Wentworth v Wentworth

[1999] NSWSC 638

CITATION:	Wentworth v Wentworth [1999] NSWSC 638 revised - 30/08/99
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	3748/89
HEARING DATE(S):	06/05/99, 18/05/99
JUDGMENT DATE:	29 June 1999
PARTIES :	Katherine Wentworth (P) Peter Fitzwilliam Neville Wentworth (Estate of George Neville Wentworth) (D)
JUDGMENT OF:	Santow J

COUNSEL :	K Wentworth (in person) (P) C J Birch (for Attorney-General as amicus curiae)
SOLICITORS:	Russo & Partners (P) State Crown Solicitor (for Attorney-General as amicus curiae)
CATCHWORDS:	PROCEDURE — Application to re-open before judgment "entered" — Meaning of "entering" judgment — Guiding principles applicable to re-opening and illustrations — The jurisdiction to re-open is exceptional — Effect of setting aside a determination by Taxing Officer upon Court of Appeal’s orders and reasoning prior to that time — Status of such determination after set aside — Voidable but avoided ab initio — Existence pending avoidance — Binding effect of Court of Appeal decision on single judge — Meaning of no order as to costs.
ACTS CITED:	Supreme Court Rules; Pt 20 r10, Pt 40 rr9 and 10, Pt 42 r11(1), Pt 42 r13
CASES CITED:	AB v Federal Commissioner of Taxation (1998) 157 ALR 510 Antoniadis v Ramsay Surgical Ltd [1972] VR 323 Attorney-General v Kennedy Miller [1999] NSWCA 158 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Bailey v Marinoff (1971) 125 CLR 529 Calvin v Carr [1979] 1 NSWLR 1 Cheeseman v Bowaters United Kingdom Paper Mills [1971] 1 WLR 1773; [1971] 3 All ER 513 Commonwealth of Australia v Precision Pools Pty Ltd (1994) 53 FCR 183 Driver v Driver [1950] SASR 8 Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) and Ors (SC(Vic), Hansen J, 16 April 1998, unreported) Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 Forbes v Trotting Club (NSW) (1979) 143 CLR 242 Glennan v Commissioner of Taxation [1999] FCA 297 Hoad v Nationwide News (1996-1997) 37 IPR 407 Re Hodgkinson [1895] 2 Ch 190 Holtby v Hodgson (1889) 24 QBD 103 King v Birch (1842) 3 QB 425; 114 ER 569 MacFoy v United Africa Co Ltd [1962] AC 152 In Marriage of Moore (1996) 125 FLR 420 Oshlack v Richmond River Council [1998] 193 CLR 72 Phillips v Birch (1842) 4 Man & G 403; 134 ER 165 Pittalis v Sherefettin [1986] 1 QB 868 R v Bellington [1980] VR 625 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 Smits v Buckworth (No 2) (NSWSC, Young J, 14 November 1997, unreported) State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Texas Company (Australasia) Ltd v FCT (1940) 63 CLR 382 Trikas v Rheem (Australia) Pty Limited [1964] 81 WN 504 Trippe Ltd v Henderson Investments Pty Ltd (1990) 101 FLR 261 Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Wentworth v Wentworth (NSWCA, 30 November 1998, unreported) Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 Yenald Nominees Pty Ltd v Como Investments Pty Ltd & Ors (1996) ATPR 41-508
DECISION:	Earlier judgment not to be re-opened

REVISED — 30 August, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 3748/89
KATHERINE WENTWORTH
Plaintiff

PETER FITZWILLIAM NEVILLE WENTWORTH
(Estate of George Neville Wentworth)
Defendant

JUDGMENT

29 June 1999

Table of Contents

Page

INTRODUCTION
SETTING ASIDE OR VARYING A JUDGMENT OR ORDER — THE RELEVANT PRINCIPLES
Grounds advanced for review of the judgment of 9 April 1999
Summing Up

REMAINING MATTERS
CONCLUSION
DRAFT ORDERS

INTRODUCTION

1    On 9 April 1999 I handed down a judgment, still to be formally entered, in which Ms Wentworth as Plaintiff was unsuccessful in obtaining costs — sought on an indemnity basis — against Deputy Registrar Howe and the Crown in the right of the state of New South Wales arising from the failed taxation before Deputy Registrar Howe. She was partially successful in obtaining costs from the Defendant, but not on an indemnity basis and only for the period that the Defendant played an active role in the disqualification proceedings before me. Ms Wentworth subsequently sought a review and alteration of that decision and the contemplated orders. This was insofar as such orders:

(a) denied costs against Deputy Registrar Howe and the State and gave only partial recovery against the Defendant, and

(b) depended on the reasons of the Court of Appeal in its judgment of 21 February 1996 and its orders in precluding any recovery of costs in proceedings before Master McLaughlin where these preceded reconsideration by the taxing officer, and

(c) deferred consideration of any recovery of costs otherwise relating to the taxation, pending completion of the fresh assessment of costs sought by Ms Wentworth to be conducted in accordance with the contemplated orders.

