Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kable v State of New South Wales (No 2) [2012] NSWCA 361 Hearing dates: On the papers Decision date: 09 November 2012 Before: Allsop P at [1]; Basten JA at [5]; Campbell JA at [27]; Meagher JA at [28]; McClellan CJ at CL at [29] Decision: (1) With respect to the application to vary order 3(b) made on 8 August 2012: (a) dispense with the requirement to give notice of the motion notified in the letter of the Crown Solicitor of 9 August 2012 in the prescribed form; (b) vacate the order made on 8 August 2012 and in place thereof - order that the question of the costs of the proceedings to date in the Common Law Division be dealt with by the judge to whom the matter is remitted for the assessment of damages pursuant to order 4 made on 8 August 2012. (2) Otherwise dismiss the respondent's notice of motion filed on 24 August 2012. (3) Make no order as to the costs of the motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - costs of appeal - appellant successful on one of three causes of action - inadequacies in appellant's submissions led to adjournment - whether "event" that costs follow is judgment on liability - whether significance of issues related to adjournment relevant to order for costs of adjournment - whether justice requires that costs order be reopened COSTS - costs of trial - procedural history prior to trial lengthy and complex - previous costs orders made in respect of certain interlocutory steps - multiple offers of compromise - Court of Appeal allowed appeal and remitted claim for damages to be assessed - whether Court of Appeal should make order as to costs of trial - whether costs of trial should be determined by trial court on remitter COSTS - offers of settlement - appellant sought order that respondent pay appellant's costs of trial and appeal - whether counsel should indicate at hearing that offers of settlement have been made PROCEDURE - judgments and orders - setting aside judgment or order after entry - motion to set aside order filed more than 14 days after orders entered - applicant notified court of motion in writing within time limit - whether appropriate for court to dispense with rule prescribing form of notice for motion - Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Judiciary Act 1903 (Cth), s 78B Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 36.18, 42.1; Pt 36, Div 4 Cases Cited: AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 Kable v State of New South Wales [2012] NSWCA 243 Category: Procedural and other rulings Parties: Gregory Wayne Kable (Appellant) State of New South Wales (Respondent) Representation: Counsel: P W Bates/P G White (Appellant) M J Leeming SC/R H Weinstein SC/ J Shepard (Respondent) Solicitors: Armstrong Legal (Appellant) Crown Solicitor's Officer (Respondent) File Number(s): CA 1996/31364 Decision under appeal Jurisdiction: 9111 Citation: Kable v State of New South Wales [2010] NSWSC 811 Date of Decision: 2010-07-30 00:00:00 Before: Hoeben J File Number(s): SC 1996/21296 Judgment 1ALLSOP P: I have read the reasons of Basten JA. I agree with them and with the orders proposed by him. 2Rules 36.15, 36.16, 36.17 and 36.18 deal with important questions concerning variation of orders of the Court. Rule 36.16 is particularly important. It deals with the fundamentally important question of finality of litigation: see in particular subrules (3A), (3B) and (3C). Parties should not think that they can, at their choice, avoid the operation of the Rules by less formal communication. The Rules take their form because of the regularity and good order promoted by the procedures there set down in respect of such an important topic. Too often practitioners consider that they can say something on the occasion of delivery of judgment or send an email to judge's chambers (the latter sometimes, though not here, without the knowledge of the other side - a serious breach of professional etiquette and possibly a breach of duty to the Court) and thereby hold their client's position, irrespective of the Rules. The profession should understand that this is not the case. 3I am persuaded, however, that in the present circumstances it would be unjust not to permit s 14 of the Civil Procedure Act 2005 to be used to dispense with the filing of a notice of motion when there was adequate notice to the Court and to the other side as to the application. But I would not permit the exercise of the power to go beyond the content of the letter in question. That would raise the far more difficult question as to whether s 14 can operate to override the operation of r 36.16(3C) and, if it can, the stringency of any such operation. 4It should not be thought that the above course sanctions as satisfactory, or regularises, the procedure used in this case. 5BASTEN JA: On 8 August 2012 the Court handed down judgment in the appeal in this matter: Kable v State of New South Wales [2012] NSWCA 243. The Court allowed the appellant's appeal in respect of a cause of action in false imprisonment. The issue of liability having been determined, the matter was remitted to the Common Law Division for assessment of damages. 6One of the orders made in the Common Law Division which was set aside on appeal was an order that the plaintiff (the appellant in this Court) pay the defendant's costs of the proceedings. An issue therefore arose as to the appropriate order with respect to the costs which had already been incurred below in respect of the issue of liability. An issue also arose as to the proper order in respect of the costs of the appeal. 7Following delivery of that judgment, on 24 August 2012, the State filed a notice of motion seeking to vary the costs orders made on 8 August 2012. In order to understand the context in which the motion arises, it is convenient to set out in full the orders made by this Court: "(1) Allow the appeal in part. (2) Set aside the orders in the Common Law Division dismissing the proceedings against the first defendant (the State) and ordering the plaintiff to pay the defendant's costs of the proceedings. (3) In lieu of the judgment and orders below: (a) give judgment for the plaintiff on his claim against the first defendant (the State) for unlawful imprisonment; (b) order the first defendant to pay the plaintiff's costs of the proceedings to date in the Common Law Division. (4) Remit the matter to the Common Law Division for assessment of damages. (5) Order that the respondent pay the appellant's costs of the appeal." 8The orders sought in the notice of motion were as follows: "Costs of trial 1. An order vacating order 3(b) made on 8 August 2012 and in lieu thereof ordering that the question of the costs of the proceedings at first instance be remitted to a judge of the Court to be determined following the assessment of damages. Costs of appeal 2. An order vacating order 5 made on 8 August 2012 and in lieu thereof ordering: (a) that there be no order as to the costs of the appeal; (b) alternatively to (a), an order that the State pay such proportion of the appellant's costs of the appeal as seems fit to the Court appropriate in light of the appellant's success." Competency of motion 9The appellant challenged the Court's power to vary the orders in the way sought by the State on the ground that the motion was out of time. That submission relied upon the limited circumstances in which the Court can set aside or vary orders once entered: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 36, Div 4. The State did not submit that the judgment or orders of the Court had been given, entered or made irregularly, illegally or against good faith, for the purposes of r 36.15. Nor was it suggested that there was any clerical mistake or error within the terms of r 36.17. The State accepted that the application needed to be brought within 14 days after the judgment or order was entered and that that time was not extendable: r 36.16(3A) and (3C). It also accepted that the orders having been entered in the Court's computerised record system on the day they were made, the notice of motion was filed two days out of time. Rather, the State called in aid the power to dispense with the need for filing a notice of motion in the form prescribed where notice had been given to the Court and to the appellant the day after the judgment was entered. That power is to be found in s 14 of the Civil Procedure Act 2005 (NSW): see Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11] and AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 at [7]. 10In the event that the Court had a discretion to consider the motion, the appellant submitted that it should not be exercised favourably to the State which, as a model litigant, should be expected to know the Rules and comply with them. That proposition was reinforced, the appellant submitted, by the fact that, on 10 August 2012, being the day after the letter from the Crown Solicitor, the President's Associate had responded, noting that the proper course was to "file a motion promptly with an affidavit and submissions in support". It may further be noted that the judgment, in accordance with conventional practice, contained the following note immediately after the orders were set out on the front sheet: "[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]" 11There is a further factor which militates against an exercise of the discretionary power in favour of the State. The letter of 9 August from the Crown Solicitor stated that the Court had "heard no submissions on costs, and the State respectfully seeks to be heard on that order". While it was strictly true that the Court had heard no submissions on costs, nevertheless, the orders sought by the appellant in his notice of appeal and confirmed in his written submissions included the following: "6. The respondent is to pay the appellant's costs of the actions and proceedings at first instance and on appeal." 12There are undoubtedly circumstances in which the orders sought on an appeal, and particularly where there are notices of contention or cross-appeals, may give rise to a variety of possible outcomes. Further, where there are claims for damages, there is always the possibility that there have been offers of settlement which may affect the appropriate costs orders. In both circumstances, it is common practice for counsel to invite the court to reserve questions of costs until the substantive issues have been determined. That did not happen in the present case. Absent such a request, in circumstances where the usual orders as to costs are well understood, namely that, pursuant to UCPR, r 42.1, they are likely to follow the event, the court will usually assume that the standard costs order should be made. 13Although the State considered that there were separate issues which needed to be separately considered in respect of its liability to the appellant, as will appear below, that was not so. It would have been sufficient for the Court to consider whether the appellant was entitled to succeed on any cause of action and, if so satisfied, to give reasons for that conclusion without addressing other causes of action which might not be made out. (There was no submission that the quantum of damages would depend upon which cause of action was made good.) Similarly, the fact that there were offers of compromise which, in the event that damages were still to be assessed, the parties did not wish to disclose, could have been noted at the original hearing. 14As a general rule, any party which would seek to be heard in opposition to the usual order as to costs should raise the issue with the Court at the hearing of the appeal. If it does not, and seeks to be heard with respect to costs after orders have been made, even if the application is made in a timely fashion, that party should expect to have to explain and justify its failure to take advantage of the opportunity to address on costs at the hearing of the appeal and, if there were reasons for not doing so, why those reasons were not explained to the Court on the hearing of the appeal. No such explanation was provided in this case. 15Nevertheless, for reasons which will appear below, the interests of justice support an order dispensing with the requirement for the filing of a notice of motion in the prescribed form with respect to the costs of the trial. For that purpose, the letter from the Crown Solicitor of 9 August 2012 should be deemed to be appropriate notice of the matter to which it referred. Reference to "the matter" in the singular is deliberate: the letter referred only to "order 3(b) made yesterday, relating to the costs of the proceedings to date". The letter sought to raise two issues, namely: (a) "a significant proportion of the costs incurred by the plaintiff will be attributable to factual inquiries which related solely to causes of action on which the plaintiff failed", and (b) the existence of "earlier costs orders which have been made ..., which presumably are not displaced by the order made yesterday". 16Although the reference to "the costs of the proceedings to date" might, on one view, extend to the costs of the appeal, read in context they were directed to order 3(b), which concerned the costs in the Court below. Accordingly, so far as the proposed variation of the order as to the costs of the appeal is concerned, no notice was given prior to the filing, out of time, of the notice of motion. Accordingly, no basis is shown for entertaining that application. 17Given the circumstances referred to above and the further matters addressed below in respect of the costs of the appeal, even if the letter of 9 August could be treated as an application to vary order 5, the dispensing power in that respect should not be exercised in favour of the State. Costs of the trial proceedings 18The State sought to have the order with respect to the costs of the trial varied for the following reasons. (a) To the extent that interlocutory steps in the proceedings had resulted in particular costs orders, the order should be varied so as to exclude those costs. (b) The trial proceedings (commenced 16 years ago) had followed a tortuous course and involved multiple issues on some of which, including the causes of action in malicious prosecution and abuse of process, the plaintiff had wholly failed. Whilst he would ultimately be compensated for the delay in the form of pre-judgment interest on any damages awarded for false imprisonment, he should not obtain the benefit of a costs order in respect of procedures which were doomed to fail. (c) There had been offers of compromise exchanged over the years, whose final impact could not be determined until the verdict was quantified and should not be publicly revealed at this stage. 19The appellant's submissions took issue with both factual assertions as to procedural steps taken in the Court below and inferences which might properly be drawn from those steps. It is neither appropriate nor desirable that this Court trawl through the relevant documentation and form a view as to the reasonableness or otherwise of particular steps taken and as to which party was responsible for the inordinate lapse of time during which the proceedings have been on foot. Suffice it to say that the State's submissions raise a real question as to whether it is appropriate to make any order as to the costs of the trial at this stage, let alone how those costs should properly be apportioned. 20These considerations raise at least a possibility that injustice has been done to the State in the order made on 8 August 2012 with respect to the costs of the trial. The appropriate course is to set aside that order and in lieu thereof direct that the costs below be determined by the trial court on the remitter. Costs of appeal 21For reasons already given, the motion to vary order 5, ordering the State to pay the appellant's costs of the appeal, is not properly before the Court because no form of notice raised the matter within the relevant period. 22Against the possibility that a different view might be taken as to the powers of the Court to consider the application, the submissions of the parties should be noted. 23The primary basis upon which the State sought variation of order 5 was that the appellant was successful on only one cause of action, namely that for false imprisonment and, even in that respect, the inadequacies of his original submissions led to an adjournment of the hearing to allow for the service of notices under s 78B of the Judiciary Act 1903 (Cth), the preparation of further submissions and the fixing of a further hearing date. In respect of the other two causes of action, the State noted that the appellant had been entirely unsuccessful. 24Each of these factors was known to the Court when it made its original orders in respect of the costs of the appeal. The Court approached the matter on the basis that the "event" was the judgment on liability in favour of the appellant. It was not considered appropriate to divide the appeal according to the various issues, which might or might not have been determined, depending on the approach the Court ultimately took in its reasons. Further, the additional costs incurred by the adjournment, in the context of a complex and novel set of issues in respect of unlawful imprisonment, was thought not to warrant any special apportionment of costs between the appellant and the State. 25There was nothing in the submissions for the State in respect of the costs of the appeal which raised any new issue or put any of the known factors in a new light. Accordingly, no injustice should be seen to result from the failure to permit the State to reopen order 5. Conclusions 26The Court should make the following orders: (1) With respect to the application to vary order 3(b) made on 8 August 2012: (a) dispense with the requirement to give notice of the motion notified in the letter of the Crown Solicitor of 9 August 2012 in the prescribed form; (b) vacate the order made on 8 August 2012 and in place thereof - order that the question of the costs of the proceedings to date in the Common Law Division be dealt with by the judge to whom the matter is remitted for the assessment of damages pursuant to order 4 made on 8 August 2012. (2) Otherwise dismiss the respondent's notice of motion filed on 24 August 2012. (3) Make no order as to the costs of the motion. 27CAMPBELL JA: I agree with Basten JA, and with the additional observations of Allsop P. 28MEAGHER JA: I agree with Basten JA and with Allsop P's additional comments 29McCLELLAN CJ at CL: I agree with Basten 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. Decision last updated: 09 November 2012