Jet Corporation of Australia Pty Ltd v Petres Pty Ltd & Ors [1986] FCA 437

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) Vv. No. G 109 of 1983 ) GENERAL DIVISION )

BETWEEN :

JET CORPORATION OF AUSTRALIA PTY. LIMITED (in its capacity as trustee of the

Jet Corporation of Australia Trust) Applicant and PETRES PTY. LIMITED AND OTHERS Respondents

COURT: NORTHROP J. DATE: 6 OCTOBER 1986 PLACE: MELBOURNE

MINUTE OF ORDER

THE COURT ORDERS THAT the motion be refused with costs.

(Settlement and entry of orders is dealt with in 0.36 of the Rules of Court.)

'NOT FOR DISTRIBUTION '

IN THE FEDERAL COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) V. No. G 109 of 1983 ) )

GENERAL DIVISION BETWEEN :

JET CORPORATION OF AUSTRALIA PTV. LIMITED (in its capacity as trustee of the

Jet Corporation of Australia Trust) Applicant and PETRES PIY. LIMITED AND OTHERS Respondents COURT: NORTHROP J.

DATE: 6 OCTOBER 1986

PLACE: MELBOURNE

REASONS FOR JUDGMENT

The applicant, Jet Corporation of Australia Pty. Limited ("Jet Corporation"), is moving the Court, upon notice, for the review of the decision on reconsideration of a taxing officer of the Court made on 21 May 1986. The motion 1s brought pursuant to 0.62 r.44(1) of the Rules of

Court. That sub-rule provides:-

"44. (1) Where a taxing officer gives a certificate in accordance with his decision on reconsideration under rule 43 and pursuant to that rule a party requests the taxing officer to state his reasons for the decision, the Court shall, on motion by any party interested, review the decision of the taxing officer on reconsideration."

The conditions precedent for the review, as specified in that

sub-rule, have been satisfied. The taxing officer's reasons

for decision are dated 21 May 1986.

The issue raised by the motion results from the form of an order made by a Full Court of this Court on 6 July 1984, but an order to understand that issue, it is necessary to set out in summary form the events which led to the making

of that order.

In June 1983, Jet Corporation, together with two other companies which are no longer parties to the proceedings, instituted proceedings in this Court against a large number of respondents including Barry John Collier and Lindsay Quentin Hogg, who, initially, were represented by the one solicitor and counsel. By motion, notice of which was given on 27 duly 1983, a group of respondents including Messrs. Collier and Hogg sought orders that the proceedings against them be stayed or dismissed, alternatively, that Jet Corporation give security for costs. Two other groups of respondents, by motion, sought similar orders in favour of each of those groups. On 4 October 1983, the Court, as presently constituted, made a number of orders with respect

to those motions including the following:-

"1. The Motions by the Respondents that the proceedings be stayed or dismissed generally or in part be each dismissed.

2. The Motions by the Respondents that the Applicants provide security for costs be each dismissed."

The reasons for judgment for those orders are reported: see

det Corporation of Australia Pty. Ltd. v. Petres Pty. Ltd. (1983) 50 A.L.R. 722.

On 11 October 1983, the Court, as presently constituted, made a number of orders with respect to those motions, including an order that the respondents pay the costs of Jet Corporation in respect of the motions or those parts of the motions which were dismissed by order on 4

October 1983.

Three separate appeals were taken from the orders set out above. Messrs. Collier and Hogg appealed. The other two groups of respondents each appealed. On appeal, each group sought orders that the proceedings brought by Jet Corporation be stayed or dismissed generally, alternatively, that Jet Corporation give security for costs. Consequential orders as to costs were sought. The three appeals, with the consent of all parties, were heard together. On 6 July 1984, the Full Court gave its judgment on the appeals. One order only was made and entered even though there were three separate appeals. The order was headed in the three appeals.

The order of the Full Court is set out:-

"THE COURT ORDERS THAT:

1. The appeals of the apellant parties are

allowed with costs of and incidental to their relevant motions.

2. Leave is granted to Jet Corporation to amend the Statement of Claim if so advised.

3. Leave is reserved to the appellant parties to apply to this Court in respect of the amended Statement of Claim if so advised on reasonable notice.

4. Security for the costs of each of the appellant parties should be provided by Jet Corporation.

5. The determination of the amount and nature of

such security 1s referred to the Judge from whose decision this appeal is brought."

The reasons for judgment for those reasons are reported; see

Sent v. Jet Corporation of Australia Pty. Ltd. (1984) 2

F.C.R. 201.

Difficulties arise from the form of the orders made by the Full Court. Some of those difficulties, in the application of those orders to the motion before the Court as presently constituted, are mentioned. Section 28 of the

Federal Court of Australia Act 1976, confers powers upon a

Full Court exercising appellate jurisdiction. A Full Court may affirm, reverse or vary the judgment appealed from. It May set aside the judgment appealed from in whole or in part.

It may give such judgment or make such order as 1t thinks

fit. A reference to the reasons for judgment of the members of the Full Court shows that Messrs. Collier and Hogg failed in their appeal for an order that the proceedings brought by

Jet Corporation be stayed or dismissed generally, but

succeeded in their appeal for an order that Jet Corporation give security for costs. Accordingly, the order of the Full Court should have affirmed order numbered 1 made on 4 October 1983 but reversed or set aside the order numbered 2 made on 4

October 1983. On its face, the orders made by the Full Court

do not reverse or set aside the order for costs in favour of

Jet Corporation made on 11 October 1983. On these aspects of

the matter, the Full Court ordered that "The appeals of the appeilant parties are allowed with costs of and incidental to their relevant motions". There was no express order to the effect that Jet Corporation should pay the costs of Messrs. Collier and Hogg of the appeal or of their motion before the Court as presently constituted. Nevertheless, Jet Corporation and Messrs. Collier and Hogg each assumed that the order of the Full Court just set out entitled Collier and Hogg to recover from Jet Corporation their costs of the appeal as well as their costs of the motion, notice of which was given on 27 July 1983. No agreement having been reached,

Messrs. Collier and Hogg, pursuant to 0.62, sought a taxation

of their costs.

