Solicitors for respondent: Murdoch Clarke Cosgrove and

ZEEMAN J On 15 May 1995 I determined that the respondent was not entitled to require that the applicants, as beneficiaries named in the will of Sir James Plimsoll (deceased), execute a deed of release before distribution of the residuary estate (Plimsoll v Drake [1995] TASSC 51; (1995) 4 Tas R 334). On 1 August 1995 I made an order that the respondent pay the applicant's costs of the proceedings and published reasons for making that order (B37/1995). As yet, the order for costs has not been taken out. The applicants now seek a further order that those costs be allowed on an indemnity basis. Such an order would amount to an alteration of the order made on 1 August 1995. As that order did not specify any particular basis upon which costs were allowed, it is to be construed as an order that the respondent pay the applicants' costs on a party and party basis.

2. The respondent concedes that I have jurisdiction to make the further order sought by the applicants. That concession was correctly made. There is jurisdiction to vary an order which has not been perfected. An order pronounced by a judge can always be withdrawn, altered or modified by that judge until it is drawn up, passed and entered, it being provisionally effective in the meantime (In re Harrison's Share Under a Settlement (1955) Ch 260 at 276; Carroll v Price [1960] VicRp 101; (1960) VR 651; see also Grierson v R [1938] HCA 45; (1938) 60 CLR 431 at 436).

3. The first question which arises is whether I should exercise my discretion to permit the applicants to re-open the matter of costs determined on 1 August 1995. Before making the order as to costs, I heard substantial argument. No submission was then made by the applicants that costs, if allowed, should be allowed on any special basis. The applicants have not advanced any reason for their failure to submit that costs should be on a basis other than on a party and party basis when the question of costs was argued. The only relevant material before me is contained in an affidavit of the first applicant in which she deposes to having instructed her solicitors "to re-list the matter to seek an order that the costs awarded on 1 August 1995 be awarded on an indemnity basis". The respondent has not asserted any particular prejudice which might flow from my making the order sought. Although I have jurisdiction to make the order sought, it is a matter of discretion whether I make it. The nature of the discretion was the subject of submissions.

4. The respondent relied on Wentworth v Woollahra Municipal Council (1981 - [1982] HCA 41; 1982) 149 CLR 672 at 684 and Autodesk Inc v Dyason (No 2) (1992 - [1993] HCA 6; 1993) 176 CLR 300 for the proposition that the power to re-open a matter after judgment has been pronounced should be exercised very sparingly because it is important to bring litigation to finality. However, the principles which govern the exercise of this power by the High Court are not necessarily entirely relevant to other courts. The authorities relied upon by the respondent concerned the exercise by the High Court of its powers and not the review of the exercise of similar powers by another court. As was said by Brennan J in the second of the cases relied upon by the respondent (at 308, footnote (25)), "(t)he approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal".

5. Leaving aside the case of an erroneous order, the power to vary an unperfected order should be sparingly exercised and the general approach should be no different than that adopted by the High Court. That accords with the view taken in many authorities (eg, Driver v Driver (1950) SASR 8 at 10; re XL Petroleum Pty Ltd [1971] VicRp 67; (1971) VR 560 at 563; Tomlinson v Federal Commissioner of Taxation (1977) 7 ATR 630 at 631). I adopt the view expressed by the Full Court of the Supreme Court of South Australia in Driver's case that the power of reconsideration is not one which is at large, that it must be exercised judicially and that it may be exercised only if sufficient grounds are made out.

6. It would be inconsistent with the proper administration of justice if a party could request the Court or a judge to reconsider an order previously made, merely because that party makes that request and wishes to address some argument in support of the proposition that an order in an amended form would be a proper disposition of the original application. The public interest requires that there be some finality to litigation. Prima facie that means that an applicant should place before the judge all the relevant evidence and address all the relevant arguments in the first instance.

7. It is incumbent upon the applicants to establish sufficient reasons which would justify a favourable exercise of my discretion. The only reason advanced by them for now asking me to make the order sought is that they wish to have the benefit of such an order. No reason has been advanced as to why they did not submit that such an order should be made when the matter was previously argued. I do not know whether a deliberate decision was made not to seek such an order at that time or whether such an order was not sought because of some oversight on the part of the applicants' legal advisers. The reasons for the order only being sought now can only be the subject of conjecture. It follows that there is no occasion to exercise a discretion in favour of reconsidering the order previously made.

8. The applicants also asked that I make orders concerning the professional fees charged by the respondent's solicitors and accountants in connection with the estate. I indicated during argument that I was not prepared to embark upon a consideration of the quantum of those fees, that being a matter more appropriate for consideration by the Master on dealing with the passing of the estate accounts.

9. I did hear argument as to the entitlement of the respondent to be indemnified in respect of those fees at all. The applicants submitted that the parties had agreed on the quantum of the professional fees and disbursements incurred by the respondent as to which he was entitled to indemnity, that the agreed sum had been paid out of the estate and that the fees, the subject of the application, were in addition thereto. It is sufficient for me to say that, contrary to the argument advanced, it is impossible to spell out of the correspondence relied upon any agreement between the parties that the relevant costs and disbursements be in any specific amount.