2    My decision of 9 April 1999 arose out of the review by this Court in its supervisory jurisdiction of Deputy Registrar Howe’s decision not to disqualify himself on the ground of bias and/or apprehended bias. It led to the taxation being substantially set aside on the ground of apparent bias. That is recorded in my judgment of 6 February 1998 in which I concluded that he “so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias”. It followed that his various determinations in the taxation were set aside, save for three interim certificates. That decision is part of satellite litigation whose expanding ramifications have occupied enormous resources of this Court over an extended period. It concerns the taxation of costs arising out of Ms Wentworth’s original application for an order under the Family Provision Act 1982 (NSW). The principal defendant in that complex of litigation is the Plaintiff’s brother Peter Wentworth, who for financial reasons has in recent times declined to play any active role. 3 The jurisdiction to re-open is, as I explain, an exceptional jurisdiction. It is to be exercised only where warranted. Otherwise, public policy in favour of finality in litigation will be jeopardised. The question here is whether its invocation is indeed justified. It is clearly important that courts in the interests of justice do not fail to recognise when those exceptional circumstances are made out. No less important, is that unjustified applications are discouraged. 4 The matters presently before me are two. First, whether I should set aside or vary my earlier judgment of 9 April 1999. Second, whether the orders I foreshadowed should be made having regard to the answer to that question. In considering these questions, I have had, as previously, submissions by the Plaintiff in writing and orally, and the assistance of Dr Birch as amicus curiae. 5 In order to deal with this application in a way which clearly delineates the proper approach to be taken, I have gone to some trouble to set out the guiding principles and then their application to the circumstances before me.

SETTING ASIDE OR VARYING A JUDGMENT OR ORDER — THE RELEVANT PRINCIPLES

6    The jurisdiction to set aside or vary a judgment prior to entry of judgment or the relevant order had its origin in the common law power in that behalf. That jurisdiction is recognised in the Supreme Court Rules; see Pt 40 rr9 and 10. Apart from the so-called “slip rule” a court has an inherent power at common law to review, correct or alter its judgment or orders before the judgment or order has been entered. This is a power which applies both to a single judge or an appellate court including the High Court. It is exemplified in Smith v NSW Bar Association (No 2) (1992) 176 CLR 256, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 and Yenald Nominees Pty Ltd v Como Investments Pty Ltd & Ors (1996) ATPR 41-508. 7 However, even after a court’s judgment or order has been perfected by entry, the jurisdiction to reopen may be exercised, though the circumstances must again be exceptional. As Walsh J said in Bailey v Marinoff (1971) 125 CLR 529 at 535 and speaking generally of the jurisdiction to reopen before or after judgment is perfected, courts have not been disposed to extend the range of circumstances in which their inherent jurisdiction to set aside or vary judgments and orders may be invoked, or to treat that jurisdiction as allowing variations in judgments or orders whenever the interests of justice might seem to demand variation; see generally Enid Campbell “Revocation and Variation in Administrative Decisions” (1996) 22 Mon LR 30 at 33-38.

8    When, for that purpose is judgment or an order entered? A policy of the finality of litigation underpins our system of law: Bailey v Marinoff (supra) per Gibb J at 539. Entry of judgments or orders in the registry of the court achieves this finality by bringing the litigation to an end: see Holtby v Hodgson (1889) 24 QBD 103 at 107; Antoniadis v Ramsay Surgical Ltd [1972] VR 323; Trippe Ltd v Henderson Investments Pty Ltd (1990) 101 FLR 261. “Entering” (or “authenticating” as it sometimes known in other jurisdictions) judgment in the case of a court of record is the formal process by which the judgment or orders of the court are “perfected” by being drawn up as a record of the court: see Bailey v Marinoff per Barwick CJ at 530. The judgments and orders of courts of record are not perfected until they have been formally passed and entered into the court’s records (R v Bellington [1980] VR 625). This is in contrast to a court not of record whose judgment is perfected by the pronouncement. All judgments of the Supreme Court of New South Wales are required, subject to limited exceptions, to be entered: Pt 42 r11(1) of the Supreme Court Rules (“the Rules”). Entry of judgment is accomplished by the registrar sealing a minute of the judgment or order, which has been previously signed by a registrar or the Judge or master who made the judgement or order and filed: Pt 42 r13 of the Rules.

