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: "An associate Judge may exercise the powers of the Court: (a) under the provisions of the Acts and regulations and Acts and regulations of the Commonwealth mentioned in column 1 of Part 1 of Schedule D, (b) subject to subrule (4), under provisions of any following rules of court (the relevant rules ): (i) these rules, (ii) the Supreme Court (Corporations) Rules 1999, (iii) the Uniform Civil Procedure Rules 2005, (c) in respect of the matters mentioned in Part 3 of Schedule D and in Part 2 of Schedule E." The limitation in r 1A(4) is irrelevant for present purposes. 16 Cassegrain & Co submitted that the grant of power under the relevant rules was limited to mechanical matters whereas the powers conferred on an associate Judge under the Supreme Court Rules 1970, Sch D, Pt 3 were of greater significance being otherwise the functions of a Judge. 17 The problem with that argument is that the grant of power in the Supreme Court Rules 1970, Sch D, Pt 3, par 9 is no more significant than the power to award costs under the Uniform Civil Procedure Rules 2005, r 5.8. 18 Cassegrain & Co's answer was to submit that the Supreme Court Rules 1970, Sch D, Pt 3, par 9 should be limited to circumstances where a Judge of the Supreme Court has determined substantive issues and has delegated the exercise of the costs discretion to an associate Judge. It was submitted that this was necessary in order to maintain a dichotomy between the grant of power to deal with mechanical matters under the relevant rules and the grant of power to determine significant issues under Sch D, Pt 3. 19 If there is a dichotomy between the relevant rules and the Supreme Court Rules 1970, Sch D, Pt 3, a difficulty arises under par 3. It confers power with respect to the trial of proceedings pursuant to a direction under Pt 56 r 9. That is now to be read, in accordance with the Civil Procedure Act 2005, Sch 6, par 9(a), as a reference to the Uniform Civil Procedure Rules 2005, r 43.7. But the power to act under the rule is conferred under Sch D, Pt 3 and not by the relevant rules. 20 Cassegrain & Co seeks to answer that conundrum by submitting that the grant of power under the relevant rules is limited to rules other than those specified in the Supreme Court Rules 1970, Sch D, Pt 3. 21 I do not perceive the legislative purpose for which Cassegrain & Co contends. The grants of power under the paragraphs in the Supreme Court Rules 1970, Sch D, Pt 3 are of differing significance and each confers a limited jurisdiction. For example, par 1 limits the power with respect to a trial (except with a jury) of proceedings to those where the only matters in question are the amount of damages and costs. 22 Furthermore, there is no reason to read any dichotomy, if such exists, between the grants of power in the Supreme Court Rules 1970, Pt 60 r 1A into the list of matters with respect to which an appeal lies to the Court of Appeal under r 17. Par (i) directs an appeal to the Court of Appeal from any decision of an associate Judge in proceedings determining a question of costs with respect to a matter that has been otherwise finalised. Its clear unambiguous terms apply whether the power to award costs arises under the relevant rules or under Sch D, Pt 3, par 9. 23 When that provision was introduced by the Supreme Court Rules (Amendment No 369) 2002, there was no suggestion that it should be limited to circumstances in which a Judge of the Supreme Court had otherwise disposed of the substantive proceedings. The explanatory note that accompanied the rule said that the object was to provide that appeals from decisions of Masters relating solely to questions of costs in matters that had been otherwise finalised would be, subject to the granting of leave, to the Court of Appeal rather than to the Supreme Court constituted by a Judge. 24 In Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of late F A Grotto & 2 Ors [2007] NSWSC 1080 at [11], Bryson AJ observed that the paragraphs in the Supreme Court Rules 1970, Pt 60 r 17 are not highly integrated in some way that would involve one of them influencing or controlling the construction of another, so as to make it necessary to imply limitations to what would otherwise be the meaning of one subparagraph to accommodate the operation of another. His Honour observed that r 17 was not an instance of tight drafting, where it would be appropriate to treat what one subparagraph provided as a reason for reading down what, on its face and according to the ordinary meaning of its words, was the meaning of another subparagraph. I agree with those observations. 25 I reject the submission that the Supreme Court Rules 1970, Sch D, Pt 3, par 9 does not apply in the instant circumstances because McLaughlin AsJ received his power to award costs under the Uniform Civil Procedure Rules 2005, r 5.8 and not under Sch D, Pt 3, so that Pt 60 r 17(a) does not apply as it is limited to the power granted under Pt 3. That is too tortured a construction of the provisions to constitute a reason for departing from the ordinary meaning of them. 26 In my view there is no reason why an associate Judge should not find his source of power in more than one of the subparagraphs of the Supreme Court Rules 1970, Pt 60 r 1A(1). The clear unambiguous terms of Sch D, Pt 3, par 9 apply as much to what McLaughlin AsJ did on 18 September 2007 as does the power under the Uniform Civil Procedure Rules 2005, r 5.8. 27 I am further of the view that the Supreme Court Rules 1970, Pt 60 r 17(i) applied to the proceedings of 18 September 2007. Except as to the question of costs, the matter had been finalised by the orders of 22 March 2007. 28 McLaughlin AsJ at [30] of his reasons for judgment said that since the proceedings themselves had not yet come to a conclusion, he did not consider it appropriate to make a general order for costs. Consistent with that view, his Honour appears to have acted under the Uniform Civil Procedure Rules 2005, r 42.7(2) in ordering immediate assessment of the costs. It provides that, unless otherwise ordered, costs do not become payable until the conclusion of the proceedings. 29 What his Honour no doubt had in mind was the reservation in the orders of 22 March 2007 of liberty to Cassegrain & Co to apply for an order in respect of the costs of complying with the order to provide a list of documents. 30 But that was a reservation with respect to a question of costs. In other respects, the matter had been finalised. The Supreme Court Rules 1970, Pt 60 r 17(i) is not limited to a final disposal of all issues as to costs. It applies to any decision determining a question of costs where the matter has otherwise been finalised. The fact that a further application for costs might be made in the future does not, in my view, exclude the proceedings of 18 September 2007 from the Supreme Court Rules 1970, Pt 60 r 17(i). 31 On either basis, therefore, I am of the view that an appeal lies to the Court of Appeal for which leave will be required in terms of the Supreme Court Act 1970, s 101(2)(c). It provides that an appeal shall not lie to the Court of Appeal except by leave of the Court of Appeal from, amongst other orders, an order made in proceedings in the Court as to costs only that are in the discretion of the Court. 32 It follows that I am of the view that the appeal to this Court is incompetent. 33 In Coric, Bryson AJ acted under the Supreme Court Act 1970, s 51(1) and removed the proceedings into the Court of Appeal. The section provides that where proceedings are commenced in a Division but are assigned to the Court of Appeal, the Court in the Division in which the proceedings are pending may, of its own motion, order that the proceedings be removed into the Court of Appeal. I think that is an appropriate course in this case as well and I will act accordingly. 34 I will hear the parties on costs. I direct the parties to bring in short minutes of order reflecting these reasons. ********** 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.