Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [1988] HCA 2; (1988) 77 ALR 190; (1988) 62 ALJR 151 (10 February 1988)

HIGH COURT OF AUSTRALIA

RAYBOS AUSTRALIA PTY LIMITED AND ANOTHER v. TECTRAN CORPORATION PTY LIMITED AND OTHERS
S. 86/130

High Court of Australia
Toohey J.(1)

CATCHWORDS

HEARING

Canberra
10:2:1988

DECISION

TOOHEY J. On 6 November 1987 I handed down judgment in which I dismissed the applicants' summons seeking a review of taxation of costs relating to proceedings before this Court which were incidental to an application for special leave to appeal from a judgment of the Court of Appeal of New South Wales.

2. The respondents, who were successful on the application, were represented by counsel on the hearing of the summons and when judgment was delivered. An order was made dismissing the application but counsel for the respondents sought no order as to costs. The respondents have now lodged a summons for an order that the applicants pay their costs of the dismissed summons. Their application is supported by an affidavit sworn by a partner in the firm of solicitors acting for the relevant respondents. The affidavit is brief and includes a statement that the deponent has been informed by counsel that when he took judgment on 6 November 1987 "he did not ask for an order for costs and accordingly no order for costs was made". One might have expected some explanation for the failure to ask for costs but, the inference being clear that it was the respondents' intention to seek costs, I conclude that there was an oversight on the part of counsel. Certainly that is the way the matter is put in the written argument lodged on behalf of the respondents.

3. In support of their contention that it is not too late for an order for costs to be made, the respondents pray in aid O.29 r.11 of the High Court Rules which reads:
"A clerical mistake in a judgment or order, or an error
arising in a judgment or order from an accidental
slip or omission, may at any time be corrected
by the Court or a Justice on motion or summons."
4. In the respondents' submission, there was "an accidental slip or omission" on the part of counsel leading to an error arising in the order made on 6 November 1987. The weight of authority supports the submission that the rule is available in the present circumstances.

5. In L. Shaddock and Associates Pty. Ltd. v. Parramatta City Council (No. 2) [1982] HCA 59; (1982) 151 CLR 590 this Court treated O.29 r.11 as a reflection of the inherent jurisdiction of a court to correct an error arising in the circumstances there mentioned and expressly held the rule to extend "to authorize an omission resulting from the inadvertence of a party's legal representative" (at p 594). This view was affirmed in The Commonwealth v. McCormack [1984] HCA 57; (1984) 155 CLR 273.

6. In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced: Coppins v. Helmers and Brambles Constructions Pty. Ltd. (1969) 2 NSWR 279. That is the situation which has arisen here. None of the cases so far mentioned was concerned with a failure to ask for the costs of a successful proceeding. However In re Inchcape (Earl of) (1942) Ch 394 was such a case and Morton J. there held that a rule comparable to O.29 r.11 empowered the court to amend an order to include provision for costs which had not been asked for earlier. So too was Rowe v. Delfs (1966) WAR 49 where Hale J. varied an earlier order by including a certificate for the cost of transcript which counsel had omitted to ask for.

7. I am satisfied then that the Court is empowered to grant the relief which the respondents seek. I am also satisfied that it is appropriate to make an order amending the order made on 6 November 1987 by including provision that the applicants pay the respondents' costs of that summons. In the ordinary course a successful party is entitled to costs: Ritter v. Godfrey (1920) 2 KB 47, at pp 52-53, 60-61. There are no considerations prevailing that would warrant departing from the established rule. Mr. Rajski has argued that the review of taxation of costs by the Court did not require an attendance on behalf of the respondents. That submission must be rejected; the respondents had a lively interest in the outcome of the review and their attendance was necessary for the Court to have an adequate understanding of the issues involved.

8. Having regard to the history of the proceedings in this Court, it is advisable to put one matter beyond doubt. The applicants' summons for a review of taxation of costs involved a consideration of O.71 r.62 which provides inter alia that where counsel attends Justice's Chambers, costs of the attendance shall not be allowed unless the Justice certifies it to be a proper case for counsel to attend. There is no doubt that the hearing of the review of taxation involved an attendance at Justice's Chambers; during the course of the hearing counsel for the respondents acknowledged this to be the case. The summons now before me does not seek any certificate under O.71 r.62 in respect of the review of taxation and I grant none. I mention this to avoid the possibility of any future misunderstanding.

9. There is no reason why the applicants should pay the costs of the present summons. It was brought about by an oversight on the part of the respondents to which the applicants did not contribute in any way. Indeed, if the applicants had been represented, a question may have arisen as to whether they should have the costs of this summons. But they were not represented and, pursuant to directions given by the Court, they filed written submissions. In the circumstances there will be no order as to the costs of this summons.

ORDER

There will be an order varying the order of the Court made on 6 November 1987 by adding a provision that the applicants pay the respondents' costs of the summons.