Howley v Ghan
[2019] SASC 4
•25 January 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HOWLEY v GHAN
[2019] SASC 4
Judgment of The Honourable Justice Hinton
25 January 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS - PARTICULAR CASES - ABUSE OF PROCESS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Mr Howley instituted proceedings in the Magistrates Court against Dr Ghan seeking damages in the amount of $100,000 and other relief. On 22 June 2018 Mr Howley’s particulars of claim were struck out and he was given the opportunity to re-plead. Mr Howley subsequently filed amended particulars of claim.
On 3 August 2018 the amended particulars of claim were also struck out and Mr Howley’s action was dismissed. Dr Ghan applied for his costs to be determined on an indemnity basis. That application was made on the grounds that the claim enjoyed no prospects of success, was scandalous and was persisted with despite Dr Ghan’s solicitors warning Mr Howley that costs would be sought if he did so. The Magistrate who dismissed Mr Howley’s claim awarded Dr Ghan costs fixed in the sum of $500.
Mr Howley appealed against the dismissal of his claim and the striking out of his amended particulars of claim. Dr Ghan appealed against the costs order made in his favour.
Held:
1. Dismissing Mr Howley’s appeal; the Magistrate was right to conclude that the amended particulars of claim did not disclose a cause of action and did not comply with the requirements of the Magistrates Court (Civil) Rules 2013 (SA).
2. Allowing Dr Ghan’s appeal; the Magistrate provided no reasons for the costs order she made where a prima facie basis for an award of indemnity costs existed.
Magistrates Court Act 1991 (SA) ss 8(1), 37(1), 38(5); Magistrates Court (Civil) Rules 2013 (SA) rr 2, 3(1), 24(1), 70(1), 86, 106(1); Supreme Court Civil Rules 2006 (SA) rr 53, 90(2), 98, 99, referred to.
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Police v Pericic (2008) 100 SASR 141, applied.
Bruce v Oldhams Press Ltd [1936] 1 KB 697; Cox v Journeaux (No 2) (1935) 52 CLR 713; Jeffery Pty Ltd & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75; Rayner v Pethick [2006] SASC 70; Resi Corporation v Munzer [2016] SASCFC 15; Staats v The United States of America (1992) 66 ALJR 793; Union Bank of Australia v Harrison, Jones & Devlin (1910) 11 CLR 492; Westwill Pty Ltd v The Barossa Council [2016] SASC 189, considered.
HOWLEY v GHAN
[2019] SASC 4Magistrates Appeal
HINTON J:
Introduction
On 23 April 2018 Mr Howley instituted proceedings in the Magistrates Court against Dr Francis Ghan, an orthopaedic surgeon, to whom he had been referred by his then general practitioner, Dr Maurice Asz. His claim stated:
I need the court to correct the record. When I left Ghan’s premises I was quite sure he did not want to have me as a patient. He was quite rude and abrupt he refused to examin [sic] me or look at the scans I had with me. He told me to get out he did not ask me any questions concerning my physical status.
So I think it is fair to say he should explain himself, why he wrote a report about me, why he behaved dishonestly and why he lied.
I have suffered severe pain, a very limited lifestyle and as a result some severe complication [sic].
I seek damages for pain and suffering, the mental anguish over his treatment amounts to deliberate and malicious abuse of my rights.
Due to my on going physical problems I will limit myself to the Magistrates Court (the District Court is too difficult physically) and to the maximum claim allowable therein, and to the removal of his report from my file and associated costs.
The Magistrates Court has jurisdiction to hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100,000.[1] Accordingly, Mr Howley’s claim was treated as one seeking an award of $100,000.
[1] Magistrates Court Act 1991 (SA), s 8(1).
On 17 May 2018 Dr Ghan filed a defence to Mr Howley’s claim. Dr Ghan denied the claim in its entirety, pleaded that the claim disclosed no cause of action and sought an order that it be dismissed with costs. Dr Ghan also filed an interlocutory application on 14 June 2018 seeking that Mr Howley’s claim be struck out and that Mr Howley pay his costs of the application and the action on a solicitor and client basis. In an affidavit sworn in support of the application Mr Ian Milsom, counsel for Dr Ghan, exhibited a letter dated 24 May 2018 written by Dr Ghan’s solicitors and addressed to Mr Howley in which it was said:
Your claim is denied. Your claim will be defended to the full extent permitted by law.
Your allegations that our client has engaged in “medical fraud[”] and having behaved “dishonestly” and having “lied” are scandalous.
We suggest your claim is embarrassing and discloses no cause of action.
We suggest your claim is hopeless and doomed to failure.
We are instructed that if you file and serve a Notice of Discontinuance of your claim by 5.00pm Friday, 1 June 2018, our client will not seek an order that you pay his legal costs.
Needless to say Mr Howley did not file a notice of discontinuance.
On 22 June 2018 Magistrate Forrest struck out Mr Howley’s particulars of claim on the basis that they did not disclose a cause of action or comply with the rules as to pleadings. In the course of the hearing the Magistrate advised:
… ordinarily what is required is that your pleading, your particulars, your written complaint that you filed with the court, identify the cause of action, a legal right of yours and then you would need to identify the facts upon which you rely to establish that there was a breach of a legal right and then you would need to identify the loss, the damage, that you suffered. I don’t believe you’ve done that in this document.
Subsequently, Mr Howley characterised his cause of action as fraud. Magistrate Forrest responded:
… The word ‘fraud’ isn’t mentioned anywhere in your particulars of claim and that’s a very difficult – it’s not an easy thing to allege fraud. Very difficult to prove I would think and I really cannot see any prospect of you proving that based on the little bit of information that I have got so far. You were referred to a specialist. You weren’t pleased with his attitude, his treatment. Not pleased that he wrote a report about you. At the moment I don’t see that any of that could give rise to any legal cause of action by you against him and certainly the particulars you’ve provided do not assist Mr Ghan and his advisors, or the court for that matter, in identifying exactly what is the cause of action that you’re relying on and the facts underpinning your claim for damages.
MR HOWLEY: It says here what I’ve just said to you. He was quite rude and abrupt. He refused to examine me or look at the scans I had with me. He told me to get out and he did not ask me any questions concerning my physical status so I think it is fair to say he should explain himself why he wrote a report about me, why he behaved dishonestly and why he lied. I think that’s pretty well got it covered hasn’t it?
HIS HONOUR: No, no, it doesn’t give rise to an identifiable cause of action in my opinion.
In the course of bringing the proceeding to an end Magistrate Forrest explained that the ordinary approach in circumstances such as those prevailing was for the Court not to dismiss the action but for the plaintiff to have a chance to provide a proper pleading. He then warned Mr Howley of his potential liability for costs before ordering that Mr Howley file and serve amended particulars of claim within 28 days and reserving the issue of costs.
On 18 July 2018 Mr Howley filed amended particulars of claim. Those particulars stated:
As I have been ordered to re submit an application for the previously mentioned matter I will do so as I do not wish to have this process halted or even delayed. Opinion is that the application previously lodged is fit for purpose, unlike Magistrate Forest [sic] who seemed to appear for the defense [sic].
His behaviour was reprensible [sic] he defended Mr Ghan three times, he spoke to me as if some errant child, and said that Mr Ghan has the right to refuse me as a patient which was not the issue. Failing to understand the simple premise that once he had refused to treat me, and have me as a patient and ejected me from his office he should not have produced a report about me. He should not as a result of his actions looked at my file, discussed me with anyone and I do mean anyone, and he most definately [sic] should not have given an opinion about me and produced a report about me all these things are illegal and Forest [sic] should know this.
And:
When Forest [sic] threatened to award all the defendant’s costs things took on such clarity. The way that Mr Milsom who appeared for Ghan buried his head in his hand [sic] on the desk and squirmed with dismay and embarrassment at the actions of Forest, it was obvious that Forest had colluded with the defendants [sic] lawyers. I have every right to expect silence and certainly nothing in writing from Ghan who should explain himself. He and the Elizabeth Court have now shown that they are both in the same activity “Lets do it to Mr Howley”. Certainly seem like Forest [sic] has read the OIM about me as have most of the people at the EMC. This despicable fraudulent document is a vile piece of pornography produced and distributed by the SA police - (another crime) So not only has Ghan abused my legal rights and my human rights he has been exposed again by Forest [sic] + Milsom.
So I claim the maximum amount allowable plus costs and my medical records purged of Ghans [sic] rantings.
Accompanying Mr Howley’s claim was a letter dated 24 October 2011 addressed to Dr Asz and signed by Dr Ghan. In the letter Dr Ghan provides an opinion regarding Mr Howley’s medical complaints after purporting to have examined Mr Howley and viewed CAT and MRI scans and with the benefit of a limited medical history.
On 3 August 2018 the matter was called on before a different Magistrate. Counsel for Dr Ghan applied for Mr Howley’s fresh particulars of claim to be struck out and for an order that Mr Howley pay Dr Ghan’s costs on an indemnity basis. With respect to the latter application counsel identified three grounds upon which such order would be justified; the unsubstantiated allegation of dishonesty made against Dr Ghan, the case was pursued and persisted with despite being hopeless, and the failure to heed the warning contained in the letter of 24 May 2018.
The Magistrate indicated that she was inclined to grant the application to dismiss the claim but wished to consider further the application for an award of costs on an indemnity basis. Accordingly, judgment was reserved.
On 17 August 2018 judgment was delivered. The Magistrate granted Dr Ghan’s application and ordered that the claim be struck out and the action dismissed. The Magistrate also ordered that Mr Howley pay Dr Ghan’s costs of the application and the action fixed in the amount of $500.
Mr Howley now appeals against the orders made by the Magistrate on 17 August 2018. He seeks orders reinstating his claim and setting aside the costs order made against him. Dr Ghan has cross-appealed. He contends that the Magistrate erred in that she failed to provide reasons for ordering that Mr Howley pay Dr Ghan’s costs fixed in the amount of $500 and in failing to order that Mr Howley pay the of the whole action on an indemnity basis, or, in the alternative, on a solicitor and client basis.
I would dismiss the appeal and allow the cross-appeal. My reasons follow.
The Magistrate’s reasons
In her reasons for the orders made on 17 August 2018 the Magistrate recounted the history of the proceedings much as I have done above. She then stated:
The plaintiff’s amended particulars of claim expressed protest at being required to file the document and criticisms of the behaviour of the Magistrate. These are not proper pleadings. The plaintiff states the premise of his claim is that having refused the plaintiff as a patient and allegedly ejecting him from his office, the defendant should not have looked at the plaintiff’s file, discussed the plaintiff with anyone or produced a report about the plaintiff, and the plaintiff seeks an explanation from the defendant.
Annexed to the amended particulars of claim is a letter from the defendant to a Dr M. Asz of UniHealth Playford, dated 24 October 2011. It is clear from the letter that Dr Asz had referred the plaintiff to the defendant for assessment regarding pain in his lumbar spine and pelvis. The defendant confirms in the letter having reviewed scans which he concludes are normal and that there is not much he can offer the plaintiff by way of treatment. He recommends that the plaintiff attends an appointment, already scheduled, with the Royal Adelaide Hospital Pain Clinic.
I agree with the submission of the defendant’s solicitor on the last occasion that the letter is benign and typical of correspondence between a specialist and a general practitioner.
The amended particulars of claim are embarrassing to this court and to the defendant and do not comply with the rules of pleading. In addition, the particulars of claim not only do not disclose a cause of action but do not identify a date upon which it is alleged a cause of action arose. Therefore it is not possible to determine whether any claim, should there be a basis for one, is now statute barred.
It would appear from the defendant’s letter to Doctor Asz that the events about which the plaintiff complains occurred in around late 2011. Mr Howley, for your information any claim for personal injuries should be brought within three (3) years of the date of an injury or cause of action arising and in any other claim, within (6) years. It is now nearly seven (7) years since that time; I just note that for your information.
I make an order pursuant to Rule 86 that the pleadings are struck out and therefore the claim is dismissed.
The Magistrate then turned to deal with the costs application. She said:
In respect of the defendant’s claim for costs against the plaintiff, I award the defendant costs against the plaintiff of the defendant’s application and attendances on the action fixed in the amount of $500.
In drawing her reasons to a close the Magistrate stated:
Mr Howley, I note through your claim, your complaint seems to be concerned with behaviour and treatment by the defendant rather than any cause of action and I note for your information that there are other agencies – and I am stating this for your benefit – there are other agencies that can deal with any complaints that you have about a medical practitioner. They include the Health and Community Services Complaints Commissioner, the Medical Board of South Australia or the Australian Health Practitioner Regulation Agency. If you have got some complaints you could perhaps make enquiries of those agencies but those are obviously not matters for this court. Your claim is dismissed and you are now excused.
Mr Howley’s appeal
a. Rule 86 of the MCCR
As the Magistrate made plain in the passages from her reasons quoted above, the power she exercised in striking out Mr Howley’s claim was that contained in rule 86 of the Magistrates Court (Civil) Rules 2013 (MCCR). That rule provides:
A party may apply to the Court for judgment in, or an order staying until further order, an action or proceeding that is scandalous, frivolous, oppressive, vexatious or otherwise an abuse of the process of the Court, or an order striking out a pleading of that nature.
Rule 86 is an expression of the implied or incidental power that the Magistrates Court possesses to protect its processes.[2] The purpose of rule 86 may be considered the same as that of Order 58, rule 4(3) of the High Court Rules as considered by Deane J in Staats v The United States of America (Staats).[3] Deane J commented:[4]
The rule of law which permeates our system of government requires that all persons have access to the courts of the land. That principle is at its most important in a case where proceedings against government and those exercising governmental power are involved. Indeed, in a case such as the present, where proceedings against the Commonwealth or an officer of the Commonwealth in the original jurisdiction of the Court are involved, the right of access is constitutionally entrenched.
Nonetheless, considerations of justice, the interests of plaintiffs themselves and the public interest combine to require that there be procedures for insuring that a court can prevent the institution or maintenance of frivolous or vexatious proceedings. The interests of justice demand that a defendant (and those who are alleged to have acted unlawfully on behalf of a defendant) be protected from the cost, time and personal stress involved in defending such proceedings. The experience of those involved in the administration of justice in this country is that a plaintiff who persists in bringing hopeless proceedings is commonly convinced of the righteousness of his or her cause and will suffer increased stress, damage to health and, commonly, financial ruin if proceedings which are clearly foredoomed to fail are not halted at the outset. The public interest demands that court time and facilities, particularly the very limited time and facilities of this Court, are not devoted to pointless and misconceived litigation to the detriment of genuine disputes.
[2] Wunsch v South Australia Police (1995) 64 SASR 203.
[3] (1992) 66 ALJR 793.
[4] (1992) 66 ALJR 793, 793.
More recently in Jeffery Pty Ltd & Katauskas v SST Consulting Pty Ltd French CJ, Gummow, Hayne and Crennan JJ said:[5]
[5] (2009) 239 CLR 75 at [27]-[28].
An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest:
“The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.”
That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute “abuse of process”. Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the nineteenth and twentieth centuries and included:
“(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.”
The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
[footnotes omitted]
In Westwill Pty Ltd v The Barossa Council, in the course of dealing with rule 53 of the Supreme Court Civil Rules 2006 (SA) (SCCR) being one of the array of powers available to this Court to protect its processes from abuse, and after quoting from Deane J in Staats as I have above, I said:[6]
The inherent power of a superior court to combat abuse of its processes derives from its fundamental responsibility to administer justice. Given the end that the power serves, it necessarily extends to categories of cases where the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. As early as 1883, in R v Burns, Higinbotham J, with whom Stawell CJ and Holroyd J agreed, noted:
... Every court of justice has an inherent power – a duty as well as a power – to take care that the machinery of justice is not abused in such a manner as to prevent justice being done, or allow a scandal to take place...
The High Court has similarly acknowledged this “duty”, noting that “every court is ‘in duty bound to protect itself’ against an abuse of its process”.
Thus, whilst it is axiomatic that all members of the community have access to the courts, that right is not absolute. This Court is clothed with all power necessary to ensure that it is able to fulfil its functions including the taking of appropriate steps to prevent the “persistent advancing of hopeless applications that are abusive and scurrilous and that unnecessarily take up the time of the court to the prejudice of the community in general, and other litigants in particular.” As Deane J indicated, the effective administration of justice is undermined where individuals abuse the processes of the Court by diverting resources from meritorious actions to repeated hopeless applications, devoid of any merit, that do not comply with the rules, and result in the unnecessary incursion of time and expense and the occasioning of unnecessary anxiety. Having said that, sight can never be lost of the fact that it is fundamental to the rule of law that all members of the community have access to the courts. …
[footnotes omitted]
[6] [2016] SASC 189 at [17]-[19].
In my view these observations apply equally to the power possessed by the Magistrates Court to protect its processes of which rule 86 MCCR may be considered one manifestation. They reflect competing public interests; on the one hand that all members of the community have access to justice, on the other, that neither the judicial power nor members of the community be taxed by vexatious, oppressive, frivolous or scandalous proceedings. As the power is, in essence, one to refuse to exercise power, it is exceptional in nature and should only be exercised in clear cases of abuse:[7]
A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.
[7] Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720 (Dixon J); Williams v Spautz (1992) 174 CLR 509 at 519 (Mason CJ, Dawson, Toohey and McHugh JJ).
b. Submissions
Mr Howley was not represented by counsel and is not legally trained. It was explained to him that to succeed he had to satisfy this Court that the Magistrate was wrong and how it was that his pleadings properly pleaded a cause of action. Mr Howley submitted:
My main concern here is that this is a simple matter. The effective course of action [sic] is Dr Ghan is not my doctor and as such he shouldn’t have done, said or spoke to anyone about me, he certainly shouldn’t have written a report about me and he shouldn’t really know who I am after all this time. …
Mr Howley proceeded to emphasise that he attended at Dr Ghan’s consulting rooms after being referred to Dr Ghan by Dr Asz, that Dr Ghan refused to see him and did not examine him. He said:
Well he didn’t examine me which he says he did. He didn’t do any of the things that he said he did. He simply said ‘Get out’. He was - from the very outset he didn’t want to look at my - any radiographs that I had with me, he didn’t want to listen - he kept talking over me when I spoke to him. I certainly didn’t ask him for anything in the nature of a report …
Whilst Mr Howley submitted that Dr Ghan had lied in his report and the courts should censure him for lying, I understood his primary submission to be as revealed in the passage quoted above, namely, that once Dr Ghan refused to see him as a patient no report should have been prepared, hence one aspect of the relief he seeks is the removal of Dr Ghan’s report from “any file that it appears on”. In expanding upon the harm caused by Dr Ghan’s report and justifying the damages he seeks, Mr Howley submitted that the availability of that report to other medical professionals had contributed to him not being able to get the treatment he says he badly needs resulting in him continuing to experience pain that has greatly reduced his quality of life.
Mr Howley proceeded to make more general submissions complaining about his treatment by numerous agencies and authorities including the police. My understanding is that he links this treatment to allegations that have been made against him in the past and which have been documented by the South Australia Police in a form known as an Offender Identification Module (OIM). Mr Howley surmises that this form is shared by the police with people and agencies from whom he seeks assistance and has contributed to his mistreatment and non-treatment.
Mr Howley submitted that the claim he had made was “a genuine and legitimate and legal claim” giving rise to a cause of action.
In the course of the hearing of the appeal Mr Howley became unwell. As a consequence he was permitted the opportunity of completing his submissions in writing. He did so largely reiterating the submissions he had already made and elaborating upon his involvement with police that lead, it appears, to the creation of the OIM. Amongst other things he submitted:
Dr Ghan’s actions have been a block for further treatment for my injuries. The report is placed on my file which is accessed by the personell [sic] I am referred to. The report says as one can see there is nothing particularly wrong with me and the OIM is often used to reinforce the decisions …
…
The problem with Dr Ghan was that instead of pretending to examine me and then writing his fictional report, he lost his composure and refused to accept me as a patient. This I believe led to a repeat visit by police or their representative to force Ghan to write his dodgy report.
In addition to revising the damages he sought upwards to $380,000, Mr Howley submitted:
… All I would expect is what I applied for 1. The file purged of any trace of Dr Ghan’s fictitious report, 2. An explanation of his actions and 3. The claim for the amount specified in the application of the amount mentioned herein whichever is permissible and costs.
Counsel for Dr Ghan contended that the Magistrate did not err in striking out Mr Howley’s claim as neither Mr Howley’s first pleadings nor amended pleadings complied with the MCCR. In particular they did not provide Dr Ghan with reasonable notice of the claim. In elaboration counsel submitted that it was difficult to work out what was the issue to be tried, let alone whether or not a cause of action was raised that had some prospect of success. Further, and in any event, the pleadings were “vexatious”, “ambiguous” and an “abuse of process”.
Taken at its highest, counsel submitted that Mr Howley’s claim might be thought as one asserting a breach of confidence or a breach of privacy as Mr Howley alleged that Dr Ghan had shared information about his medical condition with others, including Dr Asz, without his consent. However, even if that were the case the facts material to such claims were not pleaded. As such, the Magistrate was correct to strike out and dismiss Mr Howley’s claim.
c. Analysis and conclusion
Rule 24(1)(b) MCCR provides that in a general jurisdiction claim, as Mr Howley’s claim was, pleadings must comply with the SCCR except that a claim under s 588FF of the Corporations Act 2001 (Cth) must not attach an affidavit nor liquidators report. Rule 90(2) SCCR states that a pleading is a formal statement of the basis of a party’s case filed in the court. Rules 98 and 99 SCCR provide:
98—General rules of pleading
(1) A pleading—
(a) must be in an approved form; and
(b) must—
(i)if the party is represented by a solicitor whose name appears on the Court’s record as the solicitor representing the party—be endorsed with a certificate by the solicitor certifying that the pleading has been prepared in accordance with the party’s instructions and conforms with these rules; or
(ii)if the party is not represented by a solicitor—be signed by the party.
(2) A pleading—
(a) must be as brief as the nature of the case allows; and
(b) must state only material facts and matters relied on and not the evidence or arguments by which the facts and matters are to be proved; and
(c) must not contain matter that is—
(i)scandalous; or
(ii)evasive or ambiguous; or
(iii)frivolous or vexatious; or
(iv)an abuse of the process of the Court in some other respect.
(d) must plead such facts and matters as give fair notice of the party’s case at trial.
(3)If a claim or defence is based wholly or in part on a document or conversation, the effect rather than the actual words of the document or conversation should be pleaded unless there is good reason to state the actual words.
Exception—
In a case of defamation, it is necessary to plead the words alleged to give rise to the defamation and, if a defamatory innuendo is alleged to arise from the words or the circumstances in which they were used, the defamatory innuendo as well.
(4)If a question of liability has been decided by agreement between the plaintiff and the defendant, a party relying on the agreement must refer to the agreement and its effect in the relevant pleading but not the facts and matters giving rise to the question except to the extent necessary to describe the effect of the agreement.
(5)It is not necessary to identify a person referred to in a pleading by the person’s full name—any conventional form of identification that identifies the person with reasonable particularity is sufficient.
(6)Allegations of fact in a pleading must be mutually consistent.
(7)However, a party may make inconsistent allegations of fact in the alternative.
(8)If a party makes a claim or defence that assumes the fulfilment of a condition precedent, the party is taken to allege fulfilment of the condition precedent without specifically pleading it.
99—Requirements for statement of claim
(1)A statement of claim—
(a) must state the name of each cause of action; and
(b) must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); and
(c) must contain a short statement of the material facts and matters on which each cause of action is based; and
(d) must state any remedy for which the plaintiff asks; and
(e) if the plaintiff seeks an ancillary remedy (such as an extension of a period of limitation or a temporary injunction)—must state the nature of the remedy and the basis on which it is sought.
(2)If the plaintiff relies on separate causes of action, the statement of material facts and matters must differentiate between—
(a) facts and matters that are common to both or all causes of action; and
(b) facts and matters that are relevant only to a particular cause of action.
(3)If a plaintiff claims damages for personal injury, the statement of claim must state—
(a) the general nature of the injury and any resulting disability; and
(b) the general nature of treatment received; and
(c) the general effect of the injury and any resulting disability on the plaintiff's—
(i)capacity to work; and
(ii)enjoyment of life; and
(d) the kinds of economic and non-economic loss suffered by the plaintiff,
(but is not to contain details of treatment and loss that are required for the statement of loss).
Where rule 99(1)(a) SCCR refers to the name of a cause of action it may be understood as referring to a legal name given to an identifiable basis upon which liability for harm, loss or damage is known to, and imposed by, the law and for which the law provides a remedy (e.g. negligence, nuisance, defamation, trespass, breach of contract, breach of statutory duty). The basis of the cause of action to which rule 99(1)(b) refers is the particular source of the law that imposes the duty or obligation that the plaintiff contends the defendant has breached and for which he or she is liable (e.g. common law, equity and statutory sources). Naming the cause of action and identifying its basis alerts the court and other party to the body of law that the plaintiff contends is applicable and, in particular, the source of the elements or ingredients of the cause of action that must be established if the plaintiff is to succeed.
Turning to rule 99(1)(c) (and rule 98(2)(b)), material facts are those “necessary for the purpose of formulating a complete cause of action; and if any one “material” fact is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck out” …”.[8] Thus, where rule 99(1)(c) refers to the material facts on which the cause of action is based, it means the particular act or omission, state of mind, status, events and/or circumstances that the plaintiff contends occurred and which, if proved, satisfy the elements or ingredients of the cause of action (as provided by the applicable body of law forming the basis for the cause of action) entitling the plaintiff to the remedy sought (specified as required by rule 99(1)(d)).[9] Importantly, material facts should not be confused with the evidence to be called. The evidence to be called is the means by which the material facts are intended to be proved. Evidence is not to be pleaded.[10] What is critical is, as rule 98(2)(d) SCCR provides, that the pleadings reasonably disclose the case that the party’s opponent must meet. So doing, the pleadings ensure procedural fairness, hence in R v Associated Northern Collieries Isaacs J said:[11]
I take the fundamental principle to be that the opposite party shall always be fairly appraised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms “surprise,” but he is not entitled to be told the mode by which the case is to be proved against him. … “
[8] Bruce v Oldhams Press Ltd [1936] 1 KB 697 at 712 (Scott LJ).
[9] See Bruce v Oldhams Press Ltd [1936] 1 KB 697.
[10] See rule 98(2)(b) of the Supreme Court Civil Rules 2006 (SA).
[11] (1910) 11 CLR 738 at 740-741.
Not infrequently material facts properly pleaded may need to be supplemented by particulars provided in accordance with rule 70(1) MCCR in order that the plaintiff’s case be sufficiently disclosed.[12] Generally speaking, particulars may be understood as adding flesh to the bones of the material facts in order that a party’s case be understood. So viewed, particulars are not material facts. In combination, pleadings, supplemented by particulars, ensure not only procedural fairness, but that issue is clearly joined in any defence or reply where issues are disputed.
[12] See generally Bruce v Oldhams Press Ltd [1936] 1 KB 697; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340.
Before turning to consider whether Mr Howley’s particulars of claim satisfy the above requirements it should be noted that in dealing with any argument concerning pleadings, like the application of all procedural rules, “[r]ules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice”.[13] In this connection reference must also be made to rules 3(1)(a) and (b) MCCR. They provide:
(a) In interpreting, applying and enforcing observance of these Rules, the Court and Registrar must in all things promote the expeditious, economical and just conduct and resolution of an action or proceeding by negotiated agreement or judicial determination.
(b) These Rules are not intended to defeat the proper action brought in good faith of any party and are to be interpreted accordingly.
[13] Union Bank of Australia v Harrison, Jones & Devlin (1910) 11 CLR 492 at 504 (Griffiths CJ).
Applying and enforcing the rules to promote the expeditious, economical and just conduct and resolution of an action or proceeding in a high volume jurisdiction where very many matters are prosecuted by unrepresented litigants with no legal training demands a greater degree of tolerance and patience than litigants in this Court may expect. Nonetheless, it is essential to the administration of justice that any self-represented litigant in the Magistrates Court inform themselves as to the requirements under the rules and use their best endeavours to comply.
In the present case, the order made on 17 August 2018 concerned Mr Howley’s amended particulars of claim dated 18 July 2018. The original particulars of claim were, as mentioned above, struck out on 22 June 2018 for failing to comply with the rules as to pleadings and failing to disclose a cause of action. Mr Howley was granted an indulgence and permitted time in which to file fresh particulars of claim that complied with the rules. He was on notice of the need to plead any claim in a manner that accorded with the rules. His amended particulars of claim reflect his attitude toward the rules and procedures to the extent that he has chosen to be argumentative and offensive rather than address the requirements of the rules.
The amended particulars of claim do not state the name of the cause of action. Of itself the failure to state the name of a cause of action would not warrant that the action be struck out and dismissed if the material facts as pleaded disclose an identifiable cause of action known to the law. The same may be said of the failure in the present case to articulate the basis of the cause of action pleaded.
In the amended particulars of claim Mr Howley appears to assert that Magistrate Forrest, officers of the Elizabeth Magistrates Court and Dr Ghan’s solicitors were all motivated to act to Mr Howley’s detriment after being provided with an OIM by the police. No factual basis for this allegation is pleaded nor how it is linked to Mr Howley’s consultation with Dr Ghan and what, if any, harm, loss or damage followed. Rather than attend to his pleadings Mr Howley has chosen to be offensive. The allegation is scandalous.
Focusing more particularly on the assertions against Dr Ghan, the pleadings do not identify when and where Mr Howley consulted Dr Ghan nor when the breach of any duty or obligation occurred. As the Magistrate made plain, time could well be an issue depending upon when the asserted act is said to have occurred. Dr Ghan forwarded a report to Dr Asz that, judging by its date, suggests the action is time barred.
Mr Howley contends that Dr Ghan should not have prepared his report and should not have forwarded it to Dr Asz. Nowhere is there identified by name or description the body of law that holds a person liable in damages for such conduct. Is it a breach of confidence or privacy that is asserted? If it is the latter, questions arise as to whether the cause of action is known to the law. If it is the former, bearing in mind the referral from Dr Asz and that Dr Ghan’s letter is addressed to Dr Asz, what is the nature of the breach? Perhaps it is neither. At one point Mr Howley suggested his cause of action was a form of defamation. At another, fraud. The point is Dr Ghan should not have to guess.
Then there is the question of the harm, loss or damage caused and the scale of the same. Is it confined to the disclosure of the report to Dr Asz? If it is based upon the dissemination of the report more widely, to whom was it disseminated, when, with what consequence and how is this linked to Dr Ghan? There is also the question of how such action results in Dr Ghan being responsible for other medical professionals who have not provided Mr Howley with the assistance he would like.
As to the remedies sought, where is the power to order that the report be purged from all files upon which a copy is contained? What are those files? With respect to Mr Howley’s claim for damages in the amount of $380,000, it appears arbitrary.
My purpose in asking the questions I have is to highlight the inadequacy of the claim as pleaded.
I agree with the Magistrate that Mr Howley’s amended particulars of claim do not comply with rules 98 and 99 SCCR as picked up by rule 24(1)(b) MCCR. I agree that no cause of action is identified nor the date upon which that cause of action is said to arise. The amended particulars were the result of Mr Howley being given an opportunity to plead his case properly in a manner compliant with the rules. The Magistrate afforded him an indulgence at the expense of Dr Ghan. He did not take advantage of that indulgence. As I said above, it is important to the expeditious disposal of judicial proceedings that the parties, including unrepresented litigants, inform themselves as to the requirements of the rules. Mr Howley has not done so.
Mr Howley’s amended particulars of claim do not comply with the rules of pleading and do not disclose a cause of action. They do not fulfil the function that pleadings are intended to serve. They are embarrassing in the sense that they do not enable either Dr Ghan or the court to determine the issues to be tried.
In view of the allegations Mr Howley has made and his submissions, I indicate that I have not received nor sighted in the course of these proceedings any document entitled “Offender Identification Module” relating to him or anyone else. Further, there is nothing to indicate that either of the Magistrates who dealt with Mr Howley’s matter sighted such document. There is no such document on the file forwarded to this Court in accordance with rules. Mr Howley admitted that he had no evidence to prove that the Magistrates did sight the document. As I said, his allegations are scurrilous.
I accept that Mr Howley is convinced that he has been wronged. He presents as a man in pain, frustrated by his ill-health and the seeming inability of the professionals to relieve his circumstances. He strikes me as the sort of plaintiff of whom Deane J spoke in Staats.
In my view it was open to the Magistrate to strike out Mr Howley’s amended particulars and dismiss his claim under rule 86 MCCR. I dismiss Mr Howley’s appeal.
I turn to consider Dr Ghan’s appeal.
Dr Ghan’s Appeal
a. Costs and reasons
The duty upon the judicial branch to provide reasons for decisions and the ambit of that duty are well known. The relevant principles were conveniently distilled by the Full Court in Resi Corporation v Munzer.[14] I do not repeat them. A failure to provide reasons is an error of law. A failure to provide adequate reasons may result in an appeal being allowed if this Court is frustrated in discharging the appellate function.
[14] [2016] SASCFC 15 at [71] (Lovell J, Sulan and Stanley JJ agreeing).
Police v Pericic was a case in relation to which a Magistrate provided no reasons for awarding costs against the prosecution after acquitting the respondent of assault.[15] White J said:[16]
The content of reasons to be given for a judicial decision varies according to the circumstances and context of the decision being made. In relation to questions of costs, it is quite common for very succinct reasons to be given. That is because of the broad nature of the discretion usually being exercised. It would not have been at all surprising in this case if the magistrate had given only brief reasons for his decision. But the parties were entitled at least to brief reasons explaining why the magistrate thought it appropriate to depart from the scale in the Rules, and how it was that he had reached the figure of $11,500.
[15] (2008) 100 SASR 141.
[16] Police v Pericic (2008) 100 SASR 141 at [11].
As to the discretion to award costs, s 37(1) of the Magistrates Court Act 1991 (SA) (MCA) provides:
Subject to this Act and the rules, costs in any civil proceedings will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
By virtue of the amount Mr Howley claimed his action was not a minor civil action with the consequence that the constraint on an award of costs contained in s 38(5) MCA did not apply.
Rule 106(1) MCCR provides:
(1) Subject to these Rules or to an order of the Court, the successful party in an action (other than a minor civil action) is entitled on judgment to costs against an unsuccessful party, or any other party that the Court may order, in accordance with the following principles. Where a judgment is for a sum of money the costs including disbursements in Cost Scale 1 in the Third Schedule applicable to the sum of money claimed at each stage of the litigation are totalled (the total costs).
(a) Where more than half of the judgment is for a liquidated sum or sums if judgment is for the defendant it will be awarded the total costs and where judgment is for the plaintiff it will have costs calculated by multiplying the total costs by this fraction:
the judgment sum
the amount claimed
(b) Where half or less of the judgment is for a liquidated sum if judgment is for the plaintiff it will be awarded the costs including disbursements in Cost Scale 1 in the Third Schedule applicable to the judgment sum and where judgment is for the defendant it will be awarded the total costs.
(c) Where judgment is in respect of an action that is not an action for a sum of money the Court may determine which party is the successful party and the amount claimed or the judgment sum for the purpose of Cost Scale 1 in the Third Schedule.
(d) Where the plaintiff discontinues or reduces any aspect of its claim by filing and serving a notice under Rule 88 the amount claimed is reduced accordingly the day after the amendment or admission is filed and served.
(e) Where a defendant files and serves an admission of part of the plaintiff’s claim the amount claimed is reduced accordingly from the day after the admission is filed and served. If the plaintiff pursues the balance of its claim for the purposes of the formula in Rule 106(1)(a) any judgment sum will exclude the part admitted by the defendant from the day after it is admitted. If the amount admitted is not paid within 7 days plus the costs applicable on the scale for that sum and any interest due the plaintiff is entitled to sign judgment for the amount admitted, plus costs applicable on the scale plus any interest without that prejudicing its rights in relation to the balance of the amounts claimed in its action.
“Judgment” is defined in rule 2 MCCR as meaning “a judgment, declaration, decree, decision or order of the Court disposing of an action, and includes an interlocutory judgment or order”. In Rayner v Pethick Bleby J said:[17]
[17] [2006] SASC 70 at [11]-[14].
Section 37(1) of the Magistrates Court Act is cast in similar but not identical terms to s 40(1) the Supreme Court Act 1935. Both sections confer a discretion on the Court said to be subject to the Rules of Court. Rule 106(1) of the Magistrates Court (Civil) Rules makes a provision similar to that of r 101.02 of the Supreme Court Rules 1987 which provides that subject to the rules, the costs of and incidental to a proceeding shall follow the event unless the Court otherwise orders.
The effect of such provisions was considered by the Full Court in Copping & Ors v ANZ McCaughan Ltd (No.1). It was argued that r 101.02 was a qualification on the discretion conferred by s 40 of the Supreme Court Act. King CJ, delivering the judgment of the Court, said:
The existence of s 40 is also an important, even controlling factor, in the construction of the rule. It is true that the section is expressed to be “subject to the rules”. Nevertheless the legislative intention is plainly to confer on courts and judges an unfettered discretion as to costs. A construction of a rule of court which practically negates the statutory provision is not lightly to be adopted. It may well be that the rule, so construed, would be invalid. Where a statutory provision is made subject to Rules of Court, the rules may prescribe procedures which condition the operation of the statutory provision or limit the mode of its operation. They may even modify or exclude its operation in defined circumstances. But a general provision in a Rule of Court which substitutes a different rule across the board for that prescribed by the statue [sic] would seem to me to be invalid as repugnant to the statute.
It follows that r 106(1) of the Magistrates Court (Civil) Rules cannot fetter the discretion conferred on a Magistrate by s 37(1) of the Magistrates Court Act, neither does it purport to do so because the rule itself is expressed to be subject to an order of this Court. The discretion is at large, but it cannot be exercised capriciously. As King CJ went on to say in Copping:
Where costs are in the discretion of the court, the discretion must nevertheless be exercised judicially. A successful party has a reasonable expectation of obtaining his costs. The judge ought not to exercise his discretion against a successful party on grounds wholly unconnected with the cause of action: Donald Campbell & Co Ltd v Pollak [1927] AC 732. I think that r 101.02(1) does no more than express in the rules that well established principle. The reference to costs following the event is an expression of the general expectation that the successful party will get the costs. The phrase "unless the court otherwise orders" reflects the unfettered discretion of the judge to fashion the order for costs as he sees fit in the interests of justice.
There is therefore an expectation that, in most cases, costs will follow the event. Nevertheless, as in the Supreme Court Rules, there are other matters prescribed in the Magistrates Court (Civil) Rules which must be considered by a Magistrate in exercising that discretion. …
[footnotes omitted]
Consequently, once the Magistrate ordered that Mr Howley’s claim be struck out, Dr Ghan was prima facie entitled to an award of costs.
The rules do not deal with indemnity costs. Section 37(1) makes no mention of the basis upon which an award of costs may be made. I can detect nothing in the text or context of the MCA that warrants reading down the discretion to award costs to be limited to a particular basis or bases. In my view, the power conferred is broad enough to make an award of the known bases, or, indeed, in a lump sum. The breadth of the discretion exists in order that justice may be done. The only limitation is that the discretion be exercised judicially.
Ordinarily, the starting position for a court that is persuaded to make an award of costs in favour of a party and is not considering an award in a lump sum, is that such an award be on a party party basis. In Colgate-Palmolive Co v Cussons Pty Ltd (Colgate-Palmolive) Sheppard J helpfully provided the following guidance:[18]
In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (supra) at 141 said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (supra) at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at p 6) similar views in Ragata (supra).
Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
[18] (1993) 46 FCR 225 at 233-234.
Colgate-Palmolive was referred to with approval by Mullighan J, with whom Gray J agreed, in Krix v Citrus Board of South Australia (Krix). Krix was a case concerning the discretion of a magistrate to award costs on a solicitor and client basis under rule 106(4) of the then Magistrates Court (Civil) Rules 1992 (SA).[19] Mullighan J said: [20]
… as Sheppard J said in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 234:
The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party-and-party basis.
The categories for the award of indemnity costs are not rigid or closed: Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies J, 5 March 1993) and TETIJO Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991). Both of these cases are referred to by Sheppard J, with approval in Colgate Palmolive. They were concerned with indemnity costs but they may be applied in consideration of the circumstances in which “good cause” is established under r 106(4). It is established by these cases that the discretion is absolute and unfettered but must be exercised judicially: see also Groom v Earthmoving Contractors Association of South Australia Inc (No 2) [2001] SASC 241.
[19] (2003) 87 SASR 229.
[20] Krix v Cirtus Board of South Australia (2003) 87 SASR 229 at [45]-[46].
Mullighan J went on to state that a magistrate should not lightly make orders for solicitor and client costs before adding:[21]
… The Magistrates Court exercises civil jurisdiction which is extensive and important. Those against whom unmeritorious claims are made are entitled to appropriate protection of the court, including by justifiable orders for costs. If a party has been shown to be wrong-headed and his or her case is lacking in merit, a solicitor and client order may well be appropriate…
[21] Krix v Cirtus Board of South Australia (2003) 87 SASR 229 at [48], [49].
Respectfully, I agree. The same may be said in relation to an application for an award of costs on an indemnity basis.
b. Submissions
Counsel for Dr Ghan submitted that the Magistrate erred in exercising her discretion to award costs fixed in the sum of $500.00 and in failing to provide reasons as to how she arrived at that figure. Counsel contended that the Magistrate ought to have awarded Dr Ghan costs on an indemnity basis or, in the alternative, on a solicitor and client basis. Either order would be justified having regard to the content of Mr Howley’s amended particulars of claim (including the baseless allegations made against Dr Ghan, Magistrate Forrest and the Elizabeth Magistrates Court), the inadequacy of the original particulars of claim, and the refusal to accept Dr Ghan’s offer as conveyed in the letter of 24 May 2018 and the decision to continue. In this latter regard counsel also referred to the warning that Magistrate Forrest gave to Mr Howley on 22 June 2018 that he risked costs if he did not file amended particulars of claim that were compliant with the rules.
Counsel advised that up to the conclusion of the Magistrates Court proceedings Dr Ghan’s costs were in the order of $2,500.
In response Mr Howley submitted that no order for costs should be made against him, even though he conceded that the general rule is that costs follow the event. He maintained that his claim was genuine and legitimate, and that his claim did advance a cause of action and was acceptable. Mr Howley added that to attain justice he was required to pursue his action in the Magistrates Court.
c. Analysis and conclusion
In the present case, the Magistrate provided no reasons in relation to the order for costs. It is not possible to discern the basis upon which the Magistrate determined that an award fixed in the sum of $500 was appropriate. Clearly she has rejected the application for an award of costs on an indemnity basis, but why? The application was not without foundation. Counsel for Dr Ghan had articulated three reasons justifying the application, all of which were referred to in Colgate-Palmolive as providing reason to consider an award of indemnity costs.[22] As White J held in Police v Pericic parties are entitled to at least brief reasons for an order as to costs.[23] The failure to provide reasons amounts to an error of law. Having arrived at this conclusion it is unnecessary for me to consider whether the Magistrate also erred in exercising her discretion as to the quantum of the award made.
[22] (1993) 46 FCR 225.
[23] 100 SASR 141 at [11].
I allow Dr Ghan’s appeal and set aside the Magistrate’s order as to costs. I consider it would be appropriate for this Court to exercise the costs discretion afresh. I would refuse the application to award Dr Ghan costs on an indemnity basis. I accept that the allegations made against Dr Ghan, Magistrate Forrest and the Elizabeth Magistrates Court are scandalous, I accept that Mr Howley’s claim as pleaded enjoyed no prospects of success, and I accept that he was warned of the risk of continuing with a hopeless action. Nonetheless, bearing in mind the exceptional nature of an award of indemnity costs, my assessment of Mr Howley’s character and his circumstances, and considering the allegations against Dr Ghan, Magistrate Forrest and the Court to occupy the low end of the range of seriousness, I consider it would be unduly heavy handed to make the order sought. I add that whilst I consider the allegations offensive and scandalous, they are of a nature that borders on the fantastic such that whilst they occasion annoyance and the expense of having to respond formally, they do little more.
Mr Howley’s claim caused Dr Ghan to instruct solicitors to prepare a defence, the letter of 24 June 2018 and the interlocutory application to which I have referred. Twice brief appearances in court were required (on the third occasion counsel appeared by telephone). On the hearing of the appeal Mr Milsom advised that Dr Ghan’s costs to the conclusion of the proceedings in the Magistrates Court were approximately $2,500. In the circumstances I order that Mr Howley pay Dr Ghan’s costs fixed in the amount of $2,000.
Orders
I order:
1. The appeal is dismissed.
2.The cross-appeal is allowed and the order of the Magistrate dated 17 August 2018 awarding Dr Ghan costs of the interlocutory application and attendances on the action fixed in the amount of $500 is set aside. I substitute an order that Mr Howley pay Dr Ghan’s costs of the interlocutory application and attendances on the action fixed in the amount of $2,000.
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