Lloyd-Jones v Allen (No 2)

[2012] NSWCA 315

Court of Appeal

New South Wales

Case Title:

Lloyd-Jones v Allen (No 2)

Medium Neutral Citation:

[2012] NSWCA 315

Hearing Date(s):

On the papers

Decision Date:

28 September 2012

Jurisdiction:

Before:

Beazley JA at [1], McColl JA at [1], Nicholas J at [1]

Decision:

1. Amend order 5(i) of the Court's orders entered on 1 August 2012 by adding the word "amended" prior to the words "statement of claim";

2. Amend order 5(ii) of the Court's orders entered on 1 August 2012 by deleting the words "in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim".

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - judgments and orders - application to amend orders - correction under slip rule - Uniform Civil Procedure Rules 2005, r 36.17 - no question of principle

Legislation Cited:

Defamation Act 2005
Uniform Civil Procedure Rules 2005

Cases Cited:

Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Sutherland v Stopes [1925] AC 47

Texts Cited:

Category:

Consequential orders

Parties:

Laurel Lloyd-Jones - Appellant
Anthony James Allen - Respondent

Representation

- Counsel:

Counsel: CA Evatt/R Rasmussen - Appellant
BAM Connell/AR Power - Respondent

- Solicitors:

Solicitors: Carters Law Firm - Appellant
Andrew Warren & Associates - Respondent

File number(s):

2009/334582

Decision Under Appeal

- Court / Tribunal:

- Before:

Colefax DCJ

- Date of Decision:

09 May 2011

- Citation:

- Court File Number(s)

2009/1549

Publication Restriction:

No

JUDGMENT

1. The Court: The Court handed down judgment in this matter on 1 August 2012: Lloyd-Jones v Allen [2012] NSWCA 230. It made the following orders:

   "1 Grant leave to appeal.
   2 Direct the appellant to file the notice of appeal in the form of the draft in the White Book within seven days of judgment.
   3 Appeal allowed in part.
   4 Orders (1) and (2) made by Colefax DCJ on 9 May 2011 be set aside.
   5 Remit the matter to the District Court for the determination of:

   (i) the defence of truth to the imputations pleaded in (a) and (c) in the statement of claim; and
   (ii) in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim, the assessment of damages.

   6 Costs of the remitted hearing to be in the discretion of the trial judge.
   7 Each party to bear his and her own costs of the appeal."

2. By notice of motion filed on 13 August 2012 the respondent, the plaintiff at trial, sought pursuant to either r 36.16 of the Uniform Civil Procedure Rules 2005 ("UCPR") or the slip rule (UCPR 36.17) a variation of the terms of order 5 by the addition of the word "amended" before "statement of claim" in order 5(i) and the deletion of the prefatory words:

   "in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim"

   from order 5(ii).

3. The respondent submitted that as the effect of the Court's judgment was that all defences to imputations (b) and (d), insofar as they were published to the media, failed, he was entitled to a verdict regardless of the outcome of the issue the Court remitted to the District Court for determination. Accordingly, he argued, the prefatory words to order 5(ii) were otiose because even if imputations (a) and (c) were found to be true, he would be entitled to an award of damages to be determined by the judge who presided over the remitted hearing.

4. The appellant, the defendant at trial, did not oppose the amendment sought to order 5(i). She opposed the application to amend order 5(ii). She contended that the effect of that order was that, no matter what the result of the remitted issue, the respondent must succeed and obtain damages at least in respect of imputations (a) and (c). In a somewhat confused submission she appeared to contend that rejecting the respondent's application to amend order 5(ii) would obviate the necessity for a further lengthy hearing and, presumably, its attendant costs. Alternatively the appellant contended that "there appears to be a slip in the Judgment and Orders which, if corrected, would require the matter to be referred to back to the District Court for determination of all four imputations and not just ... (a) and (c)". Her written submissions in support of the latter contention appeared to invite the Court to embark upon a substantial review of the findings on the imputations and amount, in substance, to an application to reopen the appeal.

5. The respondent filed detailed submissions in reply. It is unnecessary to refer to any part of those submissions other than that part which complains that the substantive application the appellant appears to advance can only be made under UCPR 36.16(3A) by notice of motion filed within 14 days after judgment is entered, that the appellant has not filed such a motion within time (and, pursuant to UCPR 35.16(3C), there is no power to extend time) and she cannot now seek to circumvent UCPR 36.16 by making a de facto motion by way of submissions on the motion of the respondent. We accept that submission. The only application properly before this Court is the respondent's.

6. UCPR 36.16(1) permits the court to set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. However UCPR 36.16(3A) also permits the court to set aside or vary a judgment or order if the notice of motion seeking such relief is filed within 14 days after the judgment or order is entered.

7. The Court's orders were entered by being recorded in the Court's computer system on 1 August 2012. Accordingly, the motion was filed within 14 days after their entry: UCPR 36.16(3A). The power conferred by the latter rule is subject only to the limitation that the general law imposed on the power to set aside or vary a judgment or order prior to that judgment or order being entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 (at [10]) per Campbell JA (McColl JA and Handley AJA agreeing).

8. UCPR 36.17 in terms provides that the Court may correct a "clerical mistake, or an error arising from an accidental slip or omission in a judgment or order". There is no time limit for an application under UCPR 36.17.

9. Having reviewed the terms of the judgment (see in particular paragraphs [36], [37], [86] and [87]), we are of the view that the inclusion of the prefatory words in order 5(ii) does not clearly reflect what the Court intended. There is no doubt, as is common ground between the parties, that whatever be the outcome of the remitted issue, the respondent is entitled to an award of damages, the appellant having failed to prove the substance (that is to say, the stings) of the defamatory matter to be substantially true: s 25, Defamation Act 2005; Sutherland v Stopes [1925] AC 47 (at 79).

10. Order 4 of the Court's orders set aside the orders made by the primary judge which included his Honour's award of damages. While the respondent is entitled to an award of damages for imputations (b) and (d) irrespective of the outcome of the defence of truth to imputations (a) and (c), if that defence fails, he will be entitled to an award which takes into account the publication of all, rather than merely two, imputations.

11. If the terms of order 5(ii) are not varied as the respondent seeks, its terms may be wrongly understood to mean that the assessment of damages is conditional upon the failure of the defence of truth to imputations (a) and (c) which was not the Court's intention. Neither party was at fault in the framing of order 5(ii), which was formulated by the Court to seek to accommodate a result not foreshadowed in the orders proposed in the notice of appeal. In formulating its orders the Court did not intend the consequence discerned by the respondent. Such an unintended consequence can be corrected pursuant to UCPR 36.17: Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411. In those circumstances, the Court considers it appropriate to amend order 5(ii) by deleting the prefatory words. It is unnecessary to consider whether the orders sought could also be made pursuant to UCPR 36.16.

12. Accordingly, the Court makes the following orders:

    1. Amend order 5(i) of the Court's orders entered on 1 August 2012 by adding the word "amended" prior to the words "statement of claim";

    2. Amend order 5(ii) of the Court's orders entered on 1 August 2012 by deleting the words "in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim".

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