James Boyd Norman v Sandra Darlene Spiers

[2005] ACTCA 14

JAMES BOYD NORMAN v SANDRA DARLENE SPIERS
[2005] ACTCA 14 (13 April 2005)

COSTS – application for certificate under Federal Proceedings (Costs) Act 1981 – whether applicable to appeals from single judge of Supreme Court to Court of Appeal.

Federal Proceedings (Costs) Act 1981, ss 6(1), 3(1)(f), 3(1)(h)
Supreme Court Amendment Act 2001 (ACT)
Supreme Court Act 1933 (ACT), s 37E(1)
Practice Direction No 10/1981 (1981-82) 38 ACTR 27

Norman v Spiers [2004] ACTCA 25
Phipson Nominees Pty Ltd v French (1989) 91 ALR 509

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No ACTCA 26-2004
No SC 624 of 2002 

Judges:  Crispin P, Connolly and Selway JJ  
Court of Appeal of the Australian Capital Territory
Date:  13 April 2005

IN THE SUPREME COURT OF THE       )
  )          No ACTCA 26-2004
AUSTRALIAN CAPITAL TERRITORY    )          No SC 624 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAMES BOYD NORMAN

Appellant

AND:SANDRA DARLENE SPIERS

Respondent

RULING

Judges:  Crispin P, Connolly and Selway JJ
Date:  13 April 2005
Place:  Canberra

THE COURT RULES THAT:

1. there is no jurisdiction for the Court of Appeal of the Australian Capital Territory to entertain an application for a costs certificate.

IN THE SUPREME COURT OF THE       )
  )          No ACTCA 26-2004
AUSTRALIAN CAPITAL TERRITORY    )          No SC 624 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAMES BOYD NORMAN

Appellant

AND:SANDRA DARLENE SPIERS

Respondent

Judges:  Crispin P, Connolly and Selway JJ
Date:  13 April 2005
Place:  Canberra

REASONS FOR RULING

THE COURT:           

1. This Court on 10 December 2004 delivered judgment in this appeal, upholding the appeal for the purposes of reducing the amount of the judgment from $232,452.10 to $116, 226.15, and ordering that the respondent pay the appellant’s costs of the appeal.  The respondent had sustained injuries in a motor vehicle accident on 24 December 2001 when her vehicle had come into collision with a police car being driven on official duty by the appellant.  The primary judge had found negligence, and awarded damages with no finding of contributory negligence.  Although primary liability was challenged on the appeal, the Court found that the appellant had been negligent, but that there had been contributory negligence on the part of the respondent, and so upheld the appeal and reduced the damages: Norman v Spiers [2004] ACTCA 25.

1. The respondent has made application for a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), which provides that -

Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

1. The application was made before Crispin P, who on 2 February 2005 directed that written submissions be filed and served.  The respondent’s submissions were received by the Court on 9 February 2005 and the Attorney-General’s submissions in reply were received on 10 March 2005.

1. We are of the view that the Costs Act does not apply to an appeal to the Court of Appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory (“the Supreme Court”). Before the establishment of the Court of Appeal pursuant to the Supreme Court Amendment Act 2001 (ACT), an appeal from a decision of a judge of this Court lay to the Federal Court of Australia. The Costs Act defines a “Federal appeal” to include s 3(1)(f) –

an appeal to the Federal Court from a judgment of the Supreme Court of a Territory.

1. Accordingly, it was open to a party who had succeeded at trial in the Supreme Court but had been overturned on appeal in the Federal Court to make application for a costs certificate (see for example Phipson Nominees Pty Ltd v French (1989) 91 ALR 509). There is in place a Practice Direction (10/1981) in this Court to guide practitioners in the making of such applications, and that Practice Direction is reproduced at (1981-82) 38 ACTR 27.

1. The respondent/applicant for costs argues that an appeal to the Court of Appeal from a judge of this Court falls within the definition of Federal appeal in s 3(1)(h) as “an appeal to the Supreme Court of a Territory from a judgment of another court of that Territory”.  It is submitted, correctly, that the Supreme Court, when exercising its appellate jurisdiction, which jurisdiction was formerly exercised by the Federal Court, is to be known as the Court of Appeal (s 37E(1) of the Supreme Court Act 1933 (ACT)), but that the court is the Supreme Court. On that basis, it seems to us, it follows that an appeal to the Supreme Court (sitting as a bench of three judges and exercising appellate jurisdiction and known as the Court of Appeal) from a single judge of the Supreme Court, cannot be said to be an “appeal to the Supreme Court of a Territory from a judgment of another court of that Territory”. This is not an appeal from another court, but rather an appeal to an appellate division of the Supreme Court. It would, it seems to us, be quite artificial to construe an appeal from a single judge or the Master of the Supreme Court, to a bench of three judges sitting as the Court of Appeal, but still exercising the jurisdiction of the Supreme Court, as an appeal to the Supreme Court of a Territory from a judgment of another court of that Territory.

1. It is significant to us that the definition of Federal appeal does not include an appeal to a State Court of Appeal or Full Bench from a single judge of a State Supreme Court.  Moreover, the definition of Territory for the purposes of s 3 does not include the Northern Territory, so that it is clear that no costs certificate would be available in proceedings such as these in any other State or Territory Supreme Court.  We are of the view that there is no jurisdiction for this Court to entertain an application for a costs certificate.

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:  13 April 2005

Written submissions by the respondent dated 9 February 2005.

Solicitor for the respondent:                   Higgins Solicitors

Written submissions from Commonwealth Attorney-General’s Department dated 10 March 2005.

Date of application:  2 February 2005

Date ruling reserved:  10 March 2005

Date of ruling:  13 April 2005