Competency of Appeal
33 The notice of motion filed by the defendant seeks to strike out the plaintiff's Summons as incompetent and also seeks to lift the stay on the enforcement of judgment issued by her Honour Harrison AsJ. Necessarily, the competence of the appeal is also raised as a substantive defence to the Summons.
34 The submission is pressed on the primary premise that no appeal can proceed at a point in time after judgment of the Court has been entered. This premise is supported by two submissions: first, that the determination of the costs assessor had already merged into a judgment when the appellant lodged its appeal; as a consequence the underlying basis of the appeal has disappeared and the appeal is incompetent. Second, the Court has no jurisdiction to deal with a judgment that has been entered, it being conclusive and beyond recall. It is said, in support of these submissions, that the structure of the governing Act supports that construction, especially the view that the Act encourages appeals to the Costs Review Panel and limits appeals to the Supreme Court. The defendant relies upon Bailey v Marinoff (1971) 125 CLR 529.
35 In Bailey v Marinoff, Barwick CJ said:
"Once an order disposing of a proceeding has been perfected by being drawn up as a record of the Court, that proceeding apart from any specific and relevant statutory provision is at an end in that Court and is in substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed." (per Barwick CJ at 530).
36 Chief Justice Barwick was agreeing with the other members of the Court, with the exception of Gibbs J, as he then was. One of the members of the High Court in Bailey v Marinoff, Menzies J, said:
"This appeal is not concerned with the power of a Court to alter orders in pending litigation. It is concerned with the power of a Court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the Court, To recognise the problem is, I think, to solve it. However wide the inherent jurisdiction of a Court may be to vary orders which have been made, it cannot, in my opinion, extend to the making the orders in litigation that has been brought regularly to an end." (per Menzies J 125 CLR at 531-532).
37 Bailey v Marinoff was a case in which the Court of Appeal had made self- executing orders the effect of which was that proceedings were dismissed because appeal books, although served, had not been filed. The judgment which contained the self-executing orders had been entered by the Court and, in every respect, perfected. The Court of Appeal then purported to reinstate the matter into the list for reasons which are now irrelevant. This seems a very different factual situation than the one with which the Court is now dealing.
38 In Bailey v Marinoff, Barwick CJ speaks of the absence of any "inherent power or jurisdiction" and Menzies J speaks of "the inherent jurisdiction", in reference to the Court of Appeal of the Supreme Court of New South Wales.
39 The Supreme Court of New South Wales was established by the Charter of Justice (the third such Charter) being Letters Patent dated 13 October 1823 and proclaimed on or after 5 April 1894. The statutory basis for the issue of the Letters Patent was the promulgation of an Act to provide "for the better administration of justice in New South Wales and Van Diemen's Land, and for the more effectual Government thereof". This Act of the Imperial Parliament allowed the lawful creation of Courts of Judicature in New South Wales and Van Diemen's Land, the New South Wales Supreme Court operating in New South Wales (then comprising the entirety of New Holland) and the Chief Justice thereof, together with the Governor, acting as the Court of Appeal for the Supreme Court of Van Diemen's Land.
40 More relevantly, the Supreme Court of New South Wales was created as a superior court of record with jurisdiction in relation to all pleas, civil, criminal or mixed, with all of the powers of the Westminster Courts of Kings Bench, Common Pleas and Exchequer, being Courts of Oyer and Terminer and General Gaol Delivery. It was further enacted that the Supreme Court of New South Wales be a Court of Equity having the same power and authority in the area for which it was created in the execution of such equitable jurisdiction as the Lord High Chancellor of Great Britain. Lastly, the Supreme Court of New Wales was created as a court of ecclesiastical jurisdiction, but in relation to ecclesiastical jurisdiction only to the extent committed to the Supreme Court by the Letters Patent: see generally 4 George IV c96, AD 1823, sections II, III, IX, X. The jurisdiction of the New South Wales Supreme Court was indirectly derived from the absolute power of the monarch and extended to doing everything necessary for the administration of justice in New South Wales. That jurisdiction was continued by the Supreme Court Act 1970: see s23.
