Raggio v Horlock (No 2)
[2017] SADC 5
•23 January 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RAGGIO & ANOR v HORLOCK (No 2)
[2017] SADC 5
Judgment of His Honour Judge Slattery
23 January 2017
PROCEDURE - COSTS
Minor civil review.
Application for minor civil review where by mutual consent, both parties were represented by counsel.
Application dismissed and the successful respondent seeks an order for costs to follow the event and for a lump sum order for costs.
Held:
The costs of the minor civil review should follow the event and be paid by the unsuccessful applicants.
Assessment of a lump sum order for costs.
Magistrates Court Act s 38(5), (6), (7), (8) and (9); District Court Rules r 279A, rr 281 - 300; Raggio & Anor v Horlock [2016] SADC 79; Magistrates Court Rules 2013 r 13.4, r 106; District Court Act s 42B, s 42G(2), referred to.
Harradine v District Court of South Australia (2012) SASC 96; Langsford v Kangaroo Council [2011] SADC 25; Populus Lawyers Pty Ltd v Kennedy & Co Pty Ltd [2015] SADC 66; Macerlean v Notfair Pty Ltd (No 3) [2013] SADC 113; Honner v York Peninsula Council (No 2) [2015] SADC 153; Tullamore Bowling and Citizens v Lander (1984) 2 NSWLR 32, discussed.
Crown Marina Pty Ltd v City of Port Adelaide Enfield and Anor (No 2) [2012] SASC 121; Marks v Commonwealth (1964) 111 CLR 549; R v Bhagwin [1972] AC 60; R v Homes Secretary; ex parte Mahmood [1981] QB 58; Richardson v Austin (1911) 12 CLR 463; Smoothpool v Pickering [2001] SASC 131; Eat Media Pty Ltd v Mulready Media Pty Ltd (No 2) (2010) 267 ALR 573; Harrison v Schipp (2002) 54 NSWLR 738; Charitopoulos v DJH Crowd Management (No 2) [2009] SASC 241; Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371, considered.
RAGGIO & ANOR v HORLOCK (No 2)
[2017] SADC 5JUDGE SLATTERY
Application for the costs of a minor civil review conducted under s 38(6), (7), (8) and (9) Magistrates Court Act (MCA) and 6DCR r 279A.
The respondent Horlock seeks an order for costs in her favour following my judgment in this minor civil review dated 11 July 2016.[1] In that judgment, I rejected the grounds for review put forward by the applicants and I affirmed the decision of the learned magistrate.
[1] [2016] SADC 79.
In the hearing of the review before me, both parties were represented by solicitors and counsel. The applicants made a request to be represented by counsel and in the absence of any objection by the respondent who also sought representation, I made an order permitting both parties to be represented before me on the review. I formed this view because of the request by both parties rather than the nature of the issue that arose in the review before me. The essential question in the review was within a reasonably narrow scope and there were a number of extraneous issues that arose which also required resolution. The essential question in the review arose out of the mediation conducted in the Magistrates Court and an agreement said to have been formed. The resolution of those issues required the giving of evidence on both sides. The issues are canvassed in my decision and it is not necessary that I rehearse them here. The applicants strenuously object to any order for costs being made in favour of the respondent. The applicants filed detailed written submissions which I have taken into account.
Before dealing with the submissions it is necessary to set out some of the relevant provisions governing minor civil actions and reviews. Section 38 MCA reads as follows:-
38—Minor civil actions
(1) The following provisions are applicable to the trial of a minor civil action:
(a) the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b) the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c) the Court may itself call and examine witnesses;
(d) the parties are not bound by written pleadings;
(e) the Court is not bound by the rules of evidence;
(f) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3) After giving judgment in a minor civil action, the Court—
(a) should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b) should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c) if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4) The following provisions govern representation in minor civil actions:
(a) representation of a party by a legal practitioner will not be permitted unless—
(i) another party to the action is a legal practitioner; or
(ii) all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab) however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b) if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c) if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d) the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7) The following provisions apply to such a review by the District Court:
(a) the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B) remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8) A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
The District Court judge hearing the appeal may allow legal representation but is required to exercise the same discretion as the magistrate is required to exercise under s 38(4) MCA and based upon the same considerations. In this case, irrespective of what happened before the learned magistrate, both parties agreed to legal representation of their interests in the review before me.
