S v D
[2014] WASCA 224 (S2)
•12/02/16
S -v- D [2014] WASCA 224 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 224 (S2) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:150/2012 | 21 JANUARY 2016 | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 12/02/16 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | S D |
Catchwords: | Practice and procedure Application to correct an alleged mistake after disposition of appeal and entry of final orders Purported application under slip rule Whether error as alleged Discretionary considerations Delay |
Legislation: | Rules of the Supreme Court 1971 (WA), O 21 r 10 Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 35 |
Case References: | Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141 Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (No 2) [2011] WASCA 232; (2011) 42 WAR 224 Bailey v Marinoff (1971) 125 CLR 529 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52 D and S [2012] FCWAM 79 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215 L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S) Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 S v D [2014] WASCA 224 S v D [2015] HCASL 66 Stambulich v Ekamper [No 4] [2008] WASCA 189 Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 The State of Western Australia v Wallam [2008] WASCA 117 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : S -v- D [2014] WASCA 224 (S2) CORAM : BUSS JA
- NEWNES JA
MURPHY JA
- Appellant
AND
D
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : DUNCANSON M
Citation : D and S [2012] FCWAM 79
File No : PTW 1285 of 2010
Catchwords:
Practice and procedure - Application to correct an alleged mistake after disposition of appeal and entry of final orders - Purported application under slip rule - Whether error as alleged - Discretionary considerations - Delay
Legislation:
Rules of the Supreme Court 1971 (WA), O 21 r 10
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 35
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms E Brownlie
Solicitors:
Appellant : In person
Respondent : Leach Legal
Case(s) referred to in judgment(s):
Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141
Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell (No 2) [2011] WASCA 232; (2011) 42 WAR 224
Bailey v Marinoff (1971) 125 CLR 529
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52
D and S [2012] FCWAM 79
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253
S v D [2014] WASCA 224
S v D [2015] HCASL 66
Stambulich v Ekamper [No 4] [2008] WASCA 189
Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17
The State of Western Australia v Wallam [2008] WASCA 117 (S)
1 REASONS OF THE COURT: This matter came to a hearing by way of a registrar's notice to attend dated 18 November 2015 to consider the appellant's application dated 4 August 2015 (the appellant's application). The appellant's application is in the following terms:
1. That a motion dealing with the Judgment in case CACV150/2012 entered on the 1st December 2014 be very [sic] to review it Judgment and to add a supplementary reason for Judgment dealing with the slip rule and General power to set aside judgment or order UNIFORM CIVIL PROCEDURE RULES 2005 - REG 36.15 / REG 36.17.
2. The respondent be allowed 28 days to file a response.
3. The Judgment of the Supreme Court of Western Australia be set aside and a supplementary Judgment be pronounced.
4. The decision of the Family Court of Western Australia be Quashed.
5. The Family Court be ordered and directed to retrial that part of the trial dealing with the affidavit of the respondent[']s Mother[']s affidavit according to law. International Covenant on Civil and Political Rights Article 14 (3)(b).
2 The appellant appealed to this court from a decision of family law Magistrate Duncanson (as her Honour then was) delivered on 4 December 2012 concerning a property settlement in relation to a de facto relationship: D and S1 (primary reasons). On 1 December 2014, this court dismissed the appeal: S v D2 (Court of Appeal reasons). Subsequently, the appellant applied for special leave to appeal to the High Court of Australia. On 6 May 2015, that application was dismissed: S v D.3
3 In substance, following the dismissal of the appellant's application for special leave to appeal to the High Court, the appellant applies for orders under the slip rule to correct an alleged mistake in the Court of Appeal reasons.
4 Order 21 r 10 of the Rules of the Supreme Court 1971 (WA) (RSC) provides:
Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal. (emphasis added)
- See also r 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).
5 The appellant's application should be dismissed for a number of reasons, not the least of which is that the appellant has not established that there was any error in the judgment of this court which would entitle him to the orders he now seeks.
Background
The primary proceedings
6 The appellant and the respondent were in a de facto relationship for just under four years. Upon the break-up of their relationship, they were unable to agree as to the division of their property. Proceedings in the Magistrates Court were consequently commenced at some time in 2010 in PTW 1285 of 2010.
7 A significant aspect of the appellant's claim in the primary proceedings concerned the respondent having a joint interest in a property with her mother and her sister (the property).4
8 Prior to trial, on 26 June 2012, the respondent's mother swore an affidavit in the primary proceedings (the respondent's mother's affidavit).5 The respondent's mother's affidavit was particularly significant to the appellant's claim in respect of the property.6
9 There was no evidence in the Green Book in the appeal as to when the respondent's mother's affidavit was served.
10 On 2 - 4 July 2012, the matter was heard in the Magistrates Court.7 Excerpts of the transcript of the primary proceedings on 3 - 4 July 2012 were included in the Green Book in the appeal. The excerpts disclosed, in relation to the respondent's mother's affidavit and the cross-examination of the respondent's mother, that:8
• the respondent's mother was called and sworn at around 2.51 pm on 3 July 2012;
• the respondent's mother testified on oath as to the truth of the contents of her affidavit sworn on 26 June 2012;
• the appellant asked the respondent's mother four questions in cross-examination before stating he had no more questions to ask;
• Magistrate Duncanson emphasised the importance of the cross-examination of the respondent's mother in relation to one of the properties, and asked the appellant whether he had stopped the cross-examination because he had found it too difficult;
• the appellant indicated he did not want to put the respondent's mother under any further stress;
• the respondent's mother indicated several times that she would answer any question put to her;
• the appellant asked for a short adjournment, which was granted; and
• after the adjournment, the appellant maintained that he had no further questions to ask the respondent's mother.
11 On 4 December 2012, Magistrate Duncanson handed down judgment in PTW 1285 of 2010, adjusting the parties' interests in the assets of the relationship to the extent that the appellant was to receive 40% of the assets and the respondent 60% of the assets.9 Magistrate Duncanson did not refer to any objections made by the appellant in regard to the respondent's mother's affidavit.
The appeal
12 On 19 December 2012, the appellant filed an appeal notice challenging the primary decision.
13 Ground 2 of the appellant's appeal alleged:10
2. The Primary Court had error in law due to the fact that [the respondent's mother] was unable to be cross examined at trial due to her emotional state. The primary court was obligated to adjourn the trial until the witness [the respondent's mother] had control of her emotions. Evidence Act 1906 (WA) s 106R. Because of this error to testify. [sic] The Applicant was denied natural justice.
14 The appellant's written submissions, filed as part of the appellant's case, in relation to this ground included:11
11. The Primary Court had error in law due to the fact that [the respondent's mother] was unable to be cross examined at trial due to her emotional state. [The mother's affidavit] had been submitted into court on the day of the trial only allowing one night to inspect and come up with questions dealing with the affidavit.
12. The court had told all parties concerned to have affidavits filed 14 days prior to trial. [The respondent's mother] was incapacitated to appropriately give evidence about this affidavit due to her emotional outbreak. Please see the affidavit evidence of [the respondent] dated 09/02/2012 to support the emotion capacity of [the respondent's mother] dealing with her Anxiety/Panic Attacks see Page 03 Paragraph 02 of [the respondent's] Affidavit.
15 At the oral hearing of the appeal, the appellant commenced his submissions with respect to ground 2 as follows:12
Appellant: Now, for my second submission, your Honour, I believe - this is a bit of a difficult one. Your Honour, when we were at court - the trial started on - actually 2 July. I know the transcripts go from the 3rd but the very first court date - the very first trial date was on 2 July. Now, the reason why we didn't actually start from 2 July onwards is because there were a few matters that had to be taken care of before the trial could actually proceed.
What happened was on that particular day - I've got a few little notes here. It's unfortunate that I didn't actually have this put into - or had it - I've got it printed out at home. It's a transcript but I didn't actually insert it into the Green Books. That's my fault obviously. But on 2 July at approximately 3.07 on the transcript recording, counsel for [the respondent] handed up to court an affidavit of [the respondent's mother]. (emphasis added)
16 The following exchange then occurred:13
APPELLANT: Now, that particular document - there was an actual court order that was put into place for that to have been handed into court 14 days prior to trial. Now, that actually didn't occur. On 2 July I actually objected to the affidavit being submitted due to the short period of time.
If I had have known this affidavit was going to be in court I may have actually asked the court for an extension of - for an extension of time or to - for the callover to be put back a little bit later because, really, when that - that affidavit came through and with the contents of it, what I would have liked to have done if I had the time, I would have actually subpoenaed bank statements to perhaps show that these payments were coming directly from [the respondent's mother]. Maybe that [the respondent's mother] was paying the bills for the property. Maybe the - basically different aspects to deal with when someone purchases the property, I would have maybe had the opportunity to go through all that.
BUSS JA: Well, this seems to relate to a different matter than your submission (2) - - -
APPELLANT: Yes.
BUSS JA: - - - which I think involves an allegation by you that you were denied procedural fairness because you were unable properly to examine [the respondent's mother] - - -
APPELLANT: Yes, your Honour.
BUSS JA: - - - as a result of her emotional condition.
APPELLANT: Yes.
BUSS JA: Which I think is the point that you raise.
APPELLANT: Yes.
BUSS JA: This seems to go to some different point - - -
APPELLANT: Okay. I - - -
BUSS JA: - - - that isn't in the grounds of appeal. Am I correct in understanding that? It seems to me that your point is that there was a miscarriage of justice in essence because your cross-examination of [the respondent mother] was truncated or derailed because of her emotional state.
APPELLANT: Yes, your Honour. If your Honours have the opportunity to actually listen to the real recording, you will hear certain people in the background. For example, the courtroom security asking [the respondent's mother] if she's - if she's all right because as [the respondent's mother] walked in, she was - she was actually crying. I couldn't understand why …
BUSS JA: Yes. Yes.
APPELLANT: The - not the first paragraph but the second one where it says:
'My mother was suffering from panic attacks.'
And a little bit further down it does - [the respondent] goes on to say:
'We hoped this would reduce her panic attacks.'
Now, that clearly shows that perhaps maybe something may - could have been done to help [the respondent's mother] in the courtroom.
Now, unfortunately for myself, when I see a person in distress it actually physically affects myself as well, so if I see someone emotionally upset, I will - I will start to feel that myself for some reason. I don't know why. That's - that's my - now, due to the fact that [the respondent's mother] was also in that state and also I was also getting to that same point that I was starting to get upset because [the respondent's mother] was upset, it was quite impossible to - to question [the respondent's mother] at that time. Maybe even a - a - a recess, like, to adjourn [the respondent's mother]'s questioning until the next day would have been more appropriate maybe.
BUSS JA: So your point is that although the Magistrate did adjourn the proceedings, the adjournment wasn't of a sufficient length?
APPELLANT: Yes, your Honour.
BUSS JA: And the end result of that is that [the respondent's mother] was unable, in your view, to be properly cross-examined and her distress produced distress in you which affected your ability to cross-examine. Is that it in a nutshell?
APPELLANT: Yes, your Honour. That's basically it in a nutshell.
BUSS JA: All right.
APPELLANT: And I - I believe it all comes back, the reason why [the respondent's mother] was so stressed-out is - is because the reason that she does unfortunately suffer from some anxiety and maybe some anxiety attacks, and I believe that that was the main reason why [the respondent's mother] was in such a state at that time.
BUSS JA: All right.
APPELLANT: And - and - and also if we - if we can maybe turn to page 177 of the Green Book. That will be volume 2, please. And if we - I think it's - it's nearly all the way to the bottom of the page. It's the - one paragraph up from the bottom, and even [L, the respondent's sister] in her affidavit has stated that:
'Mum was also not coping well. She'd go to have panic and anxiety attacks.'
I truly believe that that - that's - that is the reason why [the respondent's mother] wasn't - why I could cross-examine her - due to that fact.
The Court of Appeal's reasons
17 On 1 December 2014 this court dismissed the appeal, including ground 2.14 In the Court of Appeal reasons, the court made the following findings with respect to ground 2 of the appeal:15
This ground alleges that the magistrate erred by not allowing the respondent's mother to be cross-examined. The appellant submits that the magistrate was 'obligated to adjourn the trial or make orders until [the respondent's mother] had control over her emotions or to make orders for [the respondent's mother] to be able to give appropriate evidence at trial on another day' or that the magistrate should have organised arrangements whereby the respondent's mother had a person near her while giving evidence to provide her with support or that she have a communicator relaying her answers to the court. To that end, the appellant referred to s 106R of the Evidence Act 1906 (WA) which deals with 'special witnesses' for whom such arrangements can be made. The appellant contends that this error resulted in a denial of natural justice, as cross-examining the respondent's mother would have made a 'significant contribution' to the facts at trial.
The respondent submits that the appellant had the opportunity to cross-examine the respondent's mother, however declined to do so and that, in essence, the appellant's submissions in support of this ground are at 'entire odds with the events in the [primary] court as recorded in the transcript'.
The magistrate said in this regard:
'Both parties and their witnesses were emotional during the proceedings. [The appellant] was unable to cross-examine [the respondent's mother]. She was a very nervous lady and obviously apprehensive about giving evidence. [The appellant] broke down when cross-examining her and was unable to continue. After a short break I invited him to do so but he said that he had no questions for [the respondent's mother]. Given the importance of her involvement particularly with respect to the [Canning Vale property] I informed [the appellant] of the possible consequences if he did not cross-examine her about her evidence regarding [the respondent's] interest in that property. He declined to do so [38].'
The relevant transcript of the trial (GB 15 - 16) supports the magistrate's reasons at [38] and confirms the respondent's submissions.
18 In relation to, inter alia, the contention raised at the hearing by the appellant concerning the late admission of the respondent's mother's affidavit, the court said:16
At the hearing of the appeal the appellant made two further submissions. One was to the effect that the affidavit by the respondent's mother was served late and he was unable to address it properly. The second was that while he asked for, and obtained, a short adjournment before the respondent's mother completed her evidence by reason of the appellant's concern that she was too distressed to proceed, the adjournment was too short. As to the first submission, there is no evidence that the appellant objected to the mother's evidence on the ground of lateness. As to the second submission, the appellant did not communicate to the magistrate that he considered that the adjournment was too short at the time. Neither submission identifies any error by the magistrate. (emphasis added)
The evidence in the appellant's application
19 Each party filed two affidavits in relation to the appellant's application. The appellant's affidavits were sworn 3 July 2015 and 14 October 2015.
20 In his affidavit sworn 3 July 2015, the appellant deposed:
2. This Motion that is before the Supreme Court deals with a Slip or Omission that is incorrect and I'm seeking relief from the court to correct that mistake and to vary the orders.
21 The appellant in his affidavit of 3 July 2015 identified the 'Slip' that needed to be corrected as the italicised finding referred to in [18] above, ie, the finding that there was no evidence before the court to show that the appellant had objected to the respondent's mother's evidence on the ground of lateness.
22 Also in his affidavit of 3 July 2015, the appellant annexed extracts from the transcript of the trial in the primary court dated 2 July 2015 which had not been included in the Green Book at the hearing of the appeal.
23 The respondent's affidavits were sworn on 11 September 2015 and 25 September 2015. In her first affidavit, the respondent deposed, in effect, that she had given to the appellant a copy of her mother's affidavit at the Family Court on 26 June 2012. In her affidavit of 25 September 2015, the respondent effectively resiled from that evidence and essentially stated that having gone through her 'old emails', she had discovered an email dated 28 June 2012 which annexed an unsworn copy of her mother's affidavit, and said that the email with its annexure was sent to the appellant on 28 June 2012.
24 In his affidavit sworn 14 October 2015, the appellant stated that he has never seen or received a sworn version of the respondent's mother's affidavit;17 that the respondent's mother's affidavit was never filed;18 and that he did not have a personal computer at this time as his computer had 'burnt out its mother board due to dust', leaving him in a position of having to rely on his brother's computer to prepare for the primary proceedings.19
25 The transcript of the hearing on 2 July 2012, part of which was annexed to the appellant's affidavit of 3 July 2015, and part of which was annexed to the appellant's written submissions, indicated the following.20
26 On 2 July 2012, the trial commenced. At some point on the first day (at what appears to be around 2.27 pm), the respondent's counsel sought leave to rely on the respondent's mother's affidavit. It appears from the transcript that the affidavit was already in the court file (ts 23, line 5). The following exchange occurred between Magistrate Duncanson and the appellant:
Her Honour: … [A]re you opposed to the applicant relying on this document?
