Vassilou (An Infant) BY Next Friend Tracey Louise Vassilou v Roberman [No 2]
[2014] WADC 65
•14 MAY 2014
VASSILOU (AN INFANT) BY NEXT FRIEND TRACEY LOUISE VASSILOU -v- ROBERMAN [No 2] [2014] WADC 65
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 65 | |
| 14/05/2014 | |||
| Case No: | CIV:2165/2003 | 28 APRIL 2014 | |
| Coram: | DAVIS DCJ | 28/04/14 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Supplemental order made dispensing with personal service of application | ||
| PDF Version |
| Parties: | ANGELIQUE VASSILOU (AN INFANT) BY NEXT FRIEND TRACEY LOUISE VASSILOU TRACEY LOUISE VASSILOU DAVID BRIAN ROBERMAN THE MINISTER FOR HEALTH |
Catchwords: | Practice and procedure Accidental oversight or omission in orders for service of application Slip rule Inherent jurisdiction to correct errors in orders Power to make supplemental order |
Legislation: | Rules of the Supreme Court 1971, O 21 r 10 |
Case References: | Bailey v Marinoff (1971) 125 CLR 529 Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, (Master Bredmeyer), Library No 920508, 30 September 1992) Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 282 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Re Park Lane Jewellers Pty Ltd (1985) 10 ACLR 138 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
TRACEY LOUISE VASSILOU
Second Plaintiff
AND
DAVID BRIAN ROBERMAN
First Defendant
THE MINISTER FOR HEALTH
Second Defendant
Catchwords:
Practice and procedure - Accidental oversight or omission in orders for service of application - Slip rule - Inherent jurisdiction to correct errors in orders - Power to make supplemental order
Legislation:
Rules of the Supreme Court 1971, O 21 r 10
Result:
Supplemental order made dispensing with personal service of application
Representation:
Counsel:
First Plaintiff : Mr J R Johnson
Second Plaintiff : Mr J R Johnson
First Defendant : No appearance
Second Defendant : No Appearance
Solicitors:
First Plaintiff : Julian Johnson Lawyers
Second Plaintiff : Julian Johnson Lawyers
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Bailey v Marinoff (1971) 125 CLR 529
Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, (Master Bredmeyer), Library No 920508, 30 September 1992)
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498
Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 282
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558
Re Park Lane Jewellers Pty Ltd (1985) 10 ACLR 138
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
1 DAVIS DCJ: On 16 December 2013 O'Neal DCJ made orders that, pursuant to O 70 r 7 of the Rules of the Supreme Court 1971, Tracey Louise Vassilou (Mrs Vassilou) be removed as the first plaintiff's next friend and the Public Trustee be appointed in her place. The orders were made on an application by the first plaintiff's solicitors by a chamber summons entitled 'Plaintiff's Chamber Summons seeking order for removal of next friend and appointment of the Public Trustee' dated 29 October 2013 (the Application).
2 When the Application was filed, it was first listed before Principal Registrar Gething in chambers on 1 November 2013. The principal registrar fixed the date of the hearing of the Application before a Judge and made a series of directions dealing with the Application to ensure that that confidentiality in the papers filed in support of the Application would be retained. Among the orders made was an order prohibiting the defendants from inspecting or obtaining copies of those documents. It was ordered that the solicitor for the first plaintiff serve a copy of the Application and the orders made by the principal registrar on each defendant, but not the copies of the other documents filed in support.
3 The orders made by the principal registrar also addressed how Mrs Vassilou was to be served and an order was made (order 8) that:
8. By 15 November 2013 the solicitor for the first plaintiff file and serve on the next friend of the first plaintiff by email a copy of:
(a) these orders; and
(b) any affidavit in support of the Application.
5 Following the making of the orders by O'Neal DCJ, the solicitors for the first plaintiff, upon preparing an affidavit confirming service, realised that no orders had previously been made in relation to the service of the Application itself (as opposed to the orders of the principal registrar of 1 November 2013 and the supporting affidavit) on Mrs Vassilou. A copy of the Application had been sent by email to her, along with the other documents, however, a 'hard copy' of the Application which would generally require to be personally served on her, had not been so served. Accordingly the plaintiff's solicitors sought an order from the court dealing with service of the Application upon Mrs Vassilou.
6 This matter was listed before me on 28 April 2014. On that day I made an order that the requirement for personal service of the Application on Mrs Vassilou be dispensed with. I said I would provide written reasons to explain why I had made this order, and these are my reasons.
7 It was apparent to me from reading the court file that the failure to address how the Application itself was to be served on Mrs Vassilou was an accidental omission or oversight.
8 This court has the power under O 21 r 10 of the Rules of the Supreme Court (the slip rule), which reflects the court's inherent jurisdiction, to correct errors in orders which arise from an accidental slip or oversight. This rule 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) 151 CLR 590, 594 - 595.
9 Apart from the slip rule, if an order of the court turns out to be incorrect as a result of the inadvertence of counsel or a mistake made by a judge which is not corrected by counsel, there is an inherent jurisdiction in the court to rectify the order to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524. The inherent jurisdiction of the court to correct an error extends to an order made ex parte: see Bailey v Marinoff (1971) 125 CLR 529, 539 – 540 (Gibbs J).
10 Under the slip rule, if the amendments or corrections are such that they cannot be conveniently effected by writing on the face of the original order, then the proper course is to extract a supplemental order: Civil Procedure Western Australia [21.10.2].
11 It has also been held that independently of the slip rule, the court's inherent jurisdiction to correct an error extends to making a supplemental order where circumstances occurring since a final order or judgment make it necessary to do so: see Bailey v Marinoff; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224, 234 - 236; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629;(2003) 129 FCR 558 [31] - [39].
12 This principle relating to the power to make supplemental orders has been applied in a number of cases, particularly in relation to costs orders made after final orders, provided that the order is truly supplementary and does not vary or alter the substance of orders previously made: Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd;NSW Insurance Ministerial Corporation v Edkins(1998) 45 NSWLR 8; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10)[2009] FCA 498 [11] - [14]; Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 282 [62] - [72].
13 It has also been stated that in this day and age a less strict view is taken of variations of orders, even final orders, than was taken in previous times: Re Park Lane Jewellers Pty Ltd (1985) 10 ACLR 138, 139. This is because the whole object of making orders of the court is to do justice between parties.
14 Like all discretionary powers, the power to make a correction to an order or a supplemental order must be exercised in accordance with relevant principles, taking into account a number of factors. Those factors I have taken from Biltoft Holdings Pty Ltd v Casselan Pty Ltd (Unreported, WASC, (Master Bredmeyer), Library No 920508, 30 September 1992) and the other authorities I have mentioned above, to include the following:
(a) Has there been a mistake or an error been caused by an accidental slip or omission, due to the inadvertence of the court or a court officer or of a party's legal representative?
(b) Has there been delay in bringing the application to correct the error and, if so, has that delay produced prejudice to a party?
(c) Will the exercise of the power adversely affect the rights of third parties, which have come into existence upon the basis of the judgment or order without knowledge of the error? If so, the power should not be exercised.
(d) Have subsequent events made any correction inexpedient or inequitable?
(e) Can the correction to the order or supplemental order be made without injustice to the other party or parties, or on terms which preclude injustice?
(f) Will the correction of the order or supplemental order vary or alter the substance of an order as entered? If so, it should not be made.
15 Having regard to these factors I am satisfied that I had the power to make an order dispensing with the service of the hard copy of the Application on Mrs Vassilou, even though this order would be made after the event and after the substantive orders made by O'Neal DCJ, for the following reasons.
16 I am satisfied that the failure to mention in the orders of 1 November 2013 how the Application itself was to be served on Mrs Vassilou was a mistake or error made inadvertently at the time. I am also satisfied that had the oversight been drawn to the principal registrar's attention at the time, the correction would have been made at once: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, 453.
17 There has been minimal delay in bringing the application to correct the situation and such delay which has occurred could not produce prejudice to any party.
18 The exercise of the power does not affect the rights of any third party.
19 There is no subsequent event which has made any correction inexpedient or inequitable.
20 There can be no injustice to Mrs Vassilou, who must have been aware of the Application not only because she had been served a copy of it by email, but also because the documents which had been served in accordance with order 8 of the orders of the principal registrar of 1 November 2013 made it abundantly clear what application had been made. The first order made in the principal registrar's orders stated:
1. The documents filed in relation to the application dated 29 October 2013 by the first plaintiff's solicitors to remove the next friend of the first plaintiff ('application') be retained on a separate volume of the court file, which is to marked as confidential and with a copy of these attached to the front cover of the file.
21 The affidavit filed in support of the Application was described as an affidavit 'in support of application to replace plaintiff's next friend' and also referred to the fact that it was sworn in support of the application, seeking to remove the first plaintiff's next friend.
22 The orders made by the principal registrar on 1 November 2013 were otherwise comprehensive and Mrs Vassilou could have been in no doubt as to what the Application was, when it was to be heard, and what she had to do if she wished to oppose the Application.
23 Finally, the order in relation to the service of the Application on Mrs Vassilou is a procedural one and does not alter the substance of any of the orders made, particularly those made by O'Neal DCJ on 16 December 2013.
24 Having regard to the particular circumstances of this case I concluded that justice would be served by making an order dispensing with personal service of the Application on Mrs Vassilou. I considered that as this could not be conveniently effected on the face of either the orders of the principal registrar of 1 November 2013 or the orders made by O'Neal DCJ, the proper course was to make a supplemental order.
0
11
1