Interest on costs
50The notice of motion sought an order for "Interest", which must mean interest on costs.
51Section 101 of the Civil Procedure Act relevantly provides:
"101 Interest after judgment
(cf Act No 52 1970, section 95; Act No 9 1973, section 85; Act No 11 1970, section 39)
(1) Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid.
...
(4) The court may order that interest is to be paid on any amount payable under an order for the payment of costs.
(5) Interest under subsection (4) is to be calculated, at the prescribed rate or at such other rate as the court may order, as from:
(a) the date or dates on which the costs concerned were paid, or
(b) such later date as the court may order."
52Section 101 does not specify any time by which an application for an order under s 101(4) must be made.
53In Timms v Commonwealth Bank of Australia (No. 3) [2004] NSWCA 25, Beazley JA (as her Honour then was) dealt with a claim by successful appellants for interest on costs. On 23 September 2002, the Court of Appeal had ordered the respondents to the appeal to pay the appellants' costs of the appeal. The costs were assessed. On 19 November 2003 the costs assessor issued his certificate. The costs certificate was filed in the Court on 11 December 2003. Pursuant to s 208J(3) of the Legal Profession Act 1987 the amount of costs assessed became a judgment of the Court. By a notice of motion filed on or about 20 January 2004 the appellants sought an order for interest on the assessed costs as from the dates on which those costs had been paid. The claim was brought pursuant to s 95(4) of the Supreme Court Act 1970. That section provided:
"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."
54Beazley JA held that the effect of filing the costs certificate was that the appellants had obtained a final judgment in the amount of their assessed costs and that judgment conclusively determined the issues raised in the proceedings to which it related (at [9]). Her Honour said (at [9]-[12]):
"[9] As already indicated, the effect of filing the Costs Certificate was that the claimants obtained a final judgment in the amount of the assessed costs. A final judgment, regularly entered, conclusively determines the issues raised in the proceedings to which it relates. It cannot ordinarily be set aside except in accordance with powers or rights otherwise conferred by statute or rule of court or in other well recognised circumstances such as fraud: Halsbury's Laws of Australia: para 325-9125.
[10] The principle is well settled. In Bailey v Marinoff (1971) 125 CLR 529 Barwick CJ said at 530:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.
See also Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457; DJL v Central Authority (2000) 201 CLR 226 at 240-245. The principle is also subject to the operation of the slip rule: Shaddock (L) & Associates Pty Ltd [No 2] (1982) 151 CLR 590 at 594-5. (The slip rule is itself encompassed in the Supreme Court Rules, Pt 20 r 10.
[11] A claim for interest under s 95(4) is part of the claim that a party has in relation to costs. It is not a separate or independent cause of action. If no application for interest is made and determined before entry of judgment for costs, the claim for interest merges with the judgment for costs. That is what has occurred in this case. The claimants obtained a final judgment for their assessed costs when they filed the Costs Certificate on 11 December 2003.
[12] Part 40 r 9 governs the setting aside or varying of a judgment or orders of the Court. The circumstances in which a judgment that has been entered may be set aside are limited and none apply here. There was no application made under the slip rule nor do the circumstances, on the evidence before me, indicate that the rule applies. The claimants' claim under s 95(4) appears to have been made without an appreciation of the effect of the judgment entered on 11 December 2003. In those circumstances, the only course available to the Court is to dismiss the motion with costs."
55The appellants' claim for interest on costs failed because the application for interest on costs was brought after the costs certificate had been filed as a judgment.
56In Roads and Traffic Authority v Cremona (No. 3) [2005] NSWCA 13 costs orders were made in the Court of Appeal on 7 December 2001. By a notice of motion filed on 2 September 2004, the successful respondent sought an order for interest on costs. The application was successful. Sheller JA said (at [20]):
"The respondent has not yet filed a costs certificate in the Court pursuant to s 208J(3) of the Legal Profession Act 1987 and so the respondent is not prevented for [sic] making the claim for interest; compare Timms v Commonwealth of Australia & Ors (No. 4) per Beazley JA at [11]."
57In Simmons v Colly Cotton Marketing Pty Ltd [2007] NSWSC 1092, costs orders were made in favour of the applicants on 2 August 2005 and the orders were entered on 18 August 2005. An appeal by the respondents was unsuccessful. In 2007 the applicants sought an order for interest on the costs awarded to them on 2 August 2005. Bergin J (as her Honour then was) rejected a submission that the Court was functus officio and accepted a submission for the applicants that s 101(4) of the Civil Procedure Act contemplates that an order for interest may be made after entry of orders for costs (at [12]-[13]). Her Honour decided that interest on costs should be awarded.
