mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1
Outcome: cited
Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'. 38 In my view, those cases are distinguishable, on the basis that the application by a party for a costs order against a legal practitioner is 'in the nature of a principal cause of action pending between them': Hall v Nominal Defendant above, at 443 per Windeyer J; Luck , above, at [4]. This is not so in the case of a subpoena dispute. 39 The party seeking a costs order against a non-party legal practitioner has a grievance against the legal practitioner. The allegation is that the legal practitioner is guilty of misconduct or default, which has caused loss or damage to the party or is about to do so, for which the party seeks a remedy that the law provides. These considerations seem to me to attract the description 'principal cause of action', in the sense used in Hall v Nominal Defendant and Luck (see [6] above). A subpoena dispute is different. There is no antecedent and underlying wrongdoing, or loss or damage, and no consequential seeking of a remedy that the law provides. Rather, the dispute is entirely procedural, concerning, as it does, the invoking of the subpoena procedure by a party against a stranger.
Case: Re Bradford, Thursby and Farish (1883) 15 QBD 635
Outcome: discussed
Since Re Bradford, Thursby and Farish (1883) 15 QBD 635 (' Bradford '), it has been consistently held that the 'costs only' rule did not catch an order that a party's legal practitioner pay costs. In that case, the rule was found in s 49 of the Judicature Act 1873 (UK) ('Judicature Act'). The order was made against a solicitor on the basis that he had made an application to the Court without his client's authority. The larger expression in s 49 was actually 'as to costs only, which by law are left to the discretion of the Court'. There was no provision comparable to O 62 r 9(1) of the FC Rules. The Court of Appeal held that it was not within the discretion of the primary Judge to 'punish' the solicitor unless he had been guilty of 'some misconduct or negligence', and that an appeal should lie as of right against such a finding. 12 The 'final or interlocutory' issue did not arise. In fact there was no requirement for the obtaining of leave to appeal from an interlocutory order (r 57 in a Schedule to the Judicature Act provided that no appeal from an interlocutory order should be brought after the expiration of 21 days except by special leave of the Court of Appeal, and that no other appeal should be brought after the expiration of one year). 13 By the time of Thompson v Fraser [1986] 1 WLR 17, there was a 'costs only' rule in s 18(1)(f) of the Supreme Court Act 1981 (UK) (the larger expression was 'relating only to costs which are by law left to the court or tribunal'). The Court of Appeal held, without referring to Bradford , that an order that a solicitor pay costs lay outside the 'costs only' rule, and that the solicitor had a right of appeal. 17 The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1). 27 In relation to the 'costs only' rule found in s 60(1)(e), the Chief Justice cited Re Bradford and Re Hardwick , and said that a claim under O 66 r 5(1) was founded on 'the misconduct of the solicitor'. In this way, he said, Re Hardwick was applicable. Macteldir's claim against the Solicitor and the Barrister, was based on O 62 r 9(1) of the FC Rules which also refers to 'misconduct'.
Case: Thompson v Fraser [1986] 1 WLR 17
Outcome: discussed
By the time of Thompson v Fraser [1986] 1 WLR 17, there was a 'costs only' rule in s 18(1)(f) of the Supreme Court Act 1981 (UK) (the larger expression was 'relating only to costs which are by law left to the court or tribunal'). The Court of Appeal held, without referring to Bradford , that an order that a solicitor pay costs lay outside the 'costs only' rule, and that the solicitor had a right of appeal. 17 The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1).
Case: In Re Hardwick (1883) 12 QBD 148
Outcome: cited
The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1). 27 In relation to the 'costs only' rule found in s 60(1)(e), the Chief Justice cited Re Bradford and Re Hardwick , and said that a claim under O 66 r 5(1) was founded on 'the misconduct of the solicitor'. In this way, he said, Re Hardwick was applicable. Macteldir's claim against the Solicitor and the Barrister, was based on O 62 r 9(1) of the FC Rules which also refers to 'misconduct'.
Case: De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544
Outcome: cited
It is unnecessary and irrelevant to distinguish, in the present context, between a court that admits persons to practise as solicitors or barristers or both, and has an inherent disciplinary jurisdiction over persons so admitted as its officers, on the one hand, and a statutory court such as this Court on the other hand. In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, a case that pre-dated O 62 r 9(1) of the FC Rules in its present form, French J held that s 43 alone empowered the court to make a costs order against a solicitor. His Honour said that the Court's power to do so was to be seen as part of a wider power under the section to make a costs order against non-parties generally, and referred to Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 (' Aiden ') and Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 ( 'Knight' ). In those cases, orders were made against non-parties other than legal practitioners under the general provisions conferring power to order costs (in Aiden , s 51(1) of the Supreme Court Act 1981 (UK); and in Knight , s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules of the Supreme Court of Queensland). A rule such as O 62 r 9(1) does not reduce the power to order costs conferred otherwise.
