Khan v Polyzois (No 2)

In *Khan v Polyzois (No 2)*, the New South Wales Court of Appeal considered a motion to vary a judgment entered following an earlier hearing. The dispute arose from an application to vary a judgment where the original hearing had proceeded on the agreed basis that a specific statutory provision, section 151Z(1) of the *Workers Compensation Act 1987* (NSW), would not apply.

The primary legal issue before the Court of Appeal was whether the "slip rule," as codified in rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW), could be invoked to vary the judgment. Specifically, the court had to determine if the circumstances of the original hearing, where parties had agreed to exclude the operation of section 151Z(1), constituted a "slip" or error that could be corrected under the slip rule, or if it represented a deliberate and binding agreement on the application of the law.

The Court of Appeal reasoned that the slip rule is intended to correct clerical mistakes or errors arising from an accidental slip or omission, not to re-litigate or alter a judgment that was deliberately made on a particular basis. In this instance, the original hearing had proceeded on an agreed basis that section 151Z(1) would not apply, and this agreement was fundamental to the conduct of that hearing and the resulting judgment. To allow a variation under the slip rule would effectively undo the agreed premise of the original hearing, which the court found was not the purpose of the rule.

The motion to vary the judgment was dismissed with costs.