Webster v Lampard

[1994] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 1992

B e t w e e n-

WEBSTER

Applicant

and

LAMPARD

Respondent

Application for a stay

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 1 SEPTEMBER 1994, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   Now, Mr O’Hara?

MR G.J. O’HARA:   If it please, your Honour, I appear for the applicant in this matter.

HIS HONOUR:   Yes, Mr Duckham?

MR B.W. DUCKHAM:   For the respondent to the application, sir.

HIS HONOUR:   Thank you Mr Duckham.  Yes, Mr O’Hara.

MR O’HARA:   Thank you, your Honour.  Your Honour, you will see that this is an application by – I will call him Mr Lampard for an order execution in relation to the costs order made by this court on 14 October last year be stayed pending the outcome of these proceedings in the Supreme Court. Your Honour, it seems as though there are no detailed provisions in relation to the High Court rules dealing with applications of this sort.  However, I suppose the basis for the authority falls under order 63 rule 1.

HIS HONOUR:   You can proceed on the assumption that I have power, Mr O’Hara, unless some question is raised by Mr Duckham on that matter.

MR O’HARA:   Thank you, your Honour.  Your Honour I suppose essentially we would support the application upon the basis that upon the same sorts of material which have been placed on the affidavit in support of this application and upon the same sorts of considerations the Supreme Court has already exercised its discretion to order that there be a stay in relation to execution of the costs of this leading ‑ ‑ ‑

HIS HONOUR:   That is, what, the two costs orders – the one on the application for summary judgment and the other, the costs of the appeal to the Full Court.

MR O’HARA:   That is correct, yes.  Now, we certainly do not in any way suggest that – well, we simply put it on the basis that we submit that it would be appropriate for this court to have regard to the manner in which the Supreme Court has thus far dealt with the matter.  Obviously, this court is entitled to view the matter entirely afresh but we would suggest, your Honour, that the way in which the Supreme Court has dealt with the matter to date should be a compelling consideration unless it is apparent that there has been some outstanding error of principle of fact or something of that nature.

HIS HONOUR:   Tell me this, Mr O’Hara, the two costs orders that have been stayed – those that have just been mentioned – are there any costs orders in relation to the interlocutory proceedings that have been made in your favour?  I notice ‑ ‑ ‑

MR O’HARA:   Yes, there are.

HIS HONOUR:     ‑ ‑ ‑ there is, (1) was costs in the cause.

MR O’HARA:   Yes.  Since the matter was before the High Court in October of last year there have been two applications by Mr Lampard to strike out portions of the statement of claim.  If my memory serves me correctly, I am quite sure that both of those costs orders were made in favour of Mr Lampard, he having been successful in those applications.  Thought, of course, the quantum pales into insignificance.

HIS HONOUR:   Certainly.  It is just to get a picture although I must say I did have a recollection that one of the orders was a costs in the cause order rather than one that was in absolute terms.

MR O’HARA:   You may be right, your Honour.  In any event, they are orders which of course do not permit recovery of those costs forthwith, they simply have to stand until the event ‑ ‑ ‑

HIS HONOUR:   Why is that?

MR O’HARA:   Well, my understanding of the Supreme Court rules, your Honour, is that there is no entitlement to tax costs forthwith unless that specific order is made.  There is obviously a whole series of interlocutory orders made before a matter eventually reaches trial and I suppose it is considered inappropriate that the parties should be taxing their costs in relation to the ‑ ‑ ‑

HIS HONOUR:   Well, yes, I understand that.  I must say I cannot recall the details ‑ ‑ ‑

MR O’HARA:   No, but ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑of the relevant Supreme Court rules but, in any event, if there are costs orders in favour of your client they are either not enforceable at this stage or have not been enforced.

MR O’HARA:   That is correct, yes.

HIS HONOUR:   They are not intended to be enforced presumably.

MR O’HARA:   No.  Certainly not, no.

HIS HONOUR:   Yes.  Tell me – I will not interrupt your argument – just so I can understand the picture, what is the position of the suitors fund?

MR O’HARA:   The position of the suitors fund as I understand it, sir, is that – well, the application was made and the application was made promptly.  My understanding is that there has been no response in relation to that application, it has been dealt with.  However, I think the significant point is that under the relevant legislation – my learned friend will correct me if I have not got this correct – my understanding is, your Honour, that there is a ceiling as to the amount of costs which can be recovered in relation to any one application and that at present that I think is $2000.  So that is the maximum which Mr Lampard can hope to recover from that.  So I mean – as he has deposed to in is affidavit – whether that sum or some lesser sum is received it will be immediately forwarded to ‑ ‑ ‑

HIS HONOUR:   Is it a matter within the discretion of the relevant body, I mean, once the certificate is issued?