9 In earlier times judgment was entered upon the roll or record of the court and it was that record which determined the rights of the parties: see Blackstone, Commentaries on the Laws of England, 1st ed (1765-1769) Vol 3 389-395. A judgment was not a record of the court until it was ‘made up’: King v Birch (1842) 3 QB 425 at 431, 114 ER 569 at 572; Phillips v Birch (1842) 4 Man & G 403, 134 ER 165. A distinction is therefore made between pronouncing judgment, that is, the giving of formal orders, and subsequently entering judgment: Holtby v Hodgson (supra) at 107; Driver v Driver [1950] SASR 8 at 10; Antoniadis v Ramsay Surgical Ltd (supra); Trippe Ltd v Henderson Investments Pty Ltd (supra); In Marriage of Moore (1996) 125 FLR 420.

10    For purposes of the doctrine of res judicata, the effect of giving judgment is said to be that “the cause of action in respect of which it was given is merged in the judgment and its place is taken by the rights created by the judgment”: Halsbury’s Laws of England (4th edition) Vol 26 par 551; Commonwealth of Australia v Precision Pools Pty Ltd (1994) 53 FCR 183 at 191. At the time of delivering judgment a judge is not yet functus officio: Cheeseman v Bowaters United Kingdom Paper Mills [1971] 1 WLR 1773; [1971] 3 All ER 513. In Driver v Driver (supra) at 10 Napier CJ said that until a judgment was entered it was “inchoate and incomplete” having “not yet passed from the control of the judge who pronounced it.” 11 The present case concerns the position where a judgment has not been entered. It is governed by the common law rule as well as Pt 40 r9 of the Rules. The latter provides that “the court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of judgment”. This is not a case governed by the so-called “slip rule”, set out in Pt 20 r10 which provides:

“Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.”

12 Nor is this a case where judgment has been entered and matters occur after judgment takes effect under Pt 42 r12, which provides:

“A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may, on terms, make such order as the nature of the case requires.”

13    While appellate courts must have regard to whether and to what extent there is any prospect of any final appellate review and which in the case of the Australian courts of appeal depends upon special High Court leave, the principles for exercise of the discretion as laid down in Smith v NSW Bar Association (No. 2) (supra) at 265 embrace all courts:

“The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation ( Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684)). Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review ( Marinoff v Bailey (1970) 92 WN(NSW) 280 at 284; National Benzole Co Ltd v Gooch [1961] 1 WLR 1489 at 1492-1494). And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal ( State Rail Authority of NSW v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 at 38-39, 45-46; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 AT 394-395).”

Per Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (No 2) at 265.

Their Honours went on to say (at 265) “the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised to permit a general re-opening”.

14    Speaking in broad terms, the basis for review has been expressed thus (in Yenald (supra) at 42,362):

“An order varying the terms of a judgment that has not been entered will be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made deal more adequately with the matter as litigated by the parties before the Court. (See: The Texas Company (Australasia) Ltd v FCT (1940) 63 CLR 382 per Starke J at 457).”
In appellate courts particularly, there is to be weighed the public interest in the finality of litigation against what would otherwise be irremediable injustice; State Rail authority of New South Wales v Codelfa Construction Pty Limited at 38 per Mason and Wilson JJ. But that latter factor does not have the same weight where, as here, appeal is allowed as of right or as a matter of usual course.

15    The discretion to re-open or vary a judgment is thus significantly qualified. As is so often said, the power should “be exercised with great caution”; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684. Examples where re-opening was denied serve to illustrate the constraint observed by the courts in exercise of the discretion:

(i) Where the ground was that the Court misconstrued a section of legislation this was said to be “an attempt to re-argue the substantial question decided in the appeal after hearing full argument from counsel for the parties”. Wentworth v Woollahra Municipal Council (supra) at 685

(ii) Where the grounds are an allegation of bias against the Court or allegations of mistaken findings of fact, the proper procedure is to seek special leave to appeal from the High Court. Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 395

(iii) Where what is occurring is in truth the re-agitation of arguments already considered by the Court; as was said by Mason CJ in Autodesk (at 302):

“It must be emphasised that the jurisdiction [to review or re-hear an issue] is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put”

(iv) Where the parties have been sufficiently heard on the impugned issue; Autodesk Inc v Dyason (No 2) .

