Brew v Followmont Transport Pty Ltd [2005] QSC 30 [2005] 2 Qd R 354

SUPREME COURT OF QUEENSLAND CITATION: Brew v Followmont Transport Pty Ltd [2005] QSC 030 PARTIES: BENJAMIN ANDREW BREW (Plaintiff) v FOLLOWMONT TRANSPORT PTY LTD (ACN 010 518 279) (Defendant) FILE NO/S: 459 of 2003 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 7 February 2005 DELIVERED AT: Cairns HEARING DATE: Heard on the papers JUDGE: Jones J ORDER: Application dismissed CATCHWORDS: PROCEDURE – miscellaneous procedural matters – where reasons for judgement have been published and orders entered by court registrar – where judgement contained error of fact – where notice of appeal filed in which error of fact is a ground of appeal – whether judgement can be re-opened PROCEDURE – miscellaneous procedural matters – where reasons for judgement have been published and orders entered by court registrar – where defendant had no opportunity to make submissions on costs Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 M K & J A Roache Pty Ltd v Metro Edgley Pty Ltd (2004) NSWSC 780 Wentworth v Wentworth (1999) NSWSC 638 Wentworth v Rogers (2002) NSWSC 921 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 -- 1 of 5 -- 2 COUNSEL: Mr Moon for the plaintiff Mr R Douglas SC with Mr Holyoake for the defendant SOLICITORS: Connolly Suthers Lawyers for the plaintiff Blake Dawson Waldron for the defendant [1] In the hearing before me the defendant was successful in its application to have the plaintiff’s claim struck out. The plaintiff was ordered to pay costs to be assessed on the standard basis. [2] Through inadvertence, the defendant’s legal representatives were not advised of the date on which the reserved judgment was delivered and thus did not have the opportunity to make submissions on costs. They have subsequently sought to do so and to that end made written submissions which are dated 10 December 2004. [3] The defendant has also drawn attention to an incorrect finding of fact which occurred in my reasons for judgment relating to a letter placed in evidence (ex E to the affidavit of Allan Spargo sworn 30 January 2004). I mistakenly believed the letter had been sent by the defendant’s solicitors to the plaintiff’s solicitors. In fact, the letter was simply a draft of a letter that was intended to be sent but through oversight was not sent.1 The defendant submits that this error in the reasons should be corrected in accordance with the principles laid down in Autodesk Inc v Dyason (No.2).2 [4] The plaintiff opposes any variation in the costs order and submits that the reasons ought not be revised as the formal order has already been entered. The plaintiff relies upon the remarks of Einstein J in M K & J A Roache Pty Ltd v Metro Edgley Pty Ltd.3 [5] My orders and reasons for judgment were published on 26 November 2004 and the orders were formally entered by the Registrar on the same day. The defendant’s application for a revision of my reasons was received on 10 December 2004 and the plaintiff’s submissions opposing such cause were effectively received on 24 December 2004. On that date a Notice of Appeal was also filed. That Notice identified eight grounds of appeal, one of which relies upon the error of fact contained in my reasons. [6] It is common ground that an erroneous statement of fact appears in my reasons in paragraphs 5 and 17. However the acknowledgement of that error does not necessarily mean that a revision of the reasons can readily be undertaken. [7] The principles in Autodesk have been considered in a number of cases. Particular regard must be had to the difference between undertaking such a revision of reasons in appellate cases compared with those of first instance. The judgement of Santow J in Wentworth v Wentworth4 is particularly illuminating. His Honour contrasted situations where revision had been refused with situations where it had been allowed in cases of judgments or orders of a court of the first instance. Santow J gave the following as examples of where review was allowed: 1 See para 14 on affidavit of Allan Spargo sworn 30 January 2004 2 (1993) 176 CLR 300 3 (2004) NSWSC 780 4 (1999) NSWSC 638 -- 2 of 5 -- 3 (i) Where the court’s reasons for judgment inadvertently did not deal with important matters argued at the hearing and where an appeal to correct this would involve inevitable delay. Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported). (ii) Where the court’s reasons involve ‘infelicity of expression and ambiguous statements’ which may be corrected by the trial judgment 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. A B v Federal Commissioner of Taxation (1998) 157 ALR 510. (iv) Where what was sought was further consideration of orders in respect of the nature and extent of equitable relief (in the context of a complex litigation). Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) & 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. (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. [8] Santow J summarised the comparison in the following terms:- “While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-2). He delimited the scope of the discretion by explaining that “the exceptional step” of reviewing an issue might occur where a court had good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant’s neglect or default.” [9] In Wentworth v Rogers5 Barrett J cited the remarks of Santow J referred to above and said (at para 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 the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. 5 (2002) NSWSC 921 -- 3 of 5 -- 4 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 own decision.” [10] The plaintiff relied on M K and J A Roche Pty Ltd v Metro Edgley Pty Ltd (supra). There Einstein J agreed to a revision which he characterised as being to correct and “infelicity of expression and/or ambiguous statements”. But he did refer to cases drawing a distinction between revision prior to the perfection of the judgment. He cited the remarks of Chernov J in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd6 as follows:- “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…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”.” [11] The jurisdiction to re-open the reasons after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation: Wentworth v Rogers (supra). I take the view that whatever discretion I may have had has effectively been removed by the appeal having been instituted on grounds which include reliance upon the error identified above. Moreover the fact that the Notice of Appeal raises other related grounds means the issues between the parties will be considered again by the Court of Appeal. The salutary benefit of making a revision so as to avoid the expense and inconvenience of an appeal does not apply in the circumstances of this case. I would therefore refuse the defendant’s application to revise my reasons for judgment. [12] As the essential issues will now be reviewed by the Court of Appeal, the outcome of those proceedings will inevitably determine the basis upon which costs orders will be made. For this reason, no useful purpose is served by my reconsidering that issue now. However, the fact remains that the defendant was not given the opportunity to be heard on the question of costs at first instance. Should the appeal not proceed I would be prepared to hear the parties on this issue. 6 (2001) 4 VR 28 at 47 -- 4 of 5 -- 5 [13] To the extent that it may be necessary I give leave to the defendant to appeal against the costs order which I made in those circumstances. [14] The application for reconsideration of the reasons and costs order is dismissed. -- 5 of 5 --