Gray v Richards

Basis for the present application

1. The application invokes s 101(4) of the Civil Procedure Act 2005 (NSW) as in force on 23 November 2015. The section then provided: The Court may order that interest is to be paid on any amount payable under an order for the payment of costs.
2. The defendant submitted that this Court does not have jurisdiction to make an order under that section at this stage, for two reasons. First, it was submitted that the Court is functus officio. Secondly, it was submitted that, on its proper construction, the reference to "an order" in s 101(4) is a reference to an order of this Court. On that basis, it was submitted that a necessary precondition to the exercise of the jurisdiction sought to be invoked by the plaintiff does not exist, since the order for costs in favour of the plaintiff is an order of the High Court. The defendant submitted that the High Court is the only court which could entertain an application for interest on costs at this stage.

Am I functus?

1. The question whether the Court is functus officio at this stage and so unable to determine an application of the present kind is the subject of inconsistent authority. The competing arguments are considered in careful detail in the judgment of White J (as his Honour then was) in Short v Crawley (No 45) [2013] NSWSC 1541. It was common ground at the hearing before me that the contest has not been resolved in any decision that binds me.
2. The defendant relied on the view taken by McColl JA in Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227. Her Honour's view turns on the terms of UCPR r 36.16, which addresses the circumstances in which the Court can set aside or vary a judgment or order. A premise of that approach is that an order under s 101(4) for interest on costs amounts to a variation of the costs order and so (leaving aside any specific ground under r 36.16.) cannot be sought after entry of the costs order. The Zepinic view accordingly holds that an application for interest on costs must be sought at the time of the final order as to costs or within the further time limited by UCPR r 36.16(3A) or (3B).
3. The competing view holds that an order for interest on costs does not vary the costs order but is additional to it. Justice McColl addressed that issue in Zepinic at [85], as follows: Mr Ilkovski's submission that the interest order is an additional order, rather than one within the meaning of UCPR 36.16, is simply semantic. An application for an order not made in the Court's original orders is an application for a variation of a judgment or orders of the Court, albeit that it would add an order, rather than amend an existing order. Although it is not determinative, that was how the Court described the orders made in Drummond (No 2); see also Spedding v Nobles (No 2) [2007] NSWCA 87 (at [18]). The fact that the order was described as "additional" in Leda Pty Ltd v Weerden (No 2) emphasises the semantic nature of the argument.
4. In Short v Crawley (No 45), White J expressly disagreed with that view, saying at [79]: Nonetheless, I respectfully do not agree that if an order for interest on costs was made, such an order would vary the previous costs order. An order for interest on costs would vary the previous outcome, but not any previous order. Therefore the power to make such an additional order is not found in r 36.16. [Emphasis in original].
5. Justice White considered, rather, that the source of power to make an order for interest on costs at a point later than the time when an order for costs is made is to be found in s 98(3) of the Civil Procedure Act 2005 (NSW), which confers power to make an order as to costs at any stage of the proceedings or after the conclusion of the proceedings. His Honour said at [81]: If that power extends to the making of an order for interest on costs then the principles of finality of litigation are not offended because those principles are subject to contrary statutory provision.
6. Justice White concluded that the power under s 98(3) does extend to the making of an order for interest on costs because such an order is an order "as to" costs.
7. Justice Brereton reached the same conclusion by a slightly different path in Grace v Grace (No 9) [2014] NSWSC 1239. His Honour did not consider an order for interest on costs to be a decision "as to" costs within the meaning of s 98(3). His Honour nonetheless took the view that the finality principle is not offended by dealing with an application for costs after the final judgment because it does not involve impugning "the operative and substantive part of its judgment" (citing Thynne v Thynne [1955] P 272, 296,301,314, 315). His Honour considered that an entitlement to interest does not merge in a costs order, for reasons related to an analysis of the costs assessment regime.
8. I would respectfully adopt the approach taken by White J and Brereton J, that is, that the Court is not functus officio by reason of the failure to bring the application within the time allowed under r 36.16. It is not necessary for present purposes to determine whether the order sought is an order "as to" costs or whether to adopt the reasoning of Brereton J, since each leads to the same conclusion on the present issue.

Significance of the fact that the order was set aside

1. The second issue raised by the defendant is more difficult. Section 101(4) confers authority to order "that interest is to be paid on any amount payable under an order for the payment of costs".
2. The circumstances in which the present application is brought are summarised above. In short, the position as to costs orders is as follows: 1. on 13 April 2012, I ordered "that the defendant pay the plaintiff's costs of the proceedings except for half of the plaintiff's costs from 19 August 2011 to 8 December 2011"; 2. on 28 March 2014, the Court of Appeal set aside that order (by order 3 of the Court of Appeal) and made a different order in its place; 3. on 14 November 2014, the High Court set aside order 3 of the Court of Appeal and, in its place, made an order (order 2(d)) "that Mr Richards pay Ms Gray's costs of the proceedings at first instance except for half of Ms Gray's costs from 19 August 2011 to 8 December 2011".
3. The plaintiff characterised the order of the High Court as one that "restored" the order made at first instance. As carefully argued by Ms Castle, who appears for the defendant, although the order of the High Court had the effect of restoring the plaintiff to the position she enjoyed under the order made at first instance, it is not accurate to say that the High Court restored that order. Consideration must be given to the fact that it is a discrete order made by a different court.
4. Ms Castle submitted that, in the circumstances, there is simply no jurisdiction to make the order sought. She submitted that, following upon the decision of the Court of Appeal, which set my order aside, this Court has no further role and no remaining source of jurisdiction in the proceedings. An aspect of the position contended for by Ms Castle was the assumption that the reference to "an order" in s 101(4) of the Civil Procedure Act means an order of this Court.
5. Mr Brabazon SC, who appears with Mr Bailey for the plaintiff, submitted that the source of the Court's jurisdiction is the order of the High Court pronounced in lieu of the order of the Court of Appeal, which Mr Brabazon submitted is an order to which s 101(4) refers.
6. According to the parties' researches, there is no authority directly on point. Ms Castle noted that the High Court's authority to make order 2(d) arose under s 37 of the Judiciary Act 1903 (Cth). That section provides: Form of judgment on appeal The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.
7. Ms Castle sought in that context to derive some support for her position from the decision of the High Court in Nicol v Allyacht Spars Pty Ltd [No 2] (1988) 165 CLR 306; [1988] HCA 48. The plaintiff in that case had been unsuccessful in a claim for damages for personal injury at first instance. He appealed to the Full Court of the Supreme Court of Queensland, which dismissed his appeal. An appeal to the High Court was allowed. The Court awarded damages together with interest and costs, reserving liberty to the plaintiff to apply for "such order in relation to interest as might be appropriate". The plaintiff claimed interest dating back to the date on which his action was dismissed at first instance arguing, by reference to s 37 of the Judiciary Act, that the order of the High Court "became the judgment of the Supreme Court of Queensland", taking effect from the date on which the action was dismissed at first instance.
8. The Court rejected that argument but nonetheless allowed interest from the earlier date, as sought by the plaintiff. The Court said: While s 37 of the Judiciary Act does not operate so that an order of this Court made on 6 November 1987 produces a judgment in favour of the appellant dated 3 April 1986, it does have a consequence of which the appellant may avail himself. The power conferred on this Court to give "such judgment as ought to have been given in the first instance" authorises the inclusion in our order of a sum by way of interest pursuant to s 72 of the Act from 3 April1986 to 6 November 1987.
9. Mr Brabazon sought to obtain support for his position from the decision of the High Court in Peacock v Osborne (1907) 4 CLR 1564. In that case, the High Court had given judgment for the plaintiff, granting an injunction and directing certain inquiries to be made as to damages. The proceedings had been remitted to the Supreme Court to execute that judgment. The defendant sought to appeal to the Privy Council and obtained a stay in the Supreme Court in relation to the inquiry as to damages. The plaintiff appealed against the stay order.
10. The Court held, unsurprisingly, "it is the duty of the Supreme Court to obey, and not to make an order inconsistent with obedience". Chief Justice Griffiths said: To put it shortly, the judgment of this Court, when the case was remitted to the Supreme Court, is to be regarded on the same footing as a judgment of the Supreme Court from which no appeal has been or can be brought. Matters subsequent to the case being remitted are within the ordinary jurisdiction of the Supreme Court. But that Court has no authority, though it may have formal power, to make any order inconsistent with the order of this Court. The appeal, therefore, must be allowed.
11. Neither authority is directly on point. As noted by Mr Brabazon, the point in Allyacht was a short one, namely, that the order of the High Court took effect on the date on which it was made and was not to be regarded as, in effect, an order with backdated effect. Mr Brabazon noted that that conclusion did not preclude the plaintiff from obtaining the interest he sought from the earlier date. Allyacht says nothing as to the date from which interest, if ordered, would be payable.
12. The decision in Peacock is distinguishable because here, there has been no remitter. Mr Brabazon submitted, however, that the same principle must apply to an order as to a remitter. He submitted that, according to the principle stated by the Chief Justice, the order of the High Court is made to have the same effect as would have an order of this Court that is not capable of being appealed from.
13. The critical question is whether the order of the High Court is "an order" within the meaning of s 101(4) of the Civil Procedure Act. In construing that provision, I must have regard to the provisions of Pt 6 of the Act. In particular, Mr Brabazon noted that s 56(2) of the Act requires the Court to give effect to the overriding purpose (of facilitating the just, quick and cheap resolution of the real issues in the proceedings) when, among other things, it interprets any provision of the Act.
14. Both parties sought to invoke that principle to their advantage. Ms Castle, for her part, submitted that the Court should not construe the section in a manner that encourages delay in seeking an order for interest. Mr Brabazon submitted that the Court should not construe the section in such a way as to, in effect, compel parties to make an application for interest in every case, when the future is unknown but against the risk of future delay of the kind that has occurred in the present case.
15. There is some force in each of those competing contentions. To the extent that case management principles do inform the interpretation of s 101(4) (as s 56(2) provides they must), the interpretation must be one that applies to all cases, not just this individual case. That consideration would suggest preferring a broad interpretation of the term "an order" in s 101(4). A construction of the section that would require the plaintiff to take this application to the High Court is not to be preferred. A further consideration is that the construction of the section contended for on behalf of the plaintiff would see the prospect of an order for interest on costs stand as a disincentive to parties ordered to pay costs to delay the assessment process and an incentive to take an expeditious approach.
16. It is to be recalled in that context that the order of the High Court, while of course being an order of that Court, is one that relates to the costs of the proceedings in this Court. Further, it is an order the effect of which was to restore the plaintiff to the position she was in before a series of appeals in which she was ultimately mostly successful on the substantive issues and entirely successful in respect of the costs order in question here. I am satisfied that the proper approach, reading s 37 of the Judiciary Act and the provisions of the Civil Procedure Act in a coherent way, is to interpret the reference to "an order" in s 101(4) of the Civil Procedure Act so as to include reference to that order.
17. For those reasons, I am satisfied that I have authority to make the order sought.

Discretionary grounds

1. As already noted, the defendant did not go into evidence on the present application. The written submissions on this issue were short. In summary, the defendant submitted that there has been significant delay in bringing the application which it was submitted could have been made at any time after delivery of the costs judgment on 13 April 2012. By that date, of course, the plaintiff was aware that the defendant had lodged an appeal.
2. The defendant further submitted that another "logical and convenient" time to make the application would have been after 14 November 2014 when the costs of the first instance proceedings were finalised by the High Court's order. The defendant submitted that there is "presumed prejudice" by reason of the delay and that the Court should not encourage the making of belated applications for interest on costs. It was further noted that the order for costs at first instance on which the plaintiff seeks interest "did not exist" between the time when the Court of Appeal set it aside and the High Court made an order to the same effect.
3. It may be accepted that the application could have been made at an earlier point in time. The defendant further submitted that, had the application been made at an earlier point, it would have been determined on the premise that there was no need to establish exceptional circumstances for awarding interest on costs. While the Court was not taken to specific authority on that issue, it is convenient for present purposes to proceed on that premise.
4. It is difficult to reconstruct how the application might have been evaluated had it been made at an earlier point in time. Ironically, the features of the evidence which lend strength to the application are the very matters which have caused the delay. At the time my costs order was made, the plaintiff could have pointed to little other than a generic entitlement to warrant an order for interest. Had the application been made and lost at that stage, that would have resulted in a costs order against the plaintiff. The uncontested evidence now unequivocally establishes that the fund awarded to the plaintiff by way of damages has been depleted in a substantial amount for a lengthy period by reason of the ongoing dispute as to the payment of costs. To borrow a lovely expression used by Brereton J in Grace v Grace at [64], the money has been "fructifying in the wrong pocket".
5. I am not persuaded that there is any discretionary basis to decline the relief sought. For those reasons, I make the orders sought in the minute of orders handed up by Mr Brabazon.

Amendments 30 October 2018 - Incorrect names of solicitors on coversheet 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: 30 October 2018