Currabubula Holdings Pty Ltd v State Bank of New South Wales
[2000] NSWSC 232
•31 March 2000
CITATION: CURRABUBULA & PAOLA v STATE BANK NSW. CURRABUBULA v STATE BANK NSW [2000] NSWSC 232 CURRENT JURISDICTION: Equity Division - Commercial List
FILE NUMBER(S): SC 050268/95; 12971/99 HEARING DATE(S): 25 February 2000 JUDGMENT DATE: 31 March 2000 PARTIES :
Currabubula Holdings Pty Ltd and Paola Holdings Pty Ltd (Plaintiffs)
State Bank of New South Wales (Defendant)
JUDGMENT OF: Einstein J
COUNSEL : J.T. Gleeson (Plaintiffs)
L. McCallum (Defendant)SOLICITORS: Gadens Lawyers (Plaintiffs)
Mallesons Stephen Jaques (Defendants)CATCHWORDS: Practice and Procedure - Costs - Taxation of Costs - 'Rule of Thumb' applicable when multiple defendants are variously successful and unsuccessful - Whether applicable to multiple plaintiffs variously successful and unsuccessful - Whether rule of thumb was properly applied in these proceedings - Whether rule of thumb excluded by the costs orders previously made. - Practice and Procedure - Jurisdiction of Court to correct errors in orders under the 'slip rule' - Principles governing the use of the slip rule - Whether slip rule may appropriately be employed in this case. - Practice and Procedure - Legal Profession Act 1987 - Appeal from 'decision' of a costs assessor - Whether appeal only permissible after determination of assessment - Differentiation between 'decision' and 'determination' of costs assessor - Purpose of provisions permitting for an appeal from a 'decision' of a costs assessor. - Practice and Procedure - Reckoning of time - principles governing the extension of time in which an appeal can be instituted. - Equity - Declaratory relief - Court's power to issue declaratory relief - Whether affected by the Legal Profession Act 1987 - Principles informing Court's discretion to issue declaratory relief - Relevance of alternative means of appeal. LEGISLATION CITED: Legal Profession Act 1987
Supreme Court Act 1970
Judicial Officers Act 1986
Crown Employees Appeal Board Act 1944
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Public Service Act 1902
Planning Act 1982 (SA)
Supreme Court Rules 1970
Interpretation Act 1987
Industrial Arbitration Act 1940
Town and Country Planning Act 1947 (UK)CASES CITED: Adam Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1WLR 445
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
Arnett v Holloway [1960] VR 22
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Axis Aviation Pty Ltd v Avtex Airservices Pty Ltd (unreported, Federal Court of Australia, 16 August 1995, Hill J).
Azzopardi v Tasman UEB Industries (1986) 4 NSWLR 139
Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1.
Barraclough v Brown [1897] AC 615
Beaumont v Senior and Bull [1903] 1 KB 282
Brew v Whitlock [1968] VR 504
Bruce v Cole (1998) 45 NSWLR 163
Bullock v London General Omnibus Co [1907] 1 KB 264
Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 115 ALR 1.
Commonwealth v McCormack (1984) 155 CLR 273
Coppins v Helmers (1968) 88 WN(NSW) 455; (1969) 72 SR (NSW) 273
D'Angela v Rip Pioneer Gravel Co Pty Ltd [1977] 2 NSWLR 227
Dansk Rekylriffel Sybdikat Aktieselskab v Snell [1908] 2 Ch 138
David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416
Dickinson v Perrington [1973] 1 NSWLR 72
Director General of Social Services v Chaney (1980) 47 FLR 80
Donald Campbell & Co Ltd v Pollack [1927] AC 732
Duchman v Oakland Diary Co Ltd [1930] 2 DLR 989
Electricity Commissioner v Blaber [1976] 1 NSWLR 143
Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Ex parte Herman; Re Mathison (1961) 78 WN(NSW) 6
Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (unreported, New South Wales Court of Appeal, 29 April 1991)
Fischer v Commonwealth (unreported, Federal Court of Australia, 16 September 1997, Branson J).
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.
Gallow v Dawson (1990) 93 ALR 479
Ganke v Somerset (unreported, Supreme Court of New South Wales, 31 July 1996).
Gould v Vaggelas (1985) 157 CLR 271
Heywood v Visitors of Hull Prison [1980] 1 WLR 1386
In re Colquhoun (1854) 5 De G M & G 35; 43 ER 781.
In re Davidson's Patents; In re Gaskin's Patents [1921] 1 Ch 69
In the Marriage of Bailey, EN And Bailey BE (1990) FLC 92-145
Jess v Scott (1986) 12 FCR 194
Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation [1977] 1 NSWLR 43.
Keen v Towler (1924) 41 TLR 86
Kingston v Keprose (No 3) (1987) 12 ACLR 609
Korner v H Korner & Co Ltd [1951] 1 Ch 10
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Latoudis v Casy (1990) 170 CLR 534
Law Society of New South Wales v Weaver [1974] 1 NSWLR 271
Longreach Oil v Southern Cross Exporation NL (unreported, New South Wales Supreme Court, 9 March 1988, Young J).
Milson v Carter [1893] AC 638
MIR Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Morris v Public Transport Commission of NSW (unreported, Court of Appeal, 28 May 1984).
Mouieux v Girvan NSW Pty Ltd (unreported, Court of Appeal, 20 September 1991).
Oshlack v Richmond Rover Council (1998) 193 CLR 72
Pye Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260
R v Cripps; Ex parte Muldoon [1984] 1 QB 686
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1987) 62 ALJR 151
Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438
Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Schipp v Cameron (unreported, Supreme Court of New South Wales, 12 October 1998, Einstein J).
Snell v Pryce (1992) 109 FLR 328
Symes v Commonwealth (1987) 89 FLR 356
Tak Ming Co v Yee San Co [1973] 1 WLR 300
Taylor v Public Service Board [1975] 2 NSWLR 278
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Vowell v Shire of Hastings [1970] VR 764.
Whitlock v Brew [(1968) 118 CLR 445
Woodward v Gaha (unreported, Supreme Court of New South Wales, 28 September 1995, Rolfe J)
Wylie v McNeil (1986) 42 SASR 537
Young v Public Service Board [1982] 2 NSWLR 456DECISION: (1) Decision of costs assessor that the costs to be assessed in the assessment proceedings be apportioned on an equal basis between the first and second plaintiffs in the proceedings where work was done on behalf of both plaintiffs is to be set aside upon the bringing of short minutes to this effect; (2) Matter is to be remitted to the costs assessor for assessment on the basis that in determining which are the first plaintiff’s costs of the proceedings, no discount or deduction should be made on the grounds that particular costs were incurred for work which advanced or referable to the cost of the second plaintiff as well as the first plaintiff upon the bringing of short minutes to this effect; (3) Short minutes to deal with the extension of time issue.;
JUDGMENT
The costs issues………………………………………………………1
The 3 May 1999 Judgment…………………………………………..4
The sole costs agreement…………………………………………….6
The relevant correspondence…………………………………………7
The plaintiff’s submissions…………………………………………12
The defendant’s submissions……………………………………….18
Jurisdiction………………………………………………………….19
The Slip Rule……………………………………………………….19
Declaration………………………………………………………….26
Legal Profession Act 1987………………………………………….32
Extension of Time…………………………………………………..37
Rule of Thumb………………………………………………………39
Short Minutes of Order………………………………………………48
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION - COMMERCIAL LISTEINSTEIN J
31 March 2000
050268/95 - CURRABUBULA HOLDINGS PTY LIMITED and PAOLA HOLDINGS PTY LTD v STATE BANK OF NEW SOUTH WALES LIMITED
12971/99 - CURRABUBULA HOLDINGS PTY LTD v STATE BANK OF NEW SOUTH WALES
1 On 30 March 1999 judgment was delivered in proceedings 50268/1995. The parties were granted leave to address further submissions on specified issues including costs. Following the taking of those submissions a further judgment was delivered on 3 May 1999 dealing inter alia with the cost issues [“the costs judgment”]. Orders were made on 5 May 1999 as follows:
The costs issues
2 On 22 September 1999 the first plaintiff in the proceedings [Currabubula Holdings Pty Ltd, referred to herein as "Currabubula"], filed an application being proceedings 91799/1999 in relation to these costs orders. Mr Peter D Scammell was appointed the costs assessor in relation to this application. Mr Scammell had also been appointed as the costs assessor in relation to an earlier application lodged by the plaintiffs in relation to costs orders which had been made by the Court in the proceedings on 13 November 1999. In distinguishing between the two applications the assessor has referred to the earlier application as the "November bill" and to the later application as the "judgment bill". 3 The assessor has accepted a submission by the defendant (“the Bank”) that the Court order should be applied such that:
The defendant to pay to the first plaintiff 90% of the first plaintiff's costs of the proceedings as assessed or as agreed;
The second plaintiff to pay to the defendant 20% of the defendant's costs of the proceedings as assessed or agreed.
4 In accepting the submission the assessor acted on the basis that there is an established principle of taxation that, where an order for costs is made in favour of only one of two jointly represented parties, then the successful party can recover only half its costs for common work. 5 Currabubula asserts inter alia that:
(b) Currabubula recovers only 45% of its costs of the proceedings, where the costs were incurred jointly for the benefit of both plaintiffs.
(a) Currabubula recovers from the Bank 90% of its costs of the proceedings, where the costs were incurred solely by Currabubula.
6 Currabubula has sought to approach the Court to correct the suggested error by two routes. The first route is by the filing of a new summons in proceedings 12971/1999 [“the assessment proceedings”] in which it claims:
(a) The assessor has misconstrued the costs order, or wrongly applied the principle of taxation in this case, or both;
(b) The principle of taxation applied by the assessor does not exist; or alternatively
(c) The orders for costs should be amended pursuant to the slip rule.
7 The second route is by the filing of a notice of motion in both proceedings for seeking inter alia the following orders:
(1) An order that the decision of the costs assessor of 10 November 1999 (or alternatively 20 October 1999) that the costs to be assessed in [the assessment proceedings] be apportioned on an equal basis between the first and second plaintiff's referred to in [the proceedings] where work was done on behalf of both plaintiffs, be set aside.(2) To the extent necessary, an order extending time for instituting this appeal until filing of the summons herein.
(3) An order that the matter is to be remitted to the costs assessor for assessment on the basis that in determining what are [Currabubula's] costs of the proceedings, no discount or deduction should be made on the ground that particular costs were incurred for work which advanced or was referable to the case of [the second plaintiff, Paola Holdings Pty Ltd, (“Paola Holdings”)] as well as of [Currabubula].
The grounds specified in the summons are as follows:
The plaintiff's appeal is from that part of the assessor's decision as is summarised in paragraph 1 above.
The assessor erred, as a matter of law, in construing costs order 3 made on 5 May 1999 and entered on 11 May 1999 in the manner set out in paragraph 1 above
The assessor erred, as a matter of law, in acting as if the Court had made an order that [Currabubula] was to recover 90% of 50% of the costs for work which advanced or was referable to the case of Paola Holdings as well as of [Currabubula] from Paola Holdings itself instead of the [Bank].
The assessor erred, as a matter of law, in finding, or assuming, that [Currabubula] was liable to its solicitors for only 50% of the costs for work which advanced or was referable to the case of Paola Holdings as well as of [Currabubula].
The assessor ought to have decided, as a matter of law, that on the proper construction of the said order he was required to act as set out in paragraph 3 above.8 It is convenient to commence by setting out paragraphs 65-79 of the judgment of 3 May 1999.
(1) Declaration that on the proper construction of order 3 made on 5 May 1999, Currabubula is entitled to recover from [the Bank] 90% of its costs of the proceedings whether those costs were incurred:(a) exclusively for the advancement of its own case against [the Bank]; or
(b) jointly for the benefit of both plaintiffs’ cases against [the Bank].
(2) In the alternative, an order for the avoidance of any doubt or further to or in correction of order 3 made on 5 May 1999 that in determining what are [Currabubula’s] costs of the proceedings, no discount or deduction should be made on the ground that particular costs were incurred for work which advanced or was referable to the case of [Paola Holdings] in addition to that of [Currabubula].
The 3 May 1999 Judgment
9 There is no issue but that Gadens Lawyers [“Gadens”] entered into a costs agreement with Currabubula dated 25 February 1997. There is no issue but that no such costs agreement was entered into between Gadens and Paola Holdings. There is no issue but that all fees received and costs incurred have been met by Currabubula [affidavit of Mr A. G. Koumoukelis made on 24 December 1999].
65. The plaintiffs submit as follows:-
‘ (a) There is no reason why the general rule as to costs should not apply in this case.
(b) Costs should follow the event.
(c) The plaintiff has been successful in establishing liability in respect to its defamation claim and contract claim. The defendant has been wholly unsuccessful in denying liability.
(d) There is no additional cost borne by the introduction of the second plaintiff as the costs involved in that part of the case relied upon and rested with the evidence and submissions adduced for the first plaintiff.
