[1971] HCA 49
Boateng v Dharamdas [2019] NSWCA 233
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165
[2018] HCA 12
Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462
[1977] HCA 7
Hancock v Arnold
Source
Original judgment source is linked above.
Catchwords
[1993] HCA 6
Bailey v Marinoff (1971) 125 CLR 529[1971] HCA 49
Boateng v Dharamdas [2019] NSWCA 233
Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165[2018] HCA 12
Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462[1977] HCA 7
Hancock v Arnold
Judgment (4 paragraphs)
[1]
The application for a certificate under the Suitors Fund Act 1951 (NSW)
Order 1(c) seeks an "additional order that the court grant Mr Hollingsworth an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW)". The respondent does not make any submissions as to this prayer for relief.
Section 6(1) of that Act provides that:
(1) If an appeal against the decision of a court:
(a) to the Supreme Court on a question of law or fact, …
…
succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.
Section 6(2A)(b) provides that the maximum amount payable from the Suitors' Fund for any one appeal is, relevantly, $10,000.
Under s 6(5) the grant or refusal of an indemnity certificate shall, subject to exceptions not presently relevant, be in the discretion of the court. That discretion is to be exercised by reference to the purpose of the Act which was said, in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, to be to "protect litigants who, for no fault of their own, would otherwise suffer the burden of costs by reason of what are found to be legal errors of subordinate courts": at 499 (Kirby P and Samuels JA).
In R v Hookham (No 2) (1993) 32 NSWLR 345 at 346 Priestley JA (with whom Wood and Sully JJ agreed) (a stated case in criminal jurisdiction) held that:
"The reasoning behind the Act must be to the general effect that the court system, in what has happened prior to the appeal being upheld, has made a mistake and that there will be at least some circumstances in which cost caused by the fault of the system should not be visited on the respondent.
In light of this, it is possible to see how discretion should be exercised in some obvious cases. In a case for example where the respondent had succeeded below only because the court below erroneously took a view of the law or the facts which the respondent had not put to that court, there could be no reason for withholding exercise of discretion in favour of granting the certificate. At the other end of the scale, if counsel persuaded the court below to act upon the basis of a decision which had been overruled, it could be said that it was not the system that had been the main cause of the mistake, but the respondent. Discretion would then be exercised against the respondent."
In Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 doubt was expressed by Samuels JA as to whether a certificate should be given under the Suitors' Fund Act where an appellant succeeded on a ground which arose only because of the manner in which the respondent's case was conducted below: at 381.
Recently, in Onslow v Cullen (No 2) [2022] NSWSC 1363, Adamson J held that the following principles applied to an application under s 6(1) of the Suitors' Fund Act:
"5 Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P and Samuels JA outlined the applicable principles that guide the interpretation of s 6. Their Honours identified the purpose of the statute as:
"the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from …"
6 It is necessary to address the grounds of appeal (each of which was made out) and the conduct of the owners' representatives in the Local Court to determine whether the owners (who are bound by the conduct of their legal representatives) played a role in the errors made by the Court below."
As is apparent from this authority, one factor of relevance to the exercise of discretion under s 6(1) of the Suitors' Fund Act is the extent to which the party seeking indemnity under the Act contributed to the court at first instance relevantly erring.
Mr Hollingsworth submits that an order under s 6(1) should be made in this case as he did not seek the orders made by the primary judge and that the relevant errors leading to the primary judge's orders were not matters which flowed from Mr Hollingsworth's contentions before the primary judge. However, in written submissions on behalf of Mr Hollingsworth before the primary judge it was submitted that the Court may direct that any examination ordered under UCPR, r 23.4 be recorded, or find that the request for such recording is not a failure to comply with a notice under UCPR, r 23.2. In these submissions it was also contended that:
"An expert who accepts a retainer to give evidence in a proceeding is expected to comply with the Schedule 7 Code of Conduct including fulfilling an overriding duty to assist the court impartially (cl 2) and to abide by any direction of the court (cl 5c). This may include a direction permitting or requiring the recording of an examination".
In these submissions it was also contended that medical practitioners have a duty under the Disability Discrimination Act, ss 5(1), 6(1), 24 not to discriminate against Mr Hollingsworth as an examinee by reason of his disability. This Court found that in having regard to those matters the primary judge erred.
Further, it was contended in the court below that the orders sought by the State, including the order that Mr Hollingsworth be directed to attend an examination without permitting him to record the examination, abrogated Mr Hollingsworth's "fundamental rights and freedoms in … an extraordinary way". This Court found, by contrast, that Mr Hollingsworth had no right to make a recording of his examination by a psychiatric expert instructed by the State.
