Burrows v CA Sciacca & Associates [1996] QSC 19 [1997] 1 Qd R 157

·: ,Sc__ yb(Ul<-f. _:I+_, State ReportiJff/JlJP~u 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.) SUPREME COURT OF QUEENSLAND CHAMBERS WHITE J .. No 114 of 1994 ROBERT BURROWS and CA SCIACCA & ASSOCIATES and AUSTRALIAN WORKERS UNION TOWNS VILLE .. DATE 28/ 02/96 JUDGMENT REVISED COPIES rss~ 7 Court Reporting Bureau-- Date >'<} I ~ I qi, Plaintiff First Defendant Second Defendant 4th Hoor, The Law Courts, Georg( Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 26 -- 280296 HER HONOUR: On this summons the orders are that the summons be dismissed. Unless there are submissions to the contrary I will order that the defendants pay the plaintiff's costs of and incidental to the summons, to be taxed. The plaintiff must pay the defendant's costs of delivering any amended defence to be taxed. 2 JUDGMENT 10 20 30 40 50 60 -- 2 of 26 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: ROBERT BURROWS AND: C.A. SCIACCA & ASSOCIATES AND: AUSTRALIAN WORKERS' UNION No. 114 of 1994 Plaintiff First Defendant Second Defendant CATCHWORDS. Amendment to Statement of Claim - 0.32 r.3 - Application to disallow - 0.32 r.5 - "justice of the case" - limitation period - professional negligence - statement of loss and damage. Counsel: Mr. M. Drew for applicants/defendants Mr. D. Fraser Q.C. for respondent/plaintiff Solicitors: Lee Turnbull & Co. as Town Agents for Jensen & Co. Lee Turnbull & Co. as Town Agents for Quinlan Miller & Treston Dempseys Hearing date: 23 February, 1996. for applicants/second defendants for applicants/defendants for respondent/plaintiff -- 3 of 26 -- IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: ROBERT BURROWS AND: C.A. SCIACCA & ASSOCIATES AND: AUSTRALIAN WORKERS' UNION No. 114 of 1994 Plaintiff First Defendant Second Defendant REASONS FOR JUDGMENT - WHITE J. DELIVERED THE 28TH DAY OF FEBRUARY, 1996. The First and Second Defendants have sought, inter alia, orders that amendments made by the Plaintiff to the Statement of Claim dated 27th November, 1995 pursuant to Order 32 Rule 3 be disallowed. There is no issue concerning compliance with Order 32 Rule 3 nor do the Defendants submit that they have suffered any prejudice by virtue of any delay on the part of the Plaintiff in amending his Statement of Claim. The Plaintiff issued a Writ dated 11th July, 1994 against the First Defendant, a firm of Solicitors, for damages for negligently failing to institute proceedings against his employers within the time permitted by the Limitation of Actions Act 1974 for damages in respect of injuries allegedly sustained by him during his employment between 1982 and the 23rd July, 1985 in breach of the duty which it owed to him. The Second Defendant, the A.W.U., is sued for damages for negligently failing to ensure that the First Defendant commenced proceedings within the relevant limitation period. The Defendants entered an appearance on the 3rd March, 1995. The Plaintiff delivered his Statement of Claim on the 1st -- 4 of 26 -- 2 August, 1995. The Defendants delivered their defence on the 15th November, 1995 (or 17th November, 1995). On the 27th November, 1995 the Plaintiff delivered an amended Statement of Claim. The Defendants filed the present Summons on the 5th December which Summons was heard in Chambers on the 23rd February, 1996. Briefly, the Defendants seek to have the amendments disallowed and the actions stayed or dismissed on the grounds that: the indorsement on the Writ specifies negligence only (for the period 1982 to 23rd July, 1985); at the time of issue of the Writ (11th July, 1994) the limitation period in respect of the first set of injuries had expired five months earlier (18th February, 1994); at the time of delivery of the first Statement of Claim, which asserted a cause based on breach of contract and negligence, the limitation period in respect of the second set of injuries had expired; the second Statement of Claim (27th November, 1995) raised for the first time the "further injury", although the dates of the "further injury" are within the period specified in the Writ indorsement; the Plaintiff's pleading relating to breach of contract for both sets of injuries are made after all limitation periods have expired; the indorsement on the Writ is limited to a cause of action in negligence; the Plaintiff has made no application for leave to amend the Writ indorsement or pleadings in respect of the breach of contract