The submissions ended in the final paragraph:
"There is therefore no substantive reason why Mrs Highland should not pay Mr Labraga's costs prior to the date that the proceedings were amended on 6 June 2005."
12 On 13 April 2006, Mr Labraga filed a notice of motion. It noted that he wished to move for an order under Part 36 rule 17 of the Rules under the Uniform Civil Procedure Act. That is, the slip rule. The notice of motion as originally filed just did not make sense grammatically but it was clear and the clarity was made perfect by the amendment granted on 2 May 2006 that he wished to set aside the order that he pay the plaintiffs' costs up to the date of the first defendant filing a submitting appearance and that the plaintiffs indeed pay his costs of the amendment determined by Barrett J on 6 June 2005 and any costs thrown away as a result of such an amendment.
13 I should note here that as there is no evidence in the file that the formal order as to costs was ever taken out, the slip rule is really irrelevant as up until the final order is taken out, the Judge has relatively full powers to make appropriate amendments to his or her order. However, I will not refer to this again as no party raised it.
14 Mr Ashhurst appeared for Mr Labraga and Mr Burton SC appeared for Mrs Highland. Mr Ashhurst made oral and written submissions. The submissions put forward the proposition that "The first defendant understood that the question of costs that was being determined by the court was limited to those costs that were incurred prior to the joinder of the second plaintiff on 6 June 2005 which had been expressly reserved by Barrett J. The first defendant had understood there was no issue regarding costs after this date because the first defendant had, after the joinder of the second plaintiff, filed a submitting appearance (Filed on 7 July 2005)." The submissions complain that the point that there was a submitting appearance filed by the first defendant had been overlooked, that the oversight could be rectified by the slip rule and that consistently with authorities such as Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47 at [42], Mr Labraga should not have to pay costs. The submission also was that the costs of the amendment on 6 June 2005 and the costs thrown away by the amendment should not be costs for which Mr Labraga should be liable.
15 Mr Burton SC put that the point was addressed and I should not revisit what I did last November. He put in particular that it was a bizarre situation where Mr Labraga was both submitting and arguing. He put that when one looked at the whole conspectus including the Albarran proceedings, it could be seen that Mr Labraga was in every sense a combatant rather than a submitting defendant and that he should not be allowed to both submit and also say what he liked.
16 As to the counsel for Mr Labraga acting under a misunderstanding, Mr Burton submitted that that really could not have existed after he had made his written submissions and that one must look at the matter not as a slip but rather a deliberate decision.
17 Mr Burton then put that even if I were to look at the matter again, I would come to the same conclusion. The argument that the proceedings were initially bad may well have been technically correct, but these days the court would not permit proceedings to be dismissed on such a technicality in the view of the old rule, Part 40 rule 1, or new rule 36(1), but rather the court would have compelled the trustee of the discretionary trust, Nowhere In Particular Pty Ltd to bring an application for revocation of the grant. In any event, Mr Burton puts that Mr Ashhurst is now cavilling with the deliberate decision made by me last November.
18 If experienced counsel says there was a misunderstanding, then I have adopted the practice of accepting that statement even though objectively it may be hard to determine that there were reasonable grounds for such a misunderstanding. If there is a misunderstanding on the part of counsel as to what is being argued, although earlier on it was thought this was not sufficient to allow relief to be given under the slip rule, more modern authority such as that summed up by O'Keefe AJA in Sakr v Mercantile Mutual Insurance (Australia) Ltd [2000] NSWCA 266, shows that it is now within the rule.
19 The vital question is whether there is some overriding principle that a person who files a submitting appearance is immune from costs.
20 Mr Ashhurst relies on the decision of Bignold J in the Develtor Property Group case to which I have already made reference. He held in [42] that "The effect of the respondent's submitting appearance in the present case, where that appearance has not been challenged or impugned, is that the submitting party is generally to be regarded as immune from any liability for costs incurred in the proceedings after the filing of the submitting appearance".
21 A word that must not be overlooked in that quotation is the word "generally".
22 Ritchie's Uniform Civil Procedure in note 6.11.5 quotes the Develtor Property Group case as authority for the proposition that "A submitting party will not ordinarily be liable in respect of costs incurred after filing the submitting appearance". Again, semantic significance must be given to the word "ordinarily".
23 In a case where a defendant has been named as a proper party, but genuinely takes no part in the proceedings and files a submitting appearance, then almost certainly no order for costs will be made against it. However, that's not the present case. There were a series of proceedings involving Mr Labraga, Mr Pomfret and Mrs Highland. One cannot view the present case in isolation. Mr Labraga was putting pressure on the others by his manoeuvres with respect to the companies in the group and taking an active part in the other sets of proceedings. Indeed, even in the instant proceedings he filed a submitting appearance, obtained leave to put on a defence and then probably argued far more than the leave would entitle him to do. In my view Mr Burton gets close to the mark that Mr Labraga was trying to have the best of all worlds.
24 Having considered the matter again, and having taken into account everything that Mr Ashhurst has said in his further written submissions, I do not consider that I should adjust what I previously said in any way.
25 Accordingly, the first defendant's notice of motion is dismissed with costs. The exhibits should be retained.