Moray Vincent v Merrill Lynch Australia Pty Ltd

LEGAL REPRESENTATIVES: RSPONDENT Mr H J Dixon SC of counsel SOLICITORS Allen Allen & Hemsley

INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 648 of 1999 MORAY VINCENT v MERRILL LYNCH (AUSTRALIA) PTY LTD Application under s106 of the Industrial Relations Act 1996

1 These were proceedings initiated by the applicant Moray Vincent against the respondent Merrill Lynch (Australia) Pty Ltd under s 106 of the Industrial Relations Act 1996 ("the Act"). The applicant claimed costs as part of the relief sought in the summons. 2 During the course of the proceedings heard over several days no specific reference was made by the parties to the question of costs. 3 I gave judgment in the proceedings on 8 September 2000. On that occasion I made brief reference to certain orders made in favour of the applicant including an order that the respondent pay the applicant's costs of the proceedings in an amount as agreed or in the absence of agreement as assessed. I handed down written reasons for judgment which apart from the making of the order made no reference to the question of costs. A solicitor for the respondent was present in Court, but I accept had no opportunity to peruse the reasons for judgment and the details of the orders made before I had concluded dealing with the matter. 4 On 29 September 2000 the respondent filed a notice of motion seeking that the costs order made in favour of the applicant be vacated and an order that the applicant pay part of the respondent's costs of the proceedings. 5 The notice of motion asserted that the parties had not been given an opportunity to make submissions with respect to costs and that the respondent had made certain offers to the applicant well prior to the determination of the proceedings which were more favourable to the applicant than the judgment which he obtained. The notice of motion asked that the slip rule be applied for the purpose of enabling the respondent to make submissions as to the question of costs. 6 Upon the hearing of the notice of motion the applicant submitted that the Court was functus officio and had no jurisdiction to deal with the matter. 7 The basis upon which a court may correct a mistake in an order or decision is traditionally described by reference to the application of the "slip rule". The manner in which this rule operates has been described authoritatively on many occasions. A general description and the general principles applying are to be found in the decision of the High Court of Australia in L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590. 8 A form of "slip rule" is contained in the Rules of the Industrial Relations Commission of New South Wales, and particularly r 151 which is in the following terms: Minute of judgment or order 151. (1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. (2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision. (3) The power in this Rule is additional to the power in Rule 38. 9 I accept the submission of Mr Dixon SC who appeared for the respondent in support of the notice of motion that where it is appropriate to apply the slip rule, questions of whether a court is functus officio do not arise. That this is so may be derived from the factual circumstances which gave rise to the Shaddock decision and explicitly follows from the manner in which r 151 is framed. In this regard I refer also to the judgment of Lockhart J in the Federal Court of Australia in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd(1996) 133 ALR 206 at 210. 10 In Elyard Lockhart J commented: It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 Ch D 542 at 561-2; Chessum & Sons v Gordon [1901] 1 QB 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; and Gould v Vaggelas at CLR 274-5. (at 210)

11 The circumstances surrounding the judgment of the Privy Council in Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300 are also instructive. A Judge of the Supreme Court of Hong Kong, Pickering J delivered judgment in which his Honour had not awarded any sum for interest. Subsequently an application was made seeking the application of the slip rule to enable inclusion of an order for interest on the ground that the order had been accidentally omitted. In the course of applying the slip rule Pickering J said: A most important matter for me to consider is what I would have done at the time I gave judgment had this matter of interest been in my mind. After a lengthy trial, in the course of which both sides asked me to confine my decision to the issue of liability, and having written a long judgment which occasioned to me no small difficulty, my mind was on the issue of liability rather than upon any figures. But had I thought the matter through further, as I should have done, I am in no doubt whatever, having a very clear recollection of the case and at the evasiveness of Mr Cheng, witness for the second defendant company, that I would have made an award of interest. Unfortunately for the plaintiff firm, I did not read the lengthy judgment in court but handed it down so that the omission was not obvious to counsel for the plaintiff before I had left the court.

12 In dealing with an appeal from his Honour's decision the members of the Judicial Committee of the Privy Council said: On the basis of that explanation it can be said both that there was an accidental omission by the judge to order interest in his judgment of January 3, 1969, and that there was an accidental omission by counsel to ask for it. Under the slip rule an accidental omission by counsel can suffice to bring the rule into operation: In re Inchcape [1942] Ch 39, 399, per Morton J. (at 304). 13 I should also make reference to s 163(1)(c) of the Act. This requires the Commission "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form." This requirement is qualified by s 163(2) which provides that the rules of evidence "and other formal procedures of a superior court of record" apply to this Court. I do not regard the provisions of s 163(2) as applying in the circumstances of these proceedings so as to diminish the requirement that I proceed according to equity, good conscience and the substantial merits of the case. 14 If my attention had been directed to the fact that even if the applicant had succeeded, the question of costs may have been contentious, I would have reserved costs. The circumstances in which judgment was delivered bear great similarity to the observations of Pickering J in Tak Ming Co, to which I have previously referred. 15 In my opinion justice demands that the respondent be given an opportunity of addressing the Court with respect to the appropriate order to be made as to costs in the substantial proceedings. Accordingly, I propose to apply the slip rule so as to permit this to occur, and I set aside the order previously made in favour of the applicant as against the respondent for the payment of costs. I reserve the question of costs and grant liberty to apply to enable the matter to be argued before me if the parties are unable to reach some sensible accommodation in the interim. I also reserve costs associated with this notice of motion.

ORDERS 16 I make the following orders:

1. I set aside order No 7 made in my judgment delivered 8 September 2000.
2. Costs in proceedings Matter IRC 648 of 1999 are reserved.
3. I grant liberty to apply with respect to costs.

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