New South Wales Court of Appeal CITATION : Wentworth v Rogers [1999] NSWCA 403 FILE NUMBER(S) : CA 40590/97 HEARING DATE(S) : 20 February 1998 and 7 December 1998 JUDGMENT DATE : 29 October 1999 Katherine Wentworth PARTIES : v Gordon Rogers JUDGMENT OF : Handley JA; Stein JA; Sheppard AJA LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 19228/82 LOWER COURT JUDICIAL OFFICER : Sperling J COUNSEL : A: Ms Wentworth and Mr Russo in person R: GM Preston SOLICITORS : A: Ms Wentworth and Mr Russo in person R: Richard A Licardy & Company CATCHWORDS : COSTS - Costs on the indemnity basis - Costs orders against legal practitioners - Orders for payment of costs on the indemnity basis made against applicant for relief and also her solicitor - Discussion of principles upon which costs on the indemnity basis ordered - Discussion of principles on which costs orders are made against legal practitioners - Counsel for respondent claimed to have appeared pro bono - Whether appropriate for this matter to be dealt with by Court or costs assessor - Analysis of complex factual situation. Supreme Court Act 1970: ss76, 76C ACTS CITED : Supreme Court Rules: Pt 52A r43 Legal Profession Act 1987: ss199-208 Myers v Elman [1940] AC 282 CASES CITED: Leicester v Walton (22 November 1995, NSW Court of Appeal, unreported) Graham v Aluma-Lite Pty Ltd (25 March 1997, NSW Court of Appeal, unreported) DECISION : Leave granted to appeal against one order of Sperling J, that appeal allowed, application for leave to appeal otherwise dismissed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40590/97 CLD 19228/82 HANDLEY JA STEIN JA SHEPPARD AJA Friday, 29 October 1999 Katherine WENTWORTH v Gordon ROGERS JUDGMENT (Application for leave to appeal against order for indemnity costs and for certain orders and other relief) 1 THE COURT: By their summons filed on 11 September 1997 the claimants, Katherine Wentworth and Salvatore Russo, seek a number of orders. The summons is not expressed in the language of an application for leave to appeal. Rather, it claims a number of orders setting aside orders made by judges of this Court sitting in the Common Law Division, or orders for other relief including orders for costs, orders that a judge of this Court was disqualified from making any order for costs in the proceedings before him and orders that counsel and solicitors retained by the opponent, Gordon Rogers, personally pay costs incurred by the claimants on the indemnity basis. 2 The earlier history of this matter is set out in the judgment of this Court delivered on 21 October 1998. That judgment refused with costs an application made by Ms Wentworth for leave to appeal against the orders made by Sperling J on 26 February 1997 in consequence of his judgment of 10 September 1996. Leave to appeal was necessary because the orders made by Sperling J were interlocutory. The matters in question in this application, dealing as they do with the costs of the interlocutory proceedings before Sperling J, are accordingly also interlocutory. Leave to appeal is thus required. The summons of 11 September 1997 should therefore be treated as an application for leave to appeal. That matter was discussed during the argument and, subject to one qualification, that is the way the Court said that it would approach it. 3 The qualification referred to in the last paragraph was made by the Court during the afternoon of 20 February 1998 which was the first day of argument. The Court then said that, if the Court should ultimately determine that leave to appeal be granted, it would dispose of the appeal on the basis of the written material which the Court had and which was to come. It was noted that counsel for Mr Rogers had not consented to that course but it was the course upon which the Court determined. Written submissions lodged on behalf of Ms Wentworth on 2 January 1999 were accompanied by a letter from her solicitor, Mr Russo, which indicated that Ms Wentworth strongly objected to the course taken by the Court on 20 February 1998. But the course taken was taken in order to foreshorten argument and to enable the Court, if it thought that leave should be granted, to deal with the appeal so that there would be no need for any further hearing. The Court's decision was thus intended to benefit Ms Wentworth. That is why counsel for Mr Rogers objected to it. Accordingly, we find it difficult to understand why the subsequent objection to what was done was made. 4 A matter that should be mentioned at this early stage is that, although the application before the Court was, subject to the qualification referred to, an application for leave to appeal, it developed into a wideranging review of the judgment in question. Oral argument occupied more than 1½ days. Additionally there were some hundreds of pages of written submissions to this Court and other material to which we were referred in those submissions including the submissions which had been made to Sperling J, and also affidavits, exhibits and other documents referred to or incorporated in those submissions. The time occupied by the Court in considering this material both in court and since its decision was reserved has been substantially more than is occupied by most appeals let alone applications for leave to appeal. It should be emphasised that this matter has had a very comprehensive hearing. The hearing was certainly as comprehensive as that which the matter would have received if there had been an appeal as of right. 5 The orders made on 28 August 1997 were orders made in relation to costs in consequence of the judgment delivered by Sperling J on 10 September 1996 in which he acceded to an application by Mr Rogers to set aside an order made by Loveday AJ on 24 October 1994. Loveday AJ had ordered that a cross-claim for malicious prosecution brought by Mr Rogers in proceedings instituted by Ms Wentworth for an assault by Mr Rogers upon her, be dismissed for want of prosecution. Sperling J dismissed a claim by Ms Wentworth for an order for a permanent stay of the cross-claim. 6 The principal order made on 28 August 1997 (see para. 1 of the orders) was that Ms Wentworth and Mr Russo, her solicitor, pay, on the indemnity basis, Mr Rogers' costs of and incidental to Mr Rogers' notice of motion for an order setting aside the order of Loveday AJ made on 24 October 1994, Ms Wentworth's notice of motion for an order that the cross-claim be dismissed, and her notice of motion for an order that the cross-claim be permanently stayed. 7 Order 2 provided that the order extended to the whole of the hearing which commenced on 23 March 1995 and culminated in the judgment of 10 September 1996. Order 3 extended the operation of the order to some other matters including some applications to Sully J and an application to Sperling J for the reconsideration and setting aside of his judgment of 10 September 1996. That application was dismissed by him on 20 December 1996. Order 4 of the orders made by Sperling J on 28 August 1997 provided that satisfaction, or part satisfaction, of the order as to costs by Ms Wentworth or Mr Russo was to be pro tanto satisfaction by the other. Order 5 provided that payment under the order was not deferred until the conclusion of the proceedings and that liability under the order was not to be set off against any other order for costs in the proceedings. 8 There could of course be no set off by Mr Russo but, absent order 5, the normal result would have been that, if Ms Wentworth had taxed or had had assessed her bill of costs for the costs ordered to be paid as a consequence of the trial before Sully J of Ms Wentworth's action against Mr Rogers for assault, these could be set off against any costs recovered by Mr Rogers pursuant to the orders in his favour made by Sperling J on 28 August 1997. Disqualification of Sperling J for apprehended bias 9 An initial matter to be disposed of is a ground of appeal to be relied upon if leave to appeal be granted, based upon a judgment given by Sperling J on 7 March 1997 in which he decided that he should disqualify himself from hearing any further matter in which Ms Wentworth was a party because of the finding he had made against her in relation to the proceedings before Loveday AJ. His Honour qualified that determination, however, by saying that he did not regard himself as disqualified from making orders to implement his judgment of 10 September 1996 including orders as to costs. It is Ms Wentworth's submission that Sperling J should have disqualified himself from dealing with the question of costs along with all other matters. 10 We would reject this submission. Sperling J had dealt with the principal matters the subject of the judgment of 10 September 1996 and also with a number of other interlocutory matters some of which were referred to in the judgment of this Court of 21 October 1998 dealing with the application for leave to appeal from that judgment. As mentioned in the judgment of 21 October 1998, the principal hearing before Sperling J occupied 37 hearing days. He thus had a close knowledge of the matter and, in those circumstances, it would be usual for him, as the trial judge, to complete his task by dealing with the question of costs. That is the view which he took. To have disqualified himself in respect of that matter and transferred the matter to another judge of the Common Law Division would have been a manifestly inconvenient course of action. No other Judge could have had the close knowledge of the matter which Sperling J had. The time occupied in such an application, if heard by another judge, would have been very much increased. The case is not strictly within the doctrine of necessity, but it is close to it. The course advocated by Ms Wentworth, and, as I understand, by Mr Russo, would have been very inconvenient. It would have occupied the Court in an unnecessarily prolonged hearing involving substantial public time and expense and having the effect of diverting the Court's attention from other cases, thus delaying other litigants and putting an undue and unnecessary strain on the Court's scarce resources. Four Months of non-consensual delay 11 In the second paragraph of his judgment of 28 August 1997, Sperling J said that the cross-claim had been dismissed for want of prosecution after a mere four months of non-consensual delay. This statement in his Honour's judgment was disputed by Ms Wentworth who made lengthy submissions about it in writing. The purpose of these was to show that there was a much greater period of non-consensual delay than four months. We do not see the purpose of going into this matter. It was raised in a costs judgment and not in the principal judgment. It appears to have only a minor bearing on what the outcome of the competing submissions dealing with costs should have been. We would therefore put that matter aside. Sperling J's judgment of 28 August 1997 12 More importantly, his Honour, at this point in his judgment mentioned again a matter dealt with in his September judgment concerning Loveday AJ having been misled by reason of Ms Wentworth's failure to produce the letter of 13 October 1994 (referred to in the judgment of this Court of 21 October 1998) or to inform him of it. The findings made by his Honour in his September judgment were that, not only was there a failure to disclose the letter, but there was a positive misleading of the Court by both Ms Wentworth and Mr Russo as a consequence of their failure to inform his Honour of the letter and the making by them of statements which indicated that they had heard nothing at all from Mr Rogers. That is a matter upon which his Honour relied strongly for his decision to award indemnity costs. 13 His Honour referred then to what he described as "the other limb" of his judgment of 10 September 1996 saying that the application for an order that the cross-claim be dismissed or alternatively be permanently stayed rested on two arguments. The first was that the cross-claim was an abuse of process. He said that that was the basis of two earlier unsuccessful applications for substantially the same relief. He mentioned Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 and Wentworth v Rogers (Sully J, 8 April 1994, unreported). The first of these cases does not directly support his Honour's statement as no application appears to have been made to this Court for the cross-claim to be dismissed or stayed. However, a new trial of both the action and the cross-action were ordered which necessarily excludes any right in Miss Wentworth at that time to have the cross-claim dismissed or permanently stayed. It may be however that his Honour intended to refer to the judgment of this Court in Wentworth v Rogers (NSW Court of Appeal, 22 July 1987, unreported). Reference to p16 of the judgment of Samuels JA suggests that this may be the case. 14 After reference to the two cases, Sperling J said that the second argument was that Mr Rogers was estopped from pursuing the cross-claim because of findings said to have been made in the separate trial of Ms Wentworth's claim against Mr Rogers for assault. His Honour dealt briefly with the estoppel argument and concluded that "the estoppel proposition was utterly without merit". That was a matter dealt with by this Court in its judgment of 21 October 1998. The submissions based on estoppel made by Ms Wentworth failed for the reasons given in that judgment. 15 Next his Honour referred to submissions by Mr Rogers in support of an order for costs on the indemnity basis both against Ms Wentworth and Mr Russo. His Honour received over 120 pages of written submissions signed jointly by Ms Wentworth and Mr Russo. His Honour said that he found these singularly unhelpful. He said that they were mostly based on arguments which canvassed the findings made in his judgment of 10 September 1996 and his determination that he was not disqualified from making orders as to costs in the proceedings. His Honour referred to a further notice of motion filed on 8 July 1997 which initially came before another Judge. It is unnecessary to refer further to this matter. 16 His Honour then came to his decision on the question of costs. He said that his decision turned on his reasons for decision given on 10 September 1996. He said that Ms Wentworth and Mr Russo were to pay Mr Rogers' costs of and incidental to the proceedings which culminated in his judgment of 10 September 1996 on an indemnity basis. He referred to his decision that the ex parte order made by Loveday AJ should be set aside. He said that it was an independent reason for that order that Ms Wentworth had, according to his findings, misled the Court, resulting in a miscarriage of justice for which there was no cogent explanation. He continued: "For Mr Rogers to have been put to an application to set aside the order on that and such other grounds as proved to be available to him is, in these circumstances, sufficient to warrant not merely that costs should follow the successful application to set aside the ex parte order but that such costs should be payable on an indemnity basis." 17 His Honour said that it was unnecessary to deal with other criticisms of Ms Wentworth's conduct made on behalf of Mr Rogers concerning the application to Loveday AJ and concerning the way the proceedings before Sperling J himself had been conducted. 18 His Honour referred to the ordinary rule that in a successful application to set aside an ex parte judgment or order, the applicant would usually be ordered to pay the costs of the application. But he said that this was not the case where there had been an attempt to obtain some unmeritorious advantage, something which his Honour considered to have occurred in this case. He referred to Hastie v Nixon (NSW Court of Appeal, 9 October 1991, unreported). Reference was made to Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-4. Cussons deals generally with the circumstances in which a Court will exercise its discretion in favour of the making of an order for indemnity costs. Sperling J cited the decision as authority for the proposition that, where the time of the Court and other parties has been lost due to the misconduct of a party, costs may be awarded on the indemnity basis. That is clearly one of the categories of case in which indemnity costs may be awarded but, as French J said in Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Federal Court of Australia, 3 May 1991, unreported at 8), "The categories in which the discretion may be exercised are not closed". Nevertheless misconduct is one class of case in which courts have awarded costs on the indemnity basis. Since that is the proposition for which Cussons is cited, it may be taken that misconduct was the basis upon which his Honour ordered Ms Wentworth and Mr Russo to pay indemnity costs. 19 Sperling J continued (at 6): "As to the application for an order that the cross-claim be dismissed or alternatively be permanently stayed, the first basis on which the application was made amounted, as I have said, to a case which was either put or available to be put in two earlier, unsuccessful applications for substantially the same relief. But for the additional basis (the estoppel argument) the court would have been entitled to refuse to entertain the new application altogether, and that would have been the outcome: see my judgement of 28 April 1995. The additional basis, when examined, proved to be founded on a misconception and to be utterly without merit. The further application was, accordingly, a waste of the court's time and that of Mr Rogers and his legal representatives." 20 Eventually his Honour said: "The costs order should extend to the whole of the proceedings before me. It should extend to applications incidental to the proceedings before me. These include Ms Wentworth's application for access to medical records, the determination of a claim for legal professional privilege by Sully J and applications by Ms Wentworth after my principal judgment of 10 September 1996 for reconsideration and for setting aside of that judgment. It should extend to submissions on the merits and as to costs. It should also include the time occupied by evidence in relation to the "Te Mata" matters which I commenced to hear concurrently and later severed and postponed. In view of the findings against Ms Wentworth in my judgment of 10 September 1996, I disqualified myself from completing the hearing of those matters. They will have to start again. The time occupied in relation to them has been wasted (albeit that I would estimate that the partial hearing of those matters would have occupied no more than 5% of the total time involved in the proceedings before me including time occupied in the drafting and consideration of written submissions by Ms Wentworth and the legal representatives of the parties). My reason for postponing the hearing of those matter was that I thought priority needed to be given to the matter I have now decided. The wasted part hearing of the "Te Mata" matters should therefore be attributed to the need to resolve the matters I have decided and hence to the wasteful need for Mr Rogers' application to set aside the ex parte order and the wasteful further application by Ms Wentworth for dismissal or permanent stay of the cross-claim." Costs orders against solicitors 21 There are two statutory provisions which deal with orders for costs against solicitors. The first is s76C of the Supreme Court Act 1970 and the second is r43(1)(c) of Part 52A of the Supreme Court Rules. So far as relevant, s76C of the Supreme Court Act says: "76C(1) The Court may, at any stage of any proceedings, make one or more of the following orders in respect of a solicitor whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, those proceedings: (a) disallow the whole or any part of the costs between the solicitor and his or her client; (b) direct the solicitor to repay his or her client the whole or any part of the costs which the client has been ordered to pay to any other party; (c) direct the solicitor to indemnify any party other than his or her client against the whole or any part of the costs payable by the party indemnified. ... (5) Nothing in this section limits the generality of section 76 or any other provision of this Act.." 22 Section 76 of the Act provides, inter alia, that, subject to the Act and the Rules and subject to any other Act, costs shall be in the discretion of the Court and that the Court shall have full power to determine by whom and to what extent costs are to be paid. 23 Rule 43 of Part 52A of the Rules is headed, "Liability of solicitor". Rule 43(1) is as follows: "(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard - (a) disallow the costs as between the solicitor and the solicitor's client; (b) direct the solicitor to repay to the client costs which the client has been ordered to pay to any other party; and (c) direct the solicitor to indemnify any party other than the client against costs payable by the party indemnified." Rule 43(2) provides that, without limiting the generality of subrule (1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor to do one or other of a number of specified acts. None of the acts specified in the subrule have application to the circumstances of the present case. Rule 43(5) provides that the rule is in addition to and is intended to operate independently of the provisions of s76C of the Act. It does not, however, apply in circumstances where s76C of the Act applies. 24 If his Honour's finding of misconduct against Mr Russo be correct, s76C of the Supreme Court Act empowered him to make an order that Mr Russo pay Mr Rogers' costs. The relevant words of r43(1) empower the Court to make one or other of the orders specified in the subrule where "costs are incurred improperly or without reasonable cause, or are caused ... by any other misconduct or default, and it appears to the Court that a solicitor is responsible ...". The language used in the rule is wider than the language used in the section, but it includes the words "any other misconduct or default". The two provisions may overlap but any uncertainty that may appear to arise is overcome by the provisions of r43(5). In cases where misconduct is relied upon as the ground for the making of an order that a solicitor personally pay the costs of a proceeding, it is to s76C rather than to the rule that regard should be had. 25 Of course it should not be overlooked that the Court has wide powers in relation to costs; s76. Absent the more specific provisions of s76C and r43A(1), there would have been strong grounds for taking the view that the inherent jurisdiction of the Court would have empowered it to act in cases covered by the section and the rule. In the view we take of the matter, this is not an area which needs further to be referred to. 26 The circumstances in which a court may order costs to be paid personally by a solicitor have been discussed in a number of cases both here and in England. A number of these cases have been decided under the inherent jurisdiction or under rules different in terms from those which apply in this Court. Nevertheless, reference to some of the authorities is helpful. But it should be said at the outset that we have found no case which falls into the category of this one. We shall discuss the facts of it in due course. Whilst the authorities are helpful in indicating guidelines as to when and in what circumstances it is appropriate to make an order for costs against a solicitor, in the end this case will have to rest on its own facts and circumstances. 27 The first of the authorities to which we refer is the decision of the House of Lords in Myers v Elman [1940] AC 282 where Viscount Maugham said (at 289): "In my opinion the jurisdiction as to costs is quite different. Misconduct or default or negligence in the course of the proceedings is in some cases sufficient to justify an order [for costs against the solicitor]. The primary object of the Court is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured. Order LXV s.II, of the Rules of the Supreme Court provides the necessary machinery where the person injured is the client of the solicitor. It is a rule supplementary to the summary jurisdiction of the Court. It is not limited to misconduct or default, but expressly extends to costs incurred improperly or without reasonable cause, or which have proved fruitless by reason of undue delay in proceeding under a judgment or order. The jurisdiction to order the solicitor to pay costs to the opposite party is exercised on similar grounds. The principle will be found, clearly stated in Halsbury's Laws of England, 2nd ed., vol. XXXI p.271, where a number of authorities are cited. It will be found that many of these authorities depend, in cases where the order as to costs has been made, on the negligence or mistake of the solicitor and in that sense only on his misconduct in the proceedings. Some of the cases are those where the solicitor has instituted an action without proper authority, and it may be that they can be supported on the ground that in such cases the solicitor has warranted that he had the authority of his client to act for him in the litigation; but it must be observed that that is not the ground stated by the Court and I think they rest on the jurisdiction of the Court over its officers." 28 His Lordship went on to refer to In re Jones (1870) LR 6 Ch 497, where Lord Hatherley LC said that he thought it the duty of the Court to be anxious to see that solicitors not only performed their duty towards their own clients but also towards all those against whom they were concerned. Jones was a case very different from the present. It was a case where the solicitor had engaged to indemnify the plaintiff against the costs of a "doubtful suit" which failed. 29 In Myers Viscount Maugham later said (at 292): "But, although in the view I take it is not necessary to show that Mr Elman has been guilty of conduct which would justify the punishment of striking him off the rolls or of suspending him from practice, I entirely agree with the contention that the jurisdiction in question ought to be exercised only when there has been established a serious dereliction of duty as a solicitor either by himself or by his clerks." 30 In his judgment in Myers Lord Wright said (at 318-9): "The cases of the exercise of this jurisdiction [to order costs against solicitors] to be found in the reports are numerous and show how the Courts were guided by their opinion as to the character of the conduct complained of. The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842 ) 10 M & W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to aid in promoting in his own sphere the cause of justice. 31 Finally, in Myers v Elman, Lord Porter said (at 335-6): "The majority of the Court of Appeal took the view that unless personal misconduct was established the Court's only power under its summary jurisdiction to make the solicitor answerable for the costs of the other side was in cases where he has represented himself as having authority to act on behalf of a client when in fact he possessed no such authority, or in analogous cases." His Lordship referred to some authorities and continued (at 336-7): "The occasion of the Court's action in cases of this kind no doubt is the wrongful receipt of money, or the breach of warranty of authority, but it is difficult to see how such acts would give the Court any authority to make an order against the solicitor in the original action except by virtue of its summary jurisdiction over his conduct. He is no party to the action nor is any claim being made against him by his own client. ... I think the principle is more accurately stated by Swinfen Eady J (as he then was) in Yonge v Toynbee [1910] 1 K.B. 234: 'Whatever the legal liability may be, the Court, in exercising the authority which it possesses over its own officers, ought to proceed upon the footing that a solicitor assuming to act, in an action, for one of the parties to the action warrants his authority.' In other words, the Court is not enforcing a civil right, but exercising its authority over the conduct of its officer. Though in more recent cases the commonest occasion for imposing a liability upon a solicitor for the payment of the costs of the opposing side is in circumstances where he has assumed an authority which he did not possess, I cannot find that either principle or authority has confined the imposition of that obligation to such cases.". 32 A more recent authority is Ridehalgh v Horsefield [1994] Ch 205, a decision of the English Court of Appeal. There Sir Thomas Bingham MR said (at 225) that, if solicitors or barristers failed to observe the standards of conduct required by the Law Society or the General Council of the Bar (as the case may be) they became liable to disciplinary proceedings at the suit of their professional body and to a range of penalties which included fines, suspension from practice and expulsion from their profession. His Lordship said that procedures had changed over the years. The role of the courts in the case of solicitors and the Inns of Court in the case of barristers had in large measure been assumed by the professional bodies themselves. His Lordship continued, "But the sanctions remain, not to compensate those who have suffered loss but to compel observance of prescribed standards of professional conduct. Additional powers exist to order barristers, solicitors, and those in receipt of legal aid, to forgo fees or remuneration otherwise earnt." His Lordship added that solicitors and barristers might, in certain circumstances, be ordered to compensate a party to litigation other than the client for whom they acted for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation. His Lordship said that it was the scope and effect of this last safeguard and its relation with the others which he had mentioned (and to which I do not refer) which were in issue in the appeals. 33 Bingham MR referred (at 226-7) to Myers v Elman. He remarked that when Myers v Elman was decided, the court's "wasted costs jurisdiction" was not regulated by the Rules of the Supreme Court with one exception to which it was unnecessary to refer. He said the rules, however, reflected no general wasted costs jurisdiction. But in 1960 a new rule which later became Order 62 r8(1) was introduced which "did regulate, although not enlarge, this inherent jurisdiction." The rule was not in terms the same as r43 of Part 52A of the rules here but the two are to similar effect. 34 In the course of his judgment in Ridehaglh, Bingham MR referred to the changes in the applicable legislation both in Acts of Parliament and in rules of court in force from time to time in the United Kingdom. We do not find it profitable to go into these various changes. He also referred to Orchard v Southeastern Electricity Board [1987] QB 565 where Donaldson MR said (at 572): "That said, this is a jurisdiction which falls to be exercised with care and discretion and only in clear cases. In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim is mala fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive." 35 Later Bingham MR referred to a phrase "improper, unreasonable or negligent" which appears in the English legislation. He discussed each of these words. We refer to what he said about "improper" and "unreasonable" but not to what he said about "negligent" because this is not a case which involves negligence. Of "improper" and "unreasonable" his Lordship said (at 232): "'Improper' means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial)) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. 'Unreasonable' also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable." 36 There is much more in the judgment of Bingham MR but, bearing in mind the difference in the statutory language which is in force in England and the particular circumstances of the cases which Bingham MR considered, we do not find it useful to refer further to Ridehalgh. We should mention, however, that the judgment of Bingham MR was the judgment of the Court. 37 Leicester v Walton (22 November 1995, Court of Appeal, unreported) was a decision of this Court concerned with possible prejudice to the appellant's case brought about the late withdrawal of his solicitor, Mr Pike. In the course of a directions hearing, Sheller JA had ordered Mr Pike to file an affidavit explaining the circumstances under which he had purported to cease to act for the appellant and the basis upon which he claimed to have complied with the Rules in that regard. Mr Pike filed an affidavit in which he deposed to the terms of his employment by United Medical Defence that he might only provide legal services to members of the organisation if he had been instructed to do so by his employer. It is unnecessary further to refer to the contents of Mr Pike's affidavit but it is set out comprehensively in the judgment of the Court. The Court then made reference to Part 66 r7 of the Supreme Court Rules which deals with the procedure to be followed when a solicitor ceases to act for a party. The Court said (at 9) that one purpose of the rule was to prevent solicitors, without the leave of the Court, ceasing to act for a client within less than seven days of notice in writing to the client. The Court said that Mr Pike, having not applied for and obtained the leave of the Court to cease to act, should, while he remained on the record, have taken steps to ensure that the appellant complied with the Court's orders. The Court added that, while Mr Pike was still his solicitor, the appellant failed to comply with the Court's order to file submissions. 38 The Court went on to discuss the question of what was to be done to overcome the problem which confronted the Court without doing injustice to the parties. It said that the predicament in which the appellant found himself was not of his doing but of the organisation, ie Mr Pike's employer, of which he was a member. The Court made reference to s76 of the Supreme Court Act and also to s76C of that Act and Part 52A r43 of the Rules. The Court then said(at 15): "The Court should not make an order against Mr Pike (the solicitor) for the purpose of punishing him or to demonstrate its disfavour of the way he or his employer has acted in this matter. The grounds for making an order against him must be that his action or inaction led to the incurring of costs which would not otherwise have been incurred or the wasting of costs which would not otherwise have been wasted." Leicester v Walton was referred to by Simos J in Knaggs v J.A.Westaway Sons Pty Ltd (1996) 40 NSWLR 476 at 484-5. 39 In the course of its judgment, the Court referred to the decision of the High Court in Knight v FP Special Assets Ltd (1992) 174 CLR 178. There, the High Court was concerned with the construction of Order 91 r1 of the Rules of the Supreme Court of Queensland which provided that, subject to the provisions of the Judicature Act and the Rules, the costs of and incident to all proceedings in the Court, including the administration of estates and trusts, should be in the discretion of the Court or Judge. It was held by a majority of the High Court that the rule was not confined to orders for costs affecting parties to proceedings. The rule conferred jurisdiction to make an order for costs against the receivers of companies which were unsuccessful parties in proceedings, the receivers themselves not being parties to those proceedings. 40 In their judgment, Mason CJ and Deane J, with whom Gaudron J agreed (at 205), said (at 188) that not all the cases in which orders were made against persons who were not parties on the record could be explained on the footing stated by the Judicial Committee of the Privy Council in Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2 App Cas 186, at 212. Mason CJ and Deane J said that it was artificial to attribute the orders for costs against solicitors to an exercise of the disciplinary power rather than to an exercise of the jurisdiction to award costs of the proceedings. The cases awarding costs against non-parties were more readily explicable on the footing that there was no absence of jurisdiction to order costs against non-parties in the strict sense and that the jurisdiction could be exercised against persons who were considered to be the "real parties" to the litigation. Knight v FP Special Assets Ltd is not of direct relevance to the circumstances of this case but the passage from the judgment of Mason CJ and Deane J just referred to exhibits a general consistency in approach with the approach taken in the English cases and with that taken in the decision of this Court in Leicester v Walton. 41 It follows that the Australian cases do not suggest that the general approach taken in England ought not to be followed here. The Australian cases are perhaps not as comprehensive as either Myers or Ridehalgh. But it is clear that there is no difference of substance in the approach taken in the United Kingdom and the approach taken here. Accordingly, the English authorities provide guidance for courts here in a matter such as this. 42 Mr Russo was the solicitor on the record during the whole of the hearing of the proceedings before Sperling J, although a notice of ceasing to act was filed shortly before the delivery of the judgment of 28 August 1997. Despite the fact that Mr Russo was the solicitor on the record, the proceedings in Court were at all times conducted by Ms Wentworth. The record sheet relating to the judgment of 10 September 1996 shows that the plaintiff, ie, Ms Wentworth, appeared in person but that her solicitors were Russo & Partners. 43 The situation is a most unusual one. Ordinarily, a party speaks through his or her legal representative or appears in person. But he does not retain a legal representative who is on the record and, whilst that is the case, appear on his own behalf. One of the reasons why this is so is that legal practitioners have a duty to the Court as well as a duty to their clients. If a solicitor remains on the record while the client presents the case in person, there may be problems because the party appearing in person has engaged in conduct which, if engaged in by a practitioner, would be a breach of the practitioner's duty to the Court. Furthermore, the Court, during a hearing, may wish assurances or even the giving of undertakings by a legal practitioner confident in the knowledge that the legal practitioner's duty to the Court will ensure that the assurances or undertakings may be relied upon. The course followed in this case is an undesirable one and ought not to occur. Parties must make up their minds whether or not to retain a legal representative. If they wish to appear in person, then the solicitor should file a notice of ceasing to act so that he is no longer on the record. That course would not prevent a solicitor remaining in the background, or even being present in Court in order to advise or assist a client. Mr Russo is not on the record in the proceedings which have been conducted before us but he has been in Court for some of the hearing not only because he is an applicant for leave to appeal, but also because he has been informally assisting Ms Wentworth in the conduct of her case. Mr Russo was throughout the proceedings before Sperling J the solicitor on the record for Ms Wentworth. Mr Russo must take responsibility for this and cannot shelter behind Ms Wentworth. He must be taken to have approved of the way in which she conducted the case before Sperling J. As was said in an earlier part of this judgment, the facts of this case are not at all similar to the factual situation of any other case. It has, so far as our researches have indicated, no parallel. But the matter must be approached as a matter of principle. The particular facts and circumstances of this case are such that, if it be established that Ms Wentworth was guilty of the misconduct found against her by Sperling J, Mr Russo must bear responsibility for it. 44 The essential part of his Honour's judgment concerning Mr Russo is as follows: "Along with Ms Wentworth, Mr Russo is personally responsible for the waste of time and money involved in the proceedings before me. He swore an affidavit on 27 September 1994 which deposed to communications with Mr Rogers' solicitors and which he knew would be relied upon and was relied upon as the vehicle for Ms Wentworth's case that Mr Rogers had abandoned the cross-claim. In the context of an ex parte application to dismiss the cross-claim, he failed to bring the letter of 13 October 1994 to the court's attention notwithstanding that it went the other way. I am not persuaded that he had reasonable grounds for failing to do so. His explanation goes to the weight of the letter as evidence, not to its relevance. He shares responsibility with Ms Wentworth (who conducted the application before Loveday AJ) for the court having been misled as to the state of the evidence on the question of whether Mr Rogers had truly abandoned the cross-claim, for the miscarriage of justice which ensued and for the need for Rogers' application to set aside the ex parte order on whatever grounds proved to be available. His responsibility extends to the waste of time and money involved in Ms Wentworth's further application to dismiss or permanently stay the cross-claim. Apart from his role in prosecuting a hopeless case as her solicitor, the allegation of abuse of process which was the central and time consuming feature of the application was also relied upon in opposition to Mr Rogers' application to set aside Loveday AJ's ex parte order dismissing the cross-claim (the cross-claim being allegedly futile because it was amenable to be dismissed or permanently stayed in any event). The time expended on both applications can therefore be fairly attributed to the initial miscarriage of justice in the ex parte application to Loveday AJ." 45 It may be that Mr Russo acted for Ms Wentworth in the way that he did for reasons which he considered proper. He may have done so in order to help her, she otherwise being an unrepresented litigant. He may have thought that he could be of assistance to the Court in what has been a very protracted and complex series of matters. There is no evidence of these things, but it may be that is why he did what he did. In this respect, there are some statements made by Mr Russo in the course of his submissions which suggest that his motives were not dishonourable. We refer to the following exchange: "RUSSO: No. His Honour indicates that it was my responsibility irrespective of whether or not I was there or not to ensure that the letter was before the court. Your Honours are aware that I've acted for Ms Wentworth for now nearly nine years and in substance it has always been a situation where whatever correspondence I have received I have always sent to Ms Wentworth and that's a matter of evidence before Sperling J. SHEPPARD AJA: You were on the record at that stage? RUSSO: That's correct. The position is that the court has accepted, because of the nature of the Wentworth proceedings which your Honours are aware of, for any practitioner to devote their entire time to Wentworth cases would mean that one would not do any other work at all. So the nature of the relationship between Ms Wentworth and myself is that the applications are prepared, they are discussed, they are germinated between the two of us, submissions are written by both of us, we look at the material which needs to be put. There is a constant level of communication between us. SHEPPARD AJA: Yes but Mr Russo it does seem to me and of course one sees all sorts of things as one goes on, it's a very unusual arrangement is it not? RUSSO: It is, your Honour but one has to also understand that Ms Wentworth is legally qualified and secondly has experience in this Court which exceeds the experience of a large number of counsel. My view is in the terms of her aptitude and her ability to deal with applications before the Court albeit in circumstances where there's an emotional content on her part and I can understand that, as I have over the last nine years, I find her extremely capable. SHEPPARD AJA: That's your view, but you see you are on the record and remain on the record, you can't shed your responsibility to the court." 46 In our opinion, Mr Russo's motivations have little to do with the present problem. The matter must be looked at objectively. Mr Russo lent himself to a situation in which he allowed himself to be controlled by his client. It is one thing to take instructions but it is another thing to allow the client to have complete control of the litigation in the way that Ms Wentworth had control of this litigation. We do not mean to be unkind but the objective facts of the matter are open to the inference that Mr Russo acted as Ms Wentworth's lackey. He did her bidding and allowed her to conduct the various applications which were before the Court in whatever way she chose. He had no control over her and, if what she was doing would have amounted to misconduct by a practitioner, he must bear responsibility for what she did. 47 At this stage we are not dealing with his Honour's general criticisms of Ms Wentworth's conduct. We are dealing with Mr Russo's responsibility for the way the proceedings were conducted by her. To the extent that his Honour has decided that Mr Russo must, in the circumstances in which he acted, accept personal responsibility for Ms Wentworth's conduct we are in complete agreement with what his Honour has said. We have yet to say something about submissions made by Ms Wentworth in relation to the proceedings before Loveday AJ. Mr Russo claims not to have been present during that hearing. He may not have been but, in our opinion, if Ms Wentworth misled Loveday AJ in a material respect, Mr Russo must accept responsibility for any misconduct found against her. The course of the hearing 48 The hearing of the summons filed on 11 September 1997 did not proceed continuously. The hearing was interrupted because of an illness which befell Ms Wentworth. This made it necessary for the matter to be adjourned on more than one occasion. Our impression is that Ms Wentworth has continued to suffer intermittently from bad health throughout 1998 and in the early part of this year. Her ill-health aside, between 20 February 1998 and the resumption of the hearing on 7 December 1998, Ms Wentworth made applications both to Handley JA and Stein JA for orders that they disqualify themselves from further dealing with any of the matters in which she was involved including the matter which was the subject of the judgment of this Court on 21 October 1998. The applications were dismissed. 49 Oral submissions in this matter were first heard on 20 February 1998. The hearing was not completed and was stood over to a date to be fixed. Written submissions were received on 16 February 1998 (Mr Rogers), 16 March 1998 (Mr Russo) 17 April 1998 (Ms Wentworth), 2 July 1998 (Mr Rogers in reply to Ms Wentworth's submissions of 17 April 1998), 23 November 1998 (Mr Rogers) and 2 December 1998 (Ms Wentworth) and Mr Russo). Submissions by Ms Wentworth are also to be found in the statement pursuant to Part 51 r4(7) of the Rules filed by her with the summons in this matter on 11 September 1997. The further oral hearing of the matter eventually resumed on 7 December 1998 and was concluded on that day. 50 After the Court's decision was reserved on 7 December 1998, further submissions were received both from Ms Wentworth and Mr Russo dated 2 January 1999. These submissions were sent with a letter from Mr Russo in which Mr Russo said that Ms Wentworth had been extremely ill and was still in ill health at the time the letter was written. A medical certificate was enclosed to support this statement. Mr Russo said that he had been asked to mention two matters to the Court. Firstly, on 20 February 1998 when Ms Wentworth made submissions, it was only "on the basis of the Leave to Appeal and it was not suggested by the Court that the application for Leave to Appeal was to be dealt with as the Appeal until the Defendant's counsel made their oral submissions". I have earlier dealt with this. Secondly, it was said that Ms Wentworth was denied the opportunity of making any submissions either in chief or reply and had not been heard orally on her appeal at all. Ms Wentworth was thus denied the right to make any submissions on costs, and consequently the Court was led into error by "false and misleading submissions by the Defendant's counsel which remained uncorrected and are reflected in Sperling J's judgment". Mr Russo also said that both on 20 February and 7 December 1998, Ms Wentworth had protested at the continuing "false statements" made to the Court by the defendant's counsel and, at each objection, was told she could correct the errors in reply. The letter said that, because Ms Preston, of counsel for the defendant, ie Mr Rogers, used the whole of the time allocated, Ms Wentworth was denied that opportunity. We were asked to note her protest in this regard. All we would say in relation to Mr Russo' remarks is that we are satisfied that Ms Wentworth had ample opportunity to put all submissions on which she wished to rely. The transcript of the oral argument and the various written submissions demonstrate this to be so. The principal questions to be decided 51 A reading of the various submissions made by the parties discloses that the substantial matters to be considered are: (a) Whether Sperling J was disqualified from dealing with the costs of the proceedings culminating in his judgment of 10 September 1996 because of apprehended bias on his part? I have earlier dealt with this submission and concluded that it should be rejected. (b) Whether the evidence established that counsel and solicitors for Mr Rogers were retained " pro bono ", and, if so, whether the consequence was that Mr Rogers was not entitled to recover any costs because he had incurred none? (c) Whether Loveday AJ was misled by any failure of Ms Wentworth to produce the letter from Mr Rogers' former solicitors of 13 October 1994 at the hearing on 24 October 1994? (d) Whether any misconduct committed by Ms Wentworth was such as to warrant the order for indemnity costs made by Sperling J against her? (e) Whether, in all the circumstances, it was appropriate for the Court to order that Mr Russo pay the costs of the proceedings and whether, if it was, the Court could order that they be paid by him on the indemnity basis? (f) Whether Sperling J was in error in denying Ms Wentworth the right to set off amounts due by Mr Rogers to her for costs ordered to be paid by him as a consequence of the outcome of the trial for the action for assault in 1994? There were other matters which were the subject of submissions but, having considered the material which there is before the Court, we are satisfied that those which we have mentioned are the principal ones. Pro bono 52 It was submitted on behalf of Ms Wentworth and Mr Russo that Mr Rogers was not entitled to recover any costs because his solicitor and counsel were retained "pro bono". There is evidence to support the conclusion that they were retained on this basis but, nevertheless, there is no concession by counsel for Mr Rogers that that was the basis of their retainer. In any event there are questions of precisely what a retainer "pro bono" means. 53 Of relevance in relation to this matter is a letter dated 4 July 1997 from the Office of the Legal Services Commissioner to Ms Wentworth included by her in one of her written submissions. Amongst other things the letter says: "This office has experienced a growing problem with members of the legal profession who seem to make little or no distinction between matters which are to be run pro bono publica and those which are actually speculative in nature. It is our experience that with the growth in the use of conditional agreements to deal with speculative matters, fewer matters are actually being run pro bono. It is my understanding that a pro bono matter in the strict sense is a matter for which no fees will be charged. Where there is an agreement that a solicitor or a barrister will be acting pro bono, this would preclude that practitioner from being able to claim costs at the end of a matter even were their client to be successful in the litigation and have costs awarded in their favour. This is consistent with the general rule that a legal practitioner may not obtain payment in excess of the amount to be paid by their client as agreed in any particular matter. It therefore follows, that if the agreement between the practitioner and their client is that the matter should be run pro bono, or at no cost, the practitioner would be unable to claim costs in the event that their client wins. Of course this differs markedly from the position where the client and the practitioner have entered into a conditional or speculative arrangement whereby the practitioner will only be paid if the client is successful. The problem is further compounded when the term pro bono is used in a cost agreement. This then becomes the costing contract, if you like, between a client and a practitioner. If that contract in essence is to state that the matter is to be run for 'free' then the repercussions of this on the practitioners ability to recover costs would in my view be quite strict. In addition, to the ethical issues involved, this is also a matter of contract. If the client has no liability to pay costs because of the contract it would be untenable to suggest that the solicitor or barrister would be able to recover costs against another party. It would appear from a number of the cost agreements that we have seen at my office, and from the complaints we have received in relation to pro bono work that a great deal of confusion still exists about the meaning of the term and its practical effect. It seems to me that a final determination as to whether a matter was to be run pro bono in the strict sense, or whether it was actually to be handled as a conditional or speculative arrangement will require an assessment of the circumstances of each case. It would be necessary to establish whether the intention in the agreement between the practitioner and the client was one which was purely pro bono, thereby the practitioner not expecting, and not being able to recover fees at the end of the matter, or speculative in which the practitioner would be able to be paid ..." 54 The various meanings which the expression "pro bono" may have in practice illustrate the need for there to be evidence of the precise terms of the retainer of counsel and solicitors who are acting in this way. So far as we are aware, that matter has not been the subject of investigation by any previous court or registrar. The present practice of the Court requires that costs, if not agreed upon, must be assessed, not taxed as was formerly the case. Reference may be made to s76(1)(c) of the Supreme Court Act and to Part 11 of the Legal Profession Act 1987. Division 6 of that Part deals with assessment of costs. Sections 199 to 202 provide for various applications for the assessment of costs. Section 203 deals with the manner in which an application is made, s204 with the persons who are to be notified of the application and s206 with the referral of matters to costs assessors. Section 207 provides that a costs assessor may require a person to produce any relevant documents of or held by the person in respect of the matter. The assessor may also require further particulars to be furnished and may require those particulars to be verified by statutory declaration. Section 208 provides that a costs assessor must not determine an application for assessment unless the costs assessor has given both the applicant and any barrister, solicitor or client or other person concerned a reasonable opportunity to make written submissions in relation to the application and has given due consideration to any submissions so made. Section 208(2) provides that, in considering an application, a costs assessor is not bound by rules of evidence and may inform himself or herself of any matter in such manner as he or she thinks fit. 55 Ms Wentworth and Mr Russo objected strenuously to the notion that the terms of the retainer of counsel and solicitor for Mr Rogers should be determined by a costs assessor. Confronting them, however, is the decision of this Court in Graham v Aluma-Lite Pty Ltd (25 March 1997, Court of Appeal, Butterworths unreported judgments, BC9700842). One of the questions which concerned the Court in that matter was whether the appellant's costs could include anything for the appellant's counsel's fees since counsel had been acting pro bono. It was submitted that pro bono meant "absolutely free of any charge." In relation to this matter Priestley JA said (at 11): "...the matter raised in [the] point was something for the Costs Assessor to consider. It appears from the materials before us in this application that submissions were put to him on the point. Presumably, the proper way of pursuing that point would be to pursue whatever avenues of review or appeal may be available against the Costs Assessor. I do not wish to encourage Aluma-Lite to think that if such avenues are available success will lie at the end of the road. Without having heard argument on the matter, it nevertheless seems to me a doubtful proposition. The answer to the question would depend upon an examination of a number of considerations, including the actual terms upon which counsel agreed to do the work he was asked to do on behalf of Mrs Graham by the Manager of the New South Wales Bar association's Legal Assistance Scheme. The court does not know what the terms of counsel's engagement were. But, in any event, as I have indicated the question, in my opinion, is not one for this court. It is for the Costs Assessor in the first instance and thereafter whatever the Supreme Court Act and Rules provide for review or appeal." 56 During the course of the hearing we indicated to the parties that we were disposed to follow what Priestley JA had said. His judgment was agreed in by Mason P and Cole JA and it behoves us to follow it unless we are convinced that it is not correctly decided. In our respectful opinion, it is correctly decided. We do not see what other course there is that could be taken. It follows that the submissions made by Ms Wentworth and Mr Russo that no order for costs should be made in favour of Mr Rogers because his counsel and solicitor had acted pro bono should be rejected. 57 Of course that does not mean that eventually Ms Wentworth and Mr Russo may not be successful on the point they have taken. The reason the submission has been rejected is because this Court is not the appropriate forum to deal with it. Even if Mr Rogers is not entitled to recover any professional costs for the work done by his counsel and solicitor, he may still be entitled to recover on an assessment for any disbursements and witnesses' expenses he has incurred. See Cachia v Hanes (1994) 179 CLR 403. Whether Loveday AJ was misled by Ms Wentworth's failure to produce letter of 13 October 1994 58 There is then a question as to Sperling J's finding that Ms Wentworth, at the hearing before Loveday AJ on 24 October 1994, misled him. There is a good deal to be said for the view that that matter has already been dealt with, at least inferentially, by this Court in its judgment of 21 October 1998. But in case there be any question about the matter, we propose to refer to the evidence upon which Sperling J relied. Previously Mr Rogers had been represented by a firm of solicitors, Khan & MacLean, who practise in Tamworth. At the time that the critical letter of 13 October 1994 was written by them to Mr Russo, they were wishing to cease to act for Mr Rogers. They filed a notice of ceasing to act but there was some error made in the procedure that was followed and the notice was not, at least at that stage, effective. In reality, however, the fact was that about the time of the proceedings before Loveday AJ on 24 October 1994, Khan & Maclean were not in fact acting for Mr Rogers at least in a real sense. 59 A number of letters were written by Khan and MacLean to Mr Russo prior to their letter of 13 October 1994. In a letter dated 23 September 1994 it was said that there had been a discussion with Mr Rogers. They said that they had told Mr Rogers that, in their opinion, the cross-claim for malicious prosecution remained "alive." The letter said that Mr Rogers had been put on notice that Ms Wentworth would file a notice of motion seeking a declaration that the jury's finding in the action was, as a matter of law, effective to extinguish the cross-claim. Reference was also made to a letter from Mr Russo of 12 September 1994 which was said to have foreshadowed that he would seek to have the matter dealt with on 5 October 1994 in the Court of Appeal. It was said that Mr Rogers had been advised that, in the view of Khan and MacLean, the Court of Appeal would not delve into such an issue so that he could safely await receipt of Court process in due time. The letter then said, "To more specifically reply to your letter we have taken the instructions and the instructions are that our client will not agree to the withdrawal or dismissal of the cross-claim". 60 After discussion of some figures dealing with the amount of interest to be paid on the verdict of $2000 recovered by Ms Wentworth at the trial before Sully J, the letter continued: "In consequence he [Mr Rogers] instructs us to take no further part in the proceedings and indeed in a more general sense withdraws our instructions totally. An appropriate Notice is in the process of preparation and will be filed in the Registry. We do not however wish to appear to be disrespectful to the Judges of the Court of Appeal and at this stage have not come to any view as to how we should give them notice whether by way of letter or by outlaying further of our monies in payment of an agent's fee simply to appear and note that we no longer act. Nevertheless to close off the correspondence and deal with your letter we return to the allocation of 5 October as the resumed hearing date of the Appeal and confirm to you that prior to the revocation of our instructions the writer personally confirmed to the Court that the date was suitable." 61 The next letter is dated 4 October 1994. It refers to a facsimile sent by Mr Russo that day. It was said that both Mr Khan and Mr MacLean were absent from the office during the week. The letter was written by a Mr Young who said that he could only locate the first few pages of "your attempted 28 page facsimile" of 27 September 1994. Mr Young said that there did not appear to be any affidavit in support of a notice of motion which Mr Young acknowledged had been received together with a notice to produce. He also said that he confirmed that the firm's instructions had been withdrawn. He said that it was not appropriate to describe Mr Rogers as the firm's client. Mr Young concluded the letter by saying that he had not been able to contact Mr Rogers that day, ie 4 October 1994. But he added that he was able to "glean" from the file copy of a letter dated 27 September 1994 to the Associate to the Acting President of the Court of Appeal that Mr Rogers would not be present before the Court of Appeal on 5 October 1994. 62 The notice of motion which came before Loveday AJ was not the notice of motion referred to by Mr Young. It was a notice of motion filed on 11 October 1994 in the Common Law Division of the Court in matter No 19228 of 1982. As mentioned, the motion sought that Mr Rogers' cross-claim be dismissed and also claimed a number of other orders. 63 On 13 October 1994 Khan & MacLean wrote to Mr Russo the letter which we have described as the critical one. Reference was made to a telephone conversation which had taken place between Mr Russo and Mr MacLean on the afternoon of 13 October 1994. Mr MacLean acknowledged receipt of a number of documents. One of these was a facsimile transmission dated 11 October 1994 together with a summons, notice of motion and notice to produce. Also acknowledged was a letter dated 11 October 1994 received on 13 October 1994 enclosing a notice to produce and an affidavit in support of the notice of motion. Part of the affidavit was said to be missing. The letter then continued: "As you know we no longer act however although the writer does not pretend total recall there is a nuance of a suggestion of impropriety on the writer's part in the conversation quoted in paragraph 9 of the Affidavit. The writer would not purport to put his recollection in direct speech however there are two aspects in which he thinks your recollection is in error. Firstly the conversation you recall was certainly preceded by some remarks by the writer to the effect that one can validly defend a claim on behalf of such a person as Mr Rogers without prospect of being paid but the conversation went on then to say something to the effect of that which you quote where the writer's aversion to prosecute a claim for no money was put as the antithesis. Secondly the writer's recollection is the reflection of Mr Roger's intention that he would not prosecute the Cross Claim until he had the money to do so and that important aspect is not reflected in your Affidavit. Please note these matters. The first of the above was sent to Mr Rogers by post on 7 October. The latter documents will be sent by post to Mr Rogers this afternoon. There were some problems with the way in which we had drawn the Notice of Ceasing to Act in that a requisition had been raised thereon. An amended document fulfilling the requisition was sent by document exchange on 12 October." The first of the documents said to have been sent to Mr Rogers on 7 October 1994 was a facsimile transmission of that date received from Mr Russo enclosing orders made in the Court of Appeal. They are not relevant to this matter. 64 In support of the notice of motion, Mr Russo filed two affidavits sworn by him, the first dated 12 October 1994 and the second, 17 October 1994. In the first of these affidavits Mr Russo set out the earlier history of the matter. In paras 7 and 8 of the affidavit Mr Russo said: "The Defendant has consistently refused to proceed with his cross-claim and the Plaintiff (ie Ms Wentworth) believes that in view of the determination of the jury in June 1994 that the Defendant's cross-claim is hopeless. ... The Plaintiff believes that the Court would not and should not set the matter of the Defendant's application for Malicious Prosecution down for hearing as it has no possible prospect of success." Paragraph 9 of Mr Russo's affidavit was as follows: "On 22 September 1994, I had a conversation with the solicitor for the Defendant, Mr Duncan Maclean of Tamworth and I said to him with words to the effect: 'Will your client consent to his malicious prosecution claim being dismissed?' He replied with words to the effect: 'You only prosecute a matter if you are going to get money. Your client has no money, our client will not pursue it but will give you no consent, so when you have all the figures about costs, you can send them up to us and we will pass them onto him'." 65 Mr Russo referred to the letter from Khan & MacLean dated 26 September 1994. A copy was said to have been annexed to the affidavit but it does not appear a copy was sent to Mr Maclean. Mr Russo said that he had made searches of properties owned by Mr Rogers at Tamworth known as "Te Mata". He referred to certain orders made by the Court of Appeal on 6 October 1994 and to the transcript of proceedings before that Court on 5 and 6 October 1994. Mr Russo said that he believed that Mr Rogers had entered into a series of transactions with his wife, Mrs Toni Rogers, for the purpose of transferring out of his ownership properties in two certificates of title. Mr Russo said that the transactions commenced in March 1994 when the retrial of Ms Wentworth's claim for assault was imminent. In later paragraphs Mr Russo repeated his statement that Ms Wentworth believed that Mr Rogers' cross-claim was not sustainable, was without merit and was "clearly hopeless". He also said that he, Mr Russo, believed that the Court would not give leave for the prosecution of the cross-claim for malicious prosecution. Mr Russo said that the arrangements entered into in respect of the property earlier referred to, if allowed to stand, would result in Mr Rogers having no assets or property from which he could satisfy any order for judgment made in Ms Wentworth's favour in respect of any costs or any other matter. There were some further paragraphs which have some relevance to the present matter but the gist of the affidavit is as we have indicated. 66 In his affidavit of 17 October 1994 Mr Russo referred to the notice of motion filed on 11 October 1994. He referred to having sent a copy of the documents he filed to Khan & MacLean. There seems to be no issue about that. He referred to Ms Wentworth having sent a copy of the notice of motion and a summons to Khan & MacLean by document exchange and he also said that he had been advised that Ms Wentworth had placed a copy of the notice of motion and the summons in an envelope addressed to Mr Rogers at the property "Te Mata". Mr Russo said that he had sent a copy of the affidavit of 12 October 1994 to Khan & MacLean again by document exchange. He then deposed to a conversation he said that he had had with Mr MacLean on 13 October 1994. The conversation was in the following terms: "Russo: Have you received all the various documents in these proceedings? MacLean: I have received some but I will just check. Russo: You should have received a Motion, a Summons, Affidavit in Support and Notice to Produce. MacLean: I received the Orders of the Court of Appeal, I received the Affidavit, I received the Notice to Produce, I'll just check if I have received the Motion and the Summons. After a short term [sic] Mr MacLean returned to the phone and said with words to the effect: MacLean: I have the stamped copy of the Notice of Motion. MacLean then said to me words to the effect: Maclean: We were requisitioned in respect of our 'Notice Ceasing to Act' but that has now been sent and you probably will have it some time next week. I will bundle all these things together and send them today to Gordon Rogers and he should have them first thing in the morning." 67 It was against that background that Mr MacLean wrote the critical letter of 13 October 1994. There seems to be no issue that the letter was received by Mr Russo and that Ms Wentworth either had it or a copy of it. Significantly Mr Russo made no reference to the letter in his affidavit of 17 October 1994. 68 The notice of motion came on for hearing before Bruce J on 17 October 1994. There was no appearance of Mr Rogers. It was adjourned to 24 October 1994 when it came before Loveday AJ. The transcript for 24 October 1994 notes the appearance of Ms Wentworth. She is said to have appeared in person. There was no appearance for Mr Rogers. Loveday AJ asked Ms Wentworth a number of questions in answer to which she informed him of the history of the matter. His Honour referred to an application for an injunction which was before him. The application sought to restrain Mr Rogers from disposing of his assets so as to defeat the judgment and the order for costs recovered by Ms Wentworth in her action for assault. Ms Wentworth referred to the fact that on 5 October 1994 the Court of Appeal had given an interim injunction until 17 October restraining Mr Rogers from dealing with his property, ie "Te Mata". Ms Wentworth said that that matter had come before Bruce J on 17 October 1994. He had not had time to hear it and so had adjourned it until 24 October. At the same time he extended the injunction to that day. Ms Wentworth said that there were three parts of the matter. The first was an application for the permanent stay or dismissal of the malicious prosecution action. There was discussion about that. Eventually his Honour asked Ms Wentworth whether she knew why Mr Rogers was not present. His Honour said, "Has he given up, in effect?" Ms Wentworth's response was: "That is what I believe. The solicitors who were retained by Mr Rogers have been talking to the solicitor who I have on the record, Mr Russo. We understand from Mr Rogers' solicitors who are how filing a notice ceasing to act, that Mr Rogers no longer wishes them to act for him. He does not intend to prosecute the malicious prosecution action but at the same time will not consent to it being dismissed, so in order to try and straighten the matters out --" Ms Wentworth was interrupted by a question from his Honour. 69 Ms Wentworth said that the second and third matters that were in question were the injunction restraining Mr Rogers' dealing with the property and what she called "a winding back order." She said that this was to: "dispose of arrangements that he has entered into in April of this year to dispose of his assets so as to defeat any possible judgment. This is the mortgage and the sale to his wife." Loveday AJ pointed out to Ms Wentworth that Mrs Rogers had not been joined as a party and that, if she were to proceed with the application, Mrs Rogers would have to be joined. 70 After some further discussion, his Honour asked about service. Ms Wentworth told him that the notice of motion had been served by facsimile on 11 October 1994, it having been sent to the solicitors on the record at the time. She referred to Mr Russo's affidavit, presumably of 12 October 1994. Ms Wentworth was, of course, strictly correct in saying that Khan & MacLean were the solicitors on the record at that time but, on the basis of what they had said about attempting to cease to act for Mr Rogers, it scarcely gave Loveday AJ a complete picture. Loveday AJ said that he would have thought that the solicitors would at least have come along. He said that he could not force them to come. Eventually his Honour concluded that Mr Rogers had had "full notice of the application to dismiss the cross-claim". He added that ordinarily when it was sought to dismiss a cross-claim for want of prosecution, an affidavit was filed setting out that nothing had been done for a long period of time. Ms Wentworth said that nothing had been done since the trial which had taken place in June 1994. His Honour thought that Ms Wentworth should give evidence and she went into the witness box. 71 In the course of her evidence she said that Mr Rogers had not made any attempt to prosecute his malicious prosecution claim. She had been told by Mr Russo that he had had a conversation with Mr Rogers' solicitors and they had said to him effectively: "Mr Rogers will not prosecute the malicious prosecution claim. There is no point. She doesn't have any money." Ms Wentworth's evidence then proceeded as follows: "Q ... you have not heard personally from Mr Rogers any matter which suggests that he has any interest or inclination to pursue the malicious prosecution action. A I have not heard from Mr Rogers at all and my solicitors have not had any response from him at all. Q You consulted the solicitors and that is what the solicitors have told you? A That they have not heard from Mr Rogers at all." 72 There was some further discussion and his Honour delivered short oral reasons for judgment and made orders. His Honour said that he was satisfied on the material before him that Mr Rogers had "now no interest in pursuing his cross-claim alleging malicious prosecution by" Ms Wentworth. He added that he was satisfied that Mr Rogers had been served with, and had had due notice of, the application made to dismiss the cross-claim. His Honour said there was nothing to indicate that Mr Rogers had anything that he wished to put before him in opposition to the application. He said that he was prepared to grant the application dismissing the cross-claim for want of prosecution. He said that the evidentiary material on which he based the dismissal was the material contained in the Court file and the oral evidence given by Ms Wentworth. He then made a formal order dismissing the cross-claim with costs. That, of course, was the order which Sperling J was asked to set aside and which he did set aside in consequence of his reasons for judgment published on 10 September 1996. 73 In the run of the submissions made to us both by Ms Wentworth and Mr Russo there are statements which call into question whether or not Ms Wentworth did hand the letter of 13 October 1994 to Loveday AJ. A comprehensive reading of the transcript of the proceedings of 24 October 1994 before Loveday AJ suggests that Ms Wentworth did not hand the letter up. As mentioned, it is not referred to in Mr Russo's affidavit of 17 October 1994 and there is no mention of the letter in the transcript. Furthermore it appears from a consideration of the questions asked by Loveday AJ that, if he had been shown the letter, he would not have gone ahead but would once more have adjourned the matter in order to give Mr Rogers a final opportunity of appearing. 74 There is other material which is relevant to this question. In the course of Ms Wentworth's re-examination by Mr Russo during the proceedings before Sperling J, Sperling J asked Ms Wentworth a number of questions. The relevant part of the transcript of her evidence is as follows: "I simply do that in that very precise way to say that the letter of 13 October, your Honour, was not such as had any relevance at all to the matters that were before the Court at any time. HIS HONOUR: Is that because it was your belief that what was said in the letter of 13 October did not correctly convey Mr Rogers' true attitude to the proceedings? A Well, not only did it --- Q Was that part of it? A That was part of it your Honour. But it also did not reflect his instructions to his solicitors which are set out. It is supposed to be in relation to this conversation of 22 [September], it is only in that context your Honour that he raises it. He is not raising it that that is Mr Rogers' present position. Q You say it is your belief that what was in the letter of 13 October: (A) did not convey Mr Rogers' true attitude to the litigation and, secondly, did not convey what were truly Mr Rogers' instructions to his own solicitors? A Yes, your Honour. And further the instructions to his solicitors were that he would not pay any costs, he would not prosecute and not even defend and send the bills when they were all there. Your Honour, it is really important because what Mr MacLean is purportedly setting out is his recollection of what he says was in the conversation of 22 September. Your Honour he could not possibly have that recollection and have written what he wrote on 23, one day later. Q Do you say because you believed the letter of 13 October was wrong in those respects you did not put it before his Honour Mr Justice Loveday? A As to the writer's recollection your Honour, we thought it was quite irrelevant because he has got the instructions which he set out on 23 September. We put that before his Honour Mr Justice Loveday that set out exactly and precisely what instructions he had received from his clients. Q You say you thought it was irrelevant because you believed it to be wrong? A No, your Honour, wrong as to recollection. Q Yes? A Well, clearly it just cannot be possibly right as to recollection. Q Am I correct in understanding your---? A --- reason for not putting it there. Your Honour I considered it was irrelevant I thought Mr MacLean must have had a mental hiccup. You can't write to a party in a proceeding in the terms that he wrote on the day after a conversation, then, a month later suddenly without anything else suddenly say: Look, I have now a different recollection. Particularly when he had been served with an affidavit on 27 within five days of the conversation taking place on 12th. Your Honour in all of those contexts it just simply did not seem to me what is set out in that letter of 13 could have anything to do with it. Because if your Honour will look at it in context, it is supposed to be the letter of the conversation of 22nd, in the letter of 23rd he is saying regardless of how big the costs are my client is going to go bankrupt. Now he says a month later: Really my recollection is Mr Rogers is not going to prosecute until he has the money. Your Honour it is just nonsense. Q I think you have answered my question ..." 75 The assumption underlying the answers made by Ms Wentworth to the question asked by his Honour was that she had not handed the letter to Loveday AJ. She did not do so because, as we understand her evidence, she thought it was either irrelevant or wrong. It was not for her to make that judgment. It will be remembered that Loveday AJ had asked Ms Wentworth point blank whether she had heard personally from Mr Rogers any matter which suggested that he had any interest or inclination to pursue the malicious prosecution proceedings. Her answer was emphatic. She said, "I have not heard from Mr Rogers at all and my solicitors have not had any response from him at all." She also said that her solicitors had not heard from Mr Rogers "at all". Strictly speaking those answers may be technically correct in the sense that she had not heard directly from Mr Rogers himself but Ms Wentworth was acting on the basis that he had solicitors in the matter - the notice of motion had been served on the solicitors on that basis - and her solicitors had had a response from Khan & MacLean whom she believed were Mr Rogers' solicitors. The evidence elicited by Sperling J in the proceedings before him establishes that she knew of the letter of 13 October and made a judgment about it. If one were to take a strictly technical view of the answer she gave his Honour, one might be driven to say that it was correct because his Honour had not asked quite the right question. That indeed is one of Mr Russo's submissions. The trouble about this is that a person in the position of Ms Wentworth, appearing in person though she may be, is under a duty to the Court to be candid about a matter such as this. Her answers in cross-examination before Sperling J demonstrate that what she said to Loveday AJ was scarcely the truth. Indeed, in substance, it was demonstrably false. And yet in these proceedings Mr Russo sought to defend her position. Moreover, so far as he is concerned, he having sworn an affidavit on 17 October 1994, after he had received the letter of 13 October 1994 from Mr MacLean, was under a duty to the Court to disclose it. On no basis could it have been said to be irrelevant to the proceedings which were before Loveday AJ. 76 Of course Mr Rogers was neglectful of his own interests in not attending or at least getting a message to the Court about any inability he had to be present. He had been served with notice of the application and he neglected to attend. He thus ran a risk and that is a matter that needs to be taken into account. But the fact is that Loveday AJ was entitled to think that he was receiving a candid account of what material there was in relation to the application made to him to dismiss the cross-claim for want or prosecution. He was denied the candour which a judge is entitled to expect. I bear in mind that Ms Wentworth is a litigant in person but, if Mr Russo be right in relation to her experience which, in his view exceeds that of many members of the Bar, she must at least have known what was required of her. Furthermore, once the application to set aside the judgment was made, when Mr Russo must have realised what had happened, he should have advised Ms Wentworth that there was no course open but to consent to the order which was sought. If she had refused to take that advice, his duty was clear. He should have ceased to act. The fact that none of these things happened is but an indication of what has earlier been said about Mr Russo being prepared to do Ms Wentworth's bidding no matter what that involved. It follows, in our opinion, that he has implicated himself in Ms Wentworth's conduct and has endeavoured to defend it. 77 For the sake of clarity, we should add that the critical part of the letter of 13 October 1994 is in the statement made by Mr MacLean to Mr Russo to the effect that his recollection was that in his conversation with Mr Russo he had said that it was Mr Rogers' intention that he would not prosecute the cross-claim until he had the money to do so. Mr Maclean said that "that important aspect" was not reflected in Mr Russo's affidavit. In the light of Loveday AJ's specific questioning of Ms Wentworth about communications she had had from Mr Rogers, it was clearly necessary that Mr MacLean's letter be brought to his attention. 78 All the matters to which we have referred were referred to by Sperling J in the course of his judgment of 10 September 1996. Additionally he referred to evidence given by Mr Russo, Ms Wentworth, Mr Rogers and Mr MacLean. He concluded that the letter of 13 October 1994 had not been handed up to Loveday AJ. He said that it was conjectural as to whether his Honour would have been sufficiently satisfied on the whole of the material, including the letter of 13 October 1994, that Mr Rogers had in truth abandoned the cross-claim or that Mr Rogers would never be in a position to prosecute it and that the cross-claim should be dismissed on that account. His Honour added, "It is, however, entirely possible that the motion would have been dismissed or adjourned if the letter of 13 October 1994 had been revealed, as it should have been." His Honour concluded that there had been a miscarriage of justice which could not be allowed to stand uncorrected. He added that that there was an irregularity was an under-statement. It was not just a matter of failure to reveal that which should have been revealed. It was a case of informing the Court that that which had occurred had not occurred. His Honour said that he thought that the suggestion that the letter was, or was likely to have been, handed up, was "an unconvincing afterthought." 79 His Honour also referred to a submission by Ms Wentworth to the effect that the letter would not have made any difference because it was clear beyond question from other evidence that Mr Rogers had decided to abandon the cross-claim. His Honour said that he did not think it was clear beyond question from the other evidence to which Ms Wentworth referred. But he added that that was not the point. The position was far from clear beyond question, taking into account the letter of 13 October. His Honour also said that it was no excuse for withholding the letter for Ms Wentworth to say, when asked if anything further had been heard, that in Ms Wentworth's judgment what was said in the letter was untrue. His Honour concluded that none of her explanations provided a satisfactory answer for her having failed to produce the letter to the Court. With all these conclusions we are in complete agreement. 80 These matters were also referred to in the judgment of this Court delivered on 21 October 1998. The evidence about the failure to produce the letter of 13 October 1994 was summarised as was his Honour's finding that Mr Rogers had not abandoned his cross-claim. This particular matter was not the subject of specific treatment by the Court. It was said (at 4) that none of Ms Wentworth's submissions appeared to have substance or merit and that the refusal of leave by the Court in the application made to a differently constituted bench in June 1997 was the appropriate outcome. The Court also said (at 5) that Ms Wentworth was heard at length on a number of matters. The Court said that it did not find it appropriate to mention many of these because it was satisfied that they were without foundation. 81 The application was dealt with as an application for leave to appeal and it may be that, that being the case, this is not strictly a case of estoppel by judgment. But the Court has been over this ground three times, once in June 1997 when the matter was dealt with by Clarke and Beazley JJA, and twice when it was dealt with by this Court, firstly on 21 October 1998, and now in this judgment. We have spent perhaps more time on it than is necessary but we have done so because of the emphasis put on the point during the course of the submissions. In our opinion Sperling J's reliance upon failure to produce the letter to Loveday AJ as a reason why he would order indemnity costs against Ms Wentworth and order Mr Russo to pay personally the costs of the proceedings on the indemnity basis was a decision which was well open to him. It does not disclose error. We need to say a little more about why we think misconduct was involved and also about some matters not associated with the failure to produce the letter which also moved Sperling J to make the costs orders which he did. Misconduct by Ms Wentworth and Mr Russo 82 The matters dealt with in relation to the failure to produce the letter of 13 October 1994, in our opinion, amply justify Sperling J's conclusion that Ms Wentworth was guilty of misconduct in not producing the letter to Loveday AJ during the hearing which took place on 24 October 1994. Mr Russo, in our opinion, is implicated in that misconduct because he was obliged to refer to the letter of 13 October 1994 when he swore his affidavit of 17 October 1994. In any event, on the view that we have taken of the authorities earlier discussed, he let himself fall into a situation in which Ms Wentworth, in his absence, having misled the Court as she did on 24 October 1994, and he being the solicitor on the record, must take responsibility for her conduct. He submitted that he had been denied natural justice because he had had no adequate notice of the application for costs which was made against him. But the record shows that counsel for Mr Rogers had made it clear that they were seeking an order for indemnity costs against Mr Russo as early as the latter months of 1995. Submissions were made about the matter in written submissions then lodged with the Court. Copies of these were given to Mr Russo and to Ms Wentworth. There is nothing in the natural justice point. 83 One of the submissions made in the run of the hearing was that his Honour's findings of misconduct and generally in relation to indemnity costs were not sufficiently specific. It was said that he had not spelt out the misconduct upon which he relied. We would reject that submission. We have quoted the critical paragraphs of his Honour's judgment earlier. It is clear that he took a very serious view of the failure to produce the letter. In our opinion, he was well entitled to do so. 84 In the judgment delivered on 21 October 1998 this Court remarked on the extraordinary length of the hearing of the proceedings before Sperling J. A total of thirty-seven hearing days was involved. Thirty-seven hearing days is the equivalent of over seven sitting weeks. That period is longer than the time taken by most trials, whether civil or criminal, in the Court. It is time which is unheard of in an application to set aside a judgment which, in normal circumstances, is dealt with summarily in no more than a few hours. More usually less than an hour is involved. In some way that we have completely failed to understand Ms Wentworth was enabled to range over a vast number of issues, to cross-examine witnesses for days on end and to occupy this extraordinary time in a variety of other ways. We do not go into the detail of the hearing as a whole. On the face of what we have said there was enough to indicate a gross wastage of time. For this she must be held accountable. It is true that there was cross-examination of witnesses and, of course, submissions by counsel for Mr Rogers but all this became necessary because of a perceived need to react to the way in which Ms Wentworth set about conducting the case. 85 We think the reality of what happened was that Ms Wentworth, with no restraint from Mr Russo, endeavoured to demonstrate that the malicious prosecution case brought by Mr Rogers was without foundation. Her approach in this regard led her, in effect, to endeavour to have the action tried summarily by Sperling J. She was able to persuade his Honour that he should allow her to conduct the case in the way that she did because she was attempting to demonstrate that the case was without any prospect of success. In this way the hearing before Sperling J became uncontrollable and all to no purpose. The exercise was futile and should not have been embarked on but it was. Omitting from consideration the matters relating to the failure of Ms Wentworth to disclose the letter of 13 October 1994, there would still have been much to be said for the view that the orders for costs made by Sperling J were well justified simply on the basis of the way the case had been conducted. If, as should be done, the two factors are put together, there can be no warrant whatever for disturbing the orders his Honour has made. 86 One matter that appears to have involved a certain amount of time was the partial hearing of the "Te Mata" property matter. But his Honour said he thought that the time it had occupied was but 5 per cent of the time which had been occupied by the proceedings before him. Even so, so far as we can judge from the material which is before us, a number of days were devoted to the hearing of that matter. No stone was left unturned. A subpoena was served for the medical records of Mrs Toni Rogers. Much argument took place about the relevance of various documents and of oral evidence which it was proposed to lead. The application was for a Mareva injunction to restrain Mr Rogers from dealing with his property. Again one would not expect such an application to last a great deal of time. If the case were one in which it was established that a party to litigation was transferring property to his wife, there would be an inference open that this was being done in order to defeat any judgment that might be recovered. It is something about which the Court would make up its mind very quickly. We do not understand how substantial time could have been occupied in a matter of that kind. 87 All these matters were matters which were within his Honour's discretion. In order to succeed in the appeal, Ms Wentworth and Mr Russo must establish a miscarriage of that discretion. Having considered the extensive material which this Court has received and the various submissions of the parties we are not, except in one respect which we shall mention in a moment, satisfied that there is any indication that his Honour's discretion did miscarry. The orders for costs which he made were well open to him to make and, subject to the one matter with which we have yet to deal, we would not interfere with his judgment. 88 Of direct relevance in relation to all these matters is the judgment of Mahoney JA in Wentworth v Rogers (22 July 1987, Court of Appeal, unreported). Reference may be made to pp22-24. We refer particularly to the following passage (at 23): "It is the function of the court to provide, and to be seen to provide, facilities for justice. To the extent that society provides resources for the justice system, those facilities are provided and they are provided for that purpose. But the fact that the courts are a resort, and sometimes the last resort, for those seeking justice, does not mean that those who come to the court must be allowed unlimited time and facilities for every application , however misjudged it may be. The proper use of public resources, the public good and the need to do justice to those who also desire to press legitimate claims before the courts, combine to suggest that such facilities do extend so far." The emphasis is added. Set-off 89 The one matter which does require the interference of this Court is his Honour's order that there be no set-off permitted of the amount of the costs awarded to Mr Rogers against the amount of costs recovered by Ms Wentworth in connection with her successful action for assault. We do not perceive a warrant for this order. We would, accordingly, give leave to appeal against that order, allow that appeal, and set aside the order. Otherwise we would dismiss the application for leave to appeal with costs against both Ms Wentworth and Mr Russo. Proposed orders 90 The orders we make are: (1) Leave be granted to Ms Wentworth to appeal against so much of the orders made by Sperling J on 28 August 1997 as provided that liability under his orders was not to be set off against any other order for costs in the proceedings. (2) That appeal be allowed. (3) The order made by Sperling J in relation to set-off be set aside. (4) Otherwise the application made by Ms Wentworth and Mr Russo for leave to appeal against the orders made by Sperling J on 28 August 1997 be dismissed. (5) Ms Wentworth and Mr Russo pay ninety per cent of Mr Rogers' costs of that application. We direct the Registrar forthwith to enter these orders. * * * * * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.