MR O’HARA:   It is a matter of discretion, yes.  As I understand it they are not obliged as a matter of law and, in fact, as I understand it – although I do not think there had be any dispute in this case, they sometimes take the view that although the court issues a certificate saying that a question of law is involved, they sometimes take a different view than that.

HIS HONOUR:   I see.  I must say I am a bit surprised that the ceiling is as low as $2000.

MR O’HARA:   Yes.  That is my understanding, your Honour.

HIS HONOUR:   Yes.  All right, thank you.

MR O’HARA:   But, in any event, whatever sum is received will be paid to the Websters.  Your Honour, in the absence of any specific provisions in this court's rules dealing with a stay of execution, we would suggest that it is appropriate to have regard to the specific provisions of the Supreme Court rules and in particular order 47 rule 13 subparagraph (c) which specifically provides that the court can stay execution if the judgment or order is for the payment of money and the applicant is unable, from any cause, to pay the money.

I suppose the first thing to note in that regard, your Honour, is that that particular basis for staying execution was invoked and was invoked successfully by the Websters.  When they applied for a stay of execution in relation to Mr Lampard’s costs when before the matter came to this court and that, your Honour is clear in annexure 3 to Mr Lampard’s affidavit, and that is a submission which was filed on behalf of the Websters when they successfully applied for a stay of execution.  You will see at the top of page 3 they refer to the provisions of the rules that I have just read and they go on to say in numbered paragraph 3:

There is evidence before the court that the plaintiffs required to pay the judgment are impecunious.

And then you will see numbered paragraph 4(c):

It is submitted that there is evidence that the plaintiffs impecuniosity is sufficient to satisfy this subparagraph –

thought it is a ground which has been recognised by the other side, advanced by them and advanced successfully.  And the affidavit of Mr Lampard discloses that that was one of the considerations which led Master Ng to make the order for stay and execution.  On 7 February this year there was a further factor which weighed in his mind, your Honour, though of course in our submission that alone would have been sufficient but there was a further matter and that was in view of the evidence of the impecuniosity of the Websters.

It was considered unfair to require – even if funds were at his disposal – unfair to require Mr Lampard to pay a significant sum when it appeared that, if he was successful at the end of the day and became entitled to an order for costs, he could very well be unable to recover those costs from the Websters, and that was the other consideration which was taken into account by Master Ng.

HIS HONOUR:   Have you seen the affidavits that reached the court late yesterday?

MR O’HARA:   By – of the ‑ ‑ ‑

HIS HONOUR:   An affidavit of Roselyn Webster sworn 30 August and an affidavit of Anthony Reginald Webster also sworn 30 August.

MR O’HARA:   Yes, I have, thank you your Honour.  I suppose our overall comment in relation to them is they are significant in that they do not materially controvert anything that appears in the affidavit of Mr Lampard.

HIS HONOUR:   Well, except the suggestion that perhaps responsibility for costs has been accepted by some other body.

MR O’HARA:   Yes, if that is their suggestion, I would not accept that, your Honour.  I would say that if the position was – and there is no clear evidence of it – but if the position was that Mr Lampard was being assisted legally in relation to this matter, there is a fundamental distinction of course we would say, your Honour, between someone such as a union agreeing to pay a member’s legal costs on the one hand as opposed to paying the liabilities which incurs to the other side, and there is a substantial difference between those two matters.

And, your Honour, dealing with that point of who is paying for what, there is a matter which we see as being significant.  And that is, your Honour, that it appears as though – in fact more than simply appears – it seems to be the case that the Websters fees in relation to this matter have not been borne by themselves but have in fact been borne by the Legal Aid Commission of Western Australia.  And in that regard, your Honour, if I could just refer you to annexure 2 to Mr Lampard’s affidavit, and in particular at paragraph 6 where it said quite clearly that:

We have obtained legal aid in regard to the prosecution of the appeal.

And we say that is a significant matter.  There has been no denial of that.  That is the letter annexed to the affidavit of Mr Lampard and there is no denial of that from the Websters.  Obviously, an application of this sort involves a balance then of considerations and when the evidence is that if these costs are to be paid they are not to find their way to the Websters but are to go to a statutory body, then we say that is a relevant consideration.  We are not for one moment suggesting that if, at the end of the day, Mr Lampard was unsuccessful that that would be a ground for staying costs for ever and a day but we do say that it is significant in the context of this application which is simply for an order that execution be stayed pending the outcome of the proceedings in the Supreme Court.

[9.45am]

HIS HONOUR:   How close are the Supreme Court proceedings to reaching trial?  There seems to have been an unusual amount of interlocutory activity in this matter since it was before the High Court.

