Parkesinclair Chemicals (Aust) Pty Ltd v Asia Associates

[2000] VSC 336

SUPREME COURT OF VICTORIA

PRACTICE COURT

No. 5729 of 1997

PARKESINCLAIR CHEMICALS (AUST) PTY. LTD. [ACN 007 128 501]	Plaintiff
v
ASIA ASSOCIATES INC. & ANOR	Defendant

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JUDGE:	HEDIGAN, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2000
DATE OF JUDGMENT:	24 August 2000
CASE MAY BE CITED AS:	Parkesinclair Chemicals v. ASIA Associates, Non-Party Burton & Parkes
MEDIUM NEUTRAL CITATION:	[2000] VSC 336

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Appeal Costs Act – Whether appeal from Master's decision to Judge of the Trial Division is an appeal to the Trial Division of the Supreme Court from the decision of a "court" in a civil proceeding, for the purposes of the Appeal Costs Act – Decision that the appeal fell within the Act and certificate granted.

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APPEARANCES:	Counsel	Solicitors
For the Non-Party	Mr I. Waller	Marks Freeman

HIS HONOUR:

1. On 29th June 2000, I delivered my decision with reasons on an appeal from a decision of Master Wheeler with respect to an application by the defendants for non-party discovery from Burton & Parkes Pty. Ltd., accountants, in connexion with the proceeding between plaintiff and defendants. Burton & Parkes had objected to production of documents referred to in a subpoena to produce them, the procedure under R.42.10 being utilised. Master Wheeler heard the objections on 8th June 2000 and found for Burton & Parkes, ordering that the subpoena be set aside as too wide and ordering that the defendants pay Burton & Parkes costs of and incidental to the subpoena. The defendants appealed against these orders and I upheld their appeal, ordering, inter alia, that Burton & Parkes pay the defendants' costs of both the proceeding before Master Wheeler and the costs of the appeal. Burton & Parkes then made application for an indemnity certificate in respect of costs pursuant to s.4 of the Appeal Costs Act 1998 ("the Act").  In effect, I deferred that application and requested counsel to file written submissions.  Mr Ian Waller of counsel has provided three sets of written submissions, which have been both well-researched and thorough, and have been of considerable assistance to me.  I now turn to consider whether there is power to make the order sought.  I should state that I was referred to ten decisions of Beach, J., all reserved decisions in the Practice Court between February 1999 and March 2000, in which his Honour granted the appropriate certificate under the Appeals Costs Act in respect of appeals from a Master of this Court both in respect of the applicant's own costs and the costs ordered to be paid to the opposite party.  In none of the cases was any question raised as to the aspect which troubled me, and no specific consideration of it by Beach, J. occurred.

1. The question raised by me was whether an appeal from a Master of the Supreme Court to a Judge of the Court is an appeal within the meaning of the Act.

"Section 4 of the Appeal Costs Act relevantly provides:

'(4)(1)If an appeal against a decision of a court in a civil proceeding –

(a)to the Trial Division of the Supreme Court

..

succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.'

The following definitions appear in section 3 of the Act:

'appeal'          includes an appeal by way of a re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated.

'court'          includes any tribunal or other body –

(a)from whose decision there is an appeal to a superior court on a question of law, or

(b) which may state a cast for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court.

'costs'          in relation to an appeal or case stated includes the costs of an application for an indemnity certificate in respect of the appeal or case stated but does not include costs incurred in a court of first instance except where otherwise expressly provided.

Rule 77.05 of the Supreme Court Rules provides that any person affected by any judgment given or order made by a Master of the Supreme Court may appeal to a Judge.  Rule 77.06(7) provides that the appeal shall be by re-hearing de novo."

1. This raised the possible view that the section contemplated only civil appeals from a court or tribunal outside the structure of the Supreme Court, not appeals within the Court itself, those arguably being mere references within the Court rather than appeals. It was submitted by counsel that an appeal from a Master of the Supreme Court to a Judge of the Trial Division of the Supreme Court was an appeal against the decision of the Court in a civil proceeding, within the meaning of s.4 of the Act.

1. I have reached the conclusion that the submission is correct and that an appeal from a Master to a Judge is an appeal within s.4.

