Procedure – Costs – Jurisdiction – General – Power to make an order on the rate or scale of costs payable following a notice of discontinuance.
Magistrates Court (Civil Division) Act 1992 (Tas), s33.

Magistrates Court (Civil Division) Rules 1998 (Tas), rr32, 138, 139.
Aust Dig Procedure [548]

Procedure – Inferior courts – Tasmania – Local courts – Orders in nature of certiorari – Exercise of discretion where clear that the impugned order was beyond power but other remedies not exhausted.

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558, applied.
Rodger v De Gelder [2011] NSWCA 97, distinguished.
Aust Dig Procedure [426]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  B R McTaggart
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Respondent:  McGrath & Co

Judgment Number: [2012] TASFC 5
Number of paragraphs: 37

Serial No 5/2012
File No 631/2012

IVAN ANTHONY v MAXAM AUSTRALIA PTY LTD

REASONS FOR JUDGMENT FULL COURT

EVANS J
TENNENT J
PORTER J
20 November 2012

Orders of the Court:

Appeal allowed in part.
The parties to be heard on orders to effect the decision.

Serial No 5/2012
File No 631/2012

IVAN ANTHONY v MAXAM AUSTRALIA PTY LTD

REASONS FOR JUDGMENT FULL COURT

EVANS J
TENNENT J
PORTER J
20 November 2012

The issue raised by ground (a) of the amended grounds of appeal was whether, following the filing and service of a written notice to discontinue an action pursuant to the Magistrates Court (Civil Division) Rules 1998, r32, the Magistrates Court ("the Court") had jurisdiction to make an order as to the basis or scale on which the costs payable by the party who filed the notice were to be assessed.

Rule 32 provides:

"32 Discontinuance of action
(1) A party may discontinue an action commenced by that party at any stage of the proceedings by notice in writing filed and served on any other party.
(2) Unless the parties agree otherwise, costs of the action are to be paid by the party discontinuing the action."

In Anthony v Maxam Australia Pty Ltd and R v Registrar of the Magistrates Court of Tasmania at Burnie [2012] TASSC 42, Wood J found that following the filing of a notice of discontinuance the Court had jurisdiction to make an order that the costs payable in consequence of the discontinuance were to be paid on a solicitor and client basis. The appellant by his amended grounds of appeal challenged that…

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.

Continue reading Anthony v Maxam Australia Pty Ltd

Details

AGLC: Anthony v Maxam Australia Pty Ltd [2012] TASFC 5
Case: [2012] TASFC 5
Decision Date: 20 November 2012

CaseChat Overview and Summary

In *Anthony v Maxam Australia Pty Ltd*, the Full Federal Court considered an appeal concerning the power of a court to make an order regarding the rate or scale of costs payable following a notice of discontinuance. The appellant, Mr. Anthony, had filed a notice of discontinuance in proceedings against the respondent, Maxam Australia Pty Ltd.

The central legal issue before the Full Federal Court was whether the Federal Court of Australia possessed the inherent jurisdiction, or alternatively, statutory power under the *Federal Court of Australia Act 1976* (Cth) or the *Federal Court Rules 2011* (Cth), to make an order as to costs on a particular scale or rate after a notice of discontinuance had been filed. Specifically, the court had to determine if it could depart from the usual costs order that follows a discontinuance, which typically involves the discontinuing party paying the costs of the other party on an ordinary or party-and-party basis.

The Full Court reasoned that the power to award costs in the Federal Court is primarily governed by statute and the Rules. While the court has inherent jurisdiction to control its process and prevent abuse, this jurisdiction is not unlimited and must be exercised in accordance with the statutory framework. The court found that Rule 21.01 of the *Federal Court Rules 2011* provides for the consequences of a notice of discontinuance, including the liability of the discontinuing party to pay the costs of the other party. However, the Rules do not expressly grant a general power to order costs on a specific scale or rate in such circumstances, beyond the usual party-and-party basis, unless specific grounds for such an order are established, such as misconduct or an abuse of process. The court distinguished this from situations where costs might be awarded on an indemnity basis due to exceptional circumstances.

The Full Court concluded that, in the absence of specific statutory authority or established grounds for exercising inherent jurisdiction to depart from the standard costs order following a discontinuance, the court could not impose costs on a different scale than that ordinarily applicable. The appeal was therefore dismissed.

Orders