WENTWORTH v RARES; WENTWORTH v RARES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE JJA and Hope AJA 24, 25 June and 25, 26 July 1991, 20 December 1991 [1991] NSWCA 282 COSTS OF INCOMPETENT APPEAL — COSTS OF INTERLOCUTORY PROCEEDINGS IN APPEAL — APPLICATION FOR LEAVE TO APPEAL CA 340/86 — COSTS OF INCOMPETENT APPEAL — Appeal sought to be brought against dismissal of contempt charge — held (13/12/90) appeal incompetent — appellant seeks that respondent bear all costs because, being aware of incompetency point, did not seek dismissal of appeal on that ground — Supreme Court Rules Pt 51 r17A considered — held, Clarke JA dissenting, appellant to bear costs of appeal to 22 July 1987, no order for costs after that date. COSTS OF INTERLOCUTORY PROCEEDINGS IN APPEAL — appellant submits she should have orders for costs of all interlocutory proceedings — held, costs orders already made in interlocutory proceedings confirmed — where orders not made they should be subject to same orders as made in regard to appeal. Priestley JA Background. On 18 June 1986 Ms K Wentworth filed a notice of motion that Mr S Rares be punished for committing a contempt of court. On 23 July 1986 Waddell CJ in Eq dismissed the motion and ordered Ms Wentworth to pay Mr Rares' costs, such costs to "include all costs, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions [Mr Rares] will be completely indemnified by [Ms Wentworth] for his costs". Ms Wentworth sought to appeal from this decision. In the appeal books that were eventually prepared there is a notice of appeal CA 348/86 which the index identifies as dated 1 August 1986. The appeal books also contain an amended notice of appeal dated 7 October 1986. This document sought orders vacating the orders of Waddell CJ in Eq and that this court order that Mr Rares be punished for being in contempt of court. Also filed on 7 October 1986 was a notice of motion in CA 340/86 seeking that the judgment and orders of Waddell CJ in Eq be set aside. The notice of motion was heard on 20 October 1986. The court (Kirby P, Samuels and Priestley JJA) dismissed it as irregular and ordered Ms Wentworth to pay Mr Rares' costs. In reasons with which Samuels JA and I agreed) Kirby P remarked that "If Ms Wentworth wishes to challenge the proceedings before Waddell CJ in Eq she must do so by appeal or the initiation of fresh proceedings". The charge of contempt that Ms Wentworth had brought against Mr Rares arose from an incident before Hodgson J on 17 June 1986. He was hearing an interlocutory motion in proceedings in the Equity Division 5186/86 which Ms Wentworth, the plaintiff, was conducting on her own behalf and in which Mr Rares was appearing for Mr Rogers, the defendant. The nature and fate of the proceedings 5186/86 are summarised in para (8) on p 403 of Wentworth v Rogers (No 12) (1987) 9 NSWLR 400. 2 UNREPORTED JUDGMENTS The appeal CA 340/86 came on for hearing on 12 December 1990. Other related proceedings were also in the list for hearing on that day. The court raised the question whether an appeal lay from Waddell CJ in Eq's dismissal of the contempt charge. Argument on this question took up 12 December and part of the morning of 13 December. When the argument ended, the court held that there was no jurisdiction to entertain the appeal, for reasons then given. These were, in short, that the charge the appellant had brought against the respondent was criminal in nature and the court had no jurisdiction to entertain what was in substance an appeal against an acquittal on a criminal charge. (In the reasons that follow the point which the court decided is spoken of in terms both of jurisdiction and competence; if there is any difference it is not material to the present case.) The court did not on 13 December decide what order could or should be made about the costs of the appeal or about costs of interlocutory proceedings in the appeal. However, of the related proceedings also listed for 12 December, one was decided on 13 December. This was an application by the appellant for leave to appeal against the costs order made by Waddell CJ in Eq when he dismissed the appellant's contempt motion. The court, assuming in the appellant's favour (for this purpose) that it had jurisdiction to entertain the application, dismissed it, for reasons then given. The court then began to hear argument on the question of costs of the appeal and of what was to happen to the remaining matters in the list. Submissions on these matters were heard during the remainder of 13 December 1990, 24 and 25 June 1991 and 25 July 1991. Costs of and incidental to the appeal CA 340/86. Costs of the appeal. In regard to the costs of the appeal Ms Wentworth's primary submission was that as the court had held that there was no jurisdiction to entertain it, it followed that there could be no jurisdiction either to make costs orders in regard to it or any matters incidental to it. In my opinion this submission must fail. The court has power to decide whether or not it is competent to adjudicate upon issues brought before it. This power necessarily carries with it all the usual powers incidental to decision making by a court; the power to make an appropriate order, and the power to see that the appropriate consequences follow from that order; this includes the power to award costs of the litigation in the usual way and, if necessary, to bring about the eventual enforcement of any costs orders. The English Court of Appeal took substantially the same view in In re Bombay Civil Fund Act (1888) 40 Ch D 288; it was implicit in what was said by Walsh J in Ex parte Jospe; re Radovsky (1957) 74 WN (NSW) 156, and was acted upon by this court in Norris v Norris (1985) 1 NSWLR 472, at 473, 477. Ms Wentworth's next submission was that the court should protect her against any order for costs. This meant, as she developed the submission, that the court should award her the costs