Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation Ltd

[1990] FCA 554

5% / 90

JUDGMENT NO. ..S..- ....... ..W-

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH W m S DISTRICT REGISTRY)	NO. G 339 of 1987
GENERAL DIVISION	1

Between: BURGUNDY ROYALE

INVESTMENTS PTY LTD .AND	1
-	ORS

Applicants

and: WESTPAC BANKING

CORPORATION LIMITED h ORS

Respondents/Cross Claimant

and: BURGUNDY ROYALE

INVESTMENTS PTY LTD 5 0-

Cross Respondents

Einfeld J Svdney 9 Aucrust 1990

There is before the court a notice of motion brought in matter number G 339 of 1987 by Baker and McKenzie, the former solicitors for the applicants in these proceedings. The notice of motion firstly seeks an order that it be returnable immediately. I grant that reQuest and suspend all rules necessary to enable that to be done.

today that it has not been possible within the time allowed,

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The substance, however, of the notice of motion is an	r
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application by Baker and McKenzie for an extension of time to	! ' 8 .
22 August next for the filing of its bill of costs in the	, *
matter. In orders made on 30 July last, pursuant to a judgment given on 12 July, I fixed the time for the filing of	I
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that bill as 8 August. Baker and McKenzie produces evidence
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for various reasons set out in the affidavits, to comply with
that timetable. In any event the timetable was fixed fairly .
strictly because of the then proposed hearing schedule of this
extraordinary and complex piece of litigation. As it happens,
the hearing date has been adjourned apparently until 1991 and
the pressures and constraints which persuaded me to fix the
earlier strict time scale no longer exist, at least to the
extent to which they existed before.

For that reason, in principle, I favour the application for extension of time. However, the affidavit material establishes that 22 August is itself a date which lacks precision. Briefly the position is that if the bill of costs is brought in on what Baker and McKenzie describes rather pleasantly as its "normal" rates, it could be done by August 22, but if it is to be done in accordance with the rules of court appropriate for solicitor and client bills, there would be some further delay.

This dilemma or dichotomy is raised in paragraphs 3, 4 and 5

of the notice of motion. In substance these requests seek declarations that the bill is entitled to be taxed and should be brought in on the basis not of the scale or schedule fee for solicitor and client costs but on the basis of the actual costs and expenditures of Baker and McKenzie.

That in turn leads to the draft statement of claim which has

been filed pursuant to the orders made on 30 July following	b.h r ,
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the judgment of 12 July. That draft statement of claim seeks the payment of costs in accordance with the actual costs and disbursements and not merely on the schedule or scale basis.

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The draft statement of claim alleges an agreement between

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Baker and McKenzie and Tan Sri Wong, the eighth cross-	i,
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respondent in G 339 of 1987, that Baker and McKenziers costs	i
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would be paid at its normal rate as opposed to the schedule or	L
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scale rate.	The draft defence to the draft statement of claim	I
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inter alia denies that agreement.	i :
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Thus there arises a preliminary issue which was not	I::
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anticipated when the matter was last before the Court as to	!.
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the basis upon which the bill of costs is ultimately to be	I
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taxed, not only from the point of view of the length of time	:  . .
required for preparing the bill of costs, but for other reasons of some significance to which I will come in a moment. It may therefore be necessary to determine the basis upon which the bill- should be drawn, let alone how the taxing
officer should tax the bill.

It seems to me, as arose in discussion, that declarations in a notice of motion of this kind are not appropriate nor is this procedure appropriate to determine such matters. A notice of motion is a form of subsidiary or auxiliary proceeding within another action and I notice in this co~ection that this notice of motion is numbered G 339 of 1987.

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One of the reasons for this is that the evidence presented on	'
a prima facie basis thus far by Baker and McKenzie establishes .	!
that in the ordinary course of events, such a bill of costs as is now envisaged would be taxed - for some strange reason that does not appear - not in this Court but in the Supreme Court of New South Wales. I am told that that Court at the present time has a delay of up to twelve months for such taxations. If it turns out that the bill has brought in on a wrong basis
- that is to say if it is brought in on a full cost basis as
opposed to a solicitor and client basis - and the appropriate basis was the other of the two, or vice versa, the whole of the proceedings would be aborted and the taxation would be adjourned until a proper bill on the correct basis was prepared. It is not stated, but one assumes from that fact, that there would then be a further delay of 12 months for the new bill to be given a date for taxation. That procedure is therefore unappealing for many obvious reasons which I do not need now to elucidate.