(e) Currabubula has been successful on its breach of contract claim. Paola Holdings was added to ensure that there was "no standing problem" and its addition has caused no additional costs that have been identified by the Bank.’
66. The Bank submitted that the plaintiffs should pay the Bank's costs in relation to the issues on which the plaintiff was unsuccessful:-
67. The Bank submitted that to the extent that the Bank is ordered to pay the plaintiff's costs in relation to the issues on which the plaintiff was unsuccessful, the Bank ought not be required to pay the proportion of the plaintiff's costs of its solicitor and counsel as referred to in paragraph (d) above.
‘ (a) Paola Holdings was totally unsuccessful and should never have been joined as a party and ought pay the Bank's costs involved in the joinder.
(b) Currabubula should pay the Bank's costs in relation to the issues involving the sale of Durhambone and Gabo. These costs include the whole of Mr Spackman's fees.
(c) Currabubula should pay the Bank's costs in relation to Ubix. These costs include all of the fees of Mr Lorrimer and Mr Partridge and a significant part of the Arthur Anderson fees.
(d) Currabubula should pay that proportion of the Bank solicitors and counsel's fees as are attributable to.’
- valuation of the properties, the Ubix's shares, the deed of release, the assertion that Currabubula was entitled to take representative proceedings, the estoppel claim, any issues relating to Paola Holdings.
68. In particular, it was submitted that a significant part of Mr Hardy's fees should be disallowed on the basis that they relate to the valuation of the properties or the Ubix shares.
69. To my mind, Currabubula, having substantially succeeded in establishing liability in respect of its contract and defamation cause of action it is entitled, subject to one consideration, to the benefit of the usual rule that costs follow the event. The matter to which I refer is the undoubted fact that Currabubula failed to establish liability in the Bank on a number of heads of damage.
70. Taking that matter into consideration, the appropriate order is, in my view, that the Bank pay 90 per cent of Currabubula Holdings' costs of the proceedings.
71. In relation to Paola Holdings, it has failed in establishing any causes of action on which it sued. However, it is fair to say that most of the costs of the Bank which were incurred in defending itself against the claims brought by Paola, were the very same costs as were incurred in its defence to Currabubula's claims.
72. Mr MacFarlan QC submitted, on behalf of the Bank, that the position with respect to Paola Holdings was that it simply did not succeed and as I understood the submission, that Paola Holdings should pay the Bank's costs of the proceedings or of the proceedings in so far as they involved Paola Holdings' claims.
73. The circumstances in which the Paola Group was joined were somewhat unusual. The question of locus remained a matter for decision of the trial judge - the matter is generally referred to in the Judgment.
74. Mr Ryan submitted that it was not appropriate to punish one group of plaintiffs in the present proceedings. The submission was that because one plaintiff is present in the proceedings to ensure that any standing problems are overcome, it is inappropriate to visit upon that unsuccessful plaintiff the costs of the proceedings and thereby to effectively deprive the successful plaintiff of its costs. Mr Ryan submitted that a qualification to this proposition was where the Court could identify substantial segments of the case which related to, and only to, the unsuccessfully joined plaintiff's suit.
75 Mr Ryan submitted that it was incorrect to view the case as one in which both plaintiffs substantially failed. Mr MacFarlan had submitted earlier that the appropriate way to view the proceedings was that a claim of $31.84 million had been particularised and a damages liability found in the order to which I have earlier referred in this judgment. Mr MacFarlan's submission was that in those circumstances, the plaintiffs had recovered something less than 3 per cent of their claim and that in perspective, this is an extreme case where the plaintiffs were effectively unsuccessful, having succeeded only in very small measure in relation to Currabubula alone.
76. Mr Ryan submitted that it was incorrect to view the case as one in which both plaintiffs substantially failed. He submitted that Currabubula had succeeded in its contract claim and in its defamation claim. I accept Mr Ryan's submission that the vast majority of the trial involved the question of whether the Bank had breached its contractual obligations and had defamed Currabubula. The parties engaged in each presenting a vigorous case, the plaintiffs in support of the proposition that the contract had been breached and that Currabubula had been defamed and the defendant negating those propositions. It seems to me, that it is simply not realistic to suggest that the case is to be properly viewed as one in respect of which the plaintiffs effectively failed.
77. Mr MacFarlan also addressed submissions suggesting that as part of the Court's discretion, the Court ought take into account the fact that the Group was in default at material times in such a way that the Bank had been entitled to terminate the facility were it minded to do so.
78. To my mind, that consideration requires to be very carefully addressed indeed. The Bank through the whole of the proceedings accepted that it relevantly, save for one particular alternative, had not sought to terminate the facility. The suggestion then, that the Group having been found to be in default in such a way that the Bank was entitled, had it been disposed to do, so to terminate the facility, should be taken into account in some special way in the exercise by the Court of its discretion, is therefore rejected.
79. To my mind, the appropriate order here is that Paola Holdings pay 20 per cent of the Bank's costs of the proceedings.
The sole costs agreement10 On 30 September 1989 the Bank’s solicitors, Mallesons Stephen Jaques [ "Mallesons"] wrote to Gadens, by letter which was copied to the assessor, advising inter alia:
The relevant correspondence
11 On 14 October 1999 Gadens responded by letter addressed to Mallesons and also copied to the assessor. This letter was in the following terms:
“Both plaintiffs instructed the one firm of solicitors, yet there is no evidence of the necessary apportionment of "common" costs, which arises as only one plaintiff was successful.
Where a solicitor acts for two or more parties in the same proceedings, each successful party is only entitled to his proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his behalf: Beaumont v Senior (1903) 1 KB 282; Keen v Towler (1924) 41 T.L.R. 86.
Accordingly, the first plaintiff's bill should be withdrawn and amended to reflect the necessary apportionment of 50% for "common" items after the joinder of the second plaintiff and 100% for any items incurred exclusively on behalf of the first plaintiff.”12 Mallesons then responded on 15 October 1999 by letter, again copied to the assessor, in the following terms.
“We refer to your letter of 30 September 1999.
We reject the authorities cited by you are [sic] determinative of the basis upon which our client is to prepare its bill of costs on the basis upon which this assessment is to proceed.
The legal principles to be applied in New South Wales as to the assessment of costs on a party/party basis are set out in, inter alia, subdivision 3 of Part 11 of the Legal Profession Act, sections 208F and following. These principles were recently restated in the matter of Ian Charles Turner v Neale Dennis Pride (unreported NSWSC 10921/99, Master Malpass 26 August 1999). We enclose a copy of that decision for your information.
It is now well settled that the principles applicable to the assessment of party/party costs involves a two step process namely determining:
1. whether or not it was reasonable to carry out the work to which the costs relate; and
2. what is a fair and reasonable amount of costs for the work concerned.
The principles do not rest upon, as was the case in the authorities to which you refer, issues of liability to pay.
The first plaintiff says that the bill of costs as filed and served reflects the work which was reasonable and necessary to be carried out in relation to the conduct of its matter. No component of the bill of costs reflects work undertaken in respect to the conduct of the second plaintiff’s case.
The authorities do not support the proposition advanced by you in your letter. The authorities do not refer to “common” costs or items.
The cases referred to go to the issue of liability of costs as between parties and the effect upon a costs order. The authorities to which you refer were determined in a legal environment completely different to the current legislative structure in which this assessment is being determined.
It is not disputed that the first plaintiff would not be entitled to recover costs it may have incurred (if any) in the unsuccessful conduct of the second plaintiff’s matter. The first plaintiff says that the costs referred to in the bill of costs were necessarily incurred by the first plaintiff in the conduct of its claim.
We are instructed that the issue of which party bears the liability in these proceedings in relation to costs is irrelevant in light of the legislative scheme which applies. If the costs assessor considers the issue of liability to be relevant, our client reserves the right to make submissions in that regard. Accordingly, there is no basis upon which the first plaintiff’s bill of costs should be withdrawn or amended.
Further, on any view, the defendant’s contentions as to the allocation of costs cannot apply to any costs incurred prior to the joinder of the second plaintiff to the proceedings, namely prior to the notice of motion filed on 4 August 1997.
The first plaintiff says that it is for the defendant to identify in accordance with the Legal Profession Act 1987:
1. those costs to [sic] which the defendant says were not reasonably incurred by the first plaintiff in the conduct of its case
2. those costs which the defendant says are not fair and reasonable;
3. explain the basis upon which that objection is made.
We remind you that the authorities as to costs make it clear that an order for costs on a party/party basis is given by the law as an indemnity to the person entitled to them (see Gundry v Sainsbury [1910] 1KB 645). In that context, costs do not refer simply to money but include time expended by the solicitor on professional skill and labour (London v Chorley [1884] 13 QBD 872).
For all of these reasons, we reject the contention that our client must amend its bill of costs in the manner suggested.”
13 The assessor on 20 October 1999 wrote to Gadens and to Mallesons in the following terms:
“We refer to your letter of 14 October 1999 and to the enclosed copy of Turner v Pride.
With respect, while Turner v Pride may establish some general principles relevant to the assessment of costs, it is not relevant to the issue of apportioning costs between two plaintiffs, one of whom has had a costs order made in its favour and one of whom has not.
Adopting the language of Turner v Pride, it appears to be your position that it is ‘fair and reasonable’ for all tasks undertaken on behalf of both Currabubula and Paola Holdings Pty Limited to be treated solely as costs incurred by Currabubula rather than for them to be apportioned on a 50:50 basis. This cannot be correct.
You state that ‘no component of the bill of costs reflects work undertaken in respect of the conduct of the second plaintiff’s case’. This assertion lacks credulity when you have included in the first plaintiff’s bill of costs many attendances such as attending on every day of the hearing and the preparation of the tender bundle. We ask rhetorically whether there can be any doubt that this work was undertaken in respect of both plaintiffs.
In the circumstances we press our request that you withdraw and amend the first plaintiff’s bill so that it reflects the necessary apportionment as detailed in our letter of 30 September 1999.”
14 Gadens wrote to the assessor on 5 November 1999 by letter which was copied to Mallesons, in the following terms:
“I have considered the letter from Mallesons to Gadens of 30 September, the letter from Gadens to me of 14 October and the letter from Mallesons to Gadens of 15 October.
I agree with the views expressed by Mallesons in their letter to Gadens of 30 September. Work done on behalf of both the first and second plaintiffs must be apportioned. While I have not yet reviewed the bill I expect apportionment to be equal in many cases but obviously some work will relate only to the first plaintiff, including all work done before the second plaintiff was joined, and some work will relate only to the second plaintiff.
As the Bill is not apportioned, I assume that Mallesons will make submissions in relation to the apportionment of various items in their Responses and that Gadens will agree with some and disagree with others of those submissions. I will then make a determination.
Section 208 of the Legal Profession Act requires that I must not determine an application unless I have given each party a reasonable opportunity to make submissions. At this stage it appears appropriate that Mallesons let me have their submissions and that Gadens then let me have any responses they wish to make in reply. Would Mallesons please let me know as soon as possible when they expect to be in a position to make submissions. I hesitate to impose a time limit in view of the size of the Bill but I expect that about three weeks will be sufficient.
I will be on leave from mid December until early February. Although I doubt that the assessment can be finished before I leave I am anxious to make as much progress as possible so that it can be completed as early as possible after my return.
When writing, would the parties please distinguish this matter by referring to it as the Judgment Bill and quoting its number, 91799/99. This will assist in avoiding confusion with the other matter which I will call the November Bill and which is number 91205/99.
Would each party please continue to forward correspondence to me by mail or DX and not by facsimile and send copies of that correspondence to the other party.
In the interest of fairness and openness of communications, please note that I will not discuss this assessment with either party other than in correspondence.”
15 The assessor on 10 November 1999 wrote to Gadens and to Mallesons in the following terms:
We refer to your letters dated 28 October 1999 and 20 October 1999.
We request the assessor review his determination as to the time within [sic] the defendant may lodge its objections.
We note that the solicitors for the defendant acknowledge in their letter of 26 October 1999 that the issue of apportionment of costs between the two plaintiffs may apply to all items in the bill from number 881 to 2656 as well as some disbursements. These attendances represent the first one hundred and twenty-four pages of the total three hundred and fifty-one pages claimed in respect of professional fees. This in turn represents a total $86,053 of professional fees claimed.
The bill of costs was served on 26 August 1999. The first time the issue of apportionment was raised was by the defendant’s letters dated 17 September 1999 and 22 September 1999. This was followed by comprehensive submissions by letter dated 30 September 1999 that was the subject of our response of 14 October 1999. It is reasonable to conclude that the defendant knew the true extent of its objections when it made its submissions.
Up to the letter of 26 October 1999, this represents a period of almost two months in which the defendant could form its view as to any objections it had for items 1 to 880.
In those circumstances, the first plaintiff says the defendant has had more than ample opportunity to prepare its objections and should provide its objections forthwith and no later than 12 November 1999.
The first plaintiff further requests the assessor allow the first plaintiff a short period of time say one week, in which to provide any responses to those objections.
The first plaintiff further requests that given the assessor will be on leave from 15 December 1999, if possible, an interim certificate be issued by the assessor in respect of those items prior to taking leave.
In relation to your letter of 20 October 1999, our client maintains that the principles expressed by Mallesons are contrary to the law. We request the assessor reduce his determination to written reasons.
It is apparent that the issue of a solicitor acting for more than one party is quite common as a matter of practice. The authorities relied upon are English and do not refer to the provisions of the Legal Profession Act. Further, in this matter, the principle works both for and against each party.
The orders made by the Court on 8 May 1999 included an order that the second plaintiff pay the costs of the defendant as assessed or agreed. Applying the same principle expressed by the defendant’s solicitor, then not all of the defendant’s costs can be sought as against the second plaintiff.”
16 Mr Gleeson of counsel appearing for Currabubula initially took the Court through a close examination of paragraphs 65 to 68 of the costs judgment. He submitted that it was apparent that one of the matters put to the Court on Currabubula’s part had been that Paola Holdings had not substantially added to the costs of the proceedings because it was there merely as a fall back in the event that there was a standing problem with Currabubula. He referred in this regard to paragraph 65 of the judgment. 17 He then pointed out that the Bank had been taking the position that Paola Holdings had been unsuccessful and ought to pay various components of the Bank’s costs. He referred in this regard to paragraphs 66 and 67 of the judgment. 18 He then submitted that paragraphs 69 and 70 showed that the Court was moved essentially by the proposition that Currabubula had obtained substantial success on its contract and defamation claims so that the usual costs order would follow subject to one matter. The proviso was that it was necessary to give some credence to the Bank’s submissions that Currabubula had failed on some of its claims for particular heads of damage. 19 Mr Gleeson then submitted that the Court’s reasoning led it in paragraph 70 of the judgment to indicate the appropriate order as requiring that the Bank pay 90% of Currabubula's costs of the proceedings. Mr Gleeson's submission was that the words "the costs of the proceedings" as used in the judgment and the order were deliberate and were intended to reflect all costs incurred by Currabubula in the proceedings. The submission was that the Court did not indicate, nor express, any intent that there would be some further reduction in Currabubula's costs on account of the fact that Paola Holdings had for a period of time also asserted similar claims. 20 Mr Gleeson then took the Court to what he submitted was a very important finding to be found in the second sentence of paragraph 71, this being that most of the costs of the bank which had been incurred in defending the claim by Paola Holdings were the very same costs as were incurred in defending Currabubula's claims. The submission was that the Court was drawing attention to a particular feature of the matter which was that the very same costs had been incurred. Mr Gleeson then turned to page 26 of the judgment where the Court recorded what Mr Gleeson described as an incorrect submission by Mr Macfarlan QC, which was that Paola Holdings had failed and therefore ought to pay all the Bank’s costs or at least the costs involving its own claims. On Mr Gleeson's submissions, Mr Macfarlan was focusing on a correct fact, mainly the failure in the proceedings of Paola Holdings, but ignoring the reality which the Court had identified in paragraph 71 of the Judgment. 21 Mr Gleeson then made reference to paragraphs 73-76 where Paola Holdings was said to have been joined in an unusual circumstance, the question of standing having had to be determined by the trial Judge. 22 Mr Gleeson next pointed out that the judgment then dealt with the submission which Mr Ryan, counsel for the plaintiffs, had put, which was that what Mr Macfarlan had been seeking was in effect a form of punishment. On Mr Gleeson's submissions, Mr Macfarlan was seeking to have a punishment imposed by reason of Currabubula's decision to join Paola Holdings to guard against standing issues. The form of punishment was to effectively deprive Currabubula of its costs. Mr Gleeson submitted that what Mr Macfarlan had been putting and what the Court addressed in these paragraphs, was Mr Macfarlan's application for what was being given by the Bank on the one hand, to be taken away on the other hand through orders concerning Paola Holdings. Mr Gleeson submitted that Mr Ryan's submission and approach had been that it would be inappropriate to make orders which effectively punished Currabubula. 23 Mr Gleeson then referred to the 3rd sentence of paragraph 76 of the Judgment in which the finding accepted Mr Ryan's submission that the vast majority of the trial involved the question of whether the Bank had breached its contractual obligations and had defamed Currabubula. Mr Gleeson sought to rely on that finding as indicating what the Court was doing and intending to do. He particularly drew attention to the last sentence of paragraph 76 submitting that it is clear from the judgment that it was simply not realistic to suggest that the case should properly be viewed as one in which the plaintiffs effectively failed. 24 Mr Gleeson then in referring to the proposed order set out in paragraph 79, drew attention to use of the words "costs of the proceedings". He pointed out that these were the same words as the Court had used with respect to Currabubula in paragraph 70. He then drew attention, by contrast, to paragraph 72, again referring to Mr Macfarlan's two submissions. The most extreme submission, so Mr Gleeson put, was that Paola Holdings ought to pay presumably all of the Bank’s costs in the proceedings; the lesser submission being that Paola Holdings ought to pay all of the Bank’s costs of the proceedings insofar as they involved Paola Holding's claims. In Mr Gleeson's submission, reading paragraphs 79 of the judgment in the light of the whole of this section of the judgment, but in particular in light of paragraph 72, what the Court had determined in paragraph 79 was plainly that Paola Holdings would pay 20% of the Bank’s costs of the proceedings - not simply the costs relating to Paola Holdings claims in the proceedings. Mr Gleeson then made two observations about the expression "costs of the proceedings". Mr Gleeson’s submission was that the reasons for Judgment showed that the expression had been chosen deliberately to avoid getting into further exercises of apportionment. On Mr Gleeson's submission what that meant was that in the current taxation, Currabubula needed to establish, bearing in mind the terms of the Legal Profession Act, what were the costs which it incurred to its lawyers in the proceedings; that it loses 10% and similarly, that the Bank, subject to one question, having established its costs of the proceedings, could then recover 20% of those costs from Paola Holdings. The proviso was that there might be a question as to whether the Court intended that the obligation of Paola Holdings to pay 20% of the Bank’s costs commenced to run only from the joinder of Paola Holdings. 25 Mr Gleeson then turned to the problem which had emerged and which is thrown up reasonably clearly by the above set out correspondence. He submitted that there were immediately two particular matters that required to be noted. The first was that it was only an issue which had arisen with respect to Currabubula. The second was that it did not give Currabubula any discount were additional plaintiffs to be joined. He then referred to the evidence that there had never been a costs agreement entered into with Paola Holdings. Hence he submitted that if it was appropriate to focus upon the question of liability, Currabubula was liable to pay to Gadens, all of the costs for work done which benefited or advanced Currabubula's case and Currabubula would receive no discount merely because a second plaintiff had been joined at some point. 26 Mr Gleeson then referred to the letter from Mallesons of 30 September 1999. He pointed out that this was where the problem had emerged. I do not understand there to be any issue between the parties but that this was the first time when the matter was raised. As Mr Gleeson made plain, the Bank’s solicitors for the first time sought to take the point that there existed a principle of taxation, that where a solicitor acted for two parties, one successful and one unsuccessful, only a proportion of the costs for the common work could be recovered. Mr Gleeson submitted and I certainly accept, that in fact it had never been put to the Court during the course of the costs argument, that the Bank would be seeking to apply such a principle when it came to taxation of a bill of costs. No such submissions had been put to the Court at that time. Nor had it been put that any costs order made in favour of Currabubula, would effectively be halved in respect of common work when it came to taxation. Mr Gleeson's submission is that in circumstances where the parties were clearly addressing the Court during the costs hearing, on how Paola Holdings would be treated, it was incumbent upon the Bank, if it wished to assert this supposed principle, to raise the matter then. 27 Mr Gleeson's next submission was that it followed from what the Court had intended to do as expressed in the reasons for judgment, that had any such rule of thumb been advanced, the Court would have rejected its application in this case. Mr Gleeson submitted that there were three reasons why the Court would have so rejected any such rule of thumb as applicable. These were as follows:
“I have received Gadens’ letter of 5 November.
Having regard to the history of the Bills in this matter I consider it is reasonable to allow Mallesons until Friday, 3 December to provide its Submissions. Presumably, those Submissions will be provided earlier if possible.
I appreciate Gadens’ offer to provide Responses to those Submissions within one week. If that can be done, which I consider to be doubtful, I will [try][sic] to do as much work on the assessment as I can before going on leave. It is likely, however, that consideration of the various Submissions will lead to a requirement to produce documents. Also the assessment may be further delayed by matters arising from my determination in relation to the November Bill about which I have written today.
I will consider whether it is possible to issue an interim Certificate when I have considered the Submissions from Mallesons.
In relation to the matter of apportionment, there is little I can add to what I said in the second paragraph of my letter of 20 October. If an affidavit is prepared, or an attendance is made, on behalf of both the first and second plaintiffs, and the work related equally to each claim, it must, I consider, be apportioned on an equal basis. Otherwise, costs would be recovered in favour of the second plaintiff when costs were, apparently, awarded against the second plaintiff. I am not involved in the assessment of the defendant’s costs against the second plaintiff but I assume it will be likely, as suggested by Gadens, that the principle will work in the same way in that assessment.”
The plaintiff’s submissions
28 Mr Gleeson's overall submission was that for those three reasons, had the Bank raised the rule of thumb at the appropriate time during the costs argument (which on his submissions it was incumbent upon the Bank to do), the Court would have rejected its application in these proceedings, whatever be the precise status of the suggested rule. This led to Mr Gleeson’s submission that if, on its proper construction, the subject orders have had the result for which the Bank contends [which Mr Gleeson submitted it did not have], there had been a slip which could be corrected by further order. 29 Finally and before referring to the authorities, Mr Gleeson submitted that the assessor had clearly now made a “decision” on this question in favour of the argument put by the Bank. Mr Gleeson accepted that there had not been a “determination”. The submission was that there had been a decision as to what the order meant, which had been carried into effect in the further course of the taxation. In this regard Mr Gleeson took the Court to the letter from the assessor of 20 October 1999 and, in particular, to the second paragraph of that letter; to the statement in Gadens letter of 5 November 1999 that "our client maintains that the principles expressed by Mallesons... are contrary to the law. We request the assessor reduce his determination to written reasons"; and to the assessor's letter of 10 November 1999 where, in the last paragraph, the assessor makes plain that on the matter of apportionment there is little he can add to the second paragraph of his letter of 20 October and adds that "If an affidavit is prepared, or an attendance is made, on behalf of both the first and second plaintiffs, and the work related equally to each claim, it must, I consider, be apportioned on an equal basis. Otherwise, costs would be recovered in favour of the second plaintiff when costs were, apparently, awarded against the second plaintiff". 30 Mr Gleeson submitted that the assessor, particularly from the terms of his letter 20 October, appears to have decided that because the Court ordered Paola Holdings to pay 20% of Currabubula's costs, it followed as a matter of law that Currabubula must lose 50% of its entitlement against the bank. This Mr Gleeson submitted was totally erroneous on the reasons for judgment. But, so Mr Gleeson submitted, this is in fact the foundation of the application of the so-called rule of thumb. And the assessor appeared in the last sentence to accept the logic of the converse proposition that there would be a reduction in the Bank’s recovery against Paola Holdings, because costs had been awarded against the bank and in favour of Currabubula. 31 Mr Gleeson submitted that what the assessor has in fact decided is that any costs incurred by the Bank for work done relevant to claims by both Currabubula and Paola Holdings will be apportioned, such that the Bank recovered 20% of 50% of the costs. This Mr Gleeson submits "is simply one million miles away from anything in [the] Judgment".
(1) That the Court had identified the limited and unusual purpose for which Paola Holdings had come into the case and the fact that its joinder had not significantly introduced new issues or additional costs . [Mr Gleeson here particularly relied upon paragraphs 71, 73 and 76 of the Judgment.](2) Any such rule of thumb would have introduced a further punishment being inflicted upon Currabubula, which would recover only 50% of its costs for the common work - and would mean that Currabubula could only look for the balance to its own group company, rather than to the Bank which it had defeated in the proceedings.
(3) That the Court had quite deliberately chosen the expression "costs of the proceedings" in both costs orders to avoid any form of further disaggregation . Mr Gleeson sought to test this matter in terms of the order against Paola Holdings. Assuming, for the purposes of the argument, that the order related to the period after the joinder, Paola Holdings had been ordered to pay 20% of the Bank’s costs of the proceedings . Mr Gleeson pointed out that this was all of the costs - even on issues where Paola Holdings had not been a moving party. Mr Gleeson’s submission was that the Court was seeking to avoid, sensibly, a further inquiry at the taxation stage into which were the specific issues in relation to which Paola Holdings had not been a moving party and was to also avoid a further inquiry at the taxation stage into which had been, and which had not been, overlapping issues.
