Wentworth v Wentworth CaseBase | (2001) 52 NSWLR 602 | [2000] NSWCA 350 | BC200007784 WENTWORTH v WENTWORTH BC200007784 Unreported Judgments NSW · 272 Paragraphs Supreme Court of New South Wales — Court of Appeal Fitzgerald and Heydon JJA, and Davies AJA 40714/99 7 November, 15 December 2000 Wentworth v Wentworth and Ors [2000] NSWCA 350 Headnotes (NSW) Family Provision Act 1982 (CTH) Judiciary Act 1903 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Reform Act 1993 (CTH) Racial Discrimination Act 1975 (NSW) Supreme Court Act 1970 Fitzgerald JA. [1] I agree with the other members of the Court that orders should be made in the terms proposed by Heydon JA. Subject to what follows, I also agree with his Honour’s reasons. Since the judgment of Heydon JA contains a detailed exposition of the circumstances giving rise to these appeals, I will merely summarise the circumstances to which reference is necessary to understand my reasons for my conclusions. [2] All applications and appeals by the appellant and all material orders have been made in proceedings under the Family Provision Act 1982 in which the appellant and her brother Peter F.N. Wentworth (the “first respondent”) are the only named parties. [3] Pursuant to Pt 521of the Supreme Court Rules 1970, Deputy Registrar Howe (the “Taxing Officer”) taxed the costs which the first respondent had been ordered to pay to the appellant. Apart from the taxation of those costs, the Family Provision Act proceedings had been concluded by a judgment of this Court on 3 March 1992. The Taxing Officer commenced the taxation of the appellant’s costs at about that time. [4] The Taxing Officer issued certificates in the course of the taxation. The first respondent paid the appellant the full amount of each of two interim certificates and part of the amount of a third interim certificate. On 16 August 1994, the Taxing Officer issued a final certificate and made orders with respect to the costs of the taxation. [5] Broadly stated, the Taxing Officer’s determinations, certificates and orders (except the interim certificates to the extent to which they have been paid) have been set aside. That part of the litigation was concluded by orders entered on 1 July 1998 to give effect to reasons for judgment which Santow J had published on 6 February that year. The appellant’s bill of costs in the Family Provision Act proceedings remains untaxed. The first respondent, who is liable for those costs, became bankrupt in August 1999. [6] These appeals are not concerned with the costs of the Family Provision Act proceedings but with the costs of the taxation of those costs and of proceedings relating to disputes concerning that taxation. The material orders Page 2 of 49 Wentworth v Wentworth, [2000] NSWCA 350 were entered on 23 August 1999 in accordance with reasons for judgment published by Santow J on 9 April and 29 June that year. [7] The appellant seeks orders in relation to the costs of the taxation and of proceedings relating to disputes concerning the taxation against the first respondent, the Taxing Officer and the State of New South Wales. Neither the Taxing Officer nor the State is named as a party. [8] The appellant filed the notice of motion on which Santow J made the orders entered on 1 July 1998 almost 5 years earlier, on 8 October 1993. That notice of motion did not seek any order for costs against the Taxing Officer or the State. In a judgment delivered on 12 September 1996, Santow J noted that the appellant had not sought any costs or other relief against the Taxing Officer, but had “ … left open the possibility that, depending on the Judgment in these proceedings, she may wish to consider whether to bring any action against the [Taxing Officer] but emphasised she has no such action presently in contemplation.” In his judgment delivered on 9 April 1999,2 Santow J recorded that when the orders which he had made on the appellant’s notice of motion of 8 October 1993 were made in 1998, “ … the [appellant] foreshadowed … that she would be putting submissions that costs orders should be made against both the [first respondent] and, as had not previously been foreshadowed, against [the Taxing Officer].” However, it was not until 19 March 1999 that the appellant notified the Taxing Officer of her intention to seek costs orders against him. As I understand the position, even then the appellant did not notify the State of her intention to seek costs orders against it. Neither the Taxing Officer nor the State was ever joined as a party in the Family Provision Act proceedings and neither is a respondent to any notice of appeal. [9] It is unnecessary for me to discuss either the relationship between Pt 8 and Pt 52 A.4(3) of the Supreme Court Rules3 or the procedure which should be followed when a costs order is sought against a person who is not a party.4 Neither the Taxing Officer nor the State could properly have been joined as a party to the Family Provision Act proceedings for the purpose of obtaining costs orders against them more than 7 years after the judgment on the Family Provision Act claim and months after the judgment setting aside the Taxing Officer’s decisions and certificates. I agree with Heydon JA that, for the reasons given by his Honour, neither the Taxing Officer nor the State is legally a party notwithstanding that he or it is not named as a party. [10] While I am in general agreement with Heydon JA’s reasons, I would refuse the appellant’s applications for costs orders against the Taxing Officer and the State on the broad ground that the application is misconceived. It necessarily follows that the appeal against the interlocutory order made by Hunter J on 7 June 1999 should also be dismissed. [11] Sections 22 and 23 of the Supreme Court Act 1970 confirm the breadth of this Court’s jurisdiction. Even in the absence of express statutory power, the Court’s jurisdiction includes power to O costs.5 subss 76(1)(a) and (b) of the Supreme Court Act provide that, subject to that Act and any other Act and to the rules,6 costs are in the discretion of the Court which has “ … full power to determine by whom and to what extent costs are to be paid..”. Left unaffected, that power would permit orders for costs against persons who are not parties to the proceedings in which the order is made.7 [12] However, the introductory words of s 76 of the Supreme Court Act permit the scope of the Court’s power to be confined by the rules.8 That has been done. The provisions of most importance for present purposes are in Pt 52 A.49 which, so far as material, provides: [52 A.4] Powers of the court generally (1) The powers and discretions of the court under section 76 of the Act … shall be exercised subject to and in accordance with this Part. (2) Subject to subrule (5), the Court shall not, in the exercise of its powers and discretions under section 76 of the Act, make any order for costs against a person who is not a party. (3) … a person shall not be made a party for the purpose of making an application for costs against the person. … (5) Subrule (2) shall not limit the power of the court to make any order — (a) under rule 43 or Part 42 rule 7(f); (b) for payment by a relator in proceedings of the whole or any part of the costs of a party to the proceedings; (c) for payment by a person who — (i) is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings; and Page 3 of 49 Wentworth v Wentworth, [2000] NSWCA 350 (ii) fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach; (d) for payment by a person who has committed contempt of court or an abuse of process of the Court of the whole or any part of the costs of a party to proceedings occasioned by the contempt or abuse of process; (e) in exercise of its supervisory jurisdiction over its own officers; (f) against a person who purports without authority to conduct proceedings in the name of another person; or (g) against a person who commences, carries on, enters an appearance in, or defends proceedings as the authorised director of a corporation, or purports to do so. (6) Save as mentioned in subrules (1) — (5) this Part has effect subject to the Act and to the rules and subject to any other Act. [13] The State is bound by the Supreme Court Act10, and the Court has power to make costs orders against the State in proceedings in which it is a party. However, none of the paragraphs of Pt 52 A.4(5) is applicable to the State in the present circumstances, and there is plainly no power to make the order for costs which the appellant seeks against the State in the Family Provision Act proceedings to which it is not a party.11 [14] The appellant argued that the Court has power to make the order for costs which she seeks against the Taxing Officer pursuant to Pt 52 A.4(5)(e) of the Rules. She submitted that the Taxing Officer was at the material time an officer of the Court, that the Court may make an order for costs against a Court officer in the exercise of its supervisory jurisdiction over its own officers although he or she is not a party to proceedings, and that the conduct which she alleges against the Taxing Officer makes such an O appropriate on this occasion. [15] Part 52 A.4(2) and 5(e) present more difficulties than the appellant’s submission suggests. One problem is that it is unclear who are Court “officers” for the purpose of Pt 52 A.4(5)(e). While there is a considerable body of law dealing with the Court’s power to make costs orders against solicitors in proceedings to which they are not parties on the basis that they are officers of the Court,12 the definition of “officer of the court” in Pt 1.8 and the specific provisions with respect to costs orders against lawyers in proceedings in which they are not parties13 suggest that Pt 52.4(5)(e) is not concerned solely with costs orders against lawyers if it is concerned with them at all.14 In other contexts, it has been held that a receiver appointed by the Court is a court “officer”15 but that a referee appointed under Pt 72 is not.16 The distinguishing characteristics of a court officer who is amenable to the court’s supervisory jurisdiction have not been precisely and comprehensively defined. While the Taxing Officer is undoubtedly an officer17 of the Court under Pt 8 of the Supreme Court Act, it does not necessarily follow that he is an officer who the Court can order to pay the appellant’s costs of the taxation and of proceedings relating to disputes concerning that taxation in the exercise of its supervisory jurisdiction in accordance with Pt 52 A.4(5)(e). [16] Part 52 A.4(5)(e) refers to the Court’s “supervisory jurisdiction over its own officers” but neither the Supreme Court Act nor the rules contain a clear indication of the nature and extent of that jurisdiction and, in particular, of the Court’s power to make costs orders against its officers other then lawyers. The Court’s jurisdiction, including both its jurisdiction under s 23 of the Supreme Court Act and its inherent jurisdiction, is undoubtedly broad and flexible, but (constitutional limitations aside) is not unlimited.18 No reported case has been found in which an order such as the order sought by the appellant against the Taxing Officer has been made. While novelty is not necessarily a badge of error, in the present context it provides a reason to proceed cautiously. [17] The final problem associated with Pt 52 A.4(2) and (5)(e) to which I propose to refer is that their meaning is ambiguous. On one possible view the two provisions in conjunction simply preserve whatever power the Court had apart from s 76 of the Supreme Court Act to make costs order against its officers in the exercise of its “supervisory jurisdiction” subject to any limitations on that power. An alternative view is that the effect of Pt 52 A.4(2) and 5(e) is that the Court has the unqualified power provided for in s 76(1)(a) and (b) of the Supreme Court Act to make costs orders against its officers subject only to discretionary factors and principles developed to govern the exercise of the discretion to ensure that the exercise of the power is confined within proper limits.19 [18] However the matter is approached, a costs order should not be made against the Taxing Officer if he is, or but for Pt 52.4(5)(e) would have been, entitled to immunity in respect of the conduct which the appellant alleges against him. If, contrary to my view,20 Pt 52.4(5)(e) is wide enough to permit the Court to make a costs order notwithstanding any immunity which a Court otherwise would otherwise have, the proper exercise of that discretionary power would require the Court to refuse to make an order for costs which would disregard that immunity. [19] The appellant argued that the Taxing Officer is not entitled to immunity in respect of the conduct which she alleges against him but is liable to be sued21 and to the orders for costs which she seeks. She submitted that Court officers such as the Taxing Officer are not entitled to immunity and that, in any event, even judges are not entitled to Page 4 of 49 Wentworth v Wentworth, [2000] NSWCA 350 immunity in respect of allegations of actual bias and malice because such conduct is necessarily in excess of jurisdiction and known to be so. I will deal with the latter issue first. [20] In Re East; ex parte Nguyen22 the applicant, a man of Vietnamese origin who professed little fluency in English, was charged with armed robbery in Victoria. He was committed by the Magistrates Court to the County Court, where he pleaded guilty and was sentenced. He subsequently commenced proceedings in the original jurisdiction of the High Court seeking orders of certiorari and declaratory relief. He contended that, by reason of his lack of ability in speaking and understanding English and the absence of an interpreter while he was giving instructions to his lawyers and at his court appearances, he was a victim of racial discrimination of a kind rendered unlawful by s 9 of the Racial Discrimination Act 1975 (Cwlth). His proceedings were dismissed. The High Court held that the respondents were protected from any allegation that they were subject to legal redress on the ground of an alleged contravention of s 9 of the Racial Discrimination Act by reason of their immunity from suit. [21] All members of the Court except Kirby J (who delivered a separate concurring judgment) were parties to a joint judgment which acknowledged that the immunity of “judicial officers” is absolute when they act “in the exercise of their judicial function or capacity.” Their Honours stated:23 .. apart from the particular facts of this case, there are more fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act. First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the Act which suggests that it was the intention of the Parliament to override that immunity. [22] Kirby J noted that the Racial Discrimination Act “ … was written against the background of the established principles of the Australian legal system by which judicial officers are personally immune for their conduct in the course of performing their judicial duty”24 and later said:25 Thirdly, when the Act was enacted the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct, in a particular case, unlawful, well established principle would require that the Parliament should say so expressly. If independent judicial officers were to be subject to complaint of allegedly “unlawful” conduct before agencies of the Executive Government, longstanding principle would require that this be expressed in plain terms. In particular, if it had been the purpose of the Parliament to render judicial officers of State courts amenable to such federal remedies (assuming that to be possible), it might have been anticipated that the Parliament would have said so. These considerations make it unthinkable that the unlawfulness mentioned in s 9 was intended to apply to judicial officers at all and, in particular, to the judicial officers of a State, such as those against whom the applicant sought relief.” [23] The proposition advanced by the appellant that the doctrine of judicial immunity is inapplicable to allegations of actual bias and malice stems from confusion which resulted from statements made in the English Court of Appeal in Sirros v Moore.26 That confusion has led to a number of unwarranted, unsuccessful proceedings against judges.27 [24] Although Sirros28 was not such a case, it was there suggested that the doctrine of judicial immunity does not apply “.. if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.”29Unless it is properly understood, this suggested exception to judicial immunity will continue to lead to litigation which is incompatible with the necessity on which the doctrine is founded.30 Judicial immunity is an essential corollary of judicial independence, which requires that judges be free to administer justice free from not merely the risk of personal liability but also the burden of resisting the claims and allegations of disaffected litigants. The protection which judicial immunity is intended to provide to those who perform the controversial but essential function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate. Decisions subsequent to Sirros31 illustrated that, if judicial immunity is subject to the exception there suggested, the exception is unlikely to have any practical utility. There seems to be no reported case in Australia or England in which effect has been given to the suggested exception and attempts to do so here have failed. [25] Reference was earlier made to the breadth of this Court’s jurisdiction.32 The Court is a superior court of record with general jurisdiction and responsibility for the administration of justice in this State. It cannot be deprived of jurisdiction except by statutory provisions which do so expressly or by necessary implication. It is what it sometimes described as a superior court of unlimited jurisdiction to distinguish it from superior courts of special jurisdiction and inferior courts and tribunals which have been established by legislation for purposes specified in the statutes. However, no Australian court is truly a court of unlimited jurisdiction. Each is subject to constitutional and statutory limitations upon the controversies which are justiciable before it and the orders which it may make. It is technically Page 5 of 49 Wentworth v Wentworth, [2000] NSWCA 350 possible for a judge to purport to adjudicate in a dispute which he or she knows is not within his or her court’s jurisdiction or to make orders which he or she knows his or her court has no authority to make. The exception to the doctrine of judicial immunity suggested in Sirros33 is directed only to that possibility. [26] There is no present purpose in investigating whether, without the exception to judicial immunity suggested in Sirros,34 there is a difference between the immunity afforded at different levels of the judicial hierarchy or whether the suggested exception would eliminate that distinction. What is patently clear is that the exception to judicial immunity suggested in Sirros35 does not exclude immunity for misconduct of any kind in the exercise of the jurisdiction of a court of which the judge who engaged in the misconduct is a member. [27] Any notion that the doctrine of judicial immunity does not apply if there was actual bias and/or malice in a judge’s exercise of his or her court’s jurisdiction is inconsistent with a long line of authority including Sirros,36 in which Lord Denning said:37 Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus or a writ or error or certiori or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. [28] A judge is acting within jurisdiction for this purpose if he or she is exercising a jurisdiction which the court of which he or she is a member possesses. That is made clear by the decision of the New Zealand Court of Appeal in Nakhla v McCarthy.38 Woodhouse J, speaking for the Court, said:39 … we are in no doubt that when the principle of judicial immunity is discussed in the cases in relation to acts done within the jurisdiction of the judge that word must be regarded as referable to the broad and general authority conferred upon his court and upon himself to hear and determine issues … ‘authority to decide’ is the test, not the mode of decision nor the manner in which the powers … have been exercised or not exercised. [29] That passage from Nakhla40 was applied by Wilson J in Gallo v Dawson.41 McHugh J refused to extend the time for appeal and said:42 The order made by Wilson J, based as it was on principles of judicial immunity almost four hundred years old was unquestionably correct. An appeal against it would have no prospect of success. [30] An appeal against McHugh J’s decision was dismissed by a Court consisting of Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.43 In a joint judgment, the Court said:44 … we agree with McHugh J that Wilson J was clearly correct in concluding that the appellant’s case must fail by reason of the long established principle of judicial immunity applying to acts done by a judge in the course of the performance of judicial duties. [31] In Yeldham v Rajski,45 Hope AJA, with whom Priestley JA agreed, described the proposition for which Wilson J in Gallo46 cited Nakhla47 as “well established”. [32] Yeldham48 followed the earlier decision of this Court in Rajski v Powell,49 which was cited with approval in both judgments in the High Court in Re East.50 [33] In Rajski,51 Priestley JA made it clear that immunity is afforded to judges in their exercise of the jurisdiction of the court of which they are members and that the immunity is absolute.52 “No question of good faith can arise in such cases.”53 [34] Kirby P considered an application by the plaintiff to amend his statement of claim to bring his claim within the suggested exception.54 The nature of the application appears from the following passage:55 The [plaintiff] contended that, properly repleaded, he would be able to establish a case against the [judge] upon the ground that a tribunal of fact could conclude from the conduct of the [judge] alleged in the particulars that, although purporting to perform judicial duties, sitting in Court and wearing judicial robes, the [judge] had by his conduct actually stepped outside Page 6 of 49 Wentworth v Wentworth, [2000] NSWCA 350 his jurisdiction and must, by his training and position, have known that such was the case. In such circumstances, the [plaintiff] urged that the Court would not forbid him the opportunity, after repleading, to present his case for redetermination on the merits. … … the [plaintiff] argued that the immunity conferred upon [judge] was limited to his performance of his judicial function in the determination of issues. It did not extend to forays into personal abuse, advice allegedly given to the [plaintiff] to drop his case against a firm of solicitors and conduct involving sheriffs’ officers said to have been designed to oppress and intimidate the [plaintiff]. To the extent that the [judge] so conducted himself, the [plaintiff] argued that he should have the opportunity of a decision at a trial as to whether such conduct was in knowing excess of jurisdiction, so as to deprive the [judge] of the judicial immunity he otherwise enjoyed in the trial of issues. [35] Although acknowledging arguments which appeared to lend support to the plaintiff’s contentions, Kirby P concluded that the doctrine of judicial immunity protected the judge against the allegations which the plaintiff sought to make against him. After noting that judicial immunity “ .. is a principle which appears to be fundamental to all jurisdictions of the common law”56 and quoting a passage from the judgment of Warren CJ in Pierson v Ray57 in which it was acknowledged that the immunity applies even when a judge is accused of acting maliciously and corruptly, his Honour continued: Attempts to modify, qualify or limit the scope of the immunity so conferred are made against a background of the enduring and universal features of the principle so established. Although exceptions have been provided, immunity has been consistently upheld save in the most exceptional cases where a judicial officer acts knowingly in the clear absence of all jurisdiction … … .‘jurisdiction’ in this context means the judicial power to hear and determine a matter. It does not mean the manner, method or correctness of the exercise of that power. It is a word, in the context, to be construed broadly in order to ensure that the issue of judicial immunity does not come to depend upon the determination of fine questions of jurisdiction … [36] In subsequent passages,58 Kirby P sought to draw a distinction between “ … nice questions [of jurisdiction], determined by reference either to the issues in the pleadings or to conventional curial conduct from which it was said the judicial officer has departed”, and “ … circumstances where the lack of jurisdiction is so clear that it indicates not just error of fact, law or jurisdiction but a deliberate abandonment of the judicial function.” Whatever is involved in that distinction, it plainly does not give any significant content to the suggested exception. That is made plain by Kirby P’s subsequent adoption of the following passage from the judgment of Lord Bridge in Re McC (a minor):59 The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction. [37] In Yeldham,60 this Court dismissed proceedings for contempt of court which had been brought against a judge who had refused leave to prosecute a witness for perjury on an application under s 340 and 341 of the Crimes Act 1900. It was held that, although the judge’s decision was administrative or ministerial, it was intimately or immediately associated with his judicial function and attracted the same immunity from suit. [38] The breadth of judicial immunity is illustrated by an example given by Kirby P in Yeldham.61 After observing that a judge, like any other citizen, is liable for a breach of the criminal law or for a civil wrong where the acts or omissions occur in private life outside the performance of judicial functions,62 his Honour said:63 If a judge were to accept a bribe and enter judgment for the party who offered such inducement, that judge would remain immune from suit for damages occasioned by his judicial act. But he or she would be liable to the criminal law for the offences constituted by the taking of the bribe. Liability to removal from office would also follow. But the judicial act, being within jurisdiction, would be immune from suit: [39] Later, his Honour added:64 Judicial immunity protects the judge: Page 7 of 49 Wentworth v Wentworth, [2000] NSWCA 350 In the United States, where there have been more proceedings of the present character than in this country, the Supreme Court has identified two specific factors to be considered in determining whether, for the purpose of attracting judicial immunity, an act impugned is “judicial”. The first consideration is “the nature of the act itself”, that is, whether it is a function normally performed by a judge. The second consideration is “the expectation of the parties”, that is, whether the parties dealt with the judge in his or her judicial capacity: .. … In the present case, if the nature of the act and the expectation of the parties are taken into account, it is appropriate to classify the decision of the claimant under s 341 as a judicial function, thus attracting judicial immunity. [40] Hope AJA, with whom Priestley JA agreed, cited Rajski65 as authority for the proposition that “ … it is well established that a judge of the Supreme Court cannot be made liable in civil proceedings for anything done by him in the performance of his judicial functions and within jurisdiction, even though he acts maliciously or corruptly … ”.66 [41] Later,67 Hope AJA noted that the party who had charged the judge with contempt of court relied upon the statement of Lord Denning in Sirros68 in which his Lordship had said that if a judge had accepted bribes or been in the least degree corrupt or perverted the course of justice he could be punished in the criminal courts.69 Hope AJA said:70 As it seems to me this statement, upon analysis, does not support the plaintiff's contention. If a judge has been bribed, the contempt is the giving and receiving of the bribe. What the judge does in court following the receipt of the bribe may be relevant to establish mens rea or otherwise, but it is not the act of contempt. As it seems to me, this position was clearly explained as long ago as the decision in Floyd v Barker [(1607) 12 Co.Rep. 23; 77 ER 1305] in the passage which I have quoted. A conclusion that the law of contempt does not apply to the acts of a judge in the exercise of his judicial function does not mean that a person who happens to be a judge is not liable to be charged with contempt. It simply means that the law of contempt does not apply to extend to the acts of a judge in the performance of his judicial function. If a judge bribes another judge, or if he publishes a statement urging the conviction of an accused person in a current trial, he will be as guilty of contempt as any other person. The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings. In the course of the exercise of their functions, Judges often, for example, have to decide whether a person is telling the truth or lying and to say so in their judgments. If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, the independence required of judges would be greatly eroded. I can see no basis for distinguishing this situation from the undoubted position in respect of civil proceedings and in my opinion the same position does apply, and acts or statements by judges in the course of exercising their judicial functions do not fall within the law of contempt. [42] Subsequently, Hope AJA said that the exercise of jurisdiction under s 340 and 341 of the Crimes Act, whatever its technical nature, was ancillary to the proceedings in which the perjury was alleged to have been committed and, although the power might be a ministerial one, it was immediately associated with and flowed directly from the exercise by the judge of his judicial function.71 His Honour’s judgment concluded:72 The policy reasons which support the inapplicability of the law of contempt to the judicial acts of judges are equally applicable to the exercise by judges of powers under s 340 and s 341(1). These powers are incidental to, indeed (1989) 18 NSWLR 48 at 73 an extension of, the judicial function of presiding at the trial. They are “intimately associated” with those functions. They are required to be exercised by a judge or magistrate who has direct knowledge, by reason of presiding at the trial, of the evidence given by the alleged perjurer and of the other evidence in the matter. The independence which judges are required to have in the conduct of the trial is equally applicable to the exercise by them of the powers given to them by these provisions. In my opinion the connection between their exercise and the exercise of the judge's judicial functions at the trial is so close that it should be concluded that their exercise by judges is not the subject of the law of Page 8 of 49 Wentworth v Wentworth, [2000] NSWCA 350 contempt. It is only necessary for the purposes of the present case to come to this conclusion in relation to judges of superior courts. I would have thought that the same conclusion should be reached in relation to their exercise by judges of inferior courts and by magistrates but it is not necessary to decide this question for present purposes. In my opinion the summons should be dismissed. The plaintiff should pay the costs of the summons and of the notice of motion. [43] In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of “ … the broad and general authority conferred upon a court to hear and determine the matter.”73 If a Judge had in his or her exercise of the Court’s jurisdiction and powers performed the functions performed by the Taxing Officer and in the course of doing so engaged in the conduct which the appellant alleges against the Taxing Officer, it is beyond dispute that that judge would be protected by the doctrine of judicial immunity. [44] Of course, the Taxing Officer is not a Judge of the Court. It is also correct that there is modern authority which proceeds on the basis that judicial officers of inferior courts are not entitled to immunity in respect of “.. something like misconduct, corruption or perversity … ”.74 Further, while this Court has held that private referees75 appointed under Pt 72 of the rules and costs assessors76 appointed pursuant to the Legal Profession Act 1987 and the Legal Profession Reform Act 1993 are entitled to immunity, the question whether that immunity extends to misconduct or bad faith was left open.77 However, the Court’s Masters and Registrars are integral parts of its organisational structure through which its jurisdiction and powers are exercised. [45] Section 25 of the Supreme Court Act provides that the Court is composed of the Judges, and s 40(1) provides that all proceedings and business arising out of proceedings “ … shall be heard and disposed of before a Judge … ”. [46] By Pt 8 of the Supreme Court Act, Masters and Registrars are officers, not members, of the Court. Nonetheless, Masters and Registrars perform judicial functions78 subject to supervision and review by the Judges. Section 40(2) provides:79 (2) Subsection (1) does not affect the provisions of this Act and the rules concerning the hearing and disposal of proceedings and business before a master or before a registrar or other officer of the Court. [47] Sections 117A and 118 of the Supreme Court Act and Pt 60 of the Rules provide for and control the exercise of the Court’s power by Masters. Section 121 of the Supreme Court Act, which is supplemented by Pt 61 of the Rules and other rules,80 provides: 121. (1) In this section “officer” means a registrar, taxing officer, or other officer of the Court. (2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer. (3) A judgment given or an order made by an officer may be set aside or varied by the Court. (4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer. (5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2). [48] The scheme established by the Supreme Court Act and the Rules was considered in Commonwealth of Australia v The Hospital Contribution Fund of Australia.81 The High Court held that a Master of this Court had jurisdiction to determine a claim to privilege which had been made by a Commonwealth Minister to whom a subpoena had been directed in litigation in this Court in which the Hospital Contribution Fund had sued the Minister on behalf of the Commonwealth. It was decided that Federal jurisdiction had been invested82 in this Court as an institution and not in the judges of which it is composed, and that, although the Master was not a member of the Court, he constituted the Court for the purpose of the exercise of powers conferred upon him under the Supreme Court Act and Rules. [49] Gibbs CJ, with whom Stephen and Aickin JJ agreed, said at p 54 that “ … the master is not a component part of the court, in the sense that a judge is, but … he constitutes the court for the purpose of the exercise of the powers conferred upon him — that is, of course, not for all purposes.”83 Subsequently, his Honour described Page 9 of 49 Wentworth v Wentworth, [2000] NSWCA 350 masters as “ … officers of the court who are an integral part of its organisation and who, under the State law, exercise its powers and jurisdiction.”84 [50] Later, the Chief Justice said:85 The jurisdiction and powers of the court do not cease to be its jurisdiction and powers because they are exercised by an officer of the court, under the rules of the court. In the present case the jurisdiction and powers which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers of the Supreme Court. He was the officer of the court by whom the jurisdiction and powers of the court in the manner in question were normally exercised, and an order made by him, if not set aside or varied by the court, would take effect as an order of the court. Although he was not a member of the court he was … part of the organisation through which the powers and jurisdiction of the court were exercised … [51] There are historical and other86 differences between the offices of master and registrar. In general terms, masters exercise a broader jurisdiction and wider powers than registrars who have more extensive administrative functions than masters. However, there are no distinctions of present significance. The alleged conduct of the Taxing Officer upon which the appellant founds her claim to an order that he pay her costs occurred, if and to the extent that it occurred, in his exercise of the Court’s jurisdiction and powers which had been delegated to him by the Supreme Court Act and the Rules and orders of the trial judge and this Court in the Family Provision Act proceedings. [52] In Sandback Charity Trustees v North Staffordshire Railway Co,87 Brett LJ, with whom Cotton LJ concurred, said that it had been decided by Owen v London and North Western Railway Co88 that “ … the grounds on which the Courts exercise a jurisdiction in a matter of taxation is that the office of taxing costs is the business of the Court itself; that this office is delegated to one of its officers, and that the Court has necessarily jurisdiction to control this delegated authority, and therefore a right to review the .. taxation.”89 Confirmation that the taxation of costs by a court officer is “the business of the Court itself” and a delegated judicial function is to be found in the history by which the taxing of costs by court officers developed90 and the nature of the powers exercised by taxing officers.91 Consistently with this view, it has been held that the absolute privilege which attaches to statements made in the course of judicial proceedings92 applies to statements made in the course of a taxation.93 [53] In Attorney General (NSW) v Kennedy Miller Television Pty Ltd94 in which the Court upheld a cost assessor’s claim to immunity, the Court followed by analogy its earlier decision in Najjar v Haines.95 Najjar96 proceeded on the basis that the Court had power to make a costs order against a referee which it had appointed although he was not a party to the proceedings unless the referee was entitled to immunity.97 It was held that a referee appointed by the Court is entitled to immunity as a matter of policy. [54] Kirby P said:98 … I have (with the other members of the Court) concluded that the common law immunity from an order for costs of a proceeding which miscarries, enjoyed by judicial officers, extends to a referee appointed by the Court under the Supreme Court Rules, Pt 72. I do so for the following reasons: 1. The judicial immunity is not accorded to judicial officers because of (1991) 25 NSWLR 224 at 234 their status, education or titles. It is accorded because it is essential to the performance of their actual functions as judicial officers. Those functions require independence and removal from the risk that a disaffected party (of whom there is usually at least one) will challenge a determination and seek to make the person determining the dispute liable for damages and costs. If the determiner stood at risk of such liability, he or she would be under an intolerable pressure to consider personal consequences of any determination instead of the merits only of the matter in contest; … 3. Under Pt 72 r 3(2), a referee may be a judge, master, registrar or other officer of the court. This provision underlines what is in any case apparent, namely the integration of the referee in the decision-making procedures of the Supreme Court. It would be an absurd consequence if a judge or master performing functions, as such, in the court were provided with the ordinary judicial immunity but not so provided if appointed, for a particular reason, to be a referee pursuant to the subrule; … 5. The Court has, in a number of recent cases, extended judicial immunity although the judicial officer concerned was not performing an office as a judge but as persona designate appointed by statute. The Court has extended Page 10 of 49 Wentworth v Wentworth, [2000] NSWCA 350 the immunity because the decision attacked was one “so intimately or immediately associated with the judicial functions as to attract the same immunity from suit as extends to acts or statements of judges in the course of exercising their judicial functions”: see Yeldham v Rajski (1989) 18 NSWLR 48, applying Stump v Sparkman 435 US 349 (1978); see also Rajski v Powell (1987) 11 NSWLR 522. By parity of reasoning, the referee's activities following appointment under the Supreme Court Rules, Pt 72, are so intimately and immediately associated with the judicial function of providing a judgment of the court following the referee's report, that the same rule should apply; and … at least in a case such as the present where the cloak of immunity is sought to defend a projected entitlement to an order for costs based upon a report vitiated for reasonable apprehension of bias, the common law immunity will apply. It is not as if this is a case of actual bias, still less of fraud or deliberate wrong-doing. It is unnecessary in the proceedings to determine whether, in such cases, the common law immunity against suit and for liability could be invoked by the referee. It can certainly be invoked here. [55] Clarke JA said:99 In the present case there was no occasion to join Mr Morris unless it was open to the appellant to seek an order for costs against him in the appeal. This aspect of the matter was argued upon the basis that the principles that govern an arbitrator's immunity from suit applied to a referee and little attention was directed to the difference between a referee and an arbitrator and the fact that the Court was not concerned with an action against the referee but a claim for costs against him which was made in an appeal from a judicial decision in an existing action in which he was not a party. This approach was, in my respectful submission, misconceived not only because it assumes that the same principles apply both to arbitrators and referees appointed under the Supreme Court Rules, Pt 72, but also in its failure to recognise that there may be fundamental difficulties in an appeal court making a costs order against a person who was not a party to the proceedings below. … But that situation is quite different from the present. The referee was not a party to the proceedings. On the contrary he was deputed to perform major judicial functions in the resolution of the dispute between the parties at the trial level and the question which is raised is whether he, unlike a judge, master, or even jury, can be ordered to pay the costs incurred during the reference and later proceedings. A judge is not liable to pay the costs of any party where an appeal is granted on the grounds of the apprehended bias of that judge. This is, no doubt, because a judge is immune from any action, be it for costs or otherwise, in respect of acts performed in the exercise of his or her judicial function: see Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48 and Sirros v Moore [1975] QB 118 at 132 per Lord Denning. … It has not yet been decided whether a referee appointed under the Supreme Court Rules, Pt 72, is entitled to immunity from action and, if so, the extent of that immunity. It is clear to me that if Mr Morris is entitled to immunity from action in the circumstances of this case then there would be no basis upon which the court could properly exercise its discretion to award costs against him in respect of the proceedings on the reference and before Giles J. Accordingly, it is necessary to look at the question of a referee's immunity. In this respect I should observe at the outset that, for reasons which I have already given, I do not think assistance is to be gained from a consideration of the cases dealing with an arbitrator's immunity at common law. In the absence of authority the Court is bound to determine the question whether the referee should be accorded immunity and the extent of that immunity upon considerations of policy. The major consideration in favour of granting to the referee immunity from action is that he or she is performing functions which are important to the decision-making in judicial proceedings before the Court. While the role of a referee cannot be equated with that of a jury there are important similarities in so far as they both seek to provide answers to factual disputes Page 11 of 49 Wentworth v Wentworth, [2000] NSWCA 350 before the Court and neither of them gives a decision which is capable of being enforced as a judgment of the Court. Of course there are significant differences … . Quite apart from these considerations the members of the jury do not elect to try the facts in the case — once called and empanelled they are bound to do so and they receive payment from the State. In these latter respects they are in a similar position to a judge but in quite a different one from the referee appointed under the Supreme Court Rules, Pt 72, who is paid by the parties and is not obliged to sit on a reference. The absolute right of a person nominated as a referee to decline to act in that capacity assimilates his or her position, to that extent, with that of an arbitrator's as also does the fact that a referee is paid by the parties. For my part I would conclude that as a matter of policy, at least where there is no question of fraud or good faith involved, a referee appointed pursuant to the Supreme Court Rules, Pt 72, should be accorded an immunity from action. The consideration which leads me to that view is, primarily, the role played by the referee in the resolution of a case properly before the courts and which culminates in a judgment of the Court. Those factors which have led to the development of the doctrine of judicial immunity, such as the overriding importance of the need for a judge to act independently and without fear of harassment by action, apply also, in my opinion, in the case of a referee who is acting, in a sense, as a deputy judge. I recognise that there are countervailing considerations which would support the view that a referee who has negligently carried out his or her fact finding task and thereby caused one or both of the parties considerable loss should be required to pay for that loss. This is an argument which has been pressed heavily in claims against arbitrators but has, in my opinion, much less force when the referee is appointed to take an important part in the resolution of a court dispute and whose determination is open to the close scrutiny of the court. It necessarily flows from this conclusion that it would not be a proper exercise of judicial discretion to order that Mr Morris pay costs. Consequently, the motion for his joinder should be dismissed. There are, however, two observations which I would wish to make. First, there is much to be said for the view that the immunity of a referee (1991) 25 NSWLR 224 at 251 appointed under the Supreme Court Rules, Pt 72, should be the same as that of a judge. The policy considerations to which I have adverted support this view but, as it is unnecessary to resolve the question in this appeal, I prefer to reserve my opinion on it for another day. In addition, as Rogers A-JA has pointed out, this view is consistent with the opinion of the United States Circuit Court of Appeals, expressed in Ashbrook v Hoffman 617 F 2d 474 (1980), and has found legislative expression in Victoria: Supreme Court Act 1986 (Vic), s 27A inserted by s 8 of the Courts (Amendment) Act 1990 (Vic). [56] Rogers AJA said:100 Immunity of referee: In considering whether judicial immunity should attach to a referee it is necessary to examine the nature of a reference and the question whether the referee has the same immunity as a judge or any immunity of that kind. It has to be remembered that a referee, in contra distinction to the usual situation of arbitrators, who are consensually appointed by the parties, is an appointee of the court to whom, by order of the court, are entrusted many of the functions commonly appertaining to a judge. What then is the difference between a judge and a referee? Is the difference of such a kind that different concepts of immunity should apply? There is no doubt that there are distinct personal and functional differences between judges and referees. As to functional difference in the discharge of duties, they are again twofold. First, the referee is not required to conduct a reference as though it were a trial and the referee were a judge (Xuereb) … . A judge is, with some exceptions (for example, Supreme Court Act, s 82) required to adhere to the rules of evidence. A referee is not. A judge cannot use personal knowledge beyond the parameters of judicial notice. The whole rationale for appointing a technical expert is that the referee should draw upon the technical knowledge in which the expertise resides. A judge cannot make inquiries and cannot gather information except in the presence of the parties. … Page 12 of 49 Wentworth v Wentworth, [2000] NSWCA 350 Secondly, in the functional field, there is the fact that the referee makes no decision. He expresses an opinion to the court. Immunity attaches to a judge in the performance of judicial duties not as a privilege of rank but as a requirement for the proper and effective discharge of the judicial function and for the more efficient administration of justice. Is the function of a referee sufficiently similar as to call for the same immunity? This Court has recently re-affirmed that, in relation to matters in the execution of judicial duties, a judge has absolute immunity … This immunity rests on public policy … [57] Later, his Honour said:101 In the United States, Circuit Courts of Appeal have uniformly stated that ‘nonjudicial officials whose official duties have an integral relationship with the judicial process have also been held to have absolute immunity for their quasi-judicial conduct’. In Ashbrook v Hoffman 617 F 2d 474 (1980), the Court said (at 476): Other nonjudicial officials whose official duties have an integral relationship with the judicial process have also been held to have absolute immunity for their quasi-judicial conduct. See, eg, Imbler v Pachtman, 424 US 409, 96 S Ct 984, 47 L Ed 2d 128 (1976) (prosecuting attorney has absolute quasi-judicial immunity for those activities intimately associated with the judicial phase of the criminal process); Kermit Construction Corp v Banco Credito Y Ahorro Ponceno 547 F 2d 1 (1st Cir 1976) (receivers absolutely immune even though engaged in ministerial acts); Lockhart v Hoenstine, 411 F 2d 455 (3d Cir), cert denied, 396 US 941, 90 S Ct 378, 24 L Ed 2d 244 (1969) (prothonotaries absolutely immune); Stift v Lynch, 267 F 2d 237 (7th Cir 1959) (justices of the peace enjoy quasi-judicial absolute immunity). The same policies which underlie the grant of absolute judicial immunity to judges justify the grant of immunity to those conducting activities intimately related to the judicial process. See Imbler v Pachtman, 424 US at 423–24, 96 S Ct at 991–992, Note, 68 Harv L Rev 1229 (1955). On one hand is the policy that an official making quasi-judicial discretionary judgments should be free of the harassment of private litigation in making those judgments. Imbler 424 US at 423, 96 S Ct at 991. On the other hand a nonjudicial officer who is delegated judicial duties in aid of the court should not be a ‘lightning rod for harassing litigation’ aimed at the court. Kermit Construction, 547 F 2d at 3. Thus, if ‘acts, alleged to [be] wrongful, were committed by the officer in the performance of an integral part of the judicial process,’ Robichaud v Ronan, 351 F 2d 533, 536 (9th Cir 1965), then the officer is absolutely immune from suit. Whether particular office holders have quasi-judicial absolute (1991) 25 NSWLR 224 at 275 immunity for their acts depends on an analysis of the nature of the activities in which the office-holder engages and the relationship of those activities to the judicial process. The last paragraph of the judgment is supported by the authority of the Supreme Court in Butz v Economou 438 US 478 (1978). Although there were four judges in dissent it was not on the point of present concern. The court as a whole was of the view that absolute immunity extends to all those whose work is “functionally comparable” to that of a judge. … In Howard v Drapkin 271 Cal Rptr 893 (1990), the Court of Appeal held that a psychologist was entitled to common law immunity as a quasi-judicial officer participating in the judicial process … The judge said: … we believe it appropriate that these ‘nonjudicial persons who fulfil quasi-judicial functions intimately related to the judicial process’ (Myers v Morris, supra, 810 F 2d at p 1466–1467) should be given absolute quasi-judicial immunity for damage claims arising from their performance of duties in connection with the judicial process. Without such immunity, such persons will be reluctant to accept court appointments or provide work product for the courts' use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs. (Moses v Parwatikar (8th Cir 1987) 813 F 2d 891, 892, cert den 484 US 832, 108 S Ct 108, 98 L Ed 2d 67.) In similar vein the Construction List operates, I trust satisfactorily, only because of the assistance the Court receives from the referees. Their technical expertise is also drawn on in the work of the Commercial Division. Within the area of their Page 13 of 49 Wentworth v Wentworth, [2000] NSWCA 350 technical knowledge they carry out the fact finding mission which is the stuff of life of a trial judge. It would be strange if judges were to appoint referees to assist them in the discharge of their duties but fail to accord to them the safeguards they themselves enjoy in the discharge of the self same mission. In the result, in my view, I should conclude that public policy requires that a referee enjoy the same immunity as a judge. Accordingly no order for costs, or claim for damages, can be made against him. [58] In the paragraph numbered 3 in the passage from Kirby P’s judgment in Najjar102which is quoted above in para 53, his Honour took it for granted that a master performing judicial functions in the exercise of the Court’s jurisdiction is entitled to the same immunity as a Judge. That is not surprising. If judicial immunity is afforded to a judge in respect of his or her exercise of the court’s power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court’s jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers.103 It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches.104 [59] At the material time, the taxation of costs in proceedings in the Court was a judicial function carried out by a registrar in the exercise of the Court’s jurisdiction and powers.105 The necessity which grounds the immunity of Judges and Masters of this Court requires that the same immunity apply to a Court officer taxing costs in proceedings in the Court pursuant to a Court order. [60] Accordingly, the costs orders which the appellant seeks against the Taxing Officer must be refused. [61] The appellant’s appeals against Santow J’s other orders involved challenges to discretionary decisions. The appellant failed to demonstrate any error of principle by Santow J or that his Honour’s determinations were unreasonable or unjust. [62] The orders proposed by Heydon JA, including his Honour’s proposal that no order be made for the costs of any appeal although the appellant has been unsuccessful, are not only legally correct for the reasons given by his Honour but achieve practical justice and, hopefully, sufficient finality to enable the taxation of the appellant’s costs of the Family Provision Act proceedings to be undertaken if that remains appropriate notwithstanding the first respondent’s bankruptcy. Heydon JA. Background [63] The Notice of Appeal raises three matters arising out of a taxation of costs conducted by Deputy Registrar Howe (“the Taxing Officer”). (a) By leave granted on 17 July 2000 the appellant appeals from: that part of the decision of Justice Santow of 9/4/99 … by which he refused to order that [the Taxing Officer] pay costs jointly and severally with PFN Wentworth, and ordered that PFN Wentworth pay the costs only up to 15 April 1997 … and refused to order that the Crown pay costs jointly and severally with PFN Wentworth. (b) By leave granted on 17 July 2000 the appellant appeals from: that part of the decision of Justice Santow of … 29/6/99 by which he … refused an application to set aside that determination …. (c) By leave granted on 17 July 2000 the appellant also appeals “from the decision of Justice Hunter of 7 June 1999 refusing the inspection of subpoenaed documents. [64] The reasons for judgment of 9 April 1999 are reported: Wentworth v Wentworth (1999) 46 NSWLR 300. [65] The history of the matter, as revealed in the reasons for judgment of Santow J of 6 February 1998, 9 April 1999 and 29 June 1999, of Hunter J of 7 and 9 June 1999, of Deputy Registrar Studdert of 17 April 2000, and of this Court on 21 February 1996, is briefly as follows. Page 14 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [66] On 14 June 1991 Bryson J delivered reasons for judgment favourable to the interests of the appellant, who was the plaintiff in proceedings under the Family Provision Act 1982 against the first respondent. (The first respondent was the defendant in those proceedings. He was also the appellant’s brother, and was the executor of the estate of the late GN Wentworth. GN Wentworth was the father of the appellant and the first respondent.) [67] On 9 August 1991 Bryson J ordered that the first respondent pay the appellant’s costs of those proceedings (with three exceptions). [68] On 3 March 1992 the Court of Appeal varied Bryson J’s orders in relation to the provision to be made for the appellant, but made costs orders in favour of the appellant in relation to the hearing before Bryson J which were the same as those made by Bryson J. [69] Meanwhile, on 21 February 1992 the appellant had lodged a bill of costs for taxation in consequence of Bryson J’s costs orders. That bill claimed $774,866.30 and, after amendments, the claim rose to $813,000. The first respondent objected to most items. [70] In approximately March 1992, the Taxing Officer taxed the bill in the absence of the parties in an amount of approximately $259,000. [71] Both parties sought an appointment for hearing under Pt 52 r 50B of the Supreme Court Rules. [72] The matter was listed for hearing on 13 March 1992. The Taxing Officer stood the matter over to 6 April 1992. On that day he issued the first interim certificate of taxation in the sum of $112,659.26. It was paid. Thereafter contested hearings were conducted before the Taxing Officer. [73] On 1 September 1992, pursuant to an order made on 9 August 1991, the Taxing Officer issued a second interim certificate for $48,202.67. It was paid. The appellant alleged that this certificate was the product of bias. [74] The Taxing Officer then requested and received written submissions on the balance of the taxation. The last of these was received on 4 January 1993. [75] On 28 January 1993 the Taxing Officer arrived at certain determinations and gave his reasons for them. [76] On 29 January 1993 the appellant requested the Taxing Officer to disqualify himself for bias. He refused. [77] On 8 February 1993 the Taxing Officer refused to order the first respondent to produce to the court certain documents. The appellant made a further request for the Taxing Officer to disqualify himself. He refused. [78] From March 1993 until 24 September 1993 the taxation continued on at least 38 occasions over 175.5 hours. [79] On 28 July 1993 the Taxing Officer determined that the amount of the certificate to be issued in favour of the appellant was $280,264.81. On 16 August 1993 a final certificate was issued in that amount, subject to the determination of the costs of the taxation. [80] On 24 September 1993 the Taxing Officer determined that the appellant should pay most of the first respondent’s costs of the taxation of the appellant’s bill. [81] On 8 October 1993 the appellant filed a Notice of Motion seeking several orders. Paragraph 1 sought a review of the Taxing Officer’s determination not to disqualify himself and it is this application which led ultimately to the present appeal. The Court of Appeal held on 21 February 1996 that the Notice of Motion had been filed prematurely because a Certificate of Taxation had not yet issued. [82] On or about 22 November 1993 the first respondent served on the appellant his bill of costs incurred in the taxation in the sum of $63,875.84. [83] On 9 December 1993, evidently by Notice of Motion, the appellant sought that the determinations of the Taxing Officer of 28 January 1993, 9 June 1993 and 14 September 1993 be quashed. On 21 February 1996 the Court of Appeal held that this application was premature. [84] On 16 December 1994 Master McLaughlin delivered reasons for judgment in relation to various matters including aspects of the Notice of Motion of 8 October 1993. On 21 February 1996 the Court of Appeal held that he had been in error in doing so. [85] On 26 April 1994 Master McLaughlin directed that an interim certificate of taxation in relation to the appellant’s bill of costs should issue on or before 10 May 1994 and that a reconsideration of the taxation of the plaintiff’s bill of costs be conducted and completed with expedition. [86] On 10 May 1994 a third interim certificate for $30,000 was issued: of this, $14,332.57 was paid. [87] On 16 August 1994, after reconsidering the taxation, the Taxing Officer issued a final certificate by which the appellant’s bill of costs was taxed in the amount of $264,236.60. He determined that the first respondent was to receive costs of the taxation in the sum of $57,251.24, and all his costs of the reconsideration. [88] On 21 February 1996 the Court of Appeal allowed an appeal by the present appellant and a cross-appeal by the present first respondent. It set aside various orders of Master McLaughlin and a Certificate of Taxation issued pursuant to one of them. It remitted the proceedings to the Equity Division. [89] On various dates in 1997 Santow J heard the application by the appellant which had been instituted by para 1 of the Notice of Motion filed on 8 October 1993 but proceeded by pleadings filed in 1996. The basis for the application was that the Taxing Officer should have disqualified himself for bias. In those proceedings the first respondent did not appear after 15 July 1997. The Attorney-General appeared as amicus curiae in the proceedings conducted after that time. Page 15 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [90] On 6 February 1998 Santow J determined that the Taxing Officer “so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias”. Santow J also said: It follows that the determinations of [the Taxing Officer] in the taxation, including the reconsideration must be set aside save as to his determination that the relevant interim certificates should issue and payments be made thereunder in the amounts actually paid; in addition any cost orders made by [the Taxing Officer] in relation to the taxation must be set aside. Santow J concluded that there should be no order as to the costs of proceedings before him. [91] Orders reflecting Santow J’s reasons for judgment were made on 1 July 1998, except in relation to costs. [92] Written submissions on costs were exchanged between the appellant and the amicus curiae from 13 August 1998 to 29 March 1999. On 23 and 25 March 1999 submissions in oral argument were advanced before Santow J. In those submissions, the appellant applied for costs against the Taxing Officer, the Crown in right of the State of New South Wales, and the first respondent. On 9 April 1999 Santow J concluded that the Taxing Officer enjoyed “derivative immunity as for a judicial officer of a superior court”; that accordingly the issue of the Crown’s liability did not arise; and, contrary to the views stated in the reasons for judgment of 6 February 1998, that the first respondent should pay the costs of the proceedings before Santow J up to 15 July 1997. The first matter in issue in this appeal is Santow J’s refusal to order the Taxing Officer and the Crown to pay those costs jointly and severally with the first respondent, and his refusal to order that the first respondent pay any costs after 15 July 1997. [93] On 6 and 18 May 1999 the appellant applied to Santow J to reopen argument in relation to those contemplated orders. Santow J, before indicating the costs orders he contemplated, rejected that application on 29 June 1999. This is the second matter in issue in this appeal. (The orders he contemplated were ordered and entered on 23 August 1999.) [94] After the application to reopen was made but before it was decided, Hunter J on 7 June 1999 considered whether to refuse inspection of documents caught by two subpoenas issued by the appellant with a view to obtaining two letters said to be relevant to two issues which the appellant wished to raise before Santow J in the course of the application to reopen. Those letters were: 1. Letter to [the Taxing Officer] on or about 27 April 1999 seeking his comments on complaints particularised in document as provided to him by the State Crown Solicitor on or about 27 April 1999. 2. Letter of response by [the Taxing Officer] setting out his comments on the complaints referred to in the letter of 27 April 1999 as particularised, received by the Crown Solicitor in the first or second week of May 1999, on or about 12 May 1999. Hunter J inspected the documents, decided that they were irrelevant and decided that the appellant should not be allowed to inspect them. This is the third matter of which the appellant complains in this appeal. [95] In August 1999 the first respondent became bankrupt. [96] The appellant filed a Summons for Leave to Appeal in or about December 1999. The only opponent named (he was in fact described as “respondent”) was the first respondent to this appeal. Though the Summons for Leave to Appeal sought leave to appeal against Hunter J’s order of 7 June 1999 refusing inspection, the recipients of the subpoenas, Mr Laurie Glanfield and Mr Ian Hill, were not named as opponents. By Amended Notice of Motion filed in or about March 2000, Messrs Glanfield and Hill applied to be joined as opponents to the appellant’s application for leave to appeal, and to be added as respondents to the appeal in the event of leave being granted. [97] The Amended Notice of Motion was heard on 6, 13 and 20 March 2000 by Deputy Registrar Studdert. [98] On 17 April 2000 Deputy Registrar Studdert delivered a reserved judgment in which he ordered that Mr Glanfield and Mr Hill be joined as respondents to the Summons for Leave to Appeal. The appellant filed an undated Notice of Motion returnable on 29 May 2000 complaining about that order. [99] On 17 July 2000 the Summons for Leave to Appeal was heard, and leave to appeal was granted. The Notice of Motion returnable on 29 May 2000 was stood over to the hearing of the appeal. The appellant called on a Notice to Produce to Mr Glanfield. Paragraphs 1 and 2 of that Notice to Produce were in substance the same as paras 1 and 2 of the subpoena with which Hunter J had dealt. Paragraph 3 sought production of the following document: Report of I Hill to Director General Attorney General’s Department, Laurie Glanfield, as referred to in letter L Glanfield of 14 June 2000, being the report of I Hill into the conduct of [the Taxing Officer], subject of complaint by K. Wentworth. Counsel for Mr Glanfield objected to producing the documents to the Court. A direction was made that they be kept in a sealed envelope pending the hearing of the appeal, to the intent that the question of whether the documents should be produced to the Court, and, if so, whether inspection by the appellant would be permitted, would be determined, if necessary, at the hearing of the appeal. Page 16 of 49 Wentworth v Wentworth, [2000] NSWCA 350 Matters not pressed [100] As it happened there was no controversy during the hearing of the appeal about Deputy Registrar Studdert’s order. There was little independent controversy about the Notice to Produce. [101] So far as Deputy Registrar Studdert’s order is concerned, on 19 July 2000 the appellant filed the Notice of Appeal. It named Mr Glanfield as the second respondent and Mr Hill as the third respondent. Counsel appearing for Mr Glanfield and Mr Hill had indicated on 17 July 2000 that he only wished to be heard in relation to Hunter J’s order. Since the appellant joined those parties to the appeal without any order to do so, the dispute about the correctness of Deputy Registrar Studdert’s orders appears entirely academic. Further, when in the course of her oral argument on the appeal the appellant was asked on several occasions to identify the matters in controversy and deal with all those not already dealt with, she did not mention Deputy Registrar Studdert’s order, and she did not advance oral argument in criticism of it. In any event, in my opinion the order was correctly made. Even if it had not been, it would be pointless to debate and rule on the issue of whether it was correct, since in every sense it has been overtaken by events. The appellant at one stage appeared to fear that the second and third respondents were going to “intermeddle” in the argument on issues other than the correctness of Hunter J’s orders about the subpoenas: on the hearing of the leave application they said they would not and on the hearing of the appeal they did not. [102] So far as the Notice to Produce is concerned, at the hearing of the appeal it was not called on and no oral application for inspection was made. It, too, was not specifically identified by the appellant as a matter in controversy when the court asked which matters were in controversy. On the other hand, the appellant said in oral argument (transcript p 26 line 35) that the third document referred to in it is “now sought”. If the Notice to Produce does remain a live issue, the resolution of that issue is governed by the same considerations as the subpoenas ruled on by Hunter J: see [250]–[254] below. What costs are being sought? [103] In order to understand what is in issue in this appeal, it is necessary to set out the orders of Santow J which were made and entered on 23 August 1999. The material orders are as follows: 1. The defendant pay the costs of these proceedings before me on a party/party basis up to 15 July 1997. 2. As to the costs to the parties of these proceedings before me after 15 July 1997, there be no order as to costs. 3. The following costs are reserved with leave to the parties to make application in relation to such costs, but only after the completion of the further assessment of the costs of the original proceedings before his Honour Justice Bryson to be conducted pursuant to Regulation 80 of the Regulations to the Legal Profession Act. The reserved costs are: (a) the costs of the taxation hearing before [the Taxing Officer]; (b) the costs of any proceedings in relation to the taxation incurred subsequent to the completion of the reconsideration on 16 August 1994, as have not been the subject of orders as to costs by this Court or the Court of Appeal, including orders to the effect that there be no order as to costs; and (c) costs, if any, in relation to the conduct of the said taxation incurred on or prior to 16 August 1994 as have not been the subject of orders as to costs by this Court or the Court of Appeal (an ‘order as to costs’ including orders that there be no orders as to costs) being costs which are not precluded from recovery by, or inconsistently with, the terms of the judgment and orders of the Court of Appeal of 21 February 1996 but as may be varied or supplemented by the Court of Appeal if it so determines. upon any future application and whether such Court of Appeal judgement be treated as interlocutory or final. … 5. The plaintiff’s application that the Crown in right of the State of New South Wales pay the costs of these proceedings and related matters, be dismissed with no order as to costs. 6. The plaintiff’s application that [the Taxing Officer] pay the costs of these proceedings and related applications be dismissed with no order as to costs. … [104] In lieu of Santow J’s orders, the Notice of Appeal seeks the following: Page 17 of 49 Wentworth v Wentworth, [2000] NSWCA 350 Orders of Santow J except for the order that PFN Wentworth pay costs up until 15/7/99 be set aside, and in lieu thereof order that 1. Costs of the proceedings before Santow J in respect of the bias of [the Taxing Officer] and all costs included to those proceedings to be paid by a) PFN Wentworth; or alternatively b) [the Taxing Officer] jointly and severally with PFN Wentworth; or alternatively c) the Attorney General as the State of NSW jointly and severally with PFN Wentworth and [the Taxing Officer]; and that interest be allowed on these costs from October 1993 or alternatively from February 1998. 2. Costs of the taxation and reconsideration before [the Taxing Officer], the review of that reconsideration by Master McLaughlin, and the costs of the Appeal before the Court of Appeal, and all costs incidental to those proceedings to be paid by a) PFN Wentworth; or alternatively b) [the Taxing Officer] jointly and severally with PFN Wentworth; or alternatively c) the Attorney General as the State of NSW jointly and severally with PFN Wentworth and [the Taxing Officer] and that interest be allowed on these costs from October 1992 or from 1995. [105] Paragraph 1 of the orders sought by the appellant relates to the costs of the proceedings before Santow J (dealt with in para 1, para 2, part of para 5 and part of para 6 of the orders of 23 August 1999). In his reasons for judgment dated 9 April 1999 Santow J called these the “review costs”. [106] Paragraph 2 of the orders sought by the appellant relates to the costs otherwise incurred, principally costs before the Taxing Officer, Master McLaughlin and the Court of Appeal. In his reasons for judgment dated 9 April 1999 Santow J called these the “non-review costs”. [107] Santow J was of the opinion that no order should be made in relation to “non-review costs” so far as they related to the costs of Court of Appeal proceedings. His reasons were as follows: 18. Self-evidently, a single judge of this Court could not add to or vary any cost order made by the Court of Appeal, such as, for example, that made in the judgment to which I have earlier made reference, delivered on 21 February 1996. There the Court of Appeal declined to make any order as to costs in relation either to Miss Wentworth’s appeal or the Defendant’s cross-appeal. As was said by Gaudron J in the context of an application for special leave to appeal in Leila Shaw v John Crichton and Neil Crichton [1999] HCA S 101/98, 12 March 1999) para 55: … court orders are not subject to attack in collateral proceedings; more particularly, given the court’s hierarchy, orders of this Court are not subject to collateral attack in inferior courts.’ Gaudron J referred to this as a well established principle. Indeed it is axiomatic and applies mutatis mutandis to a single judge of this court in relation to the Court of Appeal”: (1999) 46 NSWLR 300 at 308. [108] So far as concerns “non-review costs”, apart from those incurred in “the actual conduct of the taxation before [the Taxing Officer]”, Santow J declined to make any order for the following reason: 20. Dealing with the items comprised in the non-review costs that did not involve appearances before the Court of Appeal, it is clear from the Court of Appeal judgment, in particular Clarke JA’s criticism that Miss Wentworth embarked on that attack before the Master without first seeking a reconsideration of the taxation before the Taxing Officer, that the Court of Appeal not only did not but would not have awarded any costs in relation to those applications comprised in the collateral attack; see Clarke JA at 10 quoted at page 17 of my judgment of 6 February 1998. I see no basis for my doing otherwise”: (1999) 46 NSWLR 300 at 308–9. [109] Santow J then said: Page 18 of 49 Wentworth v Wentworth, [2000] NSWCA 350 what remains to be considered in the non-review costs is the actual conduct of the taxation before [the Taxing Officer]. Santow J decided that the Taxing Officer enjoyed an immunity against any costs order. He concluded: I am satisfied that the findings made in my judgment of 6 February 1998 are not such as to justify any order for costs against [the Taxing Officer] whether review costs or, to the extent capable of being made, any non-review costs”: (1999) 46 NSWLR 300 at 317–8 [58]. He reserved liberty to the appellant and the first respondent to apply for an order relating to those costs after the assessment of the costs of the main proceedings had been completed. The procedural history of the appellant’s bias application [110] Before turning to the detail of the trial judge’s reasoning and the appellant’s arguments criticising it, it is useful to summarise the detailed history of the appellant’s application in relation to the alleged bias of the Taxing Officer. [111] This history began on 8 October 1993, when a Notice of Motion was filed. (Santow J’s statement on p 2 of his 6 February 1998 judgment that it was dated 17 November 1993 is incorrect.) The appellant was the claimant. The only named respondent was the first respondent to this appeal, the defendant in the proceedings. Paragraph 1 sought the following order: Pursuant to Part 61 rule 3(1) and Part 61 rule 2 the determination and decision of [the Taxing Officer] not to disqualify himself for bias, malicious bias, personal bias and predetermination be reviewed by the Court and that the Court order that [the Taxing Officer] conduct no further matter in the taxation of the bill of costs of the Plaintiff in this matter. The Notice of Motion filed on 8 October 1993 came before Brownie J. He stood the matter over to 12 November 1993 pending the supply by the appellant of certain particulars. [112] On 12 November 1993 Brownie J made certain procedural directions. He adjourned the matter to 30 November 1993. [113] On 30 November 1993 Brownie J indicated that the likely duration of the hearing was such that it was unsuitable for the duty judge. He adjourned it until 8 December before the Registrar for call-over. [114] On 8 December 1993 the Registrar fixed the matter for hearing before Santow J on 28 February 1994. [115] On 23 December 1993, in the course of dealing with other aspects of the litigation, Santow J indicated that the hearing of para 1 of the Notice of Motion was not a matter which he was satisfied could conveniently proceed on 28 February 1994 because of another controversy between the parties listed for that day and the succeeding days. He suggested that the parties contact the Associate to Cohen J in order to see whether he had available dates. [116] On 1 February 1994 at a directions hearing concerning another controversy between the parties, Santow J again indicated that he would not have time to deal with para 1 of the Notice of Motion of 8 October 1993 and again suggested that the parties approach Cohen J, the expedition judge, to obtain a hearing. [117] On 7 March and 19 August 1994 when other aspects of the parties’ controversies were before Master McLaughlin, the fact that para 1 of the Notice of Motion filed on 8 October 1993 was still awaiting hearing was the subject of discussion, and the Master expressed concern about it. [118] Nothing appears to have been done until aspects of the controversies between the parties came before Master Macready in 1996. This came about because on 21 February 1996 para 4 of the orders made by the Court of Appeal provided: The proceedings be remitted to the Equity Division for the proper determination of the Review. The remitter came before Master Macready on several occasions before 25 June 1996. In reasons for judgment delivered on that day, Master Macready noted that the appellant had identified in written submissions to him certain “fundamental errors” in relation to the Taxing Officer’s reconsideration. Two of these were: 4. The [Taxing Officer] failed to disqualify himself for bias. 5. The [Taxing Officer] failed to treat the plaintiff courteously and appropriately during the taxation” (page 3). Under the heading “The failure of the [Taxing Officer] to disqualify himself for bias and the failure to treat the plaintiff courteously” (page 17) Master McLaughlin first noted the history of the Notice of Motion between the time of its filing on 8 October 1993 and the discussion of it before Master McLaughlin on 7 March and 19 August 1994. He noted Page 19 of 49 Wentworth v Wentworth, [2000] NSWCA 350 that paragraph 1 of the Notice of Motion had not been dealt with. He expressed the view (which on 28 June he decided was not correct) that he lacked power to deal with allegations of bias. Accordingly he thought that the matter should be pursued before a judge. He indicated the consequences for the appellant of success in her bias application and suggested that she consider her position. [119] On 28 June 1996 Master Macready published reasons for judgment in which he recorded that the appellant did not wish to abandon her bias application. He said that he held the view that it was appropriate that those proceedings be heard prior to the balance of the review continuing. He acknowledged that he did have power to deal with the matter, but expressed the conclusion that it was not appropriate for him to do so because of the seriousness of the allegations. He said (page 3): Apart from the fact of the seriousness of the matter, I also think that the general urgency in this matter is such that it is preferable that a judge deal with it in the first instance so that there is not a further appeal process involved from a decision of a master to a judge. One thing that is becoming clear in this matter is that the matter of the taxation has been going on far too long, the bill having been filed I think in 1992. In order to progress it, what I propose to do is to list par 1 in the motion before the expedition judge on next Friday and I understand that there are two expedition judges, one is Santow J and one is Simos J … [120] On the following Friday, 5 July 1996, the matter came before Simos J. He ordered, inter alia, that the Taxing Officer be advised of the proceedings in the following manner: 2. Grant leave to the Plaintiff, if so advised, to join [the Taxing Officer] as a party to the proceedings. 3. Direct the Plaintiff on or before 12 July 1996 either to make [the Taxing Officer] a defendant or, alternatively, to give him notice of the proceedings, and in either case to serve upon him or refer him to all affidavits and other material to be relied upon by the Plaintiff. He stood the matter over before himself on 22 July 1996. [121] On 22 July 1996 the matter in fact came before Santow J, who ordered that the matter proceed by pleadings properly particularised. [122] On 6 August 1996 the appellant filed a Statement of Claim. [123] On 10 September 1996, pursuant to directions of Santow J, the appellant and the first respondent addressed argument to the issue of whether the Taxing Officer should be joined as a party. The Notice of Motion had not been amended pursuant to the leave granted by Simos J, and the Statement of Claim did not name the Taxing Officer as a party. [124] On 12 September 1996 Santow J delivered a reserved judgment. He noted that the appellant sought no costs or other relief against the Taxing Officer. He also noted that the appellant: left open the possibility that, depending on the Judgment in these proceedings, she may wish to consider whether to bring any action against the [Taxing Officer] but emphasised she has no such action presently in contemplation. I make no comment on whether she would be permitted or able to bring any such action. Santow J said that both parties “advanced reasons of some considerable weight why he should not be joined, even were he to request to be so joined” (page 4). Santow J concluded that since the Taxing Officer had not elected to apply to be joined, it was inappropriate that the court should on its own motion order that he be joined. Santow J noted that given the first respondent said he would only play a limited role in the hearing, the court would be left in the position of having to determine the serious allegations made against an officer of the court without an effective contradictor. Accordingly he concluded that it was appropriate to invite the Attorney-General to intervene in the proceedings or appear as amicus curiae. [125] There is in the file an unverified Defence of the first respondent dated 17 September 1996 (which was replaced by a verified Defence in the same form filed on 20 December 1996, pursuant to Direction 6 made by Santow J on 16 December 1996). [126] On 1 October 1996 the appellant filed a Reply. [127] On 4 October 1996 Santow J declined to accede to an application by the appellant to set aside his judgment and orders of 12 September 1996. [128] On or about 9 December 1996 the Attorney-General declined to intervene, and postponed any decision about appearing as amicus curiae. Page 20 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [129] The hearing before Santow J proceeded on five days in April 1997. From 15 July 1997 the first respondent ceased to appear. Santow J repeated the invitation to the Attorney-General, who decided to appear as amicus curiae, over the objection of the appellant. The hearing proceeded on a further twelve days in September- December 1997. Judgment was given on 6 February 1998. It was apparently not until 1 July 1998, when Santow J made orders reflecting the reasons for judgment delivered on 6 February 1998, that the appellant changed her decision, reflected in the Notice of Motion and Statement of Claim, not to seek costs against the Taxing Officer. Thus on 9 April 1999 Santow J said (46 NSWLR 300 at 305 [11]): When those orders were made [on 1 July 1998], the [appellant] foreshadowed that she wished to have the opportunity to put submissions regarding the conclusion reached in my judgment that no order as to costs should be made in relation to the present proceedings and in particular, that she would be putting submissions that costs orders should be made against both the [first respondent] and, as had not previously been foreshadowed, against [the Taxing Officer]. [130] Numerous oral and written submissions on costs were provided by the appellant and the Attorney-General as amicus curiae between 13 August 1998 and 25 March 1999. Oral argument took place on 23 and 25 March 1999. However, it was not until 19 March 1999 that the appellant notified the Taxing Officer of her intention to seek costs orders against him, and it was not until 29 March 1999 that the Taxing Officer was invited to file submissions in relation to costs. He was given until 6 April 1999. On 9 April 1999 the trial judge said orally, when his written reasons for judgment were published: Finally, I should record for the transcript that my Associate wrote to the Defendant [, the Taxing Officer] and through the Crown Solicitor’s Office my Associate was also in touch with the Crown in right of New South Wales, and invited any submissions to be made if desired. None have been. A copy of the relevant transcripts as collated by Miss Ludlow (Crown Solicitor’s office) including a copy of my judgment of 6 February 1998 were sent. [131] Despite the concerns and efforts of Santow J, the structure of the proceedings before him as they unfolded was scarcely satisfactory. Up to 1 July 1998, serious allegations were made against the Taxing Officer, but no relief was sought against him, and he did not apply to be joined as a party. Nor was he joined as a party. After 1 July 1998, relief of a potentially substantial kind was sought against him, and also against the State of New South Wales, but again neither he nor it became a party. The departure of the first respondent from the proceedings from 15 July 1997 caused them to become even more lopsided. The position has not improved on the appeal. Despite the important principles affecting registrars which are in issue, and despite the financial impact of the appellant’s arguments on the Taxing Officer and the State, neither he nor it are parties to the appeal. In oral argument the appellant said that she supplied relevant documents “to the Crown Law Officer and they returned them to me, … they would not accept service of the documents for the” Taxing Officer (transcript page 6 lines 31–35). There was no service on the State. Two officers of the State of New South Wales have been joined as second and third respondents, but neither to argue the point of principle nor to protect the financial interests of the Taxing Officer and the State: their representation has played only a limited role in relation to two subpoenas. It was not until one working day before the appointed day for oral argument on the appeal that the Attorney-General indicated that he would seek leave to intervene as amicus curiae. He relied on substantial written submissions after that leave was granted. This caused the appellant, after the end of the oral argument, to make an application, to which the Court acceded, to file further written submissions by 24 November 2000, which she did. [132] One other vital circumstance is that the appellant appeared in person before Santow J and on the appeal. She has placed seven sets of written submissions, which are substantial in size, before this Court. In all the circumstances the mode by which and the persons by whom argument was advanced to the court were not of a character which should serve as a precedent. The Taxing Officer’s derivative immunity: Santow J’s reasoning [133] Santow J refused to make any costs order against the Taxing Officer or the Crown for the following reasons. [134] Though the court has jurisdiction to make costs orders against non-parties, including its own officers, the Taxing Officer enjoyed a “derivative immunity” from suit “as for a judicial officer of a superior court”. This is either: (a) by reason of connection with the judicial proceedings in this Court as a superior court under which the relevant costs orders were made, that are then quantified by the taxation certificate; or (b) by reason of the taxation process being analogous to the judicial process, in replicating a judicial adjudication in which competing contentions are determined by applying the law to the facts as found, with its location at the level Page 21 of 49 Wentworth v Wentworth, [2000] NSWCA 350 of a superior court being justified both by its connection to a superior court judicial process ((a) above) and this best serving the public interest underlying such immunity.”: (1999) 46 NSWLR 300 at 316–7 [53]. [135] At 333 [30]–[31], Santow J held that the immunity existed unless judicial officers knowingly acted outside their jurisdiction or acted otherwise than in the bona fide exercise of their offices and under the belief, albeit perhaps mistaken, that they had jurisdiction (Sirros v Moore [1975] QB 118 at 135–136 and 149 per Lord Denning MR and Ormrod LJ; Moll v Butler (1985) 4 NSWLR 231 at 240–2 per Wood J; Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38 at 40 per Kirby P (as qualified by Priestley JA (Hope JA concurring) in Rajski v Powell (1987) 11 NSWLR 522 at 539); Rajski v Powell (1987) 11 NSWLR 522 at 529 per Kirby P). [136] “Jurisdiction” does not have the meaning developed in the administrative law doctrine of judicial review. As the New Zealand Court of Appeal said in Nakhla v McCarthy [1978] 1 NZLR 291 at 301: We are in no doubt that when the principle of judicial immunity is discussed in the cases in relation to acts done within the jurisdiction of the judge that word must be regarded as referable to the broad and general authority conferred upon his court and upon himself to hear and determine issues … ‘”Authority to decide” is the test, not the mode of decision nor the manner in which the powers … have been exercised or not exercised’”. That passage was approved by Wood J in Moll v Butler (1985) 4 NSWLR 231 at 245 and by Kirby P in Rajski v Powell (1987) 11 NSWLR 522 at 532 and 534. [137] Santow J then held that the Taxing Officer did not fall outside this immunity because on 6 February 1998 Santow J had not found “any deliberate contravention of the rules of natural justice”, had not found “that the taxing officer deliberately acted beyond power” and had not found “actual bias”: at 317 [57]. [138] Santow J then refused to apply the principles applicable to the tort of misfeasance in public office by analogy, because that tort was “intentional”: at 317 [55]. The tort “is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power”: Northern Territory v Mengel (1995) 185 CLR 307 at 345. Santow J said (at 317 [55]): the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves the foreseeable risk of harm. It noted … that there seems to be much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power … The absence of relevant findings in the 6 February 1998 judgment just noted meant that there was no applicable analogy with the tort of misfeasance in public office. [139] Santow J then held that the issue of the Crown’s vicarious liability for any liability on the part of the Taxing Officer did not arise, since there was no liability on his part: at 318 [59]. Derivative immunity: the appellant’s arguments [140] The appellant put arguments against Santow J’s conclusions which may be grouped under the following heads. It is possible that to some extent they go beyond what was put to Santow J. [141] First, no question of any immunity from a costs order on the Taxing Officer’s part could arise, because Pt 52A r 4(5)(e) gave the Court power to make a costs order against him and there was no express limitation on that power. [142] Secondly, even if some possible immunity might otherwise exist in a Pt 52A r 4(5)(e) application, she submitted that in truth taxing officers had no immunity from a costs order. This was because they do not exercise a judicial function (ie resolving a dispute about existing rights and obligations) but an arbitral function (ie determining what legal rights and obligations should be created by the issue of a certificate of taxation). Alternatively, it was because taxing officers exercise a purely administrative function. [143] Thirdly, she submitted that even if there was any immunity, the Taxing Officer was acting outside it because he lacked good faith and was biased. [144] Fourthly, in a submission which overlapped with the third, she submitted that the Taxing Officer had committed the tort of misfeasance in public office and thereby lost immunity. [145] Fifthly, in a submission which overlapped with the third and fourth, she submitted that the Taxing Officer knowingly breached a duty of care and thereby lost any immunity. [146] Sixthly, she submitted that the Crown was vicariously liable for the Taxing Officer’s conduct or alternatively directly liable. A procedural problem Page 22 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [147] In my opinion there is one fundamental point, if it were necessary to rest the outcome on this basis, on which this appeal must founder at the outset so far as it concerns the Taxing Officer and the Crown. It stems from the unsatisfactoriness of the procedural structure which the appellant created in relation to the position of the Taxing Officer and the Crown. [148] At all periods of time between the filing of the Notice of Motion on 8 October 1993 and the reasons for judgment of Santow J on 6 February 1998 leading to the orders of 1 July 1998, the Taxing Officer was not a party to the proceedings proper and was not a respondent to the Notice of Motion. Nor was the Crown. The Notice of Motion and the Statement of Claim made serious charges against the Taxing Officer, but sought no relief against him. It was only sought against the first respondent. Though the orders of Simos J of 5 July 1996 contemplated his joinder and though Santow J encouraged it, the parties opposed this course and, since no orders were sought against him, arguably their stand was justified. Given that no order was sought against him, it could not be said that he “ought to have been joined as a party” or that he was “a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon” within the meaning of Pt 8 r 8(1) of the Supreme Court Rules. In an authority relied on by the appellant for other purposes, News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 525, the Full Federal Court (Lockhart, von Doussa and Sackville JJ) said: Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. The Taxing Officer would probably not have had standing to seek leave to appeal in relation to Santow J’s reasons for judgment of 6 February 1998, since appeals are against orders, not reasons, and the consequential orders of 1 July 1998 did not affect him. [149] In the period between 1 July 1998 and 23 August 1999, when Santow J made the costs orders complained of, the Taxing Officer continued not to be a party to the proceedings, a respondent to the Notice of Motion filed on 8 October 1993, or a respondent to any new Notice of Motion articulating with precision the orders sought against him. The same was true of the Crown. The Taxing Officer was the recipient, many months after the appellant on 1 July 1998 announced her intention to seek costs orders against him, of notice on 19 March 1999 that that was her intention. He was not invited to file submissions until 29 March 1999, and was then given eight days in which to do so. Had Santow J made costs orders against him as requested, he would have had standing to seek leave to appeal against them and to contend that the costs orders lacked any basis, since he was not party to the processes which led to Santow J’s findings of 6 February 1998, on which any costs order would have depended. He could also have argued that the orders were defective because of his non-joinder, which was not cured by communications from time to time advising him of the proceedings. [150] In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 523–527 the Full Federal Court (Lockhart, von Doussa and Sackville JJ) held, following the opinion of the Judicial Committee of the Privy Council delivered by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55–56, that: [a]n order which directly affects a third person’s rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside. An order that the Taxing Officer pay money to the appellant is an order affecting his liabilities to her. [151] In News Ltd v Australian Rugby Football League Ltd there were players and coaches employed by clubs which proposed to engage in a rebel rugby league competition. The proceedings were designed in part to stop that rebel competition. Some of the orders made had a material impact on the players and coaches. For example, Order 12(a)-(b) was a declaration that certain respondents held in trust for one applicant all the rights which the relevant respondents had in any contract with identified players or coaches. Order 15 was a mandatory injunction that certain respondents give notice in writing to players and coaches employed by those respondents that they were to play for other teams and in another competition. Order 15A was a negative injunction restraining certain respondents from banning any player or coach who failed to comply with O 15. Order 15B was a mandatory injunction that certain respondents, if so requested by one applicant, revoke notices under O 15 and issue new notices of the character described in O 15. [152] The Full Federal Court held that the failure to join the players and coaches as parties was not cured by a letter which had been sent to the players on 10 August 1995, about six weeks before the trial began on 25 Page 23 of 49 Wentworth v Wentworth, [2000] NSWCA 350 September 1995, enclosing a copy of the orders sought and indicating that the respondents would not oppose an application by players to make submissions about the orders. The Full Federal Court said (at 526–7): The orders sought in the proceedings, read without the pleadings that preceded them, gave an inadequate description of the scope and possible effect of the orders sought. They were not likely to be readily understood by people without legal training. The sentence to which the letter gave emphasis had the potential to give comfort to the players that no action on their part was necessary. In particular, the copy of the orders sought, which was enclosed with the letter, failed to give notice of Orders 12(a), 15, 15A and 15B, which were ultimately made. These orders directly affect the Super League players’ and coaches’ rights against, or liabilities to, their Super League employers. They do so in a way that restricts their freedom to choose the employer for whom they would work … This is likely to be a matter of fundamental importance, at least to many of them. In our opinion, these orders do in a direct and substantial way affect the obligations and rights of the players (some of whom were not subject to player contracts with any of the clubs when they signed Super League employment contracts) to and against parties to the first cross-claim. The same applies to the coaches. Those observations must be borne in mind in considering the notice that the Taxing Officer was given. [153] The Full Federal Court also said that the non-joinder of the players and coaches was not cured by the affording of a chance to put submissions after judgment was delivered on 23 February 1996 and before orders were made on 11 March 1996. The Court said (at 527): In our opinion, the non-joinder of the players and coaches, to the extent that orders made did so affect them, is not cured by the fact that they were permitted to make submissions after the delivery of judgment to the trial judge as to the form of the orders. By that stage, they had been deprived of the opportunity to participate in the trial of the issues that had already been determined in a way that the trial judge thought required redress in terms of the orders made. It follows that, regardless of whether Orders 12(a), 12(b), 15, 15A and 15B should be set aside on other grounds, they should be discharged by reason of the failure of the cross-claimants to join the Super League players and coaches in the proceedings. [154] The general principles stated in News Ltd v Australian Rugby Football League Ltd were referred to approvingly by McHugh J in Victoria v Sutton (1998) 195 CLR 291 at 316–7. [155] The notice given to the Taxing Officer of the proceedings in the period up to 1 July 1998 consisted of: (a) what he was told in consequence of Direction 3 made by Simos J on 5 July 1996, by which the appellant was directed “to give him notice of the proceedings, and … to serve upon him or refer him to all affidavits and other material to be relied upon by” the appellant; (b) what he was told in consequence of Santow J’s Direction of 4 October 1996 to the appellant in the following terms: I further direct that the [appellant] provides a copy of all materials not hitherto provided to [the Taxing Officer] concerning the [appellant’s] claim of bias and relied upon by the [appellant], upon request in writing by or on behalf of [the Taxing Officer], and whether or not so requested, that the [Taxing Officer] provide a copy of the affidavit of Ms Norton of 24 November 1993, the Plaintiff’s Statement of Claim, the Statement of Defence, all of the written submissions of the Plaintiff and Defendant in relation to the matters dealt with in my Judgment of 12 September 1996 and this Judgment, together with a copy of both Judgments”; (c) what he was told in consequence of Direction 4 made by Santow J on 16 December 1996 which was in the following terms: A copy of to-day’s transcript and of these orders and of my [Associate’s] facsimile transmission of 9 December 1996 shall be provided by the [Appellant to the Taxing Officer] within seven days from the time that the [Appellant] receives the relevant transcript. [156] It is proposed to proceed on, and not cast any doubt on, the assumption that the Taxing Officer was given notice and documents as directed. Though the materials given were much more extensive than those supplied to the players in News Ltd v Australian Rugby Football League Ltd, and though the Taxing Officer was in a much better position than the players to understand the significance of what was supplied, the materials would not have Page 24 of 49 Wentworth v Wentworth, [2000] NSWCA 350 indicated that any orders would have been sought against the Taxing Officer, because none were sought. In any event, the directions would not have caused the Taxing Officer to have been supplied with the transcript of evidence given in the course of the hearings before Santow J in 1997, or of the affidavits of the appellant and her solicitor dated 16 December 1997. Even if they had been supplied, these materials and the materials which were supplied were of little use to the Taxing Officer, for it is far from clear that even if he had sought to intervene he would have been permitted to on the basis of the law as stated in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524–5. That position is not altered by the fact that on 10 September 1996 the appellant, to use the words of Santow J in his judgment of 12 September 1996, which was directed to be supplied to the Taxing Officer, “left open the possibility that, depending on the Judgment in these proceedings, she may wish to consider whether to bring any action against the [Taxing Officer] … ”. The Taxing Officer may well have formed the view that the appellant was foreshadowing the possibility of bringing an independent set of proceedings against him and that it was best to wait until that happened. [157] After 1 July 1998, in contrast to the position before that date, the appellant was seeking orders which affected the liabilities of the Taxing Officer and the Crown directly. The vital question is whether the Taxing Officer and the Crown were necessary parties for the costs hearing before Santow J. According to the Full Federal Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 525: Where the question [of whether a necessary party has been joined] arises after final orders have been made in the proceedings, the inquiry must be directed to the orders actually made, or which, on appeal, it is contended should be made: cf Associated Grocers Co-Operative Ltd v Hubbard Properties Pty Ltd (1986) 42 SASR 321 at 341. [158] In that case Jacobs J said: The notice of cross-appeal is dated 13th September, 1985 and it is to be observed that at that time Coles was not, and never had been, a party to the action. The learned trial Judge had pointed to this difficulty in the course of the trial, particularly in dealing with the plaintiff’s claim for specific performance and an injunction, which involved a challenge to the agreement for lease said to have been entered into between Hubbards and Coles. In resisting that claim, counsel for Hubbards was able to inform the trial Judge that he had instructions to resist it on behalf of Coles as well as on behalf of Hubbards. In the result, the primary judgment did not adversely affect the interest of Coles, and there the matter was allowed to rest for the time being. The notice of cross-appeal, however, posed a further direct challenge to the purported agreement for lease between Hubbards and Coles in the terms already stated, and Coles accordingly applied at that late stage to be joined in the action as a defendant. The application was opposed by the plaintiff but it was granted and, in my opinion, properly granted, by order of a Master dated 19th November, 1985. The plaintiff objected to the joinder on the ground that it did not seek, and never had sought, any relief against Coles, but that begs the question, because the relief it sought against Hubbards in the action, and in the cross-appeal would, if granted, quite plainly affect Coles to the detriment of Coles. It was necessary for the due administration of justice, and to avoid a multiplicity of suits, that Coles should be heard as a party, and should be bound by the judgment in the action. [159] While Santow J did not make orders adverse to the liabilities of the Taxing Officer or the Crown, parts of the Notice of Appeal, and the contentions in support of them, do seek such orders. Order 1(b) of the Notice of Appeal is that the Taxing Officer pay the costs of the proceedings before Santow J. Order 2(b) is an order that the Taxing Officer pay the costs of the taxation and reconsideration before himself, the review of that reconsideration by Master McLaughlin and the costs of the appeal from that review. Order 7 seeks an order that the costs of the present appeal be paid by the Taxing Officer. The corresponding orders affecting the Crown are Os 1(c), 2(c) and 7. [160] The above reasoning suggests that the Taxing Officer and the Crown should have been joined by the appellant as parties to the proceedings (ie as defendants: see s 19(1) of the Act). It was not for the Taxing Officer or the Crown to seek to be joined as parties. And, contrary to the appellant’s submissions of 24 November 2000, para 27, mere service of materials relating to the case on the Taxing Officer did not make him a party. Normally the non- joinder of the Taxing Officer would have the outcome that no costs orders could be made against him. Is that outcome affected by the provisions of the Supreme Court Rules, particularly Pt 52A r 4(3), which provides that a person shall not be made a party for the purpose of making an application for costs against the person? [161] Part 52A r 4(3) must be read in the legislative context of which it forms part. The power of the court in relation to costs is statutory. Section 76(1) of the Supreme Court Act provides: Subject to this Act and the rules and subject to any other Act — (a) costs shall be in the discretion of the Court; (b) the Court shall have full power to determine by whom and to what extent costs are to be paid; and Page 25 of 49 Wentworth v Wentworth, [2000] NSWCA 350 (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis. Unless a power to order costs can be found in that Act, any other Act, or the rules, it does not exist: Leicester v Walton (unreported, New South Wales Court of Appeal, 22 November 1995), p 12. The area of operation of s 76(1) necessarily depends on the scope, as it exists from time to time, of the provisions of any other enactments dealing with costs: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 183; Leicester v Walton (unreported, New South Wales Court of Appeal, 22 November 1995), p 12. [162] At the time when the applicant applied to Santow J for costs orders against the Taxing Officer and the Crown, the relevant provision in the Supreme Court Rules was Pt 52A r 4. It provided: Powers of the Court generally (1) The powers and discretions of the Court under section 76 of the Act (which relates to costs generally) shall be exercised subject to and in accordance with this Part. (2) Subject to subrule (5), the Court shall not, in the exercise of its powers and discretions under section 76 of the Act, make any order for costs against a person who is not a party. (3) Subject to subrule (4), Part 4 rule 4A and Part 11 rule 1A, a person shall not be made a party for the purpose of making an application for costs against the person. (4) Subrule (3) shall not apply — (a) where the person is otherwise a proper party; or (b) to a claim for relief against the person under section 78 of the Act. (5) Subrule (2) shall not limit the power of the Court to make any order — (a) under rule 43 or Part 42 rule 7(f); (b) for payment for a relator in proceedings of the whole or any part of the costs of a party to the proceedings; (c) for payment by a person who — (i) is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings; and (ii) fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach; (d) for payment by a person who has committed contempt of court or an abuse of process of the Court of the whole or any part of the costs of a party to proceedings occasioned by the contempt or abuse of process; (e) in exercise of its supervisory jurisdiction over its own officers; (f) against a person who purports without authority to conduct proceedings in the name of another person; or (g) against a person who commences, carries on, enters an appearance in, or defends proceedings as the authorised director of a corporation, or purports to do so. (6) Save as mentioned in subrules (1) to (5), this Part has effect subject to the Act and to the rules and subject to any other Act. The precursor to this rule was Pt 52 r 4. The provisions of Pt 52 r 4(2)-(6) were introduced by Supreme Court Rules (Amendment No 274) 1993. As paragraph 7 of the accompanying explanatory note said: The object of the amendment … is to restrict the power of the court in making a costs order against a person who is not a party. The effect of Pt 52, and now Pt 52A, is to abolish several traditional categories of jurisdiction to order costs against non-parties discussed in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 182–190 by Mason CJ and Deane J, and in particular the newly formulated category relating to insolvent persons discussed at 192–3. While opinions might differ as to the desirability of this abolition, the meaning of Pt 52 and Pt 52A is in this respect plain. Page 26 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [163] The rules referred to in Pt 52A r 4 do not bear on the present problem. Part 4 r 4A deals with the carrying on of proceedings by a corporation otherwise than by a solicitor and by a director. Part 11 r 1A deals with corporations defending proceedings otherwise than by a solicitor and by a director. Rule 43 of Pt 52A deals with costs orders against solicitors. Part 42 r 7(f) deals with orders for costs against persons in default of an order to attend. [164] It follows from Pt 52A r 4 that the only possible source of power to order costs against the Taxing Officer was Pt 52A r 4(5)(e). Part 1 r 8 provides: “’officer of the Court’ does not include a solicitor, barrister or liquidator”. It is clear that both the Act and the rules contemplate registrars as being “officers of the Court”. Thus s 121(1) of the Act provides: “In this section ‘officer’ means a registrar, taxing officer, or other officer of the Court”. Section 124(2)(b) provides that the rules may make provision for or with respect to “the appointment of a Judge, master, registrar or other officer of the Court or other person as an arbitrator or referee”. Part 72 r 3(2) provides: A Judge, master, registrar or other officer of the Court may not act as a referee otherwise than with the concurrence of the Chief Justice. [165] There are difficulties in the construction of Pt 52A r 4(5)(e). Some of the usages just set out indicate that Judges and masters can be officers of the court. The idea that either of those classes are amenable to costs orders is an unusual one. The idea that Judges are officers is also contradicted by the fact that Pt 8 of the Act is headed “Officers”, Pt 8 Div 1 is headed “Masters” and Pt 8 Div 2 is headed “Registrars and other Officers”. But the construction of Pt 52A r 4(5)(e) need not be examined further. Assuming but not deciding that Pt 52A r 4(5)(e) gave Santow J jurisdiction to make a costs order against the Taxing Officer, the vital issue at present is whether the appellant’s non-joinder of the Taxing Officer is justified, and indeed mandated, by Pt 52A r 4(3). [166] In my opinion that subrule does not justify or mandate the non-joinder of the Taxing Officer, and does not avert the consequences which otherwise flow from that non-joinder. Part 52A r 4(3) does not mean that where a claim for costs is made against a non-party that non-party is not to be joined as a party. Rather, the point of Pt 52A r 4(3) is to prevent evasion of the generality of the prohibition enacted in Pt 52A r 4(2) on obtaining costs orders against persons who are not parties. It appears to have been thought that there was a risk of the prohibition being evaded by joining the non-party whom it is desired to make the object of the costs orders by simply joining that non- party as a party. That evasion is prohibited by Pt 52A r 4(3). But that prohibition in Pt 52A r 4(3) has a limitation where the non-party is “otherwise a proper party” and a non-party will be “otherwise a proper party” if the non-party falls within one of the paragraphs of Pt 52A r 4(5). Hence if it is desired to proceed against a non-party within one of those classes, the prohibition on non-joinder does not apply, and the general principles stated in News Ltd v Australian Rugby Football League Ltd require joinder. [167] In consequence, had Santow J made a costs order against the Taxing Officer, an appeal would have been allowed because the Taxing Officer had not been joined as a defendant. For the same reason, the appeal ought to be dismissed so far as its rests on a claim for a costs order against the Taxing Officer. [168] There is fundamental reasonableness in this outcome. Any other outcome would mean either that the Taxing Officer was bound by findings of fact arrived at on evidence which he had no opportunity as a party to challenge, meet, qualify or address on or that there should be a re-litigation of those findings of fact. Either conclusion is strongly against the public interest. [169] So far as the appeal to this Court is concerned, if the Taxing Officer and the Crown had been parties to the proceedings below, he and it would have had to have been joined as parties to the appeal, being affected by the relief sought in the Notice of Appeal: Pt 51 r 9(1). This highlights the vice in their non-joinder below. [170] In the circumstances of this case, it would not be appropriate to treat any orders against the Taxing Officer or the Crown which Santow J or this Court would otherwise have been minded to make as orders which should be made ex parte, open to be set aside by the Taxing Officer or the Crown on application: cf Chappuis v Filo (1990) 19 NSWLR 490 at 492 and 511–2. In that case the circumstances were very different in that the appellant had joined the affected person as the second respondent and had made endeavours to bring the existence of the appeal, which was urgent and had been expedited, to his attention, and the Court considered that the orders on appeal were not adverse to his interests. [171] The appellant put the following submission (submissions dated 17 December 1999, p 10, para 3.46): The rule making power s 124(1)(e) which allows the Rules Committee to make rules for regulating or prescribing any matter, does not have the effect of constraining the powers to award costs in the exercise of the [Court’s] discretion pursuant to s 76, to whom, by whom and to what extent, so that [the Taxing Officer] and the Attorney General both having been served with the process of the [appellant], claiming costs, and under the definition in s 19 (which has the effect of making them defendants although both declined to become parties to the proceedings) and in accordance with the findings in Knight [v FP Special Assets Ltd (1992) 174 CLR 178], can be made liable for costs upon the setting aside of the determinations of the [Taxing Officer] for bias. Page 27 of 49 Wentworth v Wentworth, [2000] NSWCA 350 The submission is unsound. Section 76 itself is expressed to be subject to the rules and thereby parliament has constrained the power to make costs orders by whatever limitations appear in the rules. It is not true that the Taxing Officer and the Attorney-General have been served with any “process”: they have only been notified of proceedings pursuant to court directions. Part 52A r 4 does not use the word “defendant” so as to make operative the definition of “defendant” in s 19(1) of the Supreme Court Act as including any person “served with notice of or entitled to attend any proceedings”. Even if it did, the context and subject-matter of Pt 52A r 4 indicates and requires that that part of the definition of “defendant” should not apply: see the opening words of s 19(1). Finally, nothing in Knight’s case specifically authorises a costs order against a person in the position of the Taxing Officer, and even if it did, it would have been superseded by Pt 52A r 4. [172] The same difficulty exists in relation to the non-joinder of the Crown as exists with the non-joinder of the Taxing Officer. (There is the further difficulty that the Crown is not referred to in Pt 52A r 4(5).) [173] On more than one occasion, the appellant contended that the non-joinder of the Taxing Officer did not matter because he was given notice of the proceedings. She thus appeared alive to the fact that the non-joinder created a potential problem. She endeavoured to overcome the problem by submitting (submissions of 24 November 2000 para 27), incorrectly, that the service of materials relating to the proceedings on the Taxing Officer meant that “technically [he became] a party to the proceedings thereby”. However, the appellant was not specifically directed to the issue of whether her non-joinder of the Taxing Officer was a fatal obstacle, and the Attorney-General did not take the point that it was a complete answer: rather, his position was simply that leave should be granted for him to be heard as amicus curiae because of the non-joinder and that the non-joinder was a discretionary factor pointing against a costs award. If the non-joinder were the only obstacle to the appellant’s success, there would be arguments in favour of permitting her to put a further submission to the court on that subject. But since in my opinion the appeal in relation to the Taxing Officer must be dismissed on other grounds, that course need not be considered further. The appellant’s submission that Santow J’s findings took the Taxing Officer outside any immunity he would otherwise have had [174] The appellant’s submissions at the outset drew attention to certain key findings of Santow J on 6 February 1998. [175] At p 36.8 Santow J said: In [the Taxing Officer’s] determination of 28 January 1993 … , [he] states what he considers to be the correct approach in determining whether a particular item of a bill is ‘necessary’ or ‘proper’ … At pages 39.9–40.1 Santow J said: … [The Taxing Officer] … clearly appreciated that the onus lay upon Ms Wentworth to demonstrate that an item was necessary or proper according to proper criteria. This necessarily required that she be permitted to adduce relevant evidence in discharge of that onus. At p 49.9 Santow J said that the first respondent’s “entire and unqualified resistance” before Bryson J “did not cease in the taxation process, even if the [appellant’s] responses may from time to time have been similarly unqualified.” [176] After discussing a particular example of the Taxing Officer’s conduct, Santow J said at p 51.5: though the example is at the margin, it does illustrate a pattern of continuing refusal to permit material which the [appellant] considered would go to satisfying the onus upon her. [177] After giving examples of various events, the last of which was said (p 54.1) to illustrate on the part of the Taxing Officer “an a priori approach, precluding any genuine consideration of proffered evidence from the [appellant] attempting to discharge her onus”, Santow J said (at p 54): The foregoing examples are not exhaustive. But they suffice to substantiate a pattern of precluding the [appellant] from tendering the very evidence that she needed to have considered if she was to attempt to discharge the onus which [the Taxing Officer] correctly placed upon her in establishing that each particular item was necessary or proper, having carefully imposed that onus and delineated the applicable principles, in his determination of 28 January 1993. … Based on [the Taxing Officer's] carefully expressed and clear announcement of the principles to be applied, there could be no reasonable basis consistent with those announced principles for [the Taxing Officer] to preclude the [appellant] from tendering the material which the [appellant] needed to submit if she were to attempt to satisfy the onus of proof upon her. In so Page 28 of 49 Wentworth v Wentworth, [2000] NSWCA 350 concluding, I do not of course speculate as to whether she would have succeeded or failed. But I do note that none of the examples fall within the category of items which in principle could not be necessary or proper. In those circumstances, a fair minded person might reasonably apprehend or suspect the possibility that [the Taxing Officer] had prejudged or might prejudge the [appellant’s] case in relation to her capacity to discharge the onus upon her. That conclusion is reinforced by the examples of derisory and threatening remarks to which I have made reference, neither of the two being justified in the circumstances. [178] The “derisory” remarks referred to concern a reference by the Taxing Officer, both in oral argument (p 41) and in the reasons he gave on reconsideration of the taxation (p 46) to “indiscriminate rummaging by a solicitor through his client’s extensive hoard of irrelevant documents”. Of these remarks, Santow J said (p 50): Inappropriately derisory in tone, and said with no apparent objective basis, that of itself reinforced the appearance of prejudgment in the circumstances. [179] The “threatening” remarks referred to concerned a response by the Taxing Officer to the appellant’s protests about a refusal by him to permit the appellant to tender material. Santow J said (p 52.5-.9): [The Taxing Officer] threatened that he ‘will give serious consideration to withdrawing the leave granted to you as a cost consultant to appear here … This example of refusing to permit the tender of material has a greater significance because of that threat, and also [the Taxing Officer’s] initial refusal to give any reasons at all, with then his again stating that production of the document is not necessary. Self-evidently, he could not without inspecting the document assess whether the work in its compilation was necessary or proper. The impression again conveyed to an objective and reasonable observe is that of prejudgment. [180] At p 54.9–55.1 Santow J said: it is not to the point whether a perusal of … relevant material would have led to a different conclusion about the particular item. The position is simply that by consistently declining to permit the Plaintiff to attempt to satisfy the onus of proof upon her, the Taxing Officer was giving rise to a reasonable apprehension of bias. In reaching this conclusion, it necessarily follows that on this basis alone the Plaintiff has established a reasonable apprehension of bias in relation to the conduct of the taxation. [181] At p 62.8 Santow J said: I am satisfied that it has been firmly established that [the]Taxing Officer so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias on the part of the Plaintiff, based upon the matters which I have earlier identified. It follows that the determinations of [the] Taxing Officer in the taxation, including the reconsideration must be set aside [with limited exceptions] … [182] It is important to bear in mind the detail of these passages, because the appellant submitted that even if Santow J was correct in concluding that the Taxing Officer had the same degree of immunity as a Supreme Court judge, the passages contained findings sufficient to place the Taxing Officer outside that immunity. That is, it was submitted that the findings show that the Taxing Officer had knowingly acted outside his jurisdiction, had acted in bad faith, had acted with actual bias, and had acted in such a manner as to satisfy the ingredients of the tort of misfeasance in public office. It is convenient to turn to the various forms of this submission. Did the Taxing Officer fall outside the immunity defined by Santow J? [183] Even on the assumption that Santow J’s view as to the extent of judicial immunity from suit is correct, and on the assumption that Santow J’s view that the Taxing Officer would enjoy the same immunity from suit and from a costs order is correct, the appellant submitted that the facts found by Santow J on 6 February 1998 indicated that the Taxing Officer had so behaved as to fall outside the immunity. The appellant characterised the Taxing Officer’s conduct in various critical ways — acting “knowingly in reckless disregard” of her rights, with “undoubted knowledge that he knew he could not do what he was doing”, acting “in contumelious disregard” of her rights, acting with “ill will”, acting in a “malicious manner” and acting in “bad faith”, acting in a “deliberate, reckless and perverse” manner, acting “deliberately to [the appellant’s] detriment”, making “no honest attempt” to perform his functions, being Page 29 of 49 Wentworth v Wentworth, [2000] NSWCA 350 “deliberately offensive”, being “deliberately insulting”, “deliberately” acting “to the detriment of the appellant”, and being “recklessly indifferent” to whether he had jurisdiction. [184] I would reject that submission. In truth Santow J made no finding supporting any of these characterisations. Santow J said in the 9 April 1999 judgment that he had made no finding in the 6 February 1998 judgment of “any deliberate contravention of the rules of natural justice”, no finding that the Taxing Officer “deliberately acted beyond power”, and no finding of “actual bias”. He found only “a reasonable apprehension of the possibility of bias”: (1999) 46 NSWR 300 at 317 [57]. Those statements of Santow J on 9 April 1999 about his 6 February 1998 judgment are correct. His conclusion at p 54 of the reasons for judgment delivered on 6 February 1998 was that “a fair minded person might reasonably apprehend or suspect the possibility that [the Taxing Officer] had prejudged or might prejudge the [appellant’s] case”. If the Taxing Officer’s conduct were to fall outside the immunity identified by Santow J, it would be necessary for the appellant to be able to point to findings that the Taxing Officer had knowingly acted outside jurisdiction, or had acted otherwise than in the bona fide exercise of his powers, or had acted outside jurisdiction and otherwise than in the belief that he had jurisdiction. No such findings were made. This is scarcely surprising, since Santow J’s mind was not directed to those issues in the proceedings leading up to the reasons for judgment delivered on 6 February 1998: they only emerged, if at all, in the proceedings leading up to the reasons for judgment dated 9 April 1999. In particular, nothing in the passages to which the appellant referred and which are quoted at [175]–[181] above amounts to a finding of fact sufficient to place the Taxing Officer outside the immunity. The fact that the appellant’s claim for costs against the Taxing Officer was propounded well after the Statement of Claim meant that the Statement of Claim was not formulated so as to make allegations which, if established, would have placed the Taxing Officer outside any immunity of the type found by Santow J. While some of the facts which were alleged might, if established, go some distance towards negating immunity, Santow J’s mind was not directed to the need to find those facts, and he did not. [185] The appellant submitted that sufficient findings were made when Santow J found “derisory and threatening remarks” to have been made. But these could have been made for many reasons ranging from malice, actual bias or bad faith at one extreme to a momentary loss of temper or a poor choice of language at the other. There is no finding as to the mental state accompanying the remarks. And Santow J did not find that those remarks alone created an appearance of bias: as Galea v Galea (1990) 19 NSWLR 263 at 282–3 shows, the saying of things which “could have been better expressed”, “a loss of even temper”, departure from politeness, “irritation” and sarcasm do not necessarily give an appearance of bias. [186] The appellant also relied on Santow J’s finding that the Taxing Officer correctly stated the principles to be applied, but then acted in a way which could not have had any “reasonable basis consistent with those announced principles”. But to act without a reasonable basis is not necessarily to act on a malicious, actually biased or fraudulent basis. [187] In oral argument the appellant submitted that Santow J had found that the Taxing Officer “knew what he should have been doing, he didn’t do it” (transcript p 31 lines 43–44). But what was needed to establish malice, bias or fraud was a finding that the Taxing Officer knew that he was failing to do what he should have been doing: there is no such finding. [188] The appellant submitted that the Taxing Officer fell outside the immunity because the finding of a reasonable apprehension of bias meant he was acting outside jurisdiction. Her argument was put thus (submissions of 24 November 2000, para 2): It is fundamental that to obtain jurisdiction the bench must be constituted according to law and that a bench which is biased or which it is reasonably apprehended that it might possibly be biased is not constituted according to law and hence has no jurisdiction to hear or determine a matter. Even if that were so, the appellant’s case founders on the absence of a finding that the Taxing Officer had acted outside jurisdiction knowingly. But in any event, to act so as to convey a reasonable apprehension of bias is not to act outside jurisdiction. That is so because even to act with actual bias — where the judge’s “motive is malicious” or he acts “for the purpose of gratifying private spleen” or “maliciously” — is not to act outside jurisdiction: Anderson v Gorrie [1895] 1 QB 668 at 671–2 per Lord Esher MR, Kay LJ and AL Smith LJ; Rajski v Powell (1987) 11 NSWLR 522 at 528 per Kirby P. The appellant submitted that Anderson v Gorrie was an old case which should no longer be followed. I disagree. It states an extremely salutary principle. Misfeasance in public office [189] The appellant submitted that the law was: a public officer who acts in such a way as is calculated in the ordinary course to cause harm … or with reckless indifference in the exercise of that power, that is that the public officer knows that what he does is beyond power and which involves a Page 30 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [foreseeable risk of harm or otherwise recklessly disregards the means of ascertaining the extent of his power acts with misfeasance] in his public office” … The appellant submitted that the Taxing Officer’s conduct satisfied all the tests for the tort of misfeasance in public office, and it was not necessary for the appellant to have made any allegation to that effect in the Statement of Claim. As to the latter submission, a specific allegation of that kind would have been desirable if it were wished to invite Santow J to make appropriate findings against the Taxing Officer. As to the former submission, perhaps in part because of the form of the pleadings, Santow J did not make findings necessary to satisfy the relevant tests. [190] For the legal principle propounded in the submission quoted above, the appellant cited Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 347. There Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said: The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57], or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach. It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in [Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 ], namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power. [191] In various respects this passage is tentative and exploratory; in some respects it consists of obiter dicta. But even if it is taken at its highest from the appellant’s point of view, the fact is that key factual ingredients to which it refers have not been proved. Santow J did not find that the Taxing Officer knew that his conduct was beyond power. He did not find that the Taxing Officer intended to inflict harm. He did not find that the Taxing Officer’s conduct was “calculated in the ordinary course to cause harm”. He did not find that the acts of the Taxing Officer were “done with reckless indifference to the harm that is likely to ensue”. He made no findings about the Taxing Officer’s actuating motive. He did not find that the Taxing Officer recklessly disregarded the means of ascertaining the extent of his power. [192] The appellant also relied on passages in the reasons for judgment of Brennan J and Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 357 and 370–1, but again Santow J did not make findings of fact which would satisfy the criteria they identify. [193] In oral address the appellant described the tort of misfeasance in public office as being “really an extended tort of negligence”. The passages quoted or referred to from Northern Territory of Australia v Mengel show that is not so. Accordingly, it is not possible to justify a costs order against the Taxing Officer by seeking to draw an analogy with the tort of misfeasance in public office. Negligence [194] Another analogy which the appellant drew was with the tort of negligence. She submitted that the Taxing Officer owed her “a duty of care … to conduct the taxation in a proper and orderly fashion, and fairly between the parties, and not with reckless disregard to the rights of any of the parties” (transcript p 31 lines 38–41). She also submitted that the Taxing Officer knowingly breached that duty. The following difficulties exist. First, Santow J did not find that the Taxing Officer conducted the taxation unfairly. He found merely that the Taxing Officer's conduct conveyed that appearance. He made no findings of reckless disregard for the parties’ rights or knowing breach of Page 31 of 49 Wentworth v Wentworth, [2000] NSWCA 350 duty. Secondly, whether or not a person in the position of the Taxing Officer owed a duty of care for breach of which an action in negligence lies is a matter to be determined in a separate action structured and pleaded along these lines. The application for costs against the Taxing Officer was not a separate action structured and pleaded along these lines. Even if the Taxing Officer had no derivative judicial immunity and was in a position of a magistrate or in the position of a maker of an administrative decision, the principles of the tort of negligence are not imported by analogy to determine whether a costs order should be made. Rather, the settled course of practice has created standard gateways, discussed at [196]–[199], through which the appellant, on the facts found, does not pass. Did the Taxing Officer fall outside the Taxing Officer’s immunity if that immunity does not correspond with that of judges in superior courts? [195] There is authority before Sirros v Moore [1975] QB 118 that judges of courts other than superior courts are not immune if they act outside jurisdiction whether or not they did so knowingly (unless the excess of jurisdiction was caused by an error of fact in circumstances where the court had no knowledge of or means of knowing the relevant facts: Halsbury’s Laws of England (4th ed) vol 1 (1) para 216 n 0; AA Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993) pp 64–65; Enid Campbell “Inferior and Superior Courts and Courts of Record” (1997) 6 JJA 249 at 260 n 24). Let it be assumed that Santow J was wrong to apply Sirros v Moore and wrong to treat the Taxing Officer as having the same immunity as is possessed, according to that case, by a superior court judge. Let it be assumed that Santow J should have treated the Taxing Officer as having only the traditional immunity of a non-superior court judge. An immunity of that kind might be defeated by proof of malice, since it is controversial whether acting maliciously causes a non-superior court to act in excess of jurisdiction: see cases discussed in Campbell, op cit p 252 n 25; Margaret Brazier, “Judicial Immunity and the Independence of the Judiciary” [1976] PL 397 at 398–9 n 6; AA Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993), pp 65–66; Halsbury’s Laws of England (4th ed) vol I (1) para 216 n 1). But even if malice does cause a non-superior court to act in excess of jurisdiction, malice was not found in the reasons for judgment dated 6 February 1998, and it was too late to seek to establish it after that date. Precisely what “acting outside jurisdiction” means in this context is obscure. Thus in In re McC (A Minor) [1985] AC 528 at 456–7 , Lord Bridge contemplated that a “gross and obvious irregularity of procedure”, or a breach of the rules of natural justice by reason of justices refusing to permit a defendant to give evidence would be outside jurisdiction, while other breaches of the rules of natural justice might not. Lord Templeman said at 558: “If in the course of a trial which a magistrate is empowered to undertake, the magistrate … does not accord the accused a fair trial or is guilty of some other breach of the principles of natural justice … , the decision may be quashed but the magistrate acting as such acts within jurisdiction.” Even assuming, which is questionable, that merely acting so as to give an appearance of bias is to act outside jurisdiction, the position of the Taxing Officer cannot be worse than if he had no immunity at all, and even if he had no immunity at all, for reasons about to be given, there is no ground on which he should be ordered to pay costs: [196]–[199]. Position if Taxing Officer has no immunity [196] The appellant submitted that the Taxing Officer enjoyed no immunity of any kind from a costs order: that is, it was not the case that he had an available immunity but fell outside its boundaries, but rather it was the case that there was no available immunity at all. Let it be assumed that that is so. Given that the ordering of costs is a discretionary decision, if Santow J could be treated as having decided not to order costs as a matter of discretion, an analysis of the reasons for his exercise of discretion would be called for in order to see whether any of the limited conditions for a successful appeal against a discretionary decision of that character were satisfied. However, it is not possible to treat Santow J as having exercised a discretion in relation to costs, because his reasoning proceeded entirely on the basis that, by reason of the derivative immunity he found, there was no discretion to exercise. The appellant is thus asking this Court to exercise a discretion to order costs against the Taxing Officer. In my opinion, given the facts found and the facts not found by Santow J, there is no justification for ordering the Taxing Officer to pay any of the costs. [197] So far as there is an analogy between the Taxing Officer and the magistrate of the type whose conduct was under consideration in Ex p Blume; re Osborn (1958) 75 WN (NSW) 411, where the Full Court held at 415 that a costs order could only be justified if perversity, corruption or gross ignorance was established, and that an “astonishing blunder” was not enough, Santow J’s findings do not establish perversity, corruption or gross ignorance. [198] So far as there is an analogy between the Taxing Officer and an administrative decision-maker, an order that decision-makers pay the costs of judicial review proceedings against them is not normally made where the decision-makers have not actively opposed the proceedings unless the decision-makers have assumed a jurisdiction they plainly do not possess, or have knowingly disregarded the law, or have flagrantly denied natural justice, or have been guilty of serious misconduct, corruption, gross ignorance or perversity: see the cases discussed by Enid Campbell in “Appearance of Courts and Tribunals as Respondents to Applications for Judicial Page 32 of 49 Wentworth v Wentworth, [2000] NSWCA 350 Review” (1982) 56 ALJ 293 at 293–4 and “Award of Costs on Applications for Judicial Review” (1983) 10 Syd LR 20 at 21–23. None of these factors are established in the present case. While Santow J’s finding that the Taxing Officer showed an appearance of bias entailed the proposition that he contravened one of the rules of natural justice, merely to show an appearance of bias is not to contravene the rule in question flagrantly. Two instructive cases on other types of breach of the rules of natural justice may be referred to. In Ex p McQuellin (1929) 29 SR (NSW) 346 the Full Court, in making absolute a writ of prohibition against a magistrate who had denied natural justice by refusing an adjournment, refused to order him to pay costs because he had not “shown such gross ignorance of the law” as to justify this (at 530 per Ferguson ACJ). And in Cummins v McKenzie [1979] 2 NSWLR 803 at 810 Sheppard J declined to order costs against a magistrate who denied natural justice by refusing to hear certain evidence and submissions because of a particular view which the magistrate had formed of the law. He said that the magistrate could only have been ordered to pay costs if his conduct displayed gross ignorance or perversity. He said: I confess to finding it hard to understand, notwithstanding that those who engage in the practice of the law are frequently in difference, how any person with any knowledge of the law could take the view which the magistrate did. But he said the view of the law adopted did not demonstrate gross ignorance. He also said that though the magistrate had been obstinate and persistent by reason of legal error, he was not obstinate or persistent in refusing to carry out his duties: “he intended to do, and thought he was doing, justice according to law”. Santow J in the present case did not make findings sufficient to bring the Taxing Officer within Sheppard J’s language: his findings are consistent with the conclusion that the Taxing Officer was not acting in gross ignorance and that he was intending to do, and thought he was doing, justice according to law. The approach taken in these authorities as a matter of settled practice was recently referred to with approval by the Full Court of the Supreme Court of South Australia, even though the general width of the court’s discretion as to costs was stressed: El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596. The appellant cited Robinson v Patterson [1999] VSC 60. In that case, at [132], Gillard J said that only in “very exceptional circumstances” would a costs order be made against a judicial officer. He made an order, not against a judicial officer, but against “the Magistrates’ Court of Victoria at Heidelberg”, in that case. The circumstances of the case, which involved a threat by a magistrate to jail a defendant who could not pay compensation and a threat to proceed against the defendant’s solicitor when the latter asked the magistrate to disqualify himself, are distinguishable from the present. [199] The appellant submitted that it was not necessary for her to prove “malice”, “fraud”, “bad faith” or “improper purpose” against the Taxing Officer. She referred, first, to Vestris v Cashman (1998) 72 SASR 449 at 457, where in para (4) Olsson J said, in relation to the principles concerning the ordering of costs against non-parties: “It is not necessary to prove fraud, bad faith or some improper conduct on the part of the non-party … ”. However, Olsson J completed that sentence with these words: “provided that the situation falls within categories (2) or (3).” Those categories concern non-parties who initiate or may benefit from the litigation: they have nothing to do with the position of the Taxing Officer in this case. The appellant also referred to the following passage from Lander J’s reasons for judgment at 467: Whilst the circumstances to make an order for costs against a non-party will be both rare and exceptional such an order can be made without the moving party having to demonstrate any improper conduct of any kind on the part of the non- party. An order for costs against a non-party is not dependent upon any improper conduct on the part of any party. The next sentence, however, was: “Of course in some cases improper conduct on the part of a non-party will be a relevant factor in the exercise of the discretion.” And Lander J was discussing the general area of ordering costs against non-parties, not the specific area of ordering costs against officers of the court. Further, Santow J’s findings about the Taxing Officer do not cause the present case to become “rare and exceptional”. [200] In short, the findings which Santow J made in relation to the Taxing Officer are not sufficient to justify this Court in exercising any discretion which exists to order him to pay any of the costs of the review proceedings (or indeed any of the other costs). This Court is not in a position itself to make necessary findings of fact. Did Santow J err in failing to make sufficient findings? [201] As an alternative to the arguments based on the submission that Santow J’s findings were sufficient to place the Taxing Officer outside any available immunity, and on the assumption that Santow J had not made findings sufficient to place the Taxing Officer outside any available immunity, the appellant submitted that Santow J had erred in failing to make those findings. If this argument were sound, it would be necessary for the matter to be referred back to the Equity Division for further findings to be made. [202] In my opinion, Santow J did not fall into any error of the kind alleged. [203] He did not do so in his reasons for judgment delivered on 6 February 1998. He said (page 5): Page 33 of 49 Wentworth v Wentworth, [2000] NSWCA 350 The Plaintiff put in argument that if I were to find bias or apprehended bias on even one basis, that would suffice, obviating any need to consider other bases put by the Plaintiff. She also asked me to stop the hearing when so satisfied. I indicated at the time that I would not cease the hearing if she had further matters that needed to be put, as I was not then in a position to form a concluded view on her application. He also said (at page 55), after finding that a fair minded person might reasonably apprehend or suspect the possibility of pre-judgment in the manner indicated at page 54 (see [177] above): Given my earlier conclusion, it is not necessary nor indeed appropriate for me to deal with the other bases advanced by the Plaintiff for her contention that bias, actual or reasonably apprehended, was manifested by [the Taxing Officer]. I should add that I have been able to reach the conclusion I have, sufficiently from the transcript material noted, the Taxing Officer’s reasons for determination, and the Taxing Officer’s reasons on the reconsideration. This means that I have not for example had to draw upon material such as the Plaintiff’s and Mr Russo’s affidavits of 16 December 1997 whose admissibility might have been open to argument, though I have made rulings on the extent of its admissibility. There is however nothing in the other material which I have admitted which leads me to alter my conclusion, though as I have said it does not depend on that material. It suffices if I observe that once a party has a reasonable apprehension of the possibility of bias, particular events which otherwise would not give rise to such an apprehension may in that context acquire a different caste. However, in saying that, I do not wish to be understood as having reached any conclusion as to whether bias was manifested in the other ways contended for by the Plaintiff. [204] In view of the narrowness of the issues before Santow J in the proceedings taking place before delivery of the reasons for judgment of 6 February 1998, and the appellant’s invitation to Santow J only to decide the case on a basis sufficient to justify the grant of the relief then sought, his acceptance of that invitation is not open to criticism. The Statement of Claim which he had under consideration was not drafted with a view to highlighting the facts which needed to be found in order to take the Taxing Officer outside any possible immunity from a costs order: indeed no costs order against the Taxing Officer was then sought. [205] Nor is Santow J validly to be criticised for having failed to embark on a fresh inquiry in the proceedings leading up to the reasons for judgment of 9 April 1999. The only liberty Santow J reserved after 6 February 1998 was liberty to argue about costs on the basis of existing findings — not liberty to seek to prove a new case. If the appellant wanted findings sufficient to take the Taxing Officer outside any immunity, the time to ask for them was in the 17 days of hearing before delivery of the reasons for judgment of 6 February 1998. Santow J had gone to prodigious and almost unexampled lengths to make proper preparations for the hearing of the factual matters necessary to decide whether to accede to the request for the relief described in para 1 of the Notice of Motion filed on 8 October 1993. If costs orders against the Taxing Officer had been desired on the basis of the allegations in the Statement of Claim, they should have been requested at the hearing of those allegations in the period up to 6 February 1998. It was not wrong for Santow J not to make further factual findings thereafter. Indeed it would have been a waste of his time to have done so in view of the attention he paid to what he was asked to decide before 6 February 1998 and in view of the non-joinder of the Taxing Officer both before and after that date. [206] Nor did Santow J err in failing to make further findings in his reasons for judgment dated 29 June 1999. That was too late a time for him to be invited to make, or to make, those findings. [207] The appellant’s submission wavered between, on the one hand, criticising Santow J for provoking an unduly elaborate and expensive hearing in 1997 before the 6 February 1998 judgment was delivered, and, on the other hand, criticising Santow J for failing to make very grave findings of a specific kind in relation to a difficult area of law against the Taxing Officer which could only have been done after an elaborate hearing either then or later. In my opinion Santow J’s approach to which findings of fact he should make and when has not been shown to be invalid. Crown liability: vicarious [208] A case of vicarious liability on the part of the Crown for the Taxing Officer’s actions was propounded. Even if there were no other obstacle to that outcome, there is one fundamental obstacle to it. If the Taxing Officer is not liable for costs, the Crown cannot be vicariously responsible for that non-existent liability. Crown liability: direct [209] But the appellant also advanced a case of direct liability on the part of the Crown. This was put in various ways. One was: there is a duty of care of Governments to avoid foreseeable harm by taking steps to ensure that their officers and employees know and observe the limits of their powers. Page 34 of 49 Wentworth v Wentworth, [2000] NSWCA 350 It was said that the Crown “had a duty of care to [the appellant] in employing somebody who was skilled and able to conduct the function of the Taxing Officer in such a way that that taxation would take place expeditiously, and would have a result so that [she] would be entitled to obtain [her] costs” (transcript page 31 lines 52–56). It was said that on the evidence the appellant’s complaints about the Taxing Officer had been drawn to the attention of the Crown by 1992, and by 1993 she had applied to the Crown to deal with him. The Crown has entirely failed, since the delivery of the judgment of Santow J to in any way deal with the misbehaviour of [the Taxing Officer] and in such circumstances it is reasonable to draw an inference of active participatory behaviour between the Crown and its employee to the deliberate detriment of the plaintiff … … the [misfeasance of the Crown’s employee] should be taken to be the deliberate and knowing [misfeasance] of the Crown such as should attract a liability for costs in the special circumstances of this case. [210] Even if the potential obstacle to the case of direct liability against the Crown stemming from the fact that it was not a party either to the proceedings below or to the appeal is put aside, one other fundamental obstacle remains. Whether or not the Crown might be liable if sued in separate proceedings based on the tort of negligence, the present application is not a proceeding in negligence but for a costs order, and the Crown is not one of the persons listed in Pt 52A r 4(5) against whom a costs order can be made, and there is no other rule or enactment which permits recovery of costs against the Crown as a non-party. [211] Further obstacles arise from the nature of the duty alleged. It appears to take one of three forms. First, so far as the submission postulates only a duty on the part of the Crown to employ a skilled and able person, there is no finding that the Taxing Officer was not skilled and able; the finding is only that in this instance he acted so as to give an appearance of bias. Hence there is no finding of a breach of duty. Secondly, to some extent the submission alleges a breach of duty on the part of the Crown in failing to respond to the appellant’s alleged complaints in 1992 and 1993. The appellant referred to Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16; Hill v Van Erp (1997) 188 CLR 159; Pyrenees Shire Council v Day (1998) 192 CLR 330; Perre v Apand Pty Ltd (1999) 198 CLR 180; and Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1. The difficulty with this aspect of the submission is that there are no findings of fact to support the breach. Thirdly, so far as the submission urges the recognition of a non-delegable duty — a duty not merely to employ a skilled and able person, but to ensure and guarantee a particular result, it is urging an extreme position rarely found in the common law. The liability contended for would be a duty of absolute obligation, not a duty of reasonable care. It would be a duty more extreme than the type of non-delegable duty of care recognised in Commonwealth of Australia v Introvigne (1982) 150 CLR 258. That liability, if contended for, would raise a serious question of legal policy. Whether or not that kind of liability should be recognised would have to be examined in properly structured and pleaded proceedings designed to establish it. The application to Santow J for costs against the Crown was not structured or pleaded in that fashion. [212] The appellant suggested that s 76 read with s 23 of the Supreme Court Act gave the court power to order costs against the Crown. Section 23 provides: The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. A provision of so general a character cannot be read as conferring any power to order costs against non-parties when read alongside s 76 and Pt 52A r 4, the latter being specific enactments on the subjects respectively of costs and of costs against non-parties. Should Santow J have ordered the first respondent to pay the costs of the taxation before the Taxing Officer? [213] The appellant submitted that Santow J erred when he made the orders of 23 August 1999 in that by O 3(a) he reserved the costs of the taxation hearing before the Taxing Officer with leave to make application in relation to them after the completion of the further assessment of costs. The error was said to lie in the assumption that those costs could be dealt with when the taxation resumed at some future time under Pt 11 of the Legal Profession Act 1987. [214] Earlier it was concluded that Santow J was correct not to make orders that either the Taxing Officer or the State of New South Wales should pay any review costs. The reasoning that led to those conclusions also supports the view that he was correct not to order either the Taxing Officer or the State of New South Wales to pay this part of the non-review costs. Page 35 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [215] The present question is thus whether Santow J should have made an order against the first respondent in relation to the costs of the taxation before the Taxing Officer. [216] In his 6 February 1998 judgment, Santow J said the following about the appellant’s application that the first respondent pay the costs of the taxation before the Taxing Officer (p 62): [The first respondent] was entitled to contest the [appellant’s] contentions before the Taxing Officer, though it is to be regretted that the proceedings overall were contested by both parties in so unconstrained a way. However it is not possible to attribute the preponderance of responsibility for this to either party. For that reason Santow J rejected the appellant’s application that the first respondent pay her costs, on an indemnity basis, of the whole taxation process to that date. On page 63 Santow J stated as his second conclusion: “No order as to costs is made in relation to the present proceedings.” This does not suggest that the costs of the taxation are to be reserved for later consideration by anyone. It foreshadows orders to the effect that the costs should lie where they fell. [217] In the 9 April 1999 judgment Santow J expressed doubt in various places that he even had power to make a costs order in relation to the costs of the taxation. Thus para (ii) of what Santow J identified as the “First Issue” was: whether any such order for costs could extend beyond the costs of the review before me to include, as sought by the [appellant], costs of the associated taxation and re-consideration before [the] Taxing Officer … ”: 46 NSWLR 300 at 306 [14]. Later Santow J said: I am satisfied that the findings made in my judgment of 6 February 1998 are not such as to justify any order for costs against [the Taxing Officer] whether review costs or, to the extent capable of being made, any non-review costs” (46 NSWLR 300 at 317–8 [58]: emphasis added). On the other hand, in paras [21]–[24] Santow J concluded that s 76(2)(a) of the Supreme Court Act gave power to make costs orders against the Taxing Officer (assuming no immunity) in relation to the costs of the taxation itself: (1999) 46 NSWLR 300 at 309. In para [65] he foreshadowed para 3(a) of the orders of 23 August 1999: So far as earlier costs of the taxation are concerned, not attributable to the Court of Appeal or otherwise in conflict with its orders and thus not including any collateral attack as described in paras 18 and 20 of this judgment, I would give leave for either party to make application in relation to such costs, but only after the completion of the further assessment pursuant to regulation 80 … ” (46 NSWLR 300 at 319). That passage, and O 3(a) made pursuant to it, thus amounts to a change of position from that adopted in the 6 February 1998 judgment. [218] In my opinion the question whether there is any source of power in any part of the court to make an order in relation to the costs of the taxation should be left until an application is made pursuant to the leave reserved by O 3(a). The only practical question at present is whether Santow J ought to have ordered the first respondent to have paid the taxation costs and whether this Court should do so. The reasoning, brief though it is, in the 6 February 1998 judgment, supporting the conclusion that the first respondent ought not to be ordered to pay the costs of the taxation, has not been shown to be flawed. The first respondent was entitled to challenge the appellant’s bill. He may have been “unconstrained” in his response to the appellant’s handling of the proceedings, but so, according to Santow J, was her conduct. No effective challenge has been made to this characterisation. Santow J has made no finding that it was by reason of any fault of the first respondent that the Taxing Officer’s conduct was such as to be characterised by Santow J as giving rise to an appearance of bias. Further, Santow J was right to conclude that it may be premature to decide who should pay the costs of the taxation before the Taxing Officer. If the appellant is less successful after the assessment which is to take place in future than she was before the Taxing Officer, there would be a strong argument that she should not receive any costs, or alternatively any substantial costs, in relation to either the assessment or the taxation. [219] Accordingly there is in my opinion no injustice, and no legal error, in Santow J’s refusal to order the first respondent to pay the costs of the taxation. Whether his reservation of liberty to apply in future was futile on the ground that no order can be made in future can be left to an occasion when it is necessary to resolve it. The appellant put arguments which pointed out that the assessor of the costs of the proceedings before Bryson J may not have power to make orders as to the costs of the failed taxation: see in particular s 208F(4) of the Legal Profession Act 1987. Even if those arguments are sound, it does not follow that a Master or a judge lacks power. Page 36 of 49 Wentworth v Wentworth, [2000] NSWCA 350 And even if another argument of the appellant to the effect that the first respondent’s bankruptcy may make a new assessment futile, and that no assessor may be found prepared to conduct it for fear of not being paid, is factually sound, that does not bar an application to the court pursuant to the leave reserved by Santow J. Should Santow J have ordered the first respondent to pay the costs of the review proceedings after 15 July 1997? [220] The appellant submitted that the first respondent should have been ordered to pay the costs of the review proceedings after 15 July 1997 as well as before that date. Santow J said in his 9 April 1999 judgment (paras [62]– [65]): The [appellant] correctly points out that the [first respondent] resisted the contention of the [appellant] that the taxing officer’s determinations were vitiated by bias, or the appearance of bias. In the result, the determinations of [the Taxing Officer] were set aside on the basis of apparent bias in the manner I have described. The [first respondent] played an active part in the proceedings up to 15 July 1997, resisting any such contention. Thereafter the [first respondent] played no active part in the proceedings, though not in any way waiving or withdrawing his opposition to any such orders. On consideration, I am satisfied that there is a sufficient case for a more limited costs order, but only for the period to 15 July 1997, when the [first respondent] ceased any active part in the proceedings. It is true, as I have said, that his attitude to the litigation did not change from one of opposition to the relief claimed by the [appellant], strenuously asserted in that earlier stage, to one of submission to any order the court might make. That he did not is perhaps understandable, given the fact that the [appellant] for her part, did not retreat in any way from the extremity of her application to have the [first respondent] pay the whole of the costs of the taxation and on an indemnity basis. The argument that I set out in my judgment of 6 February 1998, to the effect that the [appellant] would be put to proof in any event, whether the [first respondent] had played a role or not in the initial stages of the present proceedings, is however to my mind also an important consideration. Precisely the same costs could have been anticipated in testing the [appellant’s] contentions had the [first respondent] at that point consented to any order the Court might make. This is because the Court was asked to hear evidence and submissions on a number of allegations by [the appellant], some very serious ones, before determining those matters which were necessary to resolve in order to determine whether the [Taxing Officer’s] determinations should be set aside in whole or in part. Thus I would make no order for costs in relation to the period after 15 July 1997 when the [first respondent] played no part in extending the proceedings. As to costs prior to 15 July 1997, so far as related to the review, it is fair to say that the [appellant’s] bias application was not of course an action against the [first respondent] in the conventional sense. However, the relief sought by the [appellant] was the setting aside of orders that had been made by the taxing officer and of which the [first respondent] had the benefit. It could be said that the nature of the bias application, though in law not an appeal but a review, did in some respects do what an appeal might have done, in focusing necessarily upon the conduct of the adjudicator rather than the [first respondent]. Nonetheless, the [first respondent] adopted an uncompromising adversarial role which would in the earlier stage have extended the proceedings to that date. A defence was filed and a notice of objection was given to portions of the evidence filed by the [appellant]. The [first respondent] did not appear at the hearing but did appear at several of the interlocutory stages and also made detailed written submissions opposing the [appellant’s] application on a number of grounds, all of which were ultimately unsuccessful. A more detailed elaboration of steps taken by the [first respondent] is set out (at 6–10) in my judgment of 6 February 1998 and indicates he way the [first respondent] dealt with these matters. In all the circumstances, I consider that the proper costs order to be made is that the [first respondent] should pay the [appellant’s] costs on a party and party basis up to but not after 15 July 1997 when the [first respondent] took no further part in the proceedings” (46 NSWLR 300 at 318–319). [221] Santow J’s reference to the “argument that I set out in my judgment of 6 February 1998” was a reference to the following passage in the 6 February 1998 judgment (p 62): The [first respondent] has it is true put the [appellant] to proof regarding the matter of bias, but the [first respondent] was entitled to do this. The [appellant] would be put to proof in any event whether the [first respondent] had played a role or not in the initial stages of the present proceedings. [222] The appellant advanced two groups of arguments by way of attack on Santow J’s order that the first respondent pay only the review costs up to 15 July 1997. [223] The first group of arguments turned on the first respondent’s conduct of the review proceedings. Page 37 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [224] The second group of arguments turned on the first respondent’s conduct of the taxation before the Taxing Officer. [225] The first group of arguments, which were put principally in the Summons for Leave to Appeal dated 17 December 1999, paras 3.3 and 3.32(v)-(viii), the written submissions dated 14 July 2000, Part 11, paras 10–20, and in oral argument at pp 34–36, may be summarised as follows. (a) Even though the first respondent called no evidence, the first respondent’s active opposition to the appellant’s application to set aside the Taxing Officer’s determination (by appearing, filing a Defence, objecting to the appellant’s affidavits and making oral and written submissions) made it just to order that the first respondent pay the whole of the appellant’s costs of the review once Santow J held that that opposition failed and that the first respondent’s “waiver” defence failed, in accordance with the normal rule of practice that the loser pays the winner’s costs. (b) That outcome should not be altered by the first respondent’s early departure from the proceedings, particularly since he never indicated abandonment of his opposition, and his departure caused Santow J to procure his replacement by an amicus curiae whose arrival increased the costs. (c) The fact that the appellant would have had to have incurred some costs even if the first respondent had not opposed the orders sought does not mean that the first respondent should not have to pay the whole of the costs once the orders were made. (d) Santow J erred in saying that: the Court was asked to hear evidence and submissions on a number of allegations by [the appellant], some very serious ones, before determining those matters which were necessary to resolve in order to determine whether the taxation officer’s determinations should be set aside in whole or in part. This was said to be: incorrect in so far as it contends that the [appellant] requested the Court to hear all of the evidence of various allegations set out in the Statement of Claim — and contrary to the record in that the [appellant] attempted to limit the scope of the proceedings. The [appellant] should not be penalised by those actions in having to bear those costs and not having the benefit of a full determination. The appellant also submitted that she: attempted to limit the scope of the proceedings by inviting the Court to stop the hearing at a point at which it was satisfied but the Court refused to take that course as acknowledged in the judgment and insisted on all of the evidence being heard, and then did not make determinations in accordance with that evidence but in respect of a limited portion only … (e) The amicus curiae’s stand was said to have been in support of the proposition that the first respondent should have been ordered to pay the whole of the appellant’s costs of the review, and “the Court should have given it proper weight”. [226] The second group of arguments, turning on the first respondent’s conduct of the taxation before the Taxing Officer, were put thus in written submissions of 14 July 2000 Pt 11, paras 42, 44, 75 and 82: 42. [The Taxing Officer] was supported and encouraged at every turn by the [first respondent]. … 44. Accordingly the [appellant] at no time has been afforded due process. At the end of the day there is no good reason why she or her legal representatives have to bear any of the costs which have resulted from the combined misbehaviour of [the Taxing Officer], the [first respondent] and the Crown. … Page 38 of 49 Wentworth v Wentworth, [2000] NSWCA 350 75. The [first respondent] at all times opposed the hearing of the bias application and the Court refused to hear it or determine the matter either on review or on appeal until Master Macready refused to proceed with the re-review ordered by the Court of Appeal on 21/2/96 order 4, until the bias application was dealt with and over the strenuous opposition of the [first respondent]. … 82. The [appellant] submits that both the [Taxing Officer] and the [first respondent] are liable for both sets of costs incurred in the taxation, and that the [first respondent] was responsible as well for the taxation having miscarried as he supported the activities of the [Taxing Officer] at every point and submitted on taxation, review and appeal that the actions of the [Taxing Officer] were proper, correct and within jurisdiction and not biased and by those actions the [first respondent] contributed to the losses accrued by the [appellant] by the failure of the taxation and the inordinately oppressive and extended hearings. [227] The appellant also submitted (written submissions dated 26 September 2000, paras 98–99): 98. The question must be asked, as was asked by Santow J, who was clearly troubled by the concept, as to why the [first respondent], executor, should be made liable for the costs occasioned by the failure of the [Taxing Officer] to properly disqualify himself and at a very early stage in the taxation — prior to costs escalating in circumstances where the continuation of the taxation by the inappropriate biased officer, was clearly being done in the absence of any jurisdiction. 99. The [first respondent] executor did, it must be said, enthusiastically and vehemently support the [Taxing Officer] in his continuation of the taxation (as he would), because the [Taxing Officer] having demonstrated that he was unable in a fair and even handed fashion to deal with or complete the taxation and was demonstrably acting deliberately to the detriment of the [appellant], and to the corresponding benefit of the [first respondent]. [228] The starting point for the making of a decision as to costs, and for the appellate review of a decision as to costs, is that generally the discretion to order costs is exercised in favour of a successful party. There is authority in the Full Court of this Court declining to follow contrary 19th century English authority that this is so in relation to the costs of a successful review of a taxation, even where the ground on which the review succeeded was a mistake of the taxing officer: Howard v Swindle (1899) 20 NSWLR (L) 338 at 340 and 342. The exercise of a discretion to deprive a successful party of costs must be based on some particular reason connected with the case: Laboudis v Carey (1990) 170 CLR 534 at 569. Sometimes a successful party is deprived of costs because of misconduct, but that is not in issue here. There is nothing to suggest that Santow J did not have in mind the appropriate starting point. The primary reason connected with the case for reducing the costs order for which the appellant asked turned on the nature of the application and the fact that costs would have been incurred whatever the first respondent’s role. [229] So far as concerns the first group of arguments, relating to the first respondent’s conduct before Santow J, the justice of the costs order against the first respondent may be tested by inquiring what he could have done other than what he did do. [230] He could have consented to the setting aside of the Taxing Officer’s determination; or he could have adopted a stand of not opposing any order sought except a costs order; or he could have abstained from appearing in the bias proceedings at all stages, not just after 15 July 1997. While adopting any one of those courses might have shortened proceedings before Santow J to some extent, it is difficult to believe that it could have done so significantly. Ordinarily court orders are not set aside by consent (or in consequence of non-opposition or non- appearance) on appeal and without scrutiny where the consequence will be a further consumption of court time. Setting aside the Taxing Officer’s determination would have left the appellant entitled to have a further assessment. The effect of the orders which Santow J was requested to make would have been that a huge amount of the Taxing Officer’s time had been wasted, and a large amount of time would be needed to do the job afresh in future. Those are not outcomes which Santow J could have sanctioned without demonstration to him that they were necessary. Further, Santow J could not have made the orders by consent or merely because they were not opposed so far as this involved an acceptance of the allegations which the appellant made against the Taxing Officer, broad and serious as they were. Quite apart from the waste of the Taxing Officer’s time and the future consumption of an assessor’s time which would be entailed by setting aside the Taxing Officer’s determination by consent, it was not a course to be embarked on merely on the say-so of a litigant in person with the consent or non-opposition of her brother. Indeed, even if the first respondent had consented, not opposed or not attended from the outset, presumably Santow J’s insistence on the attendance of the Attorney-General in some capacity would have resulted in the appearance of the amicus curiae from the outset instead of his attendance merely during the post 15 July Page 39 of 49 Wentworth v Wentworth, [2000] NSWCA 350 1997 period. So far as the appellant’s submissions submit that the attendance of the amicus caused the appellant “increased costs” (written submissions of 14 July 2000 para 10), the course which the first respondent followed may have actually been cheaper for the appellant than the courses of consent, non-opposition or absence. [231] The appellant’s submission that Santow J should have stopped the bias hearing at a point when he was satisfied of some form of bias without hearing all the evidence does not explain why a different costs order should have been made against the first respondent. In any event the submission amounts to an attack on the discretion of Santow J in his conduct of difficult proceedings which is not justified. [232] The appellant’s submission that a wider costs order should have been made against the first respondent because the amicus curiae asked for it, even it is assumed to be factually correct, fails. The question of what costs order should have been made is one which depends on objective competing considerations, not merely on a head- count of which participants in a hearing supported particular outcomes. [233] Though the first respondent’s opposition to the appellant’s contentions about the Taxing Officer’s bias was held by Santow J to have failed, it must be remembered, first, that Santow J fell far short of upholding the totality of the allegations, and, secondly, that it cannot have been clear that any of them were correct without the detailed examination which Santow J undertook. The first respondent had a substantial contingent interest in the Taxing Officer’s determination, to the extent that it was more favourable to him than any future assessment will be. His resistance to the appellant’s allegations was neither frivolous nor intellectually baseless. [234] One relevant issue is whether the first respondent, taking into account not only his adoption of “an uncompromising adversarial role” up to 15 July 1997, but also his non-appearance thereafter, caused the appellant to incur more costs than she would have incurred had he consented, submitted to any order save as to costs, or not appeared at all (in each of which event an amicus curiae would probably have attended from the outset) and would have done so to a greater extent than the extent of her recovery of costs up to 15 July 1997. Suppose that the appellant’s recoverable costs of the review proceedings before Santow J were $W. Suppose also that the appellant would have expended $X in recoverable costs to obtain the orders foreshadowed on 6 February 1998 and made on 1 July 1998 even if the first respondent had consented to those orders, not opposed those orders, or not appeared in opposition to those orders. The difference between $W and $X (call it $Y) would be the excess costs which the first respondent’s conduct during the review proceedings had caused to be incurred. Let it also be supposed that the value of the costs order which Santow J made (being the costs up to 15 July 1997) is $Z. If $Z is greater than or approximately equal to $Y, I do not see that Santow J’s costs order as caused the appellant any injustice. The appellant has not demonstrated that $Z is less than $Y. [235] A decision about what costs orders should be made is quintessentially discretionary. In this case in particular the decision turns on imponderable and complex factors. Even if, which in my judgment is not the case, there were errors in Santow J’s reasoning, and some other approach might be preferred, they are not errors which can vitiate his conclusion unless that conclusion is shown to be unjust. Santow J’s decision has not been shown to be appellably wrong because its result has not been shown to be unjust. [236] The second group of arguments against Santow J’s costs orders rest on the supposed responsibility of the first respondent for causing the taxation to miscarry. The Court of Appeal was taken to nothing which supported these contentions factually, and thus, considering the arguments as a basis on which the Court of Appeal is invited to substitute a wider costs order, they must be rejected. There was no submission to the Court of Appeal that these arguments had been put to Santow J but not considered by him, and that the matter should be remitted to him for consideration. Thus the appellant did not argue that Santow J had denied her natural justice by failing to deal with (as distinct from rejecting) any particular submission put to him. The circumstances suggest that the reason no such argument was advanced was that it was not open. The Statement of Claim relied on before Santow J does not make any allegation against the first respondent corresponding to that made in relation to this group of arguments. That is, the sole basis on which the Statement of Claim demands a costs order against the first respondent in the event of substantive orders favourable to her being made appeared to be that since he was the defendant, and if the plaintiff succeeded in the application over his opposition, a costs order should follow. Santow J does not record any argument corresponding to the second group of arguments now under consideration. The form of the appellant’s argument in paras 98–99 of her written submissions of 26 September 2000 (quoted above) suggests that they were not put to Santow J: the argument is introduced at this point in the submissions as an answer to something that troubled Santow J, rather than as something which he wrongly failed to appreciate and decide on. The second group of arguments do not appear in the appellant’s Summons for Leave to Appeal and first appear in the 14 July 2000 submissions. [237] Santow J was making a discretionary decision, and discretionary decisions can be attacked on appeal if a relevant consideration was ignored. But for such an attack to succeed, it must generally be demonstrated that the relevant consideration or argument was put to the primary judge. This has not been demonstrated. Hence Santow J cannot justly be criticised for ignoring and failing to deal with the arguments in question. Even if (which is not accepted) there is any other flaw detectable in relation to this second group of arguments, the fact remains that the outcome has not been shown to be unjust: see [234] above. Page 40 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [238] Whether or not the view which Santow J expressed in his 6 February 1998 judgment, namely that there should be no order as to the costs of the application before him, was sounder than the view he formed in his 9 April 1999 judgment, namely that the first respondent should pay those costs up to 15 July 1997, the reasons which Santow J gave for not making a more extensive costs order against the first respondent do not appear to be appellably unsound. They achieve an outcome which was not unjust to the appellant in highly unusual circumstances. [239] There is one remaining matter concerning Santow J’s costs order against the first respondent. Santow J did not make any order in relation to interest on the costs which he ordered the first respondent to pay. The Notice of Appeal did not in terms seek an order that interest be allowed on the costs which Santow J ordered the first respondent to pay. Order 1 sought, in lieu of that costs order, an order that all the costs of the review proceedings before Santow J be paid by the first respondent “and that interest be allowed on these costs from October 1993 or alternatively from February 1998”. October 1993 was the date when the relevant Notice of Motion was filed; February 1998 was the date when Santow J concluded that the Taxing Officer’s determination ought to be set aside. The Notice of Appeal, after setting out numerous grounds contending for more favourable costs orders, stated in para 50: The plaintiff claims interest on the outstanding amounts of costs to be paid pursuant to the claims herein, in accordance with the principles in the judgment of Handley JA of 4 December 1998 in the above matter, and the Court has erred in law in not allowing interest on these costs. The case referred to is Wentworth v Wentworth (4 December 1998, unreported, New South Wales Court of Appeal, Handley JA): it contains a discussion of Part 40 rule 3(5) of the Supreme Court Rules. However, the Notice of Appeal did not seek any fall-back order to the effect that even if Santow J’s costs order was otherwise not to be changed, it should have carried interest. And there was no corresponding ground of appeal. Even if the “fall-back order” which did not appear in the Notice of Appeal had appeared in the Notice of Appeal, I would not have made it for the following reasons. First, no such order was asked for in the Statement of Claim filed on 6 August 1996. Secondly, none of Santow J’s judgments suggest that any such order was sought from him. Thus his reasons for judgment dated 6 February 1998, pages 3 and 62, set out the orders sought in the Statement of Claim without any indication that different orders were sought in argument. His reasons for judgment dated 9 April 1999 set out the costs issue (paragraph [14]) and dealt with it (paragraphs [60]–[65]) without mentioning any request for interest. Interest on costs is not raised as a matter for decision in the judgment given on 29 June 1999 rejecting the application to re-open. In view of the meticulous care with which Santow J recorded the contentions put to him, this silence suggests that he was not asked to make an order about interest on costs. Thirdly, in the appellant’s written submissions dated 14 July 2000, she set out the orders she sought on appeal. They did not include any order as to interest: see in particular Part 1, paragraphs 1 and 225. In her written submissions of 26 September 2000 she dealt with the orders sought at paragraphs 128–134, but did not mention interest. Interest was not mentioned in the Summons for Leave to Appeal dated 17 December 1999. Nor was any argument in support of a contention that Santow J ought to have ordered the first respondent to pay interest on the appellant’s costs incurred before 15 July 1997 advanced either in any of the appellant’s written submissions or in her oral address. [240] In short, no application for interest on costs has been made to this Court; if it had been made, I would have rejected it because it was not made to Santow J and has not been supported by any argument to this Court. Lump sum order [241] The appellant submitted that an order should be made that she be paid certain costs as a lump sum pursuant to Pt 52A r 6. The submission need not be dealt with, since in my opinion no costs order should be made which is more favourable to the appellant than that which Santow J actually did make (subject to the clarification discussed in [247–[249]). In any event the complexity of the proceedings has been great, and this Court is wholly unqualified to form a view as to what kind of lump sum order should be made. Setting aside non-review costs orders made by Court of Appeal on 21 February 1996 [242] Santow J refused to make any order adding to or varying any of the costs orders of the Court of Appeal made on 21 February 1996. It is for that reason that he inserted exclusions to this effect in O 3(b) and (c) made on 23 August 1999. He considered that there was a principle that a single judge of the Supreme Court, whom he described as an “inferior” court in relation to the Court of Appeal, could not attack the orders of the Court of Appeal. [243] The appellant submitted that the conclusion did not follow. The submission is difficult to deal with. It was put as follows (appellant’s written submissions dated 14 July 2000, p 26, paras 23–25): This application is not seeking to set aside orders in collateral proceedings in an inferior Court. The orders are defunct, and Page 41 of 49 Wentworth v Wentworth, [2000] NSWCA 350 have no further basis, the primary basis for their existence having been voided that is that thereafter having no effect, the review orders have no effect and consequently the Appeal Court orders are of no effect and void. By the determination to void the determinations of [the Taxing Officer], then there is no basis for the review or appeal, and accordingly those determinations are void. If there is a necessity for application for those decisions to be set aside, that will be made, but the rule of law requires that there can be no review and subsequently based on the review an appeal determination which can stand when the entire basis of the review proceedings has failed, and is not voidable, but void and the judgment and orders must be set aside. [244] In oral argument the appellant submitted that the relevant “orders” of the Court of Appeal (which were that the appellant’s appeal and the present first respondent’s cross-appeal be upheld with no order as to costs) were of no effect because they were based on a misconception apparent in that part of the Court of Appeal’s reasons for judgment recorded in para [31], p 15, of Santow J’s reasons for judgment dated 29 June 1999. The Court of Appeal’s supposed error was to assume that the Master, against whose decision the appeal was brought, was acting pursuant to an application made in the inherent jurisdiction of the court, or under Pt 52, whereas it was in fact made under Pt 61 r 3. The appellant also criticised the Court of Appeal on the ground that it did not “deal with my appeal at all”. She also criticised it for relying on findings made by the Taxing Officer as part of a determination which has now been set aside, and for not dealing with some of the appellant’s submissions. [245] An order made by the Court of Appeal in relation to the costs of an appeal is immune from change by any other court unless it is appealed against, or the Court of Appeal has given leave for it to be reconsidered. The fact (if, which is not being decided, it is a fact) that the Court of Appeal’s reasoning proceeded on the basis of one or more mistakes is irrelevant. Similarly, the fact (if it is a fact) that some argument was advanced to the Court of Appeal which was not considered by it does not invalidate the orders made unless they are overturned on appeal. The submission referred to QBE Insurance Ltd v Switzerland Insurers Workers Compensation (NSW) Ltd (1996) 134 ALR 433, but that case concerned changes to the orders of an intermediate appellate court made on appeal to the High Court on the ground that an argument had not been dealt with by the intermediate appellate court. It is not applicable to Santow J’s reasoning. [246] The appellant also submitted that Santow J could have made orders as to the costs of the appeal decided on 21 February 1996, because the Court of Appeal did not make any order on that subject. A conscious decision, recorded in the court’s orders, not to make an order as to costs in favour of one party or another is as much an order as an order that one party pay the costs of another, and equally immune from later attack except on appeal. The impact of Santow J’s orders on Master McLaughlin’s orders [247] The appellant pointed out that among the costs which O 3 of the 23 August 1999 orders reserved, on one reading of it, were costs other than those incurred before the Taxing Officer or dealt with by the Court of Appeal. The appellant accepted that it was open to Santow J at least to make costs orders in relation to matters not dealt with by the Court of Appeal. The appellant submitted in effect that so far as Santow J’s order could be read as reserving the costs, for example, of certain proceedings before Master McLaughlin which had been the subject of costs orders by Master McLaughlin not set aside on appeal, he was arguably interfering with vested rights of the appellant otherwise than as a result of valid processes of appeal or review — for no party in the application before Santow J was seeking to challenge those orders. The Court of Appeal on 21 February 1996 set aside orders of Master McLaughlin made on 10 and 24 February, 15 and 20 March and 10 August 1995; but it did not set aside any other orders of Master McLaughlin, and the appellant contended there were orders of Master McLaughlin in her favour made before 16 August 1994 which might be affected by O 3(c) made on 23 August 1999. [248] So far as they were orders of the type to which the appellant refers, this submission is meritorious in the sense that if there is any ambiguity in O 3 of Santow J’s orders it should be cleared up. In the absence of any attack on the orders of Masters favourable to the appellant, an order of Santow J which would have the effect of setting them aside and reserving the question for the future would be defective; to the extent that there is a doubt about whether O 3 made on 23 August 1999 sets them aside, it should be cleared up. Any defect of this kind in Santow J’s orders of 23 August 1999 should have been apparent from 29 June 1999, when Santow J set out a draft of them. However, the orders were not made by consent, to the extent that they are defective they may be attacked on this appeal, and to the extent that they raise doubts those doubts may be dispelled in this appeal. One solution is to insert the following at the end of O 3 made on 23 August 1999, after the word “final.” as a new sentence — For the avoidance of doubt, the costs reserved by this order do not include the costs which are the subject of orders by Masters which have not been set aside on appeal. Page 42 of 49 Wentworth v Wentworth, [2000] NSWCA 350 [249] The problem to which the appellant’s submission drew attention does not justify allowing the appeal, but there is no reason not to make a modification to Santow J’s orders clarifying their intent. The subpoenas dealt with by Hunter J [250] It was submitted that since the documents referred to in the subpoenas were relevant to the Taxing Officer’s conduct, they must be relevant to the misconduct which the appellant was alleging against him. It was also submitted that a solicitor acting for the Crown had conceded their relevance. [251] Whatever concessions may have been made by a solicitor, at the time the subpoenas were called on the second and third respondents objected to the appellant inspecting the documents produced, and Hunter J had to resolve that objection. Hunter J’s reasons for refusing the appellant’s application to inspect the documents produced in answer to the two subpoenas before him were as follows: 7. Written submissions have been presented on behalf of the Crown and Ms Wentworth has presented oral submissions, which boil down to the proposition that the documents so subpoenaed are relevant (in the sense that that term is used in discoverability and inspection of documents under the Supreme Court Rules) in relation to two issues she seeks to raise before Santow J, namely: (1) that his Honour had no due regard to the bad faith element in considering the immunity question in refusing the order for costs against the taxing officer; and (2) that his Honour’s determination, which, in substance, invalidated the taxation proceeding that had proceeded thus far, except for some interim certificates, should be reviewed to consider what Ms Wentworth has referred to as the flow-on effect in relation to the outstanding costs issues between her and the other relevant parties in the principal proceeding. 8. Objection is taken on behalf of the Crown to the inspection of these documents, essentially on the ground of relevance, and the parties are agreed, firstly, that I should read the documents so produced on subpoena and, second, determine the question of relevance in the context of the issues I have just described. I have done that. 9. I have read the material quite carefully and I am satisfied that the material is not relevant, in the sense in which I have used the term, so as to make it inappropriate that the documents should be made available for inspection by Ms Wentworth. [252] The appellant did not attack Hunter J’s formulation of the two issues which she sought to raise. That formulation must thus be accepted as correct. If the formulation of issue (1) is correct, the contents of documents passing to and from the Taxing Officer in or about 27 April and 12 May 1999 could not possibly have relevance to whether or not Santow J had had “due regard to the bad faith element in considering the immunity question in refusing the order for costs against” the Taxing Officer. That question could only be answered by analysing the course of proceedings before Santow J up to 9 April 1999. And if the formulation of issue (2) is correct, the issue of whether Santow J’s determination of 6 February 1998 should be reviewed could not be affected by the April-May 1999 documents: whether it should be reviewed would depend on whether there was any procedural inadequacy in it and on whether additional findings could legitimately be sought and made on the basis of the evidence called in the application leading to it. [253] Hunter J’s conclusions also appear to be correct on the basis that it is not open to a party to litigation to tender factual issues for determination at one point in time in order to obtain particular orders, and then, when further and different orders are sought at a later stage, without specific leave reserved by the court, to seek additional factual findings on new evidence. That must be so a fortiori when the person against whom the further and different orders are sought was not a party either when the factual issues were originally tendered for determination or when the further and different orders were sought. The time for evidence to be tendered in relation to factual findings about the Taxing Officer’s conduct was in the proceedings leading up to the judgment of 6 February 1998; the appellant’s application for costs against the Taxing Officer in the hearings leading up to the 9 April 1999 judgment can only have been based on the findings made on 6 February 1998; neither in the hearings leading up to the 9 April 1999 judgment nor in the attempt to reopen which was rejected on 29 June 1999 was any outstanding factual issue remaining; hence there was no outstanding factual issue on which the documents caught by the subpoenas could have been tendered and to which the subpoenas can have been relevant. [254] For the same reasons the Notice to Produce called on on 17 July 2000 does not catch any relevant documents. The recipient is not obliged to answer it. The documents which his counsel handed to the Court on 17 July 2000 should be returned. Notice of Contention [255] The second and third respondents argued that Hunter J overlooked their argument to him that they should be Page 43 of 49 Wentworth v Wentworth, [2000] NSWCA 350 excused even from producing the documents to the court. They submitted that they should be excused for the same reasons as those which Hunter J gave for refusing the appellant’s application to inspect the documents. This is not strictly a notice of contention point, but given that the appeal against Hunter J’s orders fails, in the circumstances there is no utility in dealing with it. Santow J’s refusal to set aside his determination of 9 April 1999 [256] On 29 June 1999 Santow J refused an application by the appellant to reopen his reasons for judgment of 9 April 1999. [257] That application was based in part on the proposition that the reasons for judgment of 9 April 1999 were founded on the Court of Appeal’s decision of 21 February 1996, which the appellant contended ought to be treated as a nullity. Santow J held that the Court of Appeal’s decision was not a nullity by reason of his avoidance of the Taxing Officer’s determination or otherwise and that he was bound by its reasoning and its orders. I agree. [258] Santow J also refused to reopen that part of his decision of 9 April 1999 which led to his conclusion that the Taxing Officer had derivative immunity and that no costs order more favourable than the one contemplated should be made. I agree with his refusal for the reasons he gave in paras [34]–[37] of his reasons for judgment dated 29 June 1999. The appellant had already been heard more than sufficiently on all issues. Role of Attorney-General in this appeal [259] The appellant objected to the appearance of the Attorney-General on the appeal as amicus curiae. She complained of the lateness of the Attorney-General’s application for leave. She complained about what was submitted to be the adversarial tone of the Attorney-General’s written submissions. She complained that the same solicitor appeared for both the Attorney-General and for the second respondent. In the peculiar and difficult circumstances of the present case, which include the fact that an application made after the close of argument by the appellant for leave to respond in writing to the Attorney-General’s written submissions was acceded to and taken advantage of, the objection should be rejected. Reserved questions [260] Since the appeal in relation to the Taxing Officer fails on other grounds, it is not necessary to examine the important questions of what the tests are for judicial immunity from suit; whether Santow J was correct in adopting a similar test in relation to the Taxing Officer’s immunity from a costs order; and whether, as the appellant submitted, Attorney-General v Kennedy Miller Pty Ltd (unreported, Court of Appeal, 31 May 1999) is inconsistent with his reasoning. The reasoning of Santow J, and to some extent the submissions of the appellant, assume the correctness of the tests for judicial immunity of judges of superior courts stated in Sirros v Moore [1975] QB 118 and adopted or assumed in Rajski v Powell (1987) 11 NSWLR 522. On a future occasion some case which is a suitable vehicle for reconsidering the correctness and scope of those tests may come before the court. I would reserve an actual decision about the correctness and scope of those tests to that occasion, at least so far as the general approval given to Rajski v Powell in the High Court permits this (see Gallo v Dawson (1988) 82 ALR 401 at 403; Re East; ex p Nguyen (1998) 196 CLR 354 at 366 n 21). Sirros v Moore was unfavourably viewed in several respects by the House of Lords in In re McC (A Minor) [1985] AC 528 . The key passage in Lord Denning MR’s reasons for judgment at 135C-H may be thought to waver confusingly between different senses of the expression “jurisdiction”. The tests propounded arguably state the immunity more narrowly than in former times. They have been questioned in the Supreme Court of Canada: Morier v Rivard [1985] 2 SCR 716 at 744 per Chouinard J. The old cases turned not so much on the protection of the judiciary from claims which might ultimately fail or succeed, but from any claim. They recognised a freedom from “continual calumniations” (Floyd v Barker (1607) 12 Co Rep 23 at 25 ; 77 ER 1305 at 1307 and “from action and question at the suit of an individual” (Garnett v Ferrand (1827) 6 B & C 611 at 625 ; 108 ER 576 at 581). The rule was established “to secure the independence of the Judges, and prevent their being harassed by vexatious actions” (Fray v Blackburn (1863) 3 B & S 576 at 578 ; 122 ER 217). The importance of the judicial immunity as recognised in the older cases lies in its absolute and non-qualified character — its capacity to be pleaded in bar to suits at the outset, so as to secure their dismissal at that point, rather than permitting the allegations to be tried: ’absolute privilege’ … is [not] a very accurate expression and I am sure that calling it a ‘privilege’ is sometimes misleading. Privilege means, in the ordinary way, a private right. Now there is no private right of a judge … to be malicious … The real doctrine of what is called ‘absolute privilege’ is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual — I should call it rather a right of the public — the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not — the reason being that it is desirable that persons who occupy certain positions as judges … should be perfectly free and independent, Page 44 of 49 Wentworth v Wentworth, [2000] NSWCA 350 and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious”: Bottomley v Brougham [1908] 1 KB 584 at 586–7 per Channell J. [261] Since drafting the above, I have had the advantage of reading Fitzgerald JA’s reasons for judgment, and in particular the learned and penetrating analysis which he has set out in paras [11]–[59]. Though I agree with that analysis, I would prefer not to decide this case on that basis, since the analysis has not been tested by experienced counsel appearing for a party whose interests require a rejection of that analysis in a case where the analysis is crucial to the outcome. The position of the Official Trustee [262] Among the papers before the Court of Appeal was a letter dated 16 March 2000 from the Official Receiver to the appellant. That letter referred to a facsimile of 15 March 2000 relating to the bankruptcy of the first respondent, noted that the appellant had applied for leave to appeal against Santow J’s costs orders, and advised that the Official Trustee had no objection to that application. There was no material indicating that the Official Trustee had been advised of the success of the application. [263] Section 58(3) of the Bankruptcy Act 1966 (Cth) provides: Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor: (a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or (b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. The expression “provable debt” is defined in s 5(1) as meaning “a debt or liability that is, under this Act, provable in bankruptcy”. Section 82(1) and (2) provide: (1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. (2) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy. The expression “the Court” is defined in s 5(1) as meaning “a Court having jurisdiction in bankruptcy under this Act”. The Supreme Court does not have jurisdiction in bankruptcy. [264] The filing of the Summons for Leave to Appeal is, and the filing of the Notice of Appeal on 19 July 2000 may be, a fresh step in the proceedings after the first respondent became bankrupt. The non-opposition of the Official Trustee to the Summons would not appear of itself to operate as a substitute for the leave of a court having jurisdiction in bankruptcy under the Act, such as the Federal Court of Australia. Whether a claim for costs is a provable debt can be a matter of controversy. This must particularly be so where, as here, the claim failed in part before the bankruptcy and there is an appeal seeking a wider order. Had the appellant enjoyed success in contending that a costs order should be made against the first respondent which was more extensive than Santow J made, it would have been necessary to consider whether the notice to the Official Trustee was sufficient, and whether this Court should cease to proceed further without notice to him and without giving the appellant an opportunity to seek the leave of the Federal Court pursuant to s 58(3). But in view of the appellant’s lack of success, the issue does not arise. Extraneous submissions [265] Interspersed through the appellant’s arguments were submissions that various courts were deliberately misled by the first respondent or the Attorney-General. No material was relied on which supported these submissions. Costs orders and other orders [266] The appellant has enjoyed success to the extent of obtaining an order clearing up a potential doubt in the scope of Santow J’s orders. That success was too minor to justify a costs order in her favour against any of the respondents, particularly in view of the fact that the matter could have been remedied before Santow J. [267] The second and third respondents enjoyed success to the extent that their defence of Hunter J’s orders has succeeded and to the extent that the appellant in effect abandoned the arguments he put against them in relation to Deputy Registrar Studdert’s orders. In my opinion costs should not be ordered against the appellant in that respect Page 45 of 49 Wentworth v Wentworth, [2000] NSWCA 350 in favour of any of the respondents. The entire proceedings have been bedevilled with procedural doubts and confusion. There was some limited basis for the appellant’s fear that the second and third respondents were seeking not only to defend Hunter J’s orders, of which they were beneficiaries, but to put wider arguments against her interests. [268] The Attorney-General is not entitled to any costs order in his favour because his sole role was as an amicus curiae who must bear his own costs. [269] The remaining matters relate to the documents caught by the subpoenas with which Hunter J dealt, and the documents caught by the Notice to Produce called on on 17 July 2000. Hunter J directed that a sealed envelope containing the documents caught by the subpoenas remain with them until further order. No further order appears to have been made. It seems appropriate that an order be made that the parties who produced those documents should uplift them. The documents handed to the court in answer to the Notice to Produce were directed to be kept in a sealed envelope pending the hearing of the appeal. The appeal having now concluded, an order of the same kind should be made in relation to those documents too. Orders [270] I propose the following orders: 1. That the appeal be dismissed. 2. That Order 3 made by Santow J on 23 August 1999 be amended by adding the following: For the avoidance of doubt, the costs reserved by this order do not include the costs which are the subject of orders by Masters which have not been set aside on appeal. 3. That the second and third respondents uplift the documents which either of them delivered to the court in answer to the subpoenas the subject of Hunter J’s decision of 7 June 1999 or in answer to the Notice to Produce called on on 17 July 2000. 4. That there be no order as to the costs of the appeal. Davies AJA. [271] I have had an opportunity to read the reasons for judgment prepared by Heydon JA. I agree with the views expressed by his Honour and with the orders which his Honour proposes. [272] In the present case, Santow J set aside the Taxing Master’s certificate on the ground of reasonable apprehension of bias. The impugned acts of the Taxing Master were judicial acts done within jurisdiction in the execution of the Taxing Master’s duty. The Taxing Master was entitled to the benefit of the common law immunity which attaches to judicial officers. Whatever may be the ambit of the Court’s power to make an order as to costs against an officer of the Court in the exercise of its supervisory jurisdiction over its own officers, the Court would never make such an order in the circumstances pertaining in the present case. The appellant’s claim that the Taxing Master or the Crown pay the costs of the taxation was misconceived on both substantive and procedural grounds. I agree with Heydon JA on all the issues which his Honour has discussed. Order See para 270 The appellant appeared in person. No appearance for the first respondent. Counsel for the second and third respondents: Mr P Lakatos Counsel for the Attorney-General: Ms N Abadee Solicitors for the second and third respondents: I v Knight, Crown Solicitor Page 46 of 49 Wentworth v Wentworth, [2000] NSWCA 350 1 See Rule 9 and Divisions 3 and 6. 2 Wentworth v Wentworth (1999) 46 NSWLR 300 at 305. 3 See also the definition of “defendant” in s 19(1) of the Supreme Court Act and s 75A and Part 7 of that Act and Part 51 of the Rules in relation to appeals. 4 Cf Vestris v Cashman (1999) 72 SASR 449 at 458 467 and 468. See also Victoria v Sutton (1998) 195 CLR 291 at 316–317; Merit Protection Commissioner v Nonnenmacher (1999) 86 FCR 112. 5 See Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178 at 182–183 and 193–194; Rajski v Computer Manufacture and Design Pty Ltd (1982) 2 NSWLR 443 at 446–448. 6 See the definition of “rules” in s 19(1) and s 124(1)(j) of the Supreme Court Act. 7 Knight; Aiden Shipping Co Ltd v Interbulk Ltd (1986) 1 AC 965 at 975 980 and 981. 8 See Knight at the foot of p 183; Aiden Shipping at pp 975, 981. 9 Similar provisions were contained in Part 52.4 which applied until 30 June 1994 and continues to apply to the extent provided for in Part 52.1. 10 Supreme Court Act s 3(1); Wentworth v Attorney-General (NSW) (1984) 154 CLR 518. 11 See Part 52 A.4(2); cf Leicester v Walton unreported, 22 November 1995. It is unnecessary to discuss other obstacles which the appellant would confront in establishing either that the Taxing Officer’s alleged misconduct breached some duty which the State directly owed to her or that the State is vicariously liable to her, a proposition inconsistent with this Court’s decision in Rajski v Powell (1987) 11 NSWLR 522; see per Kirby P at p 530. 12 See, for example, Myers v Elman (1940) AC 282 ; Aiden Shipping (1986) 1 AC 965 ; Knight (1992) 174 CLR 178. 13 See s 76C of the Supreme Court Act and Part 52 A.4(5)(a), 43,43A, and 44. 14 cf Pinebelt Pty Ltd v Bagley [2000] NSWSC 655. See also TGA Chapman Ltd v Christopher (1998) 1 WLR 12 . 15 Freeman v Trimble (1906) 6 SR 133; Rogers v Commins (1906) 24 WN 3; Horne v Leigh (1906) 7 SR 51 16 Xuereb v Viola (1989) 18 NSWLR 453 at 465–466. 17 See also ss 124(1)(h) and (s) of the Supreme Court Act. 18 Reid v Howard (1995) 184 CLR 1 at 16. 19 See Knight 174 CLR 178, 185, 205; Aiden Shipping (1986) 1 AC 965 at 975 . 20 cp Re East; ex parte Nguyen (1998) 196 CLR 354. 21 For example, for misfeasance in public office: see Northern Territory v Mengel (1995) 185 CLR 307; Three Rivers District Council v Governor and Company of the Bank of England [No .3] (2000) 2 WLR 220 . 22 (1998) 196 CLR 354. 23 Re East196 CLR 354, 365–366. See also Gallo v Dawson (1992) 66 ALJR 859. Earlier proceedings in Gallo are reported at (1988) ALJR 121 and (1990) 64 ALJR 859. 24 Re East196 CLR 354, 377. 25 Re East196 CLR 354, 388–389 26 (1975) QB 118 . 27 For example, Moll v Butler (1985) 4 NSWLR 231; Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48. 28 (1975) QB 118 . 29 (1975) QB 118 at 136 per Lord Denning M.R. See also 139–141 per Buckley LJ; 149 per Ormrod LJ The intention in Sirros appears to have been to eliminate a distinction which might otherwise exist at different levels of the judicial hierarchy. See (1975) QB 118 at 136 . See also Attorney-General v British Broadcasting Corporation (1979) 3 WLR 312 . Re Racal Communications Ltd (1981) AC 374 at 382 . Re McC ( A Minor) (1984) 3 WLR 1227 ; Rajski v Powell (1987) 11 NSWLR 522 at 533; Yeldham v Rajski (1989) 18 NSWLR 48 at 70. 30 Cp Mann v O’Neill (1997) 191 CLR 204 at 213 and 239–240. 31 (1975) QB 118 . Page 47 of 49 Wentworth v Wentworth, [2000] NSWCA 350 32 It is unnecessary for present purposes to discuss the numerous cases which bear on this and associated issues: see, for example, DMW v CGW (1982) 151 CLR 491 at 509; Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 56; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; Palmer v Clarke (1989) 19 NSWLR 158; Grassby v R (1989) 168 CLR 1; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 16–17 and 27–28; Reid v Howard (1995) 184 CLR 1 at 16. 33 (1975) QB 118 . 34 (1975) QB 118 . 35 (1975) QB 118 . 36 (1975) QB 118 . 37 Sirros v Moore (1975) QB 118 at 132 . See also Anderson v Gorrie (1895) 1 QB 668 at 670 . 38 (1978) 1 NZLR 291. 39 Nakhla (1978) 1 NZLR 291 at 301. 40 (1978) 1 NZLR 291 at 301. 41 (1988) 63 ALJR 121 at 122. See also Rajski v Powell (1987) 11 NSW LR 522. 42 Gallo v Dawson (1990) 64 ALJR 458 at 460. 43 Gallo v Dawson (1992) 66 ALJR 859. 44 Gallo v Dawson (1992) 66 ALJR 859. 45 (1989) 18 NSWLR 48. 46 (1988) 63 CLJR 121 at 122. 47 (1978) 1 NZLR 291. 48 (1989) 18 NSWLR 48. 49 (1987)11 NSWLR 522 50 196 CLR 354. 51 (1987) 11 NSWLR 522. 52 Rajski v Powell (1987) 11 NSWLR 522 at 538–540. 53 Rajski v Powell (1987) 11 NSWLR 522 at 539. See also Anderson v Gorrie (1895) 1 QB 668 at 670 . 54 See Rajski v Powell (1987) 11 NSWLR 522 at 531 ff. 55 Rajski v Powell (1987) 11 NSWLR 522 at 532–533. 56 Rajski v Powell (1987) 11 NSWLR 522 at 534. 57 386 US 547, 553–554 (1967). 58 Rajski v Powell (1987) 11 NSWLR 522 at 535. 59 (1984) 3 WLR 1227 at 1236 . 60 (1989) 18 NSWLR 48. 61 (1989) 18 NSWLR 48. 62 (1989) 18 NSWLR 48 at 58. 63 (1989) 18 NSWLR 48 at 58. 64 (1989) 18 NSWLR 48 at 61. 65 (1897) 11 NSWLR 522. 66 Yeldham v Rajski (1989) 18 NSWLR 48 at 66. 67 (1989) 18 NSWLR 48 at 69. 68 (1975) QB 118 . 69 Sirros (1975) QB 118 , at p 132. Page 48 of 49 Wentworth v Wentworth, [2000] NSWCA 350 70 Yeldham v Rajski (1989) 18 NSWLR 48 at 69. 71 Yeldham v Rajski (1989) 18 NSWLR 48 at 71–72. 72 Yeldham v Rajski (1989) 18 NSWLR 48 at 72–73. 73 Gallo v Dawson (1988) 63 ALJR 121 at 122; Yeldham v Rajski (1989) 18 NSWLR 48 at 70. 74 El Deeb v Magistrates Court of South Australia (1999) 72 SASR 596 at 598. See also Ex p Blume; re Osborn (1958) 75 WN (NSW) 411; Robinson v Paterson [1999] VSC 60. 75 Najjar 25 NSWLR 224. 76 Attorney General of NSW v Kennedy Miller Television Pty Ltd (unreported) NSWCA40574/97, 31 May 1999. 77 Najjar 25 NSWLR 224 was concerned with a private referee, not a Judge, master, registrar appointed to act as a referee with the concurrence of the Chief Justice : see s 124(2)(b) of the Supreme Court Act and Part 72.3(2) of the Rules. 78 It is unnecessary for present purposes to engage in a detailed discussion of the imprecise concept of judicial power : see, e.g., Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256–259 and 267–269; Attorney-General (Cwlth) v Breckler (1999) 163 ALR 576. 79 See also s 104. 80 For example, Part 51.58 81 (1982) 150 CLR 49. See also Harris v Caladine (1991) 172 CLR 84 and Harrington v Lowe (1996) 190 CLR 311. 82 Under s 75(iii) of the Constitution by virtue of s 39(2) of the Judiciary Act 1903 (Cwlth). 83 Hospital Contribution Fund 150 CLR 49, 54. 84 Hospital Contribution Fund 150 CLR 49, 58. 85 Hospital Contribution Fund 150 CLR 49, 59. See also pp 60, 60 63 and 64 (Mason J), 66 (Murphy J), 67 (Aicken J), 73 (Wilson J), 76 and 80 (Brennan J). 86 See, for example s 113(1) and 114(1) of the Supreme Court Act. 87 (1877) 3 QBD 1 . See also Earl of Shrewsbury v Wirral Railways Committee (1895) 2 Ch 812 ; Cannings Ltd v County Council of Middlesex (1907) 1 KB 51 ; Re McMillan (1905) 5 SR 350 (F.C.). 88 (1867) LR 3 QB 54 . 89 (1877) 3 QBD 1 ,4 . 90 See Saddington “Taxation of Costs Between Parties”, (1919), Law Book Co, p 23. 91 Parts 52, 52A and 61 and Schedule E to the Rules; Ahern, Weingart and Johnson, “Legal Costs Handbook”, (1995), LBC Information Services, p 118. 92 Munster v Lamb (1883) 11 QBD 588; Cabassi v Villa (1940) 64 CLR 130. 93 Pedley v Morris (1891) 61 LJ QB 21. 94 Attorney General of NSW v Kennedy Miller Television Pty Ltd (unreported) NSWCA40574/97, 31 May 1999. 95 (1991) 25 NSWLR 224 96 (1991) 25 NSWLR 224. 97 In Najjar 25 NSWLR 224, reference was made to Xuereb v Viola (1989) NSWLR 453, but no reference was made to Part 52.4(2) although it held in Xuereb that a referee is not an officer of the Court. 98 (1991) 25 NSWLR 224 at 233–235. 99 (1991) 25 NSWLR 224 at 248–251. 100(1991) 25 NSWLR 224 at 269–270. 101(1991) 25 NSWLR 224 at 274–275. 102(1991) 25 NSWLR 224. 103See 4 Halsbury’s Law of England, vol 1, para 206; Najjar 25 NSWLR 224, 249 (Clarke JA). 104(1989) 18 NSWLR 48. 105See s 121 and 40(2) of the Supreme Court Act and Parts 52, 52A and 61 and Schedule E to the Rules. Page 49 of 49 Wentworth v Wentworth, [2000] NSWCA 350 End of Document