Jewel Walk Pty Ltd v Kondinin Group Inc
[2001] WASC 264
JEWEL WALK PTY LTD & ANOR -v- KONDININ GROUP INC [2001] WASC 264
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 264 | |
| Case No: | CIV:1706/2000 | 17 SEPTEMBER 2001 | |
| Coram: | ROBERTS-SMITH J | 27/09/01 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application to rehear granted | ||
| B | |||
| PDF Version |
| Parties: | JEWEL WALK PTY LTD (ACN 068 635 145) KONDININ GROUP PUBLISHING PTY LTD (ACN 070 754 639) KONDININ GROUP INC |
Catchwords: | Judgment and orders Reasons for decision delivered and orders made Not perfected Error of fact Application to rehear "Slip rule" Inherent jurisdiction of court to recall judgment and orders |
Legislation: | Rules of the Supreme Court, O 66 r 12 |
Case References: | Arnett v Holloway [1960] VR 22 Bailey v Marinoff (1971) 125 CLR 529 Brew v Whitlock (No 3) [1968] VR 504 Gikas v Papanyiotou (1977) 2 NSWLR 944 Holtby v Hodgson [1889] 24 QBD 103 In Re Crown Bank [1890] 44 Ch D 634 In re Melbourne Carnivals Pty Ltd (No 2) [1926] VLR 294 Ivanhoe Gold Corp Limited v Simonds (1906) 4 CLR 642 Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197 L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Monaco & Anor v Arnedo Pty Ltd & Anor (1994) 13 WAR 522 Permanent Trustee Co (Canberra) Ltd v Stocks and Holding (Canberra) Pty Ltd (1977) 15 ACTR 45 Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 R v Cripps; ex p Muldoon [1984] QB 686 Raybos Australia Pty Ltd & Anor v Tectram Corporation Pty Ltd & Ors (1987-88) 77 ALR 190 Re Suffield & Watts; ex p Brown [1888] 20 QBD 693 Smith v NSW Bar Association (1992) 176 CLR 256 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 The Commonwealth of Australia v McCormack (1984) 155 CLR 273 Thomson Australian Holdings Proprietary Limited v Trade Practices Commission & Ors (1980-1981) 148 CLR 150 Thynne v Thynne [1955] 3 All ER 129 Westub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 Carroll v Price [1960] VR 651 Coppins v Helmers; Brambles Constructions Pty Ltd (Third Party) (1969) 69 SR (NSW) 273 Ex parte Herman; re Mathieson (No 2) [1961] NSWR 1145 Harvey v Phillips (1956) 95 CLR 235 Pollard v Incorporated Nominal Defendant [1972] VR 955 R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (No 2) (1976) 43 SAIR 1027 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
KONDININ GROUP PUBLISHING PTY LTD (ACN 070 754 639)
Second Plaintiff
AND
KONDININ GROUP INC
Defendant
Catchwords:
Judgment and orders - Reasons for decision delivered and orders made - Not perfected - Error of fact - Application to rehear - "Slip rule" - Inherent jurisdiction of court to recall judgment and orders
Legislation:
Rules of the Supreme Court, O 66 r 12
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Result:
Application to rehear granted
Category: B
Representation:
Counsel:
First Plaintiff : Mr D J Garnsworthy
Second Plaintiff : Mr D J Garnsworthy
Defendant : Mr M P Cornes
Solicitors:
First Plaintiff : John Picton-Warlow
Second Plaintiff : John Picton-Warlow
Defendant : R M Legal
Case(s) referred to in judgment(s):
Arnett v Holloway [1960] VR 22
Bailey v Marinoff (1971) 125 CLR 529
Brew v Whitlock (No 3) [1968] VR 504
Gikas v Papanyiotou (1977) 2 NSWLR 944
Holtby v Hodgson [1889] 24 QBD 103
In Re Crown Bank [1890] 44 Ch D 634
In re Melbourne Carnivals Pty Ltd (No 2) [1926] VLR 294
Ivanhoe Gold Corp Limited v Simonds (1906) 4 CLR 642
Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197
L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Monaco & Anor v Arnedo Pty Ltd & Anor (1994) 13 WAR 522
Permanent Trustee Co (Canberra) Ltd v Stocks and Holding (Canberra) Pty Ltd (1977) 15 ACTR 45
Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141
R v Cripps; ex p Muldoon [1984] QB 686
Raybos Australia Pty Ltd & Anor v Tectram Corporation Pty Ltd & Ors (1987-88) 77 ALR 190
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Re Suffield & Watts; ex p Brown [1888] 20 QBD 693
Smith v NSW Bar Association (1992) 176 CLR 256
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
The Commonwealth of Australia v McCormack (1984) 155 CLR 273
Thomson Australian Holdings Proprietary Limited v Trade Practices Commission & Ors (1980-1981) 148 CLR 150
Thynne v Thynne [1955] 3 All ER 129
Westub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310
Case(s) also cited:
Carroll v Price [1960] VR 651
Coppins v Helmers; Brambles Constructions Pty Ltd (Third Party) (1969) 69 SR (NSW) 273
Ex parte Herman; re Mathieson (No 2) [1961] NSWR 1145
Harvey v Phillips (1956) 95 CLR 235
Pollard v Incorporated Nominal Defendant [1972] VR 955
R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (No 2) (1976) 43 SAIR 1027
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1 ROBERTS-SMITH J: : This is an unusual application which arises out of somewhat unusual circumstances.
2 On 30 July 2001 I delivered judgment (Jewel Walk Pty Ltd & Anor v Kondinin Group Inc [2001] WASC 197) on a chamber summons filed 24 May 2001 seeking special orders as to costs in respect of proceedings in action no CIV 1706 of 2000 in which orders had ultimately been made by consent by Heenan J on 12 October 2000. One of the consequential orders made by his Honour was that the defendants pay the plaintiff's costs to be taxed.
3 There proved to be a problem on taxation. The amount claimed was in excess of the fees prescribed in the Legal Practitioners (Supreme Court) (Contentious Proceedings) Determination 1999 ("the Determination") made by the Legal Costs Committee pursuant to s 58Z of the Legal Practitioners Act 1893 (WA). It was realised that if the plaintiffs were to obtain the costs they sought, they would need a special costs order. That was one of the orders sought in the chamber summons dated 24 May 2001.
4 The application was made pursuant to O 66 r 12(1) of the Rules of the Supreme Court ("RSC").
5 In the end it became clear that the special order sought was only in relation to the item "originating summons".
6 The original bill of costs filed by the plaintiffs for taxation on 9 November 2000 relevantly included the following items:
Item | Description | Amount |
21 |
| 15,000-00 |
13A |
engrossing affidavit for auditor and arranging for attachment of exhibits a total of 923 pages. Engaged 10 hours. | 2,800-00 |
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|
8 The chamber summons sought, inter alia, the following orders:
"2(b) that appropriate and reasonable allowance be made for the fees payable to Mr Clifton in preparing himself for and swearing an affidavit in support of the plaintiff's originating summons;
(c) that separate and distinct allowance be made for the practitioner's costs of and incidental to the preparation of Mr Clifton's affidavit in support of the originating summons;
(d) that reasonable allowance be made by the taxing officer for the photocopying of and incidental to the affidavit of Mr Clifton in support of the plaintiff's originating summons."
9 In the course of submissions to me on 18 July 2001, Mr Garnsworthy, who appeared for the plaintiffs, explained that there had been a dispute between the parties about the value of the amount of money said to be owing between the parties and whether or not there was still a liability. Prior to the hearing the question of quantum was very much in issue. At t 35 Mr Garnsworthy said:
"Only very shortly before the hearing did the defendants make that concession as to what the amount may have been, all the while of course disputing its liability."
10 He then went on to say:
"As a result, it became necessary for my instructing solicitor to seek the assistance of an accountant and also to go through a voluminous document annexing many financial records so that both my instructing solicitor and the accountant had to deal with
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- this voluminous document with all its annexures and it turned out the exercise was ultimately not required because of the late admission which was made by the defendants concerning the amount concerned." (My emphasis).
11 Mr Garnsworthy then said (35 - 36):
"My instructing solicitor also points out to me that his Honour in fact declined to rely on a late affidavit - sorry, they didn't rely on an affidavit which they had filed themselves 6 days before the hearing and that this is the crucial period, this is the window about which I am talking, and it was that affidavit which generated the unusual and additional activity which has led us into the position where we have come before you today?
Your Honour, if I might hand up to you an affidavit sworn by my instructing solicitor, and unfortunately in error, the wrong version of that affidavit was filed.
ROBERTS-SMITH J: The wrong version?
GARNSWORTHY, MR: Well, when I say 'the wrong version', sir - - -
ROBERTS-SMITH J: That's an unusual expression.
GARNSWORTHY, MR: Perhaps I can clarify that. Perhaps I'm putting the wrong spin on it. Your Honour, what I meant was that I had prepared a draft affidavit because I considered that there was material which your Honour might not feel is properly before you in terms of evidence, and my instructing solicitor has suggested that in fact that affidavit needed to be expanded, but regrettably in error swore the first affidavit and the second, so the first affidavit was filed, not the second.
That affidavit addresses the issue that I had put before you about Mr Clifton's fees, he being the accountant, and the point that I have addressed your Honour on, namely that the affidavit which was so lately filed by the defendant had in fact not ultimately been relied on, but itself generated a great deal of additional work at a very late stage in the proceedings, and this additional work had in turn generated additional costs which leads to the special character of the application which is now before your Honour."
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12 The affidavit referred to by Mr Garnsworthy was that of Elliott John Picton-Warlow sworn 16 July 2001, the whole text of which read:
"1. I crave leave to refer to my affidavit file sworn and filed in this application
2. Annexed marked JP - W3 is a copy of fee note of Senior Counsel rendered in relation to the conduct of the proceedings.
3. Such fee note is already annexed to the bill of costs in this matter which was filed 9 November 2000.
4. I also refer to the references to the affidavit prepared for Mr Clifton ('the Affidavit') and say that the reason for the preparation of the Affidavit was the receipt of the affidavits of Mr Marcelli on 6 October 2000.
5. The Affidavit was intended for use at the hearing of this action but it was obviated when the defendant did not elect to read the affidavits of Mr Marcelli at the hearing."
13 A little later in the hearing Mr Garnsworthy said (t 39):
"… My instructing solicitor points out that the affidavit in question was some 948 pages and I have no doubt that that is on the court file. That may rather self-evidently indicate the nature of the task that we will face. May I say that the consequential orders which are sought relate to issues coming out of that situation? If it please the court."
- In fact there was no affidavit of that length on the Court file.
14 The impression I received from all of this was that a late affidavit of Mr Marcelli in excess of 900 pages had been filed by the defendants shortly before the trial which required the attention and preparation of an affidavit in reply by the plaintiff's solicitors and Mr Clifton. There was nothing in the submissions of Mr Cornes, who appeared on behalf of the defendant, which suggested this was a misapprehension. My understanding was reflected in my reasons for decision on 30 July 2001. At [37] - [40] I said:
"37 Counsel for the plaintiffs' submission in substance is that considerable additional work was necessarily done as a result of the late filing of the 948 page affidavit of Mr
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- Marcelli some six days before the hearing, which affidavit was not in fact relied upon by the defendant at the hearing.
