Woods v Woods

[2001] NSWSC 1108

CITATION:	Woods v Woods [2001] NSWSC 1108 revised - 7/03/2002
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1973/97
HEARING DATE(S):	31 October 2001
JUDGMENT DATE:	4 December 2001
PARTIES :	Glenn Woods (P1) Marcia Woods (P2) Desre Clair Woods (D1) Richard Lee Woods (D2) Amanda Jane Woods (D3)
JUDGMENT OF:	Hamilton J

COUNSEL :	E E Beilby (P1 & 2) Alex Radojev (D1-3)
SOLICITORS:	Nash Allen Williams & Wotton (P1 & 2) Karageorge & Co (D1-3)
CATCHWORDS:	PROCEDURE [548] - Costs - Jurisdiction - General - Interest - May be ordered on costs in respect of period prior to order for costs even though costs not paid by litigant to solicitor - STATUTES [16], [30] - Acts of Parliament - Interpretation - Rules of construction - Particular rules - Expressum facit cessare tacitum - Expressio unius est exclusio alterius - Caution in application.
LEGISLATION CITED:	Supreme Court Act 1970 ss 76(1), 95(1), (3) & (4)
CASES CITED:	Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 Cremona v Roads and Traffic Authority [2000] NSWSC 735 David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Grogan v Thiess Contractors Pty Ltd [2000] NSWSC 1101 Hughes Bros v The Trustees of the Roman Catholic Church [1999] NSWSC 1051 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2001] NSWSC 854 McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190 Oshlack v Richmond River Council (1998) 193 CLR 72 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 Refrigerated Express Lines (A/Asia) Pty Ltd v Australia Meat and Live-Stock Corporation (No 2) (1980) 44 FLR 455 South Australian Superannuation Fund Investment Trust v Leighton Contractors Pty Ltd (1996) 66 SASR 509 Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 White Industries (Qld) Pty Ltd v Flower & Hart (2000) 103 FCR 559 Woods v Woods [1999] NSWSC 275 Woods v Woods [1999] NSWSC 584 Woods v Woods [2000] NSWSC 179 Woods v Woods [2000] NSWSC 851 Woods v Woods [2001] NSWSC 594 Parliamentary Debates (Hansard), Legislative Assembly, 22 November 1995, 3767 - 3769 Spigelman, The Hon J J, "The Poet's Rich Resource: Issues in Statutory Interpretation", Address to Government Lawyers' Convention 7 August 2001
DECISION:	Interest on costs awarded from time at which first defendant became liable to lawyers for interest.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 4 DECEMBER 2001

1973/97 GLENN WOODS & ANOR v DESRE CLAIR WOODS & 2 ORS

JUDGMENT

1 HIS HONOUR: This is an application by a successful defendant/cross claimant, Desre Woods, in proceedings for an order for the payment of interest on costs ordered in her favour against the plaintiffs, Glenn Woods and Marcia Woods. The case, between a mother (the first defendant/cross claimant) on the one hand and a son and daughter in law (the plaintiffs) on the other has a long, unhappy history. The plaintiffs by summons claimed possession of the house property situated at and known as 24 Waite Street, Bateau Bay (“the property”). The first defendant by pleaded cross claim claimed that she was occupying the property pursuant to a contract whereby the plaintiffs had, in consideration of the sum of $11,500 paid by her towards the purchase of the property, agreed to allow her to occupy it during her lifetime. She claimed specific performance of the contract. She also claimed to recover the sum of $17,000 which she alleged had been a loan to them, but they alleged had been a gift. After a trial I delivered judgment on these issues: Woods v Woods [1999] NSWSC 275 (“my first judgment”).

2 In my first judgment I found at [23] that the $17,000 was a loan to the son and that the mother was entitled to judgment for that sum but against only him. As to the contract concerning the property I made the following findings at [26], [27]:

“26 Desre’s evidence, once accepted, establishes that there was a contract that in consideration of her contributing $11,500 to the purchase of the Waite Street property she would be permitted to live in that property for life and that Glenn and Marcia would continue to pay the mortgage payments in respect of it. Section 54A of the Conveyancing Act 1919 was not pleaded as a defence to the claim on that contract. Mr O’Loughlin, of counsel for Glenn and Marcia, has properly informed the Court that that was not by reason of an accidental omission but of a considered decision. No doubt it was taken by reason of the potentially available replies, but that is of no moment; the defence is simply not pleaded.
27 In these circumstances, there is no doubt that Desre is entitled to a declaration of the subsistence of such a contract. However, there has not been full argument as to whether she should have an order for specific performance. Objection has been taken that the requirement of supervision by the Court of future mortgage instalments ought preclude such an order; and there really has been no argument on the relationship between the specific enforceability of the contract and the plaintiffs’ entitlement or otherwise to an order for possession. I shall stand the matter over for directions as to the further hearing of the matter on those issues of relief; short minutes can be brought in on that occasion if the defendant desires immediate final orders on the loan claim or for declaratory relief concerning the contract.”

At that stage no orders were made.

3 Thereafter the parties proceeded slowly. That was in part because of a radical change of course on the first defendant’s part, although not all the delays were caused by her.

4 The next event relevant to costs was that in May 1999 the first defendant sought Mareva relief against the plaintiffs who were secretively selling a property. The making of orders for short finite periods was succeeded by the making of an order on 2 June 1999 which froze relevant funds in aid of the satisfaction of the prospective judgment in these proceedings: see Woods v Woods [1999] NSWSC 584 (“my second judgment”).

5 Thereafter, the first defendant sought a radical amendment of her cross claim, in effect abandoning specific performance, which at the time of the trial had been her only claim as regards the contract relating to the property, and substituting a claim that the contract which she had sought to have performed had been repudiated, that she had accepted the repudiation and that she was entitled to damages for breach of contract. After contest that amendment was granted: Woods v Woods [2000] NSWSC 179 (“my third judgment”).

6 On 26 April 2000 the first defendant sought the entry in her favour of judgment for $26,662.21 in respect of the $17,000 lent and interest thereon. Judgment was given for that sum on that day and subsequently entered.

7 On 30 August 2000 I delivered judgment after a further hearing on the issues raised under the amended cross claim. It was contested by the plaintiffs on the ground that the first defendant had made an election in favour of specific performance which could not now be reversed and that she was not entitled to pursue a remedy for damages consequent upon repudiation; that there had been no repudiation of the contract; and that there had been no acceptance of the repudiation. It was also suggested that there was an Anshun estoppel against her. All these issues I determined in her favour: Woods v Woods [2000] NSWSC 851 (“my fourth judgment”).

8 After my fourth judgment matters again proceeded very slowly towards an assessment of the amount of damages which had to be paid. On 14 March 2001 I ordered that David Zammen, a consulting actuary, be appointed as a Court appointed expert to report to the Court on certain questions relating to the valuation of the life estate. Mr Zammen in due course reported and, so successful was the use of this mechanism, that the parties who had theretofore been unable to agree about anything agreed without further evidence or further hearing that, upon the basis of Mr Zammen’s report, $98,100 was the appropriate sum in which judgment should be entered on the claim arising out of the contract in respect of the property. They also succeeded in agreeing on the terms of order 3 set out in [9] below.

9 Consequent upon my fourth judgment and the agreement of the parties mentioned in [8], on 6 September 2001, the following orders were made:

“1 On the summons judgment for the defendant.

2 On the amended cross claim order that the plaintiffs pay the first defendant $98,100 together with interest thereon in accordance with Schedule J of the Supreme Court Rules 1970 from 10 September 1999 to the date of this order.

3 Order that the first defendant pay or allow the plaintiffs an amount of $205 for each week that she occupies the property known as 24 Waite Street, Bateau Bay (“the property”) from 10 September 1999 until the date on which she vacates it.

4 Order that the first defendant pay the plaintiffs’ costs of and thrown away by the amendment of the cross claim.

6 Note that the costs order made on 7 October 1998 is to stand.

7 Order that otherwise the plaintiffs pay the first defendant’s costs of the proceedings.

8 All questions of interest on costs reserved and stood over to 11 October 2001 at 9.30am before me.

9 Orders 1 – 7 stayed up to and including 11 October 2001 on undertakings given to the Court by the plaintiffs by their counsel as set out in form of undertakings attached to these minutes.”

