ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, HANDLEY JA and BROWNIE AJA 17 August 1994 [1994] NSWCA 267 Priestley JA. MacLEAN: This is an application for extension of time and for leave to appeal against an order for costs made by his Honour Sully J on 24 June 1994, some day or so after a jury had returned a verdict in favour of the opponent in an action for assault in the sum of $2,000. His Honour calculated interest on that verdict at $680 and the total judgment therefore is $2680, which falls beneath the figure that is applicable under Part 52, rule 24 — PRIESTLEY JA: Did you prepare the written submission that has been filed on behalf of Mr Rogers? MacLEAN: I did. PRIESTLEY JA: We have all read that so you can start from the assumption that we know the outline of your argument. MacLEAN: What does your Honour seek of me? That I speak to the argument or to the application for leave? PRIESTLEY JA: I think you should deal with your application for extension of time and your application for leave together. As we have read your written submissions, you may, if you wish, confine yourself to emphasising or elaborating on any particular part of your written submissions which you regard as particularly relevant and important. MacLEAN: It would seem that the threshold difficulty that the claimant has is that this is an application for leave in relation to an order for costs. Section 101(2)(c), given this is an order for costs only that is under challenge, requires leave. Although it is probably trite, there are some passages in one of the authorities the claimant would like to rely on in relation to the substantive question of parameters in regard to such an application for leave, which places difficulties in his way. I refer to the decision of this court in John Fairfax & Sons Ltd v Palmer (1987) 8 NSWR 301, paragraph (b). 'It should show that ... incorrect way.""have.' It also appears at the start of that paragraph, where again he says: 'I am not prepared ... did not have.' PRIESTLEY JA: Perhaps on a strictly logical analysis your argument is sound. Again, I have read the paragraph as his starting off by saying, 'I am not prepared to say she did not have reasonable grounds,' and ending up by saying, 'I am prepared to say she did have reasonable grounds.' MacLEAN: I think your Honours have the claimant's submissions. PRIESTLEY JA: Subject to the considerations that Handley JA has raised about the possibilities if we grant leave, have you put the argument that you would wish to put on the appeal if leave were granted? MacLEAN: Yes, your Honour. PRIESTLEY JA: We can treat this as the full argument so far as you are concerned, subject only to this question which is one for the court, in the event we thought leave should be granted? 2 UNREPORTED JUDGMENTS MacLEAN: Yes, your Honour. PRIESTLEY JA: You have covered everything your client wants to raise now? Handley JA. MacLEAN: In brief and by recourse to the written submissions. HANDLEY JA: I want to get an overview. You are here complaining about the order for 50 per cent costs, half costs, made by Sully J. I know we got a notice of contention, but what is the position? Is there an outstanding application to Sully J for an order for two counsel? MacLEAN: No. HANDLEY JA: That application has never been made? MacLEAN: As I understand it, Miss Wentworth will urge it upon your Honours. HANDLEY JA: It is not for us to exercise it, I do not think, as an original jurisdiction. Our role is supervisory and appellate. I think that application, speaking for myself, and not having thought it through, is one which would have to be made by Sully J. That is point one. In relation to the question of a different interest award, what is the position about that? I notice we have a notice of contention. Is there any notice of appeal about that? MacLEAN: I thought so, your Honour — certainly not from the plaintiff's point of view. WENTWORTH: There is. HANDLEY JA: That is in relation to the cross-appeal, is it? WENTWORTH: Yes. HANDLEY JA: That is an appeal as of right. WENTWORTH: It is an appeal now as of right and I have established that. When a matter of interest and verdict is involved there is an appeal as of right for myself. The reason that the pleadings proceeded in the way that they did was because the claimant had filed initially a notice to appeal. I filed a cross-appeal against that and formalised that with an appeal in full. It is a procedural mess, I concede. To perhaps fix that up, I have no objection to the application for leave to appeal of Mr Rogers, except insofar as the time frame is fixed up. Otherwise, as an initiating document the appeal was incompetent and, by consent, the incompetence was recognised and he filed a summons for leave to appeal to fix it up. Priestley JA. Would you consent to the court giving such extension of time — WENTWORTH: I would consent to the extensions of time. It is a matter for the court whether to grant leave to appeal. I do not think it is reasonable to object to the extension of time. Handley JA. Looking at your notice of cross-appeal, on page 49, order 1 challenges Sully J's interest order and gives rise to an appeal as of right. WENTWORTH: That is correct. HANDLEY JA: Although it may be a little strange, once you have got a substantive appeal question going to the size of the verdict or judgment then it is no longer an appeal on costs only. WENTWORTH: That is correct. HANDLEY JA: Your cross-appeal on interest enables you to bring up as of right your challenges to Sully J's order for costs. You are asking this court to reverse his decision that you only get 50 per cent? URJ ROGERS v WENTWORTH (Handley JA) 3 WENTWORTH: That is correct. HANDLEY JA: That comes here as of right. I have not thought through who should make the order about the costs of the Maxwell J trial. My recollection, unaided, is that the costs of the first trial will abide the decision in the second trial, or words to that effect. WENTWORTH: That is correct. It is page 4 of the appeal book. I have included the costs of the first trial. Because that is an order of this court, the advice of senior counsel in the matter before Sully J was that it was not a matter his Honour could deal with and that it therefore had to come back to this court to be determined. That is the reason in order to attempt to get this matter into some sort of proper procedural order a notice of motion in respect of that has been filed. Priestley JA. Does that order 4 read: 'The costs ... abide the result of the second trial'? WENTWORTH: That is correct. Handley JA. My impression is that order 4 has the result that at the moment you are entitled to half the costs of the first trial because that was the result of the second trial. That does not necessarily mean that Sully J could not have made one order for the second trial and a different order for the first trial. Am I right in thinking he has not been asked to yet? WENTWORTH: The view was taken by senior counsel — HANDLEY JA: I am not saying it was right or wrong. WENTWORTH: He has not been asked, for the very reason senior counsel thought it inappropriate. HANDLEY JA: My impression at the moment is that senior counsel may have been wrong and that Sully J had power under order 4 to make a just order for the costs of the first trial in relation to the assault, not in relation to the malicious prosecution. WENTWORTH: That is the first problem. The second problem is, of course, because this court has taken upon itself to deal with the costs of what I call the Maxwell trial, a trial judge dealing at first instance with a retrial would not have jurisdiction to determine a matter which it, it would seem inherently from these orders, has retained for itself. HANDLEY JA: The normal effect of order 4 is not that the Court of Appeal is going to decide the costs of the first trial after the result of the second trial is known but that if you have got full costs on the second trial, you would have got full costs on the first trial. If the verdict had been the other way, Mr Rogers would have got the costs of the first trial as part of the costs of the second trial. That only leads me to another question. What is happening with the malicious prosecution action, if anything? WENTWORTH: We have tried to get some resolution of that matter from the defendant. As recently as yesterday I understand Mr MacLean and Mr Russo had some discussions. The discussions at the moment have not entirely resolved the position. We on our part, if we do not get a resolution of that matter — and it was our intention today to raise the matter with the court — to ask the court to put a permanent stay on the malicious prosecution proceedings. We had hoped to be able to come here with a consent to those matters, but we are not here with consent. So the answer to that is effectively I do not know. 4 UNREPORTED JUDGMENTS HANDLEY JA: It occurs to me until such time as Mr Rogers makes an election as to discontinuing that malicious prosecution action or to bring it on for trial, we have an outstanding question of costs of the first trial insofar as it was a trial of a malicious prosecution, cross-action of the malicious prosecution, costs of the retrial up until the point of time Sully J ordered a separate trial, and the question of senior and junior counsel at the firsttrial is wrapped up with the question of the malicious prosecution limb of the first trial. My present impression therefore is that malicious prosecution one and two, senior counsel one and two; the appeal on interest are all outstanding questions and the general cost of the first trial is another outstanding question. The question of interest is a question for this court under your notice of cross-appeal as of right. The other five questions are questions either for Sully J or, in the first instance, Mr Rogers as to whether he is going to discontinue or elect to proceed with his malicious prosecution case. We should only have one go at this piece of fruit and not have multiple bites at it. In other words, if we grant leave today the appeal should await Sully J's decision and Mr Rogers" decision and elections in relation to the other litigation of the other issues. Everything should be dealt with once in this court and at the same time. WENTWORTH: I can understand the reason for your Honour saying that. That is why we tried to get agreement and consent on the stay of execution, because we thought your Honours would rightly raise it because of the matters that are contained in order 4. Thear what your Honour says in relation to the jurisdiction of Sully J to award the costs of the first trial before Maxwell J. It would be a strange result if a judge at first instance made orders which were inherent within an order already made in the Court of Appeal. I know it is a technical point, but whilst we concede that Sully J's order in relation to the trial before him is an order he can make, we do not see either that the order that was made in relation to that would definitely bind the costs before Maxwell J and we submit this court is entitled under the orders it has made to hold back the result in the second trial and then to have a look at the situation, which is what we assume is meant by this order, for it is a document — the order for costs of the Maxwell trial. That was a matter which was on appeal in this court and it is a matter which this court would have to pronounce on. Whilst there may be some guidance for this court for whatever orders Sully J made in the second trial, that would not be determinative, nor could Sully J make orders in respect of the first trial. That deals with two of the points your Honour has raised — the costs of the trial before Maxwell J and whether one would split the costs of that trial in the way it was conducted. Thirdly, as to the propriety of having senior and junior counsel in that trial. We submit those three matters, whilst this court could get some guidance from what happened in the second court — the only matter one has regard to in relation to order 4 is you see what happens in the second trial and it was anticipated the two trials — the malicious prosecution and the claim by me would go ahead together. That on my application of the judgment of Sully J did not happen. The only way in which this court could deal with the matter is to, having seen what Sully J has done and then having determined what is the proper order for costs that he should have made, have regard to those matters and having regardthe determination he made on 8 April 1994, having seen what this court says on appeal should be the proper order as to interest and as to costs, this court can then, URJ ROGERS v WENTWORTH (Priestley JA) 5 having looked at these matters — and that has to be determined first. It is not a case of going back to Sully J and asking for various orders. It is a case of this court determining what is before it now on appeal and then applying whatever principles it considers to be the proper principles to the trial before Maxwell J. In relation to the trial before Maxwell J, since there is no consent to the discontinuance of the action on the malicious prosecution, this court is entitled to entertain an application for a stay permanently of that proceeding in view of the present determination of the jury. HANDLEY JA: We would not entertain that as original jurisdiction, would we? WENTWORTH: You would be entitled to. HANDLEY JA: Yes. I used the word 'would'. Brownie AJA. We could not do it today. WENTWORTH: You have convened the Bench and you want to wrap it all up. I assumed today this Bench would wish to deal with this matter and finalise both matters. We would be grateful if the court could deal with the matters and wrap them up. Priestley JA. What is it that you submit we should do today in the light of the discussion that has taken place now? WENTWORTH: We submit the matters in fact can be dealt with without going to all the papers, for this reason. There was a primary claim the plaintiff made. That is that Part 52 rule 2 matter. In its terms it does not apply to any costs order which should be made by Sully J. Does your Honour want me to proceed on that? PRIESTLEY JA: No. I would like to make a little list of the issues that you suggest we could practically deal with today. We are in a position to deal with Mr MacLean's argument for leave, for example. I had, I think, over-optimistically thought we would be able to dispose of that whole matter today. Other matters do appear to be outstanding which cannot be resolved today. On your case you want, likewise, to argue, forgetting about the question of leave for the moment, that the trial judge was wrong in the costs order that he made. He should have made one more favourable to you. WENTWORTH: Yes. PRIESTLEY JA: I am cutting out the reasons for it — just what you want to end up with. There is the outstanding question of the costs of the Maxwell trial. I do not see how we can deal with this today. Do you suggest we could deal with it today?WENTWORTH: Yes, your Honour. PRIESTLEY JA: In what way? WENTWORTH: On a step by step process. If the arguments which I wish to put to the court in relation to interest and costs are arguments