Simmons v Love

[2015] WASC 79 (S2)

SIMMONS -v- LOVE [2015] WASC 79 (S2)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 79 (S2)
Case No:	CIV:1303/2014	Heard:	ON THE PAPERS
Coram:	BEECH J	Delivered:	8/12/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	PAUL SIMMONS MARISA GIMONDO ROSS MAITLAND LOVE
Catchwords:	Practice and procedure Slip rule Costs orders Whether costs orders should be amended
Legislation:	Rules of the Supreme Court 1971 (WA), O 21 r 10
Case References:	Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SIMMONS -v- LOVE [2015] WASC 79 (S2) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 8 DECEMBER 2015 FILE NO/S : CIV 1303 of 2014 BETWEEN : PAUL SIMMONS

MARISA GIMONDO
Plaintiffs

AND

ROSS MAITLAND LOVE
Defendant

Catchwords:

Practice and procedure - Slip rule - Costs orders - Whether costs orders should be amended

Legislation:

Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs : No appearance (on the papers)
Defendant : No appearance (on the papers)

Solicitors:

Plaintiffs : Chris Stokes & Associates
Defendant : Metaxas & Hager

Case(s) referred to in judgment(s):

Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16

BEECH J:

Introduction

1 The Seller applies under the slip rule for an order amending an order as to costs. For the reasons that follow, I would dismiss the application.

Background

2 On 20 March 2015, I made costs orders in this action. Relevantly, my orders were that:

(1) the Seller pay the Buyers' costs of the action up to and including 10 November 2014, such costs to be taxed if not agreed;

(2) the Buyers pay the Seller's costs of the action from 11 November 2014, such costs to be taxed if not agreed.

3 Those costs orders were made after a trial of the action. I delivered reasons on the trial on 6 March 2015.1

4 At the time that judgment was delivered on the trial, the parties were agreed that directions should be made for the exchange of submissions as to costs. Following the delivery of the judgment on 6 March 2015, there was some exchange between court and counsel as to the appropriate approach to the question of costs. From the court's perspective, the exchange occurred with a view to exploring whether the parties might be able to reach an agreed position as to the costs of the trial.

5 In the course of the exchange, I made an observation to the effect that it would not be expected that the costs in favour of the Buyers up to 10 November 2014 would exceed the costs of the Seller for the period after 11 November 2014.2

The Seller's application

6 Based upon that observation, the Seller applies under the slip rule for an order that the Buyers' taxed costs up to 10 November 2014 do not exceed his taxed costs of the action from 11 November 2014.

The Seller's affidavit

7 Some of the background I have recounted is inconsistent with the affidavit sworn by the Seller in support of this application. He, and presumably his solicitors, have erred in their recollection of the timing and context in which the relevant observation was made. The Seller says in his affidavit that the comment was made in the course of a hearing on 20 March 2015 as regards the costs of the action.3 That is incorrect; there was no hearing as regards costs. Moreover, there was no hearing of any kind on 20 March 2015. Rather, events occurred as I have already outlined.

The disposition of the application

8 Order 21 r 10 permits the court to correct errors in judgments or orders arising from any accidental slip or omission. I apply the principles relevant to the slip rule stated by Allanson J in Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2]:4

The orders have been formally recorded. The general rule is that a superior court of record, in the absence of a statutory provision, and subject to certain narrow exceptions, may not reopen an extracted order. This rule is underpinned by a central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [34]; Burrell v R [2008] HCA 34; (2008) 238 CLR 218 [15].

The slip rule in O 21 r 10 of the Rules of the Supreme Court is one of the exceptions. The rule reflects the inherent jurisdiction of a court 'at any time to correct an error in a decree or order arising from a slip or accidental omission', regardless of whether the order has been drawn up, passed and entered: see Milson v Carter (1893) AC 638 at 640. It applies where the mistake or error is the result of inadvertence by a party's legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 594. But it is a power to correct a mistake. The correction should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446. Where the proposed correction would alter the substance of an order in a matter on which there might be a real difference of opinion, the rule does not apply.

9 The Seller submits that had his counsel requested that the court make an order to the effect now sought, it is 'probable' that the court would have made such an order.5 I am not persuaded that it is probable that such an order would have been made. In any event, the question is not whether it is 'probable' that such an order would have been made. If that were the test, orders could all too readily be varied after having been pronounced and perfected.

10 As the principles set out above make clear, the slip rule is not intended to be applied where a proposed correction requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might have existed. Any proposal that the court make an order to the effect of the observation, made in the course of an exchange with counsel, is of that character. It would have required a decision to be made, on a matter of discretion, on which there is, to say the least, room for differences of opinion. Moreover, had such an order been sought, it is likely that evidentiary material would have been advanced by the parties on the question of whether such an order was appropriate. This is not a situation where, had it been drawn to the court's attention, the order would have been made at once.

11 For these reasons, I dismiss the Seller's application.

______________________________________

1Simmons v Love [2015] WASC 79.
2 ts 248.
3 Affidavit of Ross Maitland Love sworn 30 October 2015 [3] - [6].
4Commissioner of the Australian Federal Police v Goldfinger Bullion Reserve Corporation [No 2] [2013] WASC 16 [13] - [14].
5 Seller's submissions dated 2 December 2015 [16].