Northern Territory of Australia v Mueller - [2000] NTSC 19

Northern Territory of Australia v Mueller & ors [2000] NTSC 19
PARTIES:NORTHERN TERRITORY OF AUSTRALIA
and
CHRISTOPHER JOHN MUELLER
AND
NORTHERN TERRITORY OF AUSTRALIA
and
ROBERT CARMICHAEL FITZSIMMONS
AND
NORTHERN TERRITORY OF AUSTRALIA
and
ADRIANNA SUSANNA BRAND
AND
NORTHERN TERRITORY OF AUSTRALIA
and
RICHARD SMITH
NORTHERN TERRITORY OF AUSTRALIA
and
JEANETTE RUTH TILMOUTH
AND
NORTHERN TERRITORY OF AUSTRALIA
and
WILLIAM KUNOTH-MONKS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS9926872, 9926874, 9926875, 9926876, 9926877, 9926878
DELIVERED:  6 April 2000
HEARING DATES:  3 April 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:R. Anderson
Respondents:  R. Goldflam
Solicitors:
Appellant:Povey Stirk
Respondents:  Northern Territory Legal Aid Commission
Judgment category classification:           C
Judgment ID Number:  ril0009
Number of pages:  14

ril0009
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Northern Territory of Australia v Mueller & ors [2000] NTSC 19
BETWEEN:

9926872NORTHERN TERRITORY OF AUSTRALIA
Appellant
AND

CHRISTOPHER JOHN MUELLER
Respondent

9926874NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND
ROBERT CARMICHAEL FITZSIMMONS
Respondent

9926875NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND
ADRIANNA SUSANNA BRAND
Respondent

9926876NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND
RICHARD SMITH
Respondent

9926877NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND
JEANETTE RUTH TILMOUTH
Respondent

9926878NORTHERN TERRITORY OF AUSTRALIA
Appellant

AND
WILLIAM KUNOTH-MONKS
Respondent

CORAM: RILEY J
REASONS FOR DECISION
(Delivered 6 April 2000)

In these proceedings the appeals were heard together by request of the parties. Each of the respondents is a person who has been issued with an assistance certificate pursuant to the terms of the Crimes (Victim’s Assistance) Act (NT). In relation to each of the respondents the presiding Magistrate made an order that he or she should have his or her costs paid on the basis of 80 percent of the relevant scale of costs as set out in the appendix to the Local Court Rules.
The appellant, who was the respondent to each application, appealed on the ground that the learned Magistrate erred in awarding costs to the applicant fixed at 80 percent of the Supreme Court scale for works “commenced and done” prior to the commencement of the amended Local Court Rules on 1 June 1998.
There were two other grounds of appeal. The second was to the same effect as the first. The third ground was abandoned by Mr Anderson, who appeared on behalf of the appellant.
The appeals arise out of an amendment to the Local Court Rules which took effect on 1 June 1998. Except for the matter of Christopher John Mueller, in each of the cases an application for an assistance certificate in favour of the respondent had been commenced prior to the amendment to the Rules and the certificate was issued subsequent to the amendment taking effect on 1 June 1998. In the case of Mr Mueller work on an application for assistance had been undertaken prior to 1 June 1998 but the application was commenced after that date.
Prior to the amendment r 36.10 of the Local Court Rules provided that the applicable scale of costs was that contained in the (now superseded) Schedule 1 to the Rules.
After the amendment r 38.07 of the Local Court Rules provided for a different scale. It provided that:
“Costs under the Crimes (Victim’s Assistance) Act are allowable at 80 percent of the relevant scale of costs set out in the Appendix unless the Court orders otherwise.”
The “Appendix” is defined to refer to the appendix to O 63 of the Supreme Court Rules. That appendix incorporates what is described as “the Supreme Court Scale of Costs”.
It is agreed between the parties that the scale provided for in r 38.07 applies to work done in each matter after 1 June 1998. The subject matter of each of the appeals is the work done in respect of each individual proceeding before that date.
There is no dispute as between the parties that r 1.08 of the Local Court Rules applies to the circumstances of each of these matters. That Rule provides for the transition from one set of rules to the other and is in the following terms:
“The costs for work done in a pending proceeding –
(a)before the commencement date are to be determined in accordance with the former Rules; and
(b)on or after the commencement date are to be determined in accordance with these Rules.”
It is therefore clear that the former Rules apply to the work which is the subject of dispute in these matters ie work performed prior to 1 June 1998. In her reasons for decision her Worship acknowledged that to be so and noted that the effect of the Rule was to differentiate “as between work which has been carried out prior to the commencement date of the Rules, and that subsequent to it.” Notwithstanding that, her Worship went on to apply the scale as provided in the post-amendment Rules. In so doing she made the following observations:
(1)the work carried out throughout the proceedings related to the proceeding overall and there should be “no variation with regard to costs as before and after the commencement of the new Rules”;
(2)the old Rules permitted the taxation of costs but the parties in these matters were not keen to proceed to taxation in view of the additional costs involved in such an exercise; and
(3)there is no reason to differentiate between work done prior to the commencement of the new Rules and that done after.
Her Worship went on to conclude:
“I consider that the work overall should be paid on the basis of 80 percent of scale, given that they have crossed the line of the commencement date and I see no reason to differentiate between the work done before and that done after. Accordingly, in each of these matters I order that they be paid on the basis of 80 percent [of the Supreme Court scale].”
I note that the Rules themselves provide one reason to differentiate between work done before and that done after the amendment in that r 1.08 specifically provides for that to occur. In her reasons her Worship noted “the contents of the current r 1.08” but proceeded in the manner described notwithstanding.
It is the complaint of the appellant that her Worship failed to exercise her discretion in accordance with the pre-amendment Local Court Rules. Rather, it was submitted, she exercised her discretion in accordance with the Local Court Rules as amended from 1 June 1998. It was submitted that in so doing her Worship erred.
The Scheme of the Act
The Crimes (Victim’s Assistance) Act permits a “victim” (ie a person who is injured or dies as a result of the commission of an offence by another person) to obtain an assistance certificate which certificate provides that the Northern Territory shall pay a sum of money by way of assistance for the injury suffered by the victim. When the Court issues an assistance certificate it may, by virtue of s 8(10) of the Act, “make such order as to costs and disbursements as it thinks fit”. Section 24 of the Act then limits the costs payable to a legal practitioner in respect of an application, to those costs which have been allowed as between the legal practitioner and the applicant by the Court.
Section 21 of the Local Court Act permits the Chief Magistrate to make Rules for the purpose of facilitating the exercising of the jurisdiction conferred on the Court. Such Rules shall be as the Chief Magistrate “considers necessary or convenient for the conduct of the business of the Court” and may “prescribe costs in respect of a proceeding in the Court”. Rules have been made in relation to the Crimes (Victim’s Assistance) Act and these are described as the Local Court (Crimes (Victim’s Assistance)) Rules. Rule 11 of those Rules provides that “Order 36 of the Local Court Rules, and the Schedule to the Order, apply to an order made by the Court under s 8 of the Act that the Territory shall pay an amount of costs”. Order 36 of the Local Court Rules was replaced when the Rules were amended in June 1998. However, prior to amendment, it contained a number of provisions relating to the issue of costs. By virtue of r 11 (above) these provisions applied to costs orders made under the Crimes (Victim’s Assistance) Act.
By r 36.10 of the Local Court Rules “the scales of costs contained in Schedule 1 apply in relation to the award of all costs for work done after the commencement of this Order.” Schedule 1 Part 2 set out the applicable scale of costs.
Rule 36.12(1) provided for the situation where a party was dissatisfied with the fees allowable. It provided that:
“Where a successful party submits to the Court that the lump sum preparation or the scale fees are not sufficient to cover the work actually and reasonably performed by his or her legal practitioner the Court may order the matter be referred to taxation.”
By reference to r 36.12(4) it is clear that the Taxing Officer was able to increase the fees beyond the scale in order to provide “sufficient to cover the work actually and reasonably performed” by the practitioner.
It is pursuant to this regime that the appellant says that her Worship should have dealt with the various applications for costs for work done prior to 1 June 1998. It says that the exercise of her discretion was to be carried out in the context of the Local Court Rules as they existed prior to amendment on 1 June 1998. It was not open to her to direct that costs be awarded in accordance with, or by reference to, some other scale such as the Supreme Court scale.
The appellant relied upon the judgment of Kearney J in Burslem v Roberts (1995) 123 FLR 411 in support of this proposition. In that case his Honour heard an appeal from a Magistrate in relation to costs payable to a successful applicant under the Workers’ Compensation Act. The Magistrate found that the scale of costs applicable to workers compensation matters had not been amended since 1978 and, as such, “the scale of costs failed to provide any real indemnity to a successful party and in the instant case are inequitable”. The scale of costs had been provided for in Rules made by the Chief Magistrate under s 6F of the Workers’ Compensation Act. On appeal Kearney J thought there was “great force” in the criticism that the scale was “totally out of date” and did not provide “any real indemnity” to a successful party. He agreed that it would be unjust to restrict the respondent to that scale.
Notwithstanding those conclusions Kearney J identified the question as being one of the proper construction of the section under which the learned Magistrate had acted in order to award costs based upon a scale substantially greater than that provided for in the Rules. Section s 6B(1A) of the Workers’ Compensation Act 1949 (NT) provided that the Court “may make such orders as to costs, disbursements and witnesses expenses as it thinks fit”. The learned Magistrate relied upon that power to reject the scale provided for in the Rules and to allow costs on a percentage of the Supreme Court scale.
In allowing the appeal Kearney J accepted submissions that:
“(a)the power under s 6B(1A) of the Act relates to the discretion of the Workers Compensation Court to award costs to a party, and not to the scale thereof; and
(0)in order for the scale of costs awarded to be altered, the alteration must be promulgated by the Chief Magistrate”.
In accepting those submissions Kearney J said (at 422):
“The Act contemplates that a scale of costs for proceedings under the Act will be fixed by the Chief Magistrate under s 6F(1) and the power in s 6B(1A) does not extend to applying a different scale of costs to that so fixed. The Rules contemplate that above scale amounts may be awarded by the Registrar in cases which fall within r 30(7)(b), while r 30(7)(c) provides for “reasonable” amounts in cases “not specifically provided for” in the Schedule.”
The appellant submits that the same reasoning should be adopted in relation to this matter. Here the scale of costs was made by Rules fixed by the Chief Magistrate under s 21 of the Local Court Act. The Rules contemplate that above scale amounts may be awarded by operation of r 36.12 which permits the successful party to have his or her costs taxed. The discretion contained in s 8(10) of the Crimes (Victim’s Assistance) Act does not extend to applying a different scale of costs to that so fixed.
Mr Goldflam, who appeared on behalf of each of the respondents, sought to distinguish Burslem v Roberts on three bases. The first was that in that case the Magistrate chose to apply the Supreme Court scale of costs despite the fact that the relevant Rules established its own scale which was a lower scale. It was submitted that in the present matters the learned Magistrate was dealing with proceedings which “spanned a period in which two sets of Rules were in existence” and therefore two scales of costs were to be considered. I do not regard this as a valid point of distinction. In each instance the Rules pointed to one scale of costs being applicable. In relation to the present cases the Rules specifically provided that the pre-amendment provisions as to the applicable scale of costs applied.
Secondly Mr Goldflam submitted that the relevant Rules applicable in the matter of Burslem v Roberts permitted variation from the scale only where:
(1)the scale allowance would be inadequate having regard to the nature or amount of the work performed (r 30.7(b)); or
(2)the work performed was not specifically provided for in the Rules (r 30.7(c)).
It was submitted that in Burslem v Roberts the learned Magistrate ordered a variation from the scale in circumstances other than those permitted by the identified Rules. It was submitted that in contrast, in the present cases, the variation from the Schedule was within the more general discretionary powers provided in r 36.18 of the former Local Court Rules. That Rule permitted the Court to “increase or decrease the amount or value of an allowance or expense in the Schedule as it thinks fit”. However, reference to r 36.18 makes it clear that the ability to increase or decrease the amount or value of an allowance or expense is related to “the Schedule”. It does not permit the Court to adopt a scale not provided for in the Schedule.
Finally Mr Goldflam submitted that in Burslem v Roberts the Magistrate made costs orders under a scale completely outside the relevant Rules. He submitted that in the instant cases the Magistrate made orders envisaged by and within the relevant Rules, although not according to the guide of the Schedule. In fact this is not so. The Magistrate in these matters applied a scale which was outside the relevant Rules being the scale which only came into consideration after the Rules were amended.
In the circumstances, in my opinion, the attempt to distinguish Burslem v Roberts was not successful.
Mr Goldflam also made reference to r 36.13(1) of the Local Court Rules which provided that the rules of taxation under the Supreme Court Rules applied to Order 36 unless the contrary intention is expressed. He submitted that r 63.03 of the Supreme Court Rules therefor had application and that empowered the Court in awarding costs to avoid “an anomaly” by making such order in relation to costs as the Taxing Master or the Court thought equitable in the circumstances. However, the Supreme Court Rules do not apply in the circumstances of this matter as the application of the pre-amendment Rules is clearly expressed. In other words there is a contrary intention expressed.
In my opinion the approach adopted by Kearney J in Burslem v Roberts ought to be followed in this matter. The Crimes (Victim’s Assistance) Act when read with the Local Court Act clearly contemplated that a scale of costs for proceedings under the Act would be fixed by the Chief Magistrate. The discretion provided by s 8(10) of the Crimes (Victim’s Assistance) Act does not extend to applying a different scale of costs from that so fixed. If above scale amounts are sought by an applicant then that claim is to be accommodated by reference to a taxation pursuant to r 36.12 of the Local Court Rules.
In exercising her discretion to award costs under the Crimes (Victim’s Assistance) Act her Worship erred in failing to apply the scale provided for under the pre-amendment Rules. Her Worship erred in taking into account an irrelevant consideration being the scale applicable under the post-amendment Rules and failed to take into account a relevant consideration being that the exercise of her discretion was limited by reference to the pre-amendment Rules.
I am unable to agree with the submission of Mr Goldflam that I ought not to interfere in these matters because there was no miscarriage of justice. That submission was not developed or supported by reference to material before her Worship or material before this Court.
I allow the appeal. In the circumstances of each of the matters, and consistent with the submission made by Mr Goldflam on behalf of the respondents (which submission was not opposed by the appellant) I direct that in relation to work carried out prior to 1 June 1998 the matter be referred to taxation pursuant to r 36.12 of the former Local Court Rules.

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