Costs - Interest on costs - Section 8 of the Civil Judgments Enforcement Act 2004 (WA) - Date from which interest payable - Whether interest on costs to be taxed payable from the date of the judgment or order or from the date on which the amount of the costs is certified by the Taxing Officer

Civil Judgments Enforcement Act 2004 (WA), s 3, s 5(a), s 7, s 8

Civil Procedure Acts Repeal Act 1879, 42 & 43 Vict, c 59

Courts Legislation Amendment and Repeal Act 2004 (WA), s 128

Judgments Act 1838, 1 & 2 Vict, c 110, s 17, s 18, s 20

Legal Practice Act 2003 (WA)

Legal Practitioners Act 1893 (WA), pt VI, s 70

Legal Profession Act 2008 (WA)

Public Works Act 1902 (WA), s 68, s 71

Remedies of Creditors against the Property of Debtors Act 1842 (WA), s 5

Rules of the Supreme Court (Revision) 1965 (UK) SI 1965/1776, O 45 r 12, Appendix A

Rules of the Supreme Court 1881 (WA), O XXXVIII r 12, O XXXVIII r 14, Schedule I

Rules of the Supreme Court 1883 (UK), O 42 r 14, Appendix H

Rules of the Supreme Court 1888 (WA), O XL r 14, O XL r 16, Appendix H

Rules of the Supreme Court 1909 (WA), O XL r 13, O XL r 15, O LXV r 58, Appendix H

Rules of the Supreme Court 1971 (WA), O 1 r 6, O 47 r 5, O 66 r 11(2), O 66 r 16, O 66 r 57, Schedule 2

Supreme Court Act 1935 (WA), s 4, s 58(1)(d), s 142

Supreme Court Act Amendment Act 1971 (WA), s 13

Supreme Court of Judicature Act 1873, 36 & 37 Vict, c 66

Supreme Court of Judicature Act 1875, 38 & 39 Vict, c 77, s 16, s 33, Schedule 1

Declaration made as to the proper construction of s 8 of the Civil Judgments Enforcement Act and the application of s 8 to the present case

Ashworth v English Card Clothing Co Ltd (No 2) [1904] 1 Ch 704

Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 (S)

Boswell v Coaks (1887) 57 LJ Ch 101

Erven Warnink BV v J Townend & Sons (Hull) Ltd [1982] 3 All ER 312

Fisher v Dudding [1841] EngR 816; (1841) 9 Dowl 872

Hamdan v Widodo [No 2] [2010] WASC 6 (S)

Hunt v RM Douglas (Roofing) Ltd [1990] 1 AC 398

K v K (Divorce Costs: Interest) [1977] Fam 39

Lampropoulos v Kolnik [2010] WASC 193 (S)

Landowners' West of England and South Wales Land Drainage and Inclosure Co v Ashford (1884) 33 WR 41

Mercantile Credits Ltd v Buckeridge [1986] WAR 149

Newton v The Grand Junction Railway Co [1846] EngR 1049; (1846) 16 M & W 139

Pyman & Co v Burt, Boulton [1884] WN 100

Re The London Wharfing and Warehousing Co (1885) 54 LJ Ch 1137

Schroeder v Cleugh (1877) 46 LJQB 365

State Planning Commission v Della Vedova (1992) 7 WAR 81

Tarlinton v Hall (1981) 51 FLR 282

Taylor v Roe [1894] 1 Ch 413

1 BUSS JA: This application is concerned with the proper construction of s 8 of the Civil Judgments Enforcement Act 2004 (WA) (the CJE Act); in particular, whether interest on costs ordered to be taxed and paid pursuant to a judgment or order of the Supreme Court runs from the date of the judgment or order (the incipitur rule) or from the date on which the amount of the costs is certified by the Taxing Officer (the allocatur rule).

2 On 25 June 2013, Edelman J made orders by consent in the General Division of the Supreme Court in relation to action CIV 1925 of 2011 (consolidated with CIV 2422 of 2011, CIV 2423 of 2011 and CIV 3201 of 2011).

The Plaintiff by Counterclaim do pay the costs of the First, Second and Third Defendants by Counterclaim, including the costs of the application by the Plaintiff by Counterclaim for leave to discontinue and all reserved costs, to be taxed.

4 The Plaintiff by Counterclaim was the respondent in this application (namely The Griffin Coal Mining Co Pty Ltd).

5 The Second and Third Defendants by Counterclaim were the first and second applicants in this application (namely Vikas Rambal and Andreas Walewski).

6 On 7 January 2015, the Taxing Officer issued a certificate in relation to the applicants' taxed costs of the respondent's counterclaim against the applicants in CIV 1925 of 2011 in the sum of $346,641.76.

7 The delay in the taxation of the costs is unexplained. Also, there is no evidence as to whether and, if so, when the applicants paid the costs to their lawyers.

The competing policy justifications for the incipitur rule and the allocatur rule

8 The competing policy justifications for the incipitur rule and the allocatur rule have been examined in a number of cases. See, for example, Tarlinton v Hall (1981) 51 FLR 282, 290 - 292 (Kelly J); Hunt v RM Douglas (Roofing) Ltd [1990] 1 AC 398, 415 - 416 (Lord Ackner, Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Griffiths & Lord Jauncey of Tullichettle agreeing).

9 The issues in this case turn on the proper construction of s 8 of the CJE Act. It is unnecessary to recount the policy justifications for each of the incipitur rule and the allocatur rule.

The originating summons filed by the applicants

10 On 9 January 2015, the applicants, as plaintiffs, filed an originating summons, being CIV 1024 of 2015, in the General Division of the Supreme Court. The originating summons named the respondent as the defendant.

A declaration that, on the proper construction of section 8 of the Civil Judgments Enforcement Act 2004 (WA), interest on the plaintiffs' taxed costs of the defendant's counterclaim against them in CIV 1925 of 2011 is to be calculated from 25 June 2013, being the date of the order as to costs made by the Honourable Justice Edelman.

12 On 21 January 2015, McKechnie J made an order, pursuant to s 58(1)(d) of the Supreme Court Act 1935 (WA), that the applicants' application for declaratory relief be referred to this court for determination.

The organisation of the balance of these reasons

13 It is necessary, before construing s 8 of the CJE Act, to understand the historical context in which s 8 was enacted.

(a) relevant English statutory provisions and rules of court in force before 14 February 1972, when the Rules of the Supreme Court 1971 (WA) (the 1971 WA Supreme Court Rules) took effect; and

(b) relevant Western Australian statutory provisions and rules of court, including relevant provisions of the Supreme Court Act 1935 and the 1971 WA Supreme Court Rules before 1 May 2005, when s 8 of the CJE Act came into operation.

Relevant English statutory provisions and rules of court in force before 14 February 1972

15 The following account of the relevant English statutory provisions and rules of court in force before 14 February 1972, when the 1971 WA Supreme Court Rules took effect, is taken substantially from the speech of Lord Ackner in Hunt.

16 Prior to the enactment of the Judgments Act 1838, 1 & 2 Vict, c 110 (the 1838 Act), interest on costs could not be recovered either in courts of law or courts of equity.

17 Section 17, s 18 and s 20 of the 1838 Act provided:

17 ... every judgment debt shall carry interest at the rate of £4 per centum per annum from the time of entering up the judgment ... until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.

18 ... all decrees and orders of courts of equity, and all rules of courts of common law ... whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such monies, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by courts of equity with respect to matters therein depending ... and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid ....

20 ... such new or altered writs shall be sued out of the courts of law, equity, and bankruptcy as may by such courts respectively be deemed necessary or expedient for giving effect to the provisions herein-before contained, and in such forms as the judges of such courts respectively shall from time to time think fit to order.

18 Section 20 was repealed by the Civil Procedure Acts Repeal Act 1879, 42 & 43 Vict, c 59. The rate of interest in s 17 was amended from time to time but as at 14 February 1972, when the 1971 WA Supreme Court Rules took effect, s 17 and s 18 were still in operation.

19 In Hunt, Lord Ackner made these comments about the phrase 'entering up the judgment' in s 17:

The Act nowhere defines the vital words in section 17 'entering up the judgment.' A different view was taken by the common law courts as opposed to the Chancery courts as to when the judgment could be said to have been entered up and section 20 was apparently relied upon as giving a power to the courts to regulate their practice in accordance with the view they took (405).

20 The Court of Common Pleas awarded interest on costs from the date of the incipitur. See Fisher v Dudding [1841] EngR 816; (1841) 9 Dowl 872, 874 (Tindal CJ), 875 - 876 (Erskine J), 876 (Maule J); Newton v The Grand Junction Railway Co [1846] EngR 1049; (1846) 16 M & W 139, 141 (Alderson B). However, courts of equity awarded interest on costs from the date of the taxing master's certificate. See Boswell v Coaks (1887) 57 LJ Ch 101, 105 (Lindley LJ).

21 In Hunt, Lord Ackner noted that the Supreme Court of Judicature Acts 1873 and 1875 established the High Court of Justice. His Lordship then referred to relevant provisions of the 1875 English Act as follows:

Section 16 of the Act of 1875 is in the following terms:

'The Rules of Court in Schedule 1 to this Act shall come into operation at the commencement of this Act, and as to all matters to which they extend shall thenceforth regulate the proceedings in the High Court of Justice and Court of Appeal ....'

Section 33 of the Act of 1875 repealed 'Any other enactment inconsistent with this Act or the [Supreme Court of Judicature Act 1873].' In Schedule 1 to the Act of 1875 there appeared in Appendix F, Form 1. That form directed the sheriff to levy the amount of costs allowed on taxation 'together with interest thereon at the rate of £4 per centum per annum from the [blank] day of [blank].' There was then a reference to a footnote which stated: 'The date of the certificate of taxation. The writ must be so moulded as to follow the substance of the judgment or order.' (407) (original emphasis)

22 In Schroeder v Cleugh (1877) 46 LJQB 365, it was held that the effect of the 1875 English Act was to apply the practice of courts of equity throughout the High Court.

23 In 1883, new rules of the Supreme Court were enacted. In Hunt, Lord Ackner referred to relevant provisions of those rules, as follows:

Ord 42, r 14 provided, inter alia, that: 'The Forms in Appendix H shall be used, with such variations as circumstances may require.'

Form 1 in Appendix H was for a writ of fieri facias, where the party entitled elected to execute by one writ for both judgment debt and costs. This directed the sheriff to levy the judgment debt and costs in the same form as in Appendix F to the Rules of 1875 but the old footnote was replaced. The new footnote said: 'Day of the judgment or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be.'

Form 2, which related to an order for costs only, and which gave the sheriff the same direction as to interest, leaving the day from which it was to run blank, contained no footnote (407).