cause of action now asserted. -- 5 of 26 -- 3 Facts are alleged in the material filed on behalf of the parties which I will take to be established for the purpose of this application. The Plaintiff is functionally illiterate. Although employed by the Townsville City Council earlier in 1962, in about 1975 the Plaintiff was employed by the Council as a builder's labourer. In about 1976, he commenced driving tip-trucks for the Council. In approximately 1982 the Plaintiff commenced driving a tip-truck with an Atlas crane attached to the back of the cab. It had particularly heavy steering due in part to gearbox wear, reduced tyre pressure and the heavy crane on the back. On the 5th October, 1983 the Plaintiff bumped his left elbow on the body of the truck whilst unloading cast pipe fittings. He experienced severe pain. He filled out an accident report and notified his foreman. The Plaintiff complained of the heavy steering on the truck thereafter to his foreman from time to time but continued to drive the truck experiencing loss of strength and aching to his left arm. The Plaintiff was issued with a Workers' Compensation Certificate for three weeks off work. During that time on the 19th November, 1984 he saw an Orthopaedic Specialist. He returned to work on the 11th December, 1984. He complained about the steering to the Council's Safety Officer who investigated it. The Plaintiff continued to drive the truck until he was certified for lighter duties on the 31st January, 1985 by his doctor. He continued to drive the truck, however, until the 18th February, 1985 when he again went off work on Workers' Compensation. Whilst he was off work on this -- 6 of 26 -- 4 occasion he consulted the Second Defendant on the 5th June, 1985. The A.W.U. retained the First Defendant Solicitors by letter dated 12th June, 1985 to look into the Plaintiff's claim. The Plaintiff prepared a statement dated 30th May, 1985 setting forth the above matters and it, together with other relevant documentation, were sent by the Second Defendant to the First Defendant at that time. On the 11th June, 1985 the Plaintiff resumed work. He was reclassified and taken off truck driving but, by virtue of the reclassification, received a lower wage. On the 18th June, 1985 the Plaintiff was asked to drive a truck with power steering but manual gear change and remained driving until the 23rd July, 1985. He found that he had problems in his left elbow when changing gear. On the 23rd July, 1985 he was promoted to ganger and taken off driving trucks. The Plaintiff continued to experience loss of power in his left arm and it ached even when performing light work. He provided a further statement to the second Defendant relating to these matters on the 2nd December, 1985 which was provided to the Solicitors. For the purpose of this application the parties agree that the 3 year limitation period in respect of the Plaintiff's claim against the Council for work related injuries to the period concluding on the 18th February, 1985 expired on the 18th February, 1988 and for the second period, after he returned to work and drove the second truck until being promoted to ganger on the 23rd July, 1985, the period of limitation expired on the 23rd July, 1988. -- 7 of 26 -- 5 In February, 1991 the Plaintiff again made a claim for Workers' Compensation in respect of his left elbow through the offices of the Second Defendant. He was informed by Dr. R. Watson in about August, 1992, after he (Dr. Watson) had made inquiries of the Second Defendant, that no action had been commenced in respect of the Plaintiff's work related injury. The Plaintiff has sworn in an Affidavit filed in 1992 in support of an application made pursuant to Section 31 of the Limitation of Actions Act that he received no correspondence from the solicitors and that when he approached the A.W.U. office he was told that all was proceeding satisfactorily with his claim. It would appear that the application to extend the limitation period was unsuccessful. The Plaintiff was then represented by his present solicitors. The Plaintiff issued a Writ against the Defendants on the 11th July, 1994. This was more than six years after the expiration of the limitation period in respect of the first period of injury (i.e., 18th February, 1994). In respect of the second period concerning aggravation of that injury the six years expired on the 23rd July, 1994 that is, twelve days after the Writ was issued. In his original