AT SYDNEY Appeal No. EA93 of 1998 File No. NC855 of 1998
IN THE MATTER OF:
LYNETTE JOY RUSSELL
Appellant/Wife
and
STEVEN CURTIS RUSSELL
Respondent/Husband
REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE: Ellis, Finn and Mushin JJ. DATE OF HEARING: 6 May, 1999 DATE OF JUDGMENT: 3 December, 1999
APPEARANCES: Mr. Maiden of Counsel instructed by O’Sullivan Saddington, Solicitors, Level 4, 23 Watt Street, Newcastle, N.S.W. 2300 appeared for the Appellant Wife.
Mr. Givney of Counsel instructed by Mullane & Lindsay, Solicitors, DX 7865, Newcastle, N.S.W. appeared for the Respondent Husband.
APPEAL HEARING SUMMARY
MATTER: RUSSELL
NUMBER: EA 93 of 1998 (NC 855 of 1998)
CORAM: Ellis, Finn and Mushin JJ.
DATE OF HEARING: 6 May 1999 DATE OF JUDGMENT: 3 December 1999
CATCHWORDS: PROPERTY SETTLEMENT – mortgage attributed to wrong property by trial Judge in making orders to give effect to judgment
This was an appeal by the wife against certain orders made by Chisholm J on 13 May 1998 and 16 October 1998 in relation to property settlement and spousal maintenance. The orders made on 16 October 1998 were purportedly made pursuant to the slip rule and had the effect of amending the orders made on 13 May.
In his property settlement judgment, the trial Judge found the net assets of the parties to be $347,943. He assessed the parties' contributions to their property as 55%:45% in the husband's favour, and then made an adjustment of 17% in the wife's favour on account of her lesser income earning capacity, her care of the children, and the husband's superannuation entitlements. In considering the award which he proposed to make to give effect to that percentage division, his Honour stated that the wife would have the former matrimonial home. His Honour ordered that the husband pay to the wife the sum of $10,486 and transfer the former matrimonial home to her. Such calculation was based on his incorrect attribution of the mortgage owed on the husband's property ($74,000) to the home.
When the matter was re-listed to address this issue, his Honour concluded that the error complained of could be corrected by the slip rule, saying "It involved no consideration of contested evidence; there were no submissions about it; there was no exercise of judgment. It was a slip; an assumption rather than a deliberate finding of fact. Had it been drawn to my attention at the time, the correction would have been made as a matter of course."
Subsequently, on 16 October, 1998, after receiving further written submissions, his Honour made orders amending his original orders to take account of the fact that the mortgage in question related to the husband's property. His Honour's…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Russell & Russell [1999] FamCA 1875
Case
[1999] FamCA 1875
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by the parties, Russell & Russell, against a property and maintenance judgment made by a trial judge. Both parties agreed that the trial judge had made an error of fact in the original judgment.
The central legal issue before the appellate court was whether it could intervene to correct the error of fact made by the trial judge. Specifically, the court considered whether the available remedies, such as those under s.79A(1A) of the Act, had been appropriately pursued, and alternatively, whether the "slip rule" or Order 31 Rule 6 of the Rules provided a basis for correction.
The court referred to the principles established in *House v. The King*, which allow appellate intervention where a judge has acted upon a wrong principle, considered irrelevant matters, mistaken the facts, or failed to consider material considerations. While acknowledging that an error of fact can be grounds for appellate review, the court noted that not every mistake of fact warrants intervention. The court also examined the "slip rule," citing *Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd*, which permits courts to correct errors in orders arising from accidental slips or omissions, and that courts possess an inherent jurisdiction to amend judgments that do not accurately reflect what was decided and intended.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
An error of fact made by a trial Judge may, in appropriate circumstances, be the subject of intervention by an appellate Court. One of the most often quoted statements in this regard is that of Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499, 504 in the following terms:“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (emphasis added) We have emphasised the phrase “if he mistakes the facts” to demonstrate the availability of the appellate process in such a situation. However, it is not every mistake of fact which calls for appellate intervention (De Winter and De Winter (1979) FLC 90-605). Given that both parties agreed that the trial Judge had made an error of fact in the property and maintenance judgment which needed to be corrected, it was open to them to consent to varying or setting aside the orders pursuant to s.79A(1A) of the Act and the making of another order under s.79 of the Act. However, the parties did not avail themselves of that process and we accordingly turn to an examination of whether the remedy is also available pursuant to what is known as the “slip rule” or alternatively, Order 31 Rule 6 of the Rules. A useful and relatively recent statement of the principles relevant to the operation of the slip rule is to be found in the judgment of Lockhart J. in the decision of the Full Court of the Federal Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 209-211. His Honour said as follows:"Traditionally, a court's power to correct errors in orders arising from accidental slips or omissions is conferred by an express rule of court (e.g. Order 35 rule 7 of the Federal Court Rules); but it exists whether provision is made by express rule or not.The slip rule is a qualification of the rule that a court may not vary a duly passed and entered order which brings a proceeding to an end because it is obviously desirable that the litigation should be brought to an end.The rule is very wide in its scope; but is not available as a matter of course: [L Shaddock Associates Pty Ltd v Parramatta City Council (1983) 151 CLR 590 at 597].Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions."