Brian Russell Linklater v Frederick Rudolph Henning No. SCGRG 92/2469 Judgment No. 3882 Number of Pages 6 Courts Practice and Procedure

[1993] SASC 3882

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ADELAIDE DEBELLE J

CWDS
Courts - practice and procedure - Appeal from order allegedly refusing leave to amend counterclaim - Appeal misconceived - Appeal dismissed. Appeal from order as to costs of adjournment - Respondent could have taken steps to reduce costs - Order as to costs set aside and fresh order made.
Magistrates Court Rules R.12(2), 63.

HRNG ADELAIDE, 22 March 1993 #DATE 22:3:1993
Appellant in person
Counsel for respondent:     Mr G B Hevey
Solicitors for respondent:    Wallmans

ORDER
The orders made are in the judgment.

JUDGE1 DEBELLE J This is an appeal from an order made by a magistrate in the Adelaide Magistrates Court on 19 October 1992 in which the appellant complains that, at a conciliation conference heard on that date, the learned magistrate conducting the conference, refused the appellant leave to amend the amount of his counterclaim in this action from $30,000 to $65,000. The appeal is from an interlocutory judgment or order. The appellant therefore requires leave to appeal. Leave was granted and with the consent of the parties, I proceeded to hear the appeal. There was also another application made by the appellant with which I will deal in a moment. 2. So far as the appeal is concerned, the relevant facts might be very shortly stated. In this action, the appellant had initially filed a counterclaim in the sum of $3,000. On 2 September 1992, he applied for leave to amend the amount claimed in the counterclaim to the sum of $30,000. The respondent consented to the application and leave to amend the counterclaim was granted on 18 September 1992. There is no application on the file in the Magistrates Court in which the appellant seeks to amend his counterclaim to the sum of $65,000. The learned magistrate, who conducted the conciliation conference, made notes of the conference. His notes do not indicate that any application was made to increase the amount claimed in the counterclaim. His notes are to the effect that the plaintiff will be dux litis at the trial and that he refused an application to remit the action to the District Court. 3. Mr Hunter is a member of the firm of solicitors acting for the respondent. He was present at the conciliation conference on behalf of the respondent. He has sworn an affidavit in which he deposes that he made notes of the events of the conference, that there was some discussion between the learned magistrate and the appellant as to the amount of the appellant's counterclaim but that there was no application by the appellant to increase the amount of the counterclaim from $30,000 to $65,000, and that the appellant agreed that the matter should proceed to trial in the Magistrates Court given that his monetary claim was within the jurisdiction of that court. The appellant does not suggest that anything stated by Mr Hunter in his affidavit is incorrect nor has he presented anything which satisfies me that he applied at the conciliation conference to increase the amount of his counterclaim. 4. While there might have been some discussion at the conciliation conference as to the amount of the counterclaim, and as to the nature of the injuries and other disabilities the subject of the counterclaim, there was not, in my view, any application to increase the amount of the counterclaim. I am satisfied that what is contained in Mr Hunter's affidavit is correct. It follows that the appeal must be dismissed. 5. On 5 November 1992, the solicitors for the respondent wrote to the appellant informing him that Mr Hunter had no record of any application to increase the amount of the counterclaim and suggesting that this appeal was misconceived. In that letter they went on to state that, if the appellant wished to increase the amount of the counterclaim, the appropriate course was to apply to transfer the application to the District Court and they would not oppose the application. The appellant replied to the effect that he believed that he had taken the correct course in instituting this appeal. 6. On the hearing of this appeal, the appellant said that his reply was in consequence of inquiries which he had made of the registries at the Magistrates Court, the District Court, and at this Court. He said that the consequence of his inquiries was that this appeal was the only avenue by which it was open to him to increase the amount of the counterclaim. I have some difficulty in accepting what the appellant has said. I can only conclude that there may have been a degree of misunderstanding by him of what he has been told, or alternatively, that he did not clearly state to the respective registries the matter on which he was seeking advice, or it may be, as he has said, that he might have received some incorrect advice. It is not necessary for me to determine whether, or if, any of these alternatives is correct. It is sufficient to note that at this stage the appellant is labouring under the misapprehension that an appeal to this court is the only avenue by which he can increase the amount, the subject of his counterclaim. 7. As I mentioned to the appellant in the course of argument, his understanding is incorrect. It is not necessary to institute this appeal for the purpose of increasing the amount of the counterclaim. It is open to the appellant to apply, pursuant to s.19 of the Magistrates Court Act 1991, to transfer the action in the Magistrates Court to the District Court. That application will be supported by an affidavit by him to the effect that he seeks to increase the amount claimed in the counterclaim to $65,000. The solicitors for the respondent have indicated in their letter to him dated 5 November that they will consent to that course. Upon his instituting the application, they can endorse the application with their consent and thus avoid any costs involved in attending on the application which could then be granted by consent. I have mentioned these matters in order to dispel or to seek to dispel the misapprehension under which the appellant appears to labour. 8. The second matter concerns an order for costs which was made on 9 February 1993 in the Adelaide Magistrates Court. The institution of this appeal rendered it necessary to adjourn the hearing of the action in the Adelaide Magistrates Court. At the conciliation conference on 19 October 1992, an order had been made listing the action for hearing on 9 February 1993. After this appeal had been instituted, the respondent applied for an adjournment of the hearing of the action pending the hearing and determination of this appeal. That application came on before a magistrate on 4 December 1992. The application was opposed by the appellant. The magistrate, who heard that application, also expressed a concern based on the principles of case flow management in that court that the trial should proceed on the appointed day, namely 9 February 1993. According to Mr Hevey who appears for the respondent, this view was quite vigorously expressed by the magistrate who heard the matter on 4 December. In the result, the respondent's application for the adjournment was refused. 9. When the matter came on for hearing on 9 February 1993, an application was again made to adjourn the hearing of the action pending the determination of the appeal. That application was heard by Mr Cannon SM, who was not the magistrate who heard the application on 4 December. Mr Cannon granted the adjournment. The respondent then applied for the costs occasioned by the adjournment. It appears that the respondent was ready to proceed with the hearing of the action. The respondent had briefed counsel and the respondent himself was present ready to give evidence and to instruct counsel and the solicitor who was also present. Mr Cannon SM ordered that the appellant pay the costs thrown away by the adjournment. He gave the following reasons for his decision:
    "As to costs, this matter came on an application to this court
    to adjourn this trial in December brought by the defendant in
    the counterclaim. Mr Linklater opposed an adjournment of the
    trial in the hope that the Supreme Court appeal would be
    resolved by then. As a direct result of that, the defendant on
    the counterclaim, comes to this court prepared for trial having
    attempted to adjourn it and having that attempt opposed by Mr
    Linklater. To me, it is inescapable that Mr Linklater is the
    origin and cause of the waste of costs. Therefore, I order that
    Mr Henning have his costs for today to be agreed or taxed.
    Finally, I will grant leave to appeal against that cost order.
    I will publish these reasons and return the file with these
    reasons on it to the Supreme Court in the hope that Bollen J
    will have the power to set aside such rulings as he has to
    consider the appeal against the costs order at the same time he
    considers the other matters." 10. As the remarks by the learned magistrate indicate, this appeal was initially listed for hearing before Bollen J. Bollen J disqualified himself from hearing the appeal on the ground that he personally knew the respondent Dr Henning. 11. The appellant filed an application in this court dated 17 March 1993, in which he sought an order that the costs of the adjournment of the trial should be decided by this court. In truth, the appellant is appealing from the order as to costs made by Mr Cannon SM. With the consent of the respondent, I made orders dispensing with compliance with the Supreme Court rules to the extent necessary to enable him to appeal against the order as to costs and for that appeal to be heard today. It is plainly important, as indeed Mr Hevey emphasised, that everything be done to resolve all matters before this court so as to enable the action to proceed with all expedition in the Adelaide Magistrates Court or, if necessary, in the District Court. 12. The reasons of Mr Cannon SM fail to mention that one of the reasons for the failure on 4 December 1992 of the respondent's application to adjourn the hearing of the action from 9 February 1993 until the hearing and determination of this appeal was the attitude of the magistrate who heard the application. I have already mentioned what Mr Hevey has very frankly informed me then transpired. On any view of the matter, it would have been appropriate for the magistrate to have granted the respondent's application for the adjournment. The nature of the appeal was such that, if it had been allowed, it would have had the consequence that the amount of the counter claim would be increased and would have led to orders transferring the matter to the District Court for hearing and determination in that court. 13. It is true that the principles of case flow management require the proper and orderly disposition of actions. However, those principles must have regard to the fact that parties are entitled to have their rights determined in a proper manner so that, if there is an appeal against an interlocutory order, it might be necessary to accommodate that appeal in the listing arrangements in the Magistrate's Court. It is obvious that the learned magistrate, who heard the matter on 4 December, failed to acknowledge the very reasonableness, if not the obvious necessity, of adjourning the hearing in that court, until the appellant's appeal had been heard and determined. 14. On or about 29 January 1993, both the appellant and respondent were informed that the appeal then listed for hearing before Justice Bollen would be heard on 18 February. In my view, it would have been appropriate if the respondent's solicitors had then made a further application in the Adelaide Magistrate's Court for an adjournment of the action, then listed for hearing on 9 February, until the appeal in this court had been heard and determined. They did not take that step. I have no desire to apply the benefit of hindsight or what might be said to be a considered reflection upon past events. It is essential that anyone hearing and determining this appeal against the orders as to costs should eschew any benefit of hindsight or any benefit of having had, as might be said, a leisured opportunity of reflecting upon past events. I emphasize those disclaimers for the reason, also, that the respondent's solicitors have attempted to assist the appellant in a resolution of his apparent difficulty. I refer to the letter of 5 November 1992 when they suggested to the appellant that it would be a more appropriate course to seek to transfer this action to the District Court, advice which was rejected by the appellant. It is important also to avoid any use of hindsight by reason of the fact that it was the respondents who, in December 1992, made the application for an adjournment of the hearing of the action, an application which was opposed by the appellant and was refused. One can understand their position. Notwithstanding those two events, it would have been appropriate for the solicitors for the respondent to have made a fresh application to adjourn the hearing of the action on the ground that the hearing of the appeal would not occur until a date after the listed date for the hearing of the action in the Magistrate's Court. That application could have been brought on promptly and before 9 February. Although Rule 63 of the Magistrate's Court Rules provides for 21 days' notice of an application, Rule 12(2) does enable the Court, where necessary or expedient for the speedy administration of justice to dispense with the rules to the extent necessary. It follows that there could have been an urgent hearing of any application to adjourn the trial. Had such an application been made, the proper course for the learned magistrate hearing the application would have been to grant the adjournment and to have made an order for the costs of that application. The appellant could have been required to pay the costs of that application given his earlier attitude to the application heard in December 1992. As the respondent's solicitors did not apply for an adjournment in early February, I do not believe that the respondent is entitled to the costs claimed as costs thrown away by the adjournment. 15. I wish to state that I have considerable sympathy for the position in which the respondent's solicitors found themselves. I have mentioned already that they had earlier applied for an adjournment and had also suggested to the appellant a more appropriate way of dealing with his application to increase the amount of the counter claim. Notwithstanding all that sympathy, I feel constrained to reach the conclusion which I have mentioned. I feel constrained to reach that conclusion also by reason of the fact that the order for costs was occasioned by what can only be described as an unthinking and unhelpful application of the principles of case flow management by the magistrate who heard the application on 4 December 1992. Thus, while the appellant is, to some extent, the author of the present difficulties in relation to costs, they are not entirely of his own making. 16. The respondents have claimed the sum of $3950 costs for the adjournment. I do not wish to reflect upon the amount of those costs. That would have been a matter for a taxing officer in the Magistrate's Court. However, this Court must express concern that an unrepresented litigant should be required to pay what, on any view, would be a substantial sum for costs when, had there been a proper application of the principles of case flow management, the application made by the respondent's solicitor heard on 4 December would have been granted. I am very conscious that one other consequence of this conclusion is that, despite the fact that the respondent and his solicitors have done a good deal to avoid any further and unnecessary incurring of costs - and I refer in particular to the application for an adjournment - all of these costs have been occasioned by events not entirely due to any fault on their part. 17. At the end of the day, one is left with the difficult task of deciding where the burden for those costs should fall. In my view, the answer to that question should be that the appellant should be responsible for a sum which would reflect the cost involved in the respondent again applying for an adjournment of the hearing on 9 February 1993. The appellant will, therefore, be ordered to pay such an amount. I will hear the parties as to cost of this appeal. I will also hear them as to whether I should now fix an amount for the costs of the adjournment on 9 February on the footing that I have indicated. (His Honour then heard the parties on the question of the costs of the adjournment and the costs of the appeals.) While he might be disinclined to agree in principle with the order that I have made concerning costs and while he reserves his client's rights, Mr Hevey agrees that I should now fix an amount for costs which would have been incurred had the respondent made a second application for an adjournment. Having consulted Mr Linklater who also agrees that it would be appropriate now to fix those costs, and having consulted the relevant scale of costs together with the parties, I fix the costs of that application in the sum of $500. I also order that the appellant should pay the respondent the costs of this appeal which I fix at $600. 18. The orders of the court will therefore be:
    1. The appellant's appeal concerning the amount of the counter
    claim is dismissed.
    2. The appellant's appeal in relation to the costs of the
    adjournment on 9 February 1993 is allowed.
    3. I order that the order as to costs made by Mr Cannon SM made
    on 9 February 1993 be set aside and, in lieu thereof, there will
    be an order that the appellant pay the respondent's costs of an
    application for an adjournment which I fix at $500.
    4. There will be a further order that the appellant pay the
    respondent's costs of this appeal which I fix at $600. I
    preserve leave to edit the reasons which I have given ex
    tempore.