Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 4)
[2018] ACTSC 15
•2 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 4) |
Citation: | [2018] ACTSC 15 |
Submissions Date: | 18 January 2018 |
DecisionDate: | 2 February 2018 |
Before: | Refshauge J |
Decision: | 1. Any leave to make the application to amend the judgment of this Honourable Court in these proceedings entered on 12 January 2018 be granted. 2. The sealed judgment entered in these proceedings on 12 January 2018 be amended by: (a) omitting all the references under the heading “Originating Process” and substituting “Originating Claim” dated 20 February 2008; (b) inserting under the heading “How Obtained” the word “written” before the word “submissions”; (c) omitting under the heading “Attendance” the words and symbols “(with Mr J Masters assisting)” and substituting the words “and with him Mr J Masters”; (d) inserting at the end of the list of affidavits under the heading “Affidavits read” after the words and numbers “Mark Flint dated 2 June 2017” the symbol, word and numbers “& 4 July 2017”. 3. The amended judgment to be prepared and sealed in accordance with this order be entitled as follows: AMENDED JUDGMENT (Amended by order dated 2 February 2018) |
Catchword: | PROCEDURE – SUPREME COURT PROCEDURE – orders – importance of orders of court – effect of order – integrity of registry records PROCEDURE – SUPREME COURT PROCEDURE – orders – amendment of orders – slip rule – order amended |
Legislation Cited: | Bankruptcy Regulations 1996 (Cth) s 4.01 Court Procedures Rules 2006 (ACT) rr 31, 509, 1606, 2015, 2903, 6701, 6906; Pt 6.1; forms 2.41, 2.42 Service and Execution of Process Act 1992 (Cth) s 105 |
Cases Cited: | Bailey v Marinoff (1971) 125 CLR 529 Balhorn v Colby (1982) 45 ALR 174 Wyszynski v Bill [2005] NSWSC 110 |
Texts Cited: | John Tarrant, Amending Final Judgments an Orders (The Federation Press, Sydney: 2010) |
Parties: | Tuggeranong Town Centre Pty Ltd (Plaintiff and Cross Defendant) Brenda Hungerford Pty Ltd (Defendant and Counter Claimant) Leda Commercial Properties Pty Ltd (Third Party) |
Representation: | Counsel Mr M Walsh SC (Plaintiff and Cross Defendant) Mr C Erskine SC and Mr J Masters (Defendant and Counter-Claimant) |
| Solicitors Mills Oakley (Plaintiff and Cross Defendant) Donohue & Co (Defendant and Counter-Claimant) | |
File Number: | SC 616 of 2008 |
REFSHAUGE J:
Background
It is said that the “intrinsically judicial function” is that “of quelling the controversy” between the parties: Pollentine v Bleijie [2014] HCA 30; 253 CLR 629; 655-6; [69]-[71]. Courts achieve this by making decisions on the relevant controversy.
It is usually required that courts give reasons for such decisions, though this “incident of the judicial process” is “a normal but not a universal incident”: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-7. Thus, not every judgment, order, direction or decision of a court will be accompanied by reasons.
The reasons are often of wider interest and significance than the actual decision, for it is through the reasons of courts that the common law is developed; the principle on which a case is decided will, under the doctrine of precedent, be, in appropriate cases, binding on other courts: Osborne v Rowlett (1880) 13 Ch D 774 at 785-6.
Nevertheless, while the reasons of judges deciding cases are regularly reported in the law reports, the actual decision does not find its way into those reports as frequently as may be thought desirable. The decision then is merely reported at the end of the reported reasons as “Orders accordingly” in many but not all reports.
In my view, it is regrettable, that, in a number of courts, the orders are not drafted and set out separately as, for example, occurs in the High Court of Australia and in the Federal Court of Australia. Apart from the risk that simply including the orders somewhere in the reasons can mean that there may be a lack of careful attention to the precise wording required for the order to set out exactly what is intended actually to be ordered and can also result in a confusion as to what exactly is the order being made and what is not, as caused problems in Millard v The Queen (No 2) [2016] ACTCA 41, where comments which turned out to be incorrect were included in the sealed order because they were in the reasons with the orders though not actually part of the orders made.
The order of the court is, however, the most important act of the court. In a real sense, it is the constitutional duty of the court to make orders. Certainly, that is what almost universally most interests the parties; it is the resolution of the dispute between them. It not only resolves the controversy, but it brings the cause of action alleged by the plaintiff to an end, as it merges in the order or judgment, so ceasing to have an independent existence: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 323 ALR 1 at 6-7; [20]. Thus, the sealed order is an important record of the decision.
Indeed, in certain circumstances, the party entitled to judgment will not have it effectively, until the judgment of the Court is entered and sealed: Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 at 168; Balhorn v Colby (1982) 45 ALR 174 at 180.
While an order can be subject to interpretation by another judge or court as any other law, the need for finality in litigation means that there are limits even to this: Radmanovich v Nedeljkovic [2002] NSWSC 212 at [7].
The decision has other important functions. It can change the status of a party, creating a status that is effective within the society as a whole: rendering married persons unmarried by a decree of divorce (Bunting v Lepingwell (1585) 4 Co Rep 29a; 76 ER 950 at 951-2), changing the financial status of a person by declaring the person bankrupt in a sequestration order (Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 136-7), making a child the child of the adoptive parents and the adoptive parents the parents of the child by an adoption order (Re Adoption Application A 83 6507 [1984] 2 NSWLR 590 at 592), ousting a public official, thereby rendering his or her appointment as such official void (Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 at 640) and by declaring a person to be incapable of managing their own affairs so having that person subject to the control of his or her person and property by a court or statutorily appointed official (Bird v Keep [1918] 2 KB 692 at 700).
Equally important is the fact that it is only from the order of a court, not the reasons, that a party can appeal to a court higher in the appropriate hierarchy in the administration of justice; this is said to be “fundamental to our jurisprudence”: Moller v Roy (1975) 132 CLR 622 at 627. See also Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 214 LGERA 252 at 262; [63]-[64].
Enforcement generally depends on the order being sealed. Thus, a sealed copy of the sealed order must be served on the party liable under the order before enforcement proceedings can be commenced: r 2015 of the Court Procedures Rules 2006 (ACT). Similarly, application for a bankruptcy notice under the Bankruptcy Act 1966 (Cth) requires a copy of the sealed order or judgment or equivalent to be filed with the Official Receiver: s 4.01(1)(b) of the Bankruptcy Regulations 1996 (Cth). Again, a party who wishes to enforce an order in a jurisdiction other than that in which the order was obtained must lodge a sealed copy of the sealed order with the appropriate officer of the relevant court in the jurisdiction in which it is proposed to enforce it: s 105 of the Service and Execution of Process Act 1992 (Cth).
There are, of course, exceptions to such requirements and, indeed, a court can dispense with prior service before enforcement, though it seems likely that it will rarely do so: Proceedings for Alleged Contempt of Court by Animal Liberation (SA) Inc [2002] SASC 71 at [25]-[27].
Thus, the court’s decision, recorded in its order or judgment is an essential part of the administration of justice and the contribution that the courts make to the community. I pause to note that the terms which were widely used to differentiate the decisions in various courts (such as judgments and orders at common law and decrees in Chancery) have largely disappeared, so that Dawson J could point out in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 296
I use the term ‘order’ because the answers upon a case stated are ordinarily in the form of an order which, unlike a final judgment, does not dispose of a matter. However, the difference between a judgment and an order is far from precise. The two terms overlap considerably.
The distinction has been blurred even further since then with definitions bringing the two together, often with other references to judicial decisions such as sentences included in the definition of “judgment” in the Dictionary to the Supreme Court Act 1933 (ACT). Nevertheless, there remains a distinction in the prescribed forms between a judgment made on an Originating Claim and an order made on an Originating Application or an Application in Proceedings. In these reasons, I shall use the term “order” to include each kind of court decision.
A direction, however, appears not necessarily to have ordinarily the status of judgment, decree or order: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 at 357; [19]. This may also apply to decisions, especially of an interlocutory nature, such as a decision not to accede to a request by a party for the judge to disqualify himself or herself (see R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266) or a ruling on evidence (R v Steffan (1993) 30 NSWLR 633 at 639-40). I do not need to explore this further.
The importance of a sealed order of the court is also significant in other ways. It is the formal record of the court’s decision and has a special status. For instance, the decision that a court has pronounced orally and, perhaps, in written reasons (whether it be a judgment, order, or decree) can be recalled by the judge who made it and re-visited by being amended or even fundamentally changed: DJL v The Central Authority [2000] HCA 17; 201 CLR 226 at 244; [34]. That does not apply, however, to an order that has been sealed and thus entered into the records of the Court: Bailey v Marinoff (1971) 125 CLR 529 at 532, 537, 539.
This is an expression of the important principle of the finality of litigation, that controversies, once resolved, not be re-litigated, described as a “central and abiding tenet of the judicial system” in D’Orta-Ekenaiki v Victorian Legal Aid [2005] HCA 12; 223 CLR 1 at 17; [34]. This value of finality is also expressed in the doctrine of res judicata, a doctrine explained by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-2.
Of course, a rigid application of such a doctrine can lead to injustice and the courts have taken various steps to ameliorate the position.
One of the most important is what is called the slip rule, now enacted as r 6906 of the Court Procedures Rules 2006 (ACT). A history of the rule is helpfully set out in Associate Professor John Tarrant, Amending Final Judgments and Orders (The Federation Press, Sydney: 2010) Ch 2.
The slip rule, as expressed in r 6906(1) of the Court Procedures Rules, permits sealed orders to be amended where
(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or certificate of the court; and
(b) the mistake or error resulted from an accidental slip or omission.
It might be suggested that some of the procedure surrounding the entry of orders is obsolete and overly technical. Given the importance of the sealed order, I do not agree. Indeed, as Doyle CJ observed in Proceedings for Alleged Contempt of Court by Animal Liberation (SA) Inc at [23]:
In this respect the Rules do not reflect outmoded technicalities. When a court makes an order which can be enforced by contempt proceedings, and is likely to be so enforced, the interests of certainty and justice support having the order drawn up, having it sealed with the seal of the Court and having it served. Such a process is designed to resolve any differences or disputes about the terms of the order, to remove any doubt about the fact and authenticity of the order, and to provide a clear warning of the serious consequences that may follow from a failure to comply with the order.
See also Wyszynski v Bill [2005] NSWSC 110 at [20]-[21].
Application
In this case, application has been made to amend an order that has been sealed and entered into the records of the Court.
The proceedings in which the order was made involved a dispute involving the tenancy of retail premises in a shopping centre in south Canberra. In short, the plaintiff sought to recover rent and other moneys said to be due under the Sublease of the premises into which the defendant was claimed to have entered in order to occupy the premises.
The defendant denied the plaintiff’s claim and also resisted it by alleging in a counterclaim that officers of the plaintiff had made misleading and deceptive representations to it during its occupation of the premises and the defendant also commenced proceeding against the third party seeking damages caused by alleged misleading and deceptive statements made by officers of the third party when the defendant negotiated the tenancy.
After a lengthy trial, I found for the plaintiff on its claim for rent and other moneys and dismissed the defendant’s counter-claim against it, but found for the defendant against the third party: Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 2) [2017] ACTSC 88.
I sought submissions as to costs because the orders I had made were complex and did not point to an obvious decision. On 18 October 2017, having received written submissions, but not requiring further oral argument, I made costs orders: Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) [2017] ACTSC 301.
Those orders were entered in the Court’s records on 12 January 2018 by a judgment containing them being signed by a Deputy Registrar and sealed.
The solicitors for the plaintiff and the third party have, with the consent of the defendant, approached me to have amendments made in the sealed judgment.
I shall, by order, make the amendments sought and other amendments that I consider are also required.
Procedure
When an order is made by the court, it is invariably pronounced orally. Unless delivered ex tempore, however, the reasons are not usually delivered orally but published in writing.
The party in whose favour an order is made is required by r 1606(3) of the Court Procedures Rules to file a draft order in the court registry within 7 days after it is made. That obligation is honoured more in the breach than the observance. Rarely are there any consequences for non-compliance, at least so far as the time limit is concerned and that may well be appropriate, though it is usually desirable that the order be sealed relatively promptly to give it the security from being recalled and reconsidered. See also r 1606(8).
The Registrar or a Deputy Registrar will then settle the order, requisitioning the draft if there are amendments to be made. If there are no amendments, the order will be sealed, a sealed copy filed and a sealed copy or copies (for example, if needed for service as suggested above (at [11])), will be returned to the lodging party.
Application for the amendments sought by the plaintiff and third party in these proceedings was made by written submissions in an email to my associate. Ordinarily, applications for amendment of orders under the slip rule are to be made by Application in Proceedings under Pt 6.2 of the Court Procedures Rules. In this case, they were small amendments, which did not affect the substance of the order. The request was made by consent. I consider, in the circumstances, that this rather informal approach, which I have taken as an application by submission, is appropriate. I will give any leave necessary for this purpose.