32 Ms McCallum of counsel, appearing for the Bank, began with the question of jurisdiction, submitting that the Court had no jurisdiction to examine the correctness of the view adopted by the costs assessor at this stage in the assessment process. In the first place, Ms McCallum addressed the question of the Court’s power to issue declaratory relief. She submitted that the Court should not, in its discretion, grant declaratory relief because to do so would interrupt the assessment process and pre-empt the task of the costs assessor, and that the size and complexity of that assessment process was not such as to make such an interruption practically imperative. 33 In the second place, Ms McCallum submitted that s208L(1) of the Legal Profession Act 1987 did not permit a party to appeal from an ongoing assessment process, but only from an assessment process which was completed. Ms McCallum took issue with the contention of Mr Gleeson that there was a relevant difference in the Act between a ‘determination’ and a ‘decision’, submitting that the purpose of s208L(1) was to create a right of appeal from a decision of a costs assessor on a question of law once a determination was complete, whereas s208M(1) only granted an avenue of appeal from a determination upon the leave of the Court being granted. Ms McCallum also placed reliance on s208L(2) which, in her submission, assumes that an appeal can proceed only from a completed determination. In the contention of the Bank, the costs assessor has not made either a determination or a decision and as such no appeal can lie under s208L of the Legal Profession Act to the Court. Alternatively, the Bank submits that the time within which Currabubula could appeal from the decision of the costs assessor, has expired. 34 As to the third possible source of jurisdiction relied on by Mr Gleeson for Currabubula - the ‘slip rule’ - Ms McCallum submitted that this was not a case where the slip rule could be appropriately employed because it was not clear that the ‘mistake’ sought to be corrected was, in fact, a mistake. The slip rule is only, in her submission, apt to correct mistakes which are clearly mistakes. 35 Upon the question of the application of the principle of taxation, the Bank submitted that the principle was well established and was appropriately applied to this circumstance. If the principle were not applied, the Bank submitted that the effect would be that Paola Holdings would get half of its costs provided for by the Bank when, in fact, costs had been awarded against Paola Holdings. In argument, Ms McCallum for the Bank disputed the contention of Mr Gleeson for Currabubula that the Legal Profession Act excluded the application of the rule of thumb by the costs assessor. In her submission, the rule of thumb is a matter which may properly be considered by the assessor in considering under s208A(1)(c) of the Legal Profession Act, ‘the fairness and reasonableness of the amount of the costs in relation to that work’.
The Defendant’s submissions
36 A threshold question to be determined concerns the jurisdiction of the Court to engage in a review of the correctness of the view taken by the costs assessor at this stage in the assessment process. Mr Gleeson for Currabubula asserts three sources of jurisdiction. First, the plaintiff asserts the Court has an inherent jurisdiction to correct a mistake; the so called ‘slip rule.’ Second, the plaintiff asserts that the Court has jurisdiction to make a declaration as to the proper interpretation of its costs order under s 75 of the Supreme Court Act 1970. Third, the plaintiff asserts that the Court has jurisdiction under s 208L of the Legal Profession Act 1987. The Bank denies that the Court has jurisdiction at this stage of the assessment to review the correctness of the cost assessors view. It is convenient to first examine the power of the Court under the ‘slip rule;’ then consider the power of the Court to make a declaration and lastly to consider the jurisdiction of the Court under the Legal Profession Act 1987.
Jurisdiction
37 Carrabubula claims that it is open to the Court to correct the alleged error of the costs assessor by applying what is known colloquially as the ‘slip rule’ and thereby amending the costs order to make plain that the first plaintiff’s costs are not to be apportioned. 38 A Court possesses an inherent power to correct mistakes in its orders arising from inadvertence: Milson v Carter [1893] AC 638 at 640 per Lord Hobhouse, approved in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594. A power to a like effect is to be found in Part 20, Rule 10(1) of the Supreme Court Rules, which reads -
The Slip Rule
Where there is a clerical mistake or an error arising from an accidental slip or omission in a minute of a judgment or order or in a certificate, the Court on the application or any party or of its own motion, may, at any time, correct the mistake or omission.
39 As emphasised by Lockhart J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 392, the purpose of the application of the slip rule is to avoid injustice. The scope of the Court’s ability to correct inadvertent mistakes may be elucidated by consideration of some of the more recent and pertinent authorities.
40 In Ex parte Herman; Re Mathison (1961) 78 WN(NSW)6 Kinsella J applied the slip rule to amend an ambiguous costs order so as to ensure that costs were not awarded against a respondent magistrate who had made only a submitting appearance, this being His Honour’s clear intention. In Arnett v Holloway [1960] VR 22 at 35 the Full Court of the Supreme Court of Victoria rejected the view of the trial judge that the slip rule was confined to cases where the order of the Court failed to express an intention that the Court in fact had, the Full Court holding that the rule also encompassed an order which failed to express an intention the Court would have formed if the parties had not inadvertently failed to draw a matter to its attention. See also Tak Ming Co v Yee Sang Co [1973] 1 WLR 300.
41 The English Court of Appeal applied the slip rule in Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445 where Harman LJ had unintentionally expressed his order so as to provide for an immediate taxation as to costs. Drawing upon his own recollection of the proceedings, Harman LJ held that this was not the intention of the Court and applied the slip rule to pronounce an order which did not provide for the immediate taxation of costs.
42 The Full Court of the Supreme Court of Victoria again considered the rule in Brew v Whitlock [1968] VR 504 where the Court held that the rule did not extend to matters which were not inadvertently omitted by the Court or the parties but which only occurred to the parties as an afterthought. On appeal the High Court did not turn to the scope of the slip rule, rather disposing of matter upon the construction of the section of the Supreme Court Act 1958 (Vic) there under consideration: Whitlock v Brew (1968) 118 CLR 445.
43 Whitlock v Brew (supra) was approved by the NSW Court of Appeal in Coppins v Helmers (1969) 72 SR(NSW) 273. At first instance ((1968) 88 WN(NSW) 455), Isaacs J refused to apply the slip rule to a costs order to apportion costs equally against two co-defendants who had been found to be equally liable. His Honour pointed out that while he did not doubt that if the matter had been drawn to his attention he would have made the order sought, he would only have been able to do so after argument. The Court of Appeal (Herron CJ, Sugerman and Mason JJA) upholding the decision of Isaacs J, accepted that a Court could apply the slip rule to include an order ancillary to the substantial issue on a matter not adverted to during hearing, but considered that because the suitability of the order had been disputed on the merits and it could not be assumed that the making of the order would be ‘automatic,’ the slip rule could not apply. It was not sufficient that the Court felt that had the matter been raised at the hearing it would, on balance, have made the order sought.
44 Yeldham J refused to apply the slip rule in D’Angola v Rip Pioneer Gravel Co Pty Ltd [1977] 2 NSWLR 227 to amend an award of damages which was based upon a decision of the Court of Appeal later overturned by the High Court. His Honour pointed out that although the order he made may have been erroneous, it was deliberately made, was thought to be proper at the time and was not a result of inadvertence. Accordingly, it was not a proper candidate for the slip rule. See also Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (unreported, New South Wales Court of Appeal, 29 April 1991).
45 The slip rule was applied by the High Court in L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (1983) 151 CLR 590 where the Mason ACJ, Wilson and Deane JJ applied the rule to allow a plaintiff to claim interest on an award of damages for the period between the assessment of the trial judge and the conclusion of an appeal to the High Court. Counsel for the plaintiff had failed to advert to the matter during the appeal and the undisputed evidence was that this was a result of an accidental omission. This distinguished the case from Whitlock v Brew (supra) where it was not suggested that the plaintiff’s counsel intended, but forgot, to make an application for an award of interest. The slip rule was again applied by the High Court in Commonwealth v McCormack (1984) 155 CLR 273 where the Court omitted to order the respondent to repay money paid by the appellant under the terms of a judgment from which the appellant had successfully appealed, because the parties had failed to draw that matter to the Court’s attention.
46 The High Court once more applied the slip rule in Gould v Vaggelas (1985) 157 CLR 271 to amend the rate at which interest on a judgment was to be paid. Gibbs CJ, Wilson, Brennan and Dawson JJ considered that the fact that the omission was due to an inadvertent mistake and not an afterthought, the fact that the award of interest was fair and just - there being no doubt that if the matter had been raised at the time of hearing the Court would have awarded interest on the revised rate - and the fact that there was no undue delay by the party seeking the application of the slip rule, were factors which supported its application in this case. The Court stated that the power granted to a Court under the slip rule was to be exercised sparingly, in view of the public interest in the finality of litigation.
47 The English Court of Appeal again considered the scope of the slip rule in R v Cripps; Ex parte Muldoon [1984] 1 QB 686 where it overturned the decision of a lower Court to apply the slip rule to clarify a costs order which had awarded costs ‘properly incurred’ by a petitioner. Sir John Donaldson MR, delivering the judgment of the Court of Appeal, held that the lower Court had wrongly applied the slip rule to make unambiguous an ambiguous decision, not to clarify the expression of a clear decision where the expression of that decision had previously been ambiguous. This amounted to an impermissible variation of the decision. Gallop J of the Supreme Court of the ACT considered R v Cripps; Ex parte Muldoon in Symes v Commonwealth (1987) 89 FLR 356, applying the slip rule to amend an award for costs to ensure that costs were awarded on the Supreme Court scale, His Honour accepting that this is the order that would have been made had the plaintiff made an application to this effect during the hearing. A similar decision is that of Toohey J sitting alone in the High Court in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1987) 62 ALJR 151 where His Honour employed the slip rule to make an order for costs upon evidence that it had been the intention of the successful party to apply for costs but that they had mistakenly failed to do so.
48 In the Marriage of Bailey, EN and Bailey BE (1990) FLC 92-145 Mullane J of the Family Court ordered that one party (the husband) pay to another party (the wife) the proceeds of a investment account specified as $11,000. Redemption of the investment account failed to realise that amount and the wife sought an amendment of the order directing the husband to pay to her the balance. Mullane J refused, considering that this was a situation outside the scope of the slip rule for it was not due to an inadvertent omission or an ambiguous order that the intention of the Court was not carried out, but rather because the situation which subsequently obtained was not one which the Court or the parties contemplated. In Snell v Pryce (1992) 109 FLR 328 Angel J of the Northern Territory Supreme Court similarly refused to apply the slip rule to make an order awarding costs to a defendant who had successfully appealed against a criminal conviction. The evidence revealed that the defendant had no intention of seeking costs at the hearing and that the matter of costs was an afterthought.
49 The decision of the Federal Court in Elyard Corporation v DDB Needham Sydney (1995) 61 FCR 385 is the most extensive recent consideration of the scope of the slip rule. There the Full Court of the Federal Court affirmed the decision of Sheppard J, employing the slip rule to make an order extending the time in which a company may be wound up in insolvency under the Corporations Law, after counsel for the respondent inadvertently failed to apply for an extension despite intending to do so. The Full Court held that the time from which an order amended under the slip rule operates is from the time of the original order. Lockhart J was of the that only matters of which there can be no real controversy and no real difference of opinion were proper candidates for the application of the slip rule: at 390. Lindgren J, adopting a test from another field of discourse, considered that the matter must be one which, upon coming to light, evokes the response ‘Of course it must be attended to. It is obvious. It goes without saying’: at 404.
50 In Axis Aviation Pty Ltd v Avtex Air Services Pty Ltd (unreported, Federal Court of Australia, 16 August 1995) Hill J refused to apply the slip rule to a costs order limiting a party’s liability to the costs of one day of the hearing. Hill J accepted that the costs order was ambiguous, but considered that the order accurately reflected his intention and thus was not a candidate for the application of the slip rule. In Fischer v Commonwealth (unreported, Federal Court of Australia, 16 September 1997) Branson J used the slip rule to make an order for costs when counsel for the Commonwealth failed to make an application for costs, believing that it was not necessary or had already been made.
51 As the power to employ the slip rule is a jurisdiction granted to the Court to prevent injustice, the Court ought to be wary in the extreme of hampering itself by defining in an exhaustive way or laying down as a general proposition, the ambit of which situations will and will not be embraced by the rule. Subject to this caveat, the authorities appear to support the following statements of principle:
(1) The slip rule is a jurisdiction granted to the Court to prevent injustice caused to parties as a result of the actions of the Court : Elyard Corporation Pty Ltd v DDB Needham, Sydney Pty Ltd . Nevertheless, the competing interest in the finality of litigation dictates that the power be used sparingly: Gould v Vaggelas .
(2) The slip rule empowers the Court to correct mistakes in judgments and orders which stem from ambiguous language in the judgment or order (Ex parte Herman; In re Mathison ) or which are a result of an inadvertent omission on the part of the Court or the parties in the litigation: Arnett v Holloway . It allows the Court to amend a judgment or order which failed to accord with the intention of the Court or to amend a judgment or order which failed to accord with the intention the Court would have had if the matter had been raised by the parties: L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta.
