Gibbons v Watkins

[2005] TASSC 59

[2005] TASSC 59

CITATION:            Gibbons v Watkins [2005] TASSC 59

PARTIES:  GIBBONS, Jenny Lesley
  v
  WATKINS, Geoffrey William

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 6/2005
DELIVERED ON:  22 June 2005
DELIVERED AT:  Launceston
HEARING DATE:  22 June 2005
JUDGMENT OF:  Evans J

[Edited edition of reasons for judgment delivered orally]

CATCHWORDS:

Procedure – costs – Departing from the general rule – Conduct of parties – Misconduct, etc – Generally.
Latoudis v Casey (1990) 170 CLR 534, followed.
Aust Dig Procedure [581]

REPRESENTATION:

Counsel:
           Appellant:  D G Grey
           Respondent:  R J Brown
Solicitors:
           Appellant:  Zeeman Kable & Page
           Respondent:  Bishops

Judgment  Number:  [2005] TASSC 59
Number of paragraphs:  13

Serial No 59/2005
File No LCA 6/2005

JENNY LESLEY GIBBONS v GEOFFREY WILLIAM WATKINS

REASONS FOR JUDGMENT  EVANS J
(DELIVERED ORALLY)   22 June 2005

1. The applicant, Jenny Gibbons, successfully resisted an application made by the respondent, Geoffrey Watkins, for a restraint order against her.  Mr Watkins had applied for the order on two grounds:

·firstly, on the ground that Mrs Gibbons had threatened to injure him and, unless restrained, was likely to carry out that threat, Justices Act 1959 ("the Act"), s106B(1)(b); and

·secondly, on the ground that Mrs Gibbons had behaved in a provocative or offensive manner that was likely to lead to a breach of the peace and, unless restrained, she was likely to behave in the same or similar manner again, the Act, s106B(1)(c).

1. Mr Watkins and Mrs Gibbons are neighbours and relations between Mr Watkins and the Gibbons family are strained.  At the relevant time, Mr Watkins had a restraint order against Mrs Gibbons' husband.  On the evening in question, Mr Watkins became concerned that members of the Gibbons family were throwing items at the boundary fence between their respective properties.  He began recording what was transpiring on a video camera.  Mrs Gibbons and others were close to the boundary fence.  Mrs Gibbons climbed on to the fence, observed what Mr Watkins was doing, and abused him by repeatedly calling him a pervert and a paedophile.  In the course of the hearing, Mrs Gibbons explained this behaviour on the basis that she had four daughters aged between 10 and 14 years of age, she was anxious about Mr Watkins' interest in her daughters and was concerned that he was filming them. 

1. At the outset of his evidence, Mr Watkins confirmed for the learned magistrate specific portions of his sworn application that were read to him by the learned magistrate.  One portion was that Mrs Gibbons had yelled at Mr Watkins, "I've got friends that will fix you".  Mr Watkins said to the learned magistrate that he swore to the truth of what had been read to him.  Thereafter a video recording of the events in question that had been made by Mr Watkins was played to the court.  Following this, Mr Watkins was cross-examined and when questioned about his assertion that Mrs Gibbons had said "I've got friends that will fix you", Mr Watkins said that this was a condensed version of what was said.  When further pressed, Mr Watkins agreed that Mrs Gibbons' actual words were, "We've got friends and you haven't".  As to his false claim that Mrs Gibbons had, in addition to referring to her friends, said that they would fix Mr Watkins, he said that those words "might have been put in there out of jest".  He provided no further explanation for making this false claim in his application and his confirmation of it when giving evidence.  Save for Mr Watkins' claim that Mrs Gibbons had said that her friends would fix him, a claim that he ultimately acknowledged was not correct, Mr Watkins did not suggest that Mrs Gibbons had threatened him.  In this situation the first ground upon which the application for a restraint order was pursued could not succeed.

1. As to the second ground, it was not disputed that Mrs Gibbons had behaved in a provocative and offensive manner towards Mr Watkins. This ground was defended on the basis that it could not be established on the balance of probabilities that her provocative and offensive conduct was likely to lead to a breach of the peace and that unless restrained, she was likely to behave in a similar manner. The learned magistrate so concluded and dismissed Mr Watkins' application. Mrs Gibbons thereupon applied for an order for costs pursuant to the Act, s106H, which provides:

"106H     (1)     The justices hearing an application under this Part made by a person other than a police officer may, if they think fit, order either party to pay to the other such costs as the justices consider reasonable."

1. The learned magistrate rejected Mrs Gibbons' application for costs and made no order as to costs.  Mrs Gibbons seeks a review of that decision.

1. In the course of explaining his reasons for refusing Mrs Gibbons' application for costs, the learned magistrate:

·observed that he had an unfettered discretion which must be exercised judicially and not capriciously;

·said that two considerations that were relevant to Mr Watkins' bona fides were that he represented himself and that in utilising a video camera he had acted on the advice of the police;

·said that in his view Mr Watkins' bona fides were not in issue and that Mr Watkins had acted in good faith;

·said that Mr Watkins had established part of his case, that being that Mrs Gibbons had behaved in a provocative and offensive manner towards him;

·said that in a general sense the fact that the application was dismissed was not decisive in relation to who should bear the costs. 

·referred to International Factors (Singapore) Pty Ltd v Speedy Tyres Pty Ltd A43/1991 as a decision where even though the proceedings were dismissed, the activities which brought about the proceedings were found to have occurred and costs were awarded accordingly.

1. International Factors dealt with an issue of costs that arose upon the consensual dismissal of a petition for the winding up of a company.  The petitioner had issued a valid and effective statutory demand against the company and followed it up with a petition for the company's winding up.  After the petition was issued, the company paid a portion of the amount demanded and the parties, having agreed that a genuine dispute existed in respect of the balance of the demand, consented to the dismissal of the petition.  In the course of considering the question of costs, Cox J (as he then was) acknowledged that the petition may have been invalid because the petitioner was the luckless victim of transitional provisions in the statute then applying to corporations.  Notwithstanding this, Cox J considered that it was just that the company, whose default in making payment occasioned the proceedings, should pay the petitioner's costs of and incidental to the petition.  Patently this decision turns on its own facts and I find little, if any, assistance in it to the circumstances of the case before the learned magistrate.

1. As the learned magistrate was exercising a discretion, it is for the applicant, Mrs Gibbons, to show more than that a different course could have been taken, House v R (1936) 55 CLR 499 at 505. In Australian Coal and Shale Employees' Federation v the Commonwealth (1956) 94 CLR 621, Kitto J said at 627:

"… cases of the highest authority … appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principal, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts."

1. The grounds upon which a review is sought are that the learned magistrate erred in dismissing the costs application in that:

(a)      he took into account irrelevant considerations namely that –

(i)       the respondent was not legally represented;

(ii)      the respondent took advice from the police to purchase a video camera.

(b)he erred in finding that the respondent's bona fides were not in issue and that he acted in good faith when in fact the evidence conclusively revealed that the respondent falsely claimed that the applicant had threatened him by saying words to the effect of "I've got friends that will fix you".

1. As to ground (a), I am not satisfied that the learned magistrate took into account irrelevant considerations as alleged in that ground.  The learned magistrate's references to Mr Watkins being without legal representation and his use of a video camera being on the advice of the police were made in the context of his conclusion that Mr Watkins' bona fides were not in issue.  Whilst there is authority that the fact that a complainant has acted in good faith is not a ground for depriving a successful defendant of his or her costs, Latoudis v Casey (1990) 170 CLR 534 at 569, I am not prepared to go so far as to say that good faith and bona fides are not considerations that may be taken into account in the exercise of the general discretion as to costs.  The weight to be given to them will of course depend on all the circumstances of the particular case.

1. Mr Watkins' explanation for his use of the video camera was relevant to the appropriateness of his conduct on the evening in question and the bona fides of that conduct.  The fact that Mr Watkins was not legally represented provided some justification for his pursuit of an application that was not legally maintainable and went to his bona fides in making the application.  Whilst the absence of legal representation was relevant to that issue, it was far from a decisive consideration. 

1. Ground (b) challenges the learned magistrate's findings as to bona fides and good faith.  In explaining his conclusion that Mr Watkins' bona fides were not in issue and that he had acted in good faith, the learned magistrate did not advert to Mr Watkins' false allegation that Mrs Gibbons had said "I've got friends that will fix you".  In fact, the learned magistrate made no reference to this matter at any point in the course of his reasons for rejecting Mrs Gibbons' application for costs.  The evidence referable to this matter was clearly relevant to the issue of Mr Watkins' good faith and bona fides and in my respectful view, an unavoidable conclusion that flows from the evidence is that at least in part Mr Watkins did not act in good faith and his bona fides were in question.  This being so, the appeal must succeed as the learned magistrate erred in making the unqualified finding in issue.

1. The material before the learned magistrate provided no basis for him to depart from the ordinary situation in a case such as this which, consistent with the decision of the majority of the members of the court in Latoudis v Casey (supra), is that ordinarily a successful defendant will get his or her costs.  The order of the learned magistrate rejecting Mrs Gibbons' application for costs is set aside and in lieu thereof it is ordered that Mr Watkins pay her costs of the proceedings in the court of petty sessions.  I will hear the parties as to any consequential order necessary to establish the quantum of those costs.