which the court considers that it can pronounce on, I would submit it can do that today. We further submit whether or not Mr Rogers withdraws his application for malicious prosecution, we would advance an argument which would allow your Honours to determine the costs of the first trial. We submit further, because of the terms of Sully J's judgment in which he thanks senior counsel and all counsel for appearing, he must have had regard to the appearance of counsel and in the terms of his judgment this court would be entitled to make an order having regard to the terms of this judgment in relation to the allocation of senior and junior counsel in both trials. We submit that overcomes the problems your Honour Handley JA has in the five matters you listed felt could not be dealt with. We submit they can be dealt with. 6 UNREPORTED JUDGMENTS Because of the further compounded problem of Sully J being on long leave — he said he was going to be away for six months — we would have to invoke the rule that was set out in Wentworth v Rogers No 3 and go to a separate judge because of the unavailability of the primary judge to deal with it. That would compound the problems of the court in requiring another judge to deal with it. That is not a good use of the court's time either. PRIESTLEY JA: Before we go ahead, there is one question Handley JA wants to ask Mr MacLean. Handley JA. Can you throw any light on the probable future course of the malicious prosecution cross-claim? MacLEAN: It falls to me to give some advice to Mr Rogers, which I have not yet given. I have to come to a view on that matter and then advise Mr Rogers. If his tort is not maintainable — HANDLEY JA: There may be no difference as to whether it is maintainable in law or maintainable in fact. Malicious prosecution is the criminal case. I did not want to delve into matters of privilege. The point is you are not able to tell us at this moment what is likely to happen with the malicious prosecution action. MacLEAN: I can hazard a guess. If it be the case I advise he should maintain his action, the next question is: Will he? Priestley JA. We have input which is sufficient for our purposes. Handley JA. Can you give us any guesstimate? Do you expect a decision this year, this month, next month? MacLEAN: I must give him advice within the month. Priestley JA. Miss Wentworth, what we propose to do now is hear you on the costs question in the Sully trial and the interestquestion you want to argue. We will then consider what is the best course to pursue in regard to any other matters that are not within those two main points. In doing that, how long do you think you will take? WENTWORTH: I would think the best part of an hour to an hour and a half. PRIESTLEY JA: It is suggested it would be expedient to address the interest point first, because if you succeeded on that then the other point changes quite dramatically. WENTWORTH: I hand up an outline, which I have given to Mr MacLean. I apologise for there not being written submissions. Another matter I should indicate may be relevant for the court to consider is on page 14 of the judgment of 8 April in Sully J's consideration in relation to severance — it is not in the appeal book but it is in the record of the court. I can hand up one copy. It relates to a determination by his Honour as to whether in fact the trial at first instance — that is the criminal trial — had miscarried. At page 10, paragraph 15, his Honour sets out some of the matters which he had regard to in the application argued before him by senior counsel. At the bottom of page 10 he speaks about the way in which the criminal trial was conducted by senior counsel. One will see there a criticism, which I think is much stronger than I have ever made in a court and which I have been criticised for. PRIESTLEY JA: Can we leave this for the moment. I can see the drift of it. This was a document relevant to the interest point, was it? WENTWORTH: No. It comes out at page 14, where his Honour does not 'shut the respondent out ... verdict of acquittal.' URJ ROGERS v WENTWORTH (Brownie AJA) 7 PRIESTLEY JA: Could I suggest you get on to the interest point? While you are doing that I will have this judgment copied. WENTWORTH: Although your Honour has asked me to address you on interest, I think the preliminary point is even more fundamental, and it is this. If your Honours could go to Part 52, rule 24, subrule (1) says in terms (read). You have to go over the page to (iv) (read). It is such a primary point that I raise it before I raise interest because it seems to me that this may be determinative of whether or not you have to go through all the niceties of Part 52, rule 24 in any event. The argument is the order at page 4 says: 'Proceedings are returned ... for later trial.' Brownie AJA. Which of those labels do you say is appropriate? WENTWORTH: Remitted. BROWNIE AJA: You only ask for costs after remission? WENTWORTH: No, your Honour. Orders accordingly. Mr D MacLean: solicitor: for the claimant Miss Wentworth in person: together with Mr S Russo: solicitor