Amending judgments - The 'slip rule'

3.8 Amending judgments - The 'slip rule'

The power of a judicial officer to amend a final judgment is very limited. In R v Billington [1980] VR 625 at 628 the Full Court of the Supreme Court of Victoria - following dicta of the Full Court in Carroll v Price [1960] VR 651 at 657-8 - said:

"In the absence of any express legislative provision…it is settled law that until a judgment is passed and entered it is still under the control of the judge who may recall it or alter it, but once it has been passed and entered, or in the case of an order in chambers, signed by the judge it cannot thereafter be altered except in accordance with one of the rules or on appeal."
In Bailey v Marinoff (1971) 125 CLR at 530 Barwick CJ enunciated the rule in similar terms:

"Once an order disposing of a proceeding has been perfected by being drawn up as the requisite 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."

However, at p.539 Gibbs J made it clear that this rule was not inflexible and indeed only applied to a perfected order in a form which correctly expressed the intention with which it was made:

"It is a well settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. … The rule rests on the obvious principle that it is desirable that there be an end to litigation on the view that it would be mischievous if there were jurisdiction to re-hear a matter decided after full hearing. However, the rule is not inflexible and…the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court but is inherent in the court."

[31] "Rule 36.07 is the 'slip rule' and provides:

"The court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission.

[33] In addition to the powers in the Rules, the court has an inherent jurisdiction to amend or vary a judgment or order which has been authenticated where there is some error and the court takes steps to ensure that the authenticated order states correctly what the court decided and intended. See Lawrie v Lees (1881) 7 App Cas 19 at 34-5. The inherent power also enables the court to clear up any ambiguity or uncertainty and also to correct any mistake or error made by an officer of the court in drawing up the judgment. See Oxley v Link (1914) 2 KB 734 at 738 and 746.

[34] But the general rule is that once a judgment or order has been authenticated in a form which correctly expresses the intention with which it was made by the court, the court has no jurisdiction to review, vary or set it aside and the only avenue open to any party to attack the judgment is to appeal."
After speaking of the power to vary contained in Rule 21.07 of the Supreme Court Rules, Gillard J. said at [45], after referring to dicta of Evershed LJ in Meyer v Meyer (1948) P 89 at 95 and Thynne v Thynne (1955) P 272 at 313:

"Rule 21.07 and the inherent power of the court give the court jurisdiction in an appropriate case to vary an order. The word 'vary' in Rule 21.07 should not be given a restricted meaning and covers a change, amendment, modification or alteration of an order. The rule and the inherent power should be applied where the purposes of justice require the court to vary the order."

1. 
   Exceptions founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice;
   
2. 
   Exceptions which are authorized by statute;
   
3. 
   Exceptions which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable.
   

“[T]he inherent jurisdiction of the Court may and ought to be invoked to amend reasons for a judgment, an order in the nature of a judgment and other orders, when they contain or result from an adjudication upon that which the court has never in truth adjudicated upon or when they do not express the intention and express the meaning of the court at the time when they were made. Such an amendment may be made at any time:

(a) whenever it is in the interests of justice to do so after applying the overarching purpose prescribed by s 7 of the Civil Procedure Act 2010 in accordance with s 8 of the Act in order to avoid unnecessary delay and expense involved in an appeal to the Court of Appeal and burdening that Court with unnecessary appeals relating to matters which should be dealt with at first instance; and

(b) after taking into account and duly balancing the ‘finality of litigation’ factors such as the desirability of there being an end to litigation and the need to avoid the mischief of an application made under the guise of the slip rule which in fact amounts to an application to rehear a matter decided after a full hearing.

“The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.”