A. Clarification and Amplification of the Order made on 15 December 2006
14 The order made by me on 15 December 2006 was in respect of the defendants' costs of and associated with the hearing relating to paragraphs 120, 154, 159 and 238 of the then further proposed amended statement of claim.
15 I accept the plaintiff's submission that such order should not be amplified pursuant to the slip rule to include reserved costs in respect of the plaintiff's application to amend, unless this reflects the intention of the original order.[3] It was not my intention that the order embrace such costs.
16 If an order is to be made with respect to such costs it will require the exercise of a discretion which has not yet been exercised in any final sense.
17 Insofar as the order left open the balance of the defendants' costs with respect to the plaintiff's application (other than those specified), such costs are in my view properly to be considered when the current further proposed amended statement of claim comes before the Court and has been the subject of such further submission as is necessary and has been the subject of consideration in the light of such submissions.
18 It follows that the defendants should not receive an order for further reserved costs relating to the interim pleading at this point in time, but should not be prohibited from further agitating the question of such costs upon further resolution of the plaintiff's pleadings.
19 Likewise, the costs of the constitutional and other issues raised in the reply but no longer pleaded, should not be determined until the further resolution of the plaintiff's pleadings. Such resolution will better enable a judgment as to the extent to which the plaintiff's case is now recast.
20 In dealing with the above matter on the basis I have, I should wish to record that there may be circumstances in which an interlocutory order should be varied having regard to matters which emerge during the further conduct of the proceeding.[4] In my view however this is not such a case although circumstances have occurred which may warrant supplementary (as distinct from variation) orders at a later time. In this regard I accept Mr Delany's submission the summons agitated before me and leading to my order of 15 December 2006 has not yet been finally determined.
21 Insofar as the costs of transcript are concerned, my intention was that the defendants should have the costs of transcript of the hearing, referred to in my order of 15 December 2006, and I accept that it should be amended in order to clarify the situation with respect to this disbursement. Rule 63.22.1 is limited to evidence transcript costs and does not cover the present situation. This Rule and its consequences were not specifically adverted to at the time of the making of my order. In my view it is in the interests of justice that the omission in my order be addressed.
22 Insofar as the costs of folders of authorities and other materials are concerned, I did not have the intention at the time of my order, that such costs would be free from assessment by the Taxing Master. Accordingly, I decline to amend the order.
23 Insofar as the costs of written submissions are concerned, such submissions were contemplated by prior direction of the Court, and it was my intention that the defendants should have the costs of such submissions in respect of the paragraphs identified in the order. It will be for the Taxing Master to assess the appropriate costs. I do not accept that they cannot be ascertained separately from the parties' further written submissions.
24 Insofar as the costs of two counsel are concerned, the scheme of the Rules ordinarily vests this question in the discretion of the Taxing Master (see Rules 63.02 and 63.82). No slip was made in adopting the course ordinarily envisaged by the Rules. For the assistance of the Taxing Master, however, I am prepared to record that in my view the application before me was of critical significance to the then proposed repleading of the proceeding being concerned with the articulation of threshold allegations of statutory duty. It was in my opinion proper for each defendant to engage the representation of two counsel, given the seriousness of the allegations in issue, the complexity of the pleading, the relief sought in the proceeding, and the troubled prior history of the pleadings.
B. The Order of Williams J
25 In my view I should not purport to clarify or amplify the order of Williams J.
26 The orders made by her Honour were made after a protracted hearing, followed by specific submissions as to the question of costs.
27 If it is to be suggested they did not give full effect to her Honour's intention, that submission should be made to her. Further, I do not accept that such submission should be made without the benefit of oral argument. If oral argument is to be dispensed with, then it should be dispensed with by her Honour. If the defendants wish to agitate their application for clarification and amplification of her Honour's orders, they should do so before her.
C. The Constitutional Issues
28 Insofar as application is made for the costs of the constitutional and other issues first raised in the reply and subsequently abandoned by the plaintiff (on the basis of new circumstances and in particular the terms of the current further proposed amended statement of claim) , I am of the view that despite the strong prima facie entitlement of the defendants to these costs, the making of an appropriate order should await the further resolution of the plaintiff's pleadings.