Cassegrain v Cassegrain [2008] NSWSC 322

New South Wales Supreme Court

CITATION : Cassegrain v Cassegrain [2008] NSWSC 322

HEARING DATE(S) : 09 April 2008

JUDGMENT DATE : 14 April 2008

JUDGMENT OF : Gzell J

DECISION : Orders under the Supreme Court Act 1970, s 51(1) removing the proceedings into the Court of Appeal

CATCHWORDS : PROCEDURE - Supreme Court Procedure - Appeals - Appeal from decision of associate Judge awarding costs against appellant - Whether appeal lies to a single Judge of a Division of the Supreme Court or to the Court of Appeal - Whether the Supreme Court Rules 1970, Sch D, Pt 3 and Pt 60 r 17 should be read as excluding mechanical issues determined by an associate Judge

Uniform Civil Procedure Rules 2005 LEGISLATION CITED : Civil Procedure Act 2005 Supreme Court Act 1970

CASES CITED : Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of late F A Grotto & 2 Ors [2007] NSWSC 1080

PARTIES : Denis Cassegrain - Plaintiff Gerard Cassegrain & Co Pty Ltd - Defendant

FILE NUMBER(S) : SC 4640/06

COUNSEL : Mr G Colyer - Plaintiff Mr C Bevan - Defendant

SOLICITORS : McCabe Terrill Lawyers Pty Ltd - Plaintiff Evangelos Patakas & Associates - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 14 APRIL 2008

4640/06 DENIS CASSEGRAIN v GERARD CASSEGRAIN & CO PTY LTD JUDGMENT 1 By notice of motion the defendant, Gerard Cassegrain & Co Pty Ltd, seeks to appeal from the orders of McLaughlin AsJ that it pay the costs of the plaintiff, Denis Cassegrain, of and incidental to the proceedings up to and including 18 September 2007 and an order that Mr Denis Cassegrain have liberty to have the costs order assessed forthwith. 2 A preliminary question arises whether the appeal lies to a single judge of the Supreme Court or, as of right or with leave, to the Court of Appeal. 3 The context in which that issue arises is as follows. Mr Denis Cassegrain commenced proceedings in the Equity Division of the Court by summons in which he sought pre-trail discovery of specified documents. He also sought costs and such further or other orders as the Court deemed fit. 4 The matter came before McLaughlin AsJ on 22 March 2007. His Honour made the following note and orders: "1 Note that neither party requires that I state my reasons for my orders herein. 2 Order that the defendant provide to the plaintiff a copy of the document referred to in prayer 1(b) of the summons on or before 29 March 2007. 3 Order that in respect to the other category of documents referred to in prayer 1 of the summons the defendant on or before the 22 May 2007 file and serve a list of documents verified by affidavit of a director of the defendant, such list to comply with the requirement set forth in Part 21 rule 3(ii) of the Uniform Civil Procedure Rules 2005. 4 Reserve to the defendant liberty to apply for an order in respect of the costs and expenses of complying with order 3 herein." 5 By an amended notice of motion, Mr Denis Cassegrain sought an order that Cassegrain & Co pay his costs of and incidental to the proceedings pursuant to the Uniform Civil Procedure Rules 2005, r 5.8 and the Civil Procedure Act 2005, s 56. In the alternative, Mr Denis Cassegrain sought an order that Cassegrain & Co pay his costs up to and including 22 March 2007 and that Claude Cassegrain and/or Cassegrain & Co pay his costs thereafter. 6 McLaughlin AsJ dealt with the amended notice of motion on 18 September 2007. His Honour ordered Cassegrain & Co to pay Mr Denis Cassegrain's costs of and incidental to the proceedings up to 18 September 2007 on a party and party basis. His Honour also ordered that Mr Denis Cassegrain have leave to proceed forthwith to the assessment of the costs. 7 It is from those orders that Cassegrain & Co seeks to appeal to this Court. The preliminary question is whether it is entitled to do so or whether the appeal lies, with or without leave, to the Court of Appeal. 8 The Supreme Court Act 1970, s 101 specifies the circumstances in which an appeal lies to the Court of Appeal whether as of right or by leave. The section is, however, subject to the Act and rules. Section 104 limits appeals to the Court of Appeal from an associate Judge. It is in the following terms: "Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge, registrar or other officer." 9 If there is a right of appeal to the Court of Appeal from an associate Judge, therefore, it must be found in the rules. 10 The Uniform Civil Procedure Rules 2005, r 49.4 provides that an appeal lies to the Supreme Court from any decision of an associate Judge except in any case where an appeal lies to the Court of Appeal. The reference to the Supreme Court is, in terms of r 49.1, a reference to the Court constituted by a Judge. 11 Thus the appeal to this Court is competent unless an appeal lies from the orders of McLaughlin AsJ of 18 September 2007 to the Court of Appeal. 12 That question is to be determined in terms of the Supreme Court Rules 1970, Pt 60 r 17. It specifies the decisions of an associate Judge from which an appeal lies to the Court of Appeal. It is in the following terms: "An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by an associate Judge: (a) upon a trial pursuant to Schedule D Part 3 paragraphs 1, 2, 3, 3A, 4(a), 8, 9, 17, 17A, 24, 25, 26, 27 and 28, (a1) in proceedings referred pursuant to Schedule D Part 3 paragraphs 5, 5A and 5B, (b) in proceedings under the provisions (except sections 13 to 21 inclusive, which relate to guardianship) of the Testator's Family Maintenance and Guardianship of Infants Act 1916, (c) in proceedings under section 14 or section 22 of the Married Persons (Property and Torts) Act 1901, (d) in proceedings under the Family Provision Act 1982, (e) in proceedings under the Property (Relationships) Act 1984, (f) in proceedings on an application for review of taxation of costs, (g) in proceedings under section 208L or section 208M or section 208N of the Legal Profession Act 1987, (h) in proceedings under section 13 of the Married Persons (Equality of Status) Act 1996, (i) in proceedings determining a question of costs with respect to a matter that has been otherwise finalised, (j) on an application to extend a period of limitation, fixed by or under an enactment, within which original proceedings must be brought, or (k) where the decision of the associate Judge is a final decision other than: (i) a decision on an application for a summary judgment, or (ii) a decision on an application for a summary dismissal of proceedings." 13 Cassegrain & Co submitted that there was a legislative purpose in providing for appeals to a single Judge of the Supreme Court from judgments of an associate Judge of a mechanical nature and appeals to the Court of Appeal of more significant matters where the associate Judge was acting in the shoes of a single Judge of the Court. It was submitted that an appeal from McLaughlin AsJ's orders of 22 March 2007 lay to a Judge of the Supreme Court and it would be inconsistent with the legislative purpose if an appeal from the costs orders of 18 September 2007 lay to the Court of Appeal. 14 It was submitted by Mr Denis Cassegrain that an appeal lay to the Court of Appeal from the orders of 18 September 2007 either under the Supreme Court Rules 1970, Pt 60 r 17(a) or under r 17(i). As to the former, Pt 60 r 1A(c) provides, amongst other things, that an associate Judge may exercise the powers of the Court in respect of the matters mentioned in Sch D, Pt 3. By Sch D, Pt 3, par 9 an associate Judge is empowered to hear proceedings where the only matter in question is the matter of costs. 15 But Cassegrain & Co argues that the legislative purpose of dividing the jurisdiction of an associate Judge between mechanical matters and matters in which the associate Judge is a surrogate for a Judge of the Supreme Court is to be found in the Supreme Court Rules 1970, Pt 60 r 1A(1). It is in the following terms: