(3) The powers of the Court under this section apply in relation to a married woman, whether as party, next friend, guardian ad litem, relator or otherwise, and this section has effect notwithstanding anything in the Married Persons (Equality of Status) Act 1996 ."
12 Faulding and the Guild say that, if that section is broad enough to allow a costs order to be made against a non-party in favour of a party (as it undoubtedly is), then it must also be broad enough to accommodate an order against a party in favour of a non-party.
13 That submission not only has a logical attraction but may also derive some support from observations of Dawson J in Knight v F P Special Assets Ltd (1992) 174 CLR 178. The High Court was there called upon to consider a provision of the rules of the Supreme Court of Queensland in terms substantially similar to those of s.76 of the Supreme Court Act. The question for determination concerned jurisdiction to make a costs order in favour of a party against a non-party, being the receiver of a company. The converse question of jurisdiction to order that a party pay costs of a non-party did not arise for determination but appears to have been the subject of comment by Dawson J (at p.198):
"The respondents' primary submission is that either O 91, r 1 or s 58 is sufficient to authorize the Supreme Court, in a proper case, to award costs against a person not a party to the proceedings before it. This submission basically raises no more than a question of construction. But the respondents also rely upon the recognized exceptions to the general principle that costs may not be awarded against a non-party. They say that this case falls within those exceptions or is sufficiently analogous to be included in them. In one sense, the exceptions, which admittedly do exist, create a logical difficulty in the way of the appellants' argument. If there are exceptions allowing costs to be awarded to non-parties, then the provisions conferring jurisdiction to award costs must encompass them. That is to say, the provisions must contemplate the award of costs to a non-party, if only in an exceptional case."
14 Dawson J also referred (at p.199) to a situation in which costs were historically allowed to a non-party, being the real person standing behind a fictitious party to an action of ejectment at common law:
"But there was a clear exception to any rule that costs could not be awarded to a person who was not a party to the proceedings in the case of ejectment proceedings. This was recognized in Hayward v Giffard [(1838) 4 M&W 194; 150 ER 1399]".
15 At page 203, Dawson J said:
"The wording of O 91, r 1 does not confine the discretion to award costs to the parties to the proceedings. The circumstances in which it would be appropriate to award costs to a non-party would necessarily be confined, but that is a question of discretion, not jurisdiction."
16 Taken in their context, these observations of Dawson J, although appearing, in terms, to contemplate the making of an order for costs against a party in favour of a non-party, may in reality be references to the opposite situation where it is sought to subject a non-party to a costs order in favour of a party, being the situation actually before the High Court. But given the comprehensive nature of s.76 of the Supreme Court Act, there is a statutory basis for the view that, although the statutory jurisdiction will not support orders for and against persons having nothing to do with the proceedings, it will permit an order that a party pay costs incurred in relation to proceedings by a non-party having some connection with the case. In Petrovski v Radin [2000] NSWSC 323, Sperling J regarded the section as sufficiently general to support such an order and in fact made a costs order against a party in favour of a non-party in circumstances where, "although [the non-party] was not a party to the notice of motion as a matter of form, he was a party as a matter of substance". There also exist reasonably well established principles on which a non-party creditor supporting a winding up application may be allowed costs: see Re Obie Pty Ltd (1983) 8 ACLR 439 and other cases referred to by Austin J in Cresvale Far East Ltd v Cresvale Securities Ltd (2001) 39 ACSR 622 at [101].
17 It is important to note that the generality of s.76 only prevails to the extent that no contrary specification is made in any other provision of the Supreme Court Act, or in rules made by the Rules Committee or in any provision of any other Act. This is the effect of the opening words of s.76: "Subject to this Act and the rules and subject to any other Act". It is therefore necessary to return to rule 2.13 and, in particular, rule 2.13(2) which expressly contemplates the making of a limited costs order against a non-party granted leave to be heard.
18 Rule 2.13(2) focuses on "additional costs" incurred by a party by reason of the non-party's participation in exercise of the leave granted. It contemplates the making of a costs order against the non-party and in favour of the party put to extra expense by the non-party's decision to become involved. But the order contemplated is one that does no more than cater for incremental expense referable to the non-party's involvement. Rule 2.13(2) thus reflects an assumption that in some cases a party will incur such incremental costs and, no doubt, that in others it will not. Where there are no "additional costs", rule 2.13(2) cannot support a costs order in favour of the party against the non-party. The rule thus tends to imply that there should not be a costs order against the non-party except with respect to a party's "additional costs", at least in the ordinary course of events. There is a clear concern to guard against the award of more than one set of costs except where good reason is shown.
19 If rule 2.13(2) were to be seen as a code as to the awarding of costs against a non-party granted leave under rule 2.13(1) (except, perhaps, in some exceptional circumstance), it would be reasonable to think that the rule also reflects an expectation that costs should not be awarded in favour of the non-party. It would be an odd result if the awarding of costs against a non-party and in favour of a party was closely controlled by rule 2.13(2) but the awarding of costs against a party and in favour of a non-party was intended to be entirely at large.
20 These considerations, coupled with the emphasis by members of the High Court in Knight's case on the extraordinary nature of the aspect of the general costs power that involves orders against non-parties, lead me to think that some very special factor outside the ordinary and expected course of events and engendering a justifiable expectation of compensation in the mind of the non-party would have to be found before any relevant aspect of the comprehensive jurisdiction with respect to costs might be regarded as properly and regularly invoked in favour of a non-party as against a party. In other words, such an award, if ever appropriate, will be extraordinary and exceptional. Someone who seeks and is granted leave under rule 2.13(1) chooses a course entailing the limited costs exposure described in rule 2.13(2). Such a person can have very little expectation of being awarded costs.
The claim by Faulding
21 Faulding submits that its presence was necessary to protect its interests. Proxies lodged by creditors for the purposes of the meeting were under attack by the plaintiff. Faulding was a large creditor, its proof having been accepted at approximately $31 million. Resolution of the proceedings in favour of the plaintiff might well have seen Faulding's voting rights neutralised and Faulding had a particular interest in resisting such an outcome. Submissions made by counsel for Faulding, as well as making these points, say:
"The issues which affected or might have affected F H Faulding's interests were the subject of detailed submissions by counsel for the liquidators and those submissions were adopted by F H Faulding."
22 This last submission, it seems to me, tells heavily against the making of the order Faulding seeks. It was clear in the pre-trial phase and remained clear thereafter that the defendants would be making comprehensive submissions in support of the decisions they had made on the admission of proofs and proxies for the purposes of the meeting and, in particular, the decisions that caused the voting constituency and the respective voting strengths to be as Faulding wished. The position that Faulding, in its own interests, was keen to promote was the very position for which, as Faulding knew, the defendants would be strenuously contending.
23 Any "value added" requirement approach that might, by reverse inference, be gleaned from rule 2.13(2) was not met by Faulding's participation. As I view matters, the circumstances in which Faulding sought and exercised leave under rule 2.13(1) did not exhibit any exceptional features which should have led it to entertain any justifiable expectation of compensatory recourse against a party to the litigation in respect of expenses it chose to incur in relation to proceedings in which it was not a party, did not seek to be joined as a party and did not, in any explicit way, chance its own position as to liability for costs beyond the limited extent envisaged by rule 2.13(2). I see no basis on which Faulding could be said to have been in substance a party even though technically a non-party.
24 I am therefore not satisfied that Faulding has made out a case for the exercise in its favour of any extraordinary and special jurisdiction there might be to award costs against a party in favour of a non-party.
The claim by the Guild
25 The Guild, as I have said, appeared by counsel on three of the four occasions on which proceedings 4687/03 were very briefly before the court and, like Faulding, was granted leave to be heard in 5062/03. The Guild seeks, in the first instance, a general costs order against the plaintiff in each proceeding. In my view, the way in which one proceeding became subsumed in the other and the brevity of the appearances in 4687/03 means that the Guild's participation in both should be viewed, in effect, as a single event. The Guild also seeks an order in respect of its costs of answering a subpoena, a matter to which I shall come presently.
26 As to the general orders it seeks, the Guild maintains that its interests (or, more precisely, those of its members) were distinct from the interests of the defendants. I do not accept that this is so. Like Faulding, each relevant member of the Guild was (or purported to be) a creditor by whom a proof of debt and proxy had been submitted for voting purposes; and again like Faulding, the Guild members wished to see upheld the respective voting blocs that had resulted from the defendants decisions under challenge The defendants had accepted the voting entitlements asserted by the Guild members with the assistance of the Guild, as well as others which had brought about a result coinciding with that favoured by the Guild members. It was clear from the pre-trial stage that the defendants would seek to justify and defend their decisions with respect to not only the proofs and proxies of the Guild members but also others material to the voting outcome they wished to see maintained. There was therefore, in my view, again a coincidence of objectives as between the defendants and the Guild members.
27 In substance, I regard the position of the Guild - or, more accurately, the Guild members - as indistinguishable from that of Faulding, so far as concerns the possible exercise of any extraordinary and special jurisdiction there might be to award costs against a party in favour of a non-party.
The claim by the PwC clients
28 I turn now to the position of the PwC clients, being Australian Pharmaceutical Industries Ltd, Soul Pattinson (Manufacturing) Pty Ltd, Cambert (M) Shn Bhd and Cambert FE. The transcript in 5062/03 for the first day of the hearing indicates the following, immediately after appearances were announced:
"(Miss Cockayne sought leave to appear for the parties listed above, only for the purpose of certain documents being tendered, that were commercially confidential to her clients.)