38 There are two affidavits of Mr Liu Marcelli on file CIV 1706 of 2000 which run to seven and eight pages respectively. One of them was made in support of the defendants' summons proceedings heard with action number CIV 1553 of 2000. By par 3 of the other affidavit Marcelli referred to "my affidavits sworn and filed in CIV 1553 of 2000".
39 In that action the court file contains the following affidavits of Liu Marcelli:
Doc No.Date filedNo of pages (inc. annexures)
11 4 July 2000 20
12 4 July 2000 24
19 7 August 2000 43
25 30 October 2000 7
30 30 January 2001 7
40 The fact is therefore, that the Marcelli affidavit of 6 October is not before me."
15 I then referred to the schedule. As to that I said (at [43]):
"The only other evidentiary material before me as to the Marcelli affidavit of 6 October is the references at par 4 and par 5 of Mr Picton-Warlow's affidavit of 16 July 2001, which in turn refer to the original bill of costs filed 9 November 2000. None of this material explains the content of the affidavit, the extent to which (if at all) it recapitulated or related to matters pertaining to the related action, what work had to be done to respond to it, nor why. I consider the material adduced in support of the application for the special costs order to be barely adequate. In the end, however, and in the absence of any evidentiary challenge to it, I am prepared to accept the plaintiff has shown on the face of it that a substantial affidavit in excess of 900 pages was served (but not filed) shortly before the
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- hearing which necessitated substantial additional work. In an appropriate case the fact that an unusual amount of work is required to be carried out may itself be a good or sufficient reason for making a special order: (see Briggs & Briggs v Glentham Pty Ltd, unreported; FCt SCt of WA; Library No 930223; 21 April 1993 per Malcolm CJ at 5). The need to respond urgently to the very lengthy Marcelli affidavit and the costs prima facie associated with that, demonstrating an apparent inadequacy in the scale fee to the extent of some $1,297.70, in the context of a total solicitor's costs bill of $25,978.70, in my view constitutes a good and sufficient reason for the purposes of O 66 r 12(1)."
16 On 9 August 2001, the plaintiffs filed a further chamber summons "for clarification of judgment as to costs" seeking orders that:
"1. The defendant pay the plaintiffs' costs thrown away by the late filing of the affidavit of Lui Marcelli, including costs and disbursements of and incidental to the 948 page affidavit Mr Clifton served but not filed, such costs to be agreed or in default taxed.
2. The defendant pay the plaintiffs' costs of the application to be agreed or in default taxed."
17 When the chamber summons came before me on 22 August 2001, it was explained to me that the late affidavit of Marcelli which had been filed, ran to only some six pages; it was the affidavit of Clifton which ran to 948 pages and which had generated the additional costs which it had been said justified the lifting of the costs limit. I expressed some concern about the nature of the application and whether I had any jurisdiction to deal with it. I adjourned the matter to a special appointment. It came on for hearing before me on 17 September 2001.
18 Both parties urged upon me that I had jurisdiction to deal with the application under O 21 r 10 ("the slip rule"). However, it is quite clear that the parties cannot confer jurisdiction by consent.
19 In Thomson Australian Holdings Proprietary Limited v Trade Practices Commission & Ors (1980-1981) 148 CLR 150, the High Court held that parties cannot confer power on a court to make orders which the court lacks power to make (per Gibbs CJ, Stephen, Mason and Wilson JJ). I accordingly required argument on the point. I then heard submissions on the substantive application.
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20 Order 21 r 10 provides that:
"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal."
21 Mr Garnsworthy's primary submission was that I have jurisdiction to correct "manifest error" without more but that does not include jurisdiction to allow the parties to re-argue the matter the subject of the error. The jurisdiction is to review and alter a judgment at any time before formal entry. He relied principally upon Arnett v Holloway [1960] VR 22 and Bailey v Marinoff (1971) 125 CLR 529. This jurisdiction is open not only under the slip rule, but is part of the inherent jurisdiction of the court to order necessary amendments to a judgment (Ivanhoe Gold Corp Limited v Simonds (1906) 4 CLR 642; Gikas v Papanyiotou (1977) 2 NSWLR 944). His argument was that only once an order has been sealed or a judgment entered may it be varied only by way of appeal to the Full Court.
