Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 3)

[2015] ACTSC 149

1. The orders of the Master in Brennand v Hartung [2012] ACTSC 150 be amended to add a further order as follows:

3A The plaintiffs pay the defendants' costs of the Application in Proceeding dated 12 September 2012.

PRACTICE AND PROCEDURE - Accidental slip or omission - Application of the slip rule - Amendment of orders - Amendment of reasons - Omission of an order clearly contemplated by the reasons for decision is amenable to correction under the slip rule

PRACTICE AND PROCEDURE - Costs - Ordinary principles to apply - No prejudice suffered - Order for costs in an application under the slip rule - No order for costs where the error was made by the court - Need for suitors fund

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Court Procedures Rules 2006 (ACT), rr 1605, 1606, 6906

A (A child) [2014] 1 WLR 4453

ASIC v Sydney Investment House Equities Pty Ltd [2009] NSWCA 107

Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1983) 58 ALJR 51

Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370

Bilioara Pty Ltd v Leisure Investments Pty Ltd [2002] NTSC 44

Brennand v Hartung [2012] ACTSC 150

Brennand v Hartung [2012] ACTSC 132

Brennand v Hartung [2012] ACTSC 150

Brennand v Hartung [2013] ACTSC 132

Brennand v Hartung [2014] ACTSC 326

Brennand v Hartung (No 2) [2015] ACTSC 2

Commonwealth v Davis Samuel Pty Ltd (No 9) [2015] ACTSC 127

Cowdery v Adidem Pty Ltd (t/as The Body Shop) [2014] VSC 132

Deputy Commissioner for Taxation v VATS [2014] FCCA 1744

DIB Group Pty Ltd v Coolebah Tree Aust-Wide Pty Ltd [2011] FCAFC 57

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655

Fletcher Constructions Australia Ltd v Linas Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28

Flint v Richard Busuttil & Co Pty Ltd [2013] FCA 925

Hatton v Harris [1892] AC 547

Hatton v Hatton (No 2) [2012] NSWSC 353

Hazeltine Corporation v International Computers Ltd [1980] FSR 521

Hudson Investment Group Ltd v Australian Hardboards Ltd [2005] NSWSC 931

Hy-Tec Industries Pty Ltd v Constable (No 3) [2006] FMCA 990; (2006) 233 ALR 323

In Re Suffield & Watts; Ex parte Brown (1888) 20 QBD 693 Jovanovic v The Queen [1999] FCA 1008; (1999) 92 FCR 580

L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) [1982] HCA 59; (1982) 151 CLR 590

Norman v Norman (1992) 6 WAR 372

Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72

Petrovic v Gai Waterhouse Racing Pty Ltd [2007] NSWSC 740

Prince v Malouf [2014] NSWCA 12

Re Estate John Leonard Deceased (1899) Sol Jo 736

Re Langridge; Ex parte Bennett [1998] FCA 879

Re Whitechurch [1990] VicRp 61; [1990] VR 719

R v Agritraders Ltd [1983] QB 464

R v Cripps; Ex parte Muldoon [1984] QB 686

Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569

Sidorov v Sidorov (No 2) [2008] FamCA 1102

Spencer v Bamber [2012] NSWCA 274

Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 Surf Road Nominees Pty Ltd v Tass James [2004] NSWSC 223

Tre Cavalli Pty Ltd v The Berry Rural Co-operative Society Ltd [2013] NSWCA 235

Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463

von Reisner v Chepurin [2013] NSWSC 847

Wickey v The Queen (No 2) [2012] ACTCA 51; (2012) 269 FLR 289

Wynona v Friend [2011] FamCAFC 6

John Tarrant, Amending Final Judgments and Orders (The Federation Press: Sydney, 2010)

Best Practice Education Group Ltd t/as Blue Gum Community School (Second Respondent)

Kathryn Brennand and Brian Jonathan Naughton Self-represented (Plaintiffs)

1. On 12 April 2012, the first plaintiff commenced proceedings in this Court arising out of the withdrawal of an offer of a place at the school which is the second defendant, of which the first defendant was principal.

2. The circumstances of the case are set out in the reasons given by Master Harper in Brennand v Hartung [2012] ACTSC 132 (Brennand (No 1)) at [12]-[16].

3. The proceedings had a chequered progress as is set out in my decision Brennand v Hartung [2014] ACTSC 326 (Brennand Appeal Decision) at [14].

