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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KD v AE (No 2)

Details

AGLC: KD v AE (No 2) [2020] SASC 28
Case: [2020] SASC 28
Decision Date: 3 March 2020

CaseChat Overview and Summary

In the case of KD v AE (No 2), the parties were involved in a dispute that was being appealed to the Supreme Court of South Australia. The respondent had requested that the judgment on appeal be recalled or set aside and had raised complaints about the reasons given in the judgment. The appellant also intended to file an appeal to the Full Court and had 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.

The legal issues before the court included whether the respondent's complaints about the reasons for the judgment could be addressed through the informal process of emailed submissions, and whether the appellant's application for costs should be deferred pending consideration of her rule 242 application. The court had to determine whether the justice of the case required it to correct an error in the judgment, vary the judgment, or set aside the judgment and reopen the action.

The court held that it was not prepared to deal with the respondent's complaints about the reasons for the judgment through emailed submissions, and that a formal application under rule 242 of the Supreme Court Civil Rules 2006 (SA) was required. The court also held that the timetable for costs submissions was to remain in place but that it would reserve on the question of costs pending the outcome of the appellant's foreshadowed application. The court further held that, if warranted, it may allow the parties to make a supplementary costs submission and that the appellant's complaints about the judgment could be put by her in support of her position on costs.

The court determined that the respondent's application for costs was to remain in place and that the appellant's application for costs would be deferred pending consideration of her rule 242 application. The court also held that it would reserve on the question of costs arising with respect to the appellant's foreshadowed application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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