58In Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No. 2) [2010] NSWSC 118, Harrison J ordered the plaintiffs to pay the defendants' costs on 27 November 2008. Those orders were entered on 15 December 2008. On 11 August 2009 the Court of Appeal dismissed an appeal from his Honour's orders. After the dismissal of the appeal the defendants sought an order pursuant to s 101(4) of the Civil Procedure Act for interest on costs and disbursements. No application for assessment of costs had been filed and consequently there had been no certificate filed creating a judgment for a specified amount of costs. Harrison J followed Timms v Commonwealth Bank of Australia (No. 3) in holding that a claim for interest on costs was not a separate or independent cause of action, but because no final judgment had been obtained for the amount of the assessed costs, he was not functus officio and had power to make the order sought (at [17]-[20]).
59In Lucantonio v Kleinert & Ors (Costs) [2011] NSWSC 1642, Brereton J applied Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No. 2) and Simmons v Colly Cotton Marketing Pty Ltd in saying that:
"[26] It is clear that an interest order under Civil Procedure Act s 101(4) can be made after the costs order has been made, so long as it is made before there is a judgment for costs effected by registration of the certificate of assessment [see Seiwa Australia Pty Ltd v Seeto Financial Circumstances Pty Ltd (No 2) [2010] NSWSC 118, and Simmons v Poly Cotton Marketing Pty Ltd [2007] NSWSC 1092]. Accordingly, there is no question of the Court being functus officio at this point in respect of considering an application for interest on costs."
60In Drummond & Rosen Pty Ltd v Easey & Ors [2009] NSWCA 74 the appellant succeeded in having judgments entered against it in the District Court set aside and the Court of Appeal substituted judgment for it with costs. The Court ordered that any application for an additional or varied order as to costs or for restitution of moneys paid under the judgments that had been reversed was to be made by notice of motion filed within 14 days. The successful appellant filed a notice of motion within that period and the Court of Appeal by majority made an order for the payment of interest on costs of the appeal and the proceedings at first instance (Drummond & Rosen Pty Ltd v Easey & Ors (No. 2) [2009] NSWCA 331). Handley AJA dissented on the question of whether an order should be made for the payment of interest on costs. In the course of his reasons, Handley AJA explained that costs assessors did not have the power to allow interest on the costs as assessed (at [37]-[48]) and said:
"[49] It follows therefore that the power in s 101(4) must be exercised by the court and under UCPR Pt 36 r 16 it must be exercised in the substantive judgment, or on a motion filed within 14 days thereafter. In my opinion the power should not be exercised without evidence of the amounts paid and the dates of payment."
61Macfarlan and Tobias JJA took a different view as to whether the power under s 101(4) could be exercised without evidence of the amounts of costs paid and the dates of payment but otherwise agreed with Handley AJA's reasons. Handley AJA did not elaborate upon the view expressed in the first of the sentences quoted from [49] above. His Honour did not refer to any of the contrary authorities. That sentence was not part of the ratio of the Court of Appeal's decision.
62In Zepinic v Chateau Constructions (Aust) Limited (Court of Appeal, 10 May 2010, unreported), Tobias JA dismissed a summons seeking leave to appeal and ordered the applicants to pay the costs of the summons for leave to appeal and the costs of a notice of motion seeking summary dismissal. His Honour would have been exercising the power of a single Judge of Appeal under s 46(1)(b) of the Supreme Court Act 1970 to dismiss a proceeding for want of prosecution or other cause specified in the rules. The order was entered on 10 May 2010. By notice of motion filed on 17 June 2013 the respondent to the application sought an order pursuant to s 101(4) of the Civil Procedure Act that the applicant pay interest on costs and disbursements allowed on assessment from the date of payment. The delay in making the application appears to have been largely due to delays caused by the party liable to pay costs. There had been other proceedings in the Supreme Court between the same parties in respect of which costs orders had been made in favour of the respondent and it had obtained an order for interest on those costs from the Supreme Court notwithstanding that the application was not filed within 14 days of the making of the costs order (Chateau Constructions (Aust) Limited v Zepinic [2013] NSWSC 909). In that case Robb J followed Timms v Commonwealth Bank of Australia (No. 3) at [8]).
