Plaintiffs v Defendant

Supreme Court of Victoria|2008-08-29|Before: HANSEN J

ORDERS - Costs order of Taxing Master - Whether enforceable as judgment for payment of money - Whether order beyond power - Whether amendment under slip rule permitted or required - Supreme Court (General Civil Procedure) Rules 2005, rules 63.10, 63.11 and 63.56.

For the Third Defendant in proceeding 2010 of 2006 and the Defendant in proceeding 5166 of 2008

1 There are two proceedings before the Court. They concern an order made by the Taxing Master on 4 September 2007 on a taxation of costs after Dodds-Streeton J had found the second and third defendants guilty of contempt and on 20 April 2007 ordered that the plaintiffs' costs of the contempt proceeding be paid by the second and third defendants on a solicitor and client basis. The Taxing Master's order stated that "The costs of the plaintiffs are taxed and allowed in the sum of $123,587.41 to be paid by the Second and Thirdnamed Defendants" (emphasis added).

2 In the first proceeding, number 2010 of 2006, being the proceeding in which the orders of Dodds-Streeton J and the Taxing Master were made, the third defendant ("Charitopoulos") filed two notices of appeal on 4 April 2008 namely:

(a) an appeal from the order made by the Taxing Master on 4 September 2007 and for the bringing of which an extension of time in which to appeal was sought, and

(b) an appeal from the refusal of the Taxing Master on 28 March 2008 to amend his order of 4 September 2007 by the removal therefrom of the words "to be paid by the Second and Thirdnamed Defendants".

3 In the second proceeding, number 5166 of 2008, commenced by originating motion filed on 17 March 2008 against Charitopoulos as sole defendant, the plaintiffs (who are the same plaintiffs as in the first proceeding) seek a declaration that the authenticated order of the Taxing Master made on 4 September 2007 is enforceable against the defendants named in the order as a judgment for the payment of money.

4 On 14 September 2007, the amount of the costs specified in the Taxing Master's order not having been paid, the plaintiffs caused a bankruptcy notice to issue against Charitopoulos. The notice attached a copy of the order of the Taxing Master, but not the order of Dodds-Streeton J. The bankruptcy notice was served on Charitopoulos on 9 October 2007. Charitopoulos not having complied with the bankruptcy notice, on 1 November 2007 the plaintiffs caused a creditor's petition to be issued in the Federal Magistrates Court, the act of bankruptcy alleged being non-compliance with the bankruptcy notice.

5 At hearings of the creditor's petition in February 2008 Charitopoulos' counsel submitted that the bankruptcy notice was invalid because:

(a) it did not attach a copy of the final judgment or order relied upon as required by s 41(2) of the Bankruptcy Act 1966 (Cth) and Reg 4.02(1) of the Bankruptcy Regulations 1996 (Cth), that order being the order of Dodds-Streeton J;

(b) the order of the taxing master was not a "final order" as it was not enforceable by execution under the Supreme Court (General Civil Procedure) Rules 2005 ("the Supreme Court Rules").

6 In support of the submission reliance was placed on decisions of the Federal Court of Australia in Commonwealth Bank of Australia v Horvath (Junior)[1]; Franks v Warringah Council[2]; and Moran v Lydiard Financial Services Pty Ltd[3]. It was submitted that it was beyond the power of the Taxing Master to include in his order the words "to be paid by the Second and Thirdnamed Defendants". Counsel for the plaintiffs submitted to the contrary, contending that Horvath (and the cases following) was wrongly decided and involved, as did Charitopoulos' submission, a misapprehension of the Supreme Court Rules.

7 On 6 March 2008 the hearing of the creditor's petition was adjourned by consent to permit the parties to approach this Court as follows:

(a) the plaintiffs to seek a ruling as to the enforceability of the Taxing Master's order, and

(b) Charitopoulos to challenge the inclusion in the order of the impugned words.

8 On the same day, 6 March, Charitopoulos filed a summons in proceeding 2010 of 2006 for an order pursuant to r 63.56(5) or r 36.07 of the Supreme Court Rules or the inherent jurisdiction that the Taxing Master's order be amended by deleting the words "to be paid by the Second and Thirdnamed Defendants".

9 Then, on 17 March 2008 the plaintiffs filed the originating motion in proceeding 5166 of 2008 seeking a declaration that the Taxing Master's order was enforceable against the defendants named therein as a judgment for the payment of money.

10 The Taxing Master heard Charitopoulos' summons on 27 and 28 March 2008. He dismissed the summons with costs. I was told by counsel for the plaintiffs, and I did not understand this to be disputed, that in refusing the application the Taxing Master stated that the order was intended to be made as it is expressed, and there was no accidental slip or omission in that respect.

11 The next step was that Charitopoulos filed the notices of appeal referred to earlier. These, and the plaintiffs' originating motion, came on before me in the Practice Court on 16 April 2008 when I heard counsel upon the three matters.

12 As to Charitopoulos' application for an extension of time in which to appeal from the order of 4 September 2007, the plaintiffs' counsel - desiring that the substance of the matter be considered - consented to time being extended. There being no reason otherwise not to do so I will order that the time in which to appeal from the order be extended to and including 4 April 2008.

13 It is convenient to set out the relevant parts of the Supreme Court Rules. Order 63, which deals with costs, includes the following:

(a) the Court gives judgment, or makes an order, for costs;

(d) a party is otherwise liable under these Rules to pay the costs of another party;

(e) a party may tax costs under any of these Rules;

(f) parties have agreed in writing that costs payable by one party to another may be taxed, and the agreement is filed -

the costs may be taxed without an order for taxation.

(1) Where costs are taxed otherwise than under a judgment or order for costs, an order of the Taxing Master for payment of any amount found to be due may be enforced in the same manner as a judgment for the payment of money.

(1) Where the Taxing Master taxes a bill or otherwise fixes or assesses an amount for costs, the result shall be stated in the form of an order.

(2) The Taxing Master may, after the conclusion of the taxation of any bill, make a final order with respect to the amount at which he or she allows the costs or of his or her disallowance of the costs.

(3) In the course of the taxation the Taxing Master may make separate and interim orders in respect of any item in a bill.

(4) An order under this Rule shall be authenticated and filed in accordance with Order 60.

(a) a clerical mistake in an order made under this Rule; or

(b) an error arising in an order from any accidental slip or omission.

Rule 63.56.1 makes provision for the Taxing Master, on the application of a party, to review the allowance or disallowance, wholly or in part, of an item in a bill. Rule 63.57 provides that an order of a Taxing Master under r 63.56.1 may be reviewed by a Judge. As to that, r 63.57(8) provides that:

(8) Except so far as a Judge or the Taxing Master otherwise orders, a review under this Rule shall not operate as a stay of execution or of proceedings under the order of the Taxing Master to which the review relates.

14 Order 66 provides for the enforcement of judgments and orders. Rule 66.01 provides that in O 66, unless the context or subject matter otherwise requires -

"person bound" means a person against whom a judgment is entered or given or an order is made.

(1) A judgment for the payment of money not within paragraph (2) may be enforced by one or more of the following means -

Rule 66.02(2) is concerned with a judgment for the payment of money into court. Rule 66.02(3) provides that paragraphs (1) and (2) do not affect any other means of enforcement of a judgment for the payment of money.

15 It is also convenient to set out the following commentary in Williams' Civil Procedure - Victoria, which was referred to in argument.

[I 63.10.10] Enforcement of order on taxation.

Where on a taxation of costs by the taxing master an amount is found to be due, the result is stated in the form of an order: r 63.56(1). The order may be enforced in the same manner as a judgment for the payment of money, that is, by any of the means referred to in r 66.02(1). The order may be so enforced notwithstanding that the costs were not taxed under a judgment or order for costs, as where costs are taxed pursuant to r 63.10(d), (e) or (f): r 63.11.

Formerly, the result of a taxation before the taxing master was stated in the form of a certificate. See Supreme Court Act 1958 s 161 and former, O 65 r 19. Under the new Rules, where the taxing master taxes a bill or otherwise fixes or assesses an amount for costs, the result is stated in the form of an order: r 63.56(1). (Also, the result of proceedings before a Master is now stated in the form of an order when previously the Master granted a certificate. See rr 51.04 (assessment of damages or value), 78.07(1) (proceedings under judgment).) The taxing master may, at the conclusion of the taxation, make a final order with respect to the amount at which he allows the costs or of his disallowance of the costs: r 63.56(2). If any amount is found due on the taxation, the order will direct that the party liable shall pay the amount. In the course of the taxation the taxing master may make separate and interim orders in respect of any item in a bill: r 63.56(3). Formerly, the taxing master could grant an interim certificate. As to the practice in relation to interim certificates in the Federal Court of Australia. See GM (North Melbourne) Holdings Pty Ltd v Young Kelly Pty Ltd (1986) 70 ALR 637.

Where costs are taxed otherwise than under a judgment or order for costs, an order of the taxing master (including any interim order) for payment of any amount found to be due may be enforced in the same manner as a judgment for the payment of money: r 63.11. Before the order of the taxing master is enforced, it must be authenticated and filed in accordance with O 60: see rr 60.01, 63.56(4). In the case of costs taxed under a judgment or order, that is, a judgment or order of a judge or a master that a party pay costs, strictly, the liability of the party to pay the amount at which the taxing master allows costs arises from that judgment or order, not from the order of the taxing master. Nonetheless, the order of the taxing master must be authenticated before the amount for costs can be levied by warrant of execution.

16 Counsel provided extensive written submissions, complemented by comprehensive oral submissions, and numerous authorities. While having regard to all that counsel submitted and the authorities to which they referred the essence of their submissions may be stated as follows.

17 Counsel for Charitopoulos submitted that it was beyond the power of the Taxing Master to include in his order the italicised words referred to above. He submitted that paragraphs (1) and (2) of rule 63.56 contemplate the Taxing Master fixing or assessing an amount for costs, and making an order of the amount at which the Taxing Master allows costs or an order in respect of the amount of disallowance of costs, but do not contemplate the Taxing Master making an order that one party pay another party an amount of money. In this case, the order for payment of costs was the order made by Dodds-Streeton J. Once the Taxing Master quantified those costs, there was a final enforceable order, being the order of Dodds-Streeton J as quantified by the Taxing Master. The rules did not contemplate two orders directing a party to pay the same costs. The effect of the italicised words in the order was that the Taxing Master ordered the second and third defendants to pay money to the plaintiffs. Insofar as the order referred to the amount of costs "to be paid by the Second and Thirdnamed Defendants", the order was beyond power and invalid.

18 Counsel further submitted that the rules make a distinction between an order made by the Taxing Master otherwise than under a judgment or order (in which case r 63.11 operates and the Taxing Master's order takes effect as an order for the payment of money), and an order made by the Taxing Master following a judgment or order for costs (in which case r 63.56 applies and the Taxing Master's order is not a judgment for the payment of money and is thus not enforceable as such). While the Taxing Master's order may be a final order as referred to in r 63.56(2) it is not an order directing a party to pay costs to another party, the liability to do so being contained in the order of Dodds-Streeton J. Counsel submitted that statements as to the contrary in the extracts from Williams' Civil Procedure - Victoria set out above were incorrect. In particular, the statement in para 63.10.10 that the order may be enforced as a judgment for the payment of money was too broad as it overlooked the distinction made above. Also, the statement in para 67.37.35 that the order will direct the party liable to pay the amount taxed was incorrect for the reasons submitted.

19 As to the matter of correcting the order under the slip rule, counsel submitted that in circumstances where the costs order was beyond power, if that matter had been drawn to the Taxing Master's attention he would have corrected it. It was therefore appropriate to amend the order under the slip rule.

