McKnight v Estate Judd (No.2) [2018] NSWSC 462
Estate Judd v McKnight
Gammage v Estate Judd, Channell v Estate Judd
Source
Original judgment source is linked above.
Catchwords
Gammage v Estate Judd, Channell v Estate JuddMcKnight v Estate Judd (No.2) [2018] NSWSC 462
Estate Judd v McKnightGammage v Estate Judd, Channell v Estate Judd
Judgment (8 paragraphs)
[1]
Judgment
On 25 May 2018, a final judgment was delivered in these proceedings. For the reasons there expressed, the proceedings brought by the Executors of the Estate of the late Roy Judd were dismissed: Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.2) [2018] NSWSC 462.
Orders giving effect to that judgment were entered on that day. It will be convenient to refer to that judgment as "the first judgment".
[2]
The First Judgment
In 2016 and 2017, three individuals, Christopher John McKnight, Craig Andrew Channell and Aaron Gammage, commenced proceedings claiming damages for personal injury as a consequence of the sexual assault upon them by the late Roy Judd. Because Mr Judd died on 2 May 2016, the proceedings were taken against his Executors, Trevor Athol Gorman and Ian Alexander Dunn ("the Executors").
Mr Gammage also commenced proceedings against the State of NSW as a second defendant. That particular claim can be put to one side for the purposes of this judgment.
The Executors commenced a separate set of proceedings to those of the individual claimants by a Summons filed 13 September 2017. Each of the individual plaintiffs was named as a defendant. The State of NSW was added as a fourth defendant.
The Executors sought orders that each of the individual claimant proceedings be permanently stayed or, alternatively, dismissed. The Executors also sought costs.
The basis of the Executors' claim was the same with respect to each of the proceedings brought by individual claimants. Putting it shortly, the Executors claimed that the lapse of time since the causes of action were said to have arisen, having regard to the fact that the alleged perpetrator was now dead, meant that there was such prejudice falling upon the Executors that they could not adequately defend the proceedings and thereby have a fair trial.
As the first judgment shows, the Executors claimed that they were unable to identify any witness who could be called to defend the allegations made by the individual claimants, they were unaware of any document which could be tendered in the defence of the individual proceedings and, as well, there was no person known to the Executors who would be familiar with the matters the subject of the claims.
For the reasons explained between [113] and [131] in the first judgment, I determined that the Executors had not made out their claim for the relief sought. That was a decision which required the balancing of a number of different factors and giving the appropriate weight to each factor.
In particular, I concluded that whilst there was a lengthy period of delay between the events on which the individual claimants relied and the proceedings being commenced, I was not satisfied that the trial would be an unfair one, nor was I satisfied that there was any fundamental defect of the trial process or other circumstances which would amount to an abuse of process.
I accepted that the effect of delay was that the defence of the proceedings would be adversely affected by the death of the late Mr Judd and his inability to provide any instructions as to the detail of what the claimants alleged. However, I also noted that there was a public interest in permitting claims for damages for sexual assault of children or juveniles to be brought at any time, in light of the legislative amendments to the relevant limitation legislation which removed all previous limitation periods.
On 21 June 2018, the Executors filed a Notice of Intention to Appeal against the first judgment. According to an affidavit of the solicitor for the Executors, one of the grounds being considered for an appeal at the time of filing of that Notice:
"… whether or not the intercepted telephone transcript of the call between Mr Judd and Mr McKnight could be admitted as evidence in the current claims against the Estate."
[3]
Notice of Motion
On 1 August 2018, the Estate filed a Notice of Motion in which it sought the following orders:
"1. An order that the Court varies the decision of Garling J in [the first judgment] to remove paragraph 40 pursuant to r 36.16 or r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) or, alternatively, its inherent jurisdiction.
2. In the alternative to order 1, an order pursuant to ss 7 or 10 of the Court Suppression and Non-Publication Act 2010 (NSW) (sic) that the publication or either disclosure of paragraph 40 of the decision be prohibited until further order of the Court.
3. Costs be reserved."
[4]
The Challenged Paragraph
Paragraph 40 of the first judgment set out the content of an exhibit which was tendered by the Executors on a confidential basis during the hearing of the proceedings. The exhibit consisted of a transcript of two telephone conversations which were recorded by NSW Police pursuant to a lawfully obtained surveillance device warrant ("the intercept transcripts"). Later in the hearing, one of the other parties also tendered the intercept transcripts on a similar basis.
