Spencer v Coshott

1. [1]

   HER HONOUR: This matter involves a notion of motion seeking to set aside a judgment for payment of legal costs.

2. [2]

   By notice of motion filed 23 March 2021, originally in relation to proceedings 2021/3618 but now treated as being in relation to proceedings 2021/74683 the plaintiff relevantly seeks orders that:

   1. (1)

      The judgment/s entered in these proceedings by the Deputy Registrar be set aside.

   2. (2)

      Any writ or other enforcement issued on those judgments be set aside.

3. [3]

   The plaintiff is Keith Spencer. The defendant is Ronald Coshott. The plaintiff relies upon the affidavit of Keith Spencer filed 8 July 2021. The defendant relies upon three affidavits of Robert Coshott, the plaintiff’s brother, (9 March 2021, 28 May 2021) and the affidavit of Alan Segal, Ronald Coshott’s solicitor, dated 17 May 2021. On 14 December 2021, Mr Segal gave evidence and was cross examined.

4. [4]

   On 17 November 2021, this matter was stood over part heard to the 14 December 2021. Mr Ronald Coshott was to be made available to be cross-examined. However, he did not appear on that date. The matter was again adjourned to 31 March 2022 to allow the plaintiff to obtain a report of a neurologist as to whether he was competent to give evidence. On 30 March 2022 at 12:44pm, Mr Robert Coshott emailed my associate and stated:

5. [5]

   At 1.48pm my associate sent an email to the parties advising them that the matter will proceed in Mr Robert Coshott’s absence.

6. [6]

   At the hearing on 31 March 2022, Mr Gledson of Counsel appeared for the plaintiff. As foreshadowed, there was no appearance on behalf of the defendant. Mr Gledson advised that on 26 March 2022, the writ of execution on the defendants property expired. Hence there was no utility in marking the order sought in paragraph (2) of the defendant’s notice of motion. That leaves paragraph (2) of the notice of motion where the defendant seeks that the judgment entered in these proceedings be set aside.

7. [7]

   At the outset of the hearing, Counsel for the plaintiff sought to have the notice of motion dismissed due to the non-appearance of the defendant by relying upon Uniform Civil Procedure Rules (“UCPR”) 29.7(1). It reads:

8. [8]

   In the exercise of my discretion, pursuant to UCPR 29.7, I declined to dismiss the notice of motion as it had been part heard before me. Evidence and submissions had already been presented and relied upon by the parties.

9. [9]

   The defendant sought to set aside the judgment on the basis that it relied upon the inherent jurisdiction and/or alternatively relied upon the UCPR 36.15 and 36.16 which relevantly read:

Background

1. [10]

   On 23 November 2020, Nettle J in the High Court proceedings in Coshott v Spencer (S182/2017 and S4/2018) made the followings orders (Ex A, 92):

   1. (1)

      The matter of the claim of the first respondent, the plaintiff here, pursuant to s 77M of the Judiciary Act 1903 (Cth) for remedies for enforcement of:

   2. (2)

      The matter is to be dealt with in the Supreme Court of New South Wales as if the steps already taken in this Court had been taken in that Court.

   3. (3)

      The Registrar of the High Court forwarded to the proper officer of the Supreme Court of New South Wales photocopies of the following documents that were filed in this Court:

2. [11]

   In the proceedings Spencer v Coshott 2021/74683 in this court, the plaintiff sought registration of a certificate of taxation of costs in the sum of $173,663.30

3. [12]

   On 17 March 2021, this Court entered the following judgment/order (Ex A, 112). It is as follows:

4. [13]

   UCPR 36.11(3) reads:

5. [14]

   Also on 17 March 2021, this court issued a judgment in the same terms (Ex A, 119):

6. [15]

   The plaintiff submitted that the judgment was entered regularly and relied upon ss 44 and 77M of the Judiciary Act. They relevantly read:

7. [16]

   The defendant relied upon two sets of submissions. Most of the content of the defendant’s first submissions are no longer relevant as they address the topic of the writ. That writ has now expired.

8. [17]

   In the defendant’s latter submissions dated 2 March 2022, he argued that the provisions of the UCPR that relate to the registration of certificates of costs assessors do not apply to the Taxation Officer of the High court.

9. [18]

   The defendant agree that the High Court undoubtedly has power under s 44(1) of the Judiciary Act to order remitter to another court of the matter of the enforcement of a costs order made on an application for special leave to appeal.

10. [19]

    An order for costs made in its exercise takes effect as a "judgment" of the Court. As a judgment of the Court, such an order for costs attracts the operation of s 77M(1) of the Judiciary Act.

11. [20]

    A claim by a party to an application for special leave to appeal in whose favour a costs order has been made to exercise the entitlement conferred by s 77M(1) gives rise to a "matter" in which original jurisdiction may be conferred on the High Court under s 76(ii) of the Constitution.

12. [21]

    The defendant referred to Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors [2017] HCA 39, where at [8] Gageler J sought to explain his reasoning in Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3. Here, His Honour explained that remitter to the Supreme Court of a State or to the Federal Court of the subject-matter of an application for remedies for enforcement of a judgment of the High Court neither enhances nor diminishes nor otherwise alters the rights or obligations of the parties and can ordinarily be expected to result in procedural efficiencies. Those considerations combine to recommend remitter as the appropriate exercise of the High Court’s discretion in the ordinary course.

13. [22]

    The defendant submits that an order for costs made in the High Court takes effect as a “judgment” of the High Court and can be enforced in the High Court. However, the High Court will usually remit the enforcement of its costs orders to the Federal Court of Australia or a State Supreme Court under s 44(1) of the Judiciary Act. This is particularly so where enforcement of the order is likely to be contested. Remittal of a matter to another Court “neither enhances nor diminishes nor otherwise alters the rights or obligations of the parties”, so that it does not invest the Court to which the matter is remitted with any additional jurisdiction where none existed before. Absent an order remitting the enforcement of a costs order to another Court, a person in whose favour a costs order has been made by the High Court can enforce it as a debt.

14. [23]

    The defendant asserts that s 133 of the Civil Procedure Act 2005 (NSW) requires that a judgment be entered “in accordance with the uniform rules”. While the UCPR permits the registration of a certificate of a costs assessor under the NSW legislation, they make no provision for the entry of a certificate of a High Court taxing officer as a judgment of the Court. Section 133 cannot apply because it is not possible to enter such a certificate as a judgment “in accordance with the uniform rules”. UCPR 36.11, of which the plaintiff’s submissions refer at [11], also does not apply for the same reasons.

15. [24]

    The Costs Certificates issued pursuant to the High Court are not “costs assessors certificates” within the meaning of UCPR 36.13(1)(a) because r 1.2 of and the dictionary to the UCPR provide "costs assessor's certificate" means a certificate issued under Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).

16. [25]

    The entry of judgment on a Certificate of Determination is not a judicial act. It is a ministerial act: see Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [42].

17. [26]

    The defendant submitted that the Chief Clerk at Common Law is not a judicial officer of the Supreme Court. He or she has no power to do any judicial act. Likewise, a Deputy Registrar is not a judicial officer and has no power save such as may be delegated to him or her. The entry of judgment on a Certificate of Taxation issued by the Registrar of the High Court is not a ministerial act given to a deputy registrar under the Civil Procedure Act or the UCPR. It follows that the entry of judgment on the Certificates of Taxation was invalid and there is no valid judgment. It further follows that the issuing of writs based on invalid judgments is also invalid and the writs should be set aside.

18. [27]

    A ministerial act is not part of the inherent jurisdiction of the Supreme Court and that the process constitutes an abuse of process.

19. [28]

    The plaintiff submitted that where a judgment arises from the filing of orders made in the High Court of Australia which have been referred to the Supreme Court of New South Wales by order of a judge of that court, there is no basis upon which it could be suggested that such orders, which take effect upon filing, have been made or entered against good faith: see UCPR 36.15(1).

20. [29]

    While the plaintiff accepted that the orders were made in the absence of the defendant, it is contended that they were orders originally made in the High Court of Australia which had not been set aside and absent some other disentitling conduct, there is no power of the Supreme Court of New South Wales to set aside those orders.

21. [30]

    The plaintiff submitted that various other heads of relief are sought in [7]-[9] of the submissions of the defendant filed 12 November 2021 which relate to relief which is not identified in the Notice of Motion. With regards to this, the plaintiff submitted that no evidence has been identified that shows that the entry of the orders consequential upon referral from the High Court of Australia constituted an abuse of process of the court nor any submission made as to how it is that the Service and Execution of Process Act 1992 (Cth) has any application to the present proceeding.

Resolution

1. [31]

   I agree that the registration provisions of Uniform Civil Procedure Rules that apply to a costs assessors decision do not apply here. Order (2) made by Nettle J on 23 November 2020 stipulates that the High Court matter is to be dealt with by the Supreme Court of New South Wales as if the steps already taken in the High Court had been taken in the Supreme Court. UCPR 36.11 provides that any judgment or order of the Court is to be entered. The judgement is entered by force of the High Court orders. The certificate of taxation issued in the High Court in its terms apply here. The defendant has not provided any urgent reasons as to why the Service and Execution of Process Act apply here. Nor has it argued why the registration of the judgment is a ministerial act or an abuse of process. The judgment was entered regularly. The defendants notice of motion filed 23 March 2021 should be dismissed.

Costs

1. [32]

   Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff’s costs.

   1. (1)

      The defendants notice of motion filed 23 March 2021 is dismissed.

   2. (2)

      The defendant is to pay the plaintiff’s costs.