Asplett v Scout Association of Australia, Norris & Anor [1997] QSC 49

SL:19/ o n State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREf,m COURT OF' QUEENSLAND CIVIL JURISDICTION DEMACK J No 20 of 1990 TROY WEST ASPLETT and THE SCOUT ASSOCIATION OF AUSTRALIA QUEENSLAND BRAMCH and LINDSAY RAYMOND NORRIS and CENTRAL QUEENSLAND HEALTH AUTHORITY ROCKHM1PTON .. DATE 19/03/97 ORDER ----.-.'--.. -~-----, R:=V;,:~:f~!~~ ('~'~';i')::~:S IS.<';,lJC:D f D~'~';;'~~_;c~;'o', I plaintiff First DGfendant Second Defendant Third Defendant/ Third Party ·Ilh n",,!", The L:l\Y Courts, GC()q~c Slreet, Il!"isb:lllC, Q. -tOOO Telephone: (07) .12474.160 Fax: (07) 3247 55.12 -- 1 of 5 -- 190397 kmk (Demack J) HIS HONOUR: I gave juclgn1cnt tn this action on 7 February 1997. At the time the parties indicated that there were issues in respect of costs that would need to be further considered and I gave them liberty to apply in respect of costs. They came back before me on 4 March 1997. Mr Jones QC, who appeared for the plaintiff, indicated that there were reserved costs that he sought, and also there was an agreement between the defendants and the plaintiff in respect of the p)ainUff's costs ·j.n 'respect of the fourth defendant. He tendered the relevant correspondence. The defendants then indicated that tlley had arguments in respect of offers to setUe made by the U'd.rd defendant. At that point Mr Jones QC indicated he was not interested in that issue and was given leave to withdraw. The ma t ter then \-Ias arque,] a ne! I gave j ucJqmen t. At the end of the reasons I made the following orders: II I va cat e the or c1 0 r sma (1 eon 7 F' e b r u a r y 1 9 9 7, and in lieu there will be judgment for the plaintiff against the defenc1ants for $681,142,15, together 1:1 i t h the cos t s 0 fan din c i (1 e n tal tot he act ion, including reserved costs, and also the plaintiff's costs of l11.s claim against Dr. Gilmore." I also made orders in respect of the defendants consequent upon the offers of settlement that had been made. The matter has come back tllis morning at the plaintiff's request on the basis that having vacated the orders of 7 February 1997 in their entirety, I have deprived the plaintiff of costs on the judgment for a period of a little under four weeks. ORDER 2 10 20 30 40 50 60 -- 2 of 5 -- 190397 kmk (Demack J) Mr Jones QC submits that I should under the slip rule correct what was obviously an inadveri::ont vacating of the judgment in respect of damages and make it clear that only the orders in respect of costs were varj.ed on ~ March. Mr Deaves, who appears as tOvm aqent for UtC: solicitors for the first and 10 second defendants, submits that the orders having been made I am functus offic.io and that t.his kind of application is not ... properly brought under tlte slip rule. Mr Carroll, '.',f:o.a!'poars fo'c the third defendant, , . raises the 20 s 1 i P r u 1 e po 1. n l b u l'. a 1 S 0 q \l '!. ~: 0": a s cpa rat e iss u e . Her e fer s to the provisions oE section 18 of the Supreme Court Act 1995. He asserts that the first ti.!1:C: the thircl defendant had formal notice of a charge in respect of the Oopartment of Social Security \'las after '1 ~'1arch 1007; that the juc]gment was in fact 30 paid within 21 days nf ~ ~arch 1997 and therefore, if there is some c1isc]"0ti on J.n t'.:l(:: ir!,:-~ i: t:(';;·: .! ~:i1()U; c: not: V2:\ry the order as the firs t noLi. ce the tli i rd (lG f e:nd ant had 0 f a charge vIas after the date 1 M2rch. 40 Order 32 rule 12 has been the: subject of a number of decisions in the last 10 years or so. ~edlC:;ps the most succinct statement of the power given by that rule is in the judgment of Macrossan CJ in Cawood v. Infraworth Pty Ltd (1990) 2 QdR 114 at p 122. His Honour having referred to the case of ~ Shaddock and Associates Pty Ltd v. Parramatta City Council No 2 (1982) 151 CLR 590, and storey ~nd Keers Pty Ltd v. Johnstone (1987) 9 NSWLR 1~6, said: "Inadverl:ence as disU.nguisl:ecl from an error or mistake resulting from deliberate decision is the basis of Lhe juriscHcti.on under the slip rule." ORDER 3 60 -- 3 of 5 -- 190397 kmk (Demack J) Here it seems to me there was a clear inadvertence on my part on 4 March 1997. The amount of damages was not in any way in question. What was in question on 4 March was the appropriate orders in respect of costs. The appropriate orders related not only to the orders in favour of the pJ.cdntiff but also to the orders affecting the defendant. The orders that I made between the defendants ended up being rather complicated, and in the process of sorting them out I inadvertently took the short course of se t ti ng as ide the \·Jhole j udgmen t on 7 February. Thts was inadvertence and it should be corrected. It does not seem to me that the issue raised by Mr Carroll is one that can affect this particular exercise of the authority given by the Slip n<Lo. It 522ms to me once the inadvertence is demonstrated, whicll has produced some error in the formal order so that it does not car'cy into effect the intention of the Court, th:::n :.1:.[."-; not (1 :1'.'1l".l-.er o!: c1i.sc)~el-.ion but a matter of necessity to correct the error. What passed between the parties in respect of the charge by the Department of Social Security is quil:e 21 ~li[f8"cC-ilt issue. So I vacate the following part of the orders made on 4 ['.1 a r cf1 1 9 9 7, n n fll e .1. y : "I vacate the orders made on 7 february 1997, and order in lieu that there be judgment for the plaintiff against the defendants for $681,142.15, together with the costs oE and incidental to the action, including reserved costs, and also the plaintiff's costs of: hi.s claim against Dr Gilmore. 11 And in lieu I order: I vacate the orders Eor costs made on 7 February 1997, and in liell there will be an order that the defendants pay the plaintiff's costs of and incidental to the ORDER 10 20 30 40 50 60 -- 4 of 5 -- 1 9 0 3 9 7 )-; In k (D c mc. c J<. ,""!) action including reserved costs, and also the plaintiff's costs of his claim against Dr Gilmore. ORDER 5 10 20 30 40 50 60 -- 5 of 5 --