Statement of Claim dated 1 August, 1995 the Plaintiff pleaded in paragraph 5 that "between 1982 and about -- 8 of 26 -- 6 30th July, 1984 the Plaintiff continued to drive the truck in the course of his employment" and, as a consequence, suffered personal injury due to the negligence, breach of contract or breach of statutory duty of the Townsville City Council particulars of which were set out. The Statement of Claim then sets out that the Plaintiff consulted the Second Defendant as to his legal rights in respect of the injuries suffered by him and that the Second Defendant retained the First Defendant on behalf of the Plaintiff in respect of any legal claim which might be made on the Plaintiff's behalf. The breaches pleaded against the First Defendant, are inter alia: failure to advise the Plaintiff that he had a three year period from the date of injury in which to bring his claims; failure to commence those proceedings in time; failure within the period prescribed by the Limitations Actions Act to advise the Plaintiff that no action had been commenced on his behalf in respect of these injuries. As against the Second Defendant the Plaintiff pleaded, inter alia that it: failed to ensure that the Plaintiff understood that he had a period of three years within which to bring any claim against the Council; failed to ensure that the First Defendant commenced an action on behalf of the Plaintiff within the relevant period of Limitations; failed to advise the Plaintiff that the First Defendant -- 9 of 26 -- 7 had not commenced proceedings within the relevant period and its consequences, particularly having regard to the Plaintiff's illiteracy. The Plaintiff pleaded that the Defendants "negligently and or in breach of its duty and or in breach of contract with the Plaintiff" caused the Plaintiff loss and sought damages for loss of the chance to commence and prosecute an action against his employer for damages for personal injury. The Defendants allege, inter alia, in their defence that the limitation period, vis-a-vis the Council expired on or before the 30th July, 1987 (presumably based on the date in paragraph 5 of the Statement of Claim) and accordingly, the limitation period against the Defendants expired six years thereafter on the 30th July, 1993. In the amended Statement of Claim paragraph 5 is changed to extend the date up until which the truck with heavy steering was driven from the 30th July, 1984 to the 18th February, 1985. By paragraphs 6A to 6D the driving of the second truck on the Plaintiff's return to work between the 18th June, 1985 and the 23rd July, 1985 which caused the Plaintiff further or aggravated injury is pleaded for the first time. Paragraph 12A alleges that, in effect, the Second Defendant informed the First Defendant of the Plaintiff's further or aggravated injury. It may be convenient to summarise: The Writ dated 11th July, 1994 -- 10 of 26 -- 8 The Writ alleges negligence by the 1st and 2nd Defendants in failing to institute proceedings in respect of work-related injuries occurring in the period to 23rd July, 1985. The Statement of Claim dated 1st August, 1995 The Statement of Claim pleads: negligence, breach of duty and or breach of contract against the 1st and 2nd Defendants (paras. 15,16 and 17); a work period in which injury was sustained ending on 30th July, 1984 (para. 5); one event of truck driving giving rise to personal injury (para. 6). The Amended Statement of Claim dated 27th November, 1995 The amended Statement of Claim: retains causes of action based on negligence, breach of duty and/or breach of contract against the 1st and 2nd Defendants (paras. 15,16 and 17); changes the date of the first truck driving period to culminate on 18th February, 1985 (para. 5); adds a second period of injurious employment from 18th June to 23rd July, 1985 (para. 6A); alleges further or aggravated injury in respect of this period (para. 6D). Order 32 rr3 & 5 Order 32 rule 3 & 5 provide relevantly as follows: ''The Plaintiff may, without leave, amend the Plaintiff's Statement of Claim, whether endorsed on the Writ or not, once at any time before the expiration of the time -- 11 of 26 -- 9 limited for reply and before replying ... " "When any party has amended the party's pleading or endorsement under either rule 3 or 4, the opposite party may, within 8 days after the delivery to the opposite party of the amended pleading or endorsement, apply to the Court or Judge to disallow the amendment, or