Ambulance Service of NSW v. Daniel & Anor. [2004] NSWCA 406

New South Wales Court of Appeal

CITATION : Ambulance Service of NSW v. Daniel & Anor. [2004] NSWCA 406 HEARING DATE(S) : Matter decided on written submissions JUDGMENT DATE : 11 November 2004

JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Hodgson JA at 3 DECISION : Order 4 made on 9 May 2000 vacated and in lieu thereof the following order is made:; 4. Second respondent to pay the appellant's costs of the appeal, and if qualified to have a certificate under the Suitors Fund Act.

CATCHWORDS : PROCEDURE - Orders - Amendment of order passed and entered - Slip rule - Obvious mistake - Where slip detected by legal advisers of the parties and significant, it should promptly be brought to the Court's attention. LEGISLATION CITED : Supreme Court Rules Part 20 rule 10 Ambulance Service of New South Wales - appellant PARTIES : Paul Daniel - 1st respondent Power Coal Pty. Limited - 2nd respondent FILE NUMBER(S) : CA 40524/98 COUNSEL : Hunt & Hunt, Newcastle for appellant SOLICITORS : Baron & Associates, Sydney for 1st respondent Sparke Helmore, Newcastle for 2nd respondent

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC11770/95 FILE NUMBER(S) : LOWER COURT Judge Walker JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40524/98

SHELLER JA BEAZLEY JA HODGSON JA

Thursday 11 November 2004 AMBULANCE SERVICE OF NEW SOUTH WALES V. DANIEL & ANOR. (NO.2) Judgment 1 SHELLER JA: I agree with Hodgson JA. 2 BEAZLEY JA: I agree with Hodgson JA. 3 HODGSON JA: On 9 May 2000, this Court made orders dismissing an appeal in this case, including an order that the first respondent pay the appellant's costs. That costs order was plainly a slip, because the appeal raised only issues concerning whether it was the appellant or second respondent that should be liable to pay compensation to the first respondent. There was no issue concerning the first respondent's entitlement to compensation or its amount, and the first respondent entered a submitting appearance. It was plain beyond argument that what the Court intended was that the second respondent should pay the appellant's costs. 4 The error was noted by the appellant's solicitors in a letter sent by them to the second respondent's solicitors on 25 May 2000, in which the appellant's solicitors asked whether the second respondent accepted liability for those costs, or whether it would be necessary to apply to the Court to rectify the error. It appears that the second respondent's solicitors ultimately responded on 6 November 2000, or perhaps 31 October 2001, that they would oppose any application to vary the costs order. 5 There was further correspondence between the parties, but no application was made to the Court until 23 September 2004, when the first respondent, facing an application by the appellant to have its costs assessed, wrote to the Court asking it to act under the slip rule (Supreme Court Rules Pt.20 r.10). 6 The second respondent still opposes any variation to the costs order, submitting that an order against it would not have been made as of course, and that by reason of the delay of over four years the existing order should stand. It also submitted that the appeal succeeded only on one of several points argued, and that when the matter went back to the Compensation Court the appellant consented to an order against it. 7 In my opinion, the delay of over four years reflects badly on the legal advisers for all parties. The second respondent should have promptly acknowledged the obvious mistake made in its favour, and should have co-operated in having the mistaken order vacated. The Court does not generally receive submissions concerning costs orders it has made unless it has reserved leave, but if the second respondent had wished to make submissions as to why the order plainly intended to be made against it should not have been made, co-operation at that time to correct the Court's mistake would have given it that opportunity. 8 The difficulty has been caused by my initial slip, but such slips do occur from time to time, and when they are detected by the legal advisers for the parties, they should, if the slip is of any consequence, promptly bring it to the Court's attention. The delay by the solicitors for the appellant and first respondent in approaching the Court is unsatisfactory in the extreme. However, I do not think the second respondent should be rewarded for the unreasonable and intransigent attitude it took when the matter was first brought to its attention. 9 In any event, the matters now raised by the second respondent do not justify any different order from that originally intended. The appeal took only one day, and all the matters argued were of some relevance to the ground of appeal that succeeded. 10 For those reasons, the costs order should be varied under the slip rule by substituting the second respondent for the first respondent as the party liable for the appellant's costs. Having regard to the delay, there should be no order in favour of either the appellant or the first respondent in relation to this application under the slip rule. 11 For those reasons, in my opinion the Court should now make the following order: Order 4 made on 9 May 2000 vacated and in lieu thereof the following order is made: 4. Second respondent to pay the appellant's costs of the appeal, and if qualified to have a certificate under the Suitors Fund Act. **********