Sanders v Snell S49/1997 [2000] HCATrans 304 (5 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S49 and S142 of 1997

B e t w e e n -

WILLIAM WINTON SANDERS

Appellant

and

LISLE DENIS SNELL

Respondent

Application for review of taxation

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 JUNE 2000, AT 9.02 AM

Copyright in the High Court of Australia

MR A.G.H. COOK, QC: My it please your Honour, I appear for the applicant in both these summons which have been brought in an application for review of the certificate of costs granted for the application for special leave and the appeal in the High Court. (instructed by Adrian Cook, QC)

MR P.R. GARLING, SC: May it please the Court, I appear for the respondent in both matters. (instructed by McIntyres)

HIS HONOUR: Yes, Mr Cook. There was, in the summons, also an application for a certificate. Is that still proceeding or not?

MR COOK: That is so, if the Court pleases. Yes, I should have drawn your Honour's attention to that. The certificate of costs is still sought under the Federal Proceedings (Costs) Act 1981 , under section 6 of that Act.

HIS HONOUR: Is it common ground, in so far as this is relevant, that such a certificate can be granted in such a case? Have you looked at this, Mr Garling? It does not really concern you but - - -

MR GARLING: I have not, because we wish to make no submissions in respect of whether or not the Court ought grant that certificate.

HIS HONOUR: I have always felt uncomfortable - I have had one of these matters before - in a sense, one should have the Attorney-General's Department here to defend the funds, I suppose, but anyway, we will work that out after we have dealt with the first matter. Yes, Mr Cook.

MR COOK: May it please the Court, the two applications really, if it is convenient to your Honour, could be dealt with together because they really raise the same matters that I wish to argue in respect of each. They are supported by almost identical material in so far as the affidavit in support of my client which I would present to your Honour. The two certificates which were granted by the Taxing Master related to a certificate for some $16,000, if I use round figures, your Honour, in respect to the application for special leave to appeal and a certificate for some $48,000 in respect of the appeal in the High Court itself, and caught up in that taxation of costs was the order that related to the order for payment of costs of the application for special leave to cross-appeal which was not granted by the High Court.

The affidavit in support of the summons is that of the respondent to the application for special leave and the appeal in the High Court, Lisle Denis Snell. Does your Honour wish me to read that affidavit?

HIS HONOUR: No, I have read that affidavit. I assume there is no objection to the affidavit, is there?

MR GARLING: Yes, there is, your Honour. I invite your Honour's attention to the Rules which preclude the admission of evidence on these proceedings which was not before the Taxing Officer, unless your Honour otherwise directs.

HIS HONOUR: Yes, what is that rule?

MR GARLING: The rule is Order 71. I need to take your Honour to two rules. The first is rule 89 of Order 71 which is the rule under which these proceedings are brought.

HIS HONOUR: Does that identify the nature of the proceedings?

MR GARLING: Yes, it is a review, your Honour.

If a party is dissatisfied with the certificate.....of the taxing officer as to any item or part of an item objected to under rule 87 of this Order, he may, within fourteen days.....or such other time.....apply to a Justice in Chambers for an order to review the taxation as to that item or part of an item.

89(2) The Justice may thereupon make such order as the Justice thinks just.

Then rule 90 is headed, "Evidence on Review".

An application under the last preceding rule to a Justice to review the taxation shall be heard and determined by the Justice upon the evidence which has been brought in before the taxing officer, and further evidence shall not be received upon the hearing of the application unless the Justice otherwise directs.

HIS HONOUR: Yes. I did glance at the affidavit this morning and subject to anything you say, it just seems to set out the history of the matter. I take it that in so far as that is concerned, I could simply treat that as submissions before me.

MR GARLING: Yes. Of course, your Honour - - -

HIS HONOUR: But are there any matters of particular additional facts that you feel add to the evidence?

MR GARLING: Yes, your Honour. Paragraph 10 is an assertion that two-thirds of the time taken to dispose of the application was related to what the deponent says were unsuccessful grounds of appeal.

HIS HONOUR: Might that not be seen as simply an elaboration of the point that has been put before the Registrar in general terms?

MR GARLING: No, your Honour, because that is a piece of factual evidence from which no doubt my learned friend will say to your Honour, that is the way your Honour comes to approach the discretionary matter. Secondly, paragraph 16 introduces issues which are either irrelevant or argumentative and matters which we would challenge, whether or not he would suggest injustice and hardship.

HIS HONOUR: Yes.

MR GARLING: So they are the two particular paragraphs, your Honour, for those reasons. I agree that the balance of the material is essentially matters that could be considered to be argument or submissions.

HIS HONOUR: Yes. What do you say about that, Mr Cook.

MR COOK: May it please your Honour, if I may submit so far as paragraph 10 is concerned, it is a matter really - your Honour of course was a member of the Court who sat on the appeal and it is a question of simply elaborating the points which have been raised earlier as to the nature of the arguments presented and whether the time of the Court was taken in what way or taken up with these particular grounds being raised before it and whether that is a matter to be taken into account in the exercise of your Honour's discretion. If, indeed, your Honour, that matter was not formally presented to the taxing master at the time, your Honour, because the objections were brought in, the submissions which form part of this affidavit were placed before the taxing officer at that time for her consideration, I would respectfully submit that technically, your Honour, that is in breach of the provisions of the rule that my learned friend has just drawn your Honour's attention to, that your Honour would permit that material to be placed before your Honour. Really, it is a matter of submissions, becauseyour Honour was at the appeal and both counsel of course present before the Court were involved in the conduct of the appeal and I ask your Honour to permit that material formally to come before your Honour. It creates no prejudice or forms no prejudice in any way.

HIS HONOUR: Could I just ask you to pause there. In relation to the point that you have made concerning my being a part of the Court for the purpose of the appeal, I assume that neither party has any objection to my sitting on this application. I suppose we could, if necessary, have another Justice who was not part of the Court for the hearing of the appeal to sit in review of the Registrar, because I assume, with a review, I am simply taking into account those matters which are on the record before the Deputy Registrar when she taxed the costs and not taking into account anything other than appears on the face of the orders of the Full Court and the reasons of the Court, so I feel a bit disinclined to be taking into account matters of my own recollection of the amount of time that was spent in argument, because that is a matter which, had you had assigned today a Justice who had not participated in the appeal, he or she would not know.

MR COOK: Your Honour, I certainly take your Honour's point very clearly. I have no intention of relying on any matters which arose, as it were, in the course of the appeal. I have no objection to your Honour dealing with the application.

HIS HONOUR: Is that your position too, Mr Garling?

MR GARLING: Yes, your Honour, we certainly do not object to your Honour dealing with the application.

HIS HONOUR: Thank you.

MR COOK: Your Honour, I had simply sought leave to rely on this matter as a statement in support of the application, endeavouring to quantify the time which was taken on the appeal by the arguments on which we say, in our submissions, that the appellant was essentially unsuccessful and I ask your Honour to permit that material to come before your Honour.

HIS HONOUR: What do you say in relation to paragraph 16 which is also objected to?

