Lethbridge v Coburn
[2003] VSC 259
•10 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5123 of 2003
| GERARD MICHAEL LETHBRIDGE | Plaintiff |
| v | |
| BERNARD JOSEPH COBURN, M., and GAVAN CHRISTOPHER KNIGHT | Defendants |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2003 | |
DATE OF JUDGMENT: | 10 June 2003 | |
CASE MAY BE CITED AS: | Lethbridge v Coburn & Knight | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 259 | |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Walters S.C. with Mr G.H. Livermore | Lethbridges |
| For the Defendants | Mr N. Papas | Victorian Government Solicitor |
HIS HONOUR:
By summons on originating motion, filed on 28 March 2003, the plaintiff, Mr G.M. Lethbridge, a legal practitioner, seeks relief against the first defendant, Mr B.J. Coburn, Magistrate, of the Magistrates' Court, Ballarat, and Mr G.C. Knight, an officer of the Department of Primary Industries, who was the prosecutor in the relevant case in Ballarat Magistrates' Court, that the Order made in the Magistrates' Court at Ballarat on 7 February 2003 whereby the learned magistrate ordered that the plaintiff, Mr Lethbridge, pay the second defendant's costs of the proceedings in the sum of $240, be quashed.
Essentially the grounds of the summons and motion are that no notice of the application for costs was given to the plaintiff, and thereby both the statutory provision, to which I shall come, and requirements of natural justice were denied in that there was a breach of the rules of procedural fairness. The first defendant, Mr Coburn, M., by letter of the Deputy Chief Magistrate to the Prothonotary, abides the Order of this Court.
The history of the matter is conveniently set out in the main affidavit for the plaintiff, that of Mr G.M. Lethbridge, sworn 28 March 2003, and the 21 exhibits thereto. That history is as follows.
A client of the firm of Lethbridges, of which Mr Lethbridge is the principal, namely Mr S.D. Barton, was charged with nine offences alleged to have been committed on 10 May 2002 by him in the Wombat State Forest. Those offences were trespass contrary to the Summary Offences Act 1966, obstruction and like offences contrary to the Conservation, Forests and Lands Act 1987, and assault and escape under the Vagrancy Act 1966. Lethbridges was retained to act on Mr Barton's behalf in relation to those offences. The informant was the second defendant in this Court, Mr G.C. Knight, a senior prosecutor of the Department of Primary Industries, who himself has put in a formal affidavit of 1 May 2003.
The defendant to the initial proceedings, Mr Barton, was summoned to appear before the Ballarat Magistrates' Court on 12 December 2002.
On 8 November 2002 Lethbridges sent the second defendant, Mr Knight, a written request for documents, pursuant to Clause 1A of Schedule 2 Magistrates' Court Act 1989. A second letter to the like effect was sent on 25 November 2002. A letter was received from the second defendant on 28 November 2002 and a response thereto by Lethbridges sent on 2 December 2002. On 12 December 2002, at 9.26 a.m. Lethbridges sent that which Mr Lethbridge deposes to be a “standard form request” for an adjournment, to the Ballarat Magistrates' Court, by fax, requesting the matter be adjourned for further mention. On its face that was a late request because the prosecutor would already have been en route to Ballarat, if not in Ballarat at that time. Nothing further was heard by Lethridges for the time being.
A check was made by Lethbridges of the Magistrates' Court lists through the Internet to check the adjourned date. According to the Court lists the matter was adjourned to 7 February 2003 for further mention.
In the interim Lethbridges had received formal instructions from
Mr Barton to contest the charges. Accordingly on 31 January 2003 Lethbridges sent a standard form by fax to the Court requesting that the matter be adjourned from the further mention of 7 February 2003 to a Contest Mention. That plainly was adequate notice, being on 31 January for 7 February.
On 3 February 2003 Lethbridges received an undated letter from the Coordinator of the Court by fax. The letter referred to an enclosed copy of the Contest Mention guidelines. However, the only enclosure in fact was a copy of his Lethbridges’ request for the Contest Mention that I have referred to.
On the basis of the receipt of this faxed letter of 3 February 2003 from the Court Coordinator, Lethbridges concluded that the Court had received its request for a contest mention, and assumed that the Court would, in accordance with the normal practice, adjourn the matter to a Contest Mention.
On 10 February 2003 Lethbridges received a document entitled "Statement of Fines and Penalties Imposed" dated 7 February 2003, which ordered Lethbridges to pay costs of $240. That is produced as Exhibit 10 to Mr Lethbridge’s affidavit. A flurry of correspondence followed, which I do not need to rehearse in this judgment.
According to the certified extract, on 12 December 2002 the first defendant ordered that the second defendant's costs be fixed at $240 and reserved for argument to 7 February the question of whether those costs were to be paid by the defendant, Mr S.D. Barton, or personally by Lethbridges.
Mr Lethbridge has deposed that to the best of his knowledge, information and belief his firm did not receive any notice of an application for costs, nor did his firm receive a copy of the certified extract of the Orders made by the first defendant on 12 December 2002 until 17 February 2003, when they were enclosed with a letter from the Senior Registrar, exhibited as Exhibit 14 to Mr Lethbridge’s affidavit. Those facts are not in dispute. In fact, neither Mr Lethbridge nor his firm was present before the Court on either 12 December 2002 or 7 February 2003.
On 26 February 2003 Mr Lethbridge wrote to the Principal Registrar of the Court asking if the Court would entertain either a mention of the Order before the first defendant or an application for a re-hearing. That request was unproductive.
On 5 March 2003 Mr Lethbridge wrote to the second defendant enclosing a response from the Court requesting the second defendant's advice and whether he agreed to the matter being mentioned before the magistrate. As at 28 March 2003 Mr Lethbridge deposed he had not received any reply from the second defendant.
Under s.132 Magistrates' Court Act 1989 provision is made for costs liability of a legal practitioner. The relevant section for these purposes is sub-section (3) which provides:
"The Court must not make an order under sub-s.(1) without giving the legal practitioner a reasonable opportunity to be heard."
I am satisfied that no reasonable opportunity was provided in this case.
In my view the failure stemmed from the failure on behalf of the Magistrates' Court, despite the statement of the magistrate on 12 December 2002 in the transcript, to inform the plaintiff of the potential for the Order. Relevantly the transcript is exhibited as Exhibit 16 to the affidavit of Mr Lethbridge. The transcript reveals (p.1) that the second defendant, Mr Knight, applied to the magistrate for costs. The costs sought were for a half day as Mr Knight was also at the Court on another matter. The amount sought, $240, was on an hourly rate for the half day. The magistrate (at p.3) “fixed” the costs at $240, and by implication ordered that those costs be paid. He said:
“The informant’s costs are fixed at $240.00. The question whether these costs are to be paid by the defendant or by his solicitors is reserved. I will hear argument on the seventh of February. A copy of this Order is to be forwarded to the defendant and to the defendant’s solicitors, Lethbridges.”
On p.3 the magistrate concluded the discussion by saying, in relation to the Order:
"We'll send those. You can send copies if you want to, but basically we'll do that."
A certified copy of the Order for costs is Exhibit 14 to Mr Lethbridge’s affidavit."
The second defendant, Mr Knight was entitled to rely upon what the Magistrates' Court said. Unfortunately the Magistrates' Court failed to act accordingly and did not provide the relevant material to the plaintiff or apparently to Mr Barton. That is where the essential failure occurred: in the Magistrates' Court.
Then, by an undated letter, but stamped received on 24 February 2003, to the plaintiff, Mr Knight, in relation to the consent that I have previously referred to, stated:
“The matter has been decided based on the lack of notice to me as the Informant and the Court of your intention to seek an adjournment. The day and date and time of your facsimile to the court at 9.18 a.m. on 12 December 2002 being evidence of this. I do not believe that I have any standing to consent to the Order being made."
Unfortunately, that is where the matter rested.
There was, as is evident in the correspondence, which I shall not refer to further in detail, a degree of feeling generated by these matters, but the bottom line is that the Magistrates' Court failed to inform the plaintiff, and the plaintiff was unable to get the matter back on before the Magistrates' Court, so most unfortunately the matter has come to this Court with the consequent very substantial costs involved.
On behalf of the second defendant it was submitted that seeking to adjourn the matter a second time, without any effort to contact the second defendant, was contrary to good practice and in effect deprived the second defendant of the ability to carry out his duty in prosecuting the matter in a timely fashion. However, it was conceded by Mr Papas that the second defendant cannot contradict the assertion that the Court did not give notice of the costs issue to the plaintiff, even though the presiding magistrate said that the Court would attend to that notice being given.
In all the circumstances I am satisfied that no reasonable opportunity to be heard was given to the plaintiff as required by s.132(3) Magistrates' Court Act 1989.
I would come to the same conclusion under the common law, although for this decision it is not necessary to go beyond the statute. By reason of lack of notice, the audi alteram partem rule was breached: see generally Holding v. Beck and Purcell[1], Fitzgerald v. Golden & anor[2], Romeo & anor. v. Asher and ors.[3] and Ballantyne v. Riemer and anor.[4]
[1]McDonald J., 23 May 1996.
[2]Beach J., 5 December 1995.
[3](1991) F.C.R. 343.
[4](2002) N.S.W.S.C. 1156 (2 December 2002).
For those reasons I grant the relief sought by the plaintiff and quash the Order below whereby the first defendant herein ordered the plaintiff to pay the second defendant’s costs of $240.00.
It is not necessary for me to proceed further to the secondary argument of the plaintiff, that the second defendant, not being a legal practitioner, was not entitled to costs. As a matter of proper court administration it is demonstrable that a prosecuting officer, even if he were at the court for other purposes, is entitled, because the State is entitled, to the costs of proceedings. As I have already noted, the second defendant sought only a half day’s costs. But in this case the antecedent matter, that is to say the lack of reasonable opportunity to be heard under s.132(3) and under the common law has been made out, and for those reasons I grant the relief sought.
ORDER
The Order of the Magistrates' Court at Ballarat of 7 February 2003 that the plaintiff herein pay the costs of the second defendant fixed at $240.00 is quashed.
HIS HONOUR: Is there any person here for Mr Knight?
MR DESMOND: Yes, Your Honour. I'm the solicitor for Mr Knight, employed by the Department.
HIS HONOUR: And your name?
MR DESMOND: Desmond.
HIS HONOUR: Mr Desmond, thank you for coming. I started a little bit after ten o'clock. It may have been thought that the matter was in the 10th Court, which was where it derived, and I can well understand you may have gone there first. We did check there.
MR DESMOND: We did.
HIS HONOUR: At all events I said to Mr Livermore, that as it appeared that no-one was able to appear on behalf of the second defendant, all the judgment is being recorded. You heard half of it.
MR DESMOND: Yes, Your Honour.
HIS HONOUR: And what I will do is of course provide it to you in the next 48 hours so that you have got the full judgment. There has been no discussion in your absence, other than the court listening to me.
MR DESMOND: Thank you, Your Honour.
HIS HONOUR: So, Mr Desmond, the bottom line is, as you heard the second half of the judgment, I have found in favour of the plaintiff in relation to this matter. As I have said, and you may have been here for this, I consider unfortunately the fault initially lay with the Magistrates' Court, not with your client.
MR DESMOND: Yes, Your Honour.
HIS HONOUR: Mr Livermore, do you want to say anything about costs following the event?
MR LIVERMORE: They should, we say, Your Honour.
HIS HONOUR: Yes. Mr Desmond, the normal rule, as you appreciate, is that costs follow the event. I might ask Mr Livermore a couple of questions first. Is it normal that the costs are awarded against each defendant and it is a matter of who pays, or what is the normal procedure?
MR LIVERMORE: I think it's normally the second defendant - this case is slightly unusual with the findings that Your Honour has made, and Your Honour has certainly got the discretion to share the costs between the two defendants if Your Honour wishes.
HIS HONOUR: I presume the State pays them.
MR LIVERMORE: Yes.
HIS HONOUR: And I trust that neither Mr Coburn nor Mr Knight has to pay them personally. They will become governmental costs, won't they?
MR LIVERMORE: I am certain that that is the case, but my friend can probably - - -
HIS HONOUR: You might get some instructions on that, Mr Desmond.
MR DESMOND: I have some instructions.
HIS HONOUR: You do. All right.
MR DESMOND: They would be paid by the State on both - in both sets of circumstances. But I would refer Your Honour to the matter of the Magistrates' Court of Victoria at Heidelberg v. Robinson & Another, which was a matter where the Court of Appeal made quite a few statements about the question of costs in matters against the Magistrates' Court and against courts of lower jurisdiction. And even though the s.24 of the Supreme Court Act gives the court the full discretion to determine by whom and to what extent the costs are to be paid, there are certain circumstances in which the court will order that the Magistrates' Court pay costs. And the main gist of the case, and the cases referred to therein, is that before an order will be made against the Magistrates' Court or the lower tribunal there should be a perverse finding or a finding contrary to natural justice. I know I'm arguing against myself here, but I think it has to be put to the court. But even though - - -
HIS HONOUR: It would be a bit unfortunate if I found against the Magistrates' Court when they have not had a locus to appear, which is the very reason we are all here in the first place.
MR DESMOND: That's right, Your Honour. But what I'm suggesting is that Your Honour has the discretion. The second named defendant was not at fault. The only fault that could be put to him is that he applied for costs, which Your Honour has basically said that he may have been entitled to. And it was not his fault that brought this matter to this court.
HIS HONOUR: What about the letter of your client received on 24 February 2003, that is GML18, where he said that he does not believe he has any standing to consent to the orders being made, in effect that the matter's referred back. Do you want to say anything about whether that was an error, in the sense that it could have resolved all these expensive proceedings.
MR DESMOND: It could have resolved all the issues, Your Honour, but we were of - the matter was discussed in the office at the time and it was thought that that was the proper situation, that it was an order made by the court and even though we may have applied for it, it was something that the court had done on their lack of notice, and therefore we really had no standing in the matter, even though we were informants in the matter.
HIS HONOUR: Do you want to say anything as to whether it would not be a proper and fair resolution that half the costs are paid by the first defendant and half the costs by the second defendant?
MR DESMOND: No, not a great deal. I would be suggesting that something similar to the psychologist's case where the court held that all parties pay their own costs.
HIS HONOUR: All right. Thanks very much, Mr Desmond.
MR DESMOND: The most favourable to us, Your Honour - I also wish to advise that the Deputy Chief Magistrate has been advised that argument would be sought - would be put forward possibly on the matter of costs. This was the letter to the Deputy Chief Magistrate on 19 May by the second named defendant.
HIS HONOUR: Yes, well, that may be put on the court file as well. Thanks very much,
Mr Desmond. Mr Livermore, I consider in the circumstances the proper order is that half the costs are paid by each defendant, and I will make that order.
MR LIVERMORE: Thank you, Your Honour.
ORDER AS TO COSTS
HIS HONOUR: I order that half the costs of the proceedings in this Court be paid by the first defendant, that is to say, the Magistrates' Court, not Mr Coburn personally. That is because of the error in the court procedures that I have stated, namely their failure in fact to inform the plaintiff as was contemplated, as I have cited.
I order that half the costs be paid by the second defendant. That is because of the letter received on 24 February 2003 in the matter not being referred back to the Magistrates' Court.
I can understand the second defendant considering that there may have been a lack of primary jurisdiction, but it seems to me that it would have been sensible in all the circumstances for the parties to go back to the Magistrate by consent to enliven the jurisdiction rather than having the costs of coming to this Court, which are much greater than going back to the Magistrate by consent. For those reasons I consider that half the costs should be paid by the first defendant and half by the second defendant, in each instance, and neither person to be paying them personally, but by the relevant Departments.
MR LIVERMORE: Yes, Your Honour.
HIS HONOUR: I am obliged to you all for being here.
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