Cook v Galloway (No 2)
[2015] SASC 44
•20 March 2015
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 44Magistrates 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 application seeking to reopen the appeal pursuant to rule 242 of the Supreme Court Civil Rules 2006. The basis upon which the appellant sought to have the appeal reopened was that I had either not fully appreciated the terms of section 189C or had made an error in applying the terms of section 189C and had therefore erred in not first requiring the preconditions set out in section 189C to be satisfied, before exercising any discretion as to costs of the appeal.
The procedure adopted
The trial of the proceedings for confirmation of an interim intervention order, commenced by the appellant in the Magistrates Court, was heard over a two day period. The appellant failed before the Magistrate and failed on appeal. The respondent was represented by counsel at both the trial and on the appeal and is likely to have incurred significant legal expenses. To this point, she has been found entitled to nothing by way of a costs order for the trial and only a, relatively modest, contribution to her costs of the appeal. In the circumstances and upon receiving the appellant’s interlocutory application, I was concerned to avoid, if possible, the incurring of additional unnecessary costs by either party. As a consequence, I had my associate send an email to the appellant (copied to the respondent) in these terms (in part).
Dear Mr Cook,
Re: Cook v Galloway SCCIV-14-1626
I refer to your email of 10 March 2015 and attached interlocutory application for the appeal to be reopened with respect to the order concerning the costs of the appeal.
. . . .
I turn now to your substantive concern, being the interlocutory application to reopen the judgment in order to reargue the costs issue. His Honour is concerned, where fair and practicable, to avoid unnecessary costs to either party, particularly given that it is unusual to succeed with having a judgment reopened once delivered and entered. In the first instance, his Honour invites you to provide a written submission within seven days dealing with:
The power to reopen in these circumstances; and
The substantive argument that, in effect, s189C of the Summary Procedure Act 1921 also applies to the question of costs on this appeal.
Once your written argument is available, his Honour will consider whether to call the matter back on for further submissions, or to invite Ms Galloway to respond in writing (in which case you will have a right of reply) or to resolve the application without the need to hear further from the parties.
The appellant responded promptly with a written submission addressing both issues. I have reviewed that written submission and have decided that I would not be assisted by hearing further from the respondent and that I am in a position to deal with the interlocutory application on the basis put to me by the appellant.
Disposition of the appellant’s application
The appellant has provided submissions concerning the extent of the power under rule 242 of the Supreme Court Civil Rules 2006. That rule is in these terms.
(1)The Court may correct an error in a judgment at any time.
(2)If satisfied that the justice of a case so requires, the Court may—
(a) vary a judgment; or
(b) set aside a judgment and reopen an action.
Example—
The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.
(3)…
(4)…
Notwithstanding the beguilingly simple terms of the rule, there is a wealth of learning in the case law dealing with the circumstances in which the rule might be taken advantage of and when it ought not be taken advantage of. In the circumstances, I do not need to explore these issues.
The appellant has raised two substantive complaints. The first is that I erred in exercising my discretion to award costs for a number of reasons, including that I failed properly to take into account the fact that the appellant had been partially successful on the appeal. Without acknowledging that there is any force to this submission, I take the view that it is too late for me to receive further submissions in this respect and to exercise again the discretion. I have made my decision and, if it were to be the case that the decision was affected by improper reliance on irrelevant considerations or failure to take account of relevant considerations,[3] that would be a matter for an appeal court to determine, subject to the appellant obtaining leave to appeal on that point.
[3] See generally, House v King [1936] HCA 40, (1936) 55 CLR 499.
The appellant’s second concern raises slightly different considerations. The appellant submits that, in effect, I erred in law in not having proper regard to and in not applying to the circumstances before me, the terms of section 189C of the Summary Procedure Act. That section provides:
189C—Costs against complainant in proceedings for restraining order
(1)Despite any other provision of this Part, costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
(2)In this section—
"complainant", in relation to a restraining order, includes an applicant for a restraining order;
"restraining order" includes a domestic violence restraining order under the Domestic Violence Act 1994 and an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 .
It is the appellant’s contention that section 189C applies not just to the first instance proceedings before the Magistrate (as I found to be the case) but also to the proceedings appealing against the Magistrate’s decision. As such, before being able to exercise any discretion to award costs, I should first have satisfied myself that the appellant, in bringing the appeal proceedings, had acted in bad faith or unreasonably.
It was my view at the time of the costs argument before me and remains my view that section 189C does not apply at the appeal level. I did not provide reasons for that aspect of my decision but, it being purely a question of law, I do not feel constrained from providing those reasons now.
The restriction on the awarding of costs provided for by section 189C is confined to the award of costs “against a complainant in proceedings for a restraining order...”. The term “proceedings” is protean. It can take its full meaning from the context in which it is used.[4] However, and ordinarily, for example, the term “proceedings” as employed in the Supreme Court Act 1935 is used in a broad sense and means a vehicle by which the jurisdiction of the Court is invoked.[5] For the purposes of section 54 of the District Court Act 1991, the term “proceedings” has been defined as any matter or step in a civil or criminal matter before the court which the court deals with pursuant to the express or implied powers invested in it.[6] There is no definition of the term “proceedings” in the Summary Procedure Act. Various authorities have had occasion to consider the various dictionary definitions of the word “proceeding”.[7] However, none of these definitions or approaches are of direct assistance in this case.
[4] R v Seigneur [2009] SASC 59.
[5] Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302.
[6] R v Reed (1993) 173 LSJS 123.
[7] See for example, Maguire v Pankiewicz [2009] SASC 169.
I have no doubt that the appellant’s application for confirmation of an interim intervention order, as filed and pursued in the Magistrates Court, was a proceeding in the Magistrates Court and I have no doubt that the appellant’s appeal to this Court against the Magistrate’s decision, as constituted and pursued, was a proceeding in this Court. In my view each constitutes separate proceedings rather than there being the one continuous proceeding.
In any event, the important aspect of section 189C is that the proceedings in question must be “for a restraining order”. The proceedings before the Magistrate can be characterised as proceedings for a restraining order. The appellant held an interim intervention order and was seeking to have that interim order confirmed or converted into a final intervention order. The definition of “restraining order” in section 189C includes an intervention order under the Intervention (Prevention of Abuse) Act 2009. However, the proceedings in this Court were not proceedings for a restraining order. No doubt that is what the appellant ultimately wanted to achieve. However, the proceedings in this Court comprised an appeal against the Magistrate’s orders in the court below. In my view, this is the material feature of the proceedings in this Court for the purpose of construing section 189C in this context and notwithstanding that the appeal is by way of rehearing involving a full review of the evidence.[8]
[8] Cook v Galloway [2015] SASC 36 at [31]-[32].
The distinction I have drawn is consistent with and finds support in the language of the section. However, I am particularly fortified in the view that a distinction of this nature should be drawn in this context for two reasons in addition to the language used in the section.
First, the policy considerations, canvassed in my principal judgment,[9] which are said to militate against too readily ordering costs against an applicant who is unsuccessful in obtaining an intervention order, do not apply with anywhere near the same force to an appeal from the refusal to grant such an order. As in this case, an unsuccessful applicant who appeals against a Magistrate’s refusal to confirm an intervention order will have had their case heard in full on the merits by a Magistrate and will have failed. There will have been, as in this case, a finding that it was not reasonable to suspect that the respondent would, without an intervention order, commit a future act of abuse against the applicant. In these circumstances, there is every reason in principle why the ordinary costs rules and approach should apply in the event that such an applicant were to appeal that decision and fail again.
[9] At [57]-[59].
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.
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