New South Wales Court of Appeal CITATION: M.K. & J.A. Roche Pty. Ltd. & Ors. v. Metro Edgley Pty. Ltd. & Anor. [2005] NSWCA 146 HEARING DATE(S): Matter of costs and remission dealt with on submissions in Chambers JUDGMENT DATE: 6 May 2005 JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Ipp JA at 11 DECISION: The following order made, in addition to those made on 3 March 2005: 7. The further hearing in the Equity Division is to be before Einstein J unless some order to the contrary is made by a judge of that Division. The costs of the additional submissions are to be treated as part of the costs of the appeal. CATCHWORDS: PROCEDURE - COSTS - Appeal upheld and case remitted on limited issues - Whether costs of appeal should follow event - Whether order should be made as to which judge is to conduct further hearing. Amalgamated Television Services Pty. Ltd. v. Marsden (2003) 57 NSWLR 338 Murphy v. Overton Investments Pty. Ltd. [2004] HCA 3, 78 ALJR 324 CASES CITED: Northern NSW FM Pty. Ltd. v. Australian Broadcasting Tribunal (1990) 26 FLR 39 Steedman v. Baulkham Hills Shire Council [No.2] (1993) 31 NSWLR 562 MK & AJ Roche Pty. Limited - 1st appellant Michael Kevin Roche, Christopher John Roche, William Tomothy Roche, Kevin Michael Roche and Gabrielle Mary Roche - 2nd appellants PARTIES: Metro Edgeley Pty. Limited - 1st respondent Multiplex Construction Pty. Limited - 2nd respondent FILE NUMBER(S): CA 40751/04 Mr. D. Hammerschlag SC with Mr. V.F. Kerr for appellants COUNSEL: Mr. C.R.C. Newlinds SC with Ms. R. Francois for respondents Lane & Lane, Sydney for appellants SOLICITORS: Clayton Utz, Sydney for respondents LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): ED 50069/04 LOWER COURT JUDICIAL OFFICER: Einstein J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40751/04 ED 50069/04 BEAZLEY JA HODGSON JA IPP JA Friday 6 May 2005 M.K. & J.A. ROCHE PTY. LTD. & ORS. V. METRO EDGLEY PTY. LTD. & ANOR. (No.2) Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: In the judgment in this matter given on 3 March 2005, the Court reserved leave for written submissions as to costs, and as to whether or not the matter should be remitted to Einstein J. COSTS 3 The respondents submitted that the costs of the appeal should be costs in the cause, because the controversy had not been resolved by the Court of Appeal: if the respondents are ultimately successful, they should be indemnified for the costs of proceedings wrongly commenced against them. 4 In my opinion, order 5 as originally made is the appropriate costs order. The respondents sought to maintain against the appellants orders to which they were not entitled, and the costs of the appeal were thereby incurred. In so far as the costs of the appeal are also the result of the commencement of proceedings which may turn out not to have been justified, the respondents are given some relief by the Suitors Fund Act certificate. REMISSION 5 The appellants submitted that this Court should order that the further hearing should be before a different judge, because Einstein J had made ultimate findings adverse to the appellants, who would in any further hearing by him need to persuade him to change from views to which he had committed. Accordingly, it would "seem fairer" that the matter be determined by a differently constituted tribunal: Northern NSW FM Pty. Ltd. v. Australian Broadcasting Tribunal (1990) 26 FLR 39 at 42, Steedman v. Baulkham Hills Shire Council [No.2] (1993) 31 NSWLR 562 at 576-7. The appellants also submitted that the new trial should proceed on the transcript. 6 The respondents submitted that the remission was not for a new trial, but merely for determination of limited remitted issues: Murphy v. Overton Investments Pty. Ltd. [2004] HCA 3, 78 ALJR 324 at [74]-[75]. Accordingly, the matter should be remitted to Einstein J. Otherwise, there would need to be a complete re-hearing, with the possibility of the new judge coming to views inconsistent with those of Einstein J that have not been affected by the Court of Appeal decision. 7 In my opinion, the matters raised by the appellants fall well short of justifying an order that the further hearing be before a different judge: Steedman at 577, Amalgamated Television Services Pty. Ltd. v. Marsden (2003) 57 NSWLR 338 at [48]; and any determination as to how the further hearing should be conducted should be made by the judge conducting that hearing. 8 In my opinion, there is much force in the respondents' submissions that the matter should go back to Einstein J, for reasons of efficiency and of minimising the possibility of inconsistencies. That approach is consistent with the limitation on the issues to be remitted to the Equity Division. If the matter were heard by another judge, it would be difficult to avoid a further lengthy hearing, with oral evidence and cross-examination, and with the prospect of another judge reaching views on some matters different from those of Einstein J. 9 Normally this Court in remitting a matter to a Division will leave to that Division the assignment of the hearing to a particular judge. However, I think it appropriate, in the interests of a just, quick and cheap resolution of this matter, to make the following order, in addition to those made on 3 March 2005: 7. The further hearing in the Equity Division is to be before Einstein J unless some order to the contrary is made by a judge of that Division. 10 In my opinion, it is appropriate that the costs of the additional submissions be treated as part of the costs of the appeal. 11 IPP JA: I agree with Hodgson JA. ********** 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.