In the circumstances, it seems to me appropriate that I should	I
suspend the orders l(b), (c) and (d) made on 30 July in order	I	,
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to permit Baker and McXenzie to present to the Court in such
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form as they may be advised a proceeding which would enable	L 1,
the Court to entertain an application for declaratory or other	I .
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relief in relation to the alleged agreement between Baker and
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McKenzie and the eighth cross-respondent in G 339 of 1987 and	r
any other appropriate relief envisaged in paragraphs 3, 4 and 5 of the notice of motion. That statement of claim or other
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proceeding is to be filed and served by not later than 4.00
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p.m. on Wednesday August 15.
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My attention has been drawn to some authority in the Court to

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which I have not had the opportunity of giving close

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attention, that matters such as this are within the

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jurisdiction of the Court in the circumstances which arise

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here. But there does not seem to have been another case in the Federal Court which could be said to share the extraordinary and strange features of this particular

litigation. I am informed that there are cases in other Courts which may throw some light on the principles which

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ought to be used. 

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I make these observations because there seems to be the

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prospect of a dispute that any application for declaratory

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relief of the kind that is envisaged in paragraphs 3, 4 and 5

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of the notice of motion might not be soundly based in the

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jurisdiction of the Court and might have other complications including such matters as the status or involvement of the

eighth cross-respondent in such proceedings at this stage.

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Another aspect of the notice of motion raised by paragraph 6

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is that without an order of the Court, the taxation would not

be undertaken by a Registrar of this Court. It seems to me

that in all the circumstance of this case which are now too

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long to list, in particular the very considerable involvement

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of many Judges and officers of the Court, in this matter up to

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the present, it would be appropriate for whatever bill of

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costs is to be brought in to be taxed by a Registrar of this .	I
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Court, there being no other difficulty about the jurisdiction	j

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of the Court or the appropriateness of the Court to deel with	1 .
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this matter at all.
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This view is pronounced with the caveat that as yet the evidence concerning this matter has not yet been properly considered by the representatives of the eighth cross- respondent who have also not had an opportunity to cross- examine the deponents of affidavits presented by Baker and McKenzie or to consider what evidence they would wish to put on in the matter. Nor have I yet heard them in relation to the appropriateness of a final order to this effect.
I have therefore made these observations now only because it
may be of some administrative assistance to the parties and to	I
the Court to know that, if all othel: matters are satisfied as	I .
to jurisdiction and other legal fundamentals, it is likely to
be a Registrar of this Court rather than a Registrar of the	Supreme Court who will be dealing with the matter. This may
also enable the parties to ascertain for the purposes of supplementing their evidence on this question such matters as the likely delays that might be incurred here and other problems that might be raised if the bill of costs is taxed by a Registrar of the Federal Court as opposed to the Supreme Court. But I reserve the full rights of the eighth cross- respondent in respect of that application as indicated.
The notice of motion will be stood over to Friday, 31 August	5

at 9.30 a.m. And if it is necessary I shorten all times laid . 1

down under the rules to enable the statement of claim or other	1.:
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relief sought by Baker & McKenzie to be before the Court on	1 .
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that day.	1 .
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(Discussion)
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Until further order, the affidavits of Mr Svehla which have	i :
been filed in court today by Baker and McKenzie should not be	1 I_ '
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made available to any other part or person other than those	1
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who are here today.	1. '
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(Discussion)
In order to give effect to the orders made previously which would permit the legal representatives of the eighth and ninth cross respondents to have access to documents which have been produced on subpoena by Baker and McKenzie, I allow the
photocopying for the limited purposes set out in the previous	documents required to be uplifted for the purposes of
orders provided that they are returned by the close of
business on the following day.

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I I c-riify tha: ihls

[ P - ~ : ~ I I D ~ pircq are a i i ue copy ~f

for Judgment herein 0; hIs H~~~~~ ,

/ Justrce E~nield

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Dated h y u 5 i - 1 ~ ~ 0

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