Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: applied
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'. 28 In relation to s 60(1)(f), his Honour referred to the test for distinguishing between final and interlocutory judgments described by Windeyer J in Hall v Nominal Defendant , above, at 443, and held that Master Ng's order of dismissal finally disposed of the matter between Dr Michael and Freehills, subject only to any appeal. 29 Seaman J also saw no obstacle in the 'costs only' rule. In dealing with the point, however, his Honour referred to Dr Michael's application as having been made to the Court 'in its inherent disciplinary jurisdiction over practitioners' (at 233). His Honour then said that Dr Michael's claim against Freehills had 'concerned indemnity' and was not an order 'as to costs only'. 30 When his Honour then turned to the 'final/interlocutory' issue arising under s 60(1)(f), he again referred to the inherent jurisdiction of the Supreme Court of Western Australia over its officers, stating (at 233): 'In my opinion O 66, r 5 sets out one set of circumstances in which the inherent power of the court invested in it by s 16(1)(a) of the Supreme Court Act is to be exercised.' 31 With respect, I do not think it was necessary, as Malcolm CJ apparently did not think it was, to refer to the 'inherent' jurisdiction over practitioners. A rule of the kind found in the English Ord 62 r 8(1), the Western Australian O 66 r 5(1), and the Federal Court O 62 r 9(1) itself refers to 'misconduct'. The fact that O 62 r 9(1) of the FC Rules singles out legal practitioners and refers to their 'misconduct or default' suggests a disciplinary purpose, but it suffices for present purposes simply to see it as setting out particular circumstances in which the power invested in the court by s 43 of the FCA Act may be exercised. 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.