Vinton v Sim (No 2)
[2015] VSC 79
•6 March 2015
| 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 |
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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 |
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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provision - Reasons not capable of being rectified as an accidental slip or omission - Necessity to have order rescinded - Applicability of slip rule - Exercise of inherent jurisdiction of the Court - Order rescinded
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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 to correct a clerical error, but that power does not go any further.[3] If there is an error in reasoning then that is not a clerical mistake, and a judgment or order which reflects the consequences of that error is, itself, free from error, although appealable. [4]
[2]See, eg, Onslow v Commissioner for Inland Revenue (1890) 25 QBD 465.
[3]See, eg, Hazeltine Corp v International Computers Ltd [1980] FSR 521.
[4]Austal Ships Sales Pty Ltd v Aktiebolag (2009) 263 ALR 384.
There are many authorities on the slip rule as it has to deal with a variety of situations.[5] Both the slip rule (and the inherent jurisdiction of the Court) generally apply only in circumstances where the orders sought to be amended relate to incidental, rather than substantive matters before the Court.[6] In most cases, it must be proven that the error arose due to an accidental slip or omission on the part of the Court or of the legal representative of one of the parties. The principle, based on the interests of achieving finality of litigation, is that powers to correct orders are only to be available to correct the record so that it accurately reflects what the Court did or intended to do.[7] Deliberate decisions made by a judge are not covered by the slip rule because this would “invite judges to succumb to the very human failing of regretting a decision and then convincing themselves that they cannot ever have intended it”.[8]
[5]See the commentary in Williams, Civil Procedure Victoria [36.07.0] ff.
[6]Storey v Keers Pty Ltd v Johnstone (1987) NSWLR 446.
[7]See Burrell v R (2008) 238 CLR 218).
[8]R v Cripps; Ex Parte Muldoon [1984] 1 QB 686, 697.
In addition, a distinction is drawn between an omission and an afterthought. The former involves counsel’s failure to raise an issue that was intended to be raised, and the latter involves thinking afterwards of an additional issue that should have been raised. Generally speaking an afterthought cannot be corrected under the slip rule, although there is some suggestion that relief in respect of an afterthought may be available under the Court’s inherent jurisdiction.[9] Similarly, an error of law either as submitted by counsel or as held by the Court, would be I think considered to be a deliberate decision that can only be altered on appeal.
[9]See, eg, Lewandowski v Lovell (No 2) (Unreported, WASC, FC, 14 June 1986).
The inherent power to correct orders is usually not considered independently of the slip rule, but it is considered to be wider in scope than the slip rule. The inherent jurisdiction of the Court has a ubiquitous nature and many functions, generally invoked to facilitate the proper conduct of judicial proceedings or to overcome practices or devices that tend to delay, impede or frustrate judicial functioning: see Keith Mason QC, “The Inherent Jurisdiction of the Court”.[10] Rather than focusing specifically on the correction of accidental slips or omissions, the question of whether to amend an order under the Court’s inherent jurisdiction is to be determined by broad considerations of justice.[11]
[10](1983) 57 ALJ 449
[11]Stowe v Stowe (Unreported, WASC, FC, 16 October 1995.
There is an authoritative basis for holding that both the slip rule and the inherent jurisdiction of the Court provide the power to rescind ancillary orders that are made in contravention of an express statutory provision.[12] In particular, in Pacific Steel Constructions Pty Ltd v Barahona (No 2),[13] the Court rescinded an order for costs that was made in contravention of an express statutory provision requiring that the parties to the litigation bear their own costs. In that case, Allsop P and Beazley and Giles JJA stated
There may be a question whether the liberty to apply granted … extends to the order that Pacific now seeks. Nonetheless, the Court considers that Pacific is entitled to have the order it seeks, either pursuant to [the slip rule] or in the exercise of the Court’s inherent jurisdiction, as both are explained and discussed in Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc. The Court acted unmindful of the WIM Act and the Regulation. We are satisfied that the order sought by Pacific may be made by the Court both in its inherent jurisdiction and pursuant to the slip rule.
[12]City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463.
[13][2010] NSWCA 9.
If it matters, I prefer to look to the inherent jurisdiction as I see it as an exercise of power to ensure fidelity to the law.
I shall make an order rescinding the Court’s order made on 10 November 2014.
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