Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113

7. On 15 May 2002 a judge of the County Court ordered the appellant, Victoria Legal Aid, to pay to the second respondent, The Gatehouse Clinic (which I shall call "the respondent"), its costs of attending at court on 1 October 2001 in circumstances which I describe later. By originating motion, dated 15 July 2002, the appellant sought an order in the nature of certiorari pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 1996[1] quashing the order of the County Court judge. The originating motion was heard by a judge of the Trial Division of the Supreme Court on 12 November 2002 and, on 25 November 2002, her Honour dismissed the proceeding. By notice of appeal dated 6 December 2002, the appellant seeks to appeal as of right against her Honour's decision. The first respondent has intimated that it did not intend to take an active role in the proceeding but would abide the decision of the court save as to costs.

10. The background to the proceeding can be shortly stated. In September 2001 the appellant acted for an accused charged with sexual offences. His trial was due to commence in the County Court at Melbourne on Monday, 1 October 2001. On the preceding Friday, 28 September 2001, the appellant caused a subpoena to be filed in the County Court that required the respondent's Director to produce certain documents to the court on 1 October 2001. The subpoena was served on the respondent on the day it was filed. When it was called on, the respondent's counsel sought an adjournment until the following day in order that an affidavit could be prepared and filed in response to the subpoena. The adjournment was granted but no order was made as to costs. On the following day, 2 October 2001, an affidavit was filed on behalf of the respondent opposing the production of the documents

sought, essentially on the ground of public interest immunity. With the consent of both parties the judge inspected the file and concluded that it contained no material that could be regarded as relevant to the accused's defence and, accordingly, set the subpoena aside. The respondent then sought an order that the appellant pay its costs of attending the court on 1 October 2001, but for reasons which are not clear, his Honour did not make the order sought. Instead, the judge effectively said that he would grant the respondent a certificate under the Appeal Costs Act 1998 in respect of its costs. The trial then proceeded and, on 8 October 2001, the accused was acquitted on all counts.

14. Prior to 13 May 2002, the solicitors for the respondent realised that the provisions of the Appeal Costs Act did not entitle it to be paid its costs of 1 October 2001. In the result, the matter of its entitlement to costs was brought back before the same judge on 15 May 2002 for further consideration. On that day, after hearing submissions from the parties, his Honour ordered, as I have said, that the appellant pay the respondent's costs of 1 October 2001 and said that he was making that order pursuant to s.25 of the Crimes (Criminal Trials) Act 1999 ("the Act"). His Honour also said that the respondent was entitled to its costs because it was obvious that the respondent was not given sufficient time to put evidence before the court in opposition to it. The learned judge rejected the submission that s.25 of the Act did not apply in the circumstances of the case. It is in respect of his Honour's order of 15 May 2002 that the appellant filed the originating motion, to which I have referred, seeking an order quashing the decision. The principal bases on which the order was sought were that the County Court judge did not have power or jurisdiction to make the costs order and that, in any event, there was error on the face of the record disclosing that his Honour applied the wrong test for determining whether such an order should be made. In support of the originating motion, the appellant filed an affidavit sworn by one of its employees, which exhibited a copy of the court file that was endorsed by the judge's Associate with the terms of his Honour's orders of 2 October 2001 and 15 May 2002. As I have said, this proceeding was dismissed on 25 November 2002 by a judge of the Supreme Court.

17. The principal grounds on which the appellant seeks to challenge her Honour's decision are essentially the same as those that were advanced before her Honour, and which she rejected. More particularly, it is claimed that her Honour should have held that the County Court judge was functus officio as at 15 May 2002 and, therefore, did not have the power or jurisdiction to make the costs order. In any event, it is contended, the learned judge should have held that s.25 of the Act did not empower the judge to make the costs order. It is also said that her Honour erred in not holding that material error was disclosed on the face of the record that vitiated the costs order. As I will explain later, counsel also sought to argue that her Honour was wrong in not holding that the County Court judge erred in the exercise of his discretion.

20. The first matter to resolve, however, is whether the appellant can bring the proposed appeal as of right. It is plain enough that, if the decision below is interlocutory, this Court does not have jurisdiction to hear the proposed challenge to her Honour's decision unless leave to appeal has been first obtained.[2] No such leave has been sought and the appellant is out of time to make such an application.[3] In the circumstances, the appellant's counsel applied orally for an extension of time for seeking leave to appeal and for the grant of such leave, should that be necessary. Mr Corrigan, for the respondent, was content to proceed without the filing of a summons for extension of time and leave and did not suggest that an extension of time should not be granted if this Court were minded to grant leave. He argued, nevertheless, that leave was necessary and should not be granted.

23. Ordinarily, an order is interlocutory unless it finally determines the rights of the parties in a principal cause between them, and whether that is the case is to be determined by the legal, not the practical, effect of the order.[4] In Hall and Hornsby v. Kaschke[5], for example, the impugned orders were not made in the principal cause, but in the context of an application that related to such a cause. In the first case, the impugned order was made in an application for an extension of time within which to institute proceedings against the Nominal Defendant. In the second case, the order in question related to pre-trial disclosure in the Magistrates' Court that was sought by the defendant who was charged with drink driving offences. A judge of the Supreme Court quashed the Magistrate's order that the informant deliver the instrument in question to the defendant, who thereupon sought to appeal against her Honour's decision. This Court decided that her Honour's order was ancillary to the proceeding in the Magistrates' Court, and was thus interlocutory.[6] In support of his argument that the impugned order in this case was a final order, Mr Clelland, for the appellant, relied on the observation of Callaway, J.A. in Hornsby[7]_,_made in the context of referring to a number of cases in which relief in the nature of certiorari was refused, that "[it] may well be that such refusal finally determined the rights of the parties in the principal cause...". Counsel claimed that this passage supported his argument that her Honour's decision had the effect of determining finally the rights of the parties on the costs question. This may well be the practical result of her Honour's order but, as I will explain later, that is not necessarily the position from a legal perspective. Counsel also relied on three other cases referred to by Callaway, J.A. in Hornsby. Insofar as his Honour referred to the observation of the President in Brygel v. O'Keefe[8], this observation was made by of obiter. As to the other two cases, it was not claimed in them that the orders refusing relief were interlocutory. Consequently, the issue now under consideration did not arise there for determination. In the circumstances, I consider that neither Hornsby nor Brygel, nor the other cases referred to by Callaway, J.A. in Hornsby, assist the appellant's case.

26. There are two reasons why I consider that her Honour's impugned order is interlocutory. First, the relevant proceeding, or matter, that was before the County Court judge on 2 October 2001 was the application to set aside the subpoena. In my view, this was an interlocutory proceeding - see National Employers' Mutual General Insurance Association Ltd. v. Waind[9] - and, since the application for costs was either part of the proceeding, or ancillary to it, the costs order must also be considered to be interlocutory. Her Honour's decision was, like that in Hornsby, also interlocutory. The mere fact that it determined the proceeding commenced by the originating motion did not make the order final.

29. The second, or alternative, reason why I consider that her Honour's order is interlocutory is that the decision refusing to grant an order in the nature of certiorari was discretionary and, ordinarily, such a decision is considered to be interlocutory. Importantly, the refusal of an application for such relief usually does not determine finally, from a legal point of view, the rights of the parties - see Coles v Wood[10]. As the learned President in that case explained[11]:

"The jurisdiction to make a declaration is discretionary. The dismissal of an application for declaratory relief, as distinct from making of a negative declaration, does not determine the right sought to be declared, so as to prevent it being litigated in other proceedings. The jurisdiction to grant prerogative relief, for example in the nature of a certiorari is also discretionary. The refusal of an application for such relief does not determine, finally or otherwise, the rights of any party. Whether the particular reasons given for a refusal of such an order for declaratory or prerogative relief will in a practical sense, be persuasive as to the decisions to be given in other proceedings where the existence of the rights claimed or its enforcement is at issue, does not stand against the conclusion that the order of dismissal is not final but interlocutory."

"Orders in the nature of a writ of certiorari are discretionary in the sense that a court is entitled according to proper principles to consider whether there is any utility in making the order. As an order can be refused on the grounds of utility and utility can easily change, any order simply dismissing an application for such a writ is necessarily interlocutory."[13]

Coles v. Wood was recently applied by this Court in Knight v. Spadano[14] where it was held that the refusal by a judge of the Trial Division to make orders in the nature of certiorari and mandamus (and declarations) was interlocutory notwithstanding that there was no principal cause elsewhere, unlike the position in Coles v. Wood, where the main proceeding concerned the validity of search and arrest warrants and the application for prerogative relief was ancillary to that proceeding.[15] Mr Clelland sought to distinguish Knight v. Spadano on the basis that the Court in that case recognised that the applicant could make another application for like relief. Here, said counsel, the time limits have expired and, therefore, there was no real prospect of the appellant bringing another such proceeding. But such an argument disregards a critical aspect of the criteria for determining whether a decision is final or interlocutory, namely, whether the legal, as distinct from the practical, effect of the decision determines finally the rights of the parties. To determine that question one looks at the hypothetical situation. Thus, if it is possible, from a legal point of view, to bring another like proceeding, albeit on different grounds, the decision will ordinarily be considered to be interlocutory, notwithstanding that, from a practical point of view, it can be said that such an application is unlikely to be made.[16] I consider that, as in Knight, it is possible, from a legal point of view, for the appellant to bring another proceeding for like relief notwithstanding that the time limit fixed by Rule 56.02(1) has expired, and notwithstanding that "special circumstances" must be shown before the Court can grant an extension of time.[17]

36. Mr Clelland had also argued that the costs order was final, and not interlocutory, because it was directed at a practitioner. Counsel said that so much was decided in Etna v. Arif[18]. In that case, after noting[19] that the compensatory object of Rule 63.23 was emphasised in a number of cases, Batt, J.A. observed that in one of the cases to which he referred "it was held that a judge had no discretion to make an order for costs against a solicitor personally unless there has been misconduct or negligence and that on that question there ought to be an appeal without leave". In the result, his Honour decided that such a costs order did not fall within s.17A(1)(b) of the Supreme Court Act 1986 and thus, leave was not required to appeal against it. But this aspect of his Honour's decision can be distinguished from the present situation for at least three reasons. First, unlike the position in Etna, here, as I have explained, the costs application was ancillary to, or formed part of, the "proceeding" for the setting aside of the subpoena, which was itself an interlocutory proceeding. Secondly, s.17A(1)(b) of the Supreme Court Act is irrelevant to the present application. Although, as I will explain later, s.25 of the Act is based on Rule 63.23, it is not clear that the underlying basis of that Rule, namely, the court's disciplinary jurisdiction over practitioners, necessarily carries over to s.25. In any event, in Etna, the question on which it was said there "ought to be an appeal without leave" was whether the costs order should have been made against the practitioner whose negligence went beyond "mere" negligence.[20] This question does not arise in the context of s.25 of the Act. As I explain later, for present purposes, the basis of an order under that provision is not whether there was gross, or other serious negligence on the part of the practitioner, but whether the impugned conduct, here the short-service of the subpoena, amounted to "default" within the meaning of s.25(2)(e) of the Act.

39. Thus, for the above reasons, I consider that her Honour's decision not to quash the costs order was interlocutory. It follows that, the appellant must obtain leave to appeal against that decision and in order to do so, must establish that the decision is attended with sufficient doubt and that substantial injustice would be caused if it were to stand.[21] Consequently, I turn to consider these matters and deal first with the question whether substantial injustice would arise if the decision were not overturned. As Murphy, J. said in Niemann[22], even if the decision is wrong, this is not alone sufficient to justify the granting of leave. It must be shown, in addition, to effect substantial injustice by its operation.[23] In BHP Petroleum Pty. Ltd. v. Oil Basins Ltd.[24], Fullagar, J. explained that what constitutes substantial injustice must depend upon all the circumstances of the case. In the present case, as the Chief Justice pointed out to the appellant's counsel in the course of argument, no material was put before us that could be said to show that her Honour's decision will result in substantial injustice if it were allowed to stand. As a way of meeting this obvious difficulty, counsel submitted that substantial injustice will arise from the fact that, if her Honour's decision were to remain, the order of the County Court judge would stand and that will continue to reflect adversely on the appellant's professional reputation. It seems to me, however, that this claim is inconsistent with the appellant's criticism of his Honour's view that the costs order was not punitive but was merely compensatory. In any event, I consider that there is nothing in the judge's reasons that amounts to an extensive criticism of the appellant's professional integrity. His Honour made it plain that he did not have to make a finding of gross negligence in order to make the costs order under s.25 of the Act. In all the circumstances, I am not persuaded that the appellant has made out this requirement for obtaining leave.

42. But if I am wrong in this conclusion, I consider that her Honour's decision is not attended with sufficient doubt. I have already mentioned the bases on which the appellant now contends error on her Honour's part and I now turn to consider each of these grounds in turn.[25] On the question whether the County Court judge was functus officio, it was submitted for the appellant, correctly, I think, that, ordinarily, once a judgment is authenticated it becomes the record of the court, or, put another way, passes into the record of the court, and the judge in question has no jurisdiction to vary it,[26] and thus becomes functus officio. The rule that a judgment once entered cannot be recalled is based on the principle that it is in the public interest that there be an end to litigation.[27] But, "... until a judgment or order has passed into record it remains under the control of the judge who may recall it or alter it, even if he seeks to do so merely because he has second thoughts about it; but once the judgment or order has passed into record the power to recall or alter it is of a very different kind ...".[28] In those circumstances, the power to recall the judgment is circumscribed by the slip rule, which operates to prevent a miscarriage of justice that might otherwise occur by reason of an accident or slip or omission by the Court in perfecting its judgment.[29] It was not suggested that the slip rule can apply in this case and so the only relevant issue for present purposes is whether the cost order of 2 October 2001 was authenticated.

45. In support of his contention that the order has passed into the records of the County Court, the appellant's counsel pointed to the associate's endorsement on the court file of 2 October 2001, to which I have referred. He argued that this notation had the effect of perfecting the order and that, as a consequence, the judge had no power to revisit the question of the respondent's entitlement to be awarded costs. But, in my view, her Honour was correct when she concluded that the endorsement did not constitute an authentication of his Honour's order and that, in the circumstances, the judge could not be properly regarded as functus officio at the time of making the order on 15 May 2002. I agree with the submission of Mr Corrigan that the associate's endorsement was merely an administrative memorandum and did not constitute the record of the County Court. Rule 60A.2 of the County Court Rules provides that a judgment or order is authenticated when a form of the judgment or order, drawn up and lodged with the Registrar, is signed by a Judge or Master or is sealed by the Registrar and filed. It is plain enough, I think, that on the material before her Honour, it was not established that the costs order of 2 October 2001 was authenticated in accordance with that rule.

48. The appellant's counsel also argued that the County Court judge in fact granted a certificate on 2 October 2001 and was, thereafter, functus officio. In support of the claim that the certificate was granted the appellant's counsel pointed to a letter dated 13 May 2002 from the respondent's solicitors to the appellant. In my view, however, this letter does not establish that a certificate under the Act was granted to the appellant on 2 October 2001 (or at all). First, the letter merely asserts that the primary judge "granted a Certificate under the [Act] for costs thrown away". That does not constitute evidence of the grant of the certificate. More importantly, such a conclusion is inconsistent with the transcript of what his Honour said in that regard. The judge only spoke of the respondent being entitled to a certificate, and there is no suggestion that his Honour signed such a document.

51. In the circumstances, I consider that the learned judge did not err in her conclusion that the County Court judge was not functus officio when he came to deal with the costs matter on 15 May 2002. In any event, even if his Honour's order had been authenticated, as Dodds-Streeton, A.J.A. pointed out in the course of argument, the County Court judge had the power to make a supplemental costs order if he considered that the circumstances made it necessary to do so.[30] It seems clear enough that the judge had power to make such an order.[31] It is plain that he formed the view that such an order was appropriate and it is also apparent that the costs order of 15 May 2002 did not vary or alter the order of 2 October 2001 and can therefore be properly characterised as being supplemental to it.