MR COOK: Your Honour, that is a general matter; more a matter of submissions than actual evidentiary matter, your Honour, that would arise from the result that the conduct of the appeal would create certain results for my client if he was required to pay the costs which had been certified in respect of those matters, your Honour. It is more argumentative then evidentiary, your Honour, and it would be a matter on which I would be submitting, ultimately, is a matter more of argument than evidence. If my friend raises that objection, your Honour, I do not think I could formally oppose it. It is certainly more argumentative than evidentiary.

HIS HONOUR: You withdraw paragraph 16?

MR COOK: Yes, your Honour, for the purposes of enabling the matter to be able to proceed before your Honour.

HIS HONOUR: Before me are two summonses for review of a decision of the Deputy Registrar who taxed bills of costs in relation to an order for costs arising out of an application for special leave to appeal and an appeal to the Full Court of this Court. At the commencement of the proceedings, counsel for the plaintiff sought to rely upon and to read an affidavit which was filed in respect of each summons. The affidavit contains material, some of which appears to be factual material which, it is said, was not before the Deputy Registrar.

In conducting the review, Order 71 rule 90 of the High Court Rules confines the factual material before me to that which was before the taxing officer unless I otherwise direct. Most of the matter in the affidavit, it is conceded, was matter which was in the nature of argument and which could as easily have been included in written submissions. Sensibly, therefore, the defendant did not raise objection to my reading most of the paragraphs of the affidavit. However, two paragraphs were objected to. One, paragraph 16, has been withdrawn. The other, paragraph 10, concerns a statement relating to the amount of time estimated to have been taken to dispose of arguments upon particular issues on which, it is said, the defendant was unsuccessful in his appeal to this Court.

The purpose of the rule appears to be to confine a review such as the present to the materials that were before the taxing officer. That purpose affects the way in which the Justice conducting the review should approach the determination of the matter. I consider that I ought to conform to the requirement of the rule and confine myself to the evidence which was before the taxing officer and that evidence alone. I see no reason otherwise to direct.

On the other hand, it will be open to the plaintiff to point, in general terms, to the issues which were debated in the application for special leave and in the appeal. However, the endeavour to add a factual element concerning the estimated proportion of time that was taken on the hearing in this Court is rejected. I therefore reject paragraph 10. I note paragraph 16 has been withdrawn. I will read the other paragraphs of the plaintiff's affidavit simply as argument in support of the plaintiff's contentions before me now.

MR COOK: May it please your Honour.

MR GARLING: May I just remind your Honour that there are two affidavits but they are in identical terms so naturally your Honour's ruling will apply to both.

HIS HONOUR: That ruling applies to both.

MR GARLING: Thank you, your Honour.

MR COOK: I was accepting that without question, may it please your Honour.

HIS HONOUR: Is there any other material that I should have? I do have the written submissions of both parties and I have looked at both of those.

MR COOK: What was part of the affidavit, may it please your Honour, was the submissions by the respondent on the taxation of the costs and these were actually presented to the taxing master. They were the material on which I moved.

HIS HONOUR: I take it there is no objection to my having those, they having been before the Deputy Registrar.

MR COOK: I did include in the affidavit, with respect, so that the Court would be aware of the opposition, the - - -

HIS HONOUR: Yes, I found the affidavit helpful as it set out the background of the matter since the hearing of the appeal.

MR COOK: Yes, and it set out also the matters which were raised by the respondent to this application and it is headed "Submissions of appellant on the taxation of costs" and these were, of course, also before the taxing master.

HIS HONOUR: I would just like to get very clear in my mind, Mr Cook, my role in relation to the review. It is not often that a Justice is involved in a review of a taxing of costs question. Doubtless it has arisen in 100 years but I assume that my function is to simply look at the decision which the Deputy Registrar has made, to look at her reasons and, in accordance with usual principles of review of administrative decisions, consider whether there is some error of law on the face of the reasons which require the intervention of the Court, bearing in mind that they are reasons dealing with a decision which would be categorised as a decision of a practice or procedural kind. Would that be a correct approach or not?

MR COOK: Yes, with respect, your Honour, I think your Honour has summarised the situation and what I would be endeavouring to take your Honour in due course of time to, I had endeavoured - and I think your Honour has had before you, because it was part of the affidavit, the list of authorities which I had presented to the taxing master, intending, if the occasion arose for argument and submissions, that those authorities would be put to her. That did not become a course which was apparently acceptable at the time, the objections having been put in. Those authorities were ready to be presented to her, your Honour, and I have included them in the affidavit and I think your Honour - - -

HIS HONOUR: I have not had time to read those authorities and if I need to, I will do so. But do they say anything different from what I have said, in essence?

MR COOK: No, with respect, I was about to say to your Honour that my learned friend has provided me with an authority which I was not aware of, otherwise I would have included it in the authorities presented to the taxing master. That is the Australian Coal and Shale Employees' Federation and Another v The Commonwealth and Others [1953] HCA 25; 94 CLR 621. With respect, your Honour, I think it does throw light on the principles which should be taken into account.

HIS HONOUR: May I ask, were the certificates of taxation ultimately signed by the Deputy Registrar?

MR COOK: Yes, your Honour. I do apologise. At the time the affidavit was put together, those certificates were not available. May I formally tender before the Court the certificates of taxation with respect of - - -

HIS HONOUR: Is there any objection to my receiving those?

MR GARLING: Not at all, your Honour.

HIS HONOUR: Very well.

MR COOK: I am sorry, your Honour, that is something I should have attended to immediately and it was just overlooked.

HIS HONOUR: That is all right. I just wanted to make sure that that which is, I assume, the foundation for my jurisdiction is before me.

MR COOK: Yes, indeed, I am very grateful to your Honour for reminding me. It was a complete oversight on my part.

HIS HONOUR: Could I just have a look at what Justice Kitto - it is always such a pleasure to read what his Honour said - and it might be helpful just to look - - -

MR GARLING: Your Honour may find - his Honour deals with a couple of issues. It would seem to me that the statement of principle commences at the bottom of 626. There was an issue in this case as to whether the certificate of taxation was or was not regularly signed. His Honour dealt with that.

HIS HONOUR: I do not have that problem.

MR GARLING: Your Honour certainly does not have that problem because the issue in that case was whether the Deputy Registrar had rushed to sign the certificate, so to speak, but that is not the case here.

HIS HONOUR: No. I will start, therefore, at the bottom of page 626. Do you mind if I just take a minute to acquaint myself with this as I embark upon the proceedings.

MR COOK: Would your Honour also allow me a moment because my learned friend handed me this case as I came into Court - - -

HIS HONOUR: Yes, of course, we will both read it, Mr Cook. Years ago, Mr Cook, you and I used to get medical reports like this and read them very rapidly.

MR COOK: Indeed, your Honour, one learns to read things very quickly.

HIS HONOUR: We will do it again. Yes, have you had time to read that, Mr Cook?

