New South Wales Court of Appeal CITATION: Firth v Wowk & Ors (No 2) [2008] NSWCA 182 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): (On written submissions) JUDGMENT DATE: 8 August 2008 JUDGMENT OF: Giles JA; McColl JA; Bell JA DECISION: (1) Set aside any order made by the trial judge for the costs of the notice of motion as between Messrs Wowk and Donovan and Mr Firth; (2) No order for the costs of the notice of motion as between those parties; (3) No order for costs on appeal. CATCHWORDS: Costs - appeal upheld on ground raised by Court - order made at trial not authorised by relevant statute - no claim to different order on basis of judge's findings - whether findings correctly made not decided - disposition of costs on appeal and at trial - no orders for costs. CATEGORY: Consequential orders CASES CITED: Firth v Wowk [2008] NSWCA 104; Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 196 CLR 622. Stephen Paul Firth - Appellant PARTIES: Jury Wowk & Michael Donovan - First Respondents Neil Kennedy - Second Respondent FILE NUMBER(S): CA 40301/07 A S Morrison SC & R I Goodridge - Appellant COUNSEL: Submitting appearance - First of the First Respondents M S Donovan (Solr) - Second of the First Respondents No appearance - Second Respondent Firths - The Compensation Lawyers - Appellant SOLICITORS: Submitting appearance - First of the First Respondents Business Lawyers (Liverpool) Pty Ltd - Second of the First Respondents No appearance - Second Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3110/05 LOWER COURT JUDICIAL OFFICER: Truss DCJ LOWER COURT DATE OF DECISION: 19 April 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Neil Kennedy v Jury Wowk and Michael Donovan & Anor, Truss DCJ, 19 April 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40301/07 GILES JA McCOLL JA BELL JA Friday 8 August 2008 FIRTH v WOWK & ORS (No 2) Judgment 1 THE COURT: The Court delivered reasons and made substantive orders in the appeal on 21 May 2008 (Firth v Wowk [2008] NSWCA 104). The question of costs below and on appeal was reserved, and directions were given with a view to orders being made on written submissions. For the reasons which follow, which should be read with the Court's earlier reasons, in our opinion no orders for costs should be made as to the costs below and on appeal, with the result that the parties bear their own costs. The parties' positions 2 Mr Firth provided written submissions. He sought orders that Messrs Wowk and Donovan pay his costs of the notice of motion of 14 December 2006 in the District Court and that Mr Donovan pay his costs of the appeal including the costs of the leave application. 3 Mr Wowk had filed an appearance in this Court submitting save as to costs. He did not provide any written submissions on the question of costs. 4 Mr Donovan's position as to appearance was more complex, and we will return to it. He provided written submissions in which he sought orders that "The Appellant should pay the First Respondents and each of them the First Respondents' costs in the District Court proceedings … and the Appellant and First Respondents should pay their own costs of the leave application and the Appeal." We do not stay to consider whether Mr Donovan could seek orders as between Mr Firth and Mr Wowk, but any order for the costs below could not go beyond the costs of the notice of motion. Mr Donovan's appearance 5 The earlier reasons recorded at [11] that "Mr Donovan did not file an appearance, but on the leave application indicated that his position was that of a submitting appearance". The Court had been told by counsel for Mr Firth at the hearing of the appeal that Mr Donovan had not filed an appearance, and Mr Firth affirmed in his written submissions that search of the court file on the day before the hearing failed to reveal an appearance. 6 In his written submissions Mr Donovan said that he had attempted to file a notice of appearance but it had been rejected because he was one of the two first respondents, and that it had later been filed in Court when the proceedings were before the Registrar. On the account given by Mr Donovan, Mr Firth's solicitors knew that his appearance had been filed. We have verified from the court file that it was filed. It is disturbing that the Court may have been misinformed. 7 The notice of appearance filed by Mr Donovan was not a submitting appearance. It was common ground, however, that Mr Donovan stated on the leave application that his was a submitting appearance. Mr Donovan said in his written submissions that he took no further role in the appeal "consistently with his submitting appearance". 8 The Rules permit a submitting appearance, or an appearance submitting save as to costs, but do not specifically attach costs consequences to entry of such an appearance. The notice of appearance was filed in July 2007. Mr Firth was aware, at least from the time of the leave application in September 2007, that Mr Donovan's stance was one of submission. Mr Firth referred to an offer of compromise served by Mr Donovan, suggesting that he had gone beyond submission, but it was served in June 2007 and there is no inconsistency. That from at least September 2007 Mr Donovan's stance was one of submission is relevant to the costs of the appeal. The costs below 9 The appeal was upheld and the trial judge's order was set aside, but it does not follow that the notice of motion in the District Court so far as claiming an order against Mr Firth should have been dismissed. The appeal was upheld because the order made by the trial judge was not authorised by s 348(1)(b) of the Legal Profession Act 2004. But the order her Honour made was not that which had been claimed in the notice of motion, and whether Messrs Wowk and Donovan were entitled to the order they claimed has not been resolved. 10 The disposition of costs when there has not been a hearing on the merits is considered in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624-5. As is noted at [21] of the earlier reasons, Messrs Wowk and Donovan could perhaps have cross-appealed with a view to obtaining a different order on the basis of the trial judge's findings, but did not do so. It is not appropriate for this Court to decide the merits of the claim in the notice of motion in the District Court and make a costs order accordingly. We are not in a position to say that the claim was very likely to succeed or very likely to fail on the merits, or that Messrs Wowk and Donovan were acting unreasonably in bringing their claim or Mr Firth was acting unreasonably in resisting it. The costs should lie where they fall. 11 What order as to the costs of the notice of motion, if any, was made by the trial judge is unclear. The practical course is that any order made by her Honour as between Messrs Wowk and Donovan and Mr Firth should be set aside and in lieu thereof it should be ordered that there be no order as to costs. The costs on appeal 12 Although the appeal was upheld, Mr Firth's jurisdictional submissions were rejected (earlier reasons [15]-[17]) and the basis on which the appeal was upheld was not one on which he relied until the Court drew attention to it (earlier reasons [18]-[21]). In his written submissions Mr Firth rather dismissed this as a "technical ground", described by him as "whether Section 348 permitted the form of the Order made by Truss DCJ". Mr Donovan's written submissions also referred to it as a technical ground. It was not a technicality, but a matter of substance to which Mr Firth's advisors should have been alive. 13 In our opinion, in these circumstances and taking into account Mr Donovan's stance of submission, Mr Firth should not have an order for costs in his favour. Mr Wowk did not seek an order for the costs of his submitting appearance, and if he had we do not think he should have obtained it. The order should be as envisaged in Mr Donovan's submissions. 14 Accordingly, in our opinion, no order should be made as to the costs of the appeal. Orders 15 1. Set aside any order made by the trial judge for the costs of the notice of motion as between Messrs Wowk and Donovan and Mr Firth. 2. No order for the costs of the notice of motion as between those parties. 3. No order for costs on appeal. ******** 10/09/2008 - "Line 2, "Messrs Wowk and Donovan" replaced with "Mr Firth" - Paragraph(s) [9] 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.