Howley v Ghan [No 2]

[2019] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

HOWLEY v GHAN [NO 2]

[2019] SASC 22

Judgment of The Honourable Justice Hinton

28 February 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

Application for costs.

In Howley v Ghan [2019] SASC 4 this Court dismissed Mr Howley’s appeal against an order of a Magistrate striking out his claim filed in the Magistrates Court and dismissing his related action. This Court also allowed Dr Ghan’s cross-appeal against a costs order made by the Magistrate consequent upon the Magistrate striking out Mr Howley’s claim and dismissing his action. Subsequently, Dr Ghan made an application in this Court for his costs of the appeal and cross-appeal fixed in the sum of $2,750.

Held, allowing the application, Mr Howley is to pay Dr Ghan’s costs of the appeal and cross-appeal fixed in the sum of $2,000.

Howley v Ghan [2019] SASC 4, considered.

HOWLEY v GHAN [NO 2]
[2019] SASC 22

Magistrates Appeal

HINTON J:

1. On 25 January 2019 I dismissed Mr Howley’s appeal against orders made by a Magistrate striking out a claim Mr Howley had filed in the Magistrates Court against Dr Ghan and dismissing the action.[1] At the same time I allowed Dr Ghan’s cross-appeal against the costs order made consequent upon the Magistrate striking out Mr Howley’s claim and dismissing the related action.

   [1]    Howley v Ghan [2019] SASC 4.

2. Counsel for Dr Ghan applied for the costs of the appeal and cross-appeal fixed in the sum of $2,750. Due to his ill health I had excused Mr Howley from attending judgment, undertaking to mail a copy of the judgment and perfected orders to him. This was done. In addition, the transcript of proceedings on 25 January 2019 was sent to Mr Howley and orders made giving him time in which to file written submissions in response to Dr Ghan’s application for costs.

3. I indicated on 25 January 2019 that, subject to considering any written submissions that Mr Howley might wish to make, I was disposed to grant the application and order that Mr Howley pay Dr Ghan’s costs of the appeal fixed in the sum of $2,000.

4. On 19 February 2019 the Court received Mr Howley’s written submissions (FDN 6). In those written submissions Mr Howley takes the opportunity to question my integrity, accuse me of abusing his human rights, disagree with my judgment, identify where he says I went wrong and, to some extent, re-argue his appeal. Against this background he states:

   So the matter of costs is one I view with a great deal [of] contempt and state for the record I could not disagree any stronger.

   To pay costs to Dr Ghan is the same as asking holocaust survivors to pay restitution. This man is despicable as are you your Honour, you know costs are beyond my capacity to pay except in very small installments so do as you will – I intend to appeal.

5. Ordinarily costs follow the event. Any litigant who appeals or contests an appeal does so bearing the risk of an adverse costs order. Impecuniosity does not immunise a litigant from costs. Rather, generally speaking, the courts operate on the basis that in instituting or defending proceedings a litigant will have weighed the risk of an adverse costs order and determined to run it. In this way, the risk of an adverse costs order often has a sobering effect on litigants.

6. In my view Dr Ghan has done nothing in defending Mr Howley’s appeal and prosecuting his cross-appeal to disentitle him to an award of costs. No reason arises not to apply the ordinary rule. That rule does not entitle the successful party to full indemnification for all costs incurred. In this matter I am of the opinion that an award of costs in Dr Ghan’s favour fixed in the sum of $2,000 adequately compensates him for the cost incurred in defending Mr Howley’s appeal and prosecuting his own. In reaching this figure I have had regard to the fact that Dr Ghan would have incurred expense in instructing solicitors and obtaining advice from them on his and Mr Howley’s appeals. He would also be billed for the drafting, filing and service of his notice of cross-appeal and the written submissions filed in this Court in addition to having to pay counsel’s fee to attend the hearing of the appeal and cross-appeal (which lasted approximately one and a half hours) as well as judgment delivery.

7. Accordingly, I order that Mr Howley pay Dr Ghan’s costs of the appeal and cross-appeal fixed in the sum of $2,000.