Collier v Country Women's Association of New South Wales

Final or interlocutory appeal

1. Mrs Collier submitted that the decision of this Court on 17 February 2017 was interlocutory only and referred to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.7, which provides: 42.7 Interlocutory applications and reserved costs (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
2. Mrs Collier submitted that the effect of UCPR, r 42.7 is that the costs order made by this Court on the interlocutory appeal does not become payable until the conclusion of the Common Law proceedings, which means and includes any appeal therefrom.
3. Mr Papaianni, who appeared on behalf of the CWA, submitted that UCPR, r 42.7 did not apply because this Court's costs order on 17 February 2017 was a final order.
4. It is necessary to immediately clarify some misconceptions underlying the submissions of both parties directed to UCPR, r 42.7.
5. First, whilst a refusal by the Court of Appeal of a leave application is, in a practical sense, final, it has long been regarded as truly an interlocutory decision: Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 at [14]; Sanofi v Parke-Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 152-153; [1982] HCA 9.
6. Second, UCPR, 42.7 applies to the costs of an appeal: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand & Anor v The Macedonian Orthodox Community Church St Petka Incorporated & Anor (No 2) [2007] NSWCA 142 at [49].
7. In the Macedonian Orthodox Church (No 2) case, the Court of Appeal had made earlier orders granting leave to appeal and allowed an appeal from orders of the trial judge and in effect made orders extending the injunction granted by the trial judge so as to restrain the first respondent, referred to as the Association, from paying costs out of its property, other than as specified in the Court order. The Court of Appeal ordered the Association to pay the appellant's costs of the appeal and held that an order sought by the Association that those costs be payable at the conclusion of the proceedings was not necessary. The Court (Beazley, Giles and Hodgson JJA) observed (at [49]) that: The provisions of r 42.7 of the UCPR apply to the costs of an appeal. An order as sought by the Association is not necessary. Contrary to Metropolitan Petar's understanding, an order for costs in respect of interlocutory proceedings is not immediately enforceable. The parties may of course take steps to quantify any such order, but that is a different matter to the question of enforceability. A specific order that costs be immediately enforceable would need to be made to displace the operation of r 42.7.
8. The reasoning of the Court of Appeal seems to be that the costs of an interlocutory appeal are not payable until the "conclusion of the proceedings" being the proceedings from which the interlocutory appeal is brought, unless the Court "orders otherwise" under UCPR, r 42.7(2). This approach gives a broad construction to the words "the conclusion of the proceedings" in UCPR, r 42.7(2). An alternative view would be that the reference to the "conclusion of the proceedings" is a reference to the appeal proceedings, whether an application for leave, or an appeal itself, if leave is granted. That would be consistent with an appeal being properly seen as a separate proceeding: Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union and Another (No 2) (2013) 209 FCR 297 at 299; [2013] FCAFC 34 at [13].
9. Nevertheless I proceed on the basis, favourable to Mrs Collier, that unless the court orders otherwise, the costs of an interlocutory appeal are not payable until the conclusion of the proceedings from which that appeal is brought.
10. However, that is not to accept Mrs Collier's submission that the reference to the "conclusion of the proceedings" in UCPR, r 42.7(2) includes any (final) appeal from the proceedings below. There is no warrant for that construction, and it is contrary to the authorities that recognise that what is involved in an appeal is a separate proceeding. It is also inconsistent with the terms of UCPR r 51.44, which provides that the filing of an originating process for an appeal does not operate as a stay of proceedings under the decision below. Plainly, that rule recognises that an appeal is a separate proceeding.
11. Third, as explained in Macedonian Orthodox Church (No 2), the parties may, of course, take steps to quantify any costs order in an interlocutory appeal, but that is a different matter to the question of enforceability.
12. Fourth, in the present case, the Common Law proceedings concluded (adversely to Mrs Collier) when Adamson J gave judgement on 17 November 2017. Although Adamson J reserved the question of costs, Mrs Collier did not suggest either that this was of any relevance to the application of the provisions of UCPR, r 42.7 or that there is any likelihood of a costs order being made in her favour in the Common Law proceedings (or for that matter the Equity proceedings). It follows on the authority of the Macedonian Orthodox Church (No 2) case that the costs order made by this Court on 17 February 2017 (in the absence of a "otherwise order"), became payable on the conclusion of the Common Law proceedings on 17 November 2017.

Basis of stay application

1. Mrs Collier next submitted that the CWA's pursuit of the costs assessment process was directed to distracting her from pursuing her appeal against the decision of Adamson J. Mrs Collier seemed to contend that such appeal, if successful, would countermand the costs order made by this Court on 17 February 2017. That is not so. Whatever the outcome of the appeal by Mrs Collier, the costs order made by this Court on 17 February 2017 will remain unaffected. That is always subject to the possibility of any separate and successful application by Mrs Collier to set aside the orders of this Court made on 17 February 2017. Any such application would require an extension of time: UCPR, r 36.16(3A) and (3C).
2. It seems, therefore, that the basis of the application for the stay order is that the appeal would, if successful, result in costs orders in favour of Mrs Collier against the CWA in respect of the Common Law and Equity proceedings and the appeal itself which, upon assessment, would exceed the costs order as assessed which this Court made on 17 February 2017 against Mrs Collier and that, if enforcement of that costs order is not restrained by the orders sought, the probability is that Mrs Collier would be made a bankrupt and would be unable to conduct the appeal.
3. The CWA opposed the making of a stay order emphasising that it was entitled to the benefit of the judgment of this Court with respect to the costs of the unsuccessful leave application. The CWA also submitted that no view could be formed as to the likely prospects of the appeal since no notice of appeal had been served, nor was a copy available on the hearing of the application for a stay.

The Court's power to grant a stay

1. Mrs Collier sought the stay orders in reliance on s 135(2)(c) of the Civil Procedure Act 2005 (NSW), contained in Div 5 of Pt 8 of that Act. Section 135(1) provides that the Court may, by order, give directions with respect to the enforcement of its judgments and orders. Section 135(2) provides that without limiting sub-section (1), the Court may make any of the following orders: … (c) an order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the Court.
2. Section 138, which also falls within Div 5, provides: 138 Other methods of enforcing judgments (1) Nothing in this Part limits the manner in which a judgment or order of the court may be enforced apart from this Act. (2) Without limiting subsection (1), nothing in this Part prevents the court: (a) from issuing consecutive writs for the levy of property against the same judgment debtor, or making consecutive garnishee orders or consecutive charging orders in respect of the same judgment debtor, in respect of the same judgment debt, or (b) from making concurrent garnishee orders against different garnishees, or consecutive garnishee orders against the same garnishee, in respect of the same judgment debt.
3. Neither party directed argument to the scope of the power to give directions with respect to enforcement in s 135 of the Civil Procedure Act. That question was discussed by Garling J in Young v Hones (No 5) [2016] NSWSC 822 at [59]-[62]. His Honour noted the competing arguments that s 135 is limited to the methods of enforcement of judgments referred to in Pt 8 of the Civil Procedure Act, or that s 135 extends to include other methods of enforcement such as bankruptcy proceedings.
4. Although not necessary to decide the issue, Garling J expressed a preference for the former view - that the power to give directions in s 135 is directed towards the enforcement provisions contained within Part 8 of the Act, and not to any other provisions for enforcement which are external to the Act such as those under the Bankruptcy Act 1966 (Cth): at [62].
5. Similarly, it is not necessary to decide the scope of s 135 in this case. This is because s 23 of the Supreme Court Act 1970 (NSW) and the Court's inherent powers are a more than adequate basis for the making of the orders, if otherwise appropriate: Young v Hones (No 5) (at [63]), referring to Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico [2004] NSWSC 344 at [14] (Einstein J).
6. It has been said that the inherent power of the Court to stay an action is not confined to closed categories of cases of which vexatious suits are one illustration, but is a power which is exercisable in any situation where the requirement of justice demands it: Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 344 (Wallace P, Jacobs and Asprey JJA).
7. In Tringali, at 344, this Court emphasised that a stay of proceedings should not be lightly granted and the question always remains whether in any particular case the jurisdiction should be exercised and whether it should be exercised before the trial or during the conduct of the trial by the trial judge. I would add also whether it should be exercised after the trial with respect to enforcement of any judgment.
8. Young v Hones (No 5) involved an application for orders restraining the respondents from enforcing the Court's orders for costs, on the basis that prospective proceedings by the applicants would claim a sum of damages which well exceeded the outstanding sums of the costs orders made in earlier proceedings and that, if enforcement of those costs orders was not restrained by the orders sought, the probability was that Ms Young would be made bankrupt and would thus be unable to commence and conduct the prospective proceedings. Garling J said (at [65]): By analogy, when a stay of a final order is sought, pending an appeal, or the prosecution of a cross-claim, or the determination of some other cognate proceedings, the Court will ordinarily require proof, by acceptable means, of the following: (a) that the appeal, or cognate proceedings, are properly pleaded, and disclose an arguable case; (b) that the applicant for the order would sustain prejudice of a kind which could not easily be remedied by orders of the Court, if the stay were not made; and (c) the balance of convenience favours the making of the order.
9. His Honour may be taken to have been referring to the well-known principles applied when exercising the Court's power to grant a stay pending an appeal. See Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383: at [17]-[20].
10. It is not necessary to refer to those principles in any detail other than to note that in such cases, the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2].

Should a stay be ordered?

1. As I have said, the mere filing of a notice of appeal is insufficient to demonstrate an appropriate case to warrant a stay of costs orders made in other proceedings. In circumstances where there is no concession by the respondent that the appeal raises serious issues for determination, it is necessary to consider the grounds of appeal intended to be relied upon. That is not possible here because a copy of the proposed notice of appeal (which Mrs Collier says has been sent by post to the Supreme Court Registry for filing) has not been provided to the Court on this application. Nor is there any draft summary of the argument which Mrs Collier would seek to advance in support of her appeal.
2. Accepting the difficulties confronting Mrs Collier as a litigant in person in identifying error in the judgment below (which I have read), I am not able to discern from Mrs Collier's oral argument any arguable ground of appeal. That is not to say that there are no arguable grounds, it is simply to observe that on the present application, nothing has been identified in support of arguability of the appeal.
3. Turning to the question of balance of convenience or the balance of hardship, the balance of convenience includes the detriment to the CWA which, if a stay were granted, would preclude the CWA from completing the costs' assessment process and deny it a certificate of assessment which would provide the basis for a money judgment in respect of costs on which interest would accrue, and from enforcing its rights in respect of any such judgment.
4. As to hardship to Mrs Collier if a stay is not granted, there is an absence of evidence from Mrs Collier directed to the question of prejudice. Although Mrs Collier deposed in her affidavit (par 12) in support of the stay application, that she would "supply the necessary documentation to assist in the granting of such a Stay of Proceedings", no material was sought to be tendered by her on the hearing of the application.
5. In particular, there is no evidence of the amount of costs claimed by the CWA, the subject of the application for assessment of costs ordered, nor of Mrs Collier's financial position and ability to pay the amount of the judgment that would be obtained by the CWA upon lodging a certificate of costs with the Court: Legal Profession Uniform Law Application Act 2014 (NSW), s 71(3).
6. In oral argument Mrs Collier complained that the costs assessment process, and any subsequent steps to enforce a costs judgment, would distract her from pursuing her appeal against the judgment of Adamson J. However, there is no evidence that Mrs Collier would be forced to incur substantial costs in preparing in connection with the costs assessment process. In any event, whatever the outcome of Mrs Collier's appeal, including as to costs of the Common law proceedings, the CWA is entitled to quantify the earlier costs order made by this Court on 17 February 2017.
7. Accepting that there may be some inconvenience to Mrs Collier in terms of the time involved in dealing with the costs assessment process, it has not been demonstrated that this would inhibit or otherwise prevent her from pursuing her appeal. Nor has Mrs Collier shown that absent a stay of enforcement of the costs order, her appeal would likely be stifled because she would be forced into bankruptcy.
8. It does not appear to me on the material provided to the Court that any particular prejudice will be caused to Mrs Collier if a stay order is not made at this time. Mrs Collier has not demonstrated on this application a proper basis for a stay.

Conclusion and Orders

1. I have concluded that it is not appropriate to grant a stay of this Court's orders of 17 February 2017 based on the materials before the Court on the present application. That conclusion does not foreclose a future application for a stay based on new materials. I make the following orders: 1. Paragraph 1 of the applicant's notice of motion filed on 24 October 2017 (as amended) be dismissed. 2. The applicant to pay the respondent's costs of paragraph 1 of the notice of motion (as amended).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2017