(iii) Costs of the Motion to Vary Judgment
16On this question, CPHL made two submissions in arguing against the costs order that I had indicated as my preliminary view and in pressing instead for an order in CHPL's favour. First, it is said that the understanding as to the import of Barilla v James expressed in my initial reasons (which I have since been persuaded is incorrect) was one that had been urged upon me by Mr Maroya (but subsequently disavowed in the motion to reopen). I have, in my April reasons, gone in some detail into my reasoning at the time and I do not propose to repeat it here. However, I think it fair to say that the debate at the trial as to the import of Barilla was limited and I do not accept that Mr Maroya should bear responsibility for any misapprehension on my part that ensued from that debate.
17Ms Wass points out that when the motion to reopen was first served it was accompanied by detailed submissions on behalf of CHPL, setting out the basis upon which it would be argued that the court had been led into error and, again, that it would have been open for Dr and Mrs Kopas, on receipt of those submissions, to have consented to the application. It is submitted that, instead, Counsel for Dr and Mrs Kopas served (what were criticised as unnecessarily prolix) lengthy submissions, putting CHPL to the expense of responding to the submissions and arguing the motion.
18On that basis, it is submitted by Ms Wass that it is appropriate that, having succeeded on the motion to vary, CHPL have its costs of the motion on this issue, or at least its costs excluding the preparation of the motion and its initial submissions. Alternatively, it is submitted that no order as to costs of the motion ought be made.
19For Dr and Mrs Kopas it is submitted that the approach I had foreshadowed at [109] of my judgment on the variation application should be followed.
20In particular, it is submitted by Mr Maroya, in effect, that there is no warrant for any suggestion that Dr and Mrs Kopas should have capitulated, without more, to the variation of the judgment in CHPL's favour and that it was necessary (for relief of this kind to be granted) for the Court to address the merits of the application. I agree. In my April reasons I referred to various cases in which the cautious attitude exhibited by the courts towards such applications has been emphasised (see discussion at [25] - [31]). I accept that what CHPL sought by its motion to vary was relief that was by no means a foregone conclusion (however compelling its submissions), for the reason that a single judge, whose decision is susceptible to appeal through readily available channels, will be cautious (as I was) to avoid being cast in the position of hearing an appeal against his or her own decision (to adopt the dicta of Barrett J in New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950). What was therefore necessary was that I be satisfied that there had been an error in reasoning because of some misapprehension of the relevant law. That is not a matter that one would ordinarily be dealt with simply on the basis that the parties had consented thereto.
21In circumstances where I consider that it would have been necessary, whatever the position that Dr and Mrs Kopas had taken to the application, for CHPL to make out its case for a variation of the judgment, the most that could be said is that (in seeking, not surprisingly, to preserve a judgment favourable to them) Dr and Mrs Kopas had caused additional costs to be incurred in presenting an argument against the application. I do not consider that they can be criticised for so doing.
22Mr Maroya, in oral submissions on this costs application, has taken me to Stanley & Ors v Layne Christensen Company & Ors [2006] WASCA 56 and to The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2) [2007] NSWSC 797 for the proposition that where what is sought is, in effect, an indulgence then the general rule is that the party seeking that indulgence will be required to pay the costs of the application including the costs thrown away as a result and will not normally receive the costs of the application.
23In Stanley , Wheeler JA having noted that general rule added (at [52]):
However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence. That is implicitly recognised in Briggs at 14, where Owen and Parker JJ appear to accept that an unreasonable withholding of consent might form an appropriate basis for a ruling on costs which departed from the "normal rule" relating to indulgences. However, in that case their Honours considered that it could not be said that the other party was unreasonable to require that the proposed amendment be justified to the satisfaction of a judicial officer.
24In the Presbyterian Church case, Young CJ in Eq (as his Honour then was) said (at [6]):
Despite what the Court of Appeal said in Fordham v Fordyce [2007] NSWCA 129, that there was no overarching principle known as "The Indulgence Principle", there are a series of decisions in this Division which made it clear that where one is seeking a boon one usually has to pay the costs and even if the boon is granted, that those principles should be applied.
25I remain of the view expressed in my 14 April 2011 reasons that CHPL should bear the costs of its application to vary the judgment (and for leave to amend). The cases to which Mr Maroya has referred fortify me in that view.
26In circumstances where the occasion for those costs to be incurred might not have arisen had there been a more focussed debate on the issue at the trial, I remain of the view that Dr and Mrs Kopas should not be required to bear the costs of such an exercise after the event, so to speak. Although I accept that in the ordinary course costs will follow the event, I consider that this is an instance of an exceptional circumstance in which there should be a departure from that rule and, as Mr Maroya submits, a costs disposition of the kind foreshadowed at [109] of the judgment on the variation application is the price that CHPL should now pay for its success on that motion.
27The only question then is to how the offsetting arrangement that I had foreshadowed should be put in place. What I had envisaged was that the outcome of the orders would be to offset one costs order against the other such that a reduced sum would at the end of the day be payable to CHPL (since, fairly obviously, the costs of the motion to vary would be expected to be substantially less than the costs of the main proceedings).
28What was raised by CHPL was the potential unfairness in the operation of the proposed set-off as between opposing costs orders because of the fact that Dr and Mrs Kopas have (for at least some time prior to and during the hearing before me) been the recipient of legal aid.
29Ms Wass submits that it is likely that Dr and Mrs Kopas will not in fact have to pay any costs as it has been asserted by the Legal Aid Commission that they are both relevantly legally assisted persons under the Legal Aid Commission Act . Thus there is a concern that Dr and Mrs Kopas may be able to enforce a costs order against CHPL (for the motion to vary) in circumstances where CPHL would not be able to enforce the costs order in its favour against Dr and Mrs Kopas (giving rise to what is said to be an unintended unfairness).
30Mr Maroya submits that no such unfairness would operate against CHPL (largely, as I understand it, because of the submission that the costs of the motion to vary should be regarded as the price for the relief obtained on that application). Mr Maroya characterises this as an incident of the particular step that CHPL chose to take in the litigation. (Mr Maroya further submits that if a costs order of the kind I foreshadowed during oral submissions were to be made, then this would have the effect that CHPL would not actually pay the price for the indulgence it had received.)
31Both Ms Wass and Mr Maroya have noted that s 42 of the Legal Aid Commission Act requires the court to make an order as to costs in respect of a legally assisted person as if he or she were not a legally assisted person. In Khoury v Hiar [2006] NSWCA 47, the Giles JA, with whom Beazley and Bryson JJA agreed, noted that s 42 not only contemplates but also required that the Court "make an order [there, referring to circumstances in which the court would have made an ordinary in the instant case against a party not being legally assisted] against a party for costs for which, by s 47, the party was not liable". Thus an order for payment of costs could be made but s 47(1)(b) would mean that the legally assisted person was not liable to pay those costs. In his Honour's words, "the non-liability was qualified in that the words permitted the co-existence of the order for payment of the costs".
32Mr Maroya thus submits that s 42 has no effect upon the costs disposition that I had put forward as my preliminary view in [109] of the April judgment.
33Somewhat ironically, however, both Ms Wass and Mr Maroya (albeit from different perspectives) in their submissions on the operation of the set-off I had proposed, appear to draw in aid the consequences of Dr and Mrs Kopas being legally assisted - Ms Wass in pointing to the potential unfairness of the proposed set-off (in circumstances where CHPL is unlikely to recover any further payment for its costs) and Mr Maroya in submitting that the set-off would mean that CHPL does not actually pay the price it should for the indulgence it has received on the motion to vary (since that effect only arises on the assumption that there is otherwise no effective set-off).
34What I had in mind at the time of my April judgment was that, while CHPL should be required to bear the costs of the motion it had brought, it should at the same time be able to set-off the burden of the costs orders in favour of Dr and Mrs Kopas against its entitlement to the benefit of costs orders in respect of the main proceedings. The practical effect of what I had envisaged was that the total amount of the costs payable to CHPL would be reduced. (That remains the result irrespective of the position of Dr and Mrs Kopas as legally assisted persons.) In other words, what I had in contemplation was the net result of the respective costs orders.
35Leaving aside (as the Act requires the court to do) the status of Dr and Mrs Kopas as legally assisted persons, what I consider appropriate is that the amount payable to CHPL should be reduced by an amount referable to the motion to vary. One way that such a result could be achieved would be to make off-setting orders and for each to be separately enforced. That would in the ordinary course give rise to the potential for separate costs assessments and increased fees arising by what seems likely to be the inevitable duplication of costs in that regard. (Just such a scenario was considered undesirable by Hulme J in Dubow v Fitness First Australia Pty Ltd [2007] NSWSC 1390, where his Honour made separate costs orders but stayed their execution, though permitting the parties to seek a costs assessment, with the expressed intent that there be a set-off with only one lump sum payment ultimately to be made.) An alternative way would be to make an order that would have the effect that the process of set-off take place upfront.
36The merit of the alternative approach (irrespective of whether one of the parties is legally assisted) is that only one cost assessment process is necessary and the only order that would need to be enforced is for the net figure.
37In the circumstances, that is the order that I consider best meets the statutory objectives under the Civil Procedure Act and is the order that ought to be made irrespective of the fact that Dr and Mrs Kopas are legally assisted persons. It is therefore the order that, in accordance with s 42 of the Legal Aid Commission Act , is required to be made as if they were not legally assisted persons.
38Accordingly, as foreshadowed during the course of oral submissions, I will order that Dr and Mrs Kopas pay the costs of CHPL (on a party/party basis) as agreed or assessed of the proceedings up to and including 9 February 2011, less such amount (as agreed or assessed) as represents the costs incurred by Dr and Mrs Kopas of the motion to vary the February judgment and that there be no other order as to costs.
39Finally, I note that there was a submission made by Ms Wass that (in circumstances where Dr and Mrs Kopas are unlikely to pay any costs and notwithstanding any other orders made), Dr and Mrs Kopas should be required to pay the outstanding Court hearing fees (in the order of around $7,000) (which are payable by CHPL in its capacity as the plaintiff but which would be recoverable in the ordinary course from the defendants as part of the costs order in its favour). This submission is put on the basis that, had the matters in the cross-claim not been raised, the matter would have been a one-day hearing (the fee for which has already been paid by CHPL). It is submitted by Ms Wass that it is appropriate, in the exercise of the Court's discretion, that Dr and Mrs Kopas be ordered to pay the remainder of the fees pursuant to clause 10(1)(b) of the Uniform Civil Procedure Regulations 2005 .
40Mr Maroya resists that application as an inappropriate exercise of curial discretion, being inconsistent with clause 13(2)(a) of the Uniform Civil Procedure Regulations 2005 that provides that:
(2) The fee is not to be taken at all, or if taken must be remitted, if:
(a) judgment in the proceedings is against the legally assisted person.
41Mr Maroya further submits that such an order would be of no utility (as I understand it, on the basis that any such payment would be required to be remitted).
42It seems to me that an order of the kind now sought by Ms Wass would be inconsistent with the requirements of s 42 of the Legal Aid Commission Act (since the only basis for the order is that Dr and Mrs Kopas are legally assisted persons and CHPL will therefore not be able to recover from them the fee that under the regulations it is required to meet). What CHPL is, in effect, seeking to do by this particular application is to obtain a waiver of the hearing fee for which it is liable and which it anticipates (probably correctly) that it will be unable to recover.
43If CHPL wishes to make an application for waiver of the fee then it should do so in the normal course (though I note that the published guidelines suggest that there will not generally be a waiver of the fee where the party liable to pay it is a corporation).
44In the circumstances, I do not consider it is open to me (and in any event I am not prepared) to make any order in relation to the hearing fee.
Orders
45I make the following orders:
- Order Dr and Mrs Kopas to pay the costs of CHPL (on a party/party basis) as agreed or assessed of the proceedings up to and including 9 February 2011, less such amount (as agreed or assessed) as represents the costs incurred by Dr and Mrs Kopas of the motion to vary the February 2011 judgment.
2.There be no other order as to costs.