Thus, it is apparent that submissions advanced on behalf of Mr Hollingsworth, whilst not seeking an order of the form made by the primary judge, contributed in a material way to the conclusion of the primary judge, in particular the primary judge's order pursuant to UCPR, Sch 7, cl 5(c) that any expert forensic psychiatrist appointed by the State permit Mr Hollingsworth to make a sound recording of the assessment. As this Court found, the judge relevantly erred in concluding that that provision conferred any power to make such a direction.
Further, Mr Hollingsworth, through his legal team, opposed the setting aside of the primary judge's orders and advanced detailed submissions in support of his Honour's reasoning.
Having regard to the matters set out above, this is not an appropriate case in which to exercise the discretion to make an order under s 6(1) of the Suitors' Fund Act. The submissions advanced by Mr Hollingsworth to the primary judge played a material role in the errors which this Court identified in his Honour's analysis. Echoing language used in Director of Public Prosecutions v Bignall [2015] NSWSC 870, Mr Hollingsworth was no "hostage to fortune": at [13] (Adamson J).
[2]
Further orders sought
Order 1(d) sought by Mr Hollingsworth asks that this Court make "an additional order" dealing with the costs of Mr Hollingsworth and his chosen medical expert attending an assessment by a psychiatrist instructed by the State, in compliance with Order 4(a) which this Court made on 4 July 2023. In the alternative, Mr Hollingsworth seeks an order from this Court declaring that UCPR, r 23.3 applies to "any notice given by the State pursuant to or giving effect to order 4(a)."
Mr Hollingsworth's application should be rejected. It is not a matter for this Court to seek to resolve case management issues, including as to the costs associated with the implementation of this Court's orders. That is matter which is quintessentially for the District Court.
In any event, as set out by the State in their submissions, the State accepts that it is required to pay the reasonable costs of Mr Hollingsworth and a medical practitioner of his choice attending the appointment with the psychiatrist. The controversy that is disclosed by the correspondence relied upon by Mr Hollingsworth is as to the reasonableness of the costs claimed by Mr Hollingsworth in this regard. That is a further, independent, reason why this Court would not make order 1(d) as sought.
By order 1(e) Mr Hollingsworth seeks an additional order remitting or referring questions arising out of the working out of this Court's Order 4(a), including the power to set aside or vary that order or to relieve Mr Hollingsworth from compliance with it, to the primary judge, or alternatively liberty to apply on seven days' notice to this Court. These too are matters to be determined by case management directions in the District Court, having regard to ongoing developments in the litigation. It is not for this Court to go beyond the matters raised on appeal and instead to seek to case manage Mr Hollingsworth's claim against the State which is being litigated in the District Court. Nor is it appropriate for this Court to make an order granting the primary judge power to set aside or vary our orders, or to relieve Mr Hollingsworth from any obligation to comply with our orders.
The inappropriateness of this Court engaging in case management of the District Court proceedings is all the more apparent having regard to the nature of the issues that Mr Hollingsworth has identified. Thus, for example, Mr Hollingsworth raises issues as to the date of the proposed examination, the costs of the proposed examination, the extent to which Mr Hollingsworth's choice of expert can be accommodated and on what terms. The resolution of these issues, if indeed they ultimately require resolution, are not matters with which this Court should now engage after it has delivered judgment and made orders. Contrary to Mr Hollingsworth's submission, difficulties in complying with the orders of this Court consistently with Mr Hollingsworth's proposed requirements do not make the controversy agitated on the appeal "hypothetical". It was readily apparent from the evidence before this Court that there was a real controversy between the parties to be resolved. That there are subsequent difficulties in implementing the orders of this Court does impact that position.
As is apparent from the evidence before this Court, it appears that issues as to the conditions for any assessment of Mr Hollingsworth by an expert psychiatrist instructed by the State may have resolved. But in any event, to the extent that difficulties have arisen or do arise, that would be a matter to be resolved in the District Court.
Insofar as Mr Hollingsworth submits that this Court's orders were made on the basis of a misapprehension of fact, that submission should be rejected. As was apparent, the position in this Court was that the State intended to seek out an available psychiatrist to examine Mr Hollingsworth, depending upon what orders this Court made. That is apparent from p 52 of the transcript. The correspondence annexed to Mr Mitchell's various affidavits, and the affidavits of Mr Merewether and Ms Gracie, make it clear that that is precisely what the State has done. Even if the State were ultimately unable to find a psychiatrist who would accommodate both this Court's orders and Mr Hollingsworth's preference as to which medical expert would attend the appointment and what steps that medical expert is permitted to take at, and after, that appointment, it does not follow that this Court proceeded under a misapprehension.
[3]
Costs of this motion
Mr Hollingsworth should pay the State's costs of this motion. There is no good reason why costs should not, as in the ordinary course, follow the event. We reject Mr Hollingsworth's contention that the time that it has taken to resolve issues arising as to the engagement of an expert psychiatrist militates in favour of the State paying Mr Hollingsworth's costs. Those matters should have been resolved in the District Court, not by seeking to revisit final orders on appeal. Whilst we have allowed the Second Application in part, the submissions and evidence on that application primarily addressed the application as it related to proposed order 1(a1), which we have refused. The other orders sought have also been refused.
Accordingly, the Court makes the following orders:
1. Dismiss the respondent's notice of motion filed on 7 September 2023.
2. Dismiss the respondent's notice of motion filed on 18 July 2023.
3. Order that the respondent pay the State's costs of the motions.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 November 2023
hority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
State of New South Wales v Hollingsworth [2023] NSWCA 152
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Category: Procedural rulings
Parties: State of New South Wales (Applicant)
Michael Hollingsworth (Respondent)
Representation: Counsel:
D A Lloyd SC / JC Chapman (Applicant)
V Heath (Respondent)
Solicitors:
McCabes (Applicant)
Mitchell Lawyers (Respondent)
File Number(s): 2023/105049
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2023] NSWDC 46
Date of Decision: 6 March 2023
Before: Judge Levy SC
File Number(s): 2021/14826
JUDGMENT
THE COURT: On 4 July 2023 this Court granted leave to appeal and allowed an appeal from orders of Judge Levy SC made on 6 March 2023: State of New South Wales v Hollingsworth [2023] NSWCA 152. The orders of this Court were:
"(1) Leave to appeal granted.
(2) Direct that within 7 days the State file a notice of appeal in the form of the draft amended notice of appeal filed on 9 June 2023.
(3) The appeal is allowed.
(4) Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that:
(a) under UCPR, r 23.4, Mr Hollingsworth is to submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means; and
(b) Mr Hollingsworth should pay the State's costs of and incidental to the motion filed 17 October 2022
(5) Mr Hollingsworth should pay the State's costs of the application for leave to appeal and the appeal."
Since these orders were made, Mr Hollingsworth has filed two applications seeking to vary those orders. The question before the Court is what, if any, orders this Court can and should make in response to those applications. Whilst Mr Hollingsworth seeks an oral hearing of these applications with a time estimate of three hours, that course is not in the interests of justice. Consistent with s 56 of the Civil Procedure Act 2005 (NSW) we must determine these applications in a way that seeks to facilitate the just, cheap, quick and cheap resolution of the issues raised. That aim strongly militates in favour of the applications before the Court being resolved promptly on the material before the Court, which includes six sets of written submissions and nine affidavits and comprises many hundreds of pages, all filed since judgment was delivered and orders made on 4 July 2023. The extent to which the resources of those acting for Mr Hollingsworth, the State of New South Wales ("the State") and necessarily also the Court, have been expended demonstrates clearly the dangers of ignoring the strictures which properly should attend such applications.
Further, Mr Hollingsworth submits that the "true facts" have only emerged after we made orders on 4 July 2023 and that the State does not intend and has never intended to have Mr Hollingsworth psychiatrically examined consistent with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") or this Court's reasons for decision. Those submissions raise serious matters which are wholly unsupported by the evidence before us. In our judgment they should never have been made. Rather, as is apparent from the evidence (described below), the State has been taking steps to seek to comply with our orders. Had the State not been able to do so, the appropriate course would have been to raise this with the District Court (as the State did when difficulties in complying consistently with Mr Hollingsworth's requirements arose in September 2023).
UCPR, r 36.16
Affirming the importance of the finality of litigation, in Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 Barwick CJ held:
"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…beyond recall by that court."
Menzies J held, at 531-532:
"However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend [to] the making of orders in litigation that has been brought regularly to an end."
This passage was cited with approval by Aickin J (with the approval of Barwick CJ and Stephen J) in Gamser v Nominal Defendant (1977) 136 CLR 145 at 153; [1977] HCA 7, who held:
"In this Court it was argued that the cases there relied upon did not cover the situation of fresh evidence and that fraud was in truth an example or category of fresh evidence, but the cases do not recognize such a principle and indeed are inconsistent with it."
These statements were made at a time when orders were entered on the application of a party and short minutes of the proposed orders were served on the other party in advance of them being entered by the Registrar. There was then an opportunity for the parties to address the form of the orders before they were entered. When the current system, whereby orders were entered by the Court in its electronic records immediately after judgment was delivered, it became necessary to provide an opportunity for the parties to seek to vary the orders before the general law principles of finality were engaged. This was done by introducing the statutory exception set out in UCPR, r 36.16. This relevantly provides:
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
…
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
As is well-established, the power conferred by UCPR, r 36.16 is to be exercised "sparingly and with caution" having regard to the importance of the finality of litigation, and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 ("Majak") at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is "to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal": Majak at [12].
Time limits for an application under r 36.16
UCPR, r 36.16(3C) provides that, despite UCPR, r 1.12 (which gives the court a power to extend or abridge time fixed by the UCPR), the court may not extend the time limited by r 36.16(3A). As held by Basten JA in Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 at [15]:
"The removal of the power to extend the 14-day period makes it sufficiently clear that the intention is that the period is not variable, but reflects the need for judgments and orders to be final and certain as to their operation."
Section 14 of the Civil Procedure Act provides:
In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.
An application under r 36.16(3A) may be entertained where adequate written notice has been given, or a timely oral application made, albeit no motion was filed within the 14 day period prescribed: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [10]; Aukuso v Tahan (No 2) [2018] NSWCA 302 at [43], [45], [46] (Simpson AJA, Macfarlan JA agreeing; Meagher JA at [5] holding that there was no power to entertain the application in the circumstances). This is on the basis of dispensation, under s 14 of the Civil Procedure Act, with the requirement under UCPR, r 18.2 that a notice of motion be filed and served: Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2].
In Kable v State of New South Wales (No 2) [2012] NSWCA 361 ("Kable (No 2)") Allsop P (Campbell and Meagher JJA agreeing) held that the power to dispense with the filing of the motion should not go beyond the content of the letter notifying the application as that "would raise the far more difficult question as to whether s 14 can operate to override the operation of r 36.16(3C) and, if it can, the stringency of any such operation": at [3]. Basten JA, (Allsop P, Campbell, Meagher JJA and McClellan CJ at CL agreeing) held that the Court's power was limited to "the matter" notified to the Court within the 14 day period in r 36.16(3A) and found that there was no basis to entertain the application to the extent it went beyond that matter: at [11]-[16].
Where no notice of an application to vary has been given to the Court within the 14 day period prescribed by r 36.16(3A), this Court has held that "arguably" no application will be entertained: AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 at [7] (Basten JA, Beazley and Macfarlan JJA agreeing). In that case, Basten JA explained the basis of this position (at [9]):
"Although the possibility of reliance on s 14 was also noted in Spina v Permanent Custodians Ltd (No 2) [2009] NSWCA 419 at [9], the difficulty with such an approach is that the course permitted by s 14 must act differentially, so as to remove the time limit and leave an unlimited power in the Court to vary orders which have been entered. Because r 36.16 itself precludes the operation of r 1.12, which might otherwise allow the Court to extend the time, this would constitute a rewriting of r 36 in a way clearly not envisaged by its terms: cf r 36.16(3C)."
In Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 Mason CJ said:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.
…
However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put ... The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
These principles apply to applications under UCPR, r 36.16(3A): Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 36.16(3A) should be "exercised with great caution, having regard to the importance of the public interest in the finality of litigation": Lawrence v Ciantar (No 2) at [7].
Whilst, as set out above, jurisdiction under UCPR, r 36.16(3A) may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).
If it is sought to set aside orders on the basis that they were obtained by fraud, this should generally be done by way of fresh proceedings: McDonald v McDonald (1965) 113 CLR 529 at 533; [1965] HCA 45 (Barwick CJ); Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699-700 (Handley JA, Mahoney and Clarke JJA agreeing); Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [32].
Ordinarily, questions of costs should be raised and addressed at the appeal hearing rather than by parties making separate and subsequent applications: Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [5]-[7]. As this Court said in Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:
"If [parties] wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known."
Whilst it was unnecessary to decide the issue, in Boateng v Dharamdas [2019] NSWCA 233, Macfarlan JA (Gleeson JA agreeing) said of the question whether s 14 of the Civil Procedure Act could be relied upon to permit an order to be made extending that 14 day period in r 36.16(3A) that "[t]here is no doubt as to this because r 36.16(3C) states expressly that the court may not extend the time limited by subr (3A)": at [24]. More recently, in Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98 at [38] White JA (Basten and Macfarlan JJA agreeing) held:
"I do not consider that s 14 would permit the extension of the time prescribed by r 36.16(3A) for the filing of the notice of motion. I share the difficulty articulated by Basten JA in AT v Commissioner of Police NSW (No 2) in seeing how a power to dispense with a rule assists a party who needs to rely on the rule to avoid the effect of the principle that a final order (including as to costs), once entered, cannot be varied or set aside except on appeal. I doubt that the power in s 14 to dispense with a rule extends to dispensing with a condition to the operation of the rule, the effect of which would be to enlarge the operation of the rule".
Even if there were power in the Court to extend the 14 day period prescribed under UCPR, r 36.16(3A), it is well established that any application should be determined in accordance with the principles set out in Bailey v Marinoff: Malouf v Prince (No 2) [2010] NSWCA 51 at [23]; Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 at [28] (Gleeson JA, Ward and Payne JJA agreeing).