20 Finally, counsel submitted that the declaration sought by the plaintiffs was inappropriate unless it intended to address the validity of the inclusion in the order of the italicised words. Counsel submitted that the declaration sought would be meaningless and should not be made in circumstances where the declaration would not finally determine rights. That was so, he submitted, because the status of the order of the Taxing Master was a question for the Federal Magistrates Court, which will determine whether the order was a final order or judgment for a money sum for the purposes of the Bankruptcy Act 1966 (Cth).

21 Counsel for the plaintiffs submitted that the slip rule had no application because there was no accidental slip or omission by the Taxing Master. Rather, he made the order in the terms that he did deliberately. It followed that the appeal against the Taxing Master's refusal to apply the slip rule should be dismissed.

22 As to the appeal against the order of the Taxing Master, counsel submitted that the appeal should be dismissed because the Taxing Master had the power to make the order in the terms that he did. Counsel relied on the commentary in Williams' Civil Procedure - Victoria to the effect that an order of the Taxing Master may be enforced in the same manner as a judgment for the payment of money, whether or not the order is one to which r 63.11 applies. As to the significance of r 63.11, counsel referred to the position before the changes to the rules in 1986, whereby costs arising otherwise than under a curial order (for example on the discontinuance of a proceeding) could not be enforced directly but rather had to be certified and then made the subject of a judgment. He submitted that because the 1986 rules changed the position so as to permit costs arising under the rules to be taxed without an order for taxation, it was desirable in that context that the enforceability of an assessment of costs arising independently of a curial order be made plain, and to that end r 63.11 does no more than make plain that assessments of costs by the Taxing Master independent of a curial order may be enforced as a judgment for money. But, r 63.11 does not restrict or limit the enforceability of an assessment of costs pursuant to curial order. As to that, counsel submitted that the intention of the change in the 1986 rules (that is, from the assessment of costs being stated in a certificate to the assessment of costs being stated in an order) was to make all such orders enforceable as judgments for the payment of money in their own right. And contrary to Charitopoulos' submission that recognising the enforceability of the Taxing Master's order would mean recognising two orders for the payment of the same costs, the true position was that the curial order for the payment of costs was not enforceable as a judgment for the payment of money under O 66. Rather, it represents an inchoate liability requiring further process or agreement to be translated into an enforceable judgment.

23 Finally, counsel submitted that the declaration sought was appropriate to resolve the controversy between the parties which had arisen in the pending proceeding in the Federal Magistrates Court.

24 It is convenient to deal first with Charitopoulos' appeal against the Taxing Master's refusal to amend his order under the slip rule, or its equivalent in r 63.56(5), or the inherent jurisdiction of the Court. The fundamental premise of an amendment under the slip rule is that the judgment or order contains an error arising from an accidental slip or omission. In this case, however, the Taxing Master intended to make the order as expressed. Thus, no question of accidental slip or omission arose. The Taxing Master was correct to refuse the application.

25 I also reject the submission by counsel for Charitopoulos that, assuming the costs order was beyond power, the Taxing Master would have corrected it if his attention had been drawn to the matter. The fact is the matter was drawn to the Taxing Master's attention, in that Charitopoulos' application to amend was premised on the assumption that the italicised words were outside the Taxing Master's power. Whether correct or incorrect, the Taxing Master took the view that he had power to make the costs order in the terms that he did. The correctness of that decision can be (and in this case is) challenged on the appeal against the costs order itself. But even if that appeal were successful, the error disclosed would not be the result of an accidental slip or omission but rather the Taxing Master's deliberate decision to make the order in the terms that he did.

26 For this further reason also the appeal from the Taxing Master's refusal to amend the order must be dismissed.

27 It is important not to overlook that the power to amend lies in the discretion of the Court. It has long been held, and it is obvious enough, that amendment may be refused where it would be unjust and inequitable to order it. See L Shaddock & Associates Pty Ltd v Council of the City of Parramatta[4] where in the judgment of the High Court it was observed that:

"There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made ... ."

The court made that statement with reference to Tak Mining Co Ltd v Yee Sang Metal Supplies Co[5] and the cases there cited which were Moore v Buchanan[6] following Lord Watson in Hatton v Harris[7]. In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd[8] Lindgren J observed that the reason to exercise power under the slip rule "is ultimately to avoid injustice."

28 In the present case factors relevant to the consideration whether to exercise the discretion, in addition to the operation of the Supreme Court Rules in relation to the Taxing Master's order, would have included the following: Charitopoulos did not appear at the taxation on 4 September 2007 and thus made no submission as to the terms of the impugned order; the plaintiffs acted in reliance upon the order in initiating and pressing the bankruptcy process; Charitopoulos delayed in seeking amendment of the order until 6 March 2008; if the amendment were granted the bankruptcy proceeding would (it seems) be rendered abortive with consequent effect on the relation back period and with obvious potential effects upon the plaintiffs and other creditors. In view, however, of the conclusions I have reached in relation to the application to amend the order the question whether to exercise the discretion does not arise.

29 I now deal with the appeal against the inclusion in the order of the italicised words. It is convenient to begin with the terms of the relevant orders themselves.

30 As mentioned above, Dodds-Streeton J found the second and third defendants guilty of contempt and on 20 April 2007 ordered (by para 9 of her orders) that:

"The plaintiffs' costs of the contempt proceeding, including reserved costs, are to be paid by Haritopoulos Pty Ltd and Pantelis Charitopoulos on a solicitor-client basis."

The order attached the schedule of parties which listed the five plaintiffs (defendants by counterclaim) and seven defendants. Haritopoulos Pty Ltd and Charitopoulos were the second and third defendants and the plaintiffs by counterclaim.

31 On 4 September 2007 the Taxing Master made an order that was authenticated on 6 September 2007 as a "General Form of Order" which stated that the order was obtained on the plaintiffs' Summons for Taxation filed 7 August 2007, and the "Other Matters" section further stated "Taxation pursuant to the Order of the Honourable Justice Dodds-Streeton made 20 April 2007." The Taxing Master ordered that:

"The costs of the plaintiffs are taxed and allowed in the sum of $123,587.41 to be paid by the Second and Thirdnamed Defendants."

32 In my view the Taxing Master had power to make the order in the terms that he did. The terms of the order are readily to be understood. In the first place the statement in "Other Matters" identified that the Taxing Master was acting pursuant to the earlier order of Dodds-Streeton J and thereby linked the two orders. In the second place the inclusion in the order of the reference to the second and third defendants clarified who was to pay the taxed costs to the plaintiffs. It also served to complete the linkage between the orders.

33 I understand it to be standard practice in this Court for the Taxing Master to express orders in that very way. Indeed the Court Record of the hearing, which was completed and signed by the Taxing Master and which is the basis of the authenticated order, is in the form of a proforma used by the Taxing Master in taxation matters. The proforma has three items in Other Matters and nine items in Orders the last of which is "Other orders (see attached"). The Taxing Master completes the document by ticking the appropriate item or items and, by way of completion of any item, inserting therein such words as may be appropriate. Hence, the relevant proforma order provided that:

"The costs of the ______________________ are taxed and allowed in the sum of $ _______________ to be paid by the _____________________ ."

The gaps were completed by the Taxing Master writing in "Plaintiffs", "123,587.41" and "2nd and 3rd defendants" respectively.

34 There may be many situations in which the Taxing Master might consider it appropriate to state, in addition to the amount taxed or assessed, the effect and operation of the order in terms of what is payable and by whom. An example could be a taxation where a party is liable to pay a percentage only of another party's costs and it is desired to identify that the liability to pay is limited to a percentage of the total or some other part of the total taxed amount. Another situation is where the liability to pay costs is defined, in whole or in part, in respect of issues. Another situation is where a taxation is had under a number of orders but producing a single taxed amount, let alone if there are multiple parties and the liability to pay varies between them and even includes percentage and issue orders. The situations may be many and various. What is apparent is that there may be good reason for orders of the Taxing Master to state more than the mere amount of costs taxed or assessed. It is for the Taxing Master to formulate his orders as he considers appropriate in the circumstances.

