Easwaralingam v Davis
[2013] VSC 651
•28 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. S CI 6248 of 2012
| SAJANESH EASWARALINGAM | Plaintiff |
| v | |
| CRAIG GILBERT DAVIS | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
---
JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 3 and 4 June 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Easwaralingam v Davis & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 651 | Revised 9 December 2013 |
---
ADMINISTRATIVE LAW – Certiorari – Magistrate’s order for assessment of costs by Costs Court – Whether denial of natural justice by predetermination – Whether failure to exercise jurisdiction by declining to determine quantum of costs – Jurisdiction of Magistrates’ Court to refer determination of quantum of costs to Costs Court in criminal proceeding – Whether irrelevant considerations taken into account – Whether failure to take relevant considerations into account – Adequacy of reasons.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Lithgow | Access Law |
| For the First Defendant | Mr D Williams SC | Victorian Government Solicitor’s Office |
| For the Second Defendant | No appearance |
HER HONOUR:
The application
On 21 September 2011, in the Magistrates’ Court at Dandenong, a magistrate dismissed charges against the plaintiff which had been remitted for rehearing by the Court of Appeal. The learned Magistrate ordered that the Chief Commissioner of Police pay the plaintiff’s ‘reasonable costs’. She reserved to the parties leave to apply to the Magistrates’ Court if no agreement were reached in respect of quantum.
On 16 January 2012, the plaintiff’s solicitor forwarded to the prosecutor a bill for the plaintiff’s costs in taxable form. The bill was referred to the Victorian Government Solicitor’s Office. After the parties failed to agree upon the quantum, a request was made for the matter to be re-listed at the Dandenong Magistrates’ Court.
On 7 April 2012, the Magistrates’ Court advised that the matter had been re-listed for a three hour costs argument before the Magistrate on 19 September 2012.
Two days before the scheduled hearing date, on 17 September 2012, the plaintiff’s solicitor forwarded the 16 January 2012 bill, together with a supplementary bill in taxable form, dated 17 September 2012, to the Magistrates’ Court and to the Victorian Government Solicitor’s Office.
On 18 September 2012, the Magistrates’ Court notified the plaintiff’s solicitor that the Magistrate intended to refer the taxation of the costs to the Costs Court and that no appearance was necessary on 19 September 2012. The plaintiff objected to the foreshadowed referral and indicated that his solicitors would attend with counsel to make relevant submissions.
On 19 September 2012, her Honour did decide to refer the determination of the quantum of the costs to the Costs Court in the exercise of her power under s 131A of the Magistrates’ Court Act 1989.
The plaintiff now seeks an order in the nature of certiorari quashing the referral order and an order in the nature of mandamus that the Magistrate herself should decide that quantum.
The first defendant resists the application and the second defendant has taken the path sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman[1] and agrees to abide by the decision of the Court.
[1](1980) 144 CLR 13.
Background
The background is that the Court of Appeal had remitted the charges against the plaintiff for rehearing to the Magistrates’ Court. It did so after a successful appeal from a decision of this Court allowing an appeal by the Director of Public Prosecutions from the earlier dismissal of those charges in the Magistrates’ Court. The Court had ordered the plaintiff to pay the Director’s costs. The Court of Appeal ordered the Director to pay the plaintiff’s costs of both the appeal and of the proceeding below. The taxation of each set of those costs was before a judicial registrar of the Costs Court on 19 September 2012, when the Magistrate made the impugned referral order.
