Lenox Hewitt v Queensland Newspapers Pty Limited [1997] ACTSC 104 (16 December 1997)

SUPREME COURT OF THE ACT

LENOX HEWITT v. QUEENSLAND NEWSPAPERS PTY LIMITED
No. SC 283 of
1993
Number of pages - 4
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Costs - application for review by Judges of taxation of costs by Deputy Registrar and for other orders - allegations of bias and denial of natural justice - whether application invokes inherent jurisdiction - no evidence to support allegations - Court's power limited to review under Order 65 Rule 67 - no further evidence without leave - no grounds shown for granting of leave - review to proceed on evidence before Deputy Registrar.

Rules of Court, O.65 r.67, O.65 r.64, O.65 r.62

HEARING

CANBERRA, 12 December 1997 (hearing), 16 December 1997 (decision)

16:12:1997

Appearances

Counsel for the applicant: B. Meagher

Solicitors for the applicant: Freehill Hollingdale and Page

Counsel for the respondent: R. Travers

Solicitors for the respondent: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:

1. The application to file affidavits to support a claim that further evidence be received upon the hearing of the review pursuant to O.65 r.64 be refused.

2. The hearing proceed on the material before the Deputy Registrar on a date to be fixed. 3. The respondent's costs of the hearing before me be paid by the applicant.

THE COURT RULES THAT:

1. The applicant has no right to call evidence in support of the motion.

DECISION

MILES CJ

The Court has before it a motion on notice dated 26 November 1997 seeking, inter alia, a review of a taxation of costs carried out by the Deputy Registrar pursuant to an order made by Higgins J. on 18 July 1996.

The applicant, being in a "dilemma" as to the source of the Court's power to make some or all of the orders sought on the motion, seeks a preliminary direction that the hearing of the motion may proceed in the exercise of the inherent jurisdiction of the Court. If such a direction is given, no leave is necessary for the filing of evidence in support of the motion. However, if the power of the Court to make an order in the nature of a review of the taxation is governed by Rules of Court, notably by O.65 r.67, the application for the review is to be determined upon the evidence brought in before the taxing officer and no further evidence shall be received upon the hearing unless the Judge otherwise directs.

At the commencement of the hearing before me, Mr. Meagher, for the applicant, stated that he did not wish to pursue the motion beyond obtaining a decision from the Court as to the source of the Court's power, and that if it was decided that the source was in the Rules of Court, then he would apply for leave to be granted to the applicant under O.65 r.67 to file further evidence. As the hearing progressed, however, it became clear that the question of the Court's power depended on the nature of the relief sought, that the nature of the relief sought was explicable only in the light of the facts relied upon and that the question whether further evidence should be permitted (if it were held necessary) could not be exercised in the applicant's favour unless there was some indication in proper form of what that further evidence would be. Mr. Meagher informed me from the bar table that it would be alleged, inter alia, that the Deputy Registrar's conduct at the taxation was such as to indicate apprehended bias and to deny natural justice to the applicant. However, the complaint about the conduct was no more precise than that and there was no evidence to support any allegation of bias or denial of natural justice on the part of the Deputy Registrar.

At the end of his submissions, Mr. Meagher asked that his client be directed to file affidavit evidence relevant to the preliminary questions whether leave of the Court was necessary in order for the applicant to rely on evidence relating to the alleged conduct of the Deputy Registrar, and, if leave was necessary to present that evidence, or any other evidence, on the review, whether such leave should be granted.

Despite the lack of material before me, the essential facts appear as a matter of court record, including the written review of the Deputy Registrar dated 4 November 1997.

On 5 June 1995 the applicant obtained judgment against the respondent for $80,500 in an action for libel.

On 18 July 1996 Higgins J. made a number of orders including an order that "the defendant pay the costs of the plaintiff's action including the application for this order for costs on an indemnity basis save for the costs incurred by the applicant in respect of the applicant's amendment to particulars of imputations".

Pursuant to the order just mentioned, the applicant's solicitors filed and served a bill of costs for taxation. The bill was lengthy, 196 pages. The total amount shown on it was $187,249.66. The taxation eventually proceeded on 26 May 1997 after one adjournment and the furnishing of further particulars of the bill. Further documents were filed at the taxation. The taxation proceed for two hours after which time the Deputy Registrar made a number of rulings including a ruling that "the bill be taxed on the basis that costs will be allowed unless the defendant can prove that any item of costs is unreasonable in amount or has been unreasonably incurred".

The taxation was then adjourned to 11 June 1997 and adjourned again to 25 July 1997. The Deputy Registrar expressed her apprehension at the claim of the applicant that the taxation would take another 15 days and dispensed with filing of further objections in order to encourage the parties to focus on the real items in dispute in an "attempt to settle the bill".

Included in the applicant's bill were a number of items totalling $9,795.85 being costs incurred up to (sic) the issue of the filing of the statement of claim. The Deputy Registrar taxed $3,000 off this amount relying on "the indemnity costs principle, i.e. that the total amount of time spent was extravagant and needed to be reduced to an amount that was not unreasonable".

There followed further submissions on behalf of the parties and further consideration of the bill by the Deputy Registrar. In particular the Deputy Registrar considered the position in the light of O.65 r.62 and made the following ruling:

"Any benefit in continuing with the taxation on an item by item basis is outweighed by the benefit to the Court and the parties in assessing this bill at a gross sum. I reject the submission that I don't have the power to so assess. I have looked at and taken into account both global and individual items objected to. I propose to assess this globally reducing the bill by one-third unless the parties can reach some other agreement within seven days."

On 30 July 1997 the applicant's solicitors filed an application for a review of the taxation notwithstanding that the seven days for reaching an agreement had not expired. No point is taken that the taxation which was required to be reviewed was incomplete.

The review of taxation to be carried out under O.65 r.64 requires the taxing officer to reconsider and review his or her taxation upon the written objections which the parties are entitled to deliver.

The Deputy Registrar carried out the review and gave her decision and reasons in writing in a document dated 4 November 1997. In it she sets out a concise history of the litigation, including the taxation of costs. She outlines her reasons for the ruling that she made on 25 July 1997 referred to above. She includes the observation that "an indemnity costs order is not meant to compensate for every item of costs incurred by the party in whose favour the order is made" and that a prolonged taxation will in itself increase costs significantly. I observe for myself that the Deputy Registrar clearly had in mind the public interest as well as the interests of the parties in seeking to restrict the time taken up with the taxation of costs and in seeking to bring to an end the constant filing of further bills to cover the ever increasing costs of the applicant incurred as a result of each further step taken in the taxation. Apart from that it does not need to be decided at this stage whether the Deputy Registrar's decision was one which no reasonable taxing officer could have come to or that it was a decision vitiated by error of fact or law.

Taking into account the various additional costs incurred since the taxation was before her on 25 July, the Deputy Registrar concluded her review by allowing a "gross amount" of $141,833.11.

It is also clear, in my view, that there is nothing in the foregoing or in anything else in the record to support any allegation that the Deputy Registrar acted without jurisdiction or displayed apprehended bias or denied natural justice to the applicant in the conduct of the taxation. (No allegation is made in respect of the Deputy Registrar's conduct of the review, save that it was tainted by the prior conduct at the taxation.) Hence no occasion arises for the exercise of the Court's inherent jurisdiction over its officers. The situation may be compared to an application for an order nisi for the issue of a prerogative writ. If no arguable case is made out, the order nisi is not made and the Court does not concern itself to enquire whether the order should be made absolute.

That leaves the power of the Judge under O.65 r.67. The applicant wants to file further evidence under that rule in order to secure a favourable outcome in the review by the Judge of the Deputy Registrar's review of her taxation. It is sufficient to say that there is nothing before me to enlighten the Court in a procedurally appropriate way as to what the further evidence may be or how it may affect the conduct of the review by the Judge or the decision of the Judge on review. That is why Mr. Meagher wants another seven days to file affidavits to support the application to call further evidence. But enough is enough. No explanation is given for the failure to date to file such affidavits. No draft affidavits or statements by witnesses were tendered. There is a well recognized principle that it is in the public interest that litigation should be brought to an end. This is an example of such litigation.

Mr. Travers, for the respondent, made a number of submissions which went to various issues including issues which touched on matters already discussed. The submissions extended to issues which go more directly to the decision to be made in the review by the Judge exercising the power of review under O.65 r.67. It is premature and undesirable to deal with such issues at this stage except insofar as they have already been dealt with and except further to acknowledge Mr. Travers' assistance and industry in this regard.

The application to file affidavits to support a claim that further evidence should be received upon the hearing of the review pursuant to O.65 r.64 is refused. The applicant has no right to call evidence in support of the motion. The hearing will proceed on the material before the Deputy Registrar on a date to be fixed. The respondent's costs of the hearing before me are to be paid by the applicant.

It may be noted that I do not regard myself as part heard on the motion.