The orders were entered on 14 September 2001.

10 For the sake of completeness, I record, although it is not relevant to the question concerning costs I am determining, both the plaintiffs and the first defendant earlier this year applied for a correction under the slip rule of the judgment of 26 April 2000 relating to the amount of interest on the $17,000 debt included in that judgment (see [6] above). Both applications were refused and the judgment left to stand: see Woods v Woods [2001] NSWSC 594 (“my fifth judgment”).

11 The present application relates to interest in respect of the costs order which is order 6 of my orders made on 6 September 2001 (see [9] above). The application is that there be an order that the plaintiffs pay interest on the costs of the proceedings up to my first judgment when assessed, such interest to run from the date of that judgment, namely, 31 March 1999. In respect of the costs of the proceedings for Mareva relief and of the proceedings on the cross claim, it is asked that the interest run from 16 August 2001.

12 The additional factual matters that I am asked to take into consideration on this application are the evidence that has been given by Mrs Karageorge, the first defendant’s solicitor, that she has acted from the start for the first defendant in these proceedings on the basis of a costs agreement which contained a term that she should not recover any costs from the first defendant unless costs were ordered in the first defendant’s favour in the proceedings, but that the costs owing by the client to the solicitor should bear interest at the rate of 10 per cent from the time that judgment was obtained vindicating the first defendant’s entitlement to the property, which occurred on 31 March 1999. The counsel whom Mrs Karageorge initially retained was unable to continue in the proceedings and Mr Radojev, who has acted as the first defendant’s counsel through the various trials and hearings conducted before me, agreed to take the brief through the good offices of the NSW Bar Association’s pro bono scheme. His regime as to his fees is the same as Mrs Karageorge’s. The only moneys which they have in fact received are that, out of the $26,000 odd that was in fact paid to the first defendant pursuant to the judgment of 26 April 2000, each of Mrs Karageorge and Mr Radojev received $5,000. The balance (although by contract they had a superior right to it) they allowed the first defendant to retain because of her impecuniosity.

13 The problem that arises is that the plaintiffs contend that I am unable to make those orders because not empowered to do so by reason of the provisions of the Supreme Court Act 1970 (“the SCA”).

14 The relevant provisions of the SCA are as follows:

“76(1) Subject to this Act and the rules and subject to any other Act:
(a) costs shall be in the discretion of the Court,
(b) the Court shall have full power to determine by whom and to what extent costs are to be paid, ……

……

95(1) Where judgment is given or an order is made for the payment of money, interest shall, unless the Court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on so much of the money as is from time to time unpaid.

……

(3) Notwithstanding subsection (1), where, in proceedings for damages on a common law claim, the Court makes an order for the payment of costs and the costs are paid within twenty-one days after ascertainment of the amount of the costs by assessment under Division 6 of Part 11 of the Legal Profession Act 1987 or otherwise, interest on the costs shall not be payable under subsection (1) unless the Court otherwise orders.

(4) If an order is made for the payment of costs, the Court may order that interest is to be paid on the amount so ordered, at the prescribed rate referred to in subsection (1), from the date or dates when the amount in respect of costs was duly paid.”

15 On the basis of these provisions the plaintiffs contend that the only power that the Court has to order payment of interest on costs is to order interest from the date of payment in accordance with s 95(4), which could compel payment of interest in the present circumstances only on the $10,000 actually paid. The first defendant contends that the Court has power to make the orders she seeks under s 76 and that that power is not cut down by the provisions of s 95(4). There was no contention that s 95(3) applied in any way in the circumstances.

16 The history of s 95 is as follows. Originally it contained only sub ss (1) and (2), although sub s (2) was substituted in 1989. Section 95(3) was inserted in 1993. Section 95(4) was inserted in 1995 by the Courts Legislation Further Amendment Act 1995 (“the amending Act”). The operation of the section, then containing only sub s (1), (2) and (3) was considered by Rogers CJ Comm D in McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190. In that case, the defendants submitted that there was no power in the Court, at least in the Commercial Division, to order a losing party to pay interest on the costs eventually taxed, at any rate from a date prior to the date of judgement. His Honour said (at 192):

“If I may say so, without being thought disrespectful, this is an instance where the parliament has overlooked the creation of the Commercial Division when it dealt with amendments to the Act. More surprisingly, there seems to be no provision in section 95 for a situation where damages are ordered to be paid in the Equity Division of the Court. It is even more surprising to have this situation arise in light of section 76 of the Act. That section provides that, subject to the Act and the Rules, costs shall be in the discretion of the Court and, more importantly, the Court shall have full power to determine by whom and to what extent costs are to be paid. A wide definition is given in subs (2) of the expression ‘costs’. In other words, section 76 self-evidently intends to give the Court the widest possible power and discretion in the allocation of costs. So much so that it has been held in the High Court that costs may be ordered to be paid by a third party.”

His Honour went on to observe that the Court has clear power under the SCA to assess costs for itself and in that assessment to include an amount for interest. It would be odd if the same could not be achieved by taking the orthodox course of requiring costs to be taxed and making an order for interest to be paid on such costs. His Honour ordered interest on costs to be calculated from the time of payment by the successful party to his solicitor.

17 The Explanatory Note which accompanied the amending Act stated:

“At present, interest is only payable on a judgement debt arising under the Supreme Court Act 1970. That interest is calculated from the date when the judgement debt came into being, or from a later specified date. The proposed amendment deals with the calculation of interest on that part of the judgement debt which is an order as to payment for costs. The proposed amendment will allow the Supreme Court to order a party to pay interest on the other party’s costs from the date on which the successful party paid the amount in respect of costs.”

The Second Reading Speech contained the following (Parliamentary Debates (Hansard), Legislative Assembly, 22 November 1995, 3767 – 3769):

“The proposed amendments are minor in nature and have arisen primarily in the course of discussion with respective jurisdictions on improving the administration of the courts. The objects of the bill are:

……

(ii) amend section 95 of the Supreme Court Act 1970 and section 85 of the District Court Act 1973 to more clearly define the existence and circumstance for the exercise of the power to award interest on the amount of taxed costs;

……

In the case of McWilliams Wines Proprietary Limited v Liaweena (NSW) Proprietary Limited the then Chief Judge of the Commercial Division of the Supreme Court, Justice Rogers, proposed that the Supreme Court be amended to allow the court to order an unsuccessful defendant to pay interest on a successful plaintiff’s costs from the date upon which such a plaintiff paid the amount with respect to costs with his solicitor. At present, a litigant claiming damages in a division of the Supreme Court, other than the common law division, cannot obtain interest on moneys paid to solicitors on account of costs. The litigant may have had a sum of money on account of costs to his or her solicitor at a time distant to an order for costs being made and the eventual receipt of a taxed bill. In such circumstances, the litigant will be out of pocket for what may be a number of years. Under section 95 of the Supreme Court Act there is currently no power in the court to compensate such a litigant by allowing the court to order interest to be paid on the money held on account of party-party costs. It is proposed to amend the Supreme Court Act and the District Court Act to confer on the Supreme and District Courts a discretionary power to order that a party against whom a party – party costs order is made also pays interest on such costs to party in whose favour the order is made. The power will be available on the basis that:

1 It is exercised only when the special circumstances of the case warrant the making of such an order.

2 Interest should accrue from the time when the party in whose favour the order is made had made payment or payments to his solicitor in respect of work done or disbursements paid.

3 The entitlement to interest should not be dependent upon taxation or assessment under the Legal Profession Act.

4 The rate of interest should be equal to that prescribed from time to time pursuant to section 95(1) of the Supreme Court Act.”

The problem with these documents as indicators of the intent of Parliament is that the authors appear to proceed with the purpose of remedying a defect in the law revealed by the decision in the McWilliams Wines case, but on the basis of a complete misapprehension of what the Judge decided. True, he criticised the ambiguous state of the SCA, but concluded that the Court did have power to make the disputed order and made it.

