Shaw v Yarranova

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0001

JOHN RASHLEIGH SHAW Applicant V YARRANOVA PTY LTD and NEWQUAY STAGE 2 PTY LTD Respondents
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APPLICATION ON SUMMONS
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JUDGES REDLICH and MANDIE JJA
WHERE HELD MELBOURNE
DATE OF HEARING 18 February 2011
DATE OF ORDERS 18 February 2011
DATE OF REASONS FOR JUDGMENT 3 March 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 55

JUDGMENT APPEALED FROM [2010] VSC 567 (Beach J)

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COSTS – Indemnity principle – Whether unsuccessful litigant liable for successful litigant’s costs – Taxation – Review of Costs Judge assessment – Third party indemnifies successful party as to costs – Parent company indemnifying subsidiary companies who were successful parties – Costs Judge ordered production of retainer and any costs agreements on review – Presumption of retainer – Whether indemnity rule displaced – Refusal to order production of invoices and other indicia of payment – No likelihood shown that documents would materially assist case of party seeking production – Kuek v Devflan Pty Ltd & Anor [2011] VSCA 25 distinguished – Disclosure requirements under Legal Practice Act 1996 – Whether non-compliance would constitute ‘special circumstance’ to conduct further assessment – Legal Practice Act 1996 s 116 – Whether bill of costs must be signed by solicitor – Supreme Court (General Civil Procedure) Rules 2005 r 63.42, r 63.57(1).
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Appearances: Counsel Solicitors

For the Applicant In person

For the Respondents Mr D G Guidolin Arnold Bloch Leibler
REDLICH JA:
MANDIE JA:

1 On 18 February 2011 we refused leave to appeal from the orders made by Beach J on 13 December 2010 dismissing an application for the review of orders made by Wood AsJ on 27 April 2010 and 26 July 2010. These are our reasons for doing so.

2 In these protracted proceedings, costs orders had been made by Daly AsJ on 7 March 2008, Warren CJ and Buchanan JA on 1 August 2008, Judd J on 2 June 2008, Evans AsJ on 22 May 2009, 27 May 2009 and 16 July 2009, Kings AsJ on 24 August 2009 and J Forrest J on 3 September 2009. Those orders were all eventually taxed. The applicant, being dissatisfied with the taxation of most of those orders, instituted review proceedings pursuant to r 63.56.1 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). Following that review, Wood AsJ confirmed those taxations of costs orders. The applicant then sought a review of those orders by a judge of the Supreme Court pursuant to r 63.57(1). In that application he also sought a review of the balance of those costs orders which had not been reviewed by Wood AsJ.

3 Beach J drew attention to the fact that a judge of the Supreme Court has no jurisdiction to review an order of the Costs Court unless a Costs Court judge has first reviewed such an order pursuant to r 63.56.1(6) or r 63.56.4(7). The applicant acknowledged this jurisdictional obstacle, but explained to Beach J that the same argument applied to all of the costs orders. For reasons that will become apparent, Beach J found it unnecessary to further address the jurisdictional issue. His Honour concluded that the applicant had failed to identify any error of principle in the Costs Court’s confirmation of its previous orders and dismissed the application for review.

4 Leave to appeal is required from the review by Beach J of the Costs Judge’s decision as it was an interlocutory order dealing with the taxation of costs.[1] The applicant must therefore demonstrate that the decision of Beach J is attended by sufficient doubt to warrant a grant of leave.

5 Beach J was exercising the jurisdiction to review the discretionary judgment of the Costs Judge who had confirmed a taxation of costs. Kitto J in Australian Coal & Shale Employees’ Federation v The Commonwealth[2] cited with approval the observations of Bovill CJ and Brett J in Hill v Peel[3] that a very wide discretion must necessarily be given to the taxing officer, and that it lies upon those who impeach this decision to demonstrate that there are very strong grounds to show that the taxing officer was wrong in the judgment which was formed.

6 The applicant’s draft Notice of Appeal is in this form:

Questions of Law
1. Whether the indemnity principle was infringed.
2. Whether the appellant was denied natural justice.