22 Mr Cornes on the other hand, submitted that not only did I have jurisdiction to entertain the application and amend my reasons for decision, I also had jurisdiction under the slip-rule and the inherent jurisdiction of the Court to allow him to re-argue the matter on the basis of what was agreed to be the correct situation. His argument was that if I were now to proceed upon the understanding that the Marcelli affidavit was, albeit filed late, a short affidavit, and it was the Clifton affidavit prepared in response which was the lengthy affidavit, the defendants should be permitted to argue that the preparation of the Clifton affidavit in those circumstances did not reasonably involve such an amount of work as to justify an increase in the costs limit for the relevant scale items.
23 The Clifton affidavit which had not previously been filed in these proceedings, was tendered before me on this application. The affidavit is in the form of three lever arch files. The affidavit itself runs to only four pages, but the annexures run to in excess of 940 pages.
24 In my view the submissions advanced on behalf of both parties with respect to the issue of jurisdiction under the slip-rule or the inherent jurisdiction of the court, were fundamentally misconceived and tended to blur and merge two distinct aspects of the Court's jurisdiction.
25 Mr Garnsworthy referred to the decision of the English Court of Appeal in Thynne v Thynne [1955] 3 All ER 129 as a rare example of
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authority recognising a jurisdiction under the slip rule to revisit the factual matrix upon which the original decision was based.
26 In Thynne the parties were divorced on the undefended petition of the wife which recited, inter alia, that she had been married to the husband on 27 October 1997. The decree nisi contained the same recitation. The decree was made absolute. Both parties subsequently remarried. The wife subsequently published her reminiscences in which she revealed for the first time that the parties had in fact secretly married on 8 October 1926 at a time when their marriage was strongly opposed by their respective families. The families later resiled from that opposition and so without revealing the fact they were already married, the parties, with the approval of their families, became officially "engaged" and eventually went through the ceremony of marriage on 27 October 1927.
27 At first instance, Lord Merriman P held that whilst nothing had intervened since the decrees were made which might render it inexpedient, or even inequitable, to correct their terms, whether under the inherent jurisdiction of the court or under the slip-rule, nonetheless, precision in the proceedings and the proof of the marriage was a matter of substance. Consequently, when the Commissioner intended to give a valid divorce decree, that could only be taken to have intended to decree that the marriage alleged and proved to have taken place was dissolved and there was nothing which could properly be called an accidental slip or omission in recording that decision whether under the slip-rule or the inherent jurisdiction of the court. Accordingly, he dismissed the application.
28 That decision was set aside on appeal, Singleton LJ saying (at 301):
"I am satisfied that the court has power to amend the petition and the decrees nisi and absolute in the way sought in this case. It arises under the inherent jurisdiction of the court to do what is necessary and proper to correct an order so that the position under it shall be clear and free from ambiguity. It does not extend so far as to allow an amendment of the effective part of the order, for example, the question of status, or of proof of the matrimonial offence alleged, or of the decree itself in so far as it involves an alteration of status: those questions cannot be dealt with by an amendment of the proceedings after judgment. The date of the marriage dissolved is more in the nature of a recital, and so is the place of the marriage. If either of these is, or if both are, wrongly stated in the petition and in the decrees, the
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- court can grant liberty to amend. That is in accord with the decision in Hampson v Hampson [1908] P 355, which has never been called in question until now. It is a power, or a right, which ought not to be cut down. It enables the court, in the proper case, to put right something which is incorrectly stated, and to keep its records in line with the real position. It is discretionary in the court, and it ought not to be used if it can cause injustice to anyone, or if in any sense the exercise of it can offend against the public weal."
29 In Arnett v Holloway the plaintiff had succeeded at first instance in an action for damages for negligence, nuisance and trespass. Shortly prior to the date judgment was given, the Rules of the Supreme Court had been amended to allow a special costs order in particular circumstances which included those in that case. Neither counsel was aware of the amendment. After judgment had been passed and entered, the plaintiff applied to the trial Judge under the slip-rule for an order amending the judgment to provide for the plaintiff's costs to be on the Supreme Court scale. His Honour held that although he would have awarded costs on that scale had his mind been directed to the question at the time of giving judgment, the slip-rule did not empower him to make the amendment to the order for costs which had been entered. In his reasons for reaching this conclusion, his Honour canvassed the relevant authorities in some detail. He concluded that the weight of authority was undoubtedly in favour of confining the application of the slip-rule to cases where the judgment or order as recorded had failed to express the intention of the court when pronouncing it, and of denying its application to the amendment of judgments or orders as recorded, for the purpose of expressing an intention which the court would have had at the relevant time "but for some slip or omission" but in truth had not (28).
30 On appeal the Full Court in a unanimous decision noted (at 34) that it had not been contended that under the slip-rule a judgment or order could be corrected so as to rescind, vary or vacate an order deliberately made and to substitute another order in its place. However, their Honours were of the view that the learned trial Judge, in dismissing the summons because he regarded the judgment as passed and entered as expressing the intention he in fact had when he pronounced the order for costs, took an unduly narrow and artificial view of what his real intention was. The action had been begun and was litigated in the Supreme Court. In those circumstances where an order for costs simpliciter had been made, and in the absence of any specific indication by the trial Judge that some other scale was intended, such an order would naturally be taken as being
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intended by the trial Judge to mean that costs be taxed on the Supreme Court scale. In those circumstances, even if the learned trial Judge's view that the slip-rule is confined to cases where the judgment as recorded has failed to express the intention of the court be correct (upon which the Full Court expressed no view) he should have decided that the judgment did not express his intention which must have been to give costs on the Supreme Court scale. Thus, the Full Court said (at 35) that the case was one in which the trial Judge should have made the order sought and justice required that the judgment be amended accordingly.
31 I do not propose to canvass the other authorities cited by Mr Garnsworthy, nor those generally pertinent to the application of the slip-rule. I do not accept the submission that Thynne and Arnett recognised the wide application of the slip-rule contended for.
32 In Thynne the Court of Appeal expressly held that the recital of the marriage celebration was not a substantive part of the decree nisi or absolute. The intention of the court had been to resolve the subsisting marriage between the parties; the reference to the later marriage ceremony was a factual error, but to recognise that did not involve any change in the outcome intended by the court. Likewise in Arnett, the Full Court expressly declined to express any view as to the correctness of the proposition that the slip-rule is confined to cases where the judgment recorded has failed to express the intention of the court. That case was determined ultimately on the basis that even on that narrow view, the circumstances fell within the rule.
33 In my opinion the slip-rule is not apt to meet the present circumstances.
34 The slip rule (and the corresponding inherent jurisdiction at common law) is not confined to amendment prior to perfection of the judgment or order. Order 21 r 10 itself allows rectification "at any time". Thynne is an example of that.
35 The purpose of the slip rule is to correct clerical or other errors that do not go to the substance of the judgment or order (Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, 456 and the cases there referred to). The mistake or error must result from an "accidental slip or omission", although that may be due to the inadvertence of counsel: L Shaddock and Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590, 594, in which counsel had omitted to ask for an order for interest on part of the judgment sum. It has been said that quite
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apart from the slip rule, the court has an inherent jurisdiction to rectify orders to avoid injustice where the order of the court turns out to be incorrect as a result of the inadvertence of counsel or a mistake being made by a Judge which is not corrected by counsel (Monaco & Anor v Arnedo Pty Ltd & Anor (1994) 13 WAR 522, 524, where the failure was to draw the court's attention to relevant authorities in relation to costs). A similar result may be seen in The Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the High Court recalled and varied an order declaring that the Commonwealth had been entitled to retain $75,000 as a set-off. In fact, the Commonwealth had paid that money to the plaintiff in accordance with the judgment of the Supreme Court, but counsel was not aware of that and it had not been brought to the attention of the High Court. The High Court varied its order under the slip rule so as to require the plaintiff to repay the amount to the Commonwealth, notwithstanding that formal orders had been extracted.
