Moore-McQuillan v Police (No 4) No. Scciv-98-748

MOORE-McQUILLAN v POLICE (No 4)
[2002] SASC 237
Full Court: Olsson, Wicks and Gray JJ

Olsson J: Like matter No 240 of 1988, these proceedings also come before the Full Court, as presently constituted, for reconsideration, by virtue of an order made by the High Court of Australia on 19 April 2002.
Whilst the present application relates to what is essentially the same general subject area as the orders made by Duggan J in matter No 240 of 1998, the focus of it is quite different, as is the relevant history of events. I will first attempt a summary of that history.
At the same time as Mr Moore-McQuillan sought to appeal against his convictions in that matter, he also lodged a separate appeal, to a single Judge of this Court, against the confirmation of the interim restraining order on which certain of those convictions were founded.
On 24 June 1997, this last-mentioned appeal came before Duggan J. and, for reasons expressed by him (Moore-McQuillan v Police (unreported -- Judgment S 6215)), he set aside the order of confirmation and remitted the matter for re hearing before another magistrate.
The proceedings then came before Mr Field SM who, on 19 December 1997, refused to make an order of confirmation and dismissed the original complaint. The prosecution was thereupon ordered to pay $120 for costs of conveyance and parking.
On 4 April 1998, Mr Moore-McQuillan lodged an appeal against that order for costs. He asserted that he was out-of-pocket for legal costs which he had paid, in a total sum of $10,712.49.
The appeal was, thus, grossly out of time. The proceedings eventually came before Debelle J, on 8 July 1998, as an application for extension of time. He entertained argument as to the full merits and published reasons for his decision on 27 November 1998 (Moore-McQuillan v Police (unreported -- Judgment S 6971)).
In those reasons, after an extensive analysis of the material before him, Debelle J (inter alia) concluded that the legal fees in question simply did not relate to the proceedings which had been before the Magistrate. He also held that no other proper basis for allowing any sum, in excess of the $120 actually awarded, had been demonstrated. Moreover, he was of opinion, for reasons expressed, that it was, in view of the history of the manner, quite inappropriate to grant the extension sought. Debelle J canvassed the relevant circumstances fully in his reasons and there is no point in reiterating all of what he said. At the end of the day, he refused the extension of time and intimated that, even if an extension had been granted, the appeal was foredoomed to failure.
On 10 December 1998, Mr Moore-McQuillan prosecuted an application to Debelle J for leave to appeal against that refusal. The learned judge refused leave. He commented that the issue in the appeal had been whether certain legal costs, which the applicant had undoubtedly incurred, were in fact related to the initial grant of the restraining order and his successful appeal against that order. Debelle J reiterated that he had positively found that they were not so related.
Debelle J observed that Duggan J had specifically made no order as to the costs of the appeal which he heard, as recited above. That decision has never been overturned. If Mr Moore-McQuillan had any proper claim for costs, such claim was limited to his costs in the Magistrates Court in relation to opposing the restraining order or setting it aside. As a matter of fact, the costs sought to be recovered had been incurred by Mr Moore-McQuillan during several periods between 1 February and 30 November 1996.
The proceedings subsequent to the order of Duggan J all occurred after that time span.
Debelle J' s original summary of the relevant factual history was expressed in these terms --
"Three facts are apparent from the above chronology. First is that all of the events marked with an asterisk relate to matters which are not directly related to the making of the restraining order or the appellant's attempts to set it aside but, instead, relate to breaches of that order and other matters. Secondly, all of the events, other than the appearance before Mr Harris SM, fall outside the period when the two firms of solicitors respectively advised the appellant and in respect of which they rendered fees. Thirdly, although it is apparent from the memorandum of fees rendered by Fletcher & Jones that they acted for the appellant when he appeared before Mr Harris SM charged, among other things, with breaches of the restraining order, questions of costs relating to that appearance were the subject of a separate order for costs made by Duggan J on 25 February 1998 to which I will refer in a moment. The items marked with an asterisk all relate to the appeal which has a file numbered 240 of 1997 in this Court and which concerns the appeal instituted by the appellant against the convictions ordered by Mr Harris SM on 22 March 1996. On 17 February 1998 Duggan J set aside the convictions for breaches of the restraining order but upheld the convictions for assaulting police and resisting arrest. On 25 February 1998 Duggan J ordered a fresh penalty and made an order for costs in relation to both the appeals and the proceedings in the Magistrates Court. That order was that there be no order as to the costs of of the appeal or the proceedings in the Magistrates Court. The appellant applied for leave to appeal but leave was refused. Thus, an order has been made in respect of the matter in respect of which Fletcher & Jones rendered their fees. For these reasons, the services rendered by the Fletcher & Jones or Johnston Withers cannot be the subject of any order for costs made by Mr Field SM.
There is yet another reason why the costs incurred in relation to the proceedings before Mr Harris SM on 22nd March 1996 could not be recovered as costs of this matter. Notwithstanding that the appellant had challenged the validity of the restraining order, he was obliged to comply with it while it remained in force. He, therefore, cannot recover as costs in these proceedings to set aside the order any costs incurred in respect of defending charges brought for a breach of the order."
On the application for leave to appeal Debelle J stressed that the issues on the appeal were essentially issues of fact. There was no question of principle involved and it was not, in his view, a proper case in which to grant leave to appeal to the Full Court. He further stressed that no reason had been advanced why the conclusions previously expressed by him were, in any respect, wrong. He considered that the situation was that the applicant merely sought to reargue the same issues as had, earlier, been canvassed before him. The accuracy of that summation readily appears from the transcript of proceedings before Debelle J on 29 February 2000.
On 13 March 2000, Mr Moore-McQuillan purported to renew an application for leave, direct to the Full Court. As the Full Court later pointed out, the application had been grossly out of time when originally made to Debelle J and the application of the Full Court was, in any event, not pursued with diligence. It did not come to the Full Court until late June 2000, because Mr Moore-McQuillan did not file his summary of argument until 16 June 2000.
On 7 July 2000, having considered the application in private, the Full Court refused leave, for reasons published by it (Moore-McQuillan v Police [2000] SASC 229).
On an application for special leave, the High Court made orders in terms similar to those in matter No 240 of 1998. It seems to have done so on the footing that it was not clear as to whether Duggan J's order as to costs, in that matter, might have some bearing on the present proceedings.
It is apparent from the High Court transcript that considerable confusion arose as to this. No-one seems to have appreciated that Duggan J's order related only to the original prosecution proceedings and could not possibly have borne on what is here in issue, namely the interim restraining order and the subsequent confirmation hearing.
At any event, at the suggestion of the Solicitor-General, the orders were made in this matter "so that [the Full Court] can deal with the whole issue of the orders arising from Duggan J."
In other words there seems to have been a considerable misapprehension concerning the situation. As emerges from the above summation, the issues in this matter are quite different from those dealt with by Duggan J.
It has long been established that, in circumstances such as those now under consideration, is only proper to grant leave to bring a further appeal to the Full Court where the proposed grounds of appeal disclose a point of law, or a point of principle, of general importance, or, in some exceptional cases, where there are clear indications that an injustice has occurred. (See Martin v Kraft (No 2) (SAFC, 1 July 1991, S 2964 , unreported).
As this Court pointed out on 7 July 2000, there is nothing before it to suggest that the matters which the applicant wishes to agitate remotely satisfy such a test. The issue before Debelle J. was one of fact and the material before this Court does not suggest any error on his part. On the contrary, prima facie, his conclusions appear to be beyond reproach. The applicant merely wishes to really argue the same question before this Court, without being able to demonstrate apparent error on the part of Debelle J.
Added to that is the consideration that SCR 94.02 requires any application to the Full Court to be filed within 14 days of refusal of leave by the judge sought to be appealed against. It was out of time when filed and was not thereafter pursued with diligence.
In the circumstances, I would refuse both an extension of time and leave to appeal.
WICKS J: For the reasons given by Olsson J, I would refuse an extension of time and leave to appeal.
GRAY J: I agree.

[2002] SASC 237

1 August 2002