63In Zepinic v Chateau Constructions (Aust) Limited (No. 2) [2013] NSWCA 227, McColl JA, sitting as a single Judge of Appeal in the exercise of the power conferred by s 46(1)(d) of the Supreme Court Act refused the application for an order for interest on the costs ordered by Tobias JA because the application was not made within 14 days of the entry of the costs order. Her Honour declined to follow Timms v Commonwealth Bank of Australia. Her Honour said (at [75]-[87]):
"[75] I agree with her Honour that interest on costs should be sought before entry of judgment for costs however I disagree, with respect, with her Honour's view about what the critical date for that application was.
[76] The entry of judgment on a filed certificate of a costs assessor or a review panel is a ministerial act, which makes the certificate enforceable as a judgment but otherwise does not alter its legal effect and does not make it a judgment of the court: Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 (Frumar) (at [40]) per Handley AJA (Macfarlan JA agreeing); see also Doyle v Hall Chadwick [2007] NSWCA 159 (at [49], [52]) per Hodgson JA (Mason P and Campbell JA agreeing). As Giles JA said in Frumar (at [8]) (in this respect agreeing with Handley AJA, albeit dissenting in the result), [s]o-called judgments under s 208J(3) of the 1987 [LP] Act, which is relevantly replicated in s 208KF(2), ... take their force from the statute and are not judgments of the court.
[77] Handley AJA also doubted (Frumar at [42]) the 'validity of that part of [UCPR 36.10] which authorises the entry of judgment ... in view of s 208KF(2)(b) of the Legal Profession Act 1987 (and its successor s 368(5) of the 2004 Act) dealing with the effect of filing "with no further action"', but, on the assumption the rule was valid, reiterated that 'the entry of judgment on a filed certificate is a ministerial act [which] makes the certificate enforceable as a judgment but otherwise does not alter its legal effect.'
[78] The consequence is that the effective costs judgment is that of the court, not that embodied on the costs assessor's certificate, even when filed: Field, Doyle, Frumar; see also Wilmot v Buckley (1984) 2 FCR 540 (at 543, 544) per Beaumont J; Van Reesema v Australian Growth Resources Corporation Pty Ltd (1987) 75 ALR 311 (at 318) per Morling, Sepnder and Gummow JJ). That conclusion reflects the practice at law, of entering up the amount of the taxed costs in the incipitur.
[79] The consequence of that analysis is that the only costs judgment that is an order of the court is that given by Tobias JA which took effect on 10 May 2010: UCPR 36.4(1).
[80] As to Mr Ilkovski's submissions concerning Drummond (No 2), in my view, properly understood, Macfarlan and Tobias JJA departed from Handley AJA's reasoning only insofar as his Honour expressed the view that the s 101(4) power should not be exercised without evidence of the amounts paid and the dates of payment.
[81] It matters not that his Honour's view concerning when a s 101(4) application should be made as obiter, the application in that case having been made within the time permitted by UCPR 36.16. His Honour's view was clearly correct. As the foregoing analysis has made apparent, the power to award interest is found only in statute, now, relevantly, s 101(4) of the CP Act. Section 101(4) (more strictly, its predecessor, s 95(4)) was introduced to give the court a discretion as to the date or dates from which an interest on costs order would run. ...
[82] However the interest order is made in respect of 'an order for the payment for costs': s 101(4). Just as a costs order must be sought at the time of judgment, or within any time limited by UCPR 36.16, so, too, in my view must an interest on costs order. That conclusion which accords Handley AJA's view in Drummond (No 2) and, subject to what I have said, Beazley JA's view in Timms, is consistent with the principle of finality of judgments: see D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 (at [34]) per Gleeson CJ, Gummow, Hayne and Heydon JJ.
[83] I have, however, given anxious consideration to the effect of UCPR 36.4(2), albeit that Mr Ilkovski did not seek to invoke it. As will be apparent, that rule substantially replicates SCR Pt 40, r 3(4) - a rule it is tolerably apparent was intended to give express effect to Master Allen's views in Field. On its face it applies only to an order for costs to be assessed which is not how Tobias JA's costs order was expressed.
