CA Australia v WA Jacobs

Judgment 1This is the hearing of a notice of motion filed on 17 January 2012 in which the defendant/cross-claimant seeks a review of a decision of Registrar Musgrave on 21 December 2011. 2The learned Registrar was dealing with a notice of motion filed 11 November 2011 in which the plaintiff/cross-defendant sought that the defendant/cross-claimant provide security for costs in respect of the cross-claim which had been brought by way of cross-summons. 3The Registrar dealt with the matter on 21 December 2011 and ordered the cross-claimant to pay $35,000 as security for costs, plus costs and stayed the cross-claim pending payment of the security. It is from that decision that the present review is brought. 4There were estimates of costs put before the Registrar of $52,600 and concessions were made that an appropriate amount was somewhat less. There is no dispute with the amount the Registrar has ordered which is plainly reasonable. The only question is whether there should be an order for security.

Law on review of Registrar's decisions 5In Tomko v Palasty (No 2) [2007] NSWCA 369 the Court of Appeal recently dealt with the nature of review with which I am concerned. Basten JA after an extensive review of the authorities concluded at paragraph 52 in these terms: "52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a 'review', pursuant to section 121 (3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a Court may be less inclined to intervene in relation to a decision concerned with the management of an ongoing proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a Court may be more inclined to intervene on a review based on fresh evidence, changed circumstances; or whether error is demonstrated in the decision under review." 6The other members of the Court were Hodgson JA and Ipp JA. Ipp JA agreed with what was said by Basten JA subject to the adoption of the additional remarks of Hodgson JA. Those additional remarks appear in paragraphs 6 to 10 of the decision, and are as follows: "6. I agree that a review of a decision of a Registrar is not an appeal, subject to section 75A of the Supreme Court Act; and that in such a review a Court must exercise its own discretion. 7. In my opinion, this discretion extends to a discretion as to whether, and if so how to intervene; and in my opinion, there is an onus on a person seeking to have a Court set aside or vary a Registrars decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so. 8. In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a Court may not think that the interests of Justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one; 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of Justice require this. It may decide to substitute its own discretionary decision for that of the Registrar, even though no House v The King error is shown, again if it is satisfied that the interests of Justice require this. To that extent, the review may be considered a de novo hearing. 10. In my opinion, this approach is consistent with the position that such reviews are not appeals and involves the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR (NSW) 318 at 323. It is also consistent with the general principle concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence." 7Hodgson JA recently reaffirmed these views in Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11. His Honour said at paragraph 16 to 19 the following; " As I have said, the matter comes before me on an application to review the Registrar's decision. 17. As regards the nature of such a review and the grounds on which such decisions can be reviewed, I adhere to what I said in Tomko v Palasty (No 2) [2007] NSWCA 369 at paragraphs [4] to [10]. 18. Thus in my view a review of a decision of a Registrar is not an appeal, and in such a review a Court must exercise its own discretion. This discretion extends to a discretion as to whether and if so how to intervene, and there is an onus on a person seeking to have a Court set aside or vary a Registrars decision to make out a case that the Court in the interest of Justice should exercise its discretion to do so. 19. In a case of a decision on practice or procedure, this will normally require at least a demonstration of error of law or an error of the kind referred to in House v The King [1936] HCA 40; 55CLR 499, or a material change of circumstances or evidence satisfying the requirements of fresh evidence." 8Plainly, this is a matter which is concerned with practice and procedure and the limitation referred to by Hodgson JA will apply. 9The reference to House v The King [1936] 55 CLR 499 is a reference to what was said at page 504 of that case in these terms: "But the judgement complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the Court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 10Having regard to the approach which the court must take it is here that we have the first difficulty in this matter. 11I am informed that the Registrar gave detailed reasons for his decision as would usually be expected. Normally the court must take these into account in accordance with the above authorities. However, in this case the court reporting services failed and the transcript of the hearing before the Registrar says there was a fault in recording equipment. Thus we have no reasons. 12Plainly because there are no reasons available, I will proceed on that basis. However, I emphasise that the Registrar did give full reasons but they are simply not available to me when considering this application for review.