Oteri v Craft Decor Pty Ltd - [2010] WADC 187

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: OTERI -v- CRAFT DECOR PTY LTD [2010] WADC 187

CORAM: SCHOOMBEE DCJ

HEARD: 8 OCTOBER 2010

DELIVERED : 14 DECEMBER 2010

FILE NO/S: APP 52 of 2010

BETWEEN: NINA OTERI
Appellant
AND
CRAFT DECOR PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE JONES
File No  :FR 1537 of 2005

Catchwords:

Appeal from Magistrates Court - Appeal against magistrate's overturning of registrar's decision - Jurisdiction by District Court to hear appeal from magistrate's decision on appeal - Whether magistrate made error - Meaning of 'value of the claim' in s 25(5) of Magistrates Court (Civil Proceedings) Act 2004 - Whether r 87 and r 88 of Magistrates Court (Civil Proceedings) Rules 2005 apply to s 25(5) - Whether costs regime applicable to minor cases applies where claimant files claim in general procedure jurisdiction but obtains judgment below the jurisdictional limit for minor cases

Appeal against refusal by magistrate to grant application to amend order by previous magistrate under the slip rule - Whether District Court jurisdiction to hear appeal - Whether application was interlocutory - Information obtained from previous magistrate regarding meaning of order - Whether magistrate should have considered explanation by previous magistrate upon hearing application to amend the order

Legislation:

Magistrates Court Act 2004, s 29(4)
Magistrates Court (Civil Proceedings) Act 2004, s 25(5)
Magistrates Court (Civil Proceedings) Rules 2005, r 87, r 88

Result:

Appeal upheld in respect of order by learned magistrate on taxation
Appeal upheld in respect of application to amend costs order

Representation:

Counsel:

Appellant: Mr B P Wheatley
Respondent: Mr T H Brickhill

Solicitors:

Appellant: Mossensons
Respondent: Brickhills

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280
Allesch v Maunz (2000) 203 CLR 172
Bunning v Cross (1978) 141 CLR 54
Butler v Bennett [2007] WADC 107
Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579
Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Crowley v Glissan (1905) 2 CLR 402
Cummings v Lewis (1993) 41 FCR 559
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
Grassby v The Queen (1989) 168 CLR 1
Hall v Nominal Defendant (1966) 117 CLR 423
House v The King (1936) 55 CLR 499
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126
Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 73 ALJR 68
R J Davies Pty Ltd v Keath Earthmoving Co Pty Ltd [1965] WAR 189
R v Cripps; Ex parte Muldoon [1984] QB 686
R v Steffan (1993) 30 NSWLR 633
Re Cooke [1997] 1 Qd R 15
Re Hayward v Martin (1895) 17 ALT 37
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
White v Brunton [1984] QB 570

SCHOOMBEE DCJ:

This matter concerns an appeal against a decision by his Honour Magistrate Jones who overturned the result of a taxation undertaken by Registrar Stevenson of the Magistrates Court (the Registrar). The matter also concerns an appeal against a decision by his Honour Magistrate Jones to refuse an application to amend a costs order under the slip rule. The costs order had been granted by a previous magistrate and formed the basis of the taxation.

The proceedings, the costs order made and the taxation

Ms Nina Oteri, the plaintiff (who is also the appellant) lodged a claim in 2005 in the Magistrates Court against Craft Décor Pty Ltd, the defendant (who is also the respondent) for the total amount of $40,216. It appears that the trial commenced in 2007, but was only part-heard and completed approximately two years later. In January 2009 his Honour Magistrate Michelides gave judgment for the plaintiff in the sum of $4,752. After hearing detailed submissions from both parties, Magistrate Michelides made the following costs order:
Defendant to pay 2/3 of plaintiff's costs to be taxed on scale applicable to judgment sum of $4,752.
The plaintiff lodged a bill of costs which was taxed before the Registrar. Both parties appeared at the taxation on 1 February 2010. At this hearing the plaintiff submitted that the costs ought to be taxed according to the costs determination applicable to the general procedure jurisdiction, whereas the defendant argued that only 'allowable costs' under the minor cases jurisdiction should be awarded, because the costs order had specified costs on a scale applicable to the judgment sum of $4,752. The Registrar reserved his decision and indicated that, if necessary, he would refer the matter to Magistrate Michelides for further advice regarding the meaning of the costs order.
By letter, dated 2 February 2010 the Registrar advised both parties of the following:
Mr Michelides has directed that his intention was not to limit the costs to allowable costs under s 31. The claim was for an amount which fell within the general procedure jurisdiction of the Court and could not have been brought in the Minor Case jurisdiction.
The matter was relisted for taxation on further dates and finally taxed according to the costs determination applicable to the general procedure jurisdiction.

