erroneous assumption of law (Ramsay Health Care Australia Pty Ltd v Compton (2016) 247 FCR 387 at 392). The most common application of the slip rule involves an amendment to an order where it is plain that it does not reflect the judicial intention at the time the order was made. In Harrell & Nesland, Kent J said at [36]:… 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)…Although this case from the 19th century might seem to have a similar factual basis, care needs to be taken as to the circumstances in which a primary judge can simply assert that the actual intention of the court was to make an order different from that which was made. When assessing that judicial intention, it is necessary to look at the surrounding circumstances including the reasons for judgment, the applications made and, if necessary, the evidence and how the case was conducted (Owston Nominees No. 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558 at [27]). A retrospective recollection by a primary judge of the order the primary judge intended to make is not conclusive. In Newmont Yandal Operations Pty Ltd v The J Aron Co and The Goldman Sachs Group Incand Ors (2007) 70 NSWLR 411 Spigelman CJ said at [95]:... the relevant question is what the Court intended to do and/or what the Court would have done, if the issue had arisen at the time the orders were made. Anything a judge, even the same judge, says about what s/he would do to correct the original orders is no more than evidentiary and may not even be admissible over objection... Rule 16.05(2)(h) of the FCC rules allows the court to alter an order after it is made where the order does not reflect the intention the court would have had but for a failure caused by an accidental slip or omission by the court, or by a lawyer representing a party.
Ratio Decidendi
Legal Principle Established
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