Cook v Galloway (No 2) - [2015] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
COOK v GALLOWAY (No 2)
[2015] SASC 44
Judgment of The Honourable Justice Nicholson
20 March 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
PROCEDURE - COSTS - APPEALS AS TO COSTS - MISTAKE OF LAW OR FACT
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - IN GENERAL
Interlocutory application to reopen a Magistrate's appeal (with reference to the costs order made upon dismissal of the appeal) pursuant to rule 242 of the Supreme Court Civil Rules 2006.
Held: Application dismissed.
Summary Procedure Act 1921 s4, s189C; Magistrates Court Act 1991 s42; Supreme Court Civil Rules 2006 r242; Supreme Court Act 1935 (SA); District Court Act 1991 s54; Intervention (Prevention of Abuse) Act 2009 (SA), referred to.
Cook v Galloway [2015] SASC 36; Groom v Police (No 3) [2013] SASC 93; House v King [1936] HCA 40, (1936) 55 CLR 499; R v Seigneur [2009] SASC 59; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; R v Reed (1993) 173 LSJS 123; Maguire v Pankiewicz [2009] SASC 169, considered.

COOK v GALLOWAY (No 2)
[2015] SASC 44
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 6 March 2015, I delivered judgment dismissing an appeal from a Magistrate’s refusal to confirm an interim intervention order. However, the appeal against an order for the appellant (applicant before the Magistrate) to pay the respondent’s costs of the trial in the amount of $4,730 was allowed.[1] Immediately after delivery of judgment and publication of reasons counsel for the respondent made an application for the costs of the appeal. I heard brief submissions from the appellant who was representing himself and from counsel on behalf of the respondent. Notwithstanding that the appellant had been partially successful, in that he had succeeded with respect to the lower court costs order, I ordered that the appellant was to pay the costs of the respondent with respect to the appeal, fixed in the amount of $500.
[1] Cook v Galloway [2015] SASC 36.
The reason why I overturned the Magistrate’s costs order was that I was not persuaded that the preconditions required by section 189C of the Summary Procedure Act 1921 had been satisfied. In resisting the application for the costs of the appeal, the appellant again relied on section 189C. However, I took the view that section 189C did not apply at the appellate level and thus, there was no statutory impediment to exercising the costs discretion ordinarily available on an appeal to this Court from a Magistrate’s judgment pursuant to section 42 of the Magistrates Court Act 1991.[2]
[2] I was satisfied that section 42 governed this appeal, Groom v Police (No 3) [2013] SASC 93.
On 10 March 2015, the appellant forwarded by way of email to my Chambers an interlocutory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v Galloway (No 2)

Details

AGLC: Cook v Galloway (No 2) [2015] SASC 44
Case: [2015] SASC 44
Decision Date: 20 March 2015

CaseChat Overview and Summary

The appeal in Cook v Galloway (No 2) was heard by the Supreme Court of South Australia, where the appellant sought to reopen the appeal in order to correct a judgment that had been entered against them. The case revolved around a dispute concerning costs, with the appellant arguing that the trial judge had made a mistake of law or fact that warranted the appeal being reopened. The appellant contended that the trial judge had misapplied section 189C of the Summary Procedure Act, which governs the awarding of costs in Magistrates Court proceedings.

The court was tasked with determining whether the trial judge's interpretation of section 189C was correct and whether the power to reopen an appeal, as provided for by rule 242 of the Supreme Court Rules, could be exercised in this instance. The court also had to consider whether the appellant's application to reopen the appeal was justified, given that the appeal had already been heard and determined.

The court found that the trial judge had correctly interpreted section 189C, which applies specifically to proceedings in the Magistrates Court, and that the provision did not extend to appeals to the Supreme Court. The court further held that, even if the trial judge had erred in their interpretation of the law, there was no basis for reopening the appeal under rule 242. The court found that the appellant's application to reopen the appeal was without merit and dismissed the application.

The Supreme Court of South Australia dismissed the appellant's interlocutory application to reopen the appeal. The court found that the trial judge's interpretation of section 189C of the Summary Procedure Act was correct and that the provision did not apply to appeals to the Supreme Court. The court also held that there was no basis for reopening the appeal under rule 242 of the Supreme Court Rules, as the appellant had failed to demonstrate that such action was warranted. The court's decision was final and binding, and no further appeals or applications to reopen the appeal were permitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

The second matter of fortification is a textual matter. Section 189C provides that “costs will not be awarded against a complainant... unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings”. The word Court is defined in section 4 of the Summary Procedure Act to mean “the Magistrates Court of South Australia”. It is that court which is required to be satisfied of the section 189C preconditions before exercising that court’s discretion as to costs. This is a strong indication that the provision is confined to proceedings in the Magistrates Court, rather than proceedings by way of appeal to the Supreme Court.Conclusion Irrespective of the potential breadth of the power to reopen the appeal so as to correct, vary or set aside a judgment, provided for by rule 242, there is no warrant for the exercise of the power in this case. The appellant’s interlocutory application is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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