Michael Wilson & Partners Ltd v Porter

Federal Court of Australia|2022-08-03|Before: Stewart J

The applicant's interlocutory application dated 5 May 2022 be dismissed.
Orders 7 and 8 of 1 April 2022, which were vacated by order 1(a) on 3 June 2022, be reinstated as follows: (a) within 14 days of these orders, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS. (b) within 7 days of service of any affidavit by the applicant, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.
Within seven days of these orders, the respondents file and serve written submissions of no more than two pages in support of any order that they seek in relation to the costs of the interlocutory application referred to in order 1.
Within seven days of service on it of the submissions referred to in order 3, the applicant file and serve written submissions of no more than three pages in support of any order that it seeks in relation to the costs of the interlocutory application referred to in order 1 and in response to the respondents' submissions.
Within seven days of service on them of the submissions referred to in order 4, the respondents file and serve written submissions of no more than two pages in reply.
The costs of the interlocutory application referred to in order 1 be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The adjournment application 12 The interlocutory application, which was filed on 6 May 2022, first came before me for case management on 3 June 2022. I was anxious to bring the matter on for hearing quickly, particularly in view of its restricted nature and the considerable delay generally in the proceedings between MWP and the respondents, much of which arose because of the manner in which MWP - and Mr Wilson in particular - conducted the case, as explained in my previous reasons at [8]-[9] and [16]-[17]. I proposed to hear it on 10 June 2022. Mr Wilson resisted that course saying that he had medical issues which meant that he was "not able to work normally until after 30 June" and that he was instructing "leading counsel" in the case. He did not have counsel's availability during the case management hearing. 13 In the event, I gave Mr Wilson a choice of two dates in the middle of July and a few days in which to indicate which of those dates was suitable. On 6 June 2022, MWP advised that the date of 15 July 2022 was suitable so the hearing was listed for that day. I also directed that MWP file and serve submissions of no more than five pages on or before 6 July 2022. 14 No submissions were filed by MWP on 6 July 2022. Rather, very early on 8 July 2022 submissions of some seven pages were filed. They were signed by Mr Wilson as director of MWP, and not by "leading counsel" as had been indicated, or indeed by any barrister. 15 Much later on 8 July 2022, Mr Wilson, by email to my chambers, requested an adjournment of the 15 July hearing on the basis that "our counsel" had been diagnosed with Covid-19 and was required to isolate until at least the end of the following week, ie, Friday one week later which was the designated day for the hearing. It later emerged that the barrister in question is a junior barrister and not a silk as I had understood the reference to "leading counsel" to mean. The respondents indicated that they opposed the adjournment application. My chambers advised the parties that the adjournment application would be dealt with on 15 July when the matter was called. 16 When the matter was called on 15 July 2022, the respondents did not oppose me granting Mr Wilson leave to appear on MWP's behalf and to do so by audio-video link. I granted him that leave. After hearing submissions from him and from senior counsel on behalf of the respondents, I dismissed the adjournment application and said that I would give my reasons later. These are my reasons, although it should be noted that I in any event gave Mr Wilson another 10 days to file further written submissions which he did. Those are also not signed by counsel, but rather by Mr Wilson (or possibly some other officer) on behalf of MWP. 17 First, the application is not a difficult or involved one, and should by its nature be dealt with quickly. It had been considerably delayed by or at the instance of MWP. The respondents are prejudiced by the matter being drawn out further at inevitable extra cost and, if successful, on being kept from what they are owed. As I will get to, an application of this nature has to be brought within a narrow exception to the principle of finality. So long as it remains undetermined, the finality of the orders previously made and now challenged in the application is undermined and cast in doubt. Hence the inherent urgency in the matter. 18 Secondly, Mr Wilson, a solicitor with rights of appearance in this Court, was available to appear on behalf of MWP. He signed and, on the face of it, prepared the written submissions - in form, style and substance they have no hallmarks of having been prepared by a barrister. Although he had apparently briefed counsel to appear, Mr Wilson unusually did not brief counsel to prepare submissions. Also, he had known since 7 July 2022 that his counsel of choice was not available so he had had plenty of time to prepare to appear himself if he was not able to brief another barrister. 19 Thirdly, Mr Wilson is intimately familiar with the matter. In this regard, as mentioned, he appeared for MWP before Markovic J in the five-day hearing which led to the judgment in respect of which leave to appeal was sought. Mr Wilson has also deposed seven affidavits in the proceeding before me and had proposed to address me on the security for costs application that was before me on 1 April 2022. Indeed, also as mentioned, MWP's principal complaint said to justify revisiting the orders made on that day is that I did not give Mr Wilson an opportunity to address me when he was ready and able to do so. It would be a matter of some irony if, on that complaint, Mr Wilson was not in a position to address me on the application to revisit the orders.

The power to vary or set aside entered orders 20 There is a substantial public interest in maintaining the finality of litigation. In D'Orta-Elenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34], Gleeson CJ, Gummow, Hayne and Heydon JJ observed that "[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances". The Supreme Court of the United Kingdom has just recently restated the importance of the principle in terms that are in accordance with the law in Australia: AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16; [2022] 1 WLR 3223 at [31] adopting what was said by the Court of Appeal in the judgment under appeal - The principle of finality is of fundamental public importance … The successful party should not have to worry that something will subsequently come along to deprive him or her of the fruits of victory. The unsuccessful party cannot treat the judgment that has been handed down as some kind of rehearsal, and hurry away to come up with some new evidence or a better legal argument … there is a particular jurisdiction which permits a judge to change his or her order between the handing down of the judgment and the subsequent sealing of the order. But in most civil cases, the latter is an administrative function, and it would be wrong in principle to allow parties carte blanche to take advantage of an administrative delay to go back over the judgment or order and reargue the case before it is sealed. Hence it is a jurisdiction which needs to be carefully patrolled. 21 Different considerations arise in respect of final orders and interlocutory orders, even where the orders, as in this case, have been entered and not merely pronounced. That difference is reflected in r 39.05(c). But the basis upon which an interlocutory order, once entered, might be reconsidered remains narrow. It is also informed by the overarching purpose of the civil practice and procedure provisions which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976. The imperatives of time, expense and efficiency all underscore the importance of the principle of finality - to allow even interlocutory orders to be revisited after they have been entered other than in exceptional circumstances would be contrary to the overarching purpose. 22 In Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; 295 ALR 52 at [53], Edmonds, McKerracher and Nicholas JJ explained that: It is well-established that the discretion conferred by r 39.05 of the Federal Court Rules (formerly O 35 r 7(2)) to set aside interlocutory orders once entered should be exercised in a judicial manner and only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11]. This guideline is based on the principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be reopened for consideration and set aside: McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25]; Kullilli People No 2 and Kullilli People No 3 v Queensland [2007] FCA 512 at [17]. (Emphasis added.) 23 In Nyoni v Murphy and Others [2018] FCAFC 75; 261 FCR 164 at [46], Barker, Banks-Smith and Colvin JJ explained that r 39.05 "is not a vehicle for an appeal, nor an alternative to an appeal process" and that it "does not provide a means to revisit the correctness of a reasoning process". 24 It is common ground that an instance in which interlocutory orders can justifiably be reconsidered under r 39.05(c) is if a party was not given sufficient opportunity to present its case to the court on the subject of the orders. That is in accordance with the High Court's consideration of its own jurisdiction to recall orders in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; 303 ALR 84 in which the following was said (omitting footnotes): 13 All members of the court in Autodesk (No 2) [[1993] HCA 6; 176 CLR 300] accepted that this court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted that this court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue. … 15 This court divided in opinion in Autodesk (No 2) about whether the jurisdiction to recall this court's orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. Mason CJ took the broadest view of the power to reopen and, with Deane J, dissented as to the outcome in the particular case. Mason CJ said that the exercise of the jurisdiction to reopen should not be confined "in a way that would inhibit [the court's] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment". None the less, Mason CJ emphasised that the jurisdiction to reopen "is not to be exercised for the purpose of re-agitating arguments already considered by the Court". Rather, Mason CJ concluded that "[w]hat must emerge … is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing". 25 Although those remarks concern the power of a court of final appeal to recall its orders, the power possessed by this Court cannot be any greater than that of the High Court: cf Keung v Abbott (No 2) [2019] SASCFC 39 at [36] per Hinton J (with whom Kourakis CJ and Kelly J agreed). 26 In Green v Ellul (No 3) [2019] SASCFC 23; 132 SASR 364, Kourakis CJ, Stanley and Lovell JJ explained (at [32]) that where the basis upon which the Court is invited to exercise the power is a denial of procedural fairness, the Court will not do so unless it is satisfied the party moving for the exercise of the power was denied a sufficient opportunity to argue the point upon which the judgment was entered. A sufficient opportunity to argue the point is given when the point is logically involved in a proposition that has been raised in the course of argument. (Emphasis added.) 27 Respectfully, I adopt that view. The point is that although there may be other grounds on which an interlocutory order can be reconsidered under r 35.09(c) within the limits of exceptional circumstances referred to in Professional Administration Service Centres, the denial of a sufficient opportunity to be heard is one such ground. 28 In the present case, as explained, the subjects in respect of which MWP complains are: (1) the costs of the security for costs application; and (2) the lump-sum costs orders.

The applicant's case 29 Mr Wilson puts MWP's case as follows: (1) Both he and Mr Bennett were announced as appearing on behalf of MWP at the hearing on 1 April, it being explained that Mr Bennett would address the court on the application for leave to appeal and that Mr Wilson would address the court on the security for costs application. (2) As things transpired, Mr Bennett addressed the Court on the question of the costs of both applications, and Mr Wilson did not do so. (3) Although Mr Bennett put some brief submissions on the issue of costs, he did not address the reasonableness or otherwise of the parties' actions or the merits of the bringing of the security for costs application, which are the matters that Mr Wilson could have addressed the Court about. (4) Mr Wilson was not allowed to speak on these questions. Had he been given the opportunity "to expand upon Mr Bennett's submissions", he would have submitted that the Court ought not to make any costs order in relation to the security for costs application. (5) The argument that Mr Wilson would have presented is that because there had been no hearing on the merits, and both parties had acted reasonably, a proper exercise of the costs discretion would be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 625 per McHugh J. 30 Mr Wilson also submits that material relied on by the respondents in their security for costs application is relied on contrary to the implied undertakings made by them to, or the rules of, other courts - the Supreme Court of the ACT and the High Court of Justice of England and Wales - with the result that that material is not admissible in the security for costs application. He called on a notice to produce which he said was necessary in order to establish the breach of the implied undertakings and rules of court. I excused the respondents from answering the notice to produce on the ground that it was irrelevant. Since none of the evidence in the security for costs application was read or tendered, no reliance was placed on it by the respondents in the security for costs application and any question of breach of implied undertakings to other courts was consequently irrelevant to any matter before me. I note that the respondents contest that they would have been in breach of any such obligations even if their evidence had been read and tendered, but that is not a matter that I need to go into. 31 Mr Wilson contended that the notice to produce was relevant because in my treatment of the costs of the security for costs application he says that I entered upon the merits. He says that that is reflected in the statements at [61] of my previous reasons (quoted at [7] above) that "there is nothing to suggest that it was frivolous, vexatious or unreasonable" and that "there may have been significant merit in the application". I reject that contention. There was no suggestion in Mr Bennett's submissions about the costs of the security for costs application that that application was frivolous, vexatious or unreasonable, and - as observed by me at [61] of my previous reasons - in light of the fact that MWP had failed to pay even the $9,125 that it had been ordered to pay and which was not the subject of a proposed ground of appeal, there may have been significant merit in the application. All the same, as I recorded in my previous reasons, I was not required to consider the merits of that application. The only point that I was making was that on the face of it there was nothing in those merits to suggest that they should favour MWP; rather, the merits did not come into it and were thus a neutral factor.

Consideration 32 At the outset it must be borne firmly in mind that the question is whether MWP, not Mr Wilson, was given a sufficient opportunity to present its case to me on the two matters in question, namely the costs of the security for costs application and the lump-sum costs orders. Mr Wilson's submissions at times elide the distinction between him and his company.

The facts 33 A few days before the hearing on 1 April 2022, Mr Wilson advised my chambers by email that Mr Bennett would be appearing for MWP, in person, to deal with the application for leave to appeal and that "Mr Wilson of MWP will also be appearing by AVL, and seeks permission to deal with compliance with the notice to produce … and then the related [security for costs] application, remotely, if the latter is still pursued". 34 When the matter was called on 1 April 2022, Mr Bennett, appearing in court, announced that he appeared for MWP with Mr Tokley QC in Adelaide and Mr Thomas in Canberra. Mr Bennett then added: but I appear with my instructing solicitor, MR WILSON, who appears electronically from Kazakhstan when we have the connection established. I propose to deal with the application for leave to appeal and extension of time. Mr Wilson will deal with our opposition to the application for security for costs and with a notice to produce. 35 I indicated that I would hear argument on the leave to appeal application first, and at the end of that process I would be in a position to indicate how the matter would proceed, particularly with regard to the security for costs application. I then heard oral submissions from Mr Bennett, then from Mr Golledge SC for the respondents, and Mr Bennett in reply. The following exchange then occurred: HIS HONOUR: Yes. Mr Bennett, if I'm against you and refuse leave to appeal, what do you say about costs and also the costs of the security for costs application? MR BENNETT: Well, your Honour - - - HIS HONOUR: The costs must follow the result, presumably. MR BENNETT: They would, your Honour. HIS HONOUR: Yes. MR BENNETT: And then the security for costs application would be moot. HIS HONOUR: Yes. Yes, thank you, Mr Bennett. MR WILSON: Your Honour, Mr Wilson. If I just may make one point. HIS HONOUR: No, Mr Wilson; you may not. Mr Bennett is here on his feet representing the company. Yes. I will give judgment on the application for leave to appeal at 2 o'clock and, if necessary, hear the security for costs application at that time. 36 The Court then adjourned. It resumed at 2.00pm. I delivered ex tempore reasons and pronounced the following orders: (1) The application for an extension of time be dismissed; (2) Leave to appeal be refused; (3) The respondents' application for security for costs be dismissed; (4) The proceeding be dismissed with costs, such costs to include all the costs of the proceeding. 37 At that point, Mr Golledge rose to his feet and applied from the Bar that the costs be assessed on a lump-sum basis and for a timetable to that end. Mr Bennett made no submission against the costs being assessed on a lump-sum basis. In discussing a timetable for that process, it became apparent that Mr Bennett had not appreciated that the costs order included the security for costs application. The following is the relevant extract from the transcript: MR BENNETT: … But I assume that would permit us to argue against the making of an order for costs of the security for costs application. HIS HONOUR: No. I've made that order already. MR BENNETT: I'm sorry, your Honour. I thought that was the issue which needed - we haven't been heard on the question of - we would wish to submit that, that application having become moot, the appropriate would be no order as to costs in relation to the - - - HIS HONOUR: Well, I raised that before we adjourned earlier. I raised that very specific question. But I will withdraw my order in relation to the costs on the security for costs application and hear you right now. … 38 Mr Bennett then made submissions on the costs of the security for costs application. Neither he nor Mr Wilson raised any difficulty with that process or said that Mr Wilson wished to make any submissions. I then delivered ex tempore reasons on the costs of the security for costs application. That is recorded in the transcript as "JUDGMENT DELIVERED" (T30:38). 39 There was then a discussion between me, Mr Bennett and Mr Golledge about the timetable for the lump-sum assessment process. I then commenced pronouncing orders on that question as follows: HIS HONOUR: So as indicated, I will order that: (5) The respondent's costs be quantified on a lump-sum basis. 40 That appears in the published transcript as "JUDGMENT DELIVERED" (T31:8). I was interrupted by Mr Wilson and the following exchange took place: MR WILSON: But there's been no decision on the issue of the security for costs. Ridiculous. The issue hasn't even been dealt with. HIS HONOUR: Mr Wilson, I've made a ruling on that. If you continue in the way in which - - - MR WILSON: There is no event. HIS HONOUR: Mr Wilson, if you continue in the way in which you're going now, you will be in contempt of the court. MR WILSON: Well, you're just shutting me out. HIS HONOUR: Your client is well represented here. MR WILSON: You shut me out earlier - - - HIS HONOUR: Mr Wilson - - - MR WILSON: - - - and now you're shutting me out again. HIS HONOUR: Just silence that person, please. Mr Wilson, your client is well represented in this court by one of the most senior, respected, knowledgeable and experienced barristers in Australia. Doesn't need you to intervene from Almaty. Returning to where I was before I was so rudely interrupted. 41 I then proceeded to pronounce further orders as follows: (at T31:38) (6) And I will direct that the quantification of that lump-sum be referred to a registrar of the court for determination and that the respondents file the necessary documents and support in accordance with the practice note by 21 April 2022, and that the applicant file the necessary documents in reply in accordance with the practice note by 5 May 2022.

Discussion 42 It is convenient to deal with the lump-sum costs orders first. There is no basis at all on which they can or should be reconsidered. First, that is not a matter on which it was said that Mr Wilson would be responsible for or address the Court. It was squarely within the announced remit of Mr Bennett. Secondly, Mr Bennett did not oppose a lump-sum costs order and he agreed to the proposed timetable for the procedure set out in the Court's Costs Practice Note. Thirdly, no submission has been made, even now, as to why a lump-sum costs order should not have been made, other than the submission by Mr Wilson that no application for such an order was filed. That is obviously no obstacle to such an application being made orally, as Mr Golledge did from the Bar. Indeed, r 17.01(3) expressly provides that a party may make an oral application for an interlocutory order at a hearing. Mr Wilson's submission that his "experience" in the NSW Supreme Court and Court of Appeal is against such an approach is not only doubtful but also entirely irrelevant to the practice and rules of this Court. 43 I therefore reject the application to reconsider the lump-sum costs orders. 44 Turning now to the application to reconsider the order that MWP pay the costs of the respondents' security for costs application, I accept that I was more hasty and emphatic than what I might have been in denying Mr Wilson the opportunity to address me immediately before the adjournment. I had in mind that he was responsible for MWP's "opposition to the application for security for costs", as I had been advised, which had not yet arisen. Mr Bennett had addressed me on the application for leave to appeal, including on the costs of that application and he had made a submission on the costs of the application for security for costs in the event that leave to appeal was refused. As events transpired, any undue haste and emphasis at that point caused no prejudice and came to nought. 45 That is because after having initially pronounced that MWP pay the respondents' costs on the security for costs application, on the application of Mr Bennett I withdrew that order and took Mr Bennett's further submissions on that question. There was no restriction on Mr Bennett making any submission that he chose to make, and there was also no restriction on him telling me that Mr Wilson would make submissions on that question. There was also no restriction on Mr Wilson saying that he wished to make submissions on that question. The submissions were made and heard, and I told Mr Golledge that I did not require to hear him. Even then, neither Mr Bennett nor Mr Wilson said that Mr Wilson had anything to say. I then delivered ex tempore reasons and pronounced an order. 46 Even then, Mr Wilson said nothing. There was then a discussion about timetabling on the lump-sum assessment, and I began pronouncing orders in relation to that. It was only then that Mr Wilson rudely, and contemptuously, interrupted, including by describing what had occurred as "ridiculous". He proceeded to seek to argue against an order that had already been pronounced and on which Mr Bennett had twice previously made submissions. 47 From that analysis, it is abundantly clear that MWP had every opportunity to, and by senior counsel in fact did, make submissions on the question of the costs of the moot security for costs application. In the circumstances, I am not satisfied that MWP was denied a sufficient opportunity to present its case and there is no basis to reconsider the order that I made on that question. 48 In view of that conclusion, there is no cause to consider the submissions made by Mr Wilson on why a different costs order should have been made. Those matters simply do not arise. 49 To the extent that any discretion is otherwise enlivened on the question of reconsideration of the order, I would not exercise it. That is both because MWP was not denied the opportunity to present its case and address me on the question, and because what is at stake turns out to be a relatively trivial amount of costs on an interlocutory application - the respondents' costs summary for the whole proceeding claims $50,000 of which only a part is in respect of the security for costs application. By the present interlocutory application, MWP seeks to litigate about those costs, which is against the principle of finality and doubtfully consistent with the overarching purpose of the civil practice and procedure provisions. Mr Wilson said that there was some principle at stake, but it has not been identified and I cannot see it. Eventually, enough is enough. This litigation must end.

Disposition 50 In the result, the applicant's interlocutory application dated 5 May 2022 must be dismissed. 51 I will give the parties the opportunity to make brief submissions in writing on the question of the costs of the application which I will determine on the papers. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Federal Court Rules 2011(Cth)rr 17.01(3), 39.05

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