Ireland v Hume City Council

[2014] VSC 515

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI  2014 02721

BETWEEN:

JOHN REEVES IRELAND	Appellant
– and –
HUME CITY COUNCIL	Respondent

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2014
DATE OF JUDGMENT:	10 October 2014
CASE MAY BE CITED AS:	Ireland v Hume City Council
MEDIUM NEUTRAL CITATION:	[2014] VSC 515

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NATURAL JUSTICE ― Right to be heard ― Right to prior notice of matter for determination ― Magistrates’ Court ― Civil proceedings ― Defendant appearing as litigant in person ― Application in court for judgment in default of filing defence ― Practically unwilling to hear from defendant on possible merits of defence ― Judgment given in default of non-payment of previous costs order ― Denial of natural justice ― Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr S Stafford	Hoey Solicitors

HIS HONOUR:

1. This appeal brought under s 109 of the Magistrates’ Court Act is over what that Court has recorded as a default judgment given against the plaintiff for payment of $602 and costs of $1169.18.  The order was made on a Complaint in that Court in which the Council sought 50% contribution under the Fences Act for the cost of wire and post fencing between adjoining lands; that is, Council land and the plaintiffs land in Sunbury.  A statutory Notice to Fence had been given.

1. The Council’s affidavit evidence on this appeal shows there was procedural disorder in the conduct of the case below, all at the hands of the plaintiff.  A defence prepared by Mr Ireland in person was served, but not filed.  Its contents were uninformative and, I think, embarrassing.  A subsequent defence, also not sealed, was not much better.  The Council moved for a default order.

1. That application was due to proceed on 12 March 2014.  It was adjourned on the plaintiff’s request but a costs order was made against him for $211.  The Council’s application proceeded on 6 May 2014 before the Magistrates’ Court constituted by His Honour Mr Bentley.

1. This Court has a short transcript of what occurred at the hearing.[1]  The order made is for such a small amount (in litigation terms) that this Court must do all it can to find a legal solution or take steps to determine the appeal today before costs start accumulating.  To that end a referral has been obtained under rule 77.05 to enable an Associate Justice to hear and determine this appeal, and I heard it instantly.  I relieved Mr Ireland from the need to make submissions.  The Council made no submissions in opposition.

   [1]See exhibit CVS-16.

1. The Court acknowledges the difficulties under which the Council had to conduct the case in the Magistrates Court, and maybe perceptions of the plaintiff’s non-compliant conduct or attitude moved the Magistrate to act resolutely.  But already there is enough to see the plaintiff was denied procedural fairness.  To put it plainly, he could not get a word in to the Magistrate.  The application was, on the Magistrate’s volition (for the Council did not activate it) decided not on the absence of a defence, but on the plaintiff’s failure to pay the earlier costs order.

1. The Magistrates’ Court Rules permit the Court to order, at the time a costs order is made or thereafter, that if the party liable fails to pay the costs of an interlocutory order, then in the case of a defendant the defence can be struck out – see rule 63.03(3)(b).  That is prospective.  But here the Magistrate acted instantaneously, and without notice.   Before him was an application for default judgment which called for the conventional approach of finding out why a defence was not filed and seeing if there was a defence on the merits.  His Honour simply did not embark on that adjudicative exercise.  As it was, I can assume the plaintiff, a litigant in person, was there to explain himself and put forward the basis of resisting the fencing notice, as he has done before me on my questioning.  He was given no opportunity at the hearing of the application at the Magistrates’ Court.  There was conspicuous unfairness.  If his angry, bellicose and offensive conduct in my Court yesterday towards the Bench in particular is any indication, I could well understand why he might attract truncations from a Court.  But before the Magistrate, as I say, the transcript showed no repellent behaviour at all, not that such behaviour itself displaces the right to procedural fairness.  In this case, Mr Ireland he was denied any opportunity to say anything to resist the application.

1. A denial of procedural fairness, which that was, is a question of law for s 109 purposes. In addition (if there be some debate whether that was a final order under s 109) it is also a basis for judicial review and relief by way of certiorari.

1. Therefore the appeal has to be allowed.  To minimise more costs and delay the Court has fixed the countervailing costs entitlements.  I should here say that I repetitively sought, but did not receive, any meaningful submissions from Mr Ireland on the costs questions.  Worse still, the Court had to endure awful verbal abuse from him (including unrepeatable statements about the last Court hearing) eventually requiring the attendance of the Protective Security Officers.

1. The Court has had to unavoidably take an approach admittedly less rigorous that would occur in the Costs Court.  As for Mr Ireland's costs, the Court acted on a tax invoice from his erstwhile solicitors, Messrs Kavanagh Lawyers (see Court Exhibit A).  He was charged $7932 plus GST for fees and $134.20 plus GST for disbursement.  On the standard basis, I think that would be taxed down.  His own costs agreement with his lawyers informs him that his costs are liable to be reduced between 50% - 70% on taxation.  I will allow 70% of the fees and allow all disbursements because it seems a lot of time and attendances was spent on affidavit preparation and attendances.  That gives a figure of $6555 including GST.

1. But that is subject to a deduction.  On 29 July 2014, Zammit AsJ reserved costs after striking out the notice of appeal as being too defective to tolerate.  I could not ascertain why the order was for reserved costs.  The Notice of Appeal was manifestly bad.  I see no reason why Mr Ireland should not pay the ‘costs of the day’ as the Court's order described it.  I take that to mean costs on that day only.  Accordingly, I have fixed those at $1800 for counsel and $1200 for instructing solicitor.  The net figure is $3555.

1. Subsequent to the pronouncement of orders, I granted a certificate to the respondent under the Appeal Costs Act.