Hunter Resources Limited v Melville

This matter came before Toohey J of the High Court of Australia concerning an application by Hunter Resources Limited (the applicant) to vary a previous court order. The applicant sought to proceed ex parte, arguing that serving the first respondent, Mr. Melville, would cause serious mischief due to further delay. The dispute centred on a perceived clerical error in the formal court order following an appeal.

The primary legal issue before the Court was whether it had the power to make an order ex parte under Order 51 Rule 5 of the Rules of Court, given the applicant's inability to effect service on the first respondent. Additionally, the Court was required to determine if the requested variation constituted a mere correction of a clerical mistake, as submitted by the applicant, or if it involved a substantive alteration to the original judgment.

Toohey J considered the applicant's submission that proceeding ex parte was justified by the potential for serious mischief, including costs and further delay, and that the matter was essentially a clerical error. The Court noted that the first respondent had been served with an application after the hearing date had expired, indicating awareness of proceedings to clarify the judgment. After reviewing the applicant's affidavit detailing the history and the exchange of draft minutes with the deputy registrar, Toohey J indicated an understanding of the situation, suggesting the slip did not appear to have been noticed by either party or the registrar. The Court concluded that the order sought fell within the provisions of Order 29 Rule 11, which allows for the correction of clerical mistakes or errors arising from an accidental slip or omission.