WICKSTEAD and ORS v BROWNE [NO 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CLARKE JJA 8 July 1993, 8 July 1993 [1993] NSWCA 289 PRACTICE and PROCEDURE — Court of Appeal — alteration of cost orders following successful appeal to High Court — amendment of notice of motion — time for pleading — liberty to apply — held: Orders made. PRACTICE and PROCEDURE — Court of Appeal — pleading of plaintiff's causes of action — successful appeal to High Court from Court of Appeal's orders — consequent application for procedural orders — held; Procedural orders made (a) adjourning motions; (b) amending motion; (c) extending time for filing; and (d) providing liberty to apply. ORDERS 1. Stay the further taxation of the respondent's costs of the proceedings before Master Malpass and Grove J, and any execution in respect of such costs pending the final determination of the proceedings between the parties; 2. Stay the enforcement of all cost orders made in favour of the respondent Douglas John Browne in this Court pending the final determination of the proceedings between the parties; 3. Grant liberty to the claimant Martin Thomas Wickstead further to amend his amended notice of motion to this Court to add a paragraph in the following terms, namely: "2A: That the respondent pay the appellant's costs of the appeal to the Court of Appeal in the proceedings before Master Malpass and Grove J." 4. Stand over the further consideration of the further amended notice of motion in this Court until after the conclusion of all matters between the parties in the Common Law Division of the Supreme Court or until any further or other order of the Court or of a Judge of Appeal; 5. Extend the time for compliance with O.5 of this Court made on 24 December 1992 until 4 pm on 23 July 1993; 6. Grant liberty to any party upon two days notice to the other to apply to a judge of the Common Law Division for any other orders which in the circumstances are appropriate; and 7. Order that the costs of the motion before the Court today be costs in the proceedings between the parties. Kirby P Before the Court is an amended notice of motion which has been filed in protracted proceedings between Mr Martin Thomas Wickstead and others and Mr Douglas John Browne. It was not suggested by any party that the Court need be differently constituted for the purposes of the motion. The proceedings were earlier the subject of a decision of this Court which was delivered on 24 December 1992. See Wickstead and Ors v Browne, Court of Appeal, unreported, 24 December 1992; (1992) NSWJB 139. In the Court's reasons on that day the Court divided Handley and Cripps JJA favouring certain orders including orders as to costs of the proceedings in this Court and in the court of the trial. I took a different view in respect of the trial of the proceedings upon a suggested further cause of action based upon the tort of negligence. However I concurred in the order Proposed by Handley and Cripps JJ as to costs. 2 UNREPORTED JUDGMENTS A SUCCESSFUL APPEAL TO THE HIGH COURT Mr Wickstead then sought and obtained special leave to appeal to the High Court of Australia from this Court's orders. That court on 30 April 1993, without proceeding to formal reasons but for reasons informally disclosed in a transcript which has been placed before us, granted special leave to appeal from this Court's orders. It allowed the appeal instanter. It varied O.4 of the orders made by this Court to delete from he Court's orders the word "negligence" and the comma which followed that word. The net effect of that variation was to permit Mr Wickstead, at trial, to seek to plead a claim in negligence and to proceed to trial on that claim, the issues involved in that claim being related to issues which would be permitted by the orders which this Court had earlier favoured. The High Court stated that, in the circumstances, it would not interfere in the order as to costs made by the Court of Appeal. Those orders were, as I have said, the orders proposed by Handley and Cripps JJA. As stated, I agreed in those orders seeing no reason to disturb them. Mr Wickstead now says that, in effect, as a result of his success in the High Court of Australia, he has enjoyed an entire success in this Court. He should therefore in the ordinary course, have had the benefit of a general order in his favour for the costs of the proceedings in this Court. He also contends that the amount of time spent on issues which were abandoned in this Court and argued before Master Malpass and Grove J was minuscule. This Court should therefore now vacate the orders it made as to costs. It should substitute orders which reflected the substantial victory which Mr Wickstead has had consequent upon the determination by this Court, as modified by the orders of the High Court of Australia. ADJOURNING MOTIONS WHICH MAY PROVE UNNECESSARY Questions may arise as to whether or not, the formal orders of this Court having been entered and the determination of the High Court being in terms announced, this Court may or should disturb the orders which are now part of the formal record of the Court. A question may even arise as to whether the matter having been passed upon by the High Court of Australia it is for that court and not this Court to vary the orders including those as to costs. It is unnecessary to determine those questions now. The sensible course, as it seems to me, is to simply stand over this amended notice of motion. That will permit Mr Wickstead to bring the motion back before this Court if the application is still relevant following the conclusion of the trial of the issues including the new permitted issue of negligence. In conformity to that view, I would propose that so much of the motion as deals with the variation or rescission of the orders of this Court of 24 December 1992 should stand over to abide the outcome of the trial and the orders disposing of the trial. In the event that, from the trial, the matter comes to this Court on appeal, the motion can be consolidated with the appeal. In the event that the trial is disposed of by agreement or otherwise at first instance this Court will not be troubled by the motion. Those possibilities provide further reasons for refraining from making final orders today. There are three other matters which should be dealt with. The first is that the opening paragraphs of the amended notice of motion request that the Court should stay the taxation of the respondent's costs of the proceedings before Master Malpass and Grove J and that execution upon all costs orders made in favour of the respondent in this Court be stayed pending the final determination of the proceedings. Counsel for Mr Browne has consented to the Court's making URJ WICKSTEAD and ORS v BROWNE [NO 2] (Kirby P) 3 such orders. It is, therefore, appropriate that the orders should be made. They are in conformity with the approach which I earlier proposed that the outcome of these interlocutory and ancillary matters should abide the outcome of the trial. AMENDING THE MOTION WITH NOTICE Mr Wickstead also asks that the motion be amended to include the following additional paragraph: "2A: That the respondent pay the appellant's costs of the appeal to the Court of Appeal in the proceedings before Master Malpass." I observe that this is in terms different from the present para3 of the amended notice of motion, that paragraph being limited to the provision of liberty to apply to the Court for variation or rescission of its orders. Counsel for Mr Browne objected to the amendment upon the ground that no notice of it had been given and that it was still a further amendment of much protracted proceedings which should not at this late stage be allowed. However, in view of the proposed delay of the determination of the motion, it is sensible to permit the amendment to be made. It will then be included in the final further amended notice of motion should that subsequently have to be determined by the Court. EXTENDING THE TIME FOR PLEADING A further matter which requires attention relates to the time for compliance with that order of the Court which permitted repleading following the determination of 24 December 1992. Following the application for special leave to the High Court of Australia Handley JA, on 19 January 1993, further extended the time for re-pleading until twenty-eight days following the decision of the High Court in the special leave application. That time expired on 29 May 1993. Certain re-pleading of the causes of action of Messrs Wickstead and others in related proceedings against Messrs Ogilvey and others has been considered by Smart J in a decision published on 1 July 1993. For reasons stated on that day, Smart J relevantly extended the time within which Mr Wickstead and others in a like position should have for pleading their cases against Mr Ogilvey and others. He did so until 23 July 1993. Mr Wickstead now seeks a similar extension in respect of the re-pleading of his case against Mr Browne. This is opposed upon the ground that proceedings against Mr Browne have been following a different course. However, it is understandable and desirable that the pleader should pay attention to the entirety of the litigation in pleading the causes of action which Mr Wickstead wishes to bring before the court at trial. Accordingly, it seems to me that it is appropriate and just that Mr Wickstead should have until 27 July 1993 in which to re-plead his cause of action against Mr Browne. PROVIDING LIBERTY TO APPLY The final matter relates to the application by the solicitor for Mr Wickstead that his client should have liberty on two days notice to apply for a further extension of time. As Mahoney JA indicated during argument, it is appropriate that such liberty should be availed of in the Common Law Division and not in this Court. Mr Wickstead and those in a like position should not be encouraged to believe that the pleading of the causes of action against either Mr Browne, or any other party, can be extended indefinitely or unduly. It is highly desirable, the High Court having spoken on the matter, that as against Mr Browne the pleading should be properly put into final form and that the matter should proceed to a hearing without further delay or undue cost. ORDERS 4 UNREPORTED JUDGMENTS The orders which I therefore propose are: (1) Stay the further taxation of the respondent's costs of the proceedings before Master Malpass and Grove J, and any execution in respect of such costs pending the final determination of the proceedings between the parties; (2) Stay the enforcement of all cost orders made in favour of the respondent Douglas John Browne in this Court pending the final determination of the proceedings between the parties; (3) Grant liberty to the claimant Martin Thomas Wickstead further to amend his amended notice of motion in this Court to add a paragraph in the following terms, namely: "2A: That the respondent pay the appellant's costs of the appeal to the Court of Appeal in the proceedings before Master Malpass and Grove J." (4) Stand over the further consideration of the further amended notice of motion in this Court until after the conclusion of all matters between the parties in the Common Law Division of the Supreme Court or until any further or other order of the Court or of a Judge of Appeal; (5) Extend the time for compliance with order 5 of this Court made on 24 December 1992 until 4 pm on 23 July 1993; (6) Grant liberty to any party upon two days notice to the other to apply to a judge of the Common Law Division for any other orders which in the circumstances are appropriate; and (7) Order that the costs of the motion before the Court today be costs in the proceedings between the parties. Mahoney JA I agree in the orders proposed. Clarke JA I agree in the orders proposed. Kirby JA Those orders, therefore, are the orders of the Court. The orders which I therefore propose are: (1) Stay the further taxation of the respondent's costs of the proceedings before Master Malpass and Grove J, and any execution in respect of such costs pending the final determination of the proceedings between the parties; (2) Stay the enforcement of all cost orders made in favour of the respondent Douglas John Browne in this Court pending the final determination of the proceedings between the parties; (3) Grant liberty to the claimant Martin Thomas Wickstead further to amend his amended notice of motion in this Court to add a paragraph in the following terms, namely: "2A: That the respondent pay the appellant's costs of the appeal to the Court of Appeal in the proceedings before Master Malpass and Grove (4) Stand over the further consideration of the further amended notice of motion in this Court until after the conclusion of all matters between the parties in the Common Law Division of the Supreme Court or until any further or other order of the Court or of a Judge of Appeal; (5) Extend the time for compliance with order 5 of this Court made on 24 December 1992 until 4 pm on 23 July 1993; (6) Grant liberty to any party upon two days notice to the other to apply to a judge of the Common Law Division for any other orders which in the circumstances are appropriate; and URJ WICKSTEAD and ORS v BROWNE [NO 2] (Kirby JA) 5 (7) Order that the costs of the motion before the Court today be costs in the proceedings between the parties. Representation: 5 Counsel for the Claimants: TD Kelly (Soir) Solicitors for the Claimants: TD Kelly and Co Counsel for the Opponent: CA Needham Solicitors for the Opponent: Minter Ellison Morris Fletcher