David Robert Symes v the Commonwealth of Australia [1987] ACTSC 53 (17 July 1987)

SUPREME COURT OF THE ACT

DAVID ROBERT SYMES v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1765 of 1982
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Practice and Procedure - application of the "slip rule" under O.32, r.11 - failure to apply for special order for costs.

Rules of the Supreme Court of the Australian Capital Territory. O.65, r.7A(3), O.32, r.11

Magistrates Court (Civil Jurisdiction) Ordinance 1982, s.5(1)

Arnett v. Holloway (1960) VR 22

R. v. Cripps (1984) 2 All ER 705

Williams Supreme Court Practice, 2nd Ed., p1438

HEARING

CANBERRA
17:7:1987

ORDER

The order for costs made on 14 February 1985 be varied so as to add that the plaintiff have his costs on Supreme Court scale.

DECISION

This is an application by motion by the plaintiff to vary the order for costs made at the hearing of this matter on 14 February 1985. On that day I assessed the damages for personal injuries at $13,757.35 and the plaintiff's claim for property damage at $3,400. Having apportioned the liability for the accident as to 75 per cent to the plaintiff and as to 25 per cent to the defendant, I reduced the plaintiff's damages for personal injuries to $3,439.34 and property damage to $850 and entered judgment for the plaintiff in the sum of $4,289.34 with costs.

2. The defendant's counterclaim was agreed at $4,320.53 and applying the apportionment of liability referred to above, I entered judgment for the defendant against the plaintiff on the counterclaim for $3,240.39 and ordered that the plaintiff pay the defendant's costs on the counterclaim. The orders were drawn up and entered accordingly.

3. The plaintiff has applied for the application of the "slip rule" in such a way as to vary the order for costs in the plaintiff's favour so as to add that the plaintiff have his costs at full Supreme Court scale. The writ of summons by which the action was instituted was issued on 27 April 1983. The applicable provision in relation to costs was Order 65, rule 7A(3), which reads:

"(3) Subject to rule 1 of this Order, where in an

action or proceeding to which this sub-rule applies,
the plaintiff recovers, by judgment or otherwise, a sum
(exclusive of costs) not exceeding one-half of the
limit in point of amount to which the jurisdiction of
the Magistrates Court is limited, he shall, unless the
Court or Judge otherwise orders, be entitled only to
the costs and disbursements to which he would have been
entitled if he had instituted the action in the
Magistrates Court."

4. The jurisdiction of the Magistrates Court was limited at the relevant time to $10,000 (Magistrates Court (Civil Jurisdiction) Ordinance 1982, s.5(1)). The title of the Court of Petty Sessions was amended to Magistrates Court on 12 December 1985 by Ordinance No. 67 of 1985.

5. The "slip rule", as it is known, is provided for in Order 32, rule 11, which is in the following terms:

"11. Clerical mistakes in judgments or orders, or
errors arising therein from any accidental slip or
omission, may at any time be corrected by the Court or
Judge on motion or summons, without an appeal."

6. The principles which govern the application of the slip rule are conveniently set out in Williams Supreme Court Practice, 2nd Ed., at pp 1438 et seq. and the White Practice 1985 under Order 20, rule 11. For convenience I repeat some of those principles. As a general rule the court has no power to review, rehear, vary or set aside any judgment after it has been passed and entered, either on an application made in the original action or in a fresh action brought to review such judgment. In general, a judgment or order once formally recorded can only be discharged or varied on appeal.

7. The general rule does not apply where there is a clerical mistake in the judgment or an error arising from an accidental slip or omission within Order 32, rule 11. Under Order 32, rule 11 the court has power to correct the mistake or error. Also the court has an inherent jurisdiction to amend any judgment which does not correctly state what the court actually decided and intended. The "slip rule" power is not a power granted to the trial judge as such. It is one of the powers of the court exercisable by a judge of the court who may or may not be the trial judge.

