Honner v Yorke Peninsula Council (No 2) - [2015] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HONNER v YORKE PENINSULA COUNCIL (No 2)
[2015] SADC 153
Judgment of His Honour Judge Brebner
6 November 2015
PROCEDURE - COSTS
Successful party to minor civil review applied for costs.
HELD: As both parties were represented by counsel by mutual consent on the hearing of the review, it was in the interests of justice that costs be awarded.
Magistrates Court Act 1991 s 38; District Court Act 1991 ss 42, 42G, 42H; District Court Rules 2006 r 279A, referred to.
Honner v Yorke Peninsula Council [2015] SADC 117; Populus Lawyers Pty Ltd v Kennedy & Co Pty Ltd [2015] SADC 66; Crown Marina Pty Ltd v City of Port Adelaide Enfield & Anor (No 2) [2010] SASC 121; Advance Resource Services Pty Ltd t/as Progress Couriers & Taxi Trucks v Charlton (2008) 100 SASR 388, considered.

HONNER v YORKE PENINSULA COUNCIL (No 2)
[2015] SADC 153

This is an application for the costs of a minor civil review.
Both the review and the underlying claim involved substantial questions of mixed fact and law. The costs of getting the matter up for the review would have been significant and incommensurate to the modest amount involved in the claim.
The claim was a minor civil claim. The action was conducted in the Civil (Minor Claims) Division of the Magistrates Court. The Division is, as counsel for the applicant, Mr Hayes QC puts it, ‘a low costs or no costs’ jurisdiction.
The applicant acted for himself before the Magistrate and the respondent was represented by counsel. By mutual agreement both parties were represented by counsel on the hearing of the review. All this was in conformity with ss 38(4)(b) and (7) of the Magistrates Court Act 1991 (MCA) which govern representation in minor civil actions and minor civil reviews.
The Magistrate entered summary judgment in favour of the respondent. I affirmed the Magistrates judgment: See Honner v Yorke Peninsula Council [2015] SADC 117. The respondent applied for costs. I ordered that the applicant pay the respondent’s costs on a party and party basis to be agreed or adjudicated by a Master of the Court. My reasons follow.
The costs regime applicable to proceedings in the District Court is determined according to the Division of the Court in which the proceedings are heard. Section 42 of the District Court Act 1991 (DCA) provides for costs in the Civil Division. Sections 42G and 42H DCA provide for costs in the Administrative and Disciplinary Division. Rule 279A of the District Court Rules 2006 applies to cases where the Court has jurisdiction to review the judgment of some other Court. Rule 279A(10)(g) confers a discretion on the Court to make an order for the costs of a review.
Section 38(6) MCA confers jurisdiction on the District Court to review minor civil actions. Both the MCA and the DCA are silent about the Division of the Court in which reviews are to be conducted. If it is the Civil Division, then s 42 DCA confers an unfettered discretion as to costs. If it is the Administrative and Disciplinary Division, then ss 42G and 42H DCA confer power to award costs subject to the proviso that costs are not to be awarded unless it is necessary in the interests of justice to do so.
I have come to the conclusion that, whichever way one looks at it, that it is necessary to make an order for costs in the interests of justice. It thus becomes unnecessary to determine which costs regime is engaged.
It is plain from the terms of both ss 42G and 42H DCA that Parliament recognised that circumstances will arise where it would be contrary to the interests of justice to deprive the successful party to a minor civil review of their costs. It is also plain from the lack of any other words of limitation in each section that Parliament intended that if the successful party to a minor civil review establishes that it is necessary in the interests of justice to make an order for costs, then the Court is to enjoy an unfettered jurisdiction as to the basis on which the award is then made.
In this instance, the competing contentions about whether an order for costs ought to be made focused in part on the principles governing representation in minor civil actions and minor civil reviews.
Section 38(4)(a) MCA relevantly provides that representation by a legal practitioner on the hearing of a minor civil claim will not be permitted unless, amongst other things, all parties to the action agree. Section 38(7)(a) provides for the same rights of representation on the hearing of reviews.
Mr Hayes submits that it is not in the interests of justice to award costs. He points to s 38(5) MCA which provides that costs will not be awarded in minor civil actions unless all parties are represented by counsel or unless the Court is of the opinion that there are special circumstances justifying an award and he submits that this is a policy statement which points clearly away from it being necessary in the interests of justice to award costs on a review.
Mr Hayes also pointed to Populus Lawyers Pty Ltd v Kennedy & Co Pty Ltd [2015] SADC 66. He submitted that this decision provides support for his contention. In my view the circumstances of that case are fundamentally different and cannot provide any relevant assistance.
Section 38(5) MCA is confined to awards of costs on the hearing of minor civil actions and the Act is silent on the question of costs on review. In such circumstances it is not to the point that the proceedings at first instance were conducted in a no costs or low costs jurisdiction: Crown Marina Pty Ltd v City of Port Adelaide Enfield & Anor (No 2) [2012] SASC 121 at [13]. Assuming that the policy identified by Mr Hayes exists, the approach taken in Crown Marina suggests that it is to be given little weight when the necessary balancing exercise is conducted.
Counsel for the respondent, Mr Henry SC, submits that the fact that both parties were represented by mutual consent on the hearing of the review is both relevant and determinative. He submits that if a review is important enough for both parties to be represented by counsel, then the ordinary rule that costs follow the event ought to apply: Advance Resource Services Pty Ltd t/as Progress Couriers & Taxi Trucks v Charlton (2008) 100 SASR 388 at [52]. Mr Henry also submits, correctly in my view, that the time occupied by the hearing does not accurately reflect the costs incurred by the respondent. I am of the view that as both parties were represented by mutual consent they each must be taken to have accepted that the matter required counsel, on both sides, to have accepted the risk that costs could be awarded against them according to the costs regime which applies to reviews. In all the circumstances, it would be contrary to the interests of justice to deprive the respondent of its costs.
As it is not possible to assess an appropriate lump sum award I therefore awarded costs on a party and party basis.