Simos v Yates

[2006] HCATrans 148

[2006] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 1998

B e t w e e n -

THEODORE SIMOS

Applicant

and

IAN FRANCIS YATES

Respondent

Office of the Registry
  Sydney  No S29 of 1999

B e t w e e n -

THEODORE SIMOS

Appellant

and

IAN FRANCIS YATES

Respondent

Summonses for direction

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 2006, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR D.R. PRITCHARD:   If the Court pleases, I appear for the applicant.  (instructed by Corrs Chambers Westgarth)

MR N.J. ROBISON:   If the Court pleases, I appear for the respondent.  (instructed by Bruce Stewart Dimarco)

HIS HONOUR:   Yes, Mr Pritchard.

MR PRITCHARD:   Your Honour, this is an application by my client to vary some orders previously made by the Court under the slip rule and also, in the alternative, to amend a certificate of taxation.  A third issue has arisen since the matter was most recently before the Court in relation to a position adopted by my learned friend’s client that leave is needed under a particular rule for leave to execute an order.  That is a matter in issue, but a form of amended summons has been put on to put that issue before the Court.

HIS HONOUR:   What is the form of summons and what date is the summons?

MR PRITCHARD:   I seek leave to file in Court, and, as I understand it, without objection, a further amended summons in proceedings S121 of 1998 and a form of amended summons in S29 of 1999.

HIS HONOUR:   Thank you.  What is your attitude to this, Mr Robison?

MR ROBISON:   We certainly have no objection to the amended summons being filed.

HIS HONOUR:   Yes, thank you.

MR ROBISON:   We do object to the prayers for relief referred to therein.  I believe your Honour may be aware that counsel briefed in this matter and also the solicitor on record for the respondent are unavailable.

HIS HONOUR:   Yes, I understand that.

MR ROBISON:   To that extent, in responding to my friend’s claims, my client would seek to rely on the written submissions which I believe a copy was sent to you yesterday.

HIS HONOUR:   Yes, perhaps we will come to that.  Yes, Mr Pritchard.

MR PRITCHARD:   Thank you, your Honour.  I move on those summons, your Honour.  I read an affidavit of Michelle Margaret Carr sworn 9 February 2006.

HIS HONOUR:   Yes.  Is there any objection to my receiving that affidavit or any part of it?

MR ROBISON:   There are objections, your Honour, yes.  If it assists the Court, yesterday afternoon a facsimile was sent to the solicitor for the applicant outlining the objections.  I have a copy of that document here.  It is just a matter of what is more suitable to your Honour as to ‑ ‑ ‑

HIS HONOUR:   What is more suitable to me is that the parties should sort these things out.  What is the position with the affidavit evidence, Mr Pritchard?

MR PRITCHARD:   I am not aware of any objections being notified about Ms Carr’s affidavit, your Honour.

HIS HONOUR:   Well, phones exist.  You are both at the Bar table.  Let us get on with it and sort it out.  What is the position with the evidence?  There are some objections?

MR ROBISON:   There are, your Honour, yes.

HIS HONOUR:   Yes.  You said they had been reduced to writing?

MR ROBISON:   They have been, your Honour.

HIS HONOUR:   Perhaps you would be good enough to give them to Mr Pritchard.

MR PRITCHARD:   Your Honour, these objections do not – I have seen these.  These do not relate to Ms Carr’s affidavit.

MR ROBISON:   I do apologise, your Honour, I thought you said Ms McCrossin.

HIS HONOUR:   There is no objection, is there, to Ms Carr’s affidavit?

MR ROBISON:   No, your Honour.

HIS HONOUR:   Yes.

MR PRITCHARD:   Your Honour, there is an exhibit to that affidavit, MMC1.

HIS HONOUR:   Yes?

MR PRITCHARD:   I tender that exhibit.

HIS HONOUR:   Yes.

MR PRITCHARD:   I read an affidavit of Mark Anthony Wilks sworn 9 February 2006.

HIS HONOUR:   Yes.

MR PRITCHARD:   That is the evidence‑in‑chief, your Honour, on the application.

HIS HONOUR:   What evidence is there in answer to it?

MR PRITCHARD:   I do apologise, your Honour.  I was under the impression that as these affidavits had already been read by his Honour Justice Heydon the objections had already been made on that basis.

HIS HONOUR:   Yes.  Then, what other evidence is there that is to be considered in connection with the applications?

MR PRITCHARD:   Your Honour, I read the affidavit of Nicholas Robison sworn 14 February 2006.

HIS HONOUR:   Yes.

MR ROBISON:   No objection, your Honour.

HIS HONOUR:   Yes.

MR PRITCHARD:   Your Honour, I also read the affidavit of Ian Francis Yates sworn 22 February 2006.

HIS HONOUR:   Yes.

MR PRITCHARD:   I also read the affidavit of Richard James Talbot sworn 21 February 2006.

HIS HONOUR:   Yes.

MR PRITCHARD:   No further evidence, your Honour.

HIS HONOUR:   Now, Mr Pritchard.

MR PRITCHARD:   Yes, your Honour.  There are two affidavits in reply being affidavits of Maria McCrossin, one sworn 8 March 2006 and one sworn 14 March 2006 which I need leave to file in Court, your Honour, at least handed up.

HIS HONOUR:   Yes, is there any objection to my receiving these?

MR ROBISON:   Your Honour, they would be the objections referred to in the facsimile.

HIS HONOUR:   What is the position, Mr Pritchard?

MR PRITCHARD:   Your Honour, the affidavit is pressed.  The objections in my submission are not of substance on the type of application your Honour is dealing with, being an interlocutory application.

HIS HONOUR:   Yes.  Then, Mr Robison, what is the objection to reception?

MR ROBISON:   On the basis of Mr Pritchard’s comments certainly my position would be not to press the inadmissibility of potentially any formal issues but there are references made in the facsimile to various paragraphs in Ms McCrossin’s affidavit as being speculative and otherwise having no basis and, in fact, at times attempting to articulate the nature of documents

which themselves speak of themselves.  So to that end, your Honour, yes, we will press the objections.