any part thereof, and the Court or Judge may, if satisfied that the justice of the case requires it, disallow the same, or may allow it subject to such terms as to costs or otherwise as may be just." Counsel have been unable to find any authorities dealing with the test to be applied when considering the expression "the justice of the case requires" in Rule 5. Although not expressed to be circumscribed by the various provisions of Order 32 Rule 1 where leave is required for amendment, one might suppose that Order 32 Rule 5 would not be necessarily narrower in ambit. Order 32 Rule 1, for example, provides that amendments may be granted "in such manner and on such terms as may be just", or that the Court may give leave to make an amendment after any relevant period of limitation current at the date of the issue of the Writ has expired "if the .. Judge thinks it just to do so". Order 32 Rule 1 provides that an amendment may be allowed even though the effect of the amendment would be to add or substitute a new cause of action if it arose out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action. -- 12 of 26 -- 10 Mr. Drew for the Defendants accepted that on an application brought pursuant to Order 32 Rule 5 the Defendants bore the onus of satisfying the Court that the amendments ought to be disallowed. The amendments effected to Order 32 in Queensland in 1965 and elsewhere liberated Courts to the extent set out therein from the strict approach which was governed by the decision in Weldon -v- Neal (1887) 19 QBD 394, Lynch -v- Keddell (No. 2) [1990] 1 Qd R10. The following may be taken to be established: if the remedy is extinguished by virtue of limitation considerations prior to the issue of the Writ then the Rules of Court cannot be used to revive it should the limitation period to be a live issue, Teys Bros Pty. Ltd. -v- ANL Cargo Operations Pty. Ltd. [1990) 2 Qd R288; once a separate Statement of Claim is issued the claim made therein has the effect, generally speaking, of superceding the claim made in the Writ, Renowden -v- McMullin (1970) 123 CLR 584 and Gould -v- Skinner [1983] Qd R377; an amendment duly made takes affect from the date of the originating document, Lynch -v- Keddell, supra. The Limitation Period(s) In Respect Of The Plaintiff's Claim Against The First And Second Defendants The Defendants have pleaded and assumed in submissions that the limitation period in respect to their breaches of duty expired six years after each (if they are separate) injury, -- 13 of 26 -- 11 namely, on 18th February, 1994 and 23rd July, 1994. That may not be necessarily the case. The Plaintiff in his affidavit in 1992 asserted that it was not until he was informed by Dr. Watson in August, 1992 that no action had been instituted on his behalf by the Solicitors that he knew of this. He asserts that he had been "fobbed off" by the Second Defendants that all was proceeding satisfactorily when he made inquiries of them. In Hawkins -v- Clayton (1988) 164 C.L.R. 539 Deane J., with whom Mason C.J. and Wilson J. agreed (although dissenting as to the ultimate conclusion) observed at p. 591: "It seems to me, however, that the preferable approach is to recognise that it could not have been the legislative intent that the effect of provisions such as sec. 14(1) [s.10 of the Queensland Act] of the Limitation Act should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings. On that approach, the reference in sec. 14(1) of the Act to the cause of action first accruing [in s.10 "from the date on which the action arose] should be construed as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings." Demack J. in Gorton -v- The Commonwealth of Australia (1992) Aust. Torts Reports 81-162 concluded at p. 61, 283 that the decision of the Full Court in Gillespie -v- Elliott (1987) 2 Qd R509 now bears the gloss formulated by Deane J. This will be a matter for the Plaintiff to plead by way of -- 14 of 26 -- 12 reply if so advised, in due course, but it leaves open an argument that no relevant limitation period had expired when the Writ was issued, or indeed has yet expired. The facts are not clearly established upon which the Plaintiff bases his assertion that not only was he not kept informed but positively misled and the dicta of Deane J. has not been the subject of detailed submissions in this application. I would not thus be prepared to dispose of the application on that ground alone, but will consider it on the basis of the