Windsor v Sydney Medical Service Co-operative Ltd

1. The motion, by notice dated 3 September 2009, be dismissed.
2. The applicant pay the respondent's costs of the motion as taxed or agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

AND: SYDNEY MEDICAL SERVICE CO-OPERATIVE LIMITED

Introduction 1 By this motion, by notice dated 3 September 2009, the applicant ('Dr Windsor') seeks the following orders: 1. That the orders made on 17 March 2008 be set aside. 2. That in place of the orders made on 17 March 2008 the notice of motion filed on 13 June 2007 ('the 2007 motion') be dismissed and the respondent ('SMS') pay Dr Windsor's costs of the 2007 motion. 3. That the certificate of taxation issued on 18 July 2008 ('Certificate of Taxation') be set aside. 4. That SMS pay $22,800.00 to Dr Windsor within 7 days of the Court's order, together with interest on $20,000.00 from 13 August 2008 and on $2,800.00 from 14 August 2008 at the rate specified in O 35 r 8 of the Federal Court Rules ('the Rules'). 5. That SMS pay Dr Windsor's costs on an indemnity basis of and incidental to: (i) The taxation of the costs and payment of $22,800.00 by Dr Windsor to SMS; and (ii) this motion.

Background 2 The background is not in dispute. 3 On 28 February 2007, Dr Windsor filed an application and statement of claim in this Court for damages for breach of contract and for contravention of s 52 of the Trade Practices Act 1974 (Cth) ('the TPA'). 4 On 13 June 2007, SMS filed notice of the 2007 motion seeking orders pursuant to O 11 r 16 of the Rules that the statement of claim be struck out, such further or other order as the Court saw fit, and costs. SMS contended that there were two fundamental deficiencies in the case pleaded by Dr Windsor: (1) that Dr Windsor did not have a cause of action against SMS in contract; and (2) that the claim advanced under the TPA was time barred. 5 On 17 March 2008, I delivered judgment on the 2007 motion (Windsor v Sydney Medical Service Cooperative Ltd [2008] FCA 348 ('the 2008 Judgment') and ordered that the statement of claim be struck out and Dr Windsor pay SMS's costs of the 2007 motion ('the Costs Order'). The Costs Order has not been entered. 6 On 11 April 2008, Dr Windsor's solicitors, Auslegal, wrote to SMS's solicitors, TressCox, stating that Dr Windsor had instructed Auslegal to amend the application and statement of claim and enclosed a copy of an amended application and statement of claim. The letter further stated that the pleadings had not closed as at 17 March 2008 and that Dr Windsor proposed to file an amended application and statement of claim under O 13 r 3(1) of the Rules. For reasons which remain unexplained, an amended statement of claim was not filed until 1 December 2008, over eight months later. 7 On 15 May 2008, SMS attempted to file a notice of motion to have a bill of costs in relation to the 2008 Judgment taxed forthwith. The notice was rejected by the Registry. 8 On 23 May 2008 SMS filed a bill of costs in relation to the 2008 Judgment. 9 On 27 May 2008, TressCox served the bill of costs referred to in [8] above, a certificate under O 62 r 40(2) of the Rules and a Notice to Practitioners issued under O 62 of the Rules. 10 On 18 July 2008, the Court issued a Certificate of Taxation for $22,800.00. 11 On 13 and 14 August 2008, respectively Dr Windsor's solicitor, Mr Relf of Auslegal, paid $20,000.00 of the Certificate of Taxation and then $2,800.00 into TressCox's trust account. 12 On 1 December 2008, Dr Windsor filed an amended statement of claim pursuant to O 13 r 3(1) of the Rules. 13 On 5 May 2009, SMS filed a notice of motion seeking, inter alia, summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ('the FCA Act')in relation to the amended statement of claim ('the 2009 motion'). 14 On 1 July 2009, I delivered judgment on the 2009 motion (Windsor v Sydney Medical Services Co-operative Ltd (No 2) [2009] FCA 704) ('the 2009 Judgment') and ordered that the 2009 motion be dismissed with costs. 15 On 25 August 2009, Auslegal wrote to Unsworth Legal, SMS's current solicitors, outlining the basis for the orders now sought in Dr Windsor's motion. Short minutes of order were enclosed with the letter to the effect of the orders now sought. Auslegal further stated that the letter would be relied on by Dr Windsor on an application for indemnity costs if the short minutes of order were not signed and a notice of motion seeking the orders was filed. 16 On 1 September 2009, Unsworth Legal replied to Auslegal's letter dated 25 August 2009 and stated that SMS did not agree to the proposed short minutes of order because: (1) SMS's costs of the 2007 motion were taxed on the basis that the matter had ended; and (2) in any event, Dr Windsor had not sought to appeal the orders made on the 2007 motion or object to SMS's application for assessment of costs. 17 Both of the matters set out in Unsworth Legal's letter of 1 September 2009 are reiterated in the evidence served by SMS in opposition to Dr Windsor's motion. A third matter raised is that the Court and SMS's solicitor, Mr Unsworth, were of the view that the matter had ended.

Whether the Orders Made on 17 March 2008 should be Set Aside

Dr Windsor's Submissions 18 Dr Windsor referred to O 35 r 7(1) of the Rules which provides: 'The Court may vary or set aside a judgment or order before it has been entered.' 19 Dr Windsor submitted that it is an established principle that the High Court may reopen a judgment where it has proceeded on a misapprehension of the facts or the law before the entry of the orders in question: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215; DJL v Central Authority (2000) 201 CLR 226 at 247 - 248. These principles have been applied to judgments and orders of this Court: Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at [18] - [21]; Australian Communications and Media Authority v Clarity1 Pty Ltd [2008] FCA 1449 at [40] - [42]. 20 Dr Windsor submitted that the reason why the orders made on 17 March 2008 should be set aside is because I misapprehended the law. Reference was made to [12] and [13] of the 2009 Judgment and to [34(2)] where I said: '(2) I applied impermissible criteria in deciding the 2007 notice of motion - clearly a strike-out application - rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above.' 21 Finally, Dr Windsor submitted that as I had effectively accepted that the orders of 17 March 2008 should not have been made, the orders that I would have made then, should be made now, namely, that the 2007 motion be dismissed and SMS pay Dr Windsor's costs of that motion. If those orders are made then it follows that the Certificate of Taxation cannot stand and should be set aside.

SMS's Submissions 22 At the forefront of SMS's submissions, in the face of what was clearly an application to strike out pleadings under O 11 r 16 of the Rules, but where evidence in addition to the statement of claim was placed before the Court during the course of the application, is that it would have been more appropriate if I had regarded the 2007 motion as having been made under O 20 r 5 of the Rules or s 31A(2) of the FCA Act; and that I would have taken that course had the point now relied upon been taken during the course of the application. I was referred to what was said by Northrop and Neaves JJ, with whom Beaumont J agreed, in Patton v Minister for Defence (1987) 13 FCR 339 at 341: 'The learned primary judge assumed that the application was made under O 11, r 16. However, his Honour did receive, and placed reliance upon, some material extraneous to the amended statement of claim and it may have been more appropriate to have regarded the motion as having been made under O 20, r 2 which, as appears, permits the court to receive evidence. Nothing, however, turns on this so far as the present appeal is concerned.' 23 According to SMS, if I had done this, it is clear from the 2009 Judgment at [21] that, on the evidence put before the Court in 2007, such an application would have succeeded. 24 SMS further submitted: (1) Dr Windsor failed to act promptly to appeal against the 2008 Judgment or to have it set aside and failed to take any objection when SMS incurred significant costs in reliance upon the 2008 Judgment and Costs Order. (2) Dr Windsor has provided no explanation for her failure to appeal against the 2008 Judgment or to make prompt application to set it aside. (3) Dr Windsor does not in fact genuinely seek to set aside the orders of 17 March 2008. The substantive orders made on that occasion were to strike out the statement of claim. Dr Windsor does not seek to reinstate the original statement of claim. Dr Windsor does not even seek to support the original statement of claim. (4) Dr Windsor does not seek to maintain the case relying upon alleged breach of the TPA pleaded in the original statement of claim. To that extent the 2008 Judgment was clearly correct. That alone would have warranted a costs order in favour of SMS. (5) Dr Windsor in fact merely seeks to set aside the Costs Order made on 17 March 2008 without any reconsideration of the substantive orders. As such, Dr Windsor's motion is an abuse of process. 25 SMS submitted that unexplained delay in prosecuting an application such as the present is in itself sufficient ground to refuse the relief sought (referring to Gledhill Enterprises v BP Australia (unreported, Federal Court of Australia, Whitlam J, 1 June 1993). 26 This proposition is reinforced in circumstances such as the present case where the other party (SMS) has been prejudiced by that delay. 27 In SMS's submission, the fact that Dr Windsor was aware that SMS was proceeding with the taxation of the costs and (at least through her solicitors) must have realised SMS was incurring costs in doing so, gives rise to an estoppel precluding Dr Windsor from disputing SMS's entitlement to do so on the principles laid down in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. 28 Adapting the words of Brennan J in Waltons Stores at 428 - 429: SMS assumed there was a valid costs order and that it was entitled to proceed to taxation; Dr Windsor, knowing that SMS is incurring detriment in reliance on the assumption, did nothing to deny the correctness of the assumption; SMS incurred costs in reliance upon the assumption; and SMS will suffer detriment in that those costs will be wasted if the assumption is not fulfilled. 29 Alternatively, if Dr Windsor is not strictly estopped from seeking to have the Costs Order set aside, the Court should nevertheless apply an analogous principle in declining to set the order aside.

Dr Windsor in Reply 30 Dr Windsor made the following submissions in reply.

SMS's Submission in [22] and [23] above 31 The only relief sought in the 2007 motion was an order pursuant to O 11 r 16 of the Rules that the statement of claim be struck out. SMS never sought any relief under O 20 r 2 of the Rules. This is not surprising in view of the concession of SMS's counsel on 19 June 2007: 'We don't necessarily suggest that there is no claim that could ever be seriously advanced, but the way in which the case is presently framed, it cannot proceed.' 32 SMS, having adduced irrelevant evidence on the 2007 motion, makes the surprising submission that it is prejudiced because, if Dr Windsor had objected to this evidence, it would have made a different application. Any prejudice suffered by SMS arose because of its own forensic decision. Dr Windsor is not responsible for SMS's failure to seek different relief in the 2007 motion.

SMS's Submissions in [24(1)] and [24(2)] above 33 Dr Windsor had the right to file an amended statement of claim following the 2008 Judgment because pleadings had not closed: O 13 r 3(1) of the Rules. There was no need for Dr Windsor to appeal against the 2008 Judgment or to seek to have it set aside because it did not prevent her from prosecuting this proceeding. So far as the Costs Order is concerned, Dr Windsor was protected by O 62 r 3(3) of the Rules. 34 Dr Windsor did notify SMS that she proposed to file an amended application and an amended statement of claim. The incurring of costs by SMS occurred because it failed to comply with O 62 r 3(3) of the Rules. Dr Windsor is not responsible for this failure of SMS. In the circumstances no explanation has been required from Dr Windsor as to her failure to appeal against the 2008 Judgment or to make a prompt application to have it set aside.

SMS's Submissions in [24(3)] - [24(5)] above 35 It was submitted that I had accepted that if I had confined myself to the terms of the pleadings, I would have dismissed the 2007 motion. 36 It does not matter that Dr Windsor does not now seek to reinstate or even support the statement of claim as she, in the circumstances where the pleadings had not closed, had the right to file an amended pleading. 37 To the extent that it may be necessary to consider the cause of action for contravention of s 52 of the TPA pleaded in the statement of claim, the principles about the suffering of loss under the TPA, where a representation is the subject of a contractual provision and the accrual of a cause of action under s 82(2) of the TPA, were incorrectly applied. Reference was made to what was said in the plurality judgment (Mason CJ, Dawson, Gaudron and McHugh JJ) concerning s 82(2) in Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 527. The cause of action did not accrue when Dr Windsor entered into the contract on 8 January 2001, contrary to what his Honour concluded. 38 There is no abuse of process because the orders made in the 2008 Judgment were erroneous, and Dr Windsor seeks to have them set aside.

SMS's Submissions in [25] above 39 Glenhill Enterprises does not support this submission. In that case the unexplained failure related to the hearing before Morling J on 9 March 1992. Whitlam J found that the applicant abandoned its claim in September 1991 and had demonstrated an 'unwillingness to co-operate with the Court'. The willingness of a third party to fund the litigation was not a sufficient reason for the Court to set aside the orders of Morling J. 40 No explanation for the delay of Dr Windsor in filing her notice of motion is required when it has arisen because of the failure of SMS to comply with O 62 r 3(3) of the Rules, and not any failure by Dr Windsor.

Whether estoppel can run against a statute 41 In Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290 at [35] - [53] and [59] - [60], Steytler P summarised the principles relating to waiver, election and estoppel, which included the following observations at [53] and [59]: '[53] It is true that, under the common law, there is a general principle that "an individual cannot waive a matter in which the public have an interest": … However, that principle is necessarily subject to the legislation concerned .... … [59] While delay, or standing by, might be an element of waiver ... this will ordinarily only be so where the delay is evidence of a deliberate choice (at least in the context of waiver in the form of an election) ... In Verwayen, the two Judges who decided that case upon the basis of waiver, Toohey and Gaudron JJ, both considered that a failure to raise a defence available to a defendant did not, of itself, amount to a waiver.' (Citations omitted.) 42 These principles were applied in Roberts v Australia and New Zealand Banking Group Limited [2006] 1 Qd R 482. de Jersey CJ at [20] said: '1t is well established that notions of estoppel and waiver do not run against a statute: if an entitlement to sue depends on compliance with statutorily prescribed conditions, non-compliance will not be excused because of what may otherwise conventionally amount to waiver or estoppel. …' (Citations omitted.)

The time for the taxation of costs of interlocutory proceedings 43 In Rafferty v Time 2000 West Pty Ltd (No 3) (2009) 257 ALR 503 at [20], Besanko J summarised the purposes of the general rule embodied in O 62 r 3(3) of the Rules in the following terms: 'The general rule, which is embodied in O 62 r 3(3), is that the costs of an interlocutory proceeding are not to be taxed until the principal proceeding is concluded or until further order. The general rule serves a number of purposes. First, it avoids multiple taxations in a proceeding. Second, it avoids the apparent unfairness which may arise where, at an early stage of a proceeding, a party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful. Finally, it prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties.' 44 The principle of waiver or estoppel cannot be relied upon by SMS. The entitlement of SMS to tax a bill of costs in respect of the Costs Order was dependent upon the Court otherwise ordering within O 62 r 3(3) of the Rules. SMS's failure to do so cannot be excused by any conduct of Dr Windsor. Dr Windsor could not waive this requirement. The necessity for the Court to otherwise order before SMS's entitlement to tax a bill of costs could arise, indicates that this is a matter in which the public has an interest. The avoidance of multiple taxations and the prevention of interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties are important aspects of the administration of justice. 45 If, contrary to Dr Windsor's submissions, she was able to waive the requirement in O 62 r 3(3) of the Rules otherwise ordering, then the Court should find that she did not waive this requirement. A deliberate choice by Dr Windsor to waive this requirement cannot be inferred from her conduct. All that happened was that Dr Windsor's solicitor, Mr Relf, in his email sent to SMS's solicitor, Ms Sorbara of TressCox, at 2.44 pm on 23 April 2008 advised that he was awaiting instructions. Otherwise, there was no response to the correspondence from SMS's lawyers or solicitors on 21, 22 and 27 May 2009. Further, there is no evidence that Dr Windsor knew of the terms of O 62 r 3 (3). 46 There is no analogous principle to estoppel or waiver whereby Dr Windsor is prevented from seeking to have the Costs Order set aside. No authority is cited for the analogous principle. Even if the Court were to find that there was an analogous principle, just as with estoppel and waiver, it would not run against statute.

Analysis and Conclusion 47 Following the 2008 Judgment, Dr Windsor exercised, albeit after some unexplained delay of more than eight months, her right to file an amended pleading because pleadings had not closed: O 13 r 3(3) of the Rules. There was, as she submitted, no need for her to appeal the 2008 Judgment or to seek to have it set aside because it did not prevent her from prosecuting this proceeding. 48 But having chosen that course, and having resisted, successfully, an attempt by SMS to: (1) enter summary judgment pursuant to s 31A(2) of the FCA Act; (2) dismiss the proceeding under O 20 r 5(1) of the Rules on the basis that it is an abuse of process; and (3) obtain an order striking out the amended statement of claim under O 11 r 16 of the Rules for failure to disclose a reasonable cause of action or, in the alternative, as being an abuse of process, it would only effectively replicate the relief she has already secured if the orders she now seeks, namely, to have the orders of 17 March 2008 set aside, were made. The making of such orders would do nothing to facilitate her further prosecution of the proceeding; and a declination to make them would in no way prejudice Dr Windsor's further prosecution of the proceeding. 49 In all these circumstances, I can see no utility in making the orders sought and decline to do so. 50 It follows that I also decline to make the orders sought in place of the orders made on 17 March 2008.

Whether the Certificate of Taxation should be Set Aside

Dr Windsor's Submissions 51 Dr Windsor referred to O 62 r 3(3) of the Rules which provides: 'An order for costs of an interlocutory proceeding shall not, unless the court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.' 52 Dr Windsor submitted that the order striking out the statement of claim was interlocutory, and did not finally determine the rights of the parties. The proceeding remained extant (2009 Judgment at [22] - [24], [60]). 53 Dr Windsor further submitted that as the Costs Order was made in an interlocutory proceeding, then pursuant to O 62 r 3(3) of the Rules, SMS was not entitled to have a bill of costs taxed as the principal proceeding was not concluded: Australian Competition and Consumer Commission v Chaste Corporation (No 2) (2003) 127 FCR 433 at [5] - [6]. 54 Consequently, Dr Windsor submitted that, even if the Court declined to set aside the orders of 17 March 2008, the Certificate of Taxation has been given in breach of the Rules. The taxing officer had no authority under O 62 r 3(3) to tax the bill of costs and by taxing it proceeded upon a wrong principle. In these circumstances, the Court, either pursuant to O 62 r 11 of the Rules or an implied power incidental to its jurisdiction, should set aide the Certificate of Taxation.

SMS's Submissions 55 SMS submitted that it is now apparent that the proceedings had not concluded at the time SMS made application for taxation of the costs of the 2007 motion. However, neither SMS nor its solicitors can be criticised in that respect. SMS's solicitors made an appropriate attempt to obtain orders which would have either enabled taxation prior to the conclusion of the proceeding or brought the proceeding to an end. They were unable to pursue that course and were reasonably led to believe the proceeding was in fact at an end. 56 Throughout the taxation process Dr Windsor did nothing to disabuse SMS of its belief. For the reasons outlined in [27] - [29] above, Dr Windsor is estopped from seeking to have the Certificate set aside or, alternatively, the Court should by analogy with the principles of estoppel decline to set the Certificate aside. 57 In SMS's submission, if the Costs Order is not to be disturbed it would be futile to set aside the Certificate of Taxation.

Dr Windsor in Reply 58 Dr Windsor made the following submissions in reply. 59 SMS failed to obtain an order of the Court pursuant to O 62 r 3(3) of the Rules. The fact that SMS sought to file a notice of motion seeking such an order does not excuse its failure to comply with this rule. 60 For the same reasons that Dr Windsor is not prevented from disputing SMS's entitlement to have the Costs Order taxed by application of the principle of estoppel or an analogous principle, Dr Windsor is not prevented from seeking to have the Certificate of Taxation set aside (refer to [39] - [44] above).

Analysis and Conclusion 61 Irrespective of the circumstances surrounding the decision of SMS to abandon its application for an order that its bill of costs for the 2007 motion be taxed forthwith, and accepting that those circumstances included the Registry of this Court rejecting its notice of motion seeking such an order, the fact remains that SMS had no entitlement to have the bill of costs taxed: O 62 r 3(3) of the Rules. 62 Nevertheless, it occurred and the costs quantified in the Certificate of Taxation have been paid. 63 The setting aside of the Certificate of Taxation does not, contrary to the submission of Dr Windsor (see [68] below), reverse or otherwise alter the legal basis for the payment of costs of the 2007 motion. That would only occur if the Costs Order was set aside and, for the reasons already given, I have declined to do that. 64 If I were of the view that the setting aside of the Certificate of Taxation would provide some basis upon which Dr Windsor's payments of SMS's costs of the 2007 motion as taxed could be reversed pending the conclusion of the principal proceeding, then I would be inclined to take that course but, for the reasons detailed at [78] to [81] below, I am not of that view. 65 In those circumstances, to set aside the Certificate of Taxation would be futile and I decline to do so.

If the Certificate of Taxation is Set Aside Whether the Amounts paid by Dr Windsor under the Certificate of Taxation should be Repaid.

Dr Windsor's Submissions 66 A party who has satisfied a judgment for the payment of money is entitled, on the reversal of the judgment, to repayment of the money paid (Commonwealth v McCormack (1984) 155 CLR 273 at 276) with interest (Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600 at 603 and 608). 67 This general principle applies irrespective of how the order is reversed: whether on appeal (Commonwealth v McCormack at 276); following judicial review (Production Spray Painting & Panel Beating Pty limited v Newnham (No 2) (1991) 27 NSWLR 659 at 661 - 662), or any other way in which an erroneous judgment is overturned (National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 593, 597), varied (Lee v Mallam (1910) 10 SR (NSW) 876), or set aside (Mason & Carter's Restitution Law in Australia, K Mason et al, 2008 at [707]). 68 The Certificate of Taxation is not an order of the Court until it is drawn up and entered in accordance with O 62 r 45(3) of the Rules. The Certificate of Taxation was not drawn up and entered. Thus, the setting aside of the Certificate of Taxation under O 62 r 11 of the Rules or the Court's implied power is analogous to the quashing of orders following judicial review (Production Spray Painting and Panel Beating Pty Ltd v Newnham (No 2) per Handley JA at 661 - 662). The setting aside of the Certificate of Taxation will reverse the legal basis for the payment of costs of the 2007 motion. 69 SMS's argument that both it and the Court believed that the matter had ended does not justify SMS proceeding to tax the costs of the 2007 motion. It confirms, rather, that both SMS and the Court acted contrary to O 62 r 3(3). Further, SMS's position that the proceedings had ended had no reasonable basis in view of: (a) the principle of law (accepted in the 2009 Judgment) that the Court's power to strike out is concerned only with the adequacy of pleadings; and (b) the fact that TressCox was informed by Auslegal on 14 April 2008 (that is, one calendar month before SMS filed the notice of motion to have a bill of costs taxed) that Dr Windsor was of the view that the pleadings were not closed as at 17 March 2008 and that Dr Windsor proposed to file an amended application and statement of claim under O 13 r 3(1). Despite being on notice of Dr Windsor's position that the proceeding had not concluded, SMS proceeded to have its bill of costs taxed. 70 Dr Windsor's failure to appeal or object to the taxation of the costs either under O 62 r 46(3)(c) or otherwise, does not alter the fact that the bill of costs was taxed contrary to O 62 r 3(3). This failure does not negate or compromise her entitlement to have the costs repaid upon the setting aside of the Certificate of Taxation. Further there was no necessity for Dr Windsor to appeal against the 2008 Judgment because there was an alternative procedure available under O 35 r 7(1) of the Rules to correct the error therein.

SMS's Submissions 71 Even if the Certificate were set aside there is no basis to order SMS to repay the moneys paid by Dr Windsor. 72 The authorities relating to restitution of moneys paid under a judgment that is set aside or overturned all deal with circumstances where the setting aside or overturning of the judgment removes the liability or underlying obligation in respect of which the moneys were paid. 73 If the Costs Order stands, the setting aside of the Certificate of Taxation will not affect Dr Windsor's liability to SMS in respect of the costs of the 2007 motion. The underlying obligation pursuant to which the payment was made will remain. There is no basis for ordering SMS to repay funds to which it will ultimately be entitled in any event. 74 Dr Windsor's submissions (at [69] above) are critical of SMS's conduct in proceeding to taxation of the costs of the 2007 motion. In SMS's submission, that criticism is unjustified in light of the sustained and unexplained silence of Dr Windsor and her solicitors from 23 April 2008 throughout the process of taxation. 75 Any credence which might have been warranted in respect of the statement made by Auslegal in the letter of 11 April 2008 that Dr Windsor proposed to file an amended statement of claim was completely eliminated by her solicitors' failure to respond in a substantive way to any subsequent correspondence.

Dr Windsor in Reply 76 Dr Windsor made the following submissions in reply. 77 If the Court declines to set aside the Costs Order, there is no futility in setting aside the Certificate of Taxation. As explained in Rafferty at [19], one of the purposes of O 62 r 3(3) of the Rules is to avoid 'the apparent unfairness which may arise where, at an early stage of a proceeding, a party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful'. Dr Windsor should not be deprived of her money when there can be no certainty that she will be ultimately unsuccessful in the proceeding, or that the balance of costs orders will be in favour of SMS. Already SMS is liable to pay Dr Windsor's costs of the 2009 motion.

Analysis and Conclusion 78 As indicated in [63] above, the setting aside of the Certificate of Taxation does not reverse the legal basis for the payment of costs of the 2007 motion. That basis remains unchanged in the absence of the Costs Order being set aside. 79 In my view, the principles of restitution canvassed by Mason P (with whom Beazley and Ipp JJA agreed) in Heydon v NRMA Ltd in relation to a party's right to restitution with respect to moneys paid under a judgment later set aside, together with interest thereon, and how that interest is calculated, are irrelevant. 80 Apart from setting a date upon which interest would commence to run (see O 62 r 45(6)), all the Certificate of Taxation did was to quantify the costs to be paid by Dr Windsor pursuant to the Costs Order. Equally, the parties could have agreed an amount but, in default of agreement, the Certificate of Taxation quantifies the amount. Had the parties agreed an amount and Dr Windsor had paid that amount, I can see no basis, absent the Costs Order being set aside, upon which SMS could be ordered to repay that amount to Dr Windsor. 81 So too, in the present case, even if the Certificate of Taxation is set aside, I can see no basis, absent the Costs Order being set aside, upon which SMS could be ordered to repay to Dr Windsor the amount of the costs of the 2007 motion as taxed. 82 This result may appear to be unfair to Dr Windsor; if it is, then that is a consequence of a failure on the part of the parties and their legal representatives to recognise and take issue with the irregularities that would be involved in taking the steps that were taken in sufficient time to prevent them being taken. On the other hand, justice may dictate the making of an order, if it be sought, that entitles Dr Windsor to have a bill of her costs of the 2009 motion taxed pursuant to O 62 r 3(3) of the Rules; but that would be for another occasion.

Conclusion 83 Dr Windsor's motion, by notice dated 3 September 2009, must be dismissed with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.