35 To explain why the order was not beyond power, it is also necessary to say something about r 63.11. That rule only applies "where costs are taxed otherwise than under a judgment or order for costs". That is not the present case. Nevertheless, Charitopoulos submitted that r 63.11 qualified the Taxing Master's power to make orders under r 63.56. He pointed to the fact that while r 63.11 expressly provides that "an order of the Taxing Master for payment of any amount found to be due may be enforced in the same manner as a judgment for the payment of money" (emphasis added), the rules do not otherwise provide for the Taxing Master's order to be so enforced. Counsel relied in this respect upon the decision of Finkelstein J in Commonwealth Bank of Australia v Horvath (Junior)[9] (and followed in other decisions in the Federal Court of Australia) that the effect of r 63.11 of the Supreme Court Rules is that an order made pursuant to r 63.56(1) can "only" be enforced as a judgment for the payment of money where the costs are taxed otherwise than under a judgment or order for costs. Finkelstein J further concluded[10] that where a Taxing Master undertook a taxation in consequence of an order made by a judge of this Court, the Taxing Master's order was not capable of enforcement. I recognise that Finkelstein J's analysis of the Rules of this Court was in the context of the question whether the order of the Taxing Master there in question was a final order for bankruptcy purposes. It is also important to note that the order in that case did not state by whom the amount taxed and allowed was to be paid. That is not this case. Nevertheless relying upon the analysis and conclusion in that case counsel submitted that the Taxing Master's order in the present case was not enforceable as a judgment for the payment of money. I do not accept this submission.

36 Rule 63.11 is not relevant to the present case. The rule is enabling and clarificatory to the extent it provides. It is to be understood as making plain that an order made by the Taxing Master in the circumstances set out in r 63.10 (d), (e) and (f) (that is, not pursuant to a curial order) is enforceable in the same manner as a judgment for the payment of money. It does not say, and in any event it does not follow, that an order made by the Taxing Master in the circumstances set out in r 63.10 (a), (b) and (c) (that is, pursuant to a curial order) is not enforceable in the same manner as a judgment for the payment of money. To so hold rests on an erroneous understanding of the Supreme Court Rules as they have been since 1986. The new Rules did away with the old system of allocaturs and certificates. The Supreme Court Rules require the Taxing Master to express "the result" (r 63.56(1)) in the form of an order to be authenticated in the same way as any other order of the Court.

37 Thus the result of taxation is an order, and the question is whether for some reason such an order is not effective and enforceable according to its terms, unless and until it is set aside. In my view no appellable error in the order is established. Further, there is nothing on the face of the order and nothing in the rules that indicates that it is not enforceable against the second and third defendants as a judgment for the payment of money. As r 66.01 provides, a judgment includes an order, and R 63.57(3) indicates that execution may be effected under an order of a Taxing Master. Notwithstanding that in this case the Taxing Master's power to tax costs derived from the earlier order of Dodds-Streeton J, the Taxing Master's order was open to him to make and, once made, is properly to be characterised as an order for the payment of money, and thus enforceable under O 66.

38 For these reasons Charitopoulos' appeals will be dismissed.

39 That leaves the matter of the declaration. In the circumstances I do not propose to make the declaration. It is unnecessary to do so in the sense that I have dealt with the appeals from the Taxing Master's order and in doing so dealt with the arguments pertaining thereto. I also consider it inappropriate to make the declaration. It does not relate, and is not limited in reference, to an act of execution under the Supreme Court Rules and is non-specific as to its purpose. The purpose evident in the circumstances is to use the declaration (if granted) in the Federal Magistrates Court in aid of establishing the validity of the bankruptcy notice. If the declaration by its terms acknowledged that as its purpose, and was a declaration of legal right as to that, it would have been apparent that the declaration was inappropriate because that specific issue is awaiting determination in the Federal Magistrates Court, to which Court the parties must now return. The proceeding for a declaration will be dismissed.

Court (General Civil Procedure) Rules 2005

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