Family Court of Australia

Vadisanis & Vadisanis and anor 	[2015] FamCAFC 180	

FAMILY LAW – APPEAL – JURISDICTION – Where the court indicated at the conclusion of the appeal hearing that directions would be made for the filing of submissions on costs pending the outcome of the appeal – Where the court inadvertently made an order under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in favour of the appellant wife – Where such an order would deny the wife her right to be heard on the issue of costs – Whether the order can be set aside pursuant to the slip rule – Whether the availability of the slip rule is affected by virtue of the fact that the order was perfected – Whether the making of the order means the court has exhausted its power to make a further order for costs – Whether the court has the power to reopen perfected orders – Where this case constitutes an exception to the general rule that the court cannot reopen perfected orders – Where the order was made without providing the wife the opportunity to be heard – Where this occurred through no fault of the wife – Whether r 22.53 of the Family Law Rules 2004 (Cth) allows a party to apply for a costs order where the court has allowed an appeal – Order for costs certificate set aside and directions made for the filing of submissions in relation to the wife’s proposed application for indemnity costs.  	

Acts Interpretation Act 1901 (Cth) s 13
Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) s 9

Family Law Rules 2004 rr 1.12, 17.02, 19.08, 22.53	

Bailey v Marinoff (1971) 125 CLR 529
Burrell v The Queen  (2008) 238 CLR 218
DJL v Central Authority (2000) 201 CLR 226
Flint v Richard Busuttil & Company Pty Ltd and Anor (2013) 216 FCR 375
Gludau v Gludau (No. 2) (2013) FLC 93-562
Hatton v Harris [1892] AC 547
Milham v Stanford (2001) FLC 93-073
Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc & 3 Ors (2007) 70 NSWLR 411
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Taylor v Taylor (1979) 143 CLR 1
Vadisanis & Vadisanis and Anor (2014) FLC 93-593
Wacando v The Commonwealth (1981) 148 CLR 1

Appellant:	Ms I Vadisanis	

1st RESPONDENT:	Mr Vadisanis	

2nd RESPONDENT:	Ms J Vadisanis	

File Number:	SYC	6377	of	2008	

Appeal Number:	EA	20	of	2013	

DATE DELIVERED:	18 September 2015	

Place Delivered:	Sydney	

Place Heard:	Brisbane	

Judgment of:	Ainslie-Wallace, Ryan & Johnston JJ	

Hearing date:	3 December 2014	

Lower court jurisdiction:	Family Court of Australia 	

lower court judgment date:	22 January 2013	

LOWER COURT MNC:	[2013] FamCA 14	

REPRESENTATION

COUNSEL FOR THE Appellant:	Mr Alexander	

SOLICITOR FOR THE Appellant:	Campbell Paton & Taylor	

COUNSEL FOR THE 1st RESPONDENT:	Mr Flaherty	

SOLICITOR FOR THE 1st RESPONDENT:	Johnston Vaughan Solicitors	

COUNSEL FOR THE 2nd RESPONDENT:	Mr Flaherty	

SOLICITOR FOR THE 2nd RESPONDENT:	Johnston Vaughan Solicitors	

Orders
(1)	Order 5 made by the Full Court on 12 June 2014 is set aside.
(2)	That within twenty-one (21) days the appellant wife file and serve submissions in support of any application for costs.
(3)	That within twenty-one (21) days thereafter the respondent husband file and serve submissions in response to the submissions on behalf of the appellant wife in relation to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vadisanis & Vadisanis and Anor has been approved by the Chief Justice pursuant to 
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE Family Court of Australia at Sydney	

Appeal Number: EA 20 of 2013
File Number: SYC 6377 of 2008

Ms I Vadisanis 	
Appellant

and

Mr Vadisanis  	
1st Respondent

and

Ms J Vadisanis
2nd Respondent

REASONS FOR JUDGMENT
Introduction
1.	On 19 August 2013, the Full Court of the Family Court heard the appeal of 
Ms I Vadisanis (“the wife”) against property orders made by Fowler J on 
22 January 2013 as between her and Mr Vadisanis (“the husband”) and the husband’s mother Ms J Vadisanis (“the second respondent”). 
2.	At the conclusion of the appeal hearing when, in the usual way, the parties were invited to make submissions as to costs of the appeal, the wife sought the opportunity to make submissions on costs once the result of the appeal was known.  In those circumstances, the court indicated that when judgment was delivered, directions would be made for the filing and serving of any such submissions.
3.	The Full Court allowed the appeal and delivered reasons for judgment on 
12 June 2014. However the issue of further submissions as to costs was overlooked and in place of orders facilitating the filing and exchange of submissions on costs, the following order was made:
 (5)	That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
4.	On 3 July 2014, the wife filed an application pursuant to r 22.53 of the Family Court Rules 2004 (Cth) (“the rules”) for an order that the husband and the second respondent pay her costs in the appeal on an indemnity basis.  The application was heard on 3 December 2014 and was opposed by the husband and the second respondent.  Stated broadly, the husband and second respondent argue that by making Order 5 the court has exhausted its power to make an order for costs (s 117) and even if made in error, Order 5 cannot be rectified pursuant to the slip rule (r 17.02).  It was further argued that an application for costs pursuant to r 22.53 can only be made where an appeal is “disposed of” which does not include “heard and determined”.   
The slip rule	
5.	It was contended on behalf of the wife that Order 5 could be amended pursuant to the slip rule by either varying or setting aside the order for a costs certificate (Wife’s Submissions on costs filed 22 December 2014 para 14).  
6.	The slip rule is expressed in many ways but is essentially an aspect of a court’s power to rectify mistakes and accidental slips or omissions in orders or judgments (Milham v Stanford (2001) FLC 93-073).  
7.	In Flint v Richard Busuttil & Company Pty Ltd and Anor (2013) 216 FCR 375 the Full Court of the Federal Court of Australia described the rule and power in the following terms:
19. 	It has long been accepted that courts have the power to correct clerical mistakes and accidental slips or omissions.  In the case of the common law courts in England and their successors in Australia this is an inherent power, necessary for the administration of justice (Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 270).  In the case of a superior court of record created by statute there are no inherent powers (Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR13 at 17) but similar powers may be implied 
(DJL v Central Authority (2000) 201 CLR 226).  Care must always be taken to require that federal courts created under the authority of s 71 of the Constitution of the Commonwealth take their character and authority from Ch III and the statute that is the source of their power: Re Macks; Ex parte Saint (2000) 204 CLR 158.  All courts have developed rules providing for the correction of orders in certain circumstances, whether before or after orders have been entered.
8.	 Rule 17.02 of the rules is as follows:
(1) 	If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties. 
(2) 	A Registrar may rectify an error that appears obvious on reading the order. 
	Example: A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error. 
(3)	 If the Registrar: 
	(a) 	is in doubt about whether there is an error in an order; or 
	(b) 	believes that an error in an order has, or may have, arisen 	from an accidental slip or omission; 
		the Registrar may take action under subrule (4). 
(4) 	If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it. 
	Note: If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13). 
(5) 	A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer. 
	Note: An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent. 
9.	The rule deals with errors in orders and allows the court to correct a clerical mistake or error arising from an accidental slip or omission therein.  However, as set out above the notes to rule 17.02 observe that:
 “… an amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.” (Emphasis added) 
10.	Although the note did not originally form part of the rule, as a result of an amendment to s 13 of the Acts Interpretation Act 1901 (Cth) made by the Acts Interpretation Amendment Bill No 46 of 2011, since 27 December 2011 it has.  It follows that some caution should be exercised in relation to cases concerning the reach of r 17.02 that were decided before 27 December 2011.   
11.	It is because of that note that in Gludau & Gludau (No 2) (2013) FLC 93-562 the Full Court said when discussing r 17.02 at [20] that “[t]he rule in its current form, particularly when regard is given to its accompanying note, is arguably significantly more restrictive of the “slip rule” powers exercisable by a judge of this court than those to which the High Court referred in DJL…”
12.	In Wacando v The Commonwealth (1981) 148 CLR 1, the High Court was called on to consider whether Letters Patent of 10 October 1878 and the Proclamation made on 18 July 1879 were effective to annex the Torres Strait Islands outside the sixty mile limit to the effect that they were incorporated into the Colony of Queensland.  It was argued that the Australian Colonies Act 1861 (24 & 25 Vict. c 44) gave express power to the Crown to annex new territory to any of the Australian colonies and in considering that question, it was necessary to determine whether the Queensland Coast Islands Act of 1879 provided sufficient legislative authority for that annexation. 
13.	Part of the argument concerned the words of a preamble to that Act, it being contended that the words of the preamble imported a narrower meaning to the Act than the particular section itself.
14.	Mason J said at 23:
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. …
15.	The words of the rule are clear and we are not satisfied that the note should operate to restrict or narrow the intent of the rule because the note may misstate the manner in which, on its plain reading, the rule operates.  
16.	Further, the rule must be interpreted so as to give effect to the main purpose of the rules, which is to promote the administration of justice (r 1.12(3(b)). In any event, the court may dispense with the operation of a rule in promoting the administration of justice. 
17.	The wife contended that the application of r 17.02 is not limited to “mere clerical errors”. Rather, it was argued the rule “…is used to achieve an outcome which would have been the subject of orders of the appeal court but for the inadvertent slip or omission”.  Thus it was argued that as the court intended that “costs would be dealt with in due course and that orders for the exchange of submissions would be made”, the rule could be applied to give effect to the court’s intention.   
18.	It is necessary to consider what we said in our reasons for decision and to then consider what the court’s intention would have been but for the failure that caused the accidental slip or omission.  
19.	In relation to costs we said:
157. 	It was submitted on behalf of all parties that in the event that the Court was to find that the appeal succeeded on the basis of an error of law, each party would seek a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) both for the appeal and any re-hearing.
158. 	The appeal has succeeded on an error of law and it is not a matter in which we otherwise make an order for costs against any party.  We will thus order certificates for the parties as sought.
20.	The order of a costs certificate involved the exercise of the court’s discretion and a finding precedent to the making of that order that no costs order should be made inter partes.  In that sense it would appear to be deliberate and thus beyond rectification pursuant to the slip rule.  
21.	In Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors (2007) 70 NSWLR 411, the New South Wales Court of Appeal, Spigelman CJ (Santow JA and Handley AJA agreeing) considered the nature of the slip rule and the “errors” to which its operation is directed.  
22.	The rule relevant to his Honour’s consideration was r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) which provided:
36.17 	If there is a clerical mistake, or an error arising from an accidental slip or omission, in 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.
23.	The overriding purpose of the rule is found in s 56 of the Civil Procedure Act 2005 (NSW) and is expressed to be to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
24.	His Honour said:
26. 	Accordingly, this Court…is required to approach the task of interpreting the relevant words, including “error”, “accidental slip or omission” and “correct” in such a manner as to give effect to the overriding purpose…
27. 	Similarly, the Court must seek to give effect to the overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to r 36.17…
25.	The court held that by reason of the “overriding objective” the words of the rule, such as “error” and “correct”, should not be given a narrow interpretation [116].
26.	Spigelman CJ said:
114. 	As a matter of interpretation, r 36.17 must extend to the correction of a mistake or error in an order which, or which arguably, resolves an issue that has intentionally not been adjudicated upon…
115. 	I extend the scope of my reasons to an order which arguably resolves an issue upon which there has not been an adjudication…
27.	Turning then to a consideration of whether the error was “accidental”, it was said: “ … the issue is whether the Court’s order can be characterised as arising from an accidental slip or omission” [153].  The court concluded:
166. 	…A judgment or order may be an “error” arising from an “accidental slip or omission” because of unintended or unforseen consequences.
28.	This then requires consideration of how a court will determine whether or not an omission or mistake is accidental or deliberate.  In Hatton v Harris [1892] AC 547 Lord Herschell at 558 described the test as being whether, if the matter had been brought to the court’s attention, would the correction at once have been made?  Clearly, in this case, it would have.
29.	In circumstances where we had specifically deferred submissions as to costs and said that the question of costs and whether or not in the alternative certificates should issue would be determined on another occasion, there can be no doubt that Order 5 would not have been made and directions made to facilitate a hearing on the issue.  It follows that we are satisfied our remarks at [157] and [158] were not “deliberate” as that term should be understood here and do no more than reflect our accidental slip that we had heard the parties on costs.   
30.	But is our ability to rectify the order pursuant to r 17.02 affected by virtue of the fact that the order had been perfected?
Can perfected orders be reopened?
31.	There is considerable authority for the proposition that the Family Court lacks the power to set aside or vary a final judgment once the order has been perfected. In DJL v Central Authority (2000) 201 CLR 226 the High Court determined that although the Family Court is a superior court of record [32], it was created by statute and therefore lacks the “well of undefined powers” available to common law courts as part of their inherent jurisdiction [25]. The High Court went on to state that, in considering the Family Law Act 1975 (Cth) (“the Act”) as the governing statute of the Family Court, it is clear that the Act provides no express conferral of any power to reopen final orders after they have been perfected.  Further, “no such power is derived by necessary implication from the statutory structure” [45]. Indeed, the provisions of the Act may in fact “negative” any inherent power the court may have: Taylor v Taylor (1979) 143 CLR 1 [8].
32.	Counsel for the husband relied on the following passage from Bailey v Marinoff (1971) 125 CLR 529 at 530 (per Barwick CJ) in support of the submission that the court could not go behind Order 5 or otherwise reconsider the issue of costs:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court.
33.	It is noteworthy that Bailey v Marinoff was not concerned with an omission or mistake but with an order that undoubtedly gave effect to the court’s intention.
34.	Notwithstanding the principles above, there are some limited circumstances in which a court may reopen its own orders. For example in DJL v Central Authority, Callinan J acknowledged a narrow class of exceptions that may warrant the reopening of a matter following judgment and perfected orders: 
189. 	The decisions of the majority in [Bailey v Marinoff] and [Gamser v Nominal Defendant] confirm that intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings. Those authorities have not been doubted in this Court. The stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing. This case is not an occasion for any extension of this narrow, and properly so, category of exceptions.
(Emphasis added)
35.	It must be noted that the exceptions to the general rule are rare. In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 the High Court held at 38 that although there is “no doubt” that there is a power to vacate its own orders, “it is a power to be exercised with great caution” and that “the circumstances that will justify a rehearing must be quite exceptional.” This was echoed in Burrell v The Queen (2008) 238 CLR 218, where the High Court stated that when considering whether perfected orders can be reopened, the “underpinning consideration” is the principle of finality of litigation [15]. 
36.	The power of the Family Court to reopen perfected orders where a party was denied the opportunity to be heard was confirmed in Taylor v Taylor. Gibbs J there held that an order made in the absence of a party who had no notice of the hearing ought to be set aside as it was “made in breach of a fundamental principle of natural justice” [12]. It is not only a rule of justice but a rule of “common sense” that the court is able to correct itself when there has been a failure of such an essential requirement [10].
37.	In the present case, the court made Order 5 having found the necessary preconditions to make an order for costs certificates (including the requirement that the matter be one where parties ought to bear their own costs) had been met. However, this finding was made without providing the wife the opportunity to be heard on the issue notwithstanding the court’s indication that directions would be made facilitating the filing and exchange of submissions on this issue.  Importantly this occurred through no fault of the wife but by oversight of the court. 
38.	In our view, this case falls squarely within the circumstances contemplated by the High Court in DJL v Central Authority.  It constitutes an exception to the general rule that the court cannot reopen perfected orders because it was a mistake of the court that denied the wife her right to be heard on the issue of costs.
39.	Thus in our view, this Court has the ability both by reason of the operation of r 17.02 to correct Order 5 by revoking it and because it was an order made in denial of the wife’s right to be heard. 
The operation of rule 22.53
40.	The wife further argued that, in any event, the provision of rule 22.53 enabled her to make a costs application regardless of Order 5. Though an analysis of this argument is not strictly necessary given the conclusion above, we propose to deal with it for completeness.
41.	According to the argument of the wife, the granting of a certificate pursuant to s 9 of the Federal Proceedings Costs Act 1981 (Cth) (“the Costs Act”) does not alter a party’s rights conferred by r 22.53 of the rules, namely that a party to an appeal may file an application for costs within 28 days of orders being pronounced.  It was asserted that, the application for costs having been filed within the time specified in the rule, the court had jurisdiction to consider the application notwithstanding the making of Order 5. 
42.	The respondents in a separate argument contended the particular wording of r 22.53, especially when compared with the wording of r 19.08 of the rules, precludes the wife from making an application for costs as her appeal was allowed, not dismissed. 
43.	Relevantly, r 22.53 provides:
Order for costs
(1)  	A party to an appeal or an application for leave to appeal may apply for an order that another person pay costs.
(2)  	An application for costs may be made:
(a)  	at any stage during an appeal or an application for leave to 	appeal; or
(b)  	by filing an application in relation to an appeal within 28 	days after the court makes an order disposing of the appeal 	or an application for leave to appeal.
 (3)  	A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
	Note 1: The court may make an order for costs on its own initiative (see rule 1.10).
	Note 2: A party may apply for an order for costs within 28 days after:
(a)    the filing of a notice of discontinuance by the other party (see rule 22.42); or
(b)    	the abandonment of an appeal (see rule 22.43); or
(c)    	the dismissal of an appeal (see rule 22.45); or
(d)    the dismissal of an application in relation to an appeal (see rule 22.45).
	Note 3: A party may apply for an extension of time to make an application (see rule 1.14).
(4)  	In making an order for costs, the court may set a time for payment of the costs that may be before the appeal is finished.
44.	Rule 19.08 says:
Order for costs
(1) 	A party may apply for an order that another person pay costs.
(2) 	An application for costs may be made:
(a)  	at any stage during a case; or
(b)  	by filing an Application in a Case within 28 days after the 	final order is made.
(3)  	A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
	Note 1: The court may make an order for costs on its own initiative (see rule 1.10).
	Note 2:  A party may apply for an order for costs within 28 days after the filing of a notice of discontinuance by the other party (see subrule 10.11(4)).
	Note 3: A party may apply for an extension of time to make an application (see rule 1.14).
	Note 4: For costs orders related to appeals, see Part 22.10.
(4)  	In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.
45.	It was submitted for the respondents that the court ought to take a narrow approach to r 22.53, limiting its application to cases in which an appeal is dismissed.  It was submitted for the husband that the operation of r 22.53(2)(b) means that a costs order must be made within 28 days of an order disposing of the appeal and that, in this case, the appeal has not been “disposed of”, rather, it has been decided.  In support of this argument, reliance was placed on Note 2 to the rule which is:
Note 2: A party may apply for an order for costs within 28 days after:
(a)	the filing of a notice of discontinuance by the other party (see rule 		22.42); or 
(b)	the abandonment of an appeal (see rule 22.43); or 
(c)	the dismissal of an appeal (see rule 22.45); or 
(d)	the dismissal of an application in relation to an appeal (see rule 			22.45). 
It was asserted that the rule thus makes no provision for an application for costs to be brought after an appeal has been decided.
46.	The wife submitted in response that the two rules ought to be read harmoniously and that “there is no reason in policy why the Court ought to adopt a narrow construction and artificially create a lacuna whereby a successful appellant is deprived of the opportunity to seek costs whereas a successful respondent would not.” 
47.	No authority was advanced for the proposition that an appellant who is successful in his or her appeal cannot apply for a costs order pursuant to r 22.53. In our view a proper reading of the rule does not permit such a narrow reading. Rather, it can be seen that the notes do no more than draw attention to various other rules which deal with appeals finalised by means other than a hearing.  It is, in our view, clear that the rule comprehends a costs order in circumstances where an order has been made allowing or dismissing an appeal.
48.	However, in this case, there is no need for the wife to seek recourse to r 22.53, because we have found that this court has power to amend Order 5. 
Conclusion
49.	We will set aside Order 5 made on 12 June 2014 and make directions for the filing of submissions in relation to the wife’s proposed application for indemnity costs against the husband and the second respondent and will make directions for the filing of submissions accordingly.
I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 
18 September 2015.

Associate:  
Date:  18 September 2015