Rajavade & Rajavade (No 2)

[2023] FedCFamC1F 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rajavade & Rajavade (No 2) [2023] FedCFamC1F 39   

File numbers

PAC 2172 of 2022 and PAC 1041 of 2019

Judgment of

WILSON J

Date of judgment

7 February 2023

Catchwords

FAMILY LAW – PRACTICE & PROCEDURE – slip – order intended in the reasons of judgment was omitted by slip – order amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.   

Legislation

Family Law Act 1975 (Cth) s 13K(2)(a)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited

Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300

Bailey v Marinoff (1971) 125 CLR 529

Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224

Carter v Milson [1893] AC 638

Cole v Langford [1898] 2 QB 36

Fritz v Hobson (1880) 14 Ch D 542

Goldring v National Mutual Life Association of Australasia (1916) 22 CLR 336, McDonald v McDonald (1965) 113 CLR 529

Gould v Vaggelas (1985) 157 CLR 215

Hatton v Harris [1892] AC 547

Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521

Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642

Laurie v Lees (1881) 7 App Cas 19

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590

McDonald v McDonald (1965) 113 CLR 529

Owners of the SS Kalibia v Wilson (1910) 11 CLR 689

Rajavade & Rajavade [2023] FedCFamC1F 32

Smith v New South Wales Bar Association (1992) 176 CLR 256

Storey & Keers Pty Ltd. v Johnstone (1987) 9 NSWLR 446

Taylor v Johnson (1983) 151 CLR 422

Wright v Rebane (2021) 64 Fam LR 287

Division

Division 1 First Instance

Number of paragraphs

5

Date of last submission

17 November 2022

Date of hearing

on the papers

Place

Melbourne

Solicitor for the applicant

Huk Legal Services Pty Ltd

Solicitor for the respondent

Harish Prasad & Associates

ORDERS

PAC 2172 of 2022
PAC 1041 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR RAJAVADE

Applicant

AND:

MS RAJAVADE

Respondent

order made by:	WILSON J
DATE OF ORDER:	7 February 2023

THE COURT ORDERS THAT:

1.In substitution for the orders recorded in Rajavade & Rajavade [2023] FedCFamC1F 32, I order as follows –

1.The husband’s application dated 23 March 2022 to set aside the arbitral award under s 13K(2)(a) is dismissed.

2The husband must forthwith do all things necessary and must execute all necessary documents, including but not limited to CBA Discharge/Refinance Authority Form and authorisation forms as required by Property Exchange Australia (PEXA), to comply with orders 2.1 and 2.2 of the Arbitral Award dated 23 June 2021.

3In alternative to paragraph 2 above, a Judicial Registrar pursuant to s 106A of the Family Law Act 1975 must execute the documents, including but not limited to CBA Discharge/Refinance Authority Form and authorisation forms as required by Property Exchange Australia (PEXA), in the name of "[Mr Rajavade]" to enforce orders 2.1 and 2.2 of the arbitral award dated 23 June 2021.

24 Any application for costs must be brought by an application in a proceeding under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by noon on 17 February 2023.

35       Any affidavit in support of costs must be filed and served by noon on 24 February 2023.

46       Any affidavit in opposition to any affidavit filed in support of costs must be filed and served by noon on 3 March 2023.

57        Any submissions in relation to costs must be filed and served by noon on 10 March 2023.

68        The question of costs will be decided on the papers subsequent to 10 March 2023. 

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILSON J

1. On 3 February 2023, when handing down reasons[1] I made orders dismissing the husband’s application under s 13K(2)(a) of the Family Law Act yet , by slip, I did not pronounce orders in respect of the wife’s enforcement application.  Her application was recorded in paragraph 58 and 65 of my reasons for judgment.[2]

   [1] Patel & Patel [2023] FedCFamC1F 32.

   [2] Ibid.

2. The court (me, in this instance) possesses undoubted power at any time to vary an order where “there is an error arising in the order from an accidental slip or omission”.[3]  Various observations have been offered over the centuries about the reach of that rule.  While it does not permit reconsideration or alteration to orders already pronounced, it directs attention to what the court whose record is to be corrected did or intended to do.[4]  In the 1800s, English jurisprudence, from which the current iteration of the rule is derived, postulated the test as being whether the judge to whose attention the error was brought immediately after the erroneous order was pronounced would have unreservedly agreed to the order being corrected by reason of the slip.[5]

   [3] L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590, 594-595 and also Burrell v R (2008) 238 CLR 218 (at [21]).

   [4] Rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

   [5] Fritz v Hobson (1880) 14 Ch D 542, Laurie v Lees (1881) 7 App Cas 19, Carter v Milson [1893] AC 638, Hatton v Harris [1892] AC 547 and Cole v Langford [1898] 2 QB 36 as surveyed by me in Wright v Rebane (2021) 64 Fam LR 287.

3. In Wright v Rebane[6] I made a collection of observations about what is colloquially called the slip rule.  There I held as follows –

   39The jurisprudence in respect of the concept “accidental slip or omission” is of considerable antiquity, emanating in the late 1800s in the Royal Court of Justice.[7]  In its original conception, the test of whether a mistake or omission was accidental was applied by Lord Herchell in Hatton v Harris,[8] namely, had the matter been drawn to the court’s attention, would the court have made the correction at once.  The jurisprudence has been repeatedly applied in Australian Courts.[9]  It has been said by the High Court[10] that the purpose of the slip rule is to avoid injustice to litigants and that the jurisdiction to apply it should be exercised sparingly lest it puts at risk the public interest of the finality of litigation.  The High Court has also held[11] that a court invited to exercise the jurisdiction to make a correction under the slip rule retains a discretion to refuse to make the order sought if something has intervened rendering it inexpedient or inequitable to make the order sought.

   40An error in the judgment or order which is the product of a deliberate decision is not within the contemplation of the notion “accidental slip or omission”, as was held in Storey & Keers Pty Ltd. v Johnstone.[12]  Equally, a mistake or error will generally not be regarded as accidental if the amendment sought requires the exercise of an independent discretion.[13]

   41In a proceeding in court, an application to correct an order in reliance upon the slip rule is made on notice, as was held in Storey & Keers Pty Ltd. v Johnstone.[14]

   [6] (2021) 64 Fam LR 287.

   [7] Fritz v Hobson (1880) 14 Ch D 542, Laurie v Lees (1881) 7 App Cas 19, Nilson v Carter [1893] AC 638, Hatton v Harris [1892] AC 547 and Cole v Langford [1898] 2 QB 36.

   [8] [1982] AC 547.

   [9] Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642, Owners of the SS Kalibia v Wilson (1910) 11 CLR 689, Goldring v National Mutual Life Association of Australasia (1916) 22 CLR 336, McDonald v McDonald (1965) 113 CLR 529, Bailey v Marinoff (1971) 125 CLR 529, Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, , Taylor v Johnson (1983) 151 CLR 422, Smith v New South Wales Bar Association (1992) 176 CLR 256, Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300 and Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 to name by a few.

   [10] Gould v Vaggelas (1985) 157 CLR 215.

   [11] L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590.

   [12] (1987) 9 NSWLR 446.

   [13] Whitlock v Brew (1968) 118 CLR 445.

   [14] (1987) 9 NSWLR 446.

4. Here, I was persuaded that the wife’s application for enforcement of aspects of the arbitral award should be granted yet I omitted to record the making of orders in the form she sought. When I handed down reasons on 3 February 2023, neither party appeared and so the obvious omission was not brought to my attention which would have been done had the parties’ legal representative or one or other of them appeared on that occasion. Self-evidently, orders should have been made in accordance with paragraphs 2 and 3 of the wife’s enforcement application. The failure to make those orders was a slip within the contemplation of rule 10.13(1)(h) of the rules which ought to be corrected, the power to do so being beyond dispute.

5. For those reasons I make orders in accordance with those which are set out in the opening sheets of these reasons.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       7 February 2023