(v) Where even if there be the possibility of some misapprehension on the Court’s part as to the facts or relevant law, this misapprehension can be attributed solely to the neglect or default of the party seeking the re-hearing; for “the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases”; per Mason CJ in Autodesk at 303.

16    Examples on the other hand where review has been allowed in the case of a judgment or order of a court of first instance include the following:

(i) Where the court’s reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18.

(ii) Where the court’s reasons involve “infelicity of expression and ambiguous statements” which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290.

(iii) Where re-opening in respect of an order which was consequential upon a finding of error of law and the trial judge had no intention that the order have the effect that further evidence could be called on in the remittal to the tribunal below, and where the possible effect of the order had not been the subject of argument at hearing; AB v Federal Commissioner of Taxation (1998) 157 ALR 510. (While the order arising out of this decision to re-open the matter and the previous decision which found an error of law were overturned on appeal in Glennan v Commissioner of Taxation [1999] FCA 297, the decision to re-open was not itself canvassed in the appeal.)

(iv) Where what was sought was further consideration of orders in respect of the nature and extent of equitable relief which had been earlier sought at trial (in the context of a complex litigation); Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) and Ors (SC(Vic), Hansen J, 16 April 1998, unreported)

(v) Where a party had misunderstood the basis of a pleading and failed to address the issue in its strike-out application; Hoad v Nationwide News (1996-1997) 37 IPR 407 [Anderson J SC(WA)]

(vi) Where excision of a paragraph from a judgment was sought where the trial judge had mistakenly referred in his reasons to a situation which did not exist; Smits v Buckworth (No 2) (NSWSC, Young J, 14 November 1997, unreported)

(vii) Where the trial judge recalled his order after deciding it was wrong immediately after making it; Pittalis v Sherefettin [1986] 1 QB 868

17    In the Court of Appeal, where further appeal would have depended on discretionary special leave from the High Court, the Court agreed to re-open its decision in order to permit a reconsideration of a particular issue, because the court had not originally been made aware of authority directly in point and which was to the contrary to that earlier decision; Wentworth v Wentworth (NSWCA, 30 November 1998, unreported). 18    While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-2). He delimited the scope of the discretion by explaining that “the exceptional step” of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant’s neglect or default. 19 Once a matter is re-opened the scope of the review depends upon the error or omission which has led to it. Thus Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (No 2) at 256:

“…… once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.”
Grounds advanced for review of the judgment of 9 April 1999

20    Ms Wentworth submitted that the judgment of 9 April 1999 depended for its foundation upon the Court of Appeal’s decision of 21 February 1996 and second, that that Court of Appeal decision of 21 February 1996 was not only wrong but, more relevantly, should be treated as in effect a nullity on the basis that it in turn depended upon the assumption that Deputy Registrar Howe’s determinations in the taxation had continued effect. The argument proceeded that since the effect of the judgment of 6 February 1998 was to deny the determinations of Deputy Registrar Howe any continued effect, apart from the three interim certificates, that removed any binding effect of the Court of Appeal decision upon me when subsequently considering what, if any, cost orders to make. She argued that setting aside the taxation for apprehended bias meant in any event that the necessary substratum for the Court of Appeal’s decision of 21 February 1996 had been removed. This, she said, rendered it necessary that the reasons in my judgment of 9 April 1999 should be corrected insofar as dependent upon a Court of Appeal decision that could have no relevant binding effect. 21    Quite apart from the importance of a single judge in this Court properly recognising the binding effect of decisions of courts superior to it in the hierarchy of courts, and in this instance the Court of Appeal, the proposition that the Court of Appeal decision can be treated as a nullity fails to recognise several fundamental matters. The first is that when in my judgment of 6 February 1998 I set aside the determinations of Deputy Registrar Howe, this was based on a finding that those determinations were voidable rather than void, thus leaving the effect of their subsequent avoidance to be considered. Thus at page 57 the judgment concludes:

“Finally it should be emphasised that if, as is well settled, bias is capable of waiver, then it must follow that a decision vitiated by bias is voidable rather than void. This leaves open the possibility of severance, in which so much of the decision and its consequences as are properly capable of severance may be severed.”

22    That indeed was the basis for the determination, strongly pressed by Ms Wentworth, that the interim certificates could be severed from the certificates which were given after the hearing. Indeed there is Privy Council authority that a decision by an association which was vitiated or invalidated by a denial of natural justice, retained sufficient existence in law to be the subject of a valid appeal to a committee of that association not rendered nugatory by the later setting aside of the association’s decision; Calvin v Carr [1979] 1 NSWLR 1 at 8 and see also Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 at 595 and MacFoy v United Africa Co Ltd [1962] AC 152 at 159. 23 Similarly, in Forbes v Trotting Club (NSW) (1979) 143 CLR 242, where the issue was the validity of the Club’s resolution to exclude the Plaintiff from all trotting venues in the State, including those which the Club did not own, Aickin J at 277 explained the position in terms which I adopt:

“This argument appears to me to involve a misconception. That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision that effect by a court, but from its inception. Thus although it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio . Accordingly, it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act at all and supportable (if at all) as an effective act only on some other basis.”

24    Thus accepting the effect of my judgment on 6 February 1998 was to render void the determinations of Taxing Officer Howe and accepting also that these were rendered void ab initio, that voidance necessarily post-dated the judgment of the Court of Appeal of 21 February 1996. There could be no suggestion that those Court of Appeal proceedings were in any fashion irregular by reason of events that subsequently occurred by virtue of my review. Accepting that the decision of the Court of Appeal was regular at the time it was handed down, it cannot be rendered a nullity merely because the determinations with which it was concerned have since been set aside in collateral proceedings. Thus by analogy a later setting aside of orders will not automatically render an earlier judgment a nullity. And quite apart from those considerations, an appellate judgment does not lose any precedential value, though the earlier overruled decision has no further effect. There must be many cases in the law reports in which the orders propounded were later set aside by agreement of the parties in settlement of an appeal. It has never been suggested that later courts are thereby precluded from relying upon the reasoning of those earlier decisions, whether or not bound by it. 25 Nor, in the present case, could the logical substratum of the Court of Appeal’s judgment be properly treated as so altered (by avoidance of Deputy Registrar Howe’s determination) as to be no longer binding, for reasons which I explain below. In essence, that reasoning was to preclude recovery of costs in challenging Deputy Registrar Howe’s determination, prior to his completing any reconsideration. This was on the basis that such challenge was not pursuant to the Court’s supervisory jurisdiction but necessarily under the Rules, which had been disregarded. Even if it should later transpire that the determination was void ab initio, it does not follow that premature applications so characterised could give rise now to cost orders, contrary to the Court of Appeal’s decision that, in essence, costs should lie where they fall. I elaborate below on the steps to that result by reference to the Court of Appeal’s reasoning as relied on in my judgment of 9 April 1999 26    In my judgment of 9 April 1999 reference is made directly to the Court of Appeal decision of 21 February 1996 firstly at para 9. In that paragraph, I quoted from my earlier judgment of 6 February 1998. The reference was in these terms:

“Finally the Plaintiff seeks cost orders against the Defendant and in particular an order that the Defendant pay the costs of the Plaintiff of the whole of the taxation process to date including the costs of all applications which have arisen to date from the entire failure of the taxation process, on an indemnity basis. In my judgment no such orders should be made. The Defendant has it is true put the Plaintiff to proof regarding the matter of bias, but the Defendant was entitled to do this. The Plaintiff would be put to proof in any event whether the Defendant had played a role or not in the initial stages of the present proceedings. It would be wholly inappropriate for cost orders to be made against the Defendant in the circumstances. Moreover the Defendant was entitled to contest the Plaintiff’s contentions before the Taxing Officer, though it is to be regretted that the proceedings overall were contested by both parties in so unconstrained a way. However it is not possible to attribute a preponderance of responsibility for this to either party. All of this has, as Clarke JA observed (Wentworth v Wentworth at 36) "meant that the court, and officers of the court, have been required to spend an excessive amount of court time in resolving one incidental aspect of litigation between two people." That said, I do not detract from the Plaintiff’s right to have this aspect of the Taxing Officer’s determinations dealt with by this Court.”

27    Then at paras 18-20 there is stated the self-evident proposition that a single judge of this Court could not add to or vary any cost order made by the Court of Appeal and in particular that on 21 February 1996. Then at paras 19-20 it is said:

“The remaining non-review costs, namely those in respect of the appearances before Deputy Registrar Howe and costs incidental thereto, arise for consideration in the exercise of this Court’s supervisory jurisdiction over its own officers. The present proceedings cannot, as I say in my earlier judgment of 6 February 1998, be in any sense a review within the Rules nor an appeal. Rather they arise under the inherent power of this Court to review a taxing officer’s decision “for the Court always retains to itself power to supervise and control the authority which it delegates to its Taxing Officers ……”; see Wentworth v Wentworth (NSWCA, 21 February 1996, unreported) per Clarke JA at 8 cited at page 24 of my judgment of 6 February 1998.
Dealing with the items comprised in the non-review costs that did not involve appearances before the Court of Appeal, it is clear from the Court of Appeal judgment, in particular Clarke JA’s criticism that Miss Wentworth embarked on that attack before the Master without first seeking a reconsideration of the taxation before the Taxing Officer, that the Court of Appeal not only did not but would not have awarded any costs in relation to those applications comprised in the collateral attack; see Clarke JA at 10 quoted at page 17 of my judgment of 6 February 1998. I see no basis for my doing otherwise.”

28    That in turn led to the conclusion of that judgment reached at para 65 which I quote below:

“In all the circumstances, I consider that the proper cost order to be made is that the Defendant should pay the Plaintiff’s review costs on a party and party basis up to but not after 15 July 1997 when the Defendant took no further part in the proceedings. So far as earlier costs of the taxation are concerned, not attributable to the Court of Appeal or otherwise in conflict with its orders and thus not including any collateral attack as described in paras 18 and 20 of this judgment, I would give leave for either party to make application in relation to such costs, but only after the completion of the further assessment pursuant to regulation 80, as elaborated in paras 66 to 68 of this judgment.”

29    What then are the earlier costs of the taxation, “not attributable to the Court of Appeal or otherwise in conflict with its orders and thus not including any collateral attack as described in paras 18 and 20 of this judgment?” The answer to that question is clear enough from a reading of the judgment of Clarke JA of 21 February 1996. Essentially his judgment and the reasoning upon which it depends made clear that the two appeals to the Court of Appeal, namely that of Ms Wentworth and of Mr Peter Wentworth by way of cross-appeal, should have “no order as to costs”. That clearly means that a judicial decision has been made that there should be no costs ordered to either side and that necessarily means that costs are to lie where they fall; see Re Hodgkinson [1895] 2 Ch 190 followed by Taylor J in Trikas v Rheem (Australia) Pty Limited [1964] 81 WN 504 at 506 and more recently Oshlack v Richmond River Council [1998] 193 CLR 72 at 91 per Gaudron and Gummow JJ describing the effect of such an order in those terms. Clearly enough that order is not to be construed as if the Court of Appeal had said nothing at all as to costs. Rather, as the High Court explains, the effect of its order is that, costs are to lie where they fall. That has the result that if a subsequent lower court were to order otherwise, that would impermissibly interfere with an order binding upon that lower court — in this case upon myself as a single judge. 30 That same reasoning led also to conclusions of Clarke JA which can be summarised in these terms. There was to be no recovery of any costs of proceedings before Master McLaughlin where the Master either lacked jurisdiction or should have refrained from exercising jurisdiction. There was no jurisdiction properly exercisable because those proceedings were to challenge decisions made during and as part of a taxation and which would ultimately be reflected in the later final decision and certificate of taxation. Such proceedings were only capable of being brought under the applicable Supreme Court rules after any re-consideration by the Master was completed. Clarke JA was clearly referring to the proceedings which “involved 18 days of hearing before Master McLaughlin between 11 February 1994 and 11 August 1994 that is, before the conclusion of the reconsideration” and which “resulted in at least ten published reasons for judgment which were characterised by the Master as directions to the Taxing Officer” (Clarke JA at 3). The basis for that conclusion is made clear in his summation at page 10:

“As I have sought to point out there is a simple and orderly procedure for the taxation of costs and the reconsideration and review of any taxation. That procedure does not include any provision for the challenging of decisions made during, and as part of, a taxation which would ultimately be reflected in the final decision and certificate of taxation. Where a party complains that a decision announced during the course of the taxation is wrong it is not open to it under the rules to challenge that decision. On the contrary it is required by the rules to await the conclusion of the taxation and then to seek a reconsideration of the taxation. It is only in that way that, the inherent jurisdiction apart, it can challenge the determination.

KW did not do this. Instead she filed a number of pointless applications all of which should, in my opinion have been summarily dismissed by the Master. Unfortunately, the Master initially appears to have entertained them although in his reasons of 16 December 1994 the Master indicated that some of the questions with which he was dealing were also relevant to a review although he had not identified a notice of motion seeking a review of the decision or the reconsideration.

31    However, I should also refer to a particular passage at page 8 of the Court of Appeal decision of 21 February 1996 where Clarke JA assumes that none of these proceedings brought prematurely were made by way of appeal or review pursuant to the Court’s inherent power to supervise and control the authority delegated to taxing officers:

“I should also mention in passing that the rules do not detract from the inherent power of the court (that is the judges) to review a Taxing Officer’s decision for the Court always retains to itself power to supervise and control the authority which it delegates to its Taxing Officers. (see Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 680-1; Cockatoo Dockyard Pty Ltd v Atamain (New South Wales Court of Appeal, 11 August 1995, unreported). Having regard to the detailed procedures in Division 7 of Part 52 of the Supreme Court Rules the occasions for the exercise of the inherent power could be expected to be rare. In the present case it can safely be put to one side as both the Taxing Officer and the Master were exercising their functions pursuant to the power contained in the rules and no appeal was made to the inherent power of the court.”

32    Ms Wentworth submitted that in fact certain of the proceedings before the Master could in effect be characterised as an attempt to invoke the court’s power to supervise and control the authority which it delegates to its Taxing Officers, in that one of the many applications dealt with was directed to attempting to have Deputy Registrar Howe complete the taxation without further delay and another was to get him to issue an interim certificate, in circumstances where there had been undue delay. (Her earlier bias application was not able to be dealt with until I dealt with it, despite strenuous effort by Ms Wentworth to have it dealt with earlier.) Clarke JA, however, in the passage earlier quoted proceeds on the basis that “no appeal was made to the inherent power of the court” by way of supervision. But in any event, it is only for the Court of Appeal, should it entertain any such application, to make any order to permit recovery in any such cases, if persuaded to do so, not for me as a trial judge. Ms Wentworth may seek to have the Court of Appeal review its decision or make further orders, in regard to such instances, this being in circumstances where Deputy Registrar’s determinations have been later set aside under the court’s supervisory jurisdiction. What is clear is that I cannot pre-empt what the Court of Appeal may do. As the judgment of 9 April 1999 makes clear (at para 65), the effect of my anticipated orders is that I would give leave for either party to make application in relation to earlier costs of the taxation — that is to say, non-review costs — but only after completion of the further assessment pursuant to Regulation 80 of the Legal Profession Regulations 1994, as that may bear upon the outcome. Thus any application to the Court of Appeal at this point, when no such assessment has yet taken place, may in any event be premature even if it were to be entertained, though that is for the Court of Appeal to determine if and when any such application is made.

Summing Up

33    To sum up: re-consideration by Deputy Registrar Howe was only completed on 16 August 1994. The decision of the Court of Appeal delivered on 21 February 1996 remains binding upon me. Its reasoning is not negated by the avoidance, though ab initio, of the taxation (save for the interim certificates). Still applicable and binding upon me are the observations of the Court of Appeal concerning the Plaintiff’s failure to wait for any challenge to the taxation till reconsideration was completed by the taxing officer. I am likewise bound by the Court of Appeal’s formal order that there be no order as to costs in relation, inter alia, to those premature proceedings pre-reconsideration. They must lie where they fall. It is true that the Court of Appeal concluded that none of such challenges were based on the inherent supervisory power. In the event that the Court of Appeal were willing to review its earlier finding in that regard and if it were then to determine that any such challenge involved, albeit exceptionally, one or more applications properly to be understood as invoking the inherent jurisdiction to supervise and control the authority which it delegates to its Taxing Officers, that would be a matter for the Court of Appeal. It may (or may not) countenance any such application and if countenanced may nonetheless consider that any such application should only follow after the fresh assessment of costs, which has yet to take place. Certainly my orders and earlier judgment of 9 April 1999 envisage that any application for costs attributable to the taxation be only made after that fresh assessment, so that the implications of what emerges from the assessment can be taken into account.

