Loyola v Cryeng Pty Ltd

BESANKO AND PERRAM JJ: 4 The Court heard an appeal in this proceeding and delivered reasons in the appeal on 18 May 2012 (Loyola v Cryeng Pty Ltd [2012] FCAFC 71). The Court then considered the question of costs, including costs at first instance, and delivered reasons and made orders as to those matters on 10 July 2012 (Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98 ("No 2")). On the taxation of costs before a Registrar of the Court, a dispute has arisen as to the meaning of one of the orders the Court made. The relevant order is in the following terms: 2. As to the costs at first instance: (a) Pursuant to Rule 1.04(3) of the Federal Court Rules 2011, the earlier Rules apply; and (b) The appellants pay the respondent's costs. 5 In submissions on costs, the appellants submitted that there should be no order as to the costs at first instance. We rejected that submission (No 2 at [16]). We also considered whether the Court should otherwise make an order under Order 62, Rule 36A of the Federal Court Rules 1979 (Cth) so that the respondent could recover all of its costs and not merely two-thirds of its costs. We decided that the respondent should recover all of its costs at first instance and not simply two-thirds of its costs for the reasons we gave (No 2 at [18]-[19]). 6 The appellants contend that the Court's order in paragraph 2(b) does not have this effect. 7 The respondent asks the Court to exercise its power under the slip rule to correct the order in paragraph 2(b) so that it reads as follows: Pursuant to Order 62, Rule 36A(1), the appellants pay all of the respondent's costs on a party/party basis as taxed or agreed. 8 The appellants oppose the application. The Court has received brief written submissions from each party. 9 Order 35, Rule 7(3) of the Federal Court Rules 1979 (Cth) provides that a clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court. The equivalent and no less constrained power in the Federal Court Rules 2011 (Cth) is in Rule 39.05. 10 We think that it is plainly within the Court's power to correct the order: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 389-391 per Lockhart J; SMK Pty Ltd (formerly Canberra Roof Trusses Pty Ltd) v Kramer (unreported, Lee, Tamberlin and Kiefel JJ, 24 October 1995). 11 We have no doubt as to the Court's intention in making the relevant order on 10 July 2012. It was to otherwise order under Order 62, Rule 36A(1) so that the respondent received from the appellant all of its costs at first instance. We are satisfied that, if there is uncertainty about the present order, then that results from an accidental slip or omission. A dispute having arisen as to the meaning of the relevant order, we think it appropriate to correct it in the manner sought by the respondent. We will make an order to correct the order in paragraph 2(b) so that it reads: Pursuant to Order 62, Rule 36A(1), the appellants pay all of the respondent's costs on a party/party basis as taxed or agreed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko and Perram.