MR O’HARA:   Well, there have been two applications to strike out the statement of claim.  I think it is fair to say, your Honour, that the state of the statement of claim certainly attracted those applications.  And if in that regard, if I could simply ‑ ‑ ‑

HIS HONOUR:   Well, my question was really directed, Mr O’Hara, at learning, if I can learn, as to how close the matter is to being heard?

MR O’HARA:   I think it is a fair way off.  I think it is a fair way off.  There have been particulars – if I can just say briefly, your Honour, the state of the pleadings, that is the state of the statement of claim in fact received attention from yourself and from the other Justices in your reasons for decision given in October last year.  For example, you said, your Honour, the cause of action pleaded against the respondent and the nature of the relief claimed invite a number of questions but they are not the subject of this appeal and the Chief Justice and Deane and Dawson JJ said in his statement of defence Sergeant Lampard did not object to the amended statement of claim on the ground that it failed adequately to identify the cause or causes of action against him.

Those matters have been taken up by Mr Lampard and thus the applications which have been made to the Master since the matter was in this court.  If I can simply make one comment, your Honour, in relation to the merits of the claim.  The basis of the claim against Mr Lampard has been explained in the recent applications before the Master as to the adequacy of the statement of claim, as being based upon the tort of misfeasance and public office.  In relation to the last application before the Master to strike out portions of that statement of claim, your Honour, the Master accepted that on the current state of the law in order to successfully establish that tort, it was necessary for the plaintiff to plead either malice on the part of the police officer or that, if not malice, he knowingly did something which he knew to be wrong.

I am not quite sure what the difference between those two is.  It is obviously a fairly slim line.  At that stage, your Honour, the plaintiff had not pleaded malice, they had pleaded that there had been knowingly wrongful conduct on the part of Mr Lampard and in the alternative they pleaded that he had acted recklessly.  An application was made to strike out those allegations which rested upon recklessness.  And the Master found that on the state of the present law there was really no question that recklessness was not sufficient to ground the action and that knowledge or malice had to be established.

However, he said that he would not strike out those allegations based upon recklessness because it was possible that given the development of the law that it could emerge – a court could find – that recklessness would be sufficient.  What is significant, your Honour, is that the statement of claim, which was the amended statement of claim following from that recent chambers application – and portions of it were struck out I might add – raises in extensive detail and for the first time allegations of malice.

Now, it is significant, your Honour, that these events took place in, I think it is December 1988, malice is now put upon the court record for the first time, so it is almost 5½ years later.  I mean, the limitation period is almost up and in that regard, your Honour, it is significant, we would say, to have regard to a concession made by the Websters counsel when this matter was before the Full Court before coming to this court.  And if I could just refer you, sir, to annexure 14 to Mr Lampard’s affidavit, and in particular the third paragraph.

HIS HONOUR:   Yes.

MR O’HARA:   So what we would suggest is there are some very good reasons for doubting the – some valid reasons for doubting the strength of the plaintiff’s claim and it would be open, we would say, to suggest that what the Websters are doing is simply putting up by way of pleading whatever it is that is necessary to meet the objections which have been raised by Mr Lampard.

HIS HONOUR:   Well, the matter seems to have become further complicated by the joinder of another defendant.

MR O’HARA:   Yes, indeed, yes.  Yes, indeed.

HIS HONOUR:   Yes, thank you, Mr O’Hara.

MR O’HARA:   Your Honour, I think that really probably covers the basis for the application, thank you.

HIS HONOUR:   Yes, very well.  Thank you.  Mr Duckham, what do you wish to say about this application?

MR DUCKHAM:   Well, sir, first, I have some submissions here – if I might hand up a copy to yourself and your associate – which may be of assistance to the court.  Sir, just where my friend stopped – if I might refer at first to where my friend stopped – he quite rightly points out that malice has been specifically excluded from the ‑ ‑ ‑

HIS HONOUR:   Just before we get to that question, you seem to be questioning the power of the court to grant a stay other than in the exercise of its inherent jurisdiction but have you looked at order 63?

MR DUCKHAM:   Well, I had a look at order 63, your Honour.  I have looked at it closely since then and I was of the view that my first submission was wrong after I looked at that but I did look at it first on both occasions and I read that to mean – well, put it this way, I am quite prepared to accept that I am wrong in my first submission. I can make an explanation of why I did but I certainly have read order 63 rule 1 and the commentary on it and I am quite prepared to withdraw that submission, sir, to save the court’s time.

HIS HONOUR:   All right.  Well, I am not sure what a withdrawal of an objection to jurisdiction does if there is any doubt about jurisdiction but I am content to proceed on the basis that the court does have jurisdiction.

MR DUCKHAM:   Well, to save the court’s time at the very least and I apologise for offending the court if I seem to be misleading the court.  In short, I will not take that point any further, sir.  The point of malice is this is that in the legislation which was considered by the High Court and the Supreme Court there was a provision as I recall, that, having it right before me, that it was a protection for Sergeant Lampard to plead malice or – no, plead lack of malice.  Now, the point had not arisen, that is the malice point was not before the court until now.  Now, to ‑ ‑ ‑

HIS HONOUR:   Well, when you say “until now” you mean until the matter came before the High Court?

MR DUCKHAM:   Indeed.

HIS HONOUR:   Yes.

MR DUCKHAM:   Well, until we were forced to make our own plea upon the basis of misfeasance of public office.  My point is this, sir:  (a) we have never said there was no malice, we have just said it was not before the court; and (b) there is now by affidavit a verification of the current plea before the court which in my submission amply satisfies the malice requirement.  Now, sir, if you look at the submissions, there is attached to it a copy of Clayton & Thomas and civil actions against the police.  And I have sought to underline on one of the pages, sir, you will see under the heading:  Improper Motives – my copy does not produce a page number but I think it is 371.  I have sought to have it underlined and I trust your copy is underlined also?

HIS HONOUR:   Yes, it is, thank you.

MR DUCKHAM:   Sir, the point about malice made there, sir, is that, as in malicious prosecution, malice does not simply mean an ill-will or spite but:

Any evidence of any other corrupt improper motive.  Any wrongful motive will therefore be sufficient malice for these purposes.

Now, I would submit, sir, that any one of (a) to (m) which we have pleaded and verified by affidavit – admittedly, there is none by reply.  I will come to that in a minute – there is no affidavit in reply – and would amply satisfy at the very least a prima facie case of malice.

HIS HONOUR:   Well, what is the relevance of all of this.

MR DUCKHAM:   The relevance ‑ ‑ ‑

HIS HONOUR:   Mr O’Hara seemed to be putting it forward as casting some doubt upon the viability of the plaintiff'’ claim insofar as it turns upon malice.

MR DUCKHAM:   Well, the relevance of this  ‑ ‑ ‑

HIS HONOUR:   But you come back and say, well, there is evidence, and that is not a matter that I need to get too closely involved in.

MR DUCKHAM:   No.  I know.  I apprehend that well and truly, sir, but if you look at paragraph – and I think I can confine myself to page 11 of Sergeant Lampard’s affidavit.

HIS HONOUR:   Can you identify this in terms of exhibits?

MR DUCKHAM:   No.  It is the jurat page, sir.

HIS HONOUR:   I see, yes.

MR DUCKHAM:   (iii) is one of the factors.  The uncertainty of they succeeding.  Well, I would submit this affidavit which is filed verifying this current statement of claim removes that uncertainty well and truly.

HIS HONOUR:   Well, that might be putting it a bit strongly.

MR DUCKHAM:   Not, succeed but – well, sir, it certainly weakens that statement, in my submission.  Sir, I just want to open that point there, sir.

HIS HONOUR:   But could we come just really to the heart of it?

MR DUCKHAM:   Yes, sir.

HIS HONOUR:   You have got a situation which, on the face of it, neither side, that is Mr and Mrs Webster on the one hand and Sergeant Lampard on the other, really have the means to meet costs orders.

MR DUCKHAM:   Well, on the contrary, sir, my submission is that Sergeant Lampard does have the means as demonstrated in his affidavit.  He has an equity in his house.  The very thing that he says that he has got.  Sir, if you look at page 9 of his affidavit, he seems to indicate that he does have an equity in his house.  He has got a $63,000 home and a mortgage on it of $21,000.

HIS HONOUR:   Well, what are you suggesting, that he should raise a further mortgage over his house?

MR DUCKHAM:   Indeed, I am.  That is my first point, sir, but what I am suggesting is that this defendant comes to this court and requests an exercise of the court’s jurisdiction without full and true disclosure.  Now, my friend launched off into order 47 of the Supreme Court rules and I was biting my tongue but if it is going to be relevant, sir, I say this, it is trite law that that requires a full and true disclosure.  Now, no-one has told us – despite on three occasions before the court Sergeant Lampard will not tell us who is funding his action.

Now, my submission is if a third party is funding it, a third party is liable to pay these costs and I recall there was a Federal Court decision recently where a third party was made liable to pay, and I have been trying to find the decision and I can not find it but you may be aware of it.  Sir, my point is that we have here a defendant whose – by his own evidence before the court:  (a) can afford it; and (b) will not tell us – he has not spent one cent on this case.  I can assure you my client has.

HIS HONOUR:   Well, there are two questions involved here I suppose.  One, is whether the respondent is receiving any financial assistance in regard to his own costs; it is another and quite different question whether an order for costs made against him in favour of the appellants is likely to be met by a third party.

