Bell v Macquarie Bank Limited

REASONS FOR JUDGMENT 1This judgment concerns two notices of motion filed by Macquarie Bank Limited and Macquarie International Capital Markets Limited seeking supplemental orders to the costs orders made on 12 September 2002 in Matter Nos IRC 6973 and 6974 of 1997 by Schmidt J in Bell v Macquarie Bank Ltd [2002] NSWIRComm 235; (2002) 117 IR 281 and on 23 October 2003 in relation to Matter No IRC 5638 of 2002 by the Full Bench in Bell and Berg v Macquarie Bank Ltd [2003] NSWIRComm 363. 2In the first matter, Schmidt J made cost orders against the applicants, Michael Charles Bell and Charles Joseph Berg, as follows: [295] The usual order as to costs would be that the applicants bear the respondents' costs, as agreed or assessed. If the parties cannot agree as to the appropriate costs orders, they have liberty to approach within 21 days of the date of judgment. 3In the second matter, which was an appeal by Mr Bell and Mr Berg from her Honour's decision and orders, the Full Bench made the following costs order: ... 3. The appellants shall pay the respondents' costs of the appeal in an amount as agreed or in default of agreement, as assessed. ... 4The notices of motion sought to have the Court, rather than a costs assessor, assess the costs awarded against Mr Bell and Mr Berg in the amount of $300,000 each. 5Having heard counsel for the applicants on the motions on 8 December 2010, the Court made the orders sought. What follows are the Court's reasons. 6In the proceedings on 8 December 2010 the applicants on the motions sought leave to dispense with the service of the motions and to have the motions heard ex parte. The reason for doing so was that the applicants had been unable to find either Mr Bell or Mr Berg. Apparently they had left Australia, and whilst some information existed that Mr Berg had moved to the United States of America (but could not be found), no trace had been found of Mr Bell. 7Evidence of attempts over a number of years to trace Mr Bell and Mr Berg was provided in affidavits of Mr Bryan Belling, the applicants' solicitor on the record and Mr Jeffrey John Cox, Managing Director of ASAP Process Services Pty Ltd. Mr Cox's firm had been engaged in April 2009 to conduct an investigation to locate Mr Bell and Mr Berg, but had been unsuccessful despite efforts during 2009 and 2010. I note that Mr Bell and Mr Berg were in Australia, according to the evidence, at the time the costs orders were made. 8Rule 10.1 of the Uniform Civil Procedure Rules 2010 ("UCPR") provides the Court with the discretion to dispense with service of filed documents. I was satisfied that reasonable efforts had been made by the applicants to locate Mr Bell and Mr Berg for the purpose of service. Neither person was able to be located. Accordingly, I considered it appropriate to dispense with service and to hear the applications ex parte. I note the preservation of the respondents' rights to seek the judgment be varied or set aside under UCPR 36.16. 9The situations where supplemental orders may be appropriate were identified by Allsop J in Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 at 569: Thus, the common law appears to recognise, relevantly, at least four relevant possible bases for the exercise of power to deal with entered orders (i) ambiguity, invoking the need for construction, (ii) where the order does not reflect what the court decided, (iii) where something is to be added not dealt with by the court, which circumstance is probably limited to "ancillary" or "consequential" matters, and (iv) a supplemental order, the need for which arises from circumstances occurring after the order was made. (I leave aside the slip rule, fraud and self executing orders.) See also Preston Banking Company v William Allsup & Sons [1895] 1 Ch 141 at 143-144; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235. 10I accept the submissions of the applicants that the Court has power to make a supplemental order regarding the assessment of costs. The power of the court to assess costs arises under s 181 of the Industrial Relations Act 1996 and s 98 of the Civil Procedure Act 2005, which grant a wide discretion to determine to what extent costs are to be paid, at any time during or after the conclusion of proceedings. Section 98(4)(c) provides: