KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and CLARKE JJA 10 April 1990, 4 May 1990 [1990] NSWCA 103 PRACTICE and PROCEDURE — slip rule — proper use and limits of — Compensation Court — Judge in pronouncing award refers to s11(2) Workers' Compensation Act — reference apparently erroneous as preceded by finding of total not partial incapacity — after appeal to Court of Appeal judge directs deletion of words 's11(2)' from reasons for judgment and that "award be similarly corrected" — appeal challenging power and propriety of so ordering — held: (1) The judge was empowered to so order by Pt2 r24(3) of the Compensation Court Rules; (2) The correction was a proper use of the "slip rule" and did not involve alteration of the order in the guise of clarification. R v Cripps; ex parte Muldoon [1984] 1 QB 686 (CA) distinguished; L Shaddock and Associates Pty Ltd; re Parramatta City Council [No 2] (1982) 151 CLR 590, 594 and Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 applied; (3) Nor was the use of the power inexpedient or inequitable because of the delay or any intervening event; (4) Appeal accordingly dismissed. WORKERS' COMPENSATION — award of Compensation Court correction — slip rule — proper use of discussed. Compensation Court Act 1984, s17(4), s31(1), s32(3) Workers' Compensation Act 1926, s11 Compensation Court Rules Pt2 r24 Kirby P I agree with Clarke JA. Priestley JA I have read Clarke JA's reasons in draft form, and agree with them. For the reasons he gives the appeal should, in my opinion, be dismissed. I wish to add a comment on a matter of practical importance. This court recently had to consider what materials it is legitimate to look at when, after the decision of civil litigation, it is later necessary to ascertain what was decided between the parties in a way thereafter legally binding on them: see RW Miller and Co Pty Ltd v Shortland County Council, Court of Appeal, unreported, 21 February 1990. It was said in that case that: "First, leaving aside possible difficulties in regard to questions of issue estoppel, it is clear that only the orders made by a court have legal effect upon the parties. Ordinarily, a court's orders decide issues raised by the parties. What issues have been decided by a court in any way binding on parties will only be ascertained by knowing what issues the court decided and what orders were made in respect of those issues. In a trial court which uses written pleadings, this can be done, in theory, by reading the pleadings and the court's orders. In the case of an appellate court, the issues decided would ordinarily be apparent from the notice of appeal and the court's orders. Sometimes, however, new issues arise in the course of an appeal which the appellant party is usually but not always required to include in the notice of appeal by amendment. In a case where a new issue has arisen in the course of argument of an appeal, and no amendment is made to the notice of appeal, it must be open to anyone concerned to ascertain what issues were decided by the court's orders, to look at whatever authentic material is available showing what the actual issues argued in the appeal were. It follows that in the present case, in 2 UNREPORTED JUDGMENTS which it is common ground that a new issue arose in the course of the argument of the appeal and was dealt with by the High Court, without amendment to the notice of appeal, other courts concerned to know the effect of the High Court's decision upon the parties are justified in looking at any parts of the transcript of the argument and the court's reasons for its orders, which bear upon the new issue raised at the hearing." The latter part of the above passage deals with a new issue arising in the course of an appeal. It seems to me that subject to the adjustments necessary because of differences between procedures in the different levels of the courts, the same considerations must apply when a new issue arises in the course of a trial, and no amendment is made to the pleadings to raise the new issue. In saying this I am not indicating approval of trial courts permitting such situations to arise. I am simply saying that when such a position has arisen, recourse must be available to materials of the kind referred to in the passage from Miller. Much the same point is made in Water Board v Moustakas (1988) 62 ALJR 209 (at 211, rh col). In the course of argument in the present appeal, the court mentioned that the procedural problem that has now been the focus of the two appeals to this court in this case, could have been avoided if the worker's application in the Compensation Court had been amended, at or shortly after trial, to accord with the case that was made and succeeded before Judge Burke. I cannot see that it will in any way add to the expense or difficulty of conducting litigation in that court, in pursuit of the appropriate resolution of disputes between the parties upon the real merits and justice of the case, and without out hindrance by matters of form or strict legal precedent, (See s17 of the Compensation Court Act 1984) if the documents which record what the cases of the parties are, are required to bear some reasonably close resemblance to what is actually litigated and decided. In fact, appropriate care and attention to this aspect of litigation in that court should lead to an overall lessening of cost and an increase in efficiency, as reflection on what has happened in the present case demonstrates. Clarke JA On 7 October 1984 the respondent suffered an injury in the course ofhis employment with the appellant as a consequence of which he was totally incapacitated for work. He received compensation payments under the Workers' Compensation Act 1926 until 5 August 1986. In the inter regnum between his injury and the cessation of payments he had sought and been given light duties by the appellant and had worked at those duties for a couple of hours and then found that he was unable to continue. He had also filed an application in the Compensation Court on 16 July 1986. In that application he claimed that he had sustained total incapacity until 5 August 1985 and that thereafter he had been partially incapacitated. In answer to a question as to the particulars of compensation claimed he said: "$710 gross pw from date of accident to date and continuing pursuant to s11(1), and s11(2) of Workers Compensation Act". It would appear that he again sought light work from the appellant early in 1988 but that on this occasion he was not given any work. His claim for compensation was heard by Burke J on 6 May 1988 and in this claim he was successful. Despite the terms of the application for compensation to which I have referred Burke J gave consideration to the submission which obviously had been advanced by the respondent's counsel that he was totally incapacitated at the time of the hearing. URJ KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS (Clarke JA) 3 In his reasons for judgment the learned judge made it plain that there was a body of evidence in favour of the view that the respondent was exaggerating his symptoms and was fit for various forms of light work. Notwithstanding this evidence his Honour accepted the respondent as a truthful witness who was, in a practical sense, totally unemployable. What his Honour said was this: "If the man feels as poorly as he says he does and I accept that he does it is unrealistic in my view to feel that he could fill any position in industry and he is in all practical terms totally incapacitated." Having come to that conclusion his Honour made findings that the respondent suffered injury to his back in the course of his employment on 7 October 1984; that he was incapacitated thereby and paid compensation to 5 August 1986 and was totally incapacitated from 6 August 1986 to date and continuing. The third of the findings stands as a clear expression of his Honour's conclusion that the respondent had made good his claim that he was totally incapacitated from the date mentioned to the date of the trial and remained totally incapacitated at that time. His Honour then turned his attention to the terms of the award he should make and said: "T make an award for the applicant s11(2),6 August 1986. $243.60 per week as adjusted 6 August 1986 to date and continuing. Medical s10. Costs pt4, one qualifying fee, certify advice on evidence." The formal award of the Commission which was prepared, settled and signed by the Registrar pursuant to Pt2 r24(1) of the Compensation Court Rules was not in identical terms with the statement of the award made by his Honour. The relevant portion read: "The Court hereby orders and awards: 1. That the respondent pay the applicant, on the basis of total incapacity, weekly compensation at the rate of -" The appellant appealed from the award. Clearly the view of its legal advisors was that Burke J had made an award upon the basis that he was satisfied that the respondent was totally incapacitated for the notice of appeal nominated four grounds, three of which proceeded upon the basis that the finding had been one of total incapacity and the fourth of which was of a formal nature. On the day of the hearing of the appeal, 31 October 1989, the appellant sought and was granted leave to rely upon an additional ground of appeal which asserted error on the part of the trial judge in holding that that there was evidence upon which he could make an award that the worker was deemed totally incapacitated pursuant to s11(2) as from 6 August 1986. At the hearing counsel for the appellant did not seek to press the three grounds of appeal which had appeared in the original notice and sought to argue only the new fourth ground. The appeal was dismissed. In his reasons for judgment Priestley JA, who wrote the leading judgment, noted the respondent's submission that Burke J plainly intended to make an award under s9 of the Workers Compensation Act upon the basis of the respondent's total incapacity but found it unnecessary to decide whether that was correct. He took that course because it was unnecessary to decide the point in the light of the arguments put by the appellant. Following the hearing in this Court steps were taken by the respondent to have the matter relisted by Burke J in order that his earlier reasons for judgment could be rectified by the deletion of the words and figures "11(2)". This application was opposed by the appellant. Burke J granted the application ordering that "the 4 UNREPORTED JUDGMENTS award made 6.5.88 be corrected by deleting in the penultimate sentence of the reasons for judgment the words 's11(2)' and the award entered be similarly corrected". In his reasons for granting the application Burke J said: "Tn my view a finding of partial incapacity is a necessary prerequisite to any award under s11(2). The absence of such a finding in the present case makes clear to me that I was finding total incapacity. For such further certitude as may be, I have listened to the tape of the judgment. Really, I thought there must have been a mis-transcription of what I had said. I was some little surprised to find that I actually said 's 11(2)'. Hearing the tape it is clear that I was then fossicking among material on the bench seeking a schedule of rates to incorporate in the award... It is abundantly clear to me that the award was intended to be under s9 and the bare reference 's11(2)' was an inadvertent slip of the tongue." Again the appellant lodged a notice of appeal. At the hearing of the appeal the argument of the parties focused on the order announced orally by Burke J on 30 January 1990 notwithstanding the fact that a formal order had subsequently been made by the Registrar. Nothing, however, turns on this fact for a right is granted to an aggrieved party to appeal to this court from an award of the Compensation Court constituted by a judge and the definition of award in s31(1) of the Compensation Court Act 1984 is in terms wide enough to include the order or decision then made by Judge Burke. At the commencement of the appeal counsel for the respondent sought, and was granted leave, to file a notice of motion seeking an order that the appeal be dismissed as incompetent, "having regard to s32(3) of the Compensation Court Act." That section provides that if the appeal involves neither a point of law, nor compensation amounting to $5,000 or more an appeal lies by leave of the Supreme Court. Clearly the present appeal did not involve compensation amounting to $5,000 or more and, as there had been no grant of leave, was restricted to challenges to the decision of Burke J on a point, or points, of law. If, as the appellant's counsel accepted, the appeal was restricted to a point of law the notice of motion was inappropriate. In these circumstances the court considered that it was appropriate to reserve the consideration of the notice of motion until the appeal had been heard. That having now occurred, and the appellant not having sought leave and having sought a reversal of Burke J's order only on the basis of asserted errors of law, there is no basis for the making of the order sought in the notice of motion and it should be dismissed. In support of the first ground of appeal the appellant made two submissions. Firstly, senior counsel submitted that the Compensation Court did not have the power to make the order which Burke J had purported to make whether he acted under s17(4) of the Compensation Court Act or under a "slip rule". Secondly, he submitted that if power existed under either supposed head of jurisdiction there was no legal basis for the making of the order. The first ground can be disposed of shortly. It is apparent from Burke J's statement that "the bare reference's 11(2)' was an inadvertent slip of the tongue" and His Honour's later statement that it was proper to ensure that the award correctly reflected the judgment of the court that his Honour was purporting to ensure that his oral award (which constitutes an award under s31(1) of the Compensation Court Act) and the form of the award which was settled by the registrar pursuant to Pt2 124 of the Compensation Court rules were not rendered unclear or ambiguous by his slip of the tongue. URJ KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS (Clarke JA) 5 In these circumstances it is clear, in my opinion, that the Court had power to effect a correction to both the oral and the formal award if there was an error in either "arising from an accidental slip or omission". R24(3) is a clear expression of this power. A rule in substantially identical terms was considered by this Court in Storey and Keers Pty Ltd v Johnstone, (1987) 9 NSWLR 446. Although there was some divergence of opinion between the judges who constituted the court on aspects of the slip rule which are not presently relevant, McHugh JA made the following statement with, I believe, the concurrence of the other members of the court: "Tf the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake.... The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist. Cf Brew v Whitlock No 3, [1968] VR 504, at 506. In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris, [1892] AC 547, at 558, if the matter had been drawn to the court's attention would the correction at once have been made?" It is apparent from the reasons given by Burke J in support of his order of 30 January 1990 that his mention of s11(2) in that part of his earlier reasons in which he pronounced the award was consequential upon his having made a slip of the tongue. Quite apart from his Honour's own statement to that effect I would conclude from a consideration of the whole of his reasons pronounced on 6 May 1988 that he was proceeding to make an award in favour of the respondent upon the basis of the respondent's total incapacity. Nowhere is s11(2) mentioned in the reasons, except in the pronouncement of the final award, and nowhere is there to be found any consideration of those questions which fall to be determined when an applicant who is partially incapacitated seeks an award under s11(2) "as if his incapacity was total". It is clear to me from his Honour's expressed reasons that he concluded that the respondent had made good his case that he was, for all practical purposes, totally incapacitated. For these reasons I would conclude that the conditions which empower the court to correct errors in an award or order under r24(3) were satisfied and that his Honour did have the power to make the order which is now under challenge. The appellant's second ground of appeal was that his Honour