STAMBULICH & ORS -v- EKAMPER [2007] WASCA 71 (29 March 2007)

2 On 11 September 2001, orders to that effect were pronounced by the Full Court, comprising Malcolm CJ, Kennedy J and myself. The orders included an order that the respondent pay the appellants' costs of the action, of an account ordered by Acting Master Chapman and the costs of the appeal and cross appeal (TS 152).

3 The respondent applied subsequently to have the Full Court recall the orders made on 11 September 2001, which were then unperfected. The respondent's motion was heard on 25 June 2002.

4 On 8 August 2002, the Full Court dismissed the application and confirmed that the previous orders would stand: Stambulich v Ekamper [2002] WASCA 212, TS 188.

5 On 30 August 2002, the appellants' solicitors filed a document which was described as an order, and which gave effect to the decisions of the Full Court. Paragraphs 21 and 22 of the order were in the following terms:

"21. The Respondent pay the Appellants' costs of the Trial, the account before Acting Master Chapman and of the Appeal and Cross Appeal and of the Respondent's (Defendant's) Motion heard 25 June 2002.

1. All parties to have liberty to apply on 48 hours notice to the other parties to the Full Court."

6 Although the order was filed, it has never been extracted.

7 Following the decision of the Full Court, the outstanding claims were settled. On 28 April 2003, the appellants accepted an offer of $250,000 made by the respondent pursuant to O 24A of the Rules of the Supreme Court 1971 (WA).

8 Following acceptance of the respondent's offer, the appellants, by their solicitors, foreshadowed an application to the Full Court for a special costs order, on the basis of the amount of work involved in the litigation and its complexity.

9 The respondent's solicitors protested that it was then too late to ask for special costs orders, the Full Court having made final orders, including the usual form of orders for costs.

10 The appellants' solicitors remained of the view that it was appropriate to seek special costs orders. They therefore undertook the task of assembling the material which, they considered, should be put before the Full Court for this purpose.

11 In a letter dated 16 February 2004, the appellants' solicitors informed the respondent's solicitors that the relevant schedules would be available for review by Senior Counsel some two or three weeks later.

12 This optimism proved to be misplaced. In fact, the schedules were not completed until early 2006. They were exhibited to an affidavit sworn by the appellants' solicitor on 2 March 2006 in support of an application for a special costs order.

13 By then, the Acts Amendment (Court of Appeal) Act 2004 (WA) was in force. However, the appellants sought to bring their application for special costs orders before the General Division of this Court. The application was not filed because the appellants were informed by the Registry that this course was inappropriate.

14 Instead, on 15 August 2006, an application described as "Application in an appeal" was brought before me as the sole remaining member of the Full Court which had determined the appeal, Malcolm CJ and Kennedy J having both retired.

"1. The defendant pay the plaintiff's costs of the action to be taxed on an indemnity basis or alternatively that the costs be taxed without regard to items and limits of any relevant Supreme Court Scale of Costs.

(f) certificates for Senior Counsel in respect of (b), (c), (d) and (e).

1. The defendant pay the plaintiff's costs of this application to be taxed."

16 In the course of hearing the application, the question of my jurisdiction was raised by leading counsel for the respondent. Regrettably, the appellants had not been put on notice that the jurisdiction issue would be raised: the respondent's solicitors declined to confer with the appellants' solicitors, pursuant to O 59 r 9. In these circumstances, when the jurisdiction issue emerged, leading counsel for the appellants was unable to deal with that matter in any detail. (Counsel has now provided written submissions on the point.)

17 I therefore heard argument on the merits of the application, and proposed to form a view about the appropriate outcome and at the same time, decide whether I had jurisdiction to deal with the matter.

18 Having considered the matter further, I am firmly of the view that, as a single Judge of the Full Court, I do not have jurisdiction to deal with the question of costs. It is therefore inappropriate for me to express any opinion about the merits or otherwise of this application.

19 The jurisdictional question is resolved by reference to Pt 5 of the Acts Amendment (Court of Appeal) Act 2004 ("the Amendment Act") which contains transitional provisions as between the Full Court and the Court of Appeal.

(1) If on the commencement of this Act an appeal or an application for leave to appeal is pending before -

the appeal or application is to be taken to have been commenced or made and to be pending before the Court of Appeal.

(2) Despite subsection (1), if on the commencement of this Act an appeal or an application for leave to appeal is part heard by -

then the hearing and determination of the appeal or application may be completed by the Full Court or the Court of Criminal Appeal, as the case requires, as if this Act had not commenced.

21 It is clear from s 38(2) that the only basis on which the Full Court could remain seized of a matter following the creation of the Court of Appeal Division, was if an appeal or application for leave to appeal was part heard.

22 In my view, that is not the position here. That is because the appeal concluded with the pronouncement of the orders made on 8 August 2002. That is so, I think, even though no order has yet been extracted.

23 Although it might have been argued that the matter remained part heard until the respondent had accounted in accordance with the order made by the Full Court, that would no longer have been the case once the appellants accepted the respondent's offer of settlement, thereby concluding the proceedings.

24 Even if I am wrong in that view, and the question of costs remained outstanding, that was never a matter within the jurisdiction of a single judge of the Full Court. The appellants contend that s 16(2) and s 21(1) and (3) of the Supreme Court Act 1935 (WA) do give a single judge that power. However, those provisions are subject to contrary statutory provisions: and s 61(1) (as in force until 31 January 2005) provided:

In any cause or matter pending before the Full Court, any direction incidental thereto not involving the decision of the appeal may be given by a single Judge, and a single Judge may at any time during vacation make any interim order to prevent prejudice to the claims of any parties pending an appeal, if he thinks fit.

25 A decision about the costs of an appeal was never regarded as a "direction incidental thereto". Further, such a decision does involve "the decision of the appeal". This interpretation is consistent with the approach of Malcolm CJ in Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940685; 29 November 1994 and is reflected in the practice formerly adopted in the Full Court that if a decision of the Court was delivered by a single judge, that Judge would not deal with the question of costs.

26 Section 61 in the form set out above was repealed by the Amendment Act of 2004. However, s 37(1)(b) of the Interpretation Act 1984 (WA) would operate so that s 61 continued to apply to any matter in which the Full Court retained jurisdiction pursuant to s 38(2) of the Amendment Act.

27 In these circumstances, I consider that the appellants' application should now be made to the Court of Appeal.