Moray Vincent v Merrill Lynch Australia Pty Ltd [2000] NSWIRComm 254

Industrial Relations Commission of New South Wales in Court Session

CITATION : Moray Vincent v Merrill Lynch Australia Pty Ltd [2000] NSWIRComm 254 APPLICANT Moray Vinent PARTIES : RESPONDENT Merrill Lynch Australia Pty Ltd FILE NUMBER: IRC648 of 1999 CORAM: Marks J CATCHWORDS : Costs order made in proceedings no specific submissions re costs - Application of slip rule - Costs order set aside and costs reserved LEGISLATION CITED : Industrial Relations Act 1996 s 106 s 163 Industrial Relations Commission of New South Wales Rules r 151 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590 CASES CITED : Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1996) 133 ALR 210 Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300 HEARING DATES: 10/23/2000 DATE OF JUDGMENT: 12/13/2000

APPLICANT Mr R Reitano of counsel SOLICITORS Sydney Cove Law Group

LEGAL REPRESENTATIVES: RSPONDENT Mr H J Dixon SC of counsel SOLICITORS Allen Allen & Hemsley

JUDGMENT:

INDUSTRIAL RELATIONS OF NEW SOUTH WALES IN COURT SESSION

CORAM: MARKS J

Wednesday 13 December 2000

Matter No IRC 648 of 1999 MORAY VINCENT v MERRILL LYNCH (AUSTRALIA) PTY LTD Application under s106 of the Industrial Relations Act 1996

JUDGMENT ON COSTS APPLICATION

1 These were proceedings initiated by the applicant Moray Vincent against the respondent Merrill Lynch (Australia) Pty Ltd under s 106 of the Industrial Relations Act 1996 ("the Act"). The applicant claimed costs as part of the relief sought in the summons. 2 During the course of the proceedings heard over several days no specific reference was made by the parties to the question of costs. 3 I gave judgment in the proceedings on 8 September 2000. On that occasion I made brief reference to certain orders made in favour of the applicant including an order that the respondent pay the applicant's costs of the proceedings in an amount as agreed or in the absence of agreement as assessed. I handed down written reasons for judgment which apart from the making of the order made no reference to the question of costs. A solicitor for the respondent was present in Court, but I accept had no opportunity to peruse the reasons for judgment and the details of the orders made before I had concluded dealing with the matter. 4 On 29 September 2000 the respondent filed a notice of motion seeking that the costs order made in favour of the applicant be vacated and an order that the applicant pay part of the respondent's costs of the proceedings. 5 The notice of motion asserted that the parties had not been given an opportunity to make submissions with respect to costs and that the respondent had made certain offers to the applicant well prior to the determination of the proceedings which were more favourable to the applicant than the judgment which he obtained. The notice of motion asked that the slip rule be applied for the purpose of enabling the respondent to make submissions as to the question of costs. 6 Upon the hearing of the notice of motion the applicant submitted that the Court was functus officio and had no jurisdiction to deal with the matter. 7 The basis upon which a court may correct a mistake in an order or decision is traditionally described by reference to the application of the "slip rule". The manner in which this rule operates has been described authoritatively on many occasions. A general description and the general principles applying are to be found in the decision of the High Court of Australia in L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1983) 151 CLR 590. 8 A form of "slip rule" is contained in the Rules of the Industrial Relations Commission of New South Wales, and particularly r 151 which is in the following terms: Minute of judgment or order 151. (1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. (2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision. (3) The power in this Rule is additional to the power in Rule 38. 9 I accept the submission of Mr Dixon SC who appeared for the respondent in support of the notice of motion that where it is appropriate to apply the slip rule, questions of whether a court is functus officio do not arise. That this is so may be derived from the factual circumstances which gave rise to the Shaddock decision and explicitly follows from the manner in which r 151 is framed. In this regard I refer also to the judgment of Lockhart J in the Federal Court of Australia in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd(1996) 133 ALR 206 at 210. 10 In Elyard Lockhart J commented: It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 Ch D 542 at 561-2; Chessum & Sons v Gordon [1901] 1 QB 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; and Gould v Vaggelas at CLR 274-5. (at 210)