Horleck and Horleck and Ors (No. 2) - [2008] FamCA 683

FAMILY COURT OF AUSTRALIA

HORLECK & HORLECK & ORS (NO. 2)

[2008] FamCA 683

FAMILY LAW – PRACTICE AND PROCEDURE – Slip rule

Family Law Rules 2004 (Cth) r 17.02

APPLICANT:

Mrs Horleck

FIRST RESPONDENT:

Mr Horleck

SECOND RESPONDENT:

Ms Lyman-Horleck (in her capacity as Director of X Pty Ltd)

THIRD RESPONDENT:

X Pty Ltd as Trustee for the H Trust

FOURTH RESPONDENT:

Ms Lyman-Horleck

FIFTH RESPONDENT:

Ms Cooper

FILE NUMBER:

BRF

8480

1994

DATE DELIVERED:

15 August 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

12 August 2008

REPRESENTATION

FOR THE APPLICANT:

Mrs Horleck in person

FOR THE FIRST RESPONDENT:

Mr Horleck in person

FOR THE SECOND THIRD AND FOURTH

RESPONDENTS:

Ms Lyman-Horleck in person

FOR THE FIFTH RESPONDENT:

Ms Cooper in person

Orders

The husband’s application under the slip rule by his letter to the Court 22 July 2008 (exhibit 1) is dismissed.

A transcript of today’s proceedings be prepared at the Court’s cost and copies provided to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Horleck & Horleck & Ors (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 8480 of 1994

Mrs Horleck

Applicant

And

Mr Horleck

First Respondent

Ms Lyman-Horleck (in her capacity as Director of X Pty Ltd)

Second Respondent

X Pty Ltd (as Trustee for the H Trust)