HIS HONOUR:   Mr Pritchard, are we going to end with any useful result if I embark on this evidentiary spat?

MR PRITCHARD:   No, your Honour.  My submission to your Honour is that your Honour should take the evidence in, treat it for what it is worth in relation to any ultimate decision your Honour may reach in relation to the matter.

HIS HONOUR:   I will defer ruling on any question of admissibility of the evidence until we see better what, in truth, are live issues in this matter.

MR PRITCHARD:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Pritchard.

MR PRITCHARD:   Your Honour, there is a formal matter.  I call on two subpoenas for the production of documents, one issued to Mr Talbot and one issued to my friend’s client, Mr Yates.  I think they are available for production.  I do produce those on both those parties’ behalf.

HIS HONOUR:   Hand them to the clerk, please.  Why are we being blizzarded with documents on subpoena, Mr Pritchard, on an application under the slip rule?

MR PRITCHARD:   Your Honour, an allegation was raised on the day before the hearing fixed before Justice Heydon in Sydney on the last occasion by way of two affidavits filed the day before the hearing; one by Mr Yates and one by Mr Talbot.  The thrust of the evidence is to the effect that in early April 2003 a legal officer of my client’s insurer, AMP, reached some agreement with Mr Talbot on behalf of Mr Yates to the effect that my client would, in effect, waive its entitlement to hundreds of thousands of dollars worth of legal costs owing ‑ ‑ ‑

HIS HONOUR:   To what issue on the summons before me do those questions go?

MR PRITCHARD:   As I understand how my friend puts the case it is on the basis there has been prejudice by reason of the delay in the application under the slip rule.

HIS HONOUR:   Yes.  There are, as I understand it, three aspects to this application.  Correct me if I am wrong.  The first aspect is that you seek to add to or vary the orders made on the leave application.  The second is that you seek to amend the certificate of taxation.  The third is this question of leave to execute after six years.  Is that right?

MR PRITCHARD:   Your Honour, there is a fourth issue which your Honour regrettably falls because of the two summonses.  One is also to amend the formal order of the Full Court ‑ ‑ ‑

HIS HONOUR:   On appeal.

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   Yes.  Let me understand this more closely.  Does any question of leave to execute arise without you first obtaining an order dealing specifically with the costs of the application for leave by varying the order made on the grant of leave?

MR PRITCHARD:   Yes, your Honour.  It does.  They are independent matters.

HIS HONOUR:   Why?  Where has six years elapsed, save if you date things back to the leave application?

MR PRITCHARD:   Because the certificate on its face incorrectly, by clerical error, in my submission, refers to, in accordance with form 29 which requires a statement of the orders pursuant to which the certificate is granted, on its face to the leave order, to the leave date, as well as the for hearing date.

HIS HONOUR:   Was any order for costs made on the grant of leave?

MR PRITCHARD:   No, other than what fell from her Honour Justice Gaudron to the effect ‑ ‑ ‑

HIS HONOUR:   Something was said but no order was made.

MR PRITCHARD:   No order was made, your Honour.  The words were:

As in the ordinary course, they –

meaning the costs –

will await the outcome of the appeal.

HIS HONOUR:   The only order for costs that has been made is the order for costs that was made on the disposition of the appeal, is that right?

MR PRITCHARD:   That is my client’s position, your Honour.

HIS HONOUR:   A possible analysis of the present applications is that they proceed from a fundamental misapprehension of the nature of an application for special leave in the sense that they proceed from an assumption that an application for special leave is itself a matter in the court, is itself to be treated as a separate matter, rather than as no more than an application for leave to commence proceedings in the appellate jurisdiction of the court; an application of a kind which if refused generates a costs order but which if granted generates no separate costs order.  Do all of the arguments that the parties seek to deploy for and against the various applications turn in the first instance on whether some order for costs could or should have been made at the time of grant of leave?

MR PRITCHARD:   Save for the sole remaining alternative issue in relation to the form of the certificate, your Honour.

HIS HONOUR:   I understand that that would then leave questions about correction of the form of certificate, but am I right in understanding that step 1 to all that follows, other than this question of correcting forms of certificate, is can or should an order for costs have been made at the time of the grant of leave?

MR PRITCHARD:   And picked up at the time the Full Court made an order.

HIS HONOUR:   In what sense picked up?

MR PRITCHARD:   In my submission, the Full Court should have made an order dealing with the unresolved issue of the costs or lack of costs order, as it were, in the leave application.

HIS HONOUR:   That would represent a marked departure from the settled practice of the Court for at least, I would have thought, 40 years, but there we are.  Where I am heading is, why should I not hear argument on this question about should there be a variation of the order made at the time of the grant of leave as a separate issue, resolve that, then confront any question of correction under the slip rule of the form of certificate and then see where we get to?

MR PRITCHARD:   On behalf of my client I would embrace that course.

HIS HONOUR:   Yes.  Now, Mr Robison, what do you say?

MR ROBISON:   Your Honour, that is fundamentally the position to the extent that if it be established that there is no requirement or there was a

requirement for a correction or a rectification of the Court’s record, then, yes, that would be the first issue to be dealt with, although beyond that it is my respectful submission, your Honour, that there are these delay and intervening circumstances which, irrespective of what at the time may have required the order to be different as to what it was, would render it now, some six years after the orders were made, prejudicial to my client.

HIS HONOUR:   Some at least of those arguments are arguments that are deployed in connection with the correction of the certificate.  Is that right?

MR ROBISON:   That is correct, your Honour.

HIS HONOUR:   For the moment it seems to me there would be advantage if I heard argument confined to this question of whether an order for costs should have been made at the time of the grant of leave or is to be regarded as having been omitted through slip or otherwise accidental omission and then let us see where we go.  Mr Pritchard, why would the Court on a grant of leave make any order for costs?

