Wentworth v Rogers S65/1995 [1997] HCATrans 317 (3 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S65 of 1995

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON ROGERS

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 1997, AT 12.40 PM

Copyright in the High Court of Australia

MS K. WENTWORTH: I am appearing in person, your Honour.

MS V.J. LYDIARD: Your Honour, I appear with my learned friend, MS G.M. PRESTON, for Mr Rogers. (instructed by Richard Licardy & Co)

BRENNAN CJ: And you have an application?

MS LYDIARD: Yes, I have, your Honour. I move on the notice of motion filed on 26 September 1997 and I rely on the affidavits of Gordon Rogers sworn on 26 September 1997 and sworn on 30 September 1997.

TOOHEY J: But this matter has been before the Court for many years now on the basis of the order made by the Court of Appeal back in - I cannot put my hand on the date immediately but it was some number of years ago. True, on the basis that costs were to abide the outcome of a new trial which had been ordered by the Court of Appeal, but since that time the claim and cross-claim have been severed and Ms Wentworth's claim has proceeded before Justice Sully and then on appeal to the Court of Appeal.

MS LYDIARD: Yes, your Honour, but at the time the Court of Appeal handed down their judgment on 5 May 1995 the cross-claim had been dismissed with costs. The cross-claim has subsequently been resurrected by his Honour Mr Justice Sperling and the cross-claim still has to run but the respondent is seeking to reopen the appeal in relation to the matter No 40402 of 1994 and in doing so will seek to argue that the costs of the claim and cross-claim should abide the outcome of the hearing of the cross-claim. The cross-claim still, of course, has not been set down for trial for various - - -

TOOHEY J: I can understand that, but my question was really directed at the way in which the litigation proceeded without reference, apparently, to the order of the Court of Appeal that the costs of the retrial were to abide the outcome of those proceedings.

MS LYDIARD: Your Honour, unfortunately, before his Honour Justice Sully there was no submission made, as I can detect or delineate from the transcript. However, his Honour Mr Justice Brownie does make reference to it. He does, in his judgment - Your Honours, after the Sully trial and after the order for costs was made, the matter went before the Court of Appeal on Monday, 12 September 1994 - I am sorry, it had been there previously but an interim judgment was given on Monday, 12 September 1994. That is page 75 of the application book.

TOOHEY J: That is the judgment on costs, is it not?

MS LYDIARD: That is the judgment on interest.

TOOHEY J: I beg your pardon, on interest, yes.

MS LYDIARD: Now, at that stage the cross-claim was still on foot and their Honours were of the view that the costs - everything had to be determined at the one time and that the future of the cross-claim had to be dealt with in some way. At page 82 of the application book your Honours will see that an order was made on 6 October that:

Costs of and incidental to this application reserved, and the question of the costs to date remitted to the Common Law Division for consideration.

TOOHEY J: Could I just ask you this, Ms Lydiard. At least as a matter of chronology, it was consequent upon the order made by the court on 12 September 1994 which had the effect of increasing the amount of the judgment by reason or recalculation of interest. Is that right?

MS LYDIARD: That is correct, but the question of the appeal itself - there were two issues that Ms Wentworth raised before the Court of Appeal. One was the question of interest and the other was the question of the amount of costs that his Honour Mr Justice Sully awarded which was half her costs.

Now, after the judgment with respect to interest, it became necessary for the Court of Appeal to renew the exercise of discretion because at this stage the section under which the costs were to be decided had changed. It had gone from Part 52 rule 24(1) to Part 52 rule 24(3) and in relation to rule 24(1) - the discretionary section was part (2) and in relation to subrule (3), the discretionary section came in in (4) and (4A) and it is that very question that Ms Wentworth now seeks to argue.

Now, having decided on the question of interest, the matter was sent back to the Common Law Division. Subsequent to that, Ms Wentworth had Mr Rogers' cross-claim struck out before his Honour Mr Justice Loveday on an ex parte basis and an order was made that Mr Rogers pay Ms Wentworth's costs. That was in October 1994 and the judgments of their Honours, Justices Priestley, Handley and Brownie, was handed down on 5 May 1995. Now, his Honour Mr Justice Brownie states - and this is at page 109, point 25, of the application book:

Two further matters were raised as to costs. First, it seems to have been overlooked by all concerned, when the costs question was argued before Sully J, that the second trial was a trial only of Ms Wentworth's claim, and not a trial of the cross-claim, and that the order of the Court of Appeal of 1987, that the costs of the first trial abide the result of the second trial, referred to a second trial of both claims. The order of Sully J therefore needs to be amended so that it is limited to the costs of Ms Wentworth's claim, as distinct from the cross-claim. The costs of the cross-claim will be a matter for the Common Law Division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought not recover the whole of her costs in relation to the cross-claim.

And, of course, at that stage the cross-claim had been struck out for want of prosecution and Mr Rogers was ordered to pay Ms Wentworth's costs.

Now, his Honour Mr Justice Sperling resurrected the cross-claim in September 1996.

BRENNAN CJ: So long afterwards.

MS LYDIARD: It took, your Honour, some two and half years from the time of Mr Rogers' application to set aside his Honour Mr Justice Sperling's order. Your Honours will see in the respondent's summary of argument a statement of factual issues and a chronology which sets out - and this is on page 132 at approximately point 10, subparagraph z:

On 12 December 1994 the Respondent filed a notice of motion seeking an order setting aside the ex parte dismissal of the cross-claim by Loveday AJ on 24 October 1994.

aa. On 13 December 1994 the Applicant filed a notice of motion seeking the permanent stay of the cross-claim.

bb. On 1 March 1995 the Applicant filed three further notices of motion including a notice of motion seeking various declarations with respect to the criminal trial.

cc. The notices of motion were heard by Sperling J between 23 March 1995 and 24 April 1996.

dd. On 10 September 1996 Sperling J delivered judgment setting aside the ex parte order of Loveday AJ of 24 October 1994 dismissing the cross-claim and dismissing the Applicant's notice of motion seeking a permanent stay of the cross-claim.

Now, since then the respondent has not been able to list the cross-claim because of challenges raised by the applicant by way of numerous motions. Ms Wentworth sought leave to appeal and that leave was refused and she now has on a notice of motion seeking to set aside the refusal and leave to appeal and a notice of motion seeking leave to appeal out of time. Those matters are set down for hearing on 13 October 1997.

Mr Rogers has filed a notice of motion with respect to the judgment that Ms Wentworth now seeks special leave to appeal on to this Court. That notice of motion is returnable on 13 October also, though it is doubtful that it would be dealt with on that date because on that date there are notices of motion returnable with respect to his Honour Mr Justice Sperling's judgment as well as with respect to the Court of Appeal's decision with respect to his Honour Mr Justice Sully's cost order.

TOOHEY J: What does Mr Rogers seek to do by the notice of motion to which you have just referred?

MS LYDIARD: He seeks to reopen the appeal, your Honour.

TOOHEY J: Reopen the appeal?

MS LYDIARD: Reopen the appeal on the basis - - -

TOOHEY J: Which appeal?

MS LYDIARD: That is the appeal with respect to his Honour Mr Justice Sully's order, the very matter that is currently before this Court now. In relation to that matter - - -

TOOHEY J: I am sorry, I do not follow.

MS LYDIARD: I am sorry, I have not made myself clear. On 13 October there are a number of notices of motion returnable in the Court of Appeal. Three of those notices of motion, two of which are Ms Wentworth's and one of which is Mr Rogers', relates to the Sperling decision. In fact, I think there are more notices of motion, I am sorry, your Honours. There are also notices of motion returnable on that date with respect to his Honour Mr Justice Sully's decision, that is - I am sorry, it is the Court of Appeal's decision with respect to his Honour Mr Justice Sully's cost order. That is the order of 5 May 1995 which is the very order which Ms Wentworth now seeks special leave to appeal from.

TOOHEY J: But what is Mr Rogers seeking to do?

MS LYDIARD: Mr Rogers seeks to reopen that appeal on the basis that the orders of 5 May were made after his cross-claim had been dismissed and before it was resurrected. He also will be relying on new evidence and he has filed a very substantial affidavit in support of his notice of motion. Now, we do not know when that will be heard because, obviously, it is impossible for the Court of Appeal to hear all matters on 13 October.

But, your Honours, on behalf of Mr Rogers today, we seek to vacate the hearing of the special leave application in view of the fact that there are still matters to be dealt with in relation to the 5 May 1995 order of the Court of Appeal. We are concerned, as Mr Rogers has deposed to in his affidavit, that if in fact the matter proceeds today Ms Wentworth will raise an argument of res judicata, estoppel or - in other words, further hurdles will be created. Mr Rogers is most anxious to get his cross-claim on for hearing. There are several notices of motion in the Common Law Division with respect to that at present filed by Ms Wentworth as she seeks to restrain him from proceeding with his cross-claim. There are also the matters in the Court of Appeal which are also preventing him proceeding with his cross-claim.

Your Honours, we ask that at this stage the special leave question or the hearing of the special leave question be adjourned until such time - - -

BRENNAN CJ: What is the object of this? In order to see if an order can be made ultimately for costs in favour of Mr Rogers that are set off?

MS LYDIARD: Well, either, that the cost order made by his Honour Mr Justice Sully originally be set aside and each party pay its own costs or, alternatively, there will be an argument that Ms Wentworth pay Mr Rogers' costs. There is no doubt, your Honours, that Mr Rogers successfully defended the substantial part of the damages claim against him by Ms Wentworth. The allegations made by Ms Wentworth, as your Honours will have read in the application book, are serious to say the least.

TOOHEY J: You are running two matters now - at least, Mr Rogers appears to be running two matters together. One is to revive the overall question of costs by reason of his cross-claim - - -

MS LYDIARD: Yes, being resurrected.

TOOHEY J: - - - being resurrected. Now you have moved to an area in which it is said that he seeks to attack the order for costs made in favour of Ms Wentworth, not by reason of a cross-claim but by reason of other considerations.

MS LYDIARD: Other considerations.

TOOHEY J: Such as, perhaps, issues on which Ms Wentworth may have failed and so on.

MS LYDIARD: Yes, your Honour.

TOOHEY J: Taking up the second of those issues, that has been before the Court of Appeal. It has been dealt with, has it not?

MS LYDIARD: Yes, your Honour. Mr Rogers has, in fact, filed a substantial affidavit and he will be arguing that there is new evidence on which the Court of Appeal could rely in order to consider the question of costs again. Now, that is obviously not a matter I can go into in any detail but there is a very real question to be argued by Mr Rogers in the Court of Appeal with respect to the orders of 5 May 1995 and Mr Rogers is concerned that if your Honours proceed today to hear Ms Wentworth's special leave application, and no matter what the outcome might be, he is concerned that it will prevent him proceeding in the court below.

BRENNAN CJ: We are not particularly troubled about Mr Rogers' concerns. We are concerned about what we should do in the circumstances of the present case.

MS LYDIARD: Yes, I hear your Honour. Thank you, your Honour.

BRENNAN CJ: Ms Wentworth, what is your attitude to the application that has been made?

MS WENTWORTH: I oppose the application, your Honour. Your Honours, Ms Lydiard has referred, I think, to a number of matters which are factually incorrect.

BRENNAN CJ: Before you get on to the factually incorrect matters, the question that really arises is whether or not, if we were to proceed with your application on this occasion and treat the case as though it were dealing only with your costs at this stage, does that give effect to the order of the Court of Appeal which contemplated that costs should be considered only after both the claim and cross-claim were determined, now that we know that Mr Rogers has been successful in having his cross-claim revivified?

MS WENTWORTH: Yes, your Honour. The Court of Appeal considered those matters on 17 August. I have the transcript with me and I have copies prepared for the Court and the answer to that is the Court of Appeal has considered that question, notwithstanding the matter was directly raised in the Court of Appeal on 17 August.

BRENNAN CJ: This year?

MS WENTWORTH: No, on 17 August 1994, prior even to the hearing on the cost matter. The matter was directly raised by Mr Rogers. It was argued by him at the time.

BRENNAN CJ: At that time his cross-claim was dead, was it not?

MS WENTWORTH: No, at that time, your Honour, on 17 August, his cross-claim was still on foot.

BRENNAN CJ: Still on foot.

MS WENTWORTH: Mr Rogers, after the judgment of 12 September in which the Court of Appeal determined the application of percentage interest over the whole of the period then advised the court that he would take no further interest in the appeal, that he would not attend the court and his legal representatives would not attend the court any further and the Court of Appeal heard further submissions from me in his absence on 5 October, but that was after he had advised, and I have an affidavit to this and annexed his letter and I would seek to read that affidavit, your Honours. It may assist.

BRENNAN CJ: Do you have the transcript of 17 August there?

MS WENTWORTH: Yes, your Honour.

