Cappucio, Andrew v Chrysler Australia (Sales) Pty Ltd & Anor [1980] FCA 80

the Trade Practices Act 1974 and sought orders shortening the

time for pleading and for interrogation. On the application,

Mr. Giles appeared for the plaintiff, Mr. J.J.A. Kelly, of Queen's counsel, and Mr. B.J. Salmon, of counsel, appeared for the first-named defendant and Mr. G.A. Stretton appeared for the second-named defendant. After argument, I ordered that the plaintiff have leave to amend his statement of claim generally within fourteen days, I made orders with respect to other matters of an interlocutory nature, I directed that the date fixed for the hearing of the action be vacated and I ordered that the

plaintiff pay the costs of the application and the costs thrown

At the hearing of that application, no request was made that I certify that the application was one proper for the attendance of counsel and, accordingly, the order subsequently drawn up and entered on 5 October 1978 did not contain any such certificate. However, as this action was commenced on 29 December 1977, the Rules of the High Court applied in so far as they were capable of application and subject to any direction of the Court or a Judge.

See s.38(2) Federal Court of Australia Act 1976. Order 71, Rule

62(1) of the Rules of the High Court provide that, where counsel attends at Justices' Chambers, the costs of such attendance shall not be allowed unless the Justice certifies it to be a proper case for counsel to attend. On 19 March 1980, Mr. B.J. Salmon

applied to me for such certificate. The application was opposed

by Mr. K. Crispin, who appeared on behalf of the plaintiff.

Had I been asked on 11 September 1978 so to certify, I would have

certified that the matter was a proper one for the attendance of counsel. The 26 September had been fixed as the date of trial and yet, on 11 September, an application was made for a substantial amendment to the pleadings and for orders with respect to the time to be taken for other interlocutory proceedings. On the hearing of the application for amendment, Mr. Kelly QC pointed out that the statement of claim had already been amended once and that there were unsatisfactory aspects of the further amendment sought. After considering the pleadings, I came to the view that the statement of claim both as drawn and as sought to be amended, was embarrassing. Accordingly, I vacated the date for hearing and gave leave to the plaintiff to amend his statement of claim generally. On a pleading summons,

except in a very clear case, attendance of counsel is both justified and desirable. In this action, the claim as made was not a simple one. In my opinion, the attendance of counsel on the summons was appropriate and, if asked on 11 September 1978 to

Mr. Crispin submitted that the purport of Order 71 Rule 62(1) was that counsel's fees for attendance at chambers should be allowed only in special circumstances. However, the correct principle is that a certificate should be given for counsel's attendance whenever such attendance is appropriate. Counsel's attendance

on a pleading summons is ordinarily both appropriate and

It was next submitted by Mr. Crispin that no certificate should be granted having regard to the failure of counsel to request such certificate at the hearing on 11 September 1978, to the lapse of time which has since occurred and to the fact that the taxation of costs has been completed. Mr. Salmon said that the certificate was not sought on 11 September 1978 because it was not appreciated that such a certificate was required. He said that, although a similar rule appears in Order 65 Rule 38 of the Rules of the Supreme Court of the Australian Capital Territory, it has not been the practice when applications are made to that Court to seek such a certificate. Such argument mistakes the clear distinction between an application made to a Judge sitting as the Court and an application made to a Judge sitting in Chambers. The Rule with respect to attendance at Judges' Chambers does not apply to a motion made in Court. It 1S common for applications to be so made in proceedings in the Supreme Court of the Australian Capital Territory. But the application made to me in September 1978 was an application made to me as a Judge sitting in Chambers. I use the words "in Chambers" to mean public Chambers not private Chambers. The application was made to me aS a Judge not as the Court, notwithstanding that, when sitting in Chambers, a Judge sits as part of the Court exercising the power of the Court. See Kotsis v. Kotsis (1970) 122 CLR 69 per Walsh J at pp.99-100, Such distinction is clearly maintained by both the Rules of the High Court and the

Rules of the Supreme Court of the Australian Capital Territory.

Mr. Salmon explained the subsequent delay on discussions which he said had taken place between the parties with respect to this Matter. Mr. Crispin and Mr. Salmon disagreed as to these events particularly as to whether or not the taxation of costs had been completed. However, since the hearing on 20 March 1980 there has come to my hand a certificate dated 22 March 1979 signed by the District Registrar certifying, "...that pursuant to the order of Mr. Justice Davies made on llth day of September 1978 I have taxed the bill of costs of the first-named defendant, Chrysler Australia (Sales) Pty. Limited, and have allowed the same the sum of $493.90." For the purposes of this application, I am not prepared to go behind that certificate. I take it that the taxation as between the plaintiff and the first-named defendant has been completed. Nevertheless, a party and party taxation is not the only taxation to which Order 71 Rule 62(1) applies. That Rule applies equally to a taxation as between solicitor and client. See Re Chapman (1882) 10 QBD 54. The grant or refusal

of a certificate therefore continues to be a matter of relevance.

In all the circumstances, I think that, if I have power to do so, I should grant the certificate. A mistake was made by counsel and should be corrected. The delay has been great but I do not think that anyone has been disadvantaged thereby. The question

of delay was considered in Hatton v. Harris (1892) Ac 547. At

"Then, said the Attorney-General, 'forty years have passed since the decree in Hill v. Knipe; after such a lapse of time the decree must stand, whether it be right or wrong; it cannot be touched now.' But, my

question. The present Order, following the Slip Order

of 1843, says that the correction of an error arising

from an accidental omission may be made at any time." Delay and the manner in which it may influence the discretion to amend was also considered in Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. (1973) 1 All ER 569 at p.575, Counsel's mistake arose from the practice commonly adopted in the Supreme Court of the Australian Capital Territory whereby applications in interlocutory matters are made by way of motion to the Court. The failure to ask for the certificate was, therefore, a mistake on the part of counsel which, though not inexcusable,

nevertheless was understandable. As such it is, I think, just

Therefore, the issue turns upon my power now to give a certificate whether by way of amendment of the Order which has been entered pursuant to the Slip Rule contained in Order 29 Rule 11 of the Rules of the High Court, or pursuant to the inherent power which I have as a Judge of the Court. In my view, there is appropriate power which may be exercised. The order which had been entered 1s defective in that it does not contain a certificate which it should have contained and would have contained had counsel not in error failed to request it. The grant of a certificate would not now change or make an alteration

of substance to the order made on 11 September 1978 but rather

would give proper effect to what was then in mind by the order

for costs thereby made. Such an amendment was made in Dougherty v. Dougherty (1889) 15 VLR 294 and in McKenzie v. Fyander (1927) VLR 569, in which case, Mann J said, "The proper time to apply for a certificate 1s of course at the time the order is made. But I think I have power to give one subsequently, and I am prepared to exercise it in this case." His Honour then signed a certificate endorsed upon the order.

Other decisions which support the power to grant a certificate at

the present time are Fritz v. Hobson (1880) 14 Ch 542; Chessum &

Sons v. Gordon (1901) 1 KB 694; The Melbourne Harbour Trust

Commissioners v. Cuming, Smith & Co. Propy. Ltd. (1906) VLR 192;

Re Inchcape (Earl of) (1942) Ch 394 and Tak Ming Co. Ltd. v. Yee

Sang Metal Supplies Co., cited above. The high point of the

authorities to the contrary is In re Wetzell; Ex parte The

Commissioners of The State Savings Bank (1919) VLR 14. However,

the authorities were fully considered by the Full Court of the Supreme Court of Victoria in Arnett v. Holloway (1960) VR 22. In that case, Lowe, O'Bryan and Pape JJ took a wide view of the power conferred by the Slip Rule. They reversed a decision of Adam J in which his Honour, after examining the authorities, considered that he did not have power to amend the order which

"In these circumstances, even if the learned judge's view that O. XXVIII, rule 11 is confined to cases where the judgment as recorded has failed to express the intention of the Court be correct (and upon this we express no views), we think that he should have decided that this judgment did not express his intention which, we think, was to give costs on the Supreme Court scale. The fact that in the circumstances as now known he could only give effect to that intention by specifically 'otherwise ordering' does not, we think, affect the question.

We think that this was a case in which the learned judge, having regard to what he has said, should have made the order sought, and that justice required that the judgment be amended accordingly."

I am therefore of the opinion that I have power to grant the certificate and I am of the view that justice would be best achieved if I were to do so. I shall endorse the certificate

upon the Order which was entered on 5 October 1978.

In the circumstances of this application, I think that each party should bear his or its own costs. The first-named defendant seeks the exercise of a discretion to correct an error made by its counsel; yet time and effort have been expended as a result of the plaintiff's unsuccessful opposition to the order sought. Accordingly, I make no order as to costs. I certify for

I note that, as this action commenced prior to 1 August 1979, and aS no contrary order or direction has been made, the Rules governing this application are the repealed Rules, which incorporate by reference the Rules of the High Court, and not the

Federal Court Rules (Statutory Rule No.140 of 1979).

i | CERTIFY THAT THIS AND THE "J PRECEDING PAGES ARE A TRUE COPY OF THE SCCISION AND REASCNS FOR DECISION HEREIN

Signed deheroky avi Dated 4/6 /8O Member/Assoc./Gterk