Briscoe v Firth - [2018] NTSC 18

CITATION:Northern Territory of Australia & Anor v Shannon [2018] NTSC 88
PARTIES:NORTHERN TERRITORY OF AUSTRALIA
and

LUM, Phillip

v

SHANNON, Ezekial

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 1 of 2018 (21408861)
DELIVERED:  12 December 2018
HEARING DATE:  24 May 2018
JUDGMENT OF:  Kelly J

CATCHWORDS:
PRACTICE AND PROCEDURE – Appeal – Extension of time for entering appeal for hearing – Whether costs order final – Leave to appeal out of time - Exceptional circumstances – Trial judge indicated willingness to re-open costs decision to correct error – Reasonable reliance by appellant - Delay not prejudicial to respondent – Leave to appeal granted
COSTS – Police tort claim – Judgment against the plaintiff - Court bound by s 162(4)(c) Police Administration Act – Meaning of full costs as between solicitor and client – appeal allowed
Local Court Act, s 42(1)(b)
Local Court (Civil Procedure) Act, s 19(1), s 19(2), 19(6)
Police Administration Act, s 128, s 148D, s 162(4)
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, Jackamarra v Krakouer (1998) 195 CLR 516, Licul v Corney [1976] HCA 6; (1976) 50 ALJR 439, Weber v Nguyen Thi Phuong [2001] NTSC 116, applied

REPRESENTATION:
Counsel:
Applicants:S Brownhill SC with L Peattie
Respondent:  T Anderson
Solicitors:
Applicants:Solicitor for the Northern Territory
Respondent:  North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Kel1815
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Northern Territory of Australia & Anor v Shannon [2018] NTSC 88

No. LCA 1 of 2018 (21408861)

BETWEEN:

NORTHERN TERRITORY OF AUSTRALIA

and

PHILLIP LUM

Applicants

AND:

EZEKIAL SHANNON

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 12 December 2018)

The respondent brought proceedings against the Territory and a police officer (the applicants) under Part VIIA of the Police Administration Act (“PAA”) in the Local Court, claiming that he had been assaulted and battered by police at the Tennant Creek Police Station after he was taken into protective custody pursuant to PAA s 128 (“the respondent’s proceeding”). Such a proceeding is defined in PAA s 148D as a “police tort claim”.
After a three day hearing, the Local Court dismissed the respondent’s proceeding, finding that the actions of the police officer and the force used were reasonably necessary and proportionate to the circumstances. The trial judge ordered that the parties bear their own costs.
The applicants appeal from the costs order (or alternatively seek leave to appeal) on the ground that the court lacked the power to make the costs order made by the trial judge: under PAA s 162(4), a successful defendant “shall recover his full costs as between solicitor and client”. (The section is set out in full at [24] below.)
The sequence of events
On the morning of 24 November 2017, the trial judge dismissed the respondent’s proceeding. At that time neither the applicants’ counsel nor the respondent’s counsel was aware of the provisions of PAA s 162(4). Counsel for the applicants (defendants) sought an order that the plaintiff pay the defendants’ costs to be agreed or taxed on the ground that costs should follow the event. The order sought by counsel for the applicants’ was curious in that it seemed to assume that the question of whether costs should be taxed on an indemnity basis rather than the standard basis was one for the taxing master. He said “[T]he question of indemnity costs is a matter for taxation and certainly it’s not our application at this point.” Counsel for the respondent made the following submission:
… that each party bear their own costs and that no indemnity costs be – that indemnity costs are not an issue in this matter but to simply pay the party costs.
The trial judge ordered that the parties bear their own costs.
At lunch time on 24 November 2017, the applicants’ counsel learned from a colleague of the existence of PAA s 162(4). That afternoon he sent an email to the Registrar, with a copy to the respondent’s lawyer, applying to have the matter re-listed before the trial judge that afternoon, so that s 162(4) of the PAA could be considered by the Court in relation to costs.
The matter came back on before his Honour on 28 November 2017. The applicants’ counsel made application:
(a)if the order of 24 November 2017 had not been authenticated, for it to be amended to make it consistent with s 162(4) of the PAA; or
(b)if the order had been authenticated, for it to be so amended pursuant to s 42(1)(b) of the Local Court Act, which sets out “the slip rule”.
(No-one seemed to be aware whether the order had been authenticated at that stage. It was later ascertained that it was authenticated on the same day as it was made, 24 November 2017.)
The trial judge adjourned the matter to a date to be fixed “for further submissions regarding costs” and gave the following preliminary indication of his position:
I am prepared to re-open the issue of costs. I do believe there is a basis to – for possibly being in error and that I will re-open to correct any obvious error, if one has been made. I’m not determining that an error has been made at this stage.
… if it’s determined [at the next hearing] that I am not wrong, in the sense that I do have a discretion, then obviously I didn’t give any detailed reasons for why I accepted your submission and made an order for the parties to bear their own costs. I am certainly prepared to give more detailed reasons for that if that remains an issue. Obviously, I first have to determine the issue whether I’ve got a discretion; then I’ll hear the parties, if I determine I have further on that.
… I think you’ve probably pretty well got the gist that I am prepared to re-open, given what’s been said …
When the matter resumed on 16 January 2018, the trial judge took the view that the slip rule was available where “there is a clear mistake made by the judge and the mistake is not controversial”,[1] but because those two issues were in dispute between the parties, there was “little point in re-opening the matter” and “the initial mistake, if there was one, can be sorted out in the Supreme Court”. His Honour determined to “make no further order in the matter” and the application to re-open the proceeding was refused.
On 6 February 2018 the applicants purported to appeal to this Court from the original order of 24 November that the parties bear their own costs. Alternatively, the applicants seek leave to appeal out of time.
Is leave to appeal necessary?
Under s 19(1) of the Local Court (Civil Procedure) Act, a party to proceedings may appeal to the Supreme Court, on a question of law, from a final order of the Court in the proceedings within 28 days of the date the order is made. After 28 days, a party may only appeal with the leave of the Supreme Court.
The applicants submit that they do not require leave to appeal as the order of 24 November 2017 as to costs did not become a “final order” in the proceedings within the meaning in s 19(1) until 16 January 2018 and the appeal was instituted within 28 days from that date. The basis of this submission is the contention that the parties’ rights and obligations as to costs remained in issue from the time of the applicants’ application to re-list on 24 November 2017 until that application was refused on 16 January 2018. They rely on the wording of the order of 28 November 2017, which required the parties to return for “further submissions regarding costs”. This, the applicants contend, “deprived the order of 24 November 2017 of any finality”.
The applicants contend, in written submissions, that “an order is not considered final if it remains open for a party to re-agitate an issue or re-make an application”. They rely for that proposition on Carr v Finance Corporation of Australia Ltd.[2]
That submission states the relevant principle far too widely. In Carr the issue was whether an order dismissing an application to set aside a default judgment was a final judgment (from which there was a right to appeal), or an interlocutory order (in relation to which leave to appeal was required). Gibbs CJ held that it was an interlocutory order because it did not finally determine the legal rights of the parties[3] – it being possible to bring another such application. His Honour stated:
In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court’s power to grant special leave to appeal.[4] [emphasis added]

The costs order made by the trial judge finally determined the legal rights of the parties in relation to the costs of the respondent’s proceeding. The fact that the applicants had applied to the trial judge to correct that order under the slip rule did not deprive it of finality – any more than the filing of a notice of appeal would have done. The applicants require leave to appeal.
Should leave to appeal be granted?
The applicants contend that if leave to appeal is required, it should be granted. Section 19(2) of the Local Court (Civil Procedure) Act provides:
The Supreme Court may grant leave under subsection (1)(b) and the appellant may proceed with the appeal if the Supreme Court:
(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (1)(a) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
The applicants contend that the failure to institute the appeal within time was due to exceptional circumstances. The trial judge made the initial order as to costs in ignorance of s 162(4).[5] Later on that day, the applicants informed his Honour of the provision and applied to be heard further on the question of costs. On 28 November 2017, the Court adjourned the proceedings for “further submissions regarding costs”, and indicated it was minded to amend the costs order. On 16 January 2018 the Local Court determined that any correction should occur by way of an appeal because the respondent did not consent to the application of “the slip rule”.
The applicants submit that these circumstances are “sufficiently out of the ordinary such as to justify the applicant[s] having [their] day in court by way of procedural indulgence”.[6]
The respondent contends that the circumstances are not exceptional: the respondent was actively resisting attempts to reopen the proceeding to vary the order, and those attempts were unlikely to be concluded before the expiry of the appeal period. In those circumstances, the respondent contended, prudent solicitors would have filed a notice of appeal within time.
I disagree. The costs order made on 24 November 2017 was plainly one which the trial judge had no power to make. An application had been made to the trial judge to correct the error and the trial judge had indicated his intention to do so. Given the trial judge’s indication on 28 November, the applicants had a reasonable expectation that the error would be corrected without the need for an appeal.[7]
By the time the applicants found out that that expectation was not going to be met (on 16 January 2018), the 28 day appeal period had already expired.
The applicants submitted further that the delay in commencing the appeal was not contumelious or the result of inactivity on the part of the applicants.[8] The applicants’ solicitors applied promptly, on the same day as the order was made, to have it corrected by the most expedient method and to avoid the unnecessary cost and delay of an appeal. The applicants submitted that it was only necessary to institute an appeal because the

respondent opposed an obvious error being corrected below.[9]

I agree that there was no inaction on the part of the applicants, at least so far as the delay from the end of the appeal period (22 December 2017) to 16 January 2018 is concerned. There was a further three week delay to 6 February 2018 in lodging the appeal. I do not consider that further delay to be contumelious or of such duration as to take the case outside the category of “exceptional circumstances”. The respondent has not claimed to have suffered any material prejudice as a result of that additional three week delay – or as a result of the appeal not being instituted before 22 December 2017. There is no suggestion that the respondent has done, or omitted to do, anything as a result of the costs order made on 24 November 2017 which would be frustrated or prejudiced by the hearing of the appeal.
Leave to appeal is allowed.
Consideration of the appeal
PAA s 162(4) provides that where, in any such action [ie a police tort claim]:
(a)a verdict is given for the defendant;
(b)the plaintiff becomes non-suited or discontinues any such action after issue is joined; or
(c)judgment is given against the plaintiff,
the defendant shall recover his full costs as between solicitor and client, and have the like remedy for the same as any defendant has by law in other cases.
There is no doubt that the respondent’s action was a police tort claim as defined by PAA s 148D. It was a claim (under PAA Part VIIA) for damages for a tort allegedly committed by a member of the police force in the performance or purported performance of his duties.
Judgment was given against the respondent on 24 November 2017. The provision in s 162(4) was thereby enlivened.
There can be no serious doubt about the meaning of s 162(4): the applicants are entitled to recover their full costs as between solicitor and client against the respondent.[10] In written submissions the respondent conceded that “giving meaning to each word in that phrase, ‘full costs as between solicitor and client’ must mean what we now know as ‘solicitor own client costs’.”
The respondent initially made submissions based on an asserted inconsistency between s 162(4) and the Supreme Court Rules relating to costs but these were rightly abandoned: if there were any inconsistency, clearly the statutory provision in s 162(4) would prevail.
The respondent also contended that s 162(4) cannot oblige a Court to make an order for indemnity costs (or for any costs) in the absence of an application for such an order.[11] The section provides that in such a case a successful defendant has, “like remedy … as any defendant has by law in other cases”. The respondent contended that the “like remedy” available in other cases is to apply for a costs order. As the applicants did not apply for an order for indemnity costs “it must follow that no error was made in not making such an order”.
I reject that argument. The asserted error was not a failure by the trial judge to make an indemnity costs order on the court’s own motion; the asserted error was making the order that was in fact made. The Local Court was not empowered to make a costs order which had the effect of ordering a different costs outcome from that required by s 162(4).
The appeal is allowed. The costs order made by the trial judge in the respondent’s proceeding on 24 November 2017 is set aside.
Under s 19(6) of the Local Court (Civil Procedure) Act, after hearing and determining an appeal from the Local Court, the Supreme Court may make such order as it thinks fit, including an order remitting the case to the Local Court for re-hearing. Given that there is only a single issue and no need for any further submissions, factual findings, or the possibility of the exercise of any discretion, the time and expense of remitting the matter to the Local Court is not warranted. I therefore propose to make a costs order in conformity with PAA s 162(4).
In doing so, I do not think it is appropriate to try to find the nearest equivalent in the Supreme Court Rules to the concept of “full costs as between solicitor and client” (such as costs taxed on an indemnity basis) and express the order in those terms. The order I am making is not made under the Rules but under PAA s 162(4). I therefore order that the respondent pay the applicants’ full costs as between solicitor and client of the respondent’s proceeding; that is to say, the respondent is to pay to the applicants all costs of and incidental to the respondent’s proceeding which the applicants would be obliged to pay their own solicitors should those costs be taxed.
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[1]It is not a matter for me to decide whether his Honour was correct about this as it is not relevant to any issue on the appeal, and the issue was not argued before me. (The power given by s 42 of the Local Court Act to correct errors – relied on by the applicants in their application to the trial judge – applies where there has been a clerical error; an accidental slip or omission or a material arithmetic error.)

[2] (1981) 147 CLR 246 at 248 per Gibbs CJ.

[3]Licul v Corney[1976] HCA 6; (1976) 50 ALJR 439, at p 444 in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248 per Gibbs CJ.

[4] at p 248 para [3]

[5] The fact that the decision in question is demonstrably wrong is not of itself an exceptional circumstance which would justify an extension of time within which to appeal: Weber v Nguyen Thi Phuong at [8]. However, it is a relevant consideration and may contribute to exceptional circumstances being shown to exist.

[6]Weber v Nguyen Thi Phuong [2001] NTSC 116 at [8], [10] per Angel J

[7]In Weber v Nguyen Thi Phuong [2001] NTSC 116, Angel J found that there were exceptional circumstances where the Magistrate had “caused the applicant’s solicitor not unreasonably to think that the rights of the parties were yet to be concluded” (at [9]). The trial judge’s indication on 28 November of his intention to correct the error similarly gave rise to a not unreasonable expectation this this obvious error would be corrected without the need for an appeal.

[8] Jackamarra v Krakouer (1998) 195 CLR 516 at 543 per Kirby J.

[9] This submission is based on the assumption that at the very least, the error could have been corrected by the trial judge by consent. The respondent made no submissions on this appeal about the extent of the trial judge’s power to correct the error so the issue was not argued before me. There was no challenge by the respondent to the meaning of s 162(4). (See para [28][28] below.)

[10]The fact that the respondent is highly unlikely to have the means to satisfy any costs order is irrelevant.

[11] The correctness of this premise should not be accepted. It is open to a court, in appropriate circumstances to make a costs order on its own motion.