Re Orana Barellan Aboriginal Corporation (In Liq) [2002] NSWSC 990

New South Wales Supreme Court

CITATION : Re Orana Barellan Aboriginal Corporation (In Liq) [2002] NSWSC 990 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4902/01 HEARING DATE(S) : 4/10/02 JUDGMENT DATE : 4 October 2002

PARTIES : Anthony Amatto (Applicant) Alan Richard Nicholls (Liquidator/Respondent) JUDGMENT OF : Young CJ in Eq

COUNSEL : R Killalea (Applicant) D Ash (Liquidator/Respondent) SOLICITORS : Minter Ellison (Liquidator/Respondent) CATCHWORDS : PROCEDURE [113]- Slip rule- Extent or operation- Does not extend to case where Judge is handed short minutes, makes orders in accordance with short minutes where one counsel wrongly assumes their content without reading them. PROCEDURE [558]- Costs- Co-defendants- Three witnesses arrested- Whether order for costs should be joint or several. LEGISLATION CITED : Supreme Court Rules, Part 20 r10 CASES CITED : D'Angola v Rio Pioneer Gravel Co Pty Ltd [1977] 2 NSWLR 227 Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127 DECISION : Orders made.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 4 October 2002

4902/01 – RE ORANA BARELLAN ABORIGINAL CORPORATION (IN LIQ) JUDGMENT 1 HIS HONOUR: This is a motion by Anthony Amatto (the applicant) seeking to set aside or amend orders and judgment already given in these proceedings. These proceedings are the winding up of a corporation, Orana Barellan Aboriginal Corporation. 2 In those proceedings a series of summons were issued returnable on 8 November 2001 for examination under s 596A of the Corporations Act of Anthony Amatto, Keith Cameron, and Kerry Amatto. None of those people attended. 3 Deputy Registrar Wearne certified on that day in the case of Anthony Amatto that he had not attended and he had also failed to attend an earlier examination at the Supreme Court of Queensland on 18 July 2001. 4 On that day I made orders pursuant to rule 11.10 (2)(a) of the Corporations Rules for the arrest of Anthony Amatto, Keith Cameron and Kerry Amatto, to bring them before the court. They were arrested at Dubbo in the case of the first two and Wellington in the case of Ms Kerry Amatto, and brought before the court at 12.30 pm on 9 November. They arrived at about 12.30 pm. On receiving verbal undertakings from them I ordered their release on the basis that they would attend for examination. 5 On 10 December 2001 the question of costs was listed before me. On that date Mr Newlinds of counsel appeared for the liquidator, and Mr Killalea of counsel appeared for the persons who had been arrested. After reading material and hearing counsel I said: "I think in all the circumstances I should not do anything more about the contempt. However, the reason for the defendants not making sufficient arrangements appears to be that they received the wrong advice. That was not the fault of the liquidator. They may have some recourse against the person who gave that advice, I do not know. On the evidence I have to order that the defendants pay the liquidator's costs of the defaults on attendance before the Deputy Registrar for examination and associated costs." 6 The transcript then records "(Short Minutes handed to the Court)" and I then said: "I make orders in accordance with the short minutes which I have initialled". 7 The short minutes, which are annexure C to the affidavit of Anthony Amatto sworn 6 August 2002, say: "Kerry Marie Amatto, Anthony Amatto and Harold Keith Cameron jointly and severally pay the costs of and incidental, on an indemnity basis , of the liquidator thrown away on 8 November 2001, the application made by the liquidator on 8 November 2001, including the costs of enforcing the arrest warrants and of today's appearance to be paid forthwith on assessment." 8 The short minutes are not signed by either counsel. They are initialled by me and dated 10 December 2001, and my memory is that I crossed out the words "on an indemnity basis". 9 Mr Killalea says that whilst he was in court when those short minutes were handed up, he never signed them, he never saw them, he did not know what was in them, and he assumed that they merely noted what I had already said in the passage that I have noted, that "the defendants pay the liquidator's costs". 10 I think it is better left unsaid my views of a submission that counsel can be in court, see the judge make orders in accordance with short minutes which his opponent hands up, never reads them and never says anything. I should note that at the end of the case Mr Killalea said that his present best recollection is that he cannot recall reading the short minutes. I note this rather extraordinary submission which, if it be correct, probably removes the basis of the applicant's case. 11 However, the submission goes further, that Mr Killalea thought that the word "defendants" meant the three witnesses who had failed to give evidence on the 596A examination, and that because they were three separate witnesses and were arrested under three separate warrants and charged with three separate charges of contempt, he could not see how any court could ever make an order that was not merely a several order for costs. He says accordingly that the court must have intended only to make several orders as to costs, and that accordingly the order for joint and several costs must be a slip which can be corrected under Part 20 r10 of the Supreme Court Rules, commonly known as the slip rule. 12 Before dealing with that submission I should note that when the order was passed and entered the words "on an indemnity basis" were not omitted. 13 The costs were then referred to costs assessor Mr Walsh, who made his determination, and as a result of that determination judgment was signed against Mr Anthony Amatto for $22,860.87 on 30 April 2002. 14 The liquidator became aware of the mistake in the order as to indemnity costs, and indicated that he would be prepared to have the orders entered on 12 December 2001 set aside, and the following order made in lieu: "The Court orders that the liquidator recovers costs of and incidental to his applications made on 8 June 2001 for the issue of the examination summonses addressed to each of Anthony Amatto, Kerry Amatto and Keith Cameron for those persons (such costs to include his costs occasioned by the default of each of them, and, for the avoidance of doubt, his costs in enforcement or contempt proceedings thereon), and directs that the matter be referred for assessment by a costs assessor, the assessor to assess the costs and to certify how much thereof is properly attributable to the three persons jointly, and to each of the persons separately, and that the respective persons pay to the liquidator the amount so certified". 15 The offer also included an offer to set aside the judgment of 30 April 2002. 16 Mr Ash, who today appears for the liquidator, informs me that that form of order was based on what Neville J said in Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127, 138, which is the only authority that counsel has been able to find on the matter. 17 That offer was rejected by the applicant whose solicitor wrote on 1 October 2002: "Mr Amatto will not consent to any particular orders being filed. Mr Amatto vigorously opposed the making of any order as to costs and maintains that position although Mr Amatto does accept that the Court was minded to make a costs order against him. It is the form of that order, as taken out by Minter Ellison, which Mr Amatto now challenges. What Mr Amatto reasonably expected was an order having the effect that Mr Amatto pay those parts of the whole of the costs of the three relevant persons which might reasonably be attributed to him. It is not clear to me that your proposed order satisfies that expectation. In any case, Mr Amatto does not accept the entry of such order without his legal costs being paid by the Liquidator. These costs are currently of the order of $20,000. (Counsel's fees at present are $16,000 ...). Mr Amatto is, as I understand it, impecunious. I suggest that, in those circumstances, the continuation of the Federal Court proceedings is tantamount to an abuse of process. The better course would be for the whole of the litigation to be dropped … before further costs are incurred against your client". 18 It might have been thought that a person in as weak a position as Mr Amatto might have taken a more conciliatory line, but he did not. He insisted that his costs of $20,000 be paid, and when nothing happened, brought the present application by motion of 6 August 2002 which sought that the order made by me on 10 December 2001 be set aside, the judgment sealed by the Chief Clerk on 30 April 2002 be set aside, and in the alternative leave be granted to file a notice of appeal. 19 Once an order has been passed and entered, then apart from cases of fraud when a new suit is necessary, the order can only be amended under the slip rule. The slip rule reads: "Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 20 There is an inherent power which may slightly expand the actual wording of the slip rule, but generally speaking the rule only covers the situation where there has been a mistake in recording, and does not permit an error on a point not argued, considered or decided at the hearing, to be rectified. See for instance D'Angola v Rio Pioneer Gravel Co Pty Limited [1977] 2 NSWLR 227. 21 I cannot remember exactly what was in my mind on 10 December last when I made these orders, but the best I can do is to think that when short minutes were handed up by counsel, with opposing counsel in court, that those short minutes represented the considered view of both counsel as to what I should do, and I did not think about the matter any more deeply. 22 Certainly it is the case that where there are three several applicants before the court and three several warrants, and three several charges of contempt in court, one would ordinarily make three several orders for costs, and not a joint order for cost. However, there would be some expenses which would be common to all applicants, such as for instance the costs of the Sheriff's Officers in accompanying the three persons arrested from Dubbo to Sydney, and those costs and any like costs would have to be apportioned equally. 23 However, there was some material in the file which might have justified a general order for costs, and that material was that one of the three people (the applicant) appeared to be the person who was advising the others, he having obtained some rather poor legal advice from a solicitor in Canberra who later apologised to the court for the deficiency in that advice. There was accordingly some material to suggest that two of these people were followers and the third was the leader. However, as I have said, I never needed to consider the matter because the short minutes were handed up. 24 It is clear that the words "on an indemnity basis" fall within the slip rule, and that an order should be made that the order be amended by their deletion. It also follows that Mr Walsh probably approached the assessment of costs on the wrong basis, and there should be a direction under s 208JB of the Legal Profession Act 1987 that he reconsider his assessment in accordance with the amended order. The judgment of 30 April 2002 should be set aside on the basis that there will be a further judgment when Mr Walsh files his replacement certificate. 25 However, it does not appear to me that the making of the joint and several order is a matter which can be cured by the slip rule, or by the inherent power akin to the slip rule. 26 The way to deal with that problem appears to me either to appeal, although the appeal is now well out of time and in any event would need leave of the Court of Appeal under s 101.2(c) of the Supreme Court Act 1970, or for the applicant to make representations to the liquidator so that the liquidator could consent to the order being set aside and some other order made. 27 The liquidator is an officer of the court, and even if there is some technical reason why he should retain the judgment that he has obtained, he acts in accordance with what is fair and right. If the liquidator declines the application then an application could be made to the court to review his determination. 28 However, that application to the liquidator will of course not be on the basis that the liquidator is somehow or other liable to repay $20,000 or any other amount of costs of Mr Amatto. 29 The present application, although an order will be made to cover what is common ground, is doomed to fail. The principal reason it is doomed to fail is that the other two people against whom a joint and several order for costs was made, are not parties to the motion. They are entitled to be heard. The other reason why the motion must fail is that it does not come within the slip rule. So far as appealing is concerned, that is a matter for the Court of Appeal. 30 Accordingly the only orders that I make on this motion are: