Director of Housing v Endersby; Director of Housing v Henry

[2003] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3781 of 2002

DIRECTOR OF HOUSING	Applicant/Appellant
v.
JOHN WILLIAM ENDERSBY & RHONDA ENDERSBY	Respondents/Respondents

No 3782 of 2002

DIRECTOR OF HOUSING	Applicant/Appellant
v.
JACQUELINE HENRY	Respondent/Respondent

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JUDGES:	PHILLIPS, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2003
DATE OF JUDGMENT:	16 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 79

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Courts – Practice and procedure – Questions for trial before main proceeding – Questions answered on hypothetical facts – Leave to appeal sought – Resolved by agreement – Appeal allowed and matter remitted for full trial.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Appellant	Mr A.C. Archibald, Q.C. with Mr D.G. Robertson	Mallesons Stephen Jaques
For all Respondents	Mr P.N. Vickery, Q.C. with Mr J.K. Arthur	J.N. Zigouras & Co.

PHILLIPS, J.A. (for the Court): 

1. The Court has before it an application for leave to appeal and, if leave be granted, an appeal in each of two proceedings, being County Court Proceeding No.7911 of 2001 and in County Court Proceeding No.7910 of 2001.  The proceedings in the County Court were very similar.  They both led to an application made on 12 June 2002, the result of which was an order made by his Honour Judge Holt that three questions be tried before the trial of the proceeding itself.  The trial of those three questions came before his Honour Judge Dove and on 6 December 2002 his Honour answered the questions respectively as "Yes"; "No" and "No".  His Honour also ordered that the defendant pay the plaintiff's costs.

1. The defendant now seeks to appeal in both proceedings against the orders made on 6 December.  On 14 February the applications for leave to appeal came before this Court and it was ordered then that the applications should be heard by the Court which, if leave were granted, would hear the appeals.  It was common ground, as I apprehend it, that the two appeals, like the two proceedings thus far, should be heard together.

1. When the matters were called on for hearing this morning, the Court raised with counsel whether it was appropriate in all of the circumstances for the questions posed by Judge Holt to be determined, especially in the light of the conditions laid down by his Honour in paragraphs 4 and 5 of the order made on 12 June. 

1. The difficulties were ventilated at some length with counsel.  Indeed, they led to Mr Vickery, for the respondents, seeking to serve and file, very late in the day it may be said, notice of cross-appeal on the ground that the questions ought not to have been answered.  He sought leave also to cross-appeal but it may be doubted that any question of cross-appeal arose unless and until Mr Archibald for the appellant had gained his leave to appeal.

1. In the end, however, and without the need for us to hear argument on the appeals, these matters have been resolved, largely by the good sense of the parties.

1. Although Mr Vickery submitted otherwise, we think that the defendant should have his leave to appeal.  It then follows, because of agreement reached, that the appeals can be allowed by consent on the basis that the questions referred to in paragraph 3 of the order of his Honour Judge Holt should not have been answered.  In lieu we would order in each case that the questions in paragraph 3 be not answered and that the proceeding brought by the respondent (or respondents, as the case may be) return to the County Court for further directions as to trial.  In so doing, we express no opinion at all on the correctness or otherwise of the answers given by Judge Dove to the questions posed by Judge Holt.

1. In the course of the discussion this morning, mention was made of the possibility of mediation and in the orders we make we shall simply leave that possibility open; it is a matter to be determined by the County Court rather than by us.

1. There has, however, been some discussion about the proper order to be made concerning costs.  First, we have no doubt but that if the appellant is to have his leave to appeal, the costs of his application for that leave must be made costs in the appeal.  So far there is no difficulty.

1. The question that was debated was whether the costs of the proceeding in the County Court to date, being the costs of the application to Judge Holt and the costs of the proceeding before Judge Dove, should be made costs in the cause or simply reserved to the trial judge.

1. Having considered the arguments that have been put, we think the proper course is to reserve the costs to the trial judge.  Mr Archibald was disposed to submit that there was in truth no answer to the argument that costs be costs in the cause, but we think that given all of the circumstances the trial judge will be in as good a position as we are to determine the costs of the proceeding in the County Court to date and might well be in a better position.

1. As for the costs of the appeal itself, Mr Vickery has sought an order that they be paid by the appellant.  We think the proper order is that the costs of the appeal be costs in the cause, being the County Court proceeding in each case; in other words, the costs of this appeal will fall to that party which in the end is successful in the proceeding.

1. Accordingly, and subject to anything counsel may say, the Court proposes the following orders in each of these two proceedings:

1.That the applicant Director have leave to appeal and that the costs of the applicant's summons filed on 20 December 2002 be costs in the appeal. 

2.That the appeal be allowed by consent on the basis that the questions referred to in paragraph 3 of the order made in the County Court on 12 June 2002 should not have been answered. 

3.That the orders made in the County Court on 6 December 2002 be set aside and in lieu thereof there be substituted the following orders: 

(1)that the questions referred to in paragraph 3 of the order of Judge Holt made on 12 June 2002 be not answered; 

(2)that, subject to mediation if ordered, the proceeding commenced by the plaintiff (or plaintiffs, as the case may be) against the defendant proceed to trial as may be directed; and

(3)that the costs of the application to his Honour Judge Holt and of the proceeding before his Honour Judge Dove, including any costs reserved, be reserved to the trial judge.

4.That the costs of this appeal be costs in the proceeding brought in the County Court by the respondent (or the respondent, as the case may be) against the appellant.

1. In order to make it clear beyond argument, we say that in substituting for the order below an order that the costs of the application to his Honour Judge Holt and of the proceeding before his Honour Judge Dove, including any costs reserved, be reserved to the trial judge, the Court is not intending to disturb the orders found in paragraphs 7, 8 and 9 of the order made by his Honour Judge Holt on 12 June.  

1. Paragraph 7 simply reserves the question of costs of formulating the questions posed.  That is perpetuated in our order that those costs be reserved to the trial judge.  Paragraphs 8 and 9 deal with other matters and those orders are not intended to be disturbed. 

1. Subject to that, does counsel have anything to say?

MR ARCHIBALD: 

1. We do not.

PHILLIPS, J.A.:

1. Very well.  The Court makes the orders already mentioned.  We should say perhaps, and this can be recorded too, that paragraph 7 of his Honour Judge Holt’s orders, in referring to "the questions set out in paragraph 1 of this Order", makes an obvious slip; his Honour must have meant the questions set out in paragraph 3.

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