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NSW Crest

Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:
GOODWIN v COMMISSIONER OF POLICE (NO 2) [2011] NSWCA 90
Hearing dates:
On the papers
Decision date:
13 April 2011
Before:
McColl JA at 1, Basten JA at 1, Sackville AJA at 1
Decision:

Amended Notice of Motion dismissed with no order as to costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - civil - final orders - whether remittal of matter for reconsideration means matter should be remitted to original trial judge

PROCEDURE - civil - application to amend orders - slip rule - Uniform Civil Procedure Rules 2005 (NSW), r 36.17

WORDS AND PHRASES - 'reconsideration', 'determination'
Legislation Cited:
District Court Act 1973 (NSW), ss 142M, 142N
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17
Cases Cited:
Goodwin v Commissioner of Police [2010] NSWCA 239
Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178
Texts Cited:
Tarrant, J Amending Final Judgments and Orders (Federation Press, 2010) pp 108-123
Category:
Consequential orders
Parties:
Daniel Goodwin (Appellant)
Commissioner of Police (Respondent)
Representation:
Counsel:
A P L Naylor (Appellant)
P Menzies QC (Respondent)
Solicitors:
Oates & Smith Solicitors (Appellant)
Henry Davis York Lawyers (Respondent)
File Number(s):
2009/325725
Decision under appeal
Date of Decision:
2009-12-18 00:00:00
Before:
O'Toole DCJ
File Number(s):
DC RJ 4719/2001

Judgment

1THE COURT : On 15 September 2010 the Court handed down judgment with respect to the issues raised on the appeal: Goodwin v Commissioner of Police [2010] NSWCA 239. By the first order, the Court allowed the appeal and set aside the judgment of the District Court. Order 2 read as follows:

"(2) Remit the matter to the District Court for reconsideration in accordance with the decision of this Court."

Variation of order sought

2By an amended Notice of Motion filed on 14 January 2011, the appellant sought to have this order varied by replacing the word "reconsideration" with the word "determination". The power to take that course was said to be found in the so-called "slip rule" found in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). The basis for suggesting that there was some error in the form of the order was the language of s 142N(2) of the District Court Act 1973 (NSW) which provides:

"(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the District Court in its residual jurisdiction for determination by that Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit."

3On its face, this contention involves an arid semantic point with no substantive consequence for the resolution of the litigation. It is true that the section provides that the Court may remit the matter for determination by the District Court, where the result of the appeal is that the matter has not yet been determined according to law. However, it does not follow that only an order in those terms will have the necessary effect. Once the decision of the Court below has been set aside, the proceedings before it remain uncompleted. There is no magic in the term "determination", nor in the use of the term "remit". The important step taken by this Court on the appeal was to set aside the decision of the Court below, an order which is not expressly provided for in s 142N, the power to make such an order being inherent in the nature of the proceedings. Indeed, as the matter is a fresh proceeding by way of appeal in this Court, rather than the removal of the proceedings from the District Court, it is not entirely clear that any order of remitter is necessary. In any event, there being no valid determination in the Court below, the matter will need to be given further consideration by that Court, which will no doubt result, in due course, in a further determination, or other outcome, collectively referred to in ss 142M and 142N as an "award". The terms "reconsideration" and "determination" indicate no different effect: one refers to the process, the other to the outcome. Both, or either, could be used: see generally Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [26]-[40].

4However, it appeared from the written submissions for the appellant that the real dispute between the parties was as to whether the matter should go back to the original trial judge, or to a different judge in the District Court. Two points may be made in respect of this concern. First, the order of remittal was silent as to the judicial officer by whom, and the manner in which, the jurisdiction of the District Court should be exercised. Nor did the term "reconsideration" in the context of remittal to the Court as an institution, carry any implication as to the judge by whom, or the manner in which, that process should be undertaken. This Court was not asked to address such questions nor, generally, would it be appropriate for it to do so. There may be cases where the nature of the error identified on appeal is such that the proper administration of justice commands that any further consideration of the matter be undertaken by the Court below, constituted by a judge other than whoever conducted the original trial. In such cases the order of remittal may reflect such a conclusion: that was not this case.

5On remittal, the respondent sought to have the matter listed before the original trial judge and sought support from the use of the term "reconsideration" in order (2). Once the nature of the underlying dispute is identified, it may be seen that the motion to this Court is misconceived. Not only did the original orders not bear the construction that the respondent sought to put upon them, but neither would the variation sought by the appellant advance the matter any further. It is a matter for the District Court to determine before whom, and in what manner, any further hearing will proceed.

Power to correct "error"

6The rule relied upon reads as follows:

"36.17 If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, ... the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."

7In this case, there was no mistake or error, accidental or otherwise. Nor has either party demonstrated that, properly understood, the language of s 142N would have any different effect than that of the language adopted in the order.

8Accepting that the jurisdiction of the Court is not confined by the terms of the specific rule - see Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 at [19] (Spigelman CJ, Santow JA and Handley AJA agreeing) it is not necessary for present purposes to consider the scope of any broader jurisdiction, nor the extent to which it may be qualified by the constraints imposed under r 36.16: cf Tarrant, J Amending Final Judgments and Orders (Federation Press, 2010) pp 108-123. It is sufficient to say that no occasion arises in the present case for amending the order.

Costs

9There remains the question of the costs of the present application. Because the application was misconceived, on one view the appellant should pay the respondent's costs of the motion. On the other hand, the appellant came to this Court in response to the respondent's argument that the form of the order supported the view that the matter must go back to the original trial judge. The respondent's argument should simply have been rejected by the District Court. If, in the course of administering its own jurisdiction, the matter were to be relisted before the original trial judge, it would then have been a matter for the appellant to contend in that Court that her Honour should not sit because of a reasonable apprehension of bias (which appears to have been the submission made for the appellant).

10The same false premise adopted by the respondent in the District Court formed the basis of its argument in this Court. In those circumstances, it is appropriate that each party bear his or her costs of the motion. Accordingly, the amended notice of motion filed by the appellant is dismissed with no order as to costs.

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Amendments

21 December 2011 - Typographical error - amended "1972" to "1973"
Amended paragraphs: Legislation, para 2

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Decision last updated: 21 December 2011