41 Given the existence of the Constitution of Australia and the federal system of government under which we operate, there is no part of the government, including the courts of the States, which has unlimited jurisdiction. Further, there are statutory limits on the jurisdiction of the Court: see for example the provisions of the Civil Liability Act 2002.
42 However, when one is dealing with a limitation imposed by the correct application of the common law, it may be confusing to refer to it as "jurisdictional limitation", as did the parties in these proceedings. The limitation imposed upon the reopening of a judgment already entered is a limitation imposed by the common law for sound policy reasons that are implemented in a number of areas of law. Nevertheless, it is a self- imposed restriction on the basis of proper principle of the common law, and in that sense, not a jurisdictional limitation. By self-imposed, I mean imposed by the courts themselves (particularly, the High Court of Australia and the Court of Appeal).
43 While it may generally be said that the above distinction is a semantic one having no practical impact, there is one area in which it does have impact. It has an impact where the legislature has provided a right or duty which conflicts with the self-imposed limitation. In those circumstances, the legislative right or duty must override the limitation.
44 It should be borne in mind that a principle as important and fundamental as the finality of judgment entered would only be overridden by an express provision of the legislature or a provision which necessarily involves such an intention.
45 In submissions of the defendant in these proceedings, it is said that the judgment, having been entered, is conclusive and beyond recall and that, therefore, the appeal is incompetent.
46 The appeal is a right granted by statute and overrides any self-imposed limitation. The submission of the defendant confuses the right to appeal and the competency of any such appeal, with the orders which may be made following such an appeal. It may well be, although it would be a most inconvenient result, that the Court would be unable to recall and interfere with a judgment entered on the basis of the principle embodied in Bailey v Marinoff. However, that does not deny the plaintiff a right to appeal. It may simply mean that orders would need to be framed which did not so interfere. Such orders may include the continuation of a stay on the enforcement of the judgment (such a stay having already been granted) or an extension of time to appeal the judgment that has been entered, thereby allowing the entered judgment to be dealt with in accordance with law: Burke v Rooney (1879) 4 C.P.D. 226; Nixon v Phelan [1960] VR 94.
47 The status of a superior court of record necessarily involves the proposition that judgments of the Court are not amenable to prerogative relief, either certiorari or other prerogative relief, and that judgments of the Court are valid and operative until such time as they are quashed. Ultimately, the Court has the power to give such judgment, or make such order, as the nature of the case requires whether or not a party has claimed the relief in those terms: UCP r36.1.
48 The issue is discussed also by the High Court in DJL v Central Authority (2000) 201 CLR 226. The majority judgment (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) discusses the issues of the relief sought to be obtained and the capacity of a court, in the proceedings then before the High Court it was the Family Court of Australia, without inherent jurisdiction to reopen its own judgment. In so doing it cited with approval the judgment of the Chancery Division in C.H. Giles and Co v Morris [1972] 1 All ER 960. There, Megarry J said:
"A convenient starting point is the head note to Ainsworth v Wilding [1896] 1 Ch 673. This reads as follows:
'After a judgment has been passed and entered - even where it has been taken by consent and under a mistake - the Court cannot set it aside otherwise than in a fresh action brought for the purpose unless (i) there has been a clerical mistake or an error arising from an accidental slip or omission within the meaning of the Rules; or (ii) the judgment as drawn up does not correctly state what the Court actually decided and intended to decide - and either of which cases the application may be made by motion in the action. Semble, that different considerations apply to interlocutory orders; but even if a judgment has not been passed and entered the Court will not always interfere on motion, eg. where from the nature of the ground relied on conflicting evidence is essential.'
This decision has been repeatedly applied and approved; and on the face of it the decision appears to require that a fresh action should be brought in a case like this. However, motions to discharge or vary an order have long been known, and so the question is what part is left for them to play.
…
Counsel for the defendants contended that the distinction was not between interlocutory and final orders (although Ainsworth v Wilding recognises that there may be a distinction of this kind), nor between orders made by the master and orders made by a judge, but between orders made in chambers, whether by a master or a judge, and orders made in Court. He submitted that, though perfected, an order made in chambers is open to review on motion, whereas an order made in court, at all events if a final order, can be discharged or varied only by means of a new action…That may indeed have been the distinction; the question is not easy and requires further consideration." (at 964-965)
49 The High Court in DJL v Central Authority summarised the situation in the following way:
"The common law courts, as superior courts of record, had 'full power to rehear or review a case until judgment [was] drawn up, passed, and entered'. That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court (Shaddock v Parramatta City Council [No2] (1982) 151 CLR 590 at 594-595). An order might also be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce ( Ainsworth v Wilding [1896] 1 Ch 673 at 678-679; Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR (Part 1) 642 at 669). It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the Court would have regard to the interests of third parties ( Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 26 FLR 195). Finally, where the business of the Court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders ( Giles (CH) and Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965).
The Court of Chancery had power to reopen and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction…However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal." ( DJL v Central Authority , supra , at 244, [34] - [35]).
50 The limitation consequent upon the enactment of the Judicature Act is not a relevant consideration in relation to the Supreme Court of New South Wales. The initial grant of power to the Supreme Court of New South Wales was a grant of both equity and common law to the one judicial body and the later separation into equity and common law divisions was an administrative arrangement which did not derogate from the initial grant of power to the Court en banc. The Supreme Court Act 1970 continued the jurisdiction otherwise granted and continued the existence of the pre- existing Supreme Court. The Judicature Act 1873 (UK) did not have an equivalent in New South Wales.
51 From the foregoing we can derive the following principles:
(a) The Supreme Court of New South Wales is a superior court of record with inherent jurisdiction and all of the jurisdiction and the powers necessary for the administration of justice in New South Wales;
(b) The New South Wales Supreme Court has all of the powers of the Courts of Westminster, untrammelled by any restriction in power that may have been a consequence of the Judicature Act 1873 (UK);
(c) The limitations on the Supreme Court of New South Wales in recalling and reopening a judgment once passed and entered are limitations imposed by the common law and have exceptions which include:
(a) The "slip" rule;
(b) The power to amend a rule where the intention of the Court has not manifested in the judgment;
(c) The capacity to allow the opening of orders made in chambers.
52 Further, common law and equity will, in cases of manifest injustice or inconvenience, find ways in which orders can be made which affect the law without contravening the rule; eg an extension of time in which to appeal a judgment entered; or the grant of a permanent stay on the enforcement of any such judgment.
53 Further, as discussed at [43] and [44], the common law restriction on reopening the judgment entered will give way to a statutory requirement so to do, which requirement will need to be an express provision or a provision of necessary intendment.
54 In the current proceedings the assessment of the Costs Assessor becomes a judgment without more, ie without a hearing or the filing of a Summons, by operation of the statute. This is a judgment which, in terms of status, is less than one made in chambers and is a judgment made and enforced only by operation of the statute. The same statute which allows for the certificate of assessment to be taken as a judgment (s208J(3) of the 1987 Act or s268(5) of the 2004 Act), also provides an appeal against the decision: s208L. The Act must be read as a whole. To the extent possible, the section should be construed in a way which provides for a consistent and harmonious application of the statutory intention.
"A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the Court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the union of the statutory scheme." ( Project Blue Sky v ABA (1998) 194 CLR 355 at 381-382, [70]).
55 The statutory scheme is that a Costs Assessor examines a bill of costs and determines what is fair and reasonable in relation to the work that was carried out, the manner of its exercise and the amount of costs: see s208A of the 1987 Act. Further, the Costs Assessor may determine whether a particular cost agreement is unjust in the circumstances and, in so doing, may have regard to a number of factors including the form of the agreement: see s208D of the 1987 Act.
56 Once the determination is made, the costs assessor issues a certificate: s208J of the 1987 Act. Section 208K of the 1987 Act makes clear that the costs assessor's determination is binding on all parties and no appeal or other review lies in respect of the determination, "except as provided by this Division". The expression "this Division" includes the provisions granting both a review to a panel and the appeal to the Supreme Court. The finality of the assessor's determination is therefore expressly subjected to the right of appeal to the Supreme Court of New South Wales.