The Magistrate’s reasons for the referral
After hearing submissions, the learned Magistrate ordered that the matter be referred to the Costs Court. She gave these reasons for her decision:
I have before me today an application in relation to costs. On 21st of October 2011, I’m told, I made an Order that the Chief Commissioner of Police pay all reasonable costs of the accused. This Court dealt with the issue of costs on that day. Clearly there must be some dispute between the parties to have this application brought before me again today. The issue before me today is in fact quantum. My view is that the proper venue to deal with this matter is the Costs Court. My view is that they have the expertise and the time to deal with a matter of this nature. It is also my view that this matter is not a normal matter within the generic description of that term that is used in the Court where it has been subject to numerous appellate decisions. Further…the Chief Commissioner of Police has no objection to the matter being referred to the Costs Court. I am not persuaded by the submissions of [counsel for the plaintiff] that this Court should deal with such an application. I am further told today by a representative of the Chief Commissioner that there are other matters before the Costs Court in relation to, generally, these proceedings. That being the case, this matter is to be referred to the Costs Court.[2]
[2]Transcript of Proceedings, Sajanesh Easwaralingam v L/S/C Craig David (Dandenong Magistrates’ Court, Case No X00816312, Magistrate O’Donnell, 19 September 2012) 50-51 (‘Transcript’).
The Costs Court
The Costs Court was established within the Trial Division of the Court by s 17C of the Supreme Court Act 1986. Section 17C was inserted into the Supreme Court Act as part of a new Division 2B of Part 2 by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008.
Section 17D(1)(b)-(d) of the Supreme Court Act set out the Costs Court’s functions and powers relevant to the Magistrates’ Court:
17D Powers and functions of Costs Court
(1) The Costs Court—
…
(b)has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in—
(i)the County Court;
(ii)the Magistrates’ Court;
(iii)VCAT—
if, by or under any Act, the Rules or the Rules of those courts or VCAT, costs are to be assessed, settled, taxed or reviewed by the Costs Court;
(c)has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in—
(i)the County Court;
(ii)the Magistrates’ Court;
(iii)VCAT—
if, by any order of a court or VCAT, costs are to be assessed, settled, taxed or reviewed by the Costs Court;
(d)has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in the County Court, the Magistrates’ Court or VCAT, as the case requires, in which—
(i)there is an entitlement to costs by or under any Act, the Rules of the County Court, the Magistrates’ Court or VCAT or arising from an order of the County Court, the Magistrates' Court or VCAT; and
(ii)the amount of those costs has not been fixed by the court or by VCAT;
…
The power of the Magistrates’ Court to refer costs to the Costs Court
The Magistrates’ Court Act was relevantly in these terms as at 19 September 2012:
131 Costs to be in the discretion of the Court
(1)The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.
(2)Subsection (1) applies unless it is otherwise expressly provided by this or any other Act or by the Rules or the regulations.
…
(2C)If the Court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police.
…
Note
See section 17D(1)(b) to (d) of the Supreme Court Act 1986.
Section 131A gave a magistrate power to refer the assessment of costs to the Costs Court. That section was also inserted into the Magistrates’ Court Act by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. As at 19 September 2012, s 131A provided:
131A Costs may be determined by Costs Court
Despite section 131(1), the Court may order that the costs of, and incidental to, a proceeding in the Court be assessed, settled, taxed or reviewed by the Costs Court.
A ‘proceeding’ was relevantly defined in s 3 as ‘any matter in the court including a committal proceeding’.
Purpose of amendments establishing the Costs Court
The Attorney-General, the Hon Rob Hulls, explained the purpose of the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. He also made the requisite statement as to its compatibility with human rights under s 28 of the Charter of Human Rights and Responsibilities Act 2006. In the course of making that statement the Attorney-General said this:
The Bill aims to give Victorians more opportunities to resolve legal disputes at less cost by establishing a single office with responsibility for assessing and resolving costs disputes across each of the three Victorian courts and VCAT and disputes arising under the Legal Profession Act 2004. A single costs office will:
promote consistency in the determination of assessments and the resolution of disputes;
provide opportunities for the more efficient determination of assessments and the resolution of disputes; and
potentially reduce the cost of determinations and resolutions for litigants. …
Clause 5 establishes the Costs Court within the Trial Division of the Supreme Court.
Section 24(1) of the charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and impartial hearing.
The purpose of the right is to ensure the proper administration of justice.
This right is concerned with procedural fairness.
The bill engages the right because it affects the venue and manner in which costs are taxed. The provisions establishing and governing the Costs Court are consistent with the right because a person will have a proceeding decided by a competent, independent and impartial court after a fair and public hearing.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 20 August 2008, 3063-4.
Grounds for relief
Ground 1 – Denial of natural justice – pre-judgment
The plaintiff argues that the learned Magistrate denied him natural justice in that she had pre-judged the matter. This pre-judgment was demonstrated by her notifying the parties the previous day of her determination to refer the matter of the quantification of costs to the Costs Court.
He contends that her decision was ‘patently irregular’. He argues that her remarks suggest she had approached the matter on the basis that she would refer it to the Costs Court unless the plaintiff’s counsel could persuade her to do otherwise. She displayed defensiveness in relation to her previous decision to refer the matter and was ‘highly reluctant’ to depart from that decision. She failed to address counsel’s submissions and explain why she rejected them.
I am not persuaded by the plaintiff’s arguments.
Discussion
There is no doubt that natural justice demands that a court both be impartial and be seen to be so. As Barwick CJ, Gibbs, Stephen and Mason JJ said in R v Watson; Ex parte Armstrong:[4]
It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.[5]
[4](1976) 136 CLR 248.
[5]Ibid 262-3.
The transcript of the hearing in relation to the referral of the assessment of the costs before the learned Magistrate is exhibited to an affidavit affirmed on 30 November 2012 by Gabriel Kuek, the plaintiff’s solicitor. In my opinion, it demonstrates that the learned Magistrate, having previously determined to refer the assessment to the Costs Court of her own motion under s 131A of the Magistrates’ Court Act, properly entertained and considered the submissions put by counsel for the plaintiff against such a step. I will refer to the transcript in some detail to explain that conclusion.
The Magistrate was informed by counsel for the plaintiff that in addition to the earlier bill, there was a supplementary bill for an additional $14,951 said to update the plaintiff’s costs, and that penalty interest of some $5,238.75 was due as well.
The plaintiff sought to have those matters made the subject of orders for payment by the court.[6] The transcript recorded the following exchange between Magistrate O’Donnell (described as ‘O’Donnell J’) and counsel for the plaintiff:
[6]Transcript, 5-6.
O’DONNELL J: My view is that there is a bill presented to me in taxable form. Clearly it has not been paid and there is some context in relation to it. Under section 131A of the Magistrate (sic) Court Act, my intention today is to refer this matter to the Costs Court.
MR. PERKINS: Well, Your Honour, we…
O’DONNELL J: Now, that was something that was indicated yesterday by the Registrar. This is the busiest regional Court in Victoria. I am not an expert on costs; there is a costs (sic) Court that is an expert on costs. It is appropriate that this matter is referred to them.
MR. PERKINS: Well, your Honour … I would like to address your Honour concerning that.
O’DONNELL J: Yes.
…
O’DONNELL J: But I will say that you are going to have to be very persuasive, Mr Perkins, to persuade me that costs of this nature which in total are going to be in excess of forty-odd thousand dollars in the Magistrates’ Court; I’m not going to spend an entire day going through a taxable bill on an item-by-item basis to make Orders. That is why we have a costs Court for. There is a recent decision of Brown v Glen Eira in relation to costs, where it was an appeal of costs to the Supreme Court. That decision quite clearly says that the appropriate decision that costs Court has particular and unique expertise in dealing with the assessment of costs and I certainly support that view (sic).[7]
[7]Ibid 7-8.
Counsel for the plaintiff submitted that the taxation of costs is and was within the jurisdiction of the Magistrates’ Court. He referred to the busyness of the court and was assured by the learned Magistrate that it was not her reason for referring the matter. Her Honour said:
The reason I am referring it is because there is an expert Court to deal with the issue of costs. This is a matter where you are seeking $22,225.90 in dispute. The reality is the costs Court (sic) has the expertise to deal with these matters; I have already made a costs Order in this matter. The Order is that Prosecution pay all reasonable costs. My view is reasonable costs should be determined by a Costs Court.[8]
[8]Ibid 9-10.
