Vinton v Sim (No 2) - [2015] VSC 79

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 03216

ROSS VINTON (an infant who sues by his litigation guardian Rosemary Vinton)	Plaintiff
v
MALCOLM SIM, TERESA FLOWER, JAMES CARSON and STATE OF VICTORIA	Defendants

---

JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	(hearing not required to be convened)
DATE OF JUDGMENT:	6 March 2015
CASE MAY BE CITED AS:	Vinton v Sim (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 79

---

JUDGMENTS, ORDERS AND DECLARATIONS - Finality of order - Subsequent discovery by moving party that order sought and obtained was contrary to express statutory provision - Reasons not capable of being rectified as an accidental slip or omission - Necessity to have order rescinded - Applicability of slip rule - Exercise of inherent jurisdiction of the Court - Order rescinded

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance required
For the Fourth Defendant	No appearance required

HIS HONOUR:

On 10 November 2014 the Court published its reasons in this proceeding for granting an application made by the State of Victoria for an indemnity certificate in respect of costs under s 4 of the Appeal Costs Act.[1] That application was made ancillary to an order being sought by consent to quash, for jurisdictional error, a determination of the Medical Panel made under the Wrongs Act. The application required the resolution of two questions. First, is an application for judicial review under Order 56 an appeal within the meaning of the Act? Secondly, is the Panel a “court” as defined? I determined the answer to be yes to both questions. I then made and authenticated an order granting an indemnity certificate to the State.
[1]See [2014] VSC 568.

Subsequently, counsel for the State of Victoria brought to the Court’s attention a discovery that s 38 of the Appeal Costs Act precludes a certificate from being granted in favour of the Crown. Expressed in peremptory language, the section says “A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.” The Court has been asked to convene to enable an apology to be made for the oversight, but that was not necessary ― this was an honest oversight and without consequence.

But the order needs to be rescinded and there is now a question about how to properly rectify the situation.

The Court has a general power to amend its orders after they have been made, either under the ‘slip rule’ as it is commonly known (rule 36.07) or its inherent jurisdiction. The slip rule states: “The Court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission.” The reference to a “judgment or order” does not include the reasons for decision.[2] As for the Court’s inherent power, there is some authority that a judgment may be altered…

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.

Continue reading Vinton v Sim (No 2)

Details

AGLC: Vinton v Sim (No 2) [2015] VSC 79
Case: [2015] VSC 79
Decision Date: 6 March 2015

CaseChat Overview and Summary

The case of Vinton v Sim (No 2) involved a dispute where the plaintiff sought to have an order rescinded on the grounds that it was contrary to a specific statutory provision. The matter was heard in the Federal Court of Australia. The central issue was whether the court had the authority to rescind an order that was obtained due to an inadvertent error, where the error was not merely a slip or omission but rather a significant misunderstanding of the law.

The court had to determine if the principles of the slip rule, which allow for the correction of minor errors in judicial orders, could apply in this situation. The slip rule is generally invoked when an order is clearly a clerical or typographical error, but the court needed to assess if a more substantial error could also warrant rescission. The court considered whether the inherent jurisdiction of the court, which allows it to correct errors to prevent injustice, could be exercised in this context.

The court concluded that the error made in obtaining the order was not merely a clerical mistake but a fundamental misinterpretation of the statutory requirement, rendering the reasons for the order incapable of being rectified as an accidental slip or omission. Given the gravity of the error and the necessity to prevent injustice, the court found it appropriate to exercise its inherent jurisdiction to rescind the order. The court's decision recognised the importance of adhering to statutory provisions and ensuring that judicial orders are in compliance with the law. The final orders included the rescission of the original order and the court's direction to proceed with a new application for an order in accordance with the statutory requirements.

Orders