Wang v Farkas (No 3)

[2014] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wang v Farkas (No 3) [2014] NSWCA 111

Hearing dates:

On the papers

Decision date:

08 April 2014

Before:

Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]

Decision:

(1) Remove from the record orders (1)-(5) entered on 26 February 2014 by mistake.

(2) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.

(3) Set aside the judgment and orders of the District Court made on 20 May 2011 with respect to the costs of the appeal.

(4) Remit the matter to the District Court for final orders disposing of the appeal to that Court, in accordance with the judgments of this Court.

(5) Make no order as to the costs of the parties in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - judgment and orders - scope of power to make orders in supervisory jurisdiction - whether court can make only order properly available below -whether court can make order as to costs in court below - Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 and Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 considered

PROCEDURE - entry of judgment and orders - clerical mistake - proposed orders mistakenly entered - power to correct mistake or error in judgment or order - removal of orders from record - Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Legislation Cited:

Judiciary Act 1903 (Cth), s 32
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Craig v South Australia [1995] HCA 58; 184 CLR 163
Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150
Wang v Farkas (No 2) [2014] NSWCA 57

Category:

Procedural and other rulings

Parties:

James Wang (First Applicant)
Y Ping Gu (Second Applicant)
George Farkas (Respondent)

Representation:

Counsel:

Applicants (Self-represented)
Respondent (Self-represented)
Solicitors:

Applicants (Self-represented)
Respondent (Self-represented)

File Number(s):

CA 2013/22988

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-05-20 00:00:00

Before:

North DCJ

File Number(s):

DC 2006/16064; DC 2006/16035

Judgment

1. BATHURST CJ: I agree with Basten JA.

1. BEAZLEY P: I agree with the orders proposed by Basten JA in this matter and with his Honour's reasons, save that I refrain from making any comment as to whether this Court, in an appropriate matter, may make an order which reflects the inevitable consequence flowing from the reasons of the Court when acting in its supervisory jurisdiction rather than remitting the matter to the lower court.

1. BASTEN JA: The principal judgment in this matter was delivered on 26 February 2014. Certain orders were proposed, but the parties were given an opportunity to make submissions as to whether those orders were appropriate and should be made or whether other orders should be made. At [50] the Court stated:

"The question is then what form the relief should take. The amended summons sought an order setting aside the dismissal by the District Court of the appeal from the decision in the Local Court, by reference to the component of the costs order representing professional costs and disbursements. An order in those terms should be made. The result is that the appeal should be allowed in part and a different order substituted for that made by the magistrate with respect to costs. If it were possible for orders to be made in this Court, other than a remittal of the matter to the District Court, there would be much to be said for that course."

1. In keeping with the first proposition set out above, the Court proposed the following order:

"(1) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him."

1. That order is not the subject of the submissions. Accordingly, it should be made in the terms set out above.

1. The second matter identified in the passage at [50] was the question whether it was "possible" for orders, other than a remittal of the matter to the District Court, to be made by this Court. Each party made submissions following the delivery of the principal judgment, but neither party addressed the question of power to make further orders in proceedings brought in the supervisory jurisdiction of the Court. In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, the High Court, in dealing with the powers of this Court in the exercise of its supervisory jurisdiction with respect to the Industrial Court stated that while this Court had power to quash the orders made by the Industrial Court, including costs orders, it "did not have power to make any orders in place of the orders that had been quashed": at [110]. The High Court was then considering whether it could make orders with respect to the costs of the proceedings in the Industrial Court: it held that it could not, because this Court did not have that power: at [111].

1. In Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421, the High Court held that, in exercising its powers under s 32 of the Judiciary Act 1903 (Cth) to grant remedies apt to "completely and finally" determine the matters in controversy, the court could make an order as to the costs in the court below where "there is no reason why costs should not have followed the event": at [4]-[5] (French CJ, Gummow, Crennan, Kiefel and Bell JJ).

1. As Hayne J noted in Edwards, the approach adopted by the majority in that case did not sit easily with the approach adopted in Kirk. However, it is clear that the costs order made in Edwards was considered permissible only because no other order could have been contemplated.

1. The second order proposed in the principal judgment was as follows:

"(2) In place thereof direct that the District Court set aside the order made by the magistrate with respect to costs and substitute a judgment in favour of Mr Farkas in an amount of $22,315, such judgment to take effect from the date of the order for costs made in the Local Court."

1. Subject to one qualification, neither party took issue with that order. It does not follow, however, that an order can be made by consent if the Court would not have power to make such an order following a contested hearing: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 at 163. Rather, the fact that a particular order is the inevitable consequence, as a matter of law, flowing from the reasoning of the Court in setting aside a judgment below, may fall within the principle espoused in Edwards v Santos.

