Ryder v Morley

[1986] FCA 437

457

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	1	V. No. G 109 of 1983
)

DIVISION	GENERAL	)
BETWEEN:

JEX CORPORATION OF AUSTRALIA PTY. LIMITED

(in its capacity as trustee of the

Jet Corporation of Australia Trust) Applicant

and

PETRES PTY. LIMITED AND OTHERS Respondents

COURT: NORTHROP J.

m:	6 OCTOBER 1986
PLACE :	MELBOURNE

MINUTE OF ORDER

THE COURT ORDERS THAT the motion be refused with costs.

(Settlement and entry of orders is dealt	with in 0.36 of	the
Rules of Court.)

'NOT FOR DISTRIBUTION'

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	v. NO. G 109 of 1983
)

DIVISION GENERAL )

JET CORPORATION OF AUSTRALIA PTY. LIMITED

(in Its capacity a6 trustee of the

Jet Corporation	of Australia Trust)	Applicant
and

PETRES PTY. LIMITED AND OTHERS Respondents

COURT: NORTHROP	J
U: 6 OCTOBER
PLACE: .MELBOURNE

REASONS FOR JUDGMENT

The applicant, Jet Corporatlon of Australia Pty.

Limited ("Jet Corporation"), is moving the Court, upon

notlce, for the revlew of the decision on reconslderatlon of

a taxlng officer of the Court made on 21 May 1986. The

motion is brought pursuant to	0.62	r.44(1) of the Rules of
Court. That sub-rule provides:-

"44. (1) Where a taxlng officer gives a

certificate in accordance with his decislon on

reconsideration under rule 43 and pursuant to that rule a party requests the taxing officer to state his reasons for the decision, the Court shall, on motion by any party interested, review the decision

of the taxing officer on reconsideration."

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Tn'ne conditions precedent for the revlew, as speclfled In that

sub-rule, have befn satlsfled. The taxlng officer's reasons

for declsion are dated 21 May 1986.

The issue ralsed by the motion results from the

form of an order made by a Full Court of thls Court on 6 July

1964, but In order to understand that issue, it is necessary

to set out in summary form the events which led to the maklng

of that order.

In June 1983, Jet Corporation, together wlth two

other companies whlch are no longer parties to the

proceedings, instituted proceedings in this Court against a

large number of respondents lncludlng Barry John Collier and

Lmdsay Quentin Hogg, who, initially, were represented by the

one solicitor and counsel. By motion, notice of which was given on 27 July 1983, a group of respondents including

Messrs. Collier and Hogg sought orders that the proceedings

against them be stayed or dismissed, alternatively, that Jet

Corporation give security for costs. Two other groups of

respondents, by motion, sought similar orders in favour of

each of those groups. On 4 October 1983, the Court, as

presently constltuted, made a number of orders wlth respect

to those motions lncludlng the fol1owlng:-

"1. The Motlons by the Respondents that the

proceedlngs be stayed or dismissed generally

or in part be each dismlssed.

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2 . The Motions by the Respondents that the

Applicants provlde security for costs be each

dlsmlssed. ' '

The reasons for ~udgment for those orders are reported; see Jet Corporation of Australla Pty. Ltd. v. Petres Pty. Ltd.

(1983) 50 A . L . R . 7 2 2 .

On 11 October 1983, the Court, as presently

constltuted, made a number of orders wlth respect to those

motions, including an order that the respondents pay the

costs of Jet Corporation in respect of the motions or those parts of the motions which were dismissed by order on 4 October 1983.

Three separate appeals were taken from the orders set out above. Messrs. Collier and Hogg appealed. The other

two groups of respondents each appealed. On appeal, each

group sought orders that the proceedings brought by Jet

Corporatlon be stayed or dismissed generally, alternatlvely,

that Jet Corporation give security for costs. Consequential

orders as to costs were sought. The three appeals, wlth the

consent of all parties, were heard together. On 6 July 1984,

the Full Court gave its judgment on the appeals. One order

only vas made and entered even though there were three

separate appeals. The order was headed in the three appeals.

The order of the Full Court 1s set out:-

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"THE COURT ORDERS THAT:

1. The appeals of the apellant parties are

allowed with costs of and incidental to their

relevant motlons.

2 . Leave 1s granted to Jet Corporation to amend

the Statement of Claim if so advlsed.

3 . Leave is reserved to the appellant parties to apply to this Court in respect of the amended Statement of Claim if so advlsed on reasonable notice.

4. Security for the costs of each of the

appellant partles should	be provided by	Jet
Corporatlon.

5. The determination of the amount and nature of

such security 1 s referred to the Judge from

whose decision this appeal 1s brought."

The reasons for ~udgment for those reasons are reported; see

Sent v. Jet Corporation	of Australia Ptv. Ltd.	(1984) 2
F.C.R. 201.

Difficulties arise from the form of the orders made

by the Full Court. Some of those difficulties, in the

application of those orders to the motion before the Court as

presently constituted, are mentioned. Section 28 of the

Federal Court of Australia Act 1976, confers powers upon a

Full Court exercising appellate jurlsdiction. A Full Court

may affirm, reverse or vary the ~udgment appealed from. It

may set aside the ~udgment appealed from In whole or in part.

_.

It may glve such -Judgment or make such order as it thlnks

fit. A reference to the reasons for ]udgment of the members

of the Full Court shows that Messrs. Collier and Hogg falled

in their appeal for an order that the proceedings brought by

Jet Corporation be stayed or dlsmissed generally, but

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succeeded in thelr appeal for an order that Jet Corporation

glve securlty for costs. Accordlngly, the order of the Full

Court should have affirmed order numbered 1 made on 4 October

1983 but reversed or set aslde the order numbered 2 made on 4

October 1983. On its face, the orders made by the Full Court

do not reverse or set aslde the order for costs In favour of

Jet Corporation made on 11 October 1983. On these aspects of

the matter, the Full Court ordered that "The appeals of the

appellant parties are allowed wlth costs of and incidental to

their relevant motions". There was no express order to the

effect that Jet Corporation should pay the costs of Messrs. Collier and Hogg of the appeal or of their motion before the

Court a6 presently constituted. Nevertheless, Jet

Corporation and Messrs. Collier and Hogg each assumed that

the order of the Full Court lust set out entitled Collier and

Hogg to recover from Jet Corporation their costs of the

appeal as well aa their costs of the motlon, notice of whlch

was glven on 27 July 1983. No agreement having been reached,

Messrs. Collier and	Hogg, pursuant to 0.62, sought a taxatlon
of their costs.

As was stated at the beginning of these reasons,

the review of the decision of the taxing officer has been

brought before the Court pursuant to 0.62 r.44(1) and the

requlrements of that sub-rule have been satisfled. A

ludgment of the Court as presently constituted with respect

to aspects of the reconsideration of the taxing offlcer's

decision was glven on 23 December 1985.

By its motion Jet Corporation 1s seeklng an order

that it5 oblections to 8 items of the bill of costs of

Messrs. Collier and Hogg be allowed. Each of those items

relates to costs with respect to each of the orders numbered

1 and 2 made on 4 October 1983 as well wlth respect to the

orders of the Full Court. Jet Corporatlon sought to

apportion those items between each of the orders made wlth

the result that the amounts allawed should be referable to

the order numbered 2 only and not amounts referable to the

order numbered 1. This contention was made on the basis that

order number 2 was a true alternative and became relevant

only if Messrs. Collier and Hogg falled in obtaming an order

staying or dismissing the application by Jet Corporation.