expiration of the periods of limitation in 1994. Cause of Action in Contract Against The Defendants The power to amend includes a power to amend the Writ but in Queensland the practice is not to do so, but to amend the Statement of Claim, Gould -v- Skinner, supra. The cause of action against the Defendants sounding in contract arises out of substantially the same facts as the cause of action in negligence in the circumstances here pleaded. There may be aspects of the relationship, for example, the question of consideration, not encompassed by a claim based on tort, with respect to the Second Defendant, but that does not immediately appear to be a matter of significance here. The amendment ought not be disallowed. Paragraph 5 amendment The alteration of the concluding date from the 30th July, 1984 to the 18th February, 1985 merely extends the original limitation period in respect of which the Plaintiff alleges that the Council owed him a duty of care. Both Defendants -- 15 of 26 -- 13 were in receipt of the Plaintiff's statements which clearly showed that he drove the heavy truck until that time. There is no basis for disallowing that amendment. Paragraphs 6A - GD These allegations appear for the first time in the amendments. They do not constitute a new cause of action between the Plaintiff and these Defendants. Indeed it would be arguable that the allegations do not constitute a new cause of action between the Plaintiff and the Townsville City Council were the amendments sought to be made in respect of an action against the Council. It could be argued that what occurred between the 18th June and the 23rd July, 1985 was simply an aggravation or continuation of the breach which had already been pleaded. The Defendants were in possession of the statements referring to this period and there is no good reason why those amendments ought be disallowed. Other amendments are merely consequential upon the ones that I have dealt with above. It follows that the justice of the case does not require that the amendments be disallowed. Statement of Loss & Damage The Defendants have sought that directions be given in the alternative in respect to the future conduct of the action including a direction that the Plaintiff provide a Statement of Loss & Damage in accordance with Order 39 Rule 29C. Division 3A of the Rules applies to actions for damages for personal injury or death. The beneficial aspects of Order 39 Rule 29A are well recognised, Cardakliya -v- MIM Ltd. [1995] -- 16 of 26 -- 14 1 Qd R10. In an action for damages for professional negligence the usual approach to the calculation of the Plaintiff's damages is to decide what damages the Plaintiff might have received had he successfully sued the employer (in this case) and then reduce those damages according to the chance he had of actually succeeding at that trial. The action here is not an action for damages for personal injury or even consequential upon personal injury. It is an action for damages for professional negligence and the claim consists of a claim for damages for the loss of the chance to pursue successfully an action for damages for personal injuries against the employer. The Defendants may wish to seek particulars of the loss claimed by the Plaintiff to be quantified in dollar terms. It may be an appropriate case for interrogatories in due course. Even if I am incorrect in my assessment of the scope or nature of the action such as to preclude compliance with Order 39 Rule 29A it seems to me that it is premature to seek such an order prior to the closure of pleadings. Any reports from medical practitioners or hospitals will be required to be disclosed pursuant to Order 35 Rule 5 (2). Accordingly the orders are that the summons be dismissed. Unless there are submissions to the contrary, it is further ordered that the Defendants pay the Plaintiff's costs of and incidental to the summons to be taxed, save for the costs associated with delivering an amended defence should the Defendants be so advised which costs must be born by the -- 17 of 26 -- 15 Plaintiff. -- 18 of 26 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon Justice White [Burrows V- CA Sciacca & Associates & Anor] BETWEEN: ROBERT BURROWS AND: CA SCIACCA & ASSOCIATES AND: AUSTRALIAN WORKERS' UNION REASONS FOR JUDGMENT - WHITE J Judgment delivered / /1996 Sc No. 114 of 1994 Plaintiff First Defendant Second Defendant CATCHWORDS: Reserved costs omitted from costs order - 0.32 r.12. Counsel: Solicitors: Hearing date: -- 19 of 26 -- IN THE SUPREME COURT OF QUEENSLAND Townsville No. 114 of 1994 [Burrows v. CA Sciacca & Associates & Anor] BETWEEN: AND: AND: ROBERT BURROWS CA SCIACCA & ASSOCIATES AUSTRALIAN WORKERS' UNION REASONS FOR JUDGMENT - WHITE J Judgrnent delivered / /1996 Plaintiff First Defendant Second Defendant In the course of submissions in this matter when the summons was heard on 23 February 1996 Mr Fraser QC who appeared for the respondent/plaintiff sought the costs of the adjournment of the summons before Cullinane Jon 29 January 1996. Submissions by Mr Drew for the applicants/ defendants sought those costs on behalf of his clients. ·Judgment was handed down on the summons on 28 February 1996. At the end of the reasons for j udgment the following appears: "Unless there are submissions to the contrary, it is further · ordered that the Defendants pay the plaintiff's costs of and incidental to the summons to be taxed, save for the costs associated with delivering an amended defence should the defendants be so advised which costs must be borne by the plaintiff." -- 20 of 26 -- 2 The solicitor who appeared to take judgment for the respondent/plaintiff did not demur from the order proposed in the reasons. Mr Drew wished to read the reasons to ascertain if any different order as to costs ought to be sought. In the course of the afternoon he indicated that he wished to make no further submissions. The respondent/plaintiff's solicitor contacted the court and mentioned that the costs reserved on 29 January 1996 had not been disposed of and asked for an order in the respondent/plaintiff's favour. Some correspondence has ensued between the parties and the court and the parties which it is unnecessary to detail. The position is that when preparing my reasons for judgment on the summons I inadvertently overlooked dealing with the reserved costs after appropriate submissions had been made by counsel. Order 32 r. 12 ("the slip rule") is wide enough to permit me to rectify the omission, Ford v. Newton [1949] St.R.Q. 119; Cawood v. Infraworth Pty Ltd [1990] 2 Qd. R. 114. The original return date for the summons brought by the applicants/defendants was 29 January 1996. At 2.50pm on Thursday, 25 January the respondent/plaintiff's material in response to the summons and the material in support of it was served on the applicants' town agent in Townsville. That material was not able to be brought to the attention of the Brisbane solicitors before 5. 00pm that afternoon. It will be recalled that the following day, 26 January, was a public holiday. The respondent/plaintiff's material dealt largely with the chronology of events when the plaintiff had consulted the second defendant who had allegedly retained the first -- 21 of 26 -- 3 defendant(the solicitors) and the affidavit which he filed for an extension of time in which to commence his action against his employer in 1992. Mr Drew said that the first defendant no longer had its file in respect of the action against the employer when the summons was filed. An adjournment was sought on the following Monday, 29 January, when the summons came on for hearing before Cullinane J to enable the applicants/defendants to explore whether there was any prejudice to the defendants if the amendments were to be allowed in the light of the material served on them by the respondent/plaintiff. The adjournment was granted and costs reserved. '' The respondent/plaintiff was responding to the application to disallow the amendments to his statement of claim which had been made pursuant to 0. 32 r. 3. The adjournment was sought for the applicants/ defendants' convenience not in any real sense compelled by inappropriate conduct. on the part of the respondent/plaintiff such as would affect any order for cqsts. The respondent/plaintiff was prepared to proceed on the day endorsed on the summons. I can see no reason why his costs thrown away on that day ought not to be paid by the applicants/defendants. Accordingly the costs thrown away as consequence of the adjournment on 29 January 1996 reserved by Cullinane J must be paid by the applicants/defendants. The order made on 28 February 1996 will be amended to include the words "including costs reserved on 29 January 1996" -- 22 of 26 -- 27-113 IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon Justice White [Burrows v- CA Sciacca & Associates & Anor] BETWEEN: ROBERT BURROWS AND: CA SCIACCA & ASSOCIATES AND: AUSTRALIAN