Counsel for the plaintiff then submitted that such a referral would amount to the Magistrate, inappropriately, declining to exercise her jurisdiction under s 131(1) of the Magistrates’ Court Act. He submitted that it would be an easy task for the Magistrate to determine what ‘reasonable costs’ were. Counsel acknowledged that s 131A plainly created a power to order that costs be assessed by the Costs Court, but contended that the Magistrates’ Court power was spent by the order made. He submitted that the discretion ‘triggered’ was that of the Magistrate to assess the costs.
The Chief Commissioner was at that stage unrepresented, as he had been informed that no appearance was necessary that day at the Magistrates’ Court. A prosecutor present at the court informed the Magistrate that the Crown prosecutor’s position was that the matter should go before the Costs Court and that such an application would be made. Time was sought for relevant submissions to be made.
Counsel for the plaintiff then stated that he did not contest that the Costs Court ‘retained’ jurisdiction as a result of a referral of the matter to it. He argued that the exercise of the discretion was not appropriate. The learned Magistrate asked him to explain the reasoning behind his submission that she should not refer the matter.[9]
[9]Ibid 15.
Having previously pointed out to the learned Magistrate that the plaintiff had provided a bill in taxable form and had had no explanation as to why any of the items included in it were not justifiable or appropriate, counsel for the plaintiff went on to submit that:
(a)‘the general law’ was that, where a discretion was followed by a right of appeal or review, it was appropriate that the discretion be exercised by the court at first instance;
(b)there was no reason for the Magistrate not to exercise her discretion in relation to costs, notwithstanding that it was conceded that the Costs Court had jurisdiction if the Magistrate decided to refer the matter to it;
(c)the Magistrate would err in law to decline to make a discretionary judgment about costs in the absence of any reason to do so.
The learned Magistrate asked why the Costs Court was not the appropriate place for the application which she would characterise as ‘outside of the normal range of costs applications’ heard in the Magistrates’ Court. Counsel went on to concede that that might be said ‘at first blush’ but that cases in the Magistrates’ Court did not normally go to the Court of Appeal.
The Magistrate pointed out that the plaintiff was asking for what were significant costs in the Magistrates’ Court jurisdiction. She indicated her view that, in such a case, the Costs Court had relevant expertise. She characterised the case as unusual, given that it involved significant appeals and that it was it appropriate to refer it to the expert jurisdiction to deal with the issue of costs.
Counsel for the plaintiff then referred to the fact that he had waited for a hearing since 16 March 2012 and had not been advised earlier of the Magistrate’s desire to send the matter to the Costs Court. The learned Magistrate responded that the matter had only come before her that day in relation to a dispute about costs. She was told about the listing on 27 April for a hearing on 19 September and responded that she had not been privy to that action by the registry. Counsel then argued that the matter should not be effectively placed in another queue and should be dealt with by her Honour with her specialised knowledge of the case, notwithstanding the specialised knowledge of the Costs Court in relation to costs. The process would inflict further delays on the plaintiff.
Counsel for the plaintiff maintained the position that there was no proper foundation for the exercise of the discretion to refer the matter. The learned Magistrate indicated that the issue would not be determined as the Victorian Government Solicitor had not attended, having chosen not to make arguments in relation to the referral. Eventually, the Magistrate indicated that the pressure of business and, in particular, criminal business before the court would have meant that it was unlikely that the matter would have been reached that day, in any event.
After an adjournment, Mr Elms of the Victorian Government Solicitor’s Office announced his appearance for the Chief Commissioner. He told the court that the Chief Commissioner would support a referral of the matter to the Costs Court, principally because of the complex history of the entire proceeding. There were part-heard matters before the Costs Court in relation to the costs of the appeals, a partial taxation had occurred and those complicating factors had resulted in the Chief Commissioner’s support for the reference. Mr Elms disputed the plaintiff’s contention that there was partial agreement as to the quantum, even though the plaintiff’s costs of the first hearing in the Magistrates’ Court had been agreed at the time.
Counsel for the plaintiff then urged the Magistrate to determine the issue, noting the absence of any application by the Chief Commissioner for the matter to be referred or written response outlining objections to the bill of costs and the previous consent to an order in relation to the quantum.[10] He submitted that the Magistrates’ Court was the court at first instance in relation to the application and there were no reasons why that court should not determine the quantum in the exercise its discretion.
[10]Ibid 36-43.
Counsel for the Chief Commissioner responded that, whilst he was prepared to argue the quantum of costs which the court clearly had jurisdiction to consider, it also had jurisdiction to refer the matter to the Costs Court. He submitted that the situation was similar to that which Daly AsJ described in Brown v Glen Eira City Council(No. 2),[11] where her Honour said this:
In my view, having regard to the length of time since the matter was before [the Magistrate], and the potential for further disputation between the parties, the just and efficient course of action is to make an order referring the Council’s costs to the Costs Court for assessment in accordance with the factual findings of the learned Magistrate …[12]
[11][2012] VSC 273 (‘Brown’).
[12]Ibid [16].
Counsel for the plaintiff then referred to the test in House v The King,[13] and argued that the Costs Court would not be in the special position of the Magistrate, not having had the case run before it. It was more practical for the Magistrates’ Court at first instance to deal with the matter and the Chief Commissioner was content for that to happen. In his submission ’everything points to the maintenance of this Court of its own special role in the consideration and decision-making of the case‘.[14] Thereafter the learned Magistrate stated her reasons in the manner set out above.
[13](1936) 55 CLR 499.
[14]Transcript, 49-50.
It is apparent from the transcript that the learned Magistrate heard and considered the many submissions made to her. She gave counsel for the plaintiff every opportunity to be heard. I am not satisfied that she reached her conclusion on the basis of her earlier inclination without taking account of the plaintiff’s objections to the referral. Nor could such pre-judgment be reasonably apprehended or suspected by a fair-minder observer as the applicant contends.
Ground 1 must fail.
Ground 2 –failure to exercise jurisdiction to determine costs
The learned Magistrate exercised her jurisdiction by ordering that the first defendant pay to the plaintiff a reasonable amount by way of costs in relation to the rehearing, whether under s 131 of the Magistrates’ Court Act or s 401 of the Criminal Procedure Act 2009. The plaintiff argues that she failed to exercise her jurisdiction to determine the amount of those costs as a consequence of her referral of that issue to the Costs Court.
Given my view that her Honour had jurisdiction to make the Costs Court referral under s 131A of the Supreme Court Act, this ground must fail.
Ground 3 – acting in excess of jurisdiction by referring the determination to the Costs Court
The plaintiff argues that the Magistrate had no power under s 131A of the Magistrates’ Court Act to refer the assessment of the quantum of the costs to the Costs Court because the Magistrates’ Court had jurisdiction to determine the amount of costs in a criminal proceeding under s 401 of the Criminal Procedure Act. The argument is to the effect that the Criminal Procedure Act operated as a code and that it impliedly repealed s 131A of the Magistrates’ Court Act to the extent the it purported to deal with costs of a criminal proceeding.
The Criminal Procedure Act
Sections 401 was in these terms as at 19 September 2012:
Division 2—Costs in summary proceedings and committal proceedings
401 Costs in Magistrates' Court
(1)Unless otherwise expressly provided by this or any other Act or the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates’ Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.
(2)In exercising its discretion under subsection (1) in a criminal proceeding, the Magistrates’ Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the court is satisfied resulted in prolonging the proceeding.
(3)If the Magistrates’ Court strikes out a charge under section 14(3), the court may award costs against the informant.
…
(5)If the Magistrates’ Court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police.
