Pontikides, Peter v P&O Ports Pty Ltd
[2009] VCC 1651
•21 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-00437
| Peter Pontikides | Plaintiff |
| v | |
| P & O Ports Ltd &Anor | Defendant |
---
| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 December 2009 |
| DATE OF RULING: | 21 December 2009 |
| CASE MAY BE CITED AS: | Pontikides, Peter v P&O Ports Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1651 |
| REASONS FOR RULING |
---
Catchwords: COSTS – application by Plaintiff for certification of counsel’s fees after dismissal of proceeding – whether court functus officio
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Nowicki Carbone |
| For the Defendant | Ms F McKenzie | Herbert Geer |
| HER HONOUR: |
1 This is a contested application to amend an order issued by the Court on 17 February 2009.
Facts
2 The matter was before the Court on 28 and 29 October 2008, with senior and junior counsel appearing on both days for each party. A number of issues were raised on these dates, principally concerning the adequacy of the defendant’s answers to interrogatories, evidence of an alleged admission by a high ranking officer of the defendant, and the expertise and value of an expert report on which the plaintiff sought to rely. These issues were strongly contested and, on 29 October 2008, the Court adjourned the matter and reserved costs to be dealt with on a different date.
3 The matter returned before the Court on 17 February 2009 but, prior to the trial commencing, the matter was resolved by consent. The parties agreed to a consent order and this was issued by the Court. The order dismissed the proceedings and dealt with the costs of the matter. In respect of costs, the consent order provided for the defendant to pay the plaintiff’s costs, specifically including any reserved costs (either by agreement or, failing agreement, by taxation) and certified for two counsel for the appearance on 19 February 2009. The only matter determined by me was the quantum of counsel’s fees at $6,600 and $3,300 respectively for that appearance. At no stage did any party raise the issue of costs for two counsel or brief fees for 28 and 29 October, and the order did not certify fees for this date.
4 The Taxing Registrar has since held the fixing of a brief fee did not apply to 28 and 29 October 2008. The plaintiff has applied to have the order of 17 February 2009 amended to provide for the costs of two counsel, and brief fees, on the earlier dates.
Issues for determination
5 There are two questions raised for determination by the parties. The first question is whether the Court is now functus officio and consequently unable to entertain the application or amend the order. If the Court is not functus officio, the second question is whether the Court should exercise the power to amend the order as requested.
Functus Officio
6 The plaintiff conceded the slip rule had no application. Rather, the plaintiff submitted the Court is not functus officio as there are questions which have been left open by the previous orders of this Court. That is, the plaintiff submitted the order of 19 February 2009 only disposed of the issue of who should pay the costs of 28 and 29 October 2008, leaving open for later determination the issues of whether the matter was appropriate for two counsel and the appropriate brief fees for those dates. Counsel for the plaintiff provided no authority in support of his submission, stating that he did not “expect that there would be any authority on such an obscure point” and filed no affidavit material in support of his application. When invited by me to reflect on the role of r 63A.03 of the County Court Civil Procedure Rules which provide that: “[t]he Court may in any proceeding exercise its current discretion as to costs at any stage or after the conclusion of the proceeding”, counsel for the plaintiff said he relied on this rule.
7 The defendant submitted that once orders are authenticated or entered they are final orders (unless, for example, there has been a mistake by the Court) and the Court is functus officio. In particular, it was submitted, the Court does not have a general jurisdiction to amend an order because a party did not raise an issue earlier. In this respect, the Defendant relied upon the decisions in Bailey v Marinoff[1], FAI Insurance Company v Southern Cross and Pollard v Incorporated Nominal Defendant[2], where the principle of finality was emphasised and it was recognised that, once perfected, a Court order typically brings the matter and/or proceedings (subject only to appeal) and the Court’s jurisdiction to a close (subject obviously, as recognised in FAI Insurance, to any relevant legislative provisions). The Defendant also sought to rely on s 73 (orders shall be binding and conclusive) and s 74 (providing for appeal from final orders) of the County Court Act, emphasising that r 63A.03 needed to be read subject to and consistently with these provisions.
[1] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 (3 November 1971); FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 (25 March 1988);
[2] Pollard v. Incorporated Nominal Defendant (1972) VR 955
8 There are a number of authorities which have discussed the power of a court to amend or make further orders, including in relation to costs (albeit in a variety of contexts), after the perfecting of final orders.[3]
[3] see, for example, Mansell; Mansell v Keating, VSC, 2 May 1995, O’Bryan J, unreported. Kazmierczak; In the Marriage of Kazmierczak [1987] FLC 76,415 Brew; Brew v Whitlock (No 3) [1968] VR 504 Shaddock; Shaddock (L) & Associates Pty Ltd and Another v Parramatta City Council (1982) 43 ALR 473 Pettet; Pettet v Readiskill Pty Ltd [1999] VSC 516 Sands; Pettet v Readiskill Pty Ltd [1999] VSC 516 Tak Ming Co Ltd. Tak Ming Co Ltd v Yee Sang Metal Supplies Co (1973) 1 WLR 300]
9 For example, in Mansell, Justice O’Bryan ruled a Magistrate was functus officio, and could not make a costs order, where the successful defendant had failed to apply for costs after the order was entered into the register on 8 June 1994 (the Crown conceded that, had an application for costs been made on that day, they could not have resisted an adverse costs order). Section 131(1) of the Magistrates Court Act provided the Court a discretion to award costs in relation to “all proceedings in the Court”.
10 In reaching this conclusion, Justice O’Bryan reviewed the case of Brew. In that case, an appellant to the Full Court of the Supreme Court of Victoria obtained an order for a money sum and costs. The appellant did not, however, apply for interest on the judgment when the judgment was pronounced (s 78 of the Supreme Court Act provided the Court could only make an order for interest following an application by a party). The appellant subsequently applied to amend the judgment to provide for interest but the Court ruled that it was now too late for any application to be made that would comply with the requirements of s 78.
11 Justice O’Bryan also noted the decision of Kazmierczak, where the Full Court of the Family Court held, on the basis of the relevant provisions in the Family Law Act, that the Court was not functus officio and a costs application could be made at any time in relation to completed proceedings providing the application was not too remote in time from the original proceedings. Justice O’Bryan found that the decision in Kazmierczak was in conflict with the decision in Brew, and was in any event distinguishable as the relevant cost provisions in the Family Law Act were not analogous to those in the Magistrates Court Act. Justice O’Bryan concluded:
In my opinion, these two authorities show that an oral application must be made to the Court for an order for costs or interest on judgment (if applicable). A successful party entitled to costs and/or interest cannot rely upon the Court initiating an application for costs or interest (if applicable) on their behalf. There is no onus on the Court to raise the question of costs or interest following announcement of the decision. This is so in both civil and criminal proceedings.
…
I consider that the decision in Brew is authority for the proposition relied upon by Counsel for the respondent namely, that once the order in the Magistrates’ Court was entered in the register at that stage the proceeding had been finally determined by the Court and the learned Magistrate was functus officio. The appellant was not able to apply for costs in the absence of a current proceeding. The position would have been otherwise had an application been made on 8 June to reserve the question of costs for hearing on a subsequent date. This was not done.
12. I consider that the observations made by Justice O’Bryan are instructive to this
case and provide sufficient basis to dismiss the application. Moreover, even if r 63A.03 could, consistently with ss73 and 74, be read as allowing an application for costs to be brought sometime after the event, the application for amendment would, eleven months after the conclusion of the original proceedings, be too remote in time from the original proceedings. Importantly, this is not a case where there was no opinion or controversy about what the appropriate order would have been in respect of costs. I note in this regard what the Court of Appeal said in Sands:
As at present advised, and notwithstanding what was said by the Full Court in Brew v Whitlock (No 3), I should be reluctant to hold that the slip rule may not be invoked in a case in which it is clear that, had the matter been adverted to, the primary judge would have made an award of interest in the exercise of a statutory power merely on the ground that there is room for debate about the rate of interest or the period for which it should be allowed. But I need not pursue this question, for in my opinion, it is unnecessary to decide whether in the present case that fact that r26.11(2) gives a discretion concerning the period in respect of which solicitor and client costs are to be awarded prevents the application of the slip rule. I consider that the rule cannot be applied for a more fundamental reason. This is the impossibility of saying, with the necessary degree of conviction, that an award of solicitor and client costs would have been made had the matter been drawn to the attention of the Court of Appeal… It may well be that the Court would have done so, but I do not think that it can be said that there can be no real difference of opinion, no controversy, about whether that was the appropriate order to make…
13. The important distinguishing feature of the current application is that the order the plaintiff unilaterally seeks to amend was issued by consent, disposed of all matters before this court in the proceeding including matters pertaining to costs (certifying for counsels fees on 17 February 2009 and omitting to certify for the remaining dates – the effect being that second counsel and above scale costs would only be awarded for the latter date). The order has been perfected and this Court is functus officio.
If the Court is not functus officio, should the Court exercise the power to amend the order as requested?
12 For the sake of completeness, and in the event that the Court is not functus officio, I note that I would not in this case exercise the power in the plaintiff’s favour for the following reasons.
13 The plaintiff’s argument on this issue in part sought to have it both ways. The plaintiff, for example, suggested that if the matter was appropriate for two counsel (and certification) in February it should be inferred that it was also appropriate to have two counsel (and certification) for 28 and 29 October 2008 (the plaintiff also noted the anticipated length, complexity and disputation of the trial). Leaving aside whether the Court would have (had the matter been contested) exercised the discretion to certify counsel fees, the fact is the certification for the February costs was by the parties’ consent. Accordingly, it does not provide a basis for inferring how the Court would have used its discretion if it had been asked to determine a contested application for costs regarding the February or the October dates.
14 Moreover, the order on 17 February 2009 was issued with the parties’ consent. The order purportedly dismissed the proceedings and (in my view) also dealt conclusively (from the Court’s perspective) with both who should pay costs and the manner in which costs were to be quantified (certifying fees to 17 February 2009 but omitting, with the parties’ effectively agreeing to forego, certification of fees for the remaining dates), where both parties at the issuing of the order were represented by two (including senior) counsel.
15 In the circumstances of this case, I am most reluctant to vary an order made by consent in response to a unilateral and contested application by one party eleven months after the order was issued. I consider that it would be contrary to public policy (including the principle of finality) and inappropriate and unfair to vary the order to provide for certification of costs for the October dates.
16 It follows from the above that the plaintiff’s application to vary the order of 17 February 2009 is dismissed. I reserve the costs of the application.
0