Cosenza v State of South Australia - [2020] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
COSENZA v STATE OF SOUTH AUSTRALIA
[2020] SASC 47
Judgment of The Honourable Auxiliary Justice David
7 April 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
PROCEDURE - COSTS - APPEALS AS TO COSTS
Appeal against an order for costs.
The appellant sought declaratory relief and orders, including damages for $100,000 for injury and loss arising from the actions of a Fines Enforcement and Recovery Unit officer within the Attorney-General’s Department. The appellant alleged those decisions were not made in accordance with the provisions of s 13 of the Expiation of Offences Act 1996 (SA), and had commenced separate juridical review proceedings in the Supreme Court. The two proceedings continued with various applications made by the appellant. During that time, the Fines Enforcement and Debt Recovery Act 2017 (SA) was assented to by the Governor of South Australia. Despite any merits of the original action, the effect of the amending legislation was that the appellant’s claim was doomed to fail.
The Magistrate found that the respondent was entitled to costs for work carried out following the assent of the Fines Enforcement and Debt Recovery Act 2017 (SA) of $7,500 as a global amount, which they were entitled to indemnify on its behalf.
In this Court, the appellant seeks permission to appeal the Magistrate’s order with respect to costs. He contends that the Magistrate erred in not specifically identifying the details of the respondent’s actual loss, and that he ought not to pay costs as little work was done due to the inevitable nature of the amending legislation.
Held, per David AJ, refusing the appeal:
No demonstrable error was made by the Magistrate, such that it would be proper to compensate the respondent for work done during the period following the assent of the amending legislation, and there was no error as to the amount of costs.
Expiation of Offences Act 1996 (SA) s 13; Fines Enforcement and Debt Recovery Act 2017 (SA); Magistrates Court (Civil) Rules 2013 (SA), referred to.

COSENZA v STATE OF SOUTH AUSTRALIA
[2020] SASC 47
Magistrates Appeal: Civil

DAVID AJ: The appellant appeals against an order for costs made against him by a Magistrate for the sum of $7,500 on 24 September 2019. It is agreed between the parties that an appeal against such an order requires permission. In short, the appellant (plaintiff at first instance) instituted proceedings in the Port Adelaide Magistrates Court on 11 October 2017, and on 19 August 2019 the appellant filed a notice of discontinuance of the claim. The appellant made an application for costs despite the filing of the notice of discontinuance which was opposed by the respondent (defendant in the original action). It is important to set out the series of events that took place from the institution of proceedings on 11 October 2017, until the filing of the notice of discontinuance on 19 August 2019.
History of proceedings
The appellant commenced his action in October 2017, seeking declaratory relief and consequential orders, including damages for $100,000 for injury and loss said to have arisen from the actions of an officer from the Fines Enforcement and Recovery Unit within the Attorney-General’s Department. It was alleged in those proceedings that those decisions (“the FEARU decisions”) were not made in accordance with the provisions of s 13 of the Expiation of Offences Act 1996 (SA) (“the Act”).
In separate proceedings commencing on 31 August 2016, the appellant sought judicial review of those same decisions in the Supreme Court of South Australia. That application was heard by the Chief Justice on 29 August 2017 and 1 September 2017. On 11 December 2017, the Chief Justice dismissed that application. The appellant appealed against that decision to the Full Court of the Supreme Court of South Australia on 22 December 2017 but discontinued that appeal on 31 January 2019.
There is now no dispute that the Supreme Court proceedings before the Chief Justice and the Magistrates Court proceedings did not amount to a duplication and in fact were to be regarded quite separately.
Nevertheless, it is to be noted without going into detail, that the Chief Justice in his judgment found some merit in the argument that the FEARU decisions were not made in accordance with the provisions of s 13 of the Act. He however, dismissed the application on other, mainly discretionary grounds.
On 13 November 2017, the appellant filed a request to the Registrar of the Port Adelaide Magistrates Court to sign judgment in default of a defence being filed. As I understand the situation, there was some confusion about the service of proceedings upon the respondent. Judgment was signed in default on 13 November 2017. On 28 December 2017, the respondent filed an application seeking orders that the default judgment be set aside, and summary judgment be entered dismissing the claim. Prior to the determination of the application to set aside the judgment, the respondent was given leave to file a defence to the claim and did so on 13 April 2018.
On 20 June 2018, Auxiliary Magistrate Keith set aside the judgment and adjourned the determination of the respondent’s application for summary judgment, or dismissal of the proceedings, pending the finalisation of the Supreme Court appeal from the Chief Justice’s decision.
On 12 December 2017, following the Supreme Court decision, and prior to the determination of the respondent’s application to set aside judgment and summary dismissal, the Fines Enforcement and Debt Recovery Act 2017 (SA) (“the Amending Act”) was assented to by the Governor of South Australia. That Act had the effect of validating enforcement determinations made by a Fines Enforcement and Recovery Unit Officer under s 13 of the Act, notwithstanding non-compliance with the requirements of s 13(1) or 13(2), which was the basis of the appellant’s original action. That amendment, pursuant to transitional provisions, applied retrospectively to the present matters.
The effect of the amending legislation was that, irrespective of the original merits of the present action, the appellant’s claim was doomed to failure.
After the default judgment was set aside by Auxiliary Magistrate Keith on 20 June 2018, there was correspondence between the parties in which the respondent claimed costs and the appellant made his position clear that he would not pay costs. A notice of discontinuance was filed on 19 August 2019.
The Magistrate’s decision
The Magistrate, having heard argument from both sides in relation to costs, was concerned by the fact that any costs incurred by the respondent happened after the date that the Amending Act was assented to, and at a time when the action therefore had no merit, and was destined to fail. She said in her reasons:
Notwithstanding this, the [appellant] unreasonably persisted with the action and required the [appellant] to incur costs in its application to set-side the judgment. In my view that application ought not to have been necessary or, at the least, ought to have been granted by consent.
The [respondent] made this position perfectly clear to the [appellant] in December 2017 when it issued an application for summary judgment and identified the basis of that application in the affidavit of Mr Ambrose. Nothing has changed since that time with respect of the merits of this claim or the lack thereof. Notwithstanding this, the [appellant] failed or refused to discontinue his claim until only days before the hearing of the respondent’s application issued on April 2019. In my view, this is a classic example of a party’s conduct in continuing litigation being unreasonable.
…
To be clear, I would not consider the [appellant] liable for the defendant’s costs if those costs had been incurred at a time when the subject matter of the action continued to have arguable merit, that is, before the subject matter ceased to exist through the act of the legislature. This is not the case here as the costs of the [respondent] were all incurred after that date and at a time the [appellant] refused to accept the reality that the claim could not succeed.
The Magistrate found, in all the circumstances, that the respondent was entitled to costs for work carried out following the assent of the Amending Act on 12 December 2017.
As far as the quantum of costs was concerned, the Magistrate found that the respondent is entitled to indemnify for costs on its behalf. The Magistrate awarded costs on the basis that the respondent had filed a defence and made two interlocutory applications after 12 December 2017, namely an application to set aside judgment and an order for summary judgment. Her Honour pointed out that the application for summary judgment was accompanied by an extensive affidavit and the information in that affidavit identified the basis upon which the appellant should cease his actions. The Magistrate assessed, in discretionary broad terms, that the appropriate order for costs should $7,500 as a global amount.
The Appeal
The appellant now argues that the Magistrate erred in not specifically identifying the details of the actual loss accorded to the respondent. He also argues that as the default judgment was obtained before the amending legislation came into effect, it was reasonable for the appellant to maintain that judgment and he ought not to pay costs associated with setting aside a default judgment. He puts in effect that little work was done as it was inevitable after the amending legislation that the action was doomed to failure.
The respondent argues that permission to appeal should not be granted as there is no error demonstrated in the exercise of the Magistrate’s discretion. The respondent also argues that there is no real point of principle involved. The minutiae of whether the actual amount was justified, consistent with a broad discretion given by the Magistrates Court (Civil) Rules 2013 (SA), does not justify the granting of permission.
Discussion
I find that there is no demonstrable error made by the Magistrate. There was a long period of time between the Amending Act and the filing of the notice of discontinuance. I agree with the Magistrate that it would be proper to compensate the respondent for work done during that period. I can find no error in the exercise of her Honour’s discretion as to the actual amount.
I refuse permission to appeal.