WorkCover Authority of NSW (Inspector Mark Morganthal ) v DHL Exel Supply Chain [2008] NSWIRComm 49 | Case summary

WorkCover Authority of NSW (Inspector Mark Morganthal ) v DHL Exel Supply Chain [2008] NSWIRComm 49 | Case summary | Zoe

[15]

9 At the conclusion of all of the submissions made by each of the defendants, I asked counsel for the prosecutor to assist me in connection with a particular factual matter and submissions thereon made on behalf of one of the defendants. After dealing with that matter, which did not concern any question involving the height from which the injured worker had fallen, counsel for the prosecutor then raised, for the first time in the proceedings, a matter concerning the height from which the injured person had fallen. He said: "DOCKING: I think Mr Shume on another issue's fairly pointed out and I think this applies for each defendant across the board, there is a guilty plea to an application for order reflecting that the driver says he was about 2.5 metres. Mr Shume referred to the statement of facts that between heights secured a submission to say that a defendant having pleaded guilty to a factual matter saying the driver alleges he was at 2.5 metres, approximately, that your Honour could be troubled other than finding that beyond reasonable doubt. The guilty pleas have admitted each of the relevant application for orders. A further point is that this is really falling into the well-known trap and it was one of Ms McDonald's cases as a prosecutor on appeal, Kennedy Taylor or Main Brace , the well-known trap of focusing on the actual incident as opposed to the risk. At the start of submissions, I said let's look at the factual inspection, the second levels of 2.74 metres. The lower decks are 1.2 metres. The concrete surface is what one would fall on to and that's why I said it's a matter of good or bad luck how a person fell and impacted the concrete surface. One would hope it's not your head to have a fatality for example. It's a bit of a curious submission, even Mr Shume was saying somehow it'd mitigate if you fell 1.12. Falling on a concrete surface…." 10 Later, there occurred the following exchange between counsel for another defendant and counsel for the prosecutor in the following terms: "McDONALD: In reply to the prosecutor's submissions, there's a High Court authority called Dawson which says when a plea of guilty is entered it's entered to the elements of the offence it's not entered to the particulars. The particulars that my friend is referring to are really particulars which just give a background to how this particular offence arose, they're not crucial parts of particulars such as lack of safe system etc, so the submission that my client has pleaded guilty to those particulars, it hasn't, it's pleaded guilty to the elements, it has acknowledged particulars 1 and 2 which are the act and omissions, the other particulars which deal as I've said with the factual background it hasn't pleaded guilty to and if there's differences between those and the facts that your Honour finds or facts in the statement of agreed facts they prevail and that's what your Honour deals with. DOCKING: It's a matter of call and as I understand it judges in this jurisdiction take different views. What Ms McDonald assumes is a normal indictment which doesn't include further particulars that an application for order does in this jurisdiction. The record will show if there was any condition on the guilty plea. As best I can work it out, I think different judges in this jurisdiction take a different view, although I think the most common view is if you've pleaded to the application for order without qualification it's to the lot. It's difficult importing that general criminal law concept where you've got the indictment, the charge, you don't have the fuller particularisation as to how then is that applied? I must admit your Honour might know of an authority in this jurisdiction which has finally dealt with the point." HIS HONOUR: No. I've not had to deal with the point so I don't know the answer. What would be helpful, however, and you have the vast resources of the WorkCover Authority of New South Wales could you please just send me a brief submission as to those cases which have dealt with that matter and any relevant authorities and, Ms Mcdonald, are you able to respond? 11 The proceedings were adjourned and judgment was reserved on the basis that this discrete point would be the subject of written submissions. 12 Having considered the submissions made by the prosecutor and by the defendants, I rejected the position put by the prosecutor that the plea of guilty entered by each of the defendants constituted an admission that the injured person had fallen a distance of about 2.5 metres. My reasoning for so determining is contained in [11] to [17] of my reasons for judgment.

[22]

23 It might, perhaps, be said that the prosecutor in these proceedings is representing the WorkCover Authority of New South Wales and that, to that extent, he is not acting as a representative of "the community" or "the State" as would apply in general criminal proceedings. However, the WorkCover Authority of New South Wales may be characterised as the instrumentality of government charged with the responsibility of administering the laws relating to occupational health and safety in New South Wales. As I understand the activities of the WorkCover Authority, they include not only general administration of the relevant legislation, but also investigation of breaches and the prosecution of breaches. To some extent, it might be thought that the dual role of investigator and prosecutor might qualify the nature and extent of the role and duties of the prosecutorial role. On the other hand, there are two factors that, in my opinion, dictate a contrary conclusion. Firstly, it is quite clear that when a defendant is convicted of a breach of the Act, this results in a criminal conviction. Whether in the case of an individual, for example, it is a conviction of the kind that finds its way onto the records of immigration officers at international airports or whether it is an offence which needs to be declared on entry into the United States is not to the point. It remains a criminal conviction and should attract the same odium as applies, for example, to customs and other offences that are created by statute. The second point is that since prosecutions for breaches of occupational health and safety legislation in New South Wales commenced shortly after 1983, there has been a practice for the prosecutor, the WorkCover Authority of New South Wales, to seek and be granted a moiety of any penalty. It is necessary to counter any suggestion that the WorkCover Authority of New South Wales in its dual role as investigator and prosecutor is motivated to any degree by a desire to enhance its own revenue through the collection of increased penalties. For this reason also, in my opinion, it is essential for the proper and fair administration of justice for prosecutions for breaches of the Act to be conducted in a manner entirely consistent with the duties and obligations of prosecutors in dealing with criminal prosecutions under the general law.

[27]

Liberty to apply 16 The prosecutor submitted that I had power to make the corrections sought by it as part of the liberty to apply which I had granted with respect to the question of costs. The reservation of costs was dealt with in [25] of my judgment in the following terms: "25 The debate about this matter was conducted substantially through written submissions after the completion of the hearing. Because I have upheld the position adopted by the defendants and rejected that taken by the prosecutor, it is arguable that the costs of this part of the proceedings should not be borne by the defendants. I shall reserve costs accordingly." 17 The orders made by me in the judgment are in the following terms: "52 I make the following orders: 1) Each of the defendants is found guilty of the offence with which they are charged and convicted accordingly. The defendant Exel is fined the sum of $75,000, the defendant McGill Holdings is fined the sum of $55,000, and the defendant DTC is fined the sum of $45,000, with a moiety in each case to the prosecutor. 2) Costs are reserved. 3) Liberty to apply with respect to costs." 18 It is first necessary to consider whether the liberty to apply which I granted with respect to costs would permit a consideration of the reasons for judgment which the prosecutor submits should now be excised pursuant to this application. 19 As [25] of the reasons for judgment makes clear, costs were reserved because of the rejection of the prosecutor's submissions on the one discrete point. Of course, the whole of the question of costs remained open by reason of the reservation and pursuant to the liberty to apply that I had granted. Nevertheless, it is arguable that the reservation and the liberty to apply should be confined to which of the parties should pay costs and in what amount (and theoretically on what basis) having regard to the reasons for judgment and the orders made. Notwithstanding this position, the prosecutor submitted, as I have said, that I was empowered to revisit the reasons for judgment. 20 Of course, there may be matters concerning costs, other than liability to pay and quantum, that the Court may be permitted to deal with. In Carter v Wall (No 2) [2003] NSWLEC 94, Cowdroy J in the Land and Environment Court of New South Wales referred to applications for postponement of costs or for payment by instalments "or similar orders". At [33], his Honour said: "33 The leave that was granted to apply in respect of costs does not permit the Court to interfere with the assessment process when an order has been made that the costs be paid by the defendant. The utility of such leave is limited only to applications for implementation of the earlier orders. In Cristel v Cristel [1951] 2 KB 725 Somervell LJ explained the term 'liberty to apply' and said at p 728:- 'Prima facie, certainly, it does not entitle people to come and ask that the order itself be varied.' The leave granted to the defendant would permit an application to be made for postponement of such costs, or for payment by instalments, or similar orders. The Court rejects the defendant's submission that it can make an order under s 52(1) of the Court Act allowing the prosecutor's costs but in an amount that does not exceed the maximum penalty of the relevant offence, or otherwise limiting the costs." 21 This leads to a consideration of the scope of what a court may be permitted to do in connection with the reservation of costs and the liberty to apply, which is consequently granted. This question was the subject of a recent judgment of the New South Wales Court of Appeal in Australian Hardboards Limited v Hudson Investment Group Limited [2007] NSWCA 104. The majority judgment was delivered by Campbell JA, Tobias JA agreeing and Young CJ in Eq dissenting. 22 Some general principles were stated by Campbell JA in the following manner: "50 When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, 'working out the order': Poisson and Woods v Robertson and Turvey (1902) 50 WR 260 at 261; Cristel v Cristel [1951] 2 KB 725 at 729, 730; Nicholson v Nicholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]. The manner of invoking liberty to apply is by a substantive motion on notice: Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559; Kraft v Kupferwasser (1991) 23 NSWLR 236 at 244.

[28]

51 In Abigroup Limited v Abignano [1992] FCA 567; (1992) 39 FCR 74 at 88 the Full Federal Court (Lockhart, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a final order, notwithstanding that the order also reserved liberty to apply. Their Honours gave a general indication of where and how reservation of liberty to apply operates: 'The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. They relate essentially to orders (not often to declarations) in practice in our experience. We agree with the submission of counsel for the appellant that orders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. They arise, for example, upon a decree for specific performance where the unsuccessful defendant declines to sign all documents and do whatever is necessary to ensure that the contract the subject of the suit is performed. The reservation of liberty to apply ensures that the court may then make orders to secure that the relevant contract is enforced by the defendant by, for example, appointing the appropriate officer of the court to execute the necessary documents of conveyance so as to give title to the successful plaintiff. Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentialy consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court. See generally the discussion with respect to liberty to apply and further consideration in A V Ritchies Supreme Court Procedure (NSW), paras 42.12.2 and 42.12.3.' 52 Liberty to apply cannot be used to alter the substance of an order already made: Dowdle v Hillier (1949) 66 WN (NSW) 155 at 156; Cristel v Cristel [1951] 2 KB 725; Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559.

[29]

53 Some aspects of the width of the court's jurisdiction to superintend the enforcement or working out of an order for specific performance were listed by White J in Riltang P/L v L P/L [2004] NSWSC 977 at [51]: 'It is well established that where a plaintiff obtains an order for specific performance the Court may substitute other forms of relief where a decree of specific performance is not complied with. (Fry on Specific Performance (6 ed paras 1170-81)). Where the purchaser has gone into possession such substituted relief may include the appointment of a receiver, an injunction to restrain the purchaser from continuing possession of the land, and an order for sale of the land with the vendor to have liberty to bid. Where either plaintiff or defendant wishes to rescind a contract pursuant to a contractual right to do so, or terminate [it] for breach, he must obtain leave, or more appropriately, vacation of the order for specific performance. ( Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245 at 260; JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600 at 603-604). Whilst not directly in point these cases illustrate the width of the Court's jurisdiction to superintend the enforcement or working out of an order for specific performance.' 54 In Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 McPherson SPJ considered what is involved in "working out" an order, at 598: '... a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by "working out" the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 K.B. 727, 728, Somervell LJ said it "involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied". A simple judgment for a money sum requires no "working out" in any sense, so that liberty to apply is quite inappropriate in such a case. On the other hand, there are many orders, particularly on the equity side, as to which the process of carrying the primary judgment into effect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose. An example commonly encountered in practice is specific performance, where, because the consent or approval of some person or instrumentality may be needed to authorise a preliminary step, the judgment sometimes takes the form only of a declaration that the contract be specifically performed, together with subsidiary orders compelling particular acts to be done. See Egan v Ross (1928) 29 SR (NSW) 382, 388; Hasham v Zenab [1960] AC 316; Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344, 350. The primary order may then need to be supplemented by further orders from time to time before the stage is reached at which the defendant can finally be ordered to perform specifically what he contracted to do in the way of transfer or payment as the case may be: Brown v Heffer [1967] HCA 40; (1967) 116 CLR 344, 350. In Penrice v Williams (1883) 23 Ch D 353, 356-357, Chitty J spoke of an order that is "clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on the face of the order". His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v Hobson (1880) 14 Ch D 542, 561; Cristel v Cristel [1951] 2 KB 725, 731. A decree of specific performance in the limited form previously described nevertheless is a "final" order for the purpose of appeal and otherwise, and so, at least as to issues litigated, cannot be discharged or varied under liberty to apply, notwithstanding that further decisions and orders may yet have to be made in working out its consequences. What cannot be done under the guise of "working out" an order is to vary it.'

[32]

Inherent jurisdiction 25 The prosecutor submitted that this Court had an inherent jurisdiction to make the correction sought in the application. In support of this submission, the prosecutor relied only on the decision of the New South Wales Court of Criminal Appeal in R v Carrion [2002] NSWCCA 21. The judgment of the Court was delivered by Wood CJ at CL, Sully and Dowd JJ agreeing. In the course of reviewing a number of authorities in this area, Wood CJ at CL referred to an inherent jurisdiction possessed by a court to intervene so as to correct any judgment or order which did not give effect to the intention of the court on the basis that "the interests of justice" required that this be attended to. This was described by his Honour as being an "inherent power" which was available to the court whether or not an order had been perfected. However, it was not necessary for his Honour to determine that matter finally because he held that in the circumstances of those proceedings the order of the Court under review had not been perfected. In describing the inherent jurisdiction, Wood CJ at CL cited with approval observations of Brennan J (as his Honour then was) in the High Court of Australia in Whan v McConaghy (1984) 153 CLR 631. 26 At 642, Brennan J described the limits of the inherent jurisdiction as being "….determined primarily by reference to the purposes served by this exercise, the chief among them being control of the court's procedure, suppression of abuses of its process, preventing attempts to thwart its process, and ensuring fairness in its proceedings…." 27 The decision in Carrion leaves open, in my opinion, a number of issues that require determination. The first is whether the inherent jurisdiction or power extends to orders that have been perfected and if not, whether the correction which is sought in this application is with respect to a perfected order. The second question is whether this Court as a superior court of record, albeit with statutory jurisdiction, possesses such an inherent jurisdiction or power. The third question is, assuming that it does, whether the inherent jurisdiction or power extends to the circumstances of these proceedings and in particular to the correction sought by the prosecutor.

[33]

Were the orders perfected? 28 It is first necessary to direct attention to the orders that are said to require correction. Three orders were made. The first included findings of guilt, conviction and the imposition of a monetary fine. That order is not the subject of any application for correction and has not been the subject of any appeal. The remaining orders are the reservation of costs and the granting of liberty to apply with respect to costs. For reasons that I have previously given, the application for correction does not come within the liberty to apply and does not seek to affect in any way the reservation of costs. The application for correction is, in effect, directed to observations which were made about the conduct of the prosecutor and which are not, of themselves, the subject of any appeal. 29 Accordingly, the application for correction does not arguably relate to any order and is confined to reasons for judgment given in the context of the judgment published on 23 March 2007. The discussion that follows is predicated on the basis that there was an order of an "associated" kind for the purpose of considering this discrete point, which might be the subject of an inherent jurisdiction or power. 30 A Full Bench of this Court in Ove Arup Pty Ltd v WorkCover Authority (NSW) [2005] NSWIRComm 49, 141 IR 78 has held that pronouncement of orders on the day of judgment and the provision of a written copy of the judgment and orders immediately thereafter constitutes entry of judgment so as to allow it to be characterised as perfected. At [26], the Court (Wright J President, Walton J Vice President and Boland J) said: "26 The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable." 31 This practice was the subject of observation by Handley AJA in the New South Wales Court of Appeal in Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209. At [7], his Honour said: "7 The variations which the claimant sought in the orders of the Court Session would have significantly changed the substance of its earlier orders. The practice of the Industrial Court and its predecessor has been to treat its orders as entered immediately they are pronounced orally in open court: Ove Arup Pty Ltd v WorkCover Authority [2005] NSW IRComm 49; 141 IR 78, 87-8 par [26]. Whether this practice should continue or an alternative such as automatic deferred entry should be introduced is a matter for the Industrial Court." 32 Spigelman CJ and Mason P agreed in the judgment of Handley AJA. 33 Accordingly, I proceed on the basis that the application made by the prosecutor is with respect to an order that has been perfected, or at least reasons that are associated with part of an order that has been perfected.

[34]

Does this Court possess inherent jurisdiction or power to correct errors? 34 This court is established by s 152 of the Industrial Relations Act 1996 as a superior court of record. It is a court of equivalent status to the Supreme Court and the Land and Environment Court. Nevertheless, the jurisdiction of this Court is circumscribed by the Industrial Relations Act 1996 and any other legislative source of jurisdiction. 35 The limits of the inherent powers of a statutory court, namely the Federal Court of Australia, were discussed in the High Court of Australia in Jackson v Sterling Industries Limited (1987) 162 CLR 612. In addition to the jurisdiction of that Court granted by legislation, s 23 of the Federal Court of Australia Act 1976 granted the Court power "to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." All members of the High Court confined the power given by s 23 so as to limit it "….to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court. Nor could that Court's implied power be employed to create and enforce new rights. Whilst the implied power carries with it all that is necessary for the proper functioning of that Court, it does not extend its jurisdiction beyond that which is vested in it." (Per Wilson and Dawson JJ at 619). Their Honours upheld the ability of the Federal Court to issue an order in the nature of a Mareva injunction because it enabled the Court "to protect its process from abuse in relation to the enforcement of its orders." (At 619). 36 In the same proceedings, Toohey J, at 630, approved of describing permissible inherent powers as those that "are incidental and necessary to the exercise of the jurisdiction or the powers so conferred." (Citing with approval Parsons v Martin in the Full Federal Court of Australia (1984) 5 FCR 235 at 241.) 37 More recently, in the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennon JJ in a joint judgment had occasion to discuss the phrases "inherent jurisdiction" and "inherent power". Their Honours approved of describing inherent powers as being "powers expressly or impliedly conferred by the legislation governing the court" together with "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred." (Citing Toohey J in Harris v Caladine (citation omitted).) (See at [5]). 38 The judgment of Gleeson CJ (as his Honour then was) in the New South Wales Court of Appeal in National Parks and Wildlife v Stables Perisher (1990) 20 NSWLR 573 contains a succinct statement of principles which describe the nature and extent of the implied inherent powers of a superior court with limited jurisdiction. At 581, his Honour said, "In the course of argument in this Court reference was made to a principle which is, no doubt, capable of being described as giving rise to an 'implied, incidental power', but which does not advance the position of the respondent in the present appeal. In Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301, Lord Morris of Borth-y-Gest said: 'There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.' This principle was referred to by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476, where his Honour said: '… The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob 'The Inherent Jurisdiction of the Court' Current Legal Problems (1970) 23 at 27-28.' (See also Jago v District Court of New South Wales (1989) 168 CLR 23.)" 39 In DJL v Central Authority (2000) 201 CLR 226, the High Court of Australia had occasion to examine the power of the Full Court of the Family Court of Australia to re-open orders that it had made after entry. The principal judgment is that of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Their Honours firstly examined the circumstances by which the Family Court was created, namely the provisions of the Family Law Act 1975. That Court was created as a superior court of record. Their Honours contrasted a superior court of record created by statute with a common law superior court of record. The situation of such a court was described at [34] by their Honours in the following terms: "34 The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation . Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders." (Citation references omitted) 40 By contrast, their Honours concluded that such powers as might by exercised by a statutory court were to be found in the statute or by necessary implication in connection with the exercise of jurisdiction. 41 The joint judgment referred with approval to the observations of Menzies J in the High Court of Australia in R v Forbes; ex parte Bevan (1972) 127 CLR 1. At 7 - 8, Menzies J considered whether the former Commonwealth Industrial Court had some form of "inherent jurisdiction" to make an order of the kind that, his Honour had observed, was beyond any specific power given to it in the statute which created that Court. In discussing the existence of "inherent jurisdiction" his Honour said: "'Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have 'inherent jurisdiction'. …. In my opinion a court with the limited jurisdiction of the Commonwealth Industrial Court has not by virtue of its being a superior court of record, jurisdiction in relation to the property of an organisation which is party to litigation in the Court where no question of the exercise of powers or duties under the rules of the organization in relation to such property is involved." 42 The joint judgment focussed on "….the text of the governing statutes and any express or implied powers to be seen therein….in determining the extent of the inherent jurisdiction and powers possessed by a statutory court." The Court concluded that the Family Law Act provided no express conferral of a power to reopen a judgment either in its text or by its structure. Furthermore, there was no such power "derived by necessary implication from the statutory structure" by particular reference to the exercise of appellate jurisdiction by the Family Court. (At 248). Nor was any such power found by necessary implication from Chapter III of the Australian Constitution. 43 In the course of the joint judgment, their Honours made some observations about the power of the High Court to reopen final orders after entry, that is after they had been perfected. Their Honours said, "44 We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] that the power of the High Court to re-open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage, the applications were to re-open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders." (Citations omitted). 44 In the context of these proceedings, I conclude, on the basis of the authorities to which I referred, that this Court does not have an inherent jurisdiction or powers of the kind possessed by common law courts such as the Supreme Court of New South Wales. Accordingly, whether or not and to what extent this Court has power to correct reasons for decision will depend upon such powers as are conferred on this Court, either specifically or by necessary implication, for the purposes of allowing the Court to exercise such jurisdiction and powers as are conferred upon it. Obvious examples are the right to stay proceedings on the basis that they constitute an abuse of process and the right to grant an order in the nature of a Mareva injunction. By implication, also, on the basis of the reasoning of the High Court of Australia in DJL, it would not be permissible for this Court to re-open final orders after they have been perfected. On this basis this application must fail. 45 Before leaving this subject, it is necessary to refer to the decision of the New South Wales Court of Appeal in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13. Those proceedings arose out of a decision of a judge of the Land and Environment Court of New South Wales to refuse to set aside certain consent orders which had allegedly been made in circumstances where one of the consenting parties was under a mistake as to certain matters. In the course of determining the matter, the Court of Appeal was required to consider whether or not the Land and Environment Court was empowered to set aside orders which had been made by consent and had been perfected. 46 The principal judgment was that of Sheller JA, Kirby P (as his Honour then was) and Powell JA agreeing. In considering this matter, Sheller JA first observed that the Land and Environment Court was a superior court of limited jurisdiction, such jurisdiction being derived from statute. His Honour then observed that such a court had, in addition to its statutory jurisdiction, "an inherent jurisdiction". In describing that jurisdiction, his Honour said, "The legislature by vesting in a superior court a particular jurisdiction….does not detract from the inherent jurisdiction except to the extent it does so expressly or the inherent jurisdiction is inconsistent with the particular jurisdiction vested. Such is the consequence of establishing a court as a superior court." (At 28) 47 In discussing the power of a superior court to review, correct or alter its judgment, his Honour noted that this could be exercised at any time until the order of the court is perfected. His Honour said, "There is no reason to suppose that the Land and Environment Court does not have such power." His Honour then proceeded, "By contrast, as a general rule, a perfected judgment cannot be recalled or varied….However, a judgment even though perfected may be impeached on grounds of fraud and there is an inherent jurisdiction to alter an order where its form as entered or filed does not express or clearly express the intention of the court or where having been made ex parte, procedural fairness demands it…." (At 28). 48 Sheller JA then cited Mason J in the High Court of Australia in Taylor v Taylor (1979) 143 CLR 1. At 16, Mason J (as his Honour then was) said, "A jurisdiction to set aside its orders is inherent in every court unless displaced by statute." 49 Sheller JA repeated this approach later in his Honour's reasons for judgment when he said, "A superior court's inherent jurisdiction to uphold, protect and fulfil its function by ensuring that justice is administered according to law and in an effective manner in my opinion enables it in the absence of a statutory limitation to discharge or revoke a consent order made by it giving effect to a compromise of proceedings before the court and entered into by a party under a mistake. I think this is sensible and consistent with the court's jurisdiction before judgment is filed or to correct slips or to right procedural unfairness where orders are made ex parte. If it is accepted that the Land and Environment Court has inherent jurisdiction in these circumstances, I see no reason in principle to deny it jurisdiction on an application on established grounds to set aside consent orders…." (At 30). 50 The approach of the New South Wales Court of Appeal in Logwon appears to proceed on the basis that a superior court of record with limited jurisdiction has an inherent jurisdiction of the kind possessed by courts of unlimited jurisdiction unless there is some statutory limitation that would affect the exercise of such jurisdiction. Such an approach appears to differ from the in principle approach adopted by the High Court of Australia in DJL, to which I have previously referred. Of course, DJL was later in time than Logwon. In these circumstances, I am bound to follow the High Court decision. 51 Incidentally, I observe that the statement of Mason J in Taylor, adopted by Sheller JA in Logwon, occurred in the context of a consideration whether there was an inherent jurisdiction to set aside a judgment obtained by default where a party to the proceedings had not appeared. The full context in which Mason J made this statement may be gathered from the following extract which appears at p16 of the report: "Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham C.J., Rich and Williams JJ.) concluded in Cameron v. Cole [1944] HCA 5; (1944) 68 CLR 571, at pp 586, 589, 607 that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party ( Craig v. Kanssen (1943) KB 256, at pp 262-263 ) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Family Law Act of an intention to displace this inherent jurisdiction." (At 16)

[36]

Re-opening of a final order not perfected 52 In the event that I am incorrect in determining that the correction sought by the prosecutor relates to an order that is not perfected, that is to a costs order not yet determined, I propose to consider whether this Court has power to re-open the order. The power of a court to re-open judgments or orders which have not been perfected has been succinctly described by Toohey, Gaudron, McHugh, Gummow and Kirby JJ in a joint judgment in the High Court of Australia in De L v Director General, NSW Department of Community Services (No 2) (1997) 190 CLR 207. At 215, their Honours said, "The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case." (Case citations omitted) 53 There is a further succinct summary of the circumstances which would attend both a decision to re-open such a judgment and which would mitigate against re-opening in the judgment of Santow J in Wentworth v Wentworth [1999] NSWSC 638. At [14] to [19] his Honour said, "14 Speaking in broad terms, the basis for review has been expressed thus: 'An order varying the terms of a judgment that has not been entered will be made to correct error or oversight or to effect a review of the contemplated order so that the orders may be able to deal more adequately with the matter as litigated by the parties before the court' in the Texas Company (Australasia) Ltd v FCT [1940] HCA 9; (1940) 63 CLR 382 per Starke J at 457). In appellate courts particularly, there is to be weighed the public interest in the finality of litigation against what would otherwise be irremediable injustice; State Rail authority of New South Wales v Codelfa Construction Pty Limited at 38 per Mason and Wilson JJ. But that latter factor does not have the same weight where, as here, appeal is allowed as of right or as a matter of usual course.

[38]

16 Examples on the other hand where review has been allowed in the case of a judgment or order of a court of first instance include the following: (i) Where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18. (ii) Where the court's reasons involve 'infelicity of expression and ambiguous statements which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290. (iii) Where re-opening in respect of an order which was consequential upon a finding of error of law and the trial judge had no intention that the order have the effect that further evidence could be called on in the remittal to the tribunal below, and where the possible effect of the order had not been the subject of argument at hearing; AB v Federal Commissioner of Taxation (1998) 157 ALR 510. (While the order arising out of this decision to re-open the matter and the previous decision which found an error of law were overturned on appeal in Glennan v Commissioner of Taxation [1999] FCA 297, the decision to re-open was not itself canvassed in the appeal.) (iv) Where what was sought was further consideration of orders in respect of the nature and extent of equitable relief which had been earlier sought at trial (in the context of a complex litigation); Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) and Ors (SC(Vic), Hansen J, 16 April 1998, unreported) (v) Where a party had misunderstood the basis of a pleading and failed to address the issue in its strike-out application; Hoad v Nationwide News (1996-1997) 37 IPR 407 [Anderson J SC(WA)] (vi) Where excision of a paragraph from a judgment was sought where the trial judge had mistakenly referred in his reasons to a situation which did not exist; Smits v Buckworth (No 2) (NSWSC, Young J, 14 November 1997, unreported) (vii) Where the trial judge recalled his order after deciding it was wrong immediately after making it; Pittalis v Sherefettin [1986] 1 QB 868

[41]

19 Once a matter is re-opened the scope of the review depends upon the error or omission which has led to it. Thus Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (No 2) at 256: '...... once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.'" 54 There is a further aspect of this matter contained within the judgment of Barrett J in the Supreme Court of New South Wales in Standard Commodities Pty Ltd v Societe Socinter department Centragel [2005] NSWSC 493. At [7] his Honour said, "7 In a passage later quoted or referred to with approval in Fattouh v Neffati [2002] NSWSC 1231, Spotless Services Australia Ltd v Wookey [1980] IESC 1; (2003) IR 58, Town & Country Property Management Systems Pty Ltd v Kaltoum [2003] NSWSC 813, Gate Gourmet Australia Pty Ltd v Gate Gourmet Holding AG [2004] NSWSC 761, M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780, Brew v Followment Transport Pty Ltd [2005] QSC 30 and Gilsan (International) Pty Ltd v Optus Network Pty Ltd (No 2) [2005] NSWSC 38, I described, in Wentworth v Rogers [2002] NSWSC 921, the circumstances in which a judge at first instance might properly take the 'exceptional step' of re-opening a decision already completed by the making of orders. After referring to the distillation of principle by Santow J in Wentworth v Wentworth [1999] NSWSC 638 and the need, in line with High Court authority, for 'extremely rare' or 'quite exceptional' circumstances, I said (at paragraph [9]): 'It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513: "I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps - but not necessarily - where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga's application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits."' " 55 I direct particular attention to the extract of the judgment of Barrett J because it highlights two matters, namely that what needs to be corrected must be a matter that is obvious, and, more importantly, the undesirability of a judge being cast in the role of determining what is in effect an appeal from his or her initial decision. I shall return to these matters later in these reasons for judgment when dealing with the "merits" of the application. 56 There is a comprehensive summary of the principles which apply to the inherent jurisdiction of the Supreme Court of New South Wales to vary, modify or extend its own orders in the judgment of Spigelman CJ in the New South Court of Appeal in Newmont Yandal Operations Pty Ltd v the J Aron Corporation and the Goldman Sachs Group, Inc [2007] NSWCA 195, particularly commencing at [67]. However, it must be borne in mind that his Honour's review of the principles and conclusions are based upon the inherent jurisdiction of the New South Wales Supreme Court, which is, for reasons previously discussed, arguably significantly wider than any power or jurisdiction available to this Court.

[42]

Alteration/revision of reasons for judgment 57 I have previously observed that the application presently before the Court involves a reconsideration and excision of reasons for judgment and is not directed to any specific order that has been made. 58 The relevant principles in this area have been the subject of observations by Einstein J in the Supreme Court of New South Wales in MK and JA Roche Pty Ltd v Metro Edgely Pty Ltd [2004] NSWSC 780. At [10] his Honour said, "10 A convenient summary of the principles is to be found in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 at 47 [49]: 'The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons: Smith v Australia and New Zealand Banking Group Lt , unreported, NSW Court of Appeal, 21 November 1996, per Priestley, Sheller and Powell JJA; Sherpa v Anderson , Unreported, NSW Supreme Court, 14 October 1993, per Young J; Mulvena at 11 per Mahoney JA; Re Harrison's Share Under a Settlement , [1955] Ch 260 at 284. But once judgment is perfected the judge cannot, in substance, rewrite the given reasons so as to give different reasons for the decision or, in the words of Willmer LJ in Bromley v Bromley , [1965] P 111 at 114, "put a different complexion on the issue in dispute". In Nakhla v McCarthy , [1978] 1 NZLR 291, Woodhouse J, at 296 for the Court of Appeal, said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Nova Scotia v Province of Nova Scotia , (1977) 23 NSR 357 at 357-8, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.'" 59 This matter was also considered in the New South Wales Court of Appeal in Todorovic v Moussa [2001] NSWCA 419. The reasons for judgment were delivered by Beazley JA (Powell JA and Sperling J agreeing). After discussing the rule of judicial practice that allows revision of ex tempore reasons for judgment, her Honour concluded that in the context of the statutory provisions which govern the delivery of judgments in the District Court, the same principles should apply to a revision of reasons for judgment which had been reduced to writing. In summary, her Honour would have upheld the ability to revise written reasons for judgment before the perfection of the orders if they did not reflect the intention of the judge, there was a need to correct some "infelicity of expression", to improve the manner of expression provided the substance of the reasons was not altered, there was a need to correct errors of grammar and style or they contained a statement which was something which the judge "cannot possibly have meant". 60 However, her Honour's discussion makes clear that it is impermissible to revise reasons for judgment which would "put a completely different complexion on the issues in dispute", or whether there was a change which was one of substance in fact. 61 I would respectfully adopt the same observations as applying to the revision of reasons for judgment in this Court, for the purpose of determining these proceedings. That part of my reasons for judgment which is the subject of this application for excision contains, as I have said, comments critical of the prosecutor in the conduct of the proceedings. The excision of this material is not a matter confined to the manner of expression of the reasons for judgment, it is not material which could be said that did not reflect my intention at the time that the reasons for judgment were published and although their relevance is arguably confined to the question of costs, nevertheless the material sought to be excised is a matter of some substance. In my opinion, the material sought to be excised is of such a kind and its effect is of such a nature that it falls within that area where, on the basis of the principles referred to above, revision is impermissible. On this basis, it would not be permissible to accede to the prosecutor's application.

[43]

The "merits" issue - should the reasons for judgment be altered or revised assuming jurisdiction or power? 62 I have previously concluded that the judgment and orders, which are sought to be the subject of correction by the prosecutor, have been perfected. I have also concluded that this Court does not possess the extensive inherent jurisdiction and powers that are possessed by common law superior courts, so as to enable the correction sought to be made. Written submissions by counsel for the prosecutor concluded as follows: "46 Should this Court be of the view after consideration that it is not so fixed with jurisdiction it is respectfully submitted that notice be given to the prosecutor so as to enable it consider alternative relief, either in the form of a stated case or an application for prerogative relief (see s 196(2) of the Industrial Relations Act and s 5EA Criminal Appeal Act which refers to stating a question of law)" 63 It is apparent that the prosecutor wishes to pursue this application elsewhere if I do not accede to it. For this reason, on the assumption that I am incorrect in determining that this Court lacks jurisdiction and power to deal with the application, I will now deal with what I regard are the "merits" of the application on the further assumption that jurisdiction and power exists. 64 Taking the matter at its highest in favour of the prosecutor, it would be permissible to correct the manner of expression contained within the reasons for judgment so as to clearly express the intention of the Court or to correct matters of grammar or style or to ensure that what has been said was clearly intended. However, as has been made clear above, it is impermissible to "put a completely different complexion on the issues in dispute" or make a change of a substantial kind. 65 Apart from matters concerning the accurate description of the height from which the injured worker had fallen as contained in the agreed statement of facts, the prosecutor appears to have supported his application for excision of the impugned portions of my reasons for judgment on two bases. The first is a denial of natural justice in that the prosecutor was not afforded an opportunity of dealing with any criticism which the Court intended to make concerning its conduct.

[44]

(1) The natural justice basis 66 In support of this submission, the prosecutor relied only on the decision of the Privy Council in Mahon v Air New Zealand (1984) 1 AC 821. Those proceedings dealt with assertions that findings made by a Royal Commissioner concerning the conduct of certain persons arising out of the ill-fated Air New Zealand aircraft crash on Mount Erebus were made without affording the persons who were the subject of the criticism an opportunity of dealing with the criticism prior to the findings being handed down. The matter came before the Privy Council eventually by way of an application for judicial review. The Privy Council upheld the decision of the New Zealand Court of Appeal to set aside those findings even though they were "collateral but not essential" to the decision of the Royal Commissioner because of the failure to observe the rules of natural justice. 67 However, this decision does not, with respect, deal in any way with the application currently before this Court. There is relevant appellate authority that does so assist. 68 The jurisdiction to recall a judgment or re-open a judgment on the basis of denial of natural justice was the subject of proceedings in the High Court of Australia in Autodesk Inc v Dyason (No 2) (1992 - 1993) 176 CLR 300. Those proceedings concerned an application made to the High Court to vacate an earlier judgment, which had not yet been perfected, on the ground that, without fault of the applicant, there had been no opportunity for it to be heard about three particular issues. Although the Court was divided about whether or not there had been an opportunity to be heard, there are a number of observations made by several of the members of the Court that are instructive in the circumstances of these proceedings. Mason CJ said, "The exercise of the jurisdiction to re-open a judgment and to grant a re-hearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation…." (At 301-2). His Honour then went on to deal with some discrete examples where, in the case of judgments that had not been perfected, courts had determined that earlier orders ought to be reviewed. The Chief Justice then said, "However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." (At 303). 69 In dealing with an argument that a party had not been heard as a basis for re-opening an order, Brennan J said, "A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue. However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends. Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms different from the terms of a submission by counsel, but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be re-listed for further argument and without inviting supplementary submissions to be made." (Citations omitted, at 308) 70 In [20] of the extract of my reasons for judgment, I referred succinctly to submissions made by counsel for two of the defendants concerning the prosecutor's conduct in making a submission of the kind which gave rise to the real controversy in these present proceedings. In her written submissions, Ms P E McDonald, counsel for Exel said, "11 If the Prosecutor intended to assert that the fall from height was as set out in [6] of the Application for Order why did it agree to a contrary position in the Agreed Statement of Facts? It is inconsistent with a Prosecutor's duty to the Court in sentencing matters to agree to a Statement of Fact and to tender that Statement to the Court and then assert that a different fact be found by the Court." Ms McDonald cited R v Palu [2002] NSWCCA 381 at [21] in support of this latter proposition. 71 I regard the submission made by Ms McDonald as stating clearly and unequivocally her concern, expressed on behalf of her client, about the conduct of the prosecutor. An allegation that such conduct was inconsistent with a prosecutorial duty owed to a court in a sentencing matter is sufficient, in my opinion, to have drawn this matter to the attention of the prosecutor who had an opportunity to respond to it and who did not do so. It is a matter that was before the Court. There can be no suggestion that before considering it the Court should have alerted the prosecutor that it was sympathetic to the submission. 72 The circumstances of these proceedings fall within the observations of Brennan J set out above. Any suggestion that the prosecutor was under some misapprehension that there was an attack of this kind cannot be accepted. On this basis, there was no denial of natural justice.

[45]

(2) The prosecutor's conduct not an issue in the proceedings 73 The second basis asserted by the prosecutor was that this was not an issue for the Court to decide. I reject this submission for two reasons. Firstly, the conduct of a party can always be a relevant matter for the question of costs, as it was here. Secondly, this Court, as with every other court throughout New South Wales, plays an integral part in the administration of justice. The WorkCover Authority of New South Wales is a frequent user of this Court. Prosecutions brought under the Occupational Health and Safety Act are criminal prosecutions. In my reasons for judgment I expressed concern that the WorkCover Authority of New South Wales should not only conduct itself in accordance with well established principles which apply to the conduct of prosecutors in criminal proceedings but its position was exacerbated by the fact that it was both the investigator and the prosecutor, and it derived income by way of a moiety of penalties imposed. I know of no reason why a court should not, in circumstances where it is of the opinion that it is appropriate to do so, make comment about the conduct of parties in proceedings. 74 Indeed, the judgment of Howie J in the New South Court of Criminal Appeal in R v Palu, previously referred to, supports such an approach. (Levine and Hidden JJ agreed in his Honour's reasons for judgment). 75 At [21], Howie J said, "21 It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case." 76 There are two matters contained within the above paragraph to which I wish to make particular reference. The first is the reference to the understanding of "the parties" that the Court is not bound by the tendered statement of facts. Here, the original hearing proceeded on the basis that there was an agreed statement of facts and the prosecutor did not raise any argument that the proceedings should go forward on any other factual basis until the dying moments of the proceedings, to which I have previously made reference. Secondly, Howie J clearly referred to some circumstances where the Crown had failed to identify certain factual material for the benefit of a sentencing court. If a court is precluded from making comments of this kind, deficiencies in the conduct of parties will continue unabated and the court may be said to have condoned such conduct. 77 For my part, I am unable to accept the submission that there is any error in the reasons for judgment which the prosecutor now seeks to be excised and I am of the view that the material should be not excised. 78 There are a number of other reasons why, in my opinion, I should not accede to the prosecutor's application. The first is that the application is not directed in essence to any matter that was not readily apparent at the time that the proceedings were originally heard or that was not raised during the course of the proceedings. Furthermore, the excision of the material, the subject of the application, would, in my opinion, involve a re-consideration of the conclusion to which I have previously come, that it was appropriate to include that material within my reasons for judgment. A review of the appropriateness of those reasons involves an exercise of discretion that, on my understanding of the authorities, would not be a permissible step to be taken in all the circumstances of these proceedings. Finally, the application has put the Court in the position of having to deal with what is in effect an appeal from the inclusion of the reasons for judgment in the original decision. This also, it seems to me on the basis of the authorities, is an impermissible exercise.

[46]

Does the slip rule apply? 79 The "slip rule" is embodied in Rule 151 of the Rules of this Court. This Rule is in the following terms: 151 Minute of judgment or order (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. 80 As is made clear by Spigelman CJ in Newmont Yandal, it is necessary to construe the provisions of the "slip rule" by reference to its terms. In the context of the corresponding rule found in the Uniform Civil Procedure Rules 2005, the Chief Justice noted that it was necessary that its provisions be given a meaning which took into account the overriding objective of the Civil Procedure Act 2005, found in s 56(2) of the Civil Procedure Act. 81 Rule 36.17 of the Uniform Civil Procedure Rules 2005 provides that: "36.17 If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time correct the mistake or error." 82 Rule 151(1) is confined in its opening words to circumstances where there is "a mistake" in an order or decision. It is only when that sub-rule confers a power of correction that the word "error" is used. Rule 151(1) may also be contrasted with Rule 36.17 in that the latter refers to "a clerical mistake" whereas the former does not. 83 It may be that "mistake", where used in Rule 151(1), comprehends both a clerical mistake and an error. Such a meaning may gain some support from the later reference within the sub-rule to the words "the mistake or error." The on-line Macquarie Dictionary defines "mistake" as including "an error in action, opinion or judgment." The same Dictionary defines "error" as including "deviation from accuracy or correctness; a mistake, as in action, speech, etc." 84 I shall proceed on the basis, therefore, that "mistake", where used in Rule 151(1), comprehends an error. 85 Rule 151(1) will only apply where the mistake arises from an accidental slip or omission. There is a discussion by the Chief Justice in Newmont Yandal at [146] and following whether a mistake or error can be accidental in circumstances where a particular matter was not raised during the course of a hearing so that the order or decision could not, in that sense, be said to be inadvertent. As the Chief Justice makes clear, the matter needs to be determined ultimately by reference to the intention, viewed objectively, of the judicial officer in formulating the orders or decisions, the subject of consideration. It follows that a decision or order, which was made deliberately, would not be one that could be described as accidental. 86 Cowdroy J in the Land and Environment Court of New South Wales has succinctly extracted a number of principles governing the application of the slip rule in Lane Cove Council v Minister for Urban Affairs and Planning [2003] NSWLEC 205. At [16] to [19] his Honour said, "16 The scope of the slip rule was addressed by McHugh JA in Storey & Keers Pty Ltd and Another v Johnstone (1987) 9 NSWLR 446. His Honour referred to several authorities including the following passage from Brew v Whitlock (No. 3) [1968] VR 504 where the Full Court of Victoria said at p 506-507:- 'In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right; not only what was omitted, but what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion, not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run.'

[49]

19 More recently the slip rule has been applied in Yore Contractors Pty Ltd v Holcon Pty Ltd (Rogers J, Supreme Court of New South Wales Commercial Division, 17 July 1989, unreported) to correct a judgment where a trial judge misunderstood the submissions of counsel or acted contrary to the material in a manner which he did not intend. In that case Rogers J assumed that the defendant's counsel had conceded certain matters, when in fact they had not. His Honour relied on Hall v Harris (1900) 25 VLR 455 and Mutual Shipping Corporation of New York v Bayshore Shipping Co of Monrovia ("The Montan") [1985] 1 All ER 520 to find that he was permitted to use the slip rule to amend his mistake. Rogers J said: 'In my opinion, I have power to correct the mistake made by me in entering judgment due to my misunderstanding of the position taken by counsel for the defendant. Apart from anything else, how would a Court of Appeal be able to say whether or not I acted under a mistaken impression? Surely it is the person whose mind was afflicted by the mistake who is the one to identify it and correct it.'" 87 I gratefully acknowledge the collection of principles set out by his Honour and adopt them for the purpose of these reasons for judgment. 88 For reasons that I have earlier referred to, I do not accept that the inclusion of that part of my reasons for judgment, which is the subject of the application for correction in these proceedings, was the product of any accidental slip or omission or might otherwise be described as having been inserted accidentally. Furthermore, in order to remove these reasons it would be necessary to exercise an independent discretion as to whether they were in error and required correction. The application, to the extent that it might rely on the slip rule, cannot apply to reasons for decision that were included after consideration and that expressed the intention of the Court at the time that judgment was pronounced. 89 For these reasons, the slip rule does not, in my opinion, apply to the application for excision. 90 However, it is appropriate to utilise the slip rule to correct the factual error, which I have previously identified in [14] above. I intend correcting my earlier judgment accordingly.

WorkCover Authority of NSW (Inspector Mark Morganthal ) v DHL Exel Supply Chain

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