LE v SX
[2017] ACTCA 34
•10 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | LE v SX |
Citation: | [2017] ACTCA 34 |
Hearing Date: | 8 August 2017 |
DecisionDate: | 10 August 2017 |
Before: | Murrell CJ, Burns and Elkaim JJ |
Decision: | The application for leave to appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against an interlocutory decision – procedural fairness – entitlement to be present. |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | ES v Director-General of Community Services Directorate (No 2) [2016] ACTSC 7 House v R (1936) 55 CLR 499 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 |
Parties: | LE (Appellant) SX (Respondent) |
Representation: | Counsel Mr S Pilkinton SC (Appellant) Self-represented (Respondent) |
| Solicitors Self-represented (Appellant) Self-represented (Respondent) | |
File Number: | ACTCA 46 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop AsJ Date of Decision: 26 August 2016 Case Title: LE v SX (No 3) Citation: [2016] ACTSC 243 |
THE COURT:
Background
This matter started in the ACT Magistrates Court. The applicant (the appellant in this Court) applied for a domestic violence order. The application was dismissed by Magistrate Boss on 27 May 2014.
The appellant lodged an appeal with the Supreme Court. The appeal was out of time, requiring an application for an extension of time.
The application was heard by Mossop AsJ (as he then was) on 5, 6 and 17 March 2015. The decision was given on 11 May 2015 (LE v SX [2015] ACTSC 79). His Honour dismissed the application and made no order as to costs. Leave was given to either party to seek a different costs order.
The respondent made an application for costs. That application came before his Honour on 5 June 2015. It seems to have been listed at 9.15am. There was no appearance for the appellant. The appellant’s name was called outside the Court. The matter was stood down until 9.30am.
At 9.31am, the appellant’s name was again called outside the Court. There was no appearance for the appellant. The respondent’s solicitor asked for a costs order in favour of her client. After giving reasons, his Honour made the following order:
Orders 2 and 3 made on 11 May 2015 are discharged and substituted with a new order 2 which is that the applicant is to pay the respondent’s costs of the application.
The Court adjourned at 9.40am. The appellant then arrived at Court and his Honour was notified. His Honour returned to Court at 11.26am. His Honour informed the appellant that he had dealt with the matter in her absence and then said:
I assume you wish to say something in relation to the issue of costs.
His Honour also told the appellant that it was possible for him to re-open the costs application and make a different order. By this time, the respondent and his legal representative had left the Court.
After some discussion, his Honour heard submissions from the appellant about why there should not be a costs order made against her. He did so in order to decide if the respondent should be required to return to Court for further argument.
His Honour decided that there was no need for further submissions and did not vary the orders that he had made earlier in the day.
The matter was next before the Court on 11 May 2016. Burns J heard an application by the appellant to set aside the orders that had been made on 5 June 2015. The appellant was legally represented at that hearing. Burns J gave his decision on 30 May 2016 (LE v SX [2016] ACTSC 107). His Honour directed that the matter be relisted before Mossop AsJ. His Honour was of the view that the matter was best dealt with by the Associate Judge.
The matter then returned to Mossop AsJ, who determined the matter on the papers. The only extra evidence before him was an affidavit of the appellant affirmed on 29 April 2016.
Mossop AsJ gave his decision on 26 August 2016 (LE v SX (No 3) [2016] ACTSC 243). His Honour dismissed the application to set aside the orders that he had previously made.
A Notice of Appeal was then filed against the orders made on 26 August 2016. This is the matter before this Court.
The appeal
At the commencement of the hearing, Mr Pilkinton SC, who appeared on behalf of the appellant, properly and fairly informed the Court that he had come to the conclusion that, before the appeal could be heard, it was necessary for him to obtain leave.
His conclusion was derived from s 37E(4) of the Supreme Court Act 1933 (ACT), which provides that an appeal from an interlocutory decision of a single judge can only be brought with the leave of the Court of Appeal.
The appellant accepted that the decision of the Associate Judge on 26 August 2016 was an interlocutory decision.
The Court did not require the appellant to file a fresh application for leave to appeal. Instead, the Court proceeded on the basis that it was dealing with a leave application.
The next concession made by the appellant was that an order against a party for costs is a discretionary order.
The final, and consequential, concession made by the appellant was that the principles stated in House v King (1936) 55 CLR 499 (House v King) are applicable.
The Notice of Appeal lists five grounds of appeal. The appellant’s written submissions took a more limited approach.
On our reading of the outline, the appellant’s complaints have been refined to the following:
(a)The Associate Judge should have heard the cost argument in the presence of both parties. The failure to do so amounted to an error.
(b)His Honour was aware that the appellant had hearing difficulties. His Honour erred in not taking this fact into account. His Honour also erred in dismissing the appellant’s hearing difficulties as being “not relevant”.
(c)Although not stated in these terms, the effect of the above errors was to have denied the appellant natural justice and a fair hearing.
Each of the above complaints will be dealt with in turn.
It is trite in law to say that a litigant is entitled to be present during a hearing and when orders are made. Without more, the appellant’s complaint would be valid. There is, however, ‘more’.
The transcript of what occurred on 5 June 2015 commences at page 6 of the Appeal Book. Once his Honour was informed that the appellant had arrived at Court, he told her what orders he had made and invited her to make submissions. She did so.
His Honour plainly considered those submissions and decided that they would not have made any difference to the conclusion he had already reached.
Although the ‘hearing’ proceeded in an unusual manner, it did involve both sides being heard and a decision being made reflecting consideration of the submissions of both sides. In particular, the appellant was heard with the benefit of there being no reply to her submissions. His Honour was able to reject her position without the need to recall the respondent.
It might be said that the appellant had not had the benefit of hearing the respondent’s submissions when they were put to his Honour. There are two answers to this point:
(a)Ms Foster, who appeared for the respondent, actually said very little. It was restricted to this:
I’m instructed to seek an order for costs - costs ordinarily for the event [sic]. There’s probably not much more I can say, your Honour, only to remind you that your Honour did make an order for costs following the first day – 2 February, you may recall... (AB 7.16)
(b)After the appellant had arrived, His Honour told her the orders that he had made and accurately summarised what Ms Foster had said:
I can tell you that Ms Foster’s submissions were very short. She simply said that the usual rule is that costs follow the event, that is, the winner recovers their costs. Those are the only submissions that she made effectively. (AB 12.34)
In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597, their Honours Gaudron and Gummow JJ noted at paragraph [40]:
Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.
We can see no basis upon which there was any prejudice to the appellant by not actually hearing what Ms Foster had said. Having given the appellant the above description, his Honour then allowed her an opportunity to make her own submissions, which she took (AB 12.38). She was in no different, and certainly no worse, position than she would have been had she been in Court when Ms Foster asked for the new order.
The Notice of Appeal refers to the appellant being “cut off” by his Honour. This presumably refers to the transcript at AB 13.16. It is not clear that the appellant was actually “cut off”. However, even if it is accepted that she was, his Honour intervened in her submissions because she was making a submission that the proceedings were not vexatious, which was not the reason for the exercise of his Honour’s discretion.
His Honour explained the position carefully to the appellant:
The submissions that you made to me now address, in particular, the proposition that these proceedings were not vexatious. In deciding to award costs against you, I didn’t do it on the basis that the proceedings were vexatious. The provisions of the Domestic Violence and Protection Orders Act, which refer to proceedings being vexatious, namely section 107 of the Act, don’t apply to proceedings in this Court nor does the provision in section, I think it’s 92 of the regulations under that Act apply to this Court.
In this Court, the costs are simply in the discretion of the court and there is a strong line of decisions which says that costs are compensatory. In this case, none of the matters which I considered and none of the matters which you have put forward to me now, in my view, provide an appropriate basis for departing from the general rule that costs should follow the event. (AB 13.29)
The oral submissions made by Mr Pilkinton SC suggested that there was also error on his Honour’s part in not hearing from the parties, orally, before handing down his decision of 26 August 2016. This submission must be rejected, for the following reasons:
(a)The appellant was then represented by Senior Counsel. No objection was taken to the matter proceeding on the papers.
(b)The appellant had herself, on 5 June 2015, asked for the matter to proceed by way of written submissions.
(c)The decision of 26 August 2016 comprehensively takes into account the arguments of both sides. There has been no suggestion that the appellant was deprived of the capacity to put any submission before the Court.
In our view, the transcript reveals that the appellant was informed of the costs order against her and the reasons for which it was made. She was told that the order could be reopened and was given a reasonable opportunity, which she took, to answer the respondent’s request for a costs order.
The next point concerns his Honour’s knowledge of the appellant’s hearing difficulty. Mr Pilkinton SC conceded that there was nothing said on 5 June 2015 by the appellant about her hearing problems. He also accepted that nothing in the transcript indicates that the appellant had a hearing difficulty or difficulty understanding his Honour.
5 June 2015 is the important date in respect of the hearing issue. Although reference to the problem is made in the affidavit of the appellant affirmed on 29 April 2016, his Honour was not, at the date that she appeared in Court, aware of the problem. It was not brought to his attention. A close reading of the transcript does not reveal any interchange between the appellant and the Court which might suggest that the appellant had not heard or understood anything said by his Honour.
We also note that there is not now, nor has there ever been, any medical evidence corroborating or describing the asserted hearing difficulty. The Case Outline filed on 14 December 2016 refers to the appellant having a “hearing deficit” for which she receives a pension. There was no evidence submitted to that effect.
In the absence of evidence and, more importantly, any indication that a hearing difficulty lead to any misunderstanding, or lack of understanding, of the proceedings on 5 June 2015 on the part of the appellant, the point is without substance.
There is still no independent or medical evidence of the plaintiff’s hearing loss.
The principles arising from House v King were summarised by Refshauge J in JL v Director-General, Community Services Directorate [2015] ACTSC 24 at paragraph [14]:
Where the appeal challenges the exercise of a discretion, however, the court may only interfere on certain bases originally set out in House v R (1936) 55 CLR 499 at 505, namely where the trial judge acted on a wrong principle, or allowed extraneous or irrelevant matters to guide or affect the judgment, or mistook facts, did not take into account material considerations or the decision was unreasonable or plainly unjust.
The formulation expressed by Refshauge J was cited with approval by Murrell CJ in ES v Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 at paragraph [35].
The only House v King avenue that was open to the appellant, taking a very broad interpretation of the submissions made, is that the decision of Mossop AsJ was “plainly unjust”. The specific matters raised, concerning the way in which the hearing proceeded and the asserted hearing difficulty, have been dealt with above and do not give rise to any circumstance or result that might be described as “plainly unjust”.
Accordingly, the decision of the Court is that leave to appeal should be refused. No argument was put forward that costs should not follow the event.
The Court makes the following orders:
(a)Leave to appeal is refused.
(b)The appellant is to pay the respondent’s costs of the appeal.
| I certify that the preceding forty-three [43] paragraphs are a true copy of the Reasons for Judgment of their Honours Murrell CJ, Burns and Elkaim JJ. Associate: Date: 10 August 2017 |
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