M.K. & J.A. Roche Pty. Ltd. & Ors. v. Metro Edgley Pty. Ltd. & Anor.

BEAZLEY JA: I agree with Hodgson JA.

HODGSON JA: In the judgment in this matter given on 3 March 2005, the Court reserved leave for written submissions as to costs, and as to whether or not the matter should be remitted to Einstein J. COSTS

The respondents submitted that the costs of the appeal should be costs in the cause, because the controversy had not been resolved by the Court of Appeal: if the respondents are ultimately successful, they should be indemnified for the costs of proceedings wrongly commenced against them.

In my opinion, order 5 as originally made is the appropriate costs order. The respondents sought to maintain against the appellants orders to which they were not entitled, and the costs of the appeal were thereby incurred. In so far as the costs of the appeal are also the result of the commencement of proceedings which may turn out not to have been justified, the respondents are given some relief by the Suitors Fund Act certificate. REMISSION

The appellants submitted that this Court should order that the further hearing should be before a different judge, because Einstein J had made ultimate findings adverse to the appellants, who would in any further hearing by him need to persuade him to change from views to which he had committed. Accordingly, it would “seem fairer” that the matter be determined by a differently constituted tribunal: Northern NSW FM Pty. Ltd. v. Australian Broadcasting Tribunal (1990) 26 FLR 39 at 42, Steedman v. Baulkham Hills Shire Council [No.2] (1993) 31 NSWLR 562 at 576-7. The appellants also submitted that the new trial should proceed on the transcript.

The respondents submitted that the remission was not for a new trial, but merely for determination of limited remitted issues: Murphy v. Overton Investments Pty. Ltd. [2004] HCA 3, 78 ALJR 324 at [74]-[75]. Accordingly, the matter should be remitted to Einstein J. Otherwise, there would need to be a complete re-hearing, with the possibility of the new judge coming to views inconsistent with those of Einstein J that have not been affected by the Court of Appeal decision.

In my opinion, the matters raised by the appellants fall well short of justifying an order that the further hearing be before a different judge: Steedman at 577, Amalgamated Television Services Pty. Ltd. v. Marsden (2003) 57 NSWLR 338 at [48]; and any determination as to how the further hearing should be conducted should be made by the judge conducting that hearing.

In my opinion, there is much force in the respondents’ submissions that the matter should go back to Einstein J, for reasons of efficiency and of minimising the possibility of inconsistencies. That approach is consistent with the limitation on the issues to be remitted to the Equity Division. If the matter were heard by another judge, it would be difficult to avoid a further lengthy hearing, with oral evidence and cross-examination, and with the prospect of another judge reaching views on some matters different from those of Einstein J.

Normally this Court in remitting a matter to a Division will leave to that Division the assignment of the hearing to a particular judge. However, I think it appropriate, in the interests of a just, quick and cheap resolution of this matter, to make the following order, in addition to those made on 3 March 2005: 7. The further hearing in the Equity Division is to be before Einstein J unless some order to the contrary is made by a judge of that Division.

In my opinion, it is appropriate that the costs of the additional submissions be treated as part of the costs of the appeal.

IPP JA: I agree with Hodgson JA.