Ballantyne v Riemer

[2003] NSWSC 82

CITATION:	Ballantyne v Riemer & Anor [2003] NSWSC 82
HEARING DATE(S):	27 November 2002
JUDGMENT DATE:	25 February 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	See paragraphs 8 & 10 of the judgment.
CATCHWORDS:	Costs - Application for Suitors' Fund Certificate - no question of principle
LEGISLATION CITED:	Suitors Fund Act 1951
CASES CITED:	Ballantyne v Riemer & Anor [2002] NSWSC 1156
PARTIES :	Trevor John Ballantyne Nicholas Riemer LCM Tania McGarritty
FILE NUMBER(S):	SC 12339/01
COUNSEL:	The Appellant in person Mr D Burwood for the Second Respondent
SOLICITORS:	The Appellant in person Crown Solicitors for the First Respondent Short Flynn & Co Lawyers for the Second Respondent

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Riemer LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Tuesday, 25 February 2003

12339/01 Ballantyne v Riemer & Anor

Judgment (Costs)

1 His Honour: I gave judgment in these proceedings on 2 December 2002. The appeal from the Local Court was allowed in part, the order for costs made by the Local Court on 20 February 2001 being set aside and the proceedings being remitted to the Local Court to re-hear and determine the question of costs according to law. For the reasons given in that judgment I made no order as to costs in relation to the proceedings before me. However, the parties not having been heard in that regard, I granted liberty to apply for reconsideration of the question of the costs of the proceedings before me.

2 Ms McGarritty, through her counsel, has availed herself of that opportunity in a written submission dated 19 December 2002. Mr Ballantyne has made no application for reconsideration and has informed me, through my Associate, that he does not wish to respond to the submission lodged on behalf of Ms McGarritty.

3 The submission lodged by counsel for Ms McGarritty is commendably well focused and expressed in clear terms. The application for reconsideration is limited to an application for the issue of a certificate under the Suitors’ Fund Act 1951 in favour of Ms McGarritty in relation to the proceedings before me. Grounds for this submission are as follows.

(a) The appeal against the decision of the Magistrate was instituted by the appellant due to his dissatisfaction with the decision of the first respondent on 20 February 2001;
(b) The Supreme Court has agreed partly with the grounds of the appellant’s appeal by finding an error of law on the part of the first respondent;
(c) The second respondent’s conduct was not a cause of the appellant’s dissatisfaction and has provided no grounds for the appeal;
(d) The Supreme Court has not made a finding that the second respondent or her legal representative contributed to the error of law made by the first respondent;
(e) At no time has the second respondent been able to represent herself. Mrs McGarritty is a married woman with three children who works part time as a shop assistant. She has been faced by the choice of not defending her interests or retaining professional representation. She chose the latter.
(f) The second respondent is the only party to have incurred professional legal costs and is prejudiced by a no costs order to the extent of having incurred those costs, not of her own volition, but as a party joined to the appellant’s action in appealing the decision of the Magistrate;
(g) In the conduct of its response to the appeal the second respondent has acted fairly towards the self represented appellant. There is no evidence that the second respondent has ever exercised more than its right to put the appellant to proof of his case and to do so in a timely fashion according to the rules of the Court;
(h) It is fair and just in all the circumstances that the second respondent have her legal costs of the proceedings of 27 November 2002 met out of the Suitor’s Fund.

4 It is correct, as stated in paragraph (d) above that I made no finding in my judgment that Ms McGarritty or her legal representative at the hearing in the Local Court contributed to the error of law made by the magistrate in failing to afford procedural fairness to Mr Ballantyne in relation to the determination by him of Ms McGarritty’s application for costs in the Local Court proceedings. I now make that finding.

5 The finding which I now make is not a finding on any matter in issue before me at the hearing which gave rise to my judgment of 2 December 2002. It is a finding on a fresh application, namely the application on behalf of Ms McGarritty for an order under the Suitors’ Fund Act. As such, I am competent to make that finding at this stage.

6 The circumstances in which the order for costs was made by the magistrate appear from the passage of the transcript which is quoted in paragraph 45 of my judgment. It is apparent that, at the conclusion of the hearing, Ms McGarritty’s solicitor made the application for costs, handing to the magistrate a schedule of the costs claimed; that no copy of the schedule had previously been provided to Mr Ballantyne; that the solicitor did not have a copy for him; that no copy was then made and provided to him; that the magistrate thereupon determined that an order for costs should be made against Mr Ballantyne without hearing him on that question; that the magistrate then summarised what was in the schedule of costs and asked Mr Ballantyne what he wished to say about the quantum of the costs; that Mr Ballantyne’s response was that he had not seen the schedule and that he was not prepared to make any submission until he had “a detailed opportunity to examine those”; and that, without providing Mr Ballantyne with any such opportunity, the magistrate then determined that the quantum of costs was reasonable as claimed.

7 In these circumstance, I find that Ms McGarritty’s legal representative was complicit in the denial of procedural fairness to Mr Ballantyne. His conduct, in that regard, was conduct on behalf of his client and must be attributed to her, innocent though she be.

8 For these reasons, the application for a certificate under the Suitors’ Fund Act 1951 in relation to the hearing of the proceedings before me is dismissed.

9 Ms McGarritty’s present counsel has been given an opportunity to be heard in relation to the above proceedings and the implications in relation to the present application.

10 I take the opportunity to correct order 4 made on 2 December 2002, under the “slip rule”. That order was made with the intent that the second defendant would be entitled to recover from the Suitors’ Fund so much of the second defendant’s costs incurred on the appeal as related to the appeal against dismissal of the proceedings by the Master. To make the order clear, I substitute the following order: “The second respondent to have a certificate under the Suitors’ Fund Act 1951 in relation to the appeal from the determination of Master Harrison on 5 December 2001 dismissing the proceedings”.

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Last Modified: 03/03/2003