Wentworth v Wentworth - [2000] NSWCA 350

NEW SOUTH WALES COURT OF APPEAL

CITATION: Wentworth v Wentworth & Ors [2000] NSWCA 350 revised - 26/04/2007

FILE NUMBER(S):
40714/99

HEARING DATE(S): 7 November 2000

JUDGMENT DATE: 15/12/2000

PARTIES:
Katherine Wentworth (Appellant)
Peter Fitzwilliam Neville Wentworth (Executor of the Estate of the Late G N Wentworth) (1st Respondent)
Laurie Glanfield (2nd Respondent)
Ian Hill (3rd Respondent)
Attorney-General in and for the State of New South Wales (amicus curiae)

JUDGMENT OF: Fitzgerald JA Heydon JA Davies AJA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 3748/89

LOWER COURT JUDICIAL OFFICER: Santow J and Hunter J

COUNSEL:
Miss K Wentworth in person (Appellant)
No appearance for the 1st Respondent
Mr P Lakatos (2nd and 3rd Respondents)
Ms N Abadee (Attorney-General)

SOLICITORS:
Miss K Wentworth in person (Appellant)
No appearance for the 1st Respondent
I V Knight, Crown Solicitor (2nd and 3rd Respondents)

CATCHWORDS:

LEGISLATION CITED:
Family Provision Act 1982
Judiciary Act 1903 (Cth)
Legal Profession Act 1987
Legal Profession Reform Act 1993
Racial Discrimination Act 1975 (Cth)
Supreme Court Act 1970

DECISION:
See paragraph 270

JUDGMENT:

CASES CITED:

Aiden Shipping Co Ltd v Interbulk Ltd (1986) 1 AC 965
Anderson v Gorrie [1895] 1 QB 668
Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38
Attorney-General (Cth) v Breckler (1999) 163 ALR 576
Attorney-General v Kennedy Miller Pty Ltd (unreported, Court of Appeal, 31 May 1999)
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Cabassi v Villa (1940) 64 CLR 130
Cannings Ltd v County Council of Middlesex (1907) 1 KB 51
Chappuis v Filo (1990) 19 NSWLR 490
Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49
Commonwealth of Australia v Introvigne (1982) 150 CLR 258
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1
Cummins v McKenzie [1979] 2 NSWLR 803
DMW v CGW (1982) 151 CLR 491
El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596
Ex p Blume; re Osborn (1958) 75 WN (NSW) 411
Ex p McQuellin (1929) 29 SR (NSW) 346
Floyd v Barker (1607) 12 Co Rep 23
Fray v Blackburn (1863) 3 B & S 576
Freeman v Trimble (1906) 6 SR 133
Galea v Galea (1990) 19 NSWLR 263
Gallo v Dawson (1988) 82 ALR 401
Garnett v Ferrand (1827) 6 B & C 611
Grassby v R (1989) 168 CLR 1
Harrington v Lowe (1996) 190 CLR 311
Harris v Caladine (1991) 172 CLR 84
Hill v Van Erp (1997) 188 CLR 159
Horne v Leigh (1906) 7 SR 51
In re McC (A Minor) [1985] AC 528
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Laboudis v Carey (1990) 170 CLR 534
Leicester v Walton (unreported, New South Wales Court of Appeal, 22 November 1995)
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Re McMillan (1905) 5 SR 350
Mann v O'Neill (1997) 191 CLR 204
Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112
Moll v Butler (1985) 4 NSWLR 231
Morier v Rivard [1985] 2 SCR 716
Munster v Lamb (1883) 11 QBD 588
Myers v Elman (1940) AC 282
Nakhla v McCarthy [1978] 1 NZLR 291
News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410
Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 56
Northern Territory v Mengel (1995) 185 CLR 307
Palmer v Clarke (1989) 19 NSWLR 158
Pedley v Morris (1891) 61 LJ QB 21
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Perre v Apand Pty Ltd (1999) 198 CLR 180
Pinebelt Pty Ltd v Bagley (2000) NSWSC 655
Pyrenees Shire Council v Day (1998) 192 CLR 330
QBE Insurance Ltd v Switzerland Insurers Workers Compensation (NSW) Ltd (1996) 134 ALR 433
Rajski v Computer Manufacture and Design Pty Ltd (1982) 2 NSWLR 443
Rajski v Powell (1987) 11 NSWLR 522
Re East; ex p Nguyen (1998) 196 CLR 354
Reid v Howard (1995) 184 CLR 1
Robinson v Patterson [1999] VSC 60
Rogers v Commins (1906) 24 WN 3
Shrewsbury v Wirral Railways Committee (1895) 2 Ch 812
Sirros v Moore [1975] QB 118
Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16
Three Rivers District Council v Governor and Company of the Bank of England (No 3) (2000) 2 WLR 220
TGA Chapman Ltd v Christopher (1998) 1 WLR 12
Vestris v Cashman (1998) 72 SASR 449
Victoria v Sutton (1998) 195 CLR 291
Wentworth v Attorney-General (NSW) (1984) 154 CLR 518
Wentworth v Wentworth (1999) 46 NSWLR 300
Wentworth v Wentworth (4 December 1998, unreported, NSWCA, Handley JA)
Xuereb v Viola (1989) 18 NSWLR 453
Yeldham v Rajski (1989) 18 NSWLR 48

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40714/99
ED 3748/89

FITZGERALD JA
HEYDON JA
DAVIES AJA
15 September 2000

WENTWORTH v WENTWORTH & ORS

On 14 June 1991 Bryson J delivered reasons for judgment favourable to the interests of the appellant, who was the plaintiff in proceedings under the Family Provision Act 1982, against the first respondent.

On 9 August 1991 Bryson J ordered the first respondent to pay the appellant’s costs of those proceedings (with three exceptions).

On 3 March 1992 the Court of Appeal varied Bryson J’s orders in relation to the provision to be made for the appellant, but made costs orders in favour of the appellant in relation to the hearing before Bryson J.

On 21 February 1992 the appellant lodged a bill of costs for taxation consequential to Bryson J’s costs orders, initially claiming $774,866.30 but increasing to $813,000 after amendments. The first respondent objected to most of the claimed items.

In about March 1992, Deputy Registrar Howe (“the Taxing Officer”) taxed the bill in the absence of the parties in an amount of approximately $259,000. Both parties then sought an appointment for hearing under Pt 52 r 50B of the Supreme Court Rules.

On 8 October 1993 the appellant filed a Notice of Motion seeking among other things, a review of the Taxing Officer’s decision not to disqualify himself.

On 16 August 1994 the Taxing Officer issued a final certificate taxing the appellant’s bill of costs in the amount of $264,236.60. He determined that the first respondent was to receive costs of the taxation in the sum of $57,251.24 and all of his costs of the reconsideration.

On 21 February 1996 the Court of Appeal allowed an appeal by the appellant and a cross-appeal by the first respondent. It set aside various orders of Master McLaughlin relating to the taxation and a Certificate of taxation issued pursuant to one of them.

The proceedings were remitted to the Equity Division where they were heard by Santow J in 1997. The basis for the application was that the Taxing Officer should have disqualified himself for bias. The first respondent did not appear after 15 July 1997 following which time the Attorney General appeared as amicus curiae.

On 6 February 1998 Santow J found that the Taxing Officer had conducted the taxation in such a way as to give rise to a reasonable apprehension of the possibility of bias, that the costs orders of the Taxing Officer be set aside and that there be no order for costs for the proceedings before him.

The appellant applied for costs against the Taxing Officer, the Crown in right of New South Wales and the first respondent. On 9 April 1999 Santow J determined that because the Taxing Officer enjoyed “derivative immunity as for a judicial officer of a superior court” the issue of Crown liability did not arise and that the first respondent pay the costs of the proceedings before Santow J up to 15 July 1997.

On 29 June 1999 Santow J rejected the appellant’s application to reopen argument in relation to the costs orders.

On 7 June 1999 Hunter J refused the appellant’s application to inspect subpoenaed documents claimed by the appellant to be relevant to issues to be raised before Santow J in the application to reopen argument in relation to costs. Hunter J refused the appellant to inspect the documents.

This appeal arises from three matters:

Santow J’s refusal of 9 April 1999 to order the Taxing Officer and the Crown to pay the costs of the proceedings before him jointly and severally with the first respondent and his refusal to order that the first respondent pay any costs after 15 July 1997;
Santow J’s refusal of 29 June 1999 to set aside his determination
of 9 April 1999; and
Hunter J’s refusal of 7 June 1999 to allow the appellant inspection of certain subpoenaed documents.

The appellant claimed: that the court has power pursuant to Pt 52A r 4(5)(e) of the Supreme Court Rules to make costs orders against the Taxing Officer and there is no express limitation on that power; that Taxing Officers have no immunity from costs orders because their function is administrative or arbitral rather than judicial; that because the Taxing Officer was biased and lacked good faith, he acted outside any immunity available to him; that because the Taxing Officer committed the tort of misfeasance in public office and knowingly breached a duty of care, he lost any immunity; and that the Crown was either vicariously liable or directly liable for the Taxing Officer’s conduct.

Held, dismissing the appeal:

(obiter) The non-joinder of the Taxing Officer and the Crown as parties to the proceedings below posed insurmountable obstacles to the appeal.
The conduct of the Taxing Officer did not fall outside the immunity traditionally afforded a non-superior court judge because Santow J had not found that he had acted in excess of jurisdiction.
The appellant failed to prove that the conduct of the Taxing Officer constituted the tort of misfeasance in public office or that he had breached a duty of care because Santow J did not make findings of fact necessary to satisfy the key ingredients of those torts.
The appellant has failed to show that the costs orders are unjust or that there was any reason to set them aside.
It is not open to a party to litigation to tender factual issues at one point in time in order to obtain particular orders, and then, when further and different orders are sought at a later stage, without specific leave reserved by the court, to seek additional findings on new evidence.

Held per Davies AJA: Taxing Officers are entitled to the benefit of common law immunity which attaches to judicial officers.

Held per Fitzgerald JA (deciding) and Heydon JA and Davies AJA (agreeing but not deciding): (a) judicial immunity extends to whatever a judge who is a member of a Court does in the exercise of the broad and general authority conferred upon a Court to hear and determine matters; (b) the immunity of judges and masters of this Court applies to court officers taxing costs in proceedings in the Court pursuant to a Court order; and (c) the taxation of costs in the proceedings in the Court was a judicial function carried out by the registrar as Taxing Officer in the exercise of the court’s jurisdiction and powers who therefore enjoyed judicial immunity.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40714/99
  ED 3748/89
FITZGERALD JA
  HEYDON JA
  DAVIES AJA
Friday, 15 December 2000

WENTWORTH v WENTWORTH & ORS.
JUDGMENT

FITZGERALD JA: I agree with the other members of the Court that orders should be made in the terms proposed by Heydon JA. Subject to what follows, I also agree with his Honour’s reasons. Since the judgment of Heydon JA contains a detailed exposition of the circumstances giving rise to these appeals, I will merely summarise the circumstances to which reference is necessary to understand my reasons for my conclusions.
All applications and appeals by the appellant and all material orders have been made in proceedings under the Family Provision Act 1982 in which the appellant and her brother Peter F.N. Wentworth (the “first respondent”) are the only named parties.
Pursuant to Part 52 [1]of the Supreme Court Rules 1970, Deputy Registrar Howe (the “Taxing Officer”) taxed the costs which the first respondent had been ordered to pay to the appellant. Apart from the taxation of those costs, the Family Provision Act proceedings had been concluded by a judgment of this Court on 3 March 1992. The Taxing Officer commenced the taxation of the appellant’s costs at about that time.
The Taxing Officer issued certificates in the course of the taxation. The first respondent paid the appellant the full amount of each of two interim certificates and part of the amount of a third interim certificate. On 16 August 1994, the Taxing Officer issued a final certificate and made orders with respect to the costs of the taxation.
Broadly stated, the Taxing Officer’s determinations, certificates and orders (except the interim certificates to the extent to which they have been paid) have been set aside. That part of the litigation was concluded by orders entered on 1 July 1998 to give effect to reasons for judgment which Santow J had published on 6 February that year. The appellant’s bill of costs in the Family Provision Act proceedings remains untaxed. The first respondent, who is liable for those costs, became bankrupt in August 1999.
These appeals are not concerned with the costs of the Family Provision Act proceedings but with the costs of the taxation of those costs and of proceedings relating to disputes concerning that taxation. The material orders were entered on 23 August 1999 in accordance with reasons for judgment published by Santow J on 9 April and 29 June that year.
The appellant seeks orders in relation to the costs of the taxation and of proceedings relating to disputes concerning the taxation against the first respondent, the Taxing Officer and the State of New South Wales. Neither the Taxing Officer nor the State is named as a party.
The appellant filed the notice of motion on which Santow J made the orders entered on 1 July 1998 almost 5 years earlier, on 8 October 1993. That notice of motion did not seek any order for costs against the Taxing Officer or the State. In a judgment delivered on 12 September 1996, Santow J noted that the appellant had not sought any costs or other relief against the Taxing Officer, but had “… left open the possibility that, depending on the Judgment in these proceedings, she may wish to consider whether to bring any action against the [Taxing Officer] but emphasised she has no such action presently in contemplation.” In his judgment delivered on 9 April 1999, [2] Santow J recorded that when the orders which he had made on the appellant’s notice of motion of 8 October 1993 were made in 1998, “… the [appellant] foreshadowed … that she would be putting submissions that costs orders should be made against both the [first respondent] and, as had not previously been foreshadowed, against [the Taxing Officer].” However, it was not until 19 March 1999 that the appellant notified the Taxing Officer of her intention to seek costs orders against him. As I understand the position, even then the appellant did not notify the State of her intention to seek costs orders against it. Neither the Taxing Officer nor the State was ever joined as a party in the Family Provision Act proceedings and neither is a respondent to any notice of appeal.
It is unnecessary for me to discuss either the relationship between Part 8 and Part 52A.4(3) of the Supreme Court Rules[3] or the procedure which should be followed when a costs order is sought against a person who is not a party. [4] Neither the Taxing Officer nor the State could properly have been joined as a party to the Family Provision Act proceedings for the purpose of obtaining costs orders against them more than 7 years after the judgment on the Family Provision Act claim and months after the judgment setting aside the Taxing Officer’s decisions and certificates. I agree with Heydon JA that, for the reasons given by his Honour, neither the Taxing Officer nor the State is legally a party notwithstanding that he or it is not named as a party.
While I am in general agreement with Heydon JA’s reasons, I would refuse the appellant’s applications for costs orders against the Taxing Officer and the State on the broad ground that the application is misconceived. It necessarily follows that the appeal against the interlocutory order made by Hunter J on 7 June 1999 should also be dismissed.
Sections 22 and 23 of the Supreme Court Act 1970 confirm the breadth of this Court’s jurisdiction. Even in the absence of express statutory power, the Court’s jurisdiction includes power to order costs. [5] Subsections 76(1)(a) and (b) of the Supreme Court Act provide that, subject to that Act and any other Act and to the rules, [6] costs are in the discretion of the Court which has “… full power to determine by whom and to what extent costs are to be paid..”. Left unaffected, that power would permit orders for costs against persons who are not parties to the proceedings in which the order is made.[7]
However, the introductory words of s 76 of the Supreme Court Act permit the scope of the Court’s power to be confined by the rules. [8] That has been done. The provisions of most importance for present purposes are in Part 52A.4 [9] which, so far as material, provides:
“[52A.4] Powers of the court generally
(1) The powers and discretions of the court under section 76 of the Act … shall be exercised subject to and in accordance with this Part.
(2) Subject to subrule (5), the Court shall not, in the exercise of its powers and discretions under section 76 of the Act, make any order for costs against a person who is not a party.
(3)          … a person shall not be made a party for the purpose of making an application for costs against the person.
…
(5)          Subrule (2) shall not limit the power of the court to make any order -
(a)          under rule 43 or Part 42 rule 7(f);
(b)          for payment by a relator in proceedings of the whole or any part of the costs of a party to the proceedings;
(c)          for payment by a person who -
(i)           is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings; and
(ii)          fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach;
(d)          for payment by a person who has committed contempt of court or an abuse of process of the Court of the whole or any part of the costs of a party to proceedings occasioned by the contempt or abuse of process;
(e)          in exercise of its supervisory jurisdiction over its own officers;
(f)           against a person who purports without authority to conduct proceedings in the name of another person; or
(g)          against a person who commences, carries on, enters an appearance in, or defends proceedings as the authorised director of a corporation, or purports to do so.
(6)          Save as mentioned in subrules (1) - (5) this Part has effect subject to the Act and to the rules and subject to any other Act.”
The State is bound by the Supreme Court Act [10], and the Court has power to make costs orders against the State in proceedings in which it is a party. However, none of the paragraphs of Part 52A.4(5) is applicable to the State in the present circumstances, and there is plainly no power to make the order for costs which the appellant seeks against the State in the Family Provision Act proceedings to which it is not a party. [11]
The appellant argued that the Court has power to make the order for costs which she seeks against the Taxing Officer pursuant to Part 52A.4(5)(e) of the Rules. She submitted that the Taxing Officer was at the material time an officer of the Court, that the Court may make an order for costs against a Court officer in the exercise of its supervisory jurisdiction over its own officers although he or she is not a party to proceedings, and that the conduct which she alleges against the Taxing Officer makes such an order appropriate on this occasion.
Part 52A.4(2) and 5(e) present more difficulties than the appellant’s submission suggests. One problem is that it is unclear who are Court “officers” for the purpose of Part 52A.4(5)(e). While there is a considerable body of law dealing with the Court’s power to make costs orders against solicitors in proceedings to which they are not parties on the basis that they are officers of the Court,[12] the definition of “officer of the court” in Part 1.8 and the specific provisions with respect to costs orders against lawyers in proceedings in which they are not parties [13] suggest that Part 52.4(5)(e) is not concerned solely with costs orders against lawyers if it is concerned with them at all. [14] In other contexts, it has been held that a receiver appointed by the Court is a court “officer”[15] but that a referee appointed under Part 72 is not. [16] The distinguishing characteristics of a court officer who is amenable to the court’s supervisory jurisdiction have not been precisely and comprehensively defined. While the Taxing Officer is undoubtedly an officer [17] of the Court under Part 8 of the Supreme Court Act, it does not necessarily follow that he is an officer who the Court can order to pay the appellant’s costs of the taxation and of proceedings relating to disputes concerning that taxation in the exercise of its supervisory jurisdiction in accordance with Part 52A.4(5)(e).

Part 52A.4(5)(e) refers to the Court’s “supervisory jurisdiction over its own officers” but neither the Supreme Court Act nor the rules contain a clear indication of the nature and extent of that jurisdiction and, in particular, of the Court’s power to make costs orders against its officers other then lawyers. The Court’s jurisdiction, including both its jurisdiction under s 23 of the Supreme Court Act and its inherent jurisdiction, is undoubtedly broad and flexible, but (constitutional limitations aside) is not unlimited. [18] No reported case has been found in which an order such as the order sought by the appellant against the Taxing Officer has been made. While novelty is not necessarily a badge of error, in the present context it provides a reason to proceed cautiously.
The final problem associated with Part 52A.4(2) and (5)(e) to which I propose to refer is that their meaning is ambiguous. On one possible view the two provisions in conjunction simply preserve whatever power the Court had apart from s 76 of the Supreme Court Act to make costs order against its officers in the exercise of its “supervisory jurisdiction” subject to any limitations on that power. An alternative view is that the effect of Part 52A.4(2) and 5(e) is that the Court has the unqualified power provided for in s 76(1)(a) and (b) of the Supreme Court Act to make costs orders against its officers subject only to discretionary factors and principles developed to govern the exercise of the discretion to ensure that the exercise of the power is confined within proper limits. [19]
However the matter is approached, a costs order should not be made against the Taxing Officer if he is, or but for Part 52.4(5)(e) would have been, entitled to immunity in respect of the conduct which the appellant alleges against him. If, contrary to my view, [20] part 52.4(5)(e) is wide enough to permit the Court to make a costs order notwithstanding any immunity which a Court otherwise would otherwise have, the proper exercise of that discretionary power would require the Court to refuse to make an order for costs which would disregard that immunity.
The appellant argued that the Taxing Officer is not entitled to immunity in respect of the conduct which she alleges against him but is liable to be sued [21] and to the orders for costs which she seeks. She submitted that Court officers such as the Taxing Officer are not entitled to immunity and that, in any event, even judges are not entitled to immunity in respect of allegations of actual bias and malice because such conduct is necessarily in excess of jurisdiction and known to be so. I will deal with the latter issue first.
In Re East; ex parte Nguyen [22] the applicant, a man of Vietnamese origin who professed little fluency in English, was charged with armed robbery in Victoria. He was committed by the Magistrates Court to the County Court, where he pleaded guilty and was sentenced. He subsequently commenced proceedings in the original jurisdiction of the High Court seeking orders of certiorari and declaratory relief. He contended that, by reason of his lack of ability in speaking and understanding English and the absence of an interpreter while he was giving instructions to his lawyers and at his court appearances, he was a victim of racial discrimination of a kind rendered unlawful by s 9 of the Racial Discrimination Act 1975 (Cwlth). His proceedings were dismissed. The High Court held that the respondents were protected from any allegation that they were subject to legal redress on the ground of an alleged contravention of s 9 of the Racial Discrimination Act by reason of their immunity from suit.
All members of the Court except Kirby J (who delivered a separate concurring judgment) were parties to a joint judgment which acknowledged that the immunity of “judicial officers” is absolute when they act “in the exercise of their judicial function or capacity.” Their Honours stated: [23]
“.. apart from the particular facts of this case, there are more fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act.
First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity.”
Kirby J noted that the Racial Discrimination Act “… was written against the background of the established principles of the Australian legal system by which judicial officers are personally immune for their conduct in the course of performing their judicial duty”[24] and later said: [25]
“Thirdly, when the Act was enacted the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct, in a particular case, unlawful, well established principle would require that the Parliament should say so expressly. If independent judicial officers were to be subject to complaint of allegedly “unlawful” conduct before agencies of the Executive Government, longstanding principle would require that this be expressed in plain terms. In particular, if it had been the purpose of the Parliament to render judicial officers of State courts amenable to such federal remedies (assuming that to be possible), it might have been anticipated that the Parliament would have said so. These considerations make it unthinkable that the unlawfulness mentioned in s 9 was intended to apply to judicial officers at all and, in particular, to the judicial officers of a State, such as those against whom the applicant sought relief.”
The proposition advanced by the appellant that the doctrine of judicial immunity is inapplicable to allegations of actual bias and malice stems from confusion which resulted from statements made in the English Court of Appeal in Sirros v Moore. [26] That confusion has led to a number of unwarranted, unsuccessful proceedings against judges. [27]
Although Sirros [28] was not such a case, it was there suggested that the doctrine of judicial immunity does not apply “.. if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.” [29]Unless it is properly understood, this suggested exception to judicial immunity will continue to lead to litigation which is incompatible with the necessity on which the doctrine is founded. [30] Judicial immunity is an essential corollary of judicial independence, which requires that judges be free to administer justice free from not merely the risk of personal liability but also the burden of resisting the claims and allegations of disaffected litigants. The protection which judicial immunity is intended to provide to those who perform the controversial but essential function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate. Decisions subsequent to Sirros [31] illustrated that, if judicial immunity is subject to the exception there suggested, the exception is unlikely to have any practical utility. There seems to be no reported case in Australia or England in which effect has been given to the suggested exception and attempts to do so here have failed.
Reference was earlier made to the breadth of this Court’s jurisdiction. [32] The Court is a superior court of record with general jurisdiction and responsibility for the administration of justice in this State. It cannot be deprived of jurisdiction except by statutory provisions which do so expressly or by necessary implication. It is what it sometimes described as a superior court of unlimited jurisdiction to distinguish it from superior courts of special jurisdiction and inferior courts and tribunals which have been established by legislation for purposes specified in the statutes. However, no Australian court is truly a court of unlimited jurisdiction. Each is subject to constitutional and statutory limitations upon the controversies which are justiciable before it and the orders which it may make. It is technically possible for a judge to purport to adjudicate in a dispute which he or she knows is not within his or her court’s jurisdiction or to make orders which he or she knows his or her court has no authority to make. The exception to the doctrine of judicial immunity suggested in Sirros [33] is directed only to that possibility.
There is no present purpose in investigating whether, without the exception to judicial immunity suggested in Sirros, [34] there is a difference between the immunity afforded at different levels of the judicial hierarchy or whether the suggested exception would eliminate that distinction. What is patently clear is that the exception to judicial immunity suggested in Sirros [35] does not exclude immunity for misconduct of any kind in the exercise of the jurisdiction of a court of which the judge who engaged in the misconduct is a member.
Any notion that the doctrine of judicial immunity does not apply if there was actual bias and/or malice in a judge’s exercise of his or her court’s jurisdiction is inconsistent with a long line of authority including Sirros,[36] in which Lord Denning said: [37]
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus or a writ or error or certiori or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”
A judge is acting within jurisdiction for this purpose if he or she is exercising a jurisdiction which the court of which he or she is a member possesses. That is made clear by the decision of the New Zealand Court of Appeal in Nakhla v McCarthy. [38] Woodhouse J, speaking for the Court, said: [39]
“… we are in no doubt that when the principle of judicial immunity is discussed in the cases in relation to acts done within the jurisdiction of the judge that word must be regarded as referable to the broad and general authority conferred upon his court and upon himself to hear and determine issues. … ‘authority to decide’ is the test, not the mode of decision nor the manner in which the powers … have been exercised or not exercised.”
That passage from Nakhla [40] was applied by Wilson J in Gallo v Dawson. [41] McHugh J refused to extend the time for appeal and said:[42]
“The order made by Wilson J, based as it was on principles of judicial immunity almost four hundred years old was unquestionably correct. An appeal against it would have no prospect of success.”
An appeal against McHugh J’s decision was dismissed by a Court consisting of Mason CJ, Brennan, Deane, Toohey and Gaudron JJ. [43] In a joint judgment, the Court said: [44]
“… we agree with McHugh J that Wilson J was clearly correct in concluding that the appellant’s case must fail by reason of the long established principle of judicial immunity applying to acts done by a judge in the course of the performance of judicial duties.”
In Yeldham v Rajski, [45] Hope AJA, with whom Priestley JA agreed, described the proposition for which Wilson J in Gallo [46] cited Nakhla [47] as “well established”.
Yeldham [48] followed the earlier decision of this Court in Rajski v Powell, [49] which was cited with approval in both judgments in the High Court in Re East. [50]
In Rajski, [51] Priestley JA made it clear that immunity is afforded to judges in their exercise of the jurisdiction of the court of which they are members and that the immunity is absolute. [52] “No question of good faith can arise in such cases.” [53]
Kirby P considered an application by the plaintiff to amend his statement of claim to bring his claim within the suggested exception. [54] The nature of the application appears from the following passage: [55]
“The [plaintiff] contended that, properly repleaded, he would be able to establish a case against the [judge] upon the ground that a tribunal of fact could conclude from the conduct of the [judge] alleged in the particulars that, although purporting to perform judicial duties, sitting in Court and wearing judicial robes, the [judge] had by his conduct actually stepped outside his jurisdiction and must, by his training and position, have known that such was the case. In such circumstances, the [plaintiff] urged that the Court would not forbid him the opportunity, after repleading, to present his case for redetermination on the merits.
….
…. the [plaintiff] argued that the immunity conferred upon [judge] was limited to his performance of his judicial function in the determination of issues. It did not extend to forays into personal abuse, advice allegedly given to the [plaintiff] to drop his case against a firm of solicitors and conduct involving sheriffs’ officers said to have been designed to oppress and intimidate the [plaintiff]. To the extent that the [judge] so conducted himself, the [plaintiff] argued that he should have the opportunity of a decision at a trial as to whether such conduct was in knowing excess of jurisdiction, so as to deprive the [judge] of the judicial immunity he otherwise enjoyed in the trial of issues.”
Although acknowledging arguments which appeared to lend support to the plaintiff’s contentions, Kirby P concluded that the doctrine of judicial immunity protected the judge against the allegations which the plaintiff sought to make against him. After noting that judicial immunity “ .. is a principle which appears to be fundamental to all jurisdictions of the common law” [56] and quoting a passage from the judgment of Warren CJ in Pierson v Ray [57] in which it was acknowledged that the immunity applies even when a judge is accused of acting maliciously and corruptly, his Honour continued:
“Attempts to modify, qualify or limit the scope of the immunity so conferred are made against a background of the enduring and universal features of the principle so established. Although exceptions have been provided, immunity has been consistently upheld save in the most exceptional cases where a judicial officer acts knowingly in the clear absence of all jurisdiction. …. . ..‘jurisdiction’ in this context means the judicial power to hear and determine a matter. It does not mean the manner, method or correctness of the exercise of that power. It is a word, in the context, to be construed broadly in order to ensure that the issue of judicial immunity does not come to depend upon the determination of fine questions of jurisdiction ….”.
In subsequent passages, [58] Kirby P sought to draw a distinction between “… nice questions [of jurisdiction], determined by reference either to the issues in the pleadings or to conventional curial conduct from which it was said the judicial officer has departed”, and “… circumstances where the lack of jurisdiction is so clear that it indicates not just error of fact, law or jurisdiction but a deliberate abandonment of the judicial function.” Whatever is involved in that distinction, it plainly does not give any significant content to the suggested exception. That is made plain by Kirby P’s subsequent adoption of the following passage from the judgment of Lord Bridge in Re McC (a minor): [59]
“The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.”
In Yeldham, [60] this Court dismissed proceedings for contempt of court which had been brought against a judge who had refused leave to prosecute a witness for perjury on an application under s 340 and 341 of the Crimes Act 1900. It was held that, although the judge’s decision was administrative or ministerial, it was intimately or immediately associated with his judicial function and attracted the same immunity from suit.
The breadth of judicial immunity is illustrated by an example given by Kirby P in Yeldham. [61] After observing that a judge, like any other citizen, is liable for a breach of the criminal law or for a civil wrong where the acts or omissions occur in private life outside the performance of judicial functions, [62] his Honour said: [63]
“If a judge were to accept a bribe and enter judgment for the party who offered such inducement, that judge would remain immune from suit for damages occasioned by his judicial act. But he or she would be liable to the criminal law for the offences constituted by the taking of the bribe. Liability to removal from office would also follow. But the judicial act, being within jurisdiction, would be immune from suit:”
Later, his Honour added: [64]
“Judicial immunity protects the judge:
In the United States, where there have been more proceedings of the present character than in this country, the Supreme Court has identified two specific factors to be considered in determining whether, for the purpose of attracting judicial immunity, an act impugned is “judicial”. The first consideration is “the nature of the act itself”, that is, whether it is a function normally performed by a judge. The second consideration is “the expectation of the parties”, that is, whether the parties dealt with the judge in his or her judicial capacity: ..
…
In the present case, if the nature of the act and the expectation of the
parties are taken into account, it is appropriate to classify the decision of the
claimant under s 341 as a judicial function, thus attracting judicial immunity.”
Hope AJA, with whom Priestley JA agreed, cited Rajski [65] as authority for the proposition that “… it is well established that a judge of the Supreme Court cannot be made liable in civil proceedings for anything done by him in the performance of his judicial functions and within jurisdiction, even though he acts maliciously or corruptly….”. [66]
Later, [67] Hope AJA noted that the party who had charged the judge with contempt of court relied upon the statement of Lord Denning in Sirros [68] in which his Lordship had said that if a judge had accepted bribes or been in the least degree corrupt or perverted the course of justice he could be punished in the criminal courts.[69] Hope AJA said: [70]
“As it seems to me this statement, upon analysis, does not support the plaintiff's contention. If a judge has been bribed, the contempt is the giving and receiving of the bribe. What the judge does in court following the receipt of the bribe may be relevant to establish mens rea or otherwise, but it is not the act of contempt. As it seems to me, this position was clearly explained as long ago as the decision in Floyd v Barker [(1607) 12 Co.Rep. 23; 77 ER 1305] in the passage which I have quoted. A conclusion that the law of contempt does not apply to the acts of a judge in the exercise of his judicial function does not mean that a person who happens to be a judge is not liable to be charged with contempt. It simply means that the law of contempt does not apply to extend to the acts of a judge in the performance of his judicial function. If a judge bribes another judge, or if he publishes a statement urging the conviction of an accused person in a current trial, he will be as guilty of contempt as any other person. The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings. In the course of the exercise of their functions, judges often, for example, have to decide whether a person is telling the truth or lying and to say so in their judgments. If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, the independence required of judges would be greatly eroded. I can see no basis for distinguishing this situation from the undoubted position in respect of civil proceedings and in my opinion the same position does apply, and acts or statements by judges in the course of exercising their judicial functions do not fall within the law of contempt.”

Subsequently, Hope AJA said that the exercise of jurisdiction under s 340 and 341 of the Crimes Act, whatever its technical nature, was ancillary to the proceedings in which the perjury was alleged to have been committed and, although the power might be a ministerial one, it was immediately associated with and flowed directly from the exercise by the judge of his judicial function. [71] His Honour’s judgment concluded:[72]
“The policy reasons which support the inapplicability of the law of contempt to the judicial acts of judges are equally applicable to the exercise by judges of powers under s 340 and s 341(1). These powers are incidental to, indeed (1989) 18 NSWLR 48 at 73 an extension of, the judicial function of presiding at the trial. They are “intimately associated” with those functions. They are required to be exercised by a judge or magistrate who has direct knowledge, by reason of presiding at the trial, of the evidence given by the alleged perjurer and of the other evidence in the matter. The independence which judges are required to have in the conduct of the trial is equally applicable to the exercise by them of the powers given to them by these provisions. In my opinion the connection between their exercise and the exercise of the judge's judicial functions at the trial is so close that it should be concluded that their exercise by judges is not the subject of the law of contempt. It is only necessary for the purposes of the present case to come to this conclusion in relation to judges of superior courts. I would have thought that the same conclusion should be reached in relation to their exercise by judges of inferior courts and by magistrates but it is not necessary to decide this question for present purposes.
In my opinion the summons should be dismissed. The plaintiff should pay the costs of the summons and of the notice of motion.”
In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of “… the broad and general authority conferred upon a court to hear and determine the matter.”[73] If a Judge had in his or her exercise of the Court’s jurisdiction and powers performed the functions performed by the Taxing Officer and in the course of doing so engaged in the conduct which the appellant alleges against the Taxing Officer, it is beyond dispute that that judge would be protected by the doctrine of judicial immunity.
Of course, the Taxing Officer is not a Judge of the Court. It is also correct that there is modern authority which proceeds on the basis that judicial officers of inferior courts are not entitled to immunity in respect of “.. something like misconduct, corruption or perversity…”. [74] Further, while this Court has held that private referees [75] appointed under Part 72 of the rules and costs assessors [76] appointed pursuant to the Legal Profession Act 1987 and the Legal Profession Reform Act 1993 are entitled to immunity, the question whether that immunity extends to misconduct or bad faith was left open. [77] However, the Court’s Masters and Registrars are integral parts of its organisational structure through which its jurisdiction and powers are exercised.
Section 25 of the Supreme Court Act provides that the Court is composed of the Judges, and s 40(1) provides that all proceedings and business arising out of proceedings “… shall be heard and disposed of before a Judge…”.
By Part 8 of the Supreme Court Act, Masters and Registrars are officers, not members, of the Court. Nonetheless, Masters and Registrars perform judicial functions [78] subject to supervision and review by the Judges. Section 40(2) provides: [79]
“(2) Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before a master or before a registrar or other officer of the Court.”
Sections 117A and 118 of the Supreme Court Act and Part 60 of the Rules provide for and control the exercise of the Court’s power by Masters. Section 121 of the Supreme Court Act, which is supplemented by Part 61 of the Rules and other rules, [80] provides:
“121.      (1)          In this section “officer” means a registrar, taxing officer, or other officer of the Court.
(2)          An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer.
(3)          A judgment given or an order made by an officer may be set aside or varied by the Court.
(4)          Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer.
(5)          An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2).”
The scheme established by the Supreme Court Act and the Rules was considered in Commonwealth of Australia v The Hospital Contribution Fund of Australia. [81] The High Court held that a Master of this Court had jurisdiction to determine a claim to privilege which had been made by a Commonwealth Minister to whom a subpoena had been directed in litigation in this Court in which the Hospital Contribution Fund had sued the Minister on behalf of the Commonwealth. It was decided that Federal jurisdiction had been invested [82] in this Court as an institution and not in the judges of which it is composed, and that, although the Master was not a member of the Court, he constituted the Court for the purpose of the exercise of powers conferred upon him under the Supreme Court Act and Rules.
Gibbs CJ, with whom Stephen and Aickin JJ agreed, said at p 54 that “… the master is not a component part of the court, in the sense that a judge is, but … he constitutes the court for the purpose of the exercise of the powers conferred upon him - that is, of course, not for all purposes.” [83] Subsequently, his Honour described masters as “… officers of the court who are an integral part of its organisation and who, under the State law, exercise its powers and jurisdiction.” [84]
Later, the Chief Justice said: [85]
“The jurisdiction and powers of the court do not cease to be its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the manner in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was ….. part of the organisation through which the powers and jurisdiction of the court were exercised ….”
There are historical and other [86] differences between the offices of master and registrar. In general terms, masters exercise a broader jurisdiction and wider powers than registrars who have more extensive administrative functions than masters. However, there are no distinctions of present significance. The alleged conduct of the Taxing Officer upon which the appellant founds her claim to an order that he pay her costs occurred, if and to the extent that it occurred, in his exercise of the Court’s jurisdiction and powers which had been delegated to him by the Supreme Court Act and the Rules and orders of the trial judge and this Court in the Family Provision Act proceedings .
In Sandback Charity Trustees v North Staffordshire Railway Co, [87] Brett LJ, with whom Cotton LJ concurred, said that it had been decided by Owen v London and North Western Railway Co [88] that “… the grounds on which the Courts exercise a jurisdiction in a matter of taxation is that the office of taxing costs is the business of the Court itself; that this office is delegated to one of its officers, and that the Court has necessarily jurisdiction to control this delegated authority, and therefore a right to review the .. taxation.” [89] Confirmation that the taxation of costs by a court officer is “the business of the Court itself” and a delegated judicial function is to be found in the history by which the taxing of costs by court officers developed [90] and the nature of the powers exercised by taxing officers.[91] Consistently with this view, it has been held that the absolute privilege which attaches to statements made in the course of judicial proceedings [92] applies to statements made in the course of a taxation. [93]
In Attorney General (NSW) v Kennedy Miller Television Pty Ltd [94] in which the Court upheld a cost assessor’s claim to immunity, the Court followed by analogy its earlier decision in Najjar v Haines. [95] Najjar [96] proceeded on the basis that the Court had power to make a costs order against a referee which it had appointed although he was not a party to the proceedings unless the referee was entitled to immunity.[97]
It was held that a referee appointed by the Court is entitled to immunity as a matter of policy.
Kirby P said: [98]
“…. I have (with the other members of the Court) concluded that the common law immunity from an order for costs of a proceeding which miscarries, enjoyed by judicial officers, extends to a referee appointed by the Court under the Supreme Court Rules, Pt 72. I do so for the following reasons:
1. The judicial immunity is not accorded to judicial officers because of (1991) 25 NSWLR 224 at 234 their status, education or titles. It is accorded because it is essential to the performance of their actual functions as judicial officers. Those functions require independence and removal from the risk that a disaffected party (of whom there is usually at least one) will challenge a determination and seek to make the person determining the dispute liable for damages and costs. If the determiner stood at risk of such liability, he or she would be under an intolerable pressure to consider personal consequences of any determination instead of the merits only of the matter in contest;
…..
3. Under Pt 72 r 3(2), a referee may be a judge, master, registrar or other officer of the court. This provision underlines what is in any case apparent, namely the integration of the referee in the decision-making procedures of the Supreme Court. It would be an absurd consequence if a judge or master performing functions, as such, in the court were provided with the ordinary judicial immunity but not so provided if appointed, for a particular reason, to be a referee pursuant to the subrule;
….
5. The Court has, in a number of recent cases, extended judicial immunity although the judicial officer concerned was not performing an office as a judge but as persona designate appointed by statute. The Court has extended the immunity because the decision attacked was one “so intimately or immediately associated with the judicial functions as to attract the same immunity from suit as extends to acts or statements of judges in the course of exercising their judicial functions”: see Yeldham v Rajski (1989) 18 NSWLR 48, applying Stump v Sparkman 435 US 349 (1978); see also Rajski v Powell (1987) 11 NSWLR 522. By parity of reasoning, the referee's activities following appointment under the Supreme Court Rules, Pt 72, are so intimately and immediately associated with the judicial function of providing a judgment of the court following the referee's report, that the same rule should apply; and
….… . … at least in a case such as the present where the cloak of immunity is sought to defend a projected entitlement to an order for costs based upon a report vitiated for reasonable apprehension of bias, the common law immunity will apply. It is not as if this is a case of actual bias, still less of fraud or deliberate wrong-doing. It is unnecessary in the proceedings to determine whether, in such cases, the common law immunity against suit and for liability could be invoked by the referee. It can certainly be invoked here.”
Clarke JA said: [99]
“In the present case there was no occasion to join Mr Morris unless it was open to the appellant to seek an order for costs against him in the appeal. This aspect of the matter was argued upon the basis that the principles that govern an arbitrator's immunity from suit applied to a referee and little attention was directed to the difference between a referee and an arbitrator and the fact that the Court was not concerned with an action against the referee but a claim for costs against him which was made in an appeal from a judicial decision in an existing action in which he was not a party.
This approach was, in my respectful submission, misconceived not only because it assumes that the same principles apply both to arbitrators and referees appointed under the Supreme Court Rules, Pt 72, but also in its failure to recognise that there may be fundamental difficulties in an appeal court making a costs order against a person who was not a party to the proceedings below.
….
But that situation is quite different from the present. The referee was not a party to the proceedings. On the contrary he was deputed to perform major judicial functions in the resolution of the dispute between the parties at the trial level and the question which is raised is whether he, unlike a judge, master, or even jury, can be ordered to pay the costs incurred during the reference and later proceedings.
A judge is not liable to pay the costs of any party where an appeal is granted on the grounds of the apprehended bias of that judge. This is, no doubt, because a judge is immune from any action, be it for costs or otherwise, in respect of acts performed in the exercise of his or her judicial function: see Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48 and Sirros v Moore [1975] QB 118 at 132 per Lord Denning.
….
It has not yet been decided whether a referee appointed under the Supreme Court Rules, Pt 72, is entitled to immunity from action and, if so, the extent of that immunity. It is clear to me that if Mr Morris is entitled to immunity from action in the circumstances of this case then there would be no basis upon which the court could properly exercise its discretion to award costs against him in respect of the proceedings on the reference and before Giles J. Accordingly, it is necessary to look at the question of a referee's immunity.
In this respect I should observe at the outset that, for reasons which I have already given, I do not think assistance is to be gained from a consideration of the cases dealing with an arbitrator's immunity at common law.
In the absence of authority the Court is bound to determine the question whether the referee should be accorded immunity and the extent of that immunity upon considerations of policy.
The major consideration in favour of granting to the referee immunity from action is that he or she is performing functions which are important to the decision-making in judicial proceedings before the Court. While the role of a referee cannot be equated with that of a jury there are important similarities in so far as they both seek to provide answers to factual disputes before the Court and neither of them gives a decision which is capable of being enforced as a judgment of the Court. Of course there are significant differences. …. Quite apart from these considerations the members of the jury do not elect to try the facts in the case - once called and empanelled they are bound to do so and they receive payment from the State.
In these latter respects they are in a similar position to a judge but in quite a different one from the referee appointed under the Supreme Court Rules, Pt 72, who is paid by the parties and is not obliged to sit on a reference. The absolute right of a person nominated as a referee to decline to act in that capacity assimilates his or her position, to that extent, with that of an arbitrator's as also does the fact that a referee is paid by the parties.
For my part I would conclude that as a matter of policy, at least where there is no question of fraud or good faith involved, a referee appointed pursuant to the Supreme Court Rules, Pt 72, should be accorded an immunity from action. The consideration which leads me to that view is, primarily, the role played by the referee in the resolution of a case properly before the courts and which culminates in a judgment of the Court. Those factors which have led to the development of the doctrine of judicial immunity, such as the overriding importance of the need for a judge to act independently and without fear of harassment by action, apply also, in my opinion, in the case of a referee who is acting, in a sense, as a deputy judge.
I recognise that there are countervailing considerations which would support the view that a referee who has negligently carried out his or her fact finding task and thereby caused one or both of the parties considerable loss should be required to pay for that loss. This is an argument which has been pressed heavily in claims against arbitrators but has, in my opinion, much less force when the referee is appointed to take an important part in the resolution of a court dispute and whose determination is open to the close scrutiny of the court.
It necessarily flows from this conclusion that it would not be a proper exercise of judicial discretion to order that Mr Morris pay costs. Consequently, the motion for his joinder should be dismissed.
There are, however, two observations which I would wish to make. First, there is much to be said for the view that the immunity of a referee (1991) 25 NSWLR 224 at 251 appointed under the Supreme Court Rules, Pt 72, should be the same as that of a judge. The policy considerations to which I have adverted support this view but, as it is unnecessary to resolve the question in this appeal, I prefer to reserve my opinion on it for another day.
In addition, as Rogers A-JA has pointed out, this view is consistent with the opinion of the United States Circuit Court of Appeals, expressed in Ashbrook v Hoffman 617 F 2d 474 (1980), and has found legislative expression in Victoria: Supreme Court Act 1986 (Vic), s 27A inserted by s 8 of the Courts (Amendment) Act 1990 (Vic).”
Rogers AJA said: [100]
“Immunity of referee:
In considering whether judicial immunity should attach to a referee it is necessary to examine the nature of a reference and the question whether the referee has the same immunity as a judge or any immunity of that kind. It has to be remembered that a referee, in contra distinction to the usual situation of arbitrators, who are consensually appointed by the parties, is an appointee of the court to whom, by order of the court, are entrusted many of the functions commonly appertaining to a judge. What then is the difference between a judge and a referee? Is the difference of such a kind that different concepts of immunity should apply?
There is no doubt that there are distinct personal and functional differences between judges and referees. As to functional difference in the discharge of duties, they are again twofold. First, the referee is not required to conduct a reference as though it were a trial and the referee were a judge (Xuereb). …. A judge is, with some exceptions (for example, Supreme Court Act, s 82) required to adhere to the rules of evidence. A referee is not. A judge cannot use personal knowledge beyond the parameters of judicial notice. The whole rationale for appointing a technical expert is that the referee should draw upon the technical knowledge in which the expertise resides. A judge cannot make inquiries and cannot gather information except in the presence of the parties.
…
Secondly, in the functional field, there is the fact that the referee makes no decision. He expresses an opinion to the court.
Immunity attaches to a judge in the performance of judicial duties not as a privilege of rank but as a requirement for the proper and effective discharge of the judicial function and for the more efficient administration of justice. Is the function of a referee sufficiently similar as to call for the same immunity?
This Court has recently re-affirmed that, in relation to matters in the execution of judicial duties, a judge has absolute immunity. …
This immunity rests on public policy. …”

Later, his Honour said: [101]
“In the United States, Circuit Courts of Appeal have uniformly stated that ‘nonjudicial officials whose official duties have an integral relationship with the judicial process have also been held to have absolute immunity for their quasi-judicial conduct’. In Ashbrook v Hoffman 617 F 2d 474 (1980), the Court said (at 476):
‘Other nonjudicial officials whose official duties have an integral relationship with the judicial process have also been held to have absolute immunity for their quasi-judicial conduct. See, eg, Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128 (1976) (prosecuting attorney has absolute quasi-judicial immunity for those activities intimately associated with the judicial phase of the criminal process); Kermit Construction Corp v Banco Credito Y Ahorro Ponceno 547 F 2d 1 (1st Cir 1976) (receivers absolutely immune even though engaged in ministerial acts); Lockhart v Hoenstine, 411 F 2d 455 (3d Cir), cert denied, 396 US 941, 90 S Ct 378, 24 L Ed 2d 244 (1969) (prothonotaries absolutely immune); Stift v Lynch, 267 F 2d 237 (7th Cir 1959) (justices of the peace enjoy quasi-judicial absolute immunity). The same policies which underlie the grant of absolute judicial immunity to judges justify the grant of immunity to those conducting activities intimately related to the judicial process. See Imbler v Pachtman, 424 US at 423-24, 96 S Ct at 991-992, Note, 68 Harv L Rev 1229 (1955). On one hand is the policy that an official making quasi-judicial discretionary judgments should be free of the harassment of private litigation in making those judgments. Imbler 424 US at 423, 96 S Ct at 991. On the other hand a nonjudicial officer who is delegated judicial duties in aid of the court should not be a ‘lightning rod for harassing litigation’ aimed at the court. Kermit Construction, 547 F 2d at 3. Thus, if ‘acts, alleged to [be] wrongful, were committed by the officer in the performance of an integral part of the judicial process,’ Robichaud v Ronan, 351 F 2d 533, 536 (9th Cir 1965), then the officer is absolutely immune from suit.
Whether particular office holders have quasi-judicial absolute (1991) 25 NSWLR 224 at 275 immunity for their acts depends on an analysis of the nature of the activities in which the office-holder engages and the relationship of those activities to the judicial process.’
The last paragraph of the judgment is supported by the authority of the Supreme Court in Butz v Economou 438 US 478 (1978). Although there were four judges in dissent it was not on the point of present concern. The court as a whole was of the view that absolute immunity extends to all those whose work is “functionally comparable” to that of a judge.
….
In Howard v Drapkin 271 Cal Rptr 893 (1990), the Court of Appeal held that a psychologist was entitled to common law immunity as a quasi-judicial officer participating in the judicial process. … The judge said:
….. .. we believe it appropriate that these ‘nonjudicial persons who fulfil quasi-judicial functions intimately related to the judicial process’ (Myers v Morris, supra, 810 F 2d at p 1466-1467) should be given absolute quasi-judicial immunity for damage claims arising from their performance of duties in connection with the judicial process. Without such immunity, such persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs. (Moses v Parwatikar (8th Cir 1987) 813 F 2d 891, 892, cert den 484 US 832, 108 S Ct 108, 98 L Ed 2d 67.)”
In similar vein the Construction List operates, I trust satisfactorily, only because of the assistance the Court receives from the referees. Their technical expertise is also drawn on in the work of the Commercial Division. Within the area of their technical knowledge they carry out the fact finding mission which is the stuff of life of a trial judge. It would be strange if judges were to appoint referees to assist them in the discharge of their duties but fail to accord to them the safeguards they themselves enjoy in the discharge of the self same mission.
In the result, in my view, I should conclude that public policy requires that a referee enjoy the same immunity as a judge. Accordingly no order for costs, or claim for damages, can be made against him.”
In the paragraph numbered 3 in the passage from Kirby P’s judgment in Najjar [102]which is quoted above in para. 53, his Honour took it for granted that a master performing judicial functions in the exercise of the Court’s jurisdiction is entitled to the same immunity as a Judge. That is not surprising. If judicial immunity is afforded to a judge in respect of his or her exercise of the court’s power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court’s jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers.[103] It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches. [104]
At the material time, the taxation of costs in proceedings in the Court was a judicial function carried out by a registrar in the exercise of the Court’s jurisdiction and powers. [105] The necessity which grounds the immunity of Judges and Masters of this Court requires that the same immunity apply to a Court officer taxing costs in proceedings in the Court pursuant to a Court order.
Accordingly, the costs orders which the appellant seeks against the Taxing Officer must be refused.
The appellant’s appeals against Santow J’s other orders involved challenges to discretionary decisions. The appellant failed to demonstrate any error of principle by Santow J or that his Honour’s determinations were unreasonable or unjust.
The orders proposed by Heydon JA, including his Honour’s proposal that no order be made for the costs of any appeal although the appellant has been unsuccessful, are not only legally correct for the reasons given by his Honour but achieve practical justice and, hopefully, sufficient finality to enable the taxation of the appellant’s costs of the Family Provision Act proceedings to be undertaken if that remains appropriate notwithstanding the first respondent’s bankruptcy.
HEYDON JA:
Background
The Notice of Appeal raises three matters arising out of a taxation of costs conducted by Deputy Registrar Howe (“the Taxing Officer”).
(a) By leave granted on 17 July 2000 the appellant appeals from:
“that part of the decision of Justice Santow of 9/4/99 …. by which he refused to order that [the Taxing Officer] pay costs jointly and severally with PFN Wentworth, and ordered that PFN Wentworth pay the costs only up to 15 April 1997 .… and refused to order that the Crown pay costs jointly and severally with PFN Wentworth”.
(b) By leave granted on 17 July 2000 the appellant appeals from:
“that part of the decision of Justice Santow of … 29/6/99 by which he … refused an application to set aside that determination .…”.
(c)By leave granted on 17 July 2000 the appellant also appeals “from the decision of Justice Hunter of 7 June 1999 refusing the inspection of subpoenaed documents”.
The reasons for judgment of 9 April 1999 are reported: Wentworth v Wentworth (1999) 46 NSWLR 300.
The history of the matter, as revealed in the reasons for judgment of Santow J of 6 February 1998, 9 April 1999 and 29 June 1999, of Hunter J of 7 and 9 June 1999, of Deputy Registrar Studdert of 17 April 2000, and of this Court on 21 February 1996, is briefly as follows.
On 14 June 1991 Bryson J delivered reasons for judgment favourable to the interests of the appellant, who was the plaintiff in proceedings under the Family Provision Act 1982 against the first respondent. (The first respondent was the defendant in those proceedings. He was also the appellant’s brother, and was the executor of the estate of the late GN Wentworth. GN Wentworth was the father of the appellant and the first respondent.)
On 9 August 1991 Bryson J ordered that the first respondent pay the appellant’s costs of those proceedings (with three exceptions).
On 3 March 1992 the Court of Appeal varied Bryson J’s orders in relation to the provision to be made for the appellant, but made costs orders in favour of the appellant in relation to the hearing before Bryson J which were the same as those made by Bryson J.
Meanwhile, on 21 February 1992 the appellant had lodged a bill of costs for taxation in consequence of Bryson J’s costs orders. That bill claimed $774,866.30 and, after amendments, the claim rose to $813,000. The first respondent objected to most items.
In approximately March 1992, the Taxing Officer taxed the bill in the absence of the parties in an amount of approximately $259,000.
Both parties sought an appointment for hearing under Pt 52 r 50B of the Supreme Court Rules.
The matter was listed for hearing on 13 March 1992. The Taxing Officer stood the matter over to 6 April 1992. On that day he issued the first interim certificate of taxation in the sum of $112,659.26. It was paid. Thereafter contested hearings were conducted before the Taxing Officer.
On 1 September 1992, pursuant to an order made on 9 August 1991, the Taxing Officer issued a second interim certificate for $48,202.67. It was paid. The appellant alleged that this certificate was the product of bias.
The Taxing Officer then requested and received written submissions on the balance of the taxation. The last of these was received on 4 January 1993.
On 28 January 1993 the Taxing Officer arrived at certain determinations and gave his reasons for them.
On 29 January 1993 the appellant requested the Taxing Officer to disqualify himself for bias. He refused.
On 8 February 1993 the Taxing Officer refused to order the first respondent to produce to the court certain documents. The appellant made a further request for the Taxing Officer to disqualify himself. He refused.
From March 1993 until 24 September 1993 the taxation continued on at least 38 occasions over 175.5 hours.
