FEDERAL COURT OF AUSTRALIA

SZMLB v Minister for Immigration and Citizenship (No 2)
[2008] FCA 1962

SZMLB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1501 of 2008

RARES J

19 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  Pursuant to the slip rule and O 35 r 7(3) of the Federal Court Rules, Order 2 as entered on 28 November 2008 be varied by deleting “Order 2” and inserting “Order 3”.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 28 November 2008, I made orders dismissing the appeal and quashing Order 3 made by the Federal Magistrates Court on 3 September 2008.  Unfortunately, when the orders were typed up later on 28 November, the second order wrongly referred to quashing Order 2 (rather than Order 3) made by the Federal Magistrates Court.  Orders in this erroneous form were entered by the registry of the Court at the request of the Minister on 1 December 2008.

2                     In Burrell v The Queen (2008) 82 ALJR 1221 at 1227;  [2008] HCA 34 at [21] Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said (Kirby J agreed at [104]):

“The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order (L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595) provides no substantial qualification to that rule.  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.”

3                     This court has also an implied, if not inherent, power as a superior court of record to correct any clerical mistake in a judgment, decree or order, if it were the result of an accidental slip or omission:  Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 452F-G per McHugh JA;  see also The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 5) [2007] FCA 466 at [5] per myself;  The Queen v Popovski [2008] ACTSC 95 at [5]-[6] per myself.

4                     The slip rule is reflected in O 35 r 7(3) of the Federal Court Rules.  In addition, the Court has power to vary or set aside an order after entry where it does not reflect the intention of the Court (O 35 r 7(2)(e)) or where the party in whose favour the order was made consents (O 35 r 7(2)(f)).

5                     I am satisfied that it is within the Court’s powers under the slip rule and O 35 r 7(3) to make an order correcting the form of orders entered on 1 December 2008, and that the interests of justice require me to do so.

6                     I note that the Minister has been informed of the order I propose to make and has consented to it.  The appellant was informed of the same and advised that, if she wished to oppose the proposed correction, she must attend Court this morning.  She has not done so.

7                     Accordingly, I order that that, pursuant to the slip rule and O 35 r 7(3) of the Federal Court Rules, Oder 2 as entered on 28 November 2008 be varied by deleting “Order 2” and inserting “Order 3”.

Associate:                                                                     Dated:  19 December 2008