Wentworth v Rogers

[2007] HCATrans 702

[2007] HCATrans 702

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2001

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

GORDON JOHN ROGERS

Respondent

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 NOVEMBER 2007, AT 11.57 AM

Copyright in the High Court of Australia

MR N.A. COTMAN, SC:   If the Court pleases, I appear for the applicant.  (instructed by Russo and Partners)

HAYNE J:   In this matter again there is a certificate of the Deputy Registrar that he has been advised by the respondent that he will not be attending Court nor will he be represented in the matter.  Yes, Mr Cotman.

MR COTMAN:   I took the liberty of sending to the Court yesterday two supplementary documents in relation to the submissions to try and put in somewhat terser form the principal matters in relation to the substantive issues in relation to the costs judgments.

HAYNE J:   That is to say, a summary of argument, is it, and a chronology and argument?   Are those the two documents?

MR COTMAN:   Those are the two documents.  I do not wish them to be in derogation of the submissions that are already on in relation to the question of bias that arises in this matter as well because, as your Honours may have appreciated from my learned friend Mr Williams’ submissions, there is arising in No 22 of 2001, because of the matters that appear from page 94 and on in the application book, the same application relying on the same affidavit in relation to Mr Justice Handley’s sitting in relation to the second, if I can describe it in that way, of the special leave judgments.

So there are in fact two judgments which are the subject of the special leave application, the second of which overtakes the first and confirms the first, and that is the judgment of the Court of Appeal of 15 December, which is the judgment at page 104.  It is disposing of an application for leave to appeal from a judgment of Mr Justice Hulme.  Mr Justice Hulme’s judgment is the judgment at page 54 of the book in which his Honour was dealing with a motion which is at page 34 in which Ms Wentworth sought a certificate of the Common Law Division of the Supreme Court of New South Wales for two counsel in the hearing of the first trial before Mr Justice Maxwell that my learned friend Mr Williams has just adverted to in the submissions to the Court.

That is why, in the submissions that I sent your Honours – they go on to the short document – the chronology starts with the 1995 judgment of the Supreme Court which was a judgment in relation to a claim that had been made by Ms Wentworth to that court for all of the costs of the trial before Mr Justice Maxwell and the retrial of the now separated claims before Mr Justice Sully.  She also sought costs of the cross‑claim and, as your Honours have heard, sought the dismissal of the cross‑claim before that court.

That court, in short, remitted back to the Common Law Division all matters concerning the cross‑claim, questions of dismissal and questions of costs and dealt with questions of costs and did so in the light of the Maxwell costs having been reserved by the Court of Appeal in 1987 to abide the result of the retrial.  So what the court had in front of it in 1995 was, now there has been a trial by Mr Justice Sully and a jury of just Ms Wentworth’s claim, what is the cost outcome in relation to that?  Does she get half the costs or more?  Secondly, what is the implication of that for the costs of the Maxwell trial reserved by the 1987 judgment of the Court of Appeal?

It is that matter that engaged the court and in particular engaged Mr Justice Brownie sitting as an acting justice of appeal.  His judgment starts at page 177.  He deals on that page with the matters that your Honours just heard about in relation to Mr Rogers’ position as to why he would not appear in relation to the hearing of the costs argument.  At line 45 he refers to the application to dismiss the cross‑claim.  He says, “We will be remitting that back and we will proceed on the basis that it in fact is on foot”.  He then dealt with the various matters arising under the rules in relation to what costs orders would or might occur in relation to the size of the verdict.  Then at 181, at the foot of the page, having got past those matters which have been the subject of a special leave application in this Court which has been dismissed, line 55 his Honour then says:

Two further matters were raised, as to costs.  First, it seems to have been overlooked by all concerned, when the costs question was argued before Sully J, that the second trial was a trial only of Ms Wentworth’s claim, and not a trial of the cross‑claim, and that the order of the Court of Appeal of 1987, that the costs of the first trial abide the result of the second trial, referred to a second trial of both claims.

I might parenthetically add that is not in fact the terms of the order but that is his Honour’s observation. 

HAYNE J:   What do you say the error is there?

MR COTMAN:   The terms of the order as first made simply are the costs of the first trial will be the costs of the second trial.  It does not in terms refer to “of both claims” but that may be considered to be ‑ ‑ ‑

HAYNE J:   I understood that, yes.

MR COTMAN:   His Honour then continues:

The order of Sully J therefore needs to be amended so that it is limited to the costs of Ms Wentworth’s claim, as distinct from the cross‑claim.  The costs of the cross‑claim will be a matter for the Common Law Division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought not recover the whole of her costs in relation to the cross‑claim.

Pausing there for one moment, as we have observed in the submissions for the manner observed at the foot of page 181 that it had not been drawn to Justice Sully’s attention that the 1987 order was alive and may bear on the matter, the implicit assumption is that what Mr Justice Sully was doing bore on the question of the 1987 costs.

The second matter is that the “therefore” that connects that thought and the orders proposed by his Honour deals not with a bifurcation of costs between the first trial and the second trial but deals with a bifurcation of costs between claim and cross‑claim.  So what, in our respectful submission, is manifestly intended by that discussion and then the proposed orders, including 2(b) at the foot of page 182, was that Mr Justice Sully’s order in relation to the costs of the claim or, more particularly, that Ms Wentworth get one half of the costs of the claim, apply to the claim for costs before Mr Justice Maxwell as well as the costs of the trial before Mr Justice Sully, but would not affect the costs of the cross‑claim.  There were no cross‑claim costs before Mr Justice Sully.  The only cross‑claim costs that could be referred to by Mr Justice Brownie at that time were the costs before Mr Justice Maxwell.

That is germane, in our respectful submission, because what is then said by his Honour is the second outstanding matter is there was an application for the costs of two counsel before Mr Justice Sully and before Mr Justice Maxwell.  Says his Honour and the Court, “You, Ms Wentworth, can have the costs of two counsel of the Sully trial.  We do not know enough about the first trial to make an order about that.  You will have to make an application in the division”.  In other words, the Court of Appeal was then and there considering but not dealing with costs of the first trial and sending back, without remark, the idea that that would be a matter for the division, not to be dealt with in due course, not to be subject to the determination of costs claims or any matter of that sort, simply, “If you wish to, Ms Wentworth, go back and make an application in the division for two counsel in the first trial”.  That is what Ms Wentworth did before Mr Justice Hulme.  It is that matter that then comes into the Court of Appeal on the two judgments or the one judgment which is the subject of the special leave application.

The reason we say there is a special leave point is very simply this.  In the consideration by the Court of Appeal of the question of the operation of the 1987 judgment the first of the two judgments simply asserts, in a sense almost ipse dixit, that the decision in 1987 applies and can only be satisfied by a determination of both limbs of the first trial; the retrial of the claim and the retrial of the cross‑claim.  Unless and until that occurred no question of costs of the first trial could be considered resolved.

The more significant judgment, however, is the judgment of 15 December, which is the one commencing at page 104, where the Court was confronted with the 1995 judgment and, in particular, Mr Justice Brownie’s judgment.  Can I take your Honours forthwith to page 104 and following.  The Court deals with some procedural matters as to how the matter has been dealt with to that that point.  Then at page 106 – I am sorry, I should pause there. 

As I think I have said, Mr Justice Hulme said, in answer to the request for a certificate for two counsel, “This application is premature because you, Ms Wentworth, have no order for costs at all in relation to the first trial.  There is no extant order in your favour in relation to the first trial, therefore, your application is premature.  Whereas the matter that Mr Justice Brownie had solemnly remitted to the division for determination the division says is premature because you do not have the benefit of an order”.

So on page 106 and following in the Court of Appeal the Court set out to determine how it was that the 1987 and 1995 orders of the Court could be reconciled, so to speak, having decided in the earlier chambers judgment that the 1987 judgment required the determination of both limbs.  At page 106 the Court referred to the material that had been submitted to the Court by Ms Wentworth and said:

Reference was made to that material because the claimant has submitted that Handley JA and other members of the Court, and members of the High Court, had previously expressed views as to the effect of this Court’s orders of 5 May 1995 which were inconsistent with this Court’s reasons of 7 September 1999.

That is to say, what Ms Wentworth was submitting was. “The orders of 1995 gave me my costs of the first trial and carved out from that cost order costs of the cross‑claim”.

The claimant relied in particular on the statement made by Handley JA during argument –

and sets out that passage the Court observing that:

they were said to be the Judge’s “present impression” –

and then continued over the page to deal with the observation made by his Honour Mr Justice Priestley on the last day of the argument where his Honour then raised a tentative view as to the construction, if you like, of the 1987 order and therefore what could be encompassed within an order for costs.  It then sets out the passage from Mr Justice Brownie’s judgment that I have taken the Court to at the foot of page 107.  The orders proposed by Mr Justice Priestley, I might say an inclusion in the orders that did not find its way into the orders as made.  It then continues, midway down page 108:

The costs order of Sully J gave the claimant half her costs of the action which would include the costs of the second trial.  When this Court gave judgment on 5 May 1995 it was well aware of the costs order made by the Court on 6 March 1987 and did not purport to vary that order.  Sully J of course had no power to do that and did not purport to do so.

With respect, that mis‑states the issue insofar as what the Court did in May 1995, in our respectful submission, was to construe the order in the context of the now severed hearing of the second trial and decided how that order would operate in that environment.  So it was not a question of varying the order, it was declaring how the order would work where there was not a single second trial, there was a severed second trial.  It then continues:

The result of the order of Sully J, as varied by this Court when read, as it must be, with the existing order of this Court of 6 March 1987, is to give the claimant the general costs of her action from its commencement, and the costs of the second trial, but not the costs of the first trial, or any part of the costs of the first trial.

