Le v SX

[2016] ACTSC 107

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

LE v SX

Citation:

[2016] ACTSC 107

Hearing Date:

11 May 2016

DecisionDate:

30 May 2016

Before:

Burns J

Decision:

The matter be relisted before Mossop AsJ at a time convenient to his Honour and the parties.

Catchwords:

PROCEDURE – Costs – application to set aside costs order – whether application should proceed before different judicial officer – where judge who made costs order in best position to determine application – application to be relisted.  

Parties:

LE (Applicant)

SX (Respondent)

Representation:

Counsel

Mr G Stretton SC (Applicant)

Mr R Routh (Respondent)

Solicitors

Self-represented (Applicant)

Farrar Gesini Dunn (Respondent)

File Number:

SCA 1 of 2015

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Boss

Date of Decision:         27 May 2014

Case Title:  LE v SX

Court File Number:       DV 157 of 2014

BURNS J:

1. By an application dated 29 April 2016 the applicant seeks orders that the orders made by Mossop AsJ on 5 June 2015 be set aside and that the respondent pay the applicant’s costs of the application.

1. The genesis of these proceedings was an application made by the applicant in the Magistrates Court for a domestic violence order (DVO) against the respondent. The application for a DVO proceeded to a contested hearing in the Magistrates Court, and on 27 May 2014 the application was dismissed. The parties agreed upon an amount of costs payable by the applicant to the respondent.

1. By an application lodged on 2 January 2015, the applicant sought orders that she be given leave to appeal out of time from the orders of the Magistrates Court of 27 May 2014 dismissing her application for a DVO. That application was heard by Mossop AsJ in March 2015, and on 11 May 2015 his Honour dismissed the application and published comprehensive written reasons. Initially, Mossop AsJ made no order as to costs, but provided that the operation of that costs order be deferred to allow the parties to apply for a different costs order if they chose to do so. The respondent applied for a different costs order within the time allowed by Mossop AsJ, and on 5 June 2015, after hearing the applicant and the respondent, Mossop AsJ vacated the costs order that his Honour made on 11 May 2015 and substituted an order that the applicant pay the respondent’s costs of the application for leave to appeal. The respondent was represented by a legal practitioner in the proceedings before Mossop AsJ, including the costs application on 5 June 2015, but the applicant represented herself throughout those proceedings.

1. The applicant did not seek to exercise any right of appeal from the orders made by Mossop AsJ on 11 May or 5 June 2015. Consistent with his Honour’s orders of 5 June 2015 the respondent prepared a bill of costs, which proceeded to assessment by the Deputy Registrar of this Court on 9 February 2016. As I understand it the applicant did not attend the assessment. The respondent’s costs were allowed in the sum of $42,073.34.

1. The applicant then lodged, on 22 February 2016, an application that the costs assessment be set aside, on the grounds that she was not present when the assessment had taken place, that she had a reasonable excuse for not being present, and that she had been denied natural justice. It appears that on 8 April 2016 the Deputy Registrar referred the application to Mossop AsJ. On 22 April 2016, the matter was listed before Mossop AsJ, at which time the parties were both represented by legal practitioners. His Honour made orders about the conduct of the application, including an order that the applicant file and serve any application to vacate the orders made by the Court on 5 June 2015 by 29 April 2016, together with written submissions.

1. It was in this context that the applicant filed the present application seeking that the costs order made by Mossop AsJ be set aside. For some reason, not apparent to me, the application was listed before me and not, as clearly anticipated by Mossop AsJ, before his Honour.

1. Not being fully aware of this history, I heard counsel for both parties on 11 May 2016. Counsel for the respondent made a preliminary submission that I should not hear the matter, and that the application should be placed before Mossop AsJ. It appeared to me possible, bearing in mind the allegation that the applicant had been denied natural justice by his Honour, that Mossop AsJ may have declined to hear the application, or thought it prudent that it be heard by another judicial officer. As such I heard counsel not only as to whether I should hear the application, but also as to the merits of the application. I am now satisfied that Mossop AsJ did not recuse himself from the matter.

1. It is a nice point whether a judicial officer other than Mossop AsJ can entertain an application such as the present, although I incline to the view that I could do so. It is unnecessary for me to make any final determination on this issue, however, because I am satisfied that in the absence of true necessity I should not hear the application. The proceedings which this application seeks to reopen were heard over three days by Mossop AsJ, and his Honour provided comprehensive written reasons for his decision to refuse the applicant leave to appeal out of time from the decision of the Magistrates Court. His Honour is clearly in the best position to exercise any discretion concerning costs arising from the proceedings.

1. I direct that the matter be relisted before Mossop AsJ at a time convenient to his Honour and the parties.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate: D Scuteri

Date: 30 May 2016