FEDERAL COURT OF AUSTRALIA

Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192

THE COURT ORDERS THAT:

1.    Order 7 made by Farrell J on 6 March 2015 be set aside.

2.    In lieu thereof, the second to twentieth respondents pay 75% of the appellants’ costs of and incidental to the hearing before Farrell J of their Interlocutory Application filed on 21 March 2014 as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR AND FOSTER JJ:

1    On 29 June 2015, the Full Court (by majority) granted leave to appeal and then allowed the appeal from certain of the orders made by the primary judge on 6 March 2015 in the proceedings below. On 3 September 2015, the Full Court published its reasons for making those orders (Caason Investments Pty Ltd v Cao [2015] FCAFC 94) (the principal judgment). By her orders made on 6 March 2015, the primary judge (inter alia) disallowed certain proposed amendments to the appellants’ Statements of Claim. The appeal concerned her Honour’s refusal to permit the appellants to make those amendments.

2    Prior to her Honour’s decision, there had been two separate proceedings in her Honour’s docket concerning the corporation, Arasor International Limited (Arasor). Her Honour consolidated those two proceedings. The second to fourth respondents consented to an order for consolidation but all other active respondents opposed that order. There was no application for leave to appeal from her Honour’s consolidation orders.

3    On 29 June 2015, the Full Court also granted leave to the appellants (the plaintiffs below) to file and serve an Amended Consolidated Statement of Claim (ASC). That pleading was brought forward as a response to encouragement given by the Full Court to the appellants during the appeal case management phase to take steps to remove all contentious technical pleading points from the appeal. The ASC was prepared after the hearing before the primary judge. For that reason, that pleading was not before her Honour. The Court had made orders during the appeal case management phase requiring the appellants to consider and to remedy all arguable technical defects in their pleading with a view to confining the arguments on appeal to the only point of substance, namely, whether, as a matter of law, it was necessary for the appellants both to plead and to prove direct or individual reliance on the part of each and every plaintiff and member of the relevant class as a necessary integer of the claims for relief made by them in the proceedings below pursuant to s 728 and s 729 of the Corporations Act 2001 (Cth) (the Act). This reliance point had always been accepted by all parties as the only real point in the appeal. The primary judge had held that direct or individual reliance was an essential element in a claim for relief under s 728 and s 729 of the Act and had, for that reason, rejected the proposed amendments in respect of the claims made pursuant to those sections.

4    The corollary of the proposition that reliance was a necessary element of the statutory cause of action based upon s 728 and s 729 of the Act was that the principle of market-based causation accepted as good in law for limited purposes by the Supreme Court of the United States in Halliburton Co. v Erica P. John Fund Inc 573 U.S. 1 (2014) and in Basic Inc v Levinson 485 U.S. 224 (1998) does not constitute reliance, or sufficient reliance, for the purposes of the cause of action founded upon s 728 and s 729 of the Act and could not otherwise be accepted as providing or explaining the necessary causal link between the relevant corporation’s contravening conduct and the claimed loss.

5    In her Reasons for Judgment (Caason Investments Pty Limited v Cao [2014] FCA 1410), the primary judge also considered whether market-based causation could be deployed in relation to other claims made by the appellants for misleading and deceptive conduct in respect of representations allegedly made in prospectuses issued by Arasor and in its Financial Statements and in respect of alleged material omissions from those documents. These claims were based upon s 1041H of the Act, s 12DA of the Australian Securities and Investments Act 2001 (Cth) (ASIC Act) and s 9 of the Fair Trading Act 1999 (Vic) (FTA).

6    In respect of the claims referred to at [5] above, her Honour said (at [107]):

If the applicants wish to reformulate their pleadings of [3], [71B], [71C.1(b)] and [71C.3] to address the issues set out at [98]-[104] above, and subject to the form of pleading the applicants ultimately propose to adopt, it may be appropriate to permit the misleading or deceptive conduct claim to proceed to a hearing, subject to the qualification addressing statute of limitation issues considered at [38] above.

7    Thus, in respect of these claims, her Honour accepted that market-based causation was arguable but took the view that the appellants had not adequately pleaded their case. Her Honour seemed to be of the view that she would entertain a further or revised application for leave to amend in respect of the claims referred to at [5] above including material directed to market-based causation. However, with the exception of certain minor amendments which were the subject of consent from the respondents and thus incorporated into the Consolidated Statement of Claim, her Honour dismissed the appellants’ application for leave to amend. Her Honour declined to permit any of the amendments sought by the appellants except those minor amendments which were made by consent.

8    In the principal judgment, we held that the primary judge erred when she refused to allow the Rejected Amendments (as defined in that judgment). We held that the pleading deficiencies in the pleading before the primary judge (such as they were) were inextricably tied to the legal issue as to the viability of a market-based causation case in respect of the appellants’ claims under s 728 and s 729 of the Act.

9    On 29 June 2015, in addition to allowing the appeal and granting leave to the appellants to file and serve the ASC, the Full Court ordered that:

…

6.    Those Group Members who have become Group Members by reason of the deletion of paragraph 3.2 of the Consolidated Statement of Claim are taken to have become Group Members from the date of filing of the Interlocutory Application, namely 21 March 2014.

7.    The parties have leave to file, within 14 days of delivery of the Reasons in this Appeal, Outlines of Written Submissions, not exceeding two (2) pages, on the question of costs of the Interlocutory Application, which will thereafter be decided on the papers.

8.    The respondents, other than the first and fifth respondents, pay the appellants’ costs of the Appeal, to be taxed if not agreed.

10    Orders 7 and 8 are self-explanatory.

11    Order 6 was designed to specify with precision the date when the broader definition of the group members provided for in the ASC is to take effect.

12    All parties who appeared at the hearing of the appeal availed themselves of the opportunity to file and serve a Written Submission pursuant to Order 7 made on 29 June 2015.

13    By these Reasons for Judgment, we determine the question of the costs of the hearing of the application before the primary judge in light of our decision in the appeal.

Consideration

14    Before the primary judge, the appellants succeeded in securing:

(1)    An order providing for the consolidation of the two Arasor proceedings in her Honour’s docket;

(2)    The Court’s approval in respect of certain minor amendments to their pleading; and

(3)    The Court’s acceptance in principle that it was open to the appellants to plead market-based causation in respect of their claims based upon the respondents’ alleged misleading and deceptive conduct in respect of two prospectuses and several Financial Statements although the primary judge also observed in respect of these claims that they had not been adequately pleaded.

15    Before her Honour, the appellants failed in their argument that direct or individual reliance was not a necessary integer of the claims which they sought to make pursuant to s 728 and s 729 of the Act. Her Honour took the view that such reliance was a necessary element of such a claim and therefore held that, unless such reliance was pleaded and the claims thereby confined to claims where direct reliance was able to be pleaded and established, leave to amend should be refused. This is the matter in respect of which we disagreed with the primary judge.

16    The primary judge did not deal with the question of costs in her Reasons for Judgment published on 23 December 2014. At [126] of those Reasons, her Honour said that she would afford to the parties an opportunity to be heard on the question of costs.

17    Then, on 24 December 2014, her Honour made an order requiring the parties to confer on the issue of costs. She also fixed a date for any necessary argument in respect of costs in the event that agreement could not be reached.

18    On 4 March 2015, the primary judge heard argument in respect of the orders to be made in light of her Reasons for Judgment and in respect of costs. On that occasion, Counsel who appeared for the appellants sought an order reserving the costs of the Interlocutory Application filed by the appellants on 21 March 2014. He accepted that the costs thrown away by the orders for consolidation and the minor amendments allowed by the Court should be paid by the appellants. Otherwise, he submitted that costs should be reserved. The respondents argued that they should have their costs of the appellants’ Interlocutory Application because her Honour had disallowed the amendments by which they had sought to raise market-based causation. At the conclusion of argument, her Honour said (p 17, ll 4–17):

HER HONOUR: Okay. Beguiling as Mr Hyde’s submissions usually are, I don’t think he’s won on these ones. I do consider that it is appropriate to order that the applicants pay the costs in respect of each of the heads that you’ve identified. For the reasons that even though I made orders that would permit consolidation, in light of the concessions that were ultimately made by the applicant, I don’t think that the opposition was unreasonable to the pleading as originally propounded. I always have a difficulty when parties finally make a concession – in essence punishing it – but it isn’t a punishment, it’s, I think, an indication that it would have been appropriate for there to have been an earlier coming to the realisation that some of those issues needed to be dealt with in terms of time.

MR HYDE: May it please the court.

HER HONOUR: I realise sometimes it only comes out in argument, but at the end of the day I think that opposition wasn’t an unnecessary or futile opposition.

19    It seems from that extract that her Honour was of the view that the respondents’ opposition to the proposed amendments was neither unnecessary nor futile.

20    It also seems that her Honour considered that the result of the applications before her as summarised at [14]–[15] above warranted an order for costs against the appellants in favour of the respondents. As a result, on 6 March 2015, her Honour ordered the appellants to pay the respondents’ costs thrown away as a consequence of the consolidation of the two proceedings before her and also as a consequence of the minor agreed amendments contained in the Consolidated Statement of Claim. She also ordered the appellants to pay the respondents’ costs of and incidental to the Interlocutory Application filed on 21 March 2014.

21    On 29 June 2015, at the conclusion of the hearing of the appeal, the Full Court ordered a variation to Order 6 made by the primary judge on 6 March 2015 (the costs thrown away order) but reserved for further consideration the question of whether Order 7 made by her Honour should stand, be set aside or be varied. That order was in the following terms:

The Applicants are to pay the Respondents’ costs of the interlocutory application filed 21 March 2014 as agreed or assessed.

22    In their Written Submission directed to the question of the costs of the application below, the appellants submitted that the Full Court should set aside Order 7 made by the primary judge on 6 March 2015 and, in lieu thereof, make an order requiring the respondents to pay 75% of the appellants’ costs of that application. The appellants submitted that costs should follow the event. They submitted that, in light of the outcome of the appeal and the other successes which they had before the primary judge, they had won the day. They accepted that a discount of 25% was warranted because there were arguably some technical defects in the pleading that had been propounded before the primary judge which had been remedied by the ASC.

23    The second to fourth respondents argued that the Full Court should not disturb Order 7 made by the primary judge on 6 March 2015. They submitted that the appellants ultimately only succeeded on appeal on a pleading that had never been placed before the primary judge and that the pleading that was before the primary judge was deficient. They said that the changes to the pleading reflected in the ASC were substantial. These respondents also argued that their position as to the date when the amendments embodied in the ASC were to take effect was vindicated by the Full Court’s decision on that point on appeal and that the appellants had adopted an unreasonable stance before the primary judge in relation to this point.

24    The other active respondents made similar submissions.

25    In Kazar (Liquidator) v Kargarian (2011) 197 FCR 113, the Full Court explained the considerations which generally should guide the proper exercise of the Court’s discretion to award costs in favour of one party against another pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth). At 115–116 [4]–[9], Greenwood and Rares JJ said:

4    Although the discretion to award costs is unconfined or “absolute and unfettered” (Latoudis v Casey (1990) 170 CLR 534 per Dawson J at 557) the discretion must be exercised judicially, that is, according to relevant considerations, and take account of the contextual features and facts of the litigation. Although the discretion is unconfined or unfettered, the exposed reasoning explaining the factors informing the exercise of the discretion might reveal factors taken into account extraneous to the objects adopted by the legislature in conferring the statutory power and in that respect, plainly enough, the discretion is not “at large” (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J).

5    Although the discretion is said to be unconfined, absolute and unfettered, the public interest in the quelling of controversies and the administration of justice is secured by recognising that the discretion ought to be exercised according to settled principle. Settled principle guides the exercise of the discretion and recognises that the modern embodiment of the post Judicature Act discretion as to costs has escaped “arterial hardening” (Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [38]) and has avoided elevating guiding principles into narrow legal rules controlling the exercise of the discretion (Norbis v Norbis (1986) 161 CLR 513 at 537 per Brennan J; Wilson and Dawson JJ at 533). Because settled principle merely guides the exercise of the discretion, there is no automatic or absolute rule controlling the exercise of the discretion to the effect that costs always follow the event. Nor is there an automatic or absolute rule that in the absence of disentitling conduct, a successful party is to be compensated by an unsuccessful party. Moreover, the jurisdiction conferred by s 43(1), exercised by reference to the broad discretion conferred by s 43(2), is not constrained by any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party (Oshlack per Gaudron and Gummow JJ at [40] and [41]). As their Honours observe at [41] in Oshlack, there is nothing surprising or remarkable about the absence of hard arterial propositions in construing the scope of the discretion as the discretion must take account of the “myriad circumstances presenting themselves in the institution and conduct of litigation, and to the very nature of litigation” within the scope of the Court’s jurisdiction. See also Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 per Finn J at [1]; Rares J at [45]–[52] and Besanko J at [82] subject to the observations at [83]–[92].

6    Some of the important principles however which guide the exercise of the discretion are reflected in the unifying judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [25]–[34]. Their Honours observe at [25] that the award of costs is “discretionary but generally that discretion is exercised in favour of the successful party” (emphasis added). Of course, there are no automatic or absolute rules atrophying the true underlying scope of the discretion.

7    The operation of the pre judicature system with respect to costs infuses the approach to the flexibility of the discretion in the post Judicature Act environment and particularly in the modern treatment of costs applications operating under rules which are the genetic descendents of the Judicature Act provisions (such as s 43 of the Federal Court Act). In reflecting upon the practice of the High Court of Chancery (as described in Daniell’s Practice of the High Court of Chancery, 5th Ed (1871), Vol 2, p 1239) and the discretionary nature of the award of costs in that Court, Gleeson CJ, Gummow, Hayne and Crennan JJ observe at [34] in Foots that the discretion historically was not inflexibly constrained by the rule of awarding the costs of the suit to the successful party but that the Court would, in exercising the discretion to award costs, take into consideration the circumstances of the particular case before it or the situation or conduct of the parties.

8    The practice guiding the exercise of the discretion was that the Court of Chancery did not regard the awarding of costs as a penalty or punishment but merely a necessary consequence of a party having created litigation in which the party had failed. Daniell’s Practice also recognised that the Court was “generally, governed by certain fixed principles which it [had] adopted upon the subject of costs, and [did] not, as was frequently supposed, act upon the mere caprice of the Judge before whom the [controversy happened] to be tried” (Foots at [34]). In other words, without subsuming the discretion within inflexible rules, the discretion would be exercised according to broad settled principle as described. Having observed these matters about the practice of the Chancery Court, their Honours concluded those remarks by observing at [34] that “[t]he similarity with the modern treatment of costs applications will be readily apparent”.

9    The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Federal Commissioner of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v SBriggs Pty Ltd (No. 2) (2009) 82 IPR 56 at [38]; and Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130]–[132].

26    In the same case, at 124–125 [44]–[47], Foster J said:

44    Section 43 confers a broad discretion on the Court to award costs. Costs do not automatically follow the event (Foots v Southern Cross Mine Management Pty Limited (2007) 234 CLR 52 at [26] and at [34] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at [63] per McHugh J). This is reinforced by the terms of s 43(3). The amplitude of the Court’s discretion to order costs is illustrated, but not constrained, by the specific instances listed in s 43(3).

45    This Court’s discretion as to costs must be exercised judicially and with due regard to precedent, established principle and factors directly connected with the litigation (Oshlack at [65] per McHugh J). The discretion must not be exercised arbitrarily, capriciously or so as to frustrate the legislative intent (Oshlack at [22] per Gaudron and Gummow JJ). As Gaudron and Gummow JJ went on to say in Oshlack at [22]:

… the discretion conferred is … unconfined except insofar as “the subject matter and the scope and purpose” of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be “definitely extraneous to any objects the legislature could have had in view” (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505).

(See also the observations of the plurality in Foots at [34] where their Honours cited a passage from Daniell’s: Practice of the High Court of Chancery (5th ed, 1871) with apparent approval).

46    The successful party should, generally speaking, have the benefit of an order for costs in his or her favour (Foots at [25] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Oshlack at [66]–[68] per McHugh J). Costs are awarded to indemnify the successful party to some extent against his or her outlays on costs, not by way of punishment of an unsuccessful party (Oshlack at [1] per Brennan CJ and at [67] per McHugh J).

47    At [134] in Oshlack, Kirby J made some general remarks concerning the way in which statutory provisions giving a court a broad discretion in respect of costs (such as s 43 of the Federal Court Act) should be interpreted and applied. The following propositions relevant to the present case may be extracted from his Honour’s observations at [134]:

(a)    In civil non-jury trials, a successful party, in the absence of special circumstances, has a reasonable expectation of obtaining an order for costs in its favour unless for some reason connected with the case a special and different order is warranted (subpar (2) of [134]);

(b)    Notwithstanding that the statutory prescription gives to the Court a broad discretion, that discretion should be exercised in accordance with established guidelines referable to the considerations of which the Court should generally take account (subpar (3) of [134]); and

(c)    Costs generally follow the event in order to give effect to the notion that orders for costs are intended to provide a partial indemnity for outlays made by the successful party (subpar (4) of [134]).

These remarks may be compared with the observations of McHugh J in his dissenting judgment in Oshlack at [69]–[70]. In those paragraphs, his Honour explained that the courts have, for some time, been quite firmly in favour of the proposition that the successful party should have his or her costs paid by the unsuccessful party and that the benefit of that “usual” order for costs would only be denied to the successful party if he or she was guilty of disentitling conduct or if some other exception to the usual order could be invoked. In the passages referred to, it may be that his Honour adopted an overly rigid view in favour of “the usual order for costs” when regard is had to the views of the majority in Oshlack and the plurality in Foots. Nonetheless, an order for costs in favour of the successful party will very often be a sound exercise of the Court’s discretion as to costs.

27    Before the primary judge, the appellants succeeded in respect of the matters summarised at [14] above. Before her Honour, they failed on the market-based causation point in respect of claims made pursuant to s 728 and s 729 of the Act although, at the level of principle, they succeeded on that point in respect of the misleading and deceptive conduct case based on other statutory provisions under the Act, the ASIC Act and the FTA. Her Honour also took the view that the proposed pleading propounded before her suffered from technical pleading defects.

28    On appeal, the appellants succeeded on the point of substance concerning market-based causation and resolved all other matters effectively by consent. We have held that her Honour should have allowed the Rejected Amendments. Had she done so, the pleading defects would then have been remedied, as they were on appeal.

29    In our view, the appellants have substantially succeeded in the claims for relief made in the Interlocutory Application filed on 21 March 2014. We see no reason why costs should not follow the event. However, given that the appellants accept that they should not have all of the costs of the application before the primary judge, we will apply a discount in order to reflect the circumstance that there were defects in the pleading propounded before the primary judge which could have and should have been remedied before the hearing of the application before her Honour. Having regard to the guidance given by Kazar and to the concessions made by the appellants in their Written Submission, we think that the discount of 25% suggested by the appellants is appropriate.

30    Accordingly, we will set aside Order 7 made by the primary judge on 6 March 2015 and, in lieu thereof, make an order that the active respondents pay 75% of the appellants’ costs of the hearing below.

Associate:

Dated:    22 December 2015

REASONS FOR JUDGMENT

EDELMAN J:

31    The consequential issue that now arises in this appeal concerns a costs order arising from this court’s orders and reasons for decision in Caason Investments Pty Ltd v Cao [2015] FCAFC 94.

32    The appeal, by leave, was from an interlocutory decision of the primary judge refusing the appellants leave to amend their pleading in various respects in relation to a claim described as market based causation. The primary judge refused leave to amend due to defects in the pleading (which was not in dispute on the appeal). One of those defects was the absence of a reliance-based alternative to various claims. In oral remarks delivered as part of her reasons, the primary judge explained:

I am concerned that, in the absence of an alternate pleading of the kind encapsulated in 71C.1(a) and 71C.2 [which amendments were allowed], the group members will be deprive[d] of a viable claim in light of the very significant uncertainty attendant on market-based causation claims, and I have no evidence that the group members have been consulted in relation to any such amendments.

33    The appellants chose not to bring an amended minute before the primary judge as her Honour had intimated in her oral reasons. Instead, they sought leave to appeal from the primary judge’s decision to refuse amendment of the defective pleading. On the appeal the appellants filed a new (amended) minute of proposed statement of claim with the alternative claims that the primary judge had suggested were required. A majority of this court allowed the appeal immediately after the hearing on 29 June 2015 and ordered that the appellants have leave to file and serve the amended statement of claim. Reasons were published on 3 September 2015.

34    The orders of this court, on 29 June 2015, included an order that:

The parties have leave to file, within 14 days of delivery of the Reasons in this Appeal, Outlines of Written Submissions, not exceeding two (2) pages, on the question of costs of the Interlocutory Application, which will thereafter be decided on the papers.

35    I dissented from the orders of the majority. I considered that the primary judge did not err by failing to allow an amendment in a form which was uncontroversially defective. My view was that the proposed amendments (which the primary judge had foreshadowed should be made) should have been made in the proceedings before the primary judge, and that the appellants making them before the Full Court was not a basis to allow the appeal. In relation to the matter of law raised on the appeal, the court was unanimous that a properly pleaded claim which was dependent upon a plea of market-based causation should be allowed to proceed to trial. But I considered that there were a number of reasons why the primary judge’s reasons did not exclude a properly pleaded claim based on market based causation. I would therefore have dismissed the appeal and I would have ordered the appellants to pay the costs of the respondents of the appeal. Consequently, on the basis of my reasons, I would not have disturbed the costs orders made by the primary judge and would not have made orders requiring submissions on this issue.

36    The dispute concerning costs that now arises concerns the costs of the proceedings before the primary judge, to be determined as a consequence of the orders of this court. The appellants seek 75% of their costs before the primary judge. The respondents submit that the primary judge’s costs orders in the respondents’ favour should not be disturbed.

37    The various submissions of the respondents included the core submissions that the primary judge’s conclusion should not be disturbed because

(1)    it was uncontroversial on the appeal that the pleading before the primary judge was defective;

(2)    the pleading before the Full Court was a “substantial reworking” of the defective pleading and the respondents accepted that the reworked pleading was no longer defective in the respects identified by the primary judge at [98]-[104]; and

(3)    the appellants succeeded on appeal on that substantially reworked pleading that the primary judge had never seen.

38    The majority reasons, which I have had the benefit of seeing, conclude that the appropriate order as to costs is that the second to twentieth respondents pay 75% of the appellants’ costs of and incidental to the interlocutory hearing before the primary judge.

39    On one view, a consequential issue that arises only as a result of the reasons of the majority should be addressed only by that majority. On that view, even though the submissions were directed to the whole court the proper approach for me, as dissentient, would be to acquiesce in whatever orders are made by the majority.

40    This seems to have been the approach taken by Meagher JA in Akron Securities v Iliffe (No 2) [1997] NSWCA 11. After dissenting on the primary issue, his Honour said that he would “acquiesce in any order which appeals to my brethren”.

41    The same approach was taken by Heydon and Kiefel JJ in a different context concerning variation of orders in Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; (2010) 241 CLR 570.

42    In the primary decision in Aktas, a majority had allowed the appeal. There were dissents from Heydon J and Kiefel J. About a month after judgment had been delivered, and orders made, Westpac filed a summons seeking a variation of the orders. The orders had not been authenticated and the question was whether the High Court should recall the orders. The majority held that the court should not. Justice Kiefel said that she had not joined in the orders which were sought to be recalled and “it is therefore not appropriate for me to consider their variation”. Justice Heydon explained the nature of the issue that had arisen concerning the recall of orders and the different possible approaches. However his Honour concluded that it was neither necessary nor appropriate for him to discuss the majority’s reasoning.

43    Neither Heydon J nor Kiefel J purported to express their reasons for not deciding the summons variation of orders in Aktas in terms that permitted of universal application. The context of that case involved an alteration, not an addition, to the orders made by majority.

44    There is an alternative view, also supported by significant authority. The alternative view is that the dissenting judge should express a view on the consequential issue, based upon the reasons of the majority (or the reasons supporting the order). The argument for the alternative approach is that (i) orders of the court have been made, (ii) a further issue has arisen consequent upon the orders of the court, and (iii) the parties might proceed, as they did in this case, on the basis that the issue would be resolved by the whole of the court. This approach might also be supported by the fact that a majority has no advantage in discerning, or explaining, the meaning and consequences of their reasons in a principal appeal judgment. The reasoning of a majority in the principal appeal judgment is a matter for posterity; the authors have “no better claim to be able to declare its meaning than anyone else”: Deutsche Morgan Grenfell Group Plc v Inland Revenue [2006] UKHL 49; [2007] 1 AC 558, 567 [14] (Lord Hoffmann).

45    Another argument for the application of the alternative approach, at least in very rare cases, might be mind-bending consequences of irrationality in decision making. In rare cases, situations could arise where the orders made do not command the support of a majority of the Court: see Gageler S and Lim B, “Collective irrationality and the doctrine of precedent” (2015) 38 Melbourne University Law Review 525. In such cases would the consequential issue be determined only by a minority of the court? And how would an impasse be resolved if, in an appellate bench of five judges, the two judges in the minority either reached different conclusions either from each other or differed from the conclusions on the consequential issue reached by the majority who would not have supported the orders made?

46    This alternative approach appears to have been taken by Gaudron J and Kirby J in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, 246. In that case, a majority of the Court allowed an appeal from the Family Court of Australia. There were dissents from Gaudron J and Kirby J. The court gave the parties liberty to file written submissions with respect to “certain additional orders” including costs (246). After those submissions were considered, both Gaudron J and Kirby J gave substantial reasons. Justice Gaudron gave reasons in a joint judgment which made orders which included (contrary to those which would have followed from her Honour’s principal judgment) that the respondent pay the appellant’s costs of the proceedings in the High Court. Justice Kirby also agreed with the consequential orders but gave separate reasons for doing so. His Honour began his reasons as follows (246-247, [4]-[6]):

I was of the opinion that the appeal should be dismissed. The majority, however, favoured allowing the appeal, setting aside the orders of the Full Court of the Family Court and substituting an order …

Had my view prevailed, the proper order as to costs would have been to confirm the costs orders made by the Full Court and to order that the appellant, who would then have twice failed, pay the costs of the respondent and of the children’s representative in this Court…

However, I must now approach the submissions as to costs on the premise that the appeal has been allowed in accordance with the majority’s opinion.

47    Justice Kirby referred to his earlier decision, where he had taken the same approach, in South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation & Land Management (1998) HCA 34; (1998) 154 ALR 411, 412.

48    It seems that the alternative approach was also taken following the decision in Vines v Australian Securities and Investments Commission [2007] NSWCA 75; (2007) 73 NSWLR 451. In that case, a majority of the Court of Appeal allowed the appeal in part, setting aside five of the primary judge’s declarations of contravention and, by majority, upholding six contraventions of s 232 of the Corporations Law (Cth). Santow JA dissented. His Honour would not have upheld any contraventions. The penalty issue was part of the same appeal but it therefore arose only as a consequence of the reasons of the majority. The Court of Appeal ordered that “each party to file further submissions on the issue of penalty within three weeks”. On that consequential issue of penalty, Santow JA wrote a separate judgment based on the conclusion that the majority had reached concerning liability. His Honour again dissented from the reasons of the majority.

49    The alternative approach was also taken in one of the collective irrationality cases described extra-judicially in the article by Justice Gageler mentioned above. That case is Hepples v Federal Commissioner of Taxation [1992] HCA 3; (1992) 173 CLR 492, 550-553. In that case the whole of the Court took part in the reasons concerning (i) the appropriateness of orders being made which were supported only by a minority, and (ii) the costs consequences of the orders.

50    In none of the cases discussed above does it seem that the issue of involvement of a dissenting judge in the consequential issue was one on which submissions were made or any contradictory position was put: CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, 11 [13] (Gleeson CJ, Gummow and Heydon JJ).

51    Like all of the cases discussed above, the parties’ submissions on the costs issues in this case did not consider the composition of the court to determine the consequential issue. Their submissions on the consequential issue were directed to the whole of the court and made reference, at various points, to both the majority reasons and my dissenting reasons. The parties appear to have proceeded on the basis that the costs issue would be determined by the whole of the court, albeit on the basis of the reasons of the majority.

52    Ultimately, I do not consider that this question invites an answer which is applicable to every case. The circumstances in Hepples, for example, were very different from those in Aktas. In this case, and with respect to the significant contrary views, I consider that the proper approach for me to take is not to express any opinion on the appropriate order. I reach this conclusion with an awareness of the disconnect between this conclusion and the assumption of the parties who directed their submissions to the whole court. There are two reasons, in combination, which lead me to this conclusion.

53    The first reason why I consider the appropriate course to be that I abstain from expressing a conclusion is that it is possible that the question of costs could have been considered as part of the principal appeal hearing itself, with brief submissions made on the contingency that the appeal was allowed. That procedure is not uncommon. Had the costs issue been dealt with in this way as part of the principal appeal hearing, with a single set of reasons responding to all issues, then my reasons would simply have explained the obvious conclusion that flowed from my reasons which is that the primary judge’s costs orders should not be disturbed. Only the reasons of the majority would have been concerned with the costs consequences of their reasoning. It is strongly arguable that there is no cause for me to go further simply because a procedure was adopted which permitted supplementary submissions to be filed, which were directed to the whole of the court.

54    A second reason why I consider this to be the appropriate course is that the majority has expressed joint reasons on this costs issue so that any reasons that I expressed on this point would, on any view, only be obiter dicta. Further, such reasons would be made upon a premise concerning my participation in the reasoning process, which has not been argued and upon which I have only deliberated very briefly since my receipt of the majority’s reasons on this costs issue.

55    I therefore decline to express a view about the effect of the majority’s reasons on the appeal or the application of those reasons to the costs issue that now arises.

Associate:

Dated:    22 December 2015