36 The slip rule gives the court a wider power to amend a judgment than that which arises under the inherent jurisdiction. It extends to correcting a judgment to include a matter not dealt with originally through inadvertence (Raybos Australia Pty Ltd & Anor v Tectram Corporation Pty Ltd & Ors (1987-88) 77 ALR 190; R v Cripps; ex p Muldoon [1984] QB 686, 695.
37 A mistake or error will not be treated as accidental if the amendment sought requires the exercise of an independent discretion (Brew v Whitlock (No 3) [1968] VR 504, 506-507), nor if it involves a real difference of opinion (Storey v Keers, supra) nor if it requires argument and deliberation (Westub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310, 316).
38 The reasons for decision delivered on 30 July 2001 were relevantly founded on my understanding that it was the Marcelli affidavit filed just before hearing that comprised some hundreds of pages and the work which was necessarily done to enable a response to that by way of Mr Clifton's affidavit which justified the increase in the costs limit. It is common ground now, and I am satisfied it is the case, that the Marcelli affidavit was only some four or five pages; it was the Clifton affidavit which went to some hundreds of pages. Acceptance of those facts would not necessarily be a mere matter of amending the reasons - it was Mr Cornes' argument that although some additional work was required to meet the late filing of the Marcelli affidavit, the work done in preparing an affidavit of several hundreds of pages was so clearly unreasonable that it could not justify an increase in the limit for the relevant item. It seems
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to me this situation is patently not a matter of correcting an error or misapprehension (whether due to the inadvertence of counsel or otherwise) with which it is competent to deal under the slip-rule or the equivalent inherent jurisdiction of the Court. But this does not dispose of the matter.
39 The starting point, I think, is to record that the orders made by me on 30 July 2001 have not been perfected. They have not yet been extracted.
40 A judgment is effective from the moment it is pronounced by the court (Holtby v Hodgson [1889] 24 QBD 103, 107).
41 Once a judgment or order has been drawn up and perfected the court has no jurisdiction to recall or vary it; the only remedy is appeal (Re Suffield & Watts; ex p Brown [1888] 20 QBD 693 per Lord Esher MR at 693, Fry LJ at 697 and Lopes LJ at 698; Bailey v Marinoff, supra; Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141; Permanent Trustee Co (Canberra) Ltd v Stocks and Holding (Canberra) Pty Ltd (1977) 15 ACTR 45, 47).
42 A court or Judge does have power to reconsider a judgment or order which has not been perfected (per Fry LJ in Re Suffield & Watts, supra, at 697). The power extends to complete reversal of the original judgment or order. Thus, in In Re Crown Bank [1890] 44 Ch D 634, judgment had been given for the winding-up of a company on a shareholders' petition. Minutes granting the petition and for the winding-up were delivered but not passed or entered. Thereafter the parties compromised and applied for a rehearing and an order dismissing the petition. North J, held that he had jurisdiction to rehear and ordered the petition be dismissed.
43 In In re Melbourne Carnivals Pty Ltd (No 2) [1926] VLR 294 there was an appeal to the Full Court against an order for the winding-up of a company. After hearing argument the Full Court dismissed the appeal. That order was not perfected although an appeal to the High Court was instituted for consent orders allowing the appeal and setting aside the winding-up order, as the result of a compromise. The High Court declined to make the orders sought but gave the parties liberty to apply to the Full Court of the Supreme Court to vacate the order for winding-up. That application was made. It was held that as the judgment of the Full Court had not been perfected the court had jurisdiction to make the orders. The appeal was accordingly allowed, the order for winding up discharged and the petition dismissed.
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44 The nature and scope of the power of a court to withdraw, alter or modify a judgment or order, on application by a party or of its own motion, at any time before the judgment or order is drawn up, passed and entered, was explained by High Court in Smith v NSW Bar Association (1992) 176 CLR 256 at 265:
"It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected (For early cases see, eg, Abbott v Feary (1860) 6 H & N 113, at pp 118-119 [158 ER 47, at pp 49-50]; In re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693, at p 697. As to more recent cases see, eg, Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382, at p 457; Pittalis v Sherefettin [1986] QB 868, at p 879). Part 40, r 9(1) of the Supreme Court Rules (NSW) also provides that '[that] Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment'. The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation (Wentworth v Woollahra Municipal Council (1982) 149 CLR 672, at p 684). Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review (Marinoff v Bailey (1970) 92 WN (NSW) 280, at p 284; National Benzole Co Ltd v Gooch [1961] 1 WLR 1489, at pp 1492-1494). And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal (State Rail Authority of NSW v Codelfa Constructions Pty Ltd (1982) 150 CLR 29, at pp 38-39, 45-46; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388, at pp 394-395). It is important that it be understood that these considerations may tend against the re-opening of the case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.
It is said in Ritchie's Supreme Court Procedure that the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised 'to permit a general re-opening' (Ritchie's Supreme Court Procedure, New South Wales, vol 1, p 2855). As a general statement that is correct, both as to whether leave to re-open will be granted and, if it has been, as to the nature of the review involved. But it is a general statement only and, once a matter has been re-opened, the
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- nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue."
- (See also Halsbury's Laws of Australia, Vol 20, [325-9135]).
45 As I have said, in the present case the judgment has not been perfected. It is not suggested any party has acted upon it to their detriment. All parties agree that there was a factual error and on what it was. They all seek to have me rehear the application rather than to be left to pursue any remedy on appeal. In the circumstances, clearly the most efficacious and sensible course is for me to do so.
46 Although appreciably more significant than a mere slip or a mathematical error, the factual error here is able to be discretely addressed and indeed counsel have made submissions to me as to what they contend the effect of it should be.
47 The rationale of my decision in this respect on 30 July 2001 was that the costs prima facie associated with, or the result of, the late filing of the Marcelli affidavit demonstrated an apparent inadequacy in the scale fee of such an extent as to constitute a good and sufficient reason for the purposes of O 66 r 12(1).
48 I now appreciate that the Marcelli affidavit was not lengthy but ran only to six pages and that it was the Clifton affidavit (which had not been filed in the proceedings) which was lengthy. Nonetheless, having heard counsel on this and having considered the matter afresh, I have again come to the view that the additional costs generated by the claimed need to urgently prepare the lengthy Clifton affidavit to respond to the issues raised in the Marcelli affidavit, on the face of it, do demonstrate an apparent inadequacy in the scale fee to such an extent as to constitute a good and sufficient reason for the making of a special costs order under O 66 r 12(1).
49 As was acknowledged by counsel in argument, the making of such an order would not necessarily mean the plaintiff would be awarded the costs so claimed on taxation. Whether there is any substance to the arguments advanced by Mr Cornes that some of the material in the Clifton
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affidavit had been prepared earlier and for other purposes, or that such an extensive response to the Marcelli affidavit was in reality not reasonable in the circumstances, will no doubt be matters for the taxing officer.
50 I would not be prepared to allow that part of par 1 of the chamber summons dated 9 August 2001 which refers to "costs and disbursements of and incidental to" the Clifton affidavit. As to that, I accept Mr Cornes' submission that such costs do not come within O 66 r 12, but should be dealt with on taxation under item 30B of the scale in the ordinary way.
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