(7) To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process." (at 273)
McHugh JA said:
"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated." (at 280)
"… the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons'. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done." (at 281)
44 Applying these principles, I do not think that the appellant's submission should be upheld. The trial judge apprised the parties of the outline of the reasoning and constituent facts on which he acted. They sufficiently explained the basis on which the award of damages was made; indeed, they set out findings and his reasons for those findings in some detail. He explained his reasons for concluding that the accident in which the appellant was involved was minor, his reasons for rejecting the appellant's accountant's report and accepting the report of the respondent's accountant. He examined the medical evidence and detailed why it was that he reached the conclusions that he did and he explained on a number of occasions why it was that he thought that the appellant was exaggerating. The reasons given did not inhibit the conduct of the appeal. In my opinion the reasons for judgment were adequate and not such as to call for intervention by this Court.
45 Shortly before actually entering judgment the trial judge paused so as to give both parties an opportunity to check his arithmetic. This was apparently done, whereupon the trial judge entered a verdict and judgment for the appellant in the sum of $42,756.70, ordered credit to be given to the respondent for an amount of $2,457 pursuant to s.45 of the Act and also ordered the respondent to pay the appellant's costs as agreed or assessed. At that time the trial judge was unaware that there had been a prior award by an arbitrator for an amount of $45,678.95. No one informed him of this fact. Yet it was fundamental to the nature of the order for costs to be made in the matter. Absent such an award, that is on the assumption that the hearing before Robison DCJ was the first hearing, costs in such a case would almost inevitably follow the event. However, because there had been an earlier determination by an arbitrator the provisions of Part 39A of the District Court Rules were applicable. Part 39A deals with costs in such cases after 30 June, 1994 which were the subject of a hearing under the Arbitration (Civil Actions) Act 1983. Rule 31 (1), (2) and (3)are concerned with the fee paid by the applicant for re-hearing being refunded in the event that the determination of the court is substantially more favourable to the applicant than the determination of the arbitrator.. Rule 31 further provides as follows:
"(4) Subject to sub-rule (5), where proceedings are heard and determined under section 18(3)(b) of the Arbitration Act, and the determination of the Court is not substantially more favourable to the applicant than is the determination of the arbitrator, the Court:
(a) shall not make an order for payment by any other party of the applicant's costs incurred by reason of the re-hearing; and
(b) shall order the applicant to pay the costs of every other party incurred by reason of the re-hearing".
(5) The Court may in respect of a re-hearing certify that the special circumstances of the case require the Court:
(a) to make an order referred to in sub-rule (4)(a), in which case the Court may make that order; or
(b) to refrain from making an order referred to in sub-rule (4)(b), in which case the Court may refrain from making that order."
46 Neither legal representative drew the judge's attention to the fact that there had already been an arbitration, to the outcome of such arbitration or to the provisions of Part 39A Rule 31 when he delivered judgment on 8 October, 1999. No application was made for a certificate that special circumstances existed, nor was it contended at any time before the trial judge or on appeal that any special circumstances existed.
47 It is against such a background that it is necessary to consider the ambit and effect of Pt 17 r 10 of the District Court Rules. That rule provides that:
"(1) Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, … the Court, on the application of any party or of its own motion may, at any time, correct the mistake or error."
48 This is a form common to many courts in Australia and England.
49 Following the delivery of judgment the defendant in the proceedings (the respondent to the present appeal) realised that it had failed to draw to the trial judge's attention the fact that there had been a prior determination by an arbitrator. This led to an almost immediate request for a re-hearing in relation to the order for costs. That hearing took place on 26 October, 1999. On that occasion counsel for the appellant said that on the morning on which judgment was delivered the trial judge had asked whether were any applications in relation to costs. The legal representatives for the respondent said that no special order was sought and that costs should be costs in the cause. In the result the trial judge rescinded the order for costs that he had made on 8 October, 1999 and made an order that the respondent pay the appellant's costs save that the appellant is to pay the cost of the respondent by reason of the re-hearing.
50 In the notice of appeal the appellant has challenged the decision of 26 October, 1999 on the basis that there was no jurisdiction to make it or alternatively that the discretion to do so was exercised on wrong principles and taking into account irrelevant considerations. However, at the hearing of the appeal counsel for the appellant put his argument squarely on the basis of jurisdiction or power. The order that had been made was, so the argument ran, not irregular, illegal or against good faith. Furthermore, since the making of an order for costs involved the exercise of "an independent discretion" the slip rule had no application. In this regard he relied upon what was said by McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, namely that :
"The rationale of the slip rule requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist." (supra at 453)
51 It has long been the law in England that on accidental error in a judgment or order of the court may be corrected under the slip rule where it has been occasioned by the error or omission of the legal representative of a party. The slip rule in England is O XXVIII r 11. It provides that:
"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or judge on motion or summons without an appeal."
52 In Fritz v Hobson (1880) 14 Ch.D 542 a motion for an interim injunction had been adjourned to the trial of the action. At the trial the plaintiff succeeded but counsel forgot to ask for the costs of the adjourned motion. The judgment was drawn up and entered and thereafter an application was made by the plaintiff to allow the judgment to be corrected so as to include the costs of the adjourned motion. Fry J held that he had power to do so by virtue of the rule then in force (identical to Order XXVIII r 11) since the error had:
"arisen from the accidental omission of counsel to draw my attention to the adjourned motion when I pronounced my judgment …"(at 562).
53 In Chessum v Gordon (1901) 1 QB 694 A L Smith MR, with whom Collins and Romer LJJ concurred, applied Fritz v Hobson (supra) and Baker v Purvis (56 LT 131) and held that there had been an accidental error or omission within the meaning of the slip rule when the court failed to include within its order for costs an amount in respect of the costs of a special referee due to the solicitor engaged in the case failing to ask for those costs.
54 In Re Inchcape, Craigmyle v Inchcape (1942) 1 Ch 394 Morton J approved and applied both Fritz v Hobson (supra) and Chessum v Gordon (supra) when granting an application to amend an order of the court in relation to costs which should have been, but were not, asked for by counsel for the relevant party. In determining whether or not to apply the rule Morton J said:
"It is true that when the case was before me, I made the order which I intended to make in regard to the costs for which I was asked to make provision, but there was an accidental omission on the part of counsel, and I did not make the order which I would have made if that accidental omission had not occurred." (supra at 399)
55 In Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300 the Privy Council had to consider the application of the slip rule in force in Hong Kong (Ord 20 r 11) which was in identical terms to the slip rule in the rules of the High Court in England. That case concerned the failure of the court to include within the amount awarded to the successful plaintiff an amount in respect of interest. This occurred in circumstances in which the judge, because of the long lapse of time, due to a series of appeals in the matter, that occurred between his primary judgment and his final judgment, omitted to include any amount in respect of interest, although he would have done so had he thought of it. This explanation was said to bring into play the slip rule and that "there was an accidental omission by counsel to ask for it." (at 304)
56 In Brew v Whitlock (No.3) (1968) VR 504 the Full Court of the Supreme Court of Victoria allowed an appeal but made no order for interest pursuant to s.78 of the Supreme Court Act, 1958 (Vic). After the court's order had been drawn up, entered and served the appellant moved for an order that the order on appeal be amended to provide for interest on the amount awarded. The Full Court dismissed the application on two bases: first, that although the rules of court empowered the Full Court to give any judgment or make any order which ought to have been made and to make such further order as the case may require, this meant that the Full Court was able to do on application to it what the trial judge at the hearing was empowered to do on application to him. However, as no application for interest was made at the time of disposal of the appeal it was outside the Full Court's power to award interest under s.78.; second, the slip rule, embodied in Order XXVIII r 11 (which was relevantly identical to the common English and Australian provisions) did not apply. In order for it to apply it had to be shown that there had been: (a) a slip or omission; (b) that was accidental; (c) an error in the judgment arising from the accidental slip or omission; and (d) an error capable of being corrected under the rule.