Puntoriero v Water Administration Ministerial Corporation

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION RIVERINA REGISTRY R400059 of 1993 Master Malpass

FRIDAY 23 NOVEMBER 2001 Ferdinando Puntoriero and Tonetta Puntoriero v Water Administration Ministerial Corporation

Judgment 1 Master Malpass: The plaintiffs brought proceedings for the recovery of damages on a common law claim. At first instance, in a jury trial had in 1996, they were successful and obtained judgment and an order for costs. The defendant brought an appeal. On 21 November 1997, the appeal was allowed by the Court of Appeal. The plaintiffs then brought an appeal to the High Court. On 9 September 1999, the High Court allowed the appeal. 2 The plaintiffs now have an order for costs for the hearing at first instance, an order for costs for the appeal heard by the Court of Appeal and an order for costs for the appeal heard by the High Court. 3 On or about 21 September 1999, the defendant paid to the plaintiffs the sum payable under the original judgment. On the same day, the plaintiffs paid moneys owing to their solicitors, their counsel and others. In total, a sum of $1,223,872.79 was paid. 4 The costs of the High Court appeal have been paid. The quantification of the costs of the hearing at first instance and before the Court of Appeal is still to be finally resolved. A substantial sum is involved. A bill of costs was served on 7 March 2000. The costs were referred by the court to a costs assessor. The Certificate of Determination was issued on 5 July 2001 and assessed the costs in the sum of $483,562.10 (a sum which saw a significant reduction in the quantum of the costs claimed by the plaintiffs). The determination by the costs assessor is now the subject of a review by the panel (at the instance of the defendant). 5 The plaintiffs now seek an order pursuant to s 95 (4) of the Supreme Court Act 1970. It is said that the sum involved is in the order of $100,000. The application is opposed. 6 The evidence falls within a short compass. Indeed, it could be described as parsimonious. The plaintiffs rely on an affidavit sworn by their solicitor (Mr Day). The defendant relies on Exhibit 1 (which is an offer of compromise concerning costs made on 20 June 2000). There is issue as to the relevance of this document and in my view it is lacking in relevance. 7 I now turn to s 95. For present purposes the relevant provisions are to be found in subsections (1), (3) and (4). The provisions are in the following terms:- "(1) Where judgment is given or an order is made for the payment of money, interest shall, unless the Court otherwise orders, be payable at the prescribed rate from the date when the judgment or order takes effect on so much of the money as is from time to time unpaid. ………………… (3) Notwithstanding subsection (1), where, in proceedings for damages on a common law claim, the Court makes an order for the payment of costs and the costs are paid within twenty-one days after ascertainment of the amount of the costs by assessment under Division 6 of Part 11 of the Legal Profession Act 1987 or otherwise, interest on the costs shall not be payable under subsection (1) unless the Court otherwise orders. (4) If an order is made for the payment of costs, the Court may order that interest is to be paid on the amount so ordered, at the prescribed rate referred to in subsection (1), from the date or dates when the amount in respect of costs was duly paid." 8 Subsection (3) is a provision of long standing. Subsection (4) is of relevantly recent origin. The court has been informed that it came into being in 1995 following comments by Rogers CJ Com D in McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190. 9 The court has been referred to a number of cases (including Minister Administering the Environmental Planning & Assessment Act 1979 v Carson (1994) 35 NSWLR 342; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [1999] NSWSC 1051 and Grogan v Thiess Contractors Pty Limited & Anor [2000] NSWSC 1101). 10 In Grogan, reference was made to what was said by the Minister in the second reading speech as to its purpose and function (inter alia it was to compensate a litigant who had paid a sum of money on account of costs at a time distant from an order for costs and the receipt of a taxed bill and was to be exercised only when the special circumstances of the case warrant the making of such an order). 11 In Hughes, it was decided that an order could be made under subsection (4) even though the quantification of the costs remained undetermined. The present case was argued on the basis that such question had been correctly decided. 12 The statutory scheme seems to be that subsections (1) and (3) relate to interest payable subsequent to an order. Subsection (3) qualifies subsection (1) where the proceedings are for damages on a common law claim and the costs are paid within the prescribed period of 21 days. Subsection (4) is not expressed in terms which restrict its application to the period subsequent to the making of an order and as such has the potential to provide a remedy which at least in part overlaps with that provided by subsection (3). It seems to have been intended to cure a lack of power to award interest on earlier payments. 13 Subsection (4) employs language which confers a discretionary power upon the court enabling it to order that interest is to be paid on "the amount so ordered". It is expressed in wide terms and the discretion is unfettered. The threshold requirements are an order for the payment of costs and payment of "the amount in respect of costs". It is not expressed to be restricted in its application to proceedings on a common law claim. 14 Authority prescribes that such a power is to be exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus is borne by the party seeking the order. 15 The plaintiffs' case is simply put. It is said that the moneys were paid out in September 1999 and they will be out of pocket in respect of what is payable under the costs order until those costs are paid. 16 The defendant has made a number of submissions. In addition to what has been orally said, counsel has handed up written submissions. I shall expressly mention some of the matters that have been argued. This reference is not intended to be exhaustive. 17 The defendant seeks to distinguish this case from other cases in which an order has been made. It is said that this is not a case where the plaintiffs have outlaid from an early stage and often continuously amounts of money by way of payments to legal representatives to finance the conduct of the litigation. It says that it is not one of those cases where the plaintiffs have been at all times agitating for interest on costs paid. It is said that it is not a case where they have had to fund the litigation by loans or can look to the conduct of the defendant as having caused the expenditure. 18 It further says that if an order is made, it will lose the opportunity to take advantage of payment within the 21 day period provided by (3) and that its offer of compromise will be negated. 19 It raises another argument which is relevant only to the Court of Appeal costs. It is said that this is a matter which has to be maintained by application in the Court of Appeal and heard by a judicial officer who is empowered to exercise the jurisdiction of the court. For the moment, I shall put that question to one side. 20 The court is required to do that which best serves justice between the parties. This application does not present the court with an easy task. It is up to the plaintiffs to satisfy the court that the circumstances of this case justify the making of an order. 21 It is appropriate to mention certain of the relevant circumstances. This reference is not intended to be exhaustive. 22 The plaintiffs have paid a large amount in respect of costs. It was paid after the costs orders were made. The assessment process is yet to be completed. The review may now be underway. It may be complex and it is uncertain when the determination may be made. 23 In the circumstances of this case, subsections (1) and (3) have application. If the defendant pays the costs within the 21 day period, the plaintiffs can apply for an otherwise order. 24 Whilst the wide terms of subsection (3) do not preclude its application, it may be that the legislature did not have the circumstances of this case in contemplation when the provision was drafted. 25 There has been some delay since the making of the costs orders. However, the material does not attribute this to the conduct of the defendant (who so far seems to have had some success in the assessment process). 26 In the circumstances of this case, after considerable deliberation, I have reached the view that that the plaintiffs have not discharged the onus of demonstrating any entitlement to an order. In these circumstances, it is unnecessary to deal with the jurisdictional arguments. 27 The Notice of Motion is dismissed. The plaintiffs are to pay the costs of the Notice of Motion. The Exhibit may be returned.

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