Grounds of Appeal
1. The Court denied the appellant natural justice and erred in determining that in circumstances where there was no contract or retainer between the respondents and the proceeding solicitors and all costs were invoiced to and paid by a third independent party it was not necessary for the respondents to furnish documents that would allow the court to determine whether the costs claimed were not less than their actual liability to the proceeding solicitors.
2. The Court erred in failing to establish that the respondents were liable to pay all costs to the proceeding solicitors. If any costs had been invoiced to and paid by a third party it logically follows that the respondents have no liability.
3. The Court erred in not considering the appellant’s objections and accepting inadmissible hearsay evidence regarding the defendant’s liability to the proceeding solicitors that unduly influenced the decision.
4. The unusual circumstances of the retainer, billing arrangements and complete lack of documents constituted sufficient grounds for the ordering of production of the requested invoices and the Court’s refusal constituted a denial of natural justice.

7 The applicant’s primary argument before Wood AsJ and Beach J was that as the respondents’ parent company, MAB Corporation Pty Ltd, had paid the respondents’ legal costs, the claim that the applicant should pay the respondents’ taxed costs offended the indemnity rule as they had no liability to their solicitors.
The indemnity rule

8 An order for costs against the unsuccessful litigant aims to provide the successful party with some level of indemnity for the legal costs the successful party would not have incurred had it not been necessary to uphold his or her rights in court.[4] Such an order does not entitle the successful litigant to recover more than he or she has paid or is liable to pay to his or her own lawyer.[5] The rule limits the successful party’s right to indemnification to the ‘necessary or proper’ costs incurred to obtain justice in the case.[6] The costs are usually confined to those that the successful party ‘was primarily and potentially legally obliged to pay to his solicitor’.[7] Hence the existence and scope of the successful litigant’s duty to pay his or her own solicitors is central to the ability to recover costs.

9 As this case and the recent decision of this Court in Kuek v Devflan Pty Ltd & Anor[8] illustrate, an unsuccessful party may wish to investigate the scope of the successful party’s obligation to pay their solicitors’ costs by reference to the retainer of the successful party’s solicitors.[9] As it was known that MAB Corporation had paid or was intending to pay all or part of the respondents’ costs, the applicant endeavoured to obtain documents before Wood AsJ for the purpose of establishing that the respondents had no liability to the solicitors who acted for them, or had a liability that was less than might be calculated by a standard party/party taxation. Relying upon the decision of Beach J in Kuek v Devflan Pty Ltd[10] and the New South Wales Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd,[11] the applicant sought production of ‘relevant retainer letters, costs agreements, invoices, proof of payments of invoices and actual costs paid.’ He submitted before Wood AsJ that the respondents should be required ‘to provide evidence of the terms of the retainer outlining the circumstances and any limitations on the fees or liabilities the defendants may have to their solicitors and actual costs paid by them’, so as to establish their liability to pay costs to their solicitors in amounts at least as great as the amounts of the costs the applicant had been ordered to pay pursuant to the costs orders.

10 Wood AsJ accepted that production of retainer letters and any costs agreements may be justifiable but refused to direct the respondents to produce bills or invoices rendered or other proof of payment. He thus ordered that the respondents produce any relevant document and any costs agreement that established the method of calculation of legal fees in relation to acting for the respondents in the substantive proceedings. In response to that order the solicitors for the respondents advised Wood AsJ that there were no such documents, save for actual bills or invoices rendered as proof of payment, noting that the production of those documents was not required. Following that advice, the applicant renewed his request for the production of invoices and receipts for payments. Wood AsJ again refused to so order and in his reasons for confirming on review the taxation figures stated –
At the hearing on 27 April 2010 the defendants confirmed that there were no documents that fell within the description of the order of 19 February 2010. By default therefore the liability of the defendants for legal costs performed on their behalf is on the Supreme Court scale. The taxation took place on that basis and therefore there is nothing to suggest the indemnity principle has been offended.

11 Beach J concluded that Wood AsJ was correct to have required the respondents to produce any relevant document and any costs agreement that established the method of calculation of the relevant legal fees and was also correct in refusing to order the production of invoices and receipts. Beach J considered that a flexible and reasonable application of the indemnity principle did not mandate a fishing exercise by the unsuccessful party in the hope of finding something in the successful party’s documents that would displace the right to indemnity when there was presently no evidentiary foundation to do so.

12 Both Wood AsJ and Beach J relied upon the evidence of the respondents’ solicitor, Mr Alexander King, a partner of Arnold Bloch Leibler. He had sworn an affidavit following the applicant’s initiation of review proceedings in the Costs Court in which he deposed:–
It appears that the Plaintiff, by paragraphs 39 to 49 of his affidavit affirmed 19 November 2009, believes that the Defendants are not liable to ABL, their solicitors, for the costs of ABL providing legal services to the Defendants. This appears to be due to the fact that ABL invoices MAB Corporation Pty Ltd.
The Defendants are but two companies within a large group of companies known as the ‘MAB group of companies’. ABL acts for a number of companies in that group, including each of the Defendants. The Defendants are, and have always been, liable to pay ABL for legal services provided to them.
ABL has never entered into any agreement or arrangement, whether with MAB Corporation Pty Ltd or with either or both of the Defendants or anyone else on their behalves, to the effect that either or both of the Defendants will not under any circumstances whatsoever be liable for ABL’s fees for providing legal services to the Defendants. I gave oral evidence to that effect before Harper J and I was cross-examined by the Plaintiff on that very issue.

13 Mr King had also given evidence in earlier proceedings before Harper J in October 2009 in which the applicant had sought leave to appeal from earlier costs orders made by Wood AsJ in 2007 and 2008. Beach J described Mr King’s evidence in these terms –
… During the course of his evidence, Mr King swore that Arnold Bloch Leibler’s retainer was with MAB Corporation Pty Ltd in respect of it and its various subsidiary companies and their businesses. He also swore that MAB Corporation Pty Ltd was the head company in the MAB group, two of which were the defendants in this proceeding. However, at no time did Mr King say that the defendants were not liable to pay for the work done by Arnold Bloch Leibler in this proceeding.[12]

14 Beach J referred to the following ruling which had been given by Harper J during the course of the applications –
I am against you Mr Shaw, in my opinion it is now too late to appeal the orders of Associate Justice Wood made on respectively 16 November 2007, and the 18 February 2008. The only explanation put forward for the delay in seeking leave to appeal is that the associate justice may have changed his position in relation to the orders he made then, had the plaintiff presented the associate justice with documents which he says would in some way affect the decisions made by the associate justice.
As I understand it the documents may suggest that the costs taxed by the associate justice were not in fact paid by the respondent. Even if that were true the question before the associate justice is whether the costs were charged by the legal representatives of the respondents. If they were charged by the legal representatives of the respondents, and they were reasonable, and they were taxed accordingly, then the fact that the legal advisors may not have actually received those monies from the respondents is irrelevant. In my opinion the failure of Mr Shaw to appeal against the relevant orders in time together with the – is in itself a reason why the matter should not now be opened, or reopened after this very long lapse of time.[13]

15 In rejecting the applicant’s submission that the indemnity rule had been displaced, Beach J referred to and endorsed the above italicised observations of Harper J.

16 The applicant contended that as it was undisputed that there was a retainer between MAB and the respondents’ solicitors and their invoices were rendered to and paid by MAB, the Costs Judge and Beach J should have concluded, in the absence of any costs agreement or retainer between the respondents and their solicitors, that it was never contemplated by their solicitors or the respondents that they could be liable to their solicitors for their costs. The applicant relied upon the proposition that where a lawyer cannot recover costs from his or her client, that client cannot recover costs from his or her opponent.[14] As the parent company and each of the respondents was a separate entity under the Corporations Law and the contract for services was between MAB and the respondents’ solicitors, he submitted that there was no privity of contract between the respondents and their solicitors. He relied upon the fact that no evidence had been adduced to establish that the respondents had agreed to be liable for costs or that the respondents had been advised that they could be liable. In the absence of such evidence it was submitted that the respondents’ solicitors would not have been able to enforce a claim for payment of their costs against the respondents.
Presumption of a retainer

17 The retainer is a contract between the solicitor and the client for the provision of legal services by the solicitor for a fee. Proof of its existence may, like any other contract, be implied from conduct.[15] An argument which raised similar issues to those raised by Mr Shaw was considered by Dawson J and then by Mason CJ in Halliday v High Performance Personnel Pty Ltd (in liq).[16] Dawson J in an unreported judgment had dismissed an application for a review of a taxation of costs, one of the grounds being that the successful party had never proved that the solicitors who purported to act for it were really retained by it, rather than by the insurer who had given instructions to the solicitors. Mason CJ in rejecting an application for an extension of time in which to appeal said:
Dawson J held that the party who challenges the existence of a retainer bears the onus of establishing the absence of it. In this case, there never was a challenge to the existence of the retainer during the course of the proceedings. His Honour went on to say:
The mere fact that a person appears on the record as the solicitor for a party does not necessarily justify the conclusion that there is a contract of retainer between the solicitor and that party. (See, by way of analogy only, Hall v Laver [1842] EngR 883; 1 Hare 571, at 575–6; [1842] Eng R 883; 66 ER 1158, at 1160). But, at least where the party is aware of this and takes no steps to rectify it, then a presumption must arise that there is a contract of retainer between them. (See, by way of analogy only, Reynolds v Howell (1873) LR 8 QB 398, per Blackburn J at 400).[17]

18 In rejecting an argument that if the solicitors were engaged, then it must have been a term of that engagement that the client would not be liable for the solicitors’ costs, Mason CJ stated that ‘there was no evidence for this assertion, and such an agreement is not only unlikely but there is a presumption that no such agreement exists.’[18]

19 Courts generally accept the existence of a contract of retainer when a solicitor has performed work on behalf of a person with his or her knowledge and assent, in circumstances which are consistent with that person being the solicitor’s client.[19] The existence of a contract of retainer and the liability of the client for the solicitor’s costs will be presumed, and the party who challenges the existence of the retainer in such circumstances bears the onus of establishing the absence of it.[20]
Failure to prove that there was no obligation to pay costs

20 Where the party against whom the costs order has been made seeks to displace the rule, it is necessary to prove that under no circumstances does the client have any liability to pay costs to his or her solicitors.[21] In Adams v London Improved Motor Coach Builders Ltd[22] Bankes LJ found that although the plaintiff was represented by the solicitors for the union, he became liable to the solicitors for costs, and that liability was not excluded merely because the union also undertook to pay the costs. To displace the obligation to indemnify the plaintiff, Bankes LJ stated that it was necessary to go a step further and prove that there was a bargain, either between the union and the solicitors or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs. Atkin LJ stated that the solicitors’ personal claim against the union could coexist with an obligation of the plaintiff to the solicitors. There was no doubt that a retainer, even if only implied, existed between the solicitors and the plaintiff. A similar situation arises in the case of a party who is insured and is represented by a solicitor engaged by the insurer.[23]

21 In Halliday the applicant had also contended before Mason CJ that the judgments in Adams do not support the approach taken by Dawson J. Mason CJ was of the view that what his Honour said plainly accorded with the judgments of Bankes LJ and Atkin LJ in that case.

22 Adams’ case has been cited and followed in numerous decisions in this country.[24] The principle for which it stands has been consistently applied.[25] In Victoria and elsewhere in Australia the indemnity rule has been treated as permitting recovery of costs from the party against whom the order is made, although a third party has indemnified the successful party or paid their costs.[26]
Co-existing obligations to pay solicitors’ costs

23 Payment by MAB Corporation of the respondents’ costs did not give rise to an inference that the respondents had no liability for their solicitors’ costs. The existence of a concurrent obligation by MAB to pay the respondents’ solicitors’ costs pursuant to its retainer, and the fact that the accounts for services may not have been rendered to the respondents, did not preclude the presumption from applying.[27] A litigant who is liable to his or her own solicitor for the costs of proceedings and is indemnified in whole or in part for those proceedings is entitled to recover his or her taxed or assessed costs for the benefit, in whole or in part, of the party providing that indemnity.[28] Having paid or agreed to pay the solicitors for the successful party’s costs, the indemnifier would become subrogated to all rights of the successful party, subrogation being an equitable right which does not depend upon a contractual entitlement.[29]

24 There being a strong presumption of a retainer,[30] it was for the applicant to either prove that there was no retainer or establish that there was an express or implied agreement between the respondents and their solicitors that under no circumstances whatsoever were they to be liable for their solicitors’ fees.[31]

25 There was no evidence to support an inference that there was an agreement between the respondents and their solicitors that they should not be liable for their solicitors’ fees. The evidence of Mr King was to the contrary effect. Such evidence was not hearsay evidence but was direct evidence. Accordingly, we reject the
contention that the Costs Judge should have found that the indemnity rule was displaced.
Circumstances in which production should be ordered

26 Wood AsJ and Beach J were correct to conclude that this was not a case in which the production of invoices and other indicia of payment should have been ordered. The principles governing an application for an order that documents be produced are not different from those governing applications for access to documents produced in answer to a subpoena. So where an application is made in the Costs Court that the party in whose favour a costs order has been made produce documents asserted to be relevant to the application of the indemnity principle, the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is ‘on the cards’ that the documents will materially assist his case.[32] There will be no legitimate forensic purpose if, ‘all the party is doing is trying to get hold of the documents to see whether they may assist him in his case.’[33] The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.[34]
No evidence of displacement of indemnity rule

27 Once it is recognised that it will ordinarily be presumed in the case of a solicitor who acts on the record for a party that there is a retainer and that the party for whom the solicitor acts is liable for the solicitor’s costs notwithstanding that the party is indemnified by another for the payment of those costs, there was nothing before the Costs Judge that made it likely that any of the material sought by the applicant would advance the contention that the indemnity principle had been displaced. The evidence did not raise the likelihood that the costs that had been or were to be paid were less than those that had been taxed. Beach J correctly concluded that the applicant was on a ‘fishing expedition’ to determine whether there may be relevant retainer documents or indicia of payment that might support an argument that the indemnity rule did not in whole or part apply.

28 By contrast, in Kuek v Devflan Pty Ltd there were circumstances placed before the Costs Judge which gave him reason to order the production of retainer letters and costs agreements.[35] The material was there sufficient to raise the likelihood that the party/party costs may have exceeded the successful party’s actual liability to its lawyers.[36] But there must be evidence before the Costs Court that renders it likely that the indemnity principle has either in whole or part been displaced.

29 There was no evidence before Wood AsJ that rendered it likely that MAB had paid the respondents’ solicitors amounts which were less than those established on the taxation, or that the respondents’ liability to their solicitors was for an amount less than that taxed. Absent evidence that brings into doubt that the solicitor is to be indemnified to the full extent of the taxed costs, natural justice does not require the production of invoices and indicia of payment.
Disclosure under Legal Practice Act 1996

30 Beach J also rejected the submission made by the applicant that he was entitled to pursue an argument and seek relevant documents to establish that there may have been non-compliance by the respondents’ solicitors with the disclosure obligations under the Legal Practice Act 1996. In doing so his Honour said:
The taxation of costs ordered to be paid by another party is not an occasion for enquiry into what (if any) failures there have been in relation to disclosure requirements and not the ‘seriousness’ of any such breach might be. The flexible and reasonable application of the indemnity principle as the authorities show, does not permit such an approach. In any event, how the production of invoices and receipts might show a failure by a party’s solicitor to comply with disclosure requirements was never explained by the plaintiff.[37]

31 The applicant contended that Beach J erred in not conducting an assessment pursuant to s 91 of the Legal Practice Act 1996 to determine the extent, if at all, that the respondents’ solicitors had failed to make the disclosures required under the Act and to then reduce the costs. He said on the leave application that the order for production was wide enough to cover such documents and that as nothing was produced it follows that there had been no requisite disclosure. The respondents submitted that the documents did not fall within the order for production as these were not documents that set out the method by which the respondents’ costs had been calculated. The respondents pointed to the fact that the order had been made in the context of a request for ‘relevant retainer letters, costs agreements, invoices, proof of payments of invoices and actual costs paid’ hence it was not within the contemplation of the respondents’ solicitors that disclosure documents were being sought. The respondents contended that the applicant had not claimed that it had been established that there was any failure by the respondents’ solicitors to disclose to the respondents any information required under the Act. The applicant’s case was that ‘if there has been no costs disclosure, the court should conduct an assessment of the costs and reduce them in accordance with s 91 and s 93.’[38]

32 Even if there was evidence from which it could be inferred that there had been non-compliance with s 86 of the Legal Practice Act 1996, and assuming that the applicant falls within the description of persons who could apply for an assessment of the respondents’ solicitors’ bill of costs under s 115(1) of that Act, there had, by the time of this submission before Beach J, been an assessment and a review of all the relevant bills of costs. It was not for Beach J to have undertaken such a task, nor could his Honour have ordered a further assessment except in ‘special circumstances.’[39] A complaint by the applicant, as the party who has been ordered to pay the costs of the proceeding, that there may have been non-compliance with the disclosure requirements of the Act, would not in our opinion constitute a ‘special circumstance’ warranting a further assessment.
No signed bill of costs

33 Finally, at the very end of his oral submissions, the applicant advanced a further argument which was not raised in his grounds of appeal or written submissions before this Court, but which had been raised before Wood AsJ (but was not addressed in his Honour’s reasons), that the bills of costs which he had been given by the respondents were not signed by the solicitors for the respondents. Thus there was no basis, it was said, for the Costs Judge to presume the accuracy of the items in any of the bills. He asserted that the respondents’ solicitors should have produced invoices and other indicia of payment to verify that the costs claimed had in fact been incurred. That argument must also be rejected. It was not made clear that the applicant raised this argument before Beach J as a ground upon which the Costs Judge’s decision should be reviewed. Even assuming that the bill given to the respondents was not signed, the Rules do not require that a bill of costs for taxation prepared pursuant to an order that one party pay the taxed costs of another party be signed. The requirements as to the contents of a bill of costs for taxation under r 63.42 of the Rules do not include a requirement that the bill be signed. The relevant statutory provisions[40] governing the institution of a proceeding by a law practice or a legal practitioner for the recovery of costs from a client require that the ‘bill’ be signed, but those provisions do not relate to a bill of costs for taxation prepared pursuant to an order that one party pay the other party’s taxed costs.

34 We do not consider that the decision of Beach J is attended by sufficient doubt to warrant the grant of leave.
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[1] Kowal v Zoccoli [2002] VSCA 100; (2002) 4 VR 399, 400 (Phillips JA).
[2] [1953] HCA 25; (1953) 94 CLR 621.
[3] (1870) LR5CP 172.
[4] Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson and McHugh); Harold v Smith [1860] EngR 516; (1860) 157 ER 1229, 1231 (Branwell B); G E Dal Pont, Law of Costs (2nd ed, 2009) [7.5].
[5] General of Berne Insurance Co v Jardine Reinsurance Management Ltd [1998] EWCA Civ 220; [1998] 2 All ER 301, 308 (May LJ), 312 (Sir Brian Neill); Stobbart v Mocnaj [1999] WASC 252, [8]–[9] (Parker J).
[6] Pecheries Ostendaises (Soc Anon) v Merchants’ Marine Insurance Co [1928] 1 KB 750, 762 (Atkin LJ); Mia v Mia [1932] VicLawRp 46; [1932] VLR 322, 333 (Cussen ACJ); Prudential Finance Ltd v Davander Nominees Pty Ltd [1992] VicRp 32; [1992] 1 VR 468, 474 (Ashley J).
[7] Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474, 45–6 (Santow JA).
[8] [2011] VSCA 25.
[9] Southcoast Shipping Co Ltd v Havant Borough Council [2002] 3 All ER 779, 782 (Pumfrey J); G E Dal Pont, Law of Costs (2nd ed, 2009) [8.23].
[10] [2011] VSCA 25.
[11] [2004] NSWCA 154; (2004) 60 NSWLR 203.
[12] Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567, [9].
[13] Ibid [8] (emphasis added).
[14] See Re Sweeting [1898] 1 Ch 268, 272–3.
[15] Beach Petroleum NL v Abbott Tout Russell Kennedy & Ors [1999] NSWCA 408; (1999) 48 NSWLR 1, 48.
[16] [1993] HCA 13; (1993) 113 ALR 637 (‘Halliday’).
[17] Ibid 639.
[18] Ibid 641.
[19] Groom v Crocker [1939] 1 KB 194, 222; Pegrum v Fatharly (1996) 14 WAR 92, 95, 102; Simmons v Story [2001] VSCA 187, [23] (Winneke P).
20. [20] Inglis v Moore & Others (No 2) (1979) 25 ALR 453, 464-5 (Davies J); Ernst & Young (Reg) v Tynski Pty Ltd [2003] FCAFC 233; (2003) 47 ACSR 433, 441 (Branson, Marshall and Stone JJ); McKenzie v Director General of Conservation and Natural Resources & Ors [2001] VSC 220, [53]–[55] (Gillard J); Hawksford v Hawksford [2005] NSWSC 463; (2005) 191 FLR 173; Tasmanian Sandstone Quarries Pty Ltd v Tasmanian Sandstone Pty Ltd (2009) 263 LSJS 87 (White J).
[21] Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474, 45–6 (Santow JA). See the further authority referred to by Beach J in Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567, [5] and n 7.
[22] [1921] 1 KB 495 (‘Adams’).
[23] R v Archbishop of Canterbury [1903] 1 KB 289, 295; Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495, 507–508 (Younger LJ).
[24] Backhouse v Judd [1925] SASR 395; Angor Pty Ltd v Ilich Motor Co Pty Ltd [1992] FCA 348; (1992) 37 FCR 65, 72; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 2) [2003] VSC 212; O’Keefe v Hayes Knight GTO Pty Ltd (2005) 218 ALR 604, 612.
25. [25] Davies v Taylor (No 2) [1974] AC 225; R v Miller [1983] 3 All ER 186; Hudgson v Endrust (Aust) Pty Ltd (1986) 11 FCR 152; Johnson v Santa Teresa Housing Association [1992] NTSC 29; (1992) 83 NTR 14; Wilson v Richmond River Shire Council [2000] NSWSC 71; North Australian Aboriginal Legal Aid Service Inc v Bradley (No 2) [2002] FCA 564; Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203; Trevorrow v State of South Australia (No 7) [2008] SASC 5.
[26] McKenzie v Director General of Conservation and Natural Resources [2001] VSC 220, [65]; Brott v Levene [2004] VSC 79; Australian Beverage Distributors v The Redrock Co [2008] NSWSC 114; Coshott v Woollahra Municipal Council [2008] NSWCA 221, [11]; Backhouse v Judd [1925] SASR 395, 400; Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 1331; Grundmann v Georgeson [2000] QCA 394, [7]–[9]; Trevorrow v State of South Australia (No 7) [2008] SASC 5, [17]–[22] (Gray J). See also G E Dal Pont, Law of Costs (2nd ed, 2009) [7.10].
[27] Groom v Crocker [1939] 1 KB 194, 222; Pegrum v Fatharly (1996) 14 WAR 92, 95, 102; Tasmanian Sandstone Quarries Pty Ltd v Tasmanian Sandstone Pty Ltd (2009) 263 LSJS 87.
[28] Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203; Morris v Ford Motor Co Ltd [1973] QB 792, 800–801.
[29] Morris v Ford Motor Co Ltd [1973] QB 792, 800–801; Coshott v Woollahra Municipal Council [2008] NSWCA 176; Australasian Conference Association Ltd v Mainline Constructions Pty Ltd [1978] HCA 45; (1978) 141 CLR 335, 348; Lord Napier v Hunter [1993] AC 713.
[30] Halliday v High Performance Pty Ltd (In Liq) [1993] HCA 13; (1993) 113 ALR 637 (Mason CJ).
[31] McKenzie v Director-General of Conservation and Natural Resources [2001] VSC 220, [54]–[56], [60] and [64] (Gillard J); Davies v Taylor (No 2) [1974] AC 225 (Viscount Dilhorne).
[32] Alister v R (1983) 154 CLR 404; Ragg v Magistrates Court of Victoria [2008] VSC 1; (2008) 18 VR 300; Felice v County Court of Victoria [2006] VSC 12; DPP v Selway (Ruling No 2) [2007] VSC 244; (2007) 16 VR 508; Shipley v Masu Financial Management [2008] NSWSC 1187; (2008) 68 ACSR 412.
[33] Principal Registrar of the Supreme Court v Tastan (Barr AJ); R v Saleam [1999] NSWCCA 86, [11] (Spigelman CJ, Studdert and Simpson JJ agreeing); Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536.
34. [34] Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (Mahoney AP); Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278, 282–283; Bruce Harvey v State of New South Wales [2005] NSWSC 1389; R v Robinson (1996) 89 A Crim R 42, 61; Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233, 252; and Re Don [2006] NSWSC 1125, [6].
[35] [2011] VSCA 25, [60].
[36] Ibid [70].
[37] Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567, [25].
[38] Applicant’s Submission filed 14 April 2010, [5].
[39] Legal Practice Act 1996 (Vic) s 116(4).
[40] See ss 3.4.33 and 3.4.34(2) of the Legal Profession Act 2004 (Vic) and similar provisions contained in ss 106(1) and 107(2)(a) of the Legal Practice Act 1996 (Vic).