Murphy v Arnoldus-Lewis
[2009] NSWCA 142
•9 June 2009
New South Wales
Court of Appeal
CITATION: Murphy v Arnoldus-Lewis & Anor [2009] NSWCA 142 HEARING DATE(S): On the papers
JUDGMENT DATE:
9 June 2009JUDGMENT OF: Tobias JA at 1; Macfarlan JA at 2 DECISION: Summons for leave to appeal filed on 17 February 2009 is dismissed with costs. CATCHWORDS: PROCEDURE - power to award costs - does not extend beyond legal professional costs to travel and other expenses of non-lawyer litigant - ADMINISTRATIVE LAW - judicial review - jurisdictional error - order made by Small Claims Division of Local Court without power LEGISLATION CITED: Local Courts Act 1982 CATEGORY: Procedural and other rulings CASES CITED: Bakers Delight Holdings Limited v Industrial Court of New South Wales [2009] NSWCA 126
Cachia v Hanes [1994] HCA 14; (1993-4) 179 CLR 403
Craig v South Australia [1995] HCA 58; (1994-5) 184 CLR 163
Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151
Lawrence v Nikolaidis & Co [2003] NSWCA 129; (2003) 57 NSWLR 355
The Queen v Gray; ex parte Marsh [1985] HCA 67; (1984-5) 157 CLR 351PARTIES: Patrick F Murphy T/as North Coast Investigations (Applicant)
Dr Lynette Arnoldus-Lewis (First Respondent)
Aaldrick Arnoldus (Second Respondent)
FILE NUMBER(S): CA 40035/09 COUNSEL: In person (Applicant)
Mr T Mehigan (Respondents)SOLICITORS: In person (Applicant)
Somerville Laundry Lomax (Respondents)LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 10752/08 LOWER COURT JUDICIAL OFFICER: McCallum J LOWER COURT DATE OF DECISION: 23 October 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Arnoldus-Lewis v Murphy [2008] NSWSC 1103
CA 40035/09
SC 19752/08TUESDAY 9 JUNE 2009TOBIAS JA
MACFARLAN JA
1 TOBIAS JA: I agree with Macfarlan JA. Accordingly, the order of the Court is that the summons for leave to appeal filed on 17 February 2009 is dismissed with costs.
2 MACFARLAN JA: This is an application for leave to appeal from a decision of McCallum J ([2008] NSWSC 1103) by which her Honour allowed an appeal from a decision of the Small Claims Division of the Local Court. The parties to the application for leave have consented to the application being determined without an oral hearing pursuant to rule 51.15 of the Uniform Civil Procedure Rules 2005.
3 The claim in the Local Court was one by the applicant (“Mr Murphy”) for unpaid fees for services provided to Dr Arnoldus-Lewis and her husband Mr Arnoldus (“the respondents”) by Mr Murphy as a commercial agent. The magistrate ordered judgment in his favour in the sum of $3,204 together with interest. As Mr Murphy was not represented by a lawyer in the proceedings, he was not awarded legal costs. He was however also awarded $4,313 by way of “expenses”. As McCallum J said:
- “2 Most of the expenses awarded were Mr Murphy’s costs of travelling to Court after the proceedings were transferred to Casino and the time he spent attending that Court on 5 occasions. Mr Murphy had commenced the proceedings in Bellingen but they were transferred to Casino over his objection.”
It was against this award of “expenses” that the respondents appealed to the Supreme Court.
4 The appeal was brought pursuant to s 73(2) of the Local Courts Act 1982.
- At the relevant time this section provided for appeals from the Local Court, sitting in its Small Claims Division, to the Supreme Court “but only on the ground of lack of jurisdiction or denial of natural justice”.
5 Two points were considered by McCallum J.
6 The first was whether the Local Court in its Small Claims Division had power to award “expenses” which were not legal professional costs. Her Honour held that the statutory power to award costs was “plainly confined to legal professional costs” (Judgment [6]) and that there was no other basis upon which the award of “expenses” could be justified.
7 The other point considered by her Honour was whether the absence of power to award “expenses” was a “lack of jurisdiction” within the meaning of s 73(2). Her Honour did not find it necessary to finally resolve this point as she said that the point had not been taken or argued before her by Mr Murphy.
8 In my view leave to appeal to this Court from the decision of McCallum J should be refused. One matter is the small amount of money at issue. Furthermore and more significantly, I consider that Mr Murphy does not have any significant prospects of success on the appeal which would follow in the event that leave were granted.
9 First, I do not see any reason to doubt her Honour’s conclusion as to the absence of power to award “expenses”. Her approach to construction of the statutory power to award costs reflects the decisions in Cachia v Hanes [1994] HCA 14; (1993-4) 179 CLR 403 and Lawrence v Nikolaidis & Co [2003] NSWCA 129; (2003) 57 NSWLR 355.
10 As to the second point, whilst the distinction between a jurisdictional and a non-jurisdictional error can be difficult to draw (see for example Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151 at [37-40] per Spigelman CJ; The Queen v Gray; ex parte Marsh [1985] HCA 67; (1984-5) 157 CLR 351 at 371 per Gibbs CJ), the present is not a case which is in my view close to the borderline.
11 Assuming the correctness of her Honour’s decision on the first point, the case is a straightforward one of a court making an order of a type which it has no power to make. This was clearly a jurisdictional error. In Craig v South Australia [1995] HCA 58; (1994-5) 184 CLR 163, the High Court referred to different ways in which an inferior court might commit a jurisdictional error. It described the “most obvious” case as one where the inferior court acted “wholly or partly outside the general area of its jurisdiction”. It went on to say that such a court:
- “… would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach” (at 177).
12 The High Court then identified some less obvious examples of jurisdictional error and concluded with the following comment:
- “Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” (at 177-8).
13 As examples of the proposition in the last quoted sentence, the High Court referred to three earlier decisions. These did not deal with situations analogous to the present which I consider to be within the category described in the quotation in [11] above. Although the example given in relation to that category contained a reference to a situation in which powers were “strictly limited”, the category is in my view equally applicable to a case such as the present where, on its proper construction, the relevant legislation does not confer any power to make the order made.
14 I would add that the judgment in Craig v South Australia remains the principal authoritative statement of Australian law with respect to the determination of when a court that is subject to supervision by a court of general jurisdiction commits a “jurisdictional error” (Kirk Group at [37] per Spigelman CJ; Bakers Delight Holdings Limited v Industrial Court of New South Wales [2009] NSWCA 126 at [27]).
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