BRENNAN CJ: Do you have copies of this, Ms Lydiard?

MS LYDIARD: No, not with us, your Honour, I am sorry.

BRENNAN CJ: Are you familiar with it?

MS LYDIARD: I am familiar with it, yes.

BRENNAN CJ: Are you able to deal with it if we have copies to look at?

MS WENTWORTH: Your Honour, I may have enough copies to give one to Ms Lydiard.

MS LYDIARD: I would appreciate that, thank you.

BRENNAN CJ: We will adjourn now, Ms Wentworth, and we will resume at 2 o'clock.

MS WENTWORTH: Thank you, your Honour.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

BRENNAN CJ: Ms Wentworth, we do not need to call on you any further in relation to this matter so far because we propose to ask Ms Lydiard this question.

In the light of the discussion that took place in the transcript which Ms Wentworth has provided us with, it seems that the problem of the division of the matter into the claim and cross-claim was raised before or was mentioned before the Court of Appeal and the Court of Appeal proceeded with it, in those circumstances, why should we delay this when the matter was for consideration before the Court of Appeal or could have been considered by that court?

MS LYDIARD: Your Honour, my response to that is that although it was raised before the Court of Appeal, his Honour Mr Justice Handley stated on page 15, your Honours, at the bottom of the page:

It occurs to me until such time as Mr Rogers makes an election as to discontinuing that malicious prosecution action or to bring it on for trial, we have an outstanding question of costs of the first trial insofar as it was a trial of a malicious prosecution, cross-action of the malicious prosecution, costs of the retrial up until the point of time Sully J ordered a separate trial, and the question of senior and junior counsel at the first trial is wrapped up with the question of the malicious prosecution limb of the first trial. My present impression therefore is that malicious prosecution one and two, senior counsel one and two; the appeal on interest are all outstanding questions and the general cost of the first trial is another outstanding question.

The question of interest is a question for this court under your notice of cross-appeal as of right. The other five questions are questions either for Sully J or, in the first in stance, Mr Rogers as to whether he is going to discontinue or elect to proceed with his malicious prosecution case. We should only have one go at this piece of fruit and not have multiple bites at it.

In other words, if we grant leave today the appeal should await Sully J's decision and Mr Rogers' decision and elections in relation to the other litigation of the other issues. Everything should be dealt with once in this court and at the same time.

Now, your Honours, it is our submission that - - -

TOOHEY J: Could I just interrupt you, Ms Lydiard. If you go to the foot of page 18 and over to the top of page 19, Justice Priestley says:

Miss Wentworth, what we propose to do now is hear you on the costs question in the Sully trial and the interest question you want to argue. We will then consider what is the best course to pursue in regard to any other matters that are not within those two main points.

MS LYDIARD: Yes, your Honour, and then after that hearing there was an order made in relation to the question of interest and the other - - -

TOOHEY J: But just before you leave what took place on that day, it seems fairly clear from that and one or two other passages that the court was alive to the fact that there had been an earlier order that the costs of the original proceedings abide the outcome, the new trial, but nevertheless heard from the parties on the question of the costs ordered by Mr Justice Sully.

MS LYDIARD: Yes, your Honour, but then the matter of the costs before his Honour Mr Justice Sully was not decided on that day. There was no decision made by his Honour. The orders were that - and I take your Honours to the application book - - -

BRENNAN CJ: That is true, but they proceeded to hear the appeal which is on the subject that is now before us.

MS LYDIARD: Your Honour, with respect to that aspect of the hearing, they did reserve their decision and they only gave their decision after they were somehow informed, and I am not quite sure how, that Mr Rogers' cross-claim had been struck out.

BRENNAN CJ: Where do we find that?

MS LYDIARD: Your Honour, in his Honour Mr Justice Sperling's judgment. He made a positive finding that at the time - and if I could take your Honours to the application book at page 136, at paragraph 28 it is stated:

On 6 October 1994 the Court of Appeal were also misled as to the Respondent's intentions with respect to prosecuting the cross-claim and certainly were seriously misled at the time of their Honours delivered judgment on 5 May 1995. The Respondent intended to prosecute his cross-claim at the relevant times. In the judgment of 10 September 1996 Sperling J stated:

"Loveday AJ dismissed the cross-claim for want of prosecution on the ground that Mr Rogers had no further interest in the cross-claim and that he had abandoned prosecution of it. Mr Rogers had an answer to that argument. I find that this was not his state of mind, that since June 1994 he had been unable to prosecute the cross-claim for lack of funds, and he intended to prosecute the cross-claim if and when he could find a way of so doing."

BRENNAN CJ: Ms Lydiard, I asked you where do we find the latest decision of the Court of Appeal which you say they gave afterwards.

MS LYDIARD: I am sorry, your Honour. That is the very judgment that is now being appealed from and that is the judgment - - -

BRENNAN CJ: Dealing with the question of the outstanding cross-claim?

MS LYDIARD: The judgment at page 86.

BRENNAN CJ: Yes, where do we find it?

MS WENTWORTH: Your Honours, I can help you: at page 110, point 5 of the application book, the court clearly notes that the costs of the cross-claim is still awaiting to be dealt with.

MS LYDIARD: Your Honours, at page 110 it is stated there that:

The order of Sully J therefore needs to be amended so that it is limited to the costs of Ms Wentworth's claim, as distinct from the cross-claim. The costs of the cross-claim will be a matter for the Common Law Division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought not to recover the whole of her costs in relation to the cross-claim.

Now, your Honours, at that stage the cross-claim had been dismissed.

BRENNAN CJ: That may be so but the question of whether or not to proceed to hear Ms Wentworth's appeal on the question of costs had been raised before the Court of Appeal. The Court of Appeal had considered it. The Court of Appeal went on to decide Ms Wentworth's appeal.

MS LYDIARD: Your Honour, it is our submission that the only reason they proceeded to consider and give a judgment was because of their knowledge of the cross-claim having been dismissed. The matter having been remitted back previously, and the order is at page 85 at paragraph 2(d) - paragraph 2(a), (b) and (c) relate to the interest question with respect to the $2,000 award of damages. Then (d):

referring the balance of the proceedings to the Common Law Division, to be dealt with in conformity with these reasons.

When your Honours consider that his Honour Mr Justice Handley said that there could be only one bite of the cherry, all matters had to be dealt with at once. Perhaps if I could take your Honours to page 105 - - -

BRENNAN CJ: We propose to put you on a further time limit of five minutes.

MS LYDIARD: Thank you, your Honour. Your Honours, at page 105, his Honour Mr Acting Justice Brownie states, at point 22:

Ms Wentworth sought an order that the cross-claim be dismissed, but we took the view that this application should be made to the Common Law Division; and we proceeded to hear submissions as to the other questions still to be decided, on the basis that the cross-claim was still on foot.

Now, your Honours, their judgment, ultimately, was given after the cross-claim had been dismissed. It is our submission that even though Mr Rogers did not continue to be represented on this appeal, he was still protected by the order of the Court of Appeal made in 1987 when the order was that the costs of the trial, that is, the original Maxwell trial, were to abide the outcome of the retrials. Now, it is our submission that it is clear from his Honour's statement there that at the time they gave judgment on 5 May 1995 with respect to the question of interest, they were awaiting some decision with respect to Mr Rogers' cross-claim before they would give a decision with respect to Ms Wentworth's argument on appeal, that is, in relation to the costs.

TOOHEY J: Why do you say it is clear?

MS LYDIARD: Because of what is stated here, your Honours:

we proceeded to hear submissions as to the other questions still to be decided, on the basis that the cross-claim was still on foot.

And they did not give judgment at that stage in relation to the costs. I have already taken your Honours to the statement where his Honour said that - - -

HAYNE J: But order 2(b) at page 85, I thought, drew a clear distinction between the costs of the action and the costs of the cross-claim. Perhaps I am mistaken.

MS LYDIARD: At page 85, your Honour?

HAYNE J: Page 85, order 2(b).

MS LYDIARD: Your Honours, it is my submission you have to read the orders together with the transcript as referred to on 17 August which I have already taken your Honours to. Then, historically, what happened was that having discussed the fact that the cross-claim was still alive and it was not a matter for the Court of Appeal to deal with Ms Wentworth's stay application, the question of that appeal on costs was reserved. There was no order made until 5 May 1995 with respect to Ms Wentworth's arguments on the costs themselves, as opposed to the interest question.

TOOHEY J: When was the hearing?

MS LYDIARD: The hearing was on 17 August.

BRENNAN CJ: The specific order was made on 5 May "varying the order for costs" - this is at page 114:

varying the order for costs made by Sully J on 24 June 1994, so as to limit it to being an order in relation to the costs of the action, as distinct from the cross-claim.

MS LYDIARD: Yes, but at that stage - - -

BRENNAN CJ: It is perfectly obvious that they had it in their minds at that time that there was a cross-claim in respect of which some question of costs had yet to be determined.

MS LYDIARD: But it had been determined, your Honour. It had been determined at that stage.

TOOHEY J: Why would the court solemnly embark upon an examination of the relevant rules and the appropriate category into which the costs order made by Mr Justice Sully might fall, I mean, unless it thought it was going to achieve some result by doing so.

MS LYDIARD: Perhaps I have not been clear, your Honours. After the Sully trial there was the appeal and there was a hearing on 17 August and there was a further hearing on 5 October, but on 12 September 1994 there was a decision about the interest rate that should be applied to the $2,000 award of damages. Now, after that order on 12 September 1994 was made, the matter came back on again for hearing on 5 October 1994. Now, at that stage - - -

BRENNAN CJ: Now, please answer Justice Toohey's question but otherwise your time has expired, Ms Lydiard. Have you answered Justice Toohey?

TOOHEY J: It is up to you, Ms Lydiard.

MS LYDIARD: Your Honour, would you mind asking me the question again?

TOOHEY J: That is very testing. I think my question to you was why did the Court of Appeal solemnly undertake an examination of the relevant rules, a discussion of the orders made by Mr Justice Sully and so on, unless they thought that by doing so they would achieve some practical result in relation to this litigation?

MS LYDIARD: Your Honour, my submission in relation to that is that at that stage Mr Rogers was no longer pursuing his appeal which related to the cost order. Ms Wentworth then - - -

TOOHEY J: I do not want to pursue it unduly but I do not think that emerges, does it, with any clarity from the judgment of the Court of Appeal?

MS LYDIARD: Well, no, it does not, but the fact is that at the time of the judgment on 5 May 1985 the cross-claim had been struck out for want of prosecution.

BRENNAN CJ: Yes, we know that.

MS LYDIARD: Prior to that occurring, Mr Rogers' costs were still protected, he believed, by the order of the Court of Appeal down below. Now, it is my submission that what the Court of Appeal did was heard Ms Wentworth's argument and reserved its decision until the outcome of the cross-claim, the outcome of the cross-claim being a dismissal for want of prosecution. It was then that they gave their judgment.

BRENNAN CJ: Thank you, Ms Lydiard. There is no merit in the respondent's application to adjourn the application for special leave when the Court of Appeal was fully aware of the outstanding issue of costs on the cross-claim. The motion is dismissed.

MS LYDIARD: May it please the Court.

MS WENTWORTH: I ask for costs of the application, your Honour.

BRENNAN CJ: That application will be reserved until the end of your application, Ms Wentworth.

MS WENTWORTH: Thank you, your Honour.

BRENNAN CJ: Ms Wentworth.

MS WENTWORTH: Your Honours, this is an application for leave to appeal from the judgment of the Court of Appeal delivered on 5 May 1995.

BRENNAN CJ: Ms Wentworth, we have read the judgments in the court below. We are familiar with the problems as referred to by Justice Priestley but you have a difficulty of persuading us that there is some question of general importance which justifies the quite exceptional grant of special leave to consider a question of costs only, based as they are, perhaps, on a specific provision of the New South Wales law.

MS WENTWORTH: I realise that, your Honour. Perhaps I could say this in opening: there are three judgments in the Court of Appeal. Mr Justice Priestley found I should be awarded full costs and Mr Justice Brownie and Mr Justice Handley found I should only be awarded half costs. We would put to this Court that Mr Justice Brownie's judgment fails in its entirety because he considered that the function he was undertaking was reviewing the discretion exercised by Mr Justice Sully. Therefore, we would say to this Court that the Court should look at the decisions in the Court of Appeal as if they are 1:1 and not 1:2 because Mr Justice Brownie's judgment clearly fails as a matter of law because he has directed himself entirely to the wrong question.

