FEDERAL COURT OF AUSTRALIA

Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2014] FCAFC 31

THE COURT ORDERS THAT:

1.    Order 1 made by the primary judge on 29 January 2013 be set aside and in lieu thereof it be ordered that:

1.    The respondent pay the applicant’s costs up to 11:00 am on 9 March 2012, the applicant pay the respondent’s costs after that time on an indemnity basis and the respective liabilities of the respondent and the applicant to the other under this order may be set off against each other.

2.    Order 3 made by the Full Court on 7 March 2014 be varied by substituting “pursuant to Order 1 made by the Full Court on 24 March 2014” for the words “pursuant to Order 1 made by the primary judge on 29 January 2013”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Following delivery of the Full Court’s reasons on the issue of costs (Visscher v Teekay Shipping (Australia) Pty Ltd (No 2) [2014] FCAFC 19), Mr Visscher pointed out a matter that had not been addressed by the parties and so was overlooked by the Full Court. That was that he would have been entitled to an order for costs up to 11:00 am on 9 March 2012 by operation of r 25.14(1)(a), had the primary judge made the order for payment in his favour that the majority found Mr Visscher to be entitled to on appeal. Teekay did not oppose the correction sought by Mr Visscher.

2    Accordingly, it is necessary to vary the order made by the primary judge in favour of Teekay on 29 January 2013 that entitled it to party/party costs before 11:00 am on 9 March 2012 to give effect to the operation of r 25.14(1)(a) so that those costs listed are payable by Teekay to Mr Visscher and that thereafter he remain liable to pay Teekay’s costs on an indemnity basis. The respective entitlements of the parties under the costs orders made in the proceeding should be set off.

3    The orders that the Full Court made on 7 March 2014 were entered on 11 March 2014 before the Full Court had received Teekay’s response on 12 March 2014. That response stated that Teekay did not oppose the amendment to the orders sought by Mr Visscher. The entered orders should be varied pursuant to r 39.05(h) or the Court’s implied or inherent jurisdiction to correct an order made where an accident, omission or mistake has occurred incidentally in respect of a matter that was before it: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452 F-G per McHugh JA. Mr Visscher’s entitlement to the order under r 25.14(1)(a) was an issue before the Full Court that requires a variation to the orders made on 7 March 2014.

4    For the reasons above, the orders made on 7 March 2014 contain an error because they failed to recognise Mr Visscher’s entitlement to costs before 11:00 am on 9 March 2012 under r 25.14(1)(a). That error by the Full Court arose because of an accidental slip or omission.

Associate:

Dated: 24 March 2014