Valleyfield P/L v Primac Ltd & Anor [2002] QSC 134

[3] Interest was allowed on all heads of damage (except expenditures in 2001 to which reference will be made a little later) at a rate of 5%. The Plaintiff contends that this occurred in circumstances which fall within the "slip" rule and that interest should be allowed at 10%.

[4] In its written outline placed before the Court at trial (exhibited to the Affidavit of Mary Elizabeth Boittier on this application) the Plaintiff contended for various sums under the headings already referred to. Included in the written outline was a claim for interest at 10% for loss of income in 1997 and 1998 and 5% on all other heads of damage representing past loss.

[5] The Plaintiff says that the reference in its written outline to 5% interest on these heads of damage was made in error and that this error was or should have been apparent. The Court awarded interest at 5% under all past heads of damage including those where the Plaintiff contended for 10%.

[6] The scope of the "slip" rule extends beyond an error or oversight on the part of the Court. Toohey J. in an unreported judgment which the Plaintiff referred the Court to (Raybos Australia Pty. Limited v Tectran Corporation Pty. Ltd. (86/130 H.C. 10.2.88) said:-

"6. In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced: Coppins v Helmers and Brambles Constructions Pty. Ltd. (1969) 2 NSWR 279. That is the situation which has arisen here."

[7] The Defendant did not advance any argument to the Court at the trial on the rate of interest to be allowed.

[8] No evidence was placed before the Court by any party on the subject of interest rates.

[9] In support of its claim that the reference to 5% in its outline was in error, senior counsel for the Plaintiff referred to a statement made by him at page 1599 of the transcript:

"Your Honour, the interest calculation at the top of page 24 is obviously incorrect. I don't know what's happened there. The figure -----

HIS HONOUR: Well, you can supplement it if you like and then I suppose the parties can -----

MR. BAULCH: Yes. But in any event, your Honour, it's a calculation on interest at a specified rate for a - for a specified term and I think ----

MR. BAULCH: It's at the bottom of page 23, we summarise the loss for 1997, a total of 768,675 then on the next page, interest on that, and the calculation has obviously been mistyped.

HIS HONOUR: I don't know what that's meant to be, yes.

MR. BAULCH: And I've set out the way in which interest is approached."

[10] However, it is obvious from a reading of what was said that it related to a quite specific subject, although it is clear that a rate of 10% was being contended for in that instance (loss of income in a particular year).

[11] On the face of the Plaintiff's written argument the Court had a claim for interest at 5% in a number of instances and 10% in a smaller number of instances.

[12] There was no material before the Court on the subject of interest rates apart from the written submissions themselves. The Court accepted the rate of 5% contended for by the Plaintiff and applied it to all heads, there being no reason advanced or apparent why any distinction should be made in the case of the claims for loss of income.

[13] This necessarily involved the exercise of the Court's discretion. Section 47 of the Supreme Court Act of 1995 provides:

47.(1) In any proceeding in respect of the cause of action that arises after the commencement of the Common Law Practice Act Amendment Act 1972 in a court of record for the recovery of money (including proceedings for debt, damages or the value of goods) the court may order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of judgment."

[14] I was referred to a number of cases in which it has been held that the "slip" rule cannot be applied where the exercise of an independent discretion is involved. See Brew v Whitlock (No. 3) (1968) VR 504 and Re: Russell (1999) 154 FOR 171.

[15] In my view if the Plaintiff is to have any remedy it is by way of appeal and not under the "slip" rule.

[16] A further difficulty which it seems to me the Plaintiff faces in seeking an order of this kind is that it must be clear that an error was made and that the error and the correction claimed are matters about which no real difference of opinion can exist. See Sands v McDougall & The Commissioner of Taxation [1999] VSCA 36; (1999) 2 VR 114 at 119 where Brooking J.A. said:

"We have heard a good deal of argument about what is and what is not comprehended by the slip rule, to which I now return. One of the difficulties - and it is a difficulty often encountered in considering what was said in previous decisions - lies in determining whether the court, in describing the state of affairs which in its view existed, is formulating a test which must be met or merely speaking of the facts of the given case, which in its view are enough to warrant relief. For example, in Hatton v Harris [1892] A.C. 547 Lord Herschell said at 558, `I cannot doubt that the correction would at once have been made' if the matter had been drawn to the attention of the judge who made the decree. In Storey & Keers Pty. Ltd. v Johnstone (1987) 9 N.S.W.L.R. 446 at 453 McHugh J.A. accepted this as laying down what was in general the test.

In L. Shaddock & Associates Pty. Ltd. v Parramatta City Council (No. 2) [1982] HCA 59; (1982) 151 C.L.R. 590 at 593 the court said:

We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it.

In Tak Ming Co. Ltd. v Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 at 304; [1973] 1 All E.R. 569 at 572 the Judicial Committee referred to the determination of the primary judge (`I am in no doubt whatever ... that I would have made an award of interest') and observed that on the basis of that explanation the slip rule had been brought into operation.

In Commonwealth v McCormack [1984] HCA 57; (1984) 155 C.L.R. 273 at 277 the court said:

If the matter had been raised on the hearing of the appeals, such an order would have been made as of course ...

In Elyard Corporation Pty. Ltd. v DDB Needham Sydney Pty. Ltd. (1995) 61 F.C.R. 385 Lockhart J., with whose judgment Black C.J. concurred, said at 390-1:

The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy ...

Counsel for the appellants and for the respondent invited us to adopt that test. The test commends itself to me and I think it should be adopted."

[17] In this case the Defendant does not accept that 10% would be an appropriate rate of interest and contends in argument that it would be excessive. I was referred to two Queensland cases in which awards of interest of 5.5% and 6% were made.

[18] I allowed an Affidavit of a solicitor for the Respondent to be placed before the Court in which interest rates offered by the Reserve Bank and other financial institutions during the relevant period were set out. These were taken from the Reserve Bank's website and show rates which would provide support for the Second Defendant's claim that an allowance of 10% would be excessive.

[19] It seems to me that, on both of the grounds I have discussed, the application must fail.

[20] Other grounds also were advanced. One was that as the rule is concerned only with inadvertence a deliberate choice which turns out to be erroneous does not come within it. It is not however necessary to consider whether this principle has any application here.

[21] Finally, I should mention that in the course of argument, senior counsel for the Plaintiff raised an argument that the Court inadvertently failed to allow interest for the expenditure incurred in 2001. Interest was claimed for half a year and the sum involved is a relatively modest one. It is fair to say that I expressed some sympathy with the Plaintiff's claim in this regard. However the Defendant objected to the matter being raised. It had not been included in the application and was raised for the first time in the submissions of senior counsel for the Plaintiff. Senior counsel for the Defendant said that he was not in a position to meet such an argument in these circumstances I ruled that it is not appropriate that I should entertain it on this application.

[22] The result will be that the application is dismissed with costs to be assessed.