Tobes v Fleet [2011] ACTSC 122

Supreme Court of the ACT|2011-08-03|Before: Burns J

2. The order that the defendant pay the plaintiff's costs of, and incidental to, the plaintiff's application in proceedings dated 12 July 2011 is set aside.

3. A substitute order is imposed ordering that the costs of that application are reserved until the hearing of the proceedings.

4. Costs in respect of this appeal are reserved until the same time.

2. The Registrar determined that leave should be granted for the plaintiff to file an amended statement of claim incorporating all of the amendments sought. Subsequently, the Registrar made an order for costs. I have before me a copy of the transcript of what the Registrar said in making her order as to costs. She referred to the provisions of rule 513 of the Court Procedure Rules 2006 (ACT) ('CPR') and determined that it was not appropriate that she should displace the effect of rule 513. The effect of that, as I understand it, is that the defendant in the proceedings would be entitled to costs thrown away as a result of the amendment. However, the Registrar went on to make a further costs order to the effect that the defendant pay the plaintiff's costs of the actual application before the Registrar on the basis that she had formed the view that the application could have been avoided. By that, I understand that the Registrar came to the conclusion that the defendant had unreasonably opposed the application being made by the plaintiff.

3. Before I proceed any further, it is apposite at this time to consider the nature of an appeal from the Registrar to a Judge of this Court. Appeals from the Registrar's orders to a Judge of this Court are dealt with under rule 6256 of the CPR. Of particular significance is sub-rule (4), which provides that any such appeal is a rehearing of the matter anew.

4. As I indicated in argument with counsel, the drafting of that provision is problematic. But the use of the word "anew" persuades me that the nature of an appeal from the Registrar to a Judge of this Court is effectively by way of a hearing de novo in the sense that a Judge of this Court is not obliged to comply with the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 in order to make an order other than that which was made by the Registrar.

5. In my view, subrule (4) of rule 6256 allows a Judge of this court to make such order as the Judge considers should have been made by the Registrar. I am grateful to counsel for their arguments and submissions in relation to this matter.

6. The question of the significance of the amendments that were made and, in particular, those amendments which were opposed by the defendant in the application before the Registrar, is not and, of course, cannot be clear to me at the present time. In my view, the appropriate order which should have been made by the Registrar was to reserve the question of costs until such time as there was a hearing of the matter at which time the significance of those amendments would have become clearer.

7. The orders that I make are that the appeal will be allowed.

8. The order made by Registrar Glover on 25 July 2011 that the defendant pay the plaintiff's costs of, and incidental to, the plaintiff's application in proceedings dated 12 July 2011 will be set aside.

9. I will substitute an order that the costs of that application are reserved until the hearing of the proceedings.

10. I further reserve the costs in respect of this appeal until the same time.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the appellant: Sparke Helmore Lawyers

Court Procedure Rules 2006(ACT)

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