El Deeb v Magistrates Court of South Australia

EL DEEB v MAGISTRATES COURT OF SOUTH AUSTRALIA
[1999] SASC 113

Full Court: Doyle CJ, Bleby and Martin JJ

DOYLE CJ. This is an appeal, by leave, against a decision of a Judge of this Court. The Judge refused to make an order for costs in favour of a successful applicant for judicial review. The issue on appeal is whether the Judge erred in so refusing.
The Magistrates Court at Port Adelaide was conducting the preliminary examination under the Summary Procedure Act of a charge of rape against the appellant. In the course of the preliminary examination the appellant procured the issue by the Magistrates Court of a subpoena. The subpoena was directed to the Administrator of a publicly funded service, called Yarrow Place. That service provides medical and counselling services for victims of sexual offences. The subpoena required the production of documents relating to counselling services provided to the victim of the alleged rape. The Director of Yarrow Place swore and filed in the Magistrates Court an affidavit claiming immunity from production of certain documents. The claim of immunity was based upon the public interest. On the return date of the subpoena the Director was legally represented. A time was fixed by a Magistrate for submissions to be put in relation to the claim of immunity. When the appointed time arrived, the appellant and the Director were represented. The Magistrate indicated at the outset that the claim of immunity should be determined by the District Court, presumably on the assumption that that would be the trial court if a committal order was made. Submissions were put. The Magistrate declined to make any decision on the claim of immunity, again indicating that the issue should be determined in the trial court. We were told that the course followed by the Magistrate was opposed by counsel for the appellant and counsel for the Director of Yarrow Place.
The appellant then issued a summons for judicial review, directed to the Magistrates Court. The Magistrates Court entered an appearance by the Crown Solicitor. From the outset the Court indicated that it would submit to any order that this Court might make, other than an order for costs.
In appearing and so submitting, the Magistrates Court acted in accordance with a longstanding practice in this State and elsewhere in Australia. That practice is discussed in an article by Professor Enid Campbell, “Appearances of Courts and Tribunals as Respondents to Applications for Judicial Review” in (1982) 56 ALJ 293. The practice has the support of the High Court, which has held that it is inappropriate for a court or tribunal whose decision or action is called in question by way of judicial review to involve itself in any dispute before the reviewing court as to matters that the court or tribunal the subject of judicial review will have to decide: see R v Australian Broadcasting Tribunal ex parte Hardiman (1981) 44 CLR 13 at 35-36.
The Women and Children’s Hospital Incorporated, of which Yarrow Place is an arm, was given leave to intervene in the proceedings in this Court.
In due course, the intervener consenting, an order was made directing the Magistrate to hear and determine the claim of immunity from production. The intervener undertook to pay to the appellant the costs of one adjournment of the proceedings for judicial review.
The appellant sought an order for costs against the Magistrates Court, limited to the costs of issuing the summons for judicial review, getting leave to serve the summons and getting the matter listed. Before the Judge and before this Court counsel for the appellant submitted that the Magistrate had erroneously declined to exercise the jurisdiction vested in him, by the Magistrates Court Act, to determine the claim of immunity. It was and is submitted that this was an egregious error because the Magistrate had himself fixed a time at which to hear submissions on the claim for immunity, had acted in a manner opposed by all concerned, and had followed a course unsupported by statute or by case law.
The Judge declined to make an order against the Magistrates Court. In brief reasons given immediately after he heard submissions, which were also brief, he indicated that he was satisfied that the Magistrate had not acted perversely, but had believed that he was entitled to act as he did. The Judge had been referred to Professor Campbell’s article. That article summarises the cases relevant to the point.
In my opinion no error on the part of the Judge has been demonstrated.
The discretion that the Judge had to exercise was the usual very wide discretion in relation to costs.
There is a substantial body of authority to the effect that in proceedings for judicial review directed to a court or tribunal, if the court or tribunal appears and submits to any order of the reviewing court, costs will usually not be ordered against the court in favour of a successful applicant for judicial review. Professor Campbell refers to a good number of cases which evidence that practice, and to the circumstances in which an order for costs will be made against a submitting court or tribunal. It suffices to refer to a few of them. In Ex parte Blume; re Osborn [1958] SR (NSW) 334 the Full Court of the Supreme Court of New South Wales said (at 339) that an order for costs is not ordinarily made against a Magistrate unless “there is a clear case of serious misconduct ...” The Court said that costs would not be ordered unless the Magistrate had been “perverse or guilty of corruption or gross ignorance”, and said that even “an astonishing blunder” was not necessarily perversity for those purposes. The Court declined to order costs against the Magistrate. It said that his decision was a wrong one but not a perverse one (at 340).
In R v Liverpool Justices ex parte Roberts [1960] 1 WLR 585 the Court said that costs would be awarded against justices if they acted “perversely” or if they disregarded elementary principles, but even then only if it was a “flagrant instance” of doing so. In Willessee v Willessee [1974] 2 NSWLR 275 the Court said that the power to award costs against a court subject to judicial review was exercised rarely, but would be exercised if there were a “flagrant violation of a principle of justice” or clear misconduct such as might arise if there was a flat disregard of an Act of Parliament or binding authority (at 284-285). In Cummins v MacKenzie [1979] 2 NSWLR 803 at 810-812 the Court referred to the settled practice, and said that an order for costs would be made if the decision reviewed was perverse in the sense of revealing obstinacy in error, as against aiming to do justice according to law, or in the event of serious misconduct.
Nothing is to be gained by tracking through all the cases. What they disclose is a well established practice not to award costs against a court whose decision is set aside by way of judicial review, merely on the basis that the court has erred. The cases indicate that an order for costs will be made if something like misconduct, corruption or perversity is established. Of course, these are only instances of the circumstances in which an order for costs will be made.
As I have already said, the discretion that the court exercises in relation to costs in proceedings for judicial review is a wide one. That is the usual position in relation to costs. The cases do indicate a settled practice. Presumably, that practice reflects in part the fact that judicial review can serve the purpose of an appeal, and on appeal costs cannot be awarded against a court whose decision is reversed. The practice also, no doubt, reflects the fact that as a court or tribunal subject to judicial review should not involve itself in the issues that arise on judicial review, at least ordinarily, it would seem inappropriate to award costs against the court or tribunal on an issue on which it was firmly discouraged from defending its own decision: see Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 at 612. Another matter that might have influenced the settled practice is the fact that frequently a successful applicant for judicial review will get an order for costs against the party who appears to be support the decision of the court or tribunal.
Nevertheless, the fact remains that the settled practice cannot be substituted for, or bind the court in its exercise of, the wide discretion that the court has in relation to costs. The settled practice referred to reflects the manner in which courts have exercised that power in particular circumstances. The settled practice cannot be equated with the scope of the power possessed by the court.
If the Judge had indicated that he was bound by the settled practice, and could not order costs unless matters of the type identified in the cases were found to exist, he would have erred. He would have erred because he would have substituted a settled practice for a wide discretion. The Judge would not have erred if he took the view that, for the sort of reasons indicated by me, there were good grounds not to take the approach that costs should follow the event, and to look for some further factor before an order for costs was made against the Magistrates Court in the case in question. Nor would he have erred if he found guidance in the decided cases on point.
In short, it would be an error to substitute the settled practice for the wider discretion that the court has, but not an error to be guided in the exercise of the wider discretion by the manner in which courts have exercised the discretion in like cases.
Having considered the Judge’s reasons, there is no indication that he did misconceive his function.
However, the reasons are brief. This is not said critically. The reasons followed immediately upon the conclusion of the argument. In the circumstances, and because an issue of principle is raised, it is appropriate to consider the matter more broadly.
The course followed by the Magistrate was erroneous, and was surprising. There is, however, no reason to think that the Magistrate was perverse in the sense that he knew that he was wrong but simply declined to exercise his function. It is not a case in which it is appropriate to make a finding that there was a deliberate disregard by the Magistrate of his duty. I say this even though the decision was wrong and was surprising. I should add, in fairness to the Magistrate, that the limited scope allowed for oral evidence at a preliminary examination, and the limited role of a Magistrate in such proceedings, are matters that might have led the Magistrate to think that the claim of privilege should be dealt with by the trial court.
When I look at the matter more broadly, in my opinion there are grounds upon which the Judge could have decided that it was not appropriate that costs should follow the event, and could have decided that that being so there was no particular circumstance to warrant an order for costs. In particular, he could have so decided on the basis that this was simply a case of an erroneous decision, albeit a decision that was clearly erroneous. Not only was it open to the Judge to reach the conclusion that he reached, but I would have made the same decision as the Judge made.
It follows that the Judge has not been shown to have misconceived the scope of the discretion that he had to exercise. In the circumstances, it was open to the Judge to decide the matter as he did. Even if the matter were considered afresh, I would make the same decision as the Judge made.
In my opinion the appeal should be dismissed.
BLEBY J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
MARTIN J. I also agree that the appeal should be dismissed for the reasons given by the Chief Justice.

[1999] SASC 113

26 March 1999