4. On 28 September 2012, Master Harper made various orders including refusing an extension of time, for which the plaintiffs had applied under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and striking out the Statement of Claim that they had filed. He also made, and intimated (a matter that will be dealt with below) the making of, costs orders. See Brennand v Hartung [2012] ACTSC 150 (Brennand (No 2)).

5. On 18 July 2013, Master Harper dismissed an application to join a third defendant and, on reviewing a draft Statement of Claim that had been filed consequent upon the striking out of the earlier statement of claim, considered that none of the present claims could succeed and dismissed the proceedings. See Brennand v Hartung [2013] ACTSC 132 (Brennand (No 3))

6. The plaintiffs appealed against that decision and sought a review of a decision of the Deputy Registrar on an assessment of costs. I dealt with them in the Brennand Appeal Decision, dismissing the appeal and review generally, save for an amendment to the Costs Certificate of the Deputy Registrar to reflect an admitted offset that needed to be recognised.

7. On 22 January 2015, I made costs orders consequent upon my decision dismissing the appeal. See Brennand v Hartung (No 2) [2015] ACTSC 2.

8. Part of my decision related to orders of Master Harper in Brennand (No 2) where his Honour clearly intended certain orders but made them either elliptically or inadequately. While the intention was clear, I suggested in the Brennand Appeal Decision (at [154]), that the record should be rectified by application under r 6906 of the Court Procedures Rules 2006 (ACT). As noted in R v Cripps; Ex parte Muldoon [1984] QB 686 at 694, such a provision is commonly called "the slip rule".

9. The slip rule is usually applied to perfected orders for, until an order is perfected, it can be recalled, reconsidered and revealed. See In Re Suffield & Watts; Ex parte Brown (1888) 20 QBD 693 at 697; DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 244.

10. It has been pointed out in Norman v Norman (1992) 6 WAR 372 at 375 that the precise time when an order or judgment is perfected is not entirely clear. Here, the order was set out in a document headed "Order" in a standard form published with the reasons in Brennand (No 3). The orders were also recorded in the associate's notes, signed by her. In criminal proceedings, such as a sentence, this recording by the associate appears to be the point when the orders of the court pass into the court record: Jovanovic v The Queen [1999] FCA 1008; (1999) 92 FCR 580 at 590; [48].

11. On the other hand, there is a prescribed form for orders: Form 2.45 (Prescribed Form AF 2006-473). It also has provision in it for a date to be inserted when the order is "entered".

12. Many courts have specific provisions as to when an order will be perfected or authenticated. See, for example, Deputy Commissioner for Taxation v VATS [2014] FCCA 1744 at [36]; Cowdery v Adidem Pty Ltd (t/as The Body Shop) [2014] VSC 132 at [42]; DIB Group Pty Ltd v Coolebah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [72].

13. This is not so in this jurisdiction, where r 1605 of the Court Procedures Rules simply provides:

1. (1) An order of the court is made by the order -

(a) being pronounced in court by the judicial officer making the order; or

(b) being recorded, in accordance with the court's practice, as having been entered.

Note Order is defined in the dictionary to include judgment (see also def made).

(2) An order takes effect on the day that the order is made.

(3) However, the court may order that the order take effect on an earlier or later date or at any earlier or later time.

Note: Pt 6.2 (Applications in proceedings) applies to an application for an order under r (3).

14. There is no clear definition of when an order is perfected or authenticated. It has been suggested in Hiscox v Outhwaite (No 1) [1991] 3 All ER 641 at 646, that a document, such as an arbitrator's award, is perfected when it is signed. Common usage suggests that a perfected or authenticated or entered order will have had the seal of the court affixed and be signed by a relevant officer, such as the registrar. See, for example, Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655 at 657; Re Whitechurch [1990] VicRp 61; [1990] VR 719 at 722.

15. This is, however, complicated by the terms of r 1606 of the Court Procedures Rules which provides

1. (1) If a judicial officer or associate writes the date and terms of an order on a court file or document on a court file, then, unless the order is filed in the court, the writing is sufficient proof of the making of the order, its date and terms.

(2) An order of the court is filed in the court if a document embodying the order, and the date the order was made, is drawn up, settled and signed by the registrar, and filed in the court.