Third Respondent

Ms Lyman-Horleck

Fourth Respondent

Ms Cooper

Fifth Respondent

REASONS FOR JUDGMENT

By letter to the Registry 22 July 2008, exhibit 1, Mr Horleck applied under the slip rule that the declaration made by the Honourable Justice Carmody on 7 July 2008 be vacated as being “contrary to the evidence” and as “the basis of his calculation is in error”.
The declaration made by his Honour is as follows:
IT IS DECLARED THAT:
(4)That pursuant to r 20.07 of the Family Law Rules 2004, the total amount owing under the obligation in par (11) of the final property adjustment orders made by the Honourable Justice Butler on 8^th December 1995 is $58,398.75.
Rule 17.02 of the Family Law Rules 2004 (Cth) (the Rules) provides:
RULE 17.02 ERRORS IN ORDERS
17.02(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.
17.02(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.
17.02(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).
17.02(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).
17.02(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.
The Honourable Justice Carmody no longer being a judicial officer, and thus unavailable, Registrar Coutts referred the husband’s application to the Honourable Justice Barry, the Brisbane Regional Coordinating Judge, who referred it to me.
The power in Rule 17.02 is limited to the rectification of error or suspected error which has or may arise from an accidental slip or omission.
In Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, McHugh JA (with whom Priestley JA and Clarke AJA agreed as to the result, but with separate observations as to the authorities) said at 452-3:
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. …
…
The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: … In general the test of whether a mistake or omission is accidental is …. if the matter had been drawn to the court’s attention would the correction at once have been made?
The proper application of the slip rule has been the subject of extensive discussion and authority since Storey & Keers. However, McHugh JA’s analysis has received consistent approval. See, for example, Deputy Commissioner of Taxation v Healy [2003] WASC 38 per Hasluck J, who after considering the authorities as pars [15]-[24] concluded:
[26]… The decided cases suggest that the crucial considerations are whether the matter now sought to be corrected would have been attended to at once if the matter had been raised for consideration before judgment was entered and whether the matter to be resolved would require the exercise of an independent discretion or could be regarded as a matter upon which a real difference of opinion might exist. Further, it seems that the slip rule allows for the correction of any infelicity or ambiguity in the expression of the judgment which would result in the order of the Court having an untoward affect.
The Court also however has inherent jurisdiction to protect the integrity of justice which is not confined by the slip rule or by words such as “accidental slip or omission”: Newmont Yandal Pty Ltd v The J Aron Corporation [2007] NSWCA 195 per Spigelman CJ, with whom Santow JA and Handley AJA agreed:
[18]… No authority was cited to the Court which indicates that the exercise of the inherent jurisdiction is confined by [the] terminology of the slip rule. There is no reason why the inherent jurisdiction of the Supreme Court should be so confined. The Rules of Court do not constitute some type of mini-code replacing the inherent jurisdiction. It may very well be that the Court’s inherent jurisdiction calls for a variation of orders in circumstances falling outside the slip rule.
[19]It is often said that the slip rule “reflects” the inherent jurisdiction. (See e.g. L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590 at 594). That does not, however, mean that the inherent jurisdiction can be expressed in the same terms as the rule. …
Spigelman CJ, after an exhaustive analysis of the authorities relating to the inherent jurisdiction, said:
[77]In the joint judgment of the High Court in DJL v The Central Authority (2000) 201 CLR 226 at [34], Ivanhoe was referred to as authority for the following proposition:
An order … might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. [Emphasis added]
[78]The other authority cited for that proposition was Ainsworth v Wilding [1986] 1 Ch 673 at 678, where Romer J referred to Mellow v Swire as authority for the proposition that:
… even where a judgment has been duly passed and entered it might still be altered by the Court if the Court saw that it did not truly represent the decision which the Court had pronounced or intended to pronounce.
[79]This inherent jurisdiction has been expressly affirmed in DJL. Accordingly, the Supreme Court has jurisdiction to correct a duly entered judgment where the orders do not truly represent what the Court had intended to pronounce. This principle has been applied on numerous occasions. [citations omitted].
[80]The formulation approved recently in DJL, should be accepted as authoritative. That formulation, I note, is in quite different terms to the slip rule. There may be other aspects of the inherent jurisdiction which also overlap with the slip rule, but it is unnecessary to consider them.
The Family Court of Australia has jurisdiction only in relation to matters vested by Parliament. However, as a superior court it has inherent control over its own process and thus inherent jurisdiction to correct orders in the manner described in DJL.
In considering Mr Horleck’s application under the slip rule, it is proper also therefore to consider it in relation to the Court’s inherent jurisdiction.
Rule 1.11 of the Rules provides that the Court may set aside or vary an order made in the exercise of a power under the Rules. However, that provision has no application to the present matter. It relates only to procedural orders, not orders made in the exercise of the Court’s substantive jurisdiction.
I have carefully considered the matters relied upon by Mr Horleck set out in exhibit 1, being the two pages of his letter and the four pages annexed to it comprising workings by his taxation accountant extracted from his taxation files. It is plain, on the face of that material, that the matters raised by Mr Horleck do not relate to any error by the judge arising from an accidental slip or omission, but rather seek to revisit the evidence to obtain a different substantive result namely the setting aside of the declaration.
The declaration arose from pars 101-107 of his Honour’s reasons for judgment in which, it appears, he made the declaration for the purpose of any “subsequent” enforcement proceedings which Mrs Horleck might bring, although she had no enforcement proceedings on foot.
During the course of argument, all parties stated firmly that none of them had sought any such declaration: transcript 12 August 2008 11/48-13/20.
Further, Mr Horleck made clear during argument that he seeks to correct alleged factual errors made by his Honour concerning the receipt of rentals, in particular whether they were received by Mrs Horleck or himself, which requires a re-examination of the evidence: transcript 12 August 2008 7/5-15; 8/5-20; 8/25-9/15; and perhaps the opportunity to adduce relevant evidence: exhibit 1, full text and annexures.
The matter sought now to be raised thus does not come within the slip rule nor is there any case raised for the Court to correct its record under the inherent jurisdiction.
If Mr Horleck wishes the Court to consider whether his Honour made a material error in making the declaration, his only remedy is to appeal, and to that end, also to seek leave to appeal out of time, a matter also raised during argument: transcript 12 August 2008 9/18-35; 13/25-35.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: