Kenney v Commonwealth Bank of Australia [No 2]
[2017] WASCA 21
•7 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KENNEY -v- COMMONWEALTH BANK OF AUSTRALIA [No 2] [2017] WASCA 21
CORAM: NEWNES JA
MURPHY JA
HEARD: 17 JANUARY 2017
DELIVERED : 17 JANUARY 2017
PUBLISHED : 7 FEBRUARY 2017
FILE NO/S: CACV 68 of 2016
BETWEEN: GREGORY PETER KENNEY
Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :COMMONWEALTH BANK OF AUSTRALIA -v- KENNEY [2016] WASC 230
File No :CIV 1869 of 2013
Catchwords:
Practice and procedure - Whether grounds of appeal have reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Whether primary judge erred in amending order under Rules of the Supreme Court 1971 (WA), O 21 r 10 - 'Slip rule' - Effect of delay - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 21 r 10
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr L D Ayres
Solicitors:
Appellant: In person
Respondent: Minter Ellison Lawyers
Case(s) referred to in judgment(s):
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Elyard Corporation v DDB Needham Sydney [1995] FCA 943
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) WAR 400
Georgouras v Bombardier Investments No 2 Pty Ltd [2013] NSWSC 1549
Gould v Vaggelas (1985) 157 CLR 215
Kenney v Commonwealth Bank of Australia [2016] WASCA 228
Kenney v Commonwealth Bank of Australia [2016] WASCA 44
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) HCA 59; (1982) 151 CLR 590
L Shaddock and Associates Pty Ltd (No 2) v Parramatta City Council [1982] HCA 59; (1982) 151 CLR 590
Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300
JUDGMENT OF THE COURT: There are two matters before the court for determination. They are:
1.an application by the appellant for an extension of time to comply with an order made by this court on 24 October 2016 that unless the appellant's case was filed and served on or before 21 November 2016 the appeal was dismissed (the springing order); and
2.a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The registrar's notice to attend is, strictly speaking, superfluous as the appeal currently stands dismissed by reason of the appellant's failure to comply with the springing order, but it encapsulates a question critical to the appellant's application for an extension of time to comply with the springing order; that is, whether the appeal has a reasonable prospect of succeeding. No purpose would be served by granting an extension of time, and thereby reviving the appeal, if the appeal did not have a reasonable prospect of succeeding.
On 17 January 2017, we dismissed the appellant's application for an extension of time, with the result that the current position remains unaltered; that is, the appeal stands dismissed. We said we would provide reasons for our decision. These are the reasons.
Background
The relevant background is set out in the reasons for decision of this court in Kenney v Commonwealth Bank of Australia [2016] WASCA 228. For present purposes it can be sufficiently summarised as follows.
The respondent loaned money to the appellant and Ms Kenney secured by a mortgage of the appellant's farming property at Salmon Gums. The property consisted of three, apparently contiguous, lots.
In 2011, the appellant and Ms Kenney were in default under the terms of the loans and the respondent made demand for payment of the sum then said to be owing. The demands were not met and the appellant and Ms Kenney also failed to deliver vacant possession of the property when subsequently the respondent made demand that they do so. The respondent then commenced proceedings to recover the money owing and for possession of the property.
The respondent applied for summary judgment, which was granted by Master Sanderson on 11 August 2014. The master ordered that the appellant pay to the respondent the amounts owing under the loans and, within 28 days, deliver vacant possession of the property to the respondent.
However, one of the three lots making up the property the subject of the mortgage was wrongly described in the respondent's statement of claim and, no doubt as a result, in the order for possession, as 'being all of the land comprised in Lot 446 on Deposited Plan 202810 being the whole of the land comprised in Certificate of Title Volume 1586 folio 648'. The correct lot number was '466', not '446'. The title description was otherwise correct. We note in passing that in his defence the appellant admitted that the mortgage was over the property (incorrectly) described in the statement of claim.
An appeal by the appellant from the master's decision was dismissed: Kenney v Commonwealth Bank of Australia [2016] WASCA 44. The misdescription of the lot number in the master's order was not referred to on the hearing of the appeal on 15 October 2015, apparently having escaped the notice of both parties to that point.
How the misdescription subsequently came to light is not clear on the papers before us but come to light it did and, on 17 June 2016, the respondent applied, relevantly, to correct the lot number in the master's order, pursuant to O 21 r 10 of the Rules of the Supreme Court 1971 (WA), commonly known as the 'slip rule'. That rule is in the following terms:
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.
The application was determined by Le Miere J on 29 July 2016. His Honour noted that apart from the lot number the property description was correct. He also noted that the lot number was correctly described in the copy of the mortgage attached to the affidavit of a bank officer in support of the application for summary judgment and that at no stage had the appellant suggested that the property the subject of the proceedings was land other than Lot 466. His Honour rejected the appellant's argument that the order was irregular and should be set aside. The primary judge ordered that the master's order be amended by replacing 'Lot 446' with 'Lot 466'. He also made further orders to facilitate the enforcement by the respondent of the master's orders.
The appellant filed an appeal notice on 8 August 2016. On 11 August 2016, the appellant filed an interim application seeking a stay of the orders for the enforcement of the judgment pending the determination of the appeal. On 24 October 2016, that application was dismissed and an order was made that unless the appellant's case was filed and served by 21 November 2016, the appeal be dismissed: Kenney v Commonwealth Bank of Australia [2016] WASCA 228.
The appellant lodged the appellant's case at the Court of Appeal office on 21 November 2016. It was accepted for checking only and, according to the appellant, he was told that it should not be served until it had been checked.
The appellant says that on 23 November 2016 he was told by an officer in the Court of Appeal office that the appellant's case had been accepted for filing and that afternoon he emailed a copy of it to the respondent's solicitors by way of service. That, however, was outside the time specified in the springing order, with the consequence that the appeal stands dismissed.
The grounds of appeal
The appellant's case contains seven grounds of appeal. The first ground appears to be a summary of the other six grounds, which involve four substantive contentions; namely, that the primary judge erred in:
1.finding that the incorrect lot number in the master's order could be amended under O 21 r 10, when his Honour should have found that it was not the result of a clerical mistake or accidental slip but the result of a deliberate decision by the respondent's counsel to plead the incorrect lot number (grounds 2 ‑ 4);
2.ordering that the master's order be amended, when his Honour should have found that the respondent's application should be dismissed by reason of delay (ground 5);
3.finding that he had power to amend the master's order, when his Honour should have found that as the order had been drawn up and entered on the court record the court had no such power (ground 6); and
4.amending the order of the master in circumstances where it would be inequitable or inexpedient to do so as it would adversely affect the rights of the appellant and a third party (ground 7).
The disposition of the notice to show cause
Grounds 2 - 4
It was submitted by the appellant that the error was contained in a notice to vacate sent to the appellant before the proceedings were commenced and annexed to the affidavit of Mr Ficko in support of the application for summary judgment. The appellant argued, in effect, that it is to be inferred that the respondent's counsel relied on that document in describing the lot as '446', rather than '466', in the statement of claim. The use of that description was therefore a deliberate decision rather than a mistake or slip. The appellant referred to Elyard Corporation v DDB Needham Sydney [1995] FCA 943, for the proposition that the slip rule does not apply to a mistake that is the consequence of a deliberate decision.
There is no substance in that contention. In the first place, it is mere speculation that the error in the statement of claim was transposed from the notice to vacate. How the error came about does not clearly emerge from the material before the primary judge. However, the fact, if it be the fact, that the respondent's legal advisers took the incorrect description from a document that contained the error - rather than themselves being the originator of the error - does not mean that the mistake was the consequence of a deliberate decision. There is no suggestion that the respondent's legal advisers were aware at any relevant time that the lot number was incorrectly described and no purpose could possibly have been served by misdescribing it in the statement of claim. It was clearly a typographical or clerical error. In those circumstances, the pursuit of the original source of the error is unnecessary.
This ground of appeal has no reasonable prospect of succeeding.
Grounds 5 and 7
The power to amend orders under the slip rule is discretionary, albeit it is a discretion to be exercised sparingly: Gould v Vaggelas (1985) 157 CLR 215, 275. Delay in making an application is not of itself a bar to relief under the slip rule, unless in the circumstances the period of delay is so gross and extraordinary that to make such an order would be to do something that would tend to 'bring the administration of justice to [sic] disrepute among right thinking people': Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) WAR 400, 408 ‑ 409. But it will be relevant to the exercise of the discretion under the slip rule if something has intervened which would render it inexpedient or inequitable to grant relief, including whether the other party has taken any step which they would otherwise have refrained from taking, or omitted to take any step which they would otherwise have taken: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) HCA 59; (1982) 151 CLR 590, 597; Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300, 306.
The appellant submitted that the application had not been made promptly and should therefore have been dismissed. The master's order was made on 11 August 2014 but the application to amend the order was not made until 15 June 2016, some 22 months later. The appellant referred to Georgouras v Bombardier Investments No 2 Pty Ltd [2013] NSWSC 1549, as authority that a delay of 22 months was excessive.
The appellant further submitted that the delay prevented him from taking steps that he would ordinarily have taken. The appellant asserted he was prevented from planting a crop on the property in 2014 and 2015, and had suffered significant financial loss as a result of the delay. He also asserted that the delay would prejudice the right of quiet enjoyment of the lessee of the property.
Those submissions cannot be accepted. In the first place, the appellant did not contend on the hearing of the respondent's application that he or anyone else would suffer any prejudice if the order were amended. Before the primary judge the appellant simply argued that that as a result of the error the master's orders were irregular and should be set aside.
Secondly, there was no evidence before his Honour that was capable of establishing any prejudice to the appellant or any third party. There was no evidence before his Honour that the property was the subject of a lease or that the appellant had acted in reliance on the original orders in not planting a crop in 2014 and 2015. Moreover, when asked on the hearing before us how the error in the lot number had caused him not to plant crops, the appellant said that he had been unaware of the error and had stopped farming on the basis of the orders that had been made by the master. The absence of any reference to the error on the hearing of the appellant's appeal on 15 October 2015 - long after any crop for that year would have been planted - is also consistent with the error having not been identified at any relevant time in 2014 and 2015. It is evident that the error in the master's order had nothing to do with the appellant's decision not to plant the crops.
Thirdly, the error was of such a minor and technical nature that it is easy to see how it was overlooked and almost impossible to conceive of any prejudice being caused by it. The property was accurately described in the mortgage attached to the affidavit in support of the application for summary judgment and the certificate of title volume and folio numbers were correctly described in the order. There was never any suggestion that the relevant portion of the property the subject of the master's order was other than lot 466.
Contrary to the appellant's submission, Georgouras is not authority for the proposition that a delay of 22 months is fatal to an application under the slip rule. Each case must of course depend upon its own facts and the facts of that case were significantly different. In that case, in a judgment delivered on 21 July 2011, the court had ordered that each party was to bear its own costs 'up to and including 7 November 2011' and that 'from 7 November 2011' the plaintiff was to pay 50% of the defendants' costs. The date should have been '7 November 2010'. The defendant became aware of the mistake in May 2012 but the application to correct it was not made 3 July 2013. In an ex tempore judgment, Stevenson J declined to amend the order under the slip rule on the grounds of delay and the prejudice the plaintiff might suffer from having abandoned an application for leave to appeal from the primary judgment in the belief that the error could no longer be corrected.
In the circumstances of the present case, the delay was clearly not so gross and extraordinary that to correct the obvious error in the master's order would tend to bring the administration of justice into disrepute among right thinking people. On the contrary, a refusal to correct the order would tend to do so.
On the hearing of this application, the appellant also submitted that he had been prejudiced because the correction of the order had denied him a defence to proceedings instituted by the respondent to have him committed for contempt for failing to give vacant possession of the property. The respondent had instituted such proceedings on 31 May 2016 but ultimately they were not pursued. However, sometime after the order was amended, upon a further failure of the appellant to give vacant possession, fresh contempt proceedings were instituted by the respondent. As we understood it, the appellant's submission was that had the order not been corrected, he would have had a defence to those proceedings. There is no merit in that. The prospect that the appellant might be denied a defence to contempt proceedings for a subsequent failure to give possession of the property is not a basis upon which the court would decline to correct the order under the slip rule. We would observe in passing that how the uncorrected order could have provided any defence, at least in respect of the other two lots, is not apparent.
There is nothing in these grounds of appeal that is capable of establishing that the exercise of the primary judge's discretion miscarried. They have no reasonable prospect of succeeding.
Ground 6
This ground is misconceived. The appellant relied upon Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, for the proposition that once an order has been perfected the proceeding is at an end and the court has no jurisdiction to vary it. That rule, however, is not inflexible and is subject to a number of exceptions (539). Those exceptions include the inherent jurisdiction of a court at any time to correct an error in an order arising from a slip or accidental omission, which is reflected in the 'slip rule' in rules of court: L Shaddock and Associates Pty Ltd (No 2) v Parramatta City Council [1982] HCA 59; (1982) 151 CLR 590. The primary judge was entitled, as he did, to amend the master's order under O 21 r 10.
This ground of appeal has no reasonable prospect of succeeding.
Conclusion
It necessarily follows from our findings on the other grounds that ground 1 of the grounds of appeal falls away. As none of the grounds of appeal has a reasonable prospect of succeeding, no purpose would be served by extending the time for compliance with the springing order. It was for that reason we dismissed the appellant's application for an extension of time.
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