At the time the intercept transcripts were first marked as an exhibit, an order was made by the Court in these terms:
"The contents of Exhibit A are not to be disclosed by any party to any person except for the purposes of the present proceedings, without further order of the Court."
That order was made in response to a submission from senior counsel for the Executors on 30 November 2017 in these terms:
"I tender, on the basis that we seek to have treated as confidential, an exhibit … Your Honour will know from the submissions there is a real issue as to how this is to be treated, and in what way it might or might be able to go into evidence. But, for our part, obviously your Honour has to have it for the purposes of this case, but I don't want to be offending against any legislation. I ask for it to be confidential at least to the parties or the legal advisors, at least in this proceeding."
In the written submissions of the Executors dated 13 September 2017, the following was submitted:
"… the transcripts are not admissible either in the proceedings brought by the respective plaintiffs against the Estate or in the present application for a permanent stay or dismissal; indeed their use - even by the Court - may constitute a criminal offence.
The recording of the conversation was authorised by surveillance device warrant 15/0628: … As such, its contents are 'protected information' for the purposes of the Surveillance Devices Act 2007 (NSW): s 39."
In submissions filed on behalf of Mr McKnight prior to the hearing, it was contended that the submissions of the Executors should not be accepted because the circumstances giving rise to the production of the intercept transcripts to Mr McKnight, namely in answer to an application pursuant to s 9 of the Government Information (Public Access) Act 2009, had the effect, in light of other provisions of that Act, that the use of the intercept transcripts by Mr McKnight for the purposes of the proceedings which he had brought claiming damages and in these proceedings, was authorised by that Act. It was further put that the terms of the Government Information (Public Access) Act had the effect that any prohibition on use of the intercept transcripts contained in the Surveillances Devices Act 2007 was overridden.
Thus, two issues of substance arose for consideration by the Court in these proceedings. The first was the ability of the Court, either in these proceedings or in the claimants' individual proceedings, to admit the intercept transcripts and to take the contents of them into account in determining any matter, and, secondly, whether the Court's publication of the contents of the intercept transcripts in these proceedings was contrary to the legislation.
At the heart of both of those questions was not the availability of the intercept transcripts to any party to use for its own consideration of the issues being litigated in the proceedings but, rather, whether they were available to be tendered in evidence and whether the contents of them could be made public, by being included in a published judgment.
[5]
Paragraph 40 of the First Judgment
Paragraph 40 of the first judgment set out part of the content of the transcript of one of the two intercepted telephone calls. In so doing, the Court did not first resolve the question as to whether the intercept transcripts were admissible in either the claimants' individual proceedings or in these proceedings.
That was an obvious error because if the Court was to take into account the contents of the intercept transcripts, it had to resolve the conflicting submissions as to whether it was permissible for a court so to do.
The resolution of this question was one which called for careful consideration of the legislation upon which the parties relied, and was not so obvious that the Court could resolve it without explicit consideration and the provision of reasons.
It was also an obvious error for the Court to include the contents of the intercept transcripts in a published judgment without determining its entitlement to publish them.
[6]
Correction of Error
There was no agreed position between the parties as to the entitlement of the Court to correct the errors which I have identified above, and if so, the manner in which such correction ought occur.
In written submissions, the Executors advanced a number of bases upon which they submitted it was open to the Court to vary a judgment, including the reasons for judgment. The Executors identified, as one adequate basis, r 36.17 of the Uniform Civil Procedure Rules 2005 ("UCPR"), the slip rule, which provides that:
"If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct a mistake or error."
The Executors drew attention to a number of decisions in which judges of this Court have held that the slip rule can be relied upon as a source of power to vary the reasons for judgment.
As well, the Executors drew attention to the fact that the inherent jurisdiction of the Court could also be relied upon as a basis for the correction of reasons for judgment.
Ultimately, the Executors submitted that the first judgment should be varied simply by removing the entirety of the contents of [40]. They submitted that the reasons for judgment would still be otherwise available to the public, and be able to be comprehended without the contents of [40]. The Executors drew attention to the fact that such an approach would be consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005.
However, during oral submissions the position of the Executors did not seem to be as clear. Counsel surprisingly, given that the Executors had brought the Motion, was somewhat diffident in identifying an adequate basis upon which the Court could act to vary the reasons for judgment.