The appeal to Magistrate Jones against the taxation and its outcome

The defendant appealed against the Registrar's taxation. The appeal was listed before Magistrate Jones because Magistrate Michelides had by then retired. The appeal before Magistrate Jones was a new hearing pursuant to s 29(4) of the Magistrates Court Act 2004 and Magistrate Jones made his decision afresh as to whether the costs determination applicable to general jurisdiction matters or 'allowable costs' applicable to minor cases should apply.
Magistrate Jones essentially came to the conclusion that it would be inappropriate for him to 'go behind' the wording of the costs order made by Magistrate Michelides or to have regard to the letter by the Registrar in which he recorded the advice by Magistrate Michelides that his intention was not to limit the costs to 'allowable costs' under s 31 and the minor cases jurisdiction.
Magistrate Jones relied on s 25(5) of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) which provides that where 'the value of a claim, or the relief claimed' was not more than the minor cases jurisdictional limit, and the claimant did not elect to have the claim dealt with under the minor cases procedure, or the court ordered that the case be dealt with under the general procedure, the court could only order costs under s 25(1) (costs applicable to general procedure claims) if such an order was permitted under s 31 had the case been dealt with under the minor cases procedure. In other words, where 'the value of a claim, or the relief claimed' was not more than the minor cases jurisdictional limit, the claimant was only entitled to the costs applicable to a minor case unless s 31 allowed for other costs.
Magistrate Jones also relied on r 87 and r 88 which appear in Division 2 of the Magistrates Court (Civil Proceedings) Rules 2005 (the Rules). The Rules apply to cases in the general procedure jurisdiction (see r 5). Rule 87 states that 'for the purposes of assessing a party's costs under the applicable costs determination, the value of a claim is the amount determined under this Division'. Rule 88 provides that the 'value of a claim' is the amount of the judgment.
Magistrate Jones came to the conclusion that r 87 and r 88 applied to the phrase 'the value of a claim' in s 25(5) of the Act, so that the value of the plaintiff's claim was deemed to be only $4,752, because this was the judgment sum that the plaintiff had recovered. As the minor cases jurisdictional limit (at that time) was $7,500, the judgment sum fell under that limit and the plaintiff was therefore only entitled to the costs applicable to a minor case.
Magistrate Jones was of the view that this is what Magistrate Michelides must have meant by his costs order as he ordered the costs 'to be taxed on a scale applicable to the judgment sum of $4,752.00', and this amount fell under the jurisdictional limit for minor cases. Magistrate Jones said that it would not be appropriate for him to 'go behind' the costs order made by Magistrate Michelides nor to have regard to the Registrar's letter to the parties.
In accordance with this finding Magistrate Jones awarded the plaintiff only the 'allowable costs', representing a claim filing fee, a service fee, hearing fees and a witness summons service fee in the total amount of $1,238.85. Magistrate Jones further reduced the 'allowable costs' to $825.90 on the basis that Magistrate Michelides had ordered that only two thirds of the plaintiff's costs be paid by the defendant.
The plaintiff appeals to this court against the decision made by Magistrate Jones to overturn the Registrar's taxation, limit the costs to 'allowable costs' and reduce them by one third.

The application before Magistrate Jones to amend the costs order under the slip rule

The plaintiff had also brought an application before Magistrate Jones to amend the costs order by Magistrate Michelides under the slip rule by the addition of the words 'but not limited to allowable costs under s 31 of the Magistrates Court (Civil Proceedings) Act 2004'. Magistrate Jones dismissed this application and provided oral reasons for his judgment. The parties agree that apart from describing the application, the oral reasons were essentially the following:
(1)the additional words contended for did not appear on the judgment in handwriting and also not on the extracted order;
(2)it was not appropriate to 'go behind' the judgment of Magistrate Michelides;
(3)if the plaintiff was dissatisfied with the costs order in its current form, it should appeal it;
(5)the application could not be made under the slip rule.
The plaintiff appeals to this court against the dismissal by Magistrate Jones of the application to amend the costs order.

Jurisdiction by District Court to hear an appeal from a decision made on appeal by a magistrate and to hear an appeal from an application to amend an order under the slip rule

The issue of the District Court's jurisdiction to hear the appeals was not raised by the parties, but the court asked for supplementary submission on this matter. The first question that arises is whether the District Court has jurisdiction to hear the appeal against the decision by Magistrate Jones to overturn the taxation and make his own allowance for costs, as this decision was in the nature of an appeal from the Registrar's taxation to the learned magistrate.
Section 40(1) of the Act provides as follows:
(1)A party to a case that is not a minor case may appeal to the District Court against —
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
There is no issue between the parties that the claim lodged by the plaintiff was a general procedure claim and that it was treated as such throughout the proceedings. The defendant's submission is that the 'value of the claim', as determined by the judgment sum, restricted the plaintiff's order for costs to 'allowable costs' applicable to a minor case. Accordingly, it is not argued that an appeal does not lie to the District Court because the case was a minor case.
Section 40 provides for an appeal against an 'order made by the Magistrates Court in the course of proceedings in the case' or against 'the judgment of the Magistrates Court in the case'. It does not specifically say that an appeal also lies against a decision made by a magistrate on appeal from a registrar. The issue therefore is whether the decision by Magistrate Jones in overturning the Registrar's decision on the taxation was an 'order made by the Magistrates Court in the course of proceedings in the case' or 'the judgment of the Magistrates Court in the case'.
In Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273, 277 the High Court considered the meaning of a 'judgment, decree order or sentence'. The issue before the High Court was whether it had jurisdiction to hear an appeal from an opinion expressed by the Full Court of the Supreme Court of Western Australia upon a case stated by arbitrators on a question of law which arose during the arbitration. The majority held that the High Court did not have such jurisdiction because the opinion expressed by the Full Court was not a 'judgment, decree order or sentence'. Barwick CJ said at (277) that it was the essence of a judgment that it was binding upon parties and definitive of legal rights. It was not enough that the Full Court had exercised its jurisdiction in a matter judicial in substance. Before an appeal could be brought the court must have authoritatively given a binding judgment which determined or settled rights.
In Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280, 588 the Full Court of the Federal Court of Australia emphasised that the only judgment given by a court was the order that it had made and did not include the reasons for judgment.
N J Williams, Civil Procedure Victoria, Butterworth Australia, vol 1 (atService 247) [I 59.01.5] states the following:
Broadly speaking, any decision of a court which imposes an obligation on one or more of the parties or finally determines rights and liabilities of the parties to litigation is a judgment or order.
In Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 King CJ observed that there was no completely satisfying definition of either 'judgment' or 'order' and no exhaustively definite way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. In R v Steffan (1993) 30 NSWLR 633, 636 the Court of Criminal Appeal came to the conclusion that a judgment was the decision of a court which determined the proceedings (or an identifiable or separate part of them) and which was entered in the records of the court. An order, on the other hand, was a command by a court that something be done, or not done.
Magistrate Jones heard the matter of the taxation de novo and made an order that the defendant pay the plaintiff's 'allowable costs' as per s 31 of the Act and that these costs be reduced by one third. This was a decision which finally determined the rights of the parties with regard to costs and was binding upon the parties. In my view it does not make any difference in this case whether the order made by Magistrate Jones was a judgment on appeal in respect of the taxation or a revised order with regard to the taxation.
Accordingly, I am of the view that the District Court has jurisdiction to hear the appeal against the decision by Magistrate Jones in which he overturned the Registrar's taxation.
The next issue is whether the District Court has jurisdiction to hear an appeal against the order made by Magistrate Jones dismissing the application for the amendment of the costs order under the slip rule. The parties did not raise the issue whether the order by Magistrate Jones was an interlocutory order and whether leave would therefore be required by this court for the plaintiff to bring the appeal against this order. However, because this is a matter going to the court's jurisdiction (White v Brunton [1984] QB 570, 573 ‑ 574), I shall briefly deal with this issue.
The decision by Magistrate Jones to dismiss the application for the amendment of the costs order under the slip rule is prima facie covered by the words an 'order made by the Magistrates Court in the course of proceedings in the case'. The Act does not specify that interlocutory orders do not fall under this description, but it has been long established law that a party wishing to appeal against an interlocutory order needs leave to do so and that leave will only be granted if the decision appealed from was wrong or attended with sufficient doubt to justify the granting of leave, and if a substantial injustice would result if the order appealed from were allowed to stand: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177; Wilson v Metaxas[1989] WAR 285, 294.
There is no golden threat of consistency or logic which runs through the classifications of orders by the courts into those which are interlocutory and those that are not: Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374, 375, 377. In Hall v Nominal Defendant (1966) 117 CLR 423, 443 Windeyer J held that the most satisfactory test was to look at the consequences of the order appealed from and to ask whether the order finally determined the rights of the parties in a principal cause pending between them.
In my view the order refusing the application to amend the costs order under the slip rule had the consequence that the plaintiff was finally deprived of her right to taxed costs and had to settle for 'allowable costs'. It could be said that because the defendant had also asked for a review of the taxation and Magistrate Jones could have refused to overturn the Registrar's order despite the ambiguous wording of the costs order, the refusal to grant the amendment of the costs order under the slip rule was not a final outcome, as the review of the taxation could have gone in favour of the plaintiff. However, this was highly unlikely, as the two matters were interlinked.
In any event if the order to refuse the application to amend the costs order was interlocutory because it was a step in the review of the taxation, then the plaintiff should also be entitled to have her appeal against the refusal of the amendment heard on the basis that where a party is entitled to appeal a final judgment, he or she is also entitled, without leave, to submit that an interlocutory order which was a step in the final judgment should be overturned: Crowley v Glissan (1905) 2 CLR 402, 404 and Bunning v Cross (1978) 141 CLR 54, 82.
If I am wrong, and the dismissal by Magistrate Jones of the application to amend the costs order was an interlocutory order, I am nevertheless satisfied, as discussed below, that Magistrate Jones erred when he refused to amend the costs order under the slip rule and that a substantial injustice would result if the costs order by Magistrate Michelides was not amended to accord with his original intention. A substantial injustice would occur, because the dismissal of the application to amend the costs order under the slip rule resulted in the plaintiff being deprived of her right to taxed costs under the general procedure jurisdiction.
Accordingly, this court does have jurisdiction to hear the appeal against the refusal by Magistrate Jones to amend the costs order.

Determination of an appeal in the District Court

Pursuant to s 40(4) of the Act an appeal from the Magistrates Court to the District Court must be decided on the material and evidence that was before the Magistrates Court. Rule 50(1) of the District Court Rules 2005 also provides that an appeal must be by way of reconsideration of the evidence that was before the primary court, unless the parties otherwise agree. The intention of the Act when read with the District Court Rules indicates that an appeal to the District Court is by way of a rehearing: Butler v Bennett [2007] WADC 107 [10].
This means that the District Court can only exercise its powers on appeal where the appellant can show that the learned magistrate made a legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 [23]. The circumstances under which an appellate court may review a costs order are even more limited, because it is a discretionary order. It is not sufficient that the appellate court would have imposed a different order if it had been in the position of the magistrate. There must have been some error made by the magistrate in exercising his discretion. Such an error may be constituted by the magistrate relying on extraneous or irrelevant matters, mistaking the facts or not taking into account some material consideration: House v The King (1936) 55 CLR 499, 504 ‑ 505 and Cummings v Lewis (1993) 41 FCR 559, 604. If such an error has been made the appellate court may exercise its own discretion in substitution for the magistrate's based on the material that was before the magistrate.

Plaintiff's grounds of appeal

The plaintiff's grounds of appeal can be summarised as follows:
A.With regard to the judgment on the appeal from the Registrar, Magistrate Jones erred in that he:
(1)incorrectly relied on r 87 and r 88 of the Rules as meaning that the 'value of the claim' was determined for all purposes by the 'amount of the judgment';
(2)applied r 87 and r 88 to s 25(5) of the Act, which had the effect that the plaintiff's general procedure claim was 'converted into' a minor case claim and meant that a costs order could only be granted under s 31 (which only provides for 'allowable costs' unless there are exceptional circumstances);
(3)refused to take into account the advice by Magistrate Michelides to the Registrar that it had not been intended to limit the costs to allowable costs under s 31;
(4)failed to take into account that the costs order referred to 'costs to be taxed on a scale', which would have been meaningless if Magistrate Michelides intended to only award 'allowable costs';
(5)failed to take into account that the costs order referred to 'costs to be taxed' which words have an accepted meaning in practice and do not mean 'allowable costs';
(6)did not give sufficient weight to the fact that the costs order limited the plaintiff's costs to be taxed to two thirds, which of itself was indicative that Magistrate Michelides had the usual costs order in the general jurisdiction of the Magistrates Court in mind and not 'allowable costs'.
B.With regard to the dismissal of the application to amend the costs order, Magistrate Jones erred in that he:
(1)failed to take into account that the proposed amendment to the order would have reflected the original intention of Magistrate Michelides;
(2)erred in refusing to consider the advice from Magistrate Michelides to the Registrar that he had not intended to limit the costs to allowable costs under s 31;
(3)gave no reasons for his finding that the amendment to the costs order could not be made under s 16(2) of the Act which deals with the slip rule (the slip rule is in fact s 23 of the Magistrates Court Act).

Whether the learned magistrate made error in principle in deciding the appeal from the Registrar's taxation

Magistrate Jones essentially came to the conclusion that r 87 and r 88 generally defined the meaning of 'value of the claim' and therefore also applied to s 25(5) of the Act. In my view this was an incorrect interpretation of the Rules and s 25(5) of the Act. Rule 87 and r 88 provide relevantly as follows:
87. Determination under this Division
For the purposes of assessing a party's costs under the applicable costs determination, the value of a claim is the amount determined under this Division (the determined value).
88. Claim successful and no successful counterclaim
(1)… if an originating claim is successful ...
(a)…
(b)…
then the determined value of the originating claim is the amount of the judgment.
Rule 87 specifically provides that 'for the purposes of assessing a party's costs under the applicable costs determination' the value of a claim is the amount determined under that division (ie, the judgment sum). This definition of 'value of the claim' therefore only applies at the stage when a party's costs are assessed under the relevant costs determination.
The costs regime applicable to claims in the general procedure jurisdiction is set out in s 25 of the Act. Section 25(1) provides that a court may order a party to pay the whole or a part of another party's costs in the case. Section 25(2) states that a successful party is entitled to an order that the whole of its costs be paid by the unsuccessful party, unless the court considers that there is a good reason not to make such an order. According to s 25(7) the amount of any costs to be paid is determined by the court unless the parties agree on the amount. Section 25(8) provides that the amount of costs to be paid in respect of work done by a legal practitioner is to be determined under the applicable costs determination.
Where a party is successful in a general procedure claim, obtains a costs order and has its costs taxed under the applicable costs determination, r 87 provides that the judgment sum determines the relevant category or 'column' of the costs determination under which the party's costs will be taxed. The Local Court costs scales provided for many years for various 'divisions' or 'columns' within a costs scale depending on the amount of the judgment. Since 2005 that differentiation no longer applies in costs determinations applicable to the Magistrates Court.
Prior to the promulgation of the Rules (which came into effect on 1 May 2005), r 6 of the Local Court Rules 1961 provided that any costs to be taxed be taxed on the basis of the items set out in an appendix (the costs scales) 'in accordance with the column of that scale appropriate to the value of the sum recovered'. Rule 87 and r 88 appear to be a remnant or repetition of that rule, although curiously they only commenced on 1 May 2005, the same date on which the first costs determination under the Legal Practice Act 2003 came into operation which no longer drew a distinction between various categories based on the value of the sum recovered.
Accordingly, r 87 and r 88 no longer seem to have any role to play in costs determinations, but that does not mean that they should be interpreted to have a more general application where such an interpretation goes against the express wording of these rules. Rule 87 is expressly said to apply 'for the purpose of assessing a party's costs under the applicable costs determination'.
Rule 87 and r 88 do not provide a general definition of the phrase 'value of a claim' wherever it might appear in the Act. However, Magistrate Jones applied the definition in r 87 and r 88 to 'value of the claim' where it appears in s 25(5) of the Act.
Section 25(5) of the Act provides as follows:
(5)In a case where —
(a)the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and
(b)the claimant did not elect to have the claim dealt with under the minor cases procedure or, under section 28(3), the court ordered that the case be dealt with under the general procedure,
the Court may only make an order under subsection (1) [ie, an order that one party pay the other party's costs] in favour of a successful party if the order would be permitted by section 31 were the case being dealt with under the minor cases procedure.
The intention of s 25(5) is clearly that where the value of a claimant's claim or of the relief claimed at the outset is under the jurisdictional limit for minor cases, but the claimant does not elect to have the claim dealt with under the minor cases procedure, the claimant will be penalised by a costs order appropriate to minor cases. The phrase 'the value of the claim' has a different meaning in s 25(5) to that in r 87 and r 88. This is apparent from the fact that s 25(5) does not only refer to 'the value of the claim' but also to 'the value … of the relief claimed'. It would not make sense to apply the meaning given to 'the value of the claim' in r 87 and r 88 (ie, the judgment sum) to the same phrase in s 25(5), but still have the reference to 'the value … of the relief claimed' in the same section. This would lead to a contradictory result where the judgment sum was less than the amount of the relief claimed at the outset.
Section 26 and s 28 of the Act which determine what type of claim falls under the minor cases jurisdiction and how such a claim is dealt with also make it apparent that the phrase 'the value of the claim' where it appears in the Act is intended to mean 'the value of the claim at the time that it is filed'.
Section 26(1) of the Act relevantly provides as follows:
26. Interpretation
(1)In this Part [ie, Part 4 dealing with minor cases procedure]—
…
minor case means —
(a)a claim within the jurisdiction of the Court where —
(i)the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure;
…
Section 28(1) provides as follows:
28. Minor cases procedure, general provisions
(1)The Court must deal with a minor case in accordance with the minor cases procedure unless an order has been made under subsection (2) or (3) [ie where the court has ordered otherwise].
The meaning of the words 'the value of the claim' in s 26(1)(a)(i) must in its context mean 'the value of the claim at the time that it is filed with the court'. This is so, because there is a totally different regime that applies to the hearing of minor cases as indicated by s 28(1) and the subsequent sections, and the question whether a case is a minor case must therefore be determined at the outset. The 'value of the claim' or 'the value … of the relief claimed' at the outset determines whether a case will be heard under the general procedure jurisdiction or under the minor cases jurisdiction. The fact that a party must also elect to have the claim dealt with under the minor cases jurisdiction does not detract from the fact that it is the value of the claim or the relief claimed at the outset that determines the type and classification of the claim.
It is a recognised rule of the interpretation of statutes that a particular word or phrase which is used consistently in a piece of legislation should be given the same meaning throughout: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618; Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 452. However, the two appearances of the phrase 'value of the claim' are in this instance not in the same piece of legislation, but in the Act and the subsidiary piece of legislation, ie, the Rules.
Further, the rule is readily rebuttable if the context in which the word is used indicates otherwise. In Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579, 590 Higgins J said the following:
There is sound sense in the statements contained in Maxwell's Interpretation of Statutes, 6th ed., pp. 557, 564, to the effect that, although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.
In this case the context in which the phrase 'value of the claim' is used in the Act on the one hand, and in the Rules on the other, indicates that the phrase was not meant to have the same meaning in both pieces of legislation.
I do not agree with the submission by counsel for the defendant that s 25(5) means that whenever a claimant files a claim of whatever magnitude he or she should be advised that if a judgment sum is obtained which is less than the minor cases jurisdictional limit, the claimant will be limited to costs under the minor cases costs regime. The 'value of the claim' as referred to in s 25(5) means the value of the claim at the outset of the proceedings, and it is only where the claim was below the minor cases jurisdiction limit at the outset, and the claimant did not elect to have the claim dealt with under the minor cases procedure, that the costs regime applicable to minor cases will apply.
The learned magistrate therefore erred in law when he relied on r 87 and r 88 of the Rules and came to the conclusion (at par 10 of his reasons) that because of the judgment sum the costs order should have been given pursuant to the minor cases costs regime. The plaintiff succeeds on grounds 1 and 2 of the appeal which deal with r 87 and r 88 and s 25 of the Act.
Counsel for the plaintiff further submitted that Magistrate Jones misinterpreted the costs order given by Magistrate Michelides and that it was apparent from the wording of the order that the learned magistrate did not have a costs order pursuant to s 31 of the Act in mind.
Section 31 of the Act relevantly provides as follows:
31. Costs
(1)In this section —
allowable costs means —
(a)the court fees and service fees paid by a successful party; and
(b)the costs of enforcing a judgment.
(2)A successful party to a minor case is entitled to an order under section 25(1) in relation to the party's allowable costs but not in relation to the party's other costs in the case.
(3)Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that —
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit; or
(c)the proceedings in the minor case —
(i)were commenced but not concluded in a Local Court before 1 May 2005; and
(ii)were, immediately before 1 May 2005, not proceedings that were being heard and determined under the Local Courts Act 1904 Part VIA.
The costs regime provided for under s 31 which applies to minor cases is totally different to that which applies to general procedure claims. It only allows for certain specified 'allowable costs', and it is likely that any magistrate who wished to limit the costs to 'allowable costs' would use that phrase.
I agree with counsel for the plaintiff that the words 'costs to be taxed on scale …' indicate that the Magistrate Michelides had in mind that the costs needed to be taxed and not that they would be limited to 'allowable costs'. Counsel for the defendant submitted that the word 'taxed' could still apply to 'allowable costs' as the taxing master would have to determine whether the service fees and daily hearing day fees claimed were incurred or not. However, it is unlikely that the learned magistrate would have used these words, if he intended that only 'allowable costs' be provided for.
I further agree with counsel for the plaintiff that it would have been very unlikely that after a trial which extended over two years, involved expert reports and an initial claim of $40,216 the learned magistrate would have awarded the plaintiff, who was at least partially successful, only two thirds of the 'allowable costs'. On the other hand, an order reducing a party's taxed costs by a certain percentage is often made where that party is only partially successful.
The only aspect of the learned magistrate's costs order that is confusing is the reference to the 'scale applicable to judgment sum of $4,752.00'. It can only be assumed, particularly in light of the later explanation by Magistrate Michelides, that the learned magistrate mistakenly assumed that there were still different categories in the costs determination applicable at that time. As indicated earlier, r 87 and r 88 appear to be a remnant from the days when costs scales still had different categories for cases depending on the outcome of the matter.
Counsel for the plaintiff further submitted that Magistrate Jones erred when he came to the conclusion that it would be inappropriate for him to have regard to the explanation provided by Magistrate Michelides to the Registrar.
In R J Davies Pty Ltd v Keath Earthmoving Co Pty Ltd [1965] WAR 189, 193 ‑ 194 Jackson J noted that the general rule is that once an order has been drawn up and entered, there is no power in the judge who made it, or any other judge, except on appeal, to alter, vary or add to the order. However, Jackson J explained that there were some exceptions to this rule such as where there was a clerical mistake or accidental slip or omission in the order, or where the court's intention had not been properly expressed.
Section 23 of the Magistrates Court Act 2004 provides for what has often been described as a 'slip rule'. It states that the Magistrates Court may correct a judgment or order if it contains 'an accidental slip or omission, a material arithmetic error or a material mistake in the description of any person, thing or matter'. This power may be exercised upon application by a party or, after notifying the parties, on the court's own initiative. Further, the court exercising this power need not be constituted by the same person who constituted the court that issued the judgment or order concerned.
The 'slip rule' has been given a wide interpretation. In R v Cripps; Ex parte Muldoon [1984] QB 686, 695 Donaldson MR said the following of the slip rule which formed part of the English Rules of the Supreme Court and referred to 'clerical mistakes' or 'errors' in judgments or orders 'arising from any accidental slip or omission':
It is surprisingly wide in its scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. … It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
In this case an application to correct the order was not made to Magistrate Michelides (because he had by then retired), but the Registrar in effect corrected the order by the learned magistrate after he had obtained his advice. The effect of s 25 and s 31 had been argued extensively before Magistrate Michelides (see par 5 of the outline of the plaintiff's submissions dated 30 September 2010) and again before the Registrar at the taxation (see par 3 of the affidavit of Mr Trevor Howard Brickhill sworn on 4 October 2010). The Registrar advised both parties of the explanation given by Magistrate Michelides that he did not intend to limit the costs to allowable costs under s 31.
The issue was therefore properly ventilated before Magistrate Michelides and the Registrar. Although no formal amendment was made to the order by the Registrar, he clearly proceeded on the basis that the order had been amended as explained by Magistrate Michelides. In my view, the Registrar impliedly amended the order even though this was not formally done. The Registrar had the power to do so under s 23(3) and the error made by Magistrate Michelides may be described as 'a material mistake in the description of a matter'.
In my view Magistrate Jones therefore erred by not taking into account the explanation by Magistrate Michelides and the Registrar's correct reliance on it.
Even if the error made by Magistrate Michelides cannot be described as 'a material mistake in the description of a matter' and does not fall within s 23 of the Magistrates Court Act 2004, it was an appropriate approach by the Registrar to ask Magistrate Michelides what he intended to express by the costs order. In Re Cooke [1997] 1 Qd R 15, 17 – 18 White J expressed the view that it was a convenient and sensible procedure for a taxing officer to refer a question regarding the taxation to the trial judge. White J came to the conclusion that the court had the power, in the exercise of its supervisory function over its officers and for the better administration of justice, to entertain such a reference. His Honour referred to ReHayward v Martin (1895) 17 ALT 37 where Madden CJ in the Supreme Court of Victoria observed the following:
The taxing officer is merely an officer of the Court, and the Court would be taxing the bill itself if the officer did not do it. … The practice has always been for the taxing officer to ask the opinion of a judge if he finds himself in any difficulty, and it seems eminently wise and useful that such a practice should prevail. … The case is this, an officer of the Court desires to be advised by the judge what the law upon this point is. It appears to me that he would have the right to come personally to the judge and ask his opinion concerning any question about which he might feel himself in a difficulty; and if this be so, I can see no objection to the course he has adopted in the present case.