MR DUCKHAM:   Indeed, yes, sir.  Well, in that case, sir ‑ ‑ ‑

HIS HONOUR:   But can I just shift the inquiry for the moment to your side so I understand the picture.  There is clear reference to the Legal Aid Commission being involved in the provision of legal aid.  Now, were the High Court costs met by the Legal Aid Commission initially?

MR DUCKHAM:   The answer is, sir, part.  My counsel is not out of pocket, I can say that, sir.  I am but that is not of relevance to the court.  My counsel is not out of pocket nor was the cost of preparing – did not pay the costs of the books et cetera, et cetera, et cetera but the answer is part, sir.

HIS HONOUR:   Do you mean because that is the entire provision that Legal Aid is making?

MR DUCKHAM:   That is correct.

HIS HONOUR:   Or is the matter still to be resolved?

MR DUCKHAM:   No.  The entire provision of Legal Aid was utilised in part payment of getting us to where we are now – or getting us to the High Court stage of tax and costs, certainly not all.

HIS HONOUR:   But you have got stay orders against you by the Supreme Court in respect of two costs orders that the application for summary judgment on the appeal to the Full Court?

MR DUCKHAM:   Indeed.  And in both of those there was not full and true disclosure as required under order 47 in my submission, sir.

HIS HONOUR:   Well, you have moved to set aside those orders.

MR DUCKHAM:   I have and it was dismissed.  Because – and the reason, as deposed in my affidavit, the court said you should have brought this to the attention of the court day 1.  But I say now on this occasion it is up to this applicant to show who is funding.  Why should he get any benefit from the court if he will not tell us where he is funded.  And my submission is this, sir.  It would be appropriate – you may see fit to adjourn this matter to get a full and true disclosure from this respondent as to funding.  He will not tell us.

HIS HONOUR:   You are using “funding” a bit ambiguously, Mr Duckham.  Do you mean the responsibility for any costs or whatever that has been made in favour of your client or are you speaking about the costs which the respondent has himself incurred?

MR DUCKHAM:   No, I mean this, sir, in the first sense.  If he comes to this court and says:  I can not afford to pay you but he knows at the back of his mind someone else will pay me, if a court order is made, that is reprehensible in my submission but he will not tell us this and I can have all the suspicions I like in the world, verified, I might add, by the exhibit ARW1 to the affidavit which exhibits a cheque from a third party paying photocopy.  And this is after the appeal – after everything is over, so presumably the funding is still going, but I can only guess so far from the bar table.  My submission is it would be appropriate to adjourn to get an affidavit – a full affidavit in reply – will or will not this third party fund this cost order if it is made.  And it may well – if they say no I would be in your hands then but at this stage it is simply not good enough for this respondent to come here and say this when on previous occasions – on two previous occasions he has not disclosed this.

HIS HONOUR:   Yes.

MR DUCKHAM:   Despite the fact that he has a direct communication with the Legal Aid Commission which may be a matter which – so therefore, sir, if I can deal with the matters in summary on page 11 of Sergeant Lampard’s affidavit, sir, which is the jurat page.  Sir, paragraph 1.  His inability to pay is not a matter that I am yet aware is relevant because of the fact that we do not know who is paying and there is no evidence who has paid for him up to date except this exhibited cheque.  (ii), “The detriment to my family if I were required to pay.”  Well, I do not argue with that but I wish he would have thought about the detriment that my client suffered in December 1988 and is still suffering.  (iii), “The uncertainty of (a) succeeding.”

Well, that uncertainty, in my submission, is less of an uncertainty now than it was when this affidavit was sworn.  (iv), “The likelihood that they may not succeed.”  Well, are we going to fall into this trap again?  Is not this the very reason why the appeal was allowed?  You are assuming one side of the case and the very reason your Honour’s in the majority in my submission allowed the appeal in Canberra was you can not assume that one party is going to be successful except - and only then can you dismiss it.  And (v), this is a matter, very much – in (v) a good faith argument is very much in conjecture when you look at the subparagraphs (a) to (m) of 15(g)(1) of the current statement of claim.

And if there is one we have to look at – and all of them are in my submission severely reprehensible – you have in June 1994, 4 years after, some 5 years, 6 years after the event, 5½ years after the event, Sergeant Lampard changes his mind as to why he was before the roadhouse in 1988.  He said he went there to serve a summons.  He did not say that – he has not said that for 4 years.  Now, if ever there is a lack of bona fides, in my submission that has been severely demonstrated.  Now, sir, I therefore, at the very least I would submit that it would be appropriate to adjourn to have further information put before the court.

There is simply not good enough bona fides in the respondent’s application at this time to support that which is sought.  And my second point is this, sir, is that the High Court of Australia is the final court.  Suppose we, for . . . . . indistinct . . . . . reason, whatever, decide not to go on with our case.  Suppose someone gets ill.  I mean, when does this stop?  When do you stop a High Court order?  The final court in the land says:  you must pay our costs.  Now, to come along and say:  I do not want to pay because of some contingency, flies in the face of a final court of the highest court in Australia.

HIS HONOUR:   Well, you might say that equally of the orders – of the approach of the Supreme Court.

MR DUCKHAM:   Well, I would say that the Supreme Court rules contemplate an appeal and they are not the final court in Australia.  And I am sure your brethren in the Supreme Court would support me with that, sir.  It is simply not the case.  This is – the final court of Australia makes an order that A pays B costs.  It is, in my submission, grossly improper – I think that is the wrong word – in my submission it is jurisprudentially inappropriate for an order of that nature to be stayed.

HIS HONOUR:   Do you have the same pessimistic view as Mr O’Hara as to when this case is likely to go to trial?

MR DUCKHAM:   Well, can I say this, we have been ready for trial for some time.  Our statements of claim have been shot down – for good reason, I will not – by Mr O’Hara and those he represents.  Sir, if I – and this is a point taken out of my client’s affidavit – if you know that we have taken this point in the affidavit – we said we want to go to trial.  Now, I am happy to go to trial – to enter this for trial tomorrow.  I am waiting for an amended defence from my friend.  The only pessimism I have is the court list, not the readiness to trial.  If you look at Mr Websters affidavit, sir, he says, paragraph 13:

Once the matter of the amended statement of claim is finalised, it is our intention to set the matter down for trial

I can assure you it is my intention also.  So, any pessimism is certainly not brought on by a lack of tenacity of purpose or intention.  Now, sir, I do not know if I can take it any further but I do believe, sir, that it is absolutely incumbent upon this defendant to tell us more.  Absolutely incumbent.  He comes here for a discretionary remedy.  I was going to invoke some clean hands type arguments and equity but I am not sure it will help us a great deal but I think it is a reasonable parallel.  We have a silence on three occasions telling us where he is getting his funds from.  And if he does not want to tell us, it is even more reprehensible.

He does not say anything in Sergeant Lampard’s:  I have paid out any money for this case yet.  Well, I do not disagree with the sergeant for saying that because he probably has not but what I am saying is it is incumbent upon him now to tell us more.

HIS HONOUR:   Yes.

MR DUCKHAM:   Alternatively, sir, you may wish to receive an order for application for costs against the third party.  And I say again, it is the High Court of Australia.

HIS HONOUR:   Well, I cannot do that.

MR DUCKHAM:   No, no.  Not without paperwork.

HIS HONOUR:   Not on the information presently available.

MR DUCKHAM:   No, I appreciate that, sir.  What I am saying is that I foreshadow that this may be an avenue that we can go to.  And finally, sir, if my friend’s embarrassed by the situation he is in, no-one makes someone oppose an appeal.  You do not have to oppose an appeal.  You can say:  I am not opposing it or I am allowing it and let the matter go to trial.  Did not have to oppose it.  We have gone appeal; we have got special leave; an appeal; been successful.  Now, they could have quite sat on their hands and done nothing about it.  They have known the potential costs quantum for a long, long time.  At least 3, 2 years but I do not think I can take it a great deal further, sir – these are the submissions for the ‑ ‑ ‑

HIS HONOUR:   Thank you, Mr Duckham.  Mr O’Hara?

MR O’HARA:   Your Honour, what we would say is this matter has been before two Masters on two separate occasions and upon each occasion – well, on the first occasion the order was made for the stay and on the second occasion, the other Master was not prepared to interfere with that.  Now, something which I think we should probably mention, your Honour, is that – and I certainly do not for one moment accept that Mr Lampard is in a position to pay – in our submission, that is really quite a – it is almost, with respect, a monstrous submission that a person who is a joint owner with his wife of a house worth $63,000, with a mortgage of some $20,000, who has three teenage children and who receives, I think it is net in the hand about $490 a week ‑ ‑ ‑

HIS HONOUR:   Well, now, I do not think you need to worry about that aspect of it.

MR O’HARA:   No.

HIS HONOUR:   Mr Duckham puts his opposition principally on the basis that so far as we know there might be no liability – well, a liability in law on Sergeant Lampard but realistically any order for costs would be met by a third party, and he complains that that is information that is in your client’s hands and there has been no disclosure of any relevant facts.

MR O’HARA:   Well, your Honour, that is a matter which was raised by Mr Duckham in the Supreme Court and he received short shrift.  I think it is important to note, sir, that the order which was made for the stay of execution – it was not open ended, and if I can just refer you, sir, to annexure 10 to Mr Lampard’s affidavit.  It is not open ended and there has been some protections and safeguards built in so as to protect to a certain extent the position of the Websters.  You will see that the order for stay has been made without prejudice to the Websters right to lodge a caveat over the second defendant’s interest in property.

