Radovanov v Bogunovic

[2004] ACTCA 19

RADOVANOV v BOGUNOVIC & ORS [2004] ACTCA 19 (21 October 2004)

PRACTICE AND PROCEDURE – judgments – slip rule – whether applicable where circumstances change.

R v Cripps, ex parte Muldoon & Ors [1984] QB 686

Hatton v Harris [1892] AC 547

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 50 & 51 - 2003
No. SC 491 and 502 of  2001

Judges:         Gray, Connolly and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            21 October 2004

IN THE SUPREME COURT OF THE  )            No. ACTCA 50 - 2003
  )           No. SC 491 of  2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVAN RADOVANOV

Appellant

AND:NICKANOR BOGUNOVIC

Firstnamed Respondent                 

AND:ARCH PRIEST ILIJA DRAGOSAVLJEVIC

Secondnamed Respondent

AND:SERBIAN ORTHODOX CHURCH ST KNEZ LAZAR INCORPORATED (LIQUIDATOR APPOINTED)

Thirdnamed Respondent

IN THE SUPREME COURT OF THE  )            No. ACTCA 51 - 2003
  )           No. SC 502 of  2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVAN RADOVANOV

Appellant

AND:LILLIAN VESIC

Firstnamed Respondent                 

AND:SERBIAN CULTURAL CLUB ST SAVA INCORPORATED

Secondnamed Respondent

ORDER

Judges:  Gray, Connolly and Marshall JJ
Date:  21 October 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

IN THE SUPREME COURT OF THE  )            No. ACTCA 50 - 2003
  )           No. SC 491 of  2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVAN RADOVANOV

Appellant

AND:NICKANOR BOGUNOVIC

Firstnamed Respondent                 

AND:ARCH PRIEST ILIJA DRAGOSAVLJEVIC

Secondnamed Respondent

AND:SERBIAN ORTHODOX CHURCH ST KNEZ LAZAR INCORPORATED (LIQUIDATOR APPOINTED)

Thirdnamed Respondent

IN THE SUPREME COURT OF THE  )            No. ACTCA 51 - 2003
  )           No. SC 502 of  2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVAN RADOVANOV

Appellant

AND:LILLIAN VESIC

Firstnamed Respondent                 

AND:SERBIAN CULTURAL CLUB ST SAVA INCORPORATED

Secondnamed Respondent

Judges:  Gray, Connolly and Marshall JJ
Date:  21 October 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. These are appeals pursuant to leave given on 13 February 2004 against an order of Crispin J dismissing notices of motion seeking to invoke Order 32 rule 14 of the Supreme Court Rules. Order 32 rule 14 provides,

Judgments and orders – accidental slips or omissions

The court may at any time, on application by a party or on its own initiative, correct a clerical mistake in a judgment or order or an error in a judgment or order arising from an accidental slip or omission.  (Commonly known as the slip rule.)

1. The short point for determination in each appeal is whether the trial judge erred in holding that he had no power to invoke the slip rule in the circumstances.

1. The crucial facts are not in dispute, nor are the circumstances in respect of which the primary judge was called upon to exercise power.  They are set out in his judgment of 11 December 2003.

1. The proceedings before his Honour arose from protracted disputes concerning the affairs of a Church and two associations which we shall refer to as the Club.  They both concern matters involving the Serbian community in Canberra.  Orders had been made appointing a receiver and the receiver had prepared a report for the court which included, inter alia, a list of undisputed creditors.  An issue before his Honour in November 2002 was whether an injunction prohibiting the appellant from dealing with certain monies should be lifted.  His Honour formed the view that the receiver would be in a position to restructure the affairs of the Club to allow it to trade and that the injunction could be lifted.

1. It is implicit in his Honour’s decision that the receiver would pay undisputed debts including a debt owed to the appellant.  Thereafter, funds were placed into the Club.  The receiver paid certain debts but not the debt to the appellant.  The receivership came to an end and the affairs of the Club came under the control of a new committee of management.  That committee provided funds to the receiver provided that the appellant not receive any funds from the receiver.  The appellant, by notice of motion dated 14 February 2003, sought an order that his Honour correct his orders to expressly provide that the receiver pay the appellant the amount of the undisputed debt.  The matter came before his Honour on 12 November 2003.  His Honour said at [33] of his Reasons for Judgment of 11 December 2003 that,

Whatever understanding the parties may have had, the position has now been reached in which the Club has been effectively resuscitated, a new committee of management has been formed and those people have, thus far, effectively evaded payment of that portion of the debts claimed by Mr Radovanov that the Receiver had accepted could not be disputed.

1. The primary judge described the scope of the slip rule by referring to the test set down by Donaldson MR in R v Cripps, ex parte Muldoon & Ors [1984] QB 686. We would agree with this description as to the breadth of the rule. One test of whether a claimed mistake should be corrected pursuant to this rule has been said to be whether, had it been drawn to the attention of the court at the time, the amendment would have been made as a matter of course (see Hatton v Harris [1892] AC 547 at 558). His Honour acknowledged that if an order in the terms sought pursuant to the slip rule had been sought at the time, he would have made such an order. Mr Niven, counsel for the appellant, submitted that this establishes that the slip rule should have been invoked.

1. The slip rule is not able to be invoked in all circumstances.  A clear instance is where circumstances have changed so as to make the achievement of the intention of the original judgment impossible without interfering with the rights of third parties whose interests may have been affected in the interim.  This aspect was referred to by the House of Lords in Hatton v Harris (supra). Lord Herschell said at 558,

There is one observation which I ought to make, and it is this, that there may possibly be cases in which an application to correct an error of this description would be too late.  The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to shew that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made.

1. Lord Watson, at 560, said,

When an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.

1. These were matters which the primary judge was entitled to have regard to in determining whether or not the slip rule was applicable in this case.  There is nothing in the way in which he approached this matter or in his reasons to indicate that he has erred.  His Honour specifically said,

It is also impossible to recreate a situation in which the proponents of the scheme would have been free to decline to make such a payment and simply permit the court to dispose of the applications before it in whatever manner would then have seemed appropriate.

Nor can I accept the argument that I am free to exercise a discretion based only upon balancing the considerations that favour making an order for payment to Mr Radovanov against any risk of hardship to third parties.  Whilst I do not doubt that discretionary considerations may arise on an application of this kind, the first question that must be answered is whether the relief sought can be properly accommodated within the slip rule upon which the applicant relies.  In the present case, I have somewhat reluctantly concluded that the scope of that rule would not extend to making an order that the Club which is now conducted, however incompetently, by a new committee of management, pay Mr Radovanov a sum of money on the ground that, although a liability has not otherwise been established, the Club’s former receiver had accepted that at least that sum was due to him.

Accordingly, I have concluded that I am obliged to dismiss the application and that no issue of discretion arises.

1. With respect to his Honour, we agree.  In our view, the appeal should be dismissed with costs.

   I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:     21 October 2004

Counsel for the Appellant:  Mr G Niven
Solicitor for the Appellant:  Romano Satsia Kordis Legal
Counsel for the Firstnamed Respondent:           Mr C Erskine
Solicitor for the Firstnamed Respondent:          Meyer Clapham
Counsel for the Secondnamed Respondent:      Mr C Erskine
Solicitor for the Secondnamed Respondent:      Meyer Clapham
Counsel for the Thirdnamed Respondent:         Mr G Blank
Solicitor for the Thirdnamed Respondent:         Bradley Allen
Counsel for the Appellant:  Mr G Niven
Solicitor for the Appellant:  Romano Satsia Kordis Legal
Counsel for the Firstnamed Respondent:           Mr C Erskine
Solicitor for the Firstnamed Respondent:          Meyer Clapham
Counsel for the Secondnamed Respondent:      Mr I Nicol
Solicitor for the Secondnamed Respondent:      Williams Love & Nicol
Date of hearing:  21 October 2004
Date of judgment:  21 October 2004