Therefore, if one looks at it in that circumstance, your Honours, the situation may well be considered to be in favour of the leading judge, which is Mr Justice Priestley's judgment, in that his Honour determined that full costs should be awarded on the proper principles. In that case, your Honours, it would be a total miscarriage of justice if this Court were either not to correct it or to perhaps send it back to the Court of Appeal to redeal with. There are several ways in which it could be dealt with. That is one of the ones which we would advance. When one of the judges in the Court of Appeal has clearly misdirected himself as to the exercise of his jurisdiction and as to his function and we get a split then left 1:1, it is a situation where this Court could consider that, within proper principles, leave to appeal would be automatically, in that case, given. I advance that matter initially.

Secondly, your Honours, the matter in relation to the application of general principle: I have supplied your Honours with the statutes from the various States or the rules under the delegated legislation which have been made according to the Supreme Court Rules of various States and Territories. Your Honours, there is a general scheme and Code which has been adopted within the various States which does vary from State to State but, basically, each Code comes down to a central issue and it is this: if certain jurisdictional limits, which are set by the Codes as to quantum of damages awarded, are not reached then there is a penalising effect under each of the general rules of the States that either costs be awarded at the lower rate, being in Victoria a County Court rate or, in New South Wales, at a District Court rate or in other jurisdictions a Local Court rate. If those matters are looked at, generally over all of the rules of the States, we have what might be called a general Code which is applied within the different States but which is a matter of general public importance as to the application of that Code for each of the States.

The basis on which each of the State Codes for the regulation of costs and the regulation of matters being conducted within courts is based is whether or not there is sufficient reason for a commencement in a higher court, whether it be in a Supreme Court when it should have been in, perhaps, a jurisdiction limited to a District Court, or whether it should be in the District Court with jurisdiction limited to, it might be the Magistrates Court of the Local Court. Each one of the States has adopted different Codes but each one of the States in adopting those different Codes adopts similar matters of principle. The similar matters of principle are based on really two very short matters which have been now introduced into the New South Wales Code under Part 52 rule 24(4A).

That is sufficient reason for commencing in the higher court and the test of sufficient reason is that there are reasonable grounds for an expectation of a receipt of a higher amount than is actually awarded in the final hearing. Now, each one of the Codes in different States, despite their different wording and despite their different applications, actually adopts that type of rule. In Victoria, under 63.24 a similar type of reasoning applies and has been applied very recently in a case which was the most recent case I could find on the adoption of these. It is No 8 in your Honours' group of cases and it is a case which is unreported called Timmerman v Choy. It is a matter decided in November 1995. At page 2, at about point - I have taken the Butterworths Unreported Judgments version. I hope that is satisfactory, your Honours. That particular rule and the way in which it is applied provides that County Court costs will apply in Victoria unless the court otherwise orders, depending on the jurisdictional limits.

Now, the general way in which that is applied is set out at the bottom of page 2, bearing in mind that now in Victoria there is now an unlimited jurisdiction as to costs of damages and personal injuries in the County Court, but the principle still remains the same. In respect of the Victorian case, at page 3 point 5, the rationale for the amendment of rule 63.24(1) is set out:

lies in a defendant's power to seek a transfer.....the criterion on which the rule turns (one-half) is inappropriate to an unlimited jurisdiction or infinity.

Now, your Honours, in this particular case that your Honours have before you, the defendant made no application as a matter of fact for a transfer to another court, and I think that that is one matter which has to be taken into account, is one of the matters which has not been in fact adverted to by any of the judgments but it is a matter which is not clearly in contest.

In Timmerman there was a full allowance on the basis of various principles which are set out but which really basically go to the fact that the applicant had sufficient reasons, that is, reasonable grounds for commencing in the higher court. Those reasonable grounds can be many and varied and as such may include such matters, as has happened in this case, the status of the particular applicant and the issues involved and psychiatric stress which had not been previously tested.

Now, your Honours, as I say, the jurisdictional question in each State is something which still stands to be determined by this Court as to the application of the rules, particularly in New South Wales in relation to that very specific rule to which I have drawn your Honours' attention, that is, Part 52 rule 24 and, your Honours, just skipping over subrule (3)(c):

in respect of proceedings commenced after 31st October 1980, but on or before 31st March 1983 -

this is the specific case to which I come -

(i) where he recovers a sum more than $3,000 but not more than $6,000, be only a half of the whole amount.

The total, with interest, was in the sum of about $3,680. Now, that is qualified by subrule (4):

In a case to which subrule (3) applies, if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court may order -

granting the discretion -

some greater part or the whole of the amount -

Now, (4A) gives a definition of what "sufficient reason" is:

it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule.

So, that "sufficient reason" is what founds the basis of judgments in different jurisdictions for an award of a greater amount than half-costs, costs on a County Court rate, costs on a different scale or rate and, your Honours, I can take you to each of the statutory rules in the States if that is helpful but I have provided them and I can simply say this: Victoria is Order 63 rule 24; Queensland is Order 91 - - -

BRENNAN CJ: I do not think you need go through them.

MS WENTWORTH: I would be grateful if that is the case, your Honour. I do not think I should need to but they are in such similar terms and the tests have been applied in the judgments in each State in such a way that the whole of Australia would benefit if a foundation and Code to establish what it was for certainty that people could look to going to a particular court on a particular basis without suffering the possible imposition of a penalty if they can demonstrate to the sufficiency of the court that they have sufficient reason for going to that court and they have reasonable grounds for believing that they will obtain a verdict in excess of a particular amount.

Your Honours, in Minehan v Clarke, back in the 1870s, which is the foundation for this particular rule, that principle was established and was the matter of judicial determination and that is where it emanated from. In this jurisdiction in New South Wales in Fairfax v Palmer the Court of Appeal determined that that was not a proper basis, that is the reasonable expectation to achieve more. So, what happened in New South Wales was then that Part 52 rule 24(4A) was then added to define the sufficient reason as being the reasonable expectation.

Your Honours, Fairfax is the first case that your Honours have in that bundle that I have provided. Your Honours, I do not wish to necessarily take you to the contents of each of these cases but that finding was set out by the then President, Mr Justice Kirby, as he then was, of this Court in New South Wales and he cites Minehan v Clarke at page 303, sets out what Chief Justice Stephen had had to say in that case, from D to G and the whole criteria of what an applicant might have justly expected as being the criteria and the basis to base sufficient reason, as his Honour then sets out at page 304, at about point B.