WORKERS' UNION REASONS FOR JUDGMENT - WHITE J Judgment delivered / /1996 No. 114 of 1994 Plaintiff First Defendant Second Defendant CATCHWORDS: Reserved costs omitted from costs order - 0.32 r.12. Counsel: Solicitors: Hearing date: -- 23 of 26 -- IN THE SUPREME COURT OF QUEENSLAND Townsville No. 114 of 1994 [Burrows v. CA Sciacca & Associates & Anor] BETWEEN: ROBERT BURROWS Plaintiff AND: CA SCIACCA & ASSOCIATES First Defendant AND·: AUSTRALIAN WORKERS' UNION Second Defendant REASONS FOR JUDGMENT - WHITE J Judgment delivered / /1996 In the course of submissions in this matter when the summons was heard on 23 February 1996 Mr Fraser QC who appeared for the respondent/plaintiff sought the costs of the adjournment of the summons before Cullinane Jon 29 January 1996. Submissions by Mr Drew for the applicants/defendants sought those costs on behalf of his clients. ·Judgment was handed down on the summons on 28 February 1996. At the end of the reasons for judgment the following appears: "Unless there are submissions to the contrary, it is further · ordered that the Defendants pay the plaintiff's costs of and incidental to the summons to be taxed, save for the costs associated with delivering an amended defence should the defendants be so advised which costs must be borne by the plaintiff." -- 24 of 26 -- 2 The solicitor who, appeared to take judgment for the respondent/plaintiff did not demur from the order proposed in the reasons. Mr Drew wished to read the reasons to ascertain if any different order as to costs ought to be sought. In the course of the afternoon he indicated that he wished to make no further submissions. " The respondent/plaintiff's solicitor contacted the court and mentioned that the costs reserved on 29 January 1996 had not been disposed of and asked for an order in the respondent/plaintiff's favour. Some correspondence has ensued between the parties and the court and the parties which it is unnecessary to detail. The position is that when preparing my reasons for judgment on the summons I inadvertently overlooked dealing with the reserved costs after appropriate submissions had been made by counsel. Order 32 r. 12 ( "the slip rule") is wide enough to permit me to rectify the omission, Ford v. Newton [1949] St.R.Q. 119; Cawood v. Infraworth Pty Ltd [1990] 2 Qd. R. 114. The original return date for the summons brought by the applicants/defendants was 29 January 1996. At 2.50pm on Thursday, 25 January the respondent/plaintiff 1 s material in response to the summons and the material in support of it was served on the applicants 1 town agent in Townsville. That material was not able to be brought to the attention of the Brisbane solicitors before 5. 00pm that afternoon. It will be recalled that the following day, 26 January, was a public holiday. The respondent/plaintiff's material dealt largely with the chronology of events when the plaintiff had consulted the second defendant who had allegedly retained the first -- 25 of 26 -- 3 defendant(the solicitors) and the affidavit which he filed for an extension of time in which to commence his action against his employer in 1992. Mr Drew said that the first defendant no longer had its file in respect of the action against the employer when the summons was filed. An adjournment was sought on the following Monday, 29 January, when the summons came on for hearing before Cullinane J to enable the applicants/defendants to explore whether there was any prejudice to the defendants if the amendments were to be allowed in the light of the material served on them by the respondent/plaintiff. The adjournment was granted and costs reserved. The respondent/plaintiff was responding to the application to disallow the amendments to his statement of claim which had been made pursuant to 0. 32 r. 3. The adjournment was sought for the applicants/defendants' convenience not in any real sense compelled by inappropriate conduct on the part of the respondent/plaintiff such as would affect any order for costs. The respondent/plaintiff was prepared to proceed on the day endorsed on the summons. I can see no reason why his costs thrown away on that day ought not to be paid by the applicants/ defendants. Accordingly the costs thrown away as consequence of the adjournment on 29 January 1996 reserved by Cullinane J must be paid by the applicants/defendants. The order made on 28 February 1996 will be amended to include the words "including costs reserved on 29 January 1996" -- 26 of 26 --