54. I now turn to consider the appellant's argument that her Honour erred in accepting the submission that the County Court judge had the power to make the impugned costs order under s.25 of the Act. Mr Clelland first submitted that the judge had power under Rule 42.08(1) of the County Court Rules to order that the accused pay the respondent's costs of 1 October 2001. Unlike the Supreme Court, the County Court has no inherent jurisdiction over practitioners[32] and consequently, it has no power to order costs against a practitioner, unless such power is conferred on it by legislation. In civil proceedings, this power springs from Rule 63A.23 of the County Court Rules, but it is plain enough that this provision does not apply to criminal proceedings. Rule 14.01 of Chapter II of the County Court Rules provides, however, that Order 42 of Chapter I of the County Court Rules applies, with the necessary modifications, to any criminal proceeding in the County Court. This rule corresponds to Order 42 of the Rules of the Supreme Court and provides, inter alia, for the filing of a subpoena by a party to a proceeding so as to secure the attendance in court by the person named in the subpoena for the purpose of giving evidence or producing the required documents, or both. Rule 42.08 (1) empowers the court to order that the party which filed the subpoena pay that person for any expenses or losses incurred in complying with it, over and above the amount of conduct money. Thus, Mr Clelland argued, his Honour had the power to order, pursuant to this rule, that the accused pay the costs of 1 October 2001. But, even if the judge could have made such an order, and putting to one side the fact that no such order was sought, nothing turns on his Honour's power to make such an order because, as counsel agreed, his Honour's ability to make it did not mean that he was thereby precluded from making an order under s.25(1)(c), provided the relevant requirements of that provision had been satisfied.

57. Counsel went on to submit that, although s.25 of the Act gave his Honour power, in certain circumstances, to order a practitioner to pay costs, the requirements of this provision have not been satisfied. More particularly, the appellant contended that two essential aspects or requirements of s.25 have not been made out by the respondent. First, it was said, the respondent was not a "party" within the meaning of s.25(1)(c) of the Act, and secondly, the appellant's conduct in short serving the subpoena did not amount to a wrongful conduct that is contemplated by the provision.

60. In support of the argument that the respondent was not a "party" for the purpose of s.25(1)(c), Mr Clelland first pointed to numerous sections of the Act which use the word "party" to denote a named litigant. He said that this supported his claim that "party" in s.25 is limited to a named litigant. These provisions, however, are not helpful because the word "party" in them takes its meaning from the particular legislative context. Nevertheless, it is necessary to consider whether another section of the Act to which counsel did not refer, namely, s.24, which, unlike the other provisions to which reference has been made, is in the same Part of the Act as s.25, may throw some light on the meaning of "party" in s.25. Section 24 empowers the court to make orders as to costs in certain circumstances where a "party" has acted wrongfully. It seems clear enough from its terms that the word "party" in the section is confined to the named litigants, more specifically, the Crown and the accused. This is made apparent by sub-section (3), which provides that an order may be made against "(a) a party, whether the Crown or the accused...". As Mr Corrigan pointed out, "party" is effectively defined in that sub-section as the Crown and the accused. It does not necessarily follow, however, that the same meaning must be given to the word "party" in s.25. It seems to me that s.25 differs relevantly from s.24. Section 24 has its origin in s.19 of the Crimes (Criminal Trial) Act 1993. In particular, s.19(1)(a) of that Act was the forerunner of s.24(3)(a) of the 1999 Act. Section 25, on the other hand, was introduced into the legislation for the first time by the 1999 Act. Importantly, as was accepted by both parties, it essentially reproduced Rule 63.23. In light of that, it is instructive to ascertain whether "party" in Rule 63.23(1)(c) (which corresponds to s.25(1)(c) of the Act) is confined to the litigants named in the proceeding, or whether it extends to third parties such as the respondent in this case. In my view, the word "party" in this Rule includes participants in the proceeding such as the respondent. I say this for the following reasons.

63. First, s.3(1) of the Supreme Court Act defines "party" as including "a party to a civil proceeding and every person served with notice thereof or attending on the hearing of the same although not named as a party thereto ....". By reason of s.23 of the Interpretation of Legislation Act 1984, and given that there is no basis for saying that there is a "contrary intention" for the purposes of that section, the word "party" as used in Rule 63.23 is to have the same meaning as it has in the parent Act, more particularly, as it is defined in s.3(1) of the Supreme Court Act. On that basis, it would follow that the word "party" in Rule 63.23 is not limited to a named litigant in the proceeding, but includes someone in the position of the respondent.

66. Next, it seems to me that the underlying purpose of the Rule makes it likely that "party" has a wider meaning than contended for by the appellant. The Rule essentially reflects the superior court's supervision over practitioners so that it is likely that the Rule was intended to reflect the Court's power, in appropriate circumstances, to order a practitioner to pay the costs incurred by a non-party in relation to a proceeding due to the practitioner's wrongful act. There is no apparent policy or other reason to suppose that Rule 63.23 was intended to empower the Court to order a defaulting practitioner to pay costs of a named litigant but not those of a non-litigant, notwithstanding that each has incurred costs in relation to the proceeding due to the practitioner's misconduct or default. Thus, as I have said, there is no reason in principle why the Rule should not operate in respect of a person attending court pursuant to a subpoena that was short-served by the practitioner as a result of a default on his part so as to cause that person to incur additional costs.

69. I mention for completeness that the attribution of such a meaning to "party" in Rule 63.23(1)(c) accords with the ordinary meaning of that word. Thus, the definition of "party" in the Shorter Oxford Dictionary[33] includes "a single person considered in some relation" to another. "Party" is not limited to a person who is a litigant, but includes "a participator" or "an accessory" or "an individual concerned."

72. Mr Clelland contended, however, that a person attending court in compliance with a subpoena filed under Rule 42 is not a "party" for the purposes of Rule 63.23(1)(c) because such a person is not a person "served with notice of or attending a proceeding" within the definition of "party" in s.3 of the Supreme Court Act. In support of that contention he relied on the observation of Byrne, J. in Pyramid Building Society (in liq.) v. Farrow Finance Corporation (in liq.)[34] in which his Honour said, by way of dicta, that, for the purposes of Rule 42.08(1) of the Supreme Court Rules, a person who attends court in compliance with a subpoena was not a "party", notwithstanding the operation of s.23 of the Interpretation of Legislation Act and the definition of "party" in s.3 of the Supreme Court Act. His Honour was considering the notional submission that a person who attended court in answer to a subpoena falls within the definition of "party" in s.3(1) of the Supreme Court Act and, therefore, is a "party" for the purposes of Rule 42.08(1) and, consequently, is not entitled to be awarded the costs or expenses contemplated by that Rule. Not surprisingly, his Honour rejected such an argument and he did so on the basis that, if it were accepted, it would render the operation of Rule 42.08(1) nugatory. Byrne, J. was plainly right in that conclusion. But, as her Honour correctly pointed out, the decision of Byrne, J. turns on the interrelation between the definition of "party" in the Supreme Court Act and Rule 42.08(1), which is not the issue here. Moreover, it is plain, as her Honour said, that Byrne, J. was not laying down a principle applicable to the meaning of "party" in all circumstances.

75. Thus, given my conclusion that "party" in Rule 63.23 has the wider meaning, and since s.25 of the Act was plainly modelled on the terms of that Rule, I consider that the word "party" in s.25(1)(c) should be accorded the same meaning as it bears in Rule 63.23(1)(c). This will include a person in the position of the respondent, which means that the County Court judge had the power to make the costs order against the appellant, provided the other relevant requirements of the sub-section were satisfied. It follows that I consider that her Honour did not err in rejecting the appellant's argument that the respondent was not a "party" for the purposes of s.25 of the Act.

78. I am of a like view that her Honour was correct in rejecting the appellant's second basis for saying that s.25 of the Act did not apply here, namely, that its conduct in short serving the subpoena did not fall within the wrongful conduct defined by that provision. In my opinion it was open to conclude, as the County Court judge did, that such conduct amounted to "default" in s.25(1), as that term is defined in sub-s.(2)(e). It is plain from the judgment of Batt, J.A. in Etna that what he said in respect of paragraph (1) of Rule 63.23 (and thus, for present purposes, s.25(1) of the Act) was relevantly unrelated to the express provision of paragraph (2) of that Rule (which corresponds to sub-s.(2)). "Default" has a wide meaning and, in the circumstances of this case, includes the failure by the appellant to serve the subpoena within a reasonable time before the attendance of the respondent was required.[35] That "default" has a wide meaning was recognised, for example, by Eyre, C.J. Dacre v. Dacre[36] where his Lordship said that "in its largest and most general sense it seems to mean, failing". This decision is often cited as authority for the proposition that "default" means "an omission of that which ought to have been done". As I have said, it was open to the primary judge to hold that, in failing to serve the subpoena on time, the appellant clearly failed to act in a timely manner.

81. It follows from what I have said that the appellant has failed to establish that there is relevant doubt as to the correctness of her Honour's decision that the County Court judge had power under s.25 of the Act to make the impugned costs order.

84. I now turn to consider the appellant's claim that her Honour erred in failing to recognise that there was error on the face of the record. Such error, it was said, was constituted by the County Court judge making the costs order, purportedly under s.25 of the Act, notwithstanding that he considered it was not punitive in nature, but was compensatory. That a costs order against a practitioner is compensatory, notwithstanding that it is made in the disciplinary jurisdiction of the court, was recognised by Batt, J.A. in Etna[37]. Be that as it may, it is important to bear in mind what it is that her Honour actually decided in relation to this complaint. What the learned judge relevantly said was that, even assuming that the judge erred in law in rejecting the notion that the costs order was punitive, it was not an error of sufficient significance to justify the order sought in the originating motion. In my view, that aspect of her Honour's decision is also not attended with relevant doubt. The appellant pointed to Etna v. Arif and to Mifsud v. Chemplex (Aust.) Ltd.[38] as establishing that, before an order for costs can be made against the practitioner pursuant to Rule 63.26 and, therefore, under s.25(1) of the Act, it had to be established that the negligence was "gross", or at least greater than mere negligence, and the same concept applied, it was said, to the other wrongdoings specified in sub-s.(1) namely, "any other misconduct or default". The appellant's counsel agreed, however, that sub-s.(2) defined "default" in such a way that the appellant's conduct could be said to fall within sub-s.(2)(e). Counsel nevertheless argued that, because of what was said by Batt, J.A. in Etna and in White Industries (Qld) Pty. Ltd. v. Flower & A.B. Hart (a firm)[39], the default had to be of a gross or serious kind, being a concept that was apparently not accepted by the primary judge. But neither Etna nor Flower & Hart considered the operation of s.25(1)(c) of the Act, and, perhaps just as

importantly, Batt, J.A. in Etna made it plain[40] that nothing he said about the interpretation of the equivalent of sub-s.(1) was intended to derogate from the express provision of the equivalent of sub-s.(2). His Honour effectively noted that sub-s.(2) "fastened upon the words `default' in [sub-s.(1)], rather than the word `negligence'." In the circumstances I consider that, as I have said, her Honour's decision that such error as the County Court judge may have made in construing s.25(1) of the Act was not material, is not attended with sufficient doubt.

88. I mention for completeness that, although in his written outline of submissions, the appellant's counsel claimed that the County Court judge erred in the exercise of his discretion in awarding costs to the respondent and that her Honour wrongly failed to recognise that error, this argument is not open to the appellant, on appeal, given that his attack on the County Court decision was based only on jurisdictional challenge and alleged error on the face of the record. I also doubt that this point is covered by the proposed grounds of appeal. Be that as it may, the appellant's counsel agreed that, if he failed in his arguments on the principal issues as to the judge's power and jurisdiction to make the costs order, he could not succeed in his contention that the County Court judge relevantly erred in the exercise of his discretion. For the reasons I have given, I consider that the appellant has failed on the principal issues and, therefore, he cannot establish error on the part of her Honour in relation to the County Court judge's exercise of discretion to award costs against the appellant.

91. For these reasons, I am of the view that the appellant is not entitled to leave to appeal and since, in those circumstances, it would be futile to grant extension of time for leave to appeal, I would refuse that application and dismiss the appeal as incompetent.

96. I agree with the reasons stated by Chernov, J.A. and the disposition of the

101. I agree with the disposition proposed by Chernov, J.A. for the reasons his Honour has given.

[1] Unless otherwise stated all references in these reasons to "Rules" will be references to the Rules of the Supreme Court.

[2] See s.17A(4)(b) of the Supreme Court Act 1986, and Little v. State of Victoria [1998] 4 V.R. 596 at 497, 602 per Callaway, J.A. with whom Buchanan J.A. agreed.

[4] Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423 at 439-440 per Taylor, J. and at 443 per Windeyer, J.; Carr v. Finance Corporation of Australia Ltd. (No. 1) [1981] HCA 20; (1981) 147 C.L.R. 246 at 248 per Gibbs, J.; Little at 578-579 per Callaway, J.A. and Re Luck [2003] HCA 70; (2003) 78 A.L.J.R. 177 at [4].

[5] [1999] VSCA 153; [1999] 3 V.R. 27.

[6] See also Oliphant v. Commissioner of Australia Federal Police [1990] FCA 475; (1990) 27 F.C.R. 146 at 147 per Lockhart, Burchett and Gummow, JJ.

[8] Unreported Court of Appeal, 17 April 1997. See also Kassionis v. Magistrates' Court of Victoria [2002] VSCA 73 at [3] per Batt, J.A.

[9] [1978] 1 N.S.W.L.R. 372.

[10] [1981] 1 N.S.W.L.R. 723 at 725 per Moffit, P. and at 727 per Hutley, J.A. Samuels, J.A. agreed with the other members of the Court.

[13] Coles v. Wood was distinguished in Legal & General Life of Australia Ltd. v. A. Hudson Pty. Ltd. (1985) 1 N.S.W.L.R. 314, but that case was essentially concerned with declarations that were made by the trial judge in respect of rights of parties under a lease.

[14] [2003] VSCA 228.

[15] See also Monash University v. Berg [1984] VicRp 30; [1984] V.R. 383 at 386 and Kassionis at [3] per Batt, J.A.

[16] See Licul v. Corney [1976] HCA 6; (1976) 180 C.L.R. 213 at 225 per Gibbs, J.

[17] As to the requirement that "special circumstances" be shown before the court can grant an extension of time fixed by Rule 56.02(1), see Rule 56.02(3).

[18] [1999] VSCA 99; [1999] 2 V.R. 353, at 379 per Batt, J.A. with whom Charles and Callaway, JJ.A. agreed.

[20] See Etna at 379 and 383 per Batt, J.A.

[21] Niemann v. Electronic Industries Ltd. [1978] VicRp 44; [1978] V.R. 431; Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-Ordinators (Morwell) Pty. Ltd. [2002] VSCA 113; (2002) 5 V.R. 353 at 365 per Ormiston, J.A.

[23] See also X v. Director of Public Prosecutions [1995] VICSC 195; [1995] 2 V.R. 622 at 626 per Callaway, J.A. to like effect.

[24] [1985] VicRp 72; [1985] V.R. 756 at 758-9.

[25] Ordinarily detailed reasons are not given by this Court for the refusal of leave - see X v. Director of Public Prosecutions at 623 per Brooking, J.A., with whom Charles, J.A. agreed, and at 626 per Callaway, J.A. - but I consider that, in the circumstances of the present case, it is appropriate to provide more detailed reasons for my conclusions.

[26] See, for example, Carroll v. Price [1960] VicRp 101; [1960] V.R. 651 at 657-658; Caboolture Park Shopping Centre Pty. Ltd. (in liq.) v. White Industries (Qld.) Pty. Ltd. [1993] FCA 471; (1993) 45 F.C.R. 224.

[27] See Bailey v. Marinoff [1971] HCA 49; (1971) 125 C.L.R. 529 at 539.

[28] See also R v. Saxon [1998] 1 VR 583 AT 507 per Tadgell at Phillips JJ.A. and Southwell AJA., R v. McNamara [1997] 1 VR 257 and R v. TSR [2002] VSCA 87; (2002) 5 VR 627.

[29] See R. v. Cripps; ex parte Muldoon [1984] Q.B. 686 at 695 per Sir John Donaldson M.R.; Sands & McDougall (Wholesale) Pty. Ltd. (in liq.) v. The Commissioner of Taxation [1999] VSCA 36; [1999] 2 V.R. 114 at [16]; L Shaddock & Associates Pty Ltd v. Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 C.L.R. 590; Rule 26.11.

[30] See Caboolture Park v. White Industries at 234-236.

[31] Also see Preston Banking Co. v. William Allsup & Sons [1895] 1 Ch 141.

[32] See, for example, Grassby v. The Queen [1989] HCA 45; (1989) 168 C.L.R. 1 at 15-17 per Dawson, J.

[34] [1995] VicRp 30; [1995] 1 V.R. 464 at 466-467.

[35] See Para 42.04.15 of Williams Civil Procedure and the cases there cited.

[36] (1798) 1 Bos.P.250; [1798] EngR 123; 126 E.R. 887.

[38] [1999] VSCA 175.

[39] [1998] FCA 806; (1998) 156 A.L.R. 169 at 237.