Blacker v National Australia Bank Limited [2001] FCA 129 (23 February 2001)

Last Updated: 26 February 2001

FEDERAL COURT OF AUSTRALIA

Blacker v National Australia Bank Limited [2001] FCA 129

JUDGMENTS AND ORDERS - application for correction of error in order - where error said to arise from accidental omission - whether order stating Court's intention at time of making earlier order constitutes correction of earlier order - no scope for correction - any accidental omission irrelevant.

JUDGMENTS AND ORDERS - judgment debt - interest on judgment debt - date from which judgment debt carries interest - date as of which order entered - whether date as of which order entered taken to be date on which order made - whether order expressed to take effect at later date becomes order made on later date.

Federal Court of Australia Act 1976 (Cth) ss 4, 52(1)

Federal Court Rules (Cth), O 35 r 3, O 35 r 7(3), O 36 r 9

Statutory Rules 1988 (Cth) No 14, r 2

Explanatory Statement Statutory Rules 1988 No 14

Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989) 86 ALR 283 referred to

Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183 referred to

Garner, A Dictionary of Modern Legal Usage, 2^nd ed 1995, at 80

PETER RAYMOND BLACKER & CHRISTINE BLACKER

v NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)

NG 997 of 1997

KATZ J

23 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 997 of 1997

BETWEEN:	PETER RAYMOND BLACKER & CHRISTINE BLACKER APPLICANTS/CROSS-RESPONDENTS
AND:	NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 RESPONDENT/CROSS-CLAIMANT
JUDGE:	KATZ J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1 The cross-claimant's application be dismissed.

2 The cross-claimant pay the cross-respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 997 of 1997

BETWEEN:	PETER RAYMOND BLACKER & CHRISTINE BLACKER APPLICANTS/CROSS-RESPONDENTS
AND:	NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 RESPONDENT/CROSS-CLAIMANT

JUDGE:	KATZ J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 25 May 2000, I published my reasons for judgment on various claims and cross-claims which had been made against one another by the Blackers and the NAB respectively: see Blacker v National Australia Bank Ltd [2000] FCA 681 (unreported).

2 Among the matters with which I dealt in my reasons for judgment were my reasons for concluding that this Court had no jurisdiction to entertain a claim which had been made against the NAB by the Blackers under the Contracts Review Act 1980 (NSW) ("the CRA"): see at [26]. At the same time, however, as explaining that conclusion, I made plain in my reasons for judgment: see at [29]; my view that it would still be open to the Blackers to pursue such a claim in the New South Wales Supreme Court.

3 When publishing my reasons for judgment on 25 May 2000, I directed the parties to put forward minutes of proposed orders giving effect to those reasons for judgment, with oral submissions to be made on those minutes of proposed orders on 8 June 2000.

4 Among the minutes of proposed orders which the NAB put forward was a proposed order in the following terms: "Judgment for the respondent/cross claimant on the cross claim in the sum of $1,551,475.68".

5 On 8 June 2000, the parties made oral submissions as to the orders which I should make to give effect to my reasons for judgment of 25 May 2000. The NAB gave no explanation during its oral submissions on 8 June 2000 as to how it had calculated the sum of $1,551,475.68 to which I have referred above, but the Blackers conceded during their oral submissions that that was the appropriate sum for which the NAB should have a money judgment on its cross-claim, assuming that I was to make on that day an order giving to the NAB a money judgment on its cross-claim. However, their primary submission was that I should not, on that day, make (relevantly) the NAB's proposed order giving to it a money judgment on its cross-claim, because to do so could prejudice CRA proceedings which they had recently begun against the NAB in the Supreme Court.

6 After hearing the parties' submissions, I did, on 8 June 2000, make an order in the terms which I have set out in the next preceding paragraph. (I use the word "make" in the preceding sentence and subsequently in these reasons for judgment in a non-technical sense and subject to dealing later (see at [25]) with an argument made before me yesterday by the Blackers that I did not, in a technical sense, "make" the relevant order on 8 June 2000.) However, I concurrently ordered, persuaded by an oral submission made by the Blackers in the alternative to their primary submission, that that order, as well as certain other orders which I then made, "shall take effect at 19 June 2000". The making of that "taking effect" order was contrary to the submissions of the NAB, and was intended, as I made plain during the oral submissions, to give to the Blackers an opportunity to seek interlocutory relief in their pending Supreme Court proceedings, which interlocutory relief would, before the taking effect of those orders which the NAB had obtained from me, restrain it from enforcing those orders once they took effect. In making my "taking effect" order, I relied on O 35, r 3 of the Federal Court Rules (Cth) ("the Rules") (the terms of which rule are set out at [25] below).

7 In the result, as I understand it, no interlocutory relief was granted to the Blackers by the Supreme Court before 19 June 2000. (Indeed, I do not know whether any was applied for.)

8 There is in the Court file in the present matter a document containing a record of the orders which I made on 8 June 2000, which document shows that it was prepared by the NAB's solicitors. That document bears the signature of a Deputy District Registrar and the seal of the Court. Although the document has, following the Deputy District Registrar's signature, the text: "Date Entered: ", no date was inserted in the document after that text. However, at the top of the document there appears the stamp of the Court, showing that the document was filed on 20 June 2000. Further, below the stamp appears the information, "JUDGE: KATZ J DATE: 8 JUNE 2000 WHERE MADE: SYDNEY".

9 Then, on 26 July 2000, the Blackers sought from me a variation of my order of 8 June 2000 that my order that there be judgment for the NAB on its cross-claim in the sum of $1,551,475.68 take effect at 19 June 2000. They did so because they had just become aware that, at the hearing of their Supreme Court proceedings beginning on the following day, the NAB proposed to argue that the existence of my now-effective order that there be judgment for the NAB on its cross-claim in the sum of $1,551,475.68 meant that their CRA claim must necessarily fail.

10 For reasons which I gave on 26 July 2000: see Blacker v National Australia Bank Ltd [2000] FCA 1011 (unreported); I acceded to the Blackers' application made that day and varied my order of 8 June 2000 that my order that there be judgment for the NAB on its cross-claim in the sum of $1,551,475.68 take effect at 19 June 2000. I did so by ordering instead that my order that there be judgment for the NAB on its cross-claim in the sum of $1,551,475.68 take effect "following the determination of Supreme Court Equity Proceedings Number 2676 of 2000". In varying my "taking effect" order of 8 June 2000, I relied on O 35, par 7(2)(e) of the Rules.

11 The Supreme Court proceedings were afterwards determined, although I am unaware of the date on which that occurred.

12 I understand that the NAB has now served on the Blackers a bankruptcy notice based on my order that there be judgment for the NAB on its cross-claim in the sum of $1,551,475.68 and has included in that bankruptcy notice a claim for interest on the sum of $1,551,475.68 for a period beginning on 9 June 2000 and ending on the date of the bankruptcy notice. I understand further that the Blackers have sought, in the Federal Magistrates Court, to have that bankruptcy notice set aside, on (apparently among others) the ground that it overstates the amount owing, since interest on the sum of $1,551,475.68 did not begin to accrue until some date later than 9 June 2000.

13 The NAB has now made application to me under O 35, subr 7(3) of the Rules, which subrule provides relevantly that "an error arising in a judgment or order from an accidental slip or omission ... may at any time be corrected by the Court". According to the NAB, the orders which I have thus far made in the present matter have an error arising in them from an accidental omission made by the NAB. In substance, that accidental omission is said to have been the NAB's accidental omission, when the matter was before me on 8 June 2000 and again on 26 July 2000, to make submissions regarding the question of the accrual of interest on the sum of $1,551,475.68 in light of my "taking effect" orders. As formulated during the hearing of the present application, the NAB seeks the following two orders: first, an order that my "taking effect" orders of 8 June 2000 and 26 July 2000:

"... were not intended to affect the combined operation of s. 52 of the Federal Court Act and Order 36 r. 9(3) of the Federal Court Rules, as to the date on which interest on judgment under s. 52 of the Federal Court Act commenced to run";

and, secondly, an order that the Blackers' judgment debt of $1,551,475.68 carry interest beginning on 9 June 2000.

14 It is convenient to set out immediately the provisions referred to by the NAB in its first proposed order, together with other related provisions.

15 Subsection 52(1) of Federal Court of Australia Act 1976 (Cth) (`the Act") provides: "A judgment debt under a judgment of the Court carries interest from the date as of which the judgment is entered." The word "judgment" is defined in s 4 of the Act as including an order.

16 Order 36 of the Rules is headed "Judgments and orders: entry". Rule 9 of that Order is headed "Manner of entry" and provides:

"(1) A party may enter an order by filing it in the form in which it has been settled by the Registrar.

(2) The Registrar may enter an order under subrule (1) on the direction of the Court or the request of a party.

(3) Unless the Court otherwise orders, the entry of an order shall bear the date on which it is pronounced or made."

17 In my view, the seeking by the NAB of the orders to which I have referred above (see at [13]) was misconceived.

18 As to the first of those orders, I am unable to see how O 35, subr 7(3) of the Rules justifies my making an order stating what my intention was when making my "taking effect" orders of 8 June 2000 and 26 July 2000. All other things apart, merely to state what my former intention was would not amount to the correction of any error arising in any earlier orders of mine.

19 As to the second of those orders, the date from which the Blackers' judgment debt of $1,551,475.68 carries interest is directed by subs 52(1) of the Act. That date is the date "as of" which the judgment which created the judgment debt was entered. (For a discussion of the usage of the words "as of", see Garner, A Dictionary of Modern Legal Usage (2^nd ed.) at 80.) Since the Act itself makes no provision regarding the entry of judgments, one obviously turns, for the purpose of determining the date as of which the judgment which created the judgment debt was entered, to the Rules.