MR COOK: Yes, your Honour, I have. I think it really restates the type of principles, or course, which do apply. There is clearly, on page 628, from about point 3 on that page down to about point 8 or 9, right through those authorities that are quoted there, clearly matters for consideration in any determination as to whether the discretion has miscarried. I appreciate the burden that is upon me, your Honour, and I do not resile from that in any way. The High Court itself having made a general order for costs, the situation is, of course, your Honour, that a general order for costs made by the Court on appeal is really - then it comes to the taxing master to determine what amount of costs should be payable and, in those considerations, your Honour, there are clearly, as set out in the submissions which I have placed before your Honour, the relevant considerations as to whether or not the time of the Court was taken up with unnecessary or unreasonable time, et cetera, spent on arguments upon which I would be saying, your Honour, would be characterised by arguments which were not successful and which were, as the submissions would indicate, your Honour, there were points not taken before the Federal Court or in the application for special leave or, again, before the High Court.

HIS HONOUR: Can I tell you the problem I have with the submissions and then you can perhaps deal with the problem that I have. Where the defendant, as I shall call him, suffered a judgment in the Full Court of the Federal Court, the only way the defendant could remove that judgment was by seeking special leave to appeal to this Court, getting the appeal heard and securing an order from this Court. Otherwise then, in law, that judgment will speak and the dispute between the parties has merged in the judgment. Therefore, he had to seek special leave to appeal and special leave is only granted if there is some matter of general importance or a matter of injustice in a particular case, all the grounds that are set out in the Judiciary Act. He got through that barrier and then he comes up to the Court. Then, it seems to me, this Court has the matter before it under the Constitution. It has to deal with the matter in its totality. It cannot simply cut up bits and pieces. Unless it is limited, the grant of special leave, in a particular way, it has to deal with the issues on the appeal and, if there is an application for leave to cross-appeal, cross-appeal that is before it, and has to do it according to law because the matter is in this Court.

Therefore, in a sense, that explains why, in my mind, subject to what you say, the Court ordinarily just makes general orders as to costs because it does not delay to work out how much time was spent on this issue or how much time was spent on that issue because, by definition, the matter has been lifted into the Court and it has to be disposed of according to law. Normally, the marginal costs over and above what would be incurred in removing that judgment, which is such a burden on the party, are insignificant in comparison to the total costs of getting the matter into the Court. You do not, as it were, cut up bits and pieces of the issues; you simply deal with the entire question that is before the Court.

So that is the problem I have with your notion that you tarry to work out how much time is spent on this issue or that, because unless the defendant could get into the Court, he was forever burdened by a judgment from which he has now been relieved. He may end up in no better position after the retrial. I do not know. But unless he could get the judgment removed, that was the end of the matter. That is why, it seems to me, one really has to look at the question globally, and that is what I take the Court to have done by its general order. I take, also, the Deputy Registrar's taxing officer to be bound to work within the parameters set by that order, and especially as you had made a special submission to the Court which, on the face of the record, was determined by the order as to costs expressed in general terms.

Now, I just mention those matters, not to indicate any concluded view, but simply because that is my immediate response to the issue, having regard to what was put at the hearing, the orders that were made and the reasons which the Deputy Registrar has indicated for the conclusion which she reached.

MR COOK: Yes, I fully understand and I am grateful for your Honour making that so clear to me and what I will have to deal with, of course, and which I intended to deal with, your Honour. The situation that your Honour has adverted to obviously requires consideration of whether, in the circumstances, the obligation or the necessity for the appellant, as it were, to remove the original judgment as not being appropriately made is of course a major consideration, your Honour, in his favour, that unless he took the proceedings, he had no real opportunity to have that effected in his favour. I am fully aware of that, your Honour.

However, in his application for special leave, he did not seek, of course, to have any ground of that application for special leave relating to the alternative ground of a grant of a new trial on the ground that the Federal Court had misdirected itself. He sought to have the cause of action, as it were, knocked out entirely as being an inappropriate cause of action not being supported by law on the factual evidence of the failure to grant procedural evidence.

So there was no application for a new trial brought by the appellant and, if one carefully studies the application for special leave and also the substantive grounds of appeal in which he was required to only bring to the High Court those grounds of his application for special leave and the orders that he sought in that application, unless the Court had otherwise ordered, which it did not, there was no application for a new trial on the ground of misdirection. As was said, I think it was in Wickstead's Case, your Honour, which I refer your Honour to in the list of authorities, that if a new trial application had been sought in the application for special leave, in all fairness and propriety for consideration of the matter, your Honour, it may well have not required the hearing in the High Court of the appeal because that ground having been raised as a clear alternative ground, consideration could have been given to it, that what it was seeking to establish as necessary to be done, that is to set aside the judgment of the Full Court on the matter because of misdirection, could have obviated the bringing of the appeal to the High Court.

HIS HONOUR: I suppose the thinking might then be, well, if you went back to a retrial, you might end up in much the same position on a different cause of action and, therefore, we will let things lie where they fall. But the fact is that that was not raised by the defendant, but it also was not raised by you, as being the best that the defendant could hope for and, therefore, the Court did not consider it. But once special leave was granted, the Court cannot simply say, well, we are only going to deal with one particular issue, we have the matter before us, and we have to deal with - - -

MR COOK: I do understand what your Honour has put to me and I understand the difficulties that face me, but the reality of it is, as with the application for special leave as it was presented to the High Court, on behalf of the respondent to that application, the original plaintiff, your Honour, he has to meet the arguments as they are presented, either that there was no cause of action or otherwise. He is entitled, your Honour, to rely on any matter that is open to him to rely on.

HIS HONOUR: I am not being critical of either party. I think it was the Court itself that raised the question.

MR COOK: Absolutely, your Honour, that is referred to in the submissions, your Honour. It was the Court itself that raised this issue of misdirection.

HIS HONOUR: Is that not simply one of the chances of litigation, that when you come into a court, especially a final court which has a duty to deal with the entire matter, then you have to face the possibility that something that has not been thought of before may be raised. That was done, and then the Court dealt with the matter on that basis.

MR COOK: Your Honour, in the authorities which I have referred your Honour to - and I am conscious of the time, your Honour - the matters have been touched upon as to the situation where the Court itself has virtually determined the point, having been seized of the appeal coming before it in the global way that your Honour has so correctly and aptly described, and its requirement to consider the whole matter on the appeal, that the appellant has - in some cases I think it has been said - won despite himself, as it were, despite the arguments that have been put forward. The Court has taken into account this question of whether it would be appropriate to grant all of the costs of the appeal in those circumstances.

HIS HONOUR: I agree with that and you put an argument to the Court just before the conclusion of your submissions in the hearing of the appeal and your argument was before the Court when it reached its final orders.

MR COOK: I think I said, your Honour, that if the Court was entirely against me in respect to the matter - in other words upheld the appeal on the grounds that had been advanced before it - that if that was the case, then I was seeking to have the Court consider the question of whether the unmeritorious appellant, I think I used the words or words to that effect, that application was made, your Honour, at a time when the Court was about to reserve its decision and was still going to receive further submissions from the appellant in respect of the matter.

HIS HONOUR: Yes. We do sometimes reserve the question of costs if it seems as if there would be some particular reason to invite the submissions of the parties, but usually the parties have to make their submissions to us on costs at the hearing because, otherwise, every case is going to involve two hearings before the Court with the costs that that necessarily incurs and you quite often get a question at the end of argument about what would be the consequences of costs if this or that partial outcome occurred and I think parties really just have to make their submissions and, very prudently, you did. You did make the submission.