On the reconsideration by the taxing officer, these

8 items were referred to as the Category A items. In hi5

reasons for decision, the taxing officer said:-

"IN REGARD TO CATEGORY A ITEMS

8. Prior to these items bemg reconsidered the

respondent made a preliminary submisslon thus:

'That the order of the Court dated 6

July 1986 simply allows the

appellant parties the costs of the

motlon upon whlch they were

successful, that is, In relation to

the notice of motion dated and filed

27 July 1983, the costs of

"sub-motion'' (my words) numbered 2 ;

that the ambiguity of the order of

the Court is such that It is

appropriate for the taxing offlcer

to refer to the Court under 0.62,

sub-rule 39(2) the question of

what

are the relevant motions for the

purpose of taxation of costs.'

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9. Because this prellmlnary subrnlsslon had not

been put at the tune of the taxatlon of the

costs because and questlon the of

lnterpretatlon of the order of the Court could

conveniently be dealt with on any revlew of

the reconsideratlon sought under 0.62,

sub-rule 44(1), I decllned to refer the matter

as requested.

10.  The respondent then invlted me as part of my reconslderation take to the narrow Interpretation of the order of the Court as urged in the preliminary submission. I

rejected this invitation stating that on

reconsideration my interpretation of the order

was unchanged and that the costs ordered to be

paid by the respondent were the appellants

costs in respect of the Appeal proceeding and in respect of the motions or those parts of the motions heard and determined by The Honourable Mr Justlce Northrop in relatlon to

the Notlce of Motion filed and dated 27 July

1983 in the original proceeding.

11. It would seem Inappropriate for a taxing

officer to give reasons for his or her

interpretation of an order made by the Court

and I do not propose to do so.

12. I note that no objection to the quantum of the

costs allowed on these items was taken at the

original taxation of the bill of costs and

review of their quantum was not sought on

reconsideration. "

In that passage, Jet Corporation 1s called "the respondent".

Before the Court as presently constltuted, counsel for Jet Corporation contended that the taxing offlcer should

have referred the question of what were the relevant motlons

for the purpose of taxation of costs to the Full Court which

made the order. The order of the Full Court has been

entered. It must stand. There are many reasons why the

taxing officer had no power to refer the question of the

order to the Full Court, but reference is made to one of

those reasons only. In 0.62 r.39, the reference to the Court

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1s a reference to the Court exerclsing original ~urlsdiction.

The power IS a power in the nature of stating a question to a

Court; see for example s.45 of the Administratlve Appeals

Tribunal Act 1975, but the Full Court, in decldmg that

question, 1s exerclsing original ]urlsdict~on. The taxlng

offlcer 1s not empowered to refer a questlon under	0.62 r.39
to a Full Court exerclsmg appellate ]urisdlctlon.

The substantial contentlon relied upon by counsel for Jet Corporation was that the word "relevant" as used in

order numbered 1 of the Full Court orders should be construed

as referring to the relevant parts of the motions of each

group of appellants when being heard by the Court as

presently constltuted. This contention 1s relected. If the

order had merely been In the form "The appeals of the

appellant parties are allowed wlth costs" there 1 s no doubt

that the order would have entailed all the costs of the

appeal. In their Notice of Appeal dated 31 October 1983,

Messrs. Colller and Hogg appealed from the two orders made on

4 October 1983 but did not appeal from the order for costs

made on 11 October 1983 but the Notlce of Appeal stated that

one of the orders sought on the appeal was that Jet

Corporatlon pay their costs "of an Incldental to the hearing

before the learned trlal judge and of the Appeal". In this

context, the words "of and incidental to their relevant

motions" appearing in the order of the Full Court must be

construed as a reference to the costs of the appellants with

respect to their motions before the Court as presently

constituted and thelr costs of the appeal. The effect of the

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orders of the Full Court was that the proceedmgs by Jet

Corporation were stayed pending the glving of security. The

appellants had succeeded I n their appeal. In this context,

the word "relevant" should be construed as "respective" to

make clear the fact that each group of appellants was

entitled to its costs. "his arose from the fact that one

order only was made with respect to the three appeals and not

a separate order wlth respect to each appeal.

In the result, the motlon f o r renew of the taxing

officer must be refused wlth costs.