Barrett v City of Cockburn

[2023] WASC 384 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BARRETT -v- CITY OF COCKBURN [2023] WASC 384 (S)

CORAM:   VANDONGEN J

HEARD:   ON THE PAPERS

DELIVERED          :   6 SEPTEMBER 2024

FILE NO/S:   SJA 1037 of 2022

BETWEEN:   DONALD GRAHAM BARRETT

Appellant

AND

CITY OF COCKBURN

Respondent

Catchwords:

Practice and procedure - Costs - Apportionment of costs - Whether perfected orders can be varied

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 14(1)(h)
Rules of the Supreme Court 1971 (WA), O 66 r 52, O 66 r 53

Result:

Orders varied

Category:    B

Representation:

Counsel:

Appellant	:	N/A
Respondent	:	N/A

Solicitors:

Appellant	:	In person
Respondent	:	McLeods

Case(s) referred to in decision(s):

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

VANDONGEN J:

1. The appellant unsuccessfully appealed against judgments of conviction that were entered in the Magistrates Court in respect of two offences contrary to certain local laws in force in the City of Cockburn.  The appellant was, however, successful in an appeal against a costs order made in the Magistrates Court consequent upon those convictions.

2. On 4 October 2024, when I published my reasons, the parties were invited to make oral submissions about the costs orders that should be made.  After hearing from both parties, I made an order that the appellant was to pay the respondent's costs of the appeal, to be taxed if not agreed. 

3. Before that order was made, the appellant submitted that any award of costs in favour of the respondent should be 'reduced' because he had been successful in his appeal against the cost order made in the Magistrates Court.  In response to the appellant's submission, I informed him that if he was unable to reach an agreement with the respondent about the costs of the appeal, his partial success on the appeal was a matter that would be taken into account at a taxation. 

4. Neither party, including counsel for the respondent, raised any issue about what I had said. 

5. After a taxation subsequently took place on 29 May 2024, before a registrar of this court, several orders were made, including an order that if by 4.00 pm on 12 June 2024 the appellant or the respondent had not made an application for review pursuant to O 66 r 53 of the Rules of the Supreme Court 1971 (WA) (Rules), the taxing officer would sign a Certificate of Taxation in the sum of $23,434.46.[1] 

   [1] At the time my reasons were published, the respondent's counsel advised me in open court, and in the presence of the appellant, that the respondent was prepared to agree to an order being made that the appellant pay the respondent's costs of the appeal fixed in the sum of $15,000.  Evidently the appellant chose not to accept the respondent's offer.

6. During the taxation proceedings, the registrar correctly informed the appellant that she did not have the power to apportion costs on the basis that he had successfully appealed against the costs order that was made in the Magistrates Court.  The registrar told the appellant if he wanted the costs of the appeal to be apportioned to reflect his success in his appeal against costs, he would need to make an application to the judge who heard his appeal.

7. On 13 June 2024,[2] the appellant filed an application in which he sought several orders (Application).  One of those orders was in the following terms:

   In accordance with Order 66 Rule 52 a Judge of the Supreme Court tdetermine [sic] in the inerest [sic] of the administration of justice that the costs of SJA 1037-2022 be decided on an apportionment of costs basis.

   [2] The registrar made an order on 17 June 2024 that time for compliance with the orders made on 29 June 2024, including the order for the filing of an application for review, be extended to 10.00 am on 14 June 2024.

8. This part of the Application has been referred to me for determination.  It is my understanding that the balance of the Application is to be dealt with by the registrar conducting the taxation.

9. Both parties have filed written submissions. 

10. The respondent submits that it is not reasonable or in the interests of justice for this court to make the order sought by the appellant, and further submits that to do so would be inconsistent with case management principles.  The respondent also submits that as the total costs it sought have already been reduced at the taxation, in effect the same outcome has been achieved as the apportionment sought by the appellant.

11. The appellant's submissions are difficult to follow.  As I understand it, the appellant seeks an order that he pay the respondent's costs of the appeal, apportioned to reflect the fact that he was successful in his appeal against the costs order made in the Magistrates Court.

12. The appellant's reliance on O 66 r 52 of the Rules is misplaced. Rule 52 operates where a taxation of costs is ordered and, relevantly, by the terms of the order or by the effect of the order, the costs are to be apportioned, or a party is entitled to receive the costs applicable to any part of the action or matter. In those circumstances, and where any doubt or difficulty arises on a taxation, the taxing officer then has the power to refer the question to a judge to resolve. However, the terms of the orders made on 4 October 2023 as to costs did not allow for any apportionment, or limit the respondent's entitlement to costs applicable to any part of the appeal. In any event, the registrar conducting the taxation has not referred to a judge any question of doubt or difficulty.

13. It appears to me that the effect of what the appellant seeks is a variation of the orders I made on 4 October 2023. 

14. Neither party has made any submissions about whether I have the power to vary the orders made on 4 October 2023, in circumstances in which they have been perfected.  However, it is a well‑settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made, the court has no jurisdiction to alter it.[3]

    [3] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539 (Gibbs J).

15. I am of the view that I do have the power to deal with that part of the Application that has been referred to me to determine.  It is well established that the court has an inherent jurisdiction to rectify situations of injustice.  In Monaco v Arnedo Pty Ltd,[4] Malcolm CJ (with whom Kennedy J agreed) said:[5]

    At all events the court does have an inherent jurisdiction to rectify situations of injustice as I said in Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407: see also Gould v Vaggelas (1985) 157 CLR 215; L Shaddock & Associates v Parramatta City Council [No 2] (1982) 151 CLR 590; Commonwealth v McCormack (1984) 155 CLR 273. Those cases are authority for the proposition that if an order of the court is made or not made which turns out to be incorrect as a result of the inadvertence of counsel or, I would add, a mistake being made by a judge which is not corrected by counsel, there is an inherent jurisdiction, quite apart from the slip rule, to rectify the orders to avoid injustice.

    [4] Monaco v Arnedo Pty Ltd (1994) 13 WAR 522.

    [5] Monaco (524).

16. The practical effect of the order that the appellant pay the respondent's costs to be taxed, if not agreed, was that the appellant was deprived of the opportunity to make submissions about the order that should be made, if any, to reflect the fact that he had been successful in his appeal against the costs order.  In those circumstances, it would be appropriate to exercise the court's inherent jurisdiction to rectify the order if it would avoid injustice to the appellant.

17. At the time the orders were made on 4 October 2023, the court's intention was that because the appellant had successfully challenged a discrete and severable costs order, this should be reflected by apportioning the total costs of the appeal the appellant would be required to pay to the respondent.  Accordingly, I am of the view that in order to avoid injustice to the appellant it is appropriate that I exercise the court's inherent jurisdiction by varying order 7 of the orders made on 4 October 2023 to provide that the appellant is to pay 90% of the respondent's costs of the appeal, as taxed.   

18. In deciding that the respondent is entitled to 90% of its costs of the appeal, as taxed, I have had regard to the respondent's estimate of its costs that relate solely to the appellant's challenge to the costs order, and to the fact that taxation has already taken place.

19. In all the circumstances, it is appropriate that there be no orders as to the costs of this application.

Orders

1.Order 7 of the orders made on 4 October 2023 is varied so that it now reads:

7.     The appellant is to pay 90% of the respondent's costs of the appeal, as taxed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RH

Associate to the Honourable Justice Vandongen

6 SEPTEMBER 2024