Khan v The Delegate of the Registrar of Motor Vehicles (No 2) - [2019] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KHAN v THE DELEGATE OF THE REGISTRAR OF MOTOR VEHICLES (No 2)
[2019] SADC 22
Judgment of His Honour Judge Clayton
26 February 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS
Appellant succeeded in overturning a decision of the Registrar of Motor Vehicles who had decided that he was not a fit and proper person to hold a driving instructor's licence - whether order for costs of appeal necessary in the interests of justice.
Held:
Not shown to be in the interests of justice.
Motor Vehicles Act 1959 (SA) s 98A; District Court Act 1991 s 42G, referred to.
Moore v The Registrar of the Medical Board (No 2) [2001] SADC 141; Marin v The Chiropractic & Osteopathy Board of South Australia (No 2) [2009] SADC 43; Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) [2015] SADC 16; Registrar of the Veterinary Surgeons Board of SA v Mooney & the Veterinary Surgeons Board of SA [2009] SADC 62, considered.

KHAN v THE DELEGATE OF THE REGISTRAR OF MOTOR VEHICLES (No 2)
[2019] SADC 22

On 18 January 2019, I ordered that the appellant's appeal from a decision of the respondent in which the respondent found that the appellant was not a fit and proper person to hold a driving instructor's licence pursuant to s 98A of the Motor Vehicles Act 1959 be allowed. Counsel for the appellant applied for costs.
The power to award costs in the Administrative and Disciplinary Division of the District Court is contained in s 42G of the District Court Act 1991 which provides that the Court can only make an order for costs if the Court considers it to be ‘necessary in the interests of justice.’
The history of the provision was given detailed consideration by his Honour Judge Smith in Moore v The Registrar of the Medical Board (No 2).[1] His Honour said:
[16] So in my view, the proper construction of s42G, and for that matter s42H, is that costs are not to be ordered simply on the basis of the successful outcome of the litigation. Rather, the phrase “necessary in the interest of justice”, requires that there be some unusual or out of the ordinary feature of the contest which demonstrates that one party in the interests of justice is entitled to an order for costs. In the ordinary course, a successful outcome will be but a qualifying requirement. To succeed in obtaining an order something further would need to be established.
[17] It is not possible to specify what additional matters would assure a favourable exercise of the discretion. However, to offer some guide, it is my view that much the same considerations which have been held to be relevant in the cases dealing with when costs will be ordered on a solicitor/client, indemnity or some other special basis, would be applicable here. There must be some special or unusual features … For instance, such costs may be awarded where a party unreasonably proceeds when he ought to have known there was no prospect of success …
[1] [2001] SADC 141, [16]-[17].
The decision of Judge Smith in Moore has been referred to in many subsequent cases. In Marin v The Chiropractic & Osteopathy Board of South Australia (No 2),[2] her Honour Judge Shaw allowed an appeal but after referring to s 42G and Moore said that she was not satisfied that any combination of circumstances or any of the factors upon which the appellant relied justified a conclusion that an award of costs against the respondent was ‘necessary in the interests of justice’. Her Honour declined to make a costs order.
[2] [2009] SADC 43
In Marksman Training Systems Pty Ltd v Registrar of Firearms (No 3),[3] his Honour Judge Tilmouth referred to Registrar of the Veterinary Surgeons Board of SA v Mooney and the Veterinary Surgeons Board of SA (No 2).[4] His Honour made an order that the respondent pay some but not all of the appellant’s costs on the basis that there had been a failure by the respondent to disclose a chart which would have made it impossible for the appellant to make an effective response. His Honour found that it was in the interests of justice to make an order in favour of the appellant because the conduct of the respondent had led to the prolongation of the proceedings.
[3] [2015] SADC 16
[4] [2009] SADC 69
The cases make it clear that whether it is ‘necessary in the interests of justice’ to make a costs order must depend on the facts of the particular case.
The appellant submitted that the compelling and unusual background circumstances described in Moore included the underlying merits of the appeal and more importantly what might be generically described as the ill-treatment of the appellant before the appeal was launched.[5] It was submitted that it was in the interests of justice for a costs order to be made in favour of the appellant in this case for the following reasons:
6.1.It should have been obvious as early as 30 January 2018 [46] and the material provided to the respondent that the appellant was not an unfit person to hold an instructor's licence and the pursuit of the matter by the respondent including defending the appeal was without any reasonable basis and put the appellant to unnecessary legal cost;
6.2.A reasonably advised respondent would not have issued the defence of the appeal and in doing so put the appellant to unnecessary costs of the appeal;
6.3 the decision-maker did not apply the relevant test as to whether the appellant was a fit and proper person [Judgment [52]];
6.4. The decision-maker did not have regard to all the available evidence [Judgment [68]]
6.5.The decision-maker fell into error in focusing on the statement of Ms Olley and Ms Longo to the exclusion of the other evidence [Judgment [69]];
6.6.The whole of the evidence established that the appellant was a fit and proper person [Judgment [71]];
6.7.As a result of the foregoing and in all the circumstances the conduct of the respondent constituted ill-treatment of the appellant.[6]
[5] Outline of argument para 5.
[6] Outline of Argument for Costs Order.
The respondent has submitted that there are no special or unusual features justifying an award of costs in this matter. The respondent disputes the appellant's contentions in paragraphs 6.1 and 6.2.
In oral submissions on 18 January 2019 it was asserted for the appellant that he had suffered financial loss by reason of his training course with Allan Miller Transport Training taking longer than had been represented to complete. One can have sympathy for the appellant because of his treatment by Allan Miller Transport Training but I agree with the respondent's submission that issue is not relevant to the appeal.
I accept that it should have been obvious to the respondent as early as 30 January 2018 that there was more evidence than the statements of Ms Olley and Ms Longo. However there is nothing to suggest that the respondent did not act in good faith and the only criticism that can be made is that the relevant officers of the respondent made an error of judgment.
In my opinion, it was not unreasonable for the respondent to defend the appeal. The appellant's success on the appeal depended partly on the further evidence that was adduced on the appeal which was not available to the respondent at the time of the original decision.
In my opinion, the fact that the decision-maker did not have regard to all the available evidence and fell into error in focusing on the statements of Ms Olley and Ms Longo to the exclusion of the other evidence does no more than establish an error of judgment. That error does not establish that it is in the interests of justice for a costs order to be made. I do not accept that the error of judgment by the respondent constituted ill-treatment of the appellant.
In arriving at this decision, I bear in mind that it was the unsatisfactory conduct of the appellant himself which gave rise to the respondent’s consideration of whether he was a fit and proper person to hold a driving instructor's licence.
I find that it is not in the interests of justice to make an order that the respondent pay the costs of the appellant.