FAI GENERAL INSURANCE CO LTD v BURNS

Court of Appeal (NSW)|1996-07-12|Before: Rolfe J, Mahoney P, Rogers CJ, Priestley JA

FAI GENERAL INSURANCE CO LTD v BURNS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY JA and ROLFE AJA 12 July 1996, 15 August 1996

Costs - Indemnity costs - Discretion of trial judge - Case management in commercial litigation - Hearing aborted by defendant - Effect of delay by one party - Duty to court - Whether indemnity costs appropriate. Practice and Procedure - Court of Appeal - Costs appeal - Circumstances in which appellate court will interfere with trial judge's discretion as to costs.

Costs - Appeal against indemnity costs order by judge in Commercial Division of Supreme Court - Insurance case - Identification of issues by defendant insurance

company at late stage - Hearing aborted by defendant - Effect on case management by judge - Effect of delay by one party on expeditious disposal of matters in commercial litigation - Costs order subsequently made against

defendant insurance company - Held: appeal dismissed, it is appropriate that a court consider the award of indemnity costs where, by failure to adhere to proper procedure in litigation, time and costs have been wasted.

Huntsman Chemical Co Aust Ltd v International Pools Aust Ltd (1995) 36 NSWLR 242; Multiocon Engineering Pty Ltd v Federal Airports Corporation (NSW Supreme Court, Rolfe J, 20 June 1996, unreported) referred to.

Practice and Procedure - Court of Appeal - Appeal against costs order - trial judge's discretion to award indemnity costs against defendant - Circumstances in which appellate court will interfere with trial judge's discretion as to costs - Appellant must show a relevant error of principle or of fact which caused the trial judge's discretion to

miscarry to warrant interference by appellate court - Held: appeal dismissed, no error on part of trial judge such as to vitiate indemnity costs order, observations on conduct of parties in commercial litigation.

Fowdh v Fowdh (Court of Appeal (NSW) 4 November 1993, unreported) applied. Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 referred to.

Mahoney P This appeal concerns the costs of a commercial cause incurred during some five and a half months of its pendency. The Chief Judge of the Commercial Division endeavoured, over that period, to isolate for hearing the main issues in dispute between the parties. He failed: the failure was, he concluded, the fault of the appellant FAI General Insurance Co Ltd ("FAT'). He ordered FAI to pay the costs incurred during that period on an indemnity basis.

It may be that FAI sees at stake an important principle. The Court does not know the amount of the costs in question; it does not appear from the appeal papers and, upon enquiry upon the Court, the amount did not appear. But the appeal papers extend over some 525 pages and the Court has had the benefit of many pages of written pages, of oral submissions by Mr Gee QC, with Mr Seib, for FAI and Mr Rayment QC who appeared alone for the respondents Mr Burns and Mr Henderson. It would appear that some issue of importance must be involved.

The facts, though detailed at length in the appeal papers, may for present purposes be summarised briefly. Burns Philp Trustee Co Ltd was a trustee in, as it has been described, the Estate Mortgage matter. Mr Burns and Mr Henderson were directors of the company at particular times. Extensive litigation is proceeding in which, inter alia, Mr Burns and Mr Henderson are sued. Insurance policies had been issued by FAI in respect of the affairs of the trustee company. Mr Burns and Mr Henderson claimed they were entitled to the benefit of some or other of such policies.

On 2 October 1991 FAI repudiated liability under relevant policies. Mr Burns and Mr Henderson, being desirous of knowing their position in respect of indemnity in the large litigation, sought to have their rights under the relevant policies declared. On 23 April 1992 they took proceedings in the Commercial Division of the Court. The proceeding was, in the main, dealt with by Rogers CJ of CommD.

The summons, as amended from time to time, and the defence filed by FAI came before the Court. It was plain that the proceedings between the plaintiffs and FAI could be long and complicated. On 24 July 1992 Rogers CJ of CommD commenced, as they were described, "case management" efforts to isolate the essential issues for decision and to evolve a convenient method of determining them.

As was the practice in the Commercial Division, the matter was listed before his Honour from time to time and these matters were discussed by him with the parties. His Honour apparently concluded that it would be of assistance in determining the matter or a substantial part of it to isolate for separate decision the main issues involved or those which, at that stage, could conveniently be dealt with. The Court is, I believe, entitled to know that this is a beneficial procedure frequently adopted by the Commercial Division at that time.

In order to understand what was done, it is necessary to refer to the issues as they then emerged. At the risk of some inaccuracy, I shall refer to them only in general terms; I shall omit the qualifications and exceptions which a full statement of what took place would involve.

The relevant policies covered the liability of, as it was claimed, the plaintiffs and of the trustee company and others. The policies originally in force were, "extended" during a subsequent year or years. FAI contended that it had not been told things which, had they been told to it, would have caused it not to agree to the insurance or, it may be, to agree on other terms. It was by reference inter alia to matters of this kind that liability was denied by FAI. It appears that the determination of the non-disclosure (fraudulent or otherwise) would have involved long and complicated litigation. His Honour and, I believe, the parties saw it desirable to avoid that if they could. One way of doing this was suggested, by the judge or the plaintiffs. It was, in general, to the following effect. The plaintiffs would, for the purposes of this aspect of the matter, concede without admitting that non-disclosure or fraud warranting repudiation had taken place. It was conceived that his Honour, upon such a concession, should consider whether, notwithstanding the concession, the plaintiffs were indemnified first, because the relevant disclosure had been waived by FAI or second, because (on the basis that the plaintiffs were not parties to the policies and had not themselves been guilty of the relevant conduct) their policy rights remained in force.

URJ FAI GENERAL INSURANCE CO LTD v BURNS (Mahoney P) 3

A third issue arose under the Insurance Act 1984 s48. This was to be referred to the Court of Appeal for separate determination. And, of course, the issue of disclosure or non-disclosure, fraudulent or otherwise, would remain outstanding between the parties. If the plaintiffs succeeded upon the waiver issue or were otherwise not bound by what had been done by others, presumably they would or could have a declaration that they were entitled to indemnity without the non-disclosure issues being determined. If they failed, the non-disclosure issues would, of course, have to be determined.

In this context, the matter came before his Honour on 18 September 1992. Mr Rayment QC for the plaintiffs tendered draft orders providing for the determination of separate issues (these have been referred to as documents A and C). There was discussion between his Honour and the parties as to whether those documents should be accepted as stating the issues between the parties. As appears from his Honour's "Summary of Current Position" which he made on 2 February 1993, the representative of the defendant then said:

"We would be content if this were to occur: If orders were to be made in accordance with A and C on the basis that as between themselves the parties will exchange pleadings privately and then the parties envisage that they will through their senior counsel attempt to further delineate the question, if necessary, and we ask your Honour's leave to come back and substitute any further questions which arise on the delineation".

His Honour agreed to that course. He then fixed the further hearing of the proceeding for 1 February 1993.

On 10 December 1992 his Honour "contingently referred a separate issue" to the Court of Appeal under s48(3) of the Insurance Act.

During the discussion which took place between his Honour and counsel on 10 December 1992, the then representative of the defendant, Mr Skehan, said:

"As regards the hearing in February we were, rightly or wrongly, under the misapprehension as to the extent to which your Honour was being asked to get into factual matters. We would, as a result of discussions, like it noted that that hearing, to commence on | February, would be confined as to factual evidence to the issue of waiver. The other question to be argued before your Honour is in looking at a claim for indemnity under a policy, do you stop at the pleading against the insured or do you need to go to the underlying factual material?"

His Honour, in his "Summary of Current Position", recorded: "Mr Jackman said that he did not think there was any disagreement between the parties. That presumably was as a result of the discussions to which reference was made and the contents of which I knew nothing. Mr Skehan also said that, in relation to the question whether the Victorian proceedings were within the Policy cover, was to be determined merely by looking at the pleadings (sic). Mr Jackman said there was no problem with that."

As his Honour recorded in his Summary, the documents A and C and the discussion which took place on 10 December 1992, "just cannot stand together". I shall not extend this judgment by setting forth the details of documents A and C. It is sufficient to note that, in document A, questions 1(a) and (b) were as follows:

"1(a) Did the defendant waive the plaintiffs' duty of disclosure on entering into the Extension to the Policy... dated 19 October 1990 with effect from 4 October 1990...?

(b) Do the following claims fall within the indemnity provided by the contract of insurance embodied in the Extension:... [three proceedings in the Victorian Supreme Court were itemised]."

On 22 December 1992, the defendant filed its Defence to Points of Claim.

The matter came for hearing on 1 February 1993. The hearing was to extend over several days. What occurred was started by his Honour as follows:

"T attempted to resume the hearing yesterday, | February, and to dispose of what I believed was the issue between the parties. It rapidly became apparent that there was a difference of view between the parties as to what I was supposed to decide. Mr Rayment gave an exposition as to what were the issues hidden in the interstices of the questions posed by the order for separate determination. If Mr Rayment and Mr Emmett had discussed those questions, there should have been little, or no, room for misunderstanding subject to what transpired on 10 December. Whether they did discuss those questions or not I neither know nor wish to know. It is sufficient to say that no-one in my position, reading those questions, without the benefit of any discussions that may have occurred between counsel, would have been readily able to identify many of the issues which were said to arise from the questions posed. Suffice it to say that, it became common ground between Mr Maurice of Queen's Counsel, who now appears in place of Mr Emmett for the defendant leading Mr Weber, and Mr Rayment that there is a need to amend the Defence to the Points of Claim if the matters which the defendant wishes to put in issue are to be available for consideration.

A form of Amended Defence was proffered this morning and leave to amend sought. Mr Maurice told me that the defendant was not in a position to meet a number of the claims and allegations made by the plaintiffs as explained and expounded by Mr Rayment yesterday morning. Mr Rayment opposed any grant of leave to amend on the basis of accepted principles applied at least in this Division of the Court and accepted in judgments of the Court of Appeal. It is unnecessary to reiterate those principles beyond saying that they have absolutely no application in this case. They have no application because the parties had created a state of utmost confusion as to what was to be decided, when and how.

In the circumstances, subject to hearing counsel, my present inclination is to order the plaintiff to file Points of Claim not restricted to the matters initially directed to be the subject matter of separate issue and order the defendant to file a Defence to those Points of Claim. I will then order that the issues so raised should be determined before a judge of the Division, excluding only the paragraphs which should be able to be identified by reference to numbers in the Points of Claim and/or Points of Defence, and which would go to the factual material which will be the subject of debate in the Victorian proceedings, and the knowledge of the defendant as to those matters."

His Honour subsequently considered who should bear the costs of the period (24 July 1992-2 February 1993) during which he had endeavoured to deal with the matter as I have indicated. Before hearing submissions his Honour said: "My present inclination is - and I have not yet heard Mr Maurice on this - to order the defendant to pay the costs to day on an indemnity basis, because I regard it as the primary source of the difficulty which has arisen. Notwithstanding that, I acknowledge that the defendant did in the directions hearings from time to time flag other questions. Nonetheless, the fact of the matter is that the parties came along to have a contest on the basis of the questions posed in documents A and C, and it is primarily the inability of the defendant to confront those issues that gives rise to the present difficulty."

URJ FAI GENERAL INSURANCE CO LTD v BURNS (Mahoney P) 5

Having heard argument, on 21 April 1993, he ordered the defendant FAI to pay the costs incurred during that period and of the written submissions.

"At the hearing on | February 1993, Mr Maurice QC for the defendant, said that the defendant had not prepared its case with respect to the exclusions, which had been first mentioned in May 1992. He conceded that the defendant had not particularised a claim in its defence that the October 1990 extension was avoided, in reliance upon matters in the proposal of May 1990. He raised for the first time an allegation that there was fraudulent non-disclosure in respect of the October extension arising out of the production to the defendant of the Corrs reports in October 1990. He conceded that prior to 22 December the defendant could not point to any allegation of avoidance of the October 1990 extension for fraudulent misrepresentation.

It was not until the defendant filed its defence on 24 February 1993 that the allegation was formally made that Burns Philp Trustee Co Ltd and Robert J Young were acting as agents of the plaintiffs in applying for the 1989 and 1990 policies. It was also alleged for the first time that, if the plaintiffs were not parties to 1989 and 1990 policies, the defendant was entitled to an equitable set off co-extensive in amount with any claim which the plaintiffs may have, such equitable set off argument including an allegation that the plaintiffs owed the defendant a duty which was breached. Further it was claimed that the defendant had reasonable grounds for withholding its consent to costs being incurred.

Notwithstanding all this, the defendant contended that, insofar as the hearings to date have proved unfruitful that is in no way the fault of the defendant. I reject the submission that the defendant was a blameless party driven only by the desire to co-operate with the Court, which induced it to consent to the questions for separate issue which yielded absolutely no result. If its agreement to the Short Minutes marked 'C' was conditional upon the exchange of pleadings it had at least equal responsibility with the plaintiff for ensuring that what it required was produced. As the defendant rightly says the defence ultimately filed exposes for the first time the full range of issues that will arise for determination. With all due respect it seems to me that it is only now that the defendant has fully stated its position, which for the first time, makes clear why it is not possible to proceed by way of a separate issue, why there should have been no consent to the Short Minutes A or C and why there should have been no hearings in August, September and February. I have to reject the defendant's submissions (para17) of 5 March that 'the underlying cause of the failure of the Pt31 route has been the failure of the plaintiffs to identify all of the issues necessary to be resolved before an order for indemnity, either in respect of the claims or their costs.' In my view it was the combination of the defendant dribbling out.details of its defence combined with its consent, albeit reluctant, to the separate issues route which was embarked on because of that failure.

In all the circumstances I consider it appropriate to order the defendant to pay the plaintiff's costs from 24 July 1992 to 2 February 1993 and of the written submissions thereafter on an indemnity basis."

It is not in contest but that the judge had the power to award costs and to award them on an indemnity basis. The issue is whether he should have done so.

The judge's decision was, of course, a discretionary decision upon a matter of costs. In a decision of this Court to which Mr Gee QC referred, Kirby ACJ (in a dissenting judgment) and I referred to the relevant principles and to the

decisions in which they have been detailed: see Fowdh v Fowdh (Court of Appeal 4 November 1993, unreported). I shall not reiterate them. Those principles are well established and, as I there indicated, the attitude of an appellate court to an appeal as to costs goes back 150 years and more".

Accordingly, the appellant FAI faces a difficult task in seeking to overturn the judge's decision. As far as is here relevant, FAI must show an error of principle or of fact which caused the judge's discretion to miscarry. Where the decision appealed from is not merely discretionary but discretionary in relation to the award of costs, appellate courts have traditionally been,slow to interfere. This no doubt has been influenced, inter alia, by the fact that in making orders as to costs, a judge is usually - at least, often - affected by what has occurred before him and what he has seen as to the conduct of the litigation. In judging such matters and the effect of them, the judge will frequently be in a position of advantage in the sense that inferences may be drawn, from the dialogue between bench and bar, which are not immediately apparent from a mere reading of the text of what has taken place. But, however this be, the task of upsetting a discretionary order as to costs is a different one.

In this context, FAI has submitted essentially that his Honour erred in the findings of fact which he made and that those errors are such as to vitiate his exercise of the discretion. As an alternative it has. submitted that. if it is to bear an order for costs, that order should be a limited one, and should not extend to, eg, costs not wasted by what has occurred.

Iam not satisfied that the judge's decision was vitiated by relevant error. If and insofar as there was error, I do not think that it was such as to warrant the order being set aside. If I were, on review to exercise the discretion, I would make the order which the judge made.

Mr Gee QC, by his oral and written submissions, has dealt with a number of matters. It is no disrespect to his submissions if I do not deal with each of them. Essentially his submission was that the judge erred in attributing to FAI the responsibility for the aborting of the hearing scheduled for 1 February 1993 and thereafter. I have reviewed the material to which Mr Gee in his submissions has referred, particularly the transcript of what took place during the proceedings before his Honour on the various occasions. In my opinion his Honour was right in concluding that it was because of what FAI did and did not do that the hearing of 1 February 1993 was aborted.

The hearing was one which would involve the making of factual findings by the judge; it was not limited to mere legal argument. As the record discloses, affidavits had been filed. It was when Mr Rayment QC, for the plaintiffs, opened his case on 1 February 1993 and indicated what the determination of the issues referred to in the documents A and C would involve, that the defendant indicated that it was not ready to proceed. The Court has not been referred to any record of what, in opening, Mr Rayment QC indicated those questions involved, but it has not been suggested, I think, that the matters which he indicated were involved and were to be dealt with on the hearing went beyond the stated questions. I take the thrust of what was said, as recorded in the transcript of 1 October 1993 and thereafter, to indicate that the implications of the questions in documents A and Chad not been fully appreciated by the defendant or, perhaps, that what had been said in private discussions between the lawyers had not fully alerted the defendant to what, having given thought, it would have perceived in that regard.

URJ FAI GENERAL INSURANCE CO LTD v BURNS (Mahoney P) 7

Mr Gee QC has referred the Court, in his written and oral submissions, to various passages in transcripts and in the material prepared by his Honour. There are, in my opinion, dangers in inferring what took place from particular passages in the dialogue between bench and bar in these circumstances. What is said at one time may not be adhered to at another. The understanding of the judge and the parties of the significance of what is said and the seriousness with which it is put may depend upon what previously and then has been said in other respects. What is the significance of what has been said in evidence before a judge at a trial is best interpreted by him. For myself I would give particular weight to a trial judge's understanding of what has taken place before him and the effect of it.

In this case, as early as 18 September 1992, there had been a qualified consensus that the issues to be determined were those in documents A and C and the dates for hearing were fixed accordingly. It was to be expected that, if qualifications were to be added to those issues or if different issues were to be propounded, the parties would tell the judge. Subject to any such change, it was to be expected that the parties would be ready to proceed, on | February 1993, with a hearing of all that was involved in those questions.

The judge recorded that, in dealing with the matter as he had prior to 1 February 1993, he had not left the matter in an ideal position. Perfection would have required that specific orders be made and that the questions ordered to be tried be spelled out with as much particularity as could appropriately be achieved. His Honour confessed that this had not been done.

But the Court is entitled to know and understand the procedure then commonly followed in the Commercial Division. It is no doubt convenient and beneficial to avoid occupying time in the precise definition of questions to be determined and the drawing out of the implications of them. The Court is, I think, entitled to know that the procedures for definition of issues analogous to those here adopted were ordinarily effective in providing for and achieving the determination of commercial disputes. The parties to this litigation were, I think, expected by the judge to act beneficially in carrying out those procedures.

It may be accepted that the defendant indicated that there might be changes in the formulation of the questions to be decided following 1 February 1993 hearing. But the aborting of the hearing was not the result of an attempt by FAI to qualify or redefine the questions to be determined. At the hearing, the judge explored with counsel for the defendant alternatives which might enable the hearing to proceed but the defendant's position, as stated, was that, having regard to what was said, on the proper understanding of them, involved in the issues by documents A and C, it was not ready to proceed.

And, as I have indicated, counsel for the defendant did not then press that what had been outlined by Mr Rayment QC as involved in those questions, was not truly involved in them. It was not that which was put to the judge or put to this Court.

The judge recorded, in his judgment and in the Summary of Current Position, the effect of what had been put to him for the defendant at that time. It is, I think, to be inferred that there was before the judge a discussion of, as it has been described, the Extension Insurance Cover and of the effect which non-disclosures and the like should have upon that extension. As the judge recorded, there had earlier been no question of fraudulent or non-fraudulent misrepresentation being an issue before him at that time but, perhaps - the matter is not clear beyond argument - this was one of the matters "which the defendant wishes to put in issue" and to have "available for consideration" at that time. (Mr Gee QC,

following enquiry from the bench, has referred the Court to the amended statement of defence filed by the defendant and issues of this kind and otherwise raised in it).

Accordingly, upon the matters of substance which have been raised, I see no error on the part of the trial judge.

Mr Gee's submissions suggested that, however the detail of the matter be, this was not a case for indemnity costs. As there are or may still be a number of cases in which an issue of indemnity costs may require to be determined, it is proper that I deal with the implications of this submission.

The costs of litigation are high: it is sometimes said that they are too high. Accordingly, the difference between costs recovered on a party and party basis and costs recovered on an indemnity basis may well be substantial. Costs can never be a complete indemnity against the loss suffered by a person involved in litigation, even successfully. But the difference to be bridged by an order for indemnity costs is sufficiently large to be borne in mind. Reference has been made to this in the decisions given in this Court and elsewhere in recent years: see Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242; Multicon Engineering Pty Ltd v Federal Airports Corporation (Rolfe J, 20 June 1996, unreported).

It is appropriate that a court, particularly a commercial court, consider the award of indemnity costs where, by failure to adhere to proper procedure in litigation, time and costs have been wasted. The award of costs is - special cases apart - not a punishment. But the power may be exercised by reference, inter alia, to the fact that what a party has done has delayed the disposition of a proceeding beyond what the due management of the proceeding would have required and has increased the cost to the other party, by the delay and otherwise the effect upon him.

Litigation, particularly commercial litigation, is not a "stately saraband": see Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 at 406; in another context Falconer v Wilson (1973) 2 NSWLR 131 at 144. The function of the courts is to be decide disputes effectively (so that they are finally disposed of), efficiently (using no more resources, public or private, than are needed), timeously (taking no more time than is appropriate for what is done) and justly. In commercial litigation time and justice are ordinarily closely related. A plaintiff is entitled to have his money and it may be needed for ordinary business purposes or for particular commitments. If, because of procedural delays, that money is not available, a plaintiff who has a just claim may be ruined while he is pursuing it. Therefore, in the Commercial Division, it is particularly important that litigation be conducted without avoidable delay. One of the functions of a judge of the Commercial Division is, consistently with justice, to ensure that litigation proceeds without delay.

Accordingly, a commercial court may expect of the parties before it that they maintain appropriate standards in the conduct of the litigation. They may be expected to conduct the litigation bona fide and with a view to the determination of the real issues in dispute between them. They may be expected to do what is necessary to ensure that those issues are determined effectively, efficiently, timeously and justly. And a commercial court may expect of them and those who act for them an appropriate degree of professional efficiency.

URJ FAI GENERAL INSURANCE CO LTD v BURNS (Priestley JA) 9

I do not mean by this that the parties and those who represent them should not pursue their own interests in the litigation; they may do so with vigour and by all of the means available to them under the law, Litigation is not a game or a mere contest of professional skills. It is, perhaps, properly described as the continuation of the rigour of business by other means.

But there are limits. Pursuit of the parties' interests is not inconsistent with the duties which they owe to the court in commercial litigation. Rights may be pressed vigorously provided they are pursued bona fide and within the limits of the effective, efficient, timeous and just determination of the real issues.

This is relevant in considering the order for costs in the present case. Costs may, of course, be awarded against a party who deliberately does not do what is required of him. It is proper to record that there is no finding that FAI deliberately aborted the proceedings in this case. But costs may be awarded against a party who, because of an unacceptable departure from the standards required in the conduct of litigation in a commercial court, effectively prevents the court conducting the litigation in the way it should have been conducted. The judge did not find, nor do I, that the lawyers involved did not have the appropriate professional skills. But his Honour held that what they did or did not do produced the following results: the defendant was, when the time for hearing came, not in a position to meet the issues raised by the questions in documents A and C and had to seek an adjournment; during the discussion which ensured, FAI raised issues which, in the opinion of the judge, made it necessary to put aside the procedure for settlement of issues which he had followed and to direct the repleading of the matter anew, by fresh points of claim and points of defence; accordingly, the costs expended in the attempt between 24 July 1992 and 2 February 1993,to bring issues to a hearing produced no effective result; and there was no sufficiently satisfactory explanation of what in this regard the defendant had done.

There is no closed category of reasons for indemnity costs. The trial judge, in the exercise of his discretion, saw a case such as the present as appropriate for an award of indemnity costs. It was within his discretionary judgment so to find. I agree with his judgment in that regard.

Mr Gee QC submitted that, if costs or indemnity costs, were to be awarded against the defendant, the order should be limited. He submitted that not all of the costs incurred between 24 July 1992 and 2 February 1993 had been incurred without beneficial result. But beyond a general claim to this effect, he did not, I think, point to particular benefits derived in the litigation from that expenditure and, giving full consideration to his written submissions, I am satisfied that a dissection of the costs in this way is not warranted. Upon the material before this Court, I am not satisfied that relevant benefit was obtained such as would warrant such a dissection.

For these reasons. I am of opinion that the appeal should be dismissed with costs.

Priestley JA In a case such as the present, where a trial judge was trying to arrive at issues between parties the resolution of which would make more likely a fair and efficient conclusion of the litigation, it is inevitable that that judge knew more about the reasons why that objective was not achieved than could ever be captured on the papers subsequently available to a court of appeal. This makes it particularly important, in a question relating to a discretionary order for costs, that an appeal court deciding an appeal against such an order should not

substitute its own discretionary order for that of the trial judge unless persuaded that the appellant has shown that the trial judge's order was clearly a miscarriage of discretion.

For the reasons given by Mahoney PI do not think the materials and arguments in this appeal have shown any such miscarriage, and I agree the appeal should be dismissed with costs.

Rolfe AJA I agree with the orders proposed by Mahoney P for the reasons his Honour has given.

Counsel for the appellant: CG Gee QC/GA Seib Solicitors for the appellant: Colin Biggers and Paisley Counsel for the respondent: BW Rayment QC

At a glance

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Judgment (77 paragraphs)

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Cases Cited (4)

Cited By (2)