REMAINING MATTERS

34    Ms Wentworth then again contends that Mr Howe as Deputy Registrar and Taxing Officer is in an administrative position and cannot attract judicial immunity, contrary to the decision that I reached in my judgment of 9 April 1999. However, as was said in Autodesk by Mason CJ at 302:

“It must be emphasised that the jurisdiction [to review or re-hear an issue] is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects as well as it might have been put.”
I am satisfied that this issue is clearly not one which should be reopened; it is a matter for appeal, not review. There is nothing in the Court of Appeal’s subsequent decision in Attorney-General v Kennedy Miller [1999] NSWCA 158 which requires me, applying the relevant principles, to re-open this issue. This is where the Court of Appeal (at para 7) refers to the position of cost assessors being analogous to referees, who as a matter of policy are “to be accorded immunity from cost orders”. They added the proviso upon which Ms Wentworth relies “that this will not necessarily be so in cases where misconduct or lack of good faith is shown”. That issue was dealt with so far as relevant in the detailed reasoning of my judgment.

35    In a similar category is Ms Wentworth’s contention that for the Court not to order costs in favour of the Plaintiff as claimed for the taxation, re-consideration and review, including all the costs of the applications

“necessitated before the Master by the misbehaviour of T/O Howe, supported, aided and abetted by the Defendant and his legal representatives would be grossly unfair”

and that

“the result of the new assessment is irrelevant to the determination of the costs incurred to date, and any such material would be inadmissible in determining the costs occasioned by T/O Howe’s bias.”

36    That submission is elaborated in para 4 of Ms Wentworth’s written submissions of 5 May 1999 as well as in oral argument and again in her Reply. 37    These are all matters which have been argued before me. They are clearly not matters which warrant the exceptional course of re-opening my judgment under the principles that I have earlier set out. The same observation applies to Ms Wentworth’s submissions relating to the non-review costs generally. 38    Finally, I note that Hunter J, in a judgment of 7 June 1999 and a further addendum of 9 June 1999, dealt with two subpoenas of Ms Wentworth. Ms Wentworth concurred in the course of another judge thus dealing with that matter, so that I would not see the subpoenaed material if the subpoena were set aside. He concluded that the relevant material sought to be subpoenaed was not relevant. For that purpose he inspected that material. He too was then asked to re-open his judgment upon Ms Wentworth’s application. Hunter J declined that application; see the addendum.

CONCLUSION

39    I intend now to make the orders essentially as set out in the draft attached to this judgment. Before finalising these orders I will give a final brief opportunity to consider them. I emphasise that any such consideration is not to amount to a re-agitation of the issues already determined and now again revisited. The present application to re-open was not justified under the principles I have earlier set out, involving as it has done the reagitation of issues already determined. The Court time thus expended involves no cost consequences to the Plaintiff, vis a vis the Defendant, as the Defendant has played no role in this phase of the proceedings. Court resources are limited and depend upon the parties respecting the need for finality in litigation. I am certainly not unaware or insensitive to the frustration Ms Wentworth understandably feels at earlier delay in finalising the taxation. But it lies now substantially in her hands how rapidly this is progressed.

DRAFT ORDERS

40    (a) The Defendant pay the costs of these proceedings before me on a party/party basis up to 15 July 1997.

(b) As to the costs to the parties of these proceedings before me after 15 July 1997 there be no order as to costs.

(c) The following costs are reserved, with leave to the parties to make application in relation to such costs, but only after the completion of the further assessment of the costs of the original proceedings before His Honour Mr Justice Bryson to be conducted pursuant to Regulation 80 of the Regulations to the Legal Profession Act . The reserve costs are:

(i) the costs of the taxation hearing before Deputy Registrar Howe,
(ii) the costs of any proceedings in relation to the said taxation incurred subsequent to completion of the re-consideration on 16 August 1994, as have not been the subject of orders as to costs by this Court or the Court of Appeal, including orders to the effect that there be no order as to costs, and
(iii) costs, if any, in relation to the conduct of the said taxation incurred on or prior to 16 August 1994 as have not been the subject of orders as to costs by this Court or the Court of Appeal (an “order as to costs” including orders that there be no order as to costs) being costs which are not precluded from recovery by, or inconsistently with, the terms of the judgment and orders of the Court of Appeal in Wentworth v Wentworth of 21 February 1996 but as may be varied or supplemented by the Court of Appeal if it so determines upon any future application and whether such Court of Appeal judgment be treated as interlocutory or final.


(d) Leave is granted to any party to apply for a certificate under the Suitor’s Fund Act if they so wish and direct that the party notify the Court within 28 days if they wish to make application for such certificate.

(e) The Plaintiff’s application that the Crown in right of the State of New South Wales pay the costs of these proceedings and related matters, be dismissed with no order as to costs.

(f) The Plaintiff’s application that Deputy Registrar Howe pay the costs of these proceedings and related applications be dismissed with no order as to costs.

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Last Modified: 06/30/2000