Visscher v Teekay Shipping (Australia) Pty Ltd (No 3)

[2014] FCAFC 31

FEDERAL COURT OF AUSTRALIA

Visscher v Teekay Shipping (Australia) Pty Ltd (No 3)

[2014] FCAFC  31

Citation:	Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2014] FCAFC 31
Parties:	TIMOTHY VISSCHER v TEEKAY SHIPPING (AUSTRALIA) PTY LTD  ACN 079 641 580
File number:	NSD 1929 of 2012
Judges:	RARES, JAGOT AND BROMBERG JJ
Date of judgment:	24 March 2014
Legislation:	Federal Court Rules 2011 (Cth) r 25.14(1)(a)
Cases cited:	Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 applied Visscher v Teekay Shipping (Australia) Pty Ltd (No 2) [2014] FCAFC 19 referred to
Date of last submissions:	12 March 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr P Brereton SC with Mr B Cross
Solicitor for the Respondent:	Norton Rose Fulbright

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1929 of 2012

BETWEEN:	TIMOTHY VISSCHER Appellant
AND:	TEEKAY SHIPPING (AUSTRALIA) PTY LTD  ACN 079 641 580 Respondent

JUDGES:	RARES, JAGOT AND BROMBERG JJ
DATE OF ORDER:	24 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Order 1 made by the primary judge on 29 January 2013 be set aside and in lieu thereof it be ordered that:

1.The respondent pay the applicant’s costs up to 11:00 am on 9 March 2012, the applicant pay the respondent’s costs after that time on an indemnity basis and the respective liabilities of the respondent and the applicant to the other under this order may be set off against each other.

2.Order 3 made by the Full Court on 7 March 2014 be varied by substituting “pursuant to Order 1 made by the Full Court on 24 March 2014” for the words “pursuant to Order 1 made by the primary judge on 29 January 2013”.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1929 of 2012

BETWEEN:	TIMOTHY VISSCHER Appellant
AND:	TEEKAY SHIPPING (AUSTRALIA) PTY LTD  ACN 079 641 580 Respondent

JUDGES:	RARES, JAGOT AND BROMBERG JJ
DATE:	24 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Following delivery of the Full Court’s reasons on the issue of costs (Visscher v Teekay Shipping (Australia) Pty Ltd (No 2) [2014] FCAFC 19), Mr Visscher pointed out a matter that had not been addressed by the parties and so was overlooked by the Full Court. That was that he would have been entitled to an order for costs up to 11:00 am on 9 March 2012 by operation of r 25.14(1)(a), had the primary judge made the order for payment in his favour that the majority found Mr Visscher to be entitled to on appeal. Teekay did not oppose the correction sought by Mr Visscher.

2. Accordingly, it is necessary to vary the order made by the primary judge in favour of Teekay on 29 January 2013 that entitled it to party/party costs before 11:00 am on 9 March 2012 to give effect to the operation of r 25.14(1)(a) so that those costs listed are payable by Teekay to Mr Visscher and that thereafter he remain liable to pay Teekay’s costs on an indemnity basis. The respective entitlements of the parties under the costs orders made in the proceeding should be set off.

3. The orders that the Full Court made on 7 March 2014 were entered on 11 March 2014 before the Full Court had received Teekay’s response on 12 March 2014.  That response stated that Teekay did not oppose the amendment to the orders sought by Mr Visscher.  The entered orders should be varied pursuant to r 39.05(h) or the Court’s implied or inherent jurisdiction to correct an order made where an accident, omission or mistake has occurred incidentally in respect of a matter that was before it:  Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452 F-G per McHugh JA. Mr Visscher’s entitlement to the order under r 25.14(1)(a) was an issue before the Full Court that requires a variation to the orders made on 7 March 2014.

4. For the reasons above, the orders made on 7 March 2014 contain an error because they failed to recognise Mr Visscher’s entitlement to costs before 11:00 am on 9 March 2012 under r 25.14(1)(a). That error by the Full Court arose because of an accidental slip or omission.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Jagot and Bromberg.

Associate:

Dated:  24 March 2014