Case: Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965
Outcome: cited
It is unnecessary and irrelevant to distinguish, in the present context, between a court that admits persons to practise as solicitors or barristers or both, and has an inherent disciplinary jurisdiction over persons so admitted as its officers, on the one hand, and a statutory court such as this Court on the other hand. In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, a case that pre-dated O 62 r 9(1) of the FC Rules in its present form, French J held that s 43 alone empowered the court to make a costs order against a solicitor. His Honour said that the Court's power to do so was to be seen as part of a wider power under the section to make a costs order against non-parties generally, and referred to Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 (' Aiden ') and Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 ( 'Knight' ). In those cases, orders were made against non-parties other than legal practitioners under the general provisions conferring power to order costs (in Aiden , s 51(1) of the Supreme Court Act 1981 (UK); and in Knight , s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules of the Supreme Court of Queensland). A rule such as O 62 r 9(1) does not reduce the power to order costs conferred otherwise.
Case: Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178
Outcome: cited
It is unnecessary and irrelevant to distinguish, in the present context, between a court that admits persons to practise as solicitors or barristers or both, and has an inherent disciplinary jurisdiction over persons so admitted as its officers, on the one hand, and a statutory court such as this Court on the other hand. In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, a case that pre-dated O 62 r 9(1) of the FC Rules in its present form, French J held that s 43 alone empowered the court to make a costs order against a solicitor. His Honour said that the Court's power to do so was to be seen as part of a wider power under the section to make a costs order against non-parties generally, and referred to Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 (' Aiden ') and Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 ( 'Knight' ). In those cases, orders were made against non-parties other than legal practitioners under the general provisions conferring power to order costs (in Aiden , s 51(1) of the Supreme Court Act 1981 (UK); and in Knight , s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules of the Supreme Court of Queensland). A rule such as O 62 r 9(1) does not reduce the power to order costs conferred otherwise. 19 In In Re Land and Property Trust Co Plc [1991] 1 WLR 601, a costs order was made, not against legal practitioners, but against a company's directors. The Court's power to make the order was said to reside in the general statutory provision placing costs within the discretion of the court. The provision was s 51(1) of the Supreme Court Act 1981 (UK). That provision contained additional words which are not in s 43 of the FCA Act, namely, 'and the court shall have full power to determine by whom and to what extent the costs are to be paid'. However, nothing turns on this. The additional words were not present in the Queensland provisions that were considered by the High Court in Knight v FP Special Assets Ltd , above.
Case: In Re Land and Property Trust Co Plc [1991] 1 WLR 601
Outcome: referred to
In In Re Land and Property Trust Co Plc [1991] 1 WLR 601, a costs order was made, not against legal practitioners, but against a company's directors. The Court's power to make the order was said to reside in the general statutory provision placing costs within the discretion of the court. The provision was s 51(1) of the Supreme Court Act 1981 (UK). That provision contained additional words which are not in s 43 of the FCA Act, namely, 'and the court shall have full power to determine by whom and to what extent the costs are to be paid'. However, nothing turns on this. The additional words were not present in the Queensland provisions that were considered by the High Court in Knight v FP Special Assets Ltd , above. 20 The Court of Appeal, in In Re Land and Property Trust Co Plc , held that s 18(1)(f) of the Supreme Court Act 1981 (UK) did not stand in the way of the directors exercising a right of appeal. Nicholls LJ observed (at 604-5): 'It would indeed be remarkable if a "stranger" to proceedings could be ordered to pay the costs of a party to those proceedings and have no right of appeal against that order in any circumstances unless the judge who made the order saw fit to give leave to appeal.' 21 Similarly, it is difficult to accept that if Macteldir had obtained an order for costs against the Solicitor and the Barrister upon a finding against them of misconduct or default under O 62 r 9(1) of FC Rules, they would not have a right of appeal without leave.
Case: Wilkinson v Kenny [1993] 1 WLR 963
Outcome: distinguished
The last English case to which I was referred, Wilkinson v Kenny [1993] 1 WLR 963, is distinguishable. It concerned, not the order that the defendant's solicitors pay certain costs to the plaintiffs, but that they pay four-fifths of the plaintiffs' costs of the application for that order. The Court of Appeal held that the latter order fell within the 'costs only' rule.
Case: Michael v Freehill Hollingdale &amp; Page (1990) 3 WAR 223
Outcome: followed
I turn now to the three Australian cases to which I was referred. The first in time is Michael v Freehill Hollingdale &amp; Page (1990) 3 WAR 223. Dr Michael was ordered to pay the costs of Monitronix Ltd ('Monitronix') which had been represented by solicitors ('Freehills'). He applied unsuccessfully for an order that Freehills indemnify him. His application for the order against Freehills was made under O 66 r 5(1) of the Rules of the Supreme Court 1971 (WA) which was comparable to the English Ord 62 r 8(1), and therefore to O 66 r 9(1) of the FC Rules. Section 60(1)(e) of the Supreme Court Act 1935 (WA) was a 'costs only' rule similar to s 18(1)(f) of the Supreme Court Act 1981 (UK) discussed above, while s 60(1)(f) of the Western Australian Act was a 'no appeal from interlocutory orders without leave' provision, similar to s 18(1)(h) of the English Act (and to s 24(1A) of the FCA Act). 24 The statutory setting was therefore similar to that in the present case except for the absence of a 'costs only' rule in the FCA Act. 25 On the appeal, Malcolm CJ and Seaman J delivered independent judgments. Franklyn J agreed with both of them. 26 Malcolm CJ likened Dr Michael's claim against Freehills to a third party proceeding in which an unsuccessful party in the principal proceeding seeks contribution or indemnity from a third party in respect of his liability. The Chief Justice said (at 228): 'As between Dr Michael and Freehills the former's aim for an indemnity was a principal cause and the order of Master Ng finally disposed of the matter between them subject to an appeal.'
Case: Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353
Outcome: referred to
Macteldir relies on Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353. In the Victorian Court of Appeal in that case, Charles and Callaway JJA agreed with Batt JA, who held that the Victorian 'costs only' rule did not apply to an appeal from an order for costs that had been made against a party's solicitors. The word 'only' did not appear in the Victorian provision, which was s 17A(1)(b) of the Supreme Court Act 1986 (Vic), but Batt JA said (at 379) that this did not render the course of authority to which I have referred inapplicable. Accordingly, the solicitors were entitled to appeal without leave. 33 His Honour also referred to the 'disciplinary jurisdiction of the court', but it is plain that he was referring to para (1) of r 63.23 of the Supreme Court Rules (Vic) Ch I, which was generally similar to O 62 r 9 of the FC Rules. His Honour did not use the word 'inherent'. 34 Again, apparently it did not occur to anyone to suggest that the solicitors needed leave to appeal by reason of s 17A(4)(b) and the costs order's being interlocutory.
Case: Wentworth v Rogers [1999] NSWCA 403
Outcome: distinguished
The Solicitor and the Barrister relied on Wentworth v Rogers [1999] NSWCA 403. The New South Wales Court of Appeal had before it a summons seeking orders setting aside, relevantly, an order made by Sperling J. The relevant order was one dismissing Ms Wentworth's application for an order that Dr Rogers's counsel and solicitors personally pay, on an indemnity basis, certain costs incurred by Ms Wentworth. The Court stated (at [2]): 'The matters in question in this application, dealing as they do with the costs of the interlocutory proceedings before Sperling J, are accordingly also interlocutory. Leave to appeal is thus required. The summons of 11 September 1997 should therefore be treated as an application for leave to appeal. That matter was discussed during the argument and, subject to one qualification, that is the way the Court said that it would approach it.' So far as the judgment reveals, the present issue was not debated and none of the cases mentioned above are referred to in the judgment. 36 I do not regard Wentworth v Rogers as deciding the present question.
Case: Brouwer v Titan Corporation Ltd (1997) 73 FCR 241
Outcome: distinguished
The Solicitor and the Barrister rely on authorities to the effect that an order made resolving a dispute between the issuer of a subpoena and a stranger to the proceeding to whom the subpoena is issued is classified as interlocutory; see, for example, Brouwer v Titan Corporation Ltd (1997) 73 FCR 241; Hudson v Branir Pty Ltd (2005) 15 NTLR 35.
Case: Hudson v Branir Pty Ltd (2005) 15 NTLR 35
Outcome: distinguished
The Solicitor and the Barrister rely on authorities to the effect that an order made resolving a dispute between the issuer of a subpoena and a stranger to the proceeding to whom the subpoena is issued is classified as interlocutory; see, for example, Brouwer v Titan Corporation Ltd (1997) 73 FCR 241; Hudson v Branir Pty Ltd (2005) 15 NTLR 35.
Case: Ex parte Bucknell [1936] HCA 67 ; (1936) 56 CLR 221
Outcome: followed
The order of dismissal, following a hearing on the merits and the giving of comprehensive reasons for judgment, had the practical effect of finally determining the rights of the parties (Macteldir and the legal practitioners) in respect of the one and only matter of dispute between them, namely, Macteldir's claim against the Solicitor and the Barrister under O 62 r 9 of the FC Rules. The Court is the more ready to grant leave to appeal in such circumstances. In Ex parte Bucknell [1936] HCA 67 ; (1936) 56 CLR 221 (' Bucknell ') the High Court stated in relation to a judgment for either party on a demurrer (at 226): 'Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.' 43 Macteldir's delay from the expiry of the seven day time limit on 9 November 2005 and 23 November 2005 is explained in an affidavit of Mr Petrovski. On the day on which Allsop J delivered judgment (2 November 2005) there was a short conference on the question of whether there should be an appeal, and a further conference on 14 November 2005. Throughout the period from 2 to 14 November 2005, Mr Petrovski was discussing with Macteldir the question of the costs of an appeal. During that period, he sought orally the advice of counsel as to the prospects of success of an appeal. It was some time after the seven day period expired that he was advised by counsel, Ms Preston, that leave to appeal might be required. Mr Petrovski then took steps to file both a notice of appeal and a notice of motion seeking leave to appeal on 23 November 2005, the last day of the 21-day period for bringing an appeal as of right. Mr Petrovski states in his affidavit made on 27 March 2006: 'The delay in filing the Notice of Motion was due to a genuine view in the week following Allsop J's judgment that leave to appeal was not required. After further consideration it was determined that the client's position should be protected by filing a notice of motion seeking leave.' Clearly, Mr Petrovski and counsel advising him can hardly be blamed for having initially thought that leave to appeal was not required a view which is in accord with the conclusion reached by me above. 44 Allsop J's reasons for judgment are, with respect, comprehensive and detailed. The grounds of appeal are expressed in 25 paragraphs, although they can be grouped. The questions raised by the grounds of appeal are obviously important to Macteldir. Applying the 'low threshold' test suggested in Bucknell , I should grant leave 'almost as of course'. 45 Having regard to the matters mentioned above, in particular, the fact that the order of dismissal has the practical effect of disposing finally of Macteldir's claim under O 62 r 9, I would grant leave to appeal if it were required. 46 Macteldir has been proved correct in its contention throughout that the order of dismissal of its motion in the primary proceeding was final and that leave to appeal was not required.
Case: Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: considered
question of whether there was political motivation behind the incidents referred to by the appellant was considered and rejected by the Tribunal. In my opinion McInnis FM was correct in stating that the appellant is seeking to re-agitate facts considered by the Tribunal. Further, the Tribunal considered each of the relevant considerations as a matter of law that were put before it by the appellant: Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510. In the circumstances, having considered the submission of 4 October 2006 of the appellant, which is annexure A, there is nothing in those submissions which indicate any error by the Tribunal. In my view, the second Tribunal decision does not evince any jurisdictional error. For the first time it was alleged by the appellant in his written submission of 6 October 2006, which is annexure B, and orally before me, that he did not receive a fair trial because of bias of the Tribunal. In reliance upon this allegation reference was made to a letter that was mentioned in the first Tribunal decision in relation to the health of the appellant's wife. Relevantly, the Tribunal made the following observation in its first decision: The applicant wife brought to hearing a letter from a GP stating that she could not be "questioned under pressure situation (sic) as it could make her anxiety level high, resulting (sic) her diabetes worse or make her depressed. In view of the above statement, provided only at hearing, and therefore unable to be confirmed with another doctor in this timeframe, the applicant was asked very few questions. She gave evidence that she had witnessed the attack in 1994, but could not recognise the people. She also said anonymous phone calls had occurred. She thought that this was because of her husband's involvement as chef for the President. In relation to the second Tribunal decision, it appears that the applicant wife was present at the hearing but did not give evidence. Before me there was some dispute about that but the record seems clear. In any event, the passage that is relied upon does not, in itself, suggest any bias on the part of the Tribunal particularly, whether it be the first Tribunal or the second Tribunal. But, relevantly, of course, it should only relate to the first Tribunal decision. In any event, there is no basis upon which I could find bias on the part of the second Tribunal.