HIS HONOUR:   Will an order for costs support a caveat?

MR O’HARA:   I would have thought so, your Honour.  Well, it is a judgment – it is a judgment of the court.  It is a judgment ‑ ‑ ‑

HIS HONOUR:   You man this particular order constitutes a judgment or do you mean that the order for costs itself?

MR O’HARA:   Well, no, no but the taxed costs.  The certificate of taxation, yes, has effect as a judgment for a sum of money and can be enforceable by means of writ of fi fa or ‑ ‑ ‑

HIS HONOUR:   Well, there is no argument about that.

MR O’HARA:   No.

HIS HONOUR:   I was just questioning whether they would support a caveat.

MR O’HARA:   Well, perhaps I should say this, those words were introduced into the order at the express request of my learned friend.  But whether one – there is in fact, I think, your Honour, there is an Imperial Judgments Act which applies and does actually, I think, permit – is a specific act that is of ancient origin which does actually permit a judgment for a sum of money to form the basis of a caveat.

HIS HONOUR:   Well, when you say it is not open ended, there is that aspect of it and it is until further order.

MR O’HARA:   Until further order, yes, yes.

HIS HONOUR:   Yes.  Thank you.

MR O’HARA:   Your Honour, I do not think we need to get into the minutia of the claim, I simply wanted to refer you in general terms to the changing goal posts and that is that this malice has now been referred to for the first time some 5½ years later.  The affidavits, as you have noted from the Websters, are dated, sworn I think a couple of days ago.  I do not think it would be appropriate for me to, at this stage, prepare an affidavit responding to that but I can say to your Honour that the matter has been raised with Mr Lampard and he strongly denies those allegations which are set forth in the amended statement of claim and in the affidavit filed on behalf of Mrs Webster.

So, he strongly denies the allegations of malice which are now put forward for the first time.  Your Honour, I think when one reads the affidavit of Mr Lampard one can not say anything but that there has been an extremely full and frank disclosure of his financial position.  And I might say, your Honour, although the affidavit material placed before the Supreme Court by the Websters some time ago when they were seeking a stay of execution and which they obtained, although that disclosed that they were of little financial means, there has been nothing put before the court on their behalf in relation to this application except in the most general terms which suggests that they are experiencing any hardship which is in any way – which is attributable to the fact that this costs order is not being executed or carried into fruition.  And we say that also is a most significant matter.

HIS HONOUR:   Yes.  Thank.  This matter has had a long and rather tortuous history but so far as the question of orders for costs is concerned and the staying of those orders, it has been before the Supreme Court on two occasions, been considered by the Supreme Court and orders have been made for the stay of execution of costs orders in respect of the application for summary judgment and the appeal to the Full Court.  Unless there were considerations pointing to the exercise of that power in a different way, I am minded to follow the approach taken by the Supreme Court.

On the face of it, neither side in this litigation has the means themselves to meet the costs involved.  On the part of the appellants there has been a provision of legal aid which Mr Duckham says has met in part the costs of the appeal to the High Court although not in their entirety.  On the face of it, the respondent has not the means to meet the costs order.  There is a question has been raised as to whether in truth the responsibility for costs may be met by someone else.  That matter has not been fully explored although I am told that it was argued before the Supreme Court.

I think a distinction has to be drawn between the liability for costs of a litigant himself or herself and in respect of our own costs, and the liability to meet the costs of the other side.  There is insufficient material for me to conclude or even surmise that the responsibility for costs may be met in the second sense that I have used the expression “may be met by the third party”.  It seems it will be some time before this matter gets to trial.  There are substantial questions still to be argued but it seems to me that on balance there should be a stay of execution, at least until further order and that is what I propose to direct.

Mr O’Hara, paragraph 1 of your application seeks a stay of execution in favour of the appellants pending the outcome – I do not know that that is the happiest language in the world but ‑ ‑ ‑

MR O’HARA:   Your Honour, I would not have any difficulty with the order you have – with the terms you have just suggested that there be a stay until further order but perhaps that might be inconvenient from this court’s point of view.

HIS HONOUR:   No, that is not inconvenient.

MR O’HARA:   But that really leaves the matter at large.

[10.18am]

HIS HONOUR:   Yes.  I think it is probably preferable to make an order in those terms giving the parties liberty to apply, say on 7 days notice.  Well, there will be a stay of execution in respect of the order for costs made in the High Court on 14 October 1993 in favour of the appellants in this appeal until further order.  There will be liberty to apply on 7 day’s notice.  Now, the question of costs.