MR PRITCHARD:   The Court would make an order which order would be at least that costs follow the event in the Full Court.

HIS HONOUR:   Why?  Why are not the costs of the application for leave, when successful, inevitably picked up – although this looks to the Rules as they now stand rather than the Rules as they stood at the relevant time, why would those costs not inevitably be picked up under rule 55.01, namely, “costs, charges and expenses . . . necessary or proper for . . . maintaining or defending the rights of a party”?  On this basis you cannot come to this Court as of right.  You cannot invoke the appellate jurisdiction of this Court as of right.  You can invoke the appellate jurisdiction only by special leave. 

If special leave is granted, you then have permission to invoke the appellate jurisdiction of the Court.  At the end of that appeal an order is commonly made disposing of the costs.  The costs of the appeal, it would seem to me at least open to suggest, are all costs necessary or proper for maintaining or defending the rights of a party to the invoked appellate jurisdiction of the Court.  One of those costs is the costs of either asserting or resisting the grant of leave according to the way the appeal ultimately turns out.  Why do you say the Court’s settled practice for the many decades it now is of making no order for costs on a grant of leave is not encompassed in the fashion I have described?

MR PRITCHARD:   Your Honour, there are cases that provide costs orders being made at special leave applications.

HIS HONOUR:   Such, for example, as the costs of one party shall, in any event, be borne by an opposite party such, for example, as undertakings by one party not to disturb costs orders below or the like.  We are all familiar with such examples.  The fact that the Court may make a special order does not, at least at first blush, seem to deny the validity of the general proposition that if you are invoking the appellate jurisdiction you can do so only by leave and the costs of obtaining that leave are a necessary and proper cost of maintaining or defending the right which the party asserts in the appeal.  It is not that the costs disappear into the wide blue yonder.  The costs are properly included in the costs taxed, either the costs of making or resisting the application for leave according to the way in which the appeal falls out.

MR PRITCHARD:   Your Honour, my client embraces that interpretation of the Rules and would rely on the argument so as that the relevant costs order commences from the date of the Full Court order which includes the order for costs of the special leave application.  The only remaining issue then is the form of certificate.

HIS HONOUR:   We had better hear what your opponent has to say about that.  He may yet convince that these views are utterly and completely off the beam but ‑ ‑ ‑

MR ROBISON:   Your Honour, I can only attempt to reiterate what our written submissions are in the matter, although I would say this in summary form, that it is my client’s respectful submission that ultimately the special leave order is contingent upon the appeal order.  Therefore, it does not require a further order because it just operates of its own.

HIS HONOUR:   With the consequence, do you say, that on the appeal being disposed of the costs that are to be taxed include the costs of either making or resisting as the case requires the application for leave?

MR ROBISON:   No, your Honour.

HIS HONOUR:   Why not?  What is the flaw in the argument?

MR ROBISON:   Essentially because we would submit that the original order is of itself a final curial order.  It is given a separate matter number which stands alone.  It is an entity that stands of its own.  Your Honour would probably be aware that counsel has previously made submissions in relation to this referring to authorities to that effect, but they are our submissions, your Honour.

HIS HONOUR:   Yes.  I believe the parties’ attention may have been drawn already to two decisions of the Court:  United Mexican States v Cabal (2001) 209 CLR 165 at 179, particularly paragraph 30, and Collins v The Queen (1975) 133 CLR 120 at 122, which are decisions dealing with the nature of an application for special leave. Is there anything you would wish to add in particular treatment of those authorities, Mr Robison?

MR ROBISON:   Your Honour, having reviewed the authorities, as is dealt with in the submissions, we are not of the opinion that it is necessarily inconsistent with my client’s position, but to the extent that there is we would respectfully submit that the authorities are inconsistent with – the authorities more particularly with the law with respect to ‑ forgive me, your Honour – in Smith Kline & French Laboratories v The Commonwealth (1991) 173 CLR 194.

HIS HONOUR:   The decision about the validity of the special leave provisions?

MR ROBISON:   Yes.

HIS HONOUR:   Yes.  I do not want you to be under some misapprehension about this.  I want you to be faced squarely with where this is going so that you know what is being said against you.  The proposition that is put, largely by me – it is one of the joys of appearing in this place, is it not – is that the costs of a leave application do not disappear into the sky.  The costs of a leave application, if the leave application fails, will be dealt with by the Court:  the application refused with costs. 

By contrast, if leave is granted, the consequence of the grant of leave is that the steps of making or resisting the application for leave are necessary or proper steps for the maintenance or protection of the rights of the parties to the appeal that subsequently is instituted and that the costs of the leave application accordingly are part of those costs which are to be taxed by the taxing officer, under the current form of Rules, pursuant to 55.01.  Now, that is the proposition against you and now is the chance to show me where it is wrong.

MR ROBISON:   Your Honour, might I posit the example for your consideration of parties involved in a special leave application where an unfavourable cost order is made against one of the parties ‑ ‑ ‑

HIS HONOUR:   Sorry, where are you?

MR ROBISON:   Sorry, if the appeal is allowed, then prior to the appeal being heard the parties settle, surely the cost that will arise on the special leave application cannot be resisted on the basis that there is no proceedings on foot.

HIS HONOUR:   The application for leave is a necessary and proper step for the maintenance or enforcement of the rights of the parties which it is sought to vindicate by appealing to this Court.  That is the core concept and you cannot come to this Court as of right.  You come only by leave and therefore the costs of either seeking or resisting leave are a necessary or proper part of those costs.  That is the core idea.

MR ROBISON:   Your Honour, I see your Honour is not overly amenable to my client’s position but I will say ‑ ‑ ‑

HIS HONOUR:   I want you to have a chance to tell me why it is wrong; simple as that.  Now is the chance.

MR ROBISON:   Again, without wanting to repeat myself, your Honour, I could only reiterate that for the basis referred to.  It is a final curial order and ultimately, given the proceedings numbers – I have said what needs to be said, your Honour, but in the event that your Honour is not amenable to my client’s position I guess then ultimately our submission is that if there was a requirement for a correction then my client is prejudiced by the delay and the tardiness of my opponent’s client in enforcing it.

HIS HONOUR:   Let me look for a moment at the certificate of taxation that is in issue.  Do you have available to you a copy of that document?  It is the certificate dated 2 April 2002.

MR ROBISON:   I do, your Honour.

HIS HONOUR:   As I understand it – and I may later be corrected – it is said that there are two clerical errors or slips apparent on this certificate.  No 1 is the inclusion in the heading of No S121 of 1998.  No 2 is the reference in line 2 of the body of the certificate to 12 February 1999.  It is said that those two aspects of the certificate should be struck out under the slip rule.  What do you say about that aspect of the matter?

MR ROBISON:   Your Honour, I fail to see how it possibly could be a clerical error given that that is the form that the bill was presented to the taxing officer.  It accurately records the bill as presented.

HIS HONOUR:   Yes.  I think – and I may be open to correction on this – that the form of certificate of taxation is not uncommon in the Court, but whether or not that is so, what occurs to me is that there has been but one order made for costs and that was the order made on 11 April 2000.  No order for costs was made on 12 February 1999.  The order for costs made on 11 April 2000 was made in matter S29 of 1999 but, as I have said, rule 55.01 would encompass within that the preliminary of obtaining or resisting leave. 

Now, it occurred to me that questions of lapse of time and intervening events were matters that seemed to loom large on your side of the record and I was struck on finding amongst the many authorities on the slip rule Hatton v Harris [1892] AC 547 where Lord Macnaghten at 564 says this:

Then, said the Attorney-General, “forty years have passed since the decree in Hill v. Knipe; after such a lapse of time the decree must stand, whether it be right or wrong; it cannot be touched now.”

I interpolate, under the slip rule.  Life was much more leisurely then, I suspect, at 40‑year interval.  Lord Macnaghten goes on:

But, my Lords, lapse of time has nothing to do with the question.  The present Order, following the Slip Order of 1843, says that the correction of an error arising from an accidental omission may be made at any time.  For many years after 1853 the point was immaterial.  Then, shortly after the distribution of the funds in 1859 ‑

so events occur, money is distributed ‑

the solicitor of the party having the carriage of the order died.  Nobody supposed there was any more money to divide.  No one moved in the matter.  The funds remaining in Court, or some of them, were carried to a dormant account.  Everything was forgotten until quite recently, when it was discovered apparently by accident that there were in Court some remnants of funds which might be dealt with under the decree of 1853.

Bear in mind this is 1892.

For all practical purposes, as regards the present question, the matter is in the same position as if the application had been made thirty years ago. 

The House of Lords said the slip rule was properly engaged.  So 30, 40 years is not seen as a matter of significance in those rather more leisurely times.  Here we are under six.  If there is a slip, the hypothesis for consideration must be that it is a clerical error or slip.  If it is not a clerical error or slip, the slip rule is not engaged.  What then do you say about correction of the certificate?  Must not the argument move to no clerical error or slip?

MR ROBISON:   While, your Honour, I am unable to acquiesce to that course to the extent that – certainly, your Honour, I am not in the position to agree that there was only one order made.  Your Honour, the issue for my client’s part is not so much the amount of time that there was no enforcement; it is the intervening circumstances that have arisen during that time as a result of representations made which we will no doubt cover in due course.  But beyond that, your Honour, the prejudice is that it is now inequitable to render the correction made and we would still submit that there was more than one order made.

HIS HONOUR:   Can you articulate for me why it is inequitable now to correct it?

MR ROBISON:   Primarily because, your Honour, at the time of the proceedings occurring my client attempted to negotiate a settlement with my friend’s client on the basis of representation to my client that AMP, my friend’s instructing party, would not be seeking to enforce the costs orders and that the matter was otherwise at an end.  He then entered into various other relationships, namely, into a deed of settlement and a deed of mortgage with LawCover, one of the other parties involved in the earlier litigation, and on that basis he proceeded thinking the matter was behind him. 

Surely he is allowed the right to presume that at some point he can get on with his life, your Honour, and certainly that was the presumption arising from the representations made to him by Ms McCrossin and by AMP generally.  To that extent, he has also – not just in terms of being encumbered with further financial commitments, but also he has sought to reinstate his life, develop his business practices.  The reputation damage now that could be potentially afforded would be far greater than it was at the time because of the developments and improvements in his financial – well, not so much financial, but his business position over the intervening six years.

HIS HONOUR:   Do I sufficiently capture the headings, though not the detail, of the contentions you make by identifying (1) delay, (2) what you say were representations, (3) change in position?  Does that capture the headings?

MR ROBISON:   In a nutshell, that is it, your Honour.

HIS HONOUR:   Now, there is a lot more detail buried beneath the headings but those are the essentials.

MR ROBISON:   They are the core issues.

HIS HONOUR:   Yes.  Is there anything else you would say on this aspect of the matter?

MR ROBISON:   Probably not at this early stage, your Honour.  I presume it is a matter for evidence.

HIS HONOUR:   We will see what Mr Pritchard has to say because I should say frankly to you I do not at the moment understand why it will be necessary to embark on any fact‑finding expedition about who said what to whom and when.  I think that for the moment it is enough to know that your client contends there has been delay.  Your client contends – the other party disputes – that there have been relevant representations made.  Your client contends – the other party presumably disputes – that he has changed his position in consequence of the representations.  

It occurs to me, however, that those factual disputes would arise, perhaps, if it were necessary to consider any question of granting leave to execute, but if no question of granting leave to execute emerges, what is the circumstance that would require me to resolve those factual questions?  You say they are questions that bear upon the correction of what is asserted to be clerical error or slip.  Is that right?

MR ROBISON:   That is, your Honour, and it is certainly one of the factors which is to be considered when making a determination as to whether the Court record requires rectification is this discretionary issue as to the prejudice or whether it is inequitable now to proceed on that basis, and we would respectfully submit that that is the case.

HIS HONOUR:   Yes.  Mr Pritchard?

MR PRITCHARD:   Yes, your Honour.  The answer is simple.  The answer is this.  Your Honour’s determination on an application of the slip rule to these particular facts and making the consequential orders will not prevent my friend’s client in subsequent proceedings by my client seeking to enforce the order, either by way of sequestration order or garnishee, for example, of raising these very points.  It will be at the enforcement stage that he can raise these points.  He can, say, change the position on prejudice and matters such as that.  So my client is not endeavouring to take a point to exclude my friend from raising these matters.  My client desires to have the Court record rectified so the matter can be dealt with in the Federal Magistrates Court, perhaps, where these matters can be dealt with and a factual determination ‑ ‑ ‑

HIS HONOUR:   Do you wish to be heard against the proposition that I deal with the current application on the assumptions, without deciding, that Mr Yates would wish to contend there has been delay, Mr Yates would wish to contend that there have been relevant representations, Mr Yates

would wish to contend that he has changed his position in reliance on those representations in circumstances which would make it, to use the most neutral term I can, not right to permit execution of the judgment to proceed.  That is, do you wish to be heard against my making all of those assumptions in favour of Mr Yates for the determination of this question of the slip rule?

MR PRITCHARD:   I am content for your Honour to proceed on that basis, providing your Honour adds the assumption that the contentions are disputed.

HIS HONOUR:   I did not think that we saw a sudden outbreak of peace at the Bar table, Mr Pritchard, but there we are.

MR PRITCHARD:   Yes, your Honour.  I agree with your Honour’s course, that the slight words is – no, I do not wish to say anything further.  I agree with the course.

HIS HONOUR:   Yes.  Now, Mr Robison, you have heard where we have got to.  Do you wish to add anything?

MR ROBISON:   Just in response to my friend’s references to perhaps that the Court of Bankruptcy would be a more appropriate forum for dealing with these issues, your Honour.  They are before the court right now.  It is a discretionary issue available to you to consider.  These are circumstances that, it is my respectful submission, would effectively warrant no correction being made.  I fail to see how a bankruptcy proceeding could possibly offer a better alternative than what we have in front of us now.

HIS HONOUR:   On 11 April 2000 the Full Court made orders in the following terms:

1.        Appeal to this Court allowed with costs.

2.        Set aside paragraphs 3 and 5 of the orders of the Full Court of the Federal Court of Australia made on 5 August 1998 as varied by that court’s order of 30 November 1998 insofar as those orders relate to this appellant –

I interpolate Mr Simos –

3.        Remit the appeal from Justice Branson to the Full Court of the Federal Court for further hearing and determination.

4.        Costs of the earlier proceedings in the Federal Court to abide the outcome of the further hearing in that court.

The appeal in which those orders were made was an appeal instituted by notice of appeal filed on 5 March 1999 following the grant of special leave to appeal to the Court on 12 February 1999.  The appeal that was instituted in the Court was designated as proceeding S29 of 1999 and was an appeal from such part of the judgment of the Full Court of the Federal Court of Australia given on 5 August 1998 as allowed the appeal by the respondent in this Court, Mr Yates, in an appeal numbered NG717 of 1997 against the appellant, Mr Simos.

The application for special leave which was granted on 12 February 1999 had been instituted by application made on 1 September 1998.  On 12 February 1999 the Court, constituted by Justices Gaudron and Callinan, granted special leave to appeal.  At the end of that hearing of the application for special leave counsel for the then applicant, subsequently appellant, asked for costs of the application.  The presiding Justice, Justice Gaudron, said “No, as in the ordinary course they will await the outcome of the appeal.”

The appeal having been heard and determined and the order for costs having been made that I have earlier mentioned, the appellant brought in its bill of costs which ultimately was taxed and allowed in an amount of $86,181.96. 

On 2 April 2002 the taxing officer signed a certificate of taxation in which the heading of the certificate gave two proceeding numbers:  matter No S121 of 1998, which had been the proceeding number assigned to the application for special leave to appeal to the Court, and No S29 of 1999, which, as I have already noted, was the proceeding number assigned to the appeal.  The body of the certificate of taxation read:

IT IS HEREBY CERTIFIED that the Bill of Costs of the Appellant against the Respondent pursuant to Orders of the Court dated 12 February 1999 and 11 April 2000 at Sydney has been taxed and allowed at $86,181.96.

The certificate was, as I have indicated, dated 2 April 2002 and signed by the taxing officer.

For reasons and in circumstances which it is not necessary to explore, doubts and difficulties appear to have emerged between the parties about the form of the certificate of taxation and about what, if any consequence followed from the exchange that occurred at the conclusion of the application for special leave to appeal.  In consequence of those doubts and difficulties, the appellant has applied by summons for three substantive forms of order.  First, application is made:

To amend the Order made on 12 February 1999 by the High Court (per Callinan and Gaudron JJ) in proceedings no. S121 of 1998, with effect on and from 12 February 1999, by adding a new paragraph 3 and inserting into that paragraph the following words:

“3.Costs of the application await the outcome of the appeal.”

The second form of order that is sought, either in addition or in the alternative, is:

to amend the Certificate of Taxation dated 2 April 2002, expressed to be in proceedings no. S121 of 1998 and no. S29 of 1999, by deleting the following words:

(a)No. S121 of 1998 in the top right hand corner of that document;

(b)the “s” at the end of the word “Orders” on the second line of that document; and

(c)“12 February 1999 and” in the second line of that document.

The third form of order which is sought, again, as an additional or alternative form of order is:

for leave (to the extent that leave may be required as asserted by the Respondent and denied by the Applicant) to be granted to the Applicant pursuant to rule 10.1.3 of the High Court Rules 2004 (Cth) to issue execution in respect of any order for costs made on 12 February 1999 in these proceedings on such terms as appears just or, alternatively, the time fixed pursuant to rule 10.01.1 of the High Court Rules 2004 (Cth) be enlarged on such terms as appear just pursuant to rule 4.02 of the High Court Rules 2004 (Cth).

In support of and in opposition to those applications, the parties have filed a considerable body of affidavit evidence.  Notices have been given to attend for cross‑examination.  Documents have been obtained on subpoena and the evidentiary base which the parties would seek to lay for the determination of the applications is very large.

Reduced to its essentials, the application now made on behalf of the applicant can best be understood as an application hinged about what is perceived to be the need to vary the orders made on the grant of special leave to make an order either, in effect, reserving the costs of the application for special leave or making them costs in the cause.  For present purposes, it matters not which.  The application under the slip rule to correct the certificate of taxation stands altogether apart from that larger application.  The application for leave to issue execution depends upon the proposition that such leave is necessary because the relevant order for costs is or includes an order for costs made with effect from the time of the grant of the application for leave, namely 12 February 1999.

Underpinning these approaches to the applications which are now before me appear to be understandings of the nature of an application for special leave to appeal which are not well founded.  It is clear that an application for leave or special leave to appeal to the Court stands in an unusual position.  An application for special leave to appeal is an application for leave to commence a proceeding in the appellate jurisdiction of the Court.  The appellate jurisdiction of the Court on appeal from, in this case, the Full Court of the Federal Court of Australia, cannot be invoked without special leave. 

The application for special leave is then an application by “an applicant desiring to obtain the Court’s leave to commence proceedings in the Court”:  Collins v The Queen (1975) 133 CLR 120 at 122 per Chief Justice Barwick, Justices Stephen, Mason and Jacobs; see also United Mexican States v Cabal (2001) 209 CLR 165 at 179 paragraph 30 per Chief Justice Gleeson, Justices McHugh and Gummow.

If the application for special leave to appeal to this Court is made in a matter in which costs orders are commonly made and that application fails, the Court ordinarily makes orders for costs following the event of failure.  By contrast, if an application for special leave to appeal is granted, apart from such special orders as the Court may make, as, for example, to require the costs of the application and subsequent appeal to be borne in any event by a party, the invariable practice of the Court has been to make no order dealing with the costs of the application.  That practice has not been founded in oversight.  On the contrary, the practice of the Court not making an order dealing with the costs of a successful application for special leave reflects the nature of that application and its relationship to the subsequent invocation of appellate jurisdiction of the Court.

At the time of the proceedings which give rise to the present application the relevant Rules of Court were the High Court Rules 1952. It is, however, convenient to make the point which now must be made by reference to the High Court Rules 2004. Rule 55.01 of the current Rules provides:

On every taxation, the Taxing Officer shall allow all such costs, charges and expenses as appear to the Taxing Officer to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the Taxing Officer to have been incurred or increased:

(a)      through overcaution, negligence or mistake;

(b)by payment of special fees to counsel or special charges or expenses whether to witnesses or others; or

(c)by other unusual expenses.

For present purposes, what is to be emphasised is that on every taxation the taxing officer shall allow all such costs, charges and expenses as appear to have been necessary or proper for maintaining or defending the rights of a party.

Where there is the invocation of the appellate jurisdiction of the Court, one of the sets of costs necessary for maintaining the rights of a party is constituted by those costs of and incidental to the making or resistance of the application for special leave.  That the Court ordinarily makes no order dealing specifically with the costs of an application for special leave to appeal where that application is granted reflects, as I have said, the place which the application for special leave to appeal has in the maintenance or defence of the rights of the party to the subsequent proceeding in the Court in its appellate jurisdiction.

It follows that no question of slip or omission arises in connection with the absence of any order on 12 February 1999 dealing with the costs of the application for special leave to appeal.  The application having been granted, the costs of the application for special leave fall to be dealt with as an essential part of the costs of the appeal.  The costs of the appeal were disposed of by order of the Court made on 11 April 2000.

There then emerges a question about the accuracy of the certificate of taxation that has issued in this matter.  That certificate, as I have earlier noted, refers to the proceeding number assigned to the application for special leave and it refers to what is said to be an order of the Court dated 12 February 1999.  To the extent to which the certificate of taxation assumes that there was an order for costs made on 12 February 1999, it is evident that the certificate proceeds on a false assumption.

It may be that the better view of the certificate is that by recording the date of the grant of special leave and the order making that grant, the certificate is doing no more than recording the fact that the appellate jurisdiction of the Court was regularly invoked by reference to a grant of leave.  It may be that the certificate may be understood as therefore making appropriate reference to proceeding No S121 of 1998 in its heading.

Nonetheless, it seems from the course of events that has occurred between these parties that the reference in the heading and in the body of the certificate of taxation to the proceedings on the application for special leave has at the least generated uncertainty, not to say considerable controversy.

The respondent contends that rule 3.01 of the High Court Rules 2004, and in particular rule 3.01.2, is not appropriately engaged in the present matter. Rule 3.01.2 provides:

The Court or a Justice may, at any time, correct a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission.

For present purposes, it is convenient to assume that a certificate of taxation is to be treated as a form of judgment or order.  If it is not, it would be necessary I think then to have resort to the undoubted inherent powers of the Court to correct its own records in case of slip or accidental omission – as to which see L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 to 595 per Acting Chief Justice Mason and Justices Wilson and Deane.

It is unnecessary in these circumstances to consider further whether the certificate is a document of a kind that falls within the express provision of rule 3.01.2 or rather is a document of a kind which, if to be corrected, is to be corrected in accordance with the inherent powers of the Court to correct its own records.

The respondent contends that if correction be necessary, no correction should now be made.  As best I understood it, the respondent’s central contention appeared to be that in truth two orders for costs were necessary; no order was made at the end of the application for special leave, the only order for costs that was made was that made on the appeal; it is now too late to correct the certificate by deleting reference to the application for special leave or, if not too late, the correction that is to be made is not properly classified as “accident” or “slip” of a kind which would invoke the requisite power.