(3) The slip rule cannot be employed to vary a decision which was itself ambiguous. The rule may be employed to better express an unambiguous decision where the expression of the decision (as opposed to the decision itself) was ambiguous: R v Cripps; Ex parte Muldoon, Axis Aviation Pty Ltd v Avtex Air Services Pty Ltd.
(4) The slip rule does not give the Court power to re-open or reconsider the correctness of an order made or to vary the order in the light of circumstances or matters which have arisen subsequent to the hearing by way of an afterthought as opposed to an inadvertent mistake in failing to raise the matter at the hearing: Brew v Whitlock, D’Angola v Rip Pioneer Gravel Co Pty Ltd.
(5) Matters particularly apt for correction under the slip rule include matters about which there can be no real disagreement or controversy; where an officious bystander would reply when asked if the amendment was appropriate: ‘Of course.’ It is not sufficient that the Court forms the view that had the matter been raised at the hearing, the Court would, on balance, have made the orders sought: Coppins v Helmers . The amendment cannot be one which would not be automatically made and cannot be one which requires the support of real argument in terms of the merits of competing submissions as to the order which ought to be made: Elyard Corporation v DDB Needham, Sydney.
(6) An amendment when made under the slip rule dates from the time of the original order and not from the time of the amendment: Elyard Corporation v DDB Needham, Sydney.(7) The Court possess a discretion as to whether to employ the slip rule to correct an inadvertent mistake or omission. Relevant considerations are the fairness and the justice of the amendment and any delay of the party seeking the amendment: Gould v Vaggelas.
53 It is to be recalled that the assessor made his interpretation of the costs order on what he considered to be the merits of the situation, pointing out that if the costs of the first and second plaintiffs were not apportioned, then the second plaintiff would recover some costs when costs were awarded against the second plaintiff. For that reason the assessor considered that this was, on the merits, the better interpretation of the costs order. As will be developed later, in this I think he was wrong. Nevertheless, I am not convinced that it is a conclusion so obviously wrong that an opposite conclusion is automatic; nor am I convinced that an officious bystander, if asked whether the costs assessor was wrong would reply: ‘Of course.’ I think his reply would be more equivocal than that. Accordingly, the slip rule may not be invoked in the present circumstances.
52 As the above examination of authorities shows, application of the slip rule to include or amend costs orders is not novel. However, in the light of above principles, the present situation is not, to my mind, an appropriate one for application of the slip rule. This is because I do not consider that proposition (5) is satisfied. Had the Bank raised the applicability of the so-called rule of thumb during the costs hearing, to my mind, there is a very strong possibility that, altered to the issue, the matter would have been accommodated by the addition into the orders of an express order negativing the application of the rule of thumb. The difficulty which I have is that there is a possibility, which to my mind is by no means negligible, that alerted to the question raised by the so-called rule of thumb, the whole format of the subject orders may well have been different.54 The second jurisdictional gate through which the plaintiff claims an entitlement to pass is that of declaratory relief under s75 of the Supreme Court Act 1970. The plaintiff referred the Court to a decision of Young J in Longreach Oil Ltd v Southern Cross Exploration NL (unreported, New South Wales Supreme Court, 9 March 1988). In that case Young J felt no doubts that ‘the Court has power to make any order which is necessary to see that its rules do not work injustice.’ The distinguishing feature of this decision for the present purposes was conceded by Mr Gleeson in argument: it was decided prior to the enactment of the Legal Profession Act. 55 Section 75 of the Supreme Court Act reads as follows:
Declaration
No proceedings shall be open to objection on the ground that a merely declaratory order is sought thereby and the Court may make a binding declaration of right whether consequential relief is or could be claimed or not.
56 This provision is the product of the troubled early history of the power of the New South Wales Courts to issue declaratory relief, a history outlined by Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 433 - 435. The doubts which attended the jurisdiction of the New South Wales Courts to grant declaratory relief were resolved by the decision of the Court of Appeal in Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 and the decision of the High Court in Forster v Jododex Aust Pty Ltd (supra) where Gibbs J said (at 435) -
57 The distinction between the absence of jurisdiction and matters which militate against the discretion to exercise that jurisdiction was the subject of emphasis by Moffitt P and Hutley JA in Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 55 and 60. Here, although not adverted to by the parties in argument, a real question arises as to the extent to which the jurisdiction of the Court to grant a declaration is affected by the Legal Profession Act 1987 and in particular s 208K which reads -
‘The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that ‘... the power of the Court to make a declaration, where it is a question of defining the rights of parties is almost unlimited; I might say limited only by its own discretion:’ Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507.’
‘A costs assessor determination of an application is binding on all parties to the application and no appeal lies in respect of the determination except as provided by this Division.’
58 Of course, it is fundamental that ‘a Superior Court of law will not be deprived of its jurisdiction except by express words or necessary implication:’ Law Society of NSW v Weaver [1974] 1 NSWLR 271 at 272 per Reynolds JA, see also Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 436, Pye Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260. In the last mentioned case the House of Lords held that s17 of the Town and Country Planning Act 1947, which empowered a person wishing to change the use of land to apply to the Local Planning Authority to determine whether that change constituted ‘development of the land’ within the meaning of the Act, did not exclude the jurisdiction of the High Court of Justice to make a declaration on the same subject matter. Viscount Simonds (at 286) said that:
‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s Courts for the determination of his rights is not be to excluded, except by clear words. ... It must be asked, then, what is there in the Act of 1947 which bars such recourse. The answer is that there is nothing, except the fact that the Act provides him with another remedy. Is it then, an alternative or an exclusive remedy. There is nothing in the Act to suggest that while a new remedy, perhaps cheap and expeditious is given, the old and as we like to call it, inalienable remedy of Her Majesty’s subjects to seek redress in Her Courts is taken away.’
59 This decision stands as authority for the proposition that an alternative means of determining rights does not, of itself, exclude a plaintiff’s right to obtain declaratory relief, but as Mason JA (as he then was) said in Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 -
‘It may be a statute may be so expressed as to confer jurisdiction to determine questions of a specified class on a particular Court or tribunal in such a way as to exclude even the jurisdiction of a Court to grant declaratory relief.’
60 As Mason JA went on to specify, this most often occurs when jurisdiction is given to a separate or specialist tribunal to determine certain matters: see also Moffitt P in Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 57, and Barraclough v Brown [1897] AC 615. This is not such a case: here jurisdiction is given to this Court under s 208L and s208M and the question must be whether the effect of s208K is to make those the exclusive means of pursuing an appeal from the costs assessor and to exclude the Court’s declaratory jurisdiction ‘in respect of a determination.’61 Despite the strength of the presumption against this Court being deprived of its declaratory jurisdiction, I see no escape from the conclusion that this is the effect of s 208K. The germane words of the section are simple: ‘no appeal lies in respect of a determination, except as provided by this Division.’ In contrast to the situation confronted by their Lordships in Pyx Granite Co Ltd v Ministry of Housing and Local Government, the section unmistakably communicates an intention that the appeal procedure outlined in the Act shall be the exclusive, not an alternative, remedy. The appeal procedures are, to invert Lord Jenkins’ words in that case, imperative and not permissive: (supra at 304). In it may be suggested that in view of the distinction drawn by the Act between a ‘decision’ of the costs assessor and the ‘determination’ of the costs assessor, s208K only affects applications for relief from completed determinations, not anterior decisions reached on the way to a determination. However, s208K prohibits any appeal other than as provided ‘in respect of a determination,’ not ‘from a determination.’ The width of the words ‘with respect to’ have been emphasised within the context of the Commonwealth Constitutional: Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 at 186 per Latham CJ. Here the words must be construed to include decisions come to by a costs assessor in the course of but prior to completing a determination of the assessment.
62 However, if that conclusion be wrong, and the Court’s jurisdiction under s75 of the Supreme Court Act be unaffected by s 208K of the Legal Profession Act, the proper approach to the exercise of the Court’s discretion is, in my opinion, to refuse to grant declaratory relief. The matters which may go to inform the Court’s discretion whether or not to grant a declaration are unbounded: Forster v Jododex Australia Pty Ltd (supra), Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation (supra, at 51 - 52 per Street CJ). Nonetheless, in a recent statement of principle, the High Court has highlighted at least three relevant considerations (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582 per Mason CJ, Dawson, Toohey and Gaudron JJ):
(1) Declaratory relief must be directed to the determination of legal controversies, not abstract and hypothetical questions, or in relation to circumstances which have never happened and may never happen.(2) The person seeking declaratory relief must have a real interest in the matter.
(3) The declaration must be such as will produce foreseeable consequences for the parties.
63 A fourth matter identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at 448, and adopted by Gibbs J in Forster v Jododex Australia Pty Ltd (supra, at 437 - 438), is the need for the party seeking declaratory relief to have a ‘proper contradictor.’ 64 Clearly enough, the factors outlined above are satisfied in this case. As the assessor has made a decision, the matter is not hypothetical. The first plaintiff has a real interest because a declaration will affect on what basis it can recover its costs from the earlier proceedings. A declaration will have a real effect on the interests of the parties for the same reason. Finally, the defendant has appeared here, and through Ms McCallum, has been a vigorous contradictor. 65 Nevertheless, there is a further factor of great importance in these proceedings, and that is that the Legal Profession Act 1987 provides a distinct mechanism for pursuing an appeal from a decision or determination of a costs assessor. To my mind, it is undesirable to circumvent that appeal mechanism by the making of declaratory orders within the areas through which an appeal may be pursued under the Act.66 It is true that Gibbs J said in Forster v Jododex Aust Pty Ltd (supra, at 438) that ‘it seems to me on principle that a plaintiff should not necessarily be refused one form of relief because another is available in the same Court’ see also Vowell v Shire of Hastings [1970] VR 764. Accordingly, of itself it is not sufficient to induce a Court to decline declaratory relief that appeal rights under s208L and s208M exist. But it remains true that the existence of such appeal rights are relevant to the exercise of the discretion. As Mason JA said in Salmar Holdings Pty Ltd v Hornsby Shire Council (supra, at 203)- ‘[t]he Courts have regarded the availability of another suitable remedy as a matter which is relevant to the exercise of the discretion.’ In Young v Public Service Board [1982] 2 NSWLR 456 Lee J refused to make a declaration as to the proper interpretation of an industrial award as the Industrial Arbitration Act 1940 provided an alternative remedy in the form of the Industrial Commission and His Honour perceived that the Industrial Arbitration Act intended industrial matters to be dealt with by the Industrial Commission.
67 The present situation differs from that which was before Lee J insofar as the appeal mechanism and declaratory relief would be granted by the same, not different tribunals. A more, although not completely, analogous situation is to be found in Heywood v Board of Visitors of Hull Prison [1980] 1 WLR 1386. In that case Goulding J refused to make a declaration under the High Court of Justice’s general declaratory power (RSC Ord 15, r 16) to the effect that a decision of the Board of Visitors of Hull prison was void and of no effect because a specialised alternative procedure was available to the plaintiff under RSC Ord 53. Although this case has been interpreted as having been decided upon the absence of jurisdiction (see Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 2nd Edition, para 1919) and the report itself does not make the issue clear, I think a close reading reveals that while Goulding J accepted that theoretically he possessed jurisdiction he declined to make the declaration in his discretion. Two matters which particularly underpinned the reasons of his Lordship were that the specialised procedure under RSC 53 required the leave of the Court to proceed, whereas the general declaratory power of RSC Ord 15, r 16 did not so demand and because a mechanism for the remittal of the case from the High Court of Justice back to the Board of Visitors existed under the specialised procedure, but no similar power existed under RSC Ord 15, r 16. Earlier his Lordship had said (at 1390) -
‘Where in a code of procedural rules, carefully designed machinery is provided for determining a special class of issues or questions, it is in general inconvenient to use some broader form of process designed to cover not only that but much larger categories of questions.’
68 To my mind, his Lordships approach and some of his reasons apply here. Under section 208M, although not in issue here, a party must seek the leave of a Court before proceeding to appeal from a completed determination. Section 208L(2) provides the specific consequences which flow from a successful appeal of a decision of a costs assessor under s 208L(1), consequences which include a power to remit the matter back to the costs assessor: a consequence not available if mere declaratory relief is sought.
69 However, to my mind, the most significant factor militating against the exercise of the declaratory jurisdiction in the context of the Legal Profession Act is that the Act clearly puts the determination of a costs assessment in the hands of a costs assessor, only permitting the matter to be taken from his hands upon the occurrence of one of two events: a ‘decision’ or a ‘determination’ of the costs assessor. While a declaration will rarely be issued where a matter is hypothetical, it may not always be that prior to a decision being made, a situation will remain, in the relevant sense, hypothetical. If that circumstance obtained, a Court may find itself in the position of issuing a declaration prior to any decision or determination of the costs assessor. If that occurred, the Court would be circumventing the costs assessor’s jurisdiction and undermining the costs assessor task. For those reasons, assuming the jurisdiction to issue a declaration exists, in my view, the Court ought not exercise it.
Legal Profession Act 1987
71 Subsection (1) and (2) of s 208L are particularly material, and read -
70 In determining the jurisdiction of the Court under the Legal Profession Act the starting place is the terms of that statute. It is necessary then to engage in a close examination of the relevant terms. Section 208J(1) provides that on making a determination, a costs assessor is to issue to each party a certificate setting out the determination. Section 208K provides that a cost’s assessor’s determination is binding on the parties, and no appeal lies in respect of the determination except as provided in the Legal Profession Act.
“(1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor’s decision:
(a) make such determination in relation to the application, as in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.” [emphasis added]
73 Section 208N(1) provides that “[I]f a party to an application has appealed against a determination or a decision of a costs assessor, either the costs assessor or the Court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision.” [emphasis added] 74 Currabubula submits that the costs assessor has, by dint of his letter of 20 October 1999 to Gadens and to Mallesons, or by his letter of 10 November 1999 to those same firms, relevantly made a ‘decision’ within the meaning of that expression as used in s208L(1). In the former letter the assessor expresses agreement with the view expressed by the Bank’s solicitors, Mallesons, that where work is done for both the first and second plaintiffs, the costs of that should be apportioned and goes on to say that:
72 Section 208M(1) provides that “[a] party to an application relating to a bill of costs may seek leave of the Court to appeal to the Court against the determination of the application made by the costs assessor.” [emphasis added]
‘[w]hile I have not yet reviewed the bill I expect apportionment to be equal in many cases but obviously some work will relate only to the first plaintiff, including all the work done before the second plaintiff was joined, and some work will relate only to the second plaintiff.’
In the second letter the assessor asserts that there is little he can add to what was said in his letter of the 20th and continues:
‘If an affidavit is prepared, or an attendance is made, on behalf of both the first and the second plaintiffs, and the work related equally to each claim, it must, I consider, be apportioned on an equal basis. Otherwise, costs would be recovered in favour of the second plaintiff when costs were, apparently, awarded against the second plaintiff.’
75 The Bank asserts that no decision has yet been made by the costs assessor and accordingly that the Court lacks jurisdiction to entertain the application. The Bank relies on the decision of Ireland J in Ganke v Somerset (unreported, Supreme Court of New South Wales, 31 July 1996). In that case Ireland J refused to make a declaration as to a matter of law, rejecting a submission that a question of law was more appropriately dealt with by the Court than the costs assessor. His Honour pointed out that s208L of the Legal Profession Act provided a mechanism of appeal from a decision of the costs assessor and that to decide the point which His Honour was invited to decide would be to circumvent the costs assessment process. 76 Currabubula concedes that no determination has yet been made by the costs assessor. Accordingly, Currabubula seeks to appeal only under s208L(1) of the Legal Profession Act. The question of the jurisdiction of this Court under the section turns on whether the letters of the assessor of the 20 October and 10 November 1999 amount to a ‘decision’ within the meaning of the Legal Profession Act. The word ‘decision’ is, as Deane J once said, a word of indeterminate meaning: Director General of Social Services v Chaney (1980) 47 FLR 80 at 100. In the context of a curial decision, its meaning is settled: it refers to a formal decision of a Court which disposes of the matter before it, not a conclusion of law included in the reasons for the making of an order - see David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 428 per Glass JA. The word ‘decision’ also has currency in the context of the judicial review of administrative action in the Federal sphere, where the leading authority is to be found in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where the Chief Justice took the view that in the context of the Administrative Decisions Judicial Review Act 1977 (C’th) the word ‘decision’ meant a decision which is ‘final, or operative and determinative’ and not ‘merely a step taken in the course of reasoning on the way to the making of the decision’ (at 336, 337). One matter which exercised the mind of the Chief Justice in that case was the undesirability of the fragmentation of administrative decision making attended by a broader interpretation; much the same consideration that occurred to Ireland J in Ganke v Somerset (supra).77 Nevertheless, as was made clear by Mason CJ in Bond, the meaning of the word ‘decision’ must be determined by the context in which the word is found (at 335). A statutory context contrasting with that found by Mason CJ in Bond confronted the Court of Appeal in Bruce v Cole (1998) 45 NSWLR 163 where Spigelman CJ interpreted the word ‘decision’ in the Judicial Officers Act 1986 as ‘encompassing all forms of deliberative process, including the formation of an opinion’.
78 In the South Australian case of Wylie v McNeil (1986) 42 SASR 537 the Full Court of the Supreme Court of that State held that a provision in the Planning Act 1982 (SA) that permitted an appeal to the Land and Valuation Court on a question of law from a ‘determination or decision’ of the Planning Appeals Tribunal, only permitted an appeal from a determination or decision of the Tribunal which disposed of the matter before the Tribunal (at 549, 556). This decision may compare to the decision of the Court of Appeal in Dickinson v Perrington [1973] 1 NSWLR 72 where Moffitt JA (as he then was) considered the phrase ‘a decision or determination for dismissal’ in the Crown Employees Appeal Board Act 1944. His Honour was of the opinion that a ‘decision ... for dismissal’ included a decision of the Public Service Board to dismiss an officer of the Public Service despite the fact that the decision would not be effectual until it was approved by the Governor.
79 Multiplication of these disparate authorities would not be especially illuminating. They only serve to emphasise that the meaning the word ‘decision’ is to bear is to be found in the text, scope and purpose of the statute in question: see MIR BrosDevelopments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 494, 495 per Kirby P and Samuels JA,. Bond (at 335 per Mason CJ). Here, to my mind, the crucial distinction drawn by the Legal Profession Act is between a ‘decision’ of the assessor and the ‘determination’ of the assessment. In this respect the Legal Profession Act can be contrasted with the Public Service Act 1902 as it confronted the Court of Appeal in Taylor v Public Service Board [1975] 2 NSWLR 278 insofar as that statute in providing that ‘the decision of the case shall be determined by the Board’ conflated the meaning of the words ‘decision’ and ‘determination’. Accordingly, it seems inappropriate to treat the words ‘decision’ and ‘determination’ as possessed of the same meaning, as the South Australian Supreme Court did in Wylie v MacNeil (supra).
80 This distinction is clear enough from the terms of s 208L(1): the right of appeal on a question of law is given to a party dissatisfied with a ‘decision of a costs assessor…arising in the proceedings to determine the application.’ It is re-inforced by s208M which provides a separate right of appeal against the determination of the application. If s208L(1) only permits an appeal on a question of law after a final determination of the costs assessor, then the section is otiose, for an appeal under s208M is an appeal de novo: see s208M(4). The distinction the Act draws between the appeal procedures is not sufficiently explained, as Ms McCallum sought to do, upon the ground that one (s208L(1)) contains a right of appeal while the other (s208M) contains only an avenue of appeal upon leave. In my view, the different appeal procedures direct themselves to different situations. To my mind, the Act clearly contemplates that a decision is something different from and anterior to a determination of the assessment. The use of the present tense in s208L(1) - ‘arising in the proceedings to determine’ - rather than the past tense - ‘arose in the proceedings to determine’ - demonstrates that the statute intended to create an appeal right while proceedings to determine the application were extant. Section 208K in effect provides that a costs assessor’s determination is to be final except as appealed from under the Legal Profession Act. Thus, here it is true to say, as Moffit JA said ‘a decision can be a decision whether final or not:’ Dickinson v Perrington (supra at 78).
81 The Bank relies on subsection (2) of s208L and points out that that sub-section does not appear to contemplate that the Court may allow an appeal against a cost assessor’s decision in the course of a determination, but only permits it to make such a determination as should have been made (paragraph (a)), or to remit the decision on the question to the costs assessor to re-determine the application (paragraph (b)). Although one reading of paragraph (b) would suggest that the Court can only remit a matter to the costs assessor once it has been determined, in my view, the better interpretation is to view the ‘re-determination’ of the assessor as a determination as corrected on the question of law by the Court.82 The purpose which underlies the words of a statute plays a greater role in the interpretation of the words nowadays then it once did: Kingston v Keprose Pty Ltd (No 3) (1987) 12 ACLR 609 at 626 per McHugh JA (as His Honour then was), where His Honour went on to say that ‘[i]n most cases the grammatical meaning of a provision will give effect to the purpose of the legislation.’ To my mind, this is one such case. Although circumvention of the assessor’s task is, as Ireland J pointed out in Ganke v Somerset (supra) something to be avoided, it is, I consider, the policy behind the distinct appeal procedures within the Legal Profession Act, and in particular the purpose of s208L(1), to allow an assessor, having made an erroneous decision on question of law, to be corrected before proceeding to determine the assessment. While the fragmentation of the assessor’s task by frequent and precipitous applications to Court is plainly to be avoided, it cannot be a desirable outcome that an assessor who having reached a settled but erroneous view as to a question of law, be allowed to persist in error in the determination of the assessment. In those circumstances an assessor, once corrected, may have to begin his task all over again.
83 In his letters of the 20 October and the 10 November, the assessor does the following:
(1) Agrees with the view of the Bank’s solicitors that apportionment of costs is the correct legal course to be taken.(2) Outlines what he expects to be the effect of that view.
(3) Responds to submissions of Currabubula’s solicitors by saying that he has little to add to his previous letter; and
(4) Supports the view he has taken with reasons which concern the effect of not taking that view.
To my mind, these take the assessor past those states of mind which fall short of a decision: speculation, contemplation, recommendation (as to the last see Electricity Commission v Blaber [1976] 1 NSWLR 143 at 151) and his actions fit within the following passage from the judgment of Warrington LJ in In re Davidson’s Patents; In re Gaskin’s Patents [1921] 1 Ch 69 at 88 -84 For an appeal to proceed under s208L(1) not only must there be a ‘decision’, but that decision must be as to a question of law. The question of what amounts to a question of law causes considerable difficulty in some contexts: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139, Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9 - 10, per Neaves, French and Cooper JJ. But here there is no question but that the decision of the costs assessor to apply the rule of thumb is a question of law and Ms McCallum did not assert otherwise. Accordingly, in my view, the Court has jurisdiction to entertain an appeal under s208L(1) of the Legal Profession Act 1987 from a decision of the costs assessor to apply the rule of thumb to the determination of the assessment.
‘He has, after hearing argument on both sides come to the conclusion for reasons of principle which appeared to him to weigh, that the argument on the one side ought to prevail and that the argument on the other side ought not. To my mind, that is giving a decision ...’
85 The Bank submits that even if an appeal does lie under s208L(1) of the Legal Profession Act Currabubula’s appeal is out of time. Part 51A Rule 3(1) of the Supreme Court Rules reads as follows:
Extension of Time
86 Clearly, paragraph (b) is the relevant provision in these proceedings. As developed above, in my view, the decision of the costs assessor was made, by the letter of 10 November 1999 sent to Gadens and Mallesons. The letter, as annexed to the affidavit of the solicitor for Currabubula, Anthanosios George Koumoukelis, bears the date stamp 11th November 1999, presumably that being the day it was received in the offices of Gadens. Thus it appears that the 11th November, being the day when ‘notice of the decision was given to the person who wishes to appeal by or on behalf of the person’ is the “material day”. Part 51A Rule 3 requires that the appeal be instituted within 28 days after 11th November, i.e. not including 11th November: see s36(1) Interpretation Act 1987. Currabubula filed the summons seeking relief on 8 December. The twenty eighth day after 11th November ends at midnight on 9th December. Accordingly, in my view, Currabubula’s appeal was within the time dictated by part 51A, r3(1) and no extension of time is necessary. 87 In the event that Currabubula is out of time in the lodgment of its appeal it is necessary for Currabubula to seek to enliven the Court’s discretion to extend that time. The principles upon which a party can seek an extension to appeal have been fully considered in recent authorities and can be shortly stated. An extension of time in which to appeal is not granted automatically or as of right: the Rules of Court governing time steps for pursuing an appeal are to be complied with. However, those Rules of Court are not to be used to effect an injustice: the object of the power of the Court to extend time is to do justice as between the parties. The Court will extend time where not to do so would work an injustice. Relevant considerations in exercising the discretion include the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences to the parties of the grant or refusal of the extension of time, the prospects of the appeal’s success and any prejudice caused to the respondent by extending the time. The trend of recent authorities is towards a growing liberality in granting extensions of time in which an appeal can be lodged: Moulieux v Girvan NSW Pty Ltd (unreported, Court of Appeal, 20 September 1991), Gallo v Dawson (1990) 93 ALR 479 at 480-481, Jess v Scott (1986) 12 FCR 187 at 194-195, Morris v Public Transport Commission of NSW (unreported, Court of Appeal, 28 May 1984). 88 Were it necessary to extend time in this circumstance, it would, to my mind, be an appropriate case to do so. The factors which dictate this conclusion are: first, assuming there is a delay, that the delay of Currabubula in prosecuting the appeal has been very minimal; second, that the case Currabubula has argued on appeal is a strong one; third, and consequently, a very real adverse effect on Currabubula would be caused by refusing the extension of time and finally, the absence of any significant prejudice suffered by the Bank as a result of the delay in the conduct of the appeal. In my view, to not extend time in this circumstance would be to perform an injustice against Currabubula.
“Subject to any provisions by or under any Act, an appeal must be instituted within 28 days after the material date or within such extended time as the Court may fix.”
“Material time” is defined in Part 51A Rule 2 as follows:
“material time in relation to an appeal means -
(a) where the appeal is from the decision of a court, the date on which the decision is pronounced or the order given; and
(b) where the decision is from any other person, the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision.”
The Rule of Thumb90 Section 76 of the Supreme Court Act 1970 gives the Court full discretion to award costs. However, the general principle of an award of costs is that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97-98 per McHugh J, at 120 - 123 per Kirby J, Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ. Accordingly, in the ordinary case, costs will follow the event: Oshlack v Richmond River Council (supra, at 97 per McHugh J, at 121 per Kirby J), Donald Campbell & Co Ltd v Pollack [1927] AC 732 at 811-12 per Viscount Cave LC. The position becomes somewhat complicated, however, where there are multiple plaintiffs or defendants who are variously successful and unsuccessful. One device which the courts have developed to deal with this complication is the ‘Bullock order: ‘Bullock v London General Omnibus Co [1907] 1 KB 264 and its close relation the ‘Sanderson order’: Sanderson v Blyth Theatre Co [1903] 2 KB 533 (as to both see Schipp v Cameron, unreported, Supreme Court of New South Wales, 12 October 1998, Einstein J). Another device that has been developed is the principle of taxation which is called the ‘rule of thumb.’ The formulation of the rule of thumb as applied by the costs assessor and challenged by the plaintiff is stated in the letter from Mallesons of the 30 September 1999 to the costs assessor as follows:
89 The essential burden of the Currabubula’s complaint against the decision of the cost assessor is that the cost assessor erred in applying the principle of apportionment, or what is loosely called in the cases, the ‘rule of thumb’ to the assessment. Mr Gleeson for Currabubula, attacked the decision of the costs assessor on three broad fronts. First, he submitted that the costs assessor wrongly construed the orders made on 5 May 1999 by applying the rule of thumb to them. Second, he submitted that the rule of thumb has been excluded by the provisions of the Legal Profession Act 1987. Third, he submitted that the rule of thumb was wrong in law and should not be followed by this Court.
‘[w]here a solicitor acts for two or more parties in the same proceedings, each successful party is only entitled to his proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his behalf’ [emphasis added] .
91 In tracing the line of authority on which this proposition rests, it is convenient to begin with the decision In re Colquhoun (1854) 5 De G M & G 35; 43 ER 781. In that case the Court considered the basis upon which the assignees of a bankrupt solicitor named Colquhoun could recover from one Dr Ford, the costs of an action in which Dr Ford was one of four unsuccessful defendants for whom Colquhoun had acted. Knight-Bruce and Turner LJJ, although expressing some misgivings, affirmed the decision of Stuart VC that Dr Ford was liable for only one fourth of the costs of the action. The Vice Chancellor had consulted the Taxing Master who stated that the claim of the plaintiff that each unsuccessful defendant was jointly and severally liable for the entire costs of the action was not in accordance with the practice of the courts of law or Chancery and continued ‘[i]f a bill against two defendants appearing by the same solicitor be dismissed with costs against one, and without costs as to the other, all the general costs are divided, though if there had been one defendant the costs would have been the same.’
Earlier, the Taxing Master had offered the following illustration -
‘ ... [I]f one solicitor appears for three Defendants, the bill is dismissed with costs as to one of them, the plaintiff can only be compelled to pay the costs of such proceedings as exclusively relate to that defendant, and one-third of the costs of the proceedings taken jointly for all three defendants.’
92 In re Colquhoun was referred to in argument in Beaumont v Senior and Bull [1903] 1 KB 282, where the same firm of solicitors had acted for both Senior and Bull who had been, respectively, unsuccessful and successful defendants in an action. The defendant’s solicitors on behalf of the successful defendant Bull claimed the general costs of the whole action. The registrar allowed only the extra costs occasioned by Bull having been joined as a defendant. The decision of the registrar was overturned, Lord Alvertsone proceeding from the principle that ‘a successful defendant is entitled to recover from the plaintiff the costs which he has incurred in defending the action.’ In re Colquhoun appears to have been relied on by the Lord Chief Justice as authority for the proposition that in the absence of any special agreement as to how the costs of a defence are to be borne between co-defendants, each defendant is liable to their solicitor for half the costs. Thus where one defendant is successful and one is unsuccessful, the successful defendant may only recover half the general costs of the defence.
93 The rule of thumb was applied and approved by the Court of Appeal (Bankes, Scrutton and Atkin LJJ) in Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567 where the appellant had brought actions against the respondent and another company, both of the defendants being represented by the same solicitors. The action against the respondent was successful, but was unsuccessful against the other defendant. The costs of the successful defendant were taxed as only half of the general costs of the action. Scrutton LJ’s judgment, which was the judgment of the Court and delivered by Atkin LJ proceeded as follows (at 569):
‘As the principle of the allowance of costs is that the successful party is to be recompensed the liability he has reasonably incurred in defending himself, if he is only liable to his solicitor for half of certain joint items he cannot be allowed the whole of them, even though by some separate agreement he has made himself liable for the other half, primarily the liability of another and unsuccessful defendant.’
94 Although there is a dearth of Australian authority on the point, there are decisions which recognise the application of the rule. The ‘rule of thumb’ was applied by Fisher J of the Federal Court in Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 where two respondents, one successful and one unsuccessful, were represented by the same solicitors and counsel. Fisher J considered that the application of the rule of thumb in this situation achieved a just result. This was obviously correct, as counsel for the defendants submitted that the costs of the successful defendant be deducted from the cost liability of the unsuccessful defendant. The rule was discussed by Young J in Longreach Oil Ltd v Southern Cross Resources (unreported, Supreme Court of New South Wales, 9 March 1988) where two of seven successful defendants attempted to enforce a costs order in favour of all seven, the other five successful defendants reaching a settlement with the plaintiff. Young J considered this case was probably an appropriate one for the application of the rule of thumb and that each defendant was entitled to one-seventh of the costs, but in the event declined to make any order.
95 These decisions reveal that the concern of the rule of thumb is to achieve substantial justice in the awarding of costs as between a partially successful plaintiff and variously successful and unsuccessful defendants. The rule operates upon the premise that defendants are proportionately responsible for and liable for the joint costs involved in mounting the defence. Thus, a successful defendant cannot claim from the plaintiff more than a proportionate share of the joint costs of the action in addition to any costs separately referable to that defendant. Conversely, the partially successful plaintiff is prevented from looking to each of the unsuccessful defendants for more than an equal proportionate share of the costs not solely referable to the plaintiff’s case against one or other of the defendants individually, in addition to the costs which are so referable. In this way, the rule of thumb prevents both the unjust enrichment of the partially successful plaintiff or successful defendant and the casting of an unfair burden on the unsuccessful defendants. Where the premise is falsified or the rule does not achieve its intended effect, it finds no application.
96 The proposition contained in this last sentence is illustrated by the decision of Neville J in Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127 where a plaintiff succeeded in his action against two defendants, but succeeded against one summarily and succeeded against the other after the trial of the action. Neville J held that in these circumstances it would be unjust to apportion the costs equally, for to do so would be to require the defendant who did not proceed to trial to bear the costs of the trial over which they had no control. Accordingly, Neville J altered the award of costs to require the Taxing Master determine how much of the costs were incurred for the defendants jointly and how much were attributable to each defendant separately.
97 The decision in Dansk Rekylriffel Syndikat Aktieselskab v Snell bears some resemblance to the decision of Rolfe J in Woodward v Gaha (unreported, 28 September 1995, Supreme Court of NSW). In earlier proceedings, his Honour had ordered that two unsuccessful defendants pay 30% of the plaintiff’s costs and the plaintiffs pay the costs of a successful defendant. The successful defendant claimed that, applying the rule of thumb he was entitled to have his costs assessed as a proportion of the costs of the action. Rolfe J rejected this, principally, it would seem, for the reason that the plaintiff announced on the first day of hearing that they would not further pursue relief against the successful defendant, but continued to prosecute the action against the unsuccessful defendants. Accordingly, to award costs to the successful defendant as a proportion of the total costs of all the defendants in the action ‘would be to place him in a far more advantageous position, at least prima facie, than he could possibly otherwise enjoy.’
98 The proposition is further re-inforced by the decision of the in Korner v H Korner & Co Ltd [1951] 1 Ch 10. There the plaintiff had brought an action against eight defendants, but succeeded against one. The issue on which the plaintiff succeeded was the substantial issue in the action and the plaintiff only failed on the less substantial issues. Despite this the successful defendants claimed that they were entitled to seven-eighths of the whole costs for fees for instructions for brief and counsel fees. Wynn-Parry J upheld the decision of the Taxing Master not to apply the rule of thumb because to apportion the costs equally in a situation where the issue on which the plaintiff was successful, was the most substantial issue and was distinct from the issues on which the plaintiff failed against the other defendants, was to apply the rule to achieve an unjust result.
99 The judgment of Wynn-Parry J was sustained by the Court of Appeal and while Singleton LJ (with whom Jenkins LJ agreed) accepted that the rule of thumb was a convenient rule in an ordinary or straightforward case, his Lordship [at page 17] considered that regard must be had to the nature of the case and the defences raised. The Court was not compelled to apply the rule of thumb in every class of case where to follow it would result in an injustice and Singleton LJ agreed with Wynn-Parry J that the rule of thumb should not be extended. Moreover, Singleton LJ was of the opinion that as the trial judge had made separate provision for the costs of the issues on which the plaintiff was successful and unsuccessful, the terms of the order for costs excluded the application of the rule of thumb.
100 The feature of all the above cases distinguishing them from the present proceedings is that they all involve an award of costs to separate defendants who are variously successful or unsuccessful. They do not involve separate plaintiffs. It is a live question as to whether the rule of thumb does apply to separate plaintiffs who are variously successful or unsuccessful. One view on this question was offered by Middleton JA of the Ontario Supreme Court in Duchman v Oakland Diary Co Ltd [1930] 4 DLR 989 [at 992] in the following passage:
‘It must be borne in mind that there has been from the earliest days a marked distinction in the way in which costs awarded to a successful plaintiff and costs awarded to a successful defendant have been dealt with by the Courts. The retainer of a solicitor by several plaintiffs is a joint and several retainer and each plaintiff is prima facie liable to the solicitor jointly and severally for all the costs of the action; and for this reason, satisfactory or unsatisfactory, costs awarded to one plaintiff to secure him, or indemnify him, carry all the general costs . In the case of defendants the contrary rule has always prevailed; unless the retainer otherwise provides, each of several defendants employing a common solicitor becomes liable to the solicitor only for an aliquot portion of the general costs, and so for his indemnity is allowed only the share of the costs for which he is liable’ [emphasis added]
102 However, in Keen v Towler (1924) 41 TLR 86, Lord Darling, sitting as a single judge of the King’s Bench Division, applied the rule of thumb to apportion costs among three unsuccessful plaintiffs, the defendant having been found liable to one plaintiff. Lord Darling, after assuming that the plaintiffs were all solvent and had made no special arrangement as to costs, continued as follows:
101 At first glance it seems anomalous that the rule of thumb should apply to unsuccessful defendants, but not unsuccessful plaintiffs. But on the reasoning adopted by Middleton JA in the above passage, this anomalous result is reached because the basis of the rule of thumb is itself an anomalous exception to the general law. It will be recalled that the proposition underlying the rule of thumb was that where a number of defendants were jointly represented by the same solicitor, prima facie, the solicitor could only recover a proportion from each and that each defendant was not liable for the whole of the debt joint and severally, as ordinarily would be the case with joint debtors: In re Colquhoun. It was this proposition that the Lord Justices in that case found open to objection but too deep rooted to eradicate. This anomaly, finding no counterpart among unsuccessful defendants, did not invite the application of the rule of thumb to several plaintiffs who were variously successful and unsuccessful.
‘although each of the four plaintiffs may be liable to the solicitor for the whole of the costs common to all of them, still as between themselves, each is liable to contribute one fourth. From this it follows that ultimately each of the plaintiffs is only liable to pay one fourth of the common costs and that, therefore, as costs are given as an indemnity only, one fourth is all that the defendant should be called upon to pay to one plaintiff. To order the defendant to pay to the successful plaintiff more than one fourth, would be to order him to pay an amount in relief of the amount that the unsuccessful plaintiffs ought to pay.’
103 This passage requires some analysis. It contains at least three propositions of doubtful validity. First, Lord Darling accepts that the principle in Re Colquhoun does not apply qua plaintiffs, that principle being the premise upon which the ‘rule of thumb’ operates, yet applies the rule of thumb notwithstanding. Secondly, his Lordship does so upon the ground that each plaintiff could look to the other three for a contribution if their solicitor (as the solicitor attempted unsuccessfully in Re Colquhoun), sought to recover the whole amount from them. This gives rise to the not unlikely possibility that a successful plaintiff, not the partially unsuccessful defendant, will be forced to incur the expense and the risk of further litigation against his or her unsuccessful co-plaintiffs to seek that contribution. Thirdly, as the rule of thumb applies to joint costs only, those costs the successful plaintiff will be forced to seek from his unsuccessful co-plaintiffs will be costs which would have been incurred even if the action had been brought by the successful plaintiff alone. The defendant, having been found to be in the wrong, will be partially immunised against the proper costs of the successful plaintiff by the unmeritorious circumstance that the action was simultaneously brought by other, unsuccessful, plaintiffs.
104 There is authority for the proposition that the rule of thumb is not to be extended: Korner v H Korner & Co Ltd (supra). The premise upon which the rule of thumb operates is, as has been shown, one which applies only in the case of defendants. To apply it to plaintiffs, as was done in Keen v Towler (supra), is, to my mind, to extend the rule beyond its principled and authoritative basis and to achieve a result which is not self-evidently just. There is no logical reason why a defendant who is sued by several plaintiffs who are variously successful and unsuccessful should be in a more advantageous position qua joint costs (ie., those costs not referable to any one plaintiff but necessary for the cases of all the plaintiffs), than would be an unsuccessful defendant sued by one successful plaintiff alone. Intuitively, justice would seem to require that a defendant, found to be in the wrong, should bear all the costs which the successful plaintiff would have to incur in bringing the action and should be spared only those costs occasioned by the joining of the unsuccessful plaintiffs. To my mind, this is the correct legal position, as is stated by Mr Mark Orkin QC in Law of Costs (2 ed, Canada Law Book Inc, 1987, para 208.1) as follows:
‘Where several plaintiffs sue by the same solicitor, and one succeeds while the others fail, the successful plaintiff will be entitled to recover the whole of his costs from the defendant and not merely a proportion. The unsuccessful plaintiffs will be obliged to pay the defendant’s costs as occasioned by their having been joined unless the Court otherwise orders.’
105 Accordingly, in my view the costs assessor erred in applying the rule of thumb to the present circumstances which concern two plaintiffs, one substantially successful and one not, and do not concern a two defendant situation. However, even if the rule of thumb does properly apply in the circumstance of two plaintiffs variously successful and unsuccessful, to my mind, it ought not to find any application here for two further reasons. First, the application of the rule of thumb here would not fulfil its purpose. Second, the proper construction of the costs orders made excludes the application of the rule of thumb.
106 To recapitulate: the purpose of the rule of thumb, applied to the case of multiple, variously successful and unsuccessful defendants, is to prevent a plaintiff who has only been partially successful, from being unjustly enriched and to prevent unsuccessful defendants from being unfairly burdened by the thrusting onto them of the whole of the plaintiff’s costs, not referable to the action against one or other defendants. That purpose, applied to the present situation mutatis mutandis, would not be achieved by an application of the rule of thumb. As the extracts of the judgment of 3 May 1999 earlier set out make plain, the vast majority of the trial concerned the liability of the Bank to Currabubula. On those issues the Bank was substantially unsuccessful. I particularly accept as correct the submissions of Mr Gleeson set out in the italicised sections of paragraphs 24 and 27 of the judgment. The purpose of joining Paola was only to address the matter of locus standi. Most of the costs incurred by the Bank in defending itself against the second defendant, Paola, would have been incurred even if it had faced only one defendant, Currabubula. To apply the rule of thumb in this circumstance is to require Paola Holdings to immunise the Bank against half the joint costs incurred by Currabubula in pursuing an action in which it was essentially successful. Not only would those costs have been incurred in any event had Paola Holdings not been joined but, a fortiori, the majority of the costs were substantially concerned with the pursuit of Currabubula’s claim, Paola Holding’s role in the litigation being subsidiary to Currabubula’s. Application of the rule of thumb in this instance would result only in a windfall gain to the Bank at the expense of Paola Holdings. To my mind, this case falls within the approach taken by Singleton LJ in Korner v H Korner & Co Ltd (supra, at 17): no authority compels the Court to follow the rule in every class of case and the Court will not do so where its application would, as here, achieve an injustice. 107 It will be recalled that the costs orders as made on 5 May 1999 were that the Bank pay 90% of Currabubula Holding’s costs of the proceedings and that Paola Holdings pay 20% of the Bank’s costs of the proceedings. These orders were made after consideration of the varying success of the plaintiffs, the nature of the issues raised and the costs incurred by the parties upon those issues. The figure of 90% for Currabubula was intended to reflect the substantial, but not complete, success, of the first plaintiff. The award of the costs in favour of the Bank as against Paola Holdings in the figure of 20% was designed to reflect both the lack of success of Paola Holdings as well as the less substantial role played by that plaintiff in occasioning the costs incurred by the Bank in the conduct of the litigation. Like Korner v H Korner & Co Ltd (supra), judgment was not simply given for one or the other party with costs. The orders made represent a scheme, complete in itself, designed to do substantial justice between the parties as to the matter of costs. Currabubula’s ‘costs of the proceedings’ are those costs incurred by Currabubula jointly or alone referable to its claim. Apart from the costs occasioned by the application of Paola Holdings to be joined as a plaintiff (a matter which is dealt with specifically in paragraph 82 of the judgment of 3 May 1999), Currabubula’s costs of the proceedings do not include the costs referable to Paola Holding’s claim alone. As the Bank was the sole defendant, its ‘costs of the proceedings’ are, of course, all the costs incurred by the Bank in the proceedings. Interpreted in this way, the Bank’s liability does not exceed what it would otherwise be if Currabubula sued alone and the liability of Paola Holdings reflects an estimation of that portion of the Bank’s costs which went to meeting its unsuccessful claim. Application of the rule of thumb to these orders represents the application of an alien gloss on orders which have already taken account of the matters which the rule of thumb is concerned with. Accordingly, the costs assessor was wrong to apply it. 108 Because, in my judgment, the costs assessor was wrong to apply the rule of thumb to this circumstance for the reasons given above, it is not necessary to address, and the Court does not decide, the issues raised by Currabubula relating to the correctness in law of the rule of thumb and the effect of the provisions of the Legal Profession Act upon that rule.109 The parties are directed to bring in short minutes of order at which time submissions on costs will be taken.
Short Minutes of Order
CATCHWORDS: Practice and Procedure
I certify that paragraphs 1 - 109
are a true copy of the reasons for judgment
herein of The Hon. Justice Einstein____________________________
Susan Piggott
AssociateCatchwords, Legislation Cited and Cases Cited
are repeated following this page.LEGISLATION CITED: Legal Profession Act 1987
Costs - Taxation of Costs - 'Rule of Thumb' applicable when multiple defendants are variously successful and unsuccessful - Whether applicable to multiple plaintiffs variously successful and unsuccessful - Whether rule of thumb was properly applied in these proceedings - Whether rule of thumb excluded by the costs orders previously made.
Practice and Procedure
Jurisdiction of Court to correct errors in orders under the 'slip rule' - Principles governing the use of the slip rule - Whether slip rule may appropriately be employed in this case.
Practice and Procedure
Legal Profession Act 1987 - Appeal from 'decision' of a costs assessor - Whether appeal only permissible after determination of assessment - Differentiation between 'decision' and 'determination' of costs assessor - Purpose of provisions permitting for an appeal from a 'decision' of a costs assessor.
Practice and Procedure
Reckoning of time - principles governing the extension of time in which an appeal can be instituted.
Equity
Declaratory relief - Court's power to issue declaratory relief - Whether affected by the Legal Profession Act 1987 - Principles informing Court's discretion to issue declaratory relief - Relevance of alternative means of appeal.
CASES CITED: Adam Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1WLR 445
Supreme Court Act 1970
Judicial Officers Act 1986
Crown Employees Appeal Board Act 1944
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Public Service Act 1902
Planning Act 1982 (SA)
Supreme Court Rules 1970
Interpretation Act 1987
Industrial Arbitration Act 1940
Town and Country Planning Act 1947 (UK)
DECISION: (1) Decision of costs assessor that the costs to be assessed in the assessment proceedings be apportioned on an equal basis between the first and second plaintiffs in the proceedings where work was done on behalf of both plaintiffs is to be set aside upon the bringing of short minutes to this effect.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
Arnett v Holloway [1960] VR 22
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Axis Aviation Pty Ltd v Avtex Airservices Pty Ltd (unreported, Federal Court of Australia, 16 August 1995, Hill J).
Azzopardi v Tasman UEB Industries (1986) 4 NSWLR 139
Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1.
Barraclough v Brown [1897] AC 615
Beaumont v Senior and Bull [1903] 1 KB 282
Brew v Whitlock [1968] VR 504
Bruce v Cole (1998) 45 NSWLR 163
Bullock v London General Omnibus Co [1907] 1 KB 264
Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 115 ALR 1.
Commonwealth v McCormack (1984) 155 CLR 273
Coppins v Helmers (1968) 88 WN(NSW) 455; (1969) 72 SR (NSW) 273
D'Angela v Rip Pioneer Gravel Co Pty Ltd [1977] 2 NSWLR 227
Dansk Rekylriffel Sybdikat Aktieselskab v Snell [1908] 2 Ch 138
David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416
Dickinson v Perrington [1973] 1 NSWLR 72
Director General of Social Services v Chaney (1980) 47 FLR 80
Donald Campbell & Co Ltd v Pollack [1927] AC 732
Duchman v Oakland Diary Co Ltd [1930] 2 DLR 989
Electricity Commissioner v Blaber [1976] 1 NSWLR 143
Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Ex parte Herman; Re Mathison (1961) 78 WN(NSW) 6
Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (unreported, New South Wales Court of Appeal, 29 April 1991)
Fischer v Commonwealth (unreported, Federal Court of Australia, 16 September 1997, Branson J).
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421.
Gallow v Dawson (1990) 93 ALR 479
Ganke v Somerset (unreported, Supreme Court of New South Wales, 31 July 1996).
Gould v Vaggelas (1985) 157 CLR 271
Heywood v Visitors of Hull Prison [1980] 1 WLR 1386
In re Colquhoun (1854) 5 De G M & G 35; 43 ER 781.
In re Davidson's Patents; In re Gaskin's Patents [1921] 1 Ch 69
In the Marriage of Bailey, EN And Bailey BE (1990) FLC 92-145
Jess v Scott (1986) 12 FCR 194
Johnco Nominees Pty Ltd v Albury Wodonga (NSW) Corporation [1977] 1 NSWLR 43.
Keen v Towler (1924) 41 TLR 86
Kingston v Keprose (No 3) (1987) 12 ACLR 609
Korner v H Korner & Co Ltd [1951] 1 Ch 10
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Latoudis v Casy (1990) 170 CLR 534
Law Society of New South Wales v Weaver [1974] 1 NSWLR 271
Longreach Oil v Southern Cross Exporation NL (unreported, New South Wales Supreme Court, 9 March 1988, Young J).
Milson v Carter [1893] AC 638
MIR Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
Morris v Public Transport Commission of NSW (unreported, Court of Appeal, 28 May 1984).
Mouieux v Girvan NSW Pty Ltd (unreported, Court of Appeal, 20 September 1991).
Oshlack v Richmond Rover Council (1998) 193 CLR 72
Pye Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260
R v Cripps; Ex parte Muldoon [1984] 1 QB 686
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1987) 62 ALJR 151
Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438
Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Schipp v Cameron (unreported, Supreme Court of New South Wales, 12 October 1998, Einstein J).
Snell v Pryce (1992) 109 FLR 328
Symes v Commonwealth (1987) 89 FLR 356
Tak Ming Co v Yee San Co [1973] 1 WLR 300
Taylor v Public Service Board [1975] 2 NSWLR 278
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Vowell v Shire of Hastings [1970] VR 764.
Whitlock v Brew [(1968) 118 CLR 445
Woodward v Gaha (unreported, Supreme Court of New South Wales, 28 September 1995, Rolfe J)
Wylie v McNeil (1986) 42 SASR 537
Young v Public Service Board [1982] 2 NSWLR 456
(2) Matter is to be remitted to the costs assessor for assessment on the basis that in determining which are the first plaintiff’s costs of the proceedings, no discount or deduction should be made on the grounds that particular costs were incurred for work which advanced or referable to the cost of the second plaintiff as well as the first plaintiff upon the bringing of short minutes to this effect.
(3) Short minutes to deal with the extension of time issue.
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