Plaintiff v First Defendant

2 Following the delivery of the judgment, I provided the parties an opportunity to address the Court on the form of orders that should be made, including as to costs.

3 On 3 July 2025, the third party ('Sheriff') and Good Shepherd filed written submissions on the question of costs.

4 On 7 July 2025, I made the following orders in relation to costs:

1. The Plaintiff pays the costs of the First and Second Defendants of and incidental to the proceeding, including any reserve costs, on a standard basis, to be taxed in default of agreement.
2. The Plaintiff pays the costs of the Sheriff of and incidental to the proceeding, including any reserve costs, on a standard basis, to be taxed in default of agreement.

5 On 14 July 2025, Ms Stewart filed an appeal from the Judgment.

6 On 15 July 2025, both the solicitors for the second defendant ('the Department') and the solicitors for the Sheriff wrote to my Chambers seeking amendments to the costs order.

7 The Department wrote to my Chambers in the following terms:

We refer to paragraph 1 of the order made by his Honour on 7 July 2025, by which the plaintiff was ordered to pay the defendants' cost of and incidental to the proceeding.

We are instructed to draw to his Honour's attention that:

1. his Honour's substantive order was to dismiss the appeal against the order of Ierodiaconou AsJ, which order was to grant the first defendant's application for summary judgment on its counterclaim, whereas the plaintiff's original proceeding (in which relief other than possession of the subject property is claimed) remains on foot;

2. the defendants' costs of the summary judgment application were ordered to be paid (by Ms Stewart) by Ierodiaconou AsJ, and that order was not disturbed on appeal; and

3. paragraphs 3 and 4 of the Court's order of 18 June 2025 made reference to submissions being made in relation to the costs of Ms Stewart's "appeal, including as to costs reserved".

Accordingly, the second defendant respectfully raises for his Honour's consideration whether his order should be amended to refer (only) to the defendants' costs of and incidental to the plaintiff's appeal, in accordance with rule 36.07.

We wish to apologise to his Honour for the second defendant's failure to raise this matter in submissions in response to the prior indication that was given by his Honour as to the terms of the order that he proposed to make. The first defendant has authorised us to convey its apology for failing to draw this matter to his Honour's attention at the time it made its submissions on costs.

The other parties are copied to this email and the first and third defendants consented to it being sent. We did not receive a response (consenting or otherwise) from the plaintiff.

8 The Department asks that the Court amend order 1 so that instead of referring to the whole of the proceeding, it refers only to the appeal from the judgment of the Associate Justice.

9 Later that day, the solicitors for the Sheriff emailed my Chambers. That email was in the following terms:

Following recent correspondence from the Second Defendant to the Court in connection with Order 1 of the costs order made by his Honour on 7 July 2025 (below), the Sheriff also humbly requests the Court considers a minor amendment to Order 2 in accordance with Rule 36.07.

Subsequent to the judgment of the Honourable Associate Justice Ierodiaconou delivered on 23 September 2024, it was the Plaintiff's summons filed on 27 February 2025 which brought the Sheriff before the Court.

Might the Court consider an amendment being made to paragraph 2 of the Orders made on 7 July 2025 from:

"The Plaintiff pay the costs of the Sheriff of and incidental to the proceeding, including reserve costs on a standard basis to be taxed in default of agreement"

to the following as highlighted:

"The Plaintiff pay the costs of the Sheriff of and incidental to the proceeding Summons issued to the Sheriff filed on 27 February 2025, including reserve costs on a standard basis to be taxed in default of agreement"

The Sheriff submits that this correspondence is non-contentious nor is it controversial.

The First and Second Defendants had no objection to the Third Party, the Sheriff, sending this correspondence to the Court. There was no response received back from the Plaintiff after the draft of the above email was sent to them.

10 The Sheriff asks that the Court amend order 2 so that it only refers to the Summons by which it was required to participate in the proceedings.

11 On 15 July 2025, Ms Stewart wrote to the Court objecting to the Sheriff's proposed amendment. She stated that:

While the Sheriff suggests the amendment is minor and non-contentious, the proposed change introduces a specific reference to the Plaintiff's Summons filed on 27 February 2025.

This amendment risks narrowing the scope of the original costs order in a manner that was not determined by the Court and may give rise to ambiguity regarding the extent of the Plaintiff's liability for the Sheriff's costs.

The current form of Order 2 - referring to the Plaintiff's obligation to pay the Sheriff's "costs of and incidental to the proceeding" - appropriately captures the Sheriff's participation in the broader proceeding and is consistent with the Court's judgment.

I respectfully submit that this order should remain unamended to preserve the clarity and intent of His Honour's costs determination.

Should the Court be minded to entertain the amendment, [I] would respectfully request the opportunity to make further submissions in opposition.

12 The basis of Ms Stewart's objection to the proposed amendment is unclear. If the orders were to be made, as suggested by the Sheriff, it would (as Ms Stewart suggests) narrow the scope of any order to the Summons which caused the Sheriff to appear. A narrower costs order against Ms Stewart can only theoretically, and potentially practically, be to Ms Stewart's advantage in that it could expose her to a lesser liability for costs.

13 Having reviewed the correspondence, I am satisfied that it is unnecessary to grant Ms Stewart or the defendants or third party an opportunity to provide further written submissions.

14 It is a well-established rule that once a court order is perfected in a form which correctly expresses the intention with which it was made, the Court has no jurisdiction to amend or alter the order.[2] One of the few exceptions is by the operation of the 'slip rule'.

15 Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015 provides that:

Amendment of judgment or order

The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.

16 The question that the Court should ask itself in deciding whether the slip rule is applicable is whether if the matter had been drawn to the Court's attention, would the correction have been made at once?[3]

17 In Commonwealth of Australia v Davis Samuel Pty Ltd and Others (No 9),[4] Refshauge J addressed whether the slip rule was available to a judge whose decision was the subject of an appeal. In that case, Refshauge J handed down the primary judgment and provided the parties with draft orders and adjourned for a short period of time to allow the parties to consider whether the draft orders were in accordance with the judgment delivered. The orders were then made and perfected. The judgment was then appealed. The plaintiff in the original proceeding then applied to the Court pursuant to r 6906 of the Court Procedure Rules 2006 (ACT) seeking amendments to the perfected orders. The plaintiff submitted that the orders contained mathematical errors and that the orders were consequently wrong.

18 In deciding whether the amendments could be made under the slip rule, Refshauge J identified the problems in the primary judgment which led to the incorrect orders and considered the arguments of the parties as to whether or not he could amend the orders while the proceeding was under appeal. His Honour said:

The [slip] rule is now ... set out in the Court Procedures Rules and there is nothing in the rules to confine the court to its operation only where no appeal has been commenced.

Indeed, there are good policy reasons not to do so. The resources of the courts are stretched; indeed, the pressure of business on this court which caused the regrettable delay in delivering judgment in this matter on 21 November 2014 shows how stretched the resources are. To use those resources in the hearing of an appeal, involving three judges and complex and comprehensive preparation, when an obvious amendment can be made by the trial judge who, often, if not always, is in the best position to decide that the amendment accords with the reasoning and findings made and is a correction which "if the matter had been drawn to the court's attention would ... at once have been made" (Storey & Keers Pty Ltd v Johnstone at 453) is to waste scarce resources for no benefit.[5]

19 After canvassing authorities in which the slip rule had been used despite the fact that the judgment was under appeal, his Honour held that:

Following a careful consideration of the terms of r 6906 of the Court Procedure Rules, from authority and from a consideration of matters of policy and efficiency, it is clear to me, and I find, that a court may amend an order or judgment under the slip rule notwithstanding that the decision which it is sought to amend is the subject of an appeal. Such amendment, must, of course, be amenable to the application of the slip rule and is subject to the usual discretionary considerations.[6]

20 Rule 6906 of the Court Procedure Rules 2006 (ACT) is in substantially the same terms as the Victorian equivalent. It provides as follows:

6906 Mistakes in orders or court certificates

(1) This rule applies if -

(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or certificate of the court; and

(b) the mistake or error resulted from an accidental slip or omission.

(2) On application by a party to the proceeding or on its own initiative, the court may at any time correct the mistake or error.

Note Pt 6.2 (Applications in proceedings) applies to an application for correction of the mistake or error.

(3) Part 2.7 (Amendment) does not apply to a correction made under this rule.

21 There is no difference of any substance in the phrasing of the two provisions which would warrant a different conclusion in Victoria to that reached by Refshauge J in the ACT.

22 The orders I made provide that Ms Stewart pay the costs of Good Shepherd, the Department and the Sheriff of and incidental to the proceeding, on a standard basis to be taxed in default of agreement.

23 The Department's point is well made. The judgement disposed only of Ms Stewart's appeal against the decision of the Associate Justice which was an application for summary judgement in respect of Good Shepherd's counterclaim brought in Ms Stewart's proceeding. Ms Stewart's proceeding remains on foot. Framed as broadly as they are, the costs orders made by me could be taken to award costs to the defendants and the Sheriff broader than the hearing in relation to Ms Stewart's appeal against the Associate Justice's decision. That was not my intention and, had the matter been brought to my attention at the time, I would have corrected the order to reflect that intention.

24 The change proposed by the Sheriff in fact accords with my intention, namely that Ms Stewart be obliged to pay the costs of and incidental to the Sheriff's involvement in the matter, which was - as the Sheriff says - confined to responding to the Summons filed on 27 February 2025.

25 In each case, the use of the word 'proceeding' was imprecise, and did not convey accurately my intention. It was, in simple terms, a drafting error.

26 Accordingly, the orders will be amended in the following terms:[7]

1. The Plaintiff pays the costs of the First and Second Defendants of and incidental to the Plaintiff's appeal, including any reserve costs, on a standard basis, to be taxed in default of agreement.
2. The Plaintiff pays the costs of the Sheriff of and incidental to the Plaintiff's Summons issued to the Sheriff filed on 27 February 2025, including any reserve costs, on a standard basis, to be taxed in default of agreement.

27 The changes will address the inadequacies of the orders made and reflect clearly the intent of the Court. No prejudice arises from the amendments for Good Shepherd, the Department or the Sheriff in the proposed changes. First, it is the Department and the Sheriff who seek the changes to the orders. Good Shepherd will be entitled to the costs of the appeal but, as the proceeding otherwise remains on foot, the changes to the orders make clear that it will not be entitled to any cost of Ms Stewart's extant proceeding.

28 Ms Stewart objected to the Sheriff's proposed amendment. For the reasons already stated, Ms Stewart can only benefit from the change suggested by the Sheriff. Her reason for opposing this change does not make sense. Ms Stewart will suffer no prejudice arising from the amendment to the orders as to costs.

29 Accordingly, in lieu of the orders dated 7 July 2025, I will order that:

1. The Plaintiff pays the costs of the First and Second Defendants of and incidental to the Plaintiff's appeal, including any reserve costs, on a standard basis, to be taxed in default of agreement.
2. The Plaintiff pays the costs of the Sheriff of and incidental to the Plaintiff's Summons issued to the Sheriff filed on 27 February 2025, including any reserve costs, on a standard basis, to be taxed in default of agreement.

[1] Stewart v Good Shepherd Australia New Zealand [2025] VSC 351.

[2] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539 per Gibbs J.

[3] Hatton v Harris [1892] UKLawRpAC 30; [1892] AC 547 at 558; Storey & Keers Pty Ltd v Johnston (1987) 9 NSWLR 446 at 453. This formulation of the test has been endorsed in this Court, see: Tsahrelias v Hanna & LH Holding (2024) 73 VR 551 per Croucher J at 576 [130].

[4] [2015] ACTSC 127; (2015) 296 FLR 62. This judgment was cited by the ACT Court of Appeal in Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 at [34]. Leave to appeal the slip rule judgment, along with a suite of other judgments in the proceeding, out of time, was refused and no comment was made as to the correctness of the slip rule judgment. Leave to appeal to the High Court of Australia was denied.