McNamara v Morrow Investments Pty Ltd (No 2)

[2006] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

MCNAMARA v MORROW INVESTMENTS PTY LTD (NO 2)

Judgment of The Honourable Justice Vanstone

21 March 2006

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS

Application for costs of appeal on indemnity basis - appeal dismissed as incompetent due to notice being deficient in substance and form and because appellant's supporting affidavit contained only abusive and offensive material - special circumstances found to justify departure from common order of costs on party and party basis - costs awarded to respondent on indemnity basis.

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225, applied.
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359; Re Wilcox; Ex parte Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151; Australian Guarantee Corporation Ltd v De Jager [1984] VR 483, considered.

MCNAMARA v MORROW INVESTMENTS PTY LTD (NO 2)
[2006] SASC 81

Magistrates Appeal

1. VANSTONE J:     On 30 January 2006 I granted the respondent’s application to dismiss the appellant’s notice of appeal as being incompetent.  The respondent now seeks costs of the appeal on an indemnity basis.

2. The appellant, who is unrepresented, was not present when I delivered my judgment.  A copy of my reasons was forwarded to him and he was informed of the respondent’s application and that argument as to it would be heard on 14 February.  He did not appear on that day, but a transcript of the submissions was sent to him and he was advised that I would receive any written submissions he wished to put before me.  In the event he has not chosen to provide any.

3. It is plain that the respondent should have the benefit of an order of costs.  The question is on what basis those costs should be calculated.  In support of the application counsel for the respondent, Mr Blight, pointed to four matters which, he suggested, at least taken in combination, justified an order of costs on an indemnity basis.

4. First the respondent pointed to the fact that the notice of appeal contained no application for leave to appeal as required by Supreme Court Rule 96B.02, and was not served on the respondent as required by r 97.05.  Even though he was unrepresented, the appellant should have been aware of those requirements, because the same failings were brought to his attention in a previous appeal to this Court in the same matter.

5. Then Mr Blight relied on a letter from the respondent’s solicitors to the appellant, dated 16 December 2005, in which the solicitors pointed to the inadequacies of the appeal notice and to the availability of a remedy within the Magistrates Court regime, and also offered to forego costs on the appeal if the appeal were withdrawn in a timely manner.  Before me it was suggested that the appellant’s failure to do so was unreasonable. 

6. The next factor to which counsel referred went to the appellant’s failure to put any or sufficient material before me calling into question the decision under appeal.  That decision was a refusal to grant an adjournment of the trial upon the suggestion that the appellant was unwell.  I found that the material placed before the Magistrate in support of the application was entirely inadequate.  However no further material was placed before this Court.  Consequently the appeal was doomed.  Nor were any grounds of appeal set out in the notice;  only an assertion that the judgment was “unjustified”. 

7. Finally, Mr Blight referred to an affidavit filed by the respondent purporting to support the appeal.  He suggested it contained only material of an abusive and offensive nature, directed at both the Magistrate and the respondent’s solicitors.  Mr Blight put that this affidavit, considered along with the unreasonable conduct referred to already, was suggestive of an ulterior motive for the proceedings, amounting to an abuse of process.  He relied on Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 and Re Wilcox;  Ex parte Venture Industries Pty Ltd (No. 2) (1996) 72 FCR 151. That submission, perhaps, had its genesis in an observation which I made in my reasons for striking out the appeal notice: that the appellant’s conduct was suggestive of an attempt to frustrate the orderly disposition of the matter.

8. The application for costs is made pursuant to s 40(1) Supreme Court Act 1935 and r 101.01.  The making of an order for costs is a matter of discretion.  In Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248 Sheppard J undertook a survey of a number of the authorities dealing with the circumstances in which it is appropriate to award costs on an indemnity basis. He noted that the discretion as to the order for costs and the basis upon which such an order is made is unfettered. His Honour suggested that in order to justify a departure from the common order of costs on a party and party basis, there should normally be some special or unusual feature attending the case. Examples would include the making of allegations of fraud knowing them to be false, the commencement of proceedings for some ulterior motive, the making of allegations which ought never to have been made and an imprudent refusal of an offer to compromise.

9. Here, the purported appeal was entirely deficient both in terms of form and substance.  I indicated in my reasons for decision that even had there been no defect of form, I would have refused leave to appeal having regard to the failure to identify any arguable point.  To that feature of the matter could be added the determination to persist with the appeal in the face of the advice of the respondent’s solicitors – delivered in an even-handed manner – that the appropriate venue for complaint was the Magistrates Court and the appropriate vehicle was an application to set aside judgment.  Even more however, the abusive and offensive material which the appellant chose to place before this Court – material which contained no hint of being other than gratuitous – suggested the sort of “high handed presumption” referred to by Tadgell J in Australian Guarantee Corporation Ltd v De Jager [1984] VR 483, 502.

10. For all these reasons I consider that the respondent has made good its application.  The order of the Court is:

    1.that the appellant pay the respondent’s costs of the appeal on the indemnity basis.