IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 139 of 1995 ) GENERAL DIVISION ) ROBERT WILLIAM HARRISS Applicant NAVETRON PTY LIMITED Second Applicant FLUID ENERGY SYSTEMS PTY LIMITED Respondent Coram:Whitlam J Place: Sydney Date: 31 July 1995 REASONS FOR JUDGMENT (Ex Tempore) By notice of motion filed in court this morning the applicants seek the following orders: "1. A new hearing date be assigned to these proceedings, with expedition. 2. The Applicants be granted leave to approach the Registrar forthwith to obtain a new expedited hearing date. 3. Pursuant to Section 10 of the Federal Proceedings (Costs) Act, 1981 that the Applicants be granted a Costs Certificate stating "that in the opinion of the Court it would be appropriate for the Commonwealth Attorney-General to authorise payment under the Federal Proceedings (Costs) Act 1981 to the Applicants in respect of such part as the Attorney General considers appropriate of any costs incurred by the Applicants in relation to these proceedings." Section 10 of the Federal Proceedings (Costs) Act 1981 ("the Act") provides: " (1) This section applies to the High Court, the Federal Court, the Family Court and a court of a Territory. (2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings. (3) Subject to this Act, where: (a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and (b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings; the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings. (4) The certificate that may be granted under sub-section (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings. (5) A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court." The jurisdiction conferred by the Act may be exercised in chambers (s 12 of the Act), but this application has been heard ex parte in open court. The evidence in support of the motion is an affidavit made by David Ford Sekel, a solicitor employed by the applicants' solicitor. The procedural history of this matter may be shortly described. It was commenced on 9 March 1995. Directions were initially given on 23 March by Beaumont J, who ordered that the proceeding be expedited and fixed a timetable of preparatory steps for trial. On 20 April there was a further directions hearing before Einfeld J, who revised the timetable and, importantly for the purposes of the present application, specially fixed the trial of the proceeding for one week to commence before him today. On 3 July a direction was issued from the chambers of Einfeld J as to the papers to be prepared for trial and to be made available by way of Judge's Copy Documents. The same day the solicitor, who had been acting for the respondent, filed a notice of ceasing to act. Mr J.G. Beale, a director of the respondent, then applied by notice of motion for leave to appear for the respondent. The motion was fixed for 21 July, when Beaumont J adjourned the hearing of the motion to 25 July. On that date Beaumont J made orders giving Mr Beale leave to inspect documents produced on subpoena and adjourning his motion to be heard by Einfeld J today. The events which prompt the present application then occurred on the morning of Friday, 28 July. Mr Sekel was telephoned by the Sydney Executive Assistant to the Chief Justice. She informed Mr Sekel that the trial would not proceed this week as no judge was available to hear the matter. Naturally, as one would expect, the applicants were extremely disappointed and, no doubt, greatly inconvenienced by this development. The application for a costs certificate is pressed under both subs (2) and subs (3) of s 10 of the Act. These provisions could overlap. The explanatory memorandum relating to the Bill containing them said that subs (2) was directed to a situation "where proceedings have been rendered abortive by the inability of the presiding Judge or Magistrate to continue or by his death", and that subs (3) was concerned with a case "where proceedings have been discontinued and a new hearing ordered through no fault of that party". Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106 was a case very nearly on all fours with the present situation. Its holding is conveniently summarized in Re Palmdale Insurance Ltd (1994) 122 ACTR 33 by Higgins J (at 35): "In Coulson v Gosford Meats Pty Ltd ... Gray J applied s 10(3) to a situation in which a matter, specially fixed to proceed, did not get on because of the unavailability of a judge to hear it. The matter was relisted for directions at a later date. His Honour considered that the hearing of the matter could, in those circumstances, be regarded as having been "discontinued"." In Coulson the parties were only informed on the morning of the date fixed for trial that no judge was available to hear the matter. I will come back to this case. First, Mr Neil of Queens Counsel, who appears for the applicants, presses their application in terms of subs(2). He relies in particular on a peculiar aspect of the orders made in this matter, namely that at the directions hearing on 20 April Einfeld J fixed the trial specifically for hearing today before him. The fact that his Honour nominated himself as the trial judge is a fairly unusual circumstance and not one that obtains in the normal course of events where matters are fixed for trial, either at a callover in the case of long matters or administratively within the registry in the case of other matters. That is a factor upon which the applicants not unnaturally rely. In addition, the shape and direction of the proceedings have been particularly affected, not simply by the directions given at directions hearings in court, but by the fact that on 3 July Einfeld J issued the direction from his chambers to the parties about the matters that were to be attended to by way of preparation for trial. The provisions of subs (2) are quite specific. They require that proceedings be rendered abortive by reason that the person before whom the proceedings are being conducted dies, resigns, etc. or otherwise becomes unable to continue with or to give judgment in the proceedings. The question is then, first of all, whether Einfeld J could be said to be a person before whom proceedings are being conducted. In my opinion, it cannot be the case that the proceedings are regarded as being conducted by Einfeld J simply by the terms of the order that he made on 20 April this year. What subs (2) envisages is that it is the very proceedings which are being conducted which should be rendered abortive. So, for instance, if unusually someone was stricken in the course of a directions hearing so that he or she could not continue with that hearing, then it may be said that that proceeding was being "conducted" by that judicial officer so that he or she was prevented from continuing with or giving judgment in the proceedings. Proceedings are not being "conducted" before a judge simply because he or she has given directions in the matter under O 10 of the Federal Court Rules. Only the relevant directions hearing is conducted before the judge. The position is not altered by the fact that Einfeld J fixed the trial before himself. Indeed, the matter has since been "conducted" on two occasions before Beaumont J. In addition, there is another difficulty which would confront the applicants in coming within the circumstances contemplated by subs (2). The judicial officer must be so affected that he or she is unable to continue with or give judgment in the proceedings. Notwithstanding the message from the Sydney Executive Assistant to the effect that there was no judge available to hear the trial this week, one could not infer from that information that Einfeld J would be unable to continue with or give judgment in the proceedings. This only matters of course, if contrary to the view that I have already expressed, the proceedings were regarded as being conducted by Einfeld J. I turn now to subs (3). What par (a) requires are two things: that the hearing be discontinued and a new hearing ordered. Both elements must be present, and the new hearing must be ordered as a consequence of the discontinuance of the earlier hearing. Therefore, there is an inquiry to be made whether a hearing has commenced. Both Gray J in Coulson (at 107) and Higgins J in Palmdale (at 36) acknowledged in terms that in each of those cases the hearing had not really commenced. And, with respect, I would agree with that. What Higgins J said (at 37) about the object of the Act may be so. But s 10(3)(a) requires, in my opinion, a finding that a "new hearing" is due and that description necessarily involves the proposition that there had been some kind of earlier hearing. The view was evidently taken in a matter of Lindner (referred to in Palmdale at 35) that a hearing had commenced where a matter was in the list on the day fixed for hearing and counsel had done no more than announce their appearances. With great respect, I could not share the view that that involved the hearing of what is, relevantly for present purposes, a trial. In any event, a difficulty in the present case which confronts the applicants in a formal sense is that there has been no similar listing today of the proceedings. I do not think that matters much. As Mr Neil points out the matter was dealt with administratively in the normal way in this court. (However, it may be that on Friday, 28 July there was a "premature adjournment" of the type contemplated by Higgins J at 37). Nonetheless, it seems to me that the view expressed by Muirhead J as to what is involved in the expression "discontinuance" is to be preferred: Re Morris; Morris v Maroundas (1986) 66 ALR 699. I am unable to discern in the state of the present case, and I think it would be unrealistic to do so, that there has in fact been any hearing of what is here relevantly a trial, which has been discontinued so as to require a new hearing to be ordered. The fact is there never has been such a hearing. In all circumstances then, I am not of the view that it is open to me to make an order for the issue of the costs certificate. I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam Associate: Date: 31 July 1995 Counsel for the applicants: M.J. Neil QC and J.B. Maston Solicitors for the applicants: Blessington Judd Date of hearing: 31 July 1995