18 In the Federal Court in White Industries (Qld) Pty Ltd v Flower & Hart (2000) 103 FCR 559 Goldberg J did not follow the decision in McWilliams Wines, although his Honour was dealing with provisions of the Federal Court of Australia Act 1976 (Cth) which generally corresponded with the SCA before the insertion of s 95(4). His Honour held that, although s 43 conferred a broad discretion upon the Court, it did not extend to ordering the payment of interest on costs prior to the date of the order. His Honour viewed the decision of the Full Court of the Supreme Court of South Australia in South Australian Superannuation Fund Investment Trust v Leighton Contractors Pty Ltd (1996) 66 SASR 509 at 513 as supporting his view. However, his Honour held that the claimant of interest on costs could succeed in this way. If costs which have been awarded in earlier proceedings are sought to be recovered in separate legal proceedings instituted for that purpose, the latter proceedings were for the recovery of money within the meaning of s 51A(1) and the Court had power to award interest. Interest was now sought by an interlocutory application. This could be characterised, with the aid of a statutory definition of “proceedings” in the FCA, as separate and subsequent proceedings, and an order for interest could be obtained accordingly. The SCA does not appear to contain a similar definition

19 There have been cases in New South Wales since the insertion of s 95(4). In Hughes Bros v The Trustees of the Roman Catholic Church [1999] NSWSC 1051 there was a question of whether Foster AJ should make an order awarding interest under section 95(4) in respect of a period before the order. His Honour followed the judgment of Rogers CJ Comm D in McWilliams Wines, holding that a financial detriment can only be compensated by the making of an appropriate award of interest to be paid in respect of those payments. His Honour said at [60]:

“I am satisfied that s 95(4) of the Supreme Court Act 1970 and also s 76 of that Act enables the making of such an order.”

His Honour appears to have taken the view that the decision in McWilliams Wines was good and that s 76 would have justified the order he made although, of course, s 95(4) was by that time available to support it. In Grogan v Thiess Contractors Pty Ltd [2000] NSWSC 1101 Barr J rejected a submission that sub s (4) has no application to a claim for interest on costs in the Common Law Division because such a claim is specially provided for by sub s (3). He continued at [10]:

“Sub s (4) ….. does not fetter the power of the Court to order costs in an appropriate case. The width of the power conferred by the subsection is, I think, consistent with that of the power over the ordering of costs generally: Supreme Court Act s 76; McWilliams Wines v Liaweena (NSW) per Rogers J at 192.”

His Honour appeared to be of the view that McWilliams Wines was correct, and that the general discretion under s 76 was not affected by the insertion of s 95(4). Awards of interest on costs in respect of periods preceding the order have also been made by Dowd J in Cremona v Roads and Traffic Authority [2000] NSWSC 735 and by Bryson J in Maronis Holdings Ltd v Nippon Credit Australia Ltd [2001] NSWSC 854; in both those cases the orders were made in reliance on s 95(4). I have found no case where an award of interest has been made retrospectively to the order otherwise than where the costs on which interest was awarded had actually been paid to the lawyers.

20 The ordinary rules of statutory interpretation apply to the construction of the relevant provisions of the SCA. Two principles require particular consideration in this case in the general context of those rules. The first is that embodied in the maxim expressum facit cessare tacitum. The substance of that principle is that, where an enactment in affirmative words appoints a course to be followed, this may usually be understood as importing the negative that the same matter is not to be done according to some other course. The second relevant principle is that legislation will not usually be construed so that a grant of jurisdiction is derogated from or limited by implication.

21 The operation of the maxim expressum facit cessare tacitum as an aid to construction in the resolution of internal conflicts in a statute is well settled. It embodies the same concept as is embodied in the maxims generalia specialibus non derogant and expressio unius est exclusio alterius: see Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 per Dixon J at 29 – 30; Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 per Reynolds JA at 962 - 963; and Refrigerated Express Lines (A/Asia) Pty Ltd v Australia Meat and Live-Stock Corporation (No 2) (1980) 44 FLR 455 per Deane J at 468 – 469. The locus classicus on the maxim expressum facit cessare tacitum is in the judgment of Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529. That case addressed an apparent dilemma of internal conflict in the Commonwealth Conciliation and Arbitration Act 1904 (Cth). His Honour said at 549 - 550:

“The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organisation are, as I think, conferred by s 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorises. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.

