MAYNARD v MAYNARD No. Scgrg-97-1703 Judgment No. S6541

[1998] SASC 6541

MAYNARD v MAYNARD

Magistrates Appeal
Olsson J

The appellant appeals against the decision of a stipendiary magistrate, announced on 25 November 1997, refusing to make an order for costs in her favour.  This related to her successful application to revoke an ex parte restraining order which had been made against her and was subsequently confirmed.  She contends that costs ought to have followed the event.

I first turn to the historical sequence of events.

On 4 April 1997 the respondent, who was the estranged husband of the appellant, made an ex parte application to a stipendiary magistrate for a restraint order against the appellant, pursuant to section 99 of the Summary Procedure Act, 921 (“the Act”).  An interim restraint order was duly made, at that time, on file MCPAD-97-4186.  This order is said to have been made on the footing of an affidavit sworn by the respondent, although, inexplicably, no such document currently appears on that file.  A copy of that affidavit has been supplied to me by counsel for the appellant.

The order, in terms, restrained the appellant:-

1. from being on any premises at which the respondent may from time to time reside or attending or being in the vicinity of 1 Snowden Street, West Beach;  and

1. from contacting or communicating directly or indirectly, whether in person, by telephone, in writing, or otherwise, with the respondent.

The interim order was served on the appellant on the afternoon of the day on which it was made.  However, as the learned magistrate pointed out, a copy of the affidavit on which it was based was not so served.  The Act did not require such service.

The interim order was returnable on 10 April.  The appellant did not then appear.  The order was therefore confirmed.

On 9 September 1997 the appellant filed an application to revoke the restraint order.  That application was resisted by the respondent.  The matter went to trial on oral evidence on 20 and 25 November 1997.  In essence the issues canvassed are said to have been those which were, essentially, identified in the original affidavit sworn by the respondent.

In the course of substantial reasons for decision expressed by him, the learned magistrate found difficulty in deciding where the truth lay.  All witnesses presented as apparently convincing and truthful persons.  However, at the end of the day, the learned magistrate was far from satisfied that the evidence relied upon by the respondent satisfied the pre-requisite requirements of the Act for the making or maintenance of a restraint order against the appellant.  For example, whilst he accepted that there had been regrettable property damage suffered by the respondent  (eg slashed car tyres, breaking into his house and so on), he pointed out that there was not a scintilla of evidence that it was the appellant who had caused or procured it.  The evidence fell far short, in other respects, of establishing any of the matters adverted to in section 99.

That being so the learned magistrate had no hesitation in revoking the order in question.  He made an order to that effect, which order is not now under challenge.

In response to an application by the appellant as to costs the learned magistrate is recorded as merely saying:-

“The court has a discretion in relation to costs.  In all the circumstances I do not intend to make an order for cots.”

In substance it is the appellant’s contention that the decision of the learned magistrate (which did not purport to be based on the existence of any identified - or, at least articulated - special circumstances), failed to give effect to the general principle that costs ought to follow the event.  (Hamdorf v Riddle (1971) SASR 398, Vawser v Zanker (1984) 117 LSJS 379, Latoudis v Casey (1990) 170 CLR 534, Johnson v District Council of Willunga (1995) 80 A Crim R 250). This was particularly so, it was said, in a case of this nature, where the relief originally sought by the respondent against the appellant was patently not available to him on the factual evidence as ultimately led at trial.

As was pointed out by Nyland J in Kronen v Police (1993) 173 LSJS 352, proceedings of the generic type now before me stand on no different basis than other proceedings in the criminal jurisdiction of the Magistrates Court. They also fall to be considered in light of the authorities to which I have referred.

A perusal of the material before the learned magistrate does not reveal the existence of any special circumstances which would, prima facie, justify a departure from an application of the normal principle that costs ought to follow the event.  True it is that there was some delay in prosecution of the application, the appellant having failed to defend at the confirmation hearing.  However, when the revocation application was eventually made the respondent elected to proceed to trial and fully litigate the factual merits, as might have happened at the confirmation hearing.  As I have demonstrated, the learned magistrate has given no reasons whatsoever for exercising his discretion in the way in which he did.  It is quite impossible to discern the basis of his decision or any warrant for it.  In such circumstances his failure to give reasons constituted an appealable error in law (Lockwood v Commissioner of Police (Nyland J, 21 March 1996, S5515, unreported).  See also the reasoning in Stojkovski v Fitzgerald (1989) WAR 328 at 334). His decision prima facie indicates that he did not give any or adequate consideration to the authorities relevant to the exercise of his discretion.

It is, therefore, my task to exercise the discretion as to costs afresh.

In my view there is simply no apparent basis for departing from the normal rule.  The respondent having elected to proceed to trial on disputed issues of fact and failed, the appellant was entitled, in the normal course, to recover compensatory costs incurred against him.

The appeal must be allowed and the order refusing costs set aside.  In lieu there will be an order that the respondent pay to the appellant her costs both in the court below and in this court to be taxed, if not agreed.  I would recommend to the taxing officer the fixation of a lump sum for costs in the court below, conformably with the normal practice in that jurisdiction.