Dee Why Auto Clinic v Roads and Maritime Services (No 2)

[2017] NSWSC 478

Supreme Court

New South Wales

Medium Neutral Citation:	Dee Why Auto Clinic and Anor v Roads and Maritime Services (No 2) [2017] NSWSC 478
Hearing dates:	Written submissions
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The plaintiffs are to pay the defendant’s costs of the plaintiffs’ notice of motion of 23 February 2017 as agreed or assessed. 2. The defendant is to pay the plaintiffs’ costs of the proceedings before this Court as agreed or assessed. 3. The costs of the entirety of the proceedings in the Local Court are to be determined by the Magistrate at the conclusion of such proceedings before him.
Catchwords:	PRACTICE AND PROCEDURE – Costs – Appeal –Where plaintiffs appeal against the decision of a Magistrate in the Local Court was successful – Where proceedings were remitted to the Magistrate to be further dealt with – Whether the defendant was entitled to an indemnity certificate – Whether the defendant was “the Crown” for that purpose – Whether costs of the Local Court proceedings should be at the discretion of the Magistrate
Legislation Cited:	Interpretation Act 1987 (NSW) Suitors Fund Act 1951 (NSW) Transport Administration Act 1988 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 Brownlie v Overend [1979] VR 283 at 288 Dee Why Auto Clinic and Anor v Roads and Maritime Services [2017] NSWSC 377 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
Category:	Principal judgment
Parties:	Dee Why Auto Clinic – First plaintiff Armen Rostamians – Second plaintiff Roads and Maritime Services - Defendant
Representation:	Counsel: S Stanton – Plaintiffs M Spartalis - Defendant   Solicitors: Barraket Stanton Lawyers – Plaintiffs Smythe Wozniak Lawyers – Defendant
File Number(s):	2016/235210
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Civil Date of Decision: 7 July 2016 Before: Magistrate Bradd

Judgment

1. In this matter I delivered judgment on 12 April 2017: Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377.

2. On that occasion I upheld an appeal brought by the plaintiffs against a decision of his Honour Magistrate Bradd in the Local Court, in which his Honour had concluded that the second plaintiff was not a fit and proper person to hold an authority to operate an Authorised Inspection Station, the business of such Inspection Station having being carried on by the second plaintiff under the name of the first plaintiff.

3. Although a number of grounds of appeal were pleaded, the primary complaint of the plaintiffs, and the fundamental basis upon which the case was conducted, was that the reasons given by his Honour were inadequate. For the reasons more fully set out in my judgment, I accepted the submissions advanced by counsel for the plaintiffs in that respect. At the time of delivering judgment, I also made an order dismissing a notice of motion (“the motion”) filed by the plaintiffs. The circumstances leading to that order are set out in my judgment at [12].

4. When delivering judgment I gave the parties the opportunity to provide written submissions as to costs.

5. On 19 April 2017 I received written submissions on behalf of the plaintiffs. The defendant’s position was set out in a written outline dated 18 April 2017. On 20 April 2017 I received further submissions from the solicitors for the plaintiffs. This resulted in yet further submissions being filed on behalf of the defendant. It must be said that the approach of each of the parties to the question of costs has been less than succinct.

Submissions of the plaintiffs

6. The submission of the plaintiffs was that I should make orders that:

1. the defendant pay the plaintiffs’ costs of the proceedings in this Court, as agreed or assessed;

2. the order made against the plaintiffs in the Local Court as to costs be set aside;

3. the defendant pay the plaintiffs’ costs of the entirety of the proceedings in the Local Court, as agreed or assessed; and

4. each party pay its own costs of the motion.

7. It should be noted that as to (ii), I have already made an order that the decision of the Magistrate be set aside.

8. It was submitted on behalf of the plaintiffs that in terms of the proceedings before this Court, costs should follow the event. It was submitted that r. 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) reflected that principle, and that there were no circumstances which justified a departure from it.

9. In terms of the orders sought in respect of the proceedings in the Local Court, it was submitted that following the decision of the Magistrate, the licences of the plaintiffs were cancelled by the defendant, leading to a position where, for a period of approximately 6 weeks, the second plaintiff was out of work and not able to generate any income. This, it was said, resulted in a “huge financial hardship” being imposed upon the second plaintiff. It was submitted that these circumstances justified a departure from the general rule that the costs of the Local Court proceedings should be resolved after the matter is determined to finality in the Local Court.

10. As far as the costs of the motion are concerned, it was submitted that those representing the plaintiffs had advised the defendant shortly prior to the commencement of the hearing (which was said to be the earliest possible opportunity) that the motion would not be pressed. It was submitted that because no hearing time had been taken up in dealing with the motion, no prejudice had been visited upon either party, and that each party should bear its own costs.

Submissions of the defendant

11. Counsel for the defendant submitted that in circumstances where the remittal of the proceedings to the Local Court may not result in a different outcome, and in circumstances where the necessity for the matter to be remitted to the Local Court was not the fault of the defendant, orders should be made that:

1. there be no order as to the costs of the proceedings before this Court;

2. the plaintiffs pay the defendant’s costs of the motion as agreed or assessed; and

3. the costs of the entirety of the proceedings in the Local Court be at the discretion of the Magistrate at the conclusion of the proceedings.

12. In the alternative, it was submitted that orders should be made that:

1. the defendant pay the plaintiffs’ costs of the proceedings before this Court as agreed or assessed, but in an amount not exceeding $10.000.00;

2. the defendant, if qualified, be granted a certificate pursuant to the Suitors Fund Act 1951 (NSW) (“the Suitors Act”) in respect of the costs in (i) above;

3. the costs of the entirety of the proceedings in the Local Court to be at the discretion of the Magistrate at the conclusion of those proceedings; and

4. the plaintiffs pay the defendant’s costs of the motion as agreed or assessed.

13. The defendant’s written submissions of 20 April 2017 set out what was said to be the background to the decision of the plaintiffs not to proceed with the motion. That history was entirely unsupported by any evidence.

CONSIDERATION

The costs of the motion

14. Rule 42.1 of the Rules is in the following terms:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

15. The plaintiffs filed the motion, supported by an affidavit of the second plaintiff, seeking to adduce further evidence at the hearing of the appeal. At the commencement of the hearing, I was informed that the motion was no longer pressed.

16. Whether or not any hearing time was taken up in dealing with the motion is not to the point. That does not mean that the defendant did not incur costs in addressing it prior to being told that it was not going to be pressed. There is no reason why the costs of the motion should not follow the event. Nothing advanced on behalf of the plaintiffs justifies a departure from the general rule set out in s. 42.1.

The costs of the proceedings before this Court

17. The submissions made on behalf of the defendant raised, in a somewhat oblique fashion, whether the defendant was entitled to a certificate pursuant to the Act. The alternative proposal set out in the defendant’s submissions of 18 April 2017 incorporated an order that the defendant, if qualified, be granted such a certificate in respect of any costs awarded against it in respect of the proceedings before this Court. In response, the solicitor for the plaintiffs submitted that the defendant was not so eligible. The further submissions received on behalf of the defendant stated that the defendant “(did) not assert that it is entitled to a certificate”. Having made that observation, and in circumstances where one version of the defendant’s proposed orders sought the issue of a certificate, the defendant’s submissions essentially ignored the issue.

18. Section 6 of the Suitors Act is in (inter alia) the following terms:

6 Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact, or

(b) to the High Court from a decision of the Supreme Court on a question of law,

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

….

(7) An indemnity certificate shall not be granted in favour of:

(a) the Crown,

(b) ….

(c) ….

19. Section 13 of the Interpretation Act 1987 (NSW) (“the Interpretation Act”) provides (inter alia):

13 Sovereign and Crown

In any Act or instrument:

(a) a reference to the Sovereign (whether the words “Her Majesty” or “His Majesty” or any other words are used) is a reference to the Sovereign for the time being, and

(b) a reference to the Crown is a reference to the Crown in right of New South Wales.

20. Section 13A of the Interpretation Act provides:

13A NSW Government agencies and statutory bodies representing the Crown

(1) If an Act provides that a body is:

(a) a NSW Government agency, or

(b) a statutory body representing the Crown,

the body has the status, privileges and immunities of the Crown.

(2) If an Act provides that a body:

(a) is not or does not represent the Crown, or

(b) is not a NSW Government agency or a statutory body representing the Crown,

the body does not have the status, privileges and immunities of the Crown.

(3) This section extends (without limiting its operation):

(a) to a provision that is expressed to be made for the purposes of any Act or more generally, and

(b) to privileges and immunities conferred by law expressly or as a matter of construction.

(4) In any Act or instrument:

(a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown,

or

(b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency.

(5) In this section, the "Crown" includes the State and the Government of the State.

21. The defendant is constituted pursuant to s. 46 of the Transport Administration Act 1988 (NSW) which is in the following terms:

46 Constitution of RMS

(1) There is constituted by this Act a corporation with the corporate name of Roads and Maritime Services.

(2) RMS is a NSW Government agency.

22. It follows that by virtue of s.13A(1)(a) of the Interpretation Act, the defendant has the status of the Crown. Having regard to s. 6(7)(a) of the Suitors Act, the defendant is not entitled to an indemnity certificate.

23. As to the broader question, the simple fact is that the plaintiffs were successful in the proceedings before this Court. There is no justification whatsoever that no order to be made as to the costs of the proceedings, nor is there any justification to limit the amount of costs so awarded. The defendant chose to oppose the relief sought by the plaintiffs and was unsuccessful in doing so. There is no basis upon which to depart from the general rule that costs should follow the event in respect of the proceedings before this Court.

The costs of the Local Court proceedings

24. As I have noted in [9] above, in support of the submission that the defendant should pay the entirety of their costs of the Local Court proceedings, reference was made to the hardship suffered by the second plaintiff as a consequence of the orders made by the Magistrate. That is irrelevant to the determination that I have to make as to costs. In any event, it was open to the plaintiffs, upon the decision being delivered by the Magistrate, to immediately commence proceedings in this Court and seek a stay of the Magistrate’s decision.

25. As things presently stand, and noting that the matter is to be remitted to the Local Court, the final rights of the parties have not been determined. The general rule is that where a new trial is ordered the costs of the first trial will follow the event of the new trial: Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 at [21] and following per McColl JA (Handley and Tobias JJA agreeing). Although there is not to be a new trial in this matter as such, the general rule is nevertheless applicable.

26. In Brittain, having cited the general rule, McColl JA went on to say (at [30]):

[30] The logic of the general rule is manifest. While the Court has a plenary discretion concerning costs (s 76 Supreme Court Act), the ordinary principle is that costs follow the event: Part 52A r 11. Where a new trial is ordered the parties’ rights have not been finally determined. The identity of the successful party has not been established. The general rule is clearly intended to ensure that the ultimate costs order reflects the ordinary principle when the parties’ rights are finally determined. Departures from the general rule are intended to deal with situations where its application would lead to injustice.

27. As her Honour recognised, there may be circumstances which justify a departure from the general rule: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15; Brownlie v Overend [1979] VR 283. However nothing put to me on behalf of the plaintiffs justifies such a departure in the present case.

ORDERS

28. Accordingly I make the following orders:

1. The plaintiffs are to pay the defendant’s costs of the plaintiffs’ notice of motion of 23 February 2017 as agreed or assessed.

2. The defendant is to pay the plaintiffs’ costs of the proceedings before this Court as agreed or assessed.

3. The costs of the entirety of the proceedings in the Local Court are to be determined by the Magistrate at the conclusion of such proceedings before him.

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Decision last updated: 28 April 2017