National Australia Bank v Dixon (No 2)

[2004] TASSC 155

[2004] TASSC 155

CITATION:              National Australia Bank v Dixon (No 2) [2004] TASSC 155

PARTIES:  NATIONAL AUSTRALIA BANK
  v
  DIXON, Peter Alliston

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  897/1999
DELIVERED ON:  22 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  10 December 2004
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Judgments and orders – Amending, varying and setting aside – Correction under slip rule – Consequential matter not averted to by counsel at hearing.

Supreme Court Rules 2000 (Tas), r435.
Brew v Whitlock (No 3) [1968] VR 504; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Smith v New South Wales Bar Association (1992) 176 CLR 256; Gould v Vaggelas (1985) 62 ALR 527, considered.
In re Hogarth's Estate [1962] Tas SR 17; Australian and New Zealand Banking Group Ltd v Luck A26/1995; Clarke v Renison Limited (No 2) B50/1993; Four Oaks Enterprises Pty Ltd v Clark (2003) 12 Tas R 125, followed.
Aust Dig Procedure [487]

REPRESENTATION:

Counsel:
             Plaintiff:  A G R Marshall
             Respondent:  H S Murray
Solicitors:
             Plaintiff:  Finlay Watchorn
             Respondent:  H S Murray

Judgment Number:  [2004] TASSC 155
Number of Paragraphs:  15

Serial No 155/2004
File No 897/1999

NATIONAL AUSTRALIA BANK v PETER ALLISTON DIXON

REASONS FOR JUDGMENT  SLICER J

22 December 2004

1. Following publication of reasons for judgment in this matter on 3 July 2003 ([2003] TASSC 57]), and the formal entry of judgment on 13 October 2003, the plaintiff applied for its correction on 17 August 2004. The application made pursuant to the Supreme Court Rules 2000, r435, was:

"… for the judgment to be corrected so as to specify that it carries interest until payment, at the rate allowed up to the date of judgment."

1. The rate allowed up to the date of judgment was that in accordance with the loan agreement, namely 13.719 per cent.  The original application was for summary judgment determined on the pleadings as permitted by r356, consistent with the approach taken by Cox J in Deputy Commissioner of Taxation v Hobart Tug Company A21/1986.

1. The affidavit filed in support of the application relevantly states:

"2   On 3^rd June 2003 I appeared before this Honourable Court to take the judgment of the Court in this action.  Leave was granted at that time for the matter to be relisted for costs to be determined.

3    On 1^st September 2003 I again appeared before the court when an order was made that the defendant pay the plaintiff's taxed costs of the action.

4    On neither of the two said occasions did I ask the Court to make an order allowing interest on the judgment at a rate different from the statutory rate.

…

6    The Amended Statement of Claim in this action included a plea, in accordance with my instructions, for interest until the date of payment, calculated at the contractual rate under the Loan Agreement entered between the parties.

7    The failure on 3^rd June 2003 and 1^st September 2003, to seek an order that the judgment herein carry interest until payment, at the rate allowed up the the [sic] date of judgment, was caused by my oversight."

1. Rule 435 provides:

"435 ¾ Any clerical mistake or omission in a judgment or order may at any time be corrected by ¾  

(a)the Court or a judge, on its or his or her own motion; or

(b)on application or consent memorandum to the registrar."

1. The Court does not accept the respondent's contention that the word "clerical" governs both the words "error" and "omission".  The rule is not confined to an arithmetical, typographic or grammatical error.  It extends to accidental slips or omissions, both by officers of the Court and by the parties.  In Re Inchcape (Earl of), In re Craigmyle v Inchcape [1942] Ch 394, the English equivalent rule was held to permit correction of a judgment which had failed to take into account costs incurred before the issue of a summons seeking the determination of the domicile of a testator. Counsel had accidentally omitted to seek the extension of the court's order to include such work. Morton J, in ordering the amendment, said at 399:

"Thus, I have had cited to me cases where the omissions arose by a slip on the part of counsel, on the part of a solicitor, and on the part of a party to the action.  Having regard to those authorities, I am satisfied that I can make the order asked for under the provisions of O xxviii, r ii.  It is true that when the case was before me, I made the order which I intended to make in regard to the costs for which I was asked to make provision, but there was an accidental omission on the part of counsel, and I did not make the order which I would have made if that accidental omission had not occurred.  I am glad to find it possible to give this construction to the rule, as I think it is a rule of great convenience, and in the present case real hardship would have resulted if I had not felt able to make the order asked for on this motion."

However it was the timing and terms of the order, rather than a matter of substance not previously raised, which permitted the course adopted by the court.

1. In Thynne v Thynne [1955] P 273, a similar rule was held to permit an alteration to a recital of the date of marriage set out in a decree of dissolution of marriage since it was the order of dissolution itself which comprised the judgment of the court, not its preamble.

1. There may be instances where an appellate court can amend its order following a successful appeal where a matter was addressed and dealt with by the primary court, but overlooked during the appeal process (L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Gould v Vaggelas (1985) 62 ALR 527) but such an amendment reflects the original determination and not a matter freshly raised. In the latter case, the Full Court of the High Court stated, at 530:

"The jurisdiction of the Court to entertain the motion is not challenged by the respondents.  Recent decisions of this Court provide illustrations of the injustice that may be caused to litigants by the inadvertence of counsel and the willingness of the Court in appropriate circumstances to grant a remedy: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590, The Commonwealth v McCormack (1984) 58 ALJR 513; 55 ALR 185 (cf also Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300; (1973) 1 All ER 569). Nevertheless, the jurisdiction is one to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in finality of litigation."

1. The distinction was emphasised by the Full Court of the Supreme Court of Victoria in Brew v Whitlock (No 3) [1968] VR 504, a decision considered by the High Court in Shaddock, distinguished, but not overruled, although the High Court preferred a less narrow scope for the operation of the rule consistent with the earlier English decision in Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300; [1973] 1 All ER 569. In Brew Winneke CJ, Little and Gowans JJ, stated in their joint reasons for judgment, at 506 – 507:

"In the determination of the appeal the Full Court was empowered under O LVIII, r4, of the Rules of the Supreme Court 'to give any judgment and make any order which ought to have been made, and to make such further order as the case may require'. This, in our opinion, meant, in relation to the award of interest under s78, that the Full Court was empowered to do upon application to it what the trial judge at the hearing was empowered to do upon application to him, but it does not mean that the Full Court could do without an application what the judge at the hearing could not do without an application. As no application for interest was, in fact, made at the time of the disposal of the appeal, and as neither the claim in the writ nor the notice of appeal can be treated as such an application or as taking its place, the Full Court was not called upon to make an award of interest, and, indeed, it was without the power under s78 to award interest in the absence of such an application. Nor was the position remedied at any time up to the perfecting of the judgment on appeal. At no time when the Court was determining the appeal was any application before it. It is now too late for any application to be made which would satisfy the requirements of s78. Effect cannot be given to the present application as a substantive application for an award of interest.

It should be said, however, that it was not in this way that the application was put. It was founded upon O XXVIII, r11. But one consequence that appears from the analysis that has been made is that there was no 'error' on the part of the Court in not making provision for interest in the order disposing of the appeal. This has an effect upon the present motion regarded as made under O XXVIII, r11, for that rule requires, in our opinion, for present purposes (1) a 'slip or omission'; (2) that it be 'accidental'; (3) that there be an 'error' in the judgment arising from the accidental slip or omission, and (4) that it be an error capable of being 'corrected' under the rule.

Here the only slip or omission, if there be any, consisted of one on the part of counsel. The only evidence is that he made no application for an award of interest. There is nothing to suggest that he intended to make an application but forgot. Certainly there was no slip or omission on the part of the Court unless the Court was bound to make an award without being asked and that, in our opinion, it was not. Whether the circumstances relied upon are sufficient to constitute a 'slip or omission' within the meaning of the rule may be put aside. So also may be the question as to whether the slip or omission, if there be one, can be described as 'accidental' merely because it was not deliberate. But the conclusive factors in our view are the last two. There was no 'error' in the Full Court's judgment. It had no application before it and it did not intend to deal with the matter at all. Moreover, there was no error capable of being the subject of 'correction'. In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right; not only what was omitted, but what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion, not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run."

1. The High Court has extended the width of the jurisdiction to recall a judgment but maintained that it must be sparingly exercised (Smith v New South Wales Bar Association (1992) 176 CLR 256). If a judgment is erroneous, but nonetheless correctly expresses the intention of the court, it may be set aside or varied only on appeal (DJL v The Central Authority (2000) 201 CLR 226).

1. In this jurisdiction, the Court has considered the extent of the "slip rule" on a number of occasions.  In In re Hogarth's Estate [1962] Tas SR 17, Burbury CJ stated the power to amend a judgment to be provided both through the rule and the Court's inherent jurisdiction which allowed the Court to examine the published reasons to determine the general intention of the Court to see whether the order:

"… either does not properly express the intention of the court or it erroneously omits to deal with the question of the incidence of estate duty in the way in which the court would have unquestionably dealt with it had the court's attention been drawn to it by counsel".

1. In Clarke v Renison Limited (No 2) B50/1993, Cox J preferred the less restricted approach to the rule, although the variation of the terms of the judgment was a reflection of his omission to apply an appropriate calculation of apportionment and discount in an award of damages following trial.  In Four Oaks Enterprises Pty Ltd v Clark (2003) 12 Tas R 125, Blow J had reason to amend an order to provide for certification of counsel, but the nature of the case was one for which such an order would follow as a matter of course, irrespective of outcome and, in any event, he was dealing with a consent order which had, through inadvertence, failed to include certification. Zeeman J in Australian and New Zealand Banking Group Ltd v Luck A26/1995, also preferred a more liberal approach to the import of the rule, stating, at 3 – 4:

"The authority of the cases decided in this Court leads me to the conclusion that the slip rule is of wider ambit than contended for by the defendant and that the 'accidental slip or omission' referred to in the rule is not limited to a slip or omission which is made by a judge or an officer of the Court, but includes one made by a party.  Once that construction is adopted there is no reason to distinguish between a judgment directed to be entered by a judge or a judgment entered in default.  In Armitage v Parsons (1908) 2 KB 410 the Court of Appeal held that a default judgment entered in circumstances similar to the present could be amended pursuant to the slip rule. That case was followed in Building Guarantee and Discount Co Ltd  v Dolejsi (supra) and its correctness appears to have been assumed in City Mutual Life Assurance Society Ltd v Giannarelli (1977) VR 463. I consider that I should follow Armitage v Parsons (supra). The evidence clearly establishes that there was an accidental slip in that there was a minor miscalculation of interest by the plaintiff's solicitors which resulted in the judgment being entered for an incorrect sum.  The slip rule authorises me to amend the judgment."

1. However, he was being asked to amend the terms of a default judgment by substituting the sum of $160,231.29 for that of "$160,273.79", an amendment sought to meet a claim by the defendant that the statement of claim "did not authorise the entry of judgment in the terms of that actually entered".

1. Those judgments suggest that the position in this jurisdiction is that omission by a party can constitute a basis for amendment and that the rule is not as strictly construed as the comparable rule was in Brew.  But the matter generally ought to have been raised at first instance or in the course of the hearing.  It is the amendment to the extent and operation of the order made which governs the rule, rather than the addition of a new matter previously overlooked.  In some cases the terms of the order omitted must unquestionably have been dealt with had the matter been articulated.  In the circumstances of this case, there is a clear dichotomy between an award of interest on the judgment as determined by statute or rules of court.

1. Here the distinction between varying approaches is of little import.  The matter was not advanced during the hearing of the summary judgment application and I did not turn my mind to the question.  I cannot now state what I would have determined had the matter been argued (Arnett v Holloway [1960] VR 22). My inclination is to allow for interest on judgment at the prescribed rate, rather than to continue a rate fixed by the market at an earlier time. Thus, if interest rates have significantly reduced, it might not be apposite to allow a rate out of step with the rate prevailing at the time of judgment. The converse has equal application. I now have no idea of the rates prevailing at the time of judgment and no inclination to find out. Thus, on either approach there was no omission in the sense adopted by either the Victorian court or the High Court. An order awarding interest at the previous commercial rate did not follow as a matter of course or by necessary implication. Its making would have involved an exercise of discretion, subject to a right of appeal, but no discretion was sought or exercised.

1. The application is dismissed.