The party issue
100The remaining issue which arose on the appeal was whether UCPR, r 36.16 could be availed of by the respondents. This depended upon the meaning of "party" within the rule. Having regard to the conclusion I have reached, this question does not arise. However, in deference to the arguments of the parties and the likelihood that the matter may be subject to further appeal, I will express my conclusions on it.
101The appellants contended that UCPR, r 36.16(2)(b) was not an available source of power that enabled the court to vary the order made by Hammerschlag J, as they were not parties to the proceedings at the time his Honour's order was made. It contended that "party" within the meaning of the rule meant "party to the proceedings", that is, persons who had been formally joined as parties to the proceedings: see R v Murray; ex parte Commonwealth [1916] HCA 58; 22 CLR 437 at 469.
102The respondents submitted that "party" within UCPR, r 36.16(2)(b) meant a person: that is, "party" was used in the rule in a generic sense to mean any person who had an interest in the proceedings. They submitted that this construction was consistent with Nicholson v Nicholson which had been applied by courts both in New South Wales and elsewhere.
103The primary judge rejected the appellants' argument. His Honour held, at [22]:
"In my view, the reference to 'party' in UCPR, r 36.16(2) should also be interpreted with regard to the principles as to the circumstances in which a party should be heard before an order is made that effects his or her interests. At general law, a person affected by an order of the Court, who has not had an opportunity to be heard, is entitled as of right to have that order set aside ..."
104It is useful in respect of this ground to consider the respondents' submissions first. It can be noted, however, that both the appellants and the respondents accepted that that the meaning of the word "party" varies depending upon the context in which it appears. In some instances, it means a "party to the proceedings", that is, a party formally joined as a party. In other contexts, it has a broader meaning, to mean a person who has an interest in the proceedings.
105"Party" is not defined in either the Civil Procedure Act 2005 or the UCPR (together referred to as the 2005 procedural legislation). The term had been defined in the Supreme Court Act 1970, s 19 in an inclusive manner as follows: "party includes any defendant and any person against whom a claim for relief is made under section 78". However, that definition was not carried over into the 2005 procedural legislation.
106The respondents recognised that the word "party" appeared in various provisions of the Civil Procedure Act as a component of the phrase "party to proceedings". The following are examples:
(1) s 26(1):
"... the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned."
(2) s 27:
"It is the duty of each party to proceedings that have been referred for mediation to participate, in good faith, in the mediation."
(3) s 73(1)(a):
"(1) In any proceedings, the court:
(a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them ..."
107If "party" was only used in this way, it would indicate that its meaning was confined to mean "party in proceedings". However, the respondents pointed out that there were other occasions in the Civil Procedure Act where the term "party" was not encompassed in the phrase "party in proceedings". Rather, it appeared on its own. They contended, therefore, that it was apparent that the meaning of the word extended beyond a party to a proceeding. The respondents referred to the Civil Procedure Act, s 28 and s 29 by way of example. Sections 28 and 29 are contained in Pt 4 "Mediation of proceedings", as are ss 26 and 27. The terms of ss 26 and 27 are referred to above. Section 28 provides:
"The costs of mediation, including the costs payable to the mediator, are payable:
(a) if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or
(b) in any other case, by the parties in such proportions as they may agree among themselves."
108In my opinion, the reference to "the parties" in this rule can only mean the parties that the court has ordered to mediation, that is, the party to the proceedings. This is the natural sense of the rule. That meaning is confirmed by the terms of the Civil Procedure Act, s 98, considered below. If, as the respondents contended, "parties" meant persons who engaged in the mediation, it would not be a natural meaning of that word to encompass those persons in the phrase "the parties". That would also not be consistent with the language of s 98.
109Section 29 makes provision for giving effect to an agreement reached in a mediation. Its terms are, relevantly:
"29 Agreements and arrangements arising from mediation sessions
(1) The court may make orders to give effect to any agreement or arrangement arising out of a mediation session.
(2) On any application for an order under this section, any party may call evidence, including evidence from the mediator and any other person engaged in the mediation, as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement.
..."
110The reference to "party" in this rule must be a reference to the party to the proceedings in respect of which the Court had ordered the mediation. The separate reference to "person" makes this clear, if it was not already apparent.
111The respondents' submission that the informal mechanism of mediation need not be confined to those on the record, failed, in my opinion, to recognise the clear words and operation of these two provisions. The respondents' argument is thus not borne out by reference to ss 28 and 29.
112The respondents also relied upon s 98 as supporting their argument. It provides, relevantly:
"98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
..."
113The rule to which s 98 is subject is UCPR, Pt 42. For present purposes, it is sufficient to refer to UCPR, r 42.2 and r 42.4.
114Those rules provide:
"42.2 General rule as to assessment of costs
Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.
...
42.4 Power to order maximum costs
(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.
(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with an order or with any of these rules, or
(b) has sought leave to amend its pleadings or particulars, or
(c) has sought an extension of time for complying with an order or with any of these rules, or
(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:
(i) progress of the proceedings to trial or hearing, or
(ii) trial or hearing of the proceedings.
..."
115It is important to note that in these rules, the reference is to "a party" or to "a person". The different terminology can only be reference to a party to the proceedings and a person not a party to the proceedings. The remaining provisions of UCPR, Pt 42 bear this out. Again, it follows, in my opinion, that the respondents' argument is not made out by reference to s 98.
116The respondents next relied upon various provisions in UCPR, Pt 36 itself and, in particular, rr 36.15, 36.17 and 36.18. UCPR, r 36.15(2) provides:
"A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent."
This rule is confined by its express terms to the parties to the proceedings, the respondents' point being that when the procedural legislation intended to refer to a party or parties to a proceeding, it did so expressly. However, having regard to the provisions already considered, that is not self-evidently correct.
117UCPR, r 36.17 provides:
"If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."
118The respondents submitted that it could be assumed that only persons with 'a real interest in the proceedings' would invoke this rule. In other words, "party" in UCPR, r 36.17 could include a person not a party to the proceedings. Unfortunately, this submission assumes the answer and further analysis is required. In the normal course, only a party to proceedings is affected by an order of the court and would be the only entity concerned as to the accuracy or correctness of a court order.
119There are, however, occasions whereby someone not a party is or may be affected by the court's orders. Proceedings relating to the possession of land are one example. Another is the court's power under s 98 to make costs orders against persons who are not parties. It would seem that such a person would have a right to apply under UCPR, r 36.17 for the correction of a mistake or error in an order affecting them. A person responding to a subpoena who becomes subject to an order of the court likewise, it would seem, would be entitled to make an application under this rule: see Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No 2) (1984) 9 ACLR 117 at 119.
120UCPR, r 36.18(1) provides:
"In any proceedings in which judgment has been given, or an order made, against a person under a business name, the court may vary the judgment or order so as to make it a judgment or order against the person in the person's own name."
121This rule is intended to deal with the specific circumstance where proceedings are brought against a business which is not incorporated. A business name is not a legal entity. This is not always appreciated by those who bring proceedings. The rule is a convenient provision that allows the court to make its order or judgment against the person who owns the business, being the appropriate defendant, without the need for pleadings to be amended or the relevant person to be formally joined. I do not consider that this provision aids in the construction of UCPR, r 36.16(2)(b).
122In my opinion, the various provisions to which the respondents referred do not compel the conclusion for which the respondents contend. Nor do they deny it. The question, therefore, by reference to the respondents' submissions, remains unanswered.
123The appellants contended that in order to ascertain the meaning of "party" in UCPR, r 36.16(2)(b), it was necessary to look at the UCPR as a whole. They submitted that the Legislature had made it clear when it intended to refer to a party to proceedings, that is, a party who was formally joined as a party to proceedings, and when it intended to make reference to a person who was not a party. The appellants submitted that this was apparent from the different language used in UCPR, r 36.16(2)(b) itself as compared to para (c) of the rule. Para (b) refers to the making of an order "in the absence of a party", whereas para (c) refers to an order made in proceedings for possession of land "in the absence of person whom the court has ordered to be added as a defendant".
124The respondents submitted that this argument was not maintainable, as there are special rules relating to possession cases which explained the language used in UCPR, r 36.16(2)(c). They contended, therefore, that no point of distinction could be made by reference to the difference in language in the two paragraphs. The appellants said this was no answer to their submission and that if all the Legislature meant in para (c) was a person who had an interest in the proceedings, the language used in that paragraph was completely unnecessary. The only reference required was to "a party".
125The appellants also argued that it was not correct, as the respondents contended, that there was a long line of authority to the effect that "party" meant a person with sufficient interest in the proceedings. The appellants argued that upon a proper understanding of the authorities, their construction of the rule was correct or, alternatively, the rules under consideration in the various cases upon which the respondents relied were in different terms from UCPR, r 36.16 and, therefore, not of assistance or, at the least, not determinative of the meaning of "party" in para (b).