MR COOK: In some way, with respect, I did, your Honour. I was referring there, I think, a careful examination of that, the circumstances of the Court was concluding its sitting, your Honour, fairly rapidly by reason of having to leave Brisbane, your Honour. The submission was made at that stage, your Honour. The question of whether or not a new trial should be granted or not had not really been argued in a real sense as part of the case of the appellant in any way, your Honour. It was raised by the Court.

HIS HONOUR: I understand that, but the fact is it was raised during argument. You were alert, as usual, to the consequences. You had made a submission on costs and there is absolutely no doubt that if then you had said, well, we want to follow this up with written submissions, the Court, especially because it was something that had been raised by the Court itself and was new, would have given you the opportunity to do that. But instead it was left where it lay. In the outcome, the ordinary order for costs was made.

MR COOK: Well, yes, your Honour. I appreciate what your Honour is saying about that aspect of the matter. It is, I say with great respect, your Honour, a difficult matter because the respondent was, I suppose if you want to say it, your Honour, so far as the argument is put by the appellant was concerned, partially successful on the appeal because he maintained his cause of action, your Honour. It was not taken entirely away from him by reason of the orders of the Court.

HIS HONOUR: No, that is true but he sought special leave to cross-appeal and that was refused.

MR COOK: That is so, but that was on the question, your Honour, of the inducement, not on the question of anything other than - and, also, your Honour, the wrongful interference in the business of my client. But, your Honour, those particular points were certainly dealt with. They were dealt with, by no means, your Honour, as the main course of the arguments. Indeed, my learned friend put in written submissions which went essentially to the matters of the application for special leave to cross-appeal. But at the end of that application, your Honour, even when this other matter had been raised about the new trial, those final submissions in reply sought that the orders which had been asked for in the appeal would be granted by the Court. In other words, not that there would be a new trial. He was still pressing, your Honour, for there to be a complete dismissal of the cause of action which had been brought by the plaintiff originally in the original trial, so that the plaintiff was, in a sense, partially successful.

I think, with respect, my submissions were made, your Honour, at that point of time as if there was a finding against me on the grounds that had been raised in the appeal, your Honour, that that principle may be applied in favour of my client. It did not go to this other aspect of the matter.

HIS HONOUR: Well, it is true that it did not go to it in its detail but the fact is that you were alert to the need to make a submission relevant to costs and, in a sense, what I am putting to you in order that you can respond is that that was now or never, that you had that chance; you availed yourself of it and if, in the light of the development, you had thought that some additional submission as to costs should be made, that was the time, either then or in a written submission, to put it. I am not being critical of you personally but I am looking at the way in which cost questions are normally wrapped up in the totality of the argument. Otherwise, every appeal - we would have to come twice, and the parties at considerable expense would have to come twice to put their submissions on costs, having regard to the reasoning of the Court. That would be rather inefficient.

MR COOK: Yes. With great respect, your Honour, I can only of course - I appreciate entirely what your Honour is putting to me as senior counsel, I understand that entirely. My concern, of course, is that the manner in which the argument was presented, the way in which the application for special leave and the appeal itself was presented to the Court, while I understand and totally accept your Honour's proposition to me that there was immediately a global situation to be examined as to questions of justice and appropriateness of the retention by the plaintiff of the determination of the Full Court, I nevertheless do put it to your Honour that there was a problem at that stage as to whether or not in fact the appellant was intending to take as an alternative or even asked the Court to deal with it as an alternative the question of a new trial. That was never taken up by the appellant.

he appellant set his cap at the complete taking away from the plaintiff of the fruits of the result in the Full Court, your Honour, and I can only put it to your Honour that it created a situation that may well have not enabled what your Honour has indicated would be a normal process of consideration of all the relevant issues of costs at the time of conclusion of an appeal to be presented to the Court because it was not part of the appellant's case.

I understand what your Honour is saying that in some way counsel should be, of course, and must be alert to matters raised by the Court, not to take them as being not appropriate or not able to be properly given their full weight in this case right to the final door, as it were, of the presentation of the case by the appellant, there was no claim that a new trial should be granted as an alternative.

HIS HONOUR: Well, you mentioned a case of Wickstead. I do not remember that case. What was that case about?

MR COOK: Well, your Honour, that was a case in which there was - if I might refer to it. It is reported in 30 NSWLR 1 at page 18, and I just referred to it - it was a matter in which your Honour sat as President of the Court of Appeal with Justices Handley and Cripps, Judges of Appeal, and that matter - - -

HIS HONOUR: That came up to this Court, did it not, and I think special leave was granted. I took a differing view in that court, did I not, in the Court of Appeal? I have a dim recollection that that - - -

MR COOK: I do not think your Honour dealt with on the question of - - -

HIS HONOUR: Well, I may be confusing it with another. Just tell me what it was about.

MR COOK: Yes. It was a case, your Honour, which dealt with - and it was on appeal from:

an order for the summary dismissal of a plaintiff's claim -

which was the court could -

receive further evidence pursuant to the Supreme Court Act.....without the party tendering the evidence being required to establish special grounds.

And there was:

An application by one of the several defendants for the summary dismissal of a plaintiff's claim because of evidentiary deficiencies in the plaintiff's case cannot succeed since another defendant may adduce evidence at the trial which would overcome those deficiencies.

And there were a number of matters that were raised. I was really only going to refer to the element of the question of costs and I was going to refer to your Honour what was said in the judgments at page 19 of the report. What was said there in the judgments of Mr Justice Handley and Mr Justice Cripps:

The appellants have succeeded in setting aside the orders for summary dismissal made by Master Malpass and Grove J in relation to claims under s 556 of the Companies (New South Wales) Code and in equity for participation in breaches of trust and fiduciary duty by TEA. However they have failed to establish a triable issue in negligence. Moreover the appellants' partial success in this Court has been based on arguments which were not raised below. Had these arguments been raised below it may not have been necessary to bring appeals to this Court. This is a factor which should be reflected in the orders for costs.

And my understand of the orders which were made in that particular case, your Honour, that one-quarter of the respondent's costs to the appeal were to be costs in each proceeding, so that there was a substantial deduction on the question of costs, your Honour, and that is the point that I was endeavouring - - -

HIS HONOUR: My experience, Mr Cook, both in this Court and in the Court of Appeal is because we know how important costs are to parties and their lawyers, that the Court normally does give thought as to whether some delicate balancing is appropriate but the usual rule, of course, is that you have to face the fact that unless a party comes to the Court, the judgment will stand and therefore that tends to reinforce the ordinary rule that costs follow the event. It is not an inflexible rule but it is the usual rule.

MR COOK: Yes, I understand, your Honour, the burden lies upon me, as these authorities which I have collected in an endeavour to be able to place before your Honour for your Honour's consideration touch upon those matters that normally costs do follow the event and I think - I was indebted to my learned friend, I think, in support of his submissions, he referred to the principles which the High Court, I think, laid down in the case of De L, I think it is called, your Honour, and that was a question, your Honour, of, as it were, the principles which apply and normally that costs follow the event, and I am fully aware of that situation.

HIS HONOUR: What is the citation of De L? There were two of them. This would be No 2, I suppose.

MR COOK: Yes, your Honour. Yes, it is page - Your Honour, my learned friend points out - of the submissions of the respondent which have been included. It appears on page 6. It is De L v The Director-General of New South Wales Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207 at page 221, and a portion of that judgment is quoted at page 9 of the annexure of the affidavits which was the submission of the appellants on the taxation of costs.

HIS HONOUR: Would you remind me of the provision in the Judiciary Act relating to the costs? What section is it?

MR COOK: I thought I had it, with respect, your Honour. I do not have the full Judiciary Act here with me, your Honour, but I thought I had a copy.

HIS HONOUR: My recollection is it is in completely general terms.

MR COOK: Yes, I think it is, with great respect, your Honour. I am sure your Honour is correct.

HIS HONOUR: Here is it, 26. It says:

The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

MR COOK: Yes. It is quoted there, your Honour, in fact in support of that determination, that statement as to what normally is the course of affairs that pertains.

HIS HONOUR: I have always thought that the power must ultimately reside in the Constitution because otherwise the Court could be hostage to a statutory provision and that could completely frustrate the objectives of the Constitution by denying successful parties their costs. But, anyway, we have the provision, section 26, and it is just a very broad discretion.

MR COOK: It is a broad discretion, your Honour. Your Honour, with great respect, I can do no more than - as I have sought to do in the submissions which were brought to the taxing master, your Honour - raise the question of the discretion which is there and is supported by authority, your Honour, as to the conduct of appeals and the power that is in appellate courts in a number of authorities which I have referred your Honour to in the submissions and I ask, with respect - I do not know whether your Honour wishes me to take your Honour at this stage to all of these decisions I have referred to in the list of authorities which were included in the affidavit. I appreciate that your Honour may, with respect, take time to consider the matter. I did not want to take the time of the Court this morning in going through these authorities but ask your Honour to have consideration of them if your Honour considered that appropriate.

HIS HONOUR: But if the fundamental point that I have raised is a governing principle, then one does not get into the detail because once you have lifted the matter up into the Court, the Court is obliged, I think, constitutionally obliged, to deal with the entire matter that is before it and it has a discretion because the Judiciary Act says so, and it had a submission before it and, on the face of things, there is nothing to indicate that it did not turn its mind to differential orders as to costs as it sometimes does make. But once you start from the premise that the defendant had to come to the Court to be relieved from the burden of the judgment and had to get through the gateway of special leave which is reserved to matters of general importance or in justice, then you do not really get into the business of cutting up bits and pieces of the argument because unless he could get here he could not be relieved from the judgment.

MR COOK: I understand entirely what your Honour is saying.

HIS HONOUR: Anyway, we have been through that so - - -

MR COOK: Yes, your Honour, I appreciate I can do no more than endeavour to rely on the submissions which I put and on the authorities, your Honour.

HIS HONOUR: Yes. I need your help on the costs certificate. Have you the Federal Costs Act here?

MR COOK: Yes, your Honour.

HIS HONOUR: Could you just help me with that because it is a slightly tricky Act as I recollect from looking at it once before.

MR COOK: Yes, your Honour. With respect, your Honour, I think the power - - -

HIS HONOUR: It is not as nice and neat and familiar as the Suitor's Fund Act.

MR COOK: Yes. The powers of the Court to deal with this, your Honour, are dealt with in the State of Victoria and Anor v The Australian Building Construction Employees' and Builders Labourers' Federation [No 2] [1982] HCA 57; 152 CLR 179. That, your Honour, simply deals with the power of the Commonwealth to issue a costs certificate.

HIS HONOUR: What is the name of the statute?

MR COOK: The statute is the Federal Proceedings (Costs) Act , your Honour.

HIS HONOUR: Yes, I have it here somewhere. Here is it. Now, which is the section you rely on?

MR COOK: Your Honour, the section is section 6, your Honour.

HIS HONOUR: Yes.

Subject to this Act, where a Federal appeal -

I assume that is one of these -

succeeds on a question of law -

which would appear to apply -

the court that heard the appeal -

does that include the High Court -

may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

Now, it says here in the list of Federal appeals, "an appeal to the Full High Court from a judgment of the Federal Court." So, it falls within "Federal appeal". I assume that as that is a Federal appeal, that this Court may grant the certificate, and I have myself granted certificates in the past.

is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent of -

(a) the costs incurred by the respondent in relation to the appeal;

(b) any costs incurred by an appellant in relation to the appeal that have been required to be, paid by the respondent to the appellant in pursuance of an order of the court -

Yes, well that does seem to cover the point.

MR COOK: Yes, it does, your Honour, with great respect, and then it is a matter for application then to be made to the Attorney-General as to the amount of the costs that he considers that are able to be paid out of the fund. I would ask for such a certificate, your Honour, then I can then make such an application to the Attorney-General, your Honour, in accordance with the principles which have been established in such applications.

HIS HONOUR: Yes, very well. Thank you.

MR COOK: Your Honour, I feel, with great respect, I cannot take the matter any further. I do understand very clearly what your Honour has said. I do press the effect of the authorities which I have placed before your Honour, notwithstanding my appreciation of what your Honour's - fallen from the Bench and I do not wish to take your Honour's time unnecessary. I say in the circumstances of this case, your Honour, I do ask your Honour to consider the substantial reduction of the costs which were determined to be payable under the costs certificate by reason of the conduct of the appeal.

HIS HONOUR: Yes, thank you, Mr Cook. Do you wish to say anything in relation to the point of the costs certificate or not?

MR GARLING: No, your Honour.

HIS HONOUR: Is there anything you can say to help the Court on that or not?

MR GARLING: No, your Honour.

HIS HONOUR: It does appear that the section applies.

MR GARLING: A reading of the section would make it appear that the section is applicable. There seems to be little doubt, your Honour, that the appeal was upheld based upon an error of law in the Full Court of the Federal Court and therefore the section applies. It is entirely a matter for your Honour's discretion.

There is nothing we can point to that would make the issuing of the certificate contrary to the legislation or, on its face, inappropriate. It is entirely a matter for your Honour's discretion.

HIS HONOUR: Now, on the substantive point, I have had the benefit of your - I am sorry, yes, Mr Cook.

MR COOK: Your Honour, there was one thing I meant to place before your Honour for your Honour's consideration. I did place before the taxing master, your Honour, also that the consideration of any costs which were payable in relation to the High Court appeal should not be due and payable until the new trial is disposed of. That is an order which is not unusually made, your Honour, so as to enable any new trial to proceed to its conclusion. I did ask your Honour and I am sorry, I was taken up with answering your Honour - submissions, at page 7, your Honour, in the matters I said, "It was open to the taxing officer to delay the payment and the allowance of the costs until the conclusion of the new trial is determined." And I ask your Honour to - - -

HIS HONOUR: Why would one ordinarily do that? I mean, it is, in a sense, a debt which Mr Sanders has had to run up. Why should he be kept out of his money?