ought not to have made the order which he did. Such a submission will ordinarily give rise to a question of fact which, as I have pointed out, is not open to challenge in the present appeal. Counsel for the appellant submitted, however, that there was a principle of law disentitling a judge from varying an order or award under the slip rule upon the basis of his own reconstruction of what he had intended to do at the time he made the order or award. The authority relied upon in support of this submission was R v Cripps; ex parte Muldoon (1984) 1 QB 686. In that case a commissioner, who constituted an election court appointed to try a local election petition, ordered that the respondent pay three-quarters of the petitioners costs. In the order as formally drawn up the respondent was order to pay to the petitioners three-quarters of their "costs properly incurred in relation to the petition". The respondent applied for clarification of the costs order and, following a hearing, the Commissioner said that by the words "properly incurred" he intended to be included the costs relevant to the two matters on which the 6 UNREPORTED JUDGMENTS petitioners were successful. It was held by the Court of Appeal in England that the slip rule could never entitle a court to reconsider a final and regular decision once it had been perfected and that the latter proceedings before the commissioner did not constitute the correction of an "accidental slip or omission" within the rule. Obviously, there is a significant difference between this case and the present appeal. We are not presently concerned with an order made clarifying the terms of an earlier order. What is in question here is the exercise of a power to delete words and figures from the oral expression of an award which words and figures do not appear consistent with the reasoning underlying the making of the award and which were said by the judge to be no more than a slip of the tongue. The appellant recognised this but relied upon the following statement which appeared in the judgment of the court and which he contended was directly in point (at 697): "But to apply the slip rule in the present case would involve correcting an order, not on the basis that in the light of contemporary events or evidence it could be shown to have failed to express the judge's decision, but on the basis that eight months later the judge thought that he intended, or must have intended, something which he certainly did not express formally or informally at the time of the decision." Although I am by no means certain that the decision in Cripps is consistent with the Australian cases (Storey and Keers Pty Ltd (supra); L Shaddock and Associates Pty Ltd re Parramatta City Council No 2, (1982) 151 CLR 590, at 594-5; Coppins v Helmers; Brambles Constructions Pty Ltd 72 SR 273; Gikas v Papanayiotou (1977) 2 NSWLR 944 and Re Hogarth's Estate [1962] Tas SR 17) nothing that is said in that case denies the power of a court to correct a judgment which failed correctly to express the judge's decision. The case stands as authority for the proposition that it is not open to a tribunal to alter an order which had been made under the guise of clarification. In the present case it could not be said that Burke J was seeking to alter an order. Rather it is plain that he was endeavouring to correct the ambiguity flowing from the accidental inclusion of inappropriate words and figures in the expression of the award. The appellant also submitted that Burke J should not have exercised the slip rule in view of the fact that an application for rectification was not made for about eighteen months and that in the meantime the appellant had unsuccessfully appealed to the Court of Appeal and had prosecuted that appeal upon the basis that the order was made under s11(2). In this respect its counsel sought to rely on the statement in Shaddock that a court always has a discretion to refuse to make an order under the slip rule "if something has intervened which would render it inexpedient or inequitable that it be made" (at 597). Putting to one side the action on the part of the appellant in proceeding with the initial appeal upon the basis that Burke J found that the respondent was totally incapacitated, it seems to me that, even if it was open to the learned judge, in the circumstances, to decline to correct his earlier expression of the award, the fact that he did not do so does not demonstrate, or even suggest, any error of law. Whether or not it will be appropriate to exercise the discretion to decline a correction will depend upon the particular circumstances of a case including the nature of the error or slip. Given the nature of the slip in the present case I do not consider that the delay in moving for rectification nor the bringing of the appeal required that Judge Burke, as a matter of law, reject the application for rectification. Whether his Honour granted or rejected the application depended upon his assessment of all the facts and the exercise of his discretion in the light URJ KELLOGG (AUSTRALIA) PTY LTD v PIZANIAS (Clarke JA) 7 of those facts. He made no error in carrying out this task. For these reasons I would dismiss the motion with no order as to costs and the appeal with costs. 1. Motion dismissed. No order as to costs. 5 2. Appeal dismissed with costs. Counsel for the Appellant: DA Cowdroy QC and MR Gracie Solicitors for the Appellant: Hunt and Hunt 10 Counsel for the Respondent: JL Sharpe Solicitors for the Respondent: Geoffrey Edwards and Co