By a Notice of Motion filed on 10 November 2021, the plaintiff, Mr Sanjeev Khanna, seeks the following orders:
"1. Liberty to apply by 10 November 2021
1.1 Reconsider judgement on negligence and compensation to the plaintiff
2. The defendant to pay the plaintiff out of pocket expense and incidental to this notice of motion.
3. Such further or other or as the court considers appropriate."
In support of his application, the plaintiff relied on an affidavit of his affirmed 10 November 2021. Much of the affidavit was in the form of submissions.
The plaintiff was self-represented on the application. Ms E Gibson, Solicitor, appeared for the defendant.
By way of background to the application, the plaintiff had sued the defendant, Woolworths Group Ltd, in the tort of negligence for damages for personal injuries suffered by him in an accident which occurred on 18 April 2015 at premises of which the defendant was the occupier. The defendant had previously carried on business at a Masters Home Improvement Store at Rouse Hill in New South Wales where the accident occurred. The proceedings were brought by the plaintiff under the Civil Liability Act 2002 (NSW).
The plaintiff was unsuccessful in his action: Khanna v Woolworths Group Ltd (No 2) [2021] NSWDC 567 ("Judgment"). The court found that the tort of negligence was not established as pleaded. On 20 October 2021, the court made the following orders:
1. Judgment for the defendant.
2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
3. Liberty to the parties to apply within 14 days for a different costs order to that in (2) above.
These orders were entered on 20 October 2021.
As can be seen, under Order 3 made on 20 October 2021, the court granted liberty to the parties to apply within 14 days for a different costs order to that made in favour of the defendant. On 26 October 2021, by an email addressed to my Associate, the plaintiff requested clarification of the third order made on 20 October 2021 and an extension of seven days until 10 November 2021 in relation to the liberty to apply granted concerning the costs order. There was no objection by the defendant to the extension sought by the plaintiff. As stated, the application presently before the court was filed on 10 November 2021.
In the court's reasons for decision handed down on 20 October 2021, the court found that a breach of duty of care had not been established by Mr Khanna against the defendant: see Judgment at paragraphs 194-213. The court also found that the action was statute barred: see Judgment at paragraphs 179-193. In the event that the court was in error in relation to these conclusions, the court proceeded to assess damages: see Judgment at paragraphs 230-272.
The leave that was granted on 20 October 2021 related only to a party seeking a different costs order to that made on that day. It did not contemplate a party seeking a reconsideration of the entire reasons for decision handed down on 20 October 2021, including the finding rejecting a breach of duty of care. No application was made by either party for a special costs order such as an indemnity costs order or an order that each party pay their own costs of the proceedings. The costs order sought by the plaintiff in his Notice of Motion filed on 10 November 2021, essentially seeks the payment of the plaintiff's out of pocket expenses and other incidental costs of the Notice of Motion, in the expectation that the court would reconsider its determination in relation to the tort of negligence and the damages to be awarded to the plaintiff. In oral submissions, Mr Khanna confirmed that he sought the costs of the entire hearing in the event that the court reconsidered its judgment and altered its findings and orders in his favour.
The plaintiff has not specified the statutory or Rule basis for his application. In oral submissions, Mr Khanna made a reference to his entitlement to seek a reconsideration of the Judgment within 14 days of it being handed down.
The defendant opposes the application made by the plaintiff in his Notice of Motion. It submits that there is no proper basis for the application. In its written submissions dated 25 November 2021, it submits that there is no power for the court to reconsider its judgment as sought and that the court is functus officio. Accordingly, the application does not fall within Part 36.15(2) of the Uniform Civil Procedure Rules 2005 ("UCPR") as being a judgment or order of the court in any proceedings which may be set aside by order of the court if the parties to the proceedings consent. The general principles applicable to the present application are set out in the recent decision of the Court of Appeal in Johnston v The Greens NSW (No 2) [2021] NSWCA 291. See in particular at [3].
Secondly, there is no clear suggestion by the plaintiff that the orders made by the court on 20 October 2021 fall within Part 36.15(1) of the UCPR, being orders of the court which were made irregularly, illegally, or against good faith. In substance, the plaintiff submits that the court's conclusions as to liability and damages in the Judgment were in error. See Johnston, above, at [5]. There was a reference in the plaintiff's affidavit to the effect that the defendant "concealed" certain documents: page 9 paragraph 5.4.1.1. However, I am unable to find on the evidence that this occurred or was done irregularly, illegally or against good faith. I accept the oral submission on behalf of the defendant as to that matter. It is up to the parties to decide which medical records they seek to tender at a hearing. Further, the medical notes set out in Mr Khanna's affidavit dated 10 November 2021 for 20 April 2015 appear to be referring to a fall which occurred at a different time to the subject accident. In addition, in the Judgment the court found that Mr Khanna had seen his general practitioner Dr Doan on 19 or 20 April 2015 following his fall: Judgment paragraphs 177 (8) and (9) and 242. The matter was therefore taken into account by the court. There is no conduct established "relevant to the circumstances in which judgment was given which might be described as "against good faith"": Johnston at [5].
Part 36.16 and Part 36.17 of the UCPR provide as follows:
"36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if -
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it -
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
36.17 Correction of judgment or order ("slip rule")
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 the mistake or error."
No Notice of Motion was filed by the plaintiff before the entry of the orders made on 20 October 2021. The plaintiff also appeared at all relevant times including at the final hearing.
A question arises whether there is a "clerical mistake" or an error arising from "an accidental slip or omission", in the Judgment or orders made, so as to give rise to a correction of the judgment or order under Part 36.17 of the UCPR, otherwise known as the "slip rule".
In Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group, Inc [2007] NSWCA 195; (2007) 70 NSWLR 411, the Court of Appeal considered the operation of the "slip rule". There, Spigelman CJ (with whom Santow JA and Handley AJA agreed) emphasised that an application to correct a clerical mistake or an error arising from an accidental slip or omission is directed into carrying the court's intention into effect and does not involve an evaluative or discretionary judgment. The rule does not apply where there is a real difference of opinion between the parties and where the intention of the court is clear in all the circumstances. The determinations by the court in its reasons for decision dated 20 October 2021 were not accidental but followed a reasoned assessment of the plaintiff's claim. There was no accidental slip or omission in the judgment or orders: see Newmont at [140]-[145]. Further, the rule does not extend to "mistaken or allegedly mistaken conclusions reached deliberately in resolving issues that were the subject of argument": Johnston at [6].
Spigelman CJ in Newmont emphasised that the court must apply the actual formulation in Part 36.17 in such a manner as to give effect to the overriding purpose in s56 of the Civil Procedure Act 2005 (NSW): Newmont at [22]-[27]. The present is not a case, such as in Newmont itself at first instance, where the orders made by the court had unintended consequences: at [116].
Newmont has been followed in numerous later cases: see for example Woodhouse v Fitzgerald (No 2) [2021] NSWCA 132 at [9]-[14].
In my view, the slip rule is inapplicable to the present application because what is sought to be corrected by the plaintiff is a matter of substance and of controversy between the parties. The orders sought by the plaintiff in his application would involve the court taking a diametrically opposed view of the substantial issue in dispute between the parties and involve the exercise of a further balancing of factors on the breach issue. Accordingly, the slip rule does not apply to the orders sought to be reviewed in the present application.
I am also of the view that Part 36.16 is inapplicable. Although there was no express application by the plaintiff to re-open his case, it should be noted that the order giving judgment for the defendant was entered on 20 October 2021. Further, the exercise of the power to re-open "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 at [12]; see also Johnston, above, at [8].
I have reviewed the various matters referred to in Mr Khanna's affidavit. A number of these matters were considered and determined by the court in interlocutory judgments of the court: see paragraphs 1-3 on page 6 of Mr Khanna's affidavit. See also the unreported decisions dated 22 June 2021 and Khanna v Woolworths Group Ltd [2021] NSWDC 427. No basis has been established by the plaintiff to reopen or reconsider these decisions.
Mr Khanna has raised other matters which were not in the evidence before the court: see paragraph 5.4.1.1 on pages 9-12 of his affidavit affirmed 10 November 2021. They could therefore not have been taken into account by the court in its reasons for decision. They also do not appear to be relevant to the breach issue on which the plaintiff was not successful.
Other matters in the affidavit of Mr Khanna, which in substance sets out detailed written submissions, and further matters raised by Mr Khanna in his oral submissions, are properly matters for consideration on an appeal. These include allegations that the limitation issue was considered on an erroneous factual basis, the goods at or near the aisle where the accident occurred were not established to have been placed in accordance with directions of the head office of the defendant, inconsistencies in the evidence of Mr Zammit, the consequences for the plaintiff's health of the accident and limitations on the plaintiff's activities after the accident. Mr Khanna firmly submitted in his oral submissions that the placement of the goods was negligent and the defendant had not established that the goods were placed as directed by the head office of the defendant. The court rejected in its Judgment that there had been a breach of a duty of care by the defendant. Any challenge to that finding is properly a matter for an appeal court.
In my view, no proper basis has been established by the plaintiff to vacate or vary the orders made by the court on 20 October 2021. The plaintiff's application therefore is rejected. The defendant has sought its costs of the Notice of Motion and the plaintiff did not advance any reason when invited against such a result if he was unsuccessful in his application.
Accordingly, the court makes the following orders:
1. The Notice of Motion filed on 10 November 2021 is dismissed.
2. The plaintiff is to pay the defendant's costs of the Notice of Motion filed on 10 November 2021 as agreed or assessed.
[2]
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Decision last updated: 17 December 2021