MR COOK: Simply for this reason, your Honour, because - the only reason I can put forward, your Honour: the possibility that the meeting of such costs might seriously involve considerations of the presentation of the new trial. Clearly, the Court contemplated that a new trial would be held, your Honour, and that that would be the end result of its judgment. The question of the payment of these costs, preliminary to the conduct of a new trial, might seriously affect the opportunities of the plaintiff to conduct the new trial, your Honour. With great respect, your Honour, that is only an argument that I can put to your Honour. I have agreed that paragraph 16 of the affidavit should be taken from it and therefore I can do no more than put it to your Honour as a general proposition, and I seek to do so. I did not want your Honour to think I was canvassing the earlier situation by endeavouring to come in the backdoor. I am putting it as a general - - -

HIS HONOUR: I saw that that had been put before the Registrar but I did not see any specific relief sought in that respect in the summons and, in a sense, it is an application for a stay of an order of the Court and the Court has not granted that stay.

MR COOK: No, your Honour.

HIS HONOUR: And, really, you would need to have something more, I think, than submissions. You would have to have some evidence of hardship or some other ground on which you could properly, and in accordance with principle, provide the stay.

MR COOK: Yes, your Honour.

HIS HONOUR: I would not be inclined at the moment, just on submissions of that kind, to provide a stay.

MR COOK: Your Honour, I appreciate - I only wished to have the matter dealt with and raised by me, your Honour.

HIS HONOUR: Well, you have raised it but I do not think there is a footing either in the terms of the relief sought in the summons or in affidavit evidence indicating a particular hardship. I mean, I sat in the Court of Appeal through hundreds and thousands of applications for a stay and they are not lightly granted, and you have to get some evidence to give the Court a basis on which to provide the stay and a simple statement from the Bar table are not a bucketful is worth a thimbleful of evidence.

MR COOK: No, I fully understand, your Honour, and I accept entirely what your Honour is saying but I was endeavouring to raise a general principle to your Honour that the question of where a new trial has been granted by the Court, the possible interference in the conduct of that new trial. I can do no more than put it on that basis.

HIS HONOUR: I know nothing about your client's means. For all I know, he might be a resort owner with a huge amount in the bank. I mean - - -

MR COOK: I have nothing more to put to your Honour.

HIS HONOUR: Yes. Well, I do not need your help on the last point but on the point concerning the certificate, do you have anything to say in addition to what has been said in the submissions? In a sense, you have engaged with the arguments relating to the quantum of time and the amount of effort that was put into particular issues but I have raised with Mr Cook a question which, as it were, arises at the threshold, as to whether that is an appropriate approach. It does not appear to be the approach that the Deputy Registrar took. She just seems to have dealt with it on the footing that the Court has made these general orders and her taxation has to conform to those orders, which I consider to be a correct approach, but as you have engaged on specifics, is there any submissions you wish to put to me as to the general approach which I have raised with Mr Cook? Would that be an error on my part to approach the matter in that way?

MR GARLING: Your Honour, no, it would not but may we put a slightly different argument, with respect. We would submit that my learned friend's submissions to your Honour confuse the position between submissions that may have been put to the Court in the first instance, as one sometimes gets in particular cases, and the submissions that he may put on a review of the taxing officer's discretion and decision with respect to issuing of a certificate of taxation.

My learned friend seeks to put arguments which go to a question of what costs order ought be made by the Court and, in effect, what he seeks to put is arguments which would have had this consequence: namely, the Court orders the appellant to pay one-half of the respondent's costs or the Court orders that each party pay their own costs of the appeal, or the like. But the difficulty confronting my learned friend with that submission is that the Court itself made a contrary order. My friend, at the end of the appeal, at the end of the hearing of the argument of the appeal, had two choices: he could put arguments as to costs or, alternatively, he could submit to the Court, "This is a case in which there are particularly complex questions as to costs which may depend upon the way in which the Court's decision falls. Would the Court reserve the question of costs to be dealt with after the parties have the Court's reasons for judgment available?" They are essentially the two choices a party has.

My learned friend took the first choice. He sought to put submissions. He only put a limited submission but it was nevertheless a submission, and the Court then dealt with the question of costs. The Court ordered that the appellant have his costs and have the costs of the unsuccessful application for special leave to cross-appeal. That being so, we submit that it was rather a bold submission to have put to the Deputy Registrar that the Deputy Registrar herself should have made some different order as to costs, via the mechanism of the taxing process. And had the Registrar done so, we would have submitted to your Honour that that was an error of principle for the Deputy Registrar to have attempted to fashion a new order as to costs. The Deputy Registrar, we submit, correctly rejected the approach.

Now, it is true, your Honour, that we engaged in our written submissions in the debate as to whether or not the issue was right or not but fundamentally what was put in the written submissions to the Deputy Registrar was that - in paragraph 20 of our submissions, for example, we put:

that the discretion of the Court with respect to costs has been exercised by the Court.

That our bills of costs, which were filed, "should only be disallowed in so far as individual items are said to have been unreasonably incurred." So we did address what I would submit is the principal issue and said that the Court had made the order and that should not be disturbed. We did address in our submissions the more detailed issue of if the Deputy Registrar was inclined to adopt the approach, we, of course, put submissions dealing with the particular issues but we did ultimately submit that, subject to what one would call the quantum issues of the certificate of taxation, namely, "Should this item be allowed at X or Y?", or the like, we did submit that the Deputy Registrar ought not engage in any process which disallowed in a global sense the order.

So that we would submit that the Deputy Registrar correctly perceived the issues of principle, and now that your Honour is exercising a right of review, it may be that my learned friend can persuade your Honour that had your Honour been sitting as the Deputy Registrar your Honour may have adopted a different view or may even persuade your Honour that had your Honour been hearing the appeal your Honour may have adopted a different view but the fact is that does not entitle my learned friend relief from your Honour on this application. The question is did the Deputy Registrar err in principle in declining to order a partitioning of costs. We submit that she did not and therefore there is no reason for your Honour exercising this review process to overturn her orders.

I do not need to remind your Honour of what Justice Kitto said in the photocopy of the case that we handed to your Honour but - - -

HIS HONOUR: Well, he adopted what Chief Justice Jordan said.

MR GARLING: - - - Jordan had said, that is so.

HIS HONOUR: And that is classical House v The King jurisprudence.

MR GARLING: Absolutely, your Honour. And may I put this submission, that in this particular area of costs, that is a classic discretionary matter where principles of House v The King and the like ought be rigorously adhered to.

Your Honour, we submit that - finally, may we say this: even if we be wrong and we ought engage on the process that my learned friend puts to your Honour, namely, that we were in some way unsuccessful, we would adopt, with respect, what fell from your Honour in the course of argument but particularly we simply rely upon the fact that, with respect, the appeal was allowed with costs and the application for leave to cross-appeal was refused with costs. Consequential relief is a matter that is fashioned individually in every case. Fundamentally, we needed to seek leave to appeal and we needed to have our appeal upheld to be successful, and that is what happened.

Unless there is some particular point your Honour requires my assistance, that is the way we would put our submissions, your Honour.

HIS HONOUR: As to the costs of these proceedings, in the event that Mr Cook's client fails, I assume you would ask for costs?

MR GARLING: They should follow the event, your Honour.

HIS HONOUR: There should only be, I think, one order for costs. There have been two summonses but it would not be appropriate to make two orders.

MR GARLING: No, your Honour. And we would invite your Honour to certify for counsel.

