Gagarimabu v BHP Billiton Ltd [2003] VSC 416

Supreme Court of Victoria|2003-10-28|Before: BONGIORNO J

Practice and procedure - orders - amendment after authentication - slip rule - order not expressing Court's intention - judge's recollection of intention - RSC r.36.07.

1 This ruling concerns an order for costs made by the Court on 28 November 2001 in the following terms:-

2 This costs order was made following the compromise of interlocutory proceedings brought in the course of an action in which the plaintiff seeks equitable and other relief on his own behalf and on behalf of a large number of landowners in the western province of Papua New Guinea for an alleged failure by the defendants to honour a compromise of an earlier action effected in June 1996. The interlocutory proceeding which was settled sought the punishment of the second defendant for contempt and injunctive, declaratory and other relief including relief relating to the interpretation of Section 33V of the Supreme Court Act 1986. The application was contained in a further amended summons filed on 24 December 2001 pursuant to leave granted by the Court to do so by an order made on 21 December 2001. This further amended summons had had its origin in a summons filed on 7 December 2001 which was first amended on 18 December 2001 and again, to the form it finally assumed, during the course of a hearing which took place on 18 and 19 December 2001 and resulted in the ruling of 21 December 2001.[1] By that order the plaintiff succeeded in obtaining interlocutory injunctive relief including injunctive relief which effectually continued an injunction first granted by the Court on 7 December 2001 which was continued by an order of Ashley J of 12 December 2001.

3 In the course of granting the plaintiff interlocutory relief on 21 December 2001 the Court fixed the final hearing of the plaintiff's further amended summons for 11 February 2002. In fact, the matter came on for hearing on 12 February when the issues then before the Court were resolved between the parties on the basis of certain undertakings being given by the second defendant. These undertakings prevented the second defendant from taking certain steps, which the plaintiff said would permanently affect his rights and the rights of those group members he represents in this action, without giving the plaintiff notice of its intention to do so. The issue of costs was not determined on that day but was adjourned for argument which occurred on 29 April 2002. Judgment on the costs issue was delivered on 28 November 2002 and included the order set out above.[2]

4 The taxation of the costs awarded by the order set out above is now before the Taxing Master. Whilst the parties agree that, in the ordinary case, it would be part of the Taxing Master's function to construe the Court's order and to determine what costs the party who has the benefit of the order is entitled to, in anticipation of there being argument as to what is and what is not included in the phrase "the plaintiff's costs of his further amended summons filed 24 December 2001", the plaintiff now approaches the Court for a remedial order amending the costs order so as to render it certain that the plaintiff is entitled to his costs of the injunctions granted and/or continued on 7, 12, 18 and 21 December 2001. The defendant contends, on the other hand, that the costs order cannot relate to any work performed prior to 24 December 2001 but says that construction of the order is a matter for the Taxing Master alone.

5 The plaintiff's case is that the order as made by the Court on 28 November 2002 is essentially ambiguous or uncertain in that it might not include the costs of the earlier interlocutory proceedings and that if it was the intention of the Court that it do so then it should be amended or rectified. He submits that that amendment should take the form of a further paragraph in the order for costs in the following form:-

"1A. For the avoidance of doubt, the costs of the further amended summons filed 24 December 2001 shall include the costs of the injunctions granted and/or continued on 7, 12, 18 and 21 December 2001."

6 Mr Collins of Senior Counsel who appeared with Mr E Heerey for the plaintiff submitted that the jurisdiction of this Court to amend an order to cure any ambiguity or uncertainty in it was clearly acknowledged by the Full Court in Commissioner of Taxes v British Australian Wool Realisation Association Ltd[3] where, although the Court (McArthur and Macfarlan JJ; Wasley, AJ dissenting) construed an order as being essentially unambiguous, it proceeded to add amendments to it to make assurance doubly sure. McArthur J, stated that it was clear on the authorities that:-

". . .in order to clear up any ambiguity or uncertainty that there may be in (the order), we have power to add to or alter (it) as originally pronounced: see Fritz v Hobson[4];Lawrie v Lees[5]."

