CATCHWORDS PRACTICE AND PROCEDURE - accidental slip or omission in an order or judgment - monies paid by defendant pursuant to stay of execution pending appeal - defendant successful on appeal - no order for repayment of monies - court ordered repayment - interest payable Federal Court of Australia Act 1976 s 25(3) Federal Court Rules Order 35 rule 7(3) L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta No 2 (1983) 151 CLR 590 Commonwealth of Australia v McCormack (1984) 155 CLR 273 SMK Pty Limited (Formerly Canberra Roof Trusses Pty Limited) v Milan Kramer No AG 42 of 1992 Lee, Tamberlin, Kiefel JJ. Canberra 24 October 1995 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. AG 42 of 1992 On appeal from a Judge of the Supreme Court of the Australian Capital Territory BETWEEN: SMK PTY LIMITED (Formerly Canberra Roof Trusses Pty Limited) Appellant AND: MILAN KRAMER Respondent CORAM: Lee, Tamberlin, Kiefel JJ. PLACE: Canberra DATE: 24 October 1995 ORDERS OF THE COURT THE COURT ORDERS THAT: 1. Pursuant to Order 35 rule 7 that the Order of the Full Court of 3 November 1994 be varied, by inserting as item 5 thereof that the respondent pay the appellant the sum of $100,000. 2. The respondent pay to the appellant the further sum of $7726, being interest on the sum of $100,000 from 11 July 1994 to 24 October 1995 at the rate of 6 percent per annum. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. AG 42 of 1992 On appeal from a Judge of the Supreme Court of the Australian Capital Territory BETWEEN: SMK PTY LIMITED (Formerly Canberra Roof Trusses Pty Limited) Appellant AND: MILAN KRAMER Respondent CORAM: Lee, Tamberlin, Kiefel JJ. PLACE: Canberra DATE: 24 October 1995 REASONS FOR JUDGMENT THE COURT: The Court is constituted pursuant to a direction that the Chief Justice gave under s.25(3) of the Federal Court of Australia Act 1976. In this matter we are satisfied that the Court has power to amend or vary the order of a Court constituted as it was then by Neaves, Gallop and Gummow JJ. On 1 June 1994 judgment was given to the plaintiff in the Supreme Court of the Australian Capital Territory in the sum of $730,164.47. On 24 June 1994 the Master ordered, it is said by consent, that the judgment or execution on it be stayed until the hearing of an appeal by the Full Court of this Court. As a condition of that stay the defendant was required to pay $100,000 to the plaintiff made up of $30,000 which had been paid into Court together with a further sum of $70,000. Those sums were paid. On 3 November 1994 the Full Court of this Court allowed the appeal and ordered that the judgment of the Supreme Court be set aside and that judgment be entered for the defendant with costs. There was not included an order for repayment by the plaintiff of the $100,000 paid to him for the reason that the matter was not brought to the attention of the Court and, it would seem, the order of the Master was not included in the appeal papers. The Court could have made such an order. Special leave to the High Court was refused on 16 March 1995 and the following day the defendant requested repayment of the monies. They have not been repaid. The defendant, the successful appellant in the Full Court, seeks an order pursuant to O.35, r.7(3), the slip rule, which provides that a clerical mistake or any error from an accidental slip or omission in an order or judgment may be corrected by the Court. It has been held that counsel's inadvertence falls within the equivalent rule in the High Court rules: see L. Shaddock & Associates Pty Limited v Parramatta City Council No. 2 (1982) 151 CLR 590 which decision was followed in the Commonwealth of Australia v McCormack (1984) 155 CLR 273 where the Court pointed out (276), that ordinarily a successful appellant would be entitled to orders for repayment. Other factors relevant to the discretion under O.35 r.7(3), such as delay in requiring repayment of bringing an application, do not arise here where action was taken promptly. There seems little doubt that the Full Court, had it been apprised of the payment of moneys, would have ordered repayment of them. The defendant also seeks an order for interest from the date they were paid to the plaintiff which is to be taken as 11 July 1994 to today's date. In McCormack the Court considered that the slip rule was the appropriate rule to apply to such circumstances and it appears clear from that decision that the Court considered that the question of the quantum of the repayment ought to be approached on restitutionary principles. With respect to interest there is no evidence in the present case as to what the defendant would have earned and so the Court has to apply its own knowledge of prevailing and usual rates of interest on savings. The Court considers that a rate of 6 percent and not the 12 percent sought would be appropriate for the period, as we have said, from 11 July 1994 to today's date. For those reasons we consider that the motion ought to be granted and that there should be an order that the respondent to this motion pay the sum of $100,000 together with interest which counsel can calculate. I certify that this and the preceding two pages are a true copy of the reasons for judgment of the Court. Associate Date: 16 November 1995 Counsel and Solicitors for the appellant: Mr M Minehan instructed by Van den berg Reid Counsel and Solicitors for the respondents: Mr J Lee instructed by Legal Aid Office (ACT) Date of Hearing: 24 October 1995 Place of Hearing: Canberra Date of Judgment: 24 October 1995 Place of Judgment: Canberra