Now, in this case in Fairfax his Honour also considered a case called Toomey v John Fairfax & Sons, which is the second case in your Honours' bundles in which Mr Justice Hunt in fact determined that, at page 6 in that case, the case was one in which the applicant would have been justly entitled to expect a reasonably substantially verdict but he was not prepared in that case to say that he should have got a verdict in excess of $50,000. Mr Justice Hunt, at page 10, says:

Whilst that case was of sufficient importance as to warrant bringing the proceedings in the Supreme Court , it was not, in my view, of sufficient importance by itself and without more to entitle the plaintiff to his full costs. Nor can I conclude that, upon the same limited basis, the plaintiff was entitled to expect a verdict which exceeded $50,000.

So, his Honour in Toomey applied the test in Minehan v Clarke, now incorporated in the legislation, subsequent to the determination in Fairfax in 1987. So that clarification of the Code in New South Wales has now followed that judicial determination.

The clarification in terms in the Codes in the other States has not necessarily followed upon that determination but it does seem that if this Court were minded to grant leave, this would be a proper vehicle for a determination for the whole of Australia as to what constituted the proper grounds for commencing or continuing - and they are disjunctive - in different courts so that the loads of the Supreme Court could be relieved, so that the loads, in fact, of the District Court could be relieved, because the same principles will apply as one moves down the scale of courts.

If those principles are then properly set out for the guidance of the citizens of this State we will not have the sorts of problems that arise, and I will give your Honours an example: a case started in the Federal Court under the Trade Practices Act 1970 and cross-vested down to the Supreme Court of this State. It is sent down to the District Court - I am talking about an actual at the moment - because of the res jurisdictional limit in the District Court. At what scale of costs, once it gets heard, is there an award to be made?

Now, is it at the Federal scale; it is at the Supreme Court scale or at the District Court scale? Did they have sufficient reason for starting in the Federal Court? Should they have commenced in the Supreme Court initially? Should they have commenced in the District Court initially? So, there is no certainty at the moment as to whether you are going to be penalised, depending on the choice that you make of forum.

TOOHEY J: In one sense there would never be certainty, I suppose, because depending on the amount recovered, there would be an automatic entitlement to costs on a particular basis. It would then be a matter for the court's discretion.

MS WENTWORTH: Yes, but it is the application of that discretion and the penalty that may be imposed, depending on where one constitutes the action, where there is no certainty and the submission is that this is a proper vehicle for a discussion of that and a determination of that particular question to be considered so that that certainty could pertain because there is a very big difference in costs as they apply to modern litigation between half costs and full costs. There is a large amount in the particular circumstances of this particular case. We would submit that Mr Justice Priestley in his judgment in fact set out the right tests in the application of the statute as it applies in New South Wales and that Mr Justice Handley, in taking into account certain other matters, in fact got it wrong. We say that we are entitled to disregard - - -

TOOHEY J: Ms Wentworth, are the amounts in the rule still the same now as they were in relation to your litigation?

MS WENTWORTH: Yes. I am sorry - - -

TOOHEY J: So, it is $7,500, is that the figure?

MS WENTWORTH: Yes, your Honour, the amounts are set out in the - - -

TOOHEY J: I do not want you to take us through them.

MS WENTWORTH: Yes, it was (2)(c)(i), I think, because that is the time frame. It gives 1980 to 1983 and it gives you a commencing time frame and it was between $3,000 and $6,000 for that time frame allowed you half costs.

TOOHEY J: But over $7,500, as I understand it, you are entitled to full costs.

MS WENTWORTH: Yes, entitled to full costs. There is another test which is applied and, again, it is not consistent: that under rule 24(5) there is a question as to whether one or two counsel should be allowed, depending on the amount that you, in fact, achieve and again, this is a discretionary determination. In this case the determination was activated in my favour by both Justice Sully and confirmed by the Court of Appeal, that in relation to the Sully trial two counsel should be allowed. Now, that is again a test and measure, we would say, of the complexity of the case and whether it was proper to commence the litigation in a higher court rather than in a lower court.

There is a third position which pertains here and it is this: where there is a cross-claim on foot as well as a claim and where the cross-claim locks an applicant into a particular forum, which I was locked into and I do not think it is contested, until at least 8 April 1994 when I had a hearing date set for April which was then moved in March to June, I was left with that forum as being the only forum in which I could, in fact, litigate by the actions of the defendant. In that case, it would be inequitable if I were then penalised by having been locked into that forum by the action of my opponent when I succeed to only being awarded half costs when I had no choice but to stay, in fact, where I was. I see my time has expired.

BRENNAN CJ: Thank you, Ms Wentworth. Yes, Ms Lydiard.

MS LYDIARD: Thank you, your Honour. Your Honours, we would submit that this is not a proper question for the High Court to be dealing with in view of the fact that the costs of the Supreme Court are the province of the Supreme Court. The rules concerning costs in the State of New South Wales are made by a rules committee pursuant to section 123 of the Supreme Court Act and it is appropriate that the final determination of the question as to the construction of such a rule be made by the New South Wales Supreme Court. The rule-making power is provided by section 124 of the Supreme Court Act and any Supreme Court rule in force may be altered, added to or rescinded by the rules committee pursuant to the reasons as provided in the section.

They can change the rules whenever they want to and the only exception being certain rules under the Legal Profession Act. Now, your Honours, it is our submission that the question of costs - and particularly in view of the fact that the rules committee can change them whenever they want to - just simply is not a question of sufficient public importance for your Honours to have to deal with.

TOOHEY J: That argument would have more force, I think, if there were three judgments of the court below which proceeded on the same footing and while this Court might have reservations about the approach taken and the result arrived at, it might be fair to argue that these are essential matters to be left with the Supreme Court. The problem with the present one, Ms Lydiard, is I think that we had three judgments each of which proceeds in a different direction to the others. It would be very difficult to extract any sort of ratio, I think, from those judgments as to the operation of the rules to which our attention has been taken.

MS LYDIARD: Yes. I hear what your Honour says but we would submit that the rules, Part 52 rule 24, cannot be read in isolation. They must be read in conjunction with section 76 of the Supreme Court Rules which rules costs shall be in the discretion of the court. Now, certainly it is our submission that the court has jurisdiction to make whatever order for costs is fair, having regard to the interests of the parties and rule 76 says that it is in the discretion of the court but, of course, Part 52, rule 4 states:

the powers and discretions of the Court under section 76 of the Act shall be exercised subject to and in accordance with this Part.

And Part 52 does place limitations on the costs that can be awarded to facilitate litigation being brought in the correct court, consistently with the status and function of the various courts and the nature and complexity of the matter in question, and this is clear from the express words of Part 52. Part 52 rule 24 effects these objectives by disentitling plaintiffs to payments of their costs when the sum awarded in damages falls below the prescribed amount.

