Adams v Ditman No. Scciv-01-410

[2001] SASC 115

ADAMS v DITMAN
[2001] SASC 115

Magistrates Appeal (Criminal)

1. 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.

2. The notice of appeal identifies the decision of appeal is against simply ‘costs’.

3. 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”).

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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 should have made an application to the Magistrate for an order for costs in her favour. Ms Adams acknowledges that she did not seek a costs order, the reason being that she did not know she needed to do so. She was unrepresented before the Magistrate.

11. In one sense, the appeal before me relates to the costs order made in favour of Ms Robinson, but the real complaint made by Ms Adams is that she has not obtained a costs order against Mr Ditman. Had she sought an order for costs against Mr Ditman, she might have obtained an order that he pay to her the costs payable to Ms Robinson.

12. The power to award costs, conferred by s.189 of the Act is wide enough to make such an order. However, I have no way of telling whether or not it would have been proper to make such an order.  Ms Adams might also have obtained an order for payment of other costs incurred by her, although these costs would have been limited.

13. However, there are several difficulties confronting this appeal.  As to the order made in favour of Ms Robinson, there is nothing before me to indicate that that order was wrongly made. Accordingly, to that extent, the appeal would have to be dismissed. After that the problem is that Ms Adams is complaining that she has not got a costs order against Mr Ditman, which might have included the costs payable to Ms Robinson, because she did not seek one.  She complains that the Magistrate did not inform her that she needed to seek one, if one was to be made. But there is no order there against which she can appeal.

14. The Magistrates Court does have a wide power under s.76b of the Act to “… correct an error in a conviction or order”.  Does this section apply to the present case?

15. Ms Adams does not require the correction of an order, but seeks an order which was not previously sought. But, in my opinion, the power should not be read narrowly. There is no reason why the power should not be interpreted to include something that has been entirely omitted as a result of inadvertence or oversight:  see L Shaddock & Associates Pty Ltd v Paramatta City Council (1982) 151 CLR 590 at 594-595. The Rule of Court, considered by the High Court in that case, expressly referred to ‘omissions from orders’, but in my opinion the section in question should be read as likewise embarrassing omissions. An omission can be regarded as an error without unduly straining the language.

16. There is authority to support the view that while the power of the court extends to cases of inadvertence, it does not extend to cases of afterthought or cases involving a later change of mind:  see Snell v Pryce (1992) 109 FLR 382. This does not appear to be such a case. Ms Adams says that she always expected to get costs against Mr Ditman, and made no application, only because she did not know she should have done so. Accordingly, it does not look like a change of mind, although that is not for me to decide.

17. If Ms Adams makes application to the Magistrates Court for an order for costs, that court probably would have power to consider the application and to make an order in her favour. Whether such an order should now be made would depend upon the court’s acceptance of her explanation for the delay, and possibly on whether the court was satisfied that Ms Adams always intended to claim costs, and failed to seek a formal order for costs only because she was not informed by the Magistrate that she had to do so.

18. If the court was satisfied as to all those matters it might be appropriate to make an order for costs. However, there may be other reasons why the costs order would be refused in any event. That is something that can be decided only by the Magistrate in question.

19. While it is unfortunate that the matter cannot be resolved at this stage, my view is that I have no power to deal with the problem that confronts Ms Adams. She will have to make an application to the Magistrates Court to have the matter relisted and then seek an order for costs against Mr Ditman.

20. For those reasons I must dismiss the appeal before me, leaving Ms Adams to pursue the matter further in the Magistrates Court, if she so wishes.

21. However, the appeal being out of time the appropriate order to make is that I refuse to extend the time within which the appeal may be instituted.

22. Should the Magistrates Court later refuse to make an order for costs, and should Ms Adams wish to pursue the matter on appeal, unfortunately she will have to issue a fresh notice of appeal, appealing against that decision.

23. I make it plain, that I make no comment on whether an order for costs should be made in her favour, nor on whether an appeal to this Court would succeed, if she appeals to this Court. Accordingly, the order of the court is that the application for an extension of time, within which to appeal, be refused.  As Mr Ditman makes no application for costs, despite my indication that he could do so, there will be no order for costs in his favour, even though I would have made one had he applied.