Jayce and Pierce (No. 2) - [2020] FamCA 302

FAMILY COURT OF AUSTRALIA

JAYCE & PIERCE (NO. 2)

[2020] FamCA 302

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule Application – Primary judgment to be amended for mathematical error under the slip rule.

Family Law Rules 2004 (Cth) r 17.02

Jayce & Pierce [2019] FamCA 955
Milham and Stanford [2001] FamCA 294
TWN & PAQ [2005] FamCA 677

APPLICANT:

Ms Jayce

RESPONDENT:

Mr Pierce

FILE NUMBER:

PAC

3716

2016

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Grew of Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Mr Dunn of Watts McCray Lawyers

Orders

That pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) the sum provided for in Order 2 of Orders made 12 December2019 be varied to “$48,236”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jayce & Pierce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3716 of 2016

Ms Jayce

Applicant

And

Mr Pierce

Respondent

REASONS FOR JUDGMENT

The discrete application for determination is an application by the primary applicant wife for an amendment to final orders made 12 December 2019 (Jayce & Pierce [2019] FamCA 955) pursuant to the slip rule provisions of rule 17.02 of the Family Law Rules.
Relevantly Rule 17.02 of the Family Law Rules 2004 provides:
(1)The court may at any time vary or set aside an order, 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 order; or
(h)there is an error arising in the order from an accidental slip or omission.
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
In Milham and Stanford [2001] FamCA 294 (18 May 2001) (and see also TWN & PAQ [2005] FamCA 677) the Full Court of the Family Court reviewed the well settled law at [23] and following:
23.Kirby J in the High Court decision of DJL v Central Authority 170 ALR 659 at 685 considered this part of the Family Court Rules. He stated:
[93]Some accidental slips or omissions are capable of correction at common law. [Ainsworth v Wilding [1896] 1 Ch 673 at 677 per Romer J; R v Cripps; Ex parte Muldoon [1984] QB 686 at 695] This facility is now commonly replaced by provisions in rules of court. In the Family Court of Australia, that is where the ‘slip rule’ may be found. [Family Law Rules O 31, r 6] Ordinarily, it is limited to correction of the formal record for accidental mistakes or omissions of no substantive significance. Similarly, when it can be shown that a court order does not correctly reflect the court’s decisions as contained in its reasons, rectification of the order is viewed as nothing more than a mechanical task. [Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181 at 216, 222-3; 18 ER 269 at 282, 285 per Lord Brougham; Ainsworth v Wilding [1896] 1 Ch 673 at 677; Thynne v Thynne [1955] P 272 at 313] Thus where a party has been wrongly named or misdescribed [Thynne v Thynne [1955] P 272 at 314] or is shown to have died or to be non‑existent [MacCarthy v Agard [1933] 2 KB 417 at 427] corrections may be made. Where, without alteration, it is possible to repair an oversight and prevent injustice by making a supplementary order, the existence of a previously perfected order will be no barrier. [Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at 144; Bailey v Marinoff (1971) 125 CLR 529 at 540].
24.Lockhart J of the Full Court of the Federal Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd 133 ALR 206 considered the circumstances in which the slip rule would operate. He stated as follows at 209-10:
Traditionally, a court's power to correct errors in orders arising from accidental slips or omissions is conferred by an express rule of court (eg O 35 r 7 of the Federal Court Rules); but it exists whether provision is made by express rule or not.
The slip rule is a qualification of the rule that a court may not vary a duly passed and entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end. The rule is very wide in its scope; but is not available as a matter of course: Shaddock at CLR 597.
Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.”
25. His Honour went on to say at 210- 211:
“The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision: see Arnett v Holloway [1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644; and Ivanhoe Gold Corp Limited v Symonds (1906) 4 CLR 642.
The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640; Fritz v Hobson (1880) 14 ChD 542 at 560; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300.
It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth of Australia (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 ChD 542 at 561-2; Chessum and Sons v Gordon [1901] 1 QB 694; Tak Ming Co Limited at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; and Gould v Vaggelas at CLR 274-5.
The circumstances in which the slip rule has been applied are numerous and varied. Examples of the application of the rule include amendments, to allow a proper order for costs (Armitage v Parsons [1908] 2 KB 410); to increase the amount of an award of damages (Storey and Keers Pty Limited v Johnstone (1987) 9 NSWLR 446); to permit a proper calculation of interest (Ninnis v Miller [1905] VLR 669); to permit a claim for interest to be added to the amount of the judgment (Shaddock); to order repayment of moneys previously paid by the defendant where the subsequent appeal was upheld (Commonwealth v McCormack (1984) 155 CLR 273; 55 ALR 185); to alter a wrong date or figure in the orders, where the parties and the court both used the same wrong date or figure, but the correct figure had been available at the relevant time (Re J W Challand Pty Limited (1945) 62 WN (NSW) 166); and, to limit the time of an injunction's application (Shipwright v Clements (1890) WN 134). See also the Supreme Court Practice 1995 (UK) (the White Book) pp. 385-6, Notes 20/11/3 and 20/11/6.”
26.It must also be borne in mind that for the purposes of the operation of the slip rule, 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 might exist. (Russell v Russell (1999) FLC 92-877; 25 Fam LR 629). As the Full Court of the Supreme Court of Victoria said in Brew v Whitlock (No. 3) [1968] V.R. 504 at 506:
“In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right; not only what was omitted, but also what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion, not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run.”
27.This principle was more recently affirmed by McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453 where he stated:
“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: cf Brew v Whitlock (No. 3) (at 506). In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court’s attention would the correction at once have been made?”
The wife relied on her Application in a Case filed 22 January 2020 and her affidavit filed 14 April 2020.
The husband relied on his affidavit filed 8 April 2020.
By reason of the application of the above principles, the present application may be readily disposed of. These reasons assume familiarity with the reasons for the primary judgment referred to above.
The primary judgment provided for an overall division of property as to 62.5 per cent to the wife and 37.5 per cent to the husband at [71].
The property pool had a value of $1,098,367: [48].
The pool included the husband’s G Company shares at an agreed value of $15,241.
The husband’s property entitlement equated to the sum of $411,887: [74].
After a superannuation split, the husband would retain assets as follows:
G Company Superannuation $353,910
G Company shares $ 15,241
$369,151
Thus the required adjusting payment from the wife to the husband should be the sum of $42,736. Otherwise, the wife was required to pay the husband a contribution to the Single Expert Report of $5,500. Thus the required total payment to the husband is in the sum of $48,236 not the sum of $63,500 as provided for in the primary orders.
The amount provided for in the primary judgment should be amended accordingly under the slip rule.
Orders will be made accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.

Associate:

Date: 30 April 2020