Wasley AJ considered that as the costs order there under consideration was in a usual form and, in his view, accurately expressed the decision of the Court the fact that it did not operate in the manner anticipated by the parties would not give the Court that made the order any right to interfere with it as actually made.

7 Mr Scerri QC who appeared with Mr C Caleo for the second defendant sought to distinguish the case relied upon by Mr Collins by submitting that in as much as the majority conceded a jurisdiction to add to or alter an order as originally pronounced to clear up any ambiguity or uncertainty their judgement in that respect was obiter, as they had already decided that the order, properly construed, was wide enough to include the costs there contended for by the party seeking the amendment. Whilst Mr Scerri is, in this regard, probably technically correct the principle contended for by Mr Collins seems to have been accepted 40 years after the BAWRA case by Gibbs J in Bailey v Marinoff[6] in the following terms:-

"It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: In re Suffield and Watts; Ex parte Brown (1); In re Swire; Mellor v Swire (2); Preston Banking Co v William Allsup & Sons (3); Woods v Sheriff of Queensland (4); Invanhoe Gold Corporation Ltd v Symonds (5); MacCarthy v Agard (6); Arnett v Holloway (7). The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court: Lawrie v Lees (8); thynne v Thynne (9)."

8 In the course of argument both counsel agreed that although this passage was part of a dissenting judgment it correctly expressed the law on this point.

9 Mr Scerri directed much of his argument in this case to the proper function of RSC r.36.07 which expresses the "slip" rule for this Court and the limits put upon its proper invocation by reference to a number of decided cases. However it seems to me to be unnecessary to examine those limits for present purposes. The question to be determined is whether the order made on 28 November 2002 expressed the intention with which it was made or not. If it did not then the general principle enunciated by Gibbs J that it is desirable that there be an end to litigation and that it would be mischievous if there were jurisdiction to re-hear a matter decided after a full hearing (a point upon which much emphasis was laid by Mr Scerri) gives way to a jurisdiction to ensure that orders mean what the Court intended them to mean. If they do not the Court has the power to vary them so as to carry out the meaning it intended or to make plain language which is doubtful. As Gibbs J points out, this power does not depend upon rules of court, it is an inherent power which the Court can exercise to do justice in the individual case. Further, it is to be noted that Gibbs J's formulation does not confine such jurisdiction to cases when an order clearly fails to express the Court's intention but also applies where there is room for argument in the particular case as to whether it does or not.

10 In Lawrie v Lees[7], relied upon by the majority in Commissioner of Taxes v British Australian Wool Realisation Association Ltd[8] and referred to by Gibbs J in Bailey, Lord Penzance would have construed an order there under consideration as requiring contemporaneous action by each of two parties to comply with it, but conceded that a view of it might be taken which excused one party from performance even if the other duly performed the act he was ordered to perform. His Lordship considered it beyond argument that the Court which made the order could vary it in such a way:-

"as to carry out its own meaning, and where language has been used which is doubtful, make it plain".

Although in that case Lord Penzance made reference to orders which are drawn up "mechanically in the registry or in the office of the Court" the principle can be no less applicable where, as here, the order was drawn up by the solicitors for one of the parties and signed by the judge who made it pursuant to RSC r.60.04. If a judge is guilty of infelicitous expression or the use of doubtful language there is no reason why his or her order should be excluded from appropriate rectification simply because it was authenticated by him or her and not by the Court registry.

11 Whilst Mr Scerri conceded that if there is ambiguity or error in the order such that it did not reflect the Court's intention the principle expounded by Gibbs J in Bailey as to the finality of judgment would not apply, he argued that the only source of enlightenment as to what the Court intended at the time the relevant order was made must be the reasons given by the judge for making the order. It is not permissible, so his submission goes, for the Judge to supply his own recollection of what occurred for the purpose of determining whether the order truly reflects the intention he had at the time it was made.

12 In Arnett v Holloway[9] Adam J, at first instance in this Court, and the Full Court (Lowe, O'Bryan and Pape JJ) on appeal accepted statements by Adam J as to his intention when he made an order for costs for the purpose of determining whether the order reflected his true intention. Although the Full Court came to a contrary conclusion as to what Adam J intended when he made the original order than he did himself, it did not criticise his use of his own recollection as to what he actually intended when he made it.

13 In Fritz v Hobson[10] Fry J, in amending a judgment which had been drawn up, passed and entered so as to give the plaintiffs the costs of a motion for an interim injunction which had not been dealt with when his original judgment was given, did so upon the basis of his recollection of what took place at the trial and what affidavits were before him.

14 Although Mr Scerri conceded that in cases where there were no recorded reasons, judges had sometimes provided their own evidence as to what their intention was at the time they made the order sought to be rectified, he submitted that such a course could be adopted only where there were no written reasons. If there were written reasons then they could not themselves be supplemented or be the subject of rectification as a result of the judge having drawn to his attention some deficiency in them leading to a conclusion that they did not express his true intention. He cited no authority directly in support of this proposition other than its being a matter of necessary inference from Gibbs J's general principle as expressed in Bailey. But Mr Scerri's argument seems to be at odds with the decision of the English Court of Appeal in Regina v Cripps, ex-parte Muldoon[11] where the Court accepted that if a court has reached a decision which is ambiguously expressed either in the reasons for judgment or in the formal order giving effect to the decision, that ambiguity of expression can be removed in the exercise of slip rule powers. The Court held that provided the decision itself is unambiguous, ambiguity of expression in the reasons as well as in the formal judgment is amenable to rectification. In reaching this conclusion the Court emphasised that such rectification can only be of an unambiguous decision which has or may have been ambiguously expressed. An ambiguous decision, is not, as the Court pointed out, a decision at all so that any attempt at rectification would involve re hearing and deciding the case again - a course which would clearly offend the basic principle in Gibbs J's statement in Bailey.

15 I conclude that the authorities permit this Court, in the exercise of its inherent jurisdiction to correct an ambiguously or doubtfully expressed order and to resolve such ambiguity or doubt by reference to the judge's own recollection of what he or she intended at the time the order was made. Whilst there may be occasions when, for various reasons, the judge's recollection may not be available, as in cases of death or retirement or even a failure of recollection, the possibility of such cases should not prevent justice being done in those cases where the judge has a recollection of his or her original intention and accepts, even only after argument, that that intention was not adequately expressed in the order as he or she made it. I propose to deal with this application by applying this principle.

16 In making the costs order which I did I intended that the plaintiff should have his costs of obtaining and maintaining the interlocutory relief which he sought in his summons of 7 December 2001 which, through successive amendments, eventually became his further amended summons which was filed on 24 December. It was not my intention to affect the ordinary operation of RSC r.63.17(2) so as to deprive the second defendant of such costs as it would be entitled to consequent upon the successive amendments made to the plaintiff's summons. If these intentions were not adequately expressed in the order which I made on 28 November 2002 and subsequently authenticated, or the matter is thrown into doubt by reason of there being no reference to the costs reserved on 7, 12, and 21 December 2001 being included in the costs of the further amended summons, then the situation envisaged by Gibbs J in the passage from Bailey quoted at the beginning of this ruling has arisen and appropriate amendment should be made to put the issue beyond doubt. That can be effected by expressly dealing with the costs specifically reserved on each of the occasions referred to, leaving all other outstanding costs to continue to be reserved.

That paragraph 1 of the order of this Court of 28 November 2002 be amended by inserting after the word "including" on the second line thereof the words:-

`the costs reserved by orders of 7 December 2001, 12 December 2001 and 21 December 2001 and'

18 I shall hear counsel on the question of costs in respect of this application for rectification which was commenced by oral application on 19 August 2003 and heard on 19 September 2003.

[4] (1880) 14 ChD 542 per Fry J at 561.

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