Supreme Court New South Wales Medium Neutral Citation: Spencer v Coshott [2022] NSWSC 610 Hearing dates: 17 November 2021 Date of orders: 17 May 2022 Decision date: 17 May 2022 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court Orders: (1) The defendants notice of motion filed 23 March 2021 is dismissed. (2) The defendant is to pay the plaintiff's costs. Catchwords: CIVIL PROCEDURE – Notice of motion seeking to set aside Judgment – Whether registration of certificates of costs assessors apply to the Taxation Officer of the High Court – Whether Judgment was entered Regularly – Notice of motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) s 133 Judiciary Act 1903 (Cth) ss 44, 77M Legal Profession Uniform Law Application Act 2014 (NSW) Pt 7 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) rr 29.7(1), 36.15, 36.16 Cases Cited: Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; 90 ALJR 370 Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors [2017] HCA 39; 260 CLR 340 Category: Procedural rulings Parties: Keith Spencer (Plaintiff) Ronald Coshott (Defendant) Representation: Counsel: J. Johnson (Plaintiff – Ceased to act before 31 March 2022) P. Gledson (Plaintiff) N. Simone (Defendant – Ceased to act before 31 March 2022) Solicitors: Arch Law (Australia) Pty Ltd (Plaintiff) File Number(s): 2021/74683 Publication restriction: Nil Judgment 1. HER HONOUR: This matter involves a notion of motion seeking to set aside a judgment for payment of legal costs. 2. By notice of motion filed 23 March 2021, originally in relation to proceedings 2021/3618 but now treated as being in relation to proceedings 2021/74683 the plaintiff relevantly seeks orders that: 1. The judgment/s entered in these proceedings by the Deputy Registrar be set aside. 2. Any writ or other enforcement issued on those judgments be set aside. 1. The plaintiff is Keith Spencer. The defendant is Ronald Coshott. The plaintiff relies upon the affidavit of Keith Spencer filed 8 July 2021. The defendant relies upon three affidavits of Robert Coshott, the plaintiff's brother, (9 March 2021, 28 May 2021) and the affidavit of Alan Segal, Ronald Coshott's solicitor, dated 17 May 2021. On 14 December 2021, Mr Segal gave evidence and was cross examined. 2. On 17 November 2021, this matter was stood over part heard to the 14 December 2021. Mr Ronald Coshott was to be made available to be cross-examined. However, he did not appear on that date. The matter was again adjourned to 31 March 2022 to allow the plaintiff to obtain a report of a neurologist as to whether he was competent to give evidence. On 30 March 2022 at 12:44pm, Mr Robert Coshott emailed my associate and stated: "Please convey my apologies to the Court as I will not be attending tomorrow due to personal reasons. No further evidence or submissions are relied upon by Ronald Coshott. I cannot assist with an estimate of hearing time." 1. At 1.48pm my associate sent an email to the parties advising them that the matter will proceed in Mr Robert Coshott's absence. 2. At the hearing on 31 March 2022, Mr Gledson of Counsel appeared for the plaintiff. As foreshadowed, there was no appearance on behalf of the defendant. Mr Gledson advised that on 26 March 2022, the writ of execution on the defendants property expired. Hence there was no utility in marking the order sought in paragraph (2) of the defendant's notice of motion. That leaves paragraph (2) of the notice of motion where the defendant seeks that the judgment entered in these proceedings be set aside. 3. At the outset of the hearing, Counsel for the plaintiff sought to have the notice of motion dismissed due to the non-appearance of the defendant by relying upon Uniform Civil Procedure Rules ("UCPR") 29.7(1). It reads: 29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court-- (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. (3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of-- (a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and (b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs. (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2). 1. In the exercise of my discretion, pursuant to UCPR 29.7, I declined to dismiss the notice of motion as it had been part heard before me. Evidence and submissions had already been presented and relied upon by the parties. 2. The defendant sought to set aside the judgment on the basis that it relied upon the inherent jurisdiction and/or alternatively relied upon the UCPR 36.15 and 36.16 which relevantly read: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if-- (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or … Background 1. On 23 November 2020, Nettle J in the High Court proceedings in Coshott v Spencer (S182/2017 and S4/2018) made the followings orders (Ex A, 92): 1. The matter of the claim of the first respondent, the plaintiff here, pursuant to s 77M of the Judiciary Act 1903 (Cth) for remedies for enforcement of: 1. the judgment of the High Court of Australia given on 10 May 2018 and the two certificates of taxation of costs issued on 29 April 2019 in the amount of $35,222.26 in proceedings S182 of 2017 and in the amount of $106,995.50 in proceedings S4 of 2018; and 2. the judgment of the High Court of Australia given on 11 September 2019 and the Joint certificate of taxation in both proceedings in the amount of $12,699.60 issued on 8 May 2020 be remitted to the Supreme Court of New South Wales, Sydney Registry. 1. The matter is to be dealt with in the Supreme Court of New South Wales as if the steps already taken in this Court had been taken in that Court. 2. The Registrar of the High Court forwarded to the proper officer of the Supreme Court of New South Wales photocopies of the following documents that were filed in this Court: 1. the judgment and order of the High Court of Australia dated 10 May 2018; 2. the two certificates of taxation issued on 29 April 2019 in respect of the costs of $35,222.26 and $106,995.50; 3. the judgment and order of the High Court of Australia dated 11 September 2019; 4. the joint certificate of taxation issued on 8 May 2020 in respect of the costs of $12,699.60; 5. the summons filed by the first respondent on 30 September 2020; and 6. the affidavit of Keith Robert Spencer sworn on 30 September 2020. 1. In the proceedings Spencer v Coshott 2021/74683 in this court, the plaintiff sought registration of a certificate of taxation of costs in the sum of $173,663.30 2. On 17 March 2021, this Court entered the following judgment/order (Ex A, 112). It is as follows: "REGISTRATION/FILING OF CERTIFCATE OF ORDER COURT DETAILS Court Supreme Court of New south Wales Division Common Law Division Registry Sydney Case Number 2021/74683 Court Supreme Court of New South Wales TITLE OF PROCEEDINGS Plaintiff/Judgment Creditor Keith Robert Spencer Defendant/Judgment Debtor Ronald Michael Coshott … DETAILS OF JUDGMENT/ORDER A copy or certificate of the orders are attached. Original amount of judgment/orders: $154,917.36 Payments made or credits accrued since judgment/order made: Nil Interest accrued since judgment/order made : $18,745.94 Registration filing fee Interest rating (if other than prescribed rate in UCPR sch 5) Total amount to be enforced as at date of registration: $173,663.30" 1. UCPR 36.11(3) reads: "36.11 Entry of judgments and orders (cf SCR Part 41, rule 11) (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. … 1. Also on 17 March 2021, this court issued a judgment in the same terms (Ex A, 119): "TERMS OF JUDGMENT/ORDER Judgment: Ronald Michael Coshott, First Defendant is to pay Keith Robert Spencer, First Plaintiff the sum of Claim amount: $173663.30 Interest claimed: $0.00 Filing fees: $0.00 Services fees: $0.00 Solicitors fees: $0.00 Other costs: $0.00 TOTAL: $173663.30" 1. The plaintiff submitted that the judgment was entered regularly and relied upon ss 44 and 77M of the Judiciary Act. They relevantly read: 44 Remittal of matters by High Court to other courts (1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject‑matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted. (2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory. … 77M Enforcement of judgments (1) Subject to the Rules of Court, a person in whose favour a judgment of the High Court is given is entitled to the same remedies for the enforcement of the judgment in a State or Territory, by execution or otherwise, against the person, or against the property of the person, against whom the judgment is given, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given. (2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enforcement of judgments of the High Court. The defendant's submissions 1. The defendant relied upon two sets of submissions. Most of the content of the defendant's first submissions are no longer relevant as they address the topic of the writ. That writ has now expired. 2. In the defendant's latter submissions dated 2 March 2022, he argued that the provisions of the UCPR that relate to the registration of certificates of costs assessors do not apply to the Taxation Officer of the High court. 3. The defendant agree that the High Court undoubtedly has power under s 44(1) of the Judiciary Act to order remitter to another court of the matter of the enforcement of a costs order made on an application for special leave to appeal. 4. An order for costs made in its exercise takes effect as a "judgment" of the Court. As a judgment of the Court, such an order for costs attracts the operation of s 77M(1) of the Judiciary Act. 5. A claim by a party to an application for special leave to appeal in whose favour a costs order has been made to exercise the entitlement conferred by s 77M(1) gives rise to a "matter" in which original jurisdiction may be conferred on the High Court under s 76(ii) of the Constitution. 6. The defendant referred to Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors [2017] HCA 39, where at [8] Gageler J sought to explain his reasoning in Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3. Here, His Honour explained that remitter to the Supreme Court of a State or to the Federal Court of the subject-matter of an application for remedies for enforcement of a judgment of the High Court neither enhances nor diminishes nor otherwise alters the rights or obligations of the parties and can ordinarily be expected to result in procedural efficiencies. Those considerations combine to recommend remitter as the appropriate exercise of the High Court's discretion in the ordinary course. 7. The defendant submits that an order for costs made in the High Court takes effect as a "judgment" of the High Court and can be enforced in the High Court. However, the High Court will usually remit the enforcement of its costs orders to the Federal Court of Australia or a State Supreme Court under s 44(1) of the Judiciary Act. This is particularly so where enforcement of the order is likely to be contested. Remittal of a matter to another Court "neither enhances nor diminishes nor otherwise alters the rights or obligations of the parties", so that it does not invest the Court to which the matter is remitted with any additional jurisdiction where none existed before. Absent an order remitting the enforcement of a costs order to another Court, a person in whose favour a costs order has been made by the High Court can enforce it as a debt. 8. The defendant asserts that s 133 of the Civil Procedure Act 2005 (NSW) requires that a judgment be entered "in accordance with the uniform rules". While the UCPR permits the registration of a certificate of a costs assessor under the NSW legislation, they make no provision for the entry of a certificate of a High Court taxing officer as a judgment of the Court. Section 133 cannot apply because it is not possible to enter such a certificate as a judgment "in accordance with the uniform rules". UCPR 36.11, of which the plaintiff's submissions refer at [11], also does not apply for the same reasons. 9. The Costs Certificates issued pursuant to the High Court are not "costs assessors certificates" within the meaning of UCPR 36.13(1)(a) because r 1.2 of and the dictionary to the UCPR provide "costs assessor's certificate" means a certificate issued under Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). 10. The entry of judgment on a Certificate of Determination is not a judicial act. It is a ministerial act: see Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [42]. 11. The defendant submitted that the Chief Clerk at Common Law is not a judicial officer of the Supreme Court. He or she has no power to do any judicial act. Likewise, a Deputy Registrar is not a judicial officer and has no power save such as may be delegated to him or her. The entry of judgment on a Certificate of Taxation issued by the Registrar of the High Court is not a ministerial act given to a deputy registrar under the Civil Procedure Act or the UCPR. It follows that the entry of judgment on the Certificates of Taxation was invalid and there is no valid judgment. It further follows that the issuing of writs based on invalid judgments is also invalid and the writs should be set aside. 12. A ministerial act is not part of the inherent jurisdiction of the Supreme Court and that the process constitutes an abuse of process. The plaintiff's submissions 1. The plaintiff submitted that where a judgment arises from the filing of orders made in the High Court of Australia which have been referred to the Supreme Court of New South Wales by order of a judge of that court, there is no basis upon which it could be suggested that such orders, which take effect upon filing, have been made or entered against good faith: see UCPR 36.15(1). 2. While the plaintiff accepted that the orders were made in the absence of the defendant, it is contended that they were orders originally made in the High Court of Australia which had not been set aside and absent some other disentitling conduct, there is no power of the Supreme Court of New South Wales to set aside those orders. 3. The plaintiff submitted that various other heads of relief are sought in [7]-[9] of the submissions of the defendant filed 12 November 2021 which relate to relief which is not identified in the Notice of Motion. With regards to this, the plaintiff submitted that no evidence has been identified that shows that the entry of the orders consequential upon referral from the High Court of Australia constituted an abuse of process of the court nor any submission made as to how it is that the Service and Execution of Process Act 1992 (Cth) has any application to the present proceeding. Resolution 1. I agree that the registration provisions of Uniform Civil Procedure Rules that apply to a costs assessors decision do not apply here. Order (2) made by Nettle J on 23 November 2020 stipulates that the High Court matter is to be dealt with by the Supreme Court of New South Wales as if the steps already taken in the High Court had been taken in the Supreme Court. UCPR 36.11 provides that any judgment or order of the Court is to be entered. The judgement is entered by force of the High Court orders. The certificate of taxation issued in the High Court in its terms apply here. The defendant has not provided any urgent reasons as to why the Service and Execution of Process Act apply here. Nor has it argued why the registration of the judgment is a ministerial act or an abuse of process. The judgment was entered regularly. The defendants notice of motion filed 23 March 2021 should be dismissed. Costs 1. Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs. The Court orders: 1. The defendants notice of motion filed 23 March 2021 is dismissed. 2. The defendant is to pay the plaintiff's costs. ********* Amendments 17 May 2022 - Date of orders amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2022