of the appeal including the costs of all interlocutory proceedings in the appeal. Not counting appearances before the Registrar, interlocutory matters had come before the court on more than ten occasions before 12 December 1990, sometimes very briefly and sometimes for argument of significant length. Sometimes costs were reserved, sometimes they were made costs in the appeal, sometimes particular orders were made deciding who should pay the costs of the day or the application and sometimes, so far as the records show, there was no reference to costs in the decision of the court. In the ordinary course, on the disposition of an appeal, the court would decide what should happen in regard to costs reserved in interlocutory proceedings and also what costs order should be made in regard to proceedings in respect of which URJ WENTWORTH v RARES; WENTWORTH v RARES (Priestley JA) 3 no order concerning costs had been made. If not dealt with specifically, such costs would be caught up by and dealt with by whatever order the court made for the costs of the appeal. In the ordinary course also, any specific orders for costs made in the course of interlocutory proceedings would stand undisturbed. Ms Wentworth argued however, in the present case, that in the instances where costs orders had been made against her in the interlocutory proceedings, they should be set aside and costs orders made in her favour. It has frequently happened, when an appellate court upon the coming on of an appeal for hearing has found the appeal incompetent, that costs have not been awarded to the respondent. This has usually happened in circumstances where the respondent has raised the incompetence of the appeal only at the hearing of the appeal, although it had been open to the respondent to do so at an earlier stage when it could have been argued and decided before all the expense of getting ready for a hearing of the full appeal had been incurred. In the absence of any rule dealing with such situations, there is no reason I know of why a court could not deal with costs in this way in the exercise of its usual costs powers. Some courts however have rules on the point. In the High Court, where arguments about competence frequently arose in the time when some appeals could be taken to the court as of right and some only by leave or special leave, a quite elaborate rule of court dealt with the situation: the former O.70 r8. That rule placed the obligation upon a respondent wishing to object to the competency of an appeal to do so within a limited time. The rule then provided for prompt hearing of the objection to competency in advance of the appeal. The rule also provided that if a respondent did not give the stipulated notice of objection but the appeal was afterwards dismissed by the court as incompetent, the respondent would not receive any costs of the appeal, unless upon special grounds, and might, in the court's discretion, be ordered to pay the appellant any costs of the appeal proving useless or unnecessary. The rules of this court also provide for the situation, but in a much more general way: Pt51 r17A. This rule says: "A respondent who seeks an order dismissing an appeal as incompetent may apply to the Court of Appeal for that order by motion on notice filed within fourteen days after service upon him of the notice of appeal or, on terms, at any time." Although r17A leaves matters much more at large than the former High Court Rule O.70 r8, it plainly enough puts a respondent intending to seek the dismissal of an appeal as incompetent upon notice that unless the application is made within fourteen days of service of the notice of appeal, the respondent will be at risk as to costs. A recent example of the operation of Pt51 r17A is Universal Tape Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd: unreported, 8 March 1991, Samuels, Meagher and Handley JJA. Upon the hearing of the appeal in that case the court came to the conclusion the appeal was incompetent. No objection had been taken to competency under rl17A. Samuels JA said: "The remaining question is one of costs. Ordinarily the proper procedure would be for a respondent faced with a notice of appeal which is incompetent or which seeks relief which the court has not power to afford, is to take out process to strike out the notice of appeal on that ground. That was not done here. Although, of course, the appellant ought to have known that the appeal was incompetent, the procedure to which I have referred necessarily assumes that some appellants will be unaware of the straitened nature of their rights, and it is 4 UNREPORTED JUDGMENTS for the respondent to draw to their attention, by approaching the court, the error into which they have fallen. Because that was not done here the cost of printing the appeal books was incurred, and it may be other costs as well, although, of course, if a motion to strike out the appeal had been filed, contested and determined the respondent would have taken and the appellant would have incurred the costs of that proceeding. The notice of appeal is not crystal clear, it seems to me, but it says enough, joined with the respondent's presumed knowledge of the litigation to which it was party, to indicate that the relief which it sought was beyond the power of the court to grant. It was a case, therefore, in my opinion, in which the respondent should have moved to strike out the appeal. Accordingly, I think that it would be unfair to require the appellant to pay the respondent's costs of the appeal. I would, therefore, propose that the appeal should be dismissed with no order for costs." The varying way in which matters of this kind can strike different minds is shown by the fact that Meagher JA disagreed with Samuels JA on this point. He thought that the fact that competency was challenged at the appeal did not make very much difference as the bulk of the costs had been incurred (presumably at the time when the notice of objection should have been filed within r17A). Handley JA agreed with Samuels JA. He said: "T agree with the orders proposed by Samuels JA. As a result of the failure by the respondent to this appeal to apply promptly to have the appeal dismissed as incompetent a period of approximately twenty-one months has elapsed since the decision of Judge Flannery during which this appeal has been pending and, as a result of today's decision, the matter which is in dispute between the parties is no closer to resolution than it was twenty-one months ago. Had the matters been promptly brought to a head by an application to strike out the appeal not only would the costs of preparing the appeal book been saved and perhaps other costs as well, but this long period of delay would also have been avoided. It seems to me in these circumstances appropriate for this court to make no order as to the costs of the present proceedings." The observations of Samuels and Handley JJA explain, I think, the matters relevant to the court's consideration of what costs order should be made in regard to an appeal either "incompetent" or seeking relief which, to use Samuels JA's words, "the court has not power to afford". The principal matter is the desirability of having the incompetency point decided as quickly as possible, in advance of consideration of the substance of the appeal, so that if the appeal is not competent, that position can be stated by the court with the least waste of the time of the parties and the court, and without unnecessary expense. A second matter affecting the eventual costs order flows from the fact that although, ideally, an appellant ought to know when an appeal is incompetent, there will be occasions when an appellant does not understand the position, or the position may be debatable; in such cases, if the respondent forms the view that the appeal is or may be incompetent, the respondent should, because of the importance of what I have called the principal matter, immediately draw the supposed incompetency to the court's attention. When the question is brought before the court for decision in the manner contemplated by r17A, the court will then be able to decide whether to determine the point in advance of the substantive hearing of the appeal, or as sometimes happens, when the point is a difficult one and its decision involves considering the substance of the appeal, to stand over its determination until the hearing of the appeal. What is the preferable URJ WENTWORTH v RARES; WENTWORTH v RARES (Priestley JA) 5 course to follow may vary from case to case. When it comes to consideration of the costs question, not only will the appellant's knowledge of the competency point be something to be taken into account, so also wm that of the respondent, and further, it may be necessary to consider the changing state of knowledge of each party in the period before the court decides to determine the point. The costs question in the present case is complicated by what happened in regard to the question of the competence of the appeal both when it came on for hearing, and in some of the interlocutory proceedings. As to the former, when the hearing of the appeal began on 12 December 1990, counsel for Mr Rares did not seek to have the appeal dismissed on the ground of incompetence. The court raised the question, and the respondent indicated that there were arguments to support the view that the appeal was not competent, but sought to make it clear that the respondent was not himself asking the court to dismiss the appeal on that basis. However, when the court indicated that it was considered desirable, if not essential, to decide before embarking on the merits of the appeal whether the court had jurisdiction to entertain it, counsel for the respondent put before the court a written note of the reasons why the appeal was not competent and elaborated upon that note in oral argument. The argument thus put was in substance the argument which the court accepted as correct and upon which the court held there was no jurisdiction to entertain the appeal. In the interlocutory proceedings there had at least twice in 1987 been incidental reference to the point of jurisdiction which was finally decided on 13 December 1990. These references did not lead to full argument, or to decision of the point, and the court does not appear to have noticed its possible importance; if correct, it was basic to the litigation. The court was probably assuming a full appeal would come on relatively quickly, and be within a small compass, in which case the unnecessary costs and waste of time would not have been of great magnitude. I doubt whether even the most pessimistic observer of the litigation, in April and July of 1987, when the point surfaced, would have predicted that interlocutory proceedings would multiply as they did, and the substantive hearing of the appeal would not start until December 1990. The first time the point of jurisdiction was mentioned, so far as I am aware, was on 6 April 1987. On that day two notices of motion were before a court comprising Hope JA and Samuels JA and me. One motion, by Mr Rares, in effect sought to speed the hearing of the appeal. The other, by Ms Wentworth, sought an adjournment of the appeal. In the event, Mr Rares' motion substantially succeeded and Ms Wentworth's was dismissed. The court's reasons were given by Hope JA, who said, (at p 3) "We might add that it will be submitted in the appeal that there is no appeal to this Court from an acquittal in contempt proceedings". Ihave been unable to recall or find any transcript reference indicating how the court had been informed of this intention of the respondent. So far as I know, no other comment was made about the jurisdiction point than the observation I have cited from Hope JA's reasons. No-one appears to have had r17A in mind. The second occasion when there was some reference to the jurisdiction point was on 22 July 1987. That day was the second day of argument, before a court comprised by Samuels, Mahoney and Clarke JJA, of a number of matters in which Ms Wentworth was involved. These matters were decided on 22 July, and reasons given. The matters were mainly motions in proceedings which, although related to the appeal CA 340/86, were distinct from it. Much the greater part of the two days of argument was on motions in these distinct matters. 6 UNREPORTED JUDGMENTS However, one of the proceedings disposed of on 22 July 1987 was a motion in the appeal CA 340/86. This was a motion by Ms Wentworth to stay taxation of the costs awarded against her by Waddell CJ in Eq in the proceedings against Mr Rares until her appeal in that matter was heard. Mr White, who appeared for Mr Rares, as he had on C April 1987, opposed the stay. His argument is recorded at p 67 of the transcript of the proceedings of 22 July 1987. Mr White submitted that one reason for refusing the stay was that the whole concept of the appeal was wrong; this was put on the basis that the court could not entertain an appeal from an acquittal on a criminal charge. He referred to Odvern Messel (1984) 155 CLR 21, a case very relevant to the point, and to another case which he described as one in the Full Court of the Federal Court concerning the Builders Labourers Federation. Of this case he said that it was authority for the proposition that the principle in Odvern applied to an acquittal from a charge of criminal contempt. When the full text of this submission is read, it appears that although the germ of it must have been in Mr White's mind on 6 April 1987, it was advanced even on 22 July 1987 still in an incomplete form; no citation was given for Odvern Messel for example, and Mr White said he did not then have available the name of or reference to the Federal Court decision. Nevertheless, the argument he then put was, in its main points, the argument upheld on 13 December last, that this court did not have jurisdiction to hear Ms Wentworth's appeal. The point then upheld was thus for practical purposes within the knowledge of Mr Rares' legal advisers on 22 July 1987. Equally, as Ms Wentworth was present listening to the argument, she was put on notice of the point. The court however on that occasion did not take it up. There is some indication that the court was under the impression that the appeal was against the special costs order that had been made by Waddell CJ in Eq, rather than the acquittal, (see p 68 of the transcript of 22 July 1987) but in any event the court during argument indicated that taxation of costs usually awaited the hearing of the appeal; no doubt it was in response to this indication that after the next adjournment Mr White stated that Mr Rares was prepared to undertake not to execute on any taxation certificate he might obtain until the determination of the appeal. It became unnecessary for the court to consider the argument on the stay motion any further, and it was not mentioned in the reasons for judgment on the matters in contest which were given later on 22 July 1987, except that at p 28 of those reasons the court ordered that "In the notice of motion filed in CA 340 of 1986 seeking a stay of taxation of costs, upon the opponent by his counsel undertaking to the Court that he will not execute upon any taxation certificate he may obtain pending determination of the appeal or further order of this Court we dismiss the motion and order that the costs be costs in the appeal". It seems from the transcript of the argument that the court did not have the authorities before it which were mentioned by Mr White. It is also apparent from the transcript of 22 July 1987 and the court's reasons given that day that the motion for a stay of taxation of costs filed in CA 340/86 was of very minor importance in comparison with the other matters being dealt with by the court and upon which by far the greater part of the court's time was spent. Ms Wentworth relied at one stage of her submissions in the present matters on what had been said by Kirby P on 20 October 1986 (see p 2 above). I do not think what then happened is of any help to her. There was no reference to the jurisdiction point which quite obviously was not in anyone's mind. Attention was focussed entirely on the irregular notice of motion which the court dismissed. In URJ WENTWORTH v RARES; WENTWORTH v RARES (Priestley JA) 7 the circumstances the reference to challenging the proceedings by appeal can not be taken as any kind of ruling that such an appeal would be competent. Ms Wentworth also argued, on the basis of what happened on 22 July 1987, that the court, in accepting the undertaking not to execute upon any taxation certificate, was acting on the footing that it had jurisdiction to hear the appeal from the dismissal of the contempt charge by Waddell CJ in Eq Upon my understanding of what occurred concerning the motion for a stay, it does not seem to me possible to say that the court was deciding there was jurisdiction to hear the appeal. The highest it can be put, in my opinion, is that the court was assuming for the moment, without examining, the availability of the appeal process to Ms Wentworth against the dismissal of the contempt charge. Indeed, I think this was the substance of the submission upon which Ms Wentworth principally relied. Her submission, in its most plausible form, was that what happened on 22 July 1987 in regard to CA 340/86 encouraged her to think the court would hear the appeal in the ordinary way. I think there is some force in this, notwithstanding that the true position was that nothing that happened on 22 July 1987 amounted to a decision on the argument raised by Mr White. Nothing then occurred precluding the respondent from later raising the point of jurisdiction, or if the respondent did not, preventing the court's later considering the point once the members of the court hearing the appeal realised its possible significance. The court could not confer jurisdiction upon itself in such a matter, whatever the parties might wish to be the case. But although this was the true position, the position from Ms Wentworth's point of view was that the court had accepted an undertaking pending determination of the appeal, the respondent had outlined an argument contending the court had no jurisdiction to hear the appeal and afterwards the respondent took no step to bring this argument before the court pursuant to r17A. In those circumstances, although a prudent litigant would no doubt have looked further into the claim raised by the respondent even when apparently not persisted in, it would not be unreasonable for the appellant to assume, after the court had accepted an undertaking from the respondent pending the appeal and when the respondent took no further step to raise the competency question, that she need not trouble further with it. Notwithstanding what I have just said, the matter is further complicated, in my opinion, by another consideration. Although Ms Wentworth was, at least to some extent, given reason by the respondent's conduct for thinking she need not concern herself with the competency point, nevertheless she was on notice of it. The further matter for consideration is that the point to which attention was called is one of a fundamental kind, not itself involving any very complex considerations. The only question involved in the point was whether any statute conferred upon the Court of Appeal the power to entertain what was in substance an appeal against an acquittal on a criminal matter, it being quite clear that in the absence of statutory authority the court had no power to do so. The court's opinion, when it became necessary to consider the point in December 1990, was that the answer was clear; no statute gave the court the necessary power. It may be that other minds might not see the matter as being as clear as this court thought it was. Granting that Ms Wentworth, had she considered the matter when it was raised by Mr White, may have formed the view that she should press on with the appeal and make submissions, as she subsequently did, to the contrary of the opinion reached by the court, nevertheless, I think that any properly advised 8 UNREPORTED JUDGMENTS litigant should have come to the conclusion that there was at least a risk of the appeal being incompetent and thus that to proceed with it might put that litigant at the risk of costs in the event of a holding of no jurisdiction. This risk of costs could have been appreciably lessened by applying to the court to resolve the matter. The court might not entertain such an application by an appellant, although I think that in a case where there was a real question of jurisdiction it would be likely to do so. If it did not, then the appellant would at least have done all possible to avoid unnecessary cost and this would have to be a factor the court would take into account in making costs orders if at a later stage it held it had no jurisdiction. Thus, in one sense, in my opinion, from the time Mr White sketched his valid argument (as it turned out) on 22 July 1987 both Ms Wentworth and Mr Rares were in much the same position as regards the risk of costs, if no step were taken to determine the question of jurisdiction at any early stage. This observation is subject to the qualification that, for the reasons I have already mentioned, Ms Wentworth was to some extent given reason by the conduct of the respondent for not taking the steps relating to jurisdiction which it would have been prudent for her to take. I doubt whether any costs order could be framed reflecting with complete accuracy all the nuances of the present case. However I have come to the conclusion that the fairest available order in the circumstances is that Ms Wentworth should be ordered to pay the costs of the appeal up to and including 22 July 1987 but that after that date no order should be made as to costs, leaving the parties to bear their own costs. I choose 22 July 1987 rather than 6 April 1987 as the appropriate date, because although it seems Mr White must have mentioned the point on behalf of the respondent on the earlier date, the materials are not sufficient to show that the respondent was at that stage fully in possession of the point; from what was said on 22 July 1987 however, I am satisfied that although the respondent was not then in a position to develop the point as fully as was done later, he and his advisers had undoubtedly grasped both it and its importance. Costs of interlocutory proceedings in the appeal. The interlocutory matters from CA 340/86 listed on 12 December 1990 were applications of various kinds, mostly by Ms Wentworth, but some by Mr Rares, which there was no point in pursuing, beyond deciding whether any costs orders should be made in them, once it was held there was no jurisdiction to hear the substantive appeal. The interlocutory proceedings undecided as at 12 December 1990 should therefore all be dismissed, leaving the question of appropriate costs orders the only thing to be decided concerning them. The further matters also still requiring consideration incidental to the appeal CA 340/86 are then the costs orders in the interlocutory proceedings decided prior to 12 December 1990. I have already described the variety of orders concerning costs made in those proceedings. The costs of interlocutory proceedings completed except that in them either no order for costs was made or orders were made having the effect that the costs of the particular proceeding would depend upon the costs order made in the appeal, would, in the ordinary course, be governed by the costs order in the appeal itself. Ms Wentworth however argued that the court had jurisdiction to make, and should make, costs orders in her favour in all the interlocutory proceedings, whether or not they had been completed, and whether or not provision had already been made for the costs of them. The court undoubtedly has such URJ WENTWORTH v RARES; WENTWORTH v RARES (Priestley JA) 9 jurisdiction in regard to orders made by single judges of the court, although the court would ordinarily only embark upon consideration of such applications if commenced by the proper procedures. Whether the court, by whatever route, has jurisdiction to change costs orders made in interlocutory proceedings by a court of three, otherwise than in the course of a substantive appeal, seems to me to be more doubtful. However, because I have a view adverse to Ms Wentworth whatever the powers of the court may be, it is unnecessary to see whether there is any justification for my doubt. Ms Wentworth's submission was that either the respondent should pay all her costs of the appeal including all interlocutory proceedings, or that she should not have to pay any costs of interlocutory proceedings. She addressed the court on all the costs orders that had been made adversely to her. Ordinarily the court does not interfere with costs orders, unless there has been an error of law or misuse of discretion going directly to the making of the order in question. I do not think that in any of the instances argued by Ms Wentworth she showed there had been any error of law or misuse of discretion. I would not in any event therefore change any of the orders that have been made. They should stand. In the interlocutory proceedings in which no orders were made I see no reason for departing from the usual practice which will result in those proceedings being governed by the general costs order I have already said should in my opinion be made in the appeal. Similarly with the interlocutory matters listed for 12 December 1990, which I have said should in my opinion be dismissed. In the interlocutory proceedings in which costs were reserved the fairest and simplest result seems to me to order them also to be governed by the order which I propose should be made for the costs of the appeal. I note that Ms Wentworth, as well as making general submissions, made numerous particular submissions which I have not recorded, in regard to all costs orders. In view of the general conclusions I have reached I see no point in explaining my opinion in greater detail than I have done. Matters distinct from CA 340/86 listed on 12 December 1990. The matters listed for hearing on 12 December 1990 that were not applications of one kind or another in CA 340/86 arose in Court of Appeal proceedings CA 40760/90 which were commenced by a single summons seeking leave to appeal from (1) a decision of Needham J given on 22 November 1990 and (2) a decision of Young J given on 1 November 1990. These were both interlocutory decisions in proceedings in the Equity Division 3862/90. Needham J's reasons for his decision give all the facts necessary for an understanding of how those proceedings came to be brought. Rather than re-state the facts I will treat Needham J's statement of them as incorporated in my own reasons, and for that purpose a copy of what Needham J said is annexed, without an addendum to it which is irrelevant for present purposes. Needham J's order. The order made by Needham J was that para 1-47 of the statement of claim in proceedings 3862/90 be struck out and the balance of the proceedings stayed until further order. He ordered Ms Wentworth to pay Mr Rares' costs. The stay was not final and was made on the basis of circumstances which will materially change if the orders I have proposed in the earlier part of these reasons, concerning CA 340/86, are made; all proceedings in this court in CA 340/86 will thus be at an end. In these circumstances there seems to me to be no utility at all in considering whether leave to appeal should be granted against an interlocutory order which may be the subject of an application at first instance for discharge or variation. The proper disposition of any such application 10 UNREPORTED JUDGMENTS would be a matter for the court at first instance in light of all the material circumstances at the time of the application. Young J's order. The decision of Young J against which leave to appeal was sought was also made in proceedings 3862/90. Young J refused to set aside a stay which was to expire at the end of the day in which he was asked to set it aside, and had also refused to direct the Registrar to enter judgment in the proceedings. Both of these decisions seem to me to be quite clearly ones in respect of which leave to appeal should not be given. In my opinion the summons for leave to appeal CA 40760/90 should be dismissed with costs. Alleged agreement re costs of CA 340/86. The annexed reasons of Needham J outline the circumstances giving rise to Ms Wentworth's claim that she and Mr Rares had reached binding agreement about all costs involved in CA 340/86, and what had happened in her efforts to enforce the alleged agreement. They show also that Ms Wentworth had decided not to adopt a procedure set on foot by Handley JA by which the dispute about the alleged agreement could be decided in the Court of Appeal within the proceedings CA 340/86. In these circumstances, this court, in dealing with the various costs questions in CA 340/86 could not, and did not, regard the alleged existence of the agreement as of any relevance to the costs orders that should be made. I do not understand Ms Wentworth to have pressed any argument to the contrary in the present proceedings. Any rights she may have pursuant to her claims can not be affected by the decisions of the court in the matters dealt with in these reasons. Proposed orders. The orders I propose are set out below. I do not think there are any proceedings falling under the first part of OC1, but propose the order in that form in case I have overlooked some proceeding. CA 340/86. A. Costs of the appeal: 1. Respondent's costs of the appeal up to and including 22 July 1987 to be paid by the appellant. 2. No order for costs of the appeal after 22 July 1987. B. Interlocutory proceedings listed for hearing on 12 December 1990: all such proceedings are dismissed. C. Costs of interlocutory proceedings in the appeal: 1. In the interlocutory proceedings dismissed under OB, any costs incurred up to and including 22 July 1987 by the respondent to be paid by the appellant; no order for costs incurred after 22 July 1987. 2. In those interlocutory proceedings in which costs orders were made, those orders are confirmed. 3. In those interlocutory proceedings in which costs orders were reserved or not made any costs incurred up to and including 22 July 1987 by the respondent to be paid by the appellant; no order for costs incurred after 22 July 1987. CA 40760/90. Summons for leave to appeal with costs. See Wentworth v Rares, Equity Court, 23:11:1990, Needham J. Clarke JA In CA 40760/90 I agree with Priestley JA that the summons for leave to appeal should be dismissed with costs. I take a different view, however, as to the order which should be made in matter CA 340/86. In my opinion the URJ WENTWORTH v RARES; WENTWORTH v RARES (Clarke JA) 11 appellant should be ordered to pay the respondent's costs of that appeal. In relation to those interlocutory proceedings in which costs orders had not been made prior to 12 December 1990 I am of opinion that each of the interlocutory proceedings should be dismissed with costs. The reasons which lead me to conclude that the appellant should pay the respondent's costs of the appeal can be shortly stated. Although costs are in the discretion of the court the prima facie rule is that costs follow the event (SCR Pt52 rll). The respondent was successful in the appeal and the question which is raised is whether there are reasons why some other order should be made as to the whole or any part of the costs. Priestley JA has concluded that another order should be made in the light of the failure (if I may call it that) of the respondent to make application for an order dismissing the appeal as incompetent pursuant to SCR 51 r17A. I would accept at once that the fact that no application was made under that rule is a relevant consideration in determining an appropriate costs order. It will be of particular importance where, as in Universal Tat)e Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd, (NSW Court of Appeal, 8 March 1991, unreported) the respondent does not draw to the appellant's attention the possibility that the appeal is incompetent. In this case the appellant was aware at an early stage that the respondent considered that the appeal was incompetent but before I enlarge on that statement it is desirable that I furnish some background. The respondent acted as counsel for the appellant's ex-husband, Mr Rogers, in proceedings in which he was involved against the appellant. She complained that he had lied to the court and denigrated her during the course of proceedings on 17 June 1986. She thereupon filed a notice of motion in which she charged the respondent with contempt of court. In his judgment dismissing the application Waddell J said: "The application now before the court cannot be regarded, in my opinion, as having any legitimate forensic purpose. The plaintiff made another application for contempt, namely, one against Mr Bartos, the defendant's solicitor, and that has already been dismissed by Cohen J. I have not seen his Honour's judgment. Some details of that matter are before me from which it appears that it was one which should be regarded as trivial and that the application did not have any proper forensic purpose... I think the time is rapidly approaching when the Attorney General might usefully consider making an application under s84 of the Supreme Court Act to have Ms Wentworth declared a vexatious litigant, at least in respect of contempt applications. The time of the court should not be taken up with such unjustifiable litigation." Because he held the view that the proceedings did not have any proper forensic purpose the learned trial judge made a costs order the effect of which was that, subject to questions of unreasonableness, the respondent be completely indemnified for his costs. Because this Court did not hear argument on the merits of the appeal it would not be appropriate for me to say any more than that the appellant's chances of success in the appeal appear to have been very slight. I find no reluctance, however, in agreeing with his Honour's statement that the complaint made by the appellant should have been regarded as trivial and as having served no proper forensic purpose. What occurred on 17 June 1986 might have been unfortunate, or regrettable, but it gave rise to no occasion for the waste of the court's time of which Waddell J spoke. 12 UNREPORTED JUDGMENTS If, as I believe, the original proceedings served no proper forensic purpose then there is no basis upon which it could be said that an appeal, and the additional waste of the court's time, could be regarded in any other light. During the argument the appellant informed the court that her purpose in appealing was to uphold the respect of the court. I find this suggestion impossible to accept in the light of the fact that the trial judge, who heard the evidence, did not consider that the court's respect had been impugned in the slightest by the respondent. The respondent is a respected member of the Bar who, on the occasion in question, was appearing for a litigant. For a member of the Bar to be charged with contempt arising out of his conduct in court is serious in the extreme. Although the judgment of Waddell J vindicated his denial of this serious charge his reputation and standing were placed in jeopardy, once more, by the appeal. If he had sought to secure the dismissal of the appeal on the grounds of its incompetence he would have been disadvantaged insofar as the judgment which cleared him of contempt had not been upheld on the merits. In this event, he may have suffered from a perception, which I find understandable, that his name had not been adequately cleared. I do not know whether it was his desire to have the Court of Appeal rule in his favour on the merits that led to his not making an application under r17A but whether that motivated him or not there is no doubt that he did not simply stay mute. On 6 April 1987 his counsel adverted to the difficulty of appealing from an acquittal in contempt proceedings and on 22 July 1987 his counsel submitted that the whole concept of the appeal was wrong for the reason that the court could not entertain an appeal from an acquittal on a criminal charge. The appellant was put on notice, in the clearest terms, that her appeal may well have been incompetent. What is more the court was put on notice of the submission which was eventually upheld. It is clear that the court could then have required that the question of competence be argued as a preliminary point. It may be that it was then thought by the court that it was more appropriate that the question be considered during the hearing of the appeal. There was virtually no discussion of the issue and it is not possible to say any more than that both the court and the appellant appear to have been content to let the matter be debated during the hearing of the appeal. This is not surprising for the questions raised in the appeal were within a small compass and it was, no doubt, anticipated that both the competence question and the merits could be disposed of within one day. What is, perhaps, of more importance is that the appellant was put on clear notice that her appeal may well be incompetent. In proceeding with her appeal she took the chance that the court may rule against her on that issue. She did not, and could not, suggest that she had not been put on notice of the problems confronting her appeal. She simply said that because the respondent had not filed a formal motion under r17A she should be awarded her costs. The respondent may have had, and probably did have, strong reason for wishing to secure the dismissal of the appeal on its merits. If, in those circumstances, he had remained mute and not put the appellant and the court on notice of the potential difficulty with the appeal then I would agree that there would be strong reasons for denying him his costs. Where, however, he put both the court and the appellant on notice of those difficulties I think he did all that was required of him in the circumstances. If the court wished to have the matter ventilated as a preliminary question then there was nothing to stop the implementation of an appropriate procedure for the resolution of that issue. If the URJ WENTWORTH v RARES; WENTWORTH v RARES (Hope AJA) 13 appellant wished to ensure that she was not put to additional cost she could have brought the matter before the court as a preliminary point and in this respect her propensity to institute interlocutory proceedings does not support the view that she could have had any apprehensions about following that course. She did not seek to have the competence point dealt with at an early date and, in every sense, she went on at her own risk. While I respect the view of the majority I do not think it would be just to deny the respondent, who was charged with contempt arising from a trivial incident which occurred whilst he was appearing for a client, his costs. I would add that the only matter that was argued during the hearing of the appeal was the question of competence and I am unable to see that any more of the court's time was taken in the hearing then would in any event have been required to dispose of the a motion under rl7A. I recognise the fact that the appellant launched a great number of interlocutory applications and much court time was taken in dealing with those. Although they would have been rendered unnecessary if the appeal had been determined at an earlier time than it eventually was determined I do not think that that factor presents as a sound reason why the court should decline to apply the prima facie tule. She instituted these proceedings in the full knowledge that there was a risk that her appeal was incompetent. The considerations which concern the interlocutory applications are somewhat different but as the appellant was on notice of the possible incompetence of her appeal at the time she brought those proceedings I see no reason why, upon dismissal, costs should not follow those events also. Hope AJA I agree with Priestley JA. ORDERS No 340 of 1986 1. Appeal dismissed. 2. Costs of the appeal: (a) Respondent's costs of the appeal up to and including 22 July 1987 to be paid by the appellant. (b) No order for costs Gf the appeal after 22 July 1987. 3. Interlocutory proceedings listed for hearing on 12 December 1990: all such proceedings are dismissed. 4. Costs of interlocutory proceedings in the appeal: (a) In the interlocutory proceedings dismissed under O.3, any costs incurred up to and including 22 July 1987 by the respondent to be paid by the appellant; no order for costs incurred after 22 July 1987. (b) In those interlocutory proceedings in which costs orders were made, those orders are confirmed. (c) In those interlocutory proceedings in which costs orders were reserved or not made any costs incurred up to and including 22 July 1987 by the respondent to be paid by the appellant; no order for costs incurred after 22 July 1987. No 40760 of 1990 - APPLICATION FOR LEAVE TO APPEAL. Summons for leave to appeal dismissed with costs. Counsel for Appellant: IN PERSON Solicitors for Appellant: IN PERSON 14 UNREPORTED JUDGMENTS Counsel for Respondent: AR EMMETT QC, JLB ALLSOP Solicitors for Respondent: MALLESONS STEPHEN JAQUES