Frigger v Professional Services of Australia Pty Ltd [No 3]

[2012] WASCA 38

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 3] [2012] WASCA 38

CORAM:   PULLIN JA

NEWNES JA
MAZZA JA

HEARD:   1 FEBRUARY 2012

DELIVERED          :   1 FEBRUARY 2012

FILE NO/S:   CACV 51 of 2010

BETWEEN:   ANGELA FRIGGER

HARTMUT FRIGGER
Appellants

AND

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (Subject to Deed of Company Arrangement)
First Respondent

DONALD CAMPBELL-SMITH as Executor of the Estate of MARTIN PAUL BANNING (Dec)
Second Respondent

COMPUTER ACCOUNTING & TAX PTY LTD (IN LIQ)
Third Respondent

MERVYN KITAY Liquidator of the Third Respondent
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

Citation  :PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD (Administrator Appointed) -v- COMPUTER ACCOUNTING AND TAX PTY LTD [No 3] [2010] WASC 93

File No  :COR 2 of 2010

Catchwords:

Practice and procedure - Orders as to costs - Application to recall orders - Orders perfected - Whether court has jurisdiction to recall orders once perfected

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellants:     Mr D W Thompson

First Respondent           :     Mr B W Ashdown

Second Respondent      :     Mr B W Ashdown

Third Respondent          :     Mr D W John

Fourth Respondent        :     Mr D W John

Solicitors:

Appellants:     David Thompson

First Respondent           :     Holborn Lenhoff Massey

Second Respondent      :     Holborn Lenhoff Massey

Third Respondent          :     Freehills

Fourth Respondent        :     Freehills

Case(s) referred to in judgment(s):

Burrell v The Queen [2008] HCA 34

Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103(S)

The State of Western Australia v Wallam [2008] WASCA 117(S)

1. REASONS OF THE COURT:    The appellants have applied for an order 'recalling' this court's order of 1 August 2011.  The orders made on 1 August 2011 were orders concerning the costs of the appeal which had earlier been disposed of.  The orders were:

   1.The appellants jointly and severally pay 50% of the first and second respondents' costs of the appeal including all reserved costs to be taxed.

   2.The appellants jointly and severally pay the third and fourth respondents' costs of preparing their written submissions on costs dated 13 June 2011 and the affidavit of David William John made 10 June 2011 but otherwise there be no order as to the costs of the appeal as between the appellants and the third and fourth respondents.

   3.There be liberty to apply.

2. The reasons for these orders were published:  see Frigger v Professional Services of Australia Pty Ltd [No 2] [2011] WASCA 103(S).

3. The appellants allege that the Court of Appeal was under two 'misapprehensions' in making the orders.  The first alleged 'misapprehension' was that:

   [T]he orders made in substitution for the orders made by Master Sanderson obliged the appellants to pay all the taxed costs of :

   2.1in the case of the first and second respondents, the costs of their originating process seeking winding up orders and the costs of their application for appointment of a provisional liquidator; and

   2.2in the case of the fourth respondent, his costs of the first and second respondents' originating process seeking winding up orders,

   when in fact this Court ordered that the appellants pay only so much of those taxed costs as resulted from the appellants' opposition and attendance.  The only taxed costs that the appellants will be liable to pay in total are those of their interlocutory process dated 30 April 2010, a comparatively minor amount.

   (See the appellants' written submissions in support of this application).

4. In effect the appellants contend that they will have to pay much less after taxation of costs than Master Sanderson had ordered and that this court did not realise this. 

5. The court was not under a misapprehension.  At [10] of its reasons, this court considered the circumstance that the appellant would pay after taxation, less than Master Sanderson had ordered.  The court said that in that circumstance 'the appellants will have succeeded to some extent depending upon the outcome of the taxation'.  The court added in the final sentence in [10]:

   However, one thing is clear and that is that the Friggers will have to pay some costs.

6. The second alleged 'misapprehension' was that:

   At [7] the Court relies on the 'orders sought' contained in the Appeal Books as evidence of the appellants' objective, but in doing so appears to have overlooked the evidence constituted by the appellants' second and third grounds of appeal, which are directed at the fixing of costs at an amount in excess of the scale, regardless of the issue of where those costs should lie.

7. The court did not overlook the grounds of appeal.  In [7] reference was only made to the order sought.  What was stated in [7] about the order sought is correct.  The grounds of appeal were advanced in support of the order sought.  In [7] we observed that the primary and perhaps only objective of the Friggers was to overturn the costs order so that they had no liability at all to pay cash, as evidenced by the 'orders sought' in the appellant's case which simply proposed orders setting aside the costs orders which had been made by Master Sanderson.

8. There is therefore no foundation for the application brought by the appellants.

9. It is only necessary to add that if the court had been mistaken as to the facts, then that would have constituted an error in its reasons leading to the orders it made.  After a final order has been sealed and therefore perfected, such errors may only be remedied on appeal:  see Burrell v The Queen [2008] HCA 34 and The State of Western Australia v Wallam [2008] WASCA 117(S) (McLure JA), [6] ‑ [7], [13] ‑ [16], (Murray J, Miller JA agreeing) [42] ‑ [43]. The order which the appellant seeks to recall was sealed before this application was made and disposed of. The fact that liberty to apply was granted does not alter that conclusion. Liberty to apply was only granted in relation to issues concerning repayment should costs already paid by the appellants exceed orders for taxed costs: see [16] of the reasons. The slip rule clearly does not apply in the present circumstances.

10. The application is dismissed.