(3) The party in whose favour an order is made may, not later than 7 days after the day the order is made, file in the court a draft order for settling by the registrar.

Note See

• approved form 2.41 (General form of judgment - civil proceeding) AF2006-472
• approved form 2.42 (General form of order - civil proceeding) AF2006-473.

(4) If a draft order is not filed in accordance with subrule (3), another party to the proceeding may file in the court a draft order for settling by the registrar.

(5) If a draft order is filed in the court under this rule, the registrar -

(a) may approve the draft with or without amendment; and

(b) must enter the order on the filing of the final order in accordance with the approved draft.

(6) An order must be filed in the court if -

(a) the order is a judgment or other final order; or

(b) the court directs it to be filed; or

(c) a party asks for it to be filed.

(7) Unless an order is filed in the court -

(a) the order may not be enforced under part 2.18 (Enforcement) or by other process; and

(b) an appeal may not be brought against the order without the leave of the court to which the appeal would be made.

Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(8) However -

(a) an order appropriate on default of an earlier order may be made without the earlier order being filed in the court; and

(b) costs payable under an order may be assessed without the order being filed in the court.

16. Thus, r 1606(1) seems to be amenable to an inference that the associate's note, kept in accordance with this sub-rule, is the perfecting or authentication of the order. On the other hand, the balance of the rule provides for the drawing up of an order in the more common and perhaps traditional way, which would be regarded as the perfecting or authentication of the order, leading to suggest the inference is a weak one.

17. I do not need to make a final finding on this matter. If the orders are perfected because of the entry in the associate's notes which was signed by her, then the slip rule will apply; if not, then the court has power to recall and amend the orders in any event.

18. While I would not consider that a judicial officer different from the judicial officer who delivered judgment could recall and reconsider a judgment that had not been entered, even where the original judicial officer was unavailable because of death, retirement or leave. It seems to me that amending pronounced (but not perfected or authenticated) orders is a different matter and, using the principles surrounding the slip rule as a guide, it would be proper to do so.

19. Thus, I shall proceed on the basis that the slip rule applies or, if it does not, I should, in the circumstances, apply the principles applicable to that rule.

20. Application has now been made by the defendants for an order that the orders made on 28 September 2012 be amended as suggested by me.

21. In Brennard (No 2), his Honour then made the following orders:

1. The defendants' costs of their application in proceeding dated 18 July 2012 be paid by the plaintiffs.

2. The defendants' costs of the application by the plaintiffs for extension of time under the Administrative Decisions (Judicial Review) Act 1989 be paid by the plaintiffs.

3. The statement of claim filed by the plaintiffs on 7 September 2012 be struck out.

4. The plaintiffs have leave to file and serve an amended statement of claim by 19 October 2012.

5. The defendants have liberty to apply on three days' notice in relation to the amended statement of claim.

6. The application in proceeding by the defendants dated 28 August 2012 be dismissed with costs.

7. The defendants' application in proceeding dated 18 September 2012 be dismissed with costs.

22. It is clear that order 3 is referrable to an Application in Proceeding filed by the defendants dated 12 September 2012 which, inter alia, sought an order "that the statement of claim filed by the plaintiffs on 7 September be struck out". Indeed, in his reasons, Master Harper said at [4]:

On 12 September the solicitors for the defendants filed another application in proceeding, seeking an order that the statement of claim be struck out. Both of these applications were listed before me on 14 September when they were adjourned to 21 September.

23. The judgment in Brennand (No 2) made it clear that the hearing to which the judgment related was conducted on 21 September 2012. The defendants, having been successful, sought an order that these costs, which their successful challenge would ordinarily attract, be ordered to be assessed on an indemnity basis.

The challenge by the defendants to the statement of claim was justified. The plaintiffs [sic] will have an order for the costs of their application dated 12 September 2012. I am not satisfied that they have made out a case for those costs being assessed on anything other than the usual basis.

1. the Master appears not to have translated the intention expressed in [24] to an express order; and

2. there has been a slip in his Honour's articulation of his intention in paragraph [24].

26. As to the latter, it is patently clear that the reference in the second sentence to "plaintiffs" should have been to "defendants". It was the defendants who had applied by Application in Proceeding on 12 September 2012 for the statement of claim to be struck out. There is no Application in Proceeding of the plaintiffs on the file dated 12 September 2012. The orders that the Master made make it clear that he had acceded to the defendants' application, striking out the Statement of Claim. Applying the ordinary rule that costs follow the event (see Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at 96; [66]) the defendants were entitled to an order for costs. While the court has a wide discretion, there was nothing in his Honour's judgment, and nothing was put to me, to suggest that this was a case of those rare exceptions where a successful party should not only be deprived of their costs but also pay the costs of the other party.

27. The error made by the learned Master in Brennand (No 2) at [24] is clear. The question is what should be done about it.

28. I am hesitant to amend the reasons of his Honour, which would require a direction for the correction of [24].

29. There seems no doubt that a judicial officer can amend the reasons given for judgement. As Beazley JA said in Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at 467; [41], "[i]t is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons".

30. Her Honour cited extra curial writings of Gleeson CJ and Kirby J to show that this was a wide power which extended beyond a mere slip but may include "improving the manner of expression of their reasons, provided, of course, that they do not alter the substance". This latter issue is the touchstone of whether an alteration to such reasons is permissible - does the revision alter the substance of the reasons that were given orally: Prince v Malouf [2014] NSWCA 12 at [144]. The test is an objective one: Spencer v Bamber [2012] NSWCA 274 at [8]- [9], [13], [137]-[154].

31. It was pointed out by Gleeson CJ in Tre Cavalli Pty Ltd v The Berry Rural Co-operative Society Ltd [2013] NSWCA 235 at [56] that the power to revise a judge's reasons for decision applies equally to reserved judgments given orally. This appears to be an inherent power in a common law court and an implied power in a statutory court. This power is not a power under the slip rule, however, for it is directed at the reasons for decision and not to the decision itself - that is, the decision being the ultimate resolution of the issues between the parties, the dispute which the court has quelled.

32. Clearly, such alterations to the reasons for judgment can only be made by the judicial officer who delivered the reasons. No other judicial officer can make such an amendment.

33. Further, the reasons in this case were not delivered orally. The decision was reserved and written reasons for the orders made were published. That circumstance seems to me to bring the position outside the principles to which I have just referred. The rationale for such principles simply do not exist where judgment has been reserved and written reasons are published.

34. Nevertheless, it seems that such reasons can be amended. Indeed, that has not been uncommon in this Court where a corrigendum will, from time to time, be issued to correct errors in the published reasons given for making orders or giving judgment following the decision being reserved.

35. Such amendments, however, are usually confined to errors in the citation of authorities, the name of counsel or solicitors, dates of hearings and the like. These amendments, which might be, indeed, almost typographical (though not strictly so), are often made in chambers without recourse to the parties.

36. Indeed, in Todorovic v Moussa, Beazley JA stated at 469; [48], that the same principles as apply to ex tempore judgments do apply to reserved judgments and her Honour did not add the qualifier mentioned by Gleeson CJ of "delivered orally".

37. This is an approach supported by the Court of Appeal in Victoria in Fletcher Constructions Australia Ltd v Linas Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 at 48; [51] where Chernov JA, with whom Charles and Vincent JJA agreed, accepted that the approach to ex tempore decisions or reserved reasons delivered orally should apply to published written reasons.

38. This also appears to be the approach adopted in the United Kingdom. In A (A child) [2014] 1 WLR 4453 at [34], Underhill LJ, relying on Hazeltine Corporation v International Computers Ltd [1980] FSR 521, held that a court had power, even after judgment is finalised, to correct obvious errors in the reasons for judgment, though, his Lordship pointed out, relying on Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569, that refusal to use such a power is likely not to be appealable.

39. Interestingly, contrary to some of the approaches in the Australian authorities, their Lordships in A (A child) at [23], [34] and [40], held that a power to amend the reasons for judgment is not the exercise of the slip rule. In my respectful view, that is the correct position. The slip rule applies to orders or judgments in the sense of the formal decision of the court quelling the relevant dispute (whether an interlocutory order or final order or judgment), not the reasons for that final decision.

40. Some doubts have been expressed by Basten JA in Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [107] as to whether the principle that courts can correct reasons for decision does apply as widely as to include reserved published judgments. For the same hesitation, see also Wynona v Friend [2011] FamCAFC 6 at [152].

41. In my respectful view, the wider approach should be taken. That is, the same approach should be taken to all reasons, though the latitude, indeed, perhaps the need, will be greatest in reasons delivered ex tempore and orally.

42. In Hatton v Hatton (No 2) [2012] NSWSC 353, Macready AsJ was asked to amend reasons delivered after the decision was reserved. The reasons do not appear to have been delivered orally. His Honour appeared to consider that this was possible but, in the circumstances, declined to do so and simply published further reasons and said (at [12]), "I merely give these reasons to correct that part of the reasoning" the subject of the application.

43. A similar approach was taken by Hidden J in Petrovic v Gai Waterhouse Racing Pty Ltd [2007] NSWSC 740 following a reserved decision, not, apparently, delivered orally. His Honour was asked to correct a statement in the reasons which his Honour accepted "[c]learly did not convey his intention". His Honour, agreed that some remedial action was needed and, after considering counsel's submissions, said (at [7]):

I will not literally amend the reasons I have given. I do not think that is the appropriate course and counsel has accepted that is so. What I propose to do is I will simply clarify the relevant paragraphs of my reasons in this way.

44. His Honour then set out what in precise terms the paragraph should have more clearly stated. It may be relevant in that case that his Honour had left the position somewhat open by seeking, when delivering reasons, seeking "counsel's assistance in calculating the damages in accordance with [his Honour's] reasons", but that may be of no great significance.

45. Perhaps most relevant here is the approach taken by Einstein J in Hudson Investment Group Ltd v Australian Hardboards Ltd [2005] NSWSC 931 where, after delivering of a reserved judgment, errors in the reasons were pointed out to his Honour, including a reference to a witness being called by the plaintiff when he was called by the defendant and another witness not having been required for cross-examination when he was, in fact, shortly cross-examined. His Honour replaced a paragraph in the written reasons.

46. See, to the same effect, Surf Road Nominees Pty Ltd v Tass James [2004] NSWSC 223.

47. Finally, I note that Raphael FM in Hy-Tec Industries Pty Ltd v Constable (No 3) [2006] FMCA 990; (2006) 233 ALR 323 was asked to amend his reasons for judgment, which had been reserved and appears to have been published in writing not orally, to moderate a comment he had made of the conduct of the former solicitor for the plaintiff, which he acknowledged was such that (at 325; [5]):

a third party reading the judgment who had no knowledge of this case other than that contained in the reasons for decision might form an adverse view of the ability of [the solicitor] which, in the light of the evidence at the hearing, would not be deserved.

48. His Honour decided that there was power to alter the reasons in such a case but considered the fact that it was a witness not a party who sought the amendment and doubted that "correction can properly be made at this late stage" even though what was sought was to rectify "an infelicity of expression" (at 328; [14]). His Honour declined to make the correction sought.

49. Substantial amendments have been made in reserved judgments. In Sidorov v Sidorov (No 2) [2008] FamCA 1102, O'Ryan J deleted a full paragraph in a published decision. It had, his Honour said at [18], been "included in an earlier draft" and was "[u]nfortunately retained in the judgment [sic]". He directed the paragraph be deleted.

50. In ASIC v Sydney Investment House Equities Pty Ltd [2009] NSWCA 107 the attention of Hamilton J was drawn to an inconsistency between various paragraphs of the reasons delivered. His Honour, at [16], withdrew the erroneous portion of the reasons for judgment.

51. Interestingly, in both decisions, the judge relied on the slip rule as the asserted power to make the variations. In both cases, however, the amendment was made by the judicial officer who had delivered the reasons. Here, that cannot be done as the author of the reasons, Master Harper, has now retired.

52. The question then is whether the power which I have found exists to amend the reasons for judgment to correct obvious errors or slips or to ensure the reasons express that actual intention of the author, can be exercised by another judicial officer.

53. It is clear to me that another judicial officer than the one who originally made the orders can amend an order under the slip rule. In Wickey v The Queen (No 2) [2012] ACTCA 51; (2012) 269 FLR 289 at 295; [36]- [37], I said:

I am fortified in my view by the decision of McKerracher J in Australian Communications and Media Authority v Clarity Pty Ltd [2008] FCA 130; (2008) 173 FCR 297, where his Honour exercised the Court's power under the slip rule, though he was not the trial judge. In that case the trial judge had retired, but it seems to me that the principle applies where the appellate judges are unavailable through being on leave.

As Donaldson MR, speaking for the Court of Appeal, said in R v Cripps; Ex parte Muldoon [1984] QB 686 at 695:

The slip rule power is not a power granted to a trial judge as such. It is one of the powers of the court, exercising by a judge of the court who may or may not be the judge who was in fact the trial judge.

54. Indeed, in von Reisner v Chepurin [2013] NSWSC 847, Slattery J proceeded to amend orders under the slip rule, notwithstanding that the original judicial officer who made them was available.

55. In my view, however, while this would permit amendment to the orders made by the learned Master, it does not give a clear remit to amend his Honour's reasons. I do not consider I have that power. I can, however, take the approach of Macready AsJ and Hidden J and merely show by publication of these reasons how the relevant paragraph should be read.

56. Thus, these reasons will show that I am satisfied the reference to "plaintiffs" in the second sentence of paragraph [24] in Brennand (No 2) was clearly a typographical error and should have referred to "defendants".

57. Any orders based on that paragraph should be made in accordance with the correct reading of the paragraph.

58. The next question is whether the omission of an order in relation to costs for that part of the proceedings can be rectified.

59. In R v Agritraders Ltd [1983] QB 464 at 470-1, the UK Court of Appeal declared that a court has inherent power to reconsider an order for costs so as to include a matter not dealt with at the hearing or the omission to ask for the matter to be included was due to a genuine accidental omission on the part of counsel. That approach seems to have been followed in Australia. See Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452; Commonwealth v Davis Samuel Pty Ltd (No 9) [2015] ACTSC 127 at [7].

60. The broad approach to include the making of orders for costs which had not been sought, through inadvertence or other reason, at the hearing of the appeal was confirmed in the High Court in decisions such as L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 593-4, and Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd (1983) 58 ALJR 51 at 52.

61. It has been suggested in the helpful book by John Tarrant, Amending Final Judgments and Orders (The Federation Press: Sydney, 2010) that the broad scope of the slip rule may be challenged in the future. Mr Tarrant noted that Kiefel J, before her Honour's appointment to the High Court, suggested in Re Langridge; Ex parte Bennett [1998] FCA 879 at [2], that the rule should perhaps be limited to errors made by the Court and not made by the parties. See also Flint v Richard Busuttil & Co Pty Ltd [2013] FCA 925 at [41]- [43]. That, however, is not relevant here.

62. In the Brennand Appeal Decision, I pointed out (at [107]) that the reasons for judgment of the Master in Brennand (No 2) made it clear that his intention was to make an order for costs in unambiguous terms. That would, ordinarily, be the end of the matter, for the failure to give effect to a clear intention is effectively an oversight which, if it had been drawn to the attention of the Master at the time, would have been immediately rectified, as in Bilioara Pty Ltd v Leisure Investments Pty Ltd [2002] NTSC 44 at [25].

63. It was not an afterthought, which, according to the court in R v Agritraders Ltd at 471, is not amenable to correction under the slip rule. It was not a deliberate decision to omit the express order, which, according to authorities such as Re Estate John Leonard Deceased (1899) Sol Jo 736, cannot be corrected under the slip rule.

64. Thus, the omission of an order clearly contemplated by the reasons for decision, namely Brennand (No 2) at [24], is, in my view, amenable to correction under the slip rule.

65. The only question, then, is whether the fact that there has been delay would, in itself, prevent the court from making the correction.

66. It is clear, on the authorities, that the passage of time does not, of itself, prevent application of the slip rule, so long as there is no prejudice. See the comments of Lord Herschell in Hatton v Harris [1892] AC 547 at 558.

67. In any event, having invited the defendants to correct the record, as I did in Brennand Appeal Decision (at [154]), it would be inappropriate to refuse the application on the ground of delay alone.

68. The plaintiffs did not oppose the making of the orders sought by the defendants. Accordingly, I will make it.

69. The plaintiffs, however, have sought an order for costs being the costs thrown away because the amendment order I propose to make had not earlier been sought. They submitted that for the application itself, each party should pay their own costs.

70. Since completing these reasons, however, I have been informed that the parties have now settled the proceedings.

71. I congratulate them and their legal advisors for doing so. It is always preferable for the parties to resolve their dispute themselves.

72. This relieves me of the need to decide the matter of costs, though there is still a need to determine the correction of the court record as I have done.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge.