Wright v KB Nut Holdings P/L

[4] By Submissions made 10 August 2012 on behalf of the plaintiff, I was informed as to the exact circumstances of all offers made (with a copy of each such offer being enclosed with the Submissions).

[5] By email from Mr Morgan, counsel for the defendant, also dated 10 August 2012, it was confirmed that those Submissions accurately recorded the formal offers exchanged between the parties prior to trial.

[6] According to those Submissions, all of the offers delivered between the parties were as follows:

• mandatory final offer of the plaintiff delivered at the compulsory conference on 2 September 2010 in the amount of $200,000.00 plus standard costs;

• mandatory final offer of the defendant delivered at the compulsory conference on 2 September 2010 in the amount of $Nil;

• offer pursuant to Chapter 9 Part 5 of the UCPR of the defendant delivered on 6 June 2011 in the amount of $100,000.00 plus standard costs and outlays on the District Court scale;

• offer pursuant to Chapter 9 Part 5 of the UCPR of the plaintiff delivered on 7 February 2012 in the amount of $200,000.00 plus standard costs and outlays on the District Court scale; and

• offer pursuant to Chapter 9 Part 5 of the UCPR of the plaintiff delivered on 15 March 2012 in the amount of $300,000.00 plus standard costs and outlays on the District Court scale.

[7] I have confirmed that the enclosed offers accord with that summary. As for the mandatory final offers, as I considered in Swindells v Hosking & Anor (No 2)[2], in such circumstances as apply here, costs are left for determination "in the normal way": at [10]-[11].

[8] It is clear from the Submissions (as to the actual offers delivered between the parties) that I was in error in considering that the offers made on 7 February 2012 and 15 March 2012 were made by the defendant. That misunderstanding led to an error on my part, as is evident from the reading of the published Reasons for the costs order: at [15].

[9] That error had the consequential effect that I also erroneously concluded that the plaintiff was "imprudent" or "unreasonable" in failing to accept "that offer" (of 15 March 2012): at [15].

Rule 388 of the UCPR

[10] The relevant part of this provision is the combined effect of the 2 parts of r 388(1). That is, if there is both an error in a record of an order of the court and the error "resulted from an accidental slip or omission", then, by r 388(2) the court, on application by a party, or on its own initiative, may "at anytime correct ... the error". Lastly, it is important that r 388(3) states that the other rules in Part 3 of Chapter 10 "do not apply" to a correction made under r 388.

[11] In Gallagher v Boylan[3], Fraser JA, speaking for the court, after stating that the rule must be understood in the context of the fundamental principle favouring finality in litigation, referred to the further factor that it could not be said in the case under consideration that, after judgment, "...the Court would have immediately corrected its orders once the matter was brought to its attention": at [20], with reference to Conde v Gilfoyle & Anor.[4] But that is exactly the case here. Additionally, in Qld Pork Pty Ltd v Lott[5], Cullinane J, there speaking for the court as well, stated, with reference to r 388 and the argument that the judgment "was a result of a deliberate decision and not inadvertence", held that, since the judgment was based upon a "plain misunderstanding of what the position was", it met the language of the slip rule: at [19]. Here, again, there has been a plain misunderstanding.

[12] Neither of those 2 decisions needed to consider the effect of r 5 (dealing, as it does, with the philosophy of the UCPR, being the overriding obligations of parties and court). In particular, r 5(2), acknowledging that the purpose of the UCPR is to facilitate the just and expeditious resolution of the "real issues" in civil proceedings "at a minimum of expense", states that they are to be "applied by" the courts with "the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules".

[13] In Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc & Ors[6], the New South Wales Court of Appeal in considering the proper interpretation of the slip rule considered the "overriding purpose" found in the legislation which introduced the relevant New South Wales analogue. Spigelman CJ held that, because of the matters just mentioned, such an interpretive requirement may lead to different results in New South Wales when compared with the past or with other jurisdictions, and that the court must seek to give effect to that overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to the "slip rule": at 418 [26]-[27]. See, also, at 431 [113] and [116].

[14] In Hodgson v Amcor Ltd (No. 8)[7], Vickery J, with reference particularly to Newmont, and after reference to the "slip rule" in the Victorian analogue of the UCPR and with reference to particular provisions of the Civil Procedure Act 2010 (Vic) (which specifically referred to both the overarching purpose of the rules of court being "to facilitate a just, efficient, timely and cost-effective resolution of the real issues in dispute" and the relevant approach in the interpretation of the powers given under those rules), held: that the slip rule can apply when a court's order has consequences which were not intended by the judge making that order, as objectively determined, noting that such can constitute a relevant "error"; and that carrying into effect the actual intention of the judge making the order - and making sure that the order does not have a consequence which the judge clearly intended to avoid - falls within the natural and ordinary meaning of the word "correct" in the slip rule: at [30].

[15] Although those decisions from other jurisdictions also relied expressly upon statutory references to interpretative guidelines in the legislation (see, for example, Newman at [25] and [28]), given the terms of r 5 of the UCPR, it is difficult to escape the conclusion that the same approach to interpretation should apply as did in those cases.

[16] I, therefore, need to vacate the order because it was based upon a consequence that was dependant upon an erroneous fact (namely, who made the offer of 15 March 2012). And the "correction" of the error means that, consistently with the remainder of the Reasons that I gave for the costs order, the failure, or refusal, of the plaintiff to accept the defendant's offer of 6 June 2011 could not be characterised as either "imprudent" or "unreasonable".

[17] Accordingly, guided by the principles of r 681(1) of the UCPR, as interpreted in the cases that I canvassed in those Reasons, the order that I ought to have made and that I now make is that the plaintiff pay the defendant's costs of and incidental to the proceeding to be assessed on the standard basis.

[2] [2012] QDC 17.

[3] [2012] QCA 159.

[4] [2010] QCA 173 at [4].

[5] [2003] QCA 271.

[6] [2007] NSWCA 195; (2007) 70 NSWLR 411.

[7] [2012] VSC 162.