The Slip Rule…or how I learned to stop worrying and love common sense

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The recent decision of Brennand v Hartung handed down by the Supreme Court has a nice detailed analysis and history of Rule 6906, commonly known as the “Slip Rule”. 

The slip rule exists in most jurisdictions in various forms but essentially allows for the correction of orders or court certificates. In the ACT the correction can be made by application or on the court’s own initiative and practice allows for the correction to be made in chambers.

Whether or not a Court has the power to correct and effectively alter a final judgment in order to correct a mistake arises frequently and there is a common law power in addition to the rule. As stated by the High Court in Achurch v The Queen [2014], quoting Smith v New South Wales Bar Association:

“It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected” [17]

Although it has been pointed out in Norman v Norman (1992) 6 WAR 372 at 375 that the precise time when an order or judgment is perfected is not entirely clear.

An order is considered made under r 1605 once it is either formally recorded (in chambers or otherwise) or upon pronouncement (as soon as it is spoken by the judicial officer). In an ex tempore decision the formalisation of the order is left to the associate or registry. Keeping in mind that Judges or Magistrates may not always have a chance to confer prior to or after the making of the order, it is understandable that the recording of the order, or even the reasons, can be mis-recorded to an extent that ambiguity or error exists.

The decision in Brennard examined an order made by Master Harper ruling that “The statement of claim filed by the plaintiffs on 7 September 2012 be struck out.”  despite being filed on a separate date and the resulting order for costs incorrectly awarded to the plaintiff instead of the defendants as clearly intended.

Refshauge J concluded that the error was obvious and the defendants were entitled to the usual presumption of costs following the event, but questioned what to actually do about it. Having reviewed the transcript and helped by the fact the application was not opposed the Court found that as the order had been clearly expressed in court (therefore: made) it was amenable to apply the slip rule to correct the official orders as they were recorded.

There are other interesting applications of the rule particularly in relation to Bankruptcy proceedings, noting that bankruptcy rules are considered a harsh mistress to be applied even in situations that may not seem reasonable or fair. See for example Flint v Richard Busuttil for applying the slip rule to retrospectively extend the time for compliance with a creditors petition or Soil and Contracting Pty Ltd v Boban from W.A. for the equivalent in winding up applications.

 

If you require an order remade it is a simple enough process. An email to the Registry cc’ing in all parties, outlining the mistake and the proposed corrected version should be enough. Other parties will have a chance to comment this way and the registry can check the record or simply check with the judicial officer. The order can then be made in chambers, or if absolutely necessary listed at the officer’s convenience.

Canberra Disability Rights Legal Service

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“Advocacy for Inclusion” launched the Disability Rights Legal Service on 18 June 2015.

One of the only of it’s kind in Australia, the service is seen as a natural extension of their advocacy work and aims to provide information for people with disabilities and advocacy through volunteer solicitors and partnerships with private providers.

The centre has named its priorities as addressing disproportionate representation in the prison system, high rates of child removal and restrictive guardianship orders.

The DRLC is located on University Avenue and are grateful for volunteer solicitors or civilians who can give up any amount of time to assist.

Read Chris Knaus’s article from the Canberra Times.

A Brief History of….Pecuniary Losses

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Time for another opportunity for myself to indulge in my amateur history and etymology.

Like all societies that have lasted their time, Roman society started as an agricultural society well before the empire, hedonism and numerous yawns for HSC students.

Every early society has understood value as an intrinsic thing well before there were minted coins with a specific value. The things these societies valued are not difficult to guess; life, family and livestock.

An abundance of livestock meant the survival of your family and community. Groups would fight for and defend their sheep and cows since at least the first domestication of sheep in around 10,000 BC and Cattle in about 8,000 BC. (Corrections are welcome)

Even the word “husband” did not originate as relating to marriage, but simply was a manager of animals. The “husband” was usually married as the head of a successful household. Hence the two became conflated.

That’s the context. Now for the exciting stuff.

Pecuniarius “pertaining to money,” from pecunia “money or wealth,” from pecus meaning “sheep”. In pre-monetary society, the most common form of barter involved sheep or other livestock. Hence in Roman society a pecuniary loss was a loss pertaining to your wealth, or sheep. The term morphed and stuck around and this is certainly where our term pecuniary originates from, but it is not the only example of this.

Further down the rabbit hole? you got it.

Caput is not just a great gangster word, it’s Latin for “head“…and you guessed it, head of cattle. Caput leads to Capitale which becomes anglicised as Catel and retains its reference to the amount of cows to this day. Obviously this became “Cattle” but interestingly the root was retained and “Capital” still exists alongside “Cattle” which evolved from it.

Keep going? all day son.

Fioh is old english and there are plenty of Celtic and other alternatives, but we don’t actually have all day so I’ll be brief. Fioh or Fehu (but that’s more Germanic Saxon) means cows. This evolved into “fee” and hence meant a collection of property. “Fee Simple” was a straight exchange of property for other (absolute ownership); fee simple came to relate specifically to pasture and now it exists in the system as relating to land. A “Fiefdom” became an area of land over which a party had exclusive licence to collect fees.

Sanskit, Gothic, Germanic and basically any society throughout Europe and the Middle East can trace the definitions of money, property or value directly to livestock. I’m sure it’s even more prevalent than these areas, but unfortunately my usefuless expired long ago. (once again, corrections welcome)

Will this information ever come in handy?…Probably not. But understanding the value and meaning of something usually involves understanding its context and importance. Money is the new livestock and losing it still means the same thing to most people that it did 10000 years ago, a loss of ability to provide for their family and community. Money is a very emotional subject and understanding the base human drive behind this is fundamental to understanding the emotions involved behind most litigation.