L Shaddock & Associates Pty Ltd v Parramatta City Council

Unfortunately, neither the notice of appeal to the Court of Appeal nor the notice of appeal to this Court sought an order providing for the payment of interest, in the event the appeal was upheld, for the period between the date on which Waddell J. gave judgment and the date on which any judgment consequent upon a successful appeal took effect. The matter was not adverted to in argument on the appeal to this Court nor in the reasons for judgment published by the justices who comprised the Court. The undisputed evidence on the present application is that the failure to advert to the matter in argument was an accidental omission on the part of counsel.

The applicants now apply, on motion, for an order pursuant to the "slip rule" (O. 29, r. 11) that there be included in the orders of this Court pronounced on 28 October 1981 an order that the Council pay interest on the amount of $173,938 in respect of the period 20 March 1978 until 28 October 1981. The effect of such an order would be that the applicants would be entitled to recover interest for the period between the day on which, according to the subsequent judgment of this Court, Waddell J. should have entered judgment in their favour and the day on which judgment in their favour became effective under the orders of this Court. We shall refer to that period as "the relevant period". We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it.

Section 94 of the Supreme Court Act 1970 N.S.W. empowers the Supreme Court, in any proceedings for the recovery of damages, to order that there should be included, in the sum for which judgment is given, interest at such rate as it thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. It is apparent that Waddell J. possessed power to include, in any sum for which judgment was given in the applicants' favour, interest in respect of the relevant period. It is also clear that the Court of Appeal possessed that power on the appeal to it from Waddell J.'s decision. Notwithstanding a submission to the contrary made by senior counsel for the Council, it is, in our view, likewise clear that this Court possessed the like power on the appeal to it from the Court of Appeal (see Judiciary Act 1903 Cth, s. 37). In that regard, we consider that there is no relevant similarity between a statutory power to grant, after decision in a case, a certificate which entitles one party to obtain reimbursement of costs incurred by him from a statutory fund (see Gurnett v. Macquarie Stevedoring Co. Pty. Ltd. [No. 2] [16] ) and a statutory provision authorizing the inclusion, as a component of the actual sum for which judgment is given in favour of one party to litigation against another, of an amount representing interest in respect of a period during which the party in whose favour judgment is given is or has been deprived of the damages to which the court's decision establishes his entitlement.

It follows from the foregoing that, but for the inadvertence of counsel for the applicants, this Court would have made provision, in the substituted judgment of Waddell J., for interest on the damages in respect of the relevant period. We turn to a consideration of the question whether it is competent for the Court to make good the omission on the present application.

Order 29, r. 11 is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court "at any time to correct an error in a decree or order arising from a slip or accidental omission" (see Milson v. Carter [17] ). In terms, the rule provides, inter alia, that "an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons". The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative (see Fritz v. Hobson [1] ; Chessum & Sons v. Gordon [2] ; In re Inchcape (Earl) [3] ; Coppins v. Helmers & Brambles Constructions Pty. Ltd. [4] ; Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. [5] ). This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v. Carter [6] ; Fritz v. Hobson [7] ).

1. [1893] A.C. 638, at p. 640. 2. (1880) 14 Ch.D. 542, at pp. 561-562. 3. [1901] 1 K.B. 694, at p. 698. 4. [1942] Ch. 394, at pp. 397-398. 5. [1969] 2 N.S.W.R. 279, at pp. 281-282. 6. [1973] 1 W.L.R. 300, at p. 304; [1973] 1 All E.R. 569, at p. 571. 7. [1893] A.C., at p. 640. 8. (1880) 14 Ch.D., at p. 560.

The substantial issue between the parties in the present case, both at first instance and on the successive appeals, was the liability of the Council to compensate the applicants for the damages which they sustained by reason of their reliance upon the erroneous information. The claim for interest now in question was not really appropriate to be included in the statement of claim: the occasion for the claim for interest only arose if the trial judge dismissed the substantive claim and it was subsequently held on appeal that he had been in error in so doing. If the learned trial judge had correctly found in favour of the applicants and his judgment had been upheld or restored on appeal, interest would have been automatically payable at the prescribed rate of 10 per cent per annum in respect of the relevant period without any need for an order in that regard (Supreme Court Act 1970 N.S.W., s. 95). The question whether the Council should be ordered to pay interest on any damages which the applicants proved they had sustained was a subsidiary or consequential question which only arose when the substantial issue between the parties as to liability and resulting damages had been determined. It should, of course, have been mentioned in the notices of appeal. Nevertheless, in the circumstances, we consider that it is competent for this Court, pursuant to the slip rule, to amend the Court's previous order to make provision for interest upon the damages, to which the applicants have been held to be entitled, for the period between the date on which judgment was given in the Supreme Court and the date on which the orders were made in this Court on appeal. It is not disputed on behalf of the Council that, if interest is to be awarded, the appropriate rate is 10 per cent per annum. In the result, we conclude that the order of this Court should be amended by including, in the sum for which judgment is given in the substituted order of Waddell J., an amount of $62,713, being interest at the rate of 10 per cent per annum on the sum of $173,938 for the period from 20 March 1978 to 28 October 1981. The application having been made necessary by the failure on the part of the applicants to seek an order on the hearing, they should be ordered to pay the Council's costs of the present application.

