RAYBOS AUSTRALIA Pty Ltd vy TECTRAN CORPORATION Pty Ltd SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and Hope JJ 24 November 1992, 8 April 1993 [1993] NSWCA 227 COSTS — summons for leave to appeal and appeal — complex proceedings — appeal succeeds upon one of three grounds only — provision to be made in respect of costs of appeal and proceedings at first instance — held: (1) The opponents/respondents should pay 75 per cent of the claimants'/appellants' costs of the appeal; (2) The costs at first instance should be the claimants'/appellants' costs in the further hearing of those proceedings; (3) No costs to be paid in respect of preparing and filing written submissions filed without leave of the Court after the end of oral argument. Kirby P, Priestley and Hope JJ The court published reasons and made orders in these matters on 24 November 1992, except as to costs. The court directed that submissions on costs be in writing, to be filed no later than 4 pm on the fourteenth day from the publication of the court's reasons that is, 8 December; any reply to be filed no later than 4 pm on the twenty-first day from the publication of the reasons, that is, 15 December. The court also ordered no submissions be received after the stipulated times. In the application for leave the claimants had been Raybos and Dr Rajski. They became the appellants in the appeal. Mr Bainton QC and Mr Bozic appeared for the first to eighth, the twelfth and the thirteenth opponents in the application for leave. These became the first to eighth, twelfth and thirteenth respondents in the appeal. Mr Heydon QC, Mr Nicholas and Mr Powell appeared for the ninth, tenth and eleventh opponents in the application for leave and the ninth, tenth and eleventh respondents in the appeal. Pursuant to the court's directions concerning the submissions on costs, written submissions from Raybos, Dr Rajski and the parties for whom Mr Bainton QC appeared were received by 4 pm on 8 December and submissions in reply on behalf of the parties for whom Mr Bainton QC appeared were received by 4 pm on 15 December. Contrary to the court's order submissions from the parties for whom Mr Heydon QC appeared were filed on 9 December and submissions in reply on behalf of Raybos and Dr Rajski were filed on 16 December; consistently with the court's directions these have been treated as not filed. The written submissions combined appropriate conciseness with sufficient detail and have been helpful to the court. The question of the costs before Rolfe J is related to the reasons for setting his orders aside and the fact that O.5 of this court's orders of 24 November 1992 was that the proceedings be returned to the Commercial Division for reconsideration. The effect of this court's reasons was that Rolfe J's discretion had miscarried in coming to the conclusion that he did, but that because of further factors which needed to be considered in deciding what the appropriate orders should be, it would be better for the reconsideration to take place at first instance. 2 UNREPORTED JUDGMENTS We think the most appropriate order in the circumstances is that the costs of Raybos and Dr Rajski of the proceedings before Rolfe J in which the orders made by Rolfe J were set aside by this court should be Raybos's and Dr Rajski's costs in the further hearing of those proceedings; that is, if they succeed in those further proceedings in obtaining an order that 1985P should be heard either before or together with 1980P, then they should have their costs of the proceedings already heard before Rolfe J, and if they do not obtain such an order, then there should be no order for or against them in regard to the costs of those already heard proceedings. In regard to the proceedings in this court, the principal argument revolved around the fact that Raybos's and Dr Rajski's summons for leave to appeal relied on three grounds, but that leave to appeal was granted on one ground only, to which the appeal was confined. Raybos and Dr Rajski recognised in their submissions that the court had a discretion in such circumstances to award to a substantially successful party something less than the whole of that party's costs. They submitted however that in the circumstances of the present case it would be proper simply to order that their opponents pay the whole of their costs and reference was made to cases, in some of which Dr Rajski was a party, in which this had been done. On the other side, it was contended that not only did Raybos and Dr Rajski fail on two of the three grounds in the summons for leave, but that they were also unsuccessful in relation to many of the sub-grounds argued in support of the ground on which they succeeded. To this was added the contention that Dr Rajski had, after oral argument ended, on a number of occasions filed further written submissions, outside the period within which leave had been granted for that to be done, and without obtaining leave. Raybos's and Dr Rajski's opponents dealt with this by objecting to what was happening, but, on most occasions, answering the further written submission. This matter was referred to in the court's earlier reasons, when it was remarked that the conclusion reached by the court did not depend on any of the detail in these final rounds of written submissions and that no utility was seen in making rulings on the various matters of complaint involved in them. The court takes the view that the two grounds on which Raybos and Dr Rajski were unsuccessful were quite distinct from the ground on which they succeeded. We think Raybos and Dr Rajski should have all their costs of the ground on which they succeeded and which was the principal matter argued but that their opponents should not have to bear the costs of Raybos and Dr Rajski attributable to the other two grounds, upon which much less, although nevertheless still significant, time was spent. For Raybos and Dr Rajski it was submitted that if the court took this course the costs awarded to them should not be reduced by more than 20%. This proportion approximates the court's view of the time spent on the unsuccessful grounds, but is, we think a little too favourable to Raybos and Dr Rajski. In regard to the submissions filed late and without leave by the parties, the court is still of the view that there is no utility in ruling on the matters of complaint, but wishes to make it clear that the filing of such submissions without leave, particularly in litigation such as this when all the parties know that their opponents are likely to insist on compliance with time limits, is to be deprecated and discouraged. The sequence of exchanges was begun from the side of Raybos and Dr Rajski; the first of these was, arguably, within leave given by the court, and the opponents, arguably, were entitled to make a written submission that it was not; the URAYBOS AUSTRALIA Pty Ltd v TECTRAN CORPORATION Pty Ltd (Kirby P, Priestley an@ Hope JJ) subsequent written submissions, the first of which came from Dr Rajski, were not on any view filed by leave. That aspect of the matter is taken into account in the order the court has decided to make. In our opinion the appropriate order for costs is that the parties for whom Mr Bainton QC and Mr Heydon QC appeared should bear 75% of the costs of Raybos and Dr Rajski in the proceedings in the Court of Appeal. The costs of Raybos and Dr Rajski in the Court of Appeal are not to include any costs of preparing and filing written submissions filed without leave after the end of the oral argument. As between the parties for whom Mr Bainton QC appeared and for whom Mr Heydon QC appeared, the court's decision was reached on the basis that the case for hearing 1985P either before or with 1980P was much stronger than that for hearing both 1985P and 1986P either before or with 1980P; Mr Bainton QC was appearing both for parties in 1985P and some parties who were parties to 1986P only, Mr Heydon QC for parties primarily concerned with 1985P; it therefore seems appropriate that the two sets of parties bear the costs equally as between themselves. Our formal orders, in addition to O.1 to O.5 made on 24 November 1992, therefore are: 6. In lieu of the costs orders made by Rolfe J in the proceedings before him and set aside by this court, order that the costs of Raybos and Dr Rajski in those already heard proceedings be their costs in the further hearing of those proceedings. 7. In the application for leave to appeal the opponents are to pay 75 per cent of the costs of the claimants and in the appeal the respondents are to pay 75 per cent of the costs of the appellants. As between the opponents and the respondents the costs to be paid to the claimants and appellants are to be borne equally between the first to eighth and the twelfth and thirteenth opponents and respondents on the one hand and the ninth, tenth and eleventh opponents and respondents on the other. The costs of the claimants and the appellants are not to include any costs of preparing and filing written submissions filed without leave after the end of the oral argument. 8. The opponents and respondents are, if qualified, to have a certificate under the Suitors Fund Act. Our formal orders, in addition to O.1 to O.5 made on 24 November 1992, therefore are: 6. In lieu of the costs orders made by Rolfe J in the proceedings before him and set aside by this Court, order that the costs of Raybos and Dr Rajski in those already heard proceedings be their costs in the further hearing of those proceedings. 7. In the application for leave to appeal the opponents are to pay 75 per cent of the costs of the claimants and in the appeal the respondents are to pay 75 per cent of the costs of the appellants. As between the opponents and the respondents the costs to be paid to the claimants and appellants are to be borne equally between the first to eighth and the twelfth and thirteenth opponents and respondents on the one hand and the ninth, tenth and eleventh opponents and respondents on the other. The costs of the claimants and the appellants are not to include any costs of preparing and filing written submissions filed without leave after the end of the oral argument. 8. The opponents and respondents are, if qualified, to have a certificate under the Suitors' Fund Act. Counsel for 1st Claimant: J Basten UNREPORTED JUDGMENTS The 2nd Claimant (Dr Rajski) appeared in person Instructed by: Craddock Murray Neumann Counsel for 1-8 and 12-13 Opponents: RJ Bainton QC/M Bozic Instructed by: Blake Dawson Waldron Counsel for 9-11 Opponents: JD Heydon QC/RJ Powell Instructed by: Minter Ellison