[APPELLANT]: Your Honour … I'm not opposed to the affidavit itself being submitted to court. The only thing I am opposed to is the short notice of this affidavit being---
Her Honour: Yes.
[APPELLANT]: --- submitted to the court. Like, it really- I don't have enough time to go through that and - and figure out what type of questioning I will be ---
Her Honour: Okay.
[APPELLANT]: --- obtaining or ---
Her Honour: [B]ecause you're self-represented I can explain to you how I would normally deal with this. I'm minded to accept it for filing and allow the [applicant] to rely on it because it's just that it seems to me that it will give me evidence which I may well require in trying to assess contributions, particularly because of the involvement of the applicant's mother in the property that they owned.
[APPELLANT]: Yes.
…
Her Honour: Now, she will give evidence because you would require her for cross-examination, would you?
[APPELLANT]: Yes, your Honour.
Her Honour: … I also understand that you only know as of now that the affidavit will be allowed in, so what would you like to do? You have options, [the appellant]. You don't I presume, want to delay the trial, do you?
[APPELLANT]: No.
…
Her Honour: The only alternative I can think of, if you would prefer, is that I can stop the proceedings now and give you overnight to prepare your case, now that you know what that this is part of it, and that we could start tomorrow morning at 10 o'clock, but give you … this afternoon and this evening to prepare ---
[APPELLANT]: Right.
Her Honour: - - - given that there is now this additional evidence coming in. Would that help you?
[APPELLANT]: I'm not too sure. Basically, when I was going through [the respondent's] affidavit - that took me close to two and half weeks to- to come up with questions just from that affidavit alone. Her sister['s]… affidavit, that took me about a week and a half.
Her Honour: how many - have you got a lot of questions?
[APPELLANT]: I did have but a lot of them have - are ---
Her Honour: About the children.
[APPELLANT]: Yes, about the children and a lot of them I - are not basically going to be submissible because, like, we don't need to worry about that any more now.
Her Honour: That's right.
[APPELLANT]: I haven't - I haven't even attempted to read it yet.
Her Honour: I'm more than happy to adjourn the proceedings until tomorrow at 10 o'clock if you want to ---
[APPELLANT]: To go through it.
Her Honour: - - - consider this additional evidence, bearing in mind that the applicant will go first, so you - - -
[APPELLANT]: Yes.
Her Honour:- - - would have her first, and then I don't know what order she will call her witnesses.
[APPELLANT]: The other problem I have is I believe [the respondent] will be opposing some of my witnesses. I'm not too sure why.
Her Honour: I will just find out if we can see what we can sort out at the moment.
[APPELLANT]: Yes.
Her Honour: But - all right. To the extent that I've had to make the decision I would be minded to allow this evidence in.
[APPELLANT]: Yes.
Her Honour: Because it's important that I have all relevant evidence.
[APPELLANT]: Yes.
Her Honour: But I'm certainly prepared to not start till tomorrow morning to give you an opportunity to review your case if you would like to.
The parties' arguments
27 The appellant filed written submissions on 24 August 2015 and 16 October 2015. The respondent filed written submissions dated, relevantly, 24 September 2015.
The appellant's submissions
28 The appellant submits, in effect, that:21
• the issue concerning his objection to the late admission of the respondent's mother's affidavit was raised in pars 11 and 12 of his written submissions;
• the oral submissions made by the appellant at the hearing in the appeal related to pars 11 and 12 of his written submissions;
• he informed the court that the evidence of his objection to the late admission of the respondent's mother's affidavit was in the transcript of the trial, and that he told the court the time in the recording at which the objection could be found; and
• due to funding and time, the appellant failed to include a copy of the whole transcript, or the relevant excerpts of the objections to the respondent's mother's affidavit, in the Green Book.
29 The appellant's submissions also canvassed alleged errors by the primary court in dealing with the respondent's mother's affidavit. The appellant alleged, in effect, that the primary court made three errors in this regard.
30 First, the appellant alleges that the appellant did not have adequate time to prepare for a defence. The appellant submits that the respondent's mother's affidavit was 'surprise evidence'; that the affidavit had not been part of any 'evidence before the trial or part of any disclosure prior to trial'; that the consideration of the affidavit was contrary to the parties being told to have all evidence into court prior to trial, and to supply the other side with any evidence that was to be relayed at trial 14 days prior to trial; that the respondent's counsel deliberately 'ambushed' the appellant by admitting the affidavit into court on the day of the trial, being a tactic to 'bamboozle' a self-represented litigant; that it took the appellant sometime during the hearing to obtain a full copy of the affidavit; and that the appellant told the magistrate that he opposed the late filing of the affidavit.22 The appellant further submits that in consequence of the inadequate time to 'prepare both physically and emotionally' to deal with the affidavit led to 'inadequate questioning', or cross-examination, of the respondent.23
31 The appellant also disputes that his preparation to cross-examine the respondent was 'transferable' to the respondent's mother because the respondent's claim in relation to the relevant property was 'entirely different' to the respondent's mother's claim.24
32 Secondly, the appellant alleges that he did not have 'adequate facilities to prepare for an adequate defence', in terms of documents and other forms of evidence to 'prove or disprove points contained in the affidavit'. In that regard, the appellant submits he was denied the opportunity to subpoena documents from the respondent's mother, such as her bank accounts, water rates, bank mortgage accounts concerning a certain property, tax records and social security payments.25 The appellant also submits that as a self-represented litigant he should have been given more than one night to deal with 'such an important' document and thereby was denied natural justice to properly address the affidavit.
33 Thirdly, the appellant alleges that the primary court did not provide him with adequate assistance as a self-represented litigant. In that regard the appellant's submissions overlap with those in support of the first and second alleged errors. The appellant submits that the magistrate only afforded him two options to respond to the affidavit, being to continue with the trial or to consider the affidavit overnight.
The respondent's arguments
34 The respondent submits that the appellant's submissions in support of his application to set aside this court's orders were not part of his submissions in support of ground 2 of the appeal.26
35 In relation to the application of the slip rule, the respondent submits, in effect, that the slip rule does not apply because its application is limited to the correction of an error arising from an accidental slip or omission or a clerical error, and because the appellant is not appealing to this court from its own perfected order. The respondent also submits, in effect, that as this court has no inherent jurisdiction to reopen or reconsider a formally recorded order,27 and as the slip rule does not apply, the appellant's application should be dismissed.
36 In relation to the alleged errors made by the primary court, the respondent submits, in effect, that:28
• Magistrate Duncanson was prepared to adjourn the trial on the 2 July 2012 to give the appellant time to prepare for cross-examination of the respondent's mother;29
• whilst the appellant was served with the respondent's mother's affidavit late, he was provided with a copy on 28 June 2012 by email sent from the respondent to the appellant;30
• the evidence contradicts the appellant's evidence that he only had one night to prepare to cross-examine the respondent's mother; and
• the appellant had prepared to cross-examine the respondent with respect to the property in issue to which the respondent's mother's evidence was relevant, and as such could have put those same questions to the respondent's mother in response to the respondent's mother's affidavit.
Appeal books
37 Before addressing the relevant principles, it is convenient to recall the requirements of the relevant rules of court concerning the preparation of appeal books.
38 Part 5 r 35 of the Court of Appeal Rules provides:
35. Appeal book, when required
An appeal book, containing the documents required for the hearing of the appeal, is required for every appeal except an interlocutory civil appeal, unless a single judge orders otherwise in a particular appeal.
38. Appeal book, contents of
(1) Subject to rule 40, an appeal book must be comprised of 3 separate parts as follows -
(a) the first part, comprised of as many numbered volumes as are necessary with white covers, to be referred to as the 'White Appeal Book';
(b) the second part, comprised of as many numbered volumes as are necessary with light blue covers, to be referred to as the 'Blue Appeal Book';
(c) the third part, comprised of as many numbered volumes as are necessary with light green covers, to be referred to as the Green Appeal Book.
(4) The Green Appeal Book must contain these documents in this order -
…
(c) the relevant parts of the primary court’s transcript[.] (emphasis added)
40 In the absence of a statutory provision to the contrary, and subject to certain limited exceptions, the Court of Appeal has no jurisdiction to reopen or reconsider an extracted order: The State of Western Australia v Wallam;31Mandurah Enterprises Pty Ltd v Western Australian Planning Commission;32Amaca Pty Ltd (Formerly James Hardie & CoPty Ltd) v Hannell [No 2];33Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] (Professional Services of Australia).34 This court also has no general statutory power, express or implied, to reopen and reconsider perfected orders, civil or criminal.35
41 The slip rule in RSC O 21 r 10 is one of the narrow exceptions.
42 In Achurch v The Queen, the plurality observed:36
The slip rule as an aspect of the inherent or implied powersallows for limited correction of an order after its final entry, as was explained in Burrell:
'The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.'
(Footnote omitted.) The power conferred under the slip rule '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 (footnotes omitted)'.
43 The principles concerning the application of the slip rule were recently considered by this court in Professional Services of Australia, where Martin CJ (Buss & Newnes JJA agreeing) said:37
The cases in this and other comparable jurisdictions where similar rules of court exist establish a number of general principles which govern the application of the slip rule. First, the slip or omission which is said to have given rise to the error must be properly characterised as inadvertent or accidental - the product of oversight rather than afterthought [L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] (1982) 151 CLR 590; Gould v Vaggelas (1985) 157 CLR 215, 275 (Gibbs CJ, Wilson, Brennan & Dawson JJ); Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust trading as Property People [2012] WASC 271 (S2) [23] (Allanson J); Kokos International Pty Ltd v Libra Motors Pty Ltd [No 3] [2007] WASC 301 [67] (Johnson J)]. Second, the 'error' said to arise from the accidental slip or omission must be such that its correction does not require the exercise of an independent discretion nor is it a matter upon which a real difference of opinion might exist [Mandurah Enterprises [8]].
These principles are conveniently illustrated by some of the cases on the topic. In each of Shaddock, Gould and Orchard Holdings, orders were made under the slip rule allowing interest on the judgment sum in cases in which the legal representatives of the parties inadvertently omitted to ask for interest, and there was no doubt that interest would have been allowed if requested at the time of judgment. On the other hand, in Mandurah Enterprises, an application under the slip rule for an order setting aside the orders for costs made by the primary judge was dismissed because the arguments in favour of such an order were neither obvious nor compelling.
44 The court's power to amend orders under the slip rule is discretionary.38 In Gould v Vaggelas,39the plurality said:
[T]he 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.
45 Further, in Shaddock,40 the plurality observed:
[A]n order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made (see Tak Ming [[1973] 1 WLR 306; [1973] 1 All ER 572]; and the cases there cited). In the present case, there was considerable delay in filing the notice of motion … The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule.
46 In Esther Investments Pty Ltd v Markalinga Pty Ltd (Esther Investments), Malcolm CJ observed:41
[T]here is an interest in the finality of litigation, and a party is entitled to order its affairs on the basis of a judgment regularly obtained, entered and perfected in the court.
Disposition
47 Having considered carefully all the appellant's arguments, the appellant's application should be dismissed for the following reasons.
48 First, there was no error. The court correctly concluded that there was no evidence before it that the appellant had objected to the respondent's mother's evidence on the ground of lateness. The evidence upon which the appellant now seeks to rely was omitted from the Green Appeal Book. Also, the appellant at the oral hearing of the appeal both recognised and accepted that there was no evidence to that effect (see [15] - [16] above). That point is alone sufficient to dispose of the application.
49 Further, there was in any event no 'accidental' slip or omission, even by the appellant. The appellant's contention that he omitted the transcript of evidence due to funding and time constraints might explain why the evidence was not before this court, but it does not transform the character of the omission into an 'accidental' one.
50 Next, discretionary relief could not be given in these circumstances in any event. Two matters are relevant. One is that the point had no bearing on the outcome of the appeal. Although the appellant informed the magistrate that he was 'opposed to the short notice of [the respondent's mother's] affidavit', he was offered an adjournment until the next day, and accepted it without further complaint at the time. Nor is there before us any evidence that he made any complaint at the resumed hearing. Although the appellant's arguments in this application were to the effect that her Honour should have granted a longer adjournment, those arguments are a fresh attack on the primary decision in respect of which the appeal has been concluded, and are not directed to any accidental slip or omission in this court. Related to this point is that, in the course of oral argument in the appeal, the appellant accepted that 'in a nutshell' his real complaint in the appeal was not the lateness of the affidavit, but the difficulty he had in cross-examining the respondent's mother arising from her alleged emotional distress at the time. Moreover, the point now sought to be agitated was not included in the grounds of appeal.