8. It now seems to be settled law that the application of the slip rule is not confined to giving effect to the judge's intention at the time when his judgment or order was made. It extends also to the intention which the court would have had but for the failure by reason of which there was an accidental slip or omission. The slip or omission may have been made by the party applying under the rule or, of course, by his counsel or solicitor (Arnett v. Holloway (1960) VR 22). The Court of Appeal in R. v. Cripps (1984) 2 All ER 705 at 710 observed with respect to the rule:

"It is surprisingly wide in its scope. Its primary
purpose is akin to rectification, namely to allow the
court to amend a formal order which by accident or
error does not reflect the actual decision of the
judge. But it also authorises the court to make an
order which it failed to make as a result of the
accidental omission of counsel to ask for it. It even
authorises the court to vary an order which accurately
reflects the oral decision of the court, if it is clear
that the court inadvertently failed to express the
decision which it intended. However, it cannot be
overemphasised that the 'slip rule' power can never
entitle the trial judge or a court to reconsider a
final and regular decision once it has been perfected,
even if it has been obtained by fraud."

9. When I pronounced judgment in the matter, neither counsel made any application for the exercise of the discretion as to costs provided for in Order 65, rule 7A(3). I have a recollection that at the time of pronouncing judgment, including the orders for costs, I considered whether any special order for costs would be appropriate, but as no application was made by either counsel for any special order, I did not make one. In the circumstances the plaintiff can only succeed on this application if he can establish that I would have made a special order for costs but for his failure to apply.

10. It was submitted on behalf of the plaintiff that, if application had been made at the trial for some special order as to costs, it is probable that I would have exercised my discretion in the plaintiff's favour and ordered that the plaintiff recover his costs on full Supreme Court scale. In support of that submission counsel for the plaintiff relied upon the difficulties as to liability in the action and the fact that the personal injury damages as assessed prior to apportionment exceeded the jurisdiction of the Magistrates Court. It was further submitted that because of the extent of the plaintiff's injuries and other matters sounding in general damages, any solicitor would have instituted proceedings on behalf of the plaintiff in the Supreme Court, despite the potential in the action for a finding of contributory negligence and the defendant's counterclaim.

11. I do not agree that the action presented any particular difficulties on the question of liability. The plaintiff's claim arose out of an intersection collision and, even on the plaintiff's case, he contributed to the cause of the collision by entering the intersection at a time when the traffic lights had turned from green to amber some five or ten metres before he reached the entrance to the intersection, travelling at a speed which he described as being not more than 60 kilometres per hour. He did not apply his brakes or take any evasive action before the collision.

12. I am satisfied that the claim involved some difficulties for the plaintiff on the issue of liability but not difficulties of such a nature as would warrant the institution of proceedings in the Supreme Court rather than the Magistrates Court. In other words, there were no particular complexities of fact or law.

13. A matter which does influence me, however, is the fact that the damages assessed exceeded the jurisdiction of the Magistrates Court. Although it is not relevant to consider what the plaintiff or his advisers would or might reasonably expect to recover at the time the proceedings were instituted, it seems to me that it would not be reasonable to require the plaintiff's advisers to make a prophecy about the level of damages which the plaintiff could reasonably expect to recover and the degree of apportionment by which that quantum might be reduced by reason of contributory negligence by the plaintiff. If it is a reasonable prognostication that the plaintiff will have his damages assessed at more than the statutory limit than he might recover in the Magistrates Court, it is a proper step in the course of the litigation to institute proceedings in the Court which has the jurisdiction to award those damages, rather than in the court which does not have that jurisdiction.

14. For these reasons I exercise my discretion under the slip rule in favour of the plaintiff and I order that the order for costs which I made in the action in favour of the plaintiff be on Supreme Court scale.

15. So far as the counterclaim is concerned, the amount thereof was always within the jurisdiction of the Magistrates Court and it is not appropriate to order that the defendant's costs on the counterclaim be taxed otherwise than on the Magistrates Court scale.

16. I shall hear counsel on the question of costs of this application.