Counsel for the Executors, Mr Kalyk, submitted:
"I am not opposed to that course, in fact it is desirable, to the extent that it is possible, but I do have a reservation about whether or not it is possible."
Mr Kalyk said that he "wasn't sure that [the Court] had the power to address the whole issue". He noted that although the Court would have had the power under UCPR r 36.16(3A) to set aside or correct the judgment within 14 days of it being entered if the matter had then been raised, he "[didn't] know if the authorities… go as far as to say [the Court] could go as far as to insert an entirely new area of discussion."
Mr Kalyk also expressed his view that in the usual course, where the Court has a failed to consider a topic after the judgment has been entered, "that is something that is cemented in the finalisation of the judgment", and "the proper way to resolve that ordinarily is an appeal."
Ultimately, Mr Kalyk submitted that if the Court was satisfied that it had the power to withdraw and amend the first judgment to correct the error, then he "certainly would prefer [the Court] to deal with it, if at all possible, to save any appeal."
Counsel for the Executors made it plain, in particular, that the Executors did not consent to the judgment being set aside, for the purpose of the UCPR r 36.15(2).
The other parties, being the individual claimants, accepted that it was open to the Court to correct the error in the reasons in a number of ways, including one in which the original reasons were withdrawn and final reasons again published.
[7]
Discernment
In Chan v Acres (No.2) [2016] NSWSC 557, McDougall J corrected his reasons for judgment which had earlier been published. In so doing, he noted that he had overlooked dealing with particular claims in his earlier reasons. Of the basis for so doing, his Honour said:
"4 The plaintiffs sought 'corrections' to my earlier reasons, they said pursuant to UCPR r 36.17. In terms, that rule is irrelevant. It provides for the correction of judgments and orders, in the circumstances to which it applies. There is no relevant judgment or order to be corrected in the present case. However, it is unnecessary to say more, since it is clear beyond doubt that the Court has power, in an appropriate case, to withdraw part or all of its reasons for the purpose of correcting them. It is equally clear that the power should be exercised, where appropriate, to prevent needless appeals."
In ASIC v Sydney Investment House Equities Pty Ltd [2009] NSWSC 107, Hamilton J expressed the view that the slip rule (UCPR r 36.17) was a sufficient basis for the correction of an error in his reasons.
In Hunter Quarries Pty Ltd v State of NSW (Department of Trade and Investment) (No.2) [2014] NSWSC 1663, Schmidt J, although with the consent of the parties, amended her reasons, relying upon rr 36.16 and 36.17 of the UCPR, and the Court's inherent power to correct such an error.
It is unnecessary for the purposes of this judgment to make a final determination of whether the view expressed by McDougall J in Chan or Hamilton J in ASIC is the preferable view.
It seems to me that on any view, if the Court has made an error in its reasons and has not dealt with an argument, then the Court is entitled in its inherent jurisdiction to correct that error. In that way, the Court can ensure that the overriding purpose of the Civil Procedure Act is met and that the disposition of the relevant issues in the proceedings is dealt with in a just, quick and cheap manner. As well, it seems me to be an appropriate course, in the interests of the administration of justice, for the trial Judge to deal with that error, to avoid any unnecessary appeal on that point.
Accordingly, I have concluded that it is appropriate for the Court to correct the error which I have described above.
The only remaining question is whether it is preferable to do so by withdrawing [40] as it appeared in the first judgment and indicating in this judgment such matters, if any, as are to be substituted for it. The alternative is to withdraw the entirety of the judgment, address the error by removing [40] and substituting the reasons for it and then republishing the judgment.
This is essentially a matter of finding the most efficient procedure. It seems to be me to be preferable in the circumstances of this case for the parties to be in receipt of the Court's final judgment, including any correction, in one document, in respect of which the parties can consider their respective positions. Necessarily, most of the reasoning in the new judgment will be identical with the first judgment. That is because much of the reasoning was unaffected by the identified errors.
Accordingly, for these reasons, it is appropriate that the Court withdraws the first judgment - namely, Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No. 2) [2018] NSWSC 462 and, immediately after this judgment is published, the Court will publish its corrected final judgment being Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 October 2018
Legislation Cited (3)
Court Suppression and Non-Publication Act 2010(NSW)