On 28 July 1993 the Taxing Officer determined that the amount of the certificate to be issued in favour of the appellant was $280,264.81. On 16 August 1993 a final certificate was issued in that amount, subject to the determination of the costs of the taxation.
On 24 September 1993 the Taxing Officer determined that the appellant should pay most of the first respondent’s costs of the taxation of the appellant’s bill.
On 8 October 1993 the appellant filed a Notice of Motion seeking several orders. Paragraph 1 sought a review of the Taxing Officer’s determination not to disqualify himself and it is this application which led ultimately to the present appeal. The Court of Appeal held on 21 February 1996 that the Notice of Motion had been filed prematurely because a Certificate of Taxation had not yet issued.
On or about 22 November 1993 the first respondent served on the appellant his bill of costs incurred in the taxation in the sum of $63,875.84.
On 9 December 1993, evidently by Notice of Motion, the appellant sought that the determinations of the Taxing Officer of 28 January 1993, 9 June 1993 and 14 September 1993 be quashed. On 21 February 1996 the Court of Appeal held that this application was premature.
On 16 December 1994 Master McLaughlin delivered reasons for judgment in relation to various matters including aspects of the Notice of Motion of 8 October 1993. On 21 February 1996 the Court of Appeal held that he had been in error in doing so.
On 26 April 1994 Master McLaughlin directed that an interim certificate of taxation in relation to the appellant’s bill of costs should issue on or before 10 May 1994 and that a reconsideration of the taxation of the plaintiff’s bill of costs be conducted and completed with expedition.
On 10 May 1994 a third interim certificate for $30,000 was issued: of this, $14,332.57 was paid.
On 16 August 1994, after reconsidering the taxation, the Taxing Officer issued a final certificate by which the appellant’s bill of costs was taxed in the amount of $264,236.60. He determined that the first respondent was to receive costs of the taxation in the sum of $57,251.24, and all his costs of the reconsideration.
On 21 February 1996 the Court of Appeal allowed an appeal by the present appellant and a cross-appeal by the present first respondent. It set aside various orders of Master McLaughlin and a Certificate of Taxation issued pursuant to one of them. It remitted the proceedings to the Equity Division.
On various dates in 1997 Santow J heard the application by the appellant which had been instituted by paragraph 1 of the Notice of Motion filed on 8 October 1993 but proceeded by pleadings filed in 1996. The basis for the application was that the Taxing Officer should have disqualified himself for bias. In those proceedings the first respondent did not appear after 15 July 1997. The Attorney-General appeared as amicus curiae in the proceedings conducted after that time.
On 6 February 1998 Santow J determined that the Taxing Officer “so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias”. Santow J also said:
“It follows that the determinations of [the Taxing Officer] in the taxation, including the reconsideration must be set aside save as to his determination that the relevant interim certificates should issue and payments be made thereunder in the amounts actually paid; in addition any cost orders made by [the Taxing Officer] in relation to the taxation must be set aside.”
Santow J concluded that there should be no order as to the costs of proceedings before him.
Orders reflecting Santow J’s reasons for judgment were made on 1 July 1998, except in relation to costs.
Written submissions on costs were exchanged between the appellant and the amicus curiae from 13 August 1998 to 29 March 1999. On 23 and 25 March 1999 submissions in oral argument were advanced before Santow J. In those submissions, the appellant applied for costs against the Taxing Officer, the Crown in right of the State of New South Wales, and the first respondent. On 9 April 1999 Santow J concluded that the Taxing Officer enjoyed “derivative immunity as for a judicial officer of a superior court”; that accordingly the issue of the Crown’s liability did not arise; and, contrary to the views stated in the reasons for judgment of 6 February 1998, that the first respondent should pay the costs of the proceedings before Santow J up to 15 July 1997. The first matter in issue in this appeal is Santow J’s refusal to order the Taxing Officer and the Crown to pay those costs jointly and severally with the first respondent, and his refusal to order that the first respondent pay any costs after 15 July 1997.
On 6 and 18 May 1999 the appellant applied to Santow J to reopen argument in relation to those contemplated orders. Santow J, before indicating the costs orders he contemplated, rejected that application on 29 June 1999. This is the second matter in issue in this appeal. (The orders he contemplated were ordered and entered on 23 August 1999.)
After the application to reopen was made but before it was decided, Hunter J on 7 June 1999 considered whether to refuse inspection of documents caught by two subpoenas issued by the appellant with a view to obtaining two letters said to be relevant to two issues which the appellant wished to raise before Santow J in the course of the application to reopen. Those letters were:
“1. Letter to [the Taxing Officer] on or about 27 April 1999 seeking his comments on complaints particularised in document as provided to him by the State Crown Solicitor on or about 27 April 1999.
2. Letter of response by [the Taxing Officer] setting out his comments on the complaints referred to in the letter of 27 April 1999 as particularised, received by the Crown Solicitor in the first or second week of May 1999, on or about 12 May 1999.”
Hunter J inspected the documents, decided that they were irrelevant and decided that the appellant should not be allowed to inspect them. This is the third matter of which the appellant complains in this appeal.
In August 1999 the first respondent became bankrupt.
The appellant filed a Summons for Leave to Appeal in or about December 1999. The only opponent named (he was in fact described as “respondent”) was the first respondent to this appeal. Though the Summons for Leave to Appeal sought leave to appeal against Hunter J’s order of 7 June 1999 refusing inspection, the recipients of the subpoenas, Mr Laurie Glanfield and Mr Ian Hill, were not named as opponents. By Amended Notice of Motion filed in or about March 2000, Messrs Glanfield and Hill applied to be joined as opponents to the appellant’s application for leave to appeal, and to be added as respondents to the appeal in the event of leave being granted.
The Amended Notice of Motion was heard on 6, 13 and 20 March 2000 by Deputy Registrar Studdert.
On 17 April 2000 Deputy Registrar Studdert delivered a reserved judgment in which he ordered that Mr Glanfield and Mr Hill be joined as respondents to the Summons for Leave to Appeal. The appellant filed an undated Notice of Motion returnable on 29 May 2000 complaining about that order.
On 17 July 2000 the Summons for Leave to Appeal was heard, and leave to appeal was granted. The Notice of Motion returnable on 29 May 2000 was stood over to the hearing of the appeal. The appellant called on a Notice to Produce to Mr Glanfield. Paragraphs 1 and 2 of that Notice to Produce were in substance the same as paragraphs 1 and 2 of the subpoena with which Hunter J had dealt. Paragraph 3 sought production of the following document:
“Report of I Hill to Director General Attorney General’s Department, Laurie Glanfield, as referred to in letter L Glanfield of 14 June 2000, being the report of I Hill into the conduct of [the Taxing Officer], subject of complaint by K. Wentworth.”
Counsel for Mr Glanfield objected to producing the documents to the Court. A direction was made that they be kept in a sealed envelope pending the hearing of the appeal, to the intent that the question of whether the documents should be produced to the Court, and, if so, whether inspection by the appellant would be permitted, would be determined, if necessary, at the hearing of the appeal.
Matters not pressed
As it happened there was no controversy during the hearing of the appeal about Deputy Registrar Studdert’s order. There was little independent controversy about the Notice to Produce.
So far as Deputy Registrar Studdert’s order is concerned, on 19 July 2000 the appellant filed the Notice of Appeal. It named Mr Glanfield as the second respondent and Mr Hill as the third respondent. Counsel appearing for Mr Glanfield and Mr Hill had indicated on 17 July 2000 that he only wished to be heard in relation to Hunter J’s order. Since the appellant joined those parties to the appeal without any order to do so, the dispute about the correctness of Deputy Registrar Studdert’s orders appears entirely academic. Further, when in the course of her oral argument on the appeal the appellant was asked on several occasions to identify the matters in controversy and deal with all those not already dealt with, she did not mention Deputy Registrar Studdert’s order, and she did not advance oral argument in criticism of it. In any event, in my opinion the order was correctly made. Even if it had not been, it would be pointless to debate and rule on the issue of whether it was correct, since in every sense it has been overtaken by events. The appellant at one stage appeared to fear that the second and third respondents were going to “intermeddle” in the argument on issues other than the correctness of Hunter J’s orders about the subpoenas: on the hearing of the leave application they said they would not and on the hearing of the appeal they did not.

In short, no application for interest on costs has been made to this Court; if it had been made, I would have rejected it because it was not made to Santow J and has not been supported by any argument to this Court.
Lump sum order
The appellant submitted that an order should be made that she be paid certain costs as a lump sum pursuant to Pt 52A r 6. The submission need not be dealt with, since in my opinion no costs order should be made which is more favourable to the appellant than that which Santow J actually did make (subject to the clarification discussed in [247-[249]). In any event the complexity of the proceedings has been great, and this Court is wholly unqualified to form a view as to what kind of lump sum order should be made.
Setting aside non-review costs orders made by Court of Appeal on 21 February 1996
Santow J refused to make any order adding to or varying any of the costs orders of the Court of Appeal made on 21 February 1996. It is for that reason that he inserted exclusions to this effect in Order 3(b) and (c) made on 23 August 1999. He considered that there was a principle that a single judge of the Supreme Court, whom he described as an “inferior” court in relation to the Court of Appeal, could not attack the orders of the Court of Appeal.
The appellant submitted that the conclusion did not follow. The submission is difficult to deal with. It was put as follows (appellant’s written submissions dated 14 July 2000, page 26, paras 23-25):
“This application is not seeking to set aside orders in collateral proceedings in an inferior Court. The orders are defunct, and have no further basis, the primary basis for their existence having been voided that is that thereafter having no effect, the review orders have no effect and consequently the Appeal Court orders are of no effect and void.
By the determination to void the determinations of [the Taxing Officer], then there is no basis for the review or appeal, and accordingly those determinations are void.
If there is a necessity for application for those decisions to be set aside, that will be made, but the rule of law requires that there can be no review and subsequently based on the review an appeal determination which can stand when the entire basis of the review proceedings has failed, and is not voidable, but void and the judgment and orders must be set aside.”
In oral argument the appellant submitted that the relevant “orders” of the Court of Appeal (which were that the appellant’s appeal and the present first respondent’s cross-appeal be upheld with no order as to costs) were of no effect because they were based on a misconception apparent in that part of the Court of Appeal’s reasons for judgment recorded in paragraph [31], page 15, of Santow J’s reasons for judgment dated 29 June 1999. The Court of Appeal’s supposed error was to assume that the Master, against whose decision the appeal was brought, was acting pursuant to an application made in the inherent jurisdiction of the court, or under Pt 52, whereas it was in fact made under Pt 61 r 3. The appellant also criticised the Court of Appeal on the ground that it did not “deal with my appeal at all”. She also criticised it for relying on findings made by the Taxing Officer as part of a determination which has now been set aside, and for not dealing with some of the appellant’s submissions.
An order made by the Court of Appeal in relation to the costs of an appeal is immune from change by any other court unless it is appealed against, or the Court of Appeal has given leave for it to be reconsidered. The fact (if, which is not being decided, it is a fact) that the Court of Appeal’s reasoning proceeded on the basis of one or more mistakes is irrelevant. Similarly, the fact (if it is a fact) that some argument was advanced to the Court of Appeal which was not considered by it does not invalidate the orders made unless they are overturned on appeal. The submission referred to QBE Insurance Ltd v Switzerland Insurers Workers Compensation (NSW) Ltd (1996) 134 ALR 433, but that case concerned changes to the orders of an intermediate appellate court made on appeal to the High Court on the ground that an argument had not been dealt with by the intermediate appellate court. It is not applicable to Santow J’s reasoning.
The appellant also submitted that Santow J could have made orders as to the costs of the appeal decided on 21 February 1996, because the Court of Appeal did not make any order on that subject. A conscious decision, recorded in the court’s orders, not to make an order as to costs in favour of one party or another is as much an order as an order that one party pay the costs of another, and equally immune from later attack except on appeal.
The impact of Santow J’s orders on Master McLaughlin’s orders
The appellant pointed out that among the costs which Order 3 of the 23 August 1999 orders reserved, on one reading of it, were costs other than those incurred before the Taxing Officer or dealt with by the Court of Appeal. The appellant accepted that it was open to Santow J at least to make costs orders in relation to matters not dealt with by the Court of Appeal. The appellant submitted in effect that so far as Santow J’s order could be read as reserving the costs, for example, of certain proceedings before Master McLaughlin which had been the subject of costs orders by Master McLaughlin not set aside on appeal, he was arguably interfering with vested rights of the appellant otherwise than as a result of valid processes of appeal or review - for no party in the application before Santow J was seeking to challenge those orders. The Court of Appeal on 21 February 1996 set aside orders of Master McLaughlin made on 10 and 24 February, 15 and 20 March and 10 August 1995; but it did not set aside any other orders of Master McLaughlin, and the appellant contended there were orders of Master McLaughlin in her favour made before 16 August 1994 which might be affected by Order 3(c) made on 23 August 1999.
So far as they were orders of the type to which the appellant refers, this submission is meritorious in the sense that if there is any ambiguity in Order 3 of Santow J’s orders it should be cleared up. In the absence of any attack on the orders of Masters favourable to the appellant, an order of Santow J which would have the effect of setting them aside and reserving the question for the future would be defective; to the extent that there is a doubt about whether Order 3 made on 23 August 1999 sets them aside, it should be cleared up. Any defect of this kind in Santow J’s orders of 23 August 1999 should have been apparent from 29 June 1999, when Santow J set out a draft of them. However, the orders were not made by consent, to the extent that they are defective they may be attacked on this appeal, and to the extent that they raise doubts those doubts may be dispelled in this appeal. One solution is to insert the following at the end of Order 3 made on 23 August 1999, after the word “final.” as a new sentence -
“For the avoidance of doubt, the costs reserved by this order do not include the costs which are the subject of orders by Masters which have not been set aside on appeal.”
The problem to which the appellant’s submission drew attention does not justify allowing the appeal, but there is no reason not to make a modification to Santow J’s orders clarifying their intent.
The subpoenas dealt with by Hunter J
It was submitted that since the documents referred to in the subpoenas were relevant to the Taxing Officer’s conduct, they must be relevant to the misconduct which the appellant was alleging against him. It was also submitted that a solicitor acting for the Crown had conceded their relevance.
Whatever concessions may have been made by a solicitor, at the time the subpoenas were called on the second and third respondents objected to the appellant inspecting the documents produced, and Hunter J had to resolve that objection. Hunter J’s reasons for refusing the appellant’s application to inspect the documents produced in answer to the two subpoenas before him were as follows:
“7. Written submissions have been presented on behalf of the Crown and Ms Wentworth has presented oral submissions, which boil down to the proposition that the documents so subpoenaed are relevant (in the sense that that term is used in discoverability and inspection of documents under the Supreme Court Rules) in relation to two issues she seeks to raise before Santow J, namely:
(1)that his Honour had no due regard to the bad faith element in considering the immunity question in refusing the order for costs against the taxing officer; and
(2)that his Honour’s determination, which, in substance, invalidated the taxation proceeding that had proceeded thus far, except for some interim certificates, should be reviewed to consider what Ms Wentworth has referred to as the flow-on effect in relation to the outstanding costs issues between her and the other relevant parties in the principal proceeding.
8. Objection is taken on behalf of the Crown to the inspection of these documents, essentially on the ground of relevance, and the parties are agreed, firstly, that I should read the documents so produced on subpoena and, second, determine the question of relevance in the context of the issues I have just described. I have done that.
9. I have read the material quite carefully and I am satisfied that the material is not relevant, in the sense in which I have used the term, so as to make it inappropriate that the documents should be made available for inspection by Ms Wentworth.”
The appellant did not attack Hunter J’s formulation of the two issues which she sought to raise. That formulation must thus be accepted as correct. If the formulation of issue (1) is correct, the contents of documents passing to and from the Taxing Officer in or about 27 April and 12 May 1999 could not possibly have relevance to whether or not Santow J had had “due regard to the bad faith element in considering the immunity question in refusing the order for costs against” the Taxing Officer. That question could only be answered by analysing the course of proceedings before Santow J up to 9 April 1999. And if the formulation of issue (2) is correct, the issue of whether Santow J’s determination of 6 February 1998 should be reviewed could not be affected by the April-May 1999 documents: whether it should be reviewed would depend on whether there was any procedural inadequacy in it and on whether additional findings could legitimately be sought and made on the basis of the evidence called in the application leading to it.
Hunter J’s conclusions also appear to be correct on the basis that it is not open to a party to litigation to tender factual issues for determination at one point in time in order to obtain particular orders, and then, when further and different orders are sought at a later stage, without specific leave reserved by the court, to seek additional factual findings on new evidence. That must be so a fortiori when the person against whom the further and different orders are sought was not a party either when the factual issues were originally tendered for determination or when the further and different orders were sought. The time for evidence to be tendered in relation to factual findings about the Taxing Officer’s conduct was in the proceedings leading up to the judgment of 6 February 1998; the appellant’s application for costs against the Taxing Officer in the hearings leading up to the 9 April 1999 judgment can only have been based on the findings made on 6 February 1998; neither in the hearings leading up to the 9 April 1999 judgment nor in the attempt to reopen which was rejected on 29 June 1999 was any outstanding factual issue remaining; hence there was no outstanding factual issue on which the documents caught by the subpoenas could have been tendered and to which the subpoenas can have been relevant.
For the same reasons the Notice to Produce called on on 17 July 2000 does not catch any relevant documents. The recipient is not obliged to answer it. The documents which his counsel handed to the Court on 17 July 2000 should be returned.
Notice of Contention
The second and third respondents argued that Hunter J overlooked their argument to him that they should be excused even from producing the documents to the court. They submitted that they should be excused for the same reasons as those which Hunter J gave for refusing the appellant’s application to inspect the documents. This is not strictly a notice of contention point, but given that the appeal against Hunter J’s orders fails, in the circumstances there is no utility in dealing with it.
Santow J’s refusal to set aside his determination of 9 April 1999
On 29 June 1999 Santow J refused an application by the appellant to reopen his reasons for judgment of 9 April 1999.
That application was based in part on the proposition that the reasons for judgment of 9 April 1999 were founded on the Court of Appeal’s decision of 21 February 1996, which the appellant contended ought to be treated as a nullity. Santow J held that the Court of Appeal’s decision was not a nullity by reason of his avoidance of the Taxing Officer’s determination or otherwise and that he was bound by its reasoning and its orders. I agree.
Santow J also refused to reopen that part of his decision of 9 April 1999 which led to his conclusion that the Taxing Officer had derivative immunity and that no costs order more favourable than the one contemplated should be made. I agree with his refusal for the reasons he gave in paragraphs [34]-[37] of his reasons for judgment dated 29 June 1999. The appellant had already been heard more than sufficiently on all issues.
Role of Attorney-General in this appeal
The appellant objected to the appearance of the Attorney-General on the appeal as amicus curiae. She complained of the lateness of the Attorney-General’s application for leave. She complained about what was submitted to be the adversarial tone of the Attorney-General’s written submissions. She complained that the same solicitor appeared for both the Attorney-General and for the second respondent. In the peculiar and difficult circumstances of the present case, which include the fact that an application made after the close of argument by the appellant for leave to respond in writing to the Attorney-General’s written submissions was acceded to and taken advantage of, the objection should be rejected.
Reserved questions
Since the appeal in relation to the Taxing Officer fails on other grounds, it is not necessary to examine the important questions of what the tests are for judicial immunity from suit; whether Santow J was correct in adopting a similar test in relation to the Taxing Officer’s immunity from a costs order; and whether, as the appellant submitted, Attorney-General v Kennedy Miller Pty Ltd (unreported, Court of Appeal, 31 May 1999) is inconsistent with his reasoning. The reasoning of Santow J, and to some extent the submissions of the appellant, assume the correctness of the tests for judicial immunity of judges of superior courts stated in Sirros v Moore [1975] QB 118 and adopted or assumed in Rajski v Powell (1987) 11 NSWLR 522. On a future occasion some case which is a suitable vehicle for reconsidering the correctness and scope of those tests may come before the court. I would reserve an actual decision about the correctness and scope of those tests to that occasion, at least so far as the general approval given to Rajski v Powell in the High Court permits this (see Gallo v Dawson (1988) 82 ALR 401 at 403; Re East; ex p Nguyen (1998) 196 CLR 354 at 366 n 21). Sirros v Moore was unfavourably viewed in several respects by the House of Lords in In re McC(A Minor) [1985] AC 528. The key passage in Lord Denning MR’s reasons for judgment at 135C-H may be thought to waver confusingly between different senses of the expression “jurisdiction”. The tests propounded arguably state the immunity more narrowly than in former times. They have been questioned in the Supreme Court of Canada: Morier v Rivard [1985] 2 SCR 716 at 744 per Chouinard J. The old cases turned not so much on the protection of the judiciary from claims which might ultimately fail or succeed, but from any claim. They recognised a freedom from “continual calumniations” (Floyd v Barker (1607) 12 Co Rep 23 at 25; 77 ER 1305 at 1307 and “from action and question at the suit of an individual” (Garnett v Ferrand (1827) 6 B & C 611 at 625; 108 ER 576 at 581). The rule was established “to secure the independence of the Judges, and prevent their being harassed by vexatious actions” (Fray v Blackburn (1863) 3 B & S 576 at 578; 122 ER 217). The importance of the judicial immunity as recognised in the older cases lies in its absolute and non-qualified character - its capacity to be pleaded in bar to suits at the outset, so as to secure their dismissal at that point, rather than permitting the allegations to be tried:
“’absolute privilege’ … is [not] a very accurate expression and I am sure that calling it a ‘privilege’ is sometimes misleading. Privilege means, in the ordinary way, a private right. Now there is no private right of a judge … to be malicious … . The real doctrine of what is called ‘absolute privilege’ is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual - I should call it rather a right of the public - the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not - the reason being that it is desirable that persons who occupy certain positions as judges … should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious”: Bottomley v Brougham [1908] 1 KB 584 at 586-7 per Channell J.
Since drafting the above, I have had the advantage of reading Fitzgerald JA’s reasons for judgment, and in particular the learned and penetrating analysis which he has set out in paragraphs [11]-[59]. Though I agree with that analysis, I would prefer not to decide this case on that basis, since the analysis has not been tested by experienced counsel appearing for a party whose interests require a rejection of that analysis in a case where the analysis is crucial to the outcome.
The position of the Official Trustee
Among the papers before the Court of Appeal was a letter dated 16 March 2000 from the Official Receiver to the appellant. That letter referred to a facsimile of 15 March 2000 relating to the bankruptcy of the first respondent, noted that the appellant had applied for leave to appeal against Santow J’s costs orders, and advised that the Official Trustee had no objection to that application. There was no material indicating that the Official Trustee had been advised of the success of the application.
Section 58(3) of the Bankruptcy Act 1966 (Cth) provides:
“Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a)to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or
(b)except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.”
The expression “provable debt” is defined in s 5(1) as meaning “a debt or liability that is, under this Act, provable in bankruptcy”. Section 82(1) and (2) provide:
(1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.
(2) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.”
The expression “the Court” is defined in s 5(1) as meaning “a Court having jurisdiction in bankruptcy under this Act”. The Supreme Court does not have jurisdiction in bankruptcy.

The filing of the Summons for Leave to Appeal is, and the filing of the Notice of Appeal on 19 July 2000 may be, a fresh step in the proceedings after the first respondent became bankrupt. The non-opposition of the Official Trustee to the Summons would not appear of itself to operate as a substitute for the leave of a court having jurisdiction in bankruptcy under the Act, such as the Federal Court of Australia. Whether a claim for costs is a provable debt can be a matter of controversy. This must particularly be so where, as here, the claim failed in part before the bankruptcy and there is an appeal seeking a wider order. Had the appellant enjoyed success in contending that a costs order should be made against the first respondent which was more extensive than Santow J made, it would have been necessary to consider whether the notice to the Official Trustee was sufficient, and whether this Court should cease to proceed further without notice to him and without giving the appellant an opportunity to seek the leave of the Federal Court pursuant to s 58(3). But in view of the appellant’s lack of success, the issue does not arise.
Extraneous submissions
Interspersed through the appellant’s arguments were submissions that various courts were deliberately misled by the first respondent or the Attorney-General. No material was relied on which supported these submissions.
Costs orders and other orders
The appellant has enjoyed success to the extent of obtaining an order clearing up a potential doubt in the scope of Santow J’s orders. That success was too minor to justify a costs order in her favour against any of the respondents, particularly in view of the fact that the matter could have been remedied before Santow J.
The second and third respondents enjoyed success to the extent that their defence of Hunter J’s orders has succeeded and to the extent that the appellant in effect abandoned the arguments he put against them in relation to Deputy Registrar Studdert’s orders. In my opinion costs should not be ordered against the appellant in that respect in favour of any of the respondents. The entire proceedings have been bedevilled with procedural doubts and confusion. There was some limited basis for the appellant’s fear that the second and third respondents were seeking not only to defend Hunter J’s orders, of which they were beneficiaries, but to put wider arguments against her interests.
The Attorney-General is not entitled to any costs order in his favour because his sole role was as an amicus curiae who must bear his own costs.
The remaining matters relate to the documents caught by the subpoenas with which Hunter J dealt, and the documents caught by the Notice to Produce called on on 17 July 2000. Hunter J directed that a sealed envelope containing the documents caught by the subpoenas remain with them until further order. No further order appears to have been made. It seems appropriate that an order be made that the parties who produced those documents should uplift them. The documents handed to the court in answer to the Notice to Produce were directed to be kept in a sealed envelope pending the hearing of the appeal. The appeal having now concluded, an order of the same kind should be made in relation to those documents too.
Orders
I propose the following orders:
1. That the appeal be dismissed.
2.That Order 3 made by Santow J on 23 August 1999 be amended by adding the following:
“For the avoidance of doubt, the costs reserved by this order do not include the costs which are the subject of orders by Masters which have not been set aside on appeal.”
3.That the second and third respondents uplift the documents which either of them delivered to the court in answer to the subpoenas the subject of Hunter J’s decision of 7 June 1999 or in answer to the Notice to Produce called on on 17 July 2000.
4.That there be no order as to the costs of the appeal.
DAVIES AJA: I have had an opportunity to read the reasons for judgment prepared by Heydon JA. I agree with the views expressed by his Honour and with the orders which his Honour proposes.
In the present case, Santow J set aside the Taxing Master’s certificate on the ground of reasonable apprehension of bias. The impugned acts of the Taxing Master were judicial acts done within jurisdiction in the execution of the Taxing Master’s duty. The Taxing Master was entitled to the benefit of the common law immunity which attaches to judicial officers. Whatever may be the ambit of the Court’s power to make an order as to costs against an officer of the Court in the exercise of its supervisory jurisdiction over its own officers, the Court would never make such an order in the circumstances pertaining in the present case. The appellant’s claim that the Taxing Master or the Crown pay the costs of the taxation was misconceived on both substantive and procedural grounds. I agree with Heydon JA on all the issues which his Honour has discussed.
*********
END NOTES
[1] See Rule 9 and Divisions 3 and 6.
[2] Wentworth v Wentworth (1999) 46 NSWLR 300, 305.
[3] See also the definition of “defendant” in s 19(1) of the Supreme Court Act and s 75A and Part 7 of that Act and Part 51 of the Rules in relation to appeals.
[4] Cf Vestris v Cashman (1999) 72 SASR 449, 458, 467, 468. See also Victoria v Sutton (1998) 195 CLR 291, 316-317; Merit Protection Commissioner v Nonnenmacher (1999) 86 F.C.R. 112.
[5] See Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178, 182-183, 193-194; Rajski v Computer Manufacture and Design Pty Ltd (1982) 2 NSWLR 443, 446-448.
[6] See the definition of “rules” in s 19(1) and s 124(1)(j) of the Supreme Court Act.
[7] Knight; Aiden Shipping Co Ltd v Interbulk Ltd (1986) 1 AC 965, 975, 980, 981.
[8] See Knight at the foot of p.183; Aiden Shipping at pp.975, 981.
[9]Similar provisions were contained in Part 52.4 which applied until 30 June 1994 and continues to apply to the extent provided for in Part 52.1.
[10] Supreme Court Act s 3(1); Wentworth v Attorney-General (NSW) (1984) 154 CLR 518.
[11] See Part 52A.4(2); cf Leicester v Walton NSWCA, unreported, 22 November 1995. It is unnecessary to discuss other obstacles which the appellant would confront in establishing either that the Taxing Officer’s alleged misconduct breached some duty which the State directly owed to her or that the State is vicariously liable to her, a proposition inconsistent with this Court’s decision in Rajski v Powell (1987) 11 NSWLR 522; see per Kirby P at p 530.
[12] See, for example, Myers v Elman (1940) AC 282; Aiden Shipping (1986) 1 AC 965; Knight (1992) 174 CLR 178.
[13] See s 76C of the Supreme Court Act and Part 52A.4(5)(a), 43,43A, and 44.
[14] cf Pinebelt Pty Ltd v Bagley [2000] NSWSC 655. See also TGA Chapman Ltd v Christopher (1998) 1 WLR 12.
[15] Freeman v Trimble (1906) 6 SR 133; Rogers v Commins (1906) 24 WN 3; Horne v Leigh (1906) 7 SR 51
[16] Xuereb v Viola (1989) 18 NSWLR 453, 465-466.
[17] See also ss 124(1)(h) and (s) of the Supreme Court Act.
[18] Reid v Howard (1995) 184 CLR 1, 16.
[19] See Knight 174 CLR 178, 185, 205; Aiden Shipping (1986) 1 AC 965, 975.
[20] cp Re East; ex parte Nguyen (1998) 196 CLR 354.
[21] For example, for misfeasance in public office: see Northern Territory v Mengel (1995) 185 CLR 307; Three Rivers District Council v Governor and Company of the Bank of England [No.3] (2000) 2 WLR 220.
[22] (1998) 196 CLR 354.
[23] Re East 196 CLR 354, 365-366. See also Gallo v Dawson (1992) 66 ALJR 859. Earlier proceedings in Gallo are reported at (1988) ALJR 121 and (1990) 64 ALJR 859.
[24] Re East 196 CLR 354, 377.
[25] Re East 196 CLR 354, 388-389
[26] (1975) QB 118.
[27] For example, Moll v Butler (1985) 4 NSWLR 231; Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48.
[28] (1975) QB 118.
[29] (1975) QB 118, 136 per Lord Denning M.R. See also 139-141 per Buckley LJ; 149 per Ormrod LJ. The intention in Sirros appears to have been to eliminate a distinction which might otherwise exist at different levels of the judicial hierarchy. See (1975) QB 118, 136. See also Attorney-General v British Broadcasting Corporation (1979) 3 WLR 312. Re Racal Communications Ltd (1981) AC 374, 382. Re McC ( A Minor) (1984) 3 WLR 1227;Rajski v Powell (1987) 11 NSWLR 522, 533; Yeldham v Rajski (1989) 18 NSWLR 48, 70.
[30] Cp Mann v O’Neill (1997) 191 CLR 204, 213, 239-240.
[31] (1975) QB 118.
[32] It is unnecessary for present purposes to discuss the numerous cases which bear on this and associated issues: see, for example, DMW v CGW (1982) 151 CLR 491, 509; Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 56; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; Palmer v Clarke (1989) 19 NSWLR 158; Grassby v R (1989) 168 CLR 1; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, 16-17, 27-28; Reid v Howard (1995) 184 CLR 1, 16.
[33] (1975) QB 118.
[34] (1975) QB 118.
[35] (1975) QB 118.
[36] (1975) QB 118.
[37] Sirros v Moore (1975) QB 118, 132. See also Anderson v Gorrie (1895) 1 QB 668, 670.
[38] (1978) 1 NZLR 291.
[39] Nakhla (1978) 1 NZLR 291, 301.
[40] (1978) 1 NZLR 291, 301.
[41] (1988) 63 ALJR 121, 122. See also Rajski v Powell (1987) 11 NSW LR 522.
[42] Gallo v Dawson (1990) 64 ALJR 458, 460.
[43] Gallo v Dawson (1992) 66 ALJR 859.
[44] Gallo v Dawson (1992) 66 ALJR 859.
[45] (1989) 18 NSWLR 48.
[46] (1988) 63 CLJR 121, 122.
[47] (1978) 1 NZLR 291.
[48] (1989) 18 NSWLR 48.
[49] (1987)11 NSWLR 522
[50] 196 CLR 354.
[51] (1987) 11 NSWLR 522.
[52] Rajski v Powell (1987) 11 NSWLR 522, 538-540.
[53] Rajski v Powell (1987) 11 NSWLR 522, 539. See also Anderson v Gorrie (1895) 1 QB 668, 670.
[54] See Rajski v Powell (1987) 11 NSWLR 522, 531 ff.
[55] Rajski v Powell (1987) 11 NSWLR 522, 532-533.
[56] Rajski v Powell (1987) 11 NSWLR 522, 534.
[57] 386 US 547, 553-554 (1967).
[58] Rajski v Powell (1987) 11 NSWLR 522, 535.
[59] (1984) 3 WLR 1227, 1236.
[60] (1989) 18 NSWLR 48.
[61] (1989) 18 NSWLR 48.
[62] (1989) 18 NSWLR 48, 58.
[63] (1989) 18 NSWLR 48, 58.
[64] (1989) 18 NSWLR 48, 61.
[65] (1897) 11 NSWLR 522.
[66] Yeldham v Rajski (1989) 18 NSWLR 48, 66.
[67] (1989) 18 NSWLR 48, 69.
[68] (1975) QB 118.
[69] Sirros (1975) QB 118, at p. 132.
[70] Yeldham v Rajski (1989) 18 NSWLR 48, 69.
[71] Yeldham v Rajski (1989) 18 NSWLR 48, 71-72.
[72] Yeldham v Rajski (1989) 18 NSWLR 48, 72-73.
[73] Gallo v Dawson (1988) 63 ALJR 121, 122; Yeldham v Rajski (1989) 18 NSWLR 48, 70.
[74] El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596, 598. See also Ex p Blume; re Osborn (1958) 75 WN (NSW) 411; Robinson v Paterson [1999] VSC 60.
[75] Najjar 25 NSWLR 224.
[76] Attorney General of NSW v Kennedy Miller Television Pty Ltd (unreported) NSWCA40574/97, 31 May 1999.
[77] Najjar 25 NSWLR 224 was concerned with a private referee, not a Judge, master, registrar appointed to act as a referee with the concurrence of the Chief Justice : see s 124(2)(b) of the Supreme Court Act and Part 72.3(2) of the Rules.
[78] It is unnecessary for present purposes to engage in a detailed discussion of the imprecise concept of judicial power : see, e.g., Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 256-259, 267-269; Attorney-General (Cwlth) v Breckler (1999) 163 ALR 576.
[79] See also s 104.
[80] For example, Part 51.58
[81] (1982) 150 CLR 49. See also Harris v Caladine (1991) 172 CLR 84 and Harrington v Lowe (1996) 190 CLR 311.
[82] Under s 75(iii) of the Constitution by virtue of s 39(2) of the Judiciary Act 1903 (Cwlth).
[83] Hospital Contribution Fund 150 CLR 49, 54.
[84] Hospital Contribution Fund 150 CLR 49, 58.
[85] Hospital Contribution Fund 150 CLR 49, 59. See also pp 60, 60 63 and 64 (Mason J), 66 (Murphy J), 67 (Aicken J), 73 (Wilson J), 76 and 80 (Brennan J).
[86] See, for example s 113(1) and 114(1) of the Supreme Court Act.
[87] (1877) 3 QBD 1. See also Earl of Shrewsbury v Wirral Railways Committee (1895) 2 Ch 812; Cannings Ltd v County Council of Middlesex (1907) 1 KB 51; Re McMillan (1905) 5 SR 350 (F.C.).
[88] (1867) LR 3 QB 54.
[89] (1877) 3 QBD 1,4.
[90] See Saddington “Taxation of Costs Between Parties”, (1919), Law Book Co, p.23.
[91] Parts 52, 52A and 61 and Schedule E to the Rules; Ahern, Weingart and Johnson, “Legal Costs Handbook”, (1995), LBC Information Services, p.118.
[92] Munster v Lamb (1883) 11 QBD 588; Cabassi v Villa (1940) 64 CLR 130.
[93] Pedley v Morris (1891) 61 LJ QB 21.
[94] Attorney General of NSW v Kennedy Miller Television Pty Ltd (unreported) NSWCA40574/97, 31 May 1999.
[95] (1991) 25 NSWLR 224
[96] (1991) 25 NSWLR 224.
[97] In Najjar 25 NSWLR 224, reference was made to Xuereb v Viola (1989) NSWLR 453, but no reference was made to Part 52.4(2) although it held in Xuereb that a referee is not an officer of the Court.
[98] (1991) 25 NSWLR 224, 233-235.
[99] (1991) 25 NSWLR 224, 248-251.
[100] (1991) 25 NSWLR 224, 269-270.
[101] (1991) 25 NSWLR 224, 274-275.
[102] (1991) 25 NSWLR 224.
[103] See 4 Halsbury’s Law of England, vol. 1, para. 206; Najjar 25 NSWLR 224, 249 (Clarke JA).
[104] (1989) 18 NSWLR 48.
[105] See s 121 and 40(2) of the Supreme Court Act and Parts 52, 52A and 61 and Schedule E to the Rules.
Revision Reasons:
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LAST UPDATED: 26/04/2007