Brander v Ryan and Anor No. Scciv-03-784

BRANDER v RYAN and ANOR
[2003] SASC 300
Magistrates Appeal: Civil

PERRY J (ex tempore) This action commenced in the District Court with the filing by the appellant Mr Brander of a summons in that court against the respondents to this appeal on 4 October 1995.
In the proceedings he alleged that he was libelled in an article published in the City Messenger on 26 April 1995.
Following service of the proceedings, a series of applications were made by the respondents attacking successive statements of claim and seeking orders for the statements of claim to be struck out. Eventually a statement of claim survived the attacks and the matter was listed for trial.
In the meantime, an order had been made on 27 May 1997 that the action be remitted to the Adelaide Magistrates Court. So that the trial took place eventually in that court.
By judgment delivered on 19 January 1999, the appellant’s claim was dismissed.
He then appealed to a single judge of this Court who allowed the appeal.
However, a further appeal to the Full Court of the Supreme Court overturned the decision of the single judge, with the result that the order of dismissal made by the trial magistrate was restored.
The judgment of the Full Court of this Court which led to that outcome was pronounced on 21 December 2000.
The initial order of dismissal of the appellant’s claim in the Magistrates Court resulted in an order made on 24 March 1999 that the respondents have their costs of action. This was on the footing that the costs would be taxed on the scale appropriate to a District Court action as to that part of the proceedings which took place in that court and on a scale appropriate to a Magistrates Court action following the removal of the action to the Magistrates Court. The scale of costs upon which the costs were to be taxed in the Magistrates Court was the scale of costs appropriate to a complex action for between $20,000 and $30,000.
Steps were then taken to attend to the taxation of costs. At that stage, Mr Tropeano, solicitor, was acting for the appellant and he was the solicitor on the record for the appellant.
Eventually, on 5 March 2001 a short form bill of costs was lodged for taxation. On 8 May 2002 an order was made extending the time for the appellant to object to any item in the bill of costs for 28 days.
2001.
On 15 June 2001 Dr Cannon, Deputy Chief Magistrate, made an order in the following terms:
“I stay the taxation of costs until the outcome of the application for leave to appeal to the High Court which, I am told, is definitely proceeding.”
Mr Tropeano was still acting for the appellant at that stage and was so acting when the matter was called on again for a directions hearing on 7 September 2001.
At the directions hearing on that date Mr Tropeano intimated to the court that he wished to cease acting for the appellant. The magistrate responded to that request by making the following order:
“Upon Mr Tropeano filing a notice with the Court providing a current address where Mr Brander can be contacted for the purpose of further notices in this action, and upon advising Mr Brander of today’s order, he is given leave to cease to act. I will approach an expert recognised by the Law Society in taxation matters. I shall initially approach Ms Mercer to advise the court on the appropriateness of any taxable bill that is filed in this matter. I notice that there is a notice of dispute for the short form bill in its entirety so I order a full taxation occur under the supervision of the expert so appointed. Ms Mercer is to, if available, appoint a date and advise the parties. Upon completion of the taxation Ms Mercer is to draw the result to my attention for making it an order of the court.”
The appointment of Ms Mercer as an independent expert to tax the costs was appropriately made under s 29 of the Magistrates Court Act.
By letter dated 10 September 2001, three days after the directions hearing to which I have just referred, Mr Tropeano advised the Magistrates Court:
“Please inform the court that the address for Michael Brander where our office has always forwarded correspondence is 12 Foote Avenue, Kilburn SA 5084. Please note that pursuant to an order made by his Honour Mr Cannon of 7 September 2001, whereby once the address of our client was provided, our officer would be removed as the solicitor acting on the file.”
That letter had a two-fold effect.
In the first place, it resulted in the order that Mr Tropeano cease to be the solicitor on the record for the appellant coming into effect. In the second place, it substituted the address at Kilburn as the address to which notices and the like were to be given with respect to the proceedings.
A long form bill of costs was subsequently lodged on 15 March 2002. Following the lodgement of the detailed bill on 26 March 2002, Dr Cannon made an order, being unaware of the letter from Tropeano & Co, that the bill be served on Tropeano & Co and also on Mr Brander at the Foote Avenue, Kilburn address.
The response to service at that address is set out in the reasons for ruling of Dr Cannon dated 2 May 2003.
Ms Mercer duly reported and recommended that the costs be allowed at $59498.68.
Her report was considered at a taxation which came on for hearing on 10 July 2002. There was no appearance by Mr Brander at that hearing.
After setting out in brief some reasons why he determined that no good cause had been shown to reduce the bill in any way, the magistrate then certified for costs in the sum which had been reported by Ms Mercer, which is the amount to which I have just referred.
Apparently an application was subsequently taken out by the appellant to set aside the costs order, or at least the certification of them, following the taxation which had taken place on 10 July 2002.
In his reasons for ruling dated 2 May 2003 Dr Cannon deals with that application. In his reasons for ruling he notes that the appellant Mr Brander then appeared and said that he did not receive notice of the hearing as to costs, and that he was in Melbourne at the relevant time.
Dr Cannon stated in response to that:
“If that did not come to Mr Brander’s attention he was the author of that problem.
When a party conducts litigation with a court, the court is entitled to expect the party to advise a current address where the party can be contacted. The orders I have quoted above [which were the orders s to Mr Tropeano’s ceasing to act] set out the process I put in place to ensure that every reasonable step was taken to ensure that service could be effected on Mr Brander.
Mr Brander has made submissions to me today that inquiries could have been made at National Action, where he is an office-holder. He says he could have been contacted there. It is not the function of the court to conduct its own inquiries to track down litigants who fail to supply to the court a sufficient address where the litigant can be contacted. In this matter, everything that was required, and more, was done to ensure that the matter was brought to Mr Brander’s attention.”
In my view, those comments are entirely correct. Mr Brander was well aware that Mr Tropeano had ceased to act for him, and he owed a duty to ensure that there was an address on file at which he could be contacted so that the litigation could proceed in an orderly fashion.
In his reasons dated 2 May 2003 Dr Cannon addressed the question of the quantum of the bill. He dealt with the argument from the appellant that the trial was unnecessarily prolonged, for various reasons which he sets out. Dr Cannon concluded:
“The cost order is straightforward and follows the trial as it actually occurred. There is no reason in the proceedings before me which would lead me to depart from the usual rule that costs follow the event. Even if I reopened it to allow argument about whether some day should not be allowed, I would not depart from the present cost order, so there is no disadvantage to Mr Brander there.
As to the appropriateness of the costs I had an independent expert assess the costs for two reasons. The first was that I wanted the best expertise that the profession could provide to ensure that the costs were fair and reasonable. The second was that I was made aware of allegations that I may have exhibited bias in this matter and I thought it appropriate to ensure that the cost order be fixed by a person who had no prior involvement in the matter, so there could be no discontent that the cost order was fixed in a biased way.
For all the above reasons there is no basis whatsoever on which this cost order should be set aside and I decline to set it aside.”
He then refused an oral application from the appellant to stay the proceedings consequent upon the costs order.
In my opinion, there was no error in the approach taken by the magistrate and there is no reason to interfere. Indeed, I doubt whether the magistrate had jurisdiction to revisit the question of either the costs order which had been made at the conclusion of the trial or the taxation of the costs which had taken place at the time when the reasons were delivered on 2 May 2003.
Be that as it may, in a purported notice of appeal filed in this Court on 9 July 2003, the appellant seeks an extension of time within which to appeal against the costs order, which I assume means the order made at the conclusion of the trial in the Magistrates Court, and is confirmation of that order on 2 May 2003.
In the foreshadowed notice of appeal he specifies as grounds for that extension of time:
“I was not informed of costs hearing nor was I informed of its outcome. I am living outside South Australia and have difficulty lodging papers and seeking legal advice.”
Insofar as that refers to the making of the costs order which followed the trial, clearly Mr Brander was still represented at that stage by a solicitor. That suggestion has no merit.
Insofar as he complains that he was not informed of the taxation of costs, if that is what he means by “costs hearing”, he was the author of the situation which might have produced that result for the reasons adverted to by Dr Cannon.
He states as a further ground of appeal that he was “given no opportunity to be heard as to costs. Taxation of costs I strongly dispute”.
At the commencement of the hearing of the appeal today, Mr Brander appeared in person. He complained, first, that he was not aware that the appeal would be heard and determined today.
That submission totally lacks merit.
He was informed by a letter of 24 July 2003 from my associate that the appeal had been listed for hearing today “at not before 2.15 pm (half a day set aside)”. He was invited to provide outlines of submissions and authorities, in accordance with the practice directions, details of which were given in the letter, at least two working days prior to the hearing.
Mr Brander informed me on the hearing of the appeal that he had had the advice of counsel, whom he did not trouble to name, that there were flaws in the taxation process and that the bill of costs was open to challenge. He did not, although pressed by me to do so, detail in what precise respects it was suggested that the long form bill of costs was open to challenge, and he said that he did not have with him the opinion of counsel which he suggested to me that he had.
Mr Brander complained that he was unable to have a fair hearing because he was unable to deal with the technical arguments which had been presented against him, but in my view, he had every opportunity to get legal advice and assistance and to come to court appropriately represented today if he had cared to do so.
No case has been made out to further adjourn the hearing of the appeal or purported appeal.
Technical arguments relating to the competency of the appeal have been raised by the respondent on the hearing of the appeal through Mr O’Halloran of counsel.
The taxation of costs resulted in an order or certification of costs which was clearly an interlocutory order, and pursuant to Supreme Court R 96B.02 either the leave of this Court or a certification by the magistrate was needed before it could be entertained.
Neither of those processes have been followed. There has been no certificate of the magistrate and no leave has been given by this Court.
I informed Mr Brander that I was prepared to treat his purported notice of appeal as an application for leave, and invited him to advance arguments as to why leave should be granted. He was unable to provide any argument which could persuade me to grant leave in this case.
The application is very much out of time and seems likely to have been prompted by bankruptcy proceedings which have been taken against him.
His conduct of the matter, that is to say, his response to the listing of the appeal, is highly suggestive of an attempt to delay the matter and avoid the inevitable.
In my view, this is not a case in which it could be appropriate to extend the time for the bringing of the appeal, and in any event, for the reasons which I have given, the proposed appeal itself lacks any merit.
In all those circumstances, I dismiss the purported notice of appeal, and to the extent that I deal with it as an application for leave to appeal, the application is refused.
[AFTER HEARING THE PARTIES AS TO COSTS]
PERRY J: I order that the appellant pay the respondent’s costs of and incidental to the appeal to be taxed.

[2003] SASC 300

27 August 2003