GOLJAN v Lim
[2002] WASCA 31
•22 FEBRUARY 2002
GOLJAN -v- LIM [2002] WASCA 31
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 31 | |
| Case No: | SJA:1115/2001 | 23 JANUARY 2002 | |
| Coram: | McKECHNIE J | 22/02/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to Magistrate to determine costs | ||
| A | |||
| PDF Version |
| Parties: | ADAM WALDEMAR GOLJAN JOSEPHINE LIYUN LIM |
Catchwords: | Costs Unsuccessful application to cancel restraining order Costs to other party No scale Costs at large Principles to be applied |
Legislation: | Official Prosecutions (Defendants' Costs) Act 1973 (WA) Restraining Orders Act 1997 (WA) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GOLJAN -v- LIM [2002] WASCA 31 CORAM : McKECHNIE J HEARD : 23 JANUARY 2002 DELIVERED : 22 FEBRUARY 2002 FILE NO/S : SJA 1115 of 2001 BETWEEN : ADAM WALDEMAR GOLJAN
- Appellant
AND
JOSEPHINE LIYUN LIM
Respondent
Catchwords:
Costs - Unsuccessful application to cancel restraining order - Costs to other party - No scale - Costs at large - Principles to be applied
Legislation:
Official Prosecutions (Defendants' Costs) Act 1973 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Matter remitted to Magistrate to determine costs
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr J G Hanly
Solicitors:
Appellant : Beau Hanbury
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: This appeal raises a short but important question as to costs in restraining order applications.
2 The appellant was the subject of a violence restraining order made on 29 September 2000. On 10 October 2000 he made application to this Court for leave to appeal.
3 There were a number of appearances until, on 14 March 2001, Justice Hasluck granted leave to appeal in terms of the application for leave to amend grounds of appeal filed on 7 March 2001 with leave to include in the appeal book the affidavits identified by Justice Hasluck in the transcript of the day's hearing.
4 Under the Justices Act 1902 s 193, the Judge may make any order touching the stay or continuation of the order made by the Magistrate. In other words, the grant of leave per se does not act as a stay. The grounds of appeal did not seek a stay of the violence restraining order, nor was a stay ordered.
5 It appears that nothing was done in prosecution of the appeal for some time until on 17 July 2001 an application for leave to appeal and extension of time was filed and granted by Justice Hasluck on 24 August 2001. That order did not contain any stay.
6 Meanwhile, on 9 March 2001, the appellant applied to the Court of Petty Sessions to cancel the restraining order. The hearing proceeded part-heard on 18 April 2001 and then again on 25 June 2001. On 18 April 2001 the Magistrate dealt briefly with the matter before adjourning it to deal with other matters and then returning it. In that brief period there was a discussion about the appeal and the appellant indicated that the appeal was granted. The transcript records the discussion as follows:
"HER WORSHIP: Mm. So an order was made and confirmed, is that what I understand you're saying?
MR GOLJAN: That's right.
HER WORSHIP: Yes. And you lodged a leave to appeal with the Supreme Court, I understand, is that correct, from the paper work before me?
MR GOLJAN: That's correct, your Worship.
HER WORSHIP: Was that granted or was it dismissed?
(Page 4)
- MR GOLJAN: It was granted.
HER WORSHIP: It was granted, was it? Yes? All right. And the matter is proceeding for hearing today. Mr Hanly, is that correct?
MR HANLY: Yes, yes."
7 On 25 June 2001, after most of the evidence had been received, the Magistrate raised again the matter of the Supreme Court hearing. She adjourned briefly and made inquiries. Upon resumption she asked the appellant:
"Can you tell me why you applied to this court and have wasted 1-1/2 days' of taxpayers' money if you are within another court's jurisdiction?"
- And the answer was:
"I didn't know that I cannot apply in two courts ..."
"... I think once it's within the Supreme Court and Mr Goljan is down there, I really don't think I can proceed with the matter."
9 Following further discussion the appellant withdrew the application and subsequently the Magistrate made an order for costs against the appellant.
Appeal ground (a)
"(a) The learned Magistrate erred in the exercise of her discretion in making the order for costs as the respondent knew or ought to have known that the applicant was appealing, at the same time, to this Honourable Court, against the making of the restraining order in proceedings SJA 1191 of 2000 and the award of costs was unreasonable;"
10 In the absence of an order for a stay by the Supreme Court, the Magistrate had jurisdiction to embark upon the application for cancellation of the restraining order. A stay of execution had not been granted.
(Page 5)
11 If, by her comment, the Magistrate thought she lacked power, that would have been an error. The Magistrate had a discretion whether to hear the application in the circumstances. I am inclined to think it was the exercise of the discretion to which she referred and do not attribute error to her.
12 With the benefit of hindsight, the Magistrate ought to have enquired further after being told at the very start of proceedings that leave to appeal had been granted. Whether the hearing should have continued became a live issue then. There would have been a number of relevant factors to be taken into consideration, including the desire of the appellant to proceed. He had, after all, initiated the application to cancel the restraining order. Another relevant factor may have been the position of the respondent who may have wished to proceed or seek an adjournment.
13 The ground of appeal asserts that the respondent knew, or ought to have known, that the applicant was appealing against the grant of a violence restraining order. During the course of the hearing a police officer was cross-examined by the appellant about the appeal papers as follows:
"... What have you done with them?---That was an appeal application that you handed to me through the Supreme Court and it was just a piece of paper that's signed that you were going to lodge an application and that was it.
Have you done anything when Supreme Court called you and they called Josephine Lim? Have you done anything about that?---The Supreme Court hasn't - - that was your application to appeal this violence restraining order. I can't do anything about that.
It was served on you will serve on Josephine Lim?---I can't do anything with a - - there's just - - no, it was just that you gave me a copy of an appeal application. I can't do anything with that.
So you know that I'm appealing as well in Supreme Court, don't you?---Yeah, but I can't do anything. I can't take police action against that."
14 This matter was taken up by the Magistrate who asked counsel for the respondent about it. The response was:
(Page 6)
- "MR HANLY: I don't know. I've not seen any papers but there has been reference to it at the commencement I think of this hearing.
MR GOLJAN: Yes, there was.
HER WORSHIP: Well, in that case, I should not be hearing this matter.
...
MR HANLY: Well, I don't - - I think, as far as I understand it, it's an application for leave to appeal.
MR GOLJAN: No.
MR HANLY: But we don't have any papers, your Worship.
HER WORSHIP: Have you served Mr Hanly with any application?
MR GOLJAN: I never knew Mr Hanly until the first - - ..."
15 The matter was further explored but it does not appear from the transcript that the appellant ever asserted that the respondent or her solicitors had been served with any papers to do with the appeal.
16 It does appear that the appellant, for whom English is not his first language, may have misunderstood the effect of the Supreme Court proceedings and thought, as he suggested, that the hearing before the Magistrate was a re-hearing as a result of the appeal.
17 However, he was not misled in any respect by the respondent and there is no evidence that the respondent had been served with any notice of appeal.
Conclusion on appeal ground (a)
18 In all the circumstances, while it would have been preferable for the Magistrate to have explored the issue at the commencement of the proceedings when it had been raised, any miscarriage of justice this may have created was not caused or contributed to by the respondent. I do not consider that the respondent was under an obligation to explore the issue in circumstances where she had come prepared to join issue with an application for cancellation of the restraining order.
(Page 7)
19 In consequence, the first ground fails.
Appeal ground (b)
"(b) The amount of the award was excessive and not justified in law."
20 The Restraining Orders Act 1997, s 69(1) provides that the court may make such orders as to costs as it considers appropriate. Although the section is expressed to be subject to the regulations, there is no regulation promulgated in respect of costs.
21 The lack of regulation is unfortunate. Costs in respect of restraining orders ought to be regulated. Because there is no regulation it is necessary for the Magistrate to embark on what might be regarded as a mini-taxation of costs in order to determine whether the costs claimed are reasonable. This has the potential to convert a summary procedure into a protracted exercise. Nevertheless, in the absence of guidance from regulations, this is what must be done.
22 Regard might be had to the scale under the Official Prosecutions (Defendants' Costs) Act 1973 or the Local Courts Act 1904 in order to determine the appropriateness of a particular claim for costs, so long as those are used as a guide and not as a prescription.
23 In the event, the appellant withdrew his application for cancellation. He therefore became liable to an adverse costs order.
24 Costs sought were $4934 on the basis as counsel put it:
"The first day you had an enormous list and we didn't get started at 3 pm and we had waited all day."
- The hearing occupied about 2-1/2 hours. On the second occasion there was a brief application for access to documents 1 hour and the third occasion preparation and hearing time. "
25 The transcript records that proceedings commenced at 10.16 am on 25 June and that at 12.04 pm there was a short adjournment before a short further hearing involving the question of the costs.
26 Counsel sought a full order as to costs and in response the appellant said:
(Page 8)
- "Your Worship, I would agree to that costs but I would like to wait until the outcome of the Supreme Court."
27 The Magistrate correctly pointed out that the Supreme Court had nothing to do with the matters before her as he had withdrawn the application after hearing and was subject to costs at the court's discretion.
28 The actual discussion on quantum of costs was very brief.
"MR HANLY: Your Worship, the total costs incurred to date for Ms Lim are $4934 up to yesterday. That doesn't include any time today.
HER WORSHIP: Yes.
MR HANLY: We've been here on three occasions that ... (indistinct) ... you will recall. The first day you had an enormous list and we didn't get started until about 3 pm and we had waited all day. You worked till about 5.30 hearing the case that day. We came back last Friday on a brief application by Mr Levy to have access to documents. That was, I suppose, in all, an hour and today, preparation for today of course and a hearing time today. They are the costs which my client has incurred up till today. ...
HER WORSHIP: There will be an application for costs granted. The costs will be fixed in the sum of $4900.
...
HER WORSHIP: And that is a small amount of costs bearing in mind the extra time which has been involved and the other matters which Mr Hanly has raised. ..."
29 The Magistrate therefore fixed costs in the sum of $4900.
30 The Magistrate had an obligation to enquire more completely into the quantum of costs. It is not the case that any request for costs should be accepted. It may be necessary to adjourn in order to seek justification for the costs, perhaps by requiring written submissions from each side.
31 The scale of costs under the Official Prosecutions (Defendants Costs) Act was determined by the Legal Costs Committee as follow:
(Page 9)
|
| $2,150 |
|
| $1,075 |
33 This scale is but a guide. Nevertheless, it is a useful guide because it does set a general range of costs for the appearance in the Court of Petty Sessions. Furthermore, the costs scale was fixed after consultation by the Legal Costs Committee.
34 For this appeal counsel for the respondent submitted a time-sheet which indicates the solicitor/client costs actually rendered were $5834.
35 The learned Magistrate was of opinion that the costs were a small amount. However, the difficulty is that there are no reasons to support her opinion. There seems to have been a decision to award costs just on the oral application without any meaningful reference by the Magistrate as to why she accepted $4900 as appropriate. By reference to the only guide which might be used, the Official Prosecutions (Defendants' Costs) Act, the amount claimed may have been excessive.
36 It appears the Magistrate's discretion was never really exercised. I have considered exercising the discretion myself. However, I have reached the conclusion that the appropriate course is to remit the question of costs to the Magistrate for determination.
Orders
1. The appeal is allowed;
2. The decision of the Magistrate to award the respondent $4900 costs is set aside;
3. In lieu the matter is remitted to the Magistrate to determine the quantum of the costs payable by the appellant to the respondent.
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