Olsson v Doran

[2000] VSC 391

SUPREME COURT OF VICTORIA          

Not Restricted

PRACTICE COURT

No. 6015 of 2000

WILLIAM FREDERICK OLSSON and ANOR	Plaintiffs
v
HENRY DORAN and ORS	Defendants

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2000
DATE OF JUDGMENT:	21 September 2000
CASE MAY BE CITED AS:	Olsson and Anor v Doran and Ors
MEDIUM NEUTRAL CITATION:	[2000] VSC 391

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Costs - Appeal from decision of a Master, dismissing an appeal from a Magistrate pursuant to O. 58.09 - Associations Incorporation Act ss. 14A, 29 - Whether discretion of Master miscarried - Decision not clearly wrong.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	In person
For the Defendants	No appearance

HIS HONOUR:

1. This is an appeal from a decision of a Master who, exercising power under O.58.09 of the Rules of the Supreme Court, dismissed an appeal from a decision of a magistrate as to costs.  The final order of costs was made by the magistrate on 1 August 2000.

1. The appellants are office bearers of an Association called the Australian Goldpanning Association, which is incorporated under the Associations Incorporation Act 1981. The appellants were the respondents to an application brought before the Magistrates' Court at Maryborough pursuant to s.14A(2) seeking directions, declarations and orders in the nature of injunctions relating to the conduct and outcome of a meeting of Association members held on 30 January 2000.

1. At that meeting and, the appellants say, without prior notice, a group of people (amongst whom the applicants in the Magistrates' Court proceedings were numbered) conducted what purported to be an election of office holders of the Association.  The appellants participated in the vote - they say reluctantly - and without conceding that it was a lawful ballot.  They were defeated.

1. Disputation between the two groups followed the meeting.  The appellants as, they say, the lawful office holders, refused to make records available to the other group and rejected offers of mediation which they considered were themselves unlawful, being made in terms which involved the holding of a general meeting in a manner contrary to the provisions of the Act.

1. On 9 May 2000 the application was issued against them and was heard by the magistrate on 7 June. Both sides were represented by counsel. No evidence as to the merits was called because it emerged that the applicants were well aware that the meeting had not lawfully effected a change in the composition of the committee, because by virtue of s.29(2) a resolution could only be passed by a vote in favour thereof of not less than three quarters of those entitled members voting on the resolution. That majority was not achieved.

1. The application was therefore dismissed, but the magistrate expressed his view that he might award costs against the respondents, that is, the present appellants.  He then heard lengthy submissions and the first appellant, Mr Fred Olsson, gave evidence on the question of costs.

1. His Worship exercised jurisdiction on costs under s.14A(4)(c), which reads in relevant terms:

"The Magistrates' Court may refuse to make an order on the application or may make an order for costs against the party, whether successful or not, if it is of the opinion that -

(c)the unreasonable or improper conduct of the party has been responsible for the making of the application or has added to the costs of the proceedings." 

1. His Worship found that the conduct of the Olssons was unreasonable or improper, and that they had acted in a scheming and conniving fashion , intent on advancing their own ego and position.  He found that had they won the vote, they would have been content to rely on the outcome but he concluded, in effect, that having lost that vote, they made it difficult for the applicants to do anything but bring what proved, and they expected, to be a futile application to the court in the hope of somehow resolving the impasse which had arisen.

1. The appellants before me submitted that the application, being known to have no prospects of success, was only brought because the unlawful group (as they see their opponents) was not being permitted by Australia Post to receive mail for the Association. 

1. The appellants complained that, in reaching his decision on costs, His Worship took into account irrelevant considerations and reached conclusions which were not supported by the evidence, or else drew conclusions on matters on which he had heard only limited evidence.  In particular, they submit that His Worship completely undervalued the fact that they had been vindicated in their contention that they, and not the applicants, had acted lawfully and in accordance with the terms of the Act.

1. An appeal against an order of costs is an appeal which is concerned with the discretionary jurisdiction of the court.  There is a strong presumption in favour of the correctness of the decision appealed from in the case of an order made in the exercise of the discretion as to an award of costs.  An appeal of this sort will only succeed if the decision is shown to be clearly wrong: See The Australian Coal and Shale Employees Federation v. The Commonwealth (1953) 94 C.L.R. 621 at 627. The general discretion which is held by any court as to an award of costs is given particular force in this instance by the terms of s.14A(4)(c), which are extremely wide, and expressly identify as one appropriate situation which might arise, the case where a party was unsuccessful but may yet recover costs against the party who was successful. That is a section which is plainly intended by the Parliament to emphasise the very wide discretion of a magistrate in dealing with what might be intractable disputes which could be brought by the Magistrates' Court involving the affairs of Associations.

1. I have some sympathy for the appellants, who presented their arguments before me with dignity and clarity and, indeed, with some strength.  They feel aggrieved that they were the subject of what may be seen to be very harsh findings of fact as to their character and motives, which received wide publicity in their local area.  The order of costs is of a substantial sum.  They say that they were merely seeking to preserve the organisation and that it was their opponents who were seeking to wreck it.

1. The difficulty they face is that they were given a full opportunity to present their arguments on costs. The magistrate, indeed, gave a clear indication of his preliminary view. They failed to persuade him that their conduct did not meet the criteria under s.14A(4)(c). Having read the full transcript of the proceedings before the magistrate, I can say that I might myself have reached a different conclusion to that reached by the magistrate, but I did not hear the case, nor did I see Mr Olsson give evidence, nor did I have regard to all of the material which was before the court. I am not persuaded that he acted on any wrong principles.

1. In my view, no error of law has been demonstrated, as is required for an appeal of this character to succeed, and the appeal against the exercise of the magistrate's discretion cannot hope to succeed.  The decision of the Master was correct.  Were, indeed, the appeal to be permitted to proceed, I have to say that it seems to me it would only delay the inevitable outcome, which would be, at a later point, the appeal would undoubtedly be dismissed, but this time with an order of costs most likely to be made against the appellants on the Supreme Court scale.

1. The appeal, in my view, must be dismissed.

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