The Magistrates Court is a creature of statute and therefore does not have any inherent power. However, it does have implied powers which extend to the court having jurisdiction to do everything necessary for the exercise of the powers explicitly granted to it: Grassby v The Queen (1989) 168 CLR 1, 16 ‑ 17 (Dawson J). In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 73 ALJR 687 [50] – [51] the majority of the High Court held that the powers which an inferior court possessed by way of necessary implication were not limited to those that were 'essential' but extended to those that were 'reasonably required'.
The Registrar therefore acted appropriately when he sought clarification from the learned magistrate and Magistrate Michelides had the implied power to give an explanation and directions to the Registrar. Even if the order was not formally amended under the slip rule, Magistrate Jones should have had regard to the explanation given by Magistrate Michelides who made it quite clear what the intended order was.
The problem, of course, was that Magistrate Jones misinterpreted r 87 and r 88 and mistakenly applied them to s 25(5) of the Act and therefore came to the conclusion that this is what Magistrate Michelides must have intended to do.
Grounds 4 – 6 of the appeal have also been made out. It follows that the plaintiff's appeal succeeds and that the orders made by Magistrate Jones on 30 June 2010 be set aside so that the orders made by the Registrar on the taxation are restored.

Appeal with regard to the dismissal of the application for amendment of the costs order

I have already dealt with the slip rule contained in s 23 of the Magistrates Court Act 2004 and the Magistrates Court's power to correct a material mistake in the description of a matter.
In my view it was open for Magistrate Michelides to amend his costs order once it became apparent that the parties were confused as to the meaning of the words 'on scale applicable to judgment sum of $4,752'. It was equally open to the Registrar to make the amendment after receiving the explanation from Magistrate Michelides which the Registrar provided to both parties. As the Registrar had not formally amended the order, although he had proceeded with the taxation on the basis that the order had been amended, it was also open to Magistrate Jones to amend the order in accordance with the explanation provided by Magistrate Michelides. This is what should have occurred on the application of the plaintiff.
Magistrate Jones erred when he came to the conclusion that he did 'not intend to go behind the judgment of Magistrate Michelides' and held that the amendment of the order could not be made under the slip rule.
Further, Magistrate Jones gave no reasons as to why the order could not be amended under the slip rule and why he did not consider it appropriate to rely on the explanation specifically provided by Magistrate Michelides. A magistrate has a duty to give reasons for his or her decision. The extent of that duty has been succinctly summarised by Bowden DCJ in Butler v Bennett [45] – [47] as follows:
The reasons for decision must be sufficient to give effect to any right of appeal and the basis for the decision must be apparent as otherwise the losing party cannot know whether there has been a mistake of law or a [of] fact. However, reasons need not be lengthy or elaborate … (Mount LawleyPty Ltd v Western Australia Planning Commission (2004) 29 WAR 273 at 283 per the court).
A full or detailed statement of reasons would not be practical in a busy court such as the District Court and it would be even less practical in a Magistrates Court. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly without being developed in any detail. The decisions are required to set out the relevant findings of fact and the reasons for the decision and must disclose adequate [adequately] the intellectual process which has resulted in a particular determination (Whitehead v Procopis (2005) 156 A Crim R 67).
It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be inferred. The judicial obligation at least obliges a Judge to state generally and briefly the grounds which have led him or her to the conclusion reached concerning disputed facts or questions and to list the findings on the principle [principal] contended issues (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 249 at 258 per Kirby J).
Magistrate Jones did not provide any reason why the slip rule should not be applied where Magistrate Michelides had said explicitly in his response to the Registrar that he did not intend to limit the costs to 'allowable costs' under s 31.
Accordingly, the plaintiff's appeal against the refusal by Magistrate Jones to amend the costs order is upheld. The costs order should be amended by the addition of the words 'but not limited to allowable costs under s 31 of the Magistrates Court (Civil Proceedings) Act'.