13 Attention was drawn to the fact that paragraph 83 is the penultimate paragraph of the reasons of the President, and it is said that the importance of the statements in it, upon which Idoport relies, is underlined in paragraph 77, where the President says that he has "concluded that the exercise of the discretion [by the trial judge] cannot be faulted legally, in light of the various matters stated in the penultimate paragraph". However, it will be observed that paragraph 83 is found in a separate section headed "Costs" and it does not set out a series of matters justifying "the exercise of the discretion" to which paragraph 77 is referring, that is, the discretion to dismiss Idoport's action notwithstanding the immediate effect of that dismissal on certain of the claims made under the Trade Practices Act and the Fair Trading Act - claims which could not be raised again since in any fresh action they would be time barred. That paragraph 77 is indeed talking about this the central discretion under appeal is confirmed by paragraphs 78 and 79.
14 In countering the argument put for Idoport, senior counsel for the Bank suggested that the words "the penultimate paragraph" in paragraph 77 refer to paragraph 75, the penultimate paragraph in what preceded paragraph 77. But paragraph 75 seems to me to be concerned with much too narrow a point to answer to the logic of the construction of paragraph 77. In paragraph 75, the President is merely pointing to one counter punch in the forensic contest that had taken place before the Court of Appeal; in rejoinder to an argument put for Idoport that the irretrievable effect of a dismissal on certain causes of action should have been weighed by the trial judge even though not adverted to on behalf of Idoport, the judge records in paragraph 75 the Bank's citation of authority to the effect that "it is not legitimate to criticise a primary judge for not taking account of matters not drawn to his attention". In the very next paragraph of his judgment, paragraph 76, the President utters a warning about the accuracy of this rejoinder. When he then goes on in paragraph 77 to say that the exercise of the discretion (that must be, by the trial judge) cannot be faulted legally in light of the various matters stated in the penultimate paragraph, he is obviously not referring to a single point made by counsel upon the appeal, the force of which in the particular case he has just made it clear he doubts.
15 In my opinion, the apparent difficulty will disappear if attention is paid to the context and the logic of the argument being put by Mason P. Having quoted a very lengthy extract from the reasons of the trial judge, and dismissed various ineffective objections that had been urged in argument in the Court of Appeal, he comes in paragraph 69 of his reasons to the ground which had given him some concern initially, and he finds that the trial judge had indeed failed to take account of a particular element of prejudice to the plaintiff, namely, that dismissal would permanently deprive him of several causes of action. His Honour then refers to certain arguments that had been put on that subject and concludes, in paragraph 77, that even though an error had occurred (he uses the word "nevertheless") "the exercise of the discretion cannot be faulted legally, in light of the various matters stated in the penultimate paragraph". It seems to me quite clear that what his Honour is referring to is the penultimate paragraph of the long section he had earlier reproduced from the trial judge's judgment. For that paragraph, paragraph 59, sets out at length the essential considerations, and it does so under the trial judge's own heading "Dealing with the issue". It contains the following:
"To my mind Idoport has been given the last two months to place its funding house in order. The November judgment represented a standing back from the minutiae and a concerted effort, albeit at high expense, of halting, for Idoport's assistance, every step then in place for the regular continuance of the final hearing. Even if the proceedings were now re-enlivened upon immediate payment of all outstanding amounts due under the security for costs orders, it would take probably months before the Court could expect the defendants to be ready to continue the final hearing. The whole of the momentum of the final hearing reached by late November last year simply stopped in mid air from one moment to the next. This meant that many steps then in the course of being taken in a particular order, ceased. Witnesses who had been planned to be called in late November and early December had to be put off. A United Kingdom witness… whose personal convenience had led to special steps for him to be given what amounted to a 'special fixture' for the taking of his evidence, could no longer be cross-examined early in the new term. Important questions in terms of the testing of the Court's order for the appointment of an examiner were not able to be dealt with. And in all of this one has to recall that these are commercial proceedings being heard in the commercial list which naturally strain the ability of the Court to deal with other cases. Notwithstanding that fact, any suit for an amount exceeding the capitalisation of what is probably the largest bank in this country has to be given very special attention. And a suit in which Idoport…made very serious claims generally outlined in the interlocutory judgment delivered in mid 1999 required and received very special attention from the Court. But the courts [ sic ] resources are not unlimited. A stop-start regime in litigation of this order cannot generally be permitted. The many reasons include the complexity of the issues. As earlier stated the current transcript covers over 15,000 pages. The number of witnesses anticipated to be called, the number of statements filed, the complexity of the issues to be dealt with and the general nature of those issues which include for example a patent suit in which United States patent law requires to be proven and understood, all serve to make the point that the final hearing cannot stop and start and stop again, certainly for very long. It should also be recalled that the Technology Court is being used for the final hearing. An outside Project Manager has been appointed. The funding difficulties have meant that Idoport has ceased to pay, as I understand it, the Project Manager. An independent Court Reporting company has been responsible for producing the transcript. The funding difficulties have meant that Idoport has ceased to pay, as I understand it, that Court Reporting company. Reference was made in paragraph 116 of the November judgment to the point made by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at 97 in terms of the importance that a party contemplating litigation, [or, as here, contemplating continuing the current mammoth final hearing], be under a sober realisation of the potential financial expense involved in that exercise."
That penultimate paragraph of the lengthy extract reproduced by the President from Einstein J's judgment seems to me to be, without doubt, a statement of the various matters in the light of which the exercise of his Honour's discretion could not be faulted legally. Indeed, it so obviously fits the flow of the President's reasoning, brought to a conclusion in paragraph 77 of his reasons, as to make it almost a matter of supererogation to note that the President's next sentence in this paragraph, referring to directions which had not been complied with as at 29 January, is totally consistent with the recital of factors contained in the trial judge's paragraph 59 and neatly caps that recital.
16 Having, in paragraph 77, concluded that the various matters referred to did justify the exercise of discretion in question, in paragraph 78 the President adds that the omission with which ground 1(a) is concerned had "occasioned no substantial injustice", and he cites two High Court cases and a decision of my own in the Federal Court where that proposition was held to justify dismissal of an appeal grounded on an omission of the kind alleged. Finally, in paragraph 79, he holds that he would have reached the same decision had he exercised the discretion afresh at the time of the hearing in the Court of Appeal.
17 I have analysed at some length the portion of the President's judgment preceding the paragraphs headed "Costs" because of the suggestion of a link between paragraphs 77 and 83 of the reasons, and also because I think it is important to see paragraphs 80 to 83 as simply an addendum dealing with a quite separate issue. That issue was of a very limited kind. There was no submission from the appellant that an order of the nature of the order barring the bringing of a fresh proceeding in certain circumstances should not have been made. The submission was simply that it should not have related to the whole of the costs of the action, but should have been "limited to costs thrown away by the dismissal of the proceedings". It was acknowledged that an order in respect of the whole of the costs of the action was, to use the President's word, "precedented", but it was said to be "unduly burdensome". That was because some of the costs incurred would simply not be thrown away if a fresh proceeding were brought. But the President pointed out in paragraph 82 that no error was shown in relation to the trial judge's consideration of this matter and that the appellant's proposition would deprive the Bank of the normal fruits of success in litigation by leaving the costs in part "unresolved" (that is, unless and until the completion of a further proceeding).
18 It is after disposing of this final argument upon the appeal in the way I have indicated, that Mason P makes the comments in paragraph 83 on which Idoport relies. These comments do not seem to me to do more than explain the justification, in general terms, of an order of the kind Einstein J had made. They do not purport to expound the precise terms of the order, and they certainly do not reformulate it. In saying that the burdensome consequences are a better outcome "in the interests of justice than leaving matters in a costs limbo", his Honour is clearly referring back to counsel's proposition that costs other than those thrown away, although certainly incurred, should not be provided for in an order of this kind, made as an interlocutory order and before it can finally be said that the litigation will never be revived.
19 Had the Court of Appeal seen something objectionable in the terms of an order that Idoport "be barred from bringing fresh proceedings concerning any cause of action … in these proceedings, until costs in these proceedings have been paid in full", and intended, as Idoport now claims, that the bar apply, not to the bringing of the proceedings in the ordinary sense of their institution, but to their further prosecution after they had been brought, it would have been easy, and in accordance with usual practice, to have dismissed the appeal subject to an appropriate variation of the order. But nothing of the sort was done. Nor did the Court see fit to vary the order, so as to deal with the problem of delay in the assessment of the costs in the way suggested by Sir John Romilly MR and Goulding J to which earlier reference has been made in these reasons.
20 However, counsel for Idoport point to certain comments made in the course of the argument, which they seek to call in aid in the interpretation of the reasons of Mason P. It has often been remarked that there is limited value to be found in an attempt to rely upon observations which may have been Socratic in nature or merely aimed at testing the validity of an hypothesis. Even when uttered in the High Court, explorations of arguments advanced during the debate at a hearing have been described as "of tenuous relevance" to the problems of the law: see Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 242, per Ormiston A-JA.
21 Reference to the argument in this case in the Court of Appeal suggests that differing views were aired during the course of it. The strongest statement, from Idoport's point of view, was that of Mason P at page 54 of the transcript:
"And it would be very unfair if this order meant that a stop writ couldn't be filed but I read it as not having quite that effect."
But at transcript 55 Mr Walker SC, who appeared on the appeal leading Mr M McHugh for the appellant, said:
"[T]he very mechanics of a perfectly bona fide assessment on both sides could mean that new proceedings could not be commenced with all the limitations problems that that means until - well if I said the end of next year perhaps it would be more modest."
Mason P commented:
"I mean in form the order doesn't pose as a sort of a proleptic interlocutory order that will descend on the new proceedings the minute they're commenced. In form it's part of the final order in the present proceedings."
And his Honour added:
"And is it capable of variation? Is it one of these orders that unless you appeal you are stuck with it forever? What does it really mean?"
Notwithstanding the invitation perhaps implicit in the President's remarks, no application was made to amend the notice of appeal, and the argument urged in respect of the order in question remained that the trial judge had erred in not restricting it to costs thrown away.
22 Other remarks made in the course of the argument in the Court of Appeal were less helpful to Idoport's position. Stein JA is recorded (at transcript 49) as remarking:
"How would it work in practical terms if Idoport was ready to recommence further proceedings, new proceedings and had arranged some funding, then it couldn't under the order for costs order that exists commence those proceedings until it had paid the costs. "
And Giles JA is recorded as saying (at transcript 50):
"But does that mean that on [an] assessment the plaintiff would have to say to the assessing officer this is the form of pleading which we propose to file once the costs have been assessed and paid?"
And his Honour added (at transcript 51):
"Those costs would be paid. Idoport would bring fresh proceedings then and only then would the question of the identity of the fresh proceedings with the old proceedings matter."
And again (at transcript 53), after a discussion of the mechanics of assessment of costs if an order were made only in respect of costs thrown away:
"I would have thought that any fresh proceedings might be able to be commenced about 2010 in that event."
Earlier (at transcript 29), Giles JA had put to Mr Walker SC:
"The costs order, I take it you mean by that the order that you have to pay the bank's costs before you can start again?"
to which Mr Walker responded: "Yes". Giles JA then pointed out that the Notice of Appeal did not complain of this, and the ensuing discussion made it clear Mr Walker was not contending the order "should…go wholly", but that it should be limited to "[c]osts thrown away". It is clear that, during the argument, Giles JA was thinking through the problems upon the basis that the order would prevent the commencement of proceedings until payment of whatever costs it encompassed, and that Stein JA also accepted this basis.
23 It is worth pointing out that, when Mason P came to write his judgment, he also, in paragraph 80 which has been quoted earlier, referred to the relevant orders as "barring the commencement (emphasis added) of fresh proceedings". That understanding accords with the ordinary meaning, in a legal context, to be understood from the use of the expression "barred from bringing fresh proceedings". In The Oxford English Dictionary, 2 ed (2001), vol. I, the verb "to bar" is relevantly defined as:
"a. To arrest or stop (a person) by ground of legal objection from enforcing some claim. b. To stay or arrest (an action); to exclude or prevent the advancement of (a plea, claim, right.)"
In vol. II, the verb "to bring" is relevantly defined as:
"To prefer or lay (a charge or accusation); to institute, set on foot (an action at law)".
Applying these definitions, the orders prevent the institution of a fresh proceeding until the costs are paid.
24 I have reached the conclusion that, whatever difficulties may have been seen to attend the form of the order, the Court of Appeal, in the absence of an appropriate ground of appeal, and in the absence of any reliance on the particular difficulty now taken up, dismissed the appeal, not only without varying the order, but also without making anything in the nature of a declaration as to its true construction. In this situation, I must construe it in accordance with its language. I think its language is correctly reflected in the declaration which is sought and, as this view of the meaning of the order is contested by Idoport, it is appropriate I should make a declaration accordingly. Relief of that kind, as senior counsel for Idoport conceded, has been held to be available in an appropriate case: Glandon Pty Ltd v Strata Consolidated Pty Ltd (1988) BC 8802270; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [13]. Although the proceeding before the Court began as a summons in which injunctive relief was sought, I understand it to be accepted, having regard to the undertakings given by the defendants, that a declaration in the form sought would meet the needs of the plaintiffs. Accordingly that is the only order I propose to make, except an order as to costs. I direct that the plaintiffs bring in, on a date to be fixed, short minutes of orders to reflect these reasons.
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