Sciacca v Langshaw Valuations Pty Ltd

JUDGMENT - EX TEMPORE 1HER HONOUR: These are proceedings for professional negligence arising out of a loan made by the plaintiffs as private lenders. The borrowers, who are alleged to be the rogues in the transaction, are not parties to the proceedings. The loan not having been repaid, it transpired that the security ostensibly held for the loan, being some shares and a property owned by the borrowers, was of inadequate value to satisfy the borrowers' obligations to the plaintiffs. The plaintiffs now sue a number of professionals arising out of those events, including two mortgage brokers. 2The issues raised by the present applications concern the third defendant, Vero Insurance Limited, which is sued as the professional indemnity insurer of one of the mortgage brokers, Integrity Mortgage Professionals Pty Ltd (IMP). IMP having been deregistered in 2009, the claim against Vero is brought under s 601AG of the Corporations Act 2001 (Cth). 3The plaintiffs allege that "at all material times" there was an insurance contract between Vero and IMP which covered IMP's alleged liability to the plaintiffs in negligence (further amended statement of claim filed 14 June 2012 at paragraphs 38 and following). Vero filed a defence on 9 August 2012 in which it denies those contentions. In those circumstances, a critical issue raised on the pleadings is the existence of a relevant contract of insurance. 4The plaintiffs initially sought informal production of documents relating to that issue and ultimately, on 23 April of this year, served a subpoena on Vero seeking production of such documents. Vero responded by asserting that part of the subpoena was embarrassing and that, in any event, it had no documents to produce. 5On 27 April 2012, the plaintiffs filed a notice of motion seeking formal compliance with the subpoena. That motion was determined on 6 July 2012, when a Deputy-Registrar of the Court ordered that a proper officer of Vero attend to be examined in respect of Vero's response to the subpoena. The Deputy-Registrar awarded the plaintiffs part but not all of their costs of the application. 6There are now two notices of motion before the Court arising from that decision. The first in time is the plaintiffs' notice of motion filed 7 August 2012 seeking review of the costs order under rule 49.19 of the Uniform Civil Procedure Rules 2005. 7The second is Vero's notice of motion filed on 27 August 2012 seeking review of the substantive order made by the Deputy-Registrar requiring a proper officer to attend for examination. 8Vero's application was not filed within the time prescribed under rule 49.20 and, accordingly, requires an extension of time (order 2 sought in the motion). For reasons which will emerge, I heard all three applications together. This judgment determines those applications. 9The circumstances in which the applications are brought are as follows. Vero was first joined in the proceedings by the service of an amended statement of claim on 1 August 2011. In response to the receipt of that pleading, enquiries were made as to the existence of a relevant policy, which I assume was pleaded in the same terms as appear in the further amended statement of claim to which I have already referred. 10Vero served evidence in opposition to the plaintiffs' application for formal compliance with the subpoena. In an affidavit affirmed by Mr Pieper on 21 May 2012, a claims advisor employed by Vero and a duly qualified legal practitioner, Vero asserted that IMP was insured by Vero as part of the PLAN Australia Insurance Scheme for mortgage originators and mortgage brokers. Mr Pieper stated: The scheme was underwritten pursuant to the terms of a binder agreement with Aon Risk Services Australia Limited ("Aon"). Aon, at all material times, acted as Vero's agent. In circumstances where Aonm or any other broker, acts as Vero's agent, all relevant policy documentation is kept in the possession, custody and control of Aon. This was the case with the PLAN Australia scheme. 11Mr Pieper's affidavit annexed a policy schedule issued to "Integrity Mortgage Professionals Pty Limited as trustee for the Integrity Mortgage Professionals Trust trading as Integrity Mortgage Professionals". The schedule noted insurance cover for the period 13 August 2003 to 30 November 2004. 12It may be noted in that context that Integrity Mortgage Professionals Pty Limited is the entity named in the statement of claim as having been insured by Vero in the claim under section 601AG of the Corporations Act. 13The only other policy document evidently uncovered by the parties is a certificate of currency also annexed to Mr Pieper's affidavit but, in fact, received by him in correspondence from the plaintiffs. That certificate is issued in the name IMP Finance Pty Limited (formerly Integrity Mortgage Professionals Pty Limited as trustee for The Integrity Mortgage Professionals Trust). 14The certificate of currency purports to confirm cover for the period from 31 May 2007 to 31 May 2008. It is signed by Aon on behalf of Vero and, as I understand the position, was obtained by the plaintiffs on subpoena from Aon. 15The material served in respect of the plaintiffs' notice of motion seeking formal compliance with the subpoena revealed that Mr Pieper, as I have already said, is a legal practitioner and indeed one of considerable experience. Separately, Vero relied upon an affidavit affirmed by Ms Veronica Chapman, also a practitioner of considerable experience. Ms Chapman set out the steps she had taken to obtain documents in response to the subpoena. 