But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co (Burslem) Ltd v Ward ((1868) LR 3 Ex 172 at p 177), Willes J refers to ‘the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorised under other circumstances than those defined’.”

22 This frequently cited passage was most recently discussed by Spigelman CJ in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 676 – 677. After quoting from the passage, his Honour continued:

“This passage has frequently been applied: see, eg, ABB Power Plants Ltd v Electricity Commission (NSW) (t/as Pacific Power) (1995) 35 NSWLR 596 at 599 and 601; PMT & Partners (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 322. ……

To similar effect are the observations in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, where Gavan Duffy CJ and Dixon J said:

‘… When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which may otherwise have been relied upon for the same power.’


See also (at 20-21), per McTiernan J.

This passage has also been frequently applied: see, eg, John v Commissioner of Taxation (Cth) (1989) 166 CLR 417 at 434; Saraswati v The Queen (1991) 172 CLR 1 at 23-24; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; David Grant & Co Pty Ltd (at 276); see also Australian Capital Television Pty Ltd v Commonwealth [No 2] (1992) 177 CLR 106 at 213.”

That case dealt with the tension between the new provisions as to notices of demand and consequential winding up proceedings in Part 5.4 and other provisions of the Corporations Law, as had David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 cited below, and to the same general effect.

23 However, judicial cautions have been given that the maxim must be treated as a rule of logic and commonsense and not as a technical rule of construction, and that it should be applied with caution: see Attorney General (NSW) Ex Rel Franklins Stores Pty Ltd v Lizelle Pty Ltd ibid.

24 The warning ought also be heeded that was given by Mason J (as his Honour then was) in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679:

“The courts will as a general rule strive ‘to adopt that [construction] which would give effect to the words rather than that which would give none’ ( Cargo ex ‘Argos’; Gaudet v Brown (1873) LR 5 PC 134 at 153) and will endeavour to avoid an interpretation of a statute which renders its words redundant or tautologous ( East London Railway Co v Whitechurch (1874) LR 7 HL 81 at 89, 93). However, it is recognized that Parliament is sometimes guilty of surplusage or even tautology ( Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 589). As Jessel MR said in Yorkshire Fire and Life Insurance Co v Clayton (1881) 8 QBD 421 at 424), ‘… it may not always be possible to give a meaning to every word used in an Act of Parliament’. From time to time provisions will be inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular.”

25 As to the principle against the limitation by implication of grants of jurisdiction, in FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 Gaudron J said at 290:

“Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion. The position was put, in relation to statutory discretion, by Earl Loreburn LC in Hyman v Rose [1912] AC 623, at p 631 in these words: ‘It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all.’”
And in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 the Court said at 421:

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words, see FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at pp 283 – 284, 290. See also Knight v F P Special Assets Ltd (1992) 174 CLR 178 at pp 185, 202 – 203, 205.”

In David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation supra the High Court dealt with a situation where there was potential for the application of both of the above principles. Gummow J, with whom the other Justices agreed, said at 275 – 276:

“Paragraph (a) of s 1322(4) confers upon the court a broad authority to declare that any proceeding purporting to have been instituted under the Law is not invalid by reason of any contravention of a provision of the Law. Again, par (d) confers upon the court a broad authority to extend the period for the taking of any step under the Law or any step in relation to a corporation. As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. Here, however, by a later and more specific provision inserted in the Law by the 1992 Act, provision is made with respect to a particular class of application and there is attached a specific limitation as to the time within which an application may be made. The imposition of such a restriction is consistent with the scheme of the 1992 Act.”

In coming to his conclusion as to the interpretation of the provisions, his Honour relied on the use of the word “only” in the material provision and the avowed purpose of the scheme being implemented by the amendments.

26 It should be added that there is high authority for the amplitude of the discretion as to costs conferred by provisions such as s 76 of the SCA. In Knight v FP Special Assets Ltd (1992) 174 CLR 178 the High Court held that costs might be awarded against receivers who were not parties to the proceedings. And the unfettered nature of the discretion was emphasised in Oshlack v Richmond River Council (1998) 193 CLR 72.

