Luca v Eckert - [2024] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
LUCA v ECKERT & ANOR
[2024] SASC 77
Judgment of the Honourable Justice Stanley
14 June 2024
MAGISTRATES – APPEAL AND REVIEW – SOUTH AUSTRALIA – APPEAL TO SUPREME COURT
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - PROCEEDINGS AND RELATED MATTERS
MAGISTRATES – APPEAL AND REVIEW – SOUTH AUSTRALIA – NATURE OF APPEAL
Appeal of decision of Magistrate to dismiss two applications for intervention orders.
The Appellant, purporting to represent his mother, applied to the Magistrates Court for intervention orders against his sister and his sister’s husband. The two applications were heard together. At the same time, separate proceedings relating to analogous facts were before SACAT. The Magistrate dismissed both applications.
Immediately prior to the commencement of the appeal hearing, the Appellant submitted he had been served with documents which had the effect of removing his appeal to a higher court. The appellant submitted he was unable to prosecute his appeal. The Respondent applied that the appeal be dismissed for want of prosecution.
Held:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs in the sum of $3,000.
Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
Groom v Police (No 3) [2013] SASC 93; Marley-Duncan v Police [2013] SASC 146; Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Duke Group Ltd v Pilmer (No. 8) [1998] SASC 6699; FS Evans & Sons Pty Ltd (No. 6) (1989) 148 LSJS 483; Sunburst Properties Pty Ltd v Agwater Pty Ltd (No. 2) [2005] SASC 293, applied.

LUCA v ECKERT & ANOR
[2024] SASC 77
Single Judge Appeal (Criminal)

STANLEY J:   Mr Ammun Luca, purporting to represent his mother, Dr Kathleen Anne Maros (Dr Maros), applied to the Magistrates Court for intervention orders against his sister Ms Alexandra Eckert and her husband Mr Christopher Eckert.   The applications were heard by a magistrate who dismissed them on 17 January 2024.[1] It appeared the basis of the applications for intervention orders concerned the care and treatment of Dr Maros. Those concerns were the subject of separate proceedings before SACAT. The SACAT proceedings resulted in orders, made on 8 March 2024, appointing the Public Advocate jointly with Mr Michael Maros the husband of Dr Maros, to be the full guardian of Dr Maros, and the appointment of the Public Trustee as the full administrator of Dr Maros’ estate.[2]
[1]     [AL] v Christopher Eckert (17 January 2024), [AL] v Alexandra Eckert (17 January 2024).
[2]     Exhibit ACE-2 to the Affidavit of Alexandra Eckert and Christopher Eckert 4 April 2024.
The magistrate who heard the applications for intervention orders dismissed them both on the basis that as proceedings addressing many of the same issues raised by Mr Luca on the application for intervention orders were current before SACAT, the Court did not consider that it would be appropriate to make the orders sought. The magistrate held that it was for SACAT to determine, in the context of the application before it, what was in the best interests of Dr Maros. In those circumstances the magistrate felt unable to find that the test in s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) had been satisfied on either application.
Mr Luca brought an appeal from the magistrate’s decisions to the Supreme Court. The appeal came before me on 8 April 2024.
Permission to Appeal
Section 42(1a)(c) of the Magistrates Court Act 1991 (SA) provides that in appeals from interlocutory judgments, permission to appeal is required. This Court has held that an order confirming an intervention order is interlocutory in nature.[3] However, I do not consider an order dismissing an application for an intervention order to be interlocutory in nature. Accordingly, the appeals were of final orders and permission to appeal was not required.
[3] Groom v Police (No 3) [2013] SASC 93 at [32] (2013) 231 A Crim R at 7; Marley-Duncan v Police [2013] SASC 146 at [26].
When the matter was called on Mr Luca was representing himself and Mr Jackson, of counsel, appeared for the Eckerts.
Mr Luca announced at the commencement of the hearing that he had just been served with a document that had the effect of removing the matter into a higher court.
Mr Luca provided the document to me. On its face the document appeared to be an Interim Intervention Order and Summons issued by the ‘Superior Court of the People of Nmdaka Dalai Australis’ (the Superior Court) on the application of the First Lore Chief Prosecutor against Alexandra and Christopher Eckert pursuant to Section 21(3)(c)(a) of the Public Peace and Intervention Lore 2019 for the protection of Ammun Luca and Dr Kathleen Anne Maros to address domestic abuse violence concern.
Mr Luca contended that in these circumstances he felt unable to proceed with the appeals listed before me. He contended that the subject matter of the appeals were now to be determined by the Superior Court.
I indicated to Mr Luca that I had a different view of the law and the effect of the service of this document upon him. I informed him that he had invoked the jurisdiction of the Court and I was sitting this day to hear the matter. I warned him that if he did not proceed with his appeals I anticipated that there may be an application made to dismiss his appeals for want of prosecution and a further application for the costs of the appeals to be ordered against him.
Mr Luca informed me that he understood this but felt unable to continue with his appeals in the circumstances.
I reiterated that if he did not argue the appeals now he faced the risk that it would be dismissed for want of prosecution. He said he understood.
Mr Jackson made an application for dismissal of the appeals for want of prosecution. In addition he applied for an order that Mr Luca pay the costs of the respondents of and incidental to the appeals on an indemnity basis and asked that costs be fixed in the sum of $4,000 which he contended was an amount somewhat less than the actual costs incurred by the respondents in resisting the appeals. Mr Luca did not challenge that submission.
In the circumstances I am satisfied that the appeals should be dismissed for want of prosecution.
The document supposedly served on Mr Luca shortly before the appeals were called on is, of course, bogus and a nonsense. As I pointed out to Mr Luca, it has no legal effect. I urged him to proceed with his appeals and warned him of the risk that if he did not do so, I anticipated that an application for the appeals to be dismissed with costs would be made. Notwithstanding that he understood this to be the position, he proceeded nonetheless to indicate that he felt unable to prosecute his appeals. He did not pursue the appeals. Neither did he seek an adjournment, although, in all the circumstances, I would not have been disposed to grant one.
As a result of his failure to prosecute his appeals, the Court’s time and resources have been wasted. Other litigants have been kept out of the opportunity to have their matter heard. Moreover, the respondents to the appeal have incurred the cost of instructing lawyers and the preparation of the argument resisting the appeals, and the costs thrown away of the time set down for the hearing of the appeals.
In my view these circumstances justify an order dismissing the appeals for want of prosecution.
This brings me to the question of the costs of the appeals.
The respondents submit that the appeals were doomed to fail and they should have the costs incurred resisting it. They seek a lump sum of $4,000 by way of costs on the grounds that it is proper for the Court to order indemnity costs where the appeals were doomed to fail and that the appeals and the original applications for intervention orders were vexatious.
Mr Luca submitted that the applications were not vexatious as he had genuine concerns for his mother’s wellbeing.
The issue of costs involves a discretionary judgment by the Court. The discretion is to be exercised for reasons connected to the litigation. The discretion can be an order for costs on a solicitor/client or indemnity basis, or some other special basis.[4] There must be special and unusual features to justify an award on some basis other than party/party costs.[5]   Unreasonable conduct short of vexation is sufficient if it merits disapproval by the Court by such an order.[6]
[4]     Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Duke Group Ltd v Pilmer (in liq) [1998] SASC 6699.
[5]     FS Evans & Sons Pty Ltd (No. 6) (1989) 148 LSJS 483.
[6]     Sunburst Properties Pty Ltd v Agwater Pty Ltd (No. 2) [2005] SASC 293.
In this case I am satisfied that a proper basis for an award of costs on an indemnity basis has been made out in respect of the conduct of the appeal hearing itself. The want of prosecution without proper justification is a sufficient basis to order indemnity costs in respect of the costs thrown away on the hearing of the appeal.
However, I am not prepared to make an order for costs on an indemnity basis in relation to the preparation of resistance to the appeals. Mr Luca applied to the Court for intervention orders while an application considering analogous facts was part-heard in SACAT. It might appear that he brought the applications for the intervention orders because he anticipated that SACAT would make orders against his wishes. If this were the case, the applications for intervention orders constituted forum shopping and an abuse of process. However, the evidence before me does not enable me to make a finding that this was the basis upon which Mr Luca brought the applications for intervention orders.
In the circumstances I order that Mr Luca pay the respondents’ costs on a party/party basis except for the costs thrown away or the hearing of the appeals which he should pay on an indemnity basis. I make an order for a lump sum payment of costs in the amount of $3,000.
Conclusion
I make the following orders:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $3,000.