New South Wales Court of Appeal CITATION : TELFER v. BERKELEY CHALLENGE PTY. LIMITED (NO. 2) [2000] NSWCA 181 FILE NUMBER(S) : CA 40100/99 HEARING DATE(S) : Written Submissions JUDGMENT DATE : 21 July 2000 PARTIES : VICKI LEE TELFER (Appellant) BERKELEY CHALLENGE PTY. LIMITED (Respondent) JUDGMENT OF : Mason P at 1; Meagher JA at 2; Powell JA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT DC 6264/97 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : COUNSEL : A.J. Leslie QC (Appellant) P.J. Deakin QC/A. Ventura (Respondent) SOLICITORS : Steve Masselos & Co. (Appellant) Hickson Wisewoulds (Respondent) CATCHWORDS : COURTS - Practice and procedure - Judgments and orders - Orders not passed and entered - Power to vacate and vary - Whether appropriate case. D DECISION : Application dismissed 7 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40100/99 DC 6264/97 MASON P MEAGHER JA POWELL JA 21 JULY 2000 TELFER v. BERKELEY CHALLENGE PTY. LIMITED (NO. 2) JUDGMENT 1 MASON P. I agree with Powell JA. 2 MEAGHER JA: I agree with Powell JA. 3 POWELL JA: On 8 March 2000 this Court delivered Judgment upholding the Appellant's appeal from the Judgment of Patten DCJ and the verdict which his Honour had found in favour of the Respondent in the proceedings which the Appellant had brought seeking to recover from the Respondent damages for the injuries which she had sustained while carrying out work as a cleaner at the University of Newcastle, which injuries, so she alleged, had been caused by the negligence of the Respondent in (inter alia) exposing her to a risk of injury which could have been avoided by the exercise of reasonable care. So far as is relevant to the present application, the orders which were made by this Court were as follows: "2. Order that the verdict found, and Judgment entered, in the District Court in favour of the Respondent be set aside. 3 Order that, in lieu thereof, there be found a verdict and Judgment entered in the District Court in favour of the Appellant for damages to be assessed. 4. Order that the proceedings be remitted to the District Court for the assessment of damages. ……… 6. Order the costs of the hearing as to damages be reserved to the Judge conducting that hearing." 4 On 4 April 2000 there was filed on behalf of the Respondent a Notice of Motion in which the Respondent sought the following (inter alia) order: "1. That the respondent be given leave to make submissions to the District Court in respect of contributory negligence of the appellant when assessing damages." In light of the submissions advanced on behalf of the Respondent in support of its application it should be recorded that the Affidavit which was filed in support of the Motion, which Affidavit was sworn by a solicitor said to have the conduct and carriage of the matter on behalf of the Appellant, contained, in addition to formal matters, only the following paragraphs: "4. The Judgment of the Court did not provide that the respondent be permitted to argue and make submissions on the question of contributory negligence of the appellant when the matter is to be assessed for damages in the District Court. 5. Respondent seeks an order that it be granted leave to argue and make submissions on the question of the appellant's contributory negligence to be taken into account in the assessment of damages by the District Court. 6. I respectfully request the orders sought." 5 Although, in the event, it is of no consequence (see SCR Pt. 40 r.9(1)), the orders made by the Court on 8 March 2000 were formally entered on 3 May 2000. 6 On 8 May 2000 Mr. Registrar Irwin gave directions for the filing by the parties of Written Submissions and ordered that the Motion stand adjourned until 5 June 2000. 7 Written Submissions on behalf of the Appellant were filed on 18 May 2000 while those of the Respondent were filed on 23 May 2000 - Further Submissions on behalf of the Respondent were filed at a time which is not revealed by the materials which are now before the Court. 8 It is probable that, at the time of the filing of the Respondent's Written Submission or Further Submissions, there was also delivered to the Court a draft of an Amended Notice of Motion which sought to have the original Notice of Motion amended by adding as alternative orders the following: "1A. That orders 3 and 4 of the judgment in this matter of 8 March 2000 be discharged or varied as follows: (i) Order that in lieu thereof, there be a new trial generally, or alternatively; (ii) Order that the issue of Contributory Negligence on the part of the Appellant be determined by the Court of Appeal. ………" 9 Following the filing of the Written Submissions, the parties advised the Registrar that neither wished to address the Court in relation to the Notice of Motion and that each was content to rely upon its Written Submissions. 10 The nature of the Appellant's submissions is sufficiently revealed by the following extracts from the Written Submissions: "Re opening Judgment 04 The Court will not reopen a judgment pronounced unless the applicant can show that by accident without fault on the applicant's part, the applicant has not been heard. 05 Such a ground is not suggested by the applicant's materials. 06 Having regard to the way in which the case was conducted on appeal and in the court below, there is no substance in such a ground. Exclusive Responsibility 07 Both in the court below, and on appeal, the employer contended that the worker's loss and damage was suffered entirely by her own fault and through no fault of the employer. The employer made an all or nothing case. One party was responsible, not both. 08 The field of relative responsibility was neither explored nor entered. The employer's primary defence, denying negligence, was inconsistent with shared responsibility. The secondary defence of contributory negligence was effectively abandoned." 11 The Respondent's submissions sought to support the making of the order sought upon two bases: 1. pursuant to the provisions of SCR Part 20 r.10(1) - "the slip rule" - (see also L Shaddock & Associates Pty. Limited v. Parramatta City Council (No. 2) (1982) 151 CLR 590 and Commonwealth of Australia v. McCormack (1984) 155 CLR 273, 277 ); 2. the inherent power to discharge or vary an order where the interests of justice require it (see Wentworth v. Woollahra Municipal Council (1982) 149 CLR 683 ; Autodesk Inc v. Dyason (No. 2) (1993) 176 CLR 300 ; Nintendo Co. Limited v. Centronics Systems Pty. Limited (1994) 181 CLR 168 ; De L v. Director-General, NSW Department of Community Services (No. 2) (1997) 190 CLR 207 ). 12 Although the assertions made in paras. 07-08 in the Appellant's Written Submissions were not disputed in the Respondent's Written Submissions, in the Respondent's Further Submissions the following appears: "3. It is, with respect, not correct to suggest (Appellant's Summary of Argument para. 07) that the case was conducted as an all or nothing case with only one party responsible. It is respectfully submitted that the case was conducted both by the Appellant and the Respondent as a review of the trial Judge's finding that the Respondent was not negligent in the circumstances in which the Appellant sustained her injury. It was neither necessary nor relevant to consider any issues of contributory negligence on the part of the Appellant herself. 4. The issue of contributory negligence was however, never abandoned. ………" 13 Whatever be the truth of the matter, it is clear (see para. 3 of the Respondent's Written Submissions) that neither in the Written Submissions which were filed prior to, nor in the oral submissions which were advanced on, the hearing of the appeal was any submission directed to the question of contributory negligence by either party on the hearing of the appeal. 14 The Respondent's Written Submissions contained the following: "6. The issue of contributory negligence was not considered by this Court when determining the appeal. No submissions were made on the issue nor was the Court invited to make any findings in relation to the issue. 7. It is submitted that it could not have been the intention of this Court to deprive the Respondent of the opportunity to contest the issue of contributory negligence in the circumstances." while the Respondent's Further Submissions contained the following: "2. It is submitted that in the present case, the issue of contributory negligence on the part of the Appellant was overlooked by counsel for the Parties and by the Court as a result of the issue not having been dealt with by the trial Judge because of his finding of liability in favour of the Respondent. An injustice will be occasioned if the Respondent is deprived of its entitlement to be heard on the issue of contributory negligence." 15 In light of the fact that the primary orders sought by the Appellant in her Notice of Appeal (RAB 28) were: "1. That Judgment be entered for the claimant (sic) with damages to be assessed and the judgment of the Primary Judge set aside. 2. That Judgment of the Primary Judge be set aside with a new trial." and the further fact that, as the Respondent's Written Submissions record, no submissions were advanced on behalf of the Appellant in relation to the question of contributory negligence, I find it difficult to accept that the failure of the Respondent either in its Written Submissions or in oral submissions to direct any submission toward the question of contributory negligence was an oversight. 16 Even if the Respondent's failure to advance submissions directed to the question of contributory negligence were the result of an oversight, I would not, in the exercise of the Court's undoubted discretion in the matter, be disposed to accede to the Respondent's present application. In this regard, the following passage in the joint Judgment of Toohey, Gaudron, McHugh, Gummow and Kirby JJ in De L v. Director-General NSW Department of Community Services (No. 2) supra at 223 appears to be to be apposite: "Discretionary considerations Even if the foregoing conclusions, which require the dismissal of the application, had been different, a question would remain whether, in the exercise of its discretion, the Court should vacate its earlier order. It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confessions, not done all that might have been done to raise the point when it was timely and appropriate to do so. Especially in this court, judges are entitled to look to the parties, at least where they are legally represented, to defend their own interests and to alert the court to any claimed immunities which rest upon legal provisions. That was not done here." In my view it would not be just to allow the Respondent to change tack entirely at this stage of the appeal proceedings. 17 For these reasons I propose that the Motion be dismissed with costs. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.