Giles (a pseudonym) v Stamp (a pseudonym)
[2024] ACTSC 150
•17 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Giles (a pseudonym) v Stamp (a pseudonym) |
Citation: | [2024] ACTSC 150 |
Hearing Date: | 12 February 2024 |
Decision Date: | 17 May 2024 |
Before: | Ainslie-Wallace AJ |
Decision: | (1) Appeal is allowed in part. (2) Orders 1 and 2 made in the Magistrates Court on 19 January 2023 are set aside. (3) The parties are to file and serve written submissions to be no more than 10 pages in length on the question of the costs payable by the Appellant within 21 days of these orders. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against costs order – competency of appeal – whether Special Magistrate exercised discretion in circumstances where it was not appropriate to do so – whether Special Magistrate miscarried exercise of discretion – consideration of evidence before Special Magistrate when making costs order – calculation of professional costs incurred – appeal allowed in part |
Legislation Cited: | Personal Violence Act 2016 (ACT) ss 67, 84 |
Cases Cited: | House v King (1936) 55 CLR 499 |
Parties: | Kendal Giles (a pseudonym) ( Appellant) Kelia Stamp (a pseudonym) ( Respondent) |
Representation: | Counsel B Nolan ( Appellant) R Notley ( Respondent) |
| Solicitors Alexander Rashidi Lawyers ( Appellant) Aulich Criminal Law ( Respondent) | |
File Number: | SCA 8 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 19 January 2023 Case Title: Giles (a pseudonym) v Stamp (a pseudonym) Court File Number: PPO 451 of 2021 |
AINSLIE-WALLACE AJ:
Introduction
Ms Stamp (the Respondent) and Mr Giles (the Appellant) were work colleagues. It seems that Ms Stamp had cause to make a complaint about Mr Giles’ conduct in the workplace which led Mr Giles to resign, although it appears that it was not at his employer’s insistence. Following this, Mr Giles engaged in conduct which was described by the Special Magistrate as stalking Ms Stamp, her husband, and their two relatively young children. Much of the conduct was admitted to in the hearing before the Special Magistrate on 26 May 2022, although in many instances, Mr Giles said that his presence on the street in which Ms Stamp lived or where she and her family were shopping was coincidental.
On 31 May 2021, the Respondent applied to the ACT Magistrates Court for a Personal Protection Order for herself and her children under the Personal Violence Act 2016 (ACT) (Personal Violence Act). The order was sought for a period of 12 months and identified the Appellant as the person against whom the order was to be made. An Interim Order was made, and on 26 May 2022, after a contested hearing, a final Personal Protection Order was made for a period of 12 months.
On several occasions after the Interim Order was made, the Appellant applied to have the Respondent’s children’s names removed from the Protection Order. He also applied to be provided with photographs of the Respondent’s children. In his evidence to the Special Magistrate, the Appellant said that he was not sure what the Respondent’s children looked like, and he did not want to mistakenly be in their presence by not being able to identify them. These applications were dismissed.
After the Interim Order was made, the Appellant sought a corresponding Protection Order against the Respondent and her husband. This application was withdrawn.
When the final Protection Order was made, the Respondent sought an order for costs of the proceedings. The solicitor acting for the Respondent presented the learned Special Magistrate with an “account summary” in the total sum of $64,219.24 (excluding counsel’s fees), and after hearing submissions, on 19 January 2023, the learned Special Magistrate made a costs order against the Appellant in the sum of $38,000.
A Notice of Appeal challenging the order was filed on 16 February 2023 (the Appeal). On 6 November 2023, the Respondent filed an application seeking an order for security for costs in the Appeal. That application was heard on 9 February 2024 and refused. In the course of the submissions on that application, an issue arose as to the competency of the Appeal.
On 9 February 2024, the Respondent filed an application seeking an order that the Notice of Appeal be struck out as incompetent.
Thus, the preliminary question for determination on the Appeal was whether an appeal is available from the costs order made by the Special Magistrate. It was argued by the Appellant that even if an appeal from the costs order was not available, the decision was nonetheless amenable to judicial review by the Supreme Court.
The Respondent’s contentions
The Respondent contended that the Supreme Court has no jurisdiction to entertain an Appeal from the costs order made by the learned Special Magistrate. It was argued that the terms of the Personal Violence Act exclude an appeal from the making of a costs order. Counsel for the Respondent referred to s 84 of the Personal Violence Act, which sets out which decisions are appealable. It says:
84 Appealable decisions
The following decisions by the Magistrates Court under this Act are appealable:
(a)the making, amending or revoking of a final order;
(b)a refusal to make, amend or revoke a final order;
(c)a decision mentioned in section 83 made on the review of a consent order.
The Respondent further argued that s 256 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) excludes proceedings brought under the Personal Violence Act from cases brought within its civil jurisdiction.
The Appellant’s contentions
The Appellant argued that the Supreme Court has jurisdiction to hear the Appeal by operation of s 67(5) of the Personal Violence Act and s 274 of the Magistrates Court Act.
However, principally, the Appellant contended that, whether or not the Supreme Court has power to hear and determine the appeal, the order is subject to the supervisory jurisdiction of the Supreme Court because the learned Special Magistrate misapprehended or perhaps misunderstood the limits and functions of the jurisdiction she was exercising. The Appellant argued that it was therefore open to this Court to make an order in the nature of certiorari quashing the order. It was argued that given the relatively small amount of money in issue, to take this course would reduce the costs of the action. While an order in the nature of certiorari would, if granted, quash the costs order, the issue of the costs in the protection proceedings would have to be remitted to the Magistrates Court for decision according to law.
No application seeking judicial review of the decision had been filed and the Respondent opposed any leave being granted to enable the Court to entertain the Appellant’s application for judicial review.
In my view, it is unnecessary to consider the detailed and nuanced submissions of the Appellant and Respondent on jurisdictional error because the Appellant is undoubtedly correct in contending that the Supreme Court has the power to hear the Appeal.
Section 67 of the Personal Violence Act concerns orders for costs. Relevant to this issue, s 67(5) says, in relation to a costs order made under that section:
…
(5)The amount stated in the order—
(a)is a debt owed by the payee to the other party; and
(b)is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004 applying in relation to the civil jurisdiction of the Magistrates Court.
Rule 2010 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules) provides the means by which a creditor may apply to the Supreme Court for the enforcement of a Magistrates Court order, referred to as an “enforceable money order”. Rule 2000 defines the following terms:
2000 Definitions—pt 2.18
In this part:
…
enforceable money order, of the court, means—
(a)a money order of the court; or
(b)a money order of another court or tribunal filed or registered, under a territory law or a law of the Commonwealth, in the court for enforcement.
…
…
money order means an order of a court or tribunal, or part of an order of a court or tribunal, for the payment to a person (but not into court) of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs.
Note 1 Order is defined in the dictionary to include judgment (see also def made).
…
(Emphasis added.)
Thus, an order for costs made under s 67(5) of the Personal Violence Act is a judgment debt or money order capable of being enforced under r 2010 of the Court Procedure Rules.
Section 274 of the Magistrates Court Act falls with the pt 4.5, which deals with civil appeals, and relevantly says:
274Cases in which appeal may be brought
(1)An appeal may be brought only with the leave of the Supreme Court.
(2)However, an appeal may be brought as of right from a judgment or order—
(a)for, or for the payment of, an amount of $2 000 or more; or
(b)in a proceeding in the Magistrates Court—
(i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or
(ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
The learned Special Magistrate’s costs order is clearly a “judgment or order” which exceeds the monetary limit referred to in s 274(2) of the Magistrates Court Act. There is thus an appeal as of right from that order to the Supreme Court.
Grounds of Appeal
The Appellant’s grounds of Appeal are that:
1.Her Honour’s discretion to award costs miscarried in that costs were awarded against the Appellant in circumstances where it was not appropriate to do so.
2.Her Honour’s discretion to fix the amount of costs miscarried in that she failed to ensure that the evidence before her was sufficiently detailed, to identify the components of the costs incurred and how they were calculated.
Section 67 of the Personal Violence Act deals with costs of proceedings. It says:
67Costs
(1)Each party to a proceeding for a protection order is responsible for the party's own costs of the proceeding.
(2)However, the Magistrates Court may make an order about costs against—
(a)the applicant for a protection order only if the court is satisfied the application was vexatious, frivolous or in bad faith; or
(b)the Respondent if the court considers it appropriate to do so.
…
…
(4)If the Magistrates Court orders costs against a party to a proceeding (the payee) for a protection order, the amount must not be more than the costs reasonably incurred by the other party.
(5)The amount stated in the order—
(a)is a debt owed by the payee to the other party; and
(b)is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004 applying in relation to the civil jurisdiction of the Magistrates Court.
Section 67(1) makes it clear that the normal rule is that each party pays their own costs. The rationale behind this and similar sections within other acts is to provide access to litigation without the fear of a costs order being made against an unsuccessful litigant.
However, s 67(2)(b) says that an order for costs may be made against a respondent to an application for a personal protection order if the court considers it “appropriate” to do so.
A costs order made must be “not be more than the costs reasonably incurred by the other party”: Personal Violence Act s 67(4).
In order to give context to the grounds of appeal, it is useful to set out the Special Magistrate’s reasons for making the costs order.
Special Magistrate’s reasons
Having set out the terms of s 67 of the Personal Violence Act, the learned Special Magistrate considered the procedural history of the matter before her. She characterised the Appellant’s application for Protection Orders against the Respondent and her husband as “vexatious and retaliatory in nature” and said that there was no evidence to support the application. Her Honour noted that this application was ultimately withdrawn.
Her Honour referred to the Appellant’s applications to remove the names of the Respondent’s children from the Protection Order and the application seeking that he be provided with photographs of the Respondent’s children. Unlike the Appellant’s application for Protection Orders against the Respondent, these applications were pressed and dismissed.
After listing all the procedural applications that had been considered by the Court, the Special Magistrate said that “a number of those applications were unwarranted and doomed to fail.”
The Special Magistrate recognised the Appellant’s right to litigate the issue particularly, as she said, as it had ramifications for his employment. However, she said:
[U]ltimately his behaviour during the course of the proceedings was at times vexatious and in bad faith, particularly in respect to the removal of the children’s name form the order and the application to have photographs of the children provided to the [Appellant].
Her Honour referred to the “account summary of professional costs” tendered by the Respondent’s solicitors in support of the costs sought and said that:
[A] significant amount of work was required in respect to corresponding with the [Appellant] and attending court in respect to applications that he made which were unsuccessful and in my view in relation to most of them, were vexatious, frivolous and in [sic] were made in bad faith.
Her Honour then indicated she was satisfied that an order for costs should be made and assessed those costs by reference to the narrative bill before her.
Ground 1
Her Honour’s discretion to award costs miscarried in that costs were awarded against the Appellant in circumstances where it was not appropriate to do so.
It is accepted that the determination by the Special Magistrate that it was appropriate to make a costs order was an exercise of discretion. It is of course important then to understand that appellate interference will only be warranted when error of the kind referred to in House v King (1936) 55 CLR 499 is engaged.
The Appellant argued that her Honour impermissibly “comingled a distinct and separate application for a personal violence order brought by the Appellant against the Respondent”, which it was said was irrelevant to the issue for her to decide with her consideration of the other applications pressed by the Appellant in the proceedings before the Special Magistrate.
True it is that if the Special Magistrate was minded to make a costs order against the Appellant in relation to his application for protection orders against the Respondent and her husband, she was required to be satisfied that it was vexatious, frivolous or brought in bad faith: see Personal Violence Act s 67(2)(a). Her reasons make it clear that she regarded that application (as well as the other applications brought by the Appellant) in that light.
The application before the Special Magistrate was for an order for costs of the proceedings, which included the Appellant’s withdrawn application for protection orders. Why to consider that application and the other applications together was “impermissible” was not explained. It is to be observed that in relation to the applications brought by the Appellant which were not for protection orders, her Honour applied the test in s 67(2)(a) in deciding whether to make a costs order.
It was also argued that the Appellant’s bringing of applications which were later dismissed was an aspect of his vigorous prosecution of his defence to the application, and to take those failed applications into account is to conflate the Appellant’s right to defend and challenge the application with conduct which would cause the Special Magistrate to depart from the normal rule as to costs.
Having considered the transcript of the Appellant’s evidence on those applications, one would be cautious before regarding them as an incident of a vigorous defence. However, whether or not they could be so described, the Special Magistrate considered them to be frivolous, vexatious and doomed to fail, and was entitled to take them into account in determining whether to make a costs order. There was no challenge to her Honour’s findings of fact about the nature of the Appellant’s applications (either for protection orders or for other orders).
The question then remains, whether based on her characterisation of the Appellant’s applications, her Honour’s discretion miscarried in determining that this was a matter in which the normal rule as to costs would not apply.
Although in the course of her reasons the Special Magistrate adopted the words of the test necessary to satisfy an order against an applicant for a protection order, her reasons as a whole demonstrate that she considered it “appropriate” to make an order for costs, and no error in the exercise of her discretion has been demonstrated.
Ground 1 is not established.
Ground 2
Her Honour’s discretion to fix the costs miscarried in that she failed to ensure that the evidence before her was sufficiently detailed to identify the components of the costs incurred and how they were calculated.
Again, recourse to her Honour’s reasons gives a helpful context to a consideration of this ground. Her Honour noted that she had reviewed a chronology of correspondence tendered by the Respondent, noting that it was “significant over the period 16 July 2021 to 10 May 2022”, and she noted that she had considered the “account summary for professional fees from [the Respondent’s criminal lawyers]” setting out the work carried out in the period 14 July 2021 to 24 May 2022.
Her Honour then observed that a considerable amount of work had been required in corresponding with and attending court in relation to applications brought by the Appellant, and she reiterated her view that most of those applications were vexatious, frivolous and made in bad faith.
The “account summary” to which her Honour referred is in total an amount of $64,219.24 (inclusive of GST) and is in the form of a narrative which gives a general description of work done on each particular day. It does not indicate who performed the identified task, the time taken to undertake the task, or the rate per hour charged by that person. No attempt was made in that document to differentiate between solicitor and client costs, and party and party costs. Counsel for the Respondent conceded that this “account summary” reflected all of the costs incurred in the preparation of the Respondent’s case, and its presentation in support of the order sought was, in effect, a claim for indemnity costs.
In submissions on the question of costs, counsel then appearing for the Respondent indicated that the amount of $64,000 odd only related to so much of the costs referrable to work done on behalf of the Applicant before the Special Magistrate, not the costs of advising her husband. The transcript of 26 May 2022 reflects that counsel said:
[I] am instructed to seek an order for costs in the amount of $50,000, which is certainly less that what has reasonably been incurred…
Counsel continued and said that the amount claimed, “sounds like a lot [sic] she has been through a lot and has been charged for all the work that has occurred”, referring to the applicant (as she then was) before the Special Magistrate.
Her Honour, having decided to make a costs order, correctly identified that she was able to fix a lump sum as to costs rather than subject the parties to an assessment process, and she referred to and adopted the considerations set out by McWilliam AsJ (as her Honour then was) in Polleycutt v Taylor [2020] ACTSC 158 at [10].
Her Honour concluded:
I have considered what would be a fair and reasonable amount of costs to award to the applicant in the matter given the history of the matter. I have come to the view that the amount of $38,000 is a fair and balanced award for the costs incurred by the Applicant.
Her Honour was required to be satisfied that the costs claimed were “reasonably incurred” by the party making the claim and the amount of costs ordered was “no more” than what was reasonably incurred.
There was no evidence of any costs agreement between the Respondent and the solicitors before the Special Magistrate to enable her to conclude whether those costs, or some of those costs, were in fact incurred by the Respondent. On Appeal, counsel for the Respondent argued that the Special Magistrate would have understood that there would be a costs agreement between the Respondent and her solicitor. It was for the Respondent to satisfy the Special Magistrate of the facts necessary to support the order sought. That the costs claimed were in fact incurred, was one such fact. It was not for her Honour to infer that there might be a costs agreement and her reasons do not show that she considered the issue of whether the costs sought had in fact been incurred.
The learned Special Magistrate made no assessment of whether the invoice presented to her were costs “reasonably” incurred by the claimant and I accept the submission of the Appellant that there is nothing on the face of the invoice which would have permitted her to come to that conclusion.
The Respondent argued that the Special Magistrate correctly set out the process by which the court could fix a lump sum for costs. That argument, however, is not to the point. The point of the ground of appeal is that she did not, nor could she have on the evidence before her, found the facts necessary to the making of the costs order. The Special Magistrate’s discretion thus miscarried.
Ground 2 is made out.
Conclusion
The Appeal thus succeeds in part and Orders 1 and 2 of the Special Magistrate dated 19 January 2023 that the Appellant pay the Respondent’s costs in the sum of $38,000 will be set aside.
Given the amount of money involved, and that this Court is seized of the matter, this Court will re-exercise the Special Magistrate’s discretion on costs and order the parties to make submissions on the question of the quantum of costs on re-exercise.
Orders
I therefore make the following orders:
(1)Appeal is allowed in part.
(2)Orders 1 and 2 made in the Magistrates Court on 19 January 2023 are set aside.
(3)The parties are to file and serve written submissions to be no more than 10 pages in length on the question of the costs payable by the Appellant within 21 days of these orders.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace Date: |
0
2
3