Dyer v Dyer
[2001] QDC 239
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- Unreported Judgment
- Dyer v Dyer[2001] QDC 239
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Dyer v Dyer[2001] QDC 239
Dyer v Dyer[2001] QDC 239
DISTRICT COURT | No 1025 of 1995 |
CIVIL JURISDICTION
CHIEF JUDGE WOLFE
REES WALTER DYER | Plaintiff |
and
RUSSELL ARTHUR DYER | Defendant |
BRISBANE
DATE 21/08/2001
JUDGMENT
HER HONOUR: This application was brought by the plaintiff in this action in which her Honour, Judge O'Sullivan, after a five day trial gave judgment for the plaintiff and award exemplary damages in the sum of $7500 and gave judgment for the plaintiff in the sum of $22,500 together with interest of $6250.
Her reasons for judgment indicate that each of the parties conducted his own case, the plaintiff having sought damages for defamation including aggravated and exemplary damages arising from various incidents in 1992 and 1993. The defendant is named as Russell Arthur Dyer. He is also named as Russell Arthur Dyer as the respondent in the application before me in which the plaintiff seeks an order that the judgment be amended so that the defendant is named as Russell Albert Dyer.
There has been no appearance by Russell Arthur Dyer nor was there any response to the name Russell Albert Dyer. The plaintiff's solicitor's affidavit that was filed by leave today indicates that the application and material in support was served by ordinary service on Russell Arthur Dyer. The material before me indicates that the defendant's entry of appearance and defence in the action progressed the notion that the plaintiff had sued the person in the name of Russell Arthur Dyer as being his name. For the entry of appearance and defence states in paragraph 1 that:
“The defendant, Russell Arthur Dyer, hereby enters an appearance to the plaint.”
That was signed by the solicitors for the defendant and duly filed. The notion that his second name was Arthur continued with the affidavit of documents which was filed wherein he swore:
“I, Russell Arthur Dyer, the defendant in the above action.”
That was not amended by him on 12 January 1996. However, on 3 July 1998, Russell Dyer answered the interrogatories which had been administered to him by the plaintiff. The heading has changed the name of the defendant to Russell Albert Dyer and he swears in answer to the said interrogatories:
“I, the abovenamed Russell Albert Dyer, make oath and say as follows.”
The document is also entitled in the same action so far as the number and the plaintiff's name and address are concerned and, indeed, the address of the defendant is the same in the answers to interrogatories as it is in the earlier documents.
...
HER HONOUR: Judgment which was given by her Honour on 30 November 2000 was entered on 19 December 2000.
What occurred then, it would seem, is that the plaintiff commenced bankruptcy proceedings to enforce the judgment according to the material before me. A copy of the affidavit filed to support that application, a copy of which is not before me, is exhibited to the affidavit of Mr Thomas, the plaintiff, in these proceedings. It does not exhibit the judgment that was entered but, again, exhibits the reasons for judgment as well as the entry of appearance and defence, the answers to interrogatories and so on.
On 18 May this year, the plaintiff's solicitors received a letter from Baker Johnson in respect of the creditors petition number Q7013 of 2001 - that is, Rees Walter Thomas v Russell Albert Dyer, that they were the solicitors for Russell Albert Dyer and confirmed that they had been instructed that his full name was Russell Albert Dyer and not Russell Arthur Dyer noting that the judgment upon which the bankruptcy notice was founded indicated his middle name was Arthur as did the creditors petition.
The person who is called Russell Albert Dyer apparently swore an affidavit in May this year which is also exhibited to the affidavit which is exhibited to the affidavit which is filed in these proceedings swearing that he was born Russell Albert Dyer and showing his birth certificate, a passport, marriage certificate, notice of dissolution of marriage, and so on, all indicating that he is Albert, not Arthur, or at least that that is his second name.
The question is whether the omission or oversight to have the title of the proceedings or the defendant's name changed from Russell Arthur Dyer to Russell Albert Dyer comes within Rule 388 paragraph (b):
“Being a mistake or error which resulted from an accidental slip or omission.”
As the Court said in L. Shaddock & Associates Pty Ltd v. Parramatta City Council No. 2 151 C.L.R. 590 at 594:
“In respect of a traditional form of slip rule, the rule extends to authorise an omission resulting from the inadvertence of a party's legal representative and that this is so regardless of whether the order has been drawn up, passed and entered as it has in this case.”
The constraints of the slip rule have been considered more recently by the Court of Appeal in Mallet v. Chief Executive, Department of Corrective Services (2001), QCA 114 in which reference was made to the Court's decision in Stubberfield v. Paradise Grove and T.M. Burke Estates v. Council of the Shire of Noosa.
In Stubberfield, the Court considered the jurisdiction of superior Courts of record to alter their own decisions so far as that had been considered by the High Court in DJL. It does not seem to me that the applicant in this case is in a similar unhappy position so far as attempting to rely on such a rule as was Mr Stubberfield. The applicant is on much surer ground.
In T.M. Burke, the Court again reiterated that:
“There are some recognised situations where alteration may be made.”
It is not a case where the applicant is seeking a back-door method to re-argue the case. In my view, it is a situation such as that described by Justice Kirby of correction before perfection of an order 74 ALJR 706 at paragraph 91 where he said:
“In the course of judicial life, it can happen that a party receiving reasons for a decision pronounced in open Court notices a fundamental mistake, quickly calls it to the attention of the Judge or Judges involved, and before perfection of the orders gains correction and even reversal of the previously announced decision. This has happened to most Judges.”
In my view, that is the type of mistake we are talking about here, or accidental error or omission, not like the conduct of the counsel in T.M. Burke to which reference has been made.
Finally, I should also refer to what the Chief Justice said in Cowood v. Infraworth Pty Ltd (1990), 2 QR 114 at 122 where reference was made to Shaddock and also a decision of the New South Wales Court of Appeal to which Mr Atkinson referred in his submissions, Storey v. Kiers and Johnston (1987) 9 NSWLR 446. The Chief Justice said:
“In advertence as distinguished from an error or mistake resulting from deliberate decision is the basis of the jurisdiction to correct under the slip rule.”
That observation is particularly apposite here, in my view, having regard to the course of the litigation and the parties conducting the trial in person, or part of it anyway. It appears that the solicitor for one of the parties was there for part of the trial. This was the sort of mistake or error which would have been corrected before judgment was formally entered.
Accordingly, I will make paragraphs 1 and 2 of the orders sought? Why should I give you costs?
...
HER HONOUR: I am not prepared to give costs but I make the order in terms of paragraphs 1 and 2 of the draft order which is initialled by me and it will be placed with the papers.