In addition, the respondent would wish to contend that no correction should now be made because application for correction is made only after the lapse of nearly four years from the time of issue of the certificate, and that in the period between the conclusion of the appeal and now, representations have been made to the respondent of a kind which have induced in him the belief that either no steps would be taken to enforce the judgment for costs or that otherwise would now prejudice him were there to be any departure from the representations that he asserts were made.

The applicant denies that the alleged representations were made and denies that if they were made they would have the effect for which the respondent contends and it was in this respect that the parties would have wished to have a considerable factual dispute requiring the calling of oral evidence.

It is, in my opinion, not necessary to embark upon these troubled questions of fact.  I am prepared to assume in the respondent’s favour, without deciding, that the respondent may in other proceedings be able to establish that representations were made to him of a kind from which it would now be unjust to permit the applicant to depart; that he has changed his position on faith of those representations such that now to permit enforcement may, in some respect, constitute an injustice or otherwise constitute some difficulty or bar to the applicant enforcing the order it has in its favour.  As I say, these are factual debates upon which I do not enter.  For present purposes, I do no more than assume in the respondent’s favour that such a case may be made out.  Whether it is will be for others to decide. 

Insofar as the respondent’s contentions depend upon the assertion that the certificate of taxation depends for its validity upon the making of an order at the conclusion of the application for special leave when that application was concluded by a grant of leave, that contention is flawed for the reasons I have given earlier.  No such order was necessary.

Moreover, for the reasons I have given earlier, the fact is that no separate order for costs was made on 12 February 1999.  No order was made reserving the question of costs for further consideration.  The only order the Court made on 12 February 1999 was to order that there be a grant of special leave to appeal.

In these circumstances the references in the certificate of taxation to the proceeding number assigned to the application for special leave and to the date of the order of the grant of special leave are references which, as events have turned out, are apt to mislead or provoke controversy.  Although the references made in the certificate are open to the beneficent construction I have earlier indicated, it is, in my opinion, open to consider them to be slips or inclusions of a kind that should not have been made.  The bare fact of lapse of time represents no reason for failing to correct the record of the Court:  see, for example, Hatton v Harris [1892] AC 547, particularly at 564 per Lord Macnaghten.

If, as the respondent would contend, he has arguments which he would say will likely prove successful concerning representations and change of position, those are not matters which, in my opinion, affect the decision whether to correct the record of the Court.  They may, they may not, be matters that would bear upon a question of granting leave to execute out of the period of time fixed by the Rules for execution without leave.  They may, they may not, be matters that would bear upon the disposition of particular forms of execution as, for example, proceedings in bankruptcy.  Those are matters upon which I express no view. 

They are, however, not matters which bear upon whether the records of the Court accurately record what has occurred in the Court.  In those circumstances, I am of the opinion that the reference to proceeding No S121 of 1998 and the reference to 12 February 1999 together with the conjunction “and” should be struck out of the certificate of taxation as an accidental slip.

There remains for consideration the third of the several forms of relief which the applicant sought by its summons which is, putting it shortly, leave to issue execution in respect of any order for costs made on 12 February 1999.  For the reasons given earlier, no such order was made.  The only order for costs that has been made in the Court is the order for costs that was made on 11 April 2000.

The time for execution now fixed by the Rules is fixed by rule 10.01.1 of the High Court Rules 2004 as six years from the date of the judgment or order. That time has not elapsed. I do not consider that on the material presently before me I should now embark on any question of granting leave to issue execution after the lapse of six years when the time has not yet expired. If any application is made after the lapse of six years, that application will have to be dealt with on the merits at that time, but there is, in my opinion, no occasion for me now to make some proleptic form of order granting leave into the future when the time concerned has not yet expired.

It follows that, subject to questions of costs and subject to whatever the parties may say about the form, though not the substance, of the orders that I propose, I would propose to make the following orders:

1.Amend the certificate of taxation dated 2 April 2002 in proceeding No 29 of 1999 between Theodore Simos, applicant, and Ian Francis Yates, respondent, in the following respects:

(a)delete from the heading “No. S121 of 1998”;

(b)delete from line 2 of the certificate “12 February 1999 and”.

2.Amended summons filed in Court on 15 March 2006 otherwise dismissed.

There would remain then for debate the disposition of the costs of the present application.  First, however, do the parties desire to be heard about the form of orders thus far proposed?

MR PRITCHARD:   Briefly, your Honour, your Honour to make an additional order dismissing the other summons formally in the other proceedings.

HIS HONOUR:   That is the summons filed in Court, is it ‑ ‑ ‑

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ on 15 March 2006 in S121 of 1998 dismissed, yes.

MR PRITCHARD:   Then, your Honour, in relation to the form of the substantive order No 1 your Honour is minded to make, would your Honour make the order nunc pro tunc so that the order would read “amend the certificate with effect from 2 April”.

HIS HONOUR:   Why?  It is a slip rule order.  Why does it not speak from the date of the certificate?  It does, does it not?

MR PRITCHARD:   Your Honour, my submission is it does.  I just wanted to avoid any doubt.  Nunc pro tunc orders are fairly routine.  There is no prejudice and we would like to avoid – I am sure the parties would jointly like to avoid any future debate about the issue.

HIS HONOUR:   So what do you say, amend with effect from?

MR PRITCHARD:   Yes, the date, your Honour.

HIS HONOUR:   2 April 2002?

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   The certificate of taxation dated 2 April 2002.  Yes.

MR PRITCHARD:   If the Court pleases, I have no further submissions in relation to the form of the orders, your Honour.

HIS HONOUR:   Yes.  Now, on the questions of form, Mr Robison, what do you have to say?

MR ROBISON:   I certainly concur with my friend in relation to the form proposed.  In terms of the final request made by friend, I suspect I am in your Honour’s hands in that regard.

HIS HONOUR:   It seems to me to follow in any event.  If it is a slip order ‑ ‑ ‑

MR ROBISON:   Yes, your Honour.  We would certainly resist it, but I suspect there is not much that can be done.

HIS HONOUR:   Yes.  Now, costs.  What do we do about costs?

MR PRITCHARD:   It is a matter, obviously, of your Honour’s judicial discretion.  My application is ‑ ‑ ‑

HIS HONOUR:   One of these days I am going to say to counsel, “Yes, I know I am a judge and, yes, it is a question of costs and it tells me absolutely nothing”.

MR PRITCHARD:   I have to start somewhere, your Honour.

HIS HONOUR:   Yes.  I will hark back to my days in the commercial list, if you are not careful, Mr Pritchard.

MR PRITCHARD:   I apologise, your Honour.

HIS HONOUR:   Yes.

MR PRITCHARD:   Your Honour, my client was the moving party and my client sought and obtained an order which was opposed with some vigour by my friend’s client in relation to at least the certificate.  My client was dealing with issues raised in other places at other times by my friend’s client and with the intention of avoiding further debate in other places about other matters.  Those are the debates in other places at other times that will now be much narrower.  Your Honour anticipates that they will be largely about other matters concerning representations.  They will no longer be in relation to the form.  My client pressed for the orders, seriously opposed.  Your Honour has seen the submissions and while there was a degree of misapprehension by both parties, the opposition was, as I say, vigorous; it was not formal.

The other two matters, your Honour, in the exercise of your Honour’s discretion, the Court record will show that the matter was previously before Justice Heydon for hearing in Sydney on 23 February 2006.  That hearing went part heard and was part heard and then vacated and stood over ultimately until today by reason of the service on the day prior of the affidavits of Messrs Talbot and Yates.  His Honour in those circumstances, in effect, over my objection, indicated that he would allow the evidence to be relied upon, notwithstanding it was late, and adjourned the matter or vacated the hearing date and fixed it for today, reserving costs of that day.  So, your Honour, we had at least one wasted day because of that late service.

The second fact in relation to events of that day before Justice Heydon, your Honour, I made the same submissions on that day, as the transcript will show, that I made to your Honour in relation to the ultimate irrelevance of the factual matters sought to be raised by my friend’s client.  I submitted that those matters sought to be raised, albeit only the day before to our being served with them, were matters which should be heard and determined in another place but, nevertheless, because the evidence went on and there was a prospect of it being admitted on my friend’s application, my client had to go to considerable preparation in relation to that aspect of the matter.  Your Honour has seen the subpoenas that were issued with the leave of his Honour Justice Heydon.

So, your Honour, in an overall attempt to do justice between the parties, having regard to the tos and fros, my application would be that my friend’s client pay my client’s costs of the application.

MR ROBISON:   Your Honour, it certainly, first of all, has to be noted that the reason we are here generally, not just today, but these proceedings have been reagitated, is a result of an error on behalf of the applicant’s legal advisers or is certainly on behalf of the applicant to a certain extent.  From that basis alone, your Honour, we would submit, that each party should at least pay their own costs but we would certainly submit that the applicant pay the respondent’s costs. 

In relation to my friend’s references to the affidavits of Messrs Talbot and Yates being served late, your Honour, there was no timetable in place for the filing and serving of evidence.  My friend has had since at least the early part of 2003 to reagitate these proceedings.  When they were first brought back before the Court before his Honour Justice Gummow on 14 February he could only deal with part of the issue on that day and they were set down only some nine days later for final hearing.

Given that my opponent has been given, effectively, three years at least to prepare his evidence, we sought to do as much as we could in that limited time.  We served the evidence in reply to my friend’s application, admittedly, in the morning of the day before the hearing but, in those circumstances, your Honour, there is certainly no prejudice to either party.  The fact that we are here today was yes, admittedly, as a result of an adjournment sought by my friend, but we were absolutely ready to proceed on 23 February and as such we would resist any costs order being made against my client.

HIS HONOUR:   Yes.  Do you want to be heard in reply, Mr Pritchard?

Each party contends that it has, to a greater or lesser extent, succeeded in achieving its ultimate aims in these applications.  Each party assigns blame to the other for the course that these proceedings have taken now over three separate hearing days before single Justices of this Court.  Each party points to what is asserted to be delay and to the fact of opposition.  Each party points to the other as seeking an indulgence from the Court.  At the end of the day, the applications are ones which have succeeded to a very limited extent.  To a large extent, the applications, as I indicated in my reasons for judgment, appeared to me to proceed upon fundamental misunderstandings about the relationship between applications for special leave to appeal and appeals.  Be this as it may, in this tangled web of charge, counter charge, complaint and counter complaint, I make no order as to costs.  They will lie where they fall.  

I should add to the orders I had earlier indicated an order disposing of the documents that were produced on subpoena, they are to be returned to the persons producing them.  The orders of the Court are as follows:

1.        Amend with effect from 2 April 2002 the certificate of taxation dated 2 April 2002 in proceeding No S29 of 1999 between Theodore Simos, applicant, and Ian Francis Yates, respondent, in the following respects:

(a)      Delete from the heading “No. S121 of 1998”;

(b)      Delete from line 2 of the certificate “12 February 1999 and”.

2.        The amended summons filed in court in matter No S29 of 1999 is otherwise dismissed.

3.        The summons filed in Court on 15 March 2006 in matter No S121 of 1998 is dismissed.

4.        The documents produced on subpoena are to be returned to the person producing them.

MR PRITCHARD:   Your Honour, one final matter, and forgive my ignorance, to the extent it may be necessary might we have an order that the orders may be entered forthwith?  Is that a necessary order in this Court, I am sorry?

HIS HONOUR:   I do not believe it is.  I think that if your solicitors attend upon the Registry with the engrossed form of order it would surprise me were there to be any delay.

MR PRITCHARD:   I am grateful, your Honour.  If the Court pleases.

HIS HONOUR:   Adjourn the Court.

AT 11.47 AM THE MATTERS WERE CONCLUDED