51 The other discretionary point concerns delay. The appellant's application was made nearly 20 months after this court had dismissed his appeal. The delay was inordinate. The appellant proffered the explanation that he did not know that there was a 'slip rule' under which he could apply until a 'friend, that is quite well-educated in law'42 pointed it out to him. Putting aside for the moment that any person 'well-educated in law' could not sensibly have advised the appellant to bring this application, the importance of the principle of finality of litigation applies to all litigants, both represented and in person. In this case, the litigation commenced in 2010, and has extended over some five years. The appellant has taken it to the High Court of Australia before raising this point. Adopting and adapting the language of Malcolm CJ in Esther Investments, the respondent was entitled to order her affairs on the basis that the litigation between these parties, in relation to the issues raised on the appeal to this court, had finally been concluded at least after the disposition of the appellant's application for special leave.
Conclusion
52 The appellant's application, whether under the slip rule or on any other basis contemplated by the appellant, should be dismissed.
1D and S [2012] FCWAM 79 (primary reasons).
2S v D [2014] WASCA 224 (Court of Appeal reasons).
3S v D [2015] HCASL 66; P2/2015.
4 See primary reasons [41] - [60].
5 GB 202.
6 Primary reasons [38], [58]; GB 15.
7 BB 4.
8 GB 14 - 16.
9D and S [134].
10 WB 5 [2].
11 WB 11 [11] - [12].
12 Appeal ts 6 - 7.
13 Appeal ts 7 - 9.
14S v D [2014] WASCA 224.
15S v D [2014] WASCA 224 [37] - [40].
16S v D [2014] WASCA 224 [41].
17 Appellant's affidavit, 14/10/2015, par 7.
18 Appellant's affidavit, 14/10/2015, par 5.
19 Appellant's affidavit, 14/10/2015, pars 3 - 4.
20 See appellant's affidavit, 03/07/2015 and appellant's submissions, 24/8/2015, to which more pages of the transcript of 02/07/2012 are attached.
21 See appellant's submissions, 24/08/2015, pars 10 - 12; appellant's affidavit, 03/07/2015, pars 4 - 13.
22 Appellant's submissions, 24/08/2015, pars 2 - 6.
23 Appellant's submissions, 24/08/2015, par 7.
24 Appellant's submissions, 16/10/2015, par 24.
25 Appellant's submissions, 16/10/2015, par 22.
26 Respondent's submissions, 14/09/2015, par 23.
27 Respondent's submissions, 14/09/2015, pars 1 - 9, citing Bailey v Marinoff (1971) 125 CLR 529.
28 Respondent's submissions, 14/09/2015, pars 10 - 23.
29 ts 02/07/2012, p 24.
30 Respondent's submissions, 14/09/2015, par 15, read with the respondent's affidavit, 25/09/2015.
31The State of Western Australia v Wallam [2008] WASCA 117 (S) [6] - [17], [42].
32Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 (S) [10] (McLure JA, Buss & Murray AJA agreeing).
33Amaca Pty Ltd (Formerly James Hardie & CoPty Ltd) v Hannell [No 2] [2011] WASCA 232; (2011) 42 WAR 224 (McLure JA, Martin CJ & Buss JA agreeing).
34Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015] WASCA 253 [26] (Martin CJ, Buss & Newnes JJA agreeing).
35Wallam [17]; Amaca.
36Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141, 154 [18]; see also Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52 [8].
37Professional Services of Australia [28] - [29].
38 See, for example, Kokos [66]; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409 (Malcolm CJ); Professional Services of Australia [33].
39Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215, 275 (Gibbs CJ, Wilson, Brennan & Dawson JJ).
40L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] [1982] HCA 59; (1982) 151 CLR 590, 597.
41Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400, 409. See also Stambulich v Ekamper [No 4] [2008] WASCA 189 [28] - [31] (Pullin JA & Newnes AJA agreeing); Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S) (Reasons of the Court).
42 ts 41, 21/1/16.
0
19
2