16For reasons which are unclear (given that the proceedings were commenced in the Common Law Division), the plaintiffs' notice of motion to have the subpoena formally complied with was referred to Bergin CJ in Eq sitting as duty judge in that Division. The explanation may be that there are related proceedings in the Equity Division and perhaps the Registrar who referred the matter to her Honour was confused by some reference to those proceedings, but that is a matter of speculation on my part. 17In any event, when the application was referred to her Honour, there was an exchange during the course of which Ms Chapman, then appearing for Vero, explained from the bar table the enquiries that she had been endeavouring to pursue in order to respond to the subpoena. 18Ultimately, Bergin CJ in Eq determined that she would not make any order other than to adjourn the notice of motion to be heard by a Registrar on a later date. I mention that step in the proceedings because the transcript of the proceedings before her Honour was before the Deputy-Registrar who ultimately determined the application and also before me on the present review and was relied upon in different ways by both parties. 19It is significant to note that, before Bergin CJ in Eq, there was the following exchange between her Honour and Ms Chapman: Her Honour: Let me just cut through this, the subpoena itself is so broad as to be embarrassing. The complaints made by Vero are, in fact, justified. Ms Chapman, what is it that you intend to do in respect of further searches? CHAPMAN: I have already instituted them. The sole remaining matter which I intend to undertake is to make contact with an officer I believe, hopefully Mr Patrick Sellers of Aon, who I am told is now in Melbourne, and to enquire as to whether his investigations have uncovered anything further, your Honour. 20Her Honour then determined to stand the notice of motion over to the subpoenas list on a date in the future, noting a number of matters. 21In the judgment given immediately following that exchange, her Honour recorded that Ms Chapman had given an undertaking to the Court. With great respect to her Honour, that is not borne out by the transcript. It may have been the product of some separate exchange not completely recorded or simply a misunderstanding deriving from the ambiguity of the words said by Ms Chapman who, on my reading of the exchange, was merely referring to the fact that she intended to undertake a further enquiry, and not that she was giving an undertaking to the Court. 22In any event her Honour stated: I'm not minded to make any formal orders today in this duty list. It seems to me that Ms Chapman is in fact pursuing Aon to obtain further documents and, as I understand her undertaking to the Court, she will be pursuing Vero further. 23In fact, the transcript suggests that the only further investigation Ms Chapman proposed to undertake was to make a final enquiry of someone from Aon. I record those matters simply to put in context some of the remarks made by the Registrar in due course in her decision. 24When the matter came before the Registrar, her Honour had the following material before her]: (a)The affidavits of Mr Pieper and Ms Chapman to which I have referred; (b)the original affidavit of Mr Keay (solicitor for the plaintiffs) sworn in support of the motion seeking formal compliance with the subpoena (to which the certificate of currency was annexed); (c)the transcript of the hearing before Bergin CJ in Eq and her Honour's judgment; (d)a letter from Ms Chapman sent following the hearing before Bergin CJ in Eq and a further affidavit of Mr Keay sworn 5 July 2012. 25The letter from Ms Chapman was dated 7 June 2012 and stated: We refer to the return of subpoena in this matter, listed before the Registrar tomorrow morning. We also refer to the writer's affidavit, affirmed on 22 May 2012, and to the affidavit of Mr Pieper of Vero, affirmed 21 May 2012. We have confirmed our instructions. Vero has no documents to produce falling within the schedule to the subpoena issued to Vero and filed on 13 April 2012. That is, it has no documents in its possession, custody or control for the period 1 July 2004 to date, falling within the categories of documents listed. 26It may be noted that the letter pre-dates Mr Keay's last affidavit sworn 5 July 2012. In that affidavit Mr Keay set out the product of his considerable further efforts to solve the mystery of the complete absence of any documentation held by Vero in the face of the certificate of currency to which I have referred. 27In particular, Mr Keay was able from his own Internet searches to obtain a number of insurance policy documents which would appear to fall within the terms of the subpoena and which had not been produced by Vero. The response put by Vero may be that, to the extent that those documents were caught by the subpoena, it was too broad. However, notwithstanding the remarks made by Bergin CJ in Eq set out above, Vero has not at any stage sought to have the subpoena set aside, so the short answer to any such contention would be that, so long as the subpoena stood, those documents ought to have been produced and it is not clear why they were not. 28Separately, Mr Keay annexed a number of documents obtained on subpoena from Aon, importantly including a series of documents headed, 'Insurer Coverage Summary'. The significance of those documents is that they appear to be letters sent from Aon to Vero, as a result of which one would expect their counterparts to have been possessed by Vero and produced by it in response to the subpoena. 29In a series of documents ranging in date from August 2003 to May 2008 Aon, in those summaries, appears to confirm the existence of insurance cover issued to, "Integrity Mortgage Professionals Pty Limited as trustee for the Integrity Mortgage Professionals Trust trading as Integrity [in one instance recorded as 'Untegrity'] Mortgage Professionals". 30It may be noted that Mr Pieper's affidavit sworn in opposition to the motion for formal compliance with the subpoena heard by the Registrar stated that, on the strength of his "subsequent enquiries" (the precise date of which is unclear from the affidavit) and his own investigations, he did not believe that Vero issued any policy to "Integrity Mortgage" after the lapse of a policy issued for the period August 2003 to November 2004. As already noted, however, that affidavit was sworn on 21 May 2012, before Mr Keay's last affidavit. 31The Deputy-Registrar heard the motion on 6 July 2012 and published her decision on 11 July 2012. As submitted by Mr Lloyd on behalf of Vero, her Honour's reasons appear to boil down to two considerations. 32First, her Honour noted that annexure B to Mr Pieper's affidavit, which is the policy schedule from 2003 to which I have referred, had not been produced to the Court in accordance with the subpoena. Mr Lloyd submitted that this finding was not correct, in that the annexure of the document to an affidavit amounted to production to the Court. That is perhaps a matter of debate, but in my view formal production ought to have required that it be produced in response to the call made by Mr Stitt on an earlier occasion rather than as an annexure to an affidavit. 33Secondly, the Registrar stated: There is no evidence supplied as to any searches being conducted by Vero after receipt of the subpoena, nor have I been supplied with any evidence of correspondence that informally sought production(s) of the documents contained in the schedule to the subpoena were sought from 2011, when the searches were completed (sic). 34That conclusion is also challenged and it will be necessary to return to that issue. 35The Registrar noted the decision of Palmer J in Pyoja Pty Limited v 284 Bronte Road Developments [2006] NSWSC 831; (2006) 67 NSWLR 1, where his Honour said at [15]: A party who has procured the issue by the Court of a valid subpoena to produce documents is entitled to be satisfied that the person served with the subpoena has properly answered it. The Court must also be satisfied that its order for production of documents, constituted by the subpoena, has been properly observed. Ascertaining whether or not a person has made proper answer to a subpoena to produce is part of the Court's function in administering its own process generally and, in particular, in administering UCPR 33.6(4). Such power as the law provides to ascertain whether proper answer has been made to a subpoena to produce is part of the Court's ancillary, or incidental, jurisdiction: See Glass (1970)"Seminars on Evidence" (1970) p.10 per Moffatt J, speaking extra judicially. It is also part of the Court's inherent jurisdiction. Accordingly, the Registrar has both the inherent and the incidental jurisdiction of a Judge of the Court for the purpose of ascertaining whether a subpoena to produce has been properly answered. 36The Registrar concluded that the plaintiffs should be entitled to test compliance with the subpoena, noting the limitations upon the examination that would be permitted in accordance with that conclusion as discussed by Beaumont J in Trade Practice Commission v Arnotts Limited (No 2) (1989) 21 FCR 306. 37Her Honour ordered that a proper officer of Vero attend before the Court at 11am on a date to be agreed by the parties before a Registrar for the purpose of being examined in respect of the subpoena. 38There then followed an exchange on the question of costs. The Registrar began to give her ruling on that issue and the following further exchange occurred: REGISTRAR: I note that the plaintiffs are also seeking the costs of the motion. While costs ordinarily follow the event they are normally used in a punitive sense. I am of the view that Vero, on the evidence filed, has attempted to facilitate the plaintiff's search for documents prior to being issued with the subpoena to produce. STITT: Can I - I'm very loathe to cut off anybody giving a judgment, Registrar, but just before you do, can I just be heard very briefly on one point? REGISTRAR: Yes. STITT: I only rise and I apologise for rising but I only rise because I note that you were stating in your judgment that costs are punitive. I would just submit that costs are actually, we would submit, compensatory, not punitive. We're not interested in punishing Vero. What we would ask is that we have been put through a process of having to file a motion to obtain some sort of compliance and clearly the Court agrees that compliance is required, and so to that end we would ask that a judgment be given that costs be not so much reserved or in the cause but irrespective of how this matter ultimately is resolved we would submit that the plaintiffs were successful on finally obtaining the orders of the motion they sought. To that end, regardless of how the rest of the trial results, that costs ought to be awarded to the plaintiff for this motion. They won't in any event be payable until the end of the matter but I wouldn't want these costs, which have been fairly incurred and which are in my submission compensatory and not punitive, to fall under a general order for costs in the cause because they are a separate matter, regardless of how the trial ultimately ends up. So I apologise for rising but I would ask the Court to consider that just before it makes its order. REGISTRAR: Where I was heading is I wanted to make a notation that I was of the view that Vero hasn't acted unreasonably in respect of the subpoena, however as an application has been made it is the normal sense that costs should follow the event and in that sense I will order costs in favour of the plaintiff for 6 and 11 July only. 39As I have already noted, Vero requires an extension of time in order to obtain a review of the decision. For the reasons that follow, I would grant the extension of time but dismiss the application. 40As submitted by Mr Lloyd on behalf of Vero, the matters relevant to the issue whether Vero should have an extension of time are considered in the decision of the High Court in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516. That is a procedural question which is informed, but not determined, by the merits of the application: at [4] per Brennan CJ and McHugh J. 41Relevant considerations are the length of the delay; the reasons for the delay; whether the applicant has a fairly arguable case and the extent of any prejudice the respondent may suffer. 42The delay in the present case of some twenty days is explained in the affidavit of Suzanne Propoggia sworn on 29 October 2012. A substantial aspect of the explanation for the delay is that Ms Propoggia, who had conduct of the matter, was during the relevant period substantially occupied in other litigation. 43Mr Stitt, who appeared for the plaintiffs, submitted that it was not adequate by way of explanation for a junior solicitor to "fall on her sword" when both Mr Pieper and Ms Chapman were themselves experienced practitioners who ought to have been astute to the 28-day period within which an application for review of a Registrar's decision must be filed. 44In my view, however, Ms Propoggia's affidavit sets out an adequate explanation for what was occurring during that time and does not reveal any real delinquency on her part such as ought to be visited upon her client. Separately, the length of the delay is not great and, as submitted by Mr Lloyd, the extent of any prejudice the plaintiffs may suffer is alleviated by the fact that the application was able to be heard at the same time as the plaintiffs' own application for review of that aspect of the Deputy-Registrar's decision pertaining to costs. 45The final consideration is whether the applicant has a fairly arguable case. Although I have determined that the application must be dismissed, had the issue of an extension of time been determined separately I consider that I would have been satisfied that the matters sought to be put were fairly arguable and, accordingly, warranted an extension of time. 46I turn to explain my reasons, however, for dismissing the application. The principles to be applied upon review of a Registrar's decision under rule 49.19 were considered by the Court of Appeal in Tomko v Palasty (No 2) [2007] NSWCA 369. Mr Lloyd acknowledged that the decision in the present case relates to a matter of practice or procedure and, accordingly, that the principles stated by Hodgson JA in that case, which enjoyed the concurrence of Ipp JA (at [17]), apply. In that case Hodgson JA said (at [8] to [9]): 8. In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interest of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interest of justice require this. To that extent, the review may be considered a de novo hearing. 47Bearing in mind those principles, I approach the matter on the basis that, whilst it may be accepted that a review of a decision of a Registrar is a de novo hearing in the sense explained by his Honour, in a matter of the present kind the Court will be reluctant to interfere with the decision unless an error of law or a House v The King error is shown. 48Vero submitted that there were two errors entailed in the Deputy-Registrar's decision. Mr Lloyd submitted, first, that the Deputy-Registrar did not apply the correct test. That submission was based on the decision of Brereton J in Hexiva Pty Limited v Lederer [2006] NSWSC 561, which Mr Lloyd noted her Honour had not been taken to in the hearing below. 49As acknowledged in Mr Lloyd's written submissions, the decision of Palmer J in Pyoja relied upon by the Registrar does address the question of the considerations relevant to a decision whether to require a person to attend to be examined about compliance with a subpoena. However, Mr Lloyd submitted that the decision in Pyoja is, for the most part, concerned with issues that do not arise on the plaintiffs' motion in the present case. 50In Hexiva, Brereton J stated at [18]: As a matter of context, they observe that in this case the plaintiffs are not legally represented. Without the slightest reflection adverse to Dr Wechsler, I think there is some force in that, because it simply means that the court cannot have that professional assurance which it receives from a lawyer that there has been proper performance and proper understanding of the obligations which compulsory processes such as subpoenas impose. That, the first defendants say, is reinforced by the circumstance that it is clear enough that the plaintiffs themselves, as was exposed in the proceedings on 23 March this year, misunderstood the extent of their obligation to search for and produce documents under a notice to produce, and I accept that that is so. 51To summarise Mr Lloyd's submission, as I understood it, the effect of it is that, since in the present case the subpoenaed party had the benefit of legal advice from competent, experienced legal practitioners (which I note is not doubted), the Court does have the professional assurance that there has been proper fulfilment and a proper understanding of the obligations which compulsory processes such as subpoenas impose, thus taking this matter outside those remarks. 52In my view, however, a careful consideration of the judgment in Hexiva does not derogate from the proposition relied upon by the Registrar (drawn from the decision of Palmer J in Pyoja) that, leaving aside the quality of the legal advice given to the subpoenaed party, a party should in a proper case be entitled to take further steps in order to be satisfied that the subpoena has been properly answered. The provision of careful and competent legal advice does not guarantee that this has occurred. 53Whilst the Court may, in the ordinary course, be disinclined too readily to doubt proper compliance with a subpoena where legal advice has been given and understood, there will always be cases in which, notwithstanding the most careful attention to the terms of the subpoena and the content of a party's obligations, the circumstances of the case produce a situation where the Court and the party that has issued the subpoena cannot have that confidence. 54In my view the Registrar correctly approached the matter on that basis, as revealed by her remarks particularly at pages 160 to 161 of the exhibit to Ms Propoggia's affidavit. For those reasons, I do not think the Deputy-Registrar applied the wrong test, based on my reading of Hexiva and Pyoja. 55The second alleged error is that the Registrar misdirected herself as to whether there was evidence of any searches having been conducted by Vero after receipt of the subpoena. In my view, read in the context of the material I have summarised above, it was open to the Registrar to articulate a conclusion in those terms. 56A careful analysis of the course and exchange of evidence and correspondence between the parties reveals that Vero has, from an early point in this saga, approached the question of the availability of documents on the premise that the practice set out in Mr Pieper's affidavit (that, in circumstances where a broker acts as Vero's agent, the relevant policy documentation is kept by the broker) was adhered to and, on that premise, the unlikelihood of any documents being held by Vero. I may be wrong about that, but the evidence is not conclusive and, for present purposes, I am concerned with the question whether it was open to the Registrar to reach the conclusion she did. In my view it plainly was. The potential for confusion as to precisely what it was that Ms Chapman had undertaken or indicated that she would do at the hearing before Bergin CJ in Eq, and the terms of Ms Chapman's later letter, confirm my conclusion. 57In rejecting that ground I mean no criticism whatsoever of either Mr Pieper or Ms Chapman, who have evidently approached the question of compliance with the subpoena with propriety and a measure of sensible co-operation. Nonetheless, the documents I have seen persuade me that there is a basis for the plaintiffs to remain in a state of apprehension as to whether all of the searches that ought to be conducted have been conducted within Vero, without resting on the premise that all relevant documents would have been held by Aon. 58For those reasons, in my view, Vero's application must be dismissed. 59I turn to the plaintiffs' application for review of the costs order made by the Deputy-Registrar. Mr Stitt submitted that the Deputy-Registrar's discretion as to costs miscarried because she failed to approach the question of costs on the important premise that costs follow the event unless some disentitling conduct is demonstrated. 60It is necessary to consider that premise. As submitted by Mr Lloyd, it is plain from section 98 of the Civil Procedure Act that costs are discretionary. As also acknowledged by Mr Lloyd, the discretion must be exercised judicially and in accordance with established principles. However, it remains a matter for the Court that has heard an application to consider what might be determined to be disentitling conduct in the circumstances. 