MR O’HARA:   Your Honour, I seek an order that the Websters – to use that term – pay the costs.

HIS HONOUR:   Why?

MR O’HARA:   Well, I suppose primarily because the applicant has been successful.  This, as is revealed by the letters your Honour, is not an application which has been brought precipitously to this court.  You will see that the matter was raised on several occasions with the Websters solicitors.  An application was made to them for an informal stay and a decline, I think, on two occasions to accede to that request, and that, of course, at a time when the Supreme Court had already dealt with the matter on two occasions.

HIS HONOUR:   What costs orders were made by the Supreme Court?

MR O’HARA:   I will just check that, your Honour.  Sir, the order made to stay in execution ‑ ‑ ‑

HIS HONOUR:   Can you direct me to the exhibit, Mr O’Hara?

MR O’HARA:   Yes.  Yes.  Annexure 10.  Costs were reserved.  My understanding, in relation to the costs orders when the matter came up before the other Master was that, yes, a costs order was made against the Websters and I suppose, if one can infer the rationale being, well, look you have been unsuccessful already, you have brought the same matter back again, you have been unsuccessful, this time you should pay the costs and it is that sort of reasoning, your Honour, which in our submission should result in an order consistent with a normal order that costs follow the event.

As I say, there has been nothing surprising about the sorts of materials which have been raised in this application.  Every endeavour was made to avoid coming before this court.  There has been a substantial amount of work necessary, unfortunately, and in our submission with respect if commonsense had prevailed – it was simply in our submission unreasonable, in view of the court orders which had been made in the Supreme Court, to put Mr Lampard in the position where it was necessary to bring this application.

HIS HONOUR:   Yes.  Thank you.  Mr Duckham, do you want to say anything about the question of costs?

MR DUCKHAM:   Yes.  Two things, sir.  I repeat again, this defendant still will not disclose who is funding his action and then to come here and say he wants costs because he is still not going to disclose it.  This problem, my friend says this was not said in the Supreme Court, so my first point is the merits of the claim for costs is somewhat muddied.  The second point is this, sir, is that it was only when we said we were going to persist that we see the respondents scurrying round and filing this application.

Now, the direct cost, as a result of the lateness of this application, is this – if you look, sir, on the court file there is a certificate of taxation.  The certificate of taxation is dated 10 August 1994.  Now, the costs were taxed in 1993.  Now, this was a necessary prerequisite in order to enforce our costs orders.  Costs of this $1500, as you would be undoubtedly aware on the rules, we had to pay this.  Now, had my friends brought this application successfully a long time ago, immediately after the amount of costs due, they would have been in a position – we would not have had to spend this money.

Now, sir, thirdly, I say this, if you look at Sergeant Lampard’s affidavit, right at the beginning, sir, to our amazement he says he resides at the 10th floor, 66 St George’s Terrace, Perth.  He will not even tell us where he lives.  This is a direct breach of the rules.  Now, I apprehend there is a reason for this but I do not want to apprehend from the bar table.  Now, what I am saying is, sir, that these factors do not help and the next thing I say is that the very fact that the last application for a stay was reserved in my submission is a good indication of an appropriate costs order.

HIS HONOUR:   Yes.  I must say I am inclined to agree with you there, Mr Duckham.  It seems to me that, given the history of this matter and various orders that have been made and the fact that this order has been made until further order, it is preferable that the costs be reserved and that is the order that I propose to make.

MR DUCKHAM:   Now, sir, before you do make that order, may I just make one point, I would like you to consider adding words to that order to the effect that this does not in any way – not in this flowery language obviously – does in any way restrict the appellant making application to the court for a third party to pay such costs.

HIS HONOUR:   Well, I do not propose to make such an order, Mr Duckham.  The point that you have raised is there on transcript and no doubt if you have the necessary information and persuaded that such an order has some chance of success, you will make such an application.

MR DUCKHAM:   But would not the presiding judge say:  I cannot give you this order, Mr Duckham, because of Toohey Js order.

HIS HONOUR:   I doubt that very much, Mr Duckham.

MR DUCKHAM:   Would not I have to go to the Full Court to-

HIS HONOUR:   No, no.  I think you underestimate the robustness of the other members of the bench.

MR DUCKHAM:   Oh, I would not do that, sir, under any circumstances.

HIS HONOUR:   I do not think that stands in your way at all and the transcript will reveal the scope of the argument that has taken place today.

MR DUCKHAM:   I would just give notice that that may be a matter I am instruction on, sir.

HIS HONOUR:   Well, that is a matter for you, Mr Duckham.  I give the orders accordingly and the court will now adjourn.

AT 10.22 AM THE MATTER WAS ADJOURNED
INDEFINITELY