Morton v State of Tasmania
[2006] TASSC 56
•7 July 2006
[2006] TASSC 56
CITATION: Morton v State of Tasmania [2006] TASSC 56
PARTIES: MORTON, Paul Gregory
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: TRA 440/2001
DELIVERED ON: 7 July 2006
DELIVERED AT: Hobart
HEARING DATE: 14 June 2006
JUDGMENT OF: Tennent J
CATCHWORDS:
Procedure – Judgment and orders – Amending, varying and setting aside – Correction under slip rule – Formal judgment not reflecting judge's orders.
Supreme Court Rules2000 (Tas), r435.
Butterworths Civil Procedure Tasmania 2005, referred to.
Aust Dig Procedure [487]
REPRESENTATION:
Counsel:
Appellant: T D Cox
Respondent: M E Lovett
Solicitors:
Appellant: Hunt & Hunt
Respondent: Blissenden Lawyers
Judgment Number: [2006] TASSC 56
Number of paragraphs: 22
Serial No 56/2006
File No FCA 103/2004
MORTON v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
7 July 2006
This application relates to proceedings at first instance commenced by Paul Gregory Morton against the State of Tasmania and David Batchler. The proceedings involved a claim for damages for personal injuries and were heard by a judge sitting with a jury in 2004. A verdict was returned on 7 October 2004 and the learned trial judge then entered judgment and made an order for costs. The formal judgment, however, was not taken out until August 2005. There is an appeal pending against the judgment at first instance and for convenience counsel used the contents of the Appeal Books as reference material for this application.
The defendants have applied to have the judgment entered on 9 August 2005 amended, relying on the Supreme Court Rules 2000 ("the Rules"), r435. They seek to have the formal judgment amended so that it is one entered for both defendants, as opposed to only the first, against the plaintiff, and for the order for costs to benefit both defendants.
Rule 435 provides:
"Any clerical mistake or omission in a judgment or order may at any time be corrected by –
(a) the Court or a judge, on its or his or her own motion; or
(b) on application or consent memorandum to the registrar."
Background
The plaintiff commenced proceedings against two defendants, the first being the State of Tasmania and the second being an employee of the State, one David Batchler. At all times during the proceedings, both defendants were represented by the same solicitors and at trial were represented by the same counsel. As a consequence of directions given by the learned trial judge without demur by any party, the only question put to the jury was:
"Is the first defendant liable to pay damages to the plaintiff?"
The answer was "no". The transcript records that counsel for the defendants then moved for judgment and the learned trial judge responded:
"I order that judgment be entered for the defendants against the plaintiff."
There was a consequential order for costs made immediately after that. The transcript records the words of that order by the learned trial judge:
"I order the plaintiff pay the defendant's costs of and incidental to the action."
The terms of the formal judgment entered in 2005 were:
"That there be judgment for the first defendant against the plaintiff and that the plaintiff pay the first defendant's costs to be taxed."
Issue
At issue is whether the amendment sought could and/or should be made pursuant to r435. Counsel for the defendants submitted that the jury verdict reflected its finding that there was no obligation on the part of either defendant which the State of Tasmania would be liable to pay, that the words of the learned trial judge gave effect to that, clearly referring to defendants in the plural, and that the order for costs did the same. There had been an error made when the judgment was entered in having it refer to only one defendant. Hence the formal judgment should be amended.
Counsel for the plaintiff opposed the application. She submitted that, while there were always two defendants to the action, the second defendant took no real part in the proceedings save as a witness, and at all times the trial was conducted as if the State of Tasmania was the only defendant. The verdict sought from the jury reflected that, as did the ultimate judgment. It was simply unfortunate that in practical terms the consequence of that was that the second defendant had proceedings unresolved against him because no verdict or judgment had been sought in respect of him.
In support of her submissions, counsel for the plaintiff referred to a number of statements made by the learned trial judge in his summing up, indicative, she said, of the approach taken by him and counsel. That is, at all times the jury was told this was the State's case and it need only worry about the liability of the State of Tasmania and need not worry about that of Mr Batchler.
The learned trial judge said at page 294 of the Appeal Book, liness 12 - 20:
"In this case, Mr Morton has sued the State of Tasmania and Mr Batchler and that's why in the heading the case is referred to as Morton against the State of Tasmania and Batchler but there's no need for you to consider the liability of the State of Tasmania and the liability of Mr Batchler separately. If he did anything that gives to a right to damages, then the State of Tasmania is liable to pay those damages so you're not going to be asked to reach separate verdicts, one in relation to the State and one in relation to Mr Batchler."
He said at page 296, lines 23 – 28:
"Before you can make a finding that the State of Tasmania is liable to pay damages to Mr Morton, you must satisfied on the balance of probabilities of each of the following:
(a)The Fisheries Development Authority (or one or more of its employees or agents) breached the duty of care.
(b) Mr Morton suffered an injury and/or damage to his property.
(c) That injury and/or damage was suffered as a result of the breach of duty.
Now, I'll go back to the beginning of that."
On p297 at line 10 and 11 he said "In order for you to make a finding against the State of Tasmania …"
On page 300, line 4, he said, "The State's case …"
Then on page 303, lines 6 – 11, he said:
"The alternative argument – the argument for the State is that the radio call, the making of the radio call, didn't cause the injury or damage to the boat, that there wasn't a sufficient link between any breach of duty and the damage to the knee and the boat. Now, you only reach this question if you're satisfied there was a breach of duty. So, it's a fall-back position as far as the State is concerned."
The law
Neither counsel referred to any authorities as such on the scope of r435. Counsel for the defendants did, however, refer the Court to that part of Butterworths service, Civil Procedure Tasmania 2005, which deals with the rule. This section is at pages 11,793 and 11,794. In the notes following the setting out of the rule, the authors say:
"Rule 435 is the 'slip rule' and permits judgments to be amended if accidental mistakes or omissions are made in the expression of the judgment. It does not permit any change to the substance of the judgment.
The purpose of the slip rule is to avoid injustice. It is not appropriate to apply the slip rule to avoid injustice to one party while creating a situation that causes significant injustice to another party - see Bennett v State of Tasmania [2005] TASSC 44; BC200503466.
In Australia and New Zealand Banking Group Ltd v Luck (1995) 4 Tas R 328; BC9503018, Zeeman J said that the slip rule was not limited to slips or omissions by a judge or an officer of the court, but included one made by a party.
The court also has an inherent jurisdiction to rectify a judgment if it does not properly reflect the intention of the court. Burbury CJ observed in Re Hogarth's Estate; Crisp v Hogarth [1962] Tas SR 17 at 21:
'… apart from the jurisdiction given to it by the "slip rule", the court has an inherent jurisdiction at any time to correct an error in a decree or order arising from a slip or accidental omission.'
The rule does not permit amendment where it is alleged that the judgment is erroneous, which must be dealt with by appeal.
Parties can bring to the attention of the judge any perceived errors that can be corrected before the judgment is taken out. After a judgment is taken out, the only power the court has to rectify it is when it does not correctly express the judge's intention when it was pronounced."
Conclusion
The proceedings by the plaintiff were commenced and at all times continued against both the first and second defendants. There has never been any discontinuance against either. Both defendants were represented by the same solicitors and by the same counsel at trial. The pleadings for the plaintiff referred to both defendants and the documents filed for the defence were for both defendants. The fact that one party may have taken a more active role in defending the claim does not mean that the less active party is not entitled to have the proceedings against him concluded.
It is clear from the transcript that the role of each defendant was a matter for consideration throughout the trial. For example, following the opening of the plaintiff's case, counsel for the defendants raised some matters in the absence of the jury. At page 23 of the Appeal Book, the learned trial judge posed a question generally when he said:
"… it seems to me that it would be open to the Jury to conclude that there was negligence on the part of the Fisheries Development Authority, separate from any negligence of Mr Batchelor, that is to say that the Jury might decide that Mr Batchelor wasn’t negligent but that the servants or agents of the authority were, which means I’m going to have to ask them for separate verdicts in relation to the – the two Defendants, and does that then mean that I might have to ask them for separate verdicts in relation to the - a lot of damages if they find that there was contributory negligence."
At the conclusion of the evidence, the learned trial judge presented a memo to the jury for counsel's consideration. He then had a lengthy discussion with counsel, in the absence of the jury, about the terms of the memorandum, the questions to be asked of the jury and anything else counsel felt he should say to the jury (see pages 246 - 264 of the Appeal Book). In particular, neither counsel at any point during the course of the discussions raised any objection to the questions to be posed to the jury.
There was, at page 246, a further example of continuing consideration of the role of each defendant. Counsel for the defendants specifically raised an issue about whether the plaintiff's case against the second defendant, as pleaded in par10 of the statement of claim, was being pursued by him. Counsel for the plaintiff indicated it was not.
The learned trial judge, after both counsel completed their closing addresses, commenced his summing up. At page 294 he said the words already referred to by counsel for the plaintiff. Counsel for the plaintiff implied that those words were indicative of an approach that this was a claim against the State only, and not Mr Batchler. With respect, I disagree. His Honour was simply setting out for the jury what the practicalities were, namely these were proceedings against two defendants, but since the State would be liable to pay any damages found to be payable by either, then they only needed to consider one thing – was the State liable to pay any damages to the plaintiff.
Having told the jury that, the learned trial judge did indeed just refer to the State and the State's case in the passages to which counsel referred. However, that was obviously again just being practical. The learned trial judge made two further comments in his summing up. At page 296, line 16, he said:
"Now, Mr Morton's case is that that duty of care was breached. The State and Mr Batchler say that it wasn't breached."
and then, at line 38, he said:
"First of all, I should explain where the State of Tasmania fits in. All I really need to tell you is that the State of Tasmania is responsible in law for any negligence on the part of the Fisheries Development Authority or of its employees or agents including Mr Batchler, Mr Richardson and any people on shore with responsibilities relevant to the D’Entrecasteaux."
At no stage did either counsel object to the manner in which the jury was instructed about this matter or the question to be asked of it.
The logical consequence of the jury making a finding that there was no obligation on the State to pay any damages to the plaintiff in the context of the learned trial judge's instructions was that both defendants were entitled to judgment in their favour. His Honour's order was unambiguously that judgment should be entered in favour of the defendants, not just the first defendant. The costs order, despite the submission from counsel for the plaintiff (which was that, because in the transcript of proceedings, the transcriber had put an apostrophe in the word defendants showing it as "defendant's", that meant the judge was referring to the first defendant only) was in my view equally unambiguous.
To allow the amendment as sought makes no change at all to the substance of the learned trial judge's orders. The defendants are not attacking the verdict or saying the orders of the learned trial judge were wrong. This is an obvious case of the formal judgment not reflecting the orders which were made.
Counsel for the plaintiff made no submission that there would be any injustice to her client were the amendment allowed.
There will be an order that the formal judgment taken out in this matter on 9 August 2005 be amended to give effect to the learned trial judge's order, namely that judgment be entered in favour of both defendants and the order for costs benefit both.
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