As was stated at the beginning of these reasons, the review of the decision of the taxing officer has been brought before the Court pursuant to 0.62 r.44(1) and the requirements of that sub-rule have been satisfied. A judgment of the Court as presently constituted with respect to aspects of the reconsideration of the taxing officer's

decision was given on 23 December 1985.

By 1ts motion Jet Corporation 1s seeking an order that its objections to 89 aitems of the bill of costs of Messrs. Collier and Hogg be allowed. Each of those atems relates to costs with respect to each of the orders numbered l and 2 made on 4 October 1983 as well with respect to the orders of the Full Court. Jet Corporation sought to apportion those items between each of the orders made with the result that the amounts allowed should be referable to the order numbered 2 only and not amounts referable to the order numbered 1. This contention was made on the basis that order number 2 was a true alternative and became relevant only if Messrs. Collier and Hogg failed in obtaining an order

staying or dismissing the application by Jet Corporation.

On the reconsideration by the taxing officer, these

8 items were referred to as the Category A items. In his

reasons for decision, the taxing officer said:-

"IN REGARD TO CATEGORY A ITEMS

8. Prior to these items being reconsidered the respondent made a preliminary submission thus:

'That the order of the Court dated 6

July 1986 simply allows the appellant parties the costs of the motion upon which they were

successful, that is, in relation to the notice of motion dated and filed 27 July 1983, the costs of "sub-motion" (my words) numbered 2; that the ambiguity of the order of the Court is such that ait is appropriate for the taxing officer to refer to the Court under 0.62, sub-rule 39(2) the question of what are the relevant motions for the purpose of taxation of costs.'

3. Because this preliminary submission had not been put at the time of the taxation of the costs and because the question of

interpretation of the order of the Court could conveniently be dealt with on any review of the reconsideration sought under 0.62, sub-rule 44(1), I declined to refer the matter as requested.

10. The respondent then invited me as part of my

reconsideration to take the narrow interpretation of the order of the Court as urged in the preliminary submission. I rejected this invitation stating that on

reconsideration my interpretation of the order was unchanged and that the costs ordered to he paid by the respondent were the appellants costs in respect of the Appeal proceeding and in respect of the motions or those parts of the motions heard and determined by The Honourable Mr Justice Northrop in relation to the Notace of Motion filed and dated 27 July 1983 in the original proceeding.

11. %It would seem inappropriate for a taxing officer to give reasons for his or her interpretation of an order made by the Court and I do not propose to do so.

12. I note that no objection to the quantum of the costs allowed on these items was taken at the original taxation of the bill of costs and review of their quantum was not sought on reconsideration."

In that passage, Jet Corporation 1s called "the respondent".

Before the Court as presently constituted, counsel for det Corporation contended that the taxing officer should have referred the question of what were the relevant motions for the purpose of taxation of costs to the Full Court which made the order. The order of the Full Court has been entered. It must stand. There are many reasons why the taxing officer had no power to refer the question of the order to the Full Court, but reference is made to one of

those reasons only. In 0.62 r.39, the reference to the Court

1s a reference to the Court exercising original jurisdiction. The power is a power in the nature of stating a question toa

Court; see for example 5.45 of the Administrative Appeals

Tribunal Act 1975, but the Full Court, in deciding that question, 1s exercising original jurisdiction. The taxing officer 1s not empowered to refer a question under 0.62 r.39

to a Full Court exercising appellate jurisdiction.

The substantial contention relied upon by counsel for Jet Corporation was that the word "relevant" as used in order numbered 1 of the Full Court orders should be construed as referring to the relevant parts of the motions of each group of appellants when being heard by the Court as presently constituted. This contention 1s rejected. If the order had merely been in the form "The appeals of the appellant parties are allowed with costs" there 1s no doubt that the order would have entailed all the costs of the appeal. In their Notice of Appeal dated 31 October 1983, Messrs. Collier and Hogg appealed from the two orders made on 4 October 1983 but did not appeal from the order for costs made on 11 October 1983 but the Notice of Appeal stated that one of the orders sought on the appeal was that Jet Corporation pay their costs "of an incidental to the hearing before the learned trial judge and of the Appeal". In this context, the words "of and incidental to their relevant motions" appearing in the order of the Full Court must be construed as a reference to the costs of the appellants with respect to their motions before the Court as presently

constituted and their costs of the appeal. The effect of the

orders of the Full Court was that the proceedings by Jet Corporation were stayed pending the giving of security. The appellants had succeeded in their appeal. In this context, the word "relevant" should be construed as "respective" to Make clear the fact that each group of appellants was entitled to its costs. This arose from the fact that one order only was made with respect to the three appeals and not

a separate order with respect to each appeal.

In the result, the motion for review of the taxing

officer must be refused with costs.

ES SEES TT

I certify that this and the ey (8) precedmg pages are a true copy of the Reasons for Judgment herein of the

Hoaourable Mr. Justice Koa myo;