[84] Campbell JA explained the effect of UCPR 36.4(2) in Lahoud v Lahoud [2011] NSWSC 994 (at [38]-[39]) as follows. A costs order is a binding determination of rights from the time it is made, even though it cannot result in a judgment for a specific sum of money, nor be enforced, until the costs assessment is complete. Its meaning is also to be ascertained as at the date it is made. His Honour's analysis is consistent with that in Doyle and Frumar as to the effect of a cost assessor's certificate, even when filed. It also emphasises that the critical date for seeking an interest on costs order is when the costs order itself is made.
[85] Mr Ilkovski's submission that the interest order is an additional order, rather than one within the meaning of UCPR 36.16, is simply semantic. An application for an order not made in the court's original orders is an application for a variation of a judgment or orders of the court, albeit that it would add an order, rather than amend an existing order. Although it is not determinative, that was how the court described the orders made in Drummond (No 2); see also Spedding v Nobles (No 2) [2007] NSWCA 87 (at [18]). The fact that the order was described as additional in Leda Pty Ltd v Weerden (No 2) emphasises the semantic nature of the argument.
[86] Finally, I appreciate that there are first instance decisions of this court in which the view has been taken that an interest order under s 101(4) can be made after the costs order has been made, so long as it is made before there is a judgment for costs effected by registration of the certificate of assessment: Lucantonio v Kleinert (Costs) [2011] NSWSC 1642 (at [26]) per Brereton J. Those decisions do not, with respect, appear to have recognised the effect of such registration as explained in Doyle and Frumar.
[87] The effect of Doyle and Frumar in my view, is that in order to determine whether an application for an interest on costs order is competent, the court is required to have regard to the date of the costs order. The fact that the cost assessors certificate has not been filed is not relevant."
64Neither the decision of Beazley JA in Timms v Commonwealth Bank of Australia (No. 4), nor that of Sheller JA in Roads and Traffic Authority v Cremona (No. 3), nor that of McColl JA in Zepinic v Chateau Constructions (Aust) Limited (No. 2), nor the first sentence of para [49] of the judgment of Handley AJA in Drummond & Rosen Pty Ltd v Easey & Ors (No. 2) is binding on me. They, of course, carry great weight, and to the extent they are not inconsistent with other appellate authority, they should be followed unless I considered them to be clearly wrong. But as a matter of precedent, for the reasons which follow, I am not bound to follow them.
65The first sentence of para [49] of the judgment of Handley AJA in Drummond & Rosen Pty Ltd v Easey & Ors (No. 2) was obiter. It could not be characterised as carefully considered obiter dicta as no reasons were given for the conclusion stated and none of the contrary authorities was referred to.
66The decision of McColl JA in Zepinic v Chateau Constructions (Aust) Limited (No. 2) was not given when her Honour was sitting as a member of the Court of Appeal in the framework of the appellate structure for appeals from judgments from the Supreme Court or lower courts (Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654; Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 218; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504). Neither Tobias JA who dismissed the application for leave to appeal for want of prosecution or other cause specified in the rules with a consequential costs order, nor McColl JA who dealt with the application for interest on the costs as a matter incidental to the orders of Tobias JA, was determining the merits of any appeal or application for leave to appeal from a first instance judgment.
67The position may be different with respect to the judgment of Beazley JA in Timms v Commonwealth Bank of Australia (No. 4). In that case the Court of Appeal had allowed an appeal from Young CJ in Eq and ordered the respondents to pay the appellants' costs of the appeal. Beazley JA dealt with the appellants' notice of motion for interest on assessed costs. Although her Honour did not identify the jurisdiction she had as a single Judge of Appeal to deal with that application, her Honour must have been exercising a power conferred by s 46 of the Supreme Court Act. That section relevantly provides:
"46 Powers of Judge of Appeal
(1) A Judge of Appeal may exercise the powers of the Court of Appeal:
(a) to give any judgment by consent or make any order by consent,
(b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,
(c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or
(d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).
(2) A Judge of Appeal may exercise the powers of the Court of Appeal:
(a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or
(b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.
(3) Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal.
...
(5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section."
68In Roads and Traffic Authority v Cremona (No.3), Sheller JA said that he was exercising the power of the Court of Appeal in ordering interest on costs pursuant to s 46(2)(b) of the Supreme Court Act, i.e. the power to make an order not involving the determination or decision on the appeal. That decision was not given within the appellate framework for the determination of appeals.
