KD v AE (No 2)

[2020] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KD v AE & ANOR (No 2)

[2020] SASC 28

Judgment of The Honourable Justice Nicholson

3 March 2020

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

Appellant was unsuccessful in an appeal against a Magistrate’s confirmation of an interim intervention order made against the appellant pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The respondents have sought an order that the appellant pay the respondents’ costs of the appeal fixed as a lump sum in the amount of $10,000 or, in the alternative, in the amount of $500. The appellant opposes the respondents’ application and seeks an order for costs in her favour in the amount of $500 plus filing fee.

Held:

1.      The respondents’ application for costs is allowed.

2.      The appellant is to pay the respondents’ cost of the appeal in the amount of $4,000.

3.      The appellant’s application for costs is dismissed.

Sentencing Act 2017 (SA) s 120; Supreme Court Civil Rules 2006 (SA) r 242, r 263; Supreme Court Civil Supplementary Rules 2014 (SA) r 238, referred to.
KD v AE & Anor [2019] SASC 209; Northern Territory of Australia v Sangare (2019) 93 ALJR 959; Machado v Underwood (No 2) [2016] SASCFC 12, considered.

KD v AE & ANOR (No 2)
[2020] SASC 28

Magistrates Appeal: Criminal

NICHOLSON J.

Introduction

1. The appellant appealed against a final intervention order made by a Magistrate.  The appeal essentially failed.[1]

   [1]    KD v AE & Anor [2019] SASC 209. The appeal was allowed in part, but with the consent of the respondent and only in order to make minor variations to two of the conditions of the intervention order out of an abundance of caution.

2. The respondents have sought an order that the appellant pay the respondents’ costs of the appeal fixed as a lump sum in the amount of $10,000 or, in the alternative, in the amount of $500.  The appellant opposes the respondents’ application and seeks an order for costs in her favour in the amount of $500 plus filing fee.

3. The principal judgment in this matter was delivered on 9 December 2019.  The appellant did not attend at the time judgment was delivered. I made directions giving the respondents seven days within which to make an application for costs supported by a written submission.  I directed that the appellant was to provide any written response within 14 days of receipt of the respondents’ submission.  The appellant was notified of these directions.  Correspondence between the appellant and these chambers on a number of matters then ensued.  During this correspondence, the directions relating to costs issues were modified.

4. However, of present relevance, the respondent by email dated 10 December 2019, also requested that the judgment on appeal be recalled or set aside and raised a number of complaints about the reasons.  The respondent in another email also indicated that she wished to file an appeal to the Full Court.  It was explained to the appellant that if she wished to make a substantive application, such as one seeking an order that errors in the judgment be corrected, pursuant to rule 242 of the Supreme Court Civil Rules 2006 (SA),[2] prior to or in lieu of lodging an appeal, she should do so by filing and serving a formal application and any supporting documentation in accordance with the requirements in the Rules, following which any such application would be listed for oral hearing.  It was made clear to the appellant that, whilst I was prepared to deal with the question of costs with the assistance of emailed submissions, I was not prepared to deal with any substantive (rule 242) application in this informal manner.

   [2]    Rule 242 of the Supreme Court Civil Rules 2006 (SA) is as follows:

   242—Power to correct, vary or set aside judgment

   (1)The Court may correct an error in a judgment at any time.

   (2)If satisfied that the justice of a case so requires, the Court may—

   (a)vary a judgment; or

   (b)set aside a judgment and reopen an action.

   Example—

   The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.

   (3)The Court may act under this rule on its own initiative or on application by a party.

   (4)If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.

5. In response, the appellant by email dated 10 December 2019, advised that she would be proceeding with an application pursuant to rule 242 and requested that any requirement for her to make a costs application and to respond to the respondent’s costs application be deferred pending consideration of her rule 242 application.

6. By email dated 11 December 2019 from these chambers, the parties were advised that the timetable for costs submissions was to remain in place but that I would reserve on the question of costs pending the outcome of the appellant’s foreshadowed application.

   Subject to that outcome and, if warranted, his Honour may allow the parties to make a supplementary costs submission.  As well as determining the initial costs question, his Honour also will need to determine any question of costs arising with respect to your foreshadowed application.

7. By email of 17 December 2019, the respondents provided their submissions in support of their application for costs.  By email of 6 January 2020, the appellant provided her submissions in response to the respondents’ application and in support of her own application for costs.  The appellant also advised that “an application to correct incorrect judgment pursuant to rule 242 is pending; with the following grounds and arguments is pending [sic]”.  Thereafter, the appellant set out again, and at some length, the complaints about the reasons for judgment earlier provided.  As I understand the appellant’s intention here, the submissions as to her complaints about the judgment were put by her in support of her position on costs.

8. By email of 8 January 2020 to the appellant (copied to the respondents), my associate advised as follows.

   Dear Ms D

   Thank you, I confirm receipt of the application for costs and costs submissions.

   I advise that the Supreme Court Civil Rules do not impose a time limit within which to file any application to reopen an action pursuant to rule 242. However, a delay in filing such an application with the Court Registry may be a factor which goes to any exercise of discretion.

   His Honour indicates that it would be convenient to deal with both applications (the costs application and the reopening application) at the same time. However, given that the costs issue must be dealt with promptly, if the reopening application is not filed expeditiously his Honour will need to resolve the costs issue as a separate matter.

   Kind regards

   Associate to the Honourable Justice Nicholson

   Supreme Court of South Australia

9. No application to re-open pursuant to rule 242 has as yet been filed.  In the circumstances, I have taken the view that sufficient time has been allowed and that the question of costs should now be resolved in any event and on the basis of the judgment according to its terms, that is, without at this stage giving any consideration to the appellant’s complaints.  If an application under section 242 were to be made and were to succeed the costs of the appeal can be revisited.

10. Whilst the original proceedings were heard within the criminal jurisdiction of the Magistrates Court, the appeal (as is always the case) fell within this Court’s civil jurisdiction.  A decision on costs in the civil jurisdiction is discretionary.  Nevertheless, the ordinary approach is that costs should follow the event.[3]  There is nothing in my reasons for judgment to suggest that this is not a case where costs should follow the event.  The appellant’s application that she should have her costs of the appeal is not tenable.  The real issue is the basis on which the respondents should be awarded their costs.  The Court has power to award costs by way of a lump sum so as to avoid the additional time and expense of a costs adjudication.[4]  An order for costs is only to be compensatory and not as a means to punish the losing party.

    [3]    Rule 263 of the Supreme Court Civil Rules 2006 (SA) and rule 238 of the Supreme Court Civil Supplementary Rules 2014 (SA).

    [4]    Rule 264 of the Supreme Court Civil Rules 2006 (SA).

11. However, supplementary rule 238 makes special provision with respect to costs orders for civil appeals from the Magistrates Court pursuant to section 42 of the Magistrates Court Act 1991 (SA).

    238—Costs in criminal appeals to a single Judge

    (1)This supplementary rule applies to appeals to a single Judge of the Court under section 42 of the Magistrates Court Act 1992 or section 22(2)(c) of the Youth Court Act 1993 against a judgment of a Magistrate in a criminal action (Magistrates criminal appeal).

    (2)Costs in a Magistrates criminal appeal are in the discretion of the Court.

    (3)The general rule is that costs follow the event and in the ordinary case costs fixed at $500 plus the appeal filing fee will be awarded in favour of a successful appellant and costs fixed at $500 will be awarded in favour of a successful respondent.

    (4)The general rule that costs follow the event is subject to the discretion of the Court.

    Examples—

    1    When the appellant succeeds on part of the appeal or one issue on appeal but fails on another.

    2    When a party is guilty of misconduct in relation to the original or appellate proceeding.

    3    When one party adopts an unreasonable position on appeal.

    (5)If either party intends to apply for costs in an amount other than that reflected in paragraph (3), that party is to make an application at the outset of the hearing of the appeal. In that event, the Court may fix a different amount for the purpose of paragraph (3) that will generally apply regardless of which party is successful on the appeal or may make any other order that the Court thinks fit.

    Examples—

    1    An application might be based on the complexity of the appeal requiring especially extensive preparation for the hearing of the appeal.

    2    An application might be based on the appeal being listed for an especially lengthy hearing.

    3    An application might be based on the reasonable retention of senior counsel to argue the appeal.

    (6)The Court may, if it thinks fit, dispense with the requirement in paragraph (5) that an application for costs in an amount other than that reflected in paragraph (3) is to be made at the outset of the hearing of the appeal.

12. The general rule is that costs are to be fixed at $500 but the Court does have a discretion to order a different amount.  The rule requires an application to be made at the outset of the hearing where a party intends to seek a costs award greater than $500, if successful on the appeal.  This is in order to put the other party on notice so as to better inform them as to the financial risks of continuing to press or to defend the appeal.  However, this requirement is not mandatory and the appeal court has a discretion to dispense with it. 

13. The appeal was entirely without merit. The notice of appeal sought to invoke 64 grounds which, notwithstanding that most were hopeless, required substantial work on the part of the respondents in order to resist them. The appellant used the appeal to continue to press (as she had done before the Magistrate) irrelevant matters in an attempt to justify her orchestrated campaign of public attack on the character of the respondents.  The appellant attempted to maintain unsupported character attacks on the respondents’ legal representatives.  All matters raised had to be responded to by the respondents.  As such, the appeal, in its preparation and presentation, was significantly lengthier and more complex than it should have been.

14. The appellant expressed strong and improper motivations for conducting the proceedings during the trial and the appeal, as is evident from the transcripts and the judgments at trial and on appeal.  As such, I have no doubt whatsoever that she would have continued with the appeal even if she had been put on notice that a special costs order would be sought at the end of the appeal.  For these reasons, I see fit to and will dispense with the requirement in supplementary subrule 238(5).

15. The respondents seek a lump sum order in the amount of $10,000. They have particularised the work done in their written submissions as follows and in terms which I accept as reliable.

    31. Amount

    31.1   The respondents seek a lump sum order for $10,000.00. Such amount is a fraction of the amount of costs incurred and represents a very modest award when compared with the amount actually incurred. It does not cover the entirety of preparation and does not cover the fees incurred by the instructing solicitor.

    31.2   The appeal required substantial attendances by senior counsel, including:

    31.2.1 the reading and noting of the judgements, exhibits and the transcript of a 17 day trial;

    31.2.2 the reading, consideration and digestion of a largely incomprehensible and unparticularised set of grounds and outline of argument;

    31.2.3 the preparation of an outline which was hindered by the defects in the grounds and outline;

    31.2.4a one day hearing at which submissions were made by the respondents before the appellant had the opportunity to put on, and in ignorance of, separate written submissions which the appellant had weeks to prepare after the oral hearing;

    31.2.5 the consideration of further irrelevant issues raised by the appellant.

    31.3   Senior counsel’s total time in working on this case numbered some 6 days or thereabouts.

    31.4   There was a similar amount of work required by instructing solicitor.

    31.5   The taxed party and party costs would be far, far more than the modest $10,000.00 amount that is sought.

16. I accept that the work done by the respondents’ legal advisers would justify the charging of scale costs in the many thousands of dollars and well towards the $10,000 now claimed and would have done so even if junior, rather than senior, counsel had been engaged.  In all the circumstances, I am satisfied that an award of costs in the amount of $4,000 is justified.  However, the appellant made this submission.

    The intervention order has restricted my income, and limited my ability to work in my profession as independent contractor in aged care.  Precious [sic: previous] to that order, I was employed in such a capacity and had to give up such work due to not being allowed to have an intervention order for such work, and also being restricted in my movements when my work requires me to transport clients freely.  Thus the applicants have caused me to have no income.

17. Any lack of income cannot be laid at the feet of the respondents. The appellant started this ball rolling.  Further, ordinarily, a party’s impecuniosity is no bar to an adverse costs order being made against that party,[5] although section 120 of the Sentencing Act 2017 (SA) provides for an exception to this general position in certain circumstances. It may be that the appellant’s submission was directed to section 120. That section provides as follows.

    [5]    Northern Territory of Australia v Sangare [2019] HCA 25, (2019) 93 ALJR 959; Machado v Underwood (No 2) [2016] SASCFC 123 at [45].

    120—Order for payment of pecuniary sum not to be made in certain circumstances

    (1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—

    (a)     the defendant would be unable to comply with the order; or

    (b)     compliance with the order would unduly prejudice the welfare of dependants of the defendant,

    (and in such a case the court may, if it thinks fit, order the payment of a lesser amount).

    (2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.

    (3)In considering whether the defendant would be able to comply with the order, the court should have regard to any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.

18. The Sentencing Act 2017 applies to cases where a person is to be sentenced for a criminal offence and provides the ground rules for the sentencing process. Section 120 has application within that context. In my view, it has no application to the present matter.

19. In any event, whilst the appellant’s income may have been affected by the existence of the intervention order in the manner described, I have no other information as to the appellant’s assets and liabilities or as to her financial commitments with respect to children or other people, other than I do understand that she has a child or children. The appellant was well presented in Court and struck me as not unintelligent and not lacking abilities. I am not satisfied that she is incapable of securing alternative employment on either a part or full time basis. Even if section 120 were to apply, I would not be satisfied that the means of the appellant, insofar as known, are such that the appellant would not be able to comply with an order that she pay the respondents’ costs in the amount of $4,000, nor am I satisfied that compliance with such an order would unduly prejudice the welfare of any dependents. 

20. I allow the respondents’ application for costs and order that the appellant pay their costs of the appeal in the amount of $4,000.  I dismiss the appellant’s application for costs.