Adams v Ditman No. Scciv-01-410 - [2001] SASC 115

ADAMS v DITMAN
[2001] SASC 115
Magistrates Appeal (Criminal)

DOYLE CJ (ex tempore) Ms Adams has appealed against a decision of the Magistrates Court. She is unrepresented. Ms Adams, and the respondent to the appeal, Mr Ditman, both appeared before me. Mr Ditman also is unrepresented.
The notice of appeal identifies the decision of appeal is against simply ‘costs’.
The Magistrates Court file shows that on 25 August 1999 Ms Adams made a written complaint alleging a reasonable apprehension that Mr Ditman, unless restrained, might cause personal injury, or damage property, or behave in an intimidating or offensive manner. The complaint went on to seek a restraining order against Mr Ditman; a restraining order to protect Ms Admas and her three children. That complaint was made under s 99 of the Summary Procedure Act (“the Act”).
On 3 September an interim restraining order was made against Mr Ditman. That order was made under s 99c(2) of the Act, which permits the making of a restraining order in the absence of a defendant who has not been summoned to appear at the hearing. The file indicates that Ms Adams appeared on that occasion, and I assume she gave evidence to support the complaint.
As required by s 99c(2), a summons was then issued to Mr Ditman, notifying him of the interim order, and calling on him to appear before the court to show cause why the order should not be confirmed. A return date of 5 November 1999 was fixed. There were several adjournments of the matter.
On 15 March 2000, apparently on Ms Adam’s application, a Magistrate exercised the power, conferred by s 20 of the Magistrates Court Act, to issue a summons requiring certain witnesses to attend to give evidence at the proceedings. One of those persons was Ms Robinson.
The hearing of the proceedings was then adjourned to May 2000. The hearing proceeded on 30 and 31 May 2000. Evidence was taken. An order was made confirming the restraining order indefinitely. That order was made under s.99c(7) of the Act. The Magistrate made an order that Ms Adams pay to Ms Robinson costs of $65.
There is nothing on the file to indicate precisely why the order was made, but I assume that the payment was the ordinary witness fee payable to Ms Robinson for attendance in response to the witness summons. Information given to me this morning by Ms Adams tends to confirm that view.
The appeal before me was not lodged until 23 February 2001, well outside the required time. The explanation for the delay is contained in an affidavit filed in this Court.
Ms Adams says that in September 2000 she received notice that steps were being taken to enforce, against Ms Adams, the order for payment of $65 to Ms Robinson. It was only then that Ms Adams was given advice that her belief that costs would be ordered in her favour, as a matter of course, was wrong, and that she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SASC 115
Decision Date: 11 April 2001

CaseChat Overview and Summary

Ms Adams has appealed against a decision of the Magistrates Court concerning an order for costs. The appeal was heard by Doyle CJ in the Supreme Court of South Australia. Ms Adams, who was unrepresented, and Mr Ditman, who also appeared unrepresented, both attended the hearing. The appeal was made against the decision of the Magistrates Court to order Ms Adams to pay costs to Ms Robinson, a witness who had attended the proceedings at Ms Adams' request. The real issue, however, is that Ms Adams did not receive an order for costs against Mr Ditman, the respondent in the underlying proceedings.

The legal issues before the court involved the interpretation of the Magistrates Court Act and the power of the Magistrates Court to correct errors in its orders. The court considered whether an omission, such as failing to order costs in Ms Adams' favour, could be considered an error that the court had the power to correct. The court also examined whether the appeal was lodged within the appropriate time frame and whether Ms Adams had a valid reason for the delay.

Doyle CJ found that while the Magistrates Court had the power to correct errors in its orders, this power did not extend to cases of inadvertence or oversight that resulted in an omission. The court held that the appeal was out of time and that Ms Adams should have made an application for costs against Mr Ditman. The court dismissed the appeal and refused to extend the time within which the appeal could be instituted. The court made no comment on whether an order for costs should be made in Ms Adams' favour or whether an appeal to the Supreme Court would succeed if she chose to pursue the matter further.

The court's order was that the application for an extension of time to appeal be refused. As Mr Ditman did not apply for costs, there was no order for costs in his favour. Ms Adams was left to pursue the matter further in the Magistrates Court, if she so wished. Should the Magistrates Court later refuse to make an order for costs, and should Ms Adams wish to pursue the matter on appeal, she would have to issue a fresh notice of appeal.

Orders