Gaskin v Heinicke - [2007] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GASKIN v HEINICKE
[2007] SASC 256
Judgment of The Honourable Justice Layton
12 July 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Appeal against the decision of a magistrate in relation to costs - whether the appeal was limited to "a question about costs" - whether the appellant required permission to appeal - the effect of a court record - whether the court record accurately recorded the orders made by the court - whether the Magistrate ordered a taxation of costs on an indemnity basis against the appellant - whether the costs order should not have been made as the appellant was not given an opportunity to put forward submissions opposing the order.
Held: Permission to appeal was not required as the appeal was not limited to a question about costs but concerned broader issues - the Magistrate did not give the appellant an opportunity to be heard on a contested issue as to whether a costs order had been made and whether costs should be taxed on an indemnity basis - No costs were ordered by the Magistrate particularly on an indemnity basis - appeal allowed.
Magistrates Court Act 1991 (SA) s 40; Magistrates Court (Civil) Rules 1992 (SA) Schedule 3, Scale 1; MCR 108(3); Supreme Court Civil Rules 2006 (SA) 6SCR 281(b); 6SCR 290; Supreme Court Rules 1987 (SA) Rule 96C.02, referred to.

GASKIN v HEINICKE
[2007] SASC 256
Magistrates Appeal: Civil
LAYTON J:
Introduction

On 1 March 2007 the appellant filed a Notice of Appeal against an order made by a magistrate on 8 February 2007. Further, and in the alternative, the appellant has sought an extension of time within which to appeal against an order for costs on 2 March 2006, if this Court is of the view that such an order was made. A Supplementary Notice of Appeal was filed on 5 March 2007.
This appeal raises two linked arguments. The first is a contention that no order for costs was made by the Magistrate on 2 March 2006 and therefore there was no proper basis for the Magistrate’s subsequent order on 8 February 2007 that the respondent be granted indemnity costs in the sum of $19,107.55 inclusive of GST.
The second argument was an alternative argument, that if a costs order was made on 2 March 2006 (which is denied by the appellant) then she was not given the opportunity to make submissions as to why such an order should not be made.
Procedural matters
Permission to appeal
There is the preliminary procedural issue in relation to these arguments, namely whether permission to appeal is required.
Section 40 of the Magistrates Court Act 1991 (SA) relevantly provides as follows:
(1) A party to a civil action (except a minor civil action) may, in accordance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] SASC 256
Decision Date: 12 July 2007

CaseChat Overview and Summary

In the matter of Gaskin v Heinicke, the appellant, Gaskin, appealed a decision of the Magistrates Court of South Australia concerning the assessment of costs. The primary dispute was whether Gaskin was required to obtain permission to appeal the costs decision and whether the court record accurately captured the orders made by the magistrate. Additionally, the appeal questioned whether the magistrate had ordered a taxation of costs on an indemnity basis against Gaskin, and whether Gaskin was given a fair opportunity to present submissions opposing the order.

The legal issues the court had to address included whether the appeal was limited to a question about costs and if Gaskin needed permission to appeal. Further, the court needed to determine whether the court record accurately reflected the magistrate's orders and whether Gaskin was given procedural fairness in opposing the costs order. The court had to examine whether the magistrate provided Gaskin with an opportunity to be heard on the contested issue of whether an order for costs had been made and if it should be on an indemnity basis.

The court held that permission to appeal was not required as the appeal involved broader issues beyond just costs. The magistrate did not afford Gaskin an opportunity to be heard on the contested issue regarding the imposition of costs and the basis on which they should be taxed. The court determined that no order for costs, particularly on an indemnity basis, was made by the magistrate. Consequently, the appeal was allowed, and the order of the magistrate was set aside. The court ordered that the action be remitted to the Magistrates Court for a different magistrate to hear the respondent's application concerning whether an order for costs should be made and, if so, on what basis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

With respect to this submission, Rule 108(3) appears to only apply to objections in relation to an item of the Bill of Costs. In this case, the appellant disputes its liability for the whole of the taxed Bill of Costs. As such, it would appear that Rule 108(3) does not apply. The respondent was put on notice of the appellant’s objection of the taxation by virtue of its continuing claim that no order for costs was made on 2 March 2006. As a consequence of my finding that no order as to costs was made on 2 March 2006, and my other findings as to the Magistrate’s denial of procedural fairness, I consider that there was no valid basis for the taxation of the Bill of Costs on 8 February 2007. Conclusion For the above-mentioned reasons, the appeal should be allowed and the order of the Magistrate of 8 February 2007 be set aside. I order that the action be remitted to the Magistrates Court before a different magistrate in order to hear an application by the respondent as to whether an order for costs should be made and, if so, on what basis costs should be ordered.

Ratio Decidendi

Legal Principle Established

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