Under s 38(5) MCA, in a minor civil action there will be no order for costs for getting up the case for trial or for counsel fees unless all parties are represented by counsel or alternatively if the court is of the opinion that there are special circumstances justifying the award of such costs (my emphasis). Any costs awarded must be calculated according to Rule 106 of the Magistrates Court Rules 2013 – minor civil actions. This is the applicable rule in relation to a minor civil actions. Subsections 38(1), (2), (3) and (4) MCA set out the provisions applicable to the trial of a minor civil action including representation. The topic of representation is dealt within s 38(4) MCA and therefore s 38(5) MCA must be read and understood in that background. It appears to be intended that s 38(5) MCA only operates upon the minor civil action provisions that are to be found in the first four subsections of the section.
Reviews of the type that I have conducted in this court are from a decision in a minor civil action and are then dealt with under s 38(6), (7), (8) and (9).
6DCR r 279A is contained within Chapter 12A of the District Court Rules 2006 – minor civil actions. It provides as follows:-
Chapter 12A—Applications to review proceedings and decisions
279A—Reviews
(1)This rule applies in cases where the Court has jurisdiction to review the judgment of some other court or a tribunal or a decision of a Minister.
(2)An application for review of the judgment of some other court or tribunal or a decision of a Minister must be commenced within 21 calendar days after the date of the judgment or decision subject to the review.
(3) The applicant for a review must file in the Court a notice—
(a) identifying the judgment or decision subject to the application; and
(b) stating the grounds on which the review is sought; and
(c) stating the orders sought by the applicant on the review.
(4) The applicant must, as soon as practicable after filing the notice, notify—
(a) all parties; and
(b) The proper officer of the court or tribunal from which the review lies.
(5) Notification of a review is given by serving a copy of the notice.
(6) Any other party to the review may, within 14 calendar days after service of the notice—
(a) file a cross-notice also seeking review of the judgment or decision, stating the grounds on which that party seeks the review and stating the orders sought by that party on the review; and
(b) serve copies of the cross-notice on all other parties.
(7)On receipt of a notice under this, the proper officer of the court or tribunal, or in the case of a review of the decision of a Minister, the Minister or his authorised delegate, must, subject to any direction by the District Court, transmit to the Registrar—
(a) all documents lodged with the court or tribunal in the relevant proceedings or all documents considered by the Minister for the purposes of his decision, as the case may be, and;
(b) a copy of any transcript of evidence or proceedings; and
(c) any other evidentiary material relating to the proceedings in the custody of the court or tribunal; and
(d) a copy of the judgment, order or decision subject to the review and of any reasons given for it.
(8)The proper officer of the court or tribunal or the Minister or his authorised delegate, as the case may be, should comply with any reasonable request from the Registrar for transmission of the materials referred to in subrule (7) in electronic form.
(9)The review will be heard at a time and place appointed by the Registrar and notified to the parties.
(10) The Court may exercise, in relation to a review, any of the following powers—
(a) the Court may order that a particular person be joined as a party to the review;
(b) the Court may order an applicant for the review, or a party filing a cross-notice under subrule (6), to give security for costs;
(c) the Court may correct an error or omission in a notice or cross-notice;
(d) the Court may ask the court or tribunal from which the review lies or the Minister to make a report (which is to be made available to the parties) on the subject matter of the review or on specified aspects of that subject matter;
(e) the Court may exercise any procedural or other powers that the court or tribunal from which the review lies had in relation to the original proceedings;
(f) the Court may set aside a judgment or decision of the court or tribunal from which the review lies or the Minister and give such judgment or directions as may be just in the circumstances;
(g) the Court may make an order for the costs of the review.
The rule operates upon applications to review proceedings and decisions. Those applications are not strictly governed by s 38(1) – (5) (inclusive) MCA. The correctness of this approach is obvious when regard is had to the content of s 38(6) – (9) inclusive which, for example, limit the range of orders that may be made by the District Court judge on the hearing of the review. It follows that the hearing of a “review” is to be distinguished from the hearing of an “action”.
In their submissions, the applicants accept that under 6DCR r 279A(10)(g), this court may make an order for costs of the review. Different from the content and operation of Rule 106 of the Magistrates Court Rules 2013 – minor civil actions, there is no equivalent of the costs scale of the third schedule to guide the content and calculation of such a costs order. The applicants submitted that, even so, the power to award costs under 6DCR r 279A(10)(g) is governed by or at least to be understood in the context of s 38 MCA. The applicants argued that conversely the DCA and the District Court Rules, and, I infer this court’s unfettered discretion on costs, generally speaking are not consonant with the rules and provisions which governed the hearing of a minor civil review. The DCA and the District Court Rules could not be applied at large. The applicants relied upon the comments of Blue J in Harradine[2] where his Honour said:-
…it would be incongruous if the District Court were to adopt a radically different approach to the hearing (of a minor civil review) to that required to be adopted by a magistrate at first instance.
[2] Harradine v District Court of South Australia (2012) SASC 96 at [53].
Although I accept what fell from Blue J in Harradine it is important to identify a number of issues. The first is that Harradine was a judicial review application on the question of whether a judge of this court had committed a reviewable error. The second was that Harradine was not a decision on costs because that issue did not arise on the application. Therefore, although I accept what fell from Blue J as set out above, those comments do not necessarily inform this discussion.
The applicants emphasised that having regard to the content and wording of the whole of s 38 MCA, there is no specific provision for costs in those subsections governing reviews. The only place where costs (of a review) are mentioned is in 6DCR r 279A(10)(g). The applicants submitted that the discretion under that rule is a broad discretion about costs which must be informed by the context in which the rule exists.
The applicants then submitted that on that argument it is not appropriate for a District Court Judge to, as it were, use the power contained within another District Court rule (outside of 6DCR r 279A) to fashion an order for costs having regard to the discretion given under Rule 279A(10)(g). It appears that the logical basis of this argument is that if Parliament did not intend for the question of costs to be approached differently, it would not have produced a separate rule for costs. I will deal with that argument later in these reasons.
The applicants submitted that the operation of 6DCR r 279A is itself informed by the proper application of s 38 MCA because the policy of s 38 MCA required minor civil reviews to be conducted in a low cost jurisdiction. The exercise of the discretions and other powers given to this court under 6DCR r 279A are informed by the content and approach of s 38 MCA. Thus, the discretion in 6DCR r 279A is not a discretion at large but one which is to be exercised with a clear view of s 38 MCA and is informed by its operation.
The applicants relied upon a series of decisions of the judges of this court in justifying its approach that the proper order for costs in this matter was that there be no order as to costs or alternatively that any order for costs should reflect the approach under s 38(5) MCA and therefore be reduced to a very small amount of costs. The applicants principally relied upon two decisions of Judge Beazley of this court. The first was Langsford v Kangaroo Council[3] where his Honour granted the application for review, admitted fresh evidence, varied the orders of the learned magistrate and slightly reduced the judgment in favour of the respondents to the amount of $2,191.37 inclusive of costs and interest. At [61] et seq, his Honour considered the question of costs. He referred to 6DCR r 279A(10)(g) and then made an order that although the applicants succeeded in reducing the quantum of the judgment, no order for costs should be made. My reading of this decision to that point is that this was an example of the exercise of his Honour’s unfettered costs discretion. However at [62] his Honour said as follows:-
[62] I note that pursuant to Section 38(5) of the MCA, the philosophy of Parliament is that in minor civil actions, costs are not to be awarded unless there are special circumstances justifying the award of such costs.
[3] [2011] SADC 25.
His Honour went on to find that because of fault on both sides there would be no proper basis for an award of costs in light of the way the matter was conducted before the magistrate and in the District Court (at [63]).
In Langsford, there was no representation by solicitors or counsel at first instance or before his Honour. The council was represented by an advocate. Therefore, strictly, the views expressed by the learned judge in relation to the operation of s 38(5) MCA and the influence, if any, that it may have upon the exercise of discretion under 6DCR r 279A where both parties are represented by counsel did not arise for decision.
The second judgment relied upon by the applicants was the further decision of Judge Beazley in Populus Lawyers Pty Ltd v Kennedy & Co Pty Ltd.[4] There his Honour dismissed the application for review. This was a dispute between a firm of accountants and a firm of solicitors concerning the professional fees of the accountants after they received instructions of the firm of solicitors that was reflected in an account rendered to the solicitors. At the hearing before Judge Beazley, both parties were represented by counsel.
[4] [2015] SADC 66.
At [134] et seq, Judge Beazley considered the question of costs. His Honour said as follows:-
Costs
[134] Pursuant to Rule 6 DCR 279A of the Rules of Court this Court has a general discretion to make an order for the costs of the Application for Review. I do note that the philosophy of Parliament embodied in s 38(5) of the Act is that costs ought not be awarded in Minor Civil Actions unless there are special circumstances justifying an award of costs.
[135] In the subject case, both parties were represented by counsel. This was the consequence of the applicant being a firm of solicitors.
[136] Those costs however ought be for a fixed sum which reflects the principles expressed in the Act.
[137] I have no doubt that each party would have incurred much larger costs than I propose to award.
[138] In my opinion the applicant cannot resist an order for costs.
[139] I order that the applicant pay to the respondent costs in the sum of $