69In Timms v Commonwealth Bank (No. 3), Beazley JA was presumably exercising the same power. If so, her Honour's decision also stands outside the appellate structure and is not binding. Beazley JA did not identify the power she was exercising as a single Judge of Appeal. However, it is possible, having regard to her Honour's finding at [11] of her reasons, that her Honour considered she was exercising the powers of the Court of Appeal to deal with costs and may have considered that the power to deal with costs under s 46(1)(d) was available, even if those costs were not incidental to the matters in s 46(1)(a), (b) or (c). If so, and Beazley JA was exercising the Court of Appeal's power to deal with costs following the successful appeal, then it is at least arguable that her Honour's decision is binding, subject to later appellate authority.
70It was an essential part of Beazley JA's reasoning (at [11]) that the claim for interest on costs was part of the claim that the appellant had in relation to costs, was not a separate or independent cause of action, and merged with the judgment for costs.
71The principle of res judicata or cause of action estoppel is that "the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence" (Blair v Curran (1939) 62 CLR 464 at 532), or to put it another way, "where an action has been brought and judgment has been entered in that action no other proceedings can thereafter be maintained on the same cause of action" (Jackson v Goldsmith (1950) 81 CLR 446 at 466; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507) (emphasis added).
72There is no inherent jurisdiction to order interest on costs (Nykredit Mortgage Bank plc v Edward Erdman Group Limited (No. 2) [1997] 1 WLR 1627 at 1635-1637). In McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190, Rogers CJ Comm D held that the power conferred by s 76 of the Supreme Court Act to order costs extended to making an order for interest on costs. In Woods v Woods [2001] NSWSC 1108, Hamilton J followed that decision in preference to the contrary decision of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (2000) 103 FCR 559 at 563-565. In Flower & Hart v White Industries (Qld) Pty Ltd [2001] FCA 370; (2001) 109 FCR 280 the Full Court of the Federal Court upheld the conclusion of Goldberg J that s 43 of the Federal Court of Australia Act 1976, which was in materially the same terms as s 76 of the Supreme Court Act, did not confer jurisdiction to award interest on costs. The Full Court also held that s 51A(1) of the Federal Court of Australia Act, which is in similar terms to s 100 of the Civil Procedure Act and confers power to include interest in a judgment on a cause for action in proceedings for the recovery of money, did not confer power to order interest on costs.
73Beazley JA did not refer to Flower & Hart v White Industries (Qld) Pty Ltd and evidently was not referred to it. That decision was approved by the Court of Appeal in Spedding v Nobles; Spedding v McNally (No. 2) [2007] NSWCA 87. It is now established that the power to order interest on costs is derived wholly from statute and is conferred by s 101(4) and not by s 98. The claim for interest on costs cannot merge in the general order for costs because it was not "the very right or cause of action claimed or put in suit", and was not the "same cause of action" as was determined by the final costs orders.
74Accordingly, even if the decision of Beazley JA in Timms was given within the appellate structure that would make it binding on me, its reasoning is inconsistent with other appellate authority, including the later decision of the Court of Appeal in Spedding v Nobles; Spedding v McNally (No. 2).
75In Zepinic v Chateau Constructions (Aust) Limited (No. 2) McColl JA appears to have approved of the judgment in Timms, except for the conclusion that it was on the entry of judgment on a filed certificate of a costs assessor or a review panel that was the relevant final order.
76In Zepinic McColl JA said that that conclusion was inconsistent with the decisions in Frumar v The Owners, Strata Plan 36957 [2010] NSWCA 172 and Doyle v Hall Chadwick [2007] NSWCA 159 that the filing of a certificate of a costs assessor or review panel was a ministerial act and not a judgment of the Court. Hence the relevant final order was the costs order, not the judgment obtained on filing the certificate of the costs assessment. McColl JA said that this conclusion was not affected by UCPR, r 36.4(2) because, for the reasons explained by Campbell JA in Lahoud v Lahoud [2011] NSWSC 994, the effect of that rule is only that an order directing the payment of costs is not enforceable by execution until the costs assessor's certificate is filed (at [38]). It is the making of the costs order by the Court that is the final determination of the parties' entitlement to costs. I consider that I should follow the reasoning of McColl JA in Zepinic that it is the final costs order of the court, and not the filing of the certificate of the costs assessor as a judgment, that is the relevant final order.
77In Zepinic McColl JA did not, with respect, analyse why the claim for interest on costs was barred because the costs order of Tobias JA was a final order, except to say that like an order for costs such an order must be sought at the time of judgment or within any time limited by UCPR, r 36.16 (at [82]). But why? Her Honour may have read UCPR, r 36.16(3) as if it provided that there is power to vary an order unless the order has determined a claim for relief, rather than that there is such a power except to the extent that a claim for relief is determined.
78At para [85] of Zepinic McColl JA said that the application was for a variation of the orders of the court, albeit by way of making an additional order. If that were so, r 36.16(3) would provide the requisite power to vary the costs order of Tobias JA unless the claim for interest on costs had been determined. As a matter of fact, the claim had not been determined. It had not been raised when Tobias JA made the costs order. It could only be said to have been determined if, as Beazley JA said in Timms, the claim for interest on costs had merged in the judgment for costs. For the reasons above, that was not the position.
79Nonetheless, I respectfully do not agree that if an order for interest on costs was made, such an order would vary the previous costs order. An order for interest on costs would vary the previous outcome, but not any previous order. Therefore the power to make such an additional order is not found in r 36.16.
80The orders of Tobias JA in Zepinic finally determined the proceedings. Likewise in this case the orders of the Court of Appeal finally determined the proceedings and left the 2008 costs orders undisturbed. In my view r 36.16(3) does not provide a power to make an order for interest on costs because such an order would not vary the costs orders made. No other power in r 36.16 is apposite. Prima facie, as the litigation is finally disposed of, it is at an end and no further application can be brought. But that is subject to contrary statutory provision.
81Section 98(3) of the Civil Procedure Act confers a power to make an order "as to costs" after the conclusion of the proceedings. If that power extends to the making of an order for interest on costs then the principles of finality of litigation are not offended because those principles are subject to contrary statutory provision.
82The Court of Appeal's decision in Roads and Traffic Authority v Palmer (No. 2) does not touch the present question.
83In my view, an order "as to costs" means more than "a costs order". Even though a separate statutory power is needed to make an order for interest on costs and even though, for that reason, a claim for interest on costs is not merged in a final order for costs, I consider that a claim for interest on costs is a claim "as to" costs within the meaning of s 98(3). The expression "as to" denotes a relationship between the order to be made and costs. It means "as it regards, so far as it concerns, with respect or reference to" (Oxford English Dictionary). An order for interest on costs has such a relationship.
84This construction of UCPR, r 36.16 and s 98(3) of the Civil Procedure Act is in accordance with the dictates of ss 56 and 57(2) of that Act. That can be illustrated by the facts in Roads and Traffic Authority v Cremona (No. 3) and Zepinic. In both cases the ground, or a substantial part of the ground, for seeking an order for interest on costs was the conduct of the judgment debtor after the costs order was made and the successful party had paid costs to her or its solicitor. In Zepinic it was claimed that the party liable to pay costs absented himself, and so delayed the costs assessment process, and then further delayed proceedings by appealing the assessment unsuccessfully to a review panel. In Cremona, the Roads and Traffic Authority failed to make any reasonable response to the successful plaintiff's attempt to negotiate a reasonable figure for costs and delayed the process of assessment. These are material considerations to the exercise of the discretion to award interest on costs. Unsurprisingly, the cases show that a party liable to pay costs can cause the process of assessment to be delayed, so that a judgment creditor, who may not have paid costs until after he or she has recovered a verdict, will be out of pocket until a certificate or assessment is filed.
85A construction of the Act and the Rules that requires a judgment creditor to seek an order for interest on costs when the costs order is made or within 14 days thereafter is likely to lead to unjust outcomes. At that time the successful party may not have paid costs. That is not a necessary bar to an order for interest on costs (Drummond & Rosen Pty Ltd v Easey & Ors (No. 2), but it may be a sufficient discretionary reason for refusing an order (Spedding v Nobles; Spedding v McNally (No. 2)). Events that occur well after the making of the costs order may well be highly relevant to whether an order for interest on costs should be made, as was the case in Cremona and was said to be the case in Zepinic.
86In Zepinic McColl JA did not address the question whether the construction of the Rules her Honour adopted was consistent with ss 56 and 57(2) of the Civil Procedure Act. Her Honour did not consider s 98(3) of that Act.
87For these reasons I respectfully consider that I should follow neither Timms nor Zepinic. I consider that s 98(3) confers power to make an order for interest on costs.