TOOHEY J: But no one is arguing about that. I mean, that is perfectly clear. The question is on what footing should the courts discretion to award costs higher than those that the rules would automatically attract be exercised. Perhaps you could say or distil from the judgments below on what footing that discretion is to be exercised.

MS LYDIARD: There is no doubt that both his Honour Mr Justice Handley and both his Honour Mr Justice Brownie were of the view that the size of the verdict was relevant in exercising of the discretion. Now, it is not clear as to Mr Justice Priestley's position on the issue though it would seem that what he was saying was that once Ms Wentworth fell within the rule 24(3)(c), it says:

in respect of proceedings commenced after 31st October 1980, but on or before 31st March 1983:

(i) where he recovers a sum more than $3,000 but not more than $6,000 -

what he is saying is that once she falls into that category, then (4) applies, and in the case to which subrule (3) applies:

if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court may order that the amount of the costs payable to the plaintiff be some greater part or the whole of the amount which would be payable to him apart from that subrule.

Then you go to (4A):

Without limiting the generality of subrule (4), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule.

So, clearly, if they find that Ms Wentworth had reasonable expectations of at least getting $3,000, she does fall within that rule. But then it says, "they may order" and that is where the discretion comes into play.

As I understand Ms Wentworth's argument, she says that that is the only thing the court can take into account. When I say "thing": the only consideration the court can take into account is whether she had a reasonable expectation of achieving $3,000. We would submit that if that were the case, subrule (4) would read, "the court must order that the amount of costs payable to the plaintiff be some greater part" and then, obviously, they would have to decide what amount. But the "may" is there and it is my submission that the use of the word "may" raises the discretion and the court itself has a general discretion as to costs.

Even before, even if a plaintiff is totally successful, a court does not necessarily have to award costs. There are various other factors that can be taken into account. Indeed, I would refer to the court's discretion concerning costs is sufficiently wide to deprive a successful party of costs and to order the successful party to pay costs of the unsuccessful party. The discretion has to be exercised judicially and cannot be exercised against the unsuccessful party except for some reason connected with the case. This is where the discretion comes in. It is my submission that what the rule means is that Ms Wentworth, if there is to be an order for costs, having been successful, is entitled to half her costs because she falls within rule (3)(c). Then the court may, in its discretion, order more if it so finds. Then that discretion must, we would say, be the discretion that the court can exercise under section 76.

Generally speaking, it is our submission, that the courts have an unfettered discretion with respect to the ordering of costs. The general conduct of the parties in litigation is a relevant consideration to the judicial exercise of the discretion in relation to costs; if serious claims are made and not established the court may take account of those claim in deciding an order for costs, and that was the situation in this case. I refer your Honours to Hermann v Charny (1976) - - -

TOOHEY J: With respect, that, I think, is missing point to some extent. The breadth of the discretion is perhaps not in issue. The question really is the one, as I see it, that was addressed by Justice Priestley, "Could it be said that there were reasonable grounds for bringing the action in the Supreme Court and proceeding in the Supreme Court?" Now, there may not have been reasonable grounds but the difficulty with the judgments below is that, with the exception of Justice Priestley, they do not seem to have looked at the matter on that footing.

MS LYDIARD: Both Mr Justice Brownie and Mr Justice Handley found that the matter should have been started in the District Court. At page 104 of his Honour Mr Justice Handley's judgment, he says - in the page prior to that he does an analysis of the currency in relation to what the figure would have been back in the early 80s when Ms Wentworth commenced her case and what the currency is now, and then he says, at the bottom of 103:

The verdict of the jury was awarded in "the money of the day", as was the pre judgment interest. The judgment should be compared with the upper limit of the District Court's jurisdiction at the time proceedings were commenced expressed in June 1994 dollars. Only in this way can like be compared with like. When this is done it can be seen that the judgment was for less than 10% of the limit of the District Court's jurisdiction. The trial Judge considered whether the case was "appropriate for litigation in the District Court" and held that it was because the issues of facts and law were straightforward. In my opinion it follows that the proceedings should have been commenced in that Court and therefore I would not make any order under subr (4). In the result the plaintiff is only entitled to half her costs.

TOOHEY J: That is a conversion to compensate for changes in the value of money. Is that the sort of discretion that the rules require the judge to exercise? Can I just put to you what Justice Priestley says at the top of page 98, having looked at a number of matters:

Thus, at the time of commencing the proceedings, and thereafter, the plaintiff had solid reason to expect that her account of the assault would be corroborated by an independent solicitor, who would say that in the presence of the defendant she told him the details of the assault which the defendant, either by words and/or conduct, admitted.

Now, that might be open to challenge but that is Justice Priestley's not starting point but against that finding, as it were, his Honour then goes on to look at the rule and says at line 18 on that page:

It seems to me the plaintiff had reasonable grounds for expecting recovery in excess of $7,500 -

Now, if the other judgments had proceeded on the footing that there were no reasonable grounds for expecting an award in excess of that amount, one would have a clear, as it were, statement of opinion by the members of the court below, although arriving at different conclusions, but that is not really what we have here.

MS LYDIARD: His Honour Mr Justice Brownie did consider the point also and he positively stated at page 113, point 14:

The fact that in this case there was on foot from 1985 to 1994 a cross-claim that was obviously a claim properly brought in this Court, does not seem to me to tip the scales in the plaintiff's favour. If, as I think follows from the jury's verdict, she should have sued in the District Court, then either the cross-claim would have been brought in the District Court, or there would have been separate proceedings brought by Mr Rogers in this Court. Additionally, if, as seems likely, the plaintiff obtains an order for costs of the cross-claim, then she will recover a great deal of her costs on the basis appropriate to the cross-claim, whatever order is now made.

But both their Honours, Mr Justice Handley and his Honour Mr Justice Brownie, did consider the question of whether it should have been brought in the District Court and so found and that would seem to be an appropriate exercise of discretion, that discretion having been activated by rule (4) and then clarified to some extent by rule (4A).

Indeed, your Honours, with respect to his Honour Mr Justice Priestley's argument, we would submit that there is a very real flaw in his argument, and that is at page 95 where he states:

Again, I do not think it could have occurred to anybody when Sully J gave his decision on 8 April 1994 ordering separate hearings that Ms Wentworth should apply to have her claim litigated in the District Court. I think this was because the apparent strength of the plaintiff's case, which I will mention subsequently, was known to all concerned.

At this stage, Mr Rogers had been acquitted at a criminal trial and had been successful in the prosecution of his case before his Honour Mr Justice Maxwell and that, in itself, we would submit, is a flawed argument in his Honour Mr Justice Priestley's argument. But what we do say is that because of the discretion that the court has with respect to the question of costs, the discretion that is raised by or activated by rule 24(4) and (4A) must be read with the discretionary powers that the court has under section 76 and that it is not a question for the High Court to determine in terms of the exercise of that discretion because it is an unfettered discretion and it is clear, in our submission - - -

TOOHEY J: I do not understand that. I mean, what is an unfettered discretion? It must be exercised according to some - - -

MS LYDIARD: According to justice, your Honour, but within that concept of a discretion according to justice then their Honours, in our submission, properly exercised their discretion. We would submit that there is no error of law in the exercise of the discretion as exercised by their Honours in that judgment.

TOOHEY J: I agree, it is an unusual situation for a question of costs to attract the attention of the Court, but the point here is whether or not there is some question of principle involved in the way in which the members of the Court of Appeal approached the exercise of their discretion.

MS LYDIARD: Yes. Your Honour, as I understand Ms Wentworth's argument, the only consideration is whether, in fact, under (4) and (4A) the court finds that she had a reasonable expectation of receiving $3,000 and, thereafter, the court has no power or discretion to give her anything but all of her costs.

TOOHEY J: I am not sure that she put it as strongly as that; she may have.

MS LYDIARD: Your Honours, we would submit that this is not a proper question for special leave to appeal. May it please the Court.

BRENNAN CJ: Ms Wentworth.

MS WENTWORTH: Your Honours, in the first judgment of 12 September - and I think that it is perhaps helpful to look at that - - -

BRENNAN CJ: What page is this, Ms Wentworth ?

MS WENTWORTH: I am sorry, your Honour, I have just turned it back. At page 78 and page 79 of the application book, perhaps starting at the bottom of page 77, at line 27, what the Court of Appeal decided in determining its interest percentage; it had a look at what was before Mr Justice Sully and it said that:

As appears from Sully J's summing-up -

the jury had very little evidence given to it concerning the effect upon me of the assault and what happened afterwards. It finds:

that the figure of damages fixed by the jury was referable to the assault itself and the period immediately after the assault.

That is at lines 4 and 5. Turning the page, at about line 11, referring to the summing up, which is in the application book at pages 39 and 41:

this was one of the rare cases where what the plaintiff had put before the jury in regard to damage was not only very brief, but was quite specifically limited to the assault and its immediate aftermath.

Now, your Honours, when Ms Lydiard puts to you that Mr Justice Priestley got it wrong in relation to the strength of the plaintiff's case, because Mr Rogers had been acquitted and had been successful before Maxwell, your Honours have to take, obviously, regard to the judgment which is judgment 5 in your Honours' lists, Wentworth v Rogers, No 10, the appeal judgment, in which it was found, to put it in a nutshell, that the judgment before Mr Justice Maxwell was obtained by fraud, that is, the withholding of material evidence by the prime witness in the case. In relation to the acquittal, Mr Justice Sully, in fact, on his severance application, at page 14 of the application book, starting at line 10:

If it be a reasonable possibility that the trial did indeed miscarry -

this is the criminal trial in which he was acquitted -

then there is apparent force in the proposition that it would be unjust to permit, in effect, a tainted verdict of acquittal, to be used by the respondent not only as a sword against further prosecution upon the same charges, but also, so to speak, as a weapon to be turned positively against the applicant in proceedings for malicious prosecutions.

Those matters should be properly drawn to your Honours' attention by counsel and not the submission that was made as to Mr Rogers' apparent success, and that "tainted acquittal", your Honours, is evidence of, one might say, further fraud on the court which has unfortunately tainted these proceedings for nearly two decades.

Now, Mr Justice Priestley quite correctly sets out the strength of the plaintiff's case. He is the only one who in fact exercises the discretion upon the proper principles as directed by Part 52 rule 24. Neither of the other judges in fact construed the rule and neither of them, in fact, had proper regard to the principles upon which they must exercise their discretion if they are to come to a proper determination.

I did not put, your Honour Mr Justice Toohey, as highly as was put by Ms Lydiard that that was the only thing that had to be had regard to but the structure of the rules under Part 52, under subrule (4) is that the exercise of the discretion must be done in accordance with this part, in accordance with Part 52. That is the discretion to be exercised under section 76.

So that when we come to look at the specific matters which the court was required in fact to look at it, then it was required for Mr Justice Handley and Mr Justice Brownie to apply their attention to the rule to consider it and to apply it in its proper terms to exercise their discretion. On that basis, your Honours, in the specific terms of this case, I would say that I have, unusually, a proper foundation for an application for leave.

BRENNAN CJ: This is an application for special leave to appeal against an order made by the Court of Appeal of New South Wales which, in substance, affirmed the limited order for costs made by Mr Justice Sully when his Honour entered judgment on a jury's verdict in favour of the applicant. The applicant is able to show that a fairly similar criterion is adopted for enlivening the discretion exercised by the Supreme Courts of the States at a rate higher than the District Court scale where a plaintiff's verdict does not exceed the amount recoverable in the District Court. This case is said to involve a definition of that criterion.

However, that criterion, so far as it is capable of definition, is not a question of sufficient importance to warrant a grant of special leave. If special leave were granted, an appeal would require not the definition of the criterion but the detailed consideration of the facts in proceedings which are notable for their length and procedural complexity. For that reason, it would not be desirable to grant special leave in order to consider whether the discretion was properly exercised.

Moreover, only one of the judgments in the Court of Appeal found it necessary to address the nature of the criterion. The case is not one, therefore, which warrants a grant of special leave, and special leave will be refused.

MS LYDIARD: Your Honour, the respondent asks for costs.

BRENNAN CJ: What do you say about the costs in relation to the first application.

MS LYDIARD: Your Honour, the respondent was unsuccessful in the first application. There is not really much I can say in relation to that. Your Honour, we will concede that, perhaps, in the situation, each party pay its own costs.

BRENNAN CJ: What do you say, Ms Wentworth?

MS WENTWORTH: Your Honour, I would agree with each party paying its own costs of the totality of the application. I understand that is what Ms Lydiard is putting.

BRENNAN CJ: Very well. The order will be that each party will pay its own costs in relation to both applications that have been heard here today, that is, the costs of and incidental to each of those respective applications.

AT 3.08 PM THE MATTER WAS CONCLUDED