20 I have already set out above (at [16]) the terms of O 36, subr 9(3) of the Rules. In 1988, that subrule was added to the first two subrules of r 9 by Statutory Rules (Cth) 1988 No 14, r 2. That addition is the only amendment which has been made to r 9 since that rule was first made in 1979. At the time of the addition of subr (3) to r 9, an explanatory statement was issued, as is typically done in connection with the making of delegated legislation. In that statement, issued by the authority of the Judges of this Court, it was said of the addition of subr (3) to r 9 that it "clarifies when an order of the Court is entered and thereby removes a difficulty associated with determining the effect of section 52 of the Federal Court of Australia Act 1976 as to when interest runs on a judgment of the Court".

21 I infer from that explanatory statement that the intent of enacting O 36, subr 9(3) of the Rules was to provide that, unless the Court otherwise orders, an order, when entered, is taken to have been entered on the date on which it was pronounced or made. I construe the subrule in accordance with that intent, adding that, on the NAB's present application, both the Blackers and the NAB accepted that that was the correct construction of the subrule.

22 Thus, in the present case, given that my order that there be judgment for the NAB for $1,551,475.68 has been entered (a matter which the Blackers conceded before me on the present application, recognising (realistically, I consider) that the omission from the relevant document to which I have referred in [8] above would not avail them in that respect) and given further that I have not ordered otherwise at any time for the purpose of O 36, subr 9(3) of the Rules (a matter which the Blackers also conceded before me on the present application), it would appear that the Blackers' judgment debt of $1,551,475.68 has, pursuant to subs 52(1) of the Act, carried interest "from" 8 June 2000, the date on which I made the relevant order. (As to the meaning of the word "from" in the present context, see Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989) 86 ALR 283 (FCA: Burchett J) and see also Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183 at 187 (Hill J)).

23 However, the Blackers argued before me (as I foreshadowed in [6] above) that I did not, within the meaning of O 36, subr 9(3) of the Rules, "ma[k]e" the relevant order on 8 June 2000. It was their submission that the effect of my "taking effect" order of 8 June 2000 was that I did not make the order creating the judgment debt on 8 June 2000, but rather made it on 19 June 2000. That that was the effect of my "taking effect" order of 8 June 2000 was said to flow from the terms of O 35, r 3 of the Rules, under which rule, as I have already mentioned (see at [6] above), I made my "taking effect" order. (I note that the Blackers made no submission before me regarding the effect of my "taking effect" order of 26 July 2000; they limited themselves to the effect of my "taking effect" order of 8 June 2000.)

24 I reject that submission.

25 Order 35, r 3 of the Rules provides, "A judgment or order shall take effect on the date on which it is pronounced or made, unless the Court orders that it take effect at an earlier or later date". It is apparent to me that the implied conclusion to that rule is, "than the date on which it is pronounced or made". To read into the rule such words accords entirely with common usage and the Blackers relied on no authority before me which would either require or permit the rule to be read otherwise. Nor does reading the rule as I do give rise to the risk of unsatisfactory consequences, given the power conferred on the Court by the opening words of O 36, subr 9(3) of the Rules.

26 Thus, nothing in either of my two "taking effect" orders affected (or could have affected) the conclusions that I made the relevant order on 8 June 2000, that that order, having been entered, is taken to have been entered on 8 June 2000 and that the judgment debt under that order therefore carried interest "from" 8 June 2000. Accordingly, any omission by the NAB to advert on 8 June 2000 and 26 July 2000 to the effect of the relevant "taking effect" order so far as the accrual of interest on the judgment debt was concerned was irrelevant.

27 In short, the question whether the judgment debt of $1,551,475.68 carries interest beginning on 9 June 2000 is not one to be resolved by an exercise of the Court's power under O 35, subr 7(3) of the Rules, but is rather one to be resolved by the resolution of the question what the word "from" in subs 52(1) of the Act means. That question will no doubt be resolved, if it becomes necessary to do so, by the Federal Magistrates Court, before which court the Blackers' application to set aside the NAB's bankruptcy notice is to be heard.

28 In the circumstances, the NAB's present application will be dismissed. I consider it appropriate that the NAB bear the Blackers' costs of that application, given that I am dismissing it because it was unnecessary.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated: 23 February 2001

Counsel for the Applicants/Cross-respondents:	L J Aitken
Solicitors for the Applicants/Cross-respondents:	Commins Hendriks
Counsel for the Respondent/Cross-claimant:	J E Thomson
Solicitors for the Respondent/Cross-claimant:	Dibbs Crowther & Osborne
Dates of Hearing:	20 and 22 February 2001
Date of Judgment:	23 February 2001