Flower & Hart v White Industries

THE COURT: 1 This is an appeal from a decision of Goldberg J pursuant to which his Honour ordered the appellant to pay interest on the amount of an order for costs previously made against it and in favour of the present respondent ("White Industries"). Unfortunately, it will be necessary to record in some detail the rather sorry and protracted history of this matter. 2 The appellant is a firm of solicitors practising in Brisbane. Between 22 December 1986 and 9 August 1989 it acted for a company, Caboolture Park Shopping Centre Pty Ltd ("Caboolture Park") which was the applicant in proceedings in this Court to which White Industries was the respondent. There was also a cross-claim. These proceedings are hereinafter referred to as the "original proceedings". On 17 August 1989 Caboolture Park's action was dismissed with costs. On 6 April 1990 judgment was given in favour of White Industries on its cross-claim. On 7 May 1993 the present respondent filed a notice of motion in that action seeking the following orders: (1) That the Court make such orders and give such directions for the hearing of this motion as to the Court may seem just, including, if necessary, the joinder of Flower & Hart (a firm). (2) That, in addition to the costs orders made by Ryan J on 17 August 1989 and 6 April 1990, Flower & Hart pay all of White Industries (Qld) Pty Ltd's costs of the action other than those costs that are solely referrable to White Industries (Qld) Pty Ltd prosecuting its cross-claim, except insofar as such costs are an unreasonable amount or have been unreasonably incurred, such that White Industries (Qld) Pty Ltd are completely indemnified by Flower & Hart for these costs and interest on these costs. (3) That the costs are to be specified as a gross sum by Ryan J on a date to be fixed, or to be ascertained in such other manner as on that date he may direct. (4) Such further or other orders as to this Honourable Court may seem appropriate including an order as to the costs of the motion. 3 At the request of the parties, Cooper J stated a question for consideration by the Full Court as follows: Does this Honourable Court have jurisdiction to entertain the motion whether with or without leave as set out in the notice of motion filed on behalf of White Industries (Qld) Pty Limited on 7 May 1993 as an application in these proceedings? 4 The Full Court answered in the affirmative. See Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224. White Industries' written submissions are at AB 306 - 315. Clearly, White Industries was claiming an order for costs either pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth) (the "Act"), or in the exercise of the "inherent" jurisdiction of the Court over solicitors. The Full Court considered that there was sufficient authority for such an order in s 43, which relevantly provides: (1) Subject to subsection 1(A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. (1A) … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. 5 The Full Court also addressed the so-called "inherent" jurisdiction. The appellant had submitted that legal practitioners acting in this Court owe to it no duty which can be supervised, short of punishing for contempt. This argument was primarily based upon the fact that the Federal Court has no involvement in the admission of legal practitioners. At 231 the Full Court said: Having regard to the provisions of s 43 there is in our view no need to consider whether the "inherent jurisdiction" of the Court can be called in aid, or indeed whether, in the case of a statutory court, it is inappropriate to refer to an "inherent jurisdiction" … . It suffices to say that s 43 confers in wide terms an express jurisdiction to award costs and that the Court's powers, in exercise of the jurisdiction, enables (sic) a costs order to be made against a third party to the litigation in a suitable case. The second basis upon which the jurisdiction of the court to order costs against a solicitor representing one of the parties, may be founded is said to be the "implied", "accrued" or "inherent" jurisdiction which a court has over its own officers … . Where the Court has a statutory power to award costs against non-litigants and it is sought to obtain an order against a solicitor in consequence of his or her conduct in the litigation, it is neither necessary nor appropriate to rely upon the jurisdiction of the Court over its own officers … . However, this does not deny the existence of the jurisdiction, nor preclude recourse to it in an appropriate case where the ordinary jurisdiction as to costs is unavailable or inappropriate in the particular circumstances. 6 We observe at this stage only that the Full Court treated the notice of motion as being an application pursuant to s 43 of the Act. The judgment was delivered on 22 September 1993. On 7 December 1993 or thereabouts, White Industries delivered an amended statement of facts and contentions in support of its motion. It is of some importance for present purposes. As it was not included in the appeal book, we attach it to these reasons. In par 13 it is asserted that: The circumstances of this case as pleaded above are an appropriate occasion for the exercise of the court's power to order the respondent to pay the applicant's costs of and incidental to defending the proceedings on an indemnity basis together with interest on that amount at the rate or rates and on such terms as to the compounding of those rates in the calculation of interest as will ensure that the applicant recovers all loss suffered as a result of the respondent's conduct or such as the court as may seem just. (sic) 7 Clearly, White Industries was seeking exercise of the discretion conferred upon the Court by s 43. 8 The motion was argued before Goldberg J in April and May 1998. His Honour gave judgment on 14 July 1998. See White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169. At 229 his Honour considered the question of jurisdiction, observing: The Court's primary jurisdiction to award costs is found in s 43 of the Federal Court of Australia Act 1976 (Cth) … . This section confers jurisdiction on the Court to award costs not only against parties to proceedings but also against persons who are not parties to proceedings … . In particular the Court has jurisdiction to order costs against solicitors representing parties in proceedings before it. This jurisdiction is based upon the ability of the Court to enforce duties owed by practitioners to the Court: … . This jurisdiction is available notwithstanding the fact that the Federal Court does not maintain a roll of practitioners and does not have any strike-off jurisdiction in relation to practitioners; it is available when practitioners appearing before the Court have acted with impropriety … . The primary object of the jurisdiction is to reimburse to a party to proceedings costs which that party has incurred because of the default of the practitioner, that is to say it is a jurisdiction which is compensatory rather than punitive or disciplinary … . 9 It may appear that his Honour was merging the statutory jurisdiction under s 43 of the Act with the "inherent" jurisdiction discussed separately by the Full Court. However Goldberg J was rather addressing the circumstances in which an order might be made against a legal practitioner pursuant to s 43, such an order being exceptional. This is demonstrated by his Honour's reference to the decision of Drummond J in Re Bendeich (No 2) (1994) 53 FCR 422 at 427 in which the latter said: Lawyers should know that, so long as they are not guilty of either professional misconduct or gross, as opposed to mere, negligence in the way they conduct their client's case, they will not be exposed to any personal liability to pay either the costs of their own client or those of the opposing litigant. 10 Goldberg J considered conduct which might lead to such an order, including commencing litigation with no, or substantially no prospects of success and "abuse of process" which Goldberg J described (at 239) as, … a party using court proceedings and procedures for a purpose unrelated to the objectives which the court process is designed to achieve. His Honour concluded, at 241: Williams v Spautz [(1992) 174 CLR 509] and the other cases to which I have referred are concerned with the tort of abuse of process. But it seems to me that there is a process of abuse of process independently of the tort of abuse of process strictly so-called which occurs when a party conceives or implements a purpose for misusing or manipulating the court process for purposes other than those for which the court process is intended. 11 His Honour then dealt with unjustified allegations of fraud. At 251 his Honour concluded: In the circumstances which I have described I am satisfied that Flower & Hart's institution and continuation of the proceeding falls within the principles and the authorities to which I have referred and warrants an order that Flower & Hart pay White's costs of the proceedings on an indemnity basis. The institution and continuation of the proceeding was a serious breach of Flower & Hart's duty to the Court, it was an abuse of process, it was an unreasonable institution of a proceeding with no prospects of success, it was not brought to vindicate a right claimed by the client and it was brought for an ulterior purpose. Not only was the institution of the proceeding unreasonable, so was its continuation. … 12 At 252 his Honour said: In these circumstances I consider that I should exercise the jurisdiction to order Flower & Hart to pay White's costs of the proceeding on the basis sought. I also consider that it follows from my findings, and it is implicit in them, that those costs should be paid on an indemnity basis. 13 Finally, at 253, his Honour said: The order of the Court will be that Flower & Hart pay White's costs of the proceeding brought by Caboolture Park on an indemnity basis. Flower & Hart must also pay White's costs of the motion on a party and party basis. There is nothing in the conduct of the motion which warrants the costs of the motion being paid on an indemnity basis. I will give the parties the opportunity to address the issue whether the payment of interest should be ordered in any form. 14 His Honour's judgment was the subject of appeal to the Full Court. See Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134. It seems that the parties did not seek to revisit the question of jurisdiction to order costs against a solicitor. The question of interest on such costs was not ventilated, presumably because no order for interest had been made at that time. The appeal was heard in May 1999 and dismissed on 11 June 1999. On 17 April 2000, Goldberg J heard argument concerning