Tripping up on the slip rule

“Since the abolition of capital punishment there is now no mistake by a lawyer in Australia that cannot be effectively reversed.”

Or so I was told long ago after a bad day in the office as an articled clerk.

My supervising partner had in mind the slip rule.

The slip rule is the rule that allows courts to correct minor glitches in their own judgments and orders without the trouble and expense of an appellate court’s intervention.

The slip rule is within courts’ inherent jurisdiction but it is also succinctly expressed in most courts’ own rules — see for example Federal Court rule 39.05 and, in Victoria, Supreme Court rule 36.07; Magistrates’ Court rule 36.08 and VCAT Act s 119.

But the slip rule has its limits.

I was reminded of this over the Christmas break by a Retail Tenancies List decision – Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2012] VCAT 1908.

In late 2011 the tenant-applicant won an order totalling almost $245,000 against its landlord – see Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2011] VCAT 2273. In that case, after a 10-day hearing and a 62-page judgment, VCAT Vice-President Judge Lacava found that the landlord had failed to take reasonable steps to stop or prevent disruption to the tenant’s trading caused by, inter alia, a neighbour’s renovations.

The landlord duly paid up.

Almost a year later the tenant decided to go back to the well. It applied to VCAT under the slip rule for a further order which would have upped the original award by almost $96,000.

The application had three prongs.

Two were swiftly dealt with. Judge Lacava found both to require a total recalculation of damages in circumstances where the errors complained of and their consequences were “not readily identifiable.”

The third limb of the application was starker.

The landlord conceded that a typographical error (yes – a humble typo) in the original reasons had effectively cost the tenant $16,235. But it would not concede the slip rule application.

Quite right too ruled Judge Lacava.

He cited L Shaddock & Associates v City of Parramatta [1983] 151 CLR 590 to the effect that courts have a discretion when dealing with slip rule applications.

In my view, if there was an error capable of being corrected under s. 119 [of the VCAT Act dealing with slip rule applications], it ought to have been identified by the applicant and its accountants by the end of February 2012 at the latest and an application then made. That was not done. In my judgment, the delay in bringing this application for correction is unexplained and is too long. It is important that litigation be brought to an end. In this case, the respondent having promptly paid the amount of damages, it would be both inexpedient and inequitable for me to make the orders sought by the applicant in its further application dated 20 September 2012.

For these reasons, the applicant’s further application is dismissed.

The lessons?

Three occur to me:

  • Try to get it right the first time;
  • Don’t hang about when you (or the judge’s typist) muck it up; and
  • Don’t believe everything supervising partners tell their underlings.

(Mainly) keeping a sugar daddy’s confidences


Geoffrey Edelsten

Geoffrey Edelsten (Photo credit: Wikipedia)

Are confidentiality clauses worth the paper they are written on?
Between parties of good will they are unnecessary. Between parties of ill will their enforcement is usually fraught. The genie secret can escape the confidentiality bottle too easily and, once loose, can seldom be ordered by any court entirely back into that bottle.
Dr Geoffrey Edelsten was reminded of this last week when he scored a dubious victory in Norman South Pty Ltd and Geoffrey Edelsten v da Silva [2012] VSC 477.
Australia’s most famous struck off GP ‘met’ the young, female defendant, Ms da Silva, at . (Go on — have a peek at a very strange world which promotes itself as “a dating site that promises you the man – and the bank account – of your dreams!”) Our star-crossed litigants then met in person, in Florida, one weekend in March this year.
Money subsequently changed hands. On the Edelsten version, that money was a $5000 loan from his company (the first plaintiff) to the defendant. He said the loan was governed by a written agreement which included a wide-reaching confidentiality clause.
Ms da Silva admitted receiving the $5000 but initially told the court it was a gift. Later in the trial she characterised the payment as a loan without any confidentiality obligations attaching to it. She said certain emails in evidence that appeared to contradict her were forgeries.
In a contest between two extremely unimpressive witnesses Edelsten was preferred to Ms da Silva.
What else transpired between the pair? We will probably never know because Ms da Silva is now injuncted from, among other things, persisting with the disclosures she had started making to a Herald Sun reporter.
It was those disclosures which apparently prompted Edelsten to seek a cocktail of orders against da Silva including for repayment of the $5000 loan, damages, injunctions to prevent further disclosures and a non-publication order under s 18(1)(c) of the Supreme Court Act in respect of the entire proceeding.
Edelsten succeeded on the loan claim and the injunctions (because of the confidentiality clause rather than breach of confidence principles) he failed to get damages and he got only a partial non-publication order.
Most successful litigants enjoy public vindication but Edelsten would probably have appreciated private vindication more.
Instead Justice David Beach suppressed “information derived from the proceeding that would disclose or further disclose the substance of any dealings” between the two main players but expressly exempted his 14 page judgment from that order.
Hence the judge’s scathing assessment of the main witnesses’ testimony can be shared with the world. Here (minus the footnotes) are some highlights from a stinging judgment:

1 A little over 23 years ago, Brooking J commenced a judgment with the statement “Titus Oates was the greatest perjurer that ever lived”.  Self-evidently, his Honour was not the trial judge in the present proceeding.
9 …. one of the problems with this proceeding was that in respect of a significant number of the emails, each side had different versions of the relevant email. Each side accused the other of fraud. Specifically, each party made accusations that various emails passing between them had been fraudulently altered.
15 ….most of the evidence given by the defendant was demonstrably false and could not be believed.
16 However, Dr Edelsten was no more an impressive witness than Ms da Silva. The evidence disclosed that in his dealings with Ms da Silva he lied to her on a number of occasions. Further, much of Dr Edelsten’s evidence was simply unbelievable when one had regard to the whole of the evidence. Specifically, Dr Edelsten’s evidence as to being largely (if not wholly) motivated by altruism or charity in his dealings with the … defendant must be rejected. Additionally, much of Dr Edelsten’s evidence (and particularly the evidence I have referred to in this paragraph) is inherently unlikely when one looks at the written record of the communications passing between him and the defendant.
17 While, in some circumstances, and depending upon the demeanour of the particular witness (or other relevant matters), inherently unlikely evidence might nevertheless be accepted, nothing about Dr Edelsten’s appearance in the witness box or any of the evidence in this case led me to conclude that I should accept the evidence given by him (and to which I have referred) in the face of the more likely true position as disclosed in the emails tendered on his behalf. Specifically, the way in which Dr Edelsten gave evidence was unsatisfactory. On a number of occasions, there were inappropriately long pauses before an answer was given to a straightforward question that should have been capable of a ready answer. From time to time, Dr Edelsten appeared to be contemplating which of a selection of answers might prove least embarrassing or least destructive to his case. Further, Dr Edelsten’s willingness to deny seeing the contents of some attachments to a particular email from the defendant did not assist his credibility. Finally, in respect of too many matters in cross-examination, Dr Edelsten was content, all too readily, to say that he could not recall the matter inquired of, before having to, somewhat grudgingly, acknowledge its existence when taken to a specific email.
18 In summary, I found both Dr Edelsten and Ms da Silva to be unsatisfactory witnesses. Both were prepared to mislead me in respect of any matter that they thought they could get away with. Each was prepared to be truthful only if it did not otherwise embarrass them or harm their case. The one piece of evidence that could confidently be accepted from each of them is when each of them said that, in respect of certain matters, the other was being untruthful. That said, there was the occasional vignette of truth. Further, in fairness to Dr Edelsten and in the context of this case, it might be said that it was at least to his credit that he did not falsify any of the relevant documents.
40 In my view, it is necessary, so as not to prejudice the administration of justice, to make a non-publication order prohibiting the publication of any part of this proceeding that would disclose or further disclose the substance of the dealings to date between the second plaintiff and the defendant, including any emails, text messages or any other form of communication passing between them. However, I should say for the sake of completeness that such a non-publication order does not prevent the publication of this judgment.

Robert Hughes – a lawyer’s farewell

Celebrated art critic and historian Robert Hughes died this week.

None of the many generous obits I have read have mentioned Hughes’s obscure and incidental career as a legal critic.

Let’s fix that.

In 1999 Hughes nearly died in a car accident near Broome, Western Australia. During his painful recuperation he was charged with driving offences arising out of that accident. He initially contested the charges but ultimately pleaded guilty.

In the interim passengers from the other vehicle offered (on the sly of course) to change their evidence in exchange for payment from Hughes. They were duly charged conspiring to pervert the course of justice.

Hughes, the baby brother of ex-federal attorney general “Frosty Tom” Hughes QC, was scathing about the whole episode. Among those he took a swipe at was the barrister who prosecuted him, Indian-born, Western Australian barrister Lloyd Rayney.

Hughes, among other things, allegedly described Rayney as a “curry muncher.”

Rayney then sued Hughes for defamation (which ultimately settled privately).

Coincidentally Rayney is now back in court again in a personal capacity. He is currently standing trial in Perth charged with the murder of his wife, Supreme Court Registrar Corryn Rayney. (See the WA News account here).

Rayney will be hoping for a better run in his murder trial from WA’s Director of Public Prosecutions than that accorded in another Perth murder trial to Paul Mallard.

Mallard was convicted of murder in 1995. The High Court subsequently overturned the conviction finding the prosecution had overcooked its case by failing to disclose important exculpatory evidence to the defence. (See an account of the High Court decision at Kyle McDonald’s summary crime blog).

Just how overcooked was the prosecution case against Mallard?

Pretty. Just last month (17 years after the event!) the prosecuting counsel copped a plea before WA’s Legal Profession Complaints Committee to unsatisfactory professional conduct and agreed that the maximum applicable fine was appropriate. (The Committee’s decision here was pointed out to me by the doyen of Melbourne’s legal bloggers Stephen Warne).

What would Robert Hughes have made of this?

Maybe we already know.

He once said “Western Australian justice is to ‘justice’ what Western Australian culture is to ‘culture’.”

Farewell Robert Hughes. At least outside WA you will be missed.