1. The Full Court of the Supreme Court in Blackall v. Trotter (No. 2) [1969] V.R. 946 considered the issue in the context of the Appeals Costs Fund Act 1964, (replaced by the 1999 Act) in which the relevant definitions were different in form, but, for the present purpose, not different in substance:

"'appeal'          includes an order to review, a case stated for the opinion or determination of a superior court on a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial and any other proceeding in the nature of an appeal.

'court'includes the Industrial Appeals Court ... and any board or other body from whose decision there is an appeal to a superior court on a question of law or which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court."

In that case, the question for decision was whether or not a review by the Full Court of a taxation of costs by the Taxing Master was an "appeal" from a decision of a "court" within the then definition.  It was concluded that it was an "appeal" as it involved "the review by a superior authority of the decision of a subordinate authority, with power to the former to make any order that could have been made by the latter".  It thus "bore the essential hallmarks normally associated with the appellate process".  It noted that the language of the definition suggested that it was intended that the word "appeal" was intended to be wide in scope and that it was certainly a "proceeding in the nature of an appeal".  The review in that case was, of course, a consequence of the regulations made pursuant to O.65, R.27 of the then Rules.  This involved the party dissatisfied with the Taxing Master's decision applying pursuant to Regulation 41 of R. 27 to the Judge in Chambers, who referred it to the Full Court which overturned the Taxing Master's decision.  In that context, the application for an indemnity certificate under the then Act was made.

1. As to whether the application held to be an appeal was an appeal against the decision of a "court", the Full Court concluded that it was, stating as follows:

"The Taxing Master, although plainly an officer of the Court – see Part IX of the Supreme Court Act 1958 – is not in the ordinary use of language the Court when exercising its function.  He is an officer of the Court.  Nor does the Master aptly fit within the definition 'Court' in s.2 of the Appeal Costs Fund Act 1964 standing alone ... .

However s.7(4) of the Supreme Court Act 1958 provides:

'(4)Subject to this Act and Rules of Court the Master or any other officer of the Court may hear and determine such classes of applications as are specified in Rules of Court as being applications which may be heard and determined by such officer, and while so engaged shall constitute the Court for the purposes of this Act.'

Regulations (3() and (4) of r.27 of O.65 make provision for a dissatisfied party to make application to the Taxing Master to review the taxation of a bill of costs taxed by him, and require and empower him to reconsider and review his taxation and decide the application.  In so doing, they specify, in our opinion, a class of applications which may be heard and determined by an officer of the Court, namely, applications to the Taxing Master to review his taxation of a bill of costs.  In our opinion, while so engaged the Taxing Master, by virtue of s.7(4) of the Supreme Court Act 1958 constitutes the Court for the purposes of the Act.  It follows, we think, that the defendant's application was an appeal against the decision of a Court ... ."

I observe also that pursuant to s.75(2) of the Constitution Act 1975 the Supreme Court consists of the Judges and the Masters of the Court.

1. The decision in Blackall v. Trotter (No. 2) was referred to and followed by me in my decision in Aboriginal Hostels Ltd. v. Fisher (27 November 1997, unreported) and see also Grace Pty. Ltd. v. Olympic Fitness Centre (Anderson, J. Supreme Court of Victoria, unreported 3 August 1979).

1. Accordingly I grant an indemnity certificate pursuant to s.4(1)(a) to Burton & Parkes Pty. Ltd. in respect of its own costs of the appeal, and the costs ordered to be paid by it to the defendants.

1. The question arises whether or not the certificate should include the costs of the hearing before the Master.  The definition of costs within the indemnity certificate does not include costs incurred in the court of first instance except where otherwise expressly provided.  This language is not without its difficulties but I construe the words as meaning that such costs will not be met out of the Fund unless the appellate tribunal specifically orders to that effect.  I also view the language as expressing the parliamentary intention as being that prima facie such costs should not be ordered but that the appellate court has a discretion to order that they be included.

1. I do not propose to order that those costs be included in my order in this case.  The non-party Burton & Parkes had and has a close association with the plaintiff.  I have referred to this in my reasons given for my decision on the appeal.  It argued against production of the documents, probably at the behest of the plaintiff.  There was no issue of privilege.  It is not an appropriate case to make any additional costs order.

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CERTIFICATE

I certify that this and the 4 preceding pages are a true copy of the reasons for judgment of Hedigan, J. of the Supreme Court of Victoria delivered on 24 August 2000.

DATED this  day of  2000.

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Associate