GJ v AS (No 4)
[2017] ACTCA 7
•8 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | GJ v AS (No 4) |
Citation: | [2017] ACTCA 7 |
Submission Dates: | 22 August and 6 October 2015 |
DecisionDate: | 8 March 2017 |
Before: | Refshauge, Rangiah JJ and Walmsley AJ |
Decision: | The appellant pay the respondent’s costs |
Catchwords: | PRACTICE AND PROCEDURE – COSTS – Award of costs – power to award costs – purpose of a costs order – ordinary rule – new affidavit evidence sought to be relied upon – leave not grant to rely on new affidavit – discretionary entitlement to costs a matter of practice and procedure – jurisdiction to order costs under the Domestic Violence and Protection Orders Act – appellant to pay the respondent’s costs – r 1721 of the Court Procedure Rules 2006 (ACT) |
Legislation Cited: | Civil Proceedings Act 2011 (Qld), s 15 Civil Procedure Act 2005 (NSW), s 98 Court Procedures Rules 2006 (ACT), rr 4(1), 5001, 5050, 5051, 5300, 1720, 1721, 5606, Ch 5, Pt 1, Pt 2.17, Pt 5.3, Pt 5.4, It 6, Table 5051, Dictionary to the Court Procedure Rules Rules of the Supreme Court 1883 (UK) Explanatory Statement for the Domestic Violence and Protection Orders Bill 2008 (ACT), cl 118 Domestic Violence and Protection Orders Regulation 2009 (ACT), s 93 |
Cases Cited: | Adamson v Ede [2009] NSWCA 379 Lend Lease GPT (Rouse Hill) Pty Ltd v Hills Shire Council (No 2) [2011] NSWLEC 26 |
Texts Cited: | ACT Hansard, 7 August 2008 Professor Enid Campbell in Rules of Court – A Study of Rule-Marking Powers and Procedures (LawBook Company, 1985) |
Parties: | GJ (Appellant) AS (Respondent) |
Representation: | Counsel In person (Appellant) Mr S Malcolmson (Respondent) |
| Solicitors In person (Appellant) Eaton Lawyers (Respondent) | |
File Number: | ACTCA 42 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Penfold J Date of Decisions: 11 August 2014 and 18 March 2015 Case Title: GJ v AS Court File Number: SCA 22 of 2012 |
THE COURT:
On 12 January 2010, the appellant, GJ, applied to the ACT Magistrates Court for a personal protection order under the Domestic Violence and Protections Orders Act 2008 (ACT). The application was ultimately opposed and, on 8 March 2012, in circumstances that excited some controversy, the Magistrates Court dismissed the application and ordered that GJ pay the costs of AS.
GJ then appealed to the Supreme Court against the orders made by the Magistrates Court. That appeal was heard in July and October 2013 and on 17 February 2014. On 11 August 2014, the appeal was dismissed: GJ v AS [2014] ACTSC 189.
GJ then appealed that decision to this Court which heard the appeal on 8 May 2015 and, on 3 August 2015, dismissed the appeal: GJ v AS (No 3) [2015] ACTCA 31.
The proposed order of the Court was “The appeal be dismissed with costs”, but when the order was announced and before it was entered in the records of the Court, Refshauge J, when delivering the judgment of the Court, permitted the parties to file submissions as to costs since GJ foreshadowed that she would seek a different order.
Ultimately, AS advised that, having regard to the dismissal of the appeal, he sought his costs but did not consider it necessary to make any further submissions.
GJ sought an extension of time within which to file her submissions and she filed submissions as to costs on 27 August 2015. She also filed an affidavit affirmed on the same date and to which we will refer further below.
AS sought an extension of time within which to file his submissions in reply and was allowed until 28 September 2015 to do so. He filed his submissions on 6 October 2015. GJ filed a response the next day.
Having considered this material, we are of the opinion that GJ, should pay the costs of AS for the following reasons.
Affidavit of the appellant
Leave was neither granted nor sought for the appellant to file the affidavit she did file with her additional submissions. As no leave was granted for the filing of the affidavit, it is inappropriate for that to have been done.
Ordinarily, further evidence is not admissible on appeal; indeed, it has been described as permitted by appellate courts “in the most exceptional circumstances”: University of Wollongong v Metwally(No 2) (1985) 59 ALJR 481 at 483.
When challenged by AS as to the filing of the affidavit, GJ submitted that “there is no rule that an affidavit is only to be filed with leave of the court or by order of the court”.
The hearing had been completed and no further evidence had been sought or allowed to be received on the appeal. The parties had had an opportunity to argue their respective case.
It is well-known that courts will not consider submissions filed after the hearing of an appeal unless leave has been granted. See Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258; Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 329-30; [27]-[31], 368; [143]; R v Theophanous [2003] VSCA 78; 141 A Crim R 216 at 286; [204].
This approach has also been held to apply to further affidavit material: Re Application of the Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422 at 427; [22].
The question of additional or further evidence on an appeal is regarded as in a special category.
Thus, under r 5606 of the Court Procedures Rules 2006 (ACT), the Court of Appeal will only receive evidence on the hearing of the appeal if application is made and the Court orders that it will receive it.
Ordinarily additional evidence will not be received on an appeal unless it can be shown that, without it, there will be a miscarriage of justice: Orr v Homes (1948) 76 CLR 632 at 640-1.
Of course, the affidavit on which GJ sought to rely related to matters of the costs of the appeal and not to the grounds of the appeal itself.
The position in relation to the costs of the appeal is, it would appear, different because the evidence will relate to the conduct of the appeal or matters that have happened since the judgment below was delivered. Indeed, appellate courts do receive evidence relating to issues as to costs, such as about offers of compromise or any disentitling conduct of parties.
There is, however, no reason why the requirement for leave to adduce such evidence should not apply. This would allow directions to be given as to an appropriate time table for such evidence.
Natural justice would have required that AS be given an opportunity to reply to GJ’s evidence and there may have needed to be cross-examination on the affidavits. That would provide problems, not the easiest of which would be logistical. None of this was addressed by GJ or leave sought to proceed in that way.
It is also relevant that an appellate court is not well equipped to deal with the hearing of contentious evidence and it is clear from the submissions of AS that much of the facts asserted in GJ’s affidavit were contentious.
For reasons addressed later under the heading “Disentitling Conduct and ‘Clean Hands’”, the evidence which GJ wished to adduce was not relevant to the conduct of the appeal. Thus, leave should not be given to GJ to read and rely on the affidavit.
In the circumstances, we will not read the affidavit and have no regard to its contents.
The usual rule
Ordinarily a successful litigant should be indemnified for the expenses incurred in either enforcing a right or defending against an allegation of a right: Oshlack v Richmond River Council (1998) 193 CLR 72 at 97; [67]. See also Lewis v Chief Executive of the Department of Justice and Community Safety [2014] ACTSC 196 at [17].
That general rule is a rule of practice; it is not a rule of law and the wide discretion as to costs that is given to a court is to be exercised judicially: Oshlack v Richmond River Council at 86; [34]-[35].
There are well-known exceptions to this general rule. As was said in Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10 at [50]:
There are, however, exceptions to the general rule, but generally some special feature is necessary to justify a departure from the general rule: NAMU of 2002 v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2002] FCA 961 at [8]. Thus, good reasons must be identified, as the discretion must be exercised judicially, and those good reasons must be connected with or leading up to the litigation: Latoudis v Casey [(1990) 170 CLR 534] at 557. Thus, the party who seeks an order different from the usual order bears the onus of convincing the court that the usual order should not be made: Latoudis v Casey at 569.
The submissions filed by GJ sought to make out a case that there were special features that justified an order that AS should pay her costs.
The issues
The submissions of GJ were extensive. They raised a number of issues without perhaps the clarity that would have been of assistance to the Court. A fair reading of them, however, leads to a number of discrete issues being able to be identified.
So far as can be discerned, GJ raised five issues in her submissions:
(a) the Court of Appeal has no power to make an order for costs;
(b) if there is such a power, it does not apply to these proceedings as they are under the Domestic Violence and Protection Orders Act;
(c) a costs order is not made to punish a litigant and the costs order that GJ pay AS’s costs would punish her;
(d) AS by his behaviour is disentitled to a costs order in his favour; and
(e) in particular, AS did not “come before the Court with clean hands” and this disentitles him to an award of costs.
She also submitted that, if an award of costs is made against her, it should not be made on an indemnity basis. This issue does not need to be considered as the Court did not propose to make such an order and AS did not ask for it. Indeed, initially he indicated that he did not wish to make submissions as to costs and, in the submissions he made in response to GJ’s submissions, he again said:
The Respondent has already submitted that he does not wish to make any submissions as to costs, as he is content to rely on the intimation of this honourable Court that it should apply the ordinary principle that costs follow the event.
(footnotes omitted)
In the course of his submissions, AS did suggest that what was described as the “scandalous, offensive and often vexatious nature” of GJ’s argument in her submission “almost invites a submission by the Respondent for indemnity costs”. No such submission was actually made and the Court does not consider that this is a case for an award of indemnity costs.
Consideration
We shall deal with each of the identified issues in turn.
1. Power of the Court of Appeal to order costs
There is no doubt that, statute apart, a court lacks power to order costs; authority to make an order for costs must always be found in a statutory provision. See, for example, Garnett v Bradley (1878) 3 App Cas 944 at 962; Booker v Gill (1899) 15 WN(NSW) 158; Martin v Wiggins [1984] Tas R 188 at 190; Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 488; Wright, Danci and Currie (1992) 77 A Crim R 67 at 68; Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 193; Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 at 531; Quach v Butt [2017] ACTCA 4 at [142]-[146].
In most Australian jurisdictions, the power of a court to order costs is set out in an Act of Parliament: s 15 of the Civil Proceedings Act 2011 (Qld); s 98 of the Civil Procedure Act 2005 (NSW); s 24 of the Supreme Court Act 1986 (Vic); s 12 of the Supreme Court Civil Procedure Act 1932 (Tas); s 40 of the Supreme Court Act 1935 (SA); s 37 of the Supreme Court Act 1935 (WA); s 43 of the Federal Court of Australia Act 1976 (Cth); and s 26 of the Judiciary Act 1903 (Cth).
It is notable, however, that there is no such provision in the Supreme Court Act (NT). The power to order costs in that jurisdiction is given under r 63.03 of the Supreme Court Rules (NT).
In this jurisdiction, neither the Supreme Court Act 1933 (ACT) nor the Court Procedures Act 2004 (ACT) presently contains any provision equivalent to those in the States or the Commonwealth.
Prior to 2005, s 23 of the Supreme Court Act provided such a power. In 2005, that section was relocated as s 134 of the Court Procedures Act by s 1.137 of the Justice and Community Safety Legislation Amendment Act 2005 (No 4) (ACT). That relocated section, however, expired on 1 July 2006.
In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2) [2017] ACTCA 1 at [18]-[22], Refshauge J set out as follows the statutory basis for the Court of Appeal’s power to make a costs order:
18.Section 7 of the Court Procedures Act 2004 (ACT) authorises the making of rules for the practice and procedure of ACT Courts, including matters specified in Sch 1 of that Act. Item 26 of that Schedule specifies costs as such a matter in civil proceedings.
19.The Court Procedures Rules 2006 (ACT), made under that section of that Act, makes provision in rr 1720 and 1721 for costs as follows:
1720 Costs - entitlement to recover
(1) A party to a proceeding cannot recover any costs of the proceeding from another party or anyone else otherwise than by agreement, under a territory law, or an order of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).
1721 Costs – general rule
(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2)The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
(3)Sub-rule (2) applies even if the application is adjourned until the trial or the proceeding in which it is made.
(4)Sub-rule (2) is subject to r 1728 (costs – for application reserved).
(5)The costs of an application in the proceeding are in the discretion of the court.
20.These rules appear in Pt 2.17 of Ch 2 of the Court Procedures Rules, which, by r 4 applies to all proceedings unless otherwise specified.
21.Rule 5001 of the Court Procedures Rules does otherwise specify but does make certain exceptions. It is as follows:
5001 Appellate proceedings – application of ch 2 generally
(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.
(2) The applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.
(3) In this rule:
applied civil rules means the following:
...
part 2.17 (Costs)
...
22.An appellate proceeding is defined in the Dictionary to the Court Procedures Rules as one to which Ch 5 applies. An application for leave to appeal out of time, as made by the applicant, is made under r 5405(2), a provision within Ch 5. Thus, there can be no doubt that r 1721 of the Court Procedures Rules applies to these proceedings.
The submission of GJ was that rr 1720 and 1721 of the Court Procedures Rules were beyond power. To understand her argument, it is necessary to consider the terms of s 7 of the Court Procedures Act, which is as follows:
7Rule-making power
1.The Rule Making Committee make rules in relation to the following:
(a)the practice and procedure of ACT courts, prescribed tribunals and their registries;
(b)anything else mentioned in Schedule 1 (Subject matter for rules).
The submission by GJ was encapsulated in her written submissions as follows:
It is submitted that Section 7 only gives the rule-making committee power to make rules – rules about practice and procedure. It is submitted that Parliament did not intend to give a rule-making committee the power to determine jurisdiction over matters such as the power to award costs as opposed to the power to make rules about practice and procedure regarding costs.
GJ submitted that since the discretion as to costs was ordinarily, namely in other jurisdictions, given by statute, the grant of such power by rules was invalid.
There is some support for that submission in the history of the costs rules in the United Kingdom, as explained by Brooking J in Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 at 210-1.
As there explained, the Rules scheduled to the Judicature Act 1875 (UK) made provision similar to r 1721 of the Court Procedures Rules. Subsequently, when, in 1883, those Rules were enlarged and re-issued as the Rules of the Supreme Court 1883 (UK), the question arose as to whether the rules then conferred jurisdiction to award costs. The Full Court of Chancery in In re Mills’ Estate (1886) 34 Ch D 24, expressed doubt about the effect of the rules.
As construed in In re Mills’ Estate, the effect of the rules was described by Lord Esher MR in London County Council v Churchwardens and Overseers of West Ham [1892] 2 QB 173 at 175 as follows:
it did not assume to give the Court power over costs, or jurisdiction over costs, where the court had never had jurisdiction before, but it gave to the court power to deal with costs in a particular way, different from that in which the costs had been dealt with before in cases where the Courts had jurisdiction over the costs. That altered the practice, but it did not enlarge the jurisdiction.
As a result, s 5 of the Judicature Act 1890 (UK) was enacted, providing that costs were in the discretion of the court, in terms that are clearly the progenitor of the various statutory provisions referred to above (at [35]).
Accordingly, it may be argued that the rules themselves cannot provide jurisdiction to grant costs. In our view, that is too simplistic and fails to understand the relevant provisions in this jurisdiction.
Despite what was said in In re Mills’ Estate, the structure of the Court Procedures Act is adequate to provide that r 1721 of the Court Procedures Rules gives the Court jurisdiction.
Indeed, as Professor Enid Campbell in Rules of Court – A Study of Rule-Marking Powers and Procedures (LawBook Company, 1985) at 70, pointed out:
It is well settled that a delegated power to make rules respecting the practice and procedure of a court does not authorise the adoption of rules the effect of which is to enlarge or diminish the court’s jurisdiction, or to invest any part of the court’s jurisdiction in another body, or to allow the court to remit a matter within its jurisdiction to another body for adjudication.
Professor Campbell, however, points out that there is a modification to this, stating:
An empowering statute may expressly confer authority to make rules of these kinds, e.g. rules investing masters and other officers of the court with jurisdiction to determine specialised classes of matters or rules for the remission of issues for trial by an inferior court.
(footnote omitted)
In the light of this, there are two matters to be said about GJ’s submission. In the first place, her submission assumes that the reference to “practice and procedure” in s 7(1)(a) of the Court Procedures Act qualifies “anything else” in s 7(1)(b). It is by no means clear that this is correct; there is no reason why “anything else” should not be given its full and wide meaning to say that, if the Act itself sets out a matter, it is not to be tested by whether it is a matter of practice or procedure before it can be the subject of rules made by the Rule-Making Committee.
The legislature retains full control for it can include or exclude any matter from the Schedule to the Court Procedures Act and thus regulate matters which can be the proper subject of rules. The power of a court to delegate the making of subordinate legislation, as are the Court Procedures Rules, is very wide, even, on occasion, to limiting the rights under an Act itself: O’Connell v Nixon [2007] VSCA 131; 16 VR 440. Thus, as Professor Campbell explained, an express conferral of such a power is valid.
The Full Court of the Supreme Court of Queensland in Tylors (Australia) Ltd v Macgroarty [1928] S R Qd 371 had to construe s 11 of the Supreme Court Act 1921 (Qld) which was in somewhat similar terms to s 7 of the Court Procedures Act.
The Court held that the express reference to matters in addition to a general reference to “practice and procedure” was adequate to authorise the enlargement of jurisdiction of the Court. As Professor Campbell explained of that decision at 70:
Where a power is delegated to make rules respecting the practice and procedure of a given court, and in addition, power to make rules respecting enumerated subjects, the power to make rules respecting these enumerated subject is not regarded as ancillary to the main power and thereby controlled by it. The subjects enumerated may go beyond those which are comprehended by the main power.
In our view, this authority is well sufficient to justify what would seem to be clear from principle that an expressed delegation of a power is adequate to authorise delegated legislation (such as rules of court) to make jurisdictional provision such as granting the discretion of the Court to make orders as to costs.
Thus, there is no basis for reading down s 7(1)(b) of the Court Procedures Act by reference to s 7(1)(a). Indeed, the need to avoid arid disputes about whether a matter specified in the Schedule is a matter of practice and procedure or not is a powerful reason for reading the provision widely and liberally.
In any event, the second answer is that there is no doubt that a provision that provides for a discretionary entitlement to costs is a matter of practice and procedure. It has been so held on many occasions. See Commonwealth v Crothell Hospital Services (Aust) Ltd (1981) 36 ALR 567 at 571, 587; Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 651; Etna v Arif [1999] VSCA 99; [1999] 2 VR 353 at 378; Hoser v The Queen; Ex parte Attorney-General of Victoria [2003] VSCA 194 at [33]; Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [55]; Malouf v Prince [2009] NSWCA 159 at [12]-[13]; Adamson v Ede [2009] NSWCA 379 at [160]; Re Kuek [2012] FCA 494; 291 ALR 43 at 452; [19].
Next, GJ submitted that neither applications under the Domestic Violence and Protection Orders Act nor subsequent appeals arising out of consideration of such applications were civil proceedings, so rendering r 5001 of the Court Procedures Rules irrelevant.
GJ’s submissions explained:
It is submitted that neither applications under the Domestic Violence and Protection Orders Act 2008 nor subsequent appeals are ‘civil’ proceedings. ‘Civil’ law proceedings deal with disputes whereby an individual seeks redress for a wrong committed against them, as in the Tort of Defamation. An application for a protection Order governs interpersonal or family relationships. Civil proceedings can also be contrasted with criminal proceedings.
We note that this is another of GJ’s ipse dixits; she quotes no authority nor any principle in support of her submissions.
In Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 at [10], Handley AJA pointed out that, albeit in the context of particular legislation, “proceedings are either civil or criminal, and proceedings which are not criminal are civil”. This is consistent with the definition of “civil proceedings” in the Dictionary to the Court Procedure Rules. See also Ammann v Wegener (1972) 129 CLR 415 at 422, 426.
In determining what are civil proceedings, the courts have not adopted an approach that proceedings which are not “disputes whereby an individual seeks redress for a wrong committed against them” are not civil proceedings. Indeed, in Re Williams Bros Ltd (1929) 29 SR(NSW) 248 at 249, Harvey CJ in Eq held that an application to wind up a company was a civil proceeding. Such a proceeding is outside the terminology used by GJ in her definition of civil proceedings. Indeed, a “proceeding” is a term of wide import and not limited to the kind of proceedings to which the appellant refers. In Cheney v Spooner (1929) 41 CLR 532 at 536-7, Isaacs and Gavan, Duffy JJ described a proceeding as:
merely some method permitted by law for moving a court or judicial officer to some authorised act, or some act of the Court or judicial officer. In the case of a compulsory winding-up no doubt could exist.
In Re Gonzalez-Daviand Legal Services Society of British Columbia (1991) 81 DLR (4th) 12, the British Columbia Court of Appeal had to consider whether Mr Gonzalez-Davi was eligible for legal assistance when he had been detained pending an immigration inquiry as to whether he should be deported. The Legal Services Society of British Columbia was required to provide services of a lawyer to a qualified individual who “may be imprisoned or confined through civil proceedings”. Accordingly, the Court had to decide whether the proceedings were civil proceedings.
The Court said at 15:
Mr MacAdams, counsel for Legal Services submitted that ‘civil proceedings’ should be restricted in its meaning to private causes of action involving rights as between individuals. That cannot be correct, in my view, because it would exclude proceedings under s 20 of the Mental Health Act, RSBC 1979 c.256, dealing with involuntary admissions. Under s 27 of the Act applications are contemplated to the court to prohibit the admission to a provincial mental health facility to discharge the patient. In my opinion the confinement in those cases is ‘through civil proceedings’.
Further, in principle, proceedings under the Domestic Violence and Protection Orders Act have the characteristics of civil proceedings; they are proceedings between individual parties, brought to enforce a right, the burden of proof is on the balance of probabilities, and the proceedings can be resolved by consent with, for example, the Court noting undertakings given by a party.
It has been held that disciplinary proceedings hold a rather curious position in this taxonomy, being described by Mason J in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207 as “sui generis”. Even then, it has been consistently held that such proceedings are civil proceedings: BRJ v Council of the New South Wales Bar Association (No 2) [2016] NSWSC 228 at [6]; Levi v Australian Securities and Investments Commission (No 2) [2013] NSWSC 932 at [8]; Fernando v Medical Complaints Tribunal [2004] TASSC 130 at [59], [66].
There is no basis for the submission that proceedings involving claims under the Domestic Violence and Protection Orders Act including appeals from decisions on such claims are not, for the purposes of r 5001 of the Court Procedures Rules are civil proceedings.
Accordingly, we reject the submission of the appellant that there is no power in the Court to make orders for costs.
Finally, GJ referred to r 5300 of the Court Procedures Rules. That rule defines “court” for the purpose of Pt 5.4 which is the part of Chapter 5 that relates to the appellate jurisdiction of the Court of Appeal.
Rule 5300 of the Court Procedures Rules provides:
5300Meaning of Court – Pt 5.4
(1)In this part, the court is the Supreme Court otherwise than when it is the Court of Appeal.
(2)Also the court includes the Associate Judge.
(3)However, the court does not include –
(a)Full Court of the Supreme Court exercising appellate jurisdiction; or
(b)the Registrar.
That section seems to us to make clear a distinction in the terminology used within the Part. It is necessary because s 37E of the Supreme Court Act provides:
(1)When exercising its appellate jurisdiction under this Part, the Court is to be known as the Court of Appeal.
Accordingly, the Court of Appeal is the Supreme Court but, when exercising particular jurisdiction, is known as the Court of Appeal.
The definition in r 5300 simply makes it clear that, when the term “court” is used in the rules in Pt 5.4, which regulates appeals to the Court of Appeal, it refers to the Supreme Court other than when exercising its jurisdiction as the Court of Appeal. This is necessary because the Court of Appeal deals with appeals from the Supreme Court constituted by a single judge or the Associate Judge. Within that Part, any reference to the Court of Appeal refers to it by that title and not as “the court”, thus preserving the distinction with clarity.
The appellant then referred to r 5050 of the Court Procedures Rules, a definition section, including:
appeal means an appeal to the Supreme Court from an order of a court or tribunal, but does not include –
(a)an appeal to the Court of Appeal ...
That definition, however, applies only to Pt 5.3, which regulates appeals to the Supreme Court other than as the Court of Appeal and has no operation within Pt 5.4.
The two definitions stand independently and are limited to the relevant Parts of the Court Procedures Rules to which they are expressly applied.
GJ submitted that it could somehow be inferred from that definition that r 5001 which appears in Pt 1 of the Court Procedures Rules, and which applies the provisions relating to costs, therefore does not apply to the Court of Appeal.
We do not fully understand this reasoning but the conclusion that r 5001 of the Court Procedures Rules does not apply to an appellate proceeding in the Court of Appeal is simply not supported by any of these references.
It is, in our view, entirely clear that the applied civil rules under r 5001 of the Court Procedures Rules, including Pt 2.17 (Costs), do apply to proceedings in the Court of Appeal.
There is no substance in GJ’s submission. This Court has statutory power to make orders for costs.
2. The Court of Appeal has no power to make orders for costs under the Domestic Violence and Protection Orders Act
To respond to this submission, it is necessary to consider some of the statutory background and context.
The legislature decided, when making the Domestic Violence and Protection Orders Act, to retain control over procedural aspects of hearings under that Act in the executive and, rather than allowing the rules to make the appropriate procedural provisions, provided for them in the Domestic Violence and Protection Order Regulations 2009 (ACT). See the commentary to cl 118 of the Bill in the Explanatory Statement for the Domestic Violence and Protection Orders Bill 2008 (ACT). Neither the Explanatory Statement, nor the Presentation Speech in ACT Hansard, 7 August 2008, pp 3005-8 explained the reason for that.
Relevant sections of the Domestic Violence and Protection Orders Act are as follows:
96 Appealable decisions
The following decisions under this Act are appealable:
(a) the making, amending or revoking of a protection order, other than an interim order or emergency order, by the Magistrates Court;
(b) the refusal of the court to make, amend or revoke a protection order, other than an interim order or an emergency order;
(c) a decision mentioned in section 95 made on the review of a consent order.
97 When can someone appeal to Supreme Court?
(1) A person may appeal to the Supreme Court against an appealable decision if the person was a party to the proceeding in which the decision was made.
(2) The person must file a notice of appeal (the notice of appeal) with the Supreme Court not later than 21 days after –
(a) if the appealable decision was the making or amending of a protection order and the respondent was not present when the protection order was made or amended – the day the protection order or amendment is served on the respondent; or
(b) in any other case – the date of the order.
(3) However, the Supreme Court may allow a person to file a notice of appeal after the period mentioned in subsection (2) if satisfied that it is appropriate to do so.
100 Powers of Supreme Court on appeal
On an appeal, the Supreme Court may –
(a) confirm, reverse or amend the decision or order appealed from; or
(b) make the decision or order that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c) set aside the decision or order appealed from, completely or partly, and remit the proceedings to the Magistrates Court for further hearing, subject to the directions the Supreme Court considers appropriate.
The Domestic Violence and Protection Orders Act makes no express provision for costs.
Section 93 of the Domestic Violence and Protection Orders Regulation, however, provides:
93 Costs
(1)Each party to a proceeding on an application must bear the party’s own costs.
(2)However, the Magistrates Court may order the payment of costs in a proceeding and, if it does, the Court must fix the amount of the costs.
(3)Also, the Magistrates Court must not order the payment of costs on an application if section 19(2) (procedure of neither party appears) applies to the proceedings on the application.
(4)Costs under sub-section (2) are recoverable as if they were costs awarded by the Magistrates Court in a civil proceeding.
Section 37E of the Supreme Court Act is relevantly as follows:
37E Appellate jurisdiction
(1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2) The following matters may be brought before, and heard by, the Court of Appeal:
(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b) appeals under section 37S (Reference appeal in relation to proceeding);
(c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;
(d) applications under part 8AA (Acquittals).
Rule 4(1) of the Court Procedures Rules provides:
4 Application of rules
(1) Unless a territory law otherwise provides, these rules apply to all proceedings in the Supreme Court and Magistrates Court, other than proceedings under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Rules 5050, 5051, and Table 5051 of the Court Procedures Rules are also relevant, the relevant provisions being as follows:
5050 Definitions – pt 5.3
In this part:
appealmeans an appeal to the Supreme Court from an order of a court or tribunal, but does not include –
(a) an appeal to the Court of Appeal; or
NoteSee pt 5.4 (Appeals to Court of Appeal).
5051 Application – pt 5.3
(1) This part applies to an appeal to the Supreme Court from an order of a court or tribunal.
(2) This part applies subject to any territory law applying to the appeal.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 Appeals may be made from the courts and tribunals mentioned in table 5051 to the Supreme Court.
...
Table 5051 Courts and tribunals that may be appealed from
column 1 column 2 column 3 column 4
item court or tribunal constitution of law appealed under
Supreme Court for
appeal
...6 Magistrates Court judge or associate Domestic Violence and
judgeProtection Orders Act 2001, s 79
Domestic Violence and Protection Orders Act 2008, s 97
It should be noted that, until an amendment was made to Table 5051 of the Court Procedures Rules by including the Domestic Violence and Protection Orders Act in Item 6, the exclusion in r 4(1) meant that there was no power in the Supreme Court to make an order for costs on an appeal under s 97 of that Act: GJ v AS [2011] ACTSC 119 at [23].
GJ’s submission was that the combined effect of rr 4(1), 5050 and 5051 of the Court Procedures Rules is that appeals to the Court of Appeal in matters involving the Domestic Violence and Protection Orders Act are not subject to the Court Procedures Rules, for the exclusion in r 4(1) applies and there is no application in the rules relating to the Court of Appeal to apply them as there is in rr 5051 and Table 5051.
Thus, GJ, submits, s 93 of the Domestic Violence and Protection Orders Regulations applies, namely that each party is to bear his or her own costs, unless the Magistrates Court otherwise orders.
These submissions cannot be accepted. Section 93 of the Domestic Violence and Protection Orders Regulations applies to “applications”. That is defined in the Dictionary to the Act as “an application for a protection order (other than an interim order).” It does not apply to an appeal which is not an application for a protection order but a review of the hearing of such an application. It is clear from the references to Magistrates Court in the section that it is intended to apply to the proceedings in that Court only.
In GJ v AS at [31], Gray J held that that provision was specifically directed to the power of the Magistrates Court in respect of a proceeding in the Magistrates Court. His Honour considered that it did not apply to the Supreme Court.
We agree, as did Penfold J in GJ v AS [2015] ACTSC 66 at [28].
This is similar to the situation where, in certain circumstances, the ACT Civil and Administrative Tribunal has no power to award costs but, on appeal, the Supreme Court may order costs of the appeal because that power is part of the power under the provisions regulating the appeal. See, for example, CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26; The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209. See also The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118 at 124-5; [43]-[47].
It would be absurd to give the Magistrates Court a power to make an order for costs but then expressly (by omission) to exclude the same power from the appellate court. The powers of the Supreme Court do not give it “all the powers of the Magistrates Court” as suggested by GJ, but give it defined powers set out in s 100 of the Domestic Violence and Protection Orders Act. Thus, the powers over costs on an appeal cannot be found in that section. They are, instead, found in r 5001 of the Court Procedures Rules which is applied by virtue of r 5051.
Rule 5051 of the Court Procedures Rules is necessary because an appeal to the Supreme Court is made under s 97 of the Domestic Violence and Protection Orders Act. Without a provision such as r 5051 of the Court Procedures Rules, the rules specified in r 5001 would not apply because of r 4(1) since the appeal is, by virtue of that section, a proceeding under the Domestic Violence and Protection Orders Act. Hence r 4(1) would otherwise apply.
So far as an appeal to the Court of Appeal is concerned, however, such an appeal is made under s 37E of the Supreme Court Act, not under any provision of the Domestic Violence and Protection Orders Act. Thus, r 4(1) of the Court Procedures Rules does not apply. All of the powers under r 5001 apply and this includes the power to order that a party pay the costs of another party.
In our view, GJ’s submission that the Court of Appeal has no jurisdiction to order costs when resolving an appeal about a matter under the Domestic Violence and Protection Orders Act must be rejected.
3. Purpose of a costs order
GJ rightly submits that an order for costs is not to punish an unsuccessful litigant. This has been stated many times. See, for example, Latoudis v Casey (1990) 170 CLR 534 at 543. Similarly, it is not to reward a successful party: New South Wales Crime Commission v Police Integrity Commission (No 3) [2011] NSWSC 978 at [10]; Electro Optic Systems Pty Ltd v New South Wales [2013] ACTSC 155 at [40].
That, however, refers to the purposes of making an order for costs and excludes those purposes. It says nothing about the effects of such an order.
GJ did not explain clearly why her reference to this factor was relevant. If it was a suggestion that she was impecunious or would have difficulty in meeting a costs order, that has never been a basis for declining to make an order for costs: Cristian v Botterill [2016] ACTSC 315 at [19]; Edwards v Stocks (No 2) [2009] TASSC 11; 17 Tas R 454 at 460-1; [12]; Knight v Secretary of the Department of Justice (Re Costs) [2004] VSC 29 at [5]; Scott v Secretary, Department of Social Security (No 7) [2000] FCA 1450 at [4]; Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 at [2]-[3], [5]; Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at p 3. Indeed, as pointed out by the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190; 25 VAR 193 at 206; [31], this is an irrelevant consideration.
GJ’s submissions may, however, be read as suggesting that because she conducted the appeal in a reasonable fashion there is no occasion for her to be “punished”. GJ pointed out that the appeal was not incompetent or “unreasonable”. She submitted that it “involved genuine issues relating to conflict of laws and validity of law under human rights legislation”.
That an unsuccessful party acted reasonably does not, on that account, justify depriving the successful party, who has been forced into litigation which the Court has held did not succeed in validating the appellant’s rights, from his, her or its costs. See Metsikas v Quirk [2010] NSWSC 756 at [7]; Lend Lease GPT (Rouse Hill) Pty Ltd v Hills Shire Council (No 2) [2011] NSWLEC 26 at [32]. This is not a punishment of the unsuccessful party but the ordinary application of the principles relating to the award of costs.
In Ritchie v Styles (No 2) [2011] TASSC 60 at [16], it was said that the focus when considering costs is on the conduct of the successful party, as pointed out in Oshlack vRichmond River Council at 97; [69].
Indeed, even if GJ had come close to being successful in the proceedings, that would ordinarily not be a relevant consideration justifying a different order for costs. See Lansen v Minister for the Environment and Heritage (No 3) [2008] FCA 1367; 162 LGERA 258 at 269; [41]; Wentworth v Rogers [2003] NSWSC 944 at [39]; Latoudis v Casey at 567.
There is no basis in this submission for making any other order than the usual order as to costs.
4. Disentitling conduct and “Clean Hands”
It is convenient to consider both of these submissions together as they were really part of the same submission.
Under this heading, GJ rehearsed much of the conduct that led her to seek the protection order in the first place and that led her to commence separate proceedings for defamation referred to in GJ v AS (No 3) at [6].
It is convenient first to deal with the submission that AS “does not come before the court with clean hands” as this misconceived submission can be dealt with shortly.
It appears that the reference to “clean hands” is a reference to the maxim of equity that “He [sic] who comes to equity must come with clean hands”: FAI Insurance Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552 at 557.
That maxim has no application in these circumstances. This is not a proceeding that raises any equitable doctrine and none has been pleaded. The maxim is a matter of defence to an equitable claim and its application deprives the plaintiff of an equitable remedy to which he or she would otherwise be entitled: Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; 12 BPR 98107 at 22,428; [158]-[159]. None of this has any relevance to these proceedings at all, much less to the question of costs.
As for the alleged disentitling conduct, GJ refers to the actions of AS which she alleges he took leading up to the various litigation in which she has been involved with him.
All the conduct either predated the commencement of this appeal, often by many years, or was conduct in other proceedings, including the proceedings in the Magistrates Court. None of this is relevant to the costs of the appeal.
The leading case on where a wholly successful defendant may be deprived of costs is Ritter v Godfrey [1920] 2 KB 47 at 60, when Atkin LJ said:
In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1.) brought about the litigation, or (2.) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done some wrongful act in the course of the transaction of which the plaintiff complains.
So far as this appeal itself is concerned, AS is not alleged, in any of the submissions by GJ, to have done anything that could fall within the first two categories. As to the third category, His Lordship explained at 61 what was involved when he said:
(2.) and (3.) may possibly overlap. (2.), I think, would include improper conduct in or connected with the litigation calculated to defeat or delay justice. Such conduct would also be included in (3.), which, I think, further extends to cases where the facts complained of, though they do not give the plaintiff a cause of action, disclose a wrong to the public: King v. Gillard, by which I understand some criminal or quasi criminal misconduct, e.g., a fraud or crime or preparation for a fraud or crime, or possibly some act of serious oppression. Such conduct must, however, be in the course of the transaction complained of.
[footnote omitted]
The reference to “the transaction complained of”, however, is apt to be easily understood in the context of first instance proceedings, but this is an appeal. In that case “a transaction” of which GJ complains is the dismissal of the appeal from the Magistrates Court by the Supreme Court. That is what GJ challenged in this appeal.
None of the complaints made by GJ related to the dismissal of the appeal by the Supreme Court, but of matters that may have been relevant to the proceedings in the Magistrates Court or other proceedings, but the costs orders in the other courts were not in issue in these proceedings.
This approach can clearly be seen in the consideration of costs made in Giller v Procopets (No 2) [2009] VSCA 72; 24 VR 1 at 124; [20]-[21], where the plaintiff, who succeeded at trial, had her costs reduced for the trial because she was found to have lied at the trial and had induced others to lie, described by the Court as “a very serious adverse finding indeed”, but the plaintiff had been wholly successful on appeal and, notwithstanding this adverse finding of the Court of Appeal that she had lied in giving her evidence and that she had induced others to lie, ordered that the respondent to the appeal pay her costs in full.
None of the matters, to which GJ referred as asserted disentitling conduct of AS, were part of the “transaction” that was the hearing in the Supreme Court from which the appeal was taken. AS did not induce GJ to commence the appeal in any way nor contribute to any of the hearing in a way that was conducive to the need for an appeal.
There is, therefore, no conduct of AS that disentitled him to an order for costs if otherwise appropriate.
This submission by GJ must be rejected.
Disposition
None of the matters raised by GJ justify a departure from the ordinary rule. Accordingly, that rule should apply and she should pay the costs of AS.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 8 March 2017 |
16