Wentworth v Rogers

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40962/98 CLD 19228/82 HANDLEY JA FITZGERALD JA

1 THE COURT: On 7 September 1999 this Court, as presently constituted, dismissed the claimant's summons for leave to appeal from a decision of Hulme J of 5 November 1998. By consent the summons had been determined in Chambers on the papers without a hearing. 2 On 9 September the claimant filed a notice of motion seeking orders that the summons be heard in open Court, that the decision of 7 September be set aside and other relief. The claimant also asked that Handley JA disqualify himself from the further hearing of this matter. The claimant's affidavit of 9 September dealt principally with the delay in the delivery of the earlier judgment and the question of the disqualification of Handley JA. The notice of motion was heard by the Court, as presently constituted, on 27 September. At the outset Handley JA announced that he did not intend to disqualify himself. The opponent, although notified, elected not to appear and the matter proceeded ex parte. 3 The Court heard oral argument from the claimant in person before and after the luncheon adjournment but because of other matters in its list was unable to complete the hearing that day. The further hearing was adjourned to a date to be fixed, and the claimant was directed to file further written submissions within two weeks, limited to references in decisions of the Court of Appeal or in transcript of argument in the Court since 5 October 1994 dealing with the effect of the Court's orders made on 5 May 1995, and their relationship with the orders of the Court made on 6 March 1987. 4 The claimant lodged further written submissions on 5, 9 and 31 October and 9 November comprising 19 pages, with 54 pages of supporting material, 8 pages, 3 pages and 3 pages respectively. These submissions extended beyond the leave granted on 29 September and appeared (para 124 5 October 1999) to envisage that there would be no further oral hearing. 5 Reference was made in those submissions to transcript and judgments in earlier proceedings, including the reasons for judgment of Sully J, on the question of costs (24 June 1994), the transcript of argument before this Court on 17 August 1994 (34 pages), the judgment of 12 September 1994, the transcript of argument before this Court on 5 October 1994 (38 pages), the judgment of 5 May 1995, the judgment of Hulme J of 5 November 1998, the judgment of this Court of 7 September 1999, the transcript of argument before this Court on 27 September 1999 (22 pages), and the transcript of argument before the High Court on 3 October 1997. 6 Reference was made to that material because the claimant has submitted that Handley JA and other members of the Court, and members of the High Court, had previously expressed views as to the effect of this Court's orders of 5 May 1995 which were inconsistent with this Court's reasons of 7 September 1999. 7 The claimant relied in particular on the statement made by Handley JA during argument on 17 August 1994 (pp 15-16): "Handley JA: It occurs to me that until such time as Mr Rogers makes an election as to discontinuing that malicious prosecution action or to bring it on for trial, we have an outstanding question of costs of the first trial insofar as it was a trial of a malicious prosecution cross-action … costs of the retrial up until the point of time Sully J ordered a separate trial, and the question of senior and junior counsel at the first trial is wrapped up with the question of the malicious prosecution limb of the first trial. My present impression therefore is that malicious prosecution 1 and 2, senior counsel 1 and 2, the appeal on interest are all outstanding questions and the general cost of the first trial is another outstanding question". 8 The claimant gets some support from some of those remarks although they were said to be the Judge's "present impression", but the concluding statement "… the general cost of the first trial is another outstanding question" tends the other way. 9 The Court as then constituted heard further argument after those observations, both on 17 August and on 5 October, and on the latter day Priestley JA said (p 10) in relation to order 2, the order for costs made by Sully J on 24 June 1994: "Order 2 really raises two separate questions. One is whether we should order that your costs be greater than half in relation to Sully J's order. The other raises the question of the first trial's costs and I think we are tentatively of the view that before the order of the Court that the costs of the first trial abide the result of the second trial can be implemented, both aspects of what comprised the first trial must be completed. One is completed in the necessary sense, and the other one, in the way I mentioned before in my opinion, is alive, and that is the malicious prosecution claim. So that claim needs to be brought to an end, as indeed you recognised in your first request in your notice of motion". 10 The order for costs made by Sully J on 24 June 1994 was: "(2) I order the defendant to pay one-half of the plaintiff 's costs as assessed or taxed". 11 The Court as then constituted gave judgment on 5 May 1995 dealing with the claimant's appeal against the costs order, order 2, of Sully J. Brownie AJA said (pp5-6): "Two further matters were raised, as to costs. First, it seems to have been overlooked by all concerned, when the costs question was argued before Sully J, that the second trial was a trial only of Ms Wentworth's claim, and not a trial of the cross-claim, and that the order of the Court of Appeal of 1987, that the costs of the first trial abide the result of the second trial, referred to a second trial of both claims. The order of Sully J therefore needs to be amended so that it is limited to the costs of Ms Wentworth's claim, as distinct from the cross-claim. The costs of the cross-claim will be a matter for the Common Law division, but in general, and on the material now before us, I see no reason why Ms Wentworth ought not to recover the whole of her costs in relation to the cross-claim". 12 Handley JA said at p 1 that the other members of the Court had disagreed on only one point "… that relating to the proper order for the costs of the proceedings heard by Sully J in June 1994". Significantly, for the present purposes, Priestley JA said at 14: "My opinion therefore is that the appropriate orders in the appeal are those proposed by Brownie AJA together with a further order to follow proposed order (a) to the effect that the defendant pay the plaintiff the whole of the amount of her costs of the trial before Sully J". 13 The costs order of Sully J gave the claimant half her costs of the action which would include the costs of the second trial. When this Court gave judgment on 5 May 1995 it was well aware of the costs order made by the Court on 6 March 1987 and did not purport to vary that order. Sully J of course had no power to do that and did not purport to do so. 14 The result of the order of Sully J, as varied by this Court when read, as it must be, with the existing order of this Court of 6 March 1987, is to give the claimant the general costs of her action from its commencement, and the costs of the second trial, but not the costs of the first trial, or any part of the costs of the first trial. This was the view of Hulme J who mentioned, by way of example, that the order, as varied, would entitle the claimant to half the costs of drawing the statement of claim in 1982. 15 Reference has also been made to the transcript of argument in the High Court on 3 October 1997 but we do not consider that any of the observations of their Honours during argument are inconsistent with the views we have expressed. 16 There is some ambiguity in the orders of this Court of 5 May 1995 but they are not to be construed in a vacuum. They must be construed in the light of surrounding circumstances known to the Court and the parties and in particular the order of 6 March 1987. If there is any residual ambiguity reference can also be made to the Court's reasons for judgment and to the statement of Priestley JA, speaking for all members of the Court, which has already been referred to. 17 In Somodaj v Australian Iron & Steel Limited (1963) 109 CLR 285, at 298-9, Kitto, Taylor and Menzies JJ said: "… the finding which the respondent says gives rise to an estoppel … is couched in what may be said to be equivocal language … In these circumstances it is permissible to look at the reasons of the learned member of the Commission … for the purpose of seeing what was actually decided". 18 In Rogers v The Queen (1994) 181 CLR 251, 263 Brennan J said: "But a Court, in ascertaining whether a finding has been made on which an estoppel is raised is entitled to look not only at the record … but also at any material that shows what issues were raised and decided". 19 Those were both res judicata cases and that issue does not arise here. However the passages cited dealt with the preliminary question of determining what was actually decided in the earlier case, and that question does arise in the present proceedings. 20 Nothing was said during the further argument, after Priestley JA made the statement referred to, which indicated that any member of the Court had changed his view. The Court delivered its reserved judgment on 5 May 1995. Priestley JA, who was in the minority, would have made an order which was limited in terms to the second trial, but it would have carried the general costs of the action. Handley JA's statement was to the same effect. There is nothing in the reasons of the members of the Court which suggest that any of them had come to a different conclusion from that expressed by Priestley JA during argument on 5 October 1994, or which support the claimant's view that the orders made on 5 May 1995 conferred on her any entitlement, at that stage, to any part of the costs of the first trial. 21 The claimant also relied upon statements made in transcript after 5 October 1994. The statement made by Handley JA on 20 February 1998 (p 178) which the claimant relies upon does not assist her because after reference to the effect of the order of the Court in March 1987 the Judge continued "… assuming that Miss Wentworth is entitled to the costs of the first trial". His statement on 23 March (p 19) is entirely consistent with the views expressed in this Court's judgment of 7 September 1999. His statements in the transcript of 21 October 1998 merely reflect the existing dispute at that time as to the combined effect of the costs orders, and the Judge's view (p 73) that this was a question, in the first instance, for the costs assessor. His Honour expressed no opinion on the merits of the dispute. 22 The other transcript which has been drawn to our attention does not call for any detailed comment. There is nothing there, properly and fairly understood, which is contrary to our decision of 7 September 1999. Much of the material to which we were referred was directed to a different issue. This was the claim on behalf of Mr Rogers that the Court should not have made any order as to the costs of the second trial until the cross-claim by Mr Rogers for malicious prosecution had been disposed of. 23 It is necessary to keep a number of matters in mind: (a) Irrespective of judicial statements in the course of argument and (obiter) in reasons for judgment over the lengthy period of this litigation, the critical order is a formal order of this Court more than 13 years ago which plainly provided for the costs of the first trial of the claimant's claim against the opponent and the opponent's cross-claim (held between 25 November and 20 December 1985) "to abide the result of the second trial"; (b) The Court's order proceeded on the basis that "the result of the second trial" would not be known until the claimant's claim against the opponent and the opponent's cross-claim against the claimant were re-tried and determined (or otherwise finally decided); (c) The claimant's proposed appeal would seek an order that she receive the costs of the first trial of her claim although the opponent's cross-claim has not been re-tried and "the result of the second trial" is unknown; and (d) The order in respect of which the claimant seeks leave to appeal does not finally decide any matter related to the costs of the first trial adversely to the claimant. 24 The claimant's summons for leave to appeal also related to Hulme J's refusal to certify for two counsel in respect of certain interlocutory applications. No ground has been shown which would justify re-opening our earlier decision on that part of the matter 25 Accordingly we confirm our decision of 7 September 1999 and the claimant's motion of 9 September will be dismissed.

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