Place v Department of Finance, Services and Innovation

The Department's s 63 application

1. The Department submitted that the nature of its application was made clear by its letter of 7 December. Ms Bourke contended that the quoted paragraph had been inadvertently disclosed and sought a correction pursuant to s 63. The passage was contained in an email that was an attachment to an affidavit that had been filed after the hearing had closed, and had not been read or tendered in open hearing.
2. The matter had become a concern as a result of Dr Place's email of 30 November, in which he stated that he assumed the Department had no objection to re-publication of the paragraph, presumably on the website he maintains in connection with this matter.
3. Section 63 is a statutory version of the common law "slip rule", the purpose of which is to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Batagol & McGill v Monk [2000] VSC 48, [17]. The test for applying it has been held to be whether, if the matter had been drawn to the tribunal's attention, a mistake or omission would have been corrected at once: Riga v Peninsula Home Improvements [2000] VCAT 56. The following passage from R v Cripps; ex parte Muldoon [1984] QB 686, 695 has often been referred to: [The slip rule] is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
4. In its primary connotation, the slip rule applies when the error, mistake, omission or slip is a matter as to which no real difference of opinion exists. It can even apply if there are different possible "corrections", provided that the choice between them is not a matter of controversy or substance or require the exercise of an independent judgment: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 390 - 392.
5. There is no time limit on the making of such a correction, but it has been held that it "should be made without delay": Constantinidis v MMMMM Pty Ltd [2010] VCAT 1811, [26]. In the present case the application was lodged promptly and without delay. It was instituted because Dr Place took the view that the quotation of the paragraph from the email in para 173 of the published reasons for decision entitled him to disregard Order 5.
6. Section 63(3) sets out four examples of matters requiring correction in the text of a notice of decision or a statement of reasons for decision, including an "omission" or "an inconsistency between the stated decision and the stated reasons". In my view the present application falls within either or both of those examples, as the inclusion of the quoted paragraph in para 173, and the omission of the words "Not for publication", can be seen as inconsistent with Order 5. The quoted paragraph in para 173 should be replaced by the words "[Not for publication]" in the open reasons and the orders should be amended accordingly. In the the confidential reasons the words "Not for publication" should be inserted immediately before the quoted passage in para 173.

Dr Place's cross-applications

1. On 21 December 2016 Dr Place filed detailed written submissions seeking, first, an explanation of the nature of the motion and an adjournment to provide more time for him to prepare arguments. The first point has been answered above, and the adjournment application will be dealt with below.
2. The applicant then sought to have paragraphs 103, 139, 145, 148, 160, 162, 163, 171, 172, 179, 180 and 182 deleted from the reasons for decision or deleted in part, and replaced with the words "Not for publication". This cross-application appears to be under s 63 also. The grounds for the motion were that the paragraphs contain information that is personal to the applicant that was not presented or argued in the published form in open hearing, but constitutes inferences by the tribunal, and that he had no opportunity to respond or request non-publication of the information. It is argued that the inferences are not facts, and are "misleading or incorrect" or that conclusions were "incorrectly or inappropriately inferred".
3. The submissions then deal with each of the nominated paragraphs in turn, stating that they are unclear, or not relied on at the hearing, or obviously erroneous or "mere guesswork", or not inferences from facts, or "mere fortune-telling" or "mere conjecture" or speculation, and concluding that they all constitute obvious error. Reliance on Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 in para 182 is viewed as an error of law.
4. On no view of the law could such matters fall within the accepted scope of the slip rule. They are not points that would have been the subject of prompt correction if they had been drawn to attention at the time of the hearing, as contemplated in Riga. They are not matters upon which no real difference of opinion exists, as in the case of Elyard. Nor are they points that do not reflect the actual decision, as in Cripps, or that reflect an inconsistency between the stated decision and the stated reasons, within s 63(3)(d). Indeed, the applicant's real objection seems to be, not that the paragraphs do not reflect the decision, but that they do. If Dr Place is intending to apply under s 64 as well as s 63, that is not possible once the decision has been delivered. Changes are possible only to the limited extent permitted by the slip rule.
5. It is not clear, moreover, whether the application seeks to correct the open reasons or the confidential reasons or both. If it is intended to rectify the confidential reasons in the manner sought, the result would be that, while the decision would remain the same, most of the reasons for it could not be found anywhere. The tribunal has a statutory duty under s 62 to publish a written statement of its reasons that must include findings on material matters of fact, references to the evidence, the tribunal's understanding of the applicable law and the reasoning processes that led the tribunal to the conclusions it made. Its guiding principle as set out in s 3(f) is to be "accountable and [have] processes that are open and transparent".
6. The applicant said at the hearing that he believes the decision to be wrong. There are courses of action available to a party wishing to challenge a tribunal decision that the party believes to be wrong, but the slip rule is not one of them. As the Victorian tribunal has unambiguously said of the corresponding provision in that State, s 63 cannot be used "as a backdoor method by which unsuccessful litigants can seek to reargue their cases": Body Corporate Strata Plan (No. 334479D) v Sedara's Concrete Constructions Pty Ltd [2000] VCAT 45.
7. The applicant then seeks a determination in the following terms: "No further restrictions applied under Order 4". That is the order that restricts certain specified paragraphs from publication or disclosure to the applicant pursuant to s 64.
8. The applicant submits that any new or amended paragraphs marked as "Not for publication" have already been both published and disclosed to the applicant. He further submits that "While the tribunal may decide to remove paragraphs from publication in the decision, valid orders cannot be issued to retrospectively control access and use to subject public information".
9. Section 63(3) provides, however, that "If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's or the statement of its reasons, as the case may be…." The alteration thus operates from the date of the original order. As Lockhart J, with the majority, pointed out in Elyard (at 211), the approach of the High Court in Shaddock & Associates Pty Ltd v Parramatta City Council (No. 2) [1982] HCA 59, (1983) 151 CLR 590 -- "demonstrates the adoption by it of the view that, when the court makes an order under the slip rule, that order has the effect of correcting the slip in the earlier order, and operates from the date of the earlier order. The legal operation of the later order is simply to correct a previous mistake. Once the later order speaks, the additional words are included in the earlier order; and the earlier order continues as the relevant and operative order".
10. An order under s 63 does, therefore, operate retrospectively in that sense. As the quoted passage in para 173 has already been disclosed to Dr Place, though, it would be preferable to insert a new order that recognizes that fact rather than to attempt to amend Order 4.
11. Next, Dr Place seeks a correction of what he describes as a typographical error in para 3 by the substitution of "128 pages" for "700 pages". He submits that the 700 pages referred to counted the declarations that were explicitly excluded in the GIPA request.
12. The evidence was that the respondent's initial document search for information covered by the access request revealed some 700 pages of correspondence relating to Dr Place's complaint. While the access request did exclude "declarations by Anthony Place", it did not specifically identify them, as it did not indicate what kinds of declarations were meant (for example whether they were statutory declarations or some other form of declaration), nor did it give their dates. It was not until after the respondent had sent him the highlighted list of documents, which he approved, that it became possible to reduce the total to 128 pages. Until then, the respondent was not prepared to accept the request as it considered that it did not sufficiently identify the information sought. There is accordingly no typographical error in the paragraph.
13. The applicant also submitted that there was a typographical error in para 145 of the reasons that required correction. Para 145 contains the statement that "some complaints are found to be malicious or baseless". It was argued that the phrase should have read "some complaints may be found to be malicious or baseless". The evidence showed, however, that the Department's board does in fact from time to time receive complaints that prove on investigation to be unfounded. There was no suggestion that Dr Place's complaint was one of them, and para 145 does not suggest otherwise. There is consequently no typographical error in the paragraph.
14. In relation to the Dr Place's application for an adjournment to give him more time to prepare arguments, the applicant had a period that included seven business days for the purpose of preparing submissions in relation to the application. That would normally be considered a more than adequate amount of time to prepare for argument on an ancillary motion, and the applicant has in fact presented detailed submissions. The adjournment application is refused.
15. My decision, therefore, is that the respondent department's application under s 63 is granted and the applicant's cross-applications are refused, except for his request for written reasons.

Orders 1. The respondent department's application under s 63 of the CAT Act is granted. 2. The applicant's cross-applications are dismissed, except for his application for written reasons. 3. Paragraph 173 of the principal decision open reasons dated 29 November 2016 is corrected by deleting the quoted passage and substituting the words "Not for publication". 4. Paragraph 173 of the principal decision confidential reasons dated 29 November 2016 is corrected by inserting the words "Not for publication" immediately before the quoted passage. 5. Order (6) in the principal decision is renumbered (7) and a new Order (6) in the following terms is inserted: "(7) The quoted passage in paragraph 173 is not for publication".

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 June 2018