The plaintiff argues that Daly AsJ was wrong in Brown to conclude that the power of a magistrate to fix costs under s 401 was not intended to derogate from the magistrate’s relevant powers under the Magistrates’ Court Act.[15]
[15]See Brown [2012] VSC 273, [8].
Citing the principles of statutory construction enunciated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Commission,[16] he argues that there was and is a tension between s 401 of the Criminal Procedure Act and s 131 of the Magistrates’ Court Act, insofar as each purports to cover the award of costs in a criminal proceeding. It should be concluded that the legislative intent of the Criminal Procedure Act was that s 401 should be the source of the Magistrates’ Court’s power to award costs in criminal proceedings and, it would follow that s 131A would only apply to the assessment, settlement, taxation or review of costs in civil proceedings.
[16](1998) 194 CLR 355, 381-2 [69]-[71].
As the defendant points out, ss 131 and 401 were in very similar terms as at 19 September 2012 and remain so. Each refers to the power to award costs in criminal proceedings and ‘to determine by whom, to whom and to what extent the costs are to be paid’.
Neither, however, deals expressly with the assessment, settlement, taxation or review of costs like s 131A. Section 131A applies on its face to a ‘proceeding’ in the court which, the statutory context indicates, includes a criminal proceeding.[17] Section 17D(b) of the Supreme Court Act gives the Costs Court jurisdiction to assess, settle, tax or review costs if, under any act or the rules of the Magistrates’ Court, costs are to be assessed, settled, taxed or reviewed. Section 17D(c) gives the Costs Court the same jurisdiction, if an order for such assessment, settlement, taxation or review is made by a court or VCAT. The Magistrates’ Court is empowered to make such an order under s 131A, which was inserted into the Magistrates’ Court Act by the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008 which also introduced s 17D.
[17]See Brown [2012] VSC 273, [4], [7] (Daly AsJ) referring to ss 126, 126A, 127, 131(2)(c) and (3), 133, 134 and 140 of the Magistrates’ Court Act.
The plaintiff argues that the Criminal Procedure Act was intended to be an exclusive code governing criminal procedure. However, notwithstanding the stated statutory purpose in s 1(a), ‘to clarify, simplify and consolidate the laws relating to criminal procedure’ in the Magistrates’, County and Supreme Courts, the opening words of s 401 themselves clearly contemplate applicable provisions to contrary effect in other legislation or court rules. The statutory context of s 401 also includes sub-s 406(2) which states, with reference to the costs of County Court appeals, that sub-s 406(1) was not to limit any discretion as to costs of an appeal under the County Court Act 1958. Further, the Criminal Procedure Act expressly repealed many sections of the Magistrates’ Court Act, but not s 131 or s 131A.
Even if s 401 of the Criminal Procedure Act otherwise dealt with the assessment, settlement, taxation and review of costs ordered to be paid, I am not persuaded that s 131A of the Magistrates’ Court Act would not constitute an ‘express’ provision giving jurisdiction to the Costs Court in relation to those matters, for the purposes of s 401’s opening words.
I am not persuaded not to follow Brown. In my view, the learned Magistrate had jurisdiction under s 131A of the Magistrates’ Court Act to refer the issue of the assessment or taxation of the quantum of costs in this criminal matter to the Costs Court.
Ground 3 must fail.
Ground 4 – error on face of the record – irrelevant consideration taken into account
The plaintiff argues that the learned Magistrate erred by taking into account:
(a)the fact that the matter was unusual, given the numerous appellate decisions leading up to the dispute about the referral of the determination of the quantum;
(b)the Chief Commissioner of Police not objecting to the referral;
(c)the existence of other matters before the Costs Court relating to the proceedings in a general way;
(d)the Costs Court being the proper venue to determine the quantum because it had the expertise and time to deal with a matter of the nature of that which fell for determination.
In my opinion, none of the matters to which the learned Magistrate had regard were irrelevant to the exercise of her discretion. The complicated history of the matter and the existence of costs issues before the Costs Court in respect of previous related proceedings were relevant, as was the attitude of the Chief Commissioner against whom the costs order had been made.
As the respondent submits, when assessing the costs of the Magistrates’ Court rehearing, the Magistrates’ Court would need to have separated out items of costs which ought to be disallowed or reduced by reason of their relation to work already performed in the context of the proceedings in the other courts. The possible prejudice to or effect upon either party was also a relevant consideration in respect of a decision to refer an aspect of a determination to another body.
Further, it is also plainly relevant that the Costs Court will have relevant expertise and the time to address the issues raised by the assessment.
Ground 4 must fail.
Ground 5 –failure to take relevant matters into account
The plaintiff submits that her Honour also failed to take into account the consideration that the Magistrates’ Court was the proper venue for the assessment.
I am not persuaded by this argument. The transcript indicates that the Magistrate did expressly or implicitly conclude, for a number of reasons, including the complexity of the matter and the history and involvement of the Costs Court, that her court was not the proper venue for the assessment to take place, in all the circumstances.
Ground 6 – failure to supply adequate reasons
There is no doubt that a judicial officer is obliged to provide adequate reasons for decision.[18] Whether reasons are sufficient depends upon the nature of the decision and the circumstances of the case.[19] The plaintiff cites the following applicable passage from the judgment of Buchanan JA in Agresta v Agresta:
Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. That will occur if the appellate court is unable to ascertain the reasoning upon which the decision is based. Whether reasons are inadequate in this sense will depend upon the nature of the decision and the circumstances of the case.[20] (Citations omitted.)
[18]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 83-4 [26] (Gaudron, Gummow, Hayne and Callinan JJ).
[19]Agresta v Agresta [2002] VSCA 23, [28] (Buchanan JA).
[20]Ibid; citing Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357, 376 (Charles JA); Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Palmer v Clarke (1989) 19 NSWLR 158; Lloyd v Faraone [1989] WAR 154, 163-4 (Malcolm CJ); Stojkovski v Fitzgerald [1989] WAR 328; QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 134 ALR 433; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J); Wightman v Johnston [1995] 2VR 637, 641 (Phillips JA); Waribay Pty Ltd v Minter Ellison [1991] 2VR 391, 402 (Young CJ and Kaye J).
As senior counsel for the first defendant points out, the learned magistrate’s decision related to a relatively minor matter and did not finally determine any rights. In my opinion, the reasons given adequately demonstrate the reasoning upon which her Honour’s decision was based, given the nature of the decision and the circumstances of the case. The transcript of the discussion also reveals that she took into account the numerous submissions from counsel for the plaintiff.
Counsel for the plaintiff says that a number of uncontradicted arguments were not specifically addressed by her Honour. He cites arguments put to the effect that the magistrate who had conducted the rehearing would be the appropriate person to deal with the matter. He contends that the learned magistrate failed to deal expressly with the representations that the referral should not be made in the absence of an application for that to occur and that there were no written objections to the plaintiff’s costs bill at that stage. Then, there were also submissions to the effect that the discretion should be exercised because there was a right of appeal and that, in those circumstances, the magistrate would err by failing to exercise it. The plaintiff also refers to a submission as to the length of time the parties had waited for an assessment. Finally, there was a submission to the effect that the Magistrate was familiar with the proceedings, which is said to have lacked a response. Counsel for the plaintiff argues that these were clearly made points that related to the exercise of the discretion and did not seem to have been answered or considered.
I agree with senior counsel for the defendant that, in the context of the interlocutory application dealt with in a summary way, the learned magistrate said all that was needed and appropriate to the subject matter. By implication, she rejected the submissions made by counsel for the plaintiff in determining to make the referral to what she considered the more appropriate body in all the circumstances. It was not necessary for her to have dealt separately with each submission made. She also indicated her views as the matter progressed before her.
Ground 6 should fail.
The application should be dismissed.
0
4
0