There are three further matters to which brief reference should be made.

First, reliance was placed, on behalf of the Council, on the decision of the Full Court of the Supreme Court of Victoria in Brew v. Whitlock [No. 3] [8] refusing to treat a failure to make an order for interest pursuant to s. 78 of the Supreme Court Act 1958 Vict. as an error capable of correction under the slip rule and to the subsequent approval of that decision when the substantive case (Brew v. Whitlock [No. 2] [9] ) and the application to amend the order (above) came before this Court on appeal (Whitlock v. Brew [10] ). The judgment of the Full Court of the Supreme Court [11] makes clear, however, that the decision that the slip rule was not applicable flowed from the wording of s. 78 of the Supreme Court Act 1958 Vict. which, unlike s. 94 of the New South Wales Act, provided that an order allowing interest could only be made "at the hearing upon application" and the fact that no such application for interest had been made at the hearing. In this Court, Taylor, Menzies and Owen JJ., in their majority judgment, plainly indicated that their approval of the decision of the Full Court was on that basis. Their Honours said [12] :

The motion to the Full Court was dismissed substantially on the ground that that Court had no power to make an order for the payment of interest in the absence of an appropriate application being made to it and that neither the claim for interest in the statement of claim nor the reference to interest in the notice of appeal constituted "an application within the meaning of s. 78". In our view this conclusion was correct. The language of the section naturally supposes an application being made after "the recovery" of the debt or sum certain and that the power to give interest will, if it is exercisable at all, be exercised at the hearing. This being so, it cannot be said that the claim in the statement of claim or in the notice of appeal to the Full Court constituted an application within the meaning of the section. Accordingly we are of opinion that the Full Court's decision on the motion was right It is true that a different approach was adopted by Kitto J. [13] who took the view that a claim for interest in the statement of claim constituted an "application" for interest for the purposes of s. 78 but nonetheless expressed the conclusion that the substantive motion before the Full Court seeking an award of interest under the slip rule was "plainly misconceived for the slip rule was inapplicable and the Court had no power to amend its order" [14] . It appears to us that the reason for his Honour's conclusion was that, in the circumstances of the particular case, he considered that the Full Court's order had properly reflected that Court's intention. In that regard, it is important to note that there was no evidence in Whitlock's case, as there is in the present application, that the failure to apply for interest was the result of accident or inadvertence on the part of counsel (see [1968] V.R., at p. 506). On the other hand, if there be implicit in the judgment of Kitto J. the view that the slip rule should be given a narrower scope than that which we would give it, we consider that the subsequent decision in Tak Ming [15] affords strong support for the view we now take. 1. [1968] V.R. 504. 2. [1967] V.R. 803. 3. (1968) 118 C.L.R. 445, at pp. 457-458, 463. 4. [1968] V.R., at p. 505. 5. (1968) 118 C.L.R., at pp. 463, 464. 6. (1968) 118 C.L.R., at p. 458. 7. (1968) 118 C.L.R., at pp. 457-458. 8. [1973] 1 W.L.R. 300; [1973] 1 All E.R. 569.

Second, counsel for the applicants based the present application on the alternative ground that this Court should, pursuant to O. 43, r. 3, antedate its judgment on the appeal to the date on which Waddell J. delivered judgment in the Supreme Court. In view of our conclusion that an order to the above effect should be made under the slip rule, it is unnecessary that we deal with this alternative ground which, even if it would be effective to achieve the desired object, would plainly have formidable obstacles in its path (see Borthwick v. Elderslie Steamship Co. [No. 2] [16] ; Nitrate Producers Steamship Co. Ltd. v. Short Brothers Ltd. [17] ).

1. [1905] 2 K.B. 516, at p. 519. 2. (1922) 127 L.T. 726.

Third, we would observe that an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made (see Tak Ming [18] ; and the cases there cited). In the present case, there was considerable delay in filing the notice of motion. The Court's decision was given on 28 October 1981 and the judgment entered at the end of November 1981. The motion to amend the order is dated 22 July 1982. The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule. The seriousness of the delay in this case is, however, minimized by the fact that the applicants promptly made known to the Council their claim for interest and the delay in making the application to the Court is, to no small extent, explained by the content of the correspondence between the parties during the months prior to the filing of the application.

1. [1973] 1 W.L.R., at p. 306; [1973] 1 All E.R., at p. 572.