57 Moreover, the provisions of s208J(3) do not provide that the costs assessor's certificate is a judgment. Nor does it provide that the Court shall issue a judgment on the basis of the costs assessment. It provides that "on the filing of the certificate in the office or registry of a court having jurisdiction…and with no further action, [the certificate is] taken to be a judgment of that court". This means that for all purposes, and subject to the other provisions of the Act, the certificate is on its filing taken to be a judgment of the Court; this does not make it a judgment of the Court as such. Subsection 208J(3) is a deeming provision which creates a fiction for the purpose of the enforcement of the costs assessment. Indeed, the provisions of the subsection seem more concerned with the accrual of interest at a particular rate than giving the certificate of assessment the effect of a judgment of the Court.
58 The fact that the certificate of assessment is taken to be a judgment of the Court for the purposes of the Act does not mean that the certificate of assessment, once filed, ceases to be a certificate of assessment and is thereby incapable of being appealed pursuant to the provisions of the Act.
59 It is most artificial to separate out the common law jurisdiction and the provisions of the statute. Were it necessary to rely on the common law and apply it unaided by the statute to the question of the powers to re-open the judgment, it would seem that the costs assessment, taken as it is as a judgment of the Court, would be a judgment of the kind, at best, made in chambers and subject to one of the exceptions referred to earlier relating to reopening judgments entered. Further, were it otherwise it would, at its highest, be a judgment of the Registrar and subject to appeal under the provisions of the Supreme Court Act.
60 In those circumstances the clear intention of the legislature to allow for an appeal to the Supreme Court from a costs assessment would give rise to an exercise of discretion by the Court, were it otherwise not entitled to reopen the judgment, to make such orders as were necessary to overcome that restriction. Such orders would include the granting of an extension of time to appeal, or leave to appeal, from the entering of the judgment so as to enable its quashing, were the appeal otherwise successful. It could also include the making of an order staying the enforcement of the judgment, if all of the above steps were unavailable.
61 However, it seems that the terms of the statute itself, when properly construed, grant to the Court by necessary intendment a power to deal with a costs assessment on appeal (assuming all other preconditions are satisfied). The costs assessment, which would otherwise be taken as a judgment of the Court, if quashed, would no longer exist and would no longer be taken to be a judgment of the Court.
62 The process of entering a judgment giving effect to the costs assessment is an unnecessary and in this case confusing alteration of the status of the costs assessment, which alteration has no effect. The costs assessment is not a judgment. On its filing it does not become a judgment. On its filing it is taken as a judgment; a fiction is created, which fiction does not bring about all of the restrictions which would otherwise apply to a judgment entered.
63 This is not to say that a costs assessment once certified can, forever, be the subject of challenge. The privative clause, albeit of limited effect, which is embodied in s208K of the 1987 Act, renders the costs assessment final except in relation to an appeal as provided by this Division. Such an appeal is either an appeal to a review panel in accordance with the Act or an appeal to the Supreme Court under s208L. Such an appeal to the Supreme Court must be made in accordance with the rules of the Supreme Court in order for it to operate as an exception to the finality of the costs assessment. That would involve, for example, compliance with relevant provisions of the Rules. I do not need to decide those issues in this application, because the plaintiff in these proceedings has complied with all of the Rules of the Supreme Court in lodging the appeal in question.
64 The defendant further refers to the provisions of s208KF (2)(c) of the 1987 Act, or its equivalent in the 2004 Act, to show that the review panel assessment is expressly given the effect of overtaking any judgment that is taken to have been effected in relation to a certificate of the Costs Assessor. However, the absence of such a provision in relation to an appeal to the Supreme Court does not mean that an appeal to the Supreme Court does not also have that effect. A review panel, not being a court and not having the status of the Supreme Court, could not overtake or override a judgment of the Supreme Court of New South Wales without an express statutory power. On the other hand, it is far more likely that the statute envisages that the Supreme Court already has such power as is necessary to give effect to any judgment it may make on appeal and an express grant of that power is unnecessary. Further, the provisions of s208KF(2)(c) show an intention in the legislature that even if judgment has been entered, it may be reopened (or overtaken) and that the cost assessment does not merge into the judgment.