HIS HONOUR: Yes. I propose to adjourn for a short time and I will consider whether I can deal with this matter immediately in the interests of expedition. I gather you have somewhere else to go, Mr Garling, is that right?

MR GARLING: I did have at one stage, your Honour, but no longer. I am entirely at your Honour's - - -

HIS HONOUR: Yes. Is it convenient for you to wait just a little while, Mr Cook?

MR COOK: Indeed. I am here at your Honour's convenience all day.

HIS HONOUR: Yes, very well. I will just adjourn for a short time and consider this matter and if I can, I will come back - I have to come back anyway for a succeeding matter, but I will be back shortly and either proceed to a decision now or reserve the matter.

AT 10.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.45 AM:

HIS HONOUR: Before me are two summonses brought pursuant to Order 71 rule 89(1) of the High Court Rules. Each relates to the costs of the proceedings in the Full Court which resulted in the decision in Sanders v Snell (1999) 196 CLR 329. The Court on that occasion comprised Chief Justice Gleeson, Justices Gaudron, Hayne, Callinan and myself. No objection has been raised to my deciding the summonses. I will not outline the nature of the dispute between the parties. That dispute is fresh in mind and is recounted in the reasons of the members of the Court in the report.

The background facts

The summonses seek relief on two grounds, namely, (1) that the gross amount of costs certified as payable by Mr Lisle Snell (the plaintiff) to Mr William Sanders (the defendant) be reduced to nil or such other sum as is allowed; and (2) that the plaintiff be granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to any costs found to be payable under the certificates of taxation in respect, successively, of the application for special leave and of the appeal. At the conclusion of argument, a further application was made, in the event that the application for review was dismissed. This sought, in effect, a stay of execution of the certificates of taxation.

The certificates the subject of the proceedings were signed by a Deputy Registrar as "taxing officer" of this Court. The first certificate was in the sum of $16,066.77. It related to the defendant's bill of costs in respect of his application for special leave to appeal. The second certificate was in the sum of $48,073.30. It related to the costs of the appeal itself. Each certificate purported to give effect to the costs orders of this Court in the appeal. Each was tendered without objection in these proceedings.

Relevantly, the orders of the Full Court provided:

"1. This appeal against the whole of the judgment of the Full Court of the Federal Court given and made on 9 April 1997 be allowed with costs, and

2. The application for special leave to cross appeal to this Court be refused with costs."

A third order of the Full Court set aside the judgment of the Full Court of the Federal Court of Australia in which Court, on appeal from the Supreme Court of Norfolk Island, the parties had litigated their proceedings. Materially, the third order allowed, in part, the appeal and cross-appeal to that Court from the Supreme Court. It ordered a new trial of the plaintiff's claim against the defendant, alleging misfeasance in public office. It ordered the costs of the first trial in the Supreme Court to abide the outcome of the second trial. And it ordered each party to bear his own costs of the appeal and cross-appeal to the Federal Court.

Costs in this Court are within the discretion of the Court. The power to award costs in appeals probably derives, ultimately, from the Constitution, being an incident to the effective exercise of the judicial power of the Commonwealth by this Court. However, ample powers have been conferred on the Court by the Judiciary Act 1903 (Cth), s 26. There was no challenge, nor could there have been, before the Deputy Registrar or me in this review, to the costs orders made by the Full Court in disposing of the appeal and the costs of the application for special leave to cross-appeal. There was nothing remarkable about the Full Court's costs orders. They followed the event in each proceeding. This is the usual, although not invariable, rule as to costs followed in this Court, as by most courts in this country, unless there is some special feature of the case or unless statute makes special provision. It was not suggested that any special provision was made by statute applicable to these proceedings.

A request for a special order as to costs

At one stage before the Deputy Registrar the plaintiff appeared to complain that he had not been given an opportunity to be heard before the Full Court's costs orders were made. However, if a party wishes to suggest that an order other than the ordinary order for costs should be made, the opportunity to make that submission is ordinarily to be taken on the hearing of the appeal. The plaintiff, by his counsel, who is an experienced barrister, had that opportunity. Moreover, the record shows that, prudently, counsel availed himself of the opportunity to make a special submission in relation to costs. At the end of the submissions for the plaintiff (in the appeal, the respondent, and the applicant for special leave to cross-appeal) counsel said this:

"Finally, might I say if indeed the Court is entirely against me and finds that the appeal should be upheld and so forth, I feel emboldened to ask in the circumstances, and I simply put forward for the Court's consideration, that it is not unknown for the Court, in dealing with matters of costs which are entirely within the discretion, to determine that a person they might consider unmeritorious should be deprived of their costs, not have to pay the other person's costs but be deprived of their costs. I ask the Court to give consideration to that matter."

Although there is no express reference to that submission in the reasons of the Full Court, nor is there any indication to suggest that the submission was ignored or overlooked. The Full Court simply made its orders disposing of the appeal and application to cross-appeal. It made the costs orders that would be normal to such orders of disposition. Those costs orders followed the event except in respect of the Federal Court where special provision was made by this Court. This last fact contradicts any suggestion that the Full Court of this Court made the usual order blindly. Clearly, on the face of its orders, it gave thought to the costs orders that would be just on the basis of the materials and arguments placed before it. The time for any detailed argument, or request that separate argument be heard following the outcome of the appeal, was at the hearing.

Preliminary objection to the certificates of costs

Before the Deputy Registrar on the taxation of the bills of costs, the plaintiff, by his counsel, objected to the bill. He did so on several related grounds. The basic contention advanced a general ground of objection, repeated again today before me. This was to the effect that the defendant was not entitled to costs at all, or was only entitled to reduced costs of the application for special leave and of the appeal because of the nature and duration of the issues argued in the hearings before this Court. The submission suggested that the defendant had failed to raise the possibility of, or to seek, a new trial of the proceedings between the parties, either on the application for special leave or in the appeal. Instead, he had simply pressed arguments for dismissal of all of the plaintiff's claims against him. Indeed, he did this until the Court itself, during argument of the appeal, raised the possibility of the need for a new trial. The plaintiff contended before the Deputy Registrar that, on this basis, costs in this Court had been thrown away or unnecessarily, unreasonably or inappropriately incurred in the conduct of the successive proceedings. The defendant should therefore, so it was argued, be deprived of all, or a substantial part, of his costs. Various other claims and counterclaims were advanced before the Deputy Registrar. However, that is the essence of the "preliminary objection" of the plaintiff.

The Deputy Registrar rejected the "preliminary objection" and the individual objections to the items in the bill of costs which depended on it. I do not take any separate or different objection to those individual items to have been raised. The Deputy Registrar was later asked to reconsider and review her decisions and to state her reasons for them. This she did. Her reasons are before me. She was then asked to delay certifying the taxation of the two bills. However, she declined to do this. In due course, the two certificates of taxation were certified in the sums stated. The plaintiff thereupon sought to have a review of the decision of the Deputy Registrar by a Justice. That is how the matter now comes before me.

