Indigenous Business Australia v Schofield
[2017] ACTSC 56
•22 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Indigenous Business Australia v Schofield |
Citation: | [2017] ACTSC 56 |
Submissions Date: | 23 February 2017 |
DecisionDate: Reasons Date: | 16 March 2017 22 March 2017 |
Before: | Refshauge J |
Decision: | 1. That the order of 12 April 2016 be amended by omitting the figures “382” in the definition of “North Terrace Property” and substituting “802”. 2. That there be no order as to costs. |
Catchwords: | PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amended orders – inherent jurisdiction of the Court – amendment of a consent order |
Legislation Cited: | Human Rights Act 2004 (ACT), s 18 Court Procedures Rules 2006 (ACT), rr 1611, 6906 |
Cases Cited: | Harvey v Phillips (1956) 95 CLR 235 Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All ER 211 Westpac Banking Corporation v Chamberlain [2016] SASC 3 |
Parties: | Indigenous Business Australia (Plaintiff) Nicholas Schofield (Defendant) |
Representation: | Solicitors Australian Government Solicitor (Plaintiff) In person (Defendant) |
File Number: | SC 27 of 2015 |
REFSHAUGE J:
When the defendant, Nicholas Schofield, was employed by the plaintiff, Indigenous Business Australia, he is said to have improperly withdrawn significant sums of money from its bank accounts. These proceedings have involved the plaintiff seeking to recover that money, including by retrieving assets into which the funds said to have been taken were invested by the defendant.
Initially, I was asked to make interlocutory restraining orders in respect of certain moneys and also in respect of the assets of the defendant. I did so on 29 January 2015.
The parties, very properly and commendably, engaged in discussions about the substance of the proceedings and how they should be progressed. Much depended on discovery which, however, did require some judicial supervision.
Nevertheless, significant progress was made and, by consent of both parties, I made detailed orders on 12 April 2016, which appeared to dispose of the proceedings. The order was sealed and entered in the records of the Court.
Amongst the orders made, it was declared that certain property on North Terrace in Adelaide, South Australia, was held on trust for the plaintiff and other orders were made to give effect to this trust and to transfer the legal title of this property to the plaintiff. The order was prepared by the parties and submitted by the plaintiff’s solicitors with the express consent of the defendant.
In the order, the North Terrace Property was a term defined as follows:
North Terrace Property means the real property known at 1303/140 North Terrace, Adelaide in the State of South Australia 5000, being Lot 1303 in Secondary Community Strata Plan 21890 and more particularly described in South Australian Certificate of Title Volume 5903 Folio 382 of which the Defendant became the registered proprietor on or about 7 October 2003.
The parties have now approached me to draw my attention to an error in that definition. I was provided at the same time with a copy of the Certificate of Title to what is asserted to be the property.
The error is that the folio reference to the property should have been “802”, not, as set out in the sealed order, “382”. That latter folio reference is to what is described in the Certificate of Title as the “Parent Title”. That appears to be an “older manual title”, apparently replaced subsequently by electronic titles: Westpac Banking Corporation v Chamberlain [2016] SASC 3 at [21].
Both parties consent to the proposed amendment and a draft consent order has been prepared and signed by both.
The consent order was not sealed and I was asked to consider the matter. I am prepared to make an order but not in quite the terms proposed. I did so on 16 March 2017. These are my reasons.
There is no doubt that a court has power to amend the orders of a court but only in specified circumstances. This is because the orders of a court are important records of decisions on which people in the community depend. In the criminal jurisdiction, a person’s liberty may depend on the order and its accuracy can be very relevant to that circumstance which is an important right recognised in this Territory, especially in s 18 of the Human Rights Act 2004 (ACT).
In the civil jurisdiction, the Court’s decisions as recorded in its orders can have very significant effects on the property, business, status and affairs of individuals and, in some cases, persons who are not a party to the proceedings.
This reinforces the need for the integrity of court orders and thus, while they should, of course, be an accurate representation of the Court’s decision, this should not be able to be altered without good cause and in a manner that preserves the basic integrity of the Court’s records generally.
This is not the place to deal in detail with the law relating to the amending of final orders such as that which I made in these proceedings on 16 April 2016 and which it is now sought to amend. I need, however, to make some brief remarks to explain the proceedings and the order I made.
There are a number of ways in which an order can be amended. One is the so-called “slip rule” now enacted in r 6906 of the Court Procedures Rules 2006 (ACT). I have discussed the principles recently in R v Carmody (No 2) [2017] ACTSC 25 at [23]-[26].
I am, however, a little concerned that the error is not one which was made by the translation of the decision of the Court into the formal order or by a misunderstanding by the Court of the information provided to it.
I have not researched the matter in detail, and there was no need to seek assistance from the parties. They sought to have the order made without attendance, effectively in chambers, as to which, see The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [37]-[39]. Nevertheless, I have some unease about whether the slip rule is apposite for this kind of error. The order made was in actual fact that which the Court, perhaps not the parties, intended. I do not say it cannot be so made in such circumstances, but I am not sufficiently satisfied without more that I should proceed on that basis alone.
In any event, where the evidence supplied by the parties and on which the Court has made the decision is, in fact, incorrect, it has been held that the Court has an inherent jurisdiction to amend a sealed and entered court order. Thus, in Thynne v Thynne [1955] P 272, the Court had been told that the date of the marriage, which was sought to be dissolved, was 27 October 1927 when, in fact, it was secretly performed in face on 8 October 1926.
The Court was prepared to amend the order for the purpose of correcting the date of the marriage under the inherent jurisdiction of the Court, though not “to allow an amendment to the effective part of the order”: per Singleton LJ at 301. Morris LJ at 313 was not prepared “to attempt a definition of the extent of the court’s inherent jurisdiction to vary ... its own orders”, but joined in the order of amendment. Hodson LJ dissented.
That decision was followed in Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All ER 211 when a final order was amended following the substitution of one of the defendants with the entity into which it had merged before ceasing to exist. Thus, the title, and therefore, reference to that defendant was changed.
It seems to me that this would provide sufficient power to make the amendment which was to a definition, rather similar to the way the name of a party “defined” subsequent references in an order (or, indeed, in a pleading or other document) to the party by her, his or its status in the proceedings as plaintiff, defendant or other party.
In this case, the definition is not part of the “effective part of the order”; it is a definition. That the defined word appears in the effective part of the order does not seem, on the authorities, to pose any difficulty.
There is no doubt, on the basis of the information I have now been given, that an error has been made in the order and that I have power to amend it, either under the slip rule or, more likely, under the inherent jurisdiction of the Court.
The order to be amended is a consent order. There has been some concern expressed in the authorities about whether consent orders can be amended, especially where such a consent order is effectively a contract between the parties. Such an order can only be set aside or varied on the same basis as the underlying contract could be set aside: Harvey v Phillips (1956) 95 CLR 235.
On the other hand, the consent of the parties would permit even a consent order to be amended: Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Such a consent was, as noted above, forthcoming in this case.
That decision, however, did point out that the rights of any third parties must be considered. See also VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; 141 FCR 291 at 296; [31].
While, in this case, I have no direct information about the position of third parties, I have, from my knowledge of various affidavits read and the other details I have heard during the various interlocutory proceedings, enough of an understanding of the proceedings to be able to say that it is sufficiently unlikely that any third party would be prejudiced by the making of the amendment to be satisfied that I should do so.
The Certificate of Title shows rights of way on the subject land and a Mortgage to the Commonwealth Bank of Australia. A caveat has also been lodged, but by the plaintiff. I cannot see any likely prejudice to either those for whose benefit the rights of way have been created, nor to the Commonwealth Bank of Australia, whose interest will not be affected by the proposed amendment.
The parties have prepared a form of consent order in accordance with Form 2.44 (Prescribed Form AF2007-62). Such an order is made under r 1611 of the Court Procedures Rules. It may only be made if it is one the Registrar considers appropriate to be made by a consent order.
As can be seen from the foregoing, there are considerations that need to be taken into account before the amendment of an order and, in particular, a consent order, can be made. It was, therefore, appropriate for the Registrar to refer the matter for consideration by me.
The terms of the consent order are, in my view, sufficient for me to accept that the parties consent to the amendment to be made, but that I did need to consider whether the order could be made in view of the matters to which I have earlier referred. As noted, I have now concluded that it is.
Disposition
Accordingly, I ordered that in the definition of “North Terrace Property” in the order I made on 12 April 2016, the figures “382” be omitted and the figures “802” be substituted. There should be no order as to costs. These are my reasons for those orders.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 22 March 2017 |
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