1. Such a conclusion would involve an extension of the principle in Edwards v Santos beyond its own terms, which were restricted to an order disposing of the costs in the court below. Accepting that such a costs order would be permissible, it is not generally open in the supervisory jurisdiction for the court to substitute the order which it thinks should have been made below: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175. In any event, there are two reasons for thinking the step should not be taken in this proceeding. The first is that both parties were self-represented and neither addressed submissions to the power of the Court. The second is that, for reasons given below, it will be necessary to remit the matter to the District Court in any event. Whether it would be appropriate for this Court, rather than making the order itself, to direct the court below to make the order was not addressed in submissions. Order (2) should not be made.

1. Before leaving this order, it is convenient to note the applicants' qualification with respect to order (2). The sum which appears in order (2) was based upon the removal from the costs found to be payable to Mr Farkas in the Local Court, those amounts which related to his time, leaving an amount for his expenses or disbursements. The applicants sought to have those expenses reduced by a further sum of $3,634 (being part of a fee payable to an expert) on the basis that it was not necessarily incurred. Had it been appropriate to make an order substituting a judgment limited to the respondent's disbursements, that deduction would not have been made. This was not a proceeding in which it was appropriate for the applicants to seek to challenge particular items of costs incurred in the Local Court. Nor should that course be allowed on remitter to the District Court.

1. Order (3) as proposed in the principal judgment was as follows:

"(3) Set aside the judgment and orders of the District Court made on 21 October 2011 with respect to the costs of the appeal."

1. This order was not opposed, except to the extent that the respondent noted that the correct date was 20 May 2011 (as indicated in order (1)), not 21 October 2011. Subject to that correction, order (3) should be made.

1. Order (4) sought to dispose of the costs of the parties in the District Court. Although the applicants accepted an order in those terms, subject to an additional proposal that the recoverable amounts be offset against each other, the respondent did not. He opposed the applicants obtaining any costs in the District Court. He presented a persuasive case in favour of the proposition that it was not possible for this Court, on the materials before it, to form a view as to the conduct of the parties in the District Court and the proper disposition of costs based on each party's successes and failures. It was a matter, he submitted, which required remittal to the District Court judge.

1. On no view of the law is it open to this Court, in the exercise of its supervisory jurisdiction, to make an order which it considers should have been made in the Court below if the correct order remains contestable. Accordingly, proposed order (4) should not be made.

1. The final order, (5), proposed that there should be no order as to the costs of the parties in this Court.

1. The respondent did not take issue with that order, but the applicants did. No substantial argument was raised to justify their proposal that they obtain the costs of the proceedings in this Court. As the Court noted in the principal judgment at [9], the primary focus of the written submissions prepared for each party was upon general law principles, with little attention to the statutory framework applicable to the proceedings in the Local Court. The applicants were ultimately successful on a basis which was largely undeveloped until the hearing in this Court. Further, the various discretionary factors, although not accepted as a basis for denying relief - dealt with at [46]-[49] in the principal judgment - also provide a basis for not permitting the applicants their costs in this Court. Accordingly, proposed order (5) should stand.

1. The applicants proposed two further orders. One related to the bank guarantee due to expire on 31 March 2014, but that has been the subject of an earlier judgment: Wang v Farkas (No 2) [2014] NSWCA 57.

1. Secondly, the applicants sought an order as to how party and party costs should be established, that is by the submission of invoices and receipts in support of actual expenses and disbursements. To the extent that no costs are recoverable in this Court, no issue arises in that regard. To the extent that it may be necessary for the parties to establish their disbursements in the District Court, that matter can either be dealt with by the District Court, or, if orders are made for costs as agreed or assessed, in accordance with the relevant process for assessment, in the absence of agreement. So far as the costs of the Local Court are concerned, those have already been identified by the magistrate and no process of assessment is relevant. It follows that no additional order should be made, of the kind proposed by the applicants.

Orders

1. Due to a clerical mistake occurring within the Court, all the proposed orders identified in the principal judgment of 26 February 2014 were entered on that day. It is clear from the Court's judgment that they were not intended to be entered and the further submissions of the parties demonstrate that neither party had anticipated that they would be entered. In the exercise of its power to correct such mistakes under Uniform Civil Procedure Rules 2005 (NSW), r 36.17 the Court, on its own motion, will correct the mistake by ordering that the orders (1)-(5) entered on 26 February 2014 be removed from the record. The Court will then make orders as indicated above.

1. The Court now makes the following orders, which can be entered forthwith:

(1) Remove from the record orders (1)-(5) entered on 26 February 2014 by mistake.

(2) Set aside the judgment and orders made in the District Court on 20 May 2011 in so far as they dismissed the appeal from the order made by the magistrate in the Local Court with respect to the costs of the proceedings before him.

(3) Set aside the judgment and orders of the District Court made on 20 May 2011 with respect to the costs of the appeal.

(4) Remit the matter to the District Court for final orders disposing of the appeal to that Court, in accordance with the judgments of this Court.

(5) Make no order as to the costs of the parties in this Court.

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Decision last updated: 08 April 2014