Landbridge Transport Pty Limited v Buckley

Submissions of the plaintiff 8The plaintiff pointed to the affidavit of Mr Boudib which tends to support a conclusion that if the present orders remain in place any further proceedings are unlikely to take place before about February or March of 2015. Counsel for the plaintiff (who was not counsel at the original hearing) further submitted that neither party could have confidence in a judicial determination which was made so long after the relevant events, and that there was, as a consequence, a risk of a further appeal from any future judgment. 9It was further submitted that there was an apprehension of pre-judgment having regard to the findings which had already been made by the Magistrate. It was submitted that the Magistrate had "already made up his mind in an unexplained and ... appellable way" such that he would not be able to reconcile any alternative finding with any future reasoning. It was submitted that in all of these circumstances, the provisions of s. 56 of the Civil Procedure Act 2005 required a new hearing rather than requiring the Magistrate to attempt to make a series of further factual findings which, it was submitted, were likely to lead to a further appeal. 10Counsel for the plaintiff further submitted that the issue of the matter being referred to a different Magistrate arose "out of the blue" and was not "something which counsel then appearing for the plaintiff was prepared for". It was submitted that in these circumstances relevant authorities had not been put before the court and that this was a further basis on which to grant the relief which was sought.

Submissions of the defendant 11Counsel for the defendant submitted that it was not appropriate to grant relief on either of the bases sought by the plaintiff. Put simply, counsel for the defendant pointed to the fact that the issue raised by the notice of motion, namely the referral of the matter to a different Magistrate, was canvassed at the hearing and was ultimately not pressed. It was submitted, in particular, that the discretion conferred by r. 36.16(3A) was a limited one and that it should not be exercised in circumstances where the parties had already been given an opportunity to be heard, and where, having been given that opportunity, the matter was effectively abandoned. It was further submitted that in all of the circumstances, relief under the slip rule was similarly not available.

The relevant provisions of the rules 12Rule 36.16(3A) of the Rules is in the following terms: 36.16 Further power to set aside or vary judgment or order .. (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. ..." 13Rule 36.17 is in the following terms: 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.

The power to vary the orders 14The power in r. 36.16(3A) is subject to the limitation imposed by the general law in relation to the variation of judgments. Its exercise depends upon establishing that the order in question is affected by a misapprehension of law or fact. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, Mason CJ said at 303: "...the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the parties seeking the re-hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." 15In the present case, contrary to the submission advanced on behalf of the plaintiff, the issue of whether, in the event that error was found, the matter should be remitted to a different Magistrate did not arise "out of the blue". It was in fact raised squarely in the plaintiff's written submissions (at [51]). Those submissions were filed prior to the hearing. Having been so raised the issue was agitated in oral argument. Ultimately, as I recorded in my judgment, it was not pressed. The plaintiff does not now suggest that this part of my judgment reflects some misapprehension or misunderstanding of the plaintiff's position, or some other misapprehension or misunderstanding of fact or law. 16In my view, in these circumstances, the present application really represents an attempt to re-litigate the same issue. In that case, the exercise of the discretion under r. 36.16(3A) is not enlivened and the plaintiff is not entitled to relief under that provision.

The slip rule 17The plaintiff also relies on the "slip rule" in r. 36.17, which is expressed to apply to cases of a "clerical mistake, or an error arising from an accidental slip or omission". 18It is necessary to apply the actual formation of the rule: Newmont Corporation and Goldman Sacks Group [2007] NSWCA 195; (2007) 70 NSWLR 411 at [23]. Accordingly there must, in the first instance, be an identified "clerical mistake" or "an error arising from an accidental slip or omission". It is not suggested that any clerical mistake was made in the present case. It follows that in order for the plaintiff to obtain relief under this provision, there must be an identified error which arises from an accidental slip or omission. 19In Newmont Spigelman CJ, having stated the importance of applying the actual formation of the rule, went on to observe (at [23]) that cases which state that a deliberate decision is not within the rule can be understood as a way of expressing the proposition that the relevant act or omission was not accidental. However, his Honour said (at [24]): "It is now particularly important to focus attention on the precise words of the rule, rather than to apply the terminology in the reasoning of prior case law, because the position in New South Wales is different to what it has been in the past and to what the position is in other jurisdictions". 20His Honour went on to observe (at [26]) that it was necessary to approach the task of interpreting the words in the rule, including the phrase "accidental slip or omission" in a way which gives effect to the overriding purpose contained in s. 56 of the Civil Procedure Act 2005. I have come to the view that even when full weight is given to these principles, relief under the slip rule ought not be granted. 21In Newmont Spigelman CJ (at [163]) described as "compelling" that part of the reasons of the primary judge in which the following was said: "The inherent jurisdiction, and the jurisdiction under the slip rule, is available to correct errors where the order does not reflect the intention of the judge making it". 22That is not the case here. The order made does reflect my intention, consistent with the position taken by counsel then appearing for the plaintiff, in which case relief under the slip rule should not be granted. Approaching the matter in that way does not offend the overriding purpose stated in s. 56 of the Civil Procedure Act. 23Firstly, there is no injustice to any party as a result of a refusal to grant the relief sought. The plaintiff's submission that remitting the matter to the same Magistrate would be likely to lead to a further appeal is, at the present time, wholly speculative. 24Secondly, there is no evidence which satisfies me that if the relief was granted the matter would be allocated a hearing date substantially in advance of when it can be expected to go back before Magistrate Bradd. 25Thirdly, there is no evidence which might establish that a refusal to vary the earlier order will add to the costs of the proceedings, substantially or otherwise. The proceedings must be remitted to be further dealt with in any event. 26For all of these reasons, relief under the slip rule should not be granted. 27I note that counsel for the plaintiff conceded that in the event that the motion was unsuccessful, costs should follow the event.

ORDERS 28For the forgoing reasons I make the following orders: (2)The notice of motion is dismissed. (3)The plaintiff is to pay the defendant's costs of the notice of motion as agreed or assessed.

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: 19 December 2014