the outstanding question of interest on costs. Included in the appeal book are the written submissions by the parties as to that issue. It is clear that White Industries based its claim upon ss 43, 51A and 52 of the Act. The relevant parts of s 43 are set out above. Sections 51A and 52 provide relevantly as follows: 51A Interest up to judgment (1) In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either: (a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or (b) without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest. (2) … (3) … (4) … 52 Interest on judgment (1) A judgment debt under a judgment of the Court carries interest from the date as of which the judgment is entered. (2) Interest is payable: (a) at such rate as is fixed by the Rules of Court; or (b) if the Court, in a particular case, thinks that justice so requires - at such lower rate as the Court determines. 15 We will return to these sections at a later stage. We have said that on our reading of the notice of motion and the amended statement of facts and contentions, White Industries had originally asked the Court to exercise its jurisdiction pursuant to s 43 to order costs against the appellant. We would have thought that the claim for interest on those costs was sought pursuant to ss 43 and 51A. White Industries' written submissions on the issue of interest (AB 362 - 370) are to that effect. However, in his Honour's reasons for the decision now under appeal, Goldberg J appears to have taken a different view of the nature of the proceedings. To understand how this happened, it is necessary to consider the course of proceedings on 17 April 2000. 16 For the purposes of s 51A it is necessary that there be proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section … . In the course of argument, counsel for White Industries suggested that the relevant cause of action was for the recovery of money, being the amount of costs which White was required to expend to defend the claim. (See AB 409, ll 20 - 22) At AB 410 ll 10 - 15, counsel submitted: Equally, we say, that the cause of action constituted by the applicant's motion commenced as from that date because it was upon that date that the solicitors wrongfully caused the proceedings against White Industries to issue and that would be a constituent part of the cause of action. It is clear that, of course, the cause of action commenced after the operation of s 51A. 17 As we have said, the claim for such costs had, until this point, been treated as an application pursuant to s 43. Whether s 51A authorizes the award of interest upon an order for costs made pursuant to s 43 is a matter of statutory construction. The appellant submitted to his Honour that it did not. We leave aside that question for the moment and also the question of whether an application pursuant to s 43 is a cause of action for the purposes of s 51A. The subsequent submissions by counsel for White Industries were, we think, somewhat unorthodox. We set out relevant extracts as follows: 18 At AB 411 ll 14 - 16: Now, your Honour, the purpose of awarding costs, and we say to award interest on costs, is to achieve the primary object of compensating the successful party for the losses it has suffered. 19 At AB 412: Now, theoretically, as I say, your Honour, as of the date of Ryan J giving judgment in August 1989 in the Caboolture case, the cause of action which had commenced by the wrongful commencement of the litigation in 1986 was then brought into being by a separate cause of action, co-existing with the other cause of action, namely, the motion in 1993, and we submit that as of that date, theoretically, the amount of costs to be awarded should, as justice, carry interest as from the date the costs were incurred. The awarding of interest up to the date of judgment is in the nature of damages, and acknowledges that the award of interest is an integral part of the attainment of the object of damages, namely, to compensate a plaintiff for injury sustained, and interest should not be awarded as compensation only for a period which, in fact, is clearly less than the period in respect of which the applicant was deprived of the benefit of the money, which benefit will be reflected in interest and, indeed, the benefit of that money was being enjoyed by the respondent. What White sues for is to recover the costs that it had been caused to incur because of the misconduct of the respondent. It would be anomalous in our respectful submission, that if in distinction to a simple judgment for negligence against a professional party, interest would run as from the date the cause of action accrued, this Court, we respectfully submit, should be astute to give a wide operation to s 43 and/or to s 51A. 20 Much of this argument appears to have been based upon a priori reasoning rather than established legal principle. The power to award costs is statutory. In exercising such a power, the courts have long accepted that often, an order for costs will not compensate a party for all expense incurred in the relevant litigation. The assertion that an order for costs is in the nature of damages is also novel. In the last paragraph cited above, counsel asserted a causal link between the appellant's misconduct and the incurrence of costs by White Industries and that a "wide operation" should be attributed to ss 43 and/or 51A. At AB 425-6 ll 17-21, his Honour said to counsel for the appellant: But in this particular case, which in a sense is a somewhat unusual case, it's predicated upon the joinder of your clients to the action back in 1993, and the claim made against them, as I understand it, for the recovery of money, albeit the cost of the proceedings, which are then entered as against Caboolture Park. 21 At 426 ll 4-6, 10-14 and 15-16, his Honour said: Yes, well, I'm not concerned with technical matters of formal joinder. What I'm concerned to identify is whether there might be, or whether there is, a different justification for seeking costs from a solicitor by a party than from seeking costs from the other party to the action. … So that you can say, forget about the nature of the technical process, but what the party to the action is seeking from the solicitors for the other party is, in fact, the recovery of money. … I don't want to take you outside your argument but that seems to me a stronger point for White Industries than a s 43 point. 22 This appears to be the first clear suggestion that some award might be made other than pursuant to the powers conferred by s 43, by itself or in conjunction with s 51A. 23 At AB 432 his Honour said to counsel for the appellant: I found that the institution of the Caboolture Park proceeding in December 1986 was - and I'm speaking loosely for the moment - wrongful by and the solicitors were involved in that wrongful act. And as a result of what progressed I found that the solicitors were liable to pay the applicant's costs speaking generally in relation to that proceeding which is instituted. As I understand you, you seem to be saying that that framework isn't a framework of a cause of action which White had against your clients? 24 Counsel replied: No, the submission I make is that the application that was made was an application for costs under s 43. 25 In reply (AB 456), counsel for White Industries took this new approach further, submitting: 26 At AB 456: The cause of action is the right to recover moneys needlessly expended because of the misconduct of solicitors. (His Honour) The right to recover the moneys from the solicitors. Yes your Honour. And as we endeavoured to point out this morning in the passages to which I won't refer again, in your Honour's judgment - as your Honour said at the very inception, the solicitors knew that this was a wrong action, and thus they were, by that action, exposing - and necessarily exposing White Industries to the needless and wrong expenditure of money. And thus the cause of action, as a matter of the first dollar, accrued at that point. (His Honour) Yes. I had understood you earlier - I must confess I got a little bit confused at one stage. I thought the primary cause of action upon which you relied in s 51A was that very cause of action; the cause of action against Flower and Hart, which I understand Mr Soffronoff contests. But are you also saying that you're somehow relying upon the cause of action involving Caboolture Park? Yes your Honour. That was what was relied upon in our primary submissions. (His Honour) Yes, I understand that. And what I put this morning was, a co-existing and alternative cause of action is what I call the White cause of action. Your Honour, it might be submitted, as indeed perhaps it has been, that it's arguable that no cause of action for an order for costs in the typical case of a party and party situation arises until the conduct of the trial of the principal proceedings is complete. But there are two important features of this case which distinguish that situation. The first - in order to, as in the present case, to make a case against a non-party, the entitlement to the order exists independently of the cause of action in the principal proceedings. Because what has happened here, your Honour, is that the moneys which White was required to spend to defend the action are the moneys which, we say, is the sum recoverable under s 51A. … We say, therefore, that the White's cause of action against Flower and Hart was complete upon the filing and serving of the application and the statement of claim by Flower and Hart on or about 23 December 1986 and White beginning to expend money in defence of it. (His Honour) You mean White's cause of action against Flower and Hart was complete? Yes your Honour. … And, your Honour what happens thereafter and what happens when, indeed, judgment is given, is the quantification of the costs which White was improperly required to expend. And it is not correct, as my learned friend says, to say that we have difficulty in identifying the date of the cause of action. All we have done is to make the concession that it is as from September of 1989 that interest should run. That doesn't, in any sense, disqualify the clearness of the fact of a cause of action existing as from the first of the wrongful acts of - when I say the first, the first dollar, of the wrongful acts of Flower and Hart in requiring us to incur unnecessary expenditure. 27 At AB 464 the following exchange appears: (His Honour) Yes I understand that. I understand that argument. Mr O'Callaghan's response to you as I understand it is. But back in December 1986 Flower and Hart by their committed wrong-doing as I found and that gave rise to a right in White to claim costs - and perhaps I have to be careful with the word I use - directly from Flower and Hart. Mr O'Callaghan says as I understand it that's a cause of action which I have, White Industries have to recover moneys which I've expended. You say that's not a cause of action either? (Mr Soffronoff) All White Industries ever had was a right to make application under s 43 for an exercise of discretion whether against Caboolture Park or the solicitors or anybody else. (His Honour) Why do they have to rely upon s 43? (Mr Soffronoff) They don't have to; they could have sued in another jurisdiction in tort for damages. (His Honour) And if they had done so they would have been entitled … (Mr Soffronoff) They would have obtained damages. 28 At AB 465 ll 4-5, his Honour said: So are you saying that I shouldn't look at their 7 May notice of motion in those terms because they specifically made their claim under s 43? Mr Soffronoff replied: Correct. Because its an application for costs in the exercise of the Court's discretion under s 43. 29 In his reasons, Goldberg J first concluded that s 43, by itself, does not authorise an award of interest on costs. His Honour then considered the alternative approach raised in argument. The thrust of his Honour's reasons appears at AB 477 - 80. It is necessary that we again quote at some length: 14. The cornerstone of Flower & Hart's submission was that White's application for costs against Flower & Hart was an application made pursuant to s 43 and that an order for costs under that section cannot entitle a person to make application for interest on those costs pursuant to s 51A as there is no relevant cause of action within s 51A(1). 15. Flower & Hart submitted that the opening words in s 51A(1) "In any proceedings for the recovery of any money" were not appropriate to cover a claim for costs which is endorsed on an application or a writ in which substantive relief is sought. That may be so, but in the present case there is a proceeding for the recovery of money instituted by the notice of motion filed by White on 7 May 1993 specifically seeking an order that Flower & Hart pay its costs of the principal proceeding. That motion sought an order that Flower & Hart "pay all of White's costs of the action". So expressed the motion sought the recovery of money within s 51A(1) albeit money that was the costs White had incurred in the principal proceeding. The term "proceeding" is defined in s 4 of the Act as including: "an incidental proceeding in the course of, or in connexion with, a proceeding". Accordingly the motion was a proceeding for the recovery of money within s 51A. 16. It was put by Flower & Hart that in order for White to rely upon s 51A to obtain interest on its costs order against Flower & Hart s 51A must apply to any application for costs. I do not accept this submission. In the present case there is a particular application made for costs which is predicated, not upon White's success in the principal proceeding as against Flower & Hart, but rather upon a particular claim or cause of action against Flower & Hart directly which gives an entitlement to recover money from Flower & Hart for and in respect of the costs White incurred in the principal proceeding. Although it is s 43 of the Act which gives rise to an entitlement to a party to a proceeding to have its costs paid, White's claim against Flower & Hart was made by reference to a cause of action identified in its amended statement of facts and contentions, based upon abuse of process and breach of Flower & Hart's duty to the Court. It is an oversimplification of White's claim against Flower & Hart simply to call it an application for costs pursuant to s 43, of the Act. Although s 43, itself, may not warrant an order that interest be paid on any costs ordered, there is in the present case a cause of action which arises independently of s 43, which seeks "the recovery" of money expended by way of costs. That cause of action falls within s 51A(1). 17. The cause of action, upon which White relied in order to obtain the order for costs, would entitle it to obtain that order whether or not s 43 existed. In essence, White was claiming that it was put to expense and suffered loss and damage as a result of the abuse of process and breach of duty to the Court to which Flower & Hart was a party. White has succeeded in that claim. In my earlier reasons for judgment I said, at 249: "The consequence is that Flower & Hart breached the duty it owed to the court to conduct proceedings before the court with propriety, not to be a party to an abuse of process and not to obstruct or defeat the administration of justice." It is as a result of that conclusion that White can recover its costs of the principal proceeding from Flower & Hart. 18. Counsel for Flower & Hart submitted that within the framework of the proceeding brought by Caboolture Park against White, the only avenue open to White to obtain its costs was an application under s 43 of the Act for the Court to exercise its discretion in its favour, whether that be against Caboolture Park or Flower & Hart. Counsel for Flower & Hart correctly pointed out that White could have sued Flower & Hart in another jurisdiction in tort for damages, in which case an equivalent statutory provision under s 51A(1) of the Act would have applied to any damages awarded. Flower & Hart submitted that I should not look at White's notice of motion filed 7 May 1993 in terms of seeking damages in tort but rather as an application pursuant to s 43 of the Act, namely an application for costs in the exercise of the Court's discretion under s 43. 19. I do not consider that I should view White's application by that notice of motion so narrowly. … 30 His Honour then discussed the form of the notice of motion and amended statement of facts and contentions and asserted at par 20 (AB 480): It can therefore be seen that the substance of the application made, and the manner in which it was argued, was predicated upon a substantive cause of action and not simply upon White's success in the principal proceeding. 31 With all due respect, we consider this proposition (which also appears in par 16) to be incorrect. It is true that White Industries did not rely exclusively upon its success in the original proceedings as justifying an order for costs against the appellant. As his Honour had previously pointed out, an order for costs will not be made against a solicitor merely because he or she has acted for an unsuccessful party. It is also true that White Industries relied upon the appellant's conduct in connection with the original proceedings as justifying the order sought. However it is incorrect to say that the application, as originally constituted, was predicated upon a substantive cause of action against the appellant (AB 480). As counsel for the appellant submitted to his Honour, the relevant conduct may have constituted a cause of action (for damages for abuse of process), but there was nothing in the notice of motion or in the amended statement of facts and contentions to indicate that White Industries was pursuing or relying upon it. Nor is there anything in either Full Court judgment or in his Honour's earlier judgment to suggest such an approach. The motion was and, prior to 17 April, was always treated as an application pursuant to s 43. It was not a claim for damages in tort. 32 It is likely that his Honour was concerned to identify as the relevant cause of action for the purposes of s 51A, a cause of action other than that provided by s 43, because of the decision of the High Court in Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 which he referred to at par 21 (AB 480). We will consider that decision at a later stage. Goldberg J said (par 22 at AB 480-1): The cause of action upon which White must rely, in order to come within s 51A(1), is its cause of action against Flower & Hart, not the cause of action in the principal proceeding by Caboolture Park against White. It is the former cause of action which gives rise to the recovery of money which creates the right for there to be included in the judgment sum interest pursuant to s 51A(1). I see no warrant for construing s 51A(1) narrowly so as to exclude from its operation an award of costs where those costs are awarded to a party not as a consequence alone of that party succeeding in a proceeding but rather as a consequence of that party obtaining an order for those costs because of a separate and distinct claim or cause of action which has arisen as a result of the conduct of the party against whom the costs order is sought. Wilcox J said in State Bank of New South Wales Ltd v Federal Commissioner of Taxation (1995) 132 ALR 653 at 665: "[section] 51A(1) is a facultative provision intended to confer power on the court to do justice between parties in relation to pre-judgment interest, a matter of some importance in these days of high interest rates and extensive delays in finalising litigation. The subsection should be interpreted as widely as its language allows." I adopt this observation in support of my conclusion that s 51A(1) entitles White to claim interest on the amount of costs ordered to be paid to it as a result of its success on its notice of motion. 33 There is much in pars 23 - 28 of the judgment (AB 481-2) to similar effect. We consider that it was clearly incorrect to characterize the proceedings commenced by the notice of motion as a claim for damages for abuse of process, whether to satisfy the requirements of subs 51A(1) or for any other purpose. It may be arguable that the original proceedings between Caboolture Park and White Industries satisfied the requirement in the subsection that there be proceedings of a particular kind. Alternatively, it was arguable that White Industries, by its notice of motion pursuant to s 43, had commenced separate proceedings which satisfied that requirement. We will consider those matters shortly. However we repeat that there was no claim for damages arising from the tort of abuse of process, and therefore no proceedings to recover those damages. 34 We should briefly address two other matters. The first matter does little more than re-inforce the view which we have formed that the proceedings before Goldberg J were at no time constituted as a claim for damages for abuse of process. It is well-established that in such a claim, the claimant must plead special damage. See Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 374-5. It is also well-established that in actions for malicious prosecution, a plaintiff cannot recover "extra" costs, that is the difference between taxed costs ordered in the action in question and those actually incurred as a result of the abuse of process. See Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 and Berry v British Transport Commission [1962] 1 QB 306. In the latter case Devlin LJ (as his Lordship then was) demonstrated that the reason for this rule is the need to avoid double adjudication on the issue of costs. Where the entitlement to costs has been determined in proceedings, the issue ought not be re-ventilated in the guise of an action for malicious prosecution. This rule has been treated as being applicable to actions for abuse of process. See Coleman v Buckingham's Ltd (1963) 63 SR(NSW) 171 at 179, Hanrahan v Ainsworth (supra) at 375 and QIW Retailers Limited v Felview Pty Ltd [1989] 2 QdR 245 at 259-260. In Hanrahan (supra), Hunt J held, distinguished Berry (supra), that to the extent that there has been no prior adjudication on the question of costs (for example where the tribunal in question had no jurisdiction to award costs or where the proceedings had not reached a stage at which an order could be made), the rule does not exclude a party from seeking to recover costs as damages for abuse of process, including costs taxed other than on a "party and party" basis. 35 In the amended statement of facts and contentions, White Industries alleged that it had incurred substantial costs in the original proceedings, but it also alleged that it had received the benefit of an order for costs against Caboolture Park. The rule may not have precluded a claim for costs to be taxed on an indemnity basis as against the appellant, notwithstanding that order. There had been no adjudication on the question of costs as between the appellant and White Industries. Nonetheless we consider that in order to plead a cause of action for abuse of process, it was incumbent upon White Industries, having pleaded the fact of the order, to plead that it would not compensate it fully for the costs it had incurred. We appreciate that this is a rather technical matter. We refer to it only because it demonstrates that at the time of drafting the document, those advising White Industries did not understand it to be pursuing an action for damages for abuse of process. Even the most cursory research into this somewhat arcane area would have disclosed the authorities and propositions to which we have referred. 36 The second point which we should make at this stage is that at the time at which the notice of motion was filed, any cause of action in tort against Flower & Hart was apparently statute-barred. Before Goldberg J (AB 410 ll 6-15), counsel for White Industries submitted that the cause of action was complete when the appellant filed the initiating proceedings in the action on behalf of Caboolture Park on 22 December 1986. We would have thought that any cause of action arose when White Industries first incurred costs in appearing and defending the proceedings. It filed a defence and cross-claim on 30 March 1987. It must therefore have incurred some loss prior to that date. Pursuant to s 10 of the Limitation of Actions Act 1974 (Qld), the limitation period for an action in tort, not involving a claim for damages for personal injuries, is six years. Had the notice of motion filed on 7 May 1993 raised a claim in tort arising out of the appellant's commencement of the original proceedings, it would have been statute-barred. 37 In the course of argument before us, counsel for White Industries submitted that a cause of action may have arisen at some later date. The appellant's conduct of the original proceedings may have involved the commission of numerous separate torts throughout the period during which it acted for Caboolture Park (until early August 1989). It may also be arguable that it was only when Caboolture Park became incapable of meeting the order for costs which was eventually made that a contingent loss or liability previously incurred by White Industries resulted in actual loss or damage. See Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 532. However, even if there were a cause of action which arose within the six year period prior to the filing of the notice of motion on 7 May 1993, our view is that the notice did not raise it. If White Industries wanted to pursue a claim for damages against the appellant for the tort of abuse of process, it would need to construct, and clearly articulate a claim to that effect. As earlier explained, it did not do so. Had it done so, questions would have arisen as to whether such a claim could have been properly brought forward by way of interlocutory motion in the proceedings between Caboolture Park and White Industries, particularly after the pronouncement of judgment on the claim and cross-claim in those proceedings. Questions would also have arisen as to the limitation period within which such a claim had to be brought. 38 The above analysis of his Honour's reasons largely reflects the appellant's grounds of appeal and written submissions. We should now consider the grounds upon which White Industries seeks to uphold the decision. We understand that it advances four such grounds. They are: · that s 43 alone authorizes an order for interest on costs; · that s 51A authorizes interest on an award of costs pursuant to s 43; · that his Honour was entitled to award interest on costs as damages for the tort of abuse of process, without reliance upon either s 43 or s 51A; and · that his Honour was entitled to award interest pursuant to s 51A upon the order for costs previously made in these proceedings because that was, in effect, an award of damages for abuse of process.

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