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Cited legislation

2 cited instruments linked from this judgment.

The issue addressed in this later judgment was narrower: whether the High Court should vary its earlier orders so that an outstanding issue about the costs of the proceedings below could be dealt with by the New South Wales Court of Appeal.

The appellants' notices of appeal and the section of their written submissions setting out the orders sought did not expressly request that the trial-costs issue be remitted to the Court of Appeal ([2]). However, a footnote in their written submissions referred to a separate appeal concerning the trial judge's costs orders. The Court noted that an affidavit filed on the correction application suggested the footnote might not have been strictly accurate: there had been an application for leave to appeal from the trial judge's costs orders, but no evidence that leave had been granted ([2]).

That possible inaccuracy did not resolve the matter. The appellants had maintained in written submissions that, if the trial judge's substantive orders were reinstated, the outstanding trial-costs issue should be referred to the Court of Appeal ([3]). The point was not repeated orally, was not included in an application to amend the notices of appeal, and had not been addressed by Transport for NSW. The Court explained that the submissions had naturally focused on the substance of the contest ([3], citing De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207 at 216).

The High Court overlooked the footnote that supported remittal when it made its earlier orders ([4]). Hunt Leather and Ancio Investments applied on 24 December 2025 to recall those orders and obtain amended orders. On 11 March 2026, the Court allowed the application. It varied the earlier orders so that the appeal and cross-appeal were dismissed with costs except for the costs aspect, which was remitted to the Court of Appeal for determination. The respondent was ordered to pay the appellants' costs of the appeal, while there was no order as to the costs of the correction application ([7] and orders).

Why the court decided this way

The Court stated that it was unnecessary to resolve the precise source of its power to recall and amend orders. It identified r 3.01.2 of the High Court Rules 2004 (Cth), which permits correction of a clerical mistake or an error arising from accidental slip or omission. It also identified as a possible broader source powers incidental and necessary to the exercise of the Court's jurisdiction ([5]). The Court did not decide which source applied or define the boundaries between them.

Instead, it relied on the established proposition that the Court has, at least, a discretionary power to correct an error or omission where the interests of justice require it ([5]). That power is not routine. The Court said it should be exercised “sparingly” because of the interests of finality, and that an applicant bears a “heavy burden” ([5]). Those qualifications are important: a party cannot treat correction as a second opportunity to argue a matter already decided.

The Court identified several factors that can strongly support correction. They include an error or omission that is plain or obvious, such as a matter having been overlooked; a prompt application, especially before orders have been formally entered; an application that does not re-agitate arguments already considered; and the absence of relevant disadvantage to the respondent ([6]). The Court presented these as factors supporting the exercise of discretion, rather than as an exhaustive test or a checklist that automatically determines the result.

On the facts, the Court considered each factor favourable to correction. It had overlooked the written-submissions footnote that justified remitting the costs issue ([4], [6]). The application followed on 24 December 2025, seven days after the original orders of 17 December 2025. The Court said the application was not brought to re-agitate arguments already considered and that there was no relevant disadvantage to Transport for NSW ([6]).

The institutional setting also mattered. The High Court did not have the benefit of submissions on costs that were, or might be, before the Court of Appeal if leave to appeal was granted. The Court considered that, had it noticed the footnote, the issue concerning the trial judge's costs would have been remitted to the Court of Appeal ([6]). That conclusion links the correction to the proper handling of an issue that had not been adjudicated in the High Court, rather than to any reconsideration of the substantive appeal.

Finally, the Court addressed costs of the correction application. Because neither the notices of appeal nor the appellants' oral submissions referred to the order sought in the application, it made no order as to the costs of that application ([7]). This was distinct from its order that Transport for NSW pay the appellants' costs of the appeal.

Before and after state of the law

The judgment does not purport to announce a comprehensive new test for correcting final orders. It restates a discretionary power, identifies considerations relevant to its exercise, and applies them to an overlooked request for remittal. The Court's treatment is deliberately limited: it expressly says that it need not decide the precise source of the power ([5]).

Before this decision, the authorities cited in the reasons had recognised that the Court could correct an error or omission in the interests of justice. The judgment refers to De L, Autodesk Inc v Dyason [No 2], Achurch v The Queen, Gould v Vaggelas, and other authorities in support of the relevant principles ([5]-[6]). The present reasons organise the practical considerations relevant to this application: obviousness, promptness, absence of re-litigation, and lack of relevant disadvantage ([6]).

After this decision, the stated principles remain qualified by the same strong concern for finality. The Court did not say that any overlooked submission requires an order to be recalled or varied. Nor did it decide that r 3.01.2 is the exclusive source of power, or that the incidental and necessary jurisdictional power is always available. Its holding is narrower: on this record, the identified factors supported correction, and the costs issue should be remitted.

A further limit is that the Court's conclusion depended on the procedural history. The request had appeared in the appellants' written submissions, even though it was absent from the formal notices of appeal and was not repeated orally ([2]-[3]). The decision therefore does not establish that a request omitted from all written and oral material would be treated the same way. It also does not determine the merits of the costs challenge, whether leave to appeal should be granted, or how the Court of Appeal should resolve any costs issue.

Key passages with plain-English translation

At [5], the Court says it is “unnecessary on this application to address the precise source of power” to recall and amend its orders. In plain English, the Court could decide the application without choosing between the rules-based power and a broader jurisdictional source.

At [5], the Court says it has “at least, a discretionary power to correct an error or omission in a judgment or order where ‘the interests of justice so require’”. This identifies the minimum proposition on which the Court relied. The words “at least” signal that the Court was not making a final statement about every possible source or scope of power.

Also at [5], the Court says the power is to be exercised “sparingly” because of finality, with a “heavy burden” on the applicant. In practical terms, a correction application must overcome the interest in bringing litigation to an end. It is not enough simply to prefer a different order after judgment.

At [6], the Court lists factors that support correction: an obvious oversight, a prompt application, no attempt to re-argue matters already decided, and no relevant disadvantage to the respondent. These considerations explain why the application succeeded here. They do not remove the need to evaluate the circumstances of a particular case.

At [6], the Court says it “did not have, and does not have, the benefit of the submissions on costs that were, or might be, before the Court of Appeal”. In plain English, the High Court considered that the appellate court below was the appropriate forum to consider the outstanding costs issue, because the relevant submissions belonged there.

At [7], the Court explains that no order should be made for the costs of the correction application because the notices of appeal and oral submissions had not referred to the order now sought. That distinction shows that success on the application did not automatically mean the applicants would receive their costs of obtaining the correction.

What fact patterns trigger this precedent

The judgment is most directly relevant to applications asking a court to correct its own judgment or orders after an apparent omission. Its facts involved a request that was present in written submissions but overlooked when the orders were made ([3]-[4]). It also involved an application made soon after the orders, before there was any suggestion in the reasons that the application was a vehicle to reopen the substantive appeal ([4], [6]).

The factors the Court identified may be relevant where a party says that a court failed to address a matter that was before it, or where the form of the orders did not give effect to an intended procedural outcome. The applicant's task, as described in the judgment, would involve confronting finality and showing why the interests of justice support correction ([5]-[6]). The Court's language does not make every overlooked point correctable; it identifies circumstances that supported correction in this case.

The decision may also be relevant where a correction would send an issue to another court rather than determine its merits. Here, the High Court did not decide the trial-costs challenge. It remitted the issue to the Court of Appeal, which would determine the relevant costs aspect, including the application for leave to appeal in proceedings 2024/253975 ([7] and orders).

Caution is needed in comparing other cases. The judgment does not state that an omitted request in written submissions is always sufficient, or that the absence of prejudice alone justifies changing an order. It describes multiple factors operating together. It also records that the request was not in the notices of appeal, was not repeated orally, and had not been addressed by the respondent ([3]). Those features formed part of the context, but the Court did not formulate a general rule for every case with similar omissions.

How later courts have treated it

The supplied judgment is dated 11 March 2026 and contains no account of decisions made after it. It is therefore not possible, on the material provided, to describe how later courts have applied, followed, distinguished, or limited this decision.

The reasons themselves refer to earlier authorities on correction of orders and the relevant discretionary considerations. They include De L v Director-General, New South Wales Department of Community Services [No 2], Autodesk Inc v Dyason [No 2], Achurch v The Queen, Gould v Vaggelas, Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross, Tuberi v Federal Court of Australia, and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 2] ([5]-[6] and footnotes). The reasons cite those authorities as support for the principles discussed; they do not provide a detailed account of subsequent treatment of the present decision.

The supplied text also refers to Batistatos v Roads and Traffic Authority (NSW) and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd in discussing possible jurisdictional sources ([5], footnote 4). The High Court expressly left the precise source unresolved in this application. Later analysis of that question cannot be inferred from this judgment alone.

Still-open questions

The principal question left open is the precise source of the power. The Court identified r 3.01.2 of the High Court Rules 2004 (Cth) and powers incidental and necessary to the exercise of jurisdiction, but did not decide which source governed or how their respective scopes should be described ([5]).

The reasons also do not define how to weigh the factors in a case where they point in different directions. Here, the Court found all the identified factors supported the order sought ([6]). It did not address a case involving a delayed application, a formal entry of orders, a respondent who would suffer relevant disadvantage, or a request that would effectively re-agitate arguments.

The procedural status of the separate costs challenge was not fully resolved in the reasons. The appellants' footnote may have inaccurately described a separate appeal, since the evidence suggested an application for leave had been brought but did not show leave had been granted ([2]). The final order nevertheless remitted the costs aspect to the Court of Appeal for determination, specifying that it was the application for leave to appeal in proceedings 2024/253975 ([7] and orders). The judgment does not decide whether leave should be granted or the outcome of any appeal concerning costs.

The Court also did not determine whether the same result would follow if the requested order had not appeared in written submissions, or if the respondent had addressed and opposed it. Those circumstances differ from the record before the Court and are not answered by its reasons.

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