Morais v Mills (No1)

[2010] QDC 252

DISTRICT COURT OF QUEENSLAND

CITATION:

Morais & Anor v Mills (No1) [2010] QDC 252

PARTIES:

EDWARD MORAIS AND VIRGINIA MORAIS
(Plaintiffs)

V

JAMES MILLS
(Defendant)

FILE NO/S:

DC 1308 of 2009

DIVISION:

Civil

PROCEEDING:

District Court at Brisbane

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

HEARING DATES:

On the papers

JUDGE:

Dorney QC DCJ

ORDERS:

I further order that Order 2 of the orders made by me on 11 June 2010 be varied by inserting “2a,” immediately before “2g” in that Order.

CATCHWORDS:

RECTIFICATION OF ORDER – Where “order” does not reflect intention of court at time order made or resulted from accidental slip or omission.

Uniform Civil Procedure Rules rr 7, 388, 667

McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152

Queensland Pork P/L v Lott [2003] QCA 271

Introduction

1. On 11 June 2010 I made orders in this proceeding. 

1. Among those orders was an order that the plaintiffs deliver up to the defendant certain specific identified items of personal property:  see Order 2.  The form of the order was one that included a reference to paragraph 30 of the counter-claim of the defendant filed 30 June 2009 and then excluded from the order for delivery up certain items that were the subject of an order made by Robin QC, DCJ on 24 June 2009. 

Error in order

1. Both the solicitors for the defendant and the plaintiffs (who were self-represented at the relevant time) made submissions by way of email concerning the order for delivery up. Those submissions, and any responses from the Court, have been placed on the Court file.

1. Since the trial has concluded and judgment given, no further evidence can now be led by either of the parties. Further, it does not matter that the defendant in this proceeding post-decision now indicates that he does not necessarily want some of the items that are the subject of the delivery up order. But what they may agree between themselves is entirely their own concern.

1. Nevertheless, the plaintiffs and the solicitors for the defendant have pointed out one particular aspect of the order for delivery up which does cause concern.  In the Reasons for Judgment I dealt, in some detail (see paragraphs [60]-[65]), with the issue of the return of the defendant’s mother’s ring. In the end, I concluded that the defendant could not succeed on the counter-claim in detinue or conversion to any degree at all with respect to that ring. I now have been, correctly, informed that item 2a (which presently is expressly included in the items to be delivered up in accordance with Order 2) deals with that special ring.  In consequence, Order 2 does not reflect fully my intention that the defendant not succeed with respect to that issue. 

How to rectify

1. In Queensland Pork P/L v Lott [2003] QCA 271, the Court of Appeal considered the issue of the correction of the judgment given. In particular, it found that, in the case it was considering, both Rule 388(2) and Rule 667(2) of the Uniform Civil Procedure Rules 1999 were applicable, with correction for the latter based upon the Court’s own inherent power to recall a judgment before its formal entry, where the interests of justice so require: at [2] and [18]-[20]. In Queensland Pork, the court, through the reasons of Cullinane J, with whom McMurdo P and Jones J concurred, held that those rules were applicable because it seemed clear that the trial judge at all times intended that the judgment would be entered in a certain way which was not reflected in the judgment pronounced. By schedule 4, “order” is defined to include a judgment, decision or determination of a court, whether final or otherwise. 

1. Turning, first, to Rule 388: it provides by Rule 388(2) that the court may on its own initiative “at any time” correct the relevant mistake or error. Then, Rule 388(1)(b) states that the rule applies if a mistake or error in an order of the court “resulted from an accidental slip or omission”.  I am of the view here that, given the matters just discussed, the relevant mistake or error in Order 2 did result from an accidental slip or omission on my part. 

1. Alternatively, Rule 667(2) states that the court may set aside an order “at any time” if the order does not reflect the court’s intention at the time the order was made: see paragraph (d). Again, from what has been canvassed, Order 2 does not fully reflect my intention at the time I made the order. Should there be any doubt that this Court does not have the necessary inherent or implied power to correct, since the Order does need to be varied, for that purpose it would be, instead, necessary to apply Rule 667(1)(b), as enlarged as to time by Rule 7 - see McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 at 154 [8] - where rule 667(1)(a) has not been triggered. Noting that although the enlargement power should “be exercised with due caution,” the rule confers a broad power to relieve against injustice. Hence, it is appropriate to be availed of here, particularly where the time frame has so recently expired. Thus, by either course, access to Rule 667 is relied upon, especially where Rule 667(2)(d) is relevant to the exercise of the enlargement power.

1. Consequently, I intend to correct the identified mistake or error in Order 2 by appropriately varying it.

Order

1. The order that I intend to make is to insert in Order 2 before the number and letter, “2g”, the number, letter, and comma, “2a,”. 

1. Hence:

I further order that Order 2 of the orders made by me on 11 June 2010 be varied by inserting “2a,” immediately before “2g” in that Order.