Principles for review of orders in taxation of costs

My powers in conducting this review are confined to those proper to judicial review of an administrative decision. The review contemplated by Order 71 rule 89(1) of the High Court Rules is not a hearing de novo of the decisions of the Court's taxing officer. The ordinary principles governing the review of administrative decisions and, in particular, those in the nature of decisions concerning practice or procedure, apply. See Australian Coal and Shale Employees' Federation and Another v The Commonwealth and Others [1953] HCA 25; (1956) 94 CLR 621. In that case, Justice Kitto adopted as a correct summary of the law an opinion expressed in the Supreme Court of New South Wales by Chief Justice Jordan, delivered with the concurrence of Justice Harvey, Chief Judge in Equity, and of Justice K.W. Street in Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR(NSW) 178, 51 WN(NSW) 71. In that case, Chief Justice Jordan said:

"In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a matter which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case".

It was common ground between the parties that this statement of principle should guide me in conducting the present review. I agree with this submission.

It is not for me to rely on any knowledge that I may have concerning the deliberations of the Full Court in coming to its conclusions expressed in the reasons published by it. I must simply take those reasons, as the Deputy Registrar was bound to do, according to their terms, consider, as she was bound to do, the orders which followed from those reasons and ensure that such orders were given effect, as their terms required, in the certificates of taxation ultimately issued. Neither the Deputy Registrar, nor I, are at liberty to contradict the Full Court's orders as to costs. Indeed, it would have been an erroneous exercise of her powers for the Deputy Registrar, in conducting the taxation of the bills of costs, to disallow items with an effect that would have contradicted, or varied, the relevant orders of the Full Court. Her function, and mine on review of her decision, is to conform to the Full Court's orders and to make sure that, in the detailed items allowed and disallowed, the terms of those orders are faithfully observed.

Application for review of decisions by a taxing officer

With every respect to the arguments put before me for the plaintiff, I consider that most of them are irrelevant to the issues so presented to the Court. The defendant was the subject of a judgment of the Full Court of the Federal Court which he contested. The only way that the defendant could have the burden of that judgment lifted was, first, by seeking and obtaining special leave to appeal and, secondly, succeeding in that appeal. Those two steps obliged the defendant to incur legal costs. If the defendant failed, he would ordinarily have been ordered to pay all of the party and party costs thereby incurred by the plaintiff. But if he succeeded, subject to any special order, he would ordinarily be entitled to recover all of the party and party costs thereby incurred by him in this Court.

This Court might, in a particular case, make a special order as to costs. It sometimes does so, usually in pursuance of argument advanced at the hearing or reserved for further and separate hearing following the determination of the proceedings. Such an order could reflect a view that a party had wasted the Court's time in arguing needless or futile points, or had succeeded on part only of the matters put in issue by the appeal. cf Wickstead v Browne (1992) 30 NSWLR 1 at 19. Alternatively, a special order might be made on the basis that particular costs should be disallowed, for example, where appeal papers have been needlessly prepared and costs of that kind imprudently incurred.

Usually, however, the orders made by a Full Court are, as here, in perfectly general terms. This is the practice followed by Full Courts in this and other Australian appellate courts out of recognition of the fact that the appellant needs to bring the appeal to secure relief and, without a successful appeal, will be bound by the orders that have been made below. Usually, then, taxation is left to the discretion of the taxing officer acting within the ambit of the appellate court's orders. It is not usual for the Court to specify that costs will only be payable in respect of particular issues. Accordingly, it is not usual or appropriate for a taxing officer to proceed in such a nice way, unless there are good and exceptional reasons in the particular case to do so. The marginal expense of calculating the costs of arguing particular issues, themes, ideas, facts, cases or arguments will ordinarily be outweighed by the inutility of doing so.

Furthermore, in this Court, there is a particular consideration which supports the foregoing practice. Once special leave is granted, it may ordinarily be taken that the case involves a point of general application or of national importance. See DeL v The Director-General, New South Wales Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207 at 221. The Full Court then has the whole matter before it. It is obliged to decide the appeal concerning that matter according to law. That is what the Full Court did on this occasion. Its costs orders followed the outcome which it favoured. The defendant did not substantially fail in the appeal as was suggested by the plaintiff by reference to particular issues. The defendant substantially succeeded, as is witnessed by the orders which he secured from the Full Court of this Court, setting aside the judgment that had been entered against him by the Full Federal Court.

In these circumstances, I do not accept the plaintiff's basic proposition ("preliminary objection") in challenge to the Deputy Registrar's decisions. I consider that the Deputy Registrar was correct to reject that proposition. As well, I see no error in the decisions which the Deputy Registrar reached or in the reasons which she provided to explain those decisions. Conforming to the principles stated by Justice Kitto in the Australian Coal and Shale Employees' Federation Case and by Chief Justice Jordan in the Schweppes' Case there is no reason to doubt the correctness of the Registrar's decisions and certificates. The applications for review are therefore dismissed.

Application to stay execution of the certificates of taxation

At the conclusion of the foregoing argument it was suggested for the plaintiff that, if I came to this conclusion, I should postpone the execution of the certificates of taxation. The contention was put that it was inherent in the orders of the Full Court that the plaintiff should have the opportunity to prosecute his claim at a new trial to be conducted in the Supreme Court of Norfolk Island. I know nothing of the means of the plaintiff. If those means are such as to justify what would, in effect, be an order staying the execution of the certificates of taxation, it would be necessary for the plaintiff to place evidence of his means before the Court to demonstrate a foundation for such an order. In saying this, I do not wish to encourage such an application. On the face of things, the defendant has been kept out of his costs and is entitled, by an order of this Court, to have those costs now as certified. However, the application for the stay of execution could not be granted in the absence of a factual foundation for doing so. That application is therefore rejected.

Application for Federal Costs Act certificate

Finally, application was made for a certificate under the Federal Proceedings (Costs) Act 1981 s 6. That section provides, relevantly, that:

where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

By subsection 3(1) "federal appeal" is defined to mean, inter alia:

an appeal to the High Court from a judgment of the Federal Court.

Accordingly, on the face of things, the plaintiff is entitled, as unsuccessful respondent to the appeal to this Court, to a costs certificate in respect of the appeal. That costs certificate would be confined, as I read s 6(2), to a single certificate in respect of the appeal and not to separate certificates in respect of the application for special leave to appeal and of the appeal. The form of the certificate contemplated by subsection 6(3) of the Federal Proceedings (Costs) Act is that the certificate be granted:

"stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of -

(a) the costs incurred by the respondent in relation to the appeal;"

I grant such a certificate.

Orders

The orders which I therefore make are:

1. Dismiss the applications for review of the certificates of taxation signed by the Deputy Registrar as taxing officer of the Court;

2. Order that the plaintiff, Lisle Snell, pay the defendant, William Sanders, the costs of the applications for review, but confined to a single order for costs;

3. Certify for the appearance in chambers of counsel; and

4. Grant to the plaintiff, as respondent to the appeal to this Court, a certificate certifying that it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

Are there any variations in those orders that you would ask, Mr Cook.

MR COOK: No, your Honour.

HIS HONOUR: Are there any variations that you would ask, Mr Garling?

MR GARLING: No, thank you, your Honour.

HIS HONOUR: They, then, are the orders of the Court.

Thank you both for your assistance to me this morning.

AT 11.10 AM THE MATTER WAS CONCLUDED