24 So, the 1883 English Rules changed the note concerning 'the date of the certificate of taxation' to 'day of the judgment or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be'.

25 In Pyman & Co v Burt, Boulton [1884] WN 100, Field J determined the effect of the alteration to the footnote made by the 1883 English Rules. His Lordship held that the effect of the change to the note on the form of writ of fieri facias was that interest on costs ran from the date of judgment:

By Order XLII, r 14, the form of writ of execution given in Appendix (H) is ordered to be used. That form, therefore, may be taken to express what the judgment and execution are to be for. Then what is the form given in Appendix H? It must be read in conjunction with the note appended to it. It provides for execution for the amount of the debt and interest from a day to be inserted, and for the amount of the costs with interest from a day to be inserted. By the note, which applies both to the interest on the debt and to the interest on the costs, it is provided that the day to be inserted shall be the day of the judgment or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be. The meaning of that is that there may be a judgment simply, in which case the interest on the debt and on the costs will begin to run at once; or there may be a judgment directing money to be paid on a future day, in which case the interest will begin to run from that day; or there may be a judgment with a special direction as to the day from which interest on the debt or on the costs is to run. In any particular case I could order that the interest on the costs should not begin to run until after they have been taxed. In the absence of any special order, no distinction is made between interest on the debt and interest on the costs. Both begin to run from the day of the judgment (100). (emphasis added)

26 The decision of Field J was followed in Landowners' West of England and South Wales Land Drainage and Inclosure Co v Ashford (1884) 33 WR 41, Re The London Wharfing and Warehousing Co (1885) 54 LJ Ch 1137 and Boswell.

When the Rules of 1875 were settled, the Chancery rules were left alone, and the old practice remained untouched, and that accounts for the fact that the practice was not touched till 1883. Then came the Rules of 1883; they struck out the old rules and made one code applicable to all divisions of the court, and then we find the writ of fi fa varied, and the present form made applicable to all divisions under which interest is made to run from the date of the judgment, not the allocatur .... I think that the Rules of 1883 apply, and that the proper form of the writ of fi fa is that given in Appendix H, under which interest on costs runs from the date of the judgment, and not from the date of the taxing master's certificate (105 - 106).

28 In two later decisions of the Chancery Division, namely Taylor v Roe [1894] 1 Ch 413 and Ashworth v English Card Clothing Co Ltd (No 2) [1904] 1 Ch 704, interest on costs was awarded from the date of the incipitur.

29 In Hunt, Lord Ackner observed that between 1884 and 1965 the principle that interest on costs was allowed from the date of judgment became firmly established. During that period The Annual Practice contained a note to the effect that interest on costs was allowed from the date of judgment and not from the date of the taxing master's certificate (409).

30 Lord Ackner then referred to the introduction in 1965 of new writs of execution. The new writs were introduced by the Rules of the Supreme Court (Revision) 1965 (UK) SI 1965/1176: see O 45 r 12 and Appendix A Forms 53 and 54, which replaced the old Forms 1 and 2 respectively. The footnote to Form 1 was omitted altogether (409). However:

The note in The Annual Practice, subsequently The Supreme Court Practice, continued in the same form until after the decision of the Court of Appeal in K v K (Divorce Costs: Interest) [1977] Fam 39, a case in the Family Division (409).

31 In K v K (Divorce Costs: Interest) [1977] Fam 39, the Court of Appeal held that, as a consequence of the 1965 amendments (in particular, the omission of the 1883 footnote to Form 1), the old equity rules of practice in relation to interest on costs prevailed. See the speech of Lord Denning MR (46, 48 - 49) and the speech of Stephenson LJ (53 - 56). Orr LJ agreed with both speeches.

32 In Erven Warnink BV v J Townend & Sons (Hull) Ltd [1982] 3 All ER 312, a differently constituted Court of Appeal (Lawton, Templeman & Fox LJJ) held that it was bound by the decision in K v K.

33 In Hunt, the House of Lords overruled K v K and Erven Warnick, and approved Pyman and Boswell.

34 The error of the Court of Appeal in K v K was identified and elucidated by Lord Ackner in Hunt, as follows:

[T]he Court of Appeal were unable to detect any change of substance in the new forms except the removal of the footnote from Form 53 which replaced the old Form 1. Accordingly, they concluded that the principle which had been established for some 80 years had thus been removed and they were accordingly able to reach the decision which they considered met the justice of the particular case ... the Court of Appeal overlooked that in the previous fi fa forms there were two separate blanks, one which related to the date from which interest on the damages or debt, the subject matter of the judgment was to run and the other which related to the date from which interest on costs was to run. In such circumstances it was necessary to provide a footnote as to how those blanks were to be filled in. In the new form there is only one blank for the date from which interest is to run and this has therefore to be calculated on the aggregate of the damages or debt together with the costs allowed on taxation. The possibility of differentiation between the two having been removed the form was thus a simplified version of its predecessor and the simplification removed the necessity for the note. Accordingly there was no warrant for the Court of Appeal to depart from the previous decision of the Court of Appeal in Boswell v Coaks, which was accepted to have been a correct decision when made and consistently applied for nearly a century thereafter (413).

35 His Lordship concluded that the decision in Pyman as to the effect of the 1883 Rules, as approved in Boswell, was correct. The Court of Appeal in K v K misapprehended the nature of the amendment made to the new form by the 1965 Rules. Accordingly, the incipitur rule prevailed (415).

36 Finally, Lord Ackner added, for the sake of completeness, that it had been argued in Hunt that an order for payment of costs to be taxed cannot be a 'judgment debt' within s 17 of the 1838 Act because 'until taxation has been completed, there is no sum for which execution can be levied' (416). His Lordship said:

This point appears to have been raised in the Erven Warnink case and disposed of at the end of the judgment on the basis that the courts have accepted since its enactment, that section 17 does apply to such a judgment and accordingly the law has gone too far for that argument. I agree. This acceptance is because a judgment for costs to be taxed is to be treated in the same way as a judgment for damages to be assessed, where the amount ultimately ascertained is treated as if it was mentioned in the judgment - no further order being required. A judgment debt can therefore in my judgment be construed for the purpose of section 17, as covering an order for the payment of costs to be taxed (416).

Relevant Western Australian statutory provisions and rules of court in force before 1 May 2005

37 As Smith J (Olney J agreeing) observed in Mercantile Credits Ltd v Buckeridge [1986] WAR 149, judgment debts in Western Australia have carried interest since 1842 (151).

38 Section 5 of the Remedies of Creditors against the Property of Debtors Act 1842 (WA) provided:

[E]very judgment debt shall carry interest at the rate of ten pounds for every hundred pounds by the year from the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.

39 Apart from the rate of interest, s 5 reproduced s 17 of the 1838 Act. Section 5 was amended in 1900 by reducing the rate of interest from 10% to 8%.

40 The Supreme Court Act 1935, which commenced on 1 May 1936, repealed the Remedies of Creditors against the Property of Debtors Act. However, s 5 of the repealed Act was in substance re-enacted by s 142(1) of the Supreme Court Act 1935.

41 Section 142(1) of the Supreme Court Act 1935 was amended by s 13 of the Supreme Court Act Amendment Act 1971 (WA). The amendment replaced the fixed rate of interest with a rate to be determined by the Treasurer of the State from time to time. Section 142(1), as amended, provided:

Every judgment debt shall carry interest at such rate for every hundred dollars by the year as the Treasurer from time to time by notice published in the Government Gazette determines from the time of entering up the judgment until the judgment is satisfied, and the interest may be levied under a writ or warrant of execution on the judgment.

42 By s 9 of the Supreme Court Amendment Act 1996 (WA), s 142(1) was amended by deleting 'time of entering up' and substituting 'date of'. The Attorney General, in her second reading speech on the Bill which became the Supreme Court Amendment Act 1996, explained the rationale for the amendment:

Currently in these matters, interest can be determined only from the date judgment has been lodged at the court by the creditor and not the date the judgment was given. The creditor, under the proposed provisions, will be able to receive interest immediately from the date of judgment.

See Western Australia, Parliamentary Debates, Legislative Assembly, 30 November 1995, 12055.

43 At all times between 31 August 1996 (when the amendment made by the Supreme Court Amendment Act 1996 came into operation) and 1 May 2005 (when s 8 of the CJE Act came into operation), s 142(1) read:

Every judgment debt shall carry interest at such rate for every hundred dollars by the year as the Treasurer from time to time by notice published in the Government Gazette determines from the date of the judgment until the judgment is satisfied, and the interest may be levied under a writ or warrant of execution on the judgment.

44 The term 'judgment debt' in s 142(1) was never defined. The term 'judgment' was defined in s 4 to include 'decree'.

45 Section 128 of the Courts Legislation Amendment and Repeal Act 2004 (WA) repealed s 142 and the other provisions of pt VII of the Supreme Court Act 1935. The repeal took effect on 1 May 2005, being the date on which s 8 of the CJE Act came into operation.

47 Order XXXVIII r 12 of the Rules of the Supreme Court 1881 (WA) (the 1881 WA Supreme Court Rules) provided, relevantly, in relation to writs of execution that:

The forms in Schedule I hereto may be used with such variations as circumstances may require.

48 By O XXXVIII r 14 of the 1881 WA Supreme Court Rules:

Every writ of execution for the recovery of money shall be indorsed with a direction to the Sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable, and sought to be recovered under the judgment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £10 per cent per annum from the time when the judgment was entered up: Provided that in cases where there is an agreement between the parties that more than £10 per cent interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount so agreed.

49 The form of the writ of fieri facias in Schedule I to the 1881 WA Supreme Court Rules was relevantly identical to Form 1 in Appendix F of Schedule 1 to the 1875 English Act. The form of the writ of fieri facias in Schedule I to the 1881 WA Supreme Court Rules directed the sheriff to levy the amount of costs allowed on taxation 'together with interest thereon at the rate of £10 per centum per annum from the [blank] day of [blank]'. As with Form 1 in Appendix F of Schedule 1 to the 1875 English Act, there was then a reference to a footnote which stated:

The date of the certificate of taxation. The writ must be so moulded as to follow the substance of the judgment or order. (original emphasis)

50 On 1 January 1889, the 1881 WA Supreme Court Rules (and some other orders and rules which it is unnecessary to specify) were replaced by the Rules of the Supreme Court 1888 (WA) (the 1888 WA Supreme Court Rules).

51 Order XL r 14 of the 1888 WA Supreme Court Rules was identical to O 42 r 14 of the 1883 English Rules. That is, O XL r 14 provided, relevantly, that:

The Forms in Appendix H shall be used, with such variations as circumstances may require.

52 Order XL r 16 of the 1888 WA Supreme Court Rules was almost identical to O XXXVIII r 14 of the 1881 WA Supreme Court Rules. The only material difference was that in O XL r 16 the words 'or order' were added after the word 'judgment' throughout the rule.

53 Form 1 in Appendix H of the 1888 WA Supreme Court Rules, like Form 1 in Appendix H of the 1883 English Rules, was the form for a writ of fieri facias where the party issuing the writ elected to execute by one writ for both judgment debt and costs. The Forms 1 were relevantly identical. Also, both Forms 1 were relevantly identical to the Forms 1 in Schedule I to the 1881 WA Supreme Court Rules and Appendix F of Schedule 1 to the 1875 English Act, except for the footnote. The footnote in the Forms 1 of the 1888 WA Supreme Court Rules and the 1883 English Rules was different from the footnote in the corresponding forms in the 1881 WA Supreme Court Rules and the 1875 English Act.

54 The footnote to Form 1 in Appendix H of the 1888 WA Supreme Court Rules, like the footnote to Form 1 in Appendix H of the 1883 English Rules, stated:

Day of the judgment or order, or day on which money directed to be paid, or day from which interest is directed by the order to run, as the case may be.

55 Form 2 in Appendix H of the 1888 WA Supreme Court Rules, like Form 2 in Appendix H of the 1883 English Rules, was the form for a writ of fieri facias relating to an order for costs only. Both Forms 2 gave the sheriff the same direction in relation to interest as Form 1, and left blank the day from which interest was to run. Both Forms 2 did not contain a footnote.

56 On 1 May 1909, the 1888 WA Supreme Court Rules (and some other orders and rules which it is unnecessary to specify) were replaced by the Rules of the Supreme Court 1909 (WA) (the 1909 WA Supreme Court Rules).

57 Order XL r 13 of the 1909 WA Supreme Court Rules was identical to O XL r 14 of the 1888 WA Supreme Court Rules.

58 Order XL r 15 of the 1909 WA Supreme Court Rules was identical to O XL r 16 of the 1888 WA Supreme Court Rules (except for the rate of interest specified).

59 Form 1 in Appendix H of the 1909 WA Supreme Court Rules, like Form 1 in Appendix H of each of the 1888 WA Supreme Court Rules and the 1883 English Rules, was the form for a writ of fieri facias where the party issuing the writ elected to execute by one writ for both judgment debt and costs. Form 1 in Appendix H of the 1909 WA Supreme Court Rules (including the footnote) was relevantly identical to the corresponding forms in the 1888 WA Supreme Court Rules and the 1883 English Rules. In particular, the footnote was identical.

60 Similarly, Form 2 in Appendix H of the 1909 WA Supreme Court Rules, like Form 2 in Appendix H of each of the 1888 WA Supreme Court Rules and the 1883 English Rules, was the form for a writ of fieri facias relating to an order for costs only. Form 2 in Appendix H of the 1909 WA Supreme Court Rules was relevantly identical to the corresponding forms in the 1888 WA Supreme Court Rules and the 1883 English Rules.

61 On 1 February 1967, O LXV r 58 and other rules were added to the 1909 WA Supreme Court Rules. Order LXV r 58 provided:

The costs allowed by the Taxing Officer on any interim or final allocatur shall be deemed to be a judgment of the Court, and shall be recoverable accordingly.

62 On 14 February 1972, the 1909 WA Supreme Court Rules (and some other orders and rules which it is unnecessary to specify) were replaced by the 1971 WA Supreme Court Rules.

63 At all material times before 1 May 2005 (when s 8 of the CJE Act came into operation), O 1 r 6(1) of the 1971 WA Supreme Court Rules provided, relevantly, that the forms in the Second Schedule shall be used where applicable with such variations as the circumstances of the particular case require.

64 At all material times before 1 May 2005 (when s 8 of the CJE Act came into operation), O 47 r 5 of the 1971 WA Supreme Court Rules provided:

A writ of execution shall be in such of the Forms Nos 45 to 52 in the Second Schedule as is appropriate in the particular case.

65 At all material times before 1 May 2005 (when s 8 of the CJE Act came into operation), the form of the writ of fieri facias, in Form No 45, and the form of the writ of fieri facias 'on order for costs', in Form No 46, were relevantly identical to the corresponding writs of execution introduced by the 1965 English amendments.

66 Form No 45 in the Second Schedule of the 1971 WA Supreme Court Rules, like Form 53 in Appendix A of the English Rules at all material times after the 1965 amendments, was the form of a writ of fieri facias where the party issuing the writ elected to execute by one writ for both judgment and costs. The footnote to Form 1 in Appendix H of the 1883 WA Supreme Court Rules and to Form 1 in Appendix H of the 1909 WA Supreme Court Rules, was omitted from Form No 45 in the Second Schedule of the 1971 WA Supreme Court Rules. As Lord Ackner observed in Hunt, the identical footnote to Form 1 in Appendix H of the 1883 English Rules was omitted in 1965 (409).

67 Form No 46 in the Second Schedule of the 1971 WA Supreme Court Rules was not materially different from Form 2 in Appendix H of the 1881 WA Supreme Court Rules and Form 2 in Appendix H of the 1909 WA Supreme Court Rules.

68 At all material times before 1 May 2005 (when s 8 of the CJE Act came into operation), O 66 r 57 of the 1971 WA Supreme Court Rules was relevantly identical to O LXV r 58 of the 1909 WA Supreme Court Rules (which was introduced on 1 February 1967). See [61] above. Order 66 r 57 continues to subsist.

69 In State Planning Commission v Della Vedova (1992) 7 WAR 81, the plaintiffs claimed declaratory relief and orders in respect of two awards of the Compensation Court and in respect of a writ of fieri facias issued pursuant to those awards. The declaratory relief sought included a declaration that interest did not accrue, pursuant to s 142 of the Supreme Court Act 1935 or otherwise, in respect of costs payable by the plaintiffs to the defendants under the awards, until the costs were taxed. The awards were made and filed in the Supreme Court registry pursuant to s 71(1) of the Public Works Act 1902 (WA) and the order as to costs was made pursuant to s 68(1) of that Act.

70 Walsh J held that s 142(1) of the Supreme Court Act 1935 and O 66 r 57 of the 1971 WA Supreme Court Rules did not preclude interest from running on the costs payable under the awards until the costs became the subject of an interim or final certificate issued under O 66 r 57 (83).

71 His Honour concluded that s 68 and s 71 of the Public Works Act 1902 read with s 142(1) of the Supreme Court Act 1935, 'and in combination with the specific order of the Compensation Court that "upon taxation such costs as taxed shall be included in and form part of this award" inevitably lead to the conclusion that interest on taxed costs runs from the date upon which the awards were filed in the registry of this Court and not from the date of the taxation of such costs' (84). His Honour held that interest therefore ran from the date upon which the awards were filed in the Supreme Court registry.

72 In any event, Walsh J was of the view that 'having regard to the provisions of s 142 of the Supreme Court Act and the forms of the writ of fieri facias which have been relevantly without a note providing that interest is to run from "the date of certificate of taxation", that in Western Australia interest in the Supreme Court runs from the date of judgment' (84). His Honour said that any doubt as to the position in Western Australia had been resolved by the decision of the House of Lords in Hunt, 'which re-affirmed that the incipitur rule prevails' (86).

73 In my opinion, the view expressed by Walsh J to the effect that interest on costs payable pursuant to a judgment ran from the date of the judgment, and not from the date on which the amount of the costs was fixed by taxation, was correct.

74 By s 142(1), as in force between 31 August 1996 (when the amendment made by the Supreme Court Amendment Act 1996 came into operation) and 1 May 2005 (when s 8 of the CJE Act came into operation), every 'judgment debt' carried interest at the applicable published rate 'from the date of the judgment until the judgment is satisfied'.

75 An order by the Supreme Court for the payment by one party to another of costs to be taxed was a 'judgment debt' within s 142(1). An order in those terms was treated in the same manner as a judgment for damages to be assessed. When the amount of the costs to be paid was ascertained, by the taxation of a bill of costs, that amount was treated as if it had been specified in the order for the payment of costs to be taxed. No further order was necessary.

76 The terms of s 142(1), as in force between 31 August 1996 and 1 May 2005, were not materially different, for present purposes, from the terms of s 142(1), as in force between 1 May 1936 (when the Supreme Court Act 1935 commenced) and 31 August 1996 or the terms of s 5 of the Remedies of Creditors against the Property of Debtors Act 1842.

77 The reasoning and decision of Field J in Pyman as to the effect of the 1883 English Rules, as approved by Lindley LJ in Boswell and the House of Lords in Hunt, were applicable to the corresponding provisions of the 1888 WA Supreme Court Rules and the 1909 WA Supreme Court Rules. The relevant provisions of the 1883 English Rules were not materially different, for present purposes, from the corresponding provisions of the 1888 WA Supreme Court Rules and the 1909 WA Supreme Court Rules. By parity of reasoning with the line of English decisions, the incipitur rule prevailed in Western Australia. Accordingly, the relevant provisions of the 1888 WA Supreme Court Rules and the 1909 WA Supreme Court Rules reflected s 5 of the Remedies of Creditors against the Property of Debtors Act 1842 and s 142(1) of the Supreme Court Act 1935. That is, interest on costs payable pursuant to a judgment ran from the date of the judgment or (before the amendment made to s 142(1) by the Supreme Court Amendment Act 1996 came into operation) the time of entering up the judgment, and not from the date on which the amount of the costs was fixed by taxation.

78 The reasoning and decision of the House of Lords in Hunt as to the effect of the introduction, by the Rules of the Supreme Court (Revision) 1965, of new writs of execution under the English Rules, were applicable to the corresponding provisions of the 1971 WA Supreme Court Rules. The relevant provisions of the English Rules, after the 1965 amendment, were not materially different, for present purposes, from the corresponding provisions of the 1971 WA Supreme Court Rules. By parity of reasoning with the House of Lords decision, the incipitur rule continued to prevail in Western Australia. Accordingly, the relevant provisions of the 1971 WA Supreme Court Rules continued to reflect s 142(1) of the Supreme Court Act 1935. That is, interest on costs payable pursuant to a judgment ran from the date of the judgment or (before the amendment made to s 142(1) by the Supreme Court Amendment Act 1996 came into operation) from the time of entering up the judgment, and not from the date on which the amount of the costs was fixed by taxation.

79 The position in Western Australia which I have summarised was not affected by the addition, on 1 February 1967, of O LXV r 58 to the 1909 WA Supreme Court Rules or the reproduction of that rule as O 66 r 57 in the 1971 WA Supreme Court Rules.

80 The relevant rule stated that the costs allowed by the Taxing Officer on any interim or final allocatur 'shall be deemed to be a judgment of the Court, and shall be recoverable accordingly'. The English Rules did not, at any material time, contain a corresponding provision.

81 Order LXV r 58 of the 1909 WA Supreme Court Rules and O 66 r 57 of the 1971 WA Supreme Court Rules applied (and, in the case of O 66 r 57, continues to apply) both to the taxation of costs on a party and party basis pursuant to a judgment or order of the Supreme Court and, also, to the taxation of costs on a solicitor and own client basis pursuant to the Legal Practitioners Act 1893 (WA) and the Legal Practice Act 2003 (WA) (and, currently, the Legal Profession Act 2008 (WA)). See, for example, O 66 r 11(2), r 16 and r 57 read with pt VI of the Legal Practitioners Act. By O 66 r 57 read with s 70 of the Legal Practitioners Act, the costs certified by the Taxing Officer on the taxation of a bill of costs between a solicitor and his or her client were deemed to be a judgment of the Supreme Court for the payment of the amount mentioned in the certificate. A bill of costs as between a solicitor and his or her client would not, ordinarily, have been taxed pursuant to a judgment or order of the court. Section 142(1) of the Supreme Court Act 1935 applied to the deemed judgment.

82 The scope and content of s 142(1) of the Supreme Court Act 1935, as I have explained it, was not qualified or displaced by O LXV r 58 or O 66 r 57. It is trite that a statutory provision prevails over an inconsistent provision in rules of court or other delegated legislation. So, nothing in O LXV r 58 or O 66 r 57 affected the operation of s 142(1) of the Supreme Court Act 1935, namely that interest on costs payable pursuant to a judgment ran from the date of the judgment or (before the amendment made to s 142(1) by the Supreme Court Amendment Act 1996 came into operation) the time of entering up the judgment, and not from the date on which the amount of the costs was fixed by taxation.

83 The CJE Act was part of a legislative scheme enacted in response to recommendations of the Law Reform Commission of Western Australia. The recommendations were embodied in two reports of the Commission in relation to the enforcement of civil judgments. The first, released in December 1995, was a report on 'Enforcement of Judgments of Local Courts', Project No 16 pt II. The second, released in June 2001, was a report on 'Writs and Warrants of Execution', Project No 67.

84 In the Explanatory Memorandum to the Civil Judgments Enforcement Bill 2003 (WA) which, upon enactment, became the CJE Act, it was said:

[T]he current system of enforcing judgments in the civil courts is seen to be inefficient and confusing to users, as legislatively there are separate Acts and rules governing the procedures in the superior courts and the lower courts. Not only are there inconsistencies between the rules, there are remedies available in one jurisdiction and not the other. Other provisions, whilst parallel, are not identical and remain open to varying interpretations. Some remedies are obsolete and the garnishee provisions in both jurisdictions are antiquated and ineffective (1).

85 By s 5(a) of the CJE Act, the Act applies to and in respect of any 'judgment' given by the Supreme Court in the exercise of its civil jurisdiction.

(1) The writs, warrants and orders that, immediately before the commencement of this Act, could be issued or made at common law or in equity or under a written law -

(a) to enforce or execute a judgment of a court; or

(b) in aid of a writ, warrant or order to enforce or execute a judgment of a court,

(2) The rules at common law or in equity applicable to or in relation to a writ, warrant or order that is abolished by subsection (1) and that is substantially similar to an order that may be made under this Act, apply to or in relation to the order that may be made under this Act so far as they are consistent with this Act.

87 By s 3, in the Act, unless the contrary intention appears:

enforcement costs, of a judgment, means -

(a) any fees, expenses, or other amounts, that are paid, ordered to be paid, or payable, under this Act or another written law in connection with enforcing the judgment; and

(b) any costs of taking, or in relation to, any proceedings under this Act to enforce the judgment that are ordered by a court to be paid by the person against whom the judgment is given;

...

judgment means -

(a) a monetary judgment; or

(b) a judgment or an order of a court that requires or has the effect of requiring a person -

(i) to give possession of any property to another person; or

(ii) to do an act, to not do an act, or to cease doing an act;

judgment creditor means a person who is entitled to the benefit of a monetary judgment, including a person to whom the benefit of a monetary judgment has passed (by assignment or any other way);

judgment debt means the unpaid amount of any of the following -

(a) a judgment sum;

(b) interest on the judgment sum;

(c) enforcement costs of the judgment;

judgment debtor means any person against whom a monetary judgment has been given or may be enforced;

judgment sum means the amount of money ordered to be paid under a monetary judgment, whether or not the money is or includes costs or pre-judgment interest;

...

monetary judgment means a judgment or an order of a court that requires or has the effect of requiring a person to pay money, whether or not the judgment or order contains any other requirements.

88 Part 2 is headed 'Interest on judgment sums' and comprises s 8, which provides:

(1) Interest is to be paid on the unpaid amount of a judgment sum from the date of the judgment until the date on which the judgment sum is paid -

(a) at the rate prescribed by the regulations; or

(b) at the rate set by the court in the judgment or by an order made after the judgment is given.

(a) a suspension order has been made; or

(b) a time for payment order or an instalment order has been made,

unless the court that made such an order orders otherwise.

(3) The judgment creditor may waive the payment of the whole or a part of the interest referred to in subsection (1).

(4) A judgment creditor who waives interest under subsection (3) must advise the court of the fact when applying for an enforcement order under Part 4.

(5) Subsection (1) does not apply to -

(a) a judgment that is registered under section 105(1) of the Service and Execution of Process Act 1992 of the Commonwealth; or

(b) a judgment sum on which interest is payable under another written law.

The proper construction of s 8 of the CJE Act

89 The critical provision of s 8 of the CJE Act, for present purposes, is s 8(1).

90 By s 8(1), interest is to be paid on 'the unpaid amount of a judgment sum from the date of the judgment until the date on which the judgment sum is paid' at the rate specified in s 8(1)(a) or s 8(1)(b), as applicable.

91 The term 'judgment sum' is defined in s 3 to mean 'the amount of money ordered to be paid under a monetary judgment, whether or not the money is or includes costs or pre-judgment interest'.

92 The term 'monetary judgment' is defined in s 3 to mean 'a judgment or an order of a court that requires or has the effect of requiring a person to pay money, whether or not the judgment or order contains any other requirements'.

93 In the present case, order 2 made by Edelman J on 25 June 2013 was a 'monetary judgment', as defined in s 3, in that it was an order of a court that required the present respondent to pay money, namely 'costs ... to be taxed'.

94 The money which order 2 required the present respondent to pay, namely 'costs ... to be taxed', was an 'amount of money ordered to be paid under a monetary judgment', within the definition of 'judgment sum' in s 3, in that:

(a) the definition of 'judgment sum' states in effect that an 'amount of money ordered to be paid under a monetary judgment' includes an amount of money that is or includes costs; and

(b) when order 2 was made, the money which the order required the present respondent to pay had the character of an 'amount of money' ordered 'to be paid', within the definition of 'judgment sum', even though the actual amount 'to be paid' had not then been ascertained and would not become ascertained until the Taxing Officer taxed the applicants' bill of costs and issued a certificate of taxation.

95 Further, the money which order 2 required the present respondent to pay, namely 'costs ... to be taxed', was an 'unpaid amount' of an 'amount of money ordered to be paid under a monetary judgment', within s 8(1) and the definition of 'judgment sum' in s 3, as at the date on which Edelman J made the order. The relevant 'unpaid amount' was the amount of the 'costs ... to be taxed'. That amount was unpaid at the time the order was made, even though the actual amount payable had not then been ascertained and would not become ascertained until the Taxing Officer taxed the applicants' bill of costs and issued a certificate of taxation. See the observations of Kelly J, in relation to 'debitum in praesenti, solvendum in futuro', in Tarlinton (289). See also the comments of Lord Ackner, in relation to the analogous treatment of a judgment for damages to be assessed, in Hunt (416).

96 In the present case, none of the exceptions in s 8(2) and s 8(5) to the rule in s 8(1) applies. Also, the applicants have not waived under s 8(3) the payment of the whole or any part of the interest referred to in s 8(1). Neither s 8(1) nor any other provision of the CJE Act (apart from s 8(2)) confers a discretion on the court to depart from the rule in s 8(1). However, by s 8(1)(b), the court has a discretion as to the rate of interest payable on the unpaid amount of a judgment sum.

97 Accordingly, interest is payable, pursuant to s 8(1), on the 'unpaid amount' of the 'costs ... to be taxed' from the date on which Edelman J made order 2 until the date on which the 'costs ... to be taxed' are paid. The relevant 'unpaid amount' is the actual amount ascertained upon the Taxing Officer taxing the applicants' bill of costs and issuing a certificate of taxation. The interest began to run on the date on which order 2 was made (namely 25 June 2013) and not on the date on which the actual amount was ascertained (namely 7 January 2015).

98 In Hamdan v Widodo [No 2] [2010] WASC 6 (S), Johnson J decided that, under s 8 of the CJE Act, interest on costs to be taxed ran from the date of the judgment or order for the payment of the taxed costs and not from the date on which the actual amount of the costs was ascertained upon taxation. In Lampropoulos v Kolnik [2010] WASC 193 (S), Simmonds J followed Hamdan on this point [50].

99 In Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 (S), this court considered the orders that should be made consequent upon the resolution of the substantive appeal between the parties. The primary judge had ordered that the parties bear their own costs of the proceedings at first instance. The respondent was substantially successful in the appeal. The orders sought by the respondent included an order that the appellant pay its costs of the proceedings at first instance to be taxed and, also, orders that interest be payable on those costs and that the interest run from the date on which the primary judge made his orders.

100 This court (McLure P, Buss & Newnes JJA) held, relevantly, that the appellant should pay to the respondent 60% of the respondent's taxed costs of the proceedings at first instance, but that the orders sought by the

respondent for the payment of backdated interest on the costs to be taxed should not be made. This court said:

The obligation to pay the costs arises once they have been taxed (or agreed). We see no justification for interest to run from the date of the judgment [11].

101 The decision in Birla Nifty is not an obstacle to the opinions I have expressed in these reasons as to the proper construction and application of s 8 of the CJE Act. First, the issues in Birla Nifty in relation to the payment of the respondent's costs of the proceedings at first instance to be taxed, and the payment of interest on those taxed costs, focussed in effect upon whether an order for the payment of the costs (and, consequently, an order for the payment of interest on those costs) should be backdated to the date on which the primary judge made his orders. Secondly, the proper construction and application of s 8 of the CJE Act was not put in issue by either of the parties to the appeal in that case.

102 I would make a declaration that, on the proper construction of s 8 of the CJE Act, interest on the applicants' taxed costs of the respondent's counterclaim against the applicants in CIV 1925 of 2011 is to be calculated from 25 June 2013, being the date on which Edelman J made the order as to costs.