Australia and New Zealand Banking Group Limited v Manny

2. The receivers and managers of certain properties owned by companies associated with Mr Manny, and the liquidators of some of those companies both sought their costs.

4. I made orders, however, that Mr Manny pay the costs of those parties, namely (as described in the proceedings) the First Defendants to the Amended Counterclaim and the Second Defendants to the Amended Counterclaim.

6. Mr Manny initially appealed against four of the orders made by Master Mossop. These four orders included an order that the counterclaim be struck out, though with an opportunity to re-plead, subject to the requirement that filing of any amendment only be permitted with leave of the Court, and an order that the counterclaim be heard separately to the claim of the plaintiff, the Australia and New Zealand Banking Group Ltd (the ANZ Bank). He later amended his appeal to include all the orders of the learned Master which are set out in Australia and New Zealand Banking Group v Manny (No 4) at [30].

7. Since the receivers and managers and the liquidators were only made parties to the proceedings by the counterclaim, they were vitally interested in the appeal. They were entitled to be present as parties.

8. Mr Manny correctly submitted that they played little active part in the proceedings, though I did seek information from them at one point in the hearing.

9. Nevertheless, it does not seem to me that costs are necessarily payable by the number of words uttered by a party during a hearing. It is not uncommon for a party not to be called upon to respond to submissions by another party but nevertheless to receive their costs. The receivers and managers and the liquidators, to use the words of Pape J in Vucadinovic v Lombardi [1967] VicRp 10; [1967] VR 81 at 87, "did not seek to be brought to this litigation - [they were] brought there by [Mr Manny]".

10. Mr Manny had, by the nature of his appeal, put at risk the interests of the receivers and managers and the liquidators, entitling them to appear at the hearing to protect those interests, if necessary. It was ultimately not necessary because Mr Manny could not make out his case. Mr Manny must be held to have litigated at his own risk as to costs (Milne v Attorney-General for Tasmania [1956] HCA 48; (1956) 95 CLR 460 at 477).

11. The ANZ Bank, however, was in a somewhat different position. It challenged the validity of the appeal, asserting that it was a nullity because it had been brought in the wrong court. See Australia and New Zealand Banking Group Ltd v Many (No 4) at [38]. I ultimately held against that argument, and proceeded to consider the appeal.

12. When I delivered judgment, Mr J Larkings, who appeared as agent for the lawyers for the ANZ Bank, advised me that he had no instructions as to costs.

13. It is not uncommon for parties to need time to consider their position in relation to costs following judgment, though it is not usual for a successful party not to have instructions at least as to whether to claim costs. It is common for parties to wish to read the reasons for decision or otherwise to need time before making submissions as to costs. The court not infrequently will permit written submissions as to costs to be made later in such cases.

14. In order to avoid that eventuality, I invited Mr Larkings to obtain instructions forthwith. I stood the matter down for ten minutes to enable him to obtain those instructions so that the matter could be dealt with then and there, thus avoiding the need for written submissions or further delay.

15. When I resumed, Mr Larkings applied for an order that Mr Manny pay the costs of the ANZ Bank. Regrettably, Mr Manny did not return to the hearing after the adjournment, although he must clearly have known that I was going to deal with the matter at that time. Mr Manny had arrived quite late for the judgment, but he did not indicate any reason why the short adjournment was inconvenient or would otherwise prejudice him.

16. In the circumstances, I proceeded in his absence and, upon Mr Larkings advising me that the ANZ Bank did seek its costs of the appeal, I indicated the orders I proposed to make and heard from Mr Larkings. He did not seek an opportunity to make further submissions.

17. My provisional view was that, while the ANZ Bank was entitled to its costs of the appeal, as costs ordinarily follow the event (Oshlack v Richmond River Council [1993] HCA 11; (1998) 193 CLR 72 at 97; [67]), it should not receive the costs involved in its pursuit of the challenge to the validity of the appeal on which it has not succeeded.

18. I could have made an order that the ANZ Bank not have the costs of that issue, an order described by Middleton J in BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [23]. There can, however, be difficulties for the Registrar in assessing such costs to identify the items which constitute the issues.

19. Here, the relevant constituents seemed to me to be easily identifiable (the written submissions of the ANZ Bank and the time in the hearing which addressed the issue), and so fairness and justice would permit me to make an order addressing that directly. It is, it appears, a more pragmatic approach: Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 at [15].

20. In such circumstances, a party which or who has not prevailed on an issue may be ordered to pay the other party's costs. Indeed, Mr Manny, in the submissions to which I refer below (at [25]), submitted that the ANZ Bank should pay his costs of that part of the hearing. In my view, there were two reasons why I should not adopt this approach. It usually applies where the party raised the relevant issue improperly or unreasonably. Such was the approach in Re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at 1214 and in Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 at [96]. I do not consider that it was unreasonable or improper for the ANZ Bank to have raised the issue that is a difficult one with not always easily reconcilable authorities on the subject.

21. Secondly, as Mr Manny was unrepresented, his entitlement to costs is very restricted, as identified in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410-15.

22. For these reasons I considered, provisionally, that, while the ANZ Bank should not have its costs of the written submissions it filed on the validity of the appeal and a proportion of the hearing on the day, it was not fair and just that it should pay any costs of that issue.

23. In the light of Mr Manny's absence, however, I held that my provisional view should be communicated to Mr Manny and that he be invited to make written submissions within seven days.

24. I received some submissions from Mr Manny in initially as an email to my Associate, even though Mr Manny must have know that this was inappropriate, as my Associate had so informed him on previous occasions. It was necessary for him to file them through the Registry, though whether electronically or in hard copy is a matter for the Registry.

25. Mr Manny then did file submission in the appropriate way. I have carefully considered them. As noted above (at [20]), he submitted, inter alia, that the ANZ Bank should pay his costs of the argument about the validity of the appeal. I have already addressed that earlier (at [20]-[21]).

26. Mr Manny submitted that 95% of the hearing was taken up with the submissions of the ANZ Bank about which it was unsuccessful. That is not correct.

27. Initially, Mr Manny made an application to vacate the hearing (which occupied sometime in the morning before the ANZ Bank made its application). It was supported by a thirty page written submission. I rejected that application before considering the application of the ANZ Bank to dismiss the appeal.

28. The question of the valid constitution of the appeal was resolved shortly after the luncheon adjournment. The balance of the hearing, which did not conclude until 4:30 pm, was taken up with the appeal. It seems to me that about half the day of the hearing was taken up with the ANZ Bank's application and the other half with the appeal.

29. Mr Manny submitted that he "did not make any submissions on the appeal in the hearing". He also submitted that he "only made written submission in which cost nothing to the plaintiff [sic]."

30. That submission is also incorrect. Mr Manny made a number of submissions on the appeal, addressing a number of issues to which I referred in Australia and New Zealand Banking Group Ltd v Manny (No 4) at [73]-[78], [83]. This took at least 2 hours in the afternoon. A number of those were referred to orally, as well as being addressed in writing in the later written submissions received.

31. Accordingly, I do not consider that a reasonable allowance for the time taken at the hearing on the issue on which the ANZ Bank did not succeed would be, although it was substantial, 95% of the hearing, as submitted by Mr Manny. That simply does not accord with the record. It was more reasonably to be set at one half of the hearing of the appeal.

32. Mr Manny further noted that the subsequent written submissions, to which I did not require the ANZ Bank to reply (see Australia and New Zealand Banking Group Ltd v Manny (No 4) at [119]), "cost nothing to the plaintiff [i.e. the ANZ Bank]".

33. Mr Manny suggested that he had then, with my leave given afterwards, as noted in Australia and New Zealand Banking Group Ltd v Manny (No 4) at [119], provided "a short submission" which was filed on 24 October 2013. It was not, in any sense of the word, a "short submission", consisting of a total of 20 pages of submissions and 32 pages of attachments. I did not require the ANZ Bank to reply to those submissions.

34. This, he submitted, would mean that "there was not much costs incurred by the ANZ Bank until here [sic]".

35. Again, this is misconceived. The ANZ Bank received a copy of the submissions and was required to peruse them. The submissions were part of the proceedings and, as I have noted above, were part of proceedings brought by Mr Manny in which the ANZ Bank was entitled to participate.

36. Thus, the precise amount of the charges that may be allowed on any assessment for perusal and other work (see r 1751(2) of the Court Procedures Rules 2006 (ACT)) will be a matter for the Registrar. So far as this item is concerned, the amount may be small, but it is not for me to decide at this stage.

37. Mr Manny also submitted that the ANZ Bank did not need to appear on 2 December 2013 when I delivered my decision on the appeal. He submitted that "[t]he ANZ Bank could have got the orders from the web site of the court". Ordinarily, a party is entitled to appear to receive a judgment. That is often desirable or necessary, for there may be consequential orders sought. Often there will be the question of Calderbank offers (Calderbank v Calderbank [1975] 3 WLR 586) and the like that need to be considered.

38. In any event, this is a matter for the Registrar when assessing costs to determine whether the costs of such an attendance was "fair and reasonable for the attainment of justice or for enforcing or defending the rights of the party": r 1751(2) of the Court Procedure Rules. While not binding the Registrar on any assessment in this case, I consider that an attendance to receive judgment would ordinarily be recoverable under this rule unless a case was made out in the particular case to the contrary. That may require special circumstances.

39. Mr Manny repeated his many and, as yet, quite unsubstantiated allegations against the ANZ Bank, often in extravagant terms. They were not relevant to the issue I am deciding.

40. Having carefully considered the matters put by Mr Manny, I am not persuaded that my provisional view is in error and I will make an order along those lines.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.