61It is a matter of concern that the Deputy-Registrar expressed herself in the way that she did. As the exchange set out above reveals, she began by stating that, while costs ordinarily follow the event, they are "normally used in a punitive sense". It was common ground at the hearing before me that that is an incorrect statement of the law and, to that extent, it may be accepted that the Deputy-Registrar commenced on an incorrect premise. 62What is difficult to determine is what happened after that. Mr Stitt politely corrected the error, following which the Deputy-Registrar stated, "Where I was heading is, I wanted to make a notation that I was of the view that Vero hasn't acted unreasonably in respect of the subpoena". That statement is apt to suggest that her honour corrected the language of her ruling to some extent, in the face of what had been submitted by Mr Stitt, but did not alter the result. 63Mr Lloyd submitted, with some force, that it would have been open to the Deputy-Registrar to reach a conclusion based on the conduct of the parties at different times and to find, effectively as a mirror finding to the statement that Vero had not acted unreasonably, that the plaintiffs had. It is difficult to reconcile that submission, however, with the glib statement made by the Deputy-Registrar in response to the careful submissions of Mr Stitt. 64I confess I have not found this issue easy to determine, since her Honour was evidently stating her reasons as to costs ex tempore. It is well established that the Court should be slow to parse and analyse ex tempore reasons for legal error. With some hesitation, I have concluded that the Deputy-Registrar does appear to have continued on the path of determining costs by reference to a desire not to punish Vero, rather than by reference to the principle that costs ordinarily follow the event. 65For that reason, I am satisfied that the plaintiffs have established error of law in the costs determination and, this being a review of that decision, it becomes necessary for me to determine what would be the appropriate costs order. 66I have concluded, having carefully reviewed the complete history of the exchanges between the parties and the course of the present application, that there is no reason to depart from the ordinary rule that the plaintiffs should have their costs of successfully obtaining the order sought in their motion. 67Mr Lloyd, in his very careful submissions, put a contrary proposition that it is not obvious, in the context of the present case, that success on the application for formal compliance with the subpoena is "the event" for the purpose of that rule. He noted that, in the authorities referred to, costs of such an application have been reserved. 68In my view, however, having regard to the course of the plaintiffs' motion seeking formal compliance with the subpoena, which has proved a difficult path for the plaintiffs, it is appropriate for them to have all their costs of the notice of motion filed 27 April 2012. ADDENDUM: JUDGMENT AS TO COSTS 69HER HONOUR: I have earlier this morning published my reasons for dismissing the third defendant's application for review of the decision of the Deputy-Registrar and for allowing the plaintiffs' application for review of the costs awarded by the Deputy-Registrar on that occasion, in each instance indicating that I proposed to award the costs of the hearing before me to the plaintiffs. 70Mr Stitt, on behalf of the plaintiffs, has submitted that those costs, and the plaintiffs' costs ordered in lieu of the order made at first instance, should be payable on an indemnity basis. For the reasons set out at length in my earlier reasons and further during the exchange that has just occurred between myself and Mr Stitt, I am not persuaded that it is appropriate to award costs on a special basis. 71Separately, Mr Stitt submitted that the plaintiffs' costs should be ordered to be assessable forthwith. That is a departure from the usual position. Circumstances which permit a contrary order to be made include circumstances which, in my view, arise in this case, namely that the dispute relating to the subpoena is distinct from the substantive issues in the proceedings and, separately, that the time for payment of those costs might otherwise be long postponed due to the status of the proceedings, which appear to be stagnating abiding the determination of proceedings in the Equity Division and certainly do not appear to be progressing with the expedition that might otherwise be appropriate. 72For those reasons I am satisfied that the plaintiffs' costs should be awarded to be assessed or assessable forthwith. 73The orders are: (1)That the order of Senior Deputy Registrar Kenna made on 11 July 2012 with respect to the costs of the plaintiffs' notice of motion filed on 13 April 2012 be discharged and, in lieu thereof, that the third defendant pay the plaintiffs' costs of that motion together with the plaintiffs' costs of the motion file don 7 August 2012 seeking review of the Senior Deputy Registrar's decision. (2)That the time for filing the third defendant's notice of motion filed in Court on 27 August 2012 be extended to that date. (3)That the notice of motion be dismissed. (4)That the third defendant pay the plaintiffs' costs of that motion. (5)That the costs referred to in orders 1 and 4 be assessable forthwith.