Michael Wilson & Partners Ltd v Nicholls (No 7)
[2022] ACTCA 43
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Michael Wilson & Partners Ltd v Nicholls (No 7) |
Citation: | [2022] ACTCA 43 |
Hearing Date: | 3 May 2022, 21 July 2022 |
DecisionDate: | 23 August 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [50]-[53] |
Catchwords: | APPEAL – APPEAL FROM SUPREME COURT – CIVIL – where applicant seeks to advance oral submissions on costs – jurisdiction of single judge to decide issue of costs on the papers – consideration of s 37J(2) of the Supreme Court Act 1933 (ACT) – whether Court Procedures Rules 2006 (ACT) permit a single judge to make orders absent an oral hearing – where oral hearing previously held relating to security for costs – where oral submissions on costs expressly not advanced at previous oral hearing – where uncertainty as to Court’s jurisdiction – matter listed for oral hearing on costs – whether applicant should be permitted to address Court on stay of previous orders – leave to advance submissions on costs only |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 5602, 5604, 5605 |
Cases Cited: | Alan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 |
Parties: | Michael Wilson & Partners Ltd ( Applicant) Robert Colin Nicholls ( First Respondent) David Ross Slater (Second Respondent) Temujin Services Ltd (Third Respondent) Temujin International Ltd (Fourth Respondent) Temujin International FZE (Fifth Respondent) John Forster Emmott (Sixth Respondent) Effective Funds Management Pty Ltd (Seventh Respondent) |
Representation: | Counsel M Wilson ( Applicant) J Baird (Sixth Respondent) B Glare (Seventh Respondent) |
| Solicitors Michael Wilson & Partners ( Applicant) Duggan Legal ( Sixth Respondent) Rothwell Lawyers (Seventh Respondent) | |
File Number: | ACTCA 36 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 30 June 2021 Case Title: Michael Wilson & Partners Ltd v Nicholls & Ors Citation: [2021] ACTSC 128 |
LOUKAS-KARLSSON J:
Introduction
On 28 July 2022, I made orders in-chambers relating to the timetable for the filing of written submissions on costs and other matters. Relevantly for this judgment, the orders included an order that “subject to any further order or direction, the question of costs be determined on the papers”.
The issue of costs related to the hearing of an application for security for costs, a related application filed by the applicant, and issues relating to two notices to produce. My reasons in relation to each of those matters can be found in the following judgments: Michael Wilson & Partners Ltd v Nicholls (No 4) [2022] ACTCA 23 (First Notice to Produce Judgment), Michael Wilson & Partners Ltd v Nicholls (No 5) [2022] ACTCA 39 (Second Notice to Produce Judgment), and Michael Wilson & Partners Ltd v Nicholls (No 6) [2022] ACTCA 41 (Security for Costs Judgment).
These reasons should be read in conjunction with those reasons, which outline the background to the proceedings.
As is apparent from those reasons, following a two-day hearing, I made orders on 21 July 2022, inter alia, setting aside the second notice to produce, requiring the applicant to provide security to the sixth respondent fixed in the sum of $22,500 and dismissing the applicant’s application.
At the hearing on 21 July 2022, following the announcement of the substantive orders the issue of costs was raised with the parties. The sixth and seventh respondents indicated that they sought costs orders in their favour. In response, the applicant indicated that he sought an order that costs be reserved and the parties provide written submissions after receipt of the submissions. The applicant also indicated that he would seek to advance oral submissions on the question of costs.
Ultimately, I made orders on 21 July 2022 reserving the question of costs and indicating that I would make further orders in-chambers regarding the provision of written submissions when I delivered my reasons for judgment. That approach ensured that the time for the provision of the written submissions was not affected by any delay in the provision of reasons (noting that two separate judgments were required: one on the second notice to produce and one on the security for costs application and the related application).
Subsequently, I delivered my reasons on the security for costs application on 28 July 2022 and made orders in-chambers regarding the provision of written submissions. The basis for making the orders is explained at [132]-[134] of the Security for Costs Judgment:
On 21 July 2022 I also made an order reserving costs of the applications pending the provision of reasons to the parties. That order was in the terms sought by the applicant.
In relation to costs, orders will be made in-chambers in the following terms:
(a) The applicant, sixth respondent and seventh respondent have leave to provide submissions limited to two pages in length in respect of costs incurred in relation to the hearing of the security for costs application, the application dated 19 April 2022 and the notices to produce dated 11 May 2022 and 19 April 2022.
(b) Any such submissions are to be provided to my chambers by email by 4.00pm AEST on 4 August 2022.
(c) The parties have leave to provide submissions in reply, limited to two pages in length. Any such submissions are to be provided to my chambers by email by 4.00pm on 9 August 2022.
(d) Subject to further order or direction, the question of costs will be determined on the papers.
In relation to the determination of costs orders, the applicant indicated at the hearing on 21 July 2022 that Mr Wilson wished to advance oral submissions in relation to costs. In my preliminary view, oral submissions are not necessary in the particular facts of the case for the following reasons. First, in the usual course costs follow the event and the question of costs in this case does not appear to be one that is complicated by any relevant wider matters. Second, the general course for applications of this type is for written submissions on costs to be provided and for costs to be determined on the papers. Such a course prevents unnecessary further costs being incurred by the parties who have succeeded in relation to the interlocutory application. Third, the parties are all represented by experienced counsel and practitioners and no party will suffer any prejudice where costs are determined on the papers. However, I will also make orders in the following terms in-chambers:
(e) The applicant has leave to provide separate written submissions limited to two pages in length addressing the question of why the applicant submits leave should be granted for the applicant to provide oral submissions in relation to costs.
(f) Any such submissions should be provided to my chambers by email by 4.00pm AEST on 4 August 2022.
(g) The sixth and seventh respondents have leave to provide written submissions in reply, limited to two pages in length, by 4.00pm on 9 August 2022.
(h) The question of whether the Court will hear further oral submissions in relation to costs will be determined on the papers.
Subsequently, the applicant contacted my chambers seeking an extension of time to provide written submissions on account of the need for preparation for a hearing the applicant was involved in in the NSW Supreme Court against the sixth respondent.
I granted that extension of time in-chambers and made orders in the following terms:
1. The time for compliance with orders 2 and 6 of the orders made on 28 July 2022 be extended to 4.00pm AEST on 11 August 2022.
2. The time for compliance with orders 3 and 7 of the orders made on 28 July 2022 be extended to 4.00pm AEST on 16 August 2022.
That order was communicated to the parties in the following terms by my Associate:
In light of the need for Mr Wilson to prepare for the NSW Supreme Court hearing, her Honour will grant an extension of time for the provision of written submissions concerning costs as outlined in the orders described at [133](a) and (b) and [134](e) and (f) to 4.00pm AEST on 11 August 2022.
There will be a corresponding extension of time for the parties to provide any written submissions in reply as outlined in the orders described at [133](c) and [134](g) to 4.00pm on 16 August 2022.
I note that the extension of time, despite being sought by the applicant only, applied to all parties. Such an approach was, in my view of the circumstances of this case, preferable to ensure that no party faced any disadvantage in having its submissions available to the opposing side for a far greater period of time.
Ultimately, the applicant, sixth respondent and seventh respondent provided written submissions concerning costs and the applicant and sixth respondent supplied submissions in reply. There is no need to consider those submissions in detail for the purpose of this judgment, which is concerned with the question of whether the proceeding should be listed for further oral submissions on costs. For the reasons that follow, I determined that the proceeding should be listed for one hour for the hearing of oral submissions on costs.
In relation to the question of whether oral submissions should be advanced on the issue of costs there are two issues. The first is an issue that was not raised by the applicant nor any of the respondents, namely, whether as a single judge sitting as the Court of Appeal, I have the power to refuse the applicant’s request for the matter to be fixed for the hearing of oral submissions on costs and instead decide the costs issues “on the papers”. The second, which arises only if I do have that power, is the question of whether such an approach should be taken in this case.
Does a single judge sitting as the Court of Appeal have the power to decide costs on the papers?
Section 37J(1) of the Supreme Court Act 1933 (ACT) (Supreme Court Act) outlines when the Court of Appeal may be constituted by a single judge. That section relevantly states:
37J Appeal court constituted by single judge
(1) The Court of Appeal may be constituted by a single judge for hearing and deciding any of the following matters (incidental matters) in relation to an appeal:
(a) leave or special leave to appeal;
(b) extension of time to institute an appeal;
(c) leave to amend the grounds of an appeal;
(d) amendment or stay of an order of the court from which the appeal is brought;
(e) suspension of the operation of an order to which the appeal relates;
(f) including, removing or substituting a party;
(g) a consent order disposing of the appeal (including an order for costs);
(h) dismissal of an appeal or other proceeding for want of prosecution or for any other reason prescribed under the rules;
(i) dismissal of an appeal or other proceeding on the application of the appellant or other applicant;
(j) directions about the conduct of the appeal (including directions about use of written submissions and limiting time for oral argument);
(k) any other question of practice and procedure in the Court of Appeal;
(l) costs and other matters incidental to a matter mentioned in paragraphs (a) to (k).
It is critical to note at the outset that s 37J is the source of the power for a single judge to exercise the functions and powers of the Court of Appeal. Outside of s 37J, of course, the powers of the Court of Appeal are exercised by a bench of three judges of this Court sitting as the Court of Appeal.
Security for costs applications fall within the meaning of “practice and procedure in the Court of Appeal”: Hughes v Janrule [2011] ACTCA 15 (Janrule) at [62]. Similarly, the related application and the questions raised in relation to the notices to produce are, in my view, plainly matters of practice and procedure. Accordingly, s 37J(1)(k) permitted the Court of Appeal to be constituted by a single judge to deal with those applications.
I note the comments of Penfold J in Janrule at [45] that only costs issues incidental to another power being exercised fall within the scope of s 37J(l). The costs of the application for security for costs, the related application and the notices to produce are plainly within the meaning of s 37J(1)(l) as a question of costs incidental to the exercise of a separate power contained in s 37J(1)(a)-(k). There is therefore no question that I have the power as a single judge to make a costs order.
The issue that has arisen in this case, however, is whether I can make such an order without an oral hearing on costs (or put another way whether I can decide the issue of costs on the papers). This issue does not appear to have previously been substantively dealt with by a judge of this Court. I pause to note that judges of this Court sitting as the Court of Appeal constituted by a single judge have decided costs on the papers without the need for an oral hearing. I will turn to consider this matter further in these reasons.
The issue arose when I considered the implication of s 37J(2) of the Supreme Court Act, which provides that:
(2) The rules may provide for incidental matters to be dealt with without an oral hearing, subject to any conditions prescribed under the rules.
(emphasis added)
As the High Court outlined in Alan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alan (NT) Alumina) at [47]:
[T]he task of statutory construction must begin with consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text …
The power to decide an issue of costs incidental to one of the incidental matters contained in s 37J(1)(a)-(k) is itself, rather inelegantly, defined as an “incidental matter”. Accordingly, s 37J(2) applies to the question of costs of the security for costs application, the related application and the notices to produce.
As is clear from the text of the section, s 37J(2) of the Supreme Court Act permits the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) to provide for incidental matters to be dealt with by a single judge without an oral hearing (subject to any conditions the rules prescribe).
The obvious corollary of that statement, is that unless the Court Procedures Rules provide, the powers outlined in s 37J(1) may only be exercised by a single judge following an oral hearing. This must necessarily include the question of costs as costs are expressly defined in s 37J as an “incidental matter”.
While I note that the purpose of s 37J appears to be to improve the efficiency of the Court of Appeal by permitting some matters to be dealt with by a single judge rather than a full bench (for discussion see: Janrule), that purpose cannot override the plain textual meaning of s 37J(2) (Alan (NT) Alumina).
I further note that the interpretation I have adopted does not necessarily reduce the efficiency of the Court of Appeal. Rather, it simply requires the Court Procedures Rules to outline the circumstances in which a single judge sitting as the Court of Appeal could decide an “incidental matter” on the papers.
That the legislature would require an express rule as to when a single judge may make orders sitting as the Court of Appeal in chambers accords with the general principles of open and transparent justice. Given that the powers available to a single judge under s 37J(1) include the power to refuse leave to appeal (a matter that, absent a special leave application, would finally determine the appeal) the need for a clear process guiding when such an order could be made in chambers is apparent. Such a process guards against a situation where, for example, an applicant was unaware that an application for leave to appeal was being considered by a judge.
In particular, the requirement for an oral hearing requires notice to individuals involved in the matter and requires a public listing of the matter for hearing (in this scenario before a single judge sitting as the Court of Appeal).
As is plain from the background to this judgment, the matter was not listed for an oral hearing on costs before me.
Accordingly, there are two questions that I must ask in order to determine whether I have the power to decide the question of costs in this matter absent an additional oral hearing:
(a) First, whether the oral hearing in relation to the security for costs application, the related application and the two notices to produce is an oral hearing for the purpose of s 37J(2) with respect to the issue of the costs of those matters; and
(b) Second, whether the Court Procedures Rules “provide for incidental matters to be dealt with without an oral hearing”.
It is convenient to deal with the second question first.
Do the Court Procedures Rules provide for incidental matters to be dealt with without an oral hearing?
The only rules that expressly mention s 37J of the Supreme Court Act are rr 5604 and 5605. Those rules provide:
5604 When Court of Appeal may be constituted by single judge—Supreme Court Act 1933, s 37J (1) (h)
The Court of Appeal may be constituted by a single judge in relation to hearing and deciding the dismissal of an appeal under this part for any of the following reasons:
(a) the appeal is incompetent;
(b) the notice of appeal does not contain any coherent or arguable ground of appeal;
(c) the appellant has failed to comply with any relevant rules of court or practice note;
(d) the appellant has failed to comply with a direction of the Court of Appeal;
(e) the appellant has failed to provide security for costs in accordance with an order of the Court of Appeal.
5605 Jurisdiction of Court of Appeal that may be exercised by single judge—Supreme Court Act 1933, s 37J (3)
The jurisdiction and powers of the Court of Appeal may be exercised by a single judge in the following proceedings:
(a) an application by the director of public prosecutions under rule 5510 (2) (Appeals to Court of Appeal—registrar’s decision on application for leave to appeal out of time against conviction or sentence);
(b) an application by the applicant under rule 5510 (3) (b).
Plainly, neither of those rules provides for the powers contained in s 37J(1) to be exercised by a single judge without an oral hearing.
The question that then arises is whether any general rule would permit a single judge sitting as the Court of Appeal to exercise power pursuant to s 37J(1) without an oral hearing.
There are arguably several general rules that may apply to this proceeding.
Rule 5602(1), for example, provides the Court of Appeal with a general power to give directions in relation to the “conduct of the appeal or application … even though the direction may be inconsistent with another provision of [the Court Procedures Rules]”. That power may be exercised on the Court’s own initiative: r 5602(2) and, in making a direction pursuant to that rule “the interests of justice are paramount”: r 5602(3).
While there is perhaps some force to the argument that r 5602 provides the Court of Appeal with the power to make an order that a particular matter be dealt with on the papers, in my view, that rule does not, on its own, enable a single judge to exercise the powers contained in s 37J(1) without an oral hearing.
Rather, the situation is analogous to general rules being excluded or limited by specific statutory language. For example, in Council of the Law Society of the ACT v Legal Practitioner 202021 (No 2) [2022] ACTSC 204, Mossop J stated at [49]:
The level of generality with which r 5052 deals with the powers of the Supreme Court upon any of the “appeals” covered by r 5051 is problematic because the rule pays no attention to the specific provisions that may govern the “appeal”. The rule must be taken as qualified by specific statutory provisions which confine the nature of the appeal: see for example CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; 277 FLR 26 at [27] …
Similar logic, in my view, must apply here. The power afforded by r 5602 must be taken to be limited by the specific statutory requirements contained in s 37J(2). So much is clear from the fact that s 37J of the Supreme Court Act governs when a single judge can sit as the Court of Appeal and outlines the powers that judge has when sitting as the Court of Appeal. As such, the general power afforded by r 5602 must be read in such a way as being limited by the specific statutory requirement of s 37J(2).
If that proposition was not correct, then any future rule that outlined the circumstances in which a single judge could decide the “incidental matters” absent an oral hearing could itself be set-aside or amended by a direction pursuant to r 5602. Such a result would be antithetical to the purpose of s 37J(2) which is to permit a specific rule to outline when an order may be made without an oral hearing and to set conditions on the exercise of such a power.
Put more simply, while r 5602 permits the Court of Appeal to make an order inconsistent with any other rule it does not purport to (nor could it purport to) permit the Court of Appeal to make an order inconsistent with the Supreme Court Act.
Similar logic applies to the general rules dealing with costs (which are themselves picked up in appeal matters).
In my view, given the clear legislative intent behind s 37J(2), that powers of a single judge be exercised following an oral hearing, absent a specific rule in the Court Procedures Rules outlining the circumstances in which a single judge may make an order, an oral hearing is required before a single judge can exercise power pursuant to s 37J(1) sitting as the Court of Appeal.
I pause to note that there are likely very many instances where it may be extremely desirable for a single judge to decide an issue on the papers, without putting the parties to the expense of an oral hearing. One such example would be a simple costs dispute where there is no disagreement as to the principles to be applied. A further example would be a situation where parties sought some consent orders to be made in chambers consenting to leave to appeal being granted or seeking some direction as to the provision of written submissions.
In circumstances where parties sought orders by consent, and those orders were reviewed and approved by a Judge of this Court it is a very unusual quirk of the Supreme Court Act that would require the parties to expend costs at an oral hearing to decide a non-contentious issue.
However, irrespective of the desirability of a more flexible process, general rules do not satisfy the requirement in s 37J(2) for a rule outlining which (if any) incidental matters can be decided absent an oral hearing and what conditions (if any) would apply to the exercise of such a power.
Does s 37J(2) require an oral hearing on costs in the circumstances of this case?
As I have outlined above, in my view, the Court Procedures Rules do not presently “provide for incidental matters to be dealt with without an oral hearing”. Nor, in my view, have I afforded the parties an oral hearing on costs (given that submissions on the issue were not advanced on 21 July 2022). That does not, however, conclude the issue.
As is apparent from the previous judgments in this proceeding, there have already been a significant number of oral hearings in this matter. Accordingly, there is an argument that I would have jurisdiction to decide the costs issue in chambers as I have already afforded the parties an oral hearing in relation to security for costs.
In my view, that argument, while attractive from an efficiency perspective, may not accord with the text of s 37(1) which has expressly defined costs as an incidental matter for which an oral hearing is required pursuant to s 37(2). However, in circumstances where submissions have not addressed the point and where there are examples of previous judges of this Court deciding questions of costs on the papers and, further, where I am sitting as a single judge of the Court it is neither necessary nor desirable to decide this point conclusively.
Rather, in my view, given the uncertainty as to whether I could decide costs absent an oral hearing and given the applicant’s clearly stated preference to have such a hearing, I will make an in-chambers order fixing the matter for hearing on costs. That order is appropriate as, in my view, it is not clear that I have the express power to refuse the applicant’s request for an oral hearing in the circumstances of this case.
Accordingly, I will make an order listing the matter for hearing on costs for one hour at a date to be fixed. In my view, having regard to the written submissions of the parties, that time is more than sufficient to hear any further submissions on costs. In particular, I note that the written submissions have not raised any legal matters, with the parties agreed on the legal principles that I ought to apply.
There is one further matter to address, namely what appears to be a suggestion by the applicant that he wishes to seek some variation to my previous orders at the oral hearing.
I note that the applicant in his written submissions, as to the desirability of an oral hearing, indicated that he would seek to advance submissions as to why my previous orders should be stayed, varied or set aside. The applicant will not be permitted to advance any such submissions at the hearing. The oral hearing will be limited to the question of costs as discussed in the Security for Costs Judgment.
Any foreshadowed application for a stay or for my previous orders to be varied or set aside is an application that must be brought in the usual way. In that regard, I note that my previous decisions are decisions of the Court of Appeal of this Court (constituted as a single judge).
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 23 August 2022 |
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