So the assumption is that there is a conflict, if you like, between the 1987 orders and the 1995 orders rather than, as we would say, the 1987 orders are in fact embedded in the 1995 orders have been construed and applied by that Court.  The Court then continues over the page on page 109:

There is some ambiguity in the orders of this Court of 5 May 1995 but they are not to be construed in a vacuum.  They must be construed in the light of surrounding circumstances known to the Court and the parties and in particular the order of 6 March 1987.  If there is any residual ambiguity reference can also be made to the Court’s reasons for judgment and to the statement of Priestley JA, speaking for all members of the Court, which has already been referred to.

This is the point where, in our respectful submission, the special leave point in relation to the analysis of the Court of Appeal becomes florid because what the Court is now inviting itself to do is to transport that which is on page 107 from lines 10 through to 25 up into being part of the reasons for judgment of the Court.  It sets out matters in relation to – looking at the transcript and the like for the purposes of ascertaining what the issues are – it sets out the authorities in relation to looking at the reasons for judgment of the Court, neither of which are controversial, and then observes over the page at line 20:

Nothing was said during the further argument, after Priestley JA made the statement referred to, which indicated that any member of the Court had changed his view.  The Court delivered its reserved judgment on 5 May 1995.  Priestley JA, who was in the minority, would have made an order which was limited in terms to the second trial, but it would have carried the general costs of the action.

and so forth.  In our respectful submission, what we would contend the Court has impermissibly done, which raises a question of general public importance, in relation to the approach to the construction of judgments is to what extent the Court can have recourse to statements arguendo of members of the Court to, in our respectful submission, set them up in opposition to the published reasons and the orders as made because, in our respectful submission, when one goes to the reasons and one goes to the orders, one sees a coherent pattern that deals with the costs of the claim at the first trial and the second trial and severs off the costs of the cross‑claim.  What is being now reinstated, in our respectful submission, is in effect a three or four‑way schism between first trial, second trial claim/cross‑claim and creating a monolithic argument in relation to the 1987 Maxwell trial costs.

In our respectful submission, the judgment of the Court has miscarried in relation to the construction of its own orders and reasons for judgment and has created a situation where, as my learned friend Mr Williams has observed, Ms Wentworth’s costs position now remains in limbo for as long as the cross‑claim remains unlitigated and, in our respectful submission, in circumstances where the only proper understanding of the reasons of the Court of Appeal in 1995 are that she had the further costs of her action, the costs of the cross‑claim, were left to abide the results of the cross‑claim when remitted back to the division for determination.  Those are our submissions, if the Court pleases.

HAYNE J:   Just before you sit down, Mr Cotman, can I be quite certain about this.  The matters you have urged orally are in addition to not in

substitution for what appears in the written outlines of argument, is that right?

MR COTMAN:   That is right, your Honour.

HAYNE J:   Yes, thank you.

MR COTMAN:   To be perfectly clear, we, with respect, adopt what is said by Mr Williams in relation to the question of apprehended bias save with the variation, so to speak, that it appears again as an issue in relation to a separate trial.

HAYNE J:   I understand that.  Thank you.  The Court will adjourn to consider the course it will take.

AT 12.18 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.37 PM:

HAYNE J:   The applicant seeks special leave to appeal from “the whole of the judgments of the Court of Appeal given on 7 September 1999 and 15 December 2000 and from orders made on 7 September 1999 and 15 December 2000”. 

On 7 September 1999 the Court of Appeal, Handley and Fitzgerald JJA, determined an application by Ms Wentworth for leave to appeal from a judgment of Hulme J delivered on 5 November 1998.  By consent, that application was determined on the papers.  Leave was refused with costs.

On 15 December 2000 the Court of Appeal, again constituted by Handley and Fitzgerald JJA, dismissed Ms Wentworth’s application renewing her application for leave.  Ms Wentworth had also renewed an application she had made in other associated litigation that Handley JA disqualify himself from hearing her renewed application for leave.  In support of her application that Handley JA disqualify himself, Ms Wentworth relied on an affidavit of a former judge’s associate in which the deponent described private conversations between judges of the Court of Appeal, including Handley JA, in which derogatory remarks were said to have been made about Ms Wentworth.  Justice Handley held that the matters deposed to in the affidavit were matters which occurred in private and that the affidavit was not admissible. 

The actual decision of Handley JA refusing to disqualify himself from sitting in the matter is not attended by doubt.  No wider question of principle, whether about admissibility of evidence or otherwise, would fall for consideration if special leave were to be granted in respect of this aspect of the matter, nor are we persuaded that an appeal against the refusal of leave to appeal to the Court of Appeal against orders dealing only with questions of costs, even if otherwise suitable to a grant of leave, would enjoy any reasonable prospect of success if leave were to be granted.

In particular, questions of whether or when a court may, as it was put, “go behind the orders and reasons for judgment of a court, the first court, in order to determine what the first court decided”, in the particular circumstances of this case raises no point suitable for a grant of special leave.  Special leave is accordingly refused.

MR COTMAN:   If the Court pleases.

HAYNE J:   The Court will adjourn to reconstitute.

AT 12.40 PM THE MATTER WAS CONCLUDED