27 It has been said that the purpose of the exercise of statutory interpretation is to determine the intent of the legislature. As to the nature of this exercise Chief Justice Spigelman has recently said extra curially (Address to the Government Lawyers’ Convention “The Poet’s Rich Resource: Issues in Statutory Interpretation” 7 August 2001):

“The task of the courts is to interpret the words used by the parliament. It is not to divine the intent of the parliament [ State v Zuma (1995) 4 BCLR 401 at 402; Matadeen v Pointu [1999] 1 AC 98 at 108]. In an era where a purposive approach to interpretation is emphasised, and indeed required by statute [Interpretation Act 1987 (NSW) s33; Acts Interpretation Act 1901 (Cth) s15AA.], the distinction between interpretation and divination is not always observed. The courts must determine what parliament meant by the words it used. The courts do not determine what parliament intended to say [ Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D].

The statutory enactment of the ‘purposive’ approach, directs a court to prefer a construction that promotes the purpose or object of an Act, over a construction that does not promote that purpose or object. The choice is rarely of that kind. Usually the issue is whether to adopt a construction that more completely or to a greater degree ‘promotes’ the ‘purpose or object’. That choice calls for a finer judgment than the ‘purposive’ approach required by statute.

……

The concept of attributing an intention to a legislature poses a number of problems [see for example Bennion Statutory Interpretation (3rd ed) London, 1997 at Ch VIII]. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court. [See eg Brennan v Comcare (1994) 50 FCR 555 at 573 per Gummow J.]”

28 In determining, in the context of the above cited provisions of the SCA, whether the Court has power to order interest on costs as sought in this case, I first take into account the decision in the McWilliams Wines case supra. In my view the decision of Rogers CJ Comm D was correct. It is in my view supported by the decision of the High Court in Oshlack supra as to the amplitude of the power conferred by s 76. Insofar as the decision of Goldberg J in White Industries supra is in conflict with McWilliams Wines, that decision is in my respectful view wrong. The decision in South Australian Superannuation Fund Investment Trust v Leighton Contractors Pty Ltd supra is, in my view, not in point, being decided in a totally different statutory framework. The generality of s 76 would, in the absence of s 95(4), empower the making of the award of interest sought. What effect, then, did the insertion of s 95(4) have? I have come to the conclusion that it has not limited the grant of jurisdiction by s 76 to award costs (including interest on costs). I rely on the principle as to grants of jurisdiction set out in [26] above. So far as concerns the principle embodied in the maxim expressum facit cessare tacitum, I note the cautions contained in [23] and [24] above. In relation to the structure of the SCA provisions, I note that there was no indication, as there was in David Grant by the use of the word “only” and by the purpose of the new set of provisions relating to notices of demand, that the purpose of s 95(4) was to limit existing jurisdiction. When one looks at the extrinsic material, the Second Reading Speech proceeds upon a misapprehension as to what was decided in McWilliams Wines, but certainly evinces no intention to limit jurisdiction, indeed, quite the reverse. In these circumstances, s 95(4) should not, in my opinion, be construed as limiting the discretionary jurisdiction under s 76.

29 On this basis, the orders are empowered. Should they be made? They go beyond the usual justification for such orders, namely, that the successful litigant has been out of pocket by the payment of costs to his lawyers. However, this situation was an unusual one. The first defendant was impoverished. She was impoverished, in part at least, as a consequence of the actions of the plaintiffs: see [1] above and [2], [5], [7] and [11] of my first judgment. To obtain legal representation in litigation in which she has proved successful she had to make special arrangements as to costs, including an approach to a legal profession pro bono scheme. Her lawyers took her case on a speculative basis. They did not require any increment in the quantum of their fees, but stipulated for interest on them from the time a successful outcome was manifested. This was a perfectly fair arrangement. And I do not think she should be left to bear the interest which she has incurred on her costs from her still meagre resources. I propose to order that there be interest on the costs of the proceedings up to 31 March 1999 from that date, which was the date of the initial outcome in her favour. In respect of the costs of the proceedings for Mareva relief and the balance of the costs ordered in her favour on 6 September 2001, interest is sought from 16 August 2001, but I propose to order it from 6 September 2001, the day on which the order for costs was made. Short minutes may be brought in to give effect to this judgment.

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Last Modified: 03/11/2002