Of course, the parties cannot amend a sealed order by consent. An order to make such an amendment is not one which the court would make by consent, though it would obviously be more willing to make such an order where both parties consent but, of course, only after being satisfied that it was appropriate to do so. The importance of an order to the court, especially a sealed order, requires the court to take care that it is proper to make the amendment, even if it only takes a moment to see that it is appropriate.
Despite attempts to harmonise the forms of orders by the Harmonisation of Rules Committee of the Council of Chief Justices, each jurisdiction in Australia currently has its own form. In this Territory, the prescribed form for a judgment is Form 2.41 (AF2015-30); for an order, the prescribed form is similar, Form 2.42 (AF2015-31). Those forms set out certain requirements as well as the precise terms of the judgment or order the court pronounced.
That the form is a prescribed form requires it to be followed. Section 255(4) of the Legislation Act 2001 (ACT) provides that substantial compliance is sufficient and this, of course, gives latitude to the way in which the form is completed. The statutory term is instructive; it is the substance of the requirement with which compliance is required, so that the appropriate information that has been prescribed is included. Surplusage is undesirable and to be avoided but does not invalidate the form. It can confuse any recipient. Another difficulty is that it becomes difficult to know when partial compliance becomes non-compliance, though the relaxation of technical rigidity can be appropriate.
Of course, there is an obligation on the Registry staff to ensure, when settling an order, that it complies with the prescribed form and contains all and only the information required and that it is an accurate record of the decision of the court and the relevant circumstances in which it is made.
I turn then to the matters the subject of the plaintiff’s application by submission seeking amendment of the sealed order.
Errors for which amendment is sought
The first request for an amendment is to the list of affidavits read in the proceedings.
One of the requirements in the prescribed form is that the affidavits that have been read are to be set out in the order. While it is important to know the material that was before the court when it considered its decision, there is a more important matter, namely the distinction to be made between affidavits which are read and those that are filed but not read. See r 2903(2)(b) of the Court Procedures Rules, which provides that affidavits not read are not accessible to persons not parties to the proceedings. The reference in the order to the affidavits that are read makes this requirement one with which Registry staff and the public are more reasonably able to comply.
In this case, the evidence in chief of the witness for the parties was given in large part by affidavit as is often the case in commercial disputes (see r 6701 of the Court Procedures Rules), so there were a considerable number of affidavits read in the proceedings, all of which needed to be listed.
Perhaps because of the number of affidavits that may be read, in some jurisdictions, such as Queensland and New South Wales, this information is not required in the order. That is not the situation in this Territory and, as noted above (at [40]), there is a reason for this requirement in this jurisdiction.
The order, the subject of this application, set out all those affidavits. I am not sure that it was necessary to set out in relation to the judgment as to costs, as opposed to the earlier judgment on liability, those affidavits read in relation to the decision as to the liability of the parties. On the other hand, the decision as to costs took into account the conduct of the proceedings and the way that the parties addressed the issues. Thus, it was not inappropriate to include all the affidavits that were read in the proceedings, not those parts relevant to costs, though that may be preferable in other circumstances.
In any event, one affidavit, that of Mark Flint made on 4 July 2017 and, of course, only read in relation to the issue of costs, was omitted from the list. I recall reading it; I referred to it as having been received and, I infer, read, in Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) at [6].
The second amendment that was sought was that the sealed order be amended in relation to the means by which the order was obtained. One of the matters required to be stated in the prescribed form is under the heading “How Obtained”. This ordinarily gives an indication of whether the orders were obtained by an Application in Proceedings in the case of an interlocutory application or by a trial or hearing.
The sort of information required here may be ascertained from the examples given in the prescribed form in Queensland where the relevantly similar heading to the heading in the Territory prescribed form “How Obtained” is rather “Basis of judgment”. Examples are given; they are:
Judgment after trial of the claim filed on (date claim filed)
[or: Application for summary judgment filed on (date)
or: Judgment after hearing of originating application filed on (date)or: Application filed on (date), or as the case may be]
Two comments may be made on these examples. As the originating process is specified elsewhere in the prescribed form, as noted below (at [63]), it is not necessary to repeat it, so that, for example, “of the claim filed on (date claim filed)” and “of the originating application filed on (date)” would not be included in this jurisdiction. The date of any Application in Proceedings, however, should be included as it will not be otherwise apparent in the order. Further, there is value in setting out the dates of the trial or hearing. That can assist the Registry staff and should be included.
In this case, the sealed order included, under this heading, the submissions made as to costs which I had directed to be made. That seems a sensible inclusion in the order, though only relevant where there has not been an oral hearing; this is, after all, not intended to be a full record of the proceedings, but only to show the operative method of bringing the matter to the Court’s attention, causing the order to be made.
In this case, the reference was simply to “submissions” and I was asked to amend the order by adding before that word the additional word, “written”.
Consideration
A useful but not universal test for whether an order should be amended under the slip rule has been stated by Lord Herschell in Hatton v Harris [1892] AC 547 at 558, namely that, if the matter had been drawn to the Court’s attention at the time the order was made, would the correction at once have been made?
As pointed out in R v Elphick (No 3) [2017] ACTSC 302 at [22], there must be a clerical error or mistake in the order and that error or mistake must have resulted from an accidental slip or omission.
The evidence in the submission was a little opaque on this aspect. There is no doubt there was an error: the omitted affidavit was read; the submissions were in writing, as there was no oral hearing. There was, however, little to show how the errors occurred; this would have been desirable, but I am prepared to infer that they were accidental.
I noted in R v NF (No 2) [2016] ACTSC 227 at [9] that judicial officers and Registry staff are human and make mistakes. Legal practitioners who prepare draft orders also fall into that category and make mistakes.
As to the other requirements for amendment, I note first that neither error was a matter of law which would make the order ordinarily unable to be amended, as held in Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224-5, though there have been occasions where errors of law appearing in orders have been amended.
There is, further, no suggestion that, as explained in R v Elphick (No 3) at [28]-[30], the order had been acted upon in a way that would restrain the court from making the amendments.
Accordingly, I consider that it is appropriate to make the amendments and I will do so.
The submissions of the plaintiff seeking these amendments, being the email of 18 January 2018, will be included in the order giving effect to these reasons since this was the operative cause of the making of the order amending the original order.
Given the need to amend the order, I have noted other matters that need attention, even though the order as settled by a Deputy Registrar apparently included them. They are inappropriate or in error and, as the order is being amended, should be rectified.
The first is that for the list of appearances of counsel for the parties, the defendants’ counsel are described as “Mr C Erskine SC (with Mr J Masters assisting)”. That is not the appropriate way to describe junior counsel appearing with senior counsel leading him or her; it should simply be “Mr C Erskine SC and with him Mr J Masters”. Sometimes it is less formally described as “Mr C Erskine SC and Mr J Masters”, though the former is the correct form and to be preferred.
Formerly, senior counsel of the order of silk were described in court orders in full, not by post-nominal initials; hence a Queen’s Counsel would be described as “One of Her Majesty’s Counsel” and a Senior Counsel would be described as “of Senior Counsel”. That practice has fallen away and simply the usual post-nominals “QC” or “SC” are now used instead. While I prefer the more formal description, I would not require this to be followed for validity.
Junior Counsel were referred to simply as “of counsel”. That applied in this jurisdiction to solicitors appearing in court even if not members of the independent bar, for when they do so, they are acting as counsel.
The correction noted above (at [59]) should be made.
The second is that, in the part of the order, which, in the prescribed form, requires the insertion of “Originating Process”, the draft order referred to the “Amended Originating Claim”, but not the unamended Originating Claim, and then it listed all the subsequent pleadings. The inclusion of the pleadings is not necessary and should not be included without good reason; there is none here. The initial (unamended) process is what is required in the prescribed form; that gives important information, namely the date on which the proceedings began and the form of them by reference to the process originally issued (see r 31 of the Court Procedures Rules). Accordingly, reference to the Amended Originating Claim and to the other pleadings should be removed and substituted by the reference to the Originating Claim dated 20 February 2008.
I will make the orders to give effect to these reasons.
There was no request for costs and it would not be appropriate for such an order on this occasion, though that may in other circumstances be an order to be made on amendment.
While r 509 of the Court Procedures Rules does not strictly apply to an amendment made under r 6906, it seems to me appropriate that the amended order should be headed “Amended Judgment” and under that should appear “(Amended by order dated 2 February 2018)”, as well, of course, as the plaintiff complying with the amendments I will order.
My concern for the integrity of the Court’s records and, in particular, the sealed orders of the Court have, in my view, justified these rather extensive reasons.
There is no need to cause the parties the expense of appearing in court to pronounce the orders I will make or to publish my reasons. I will do so in chambers. See Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [37]-[38]. That means, of course, there are no appearances required in that order. It does mean, too, that the order will be prepared in the Registry.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2 February 2018 |
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