Commissioner for Consumer Affairs v Elmasri (No 2) No. Dcaat-99-9 Judgment No. D112

[1999] SADC 112

COMMISSIONER FOR CONSUMER AFFAIRS v AMINAH ELMASRI and MOHOMAD ELMASRI (NO 2)
[1999] SADC D112

Judge Lunn
District Court Administrative and Disciplinary Division

REASONS ON COSTS’ APPLICATIONS

1. In these proceedings under Part 5 of the Second Hand Vehicle Dealers Act 1995 (“the SHVD Act”) the complainant sought to establish causes for disciplinary action against both defendants as unlicensed dealers.  On 16 August 1999 the Court ruled that there was cause for disciplinary action against the 1st defendant on counts 2, 3 and 4 but not against the 2nd defendant on any count.  It dismissed the proceedings against him.  The 2nd defendant then applied for an order for costs but the complainant submitted that the Court had no power to order any costs.  It was agreed that if costs could be ordered there should be an order that the 2nd defendant have his costs of the proceedings on the District Court scale as agreed or taxed.  The complainant submitted that if his submission about there being no power to order costs was wrong, he was entitled to an order for costs against the 1st defendant.  However, the Court in fixing the fine payable by the 1st defendant under Section 30(1)(b) of the SHVD Act assessed the proper amount of the fine on the basis that she had no other financial liability arising from the matter.  Accordingly, even if the Court did have the power to order costs against the 1st defendant, it would not have exercised its discretion to award any such costs against her.

2. The proceedings are disciplinary proceedings in the Administrative and Disciplinary Division of the District Court. As whether there is power to order the complainant to pay costs to the 2nd defendant is a question of law it is for the presiding Judge alone to determine it pursuant to s20(4)(b)(i) of the District Court Act 1991 (“the DCA”).

3. The District Court is an inferior Court of limited jurisdiction: Byrnes v R, High Court, 12/8/99, A44/98, unreported.  The power of such courts to award costs must derive from an enabling statute to that effect: Victoria Phillip-Stephan Photo Co v Davis (1890) 11 NSWR (L) 257 at 265; R v Connell (No 2) (1992) 8 WAR 532. The law on the topic was set out by Kirby P (as he then was) in Walton v McBride (1995) 36 NSWLR 440 at 447 as follows:

   “In the case of courts which are created by statute, at least where they are not superior courts of general jurisdiction in law and equity, the source of the court’s power to order costs of any kind, must be found in the enabling statute.  This is because costs are not, as such, a right or privilege created by the common law. ...... Where a subordinate court of limited jurisdiction is created, it must find its powers in the express language of the statute which gives it existence, in the implications which derive from that language and are necessarily involved in it or such powers as may be inferred from the very fact that the legislature has created a curt, with jurisdiction to perform and therefore the necessary means of carrying out that jurisdiction and giving it effect. ..... The distinction between inherent and implied statutory powers is, in my view, an important one. .......”

The fact that the jurisdiction of the District Court in its Administrative and Disciplinary Division is derived from statute is reinforced by s8(3) of the DCA which provides:

“(3) The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.”

In cases on related questions about the power to order costs it has never been suggested that the District Court has any implied power to award costs which did not flow from a proper interpretation of the relevant statute: Vestris v Cashman (1998) 119 LSJS 159; Milosevic v GIO NSW (1993) 31 NSWLR 323.

1. There is nothing in the provisions of the DCA relating to its Administrative and Disciplinary Division which expressly confers any power to award costs. Section 42 of the DCA confers such a power on the District Court in its Civil Division, but under s7 of the DCA that Division is quite distinct from its Administrative and Disciplinary Division. The fact that an express power to award costs has been conferred on the civil jurisdiction implies that Parliament did not intend that there should be any power in the Administrative and Disciplinary Division of a similar nature. Likewise the SHVD Act is entirely silent on whether the District Court in exercising its disciplinary jurisdiction conferred by that Act is to have any power to award costs. However, its s10(6)(b) does expressly confer a power to award costs on licensing appeals.

2. Rule VI-1(2) of the District Court Rules 1992 makes Part VI of those Rules applicable to disciplinary proceedings including those under the SHVD Act. The only relevant rule is VI-27 which provides that certain rules in Part I of the Supreme Court Rules are to apply to disciplinary proceedings as if such rules had been made pursuant to the power contained in s51 of the DCA. In particular it refers to RR101.01-101.28 inclusive of the Supreme Court Rules which deal with the awarding and fixing of costs. The 2nd defendant contends this incorporation of R101 of the Supreme Court Rules gives the District Court power to order costs in these proceedings. I cannot agree.

3. From the authorities cited above it is necessary that the power of the District Court in its Administrative and Disciplinary Division to award any costs should be based upon statute. The only statute which would give rise to such a power in this case based on Rule VI-27 is s51(1)(f) of the DCA which provides that Rules of Court “may be made ....... (f) regulating costs.” A statute giving power to a Court to make Rules to regulate matters does not enable that Court by rules made under that power to confer any additional jurisdiction upon itself: King v Henderson [1898] AC 720 at 728-9. In its context in s51 subpara (1)(f) assumes a power from another source to order costs and merely enables rules to be made regulating how that power is to be exercised.

4. If Rule VI-27 purported to confer power on the District Court in its Administrative and Disciplinary Division to award costs, it would be a rule which was beyond power.  However, in my view the Rules should be read down to be confined to proceedings where there is otherwise a statutory head of power to award costs, and the relevant part of Rule VI-27 can then apply to regulate how that power is to be exercised.  While I have not been able to find any instance in the many Acts conferring jurisdiction in disciplinary proceedings upon the Administrative and Disciplinary Division of the District Court of a power for costs to be awarded, it is theoretically possible that this could occur in some future Act, and Rule VI-27 would then apply to regulating those costs.  However, Rule VI-27 cannot be an effectual source of any power for the District Court in its Administrative and Disciplinary Division to award costs.  Accordingly, the 2nd defendant’s application for costs must fail.

5. The complainant also submitted that if it was liable to pay costs to the 2nd defendant a “Bullock Order” should be made requiring the 1st defendant to indemnify the 2nd defendant against such costs.  While this question need not be determined my silence on the topic should not be regarded as any acceptance that the submission was either good in law or applicable on the facts of this case.

6. In similar proceedings under Part 5 of the SHVD Act of Commissioner for Consumer Affairs v Malakooti, 4/9/98, Jud No D3883, unreported, I made an order for costs in favour of the Commissioner.  My recollection is that the Commissioner’s then counsel asked for the order and it was not opposed by the respondent’s counsel.  An order for costs was also made in favour of the Commissioner in Gilmore (Commissioner for Consumer Affairs) v Zare-Saisan, 9/12/97, unreported.  They may also have been made in other proceedings under Division 5.  As far as I am aware the point has never previously been raised of whether the District Court has jurisdiction to make any such order for costs.  The fact that the Commissioner requested, and received, orders for costs in previous proceedings does not in law prevent him from now taking the point that there is no jurisdiction to order them.  However, as he has now taken the point, and it has been determined, consideration should be given to whether he should refund any costs which he had received in other matters where similar orders were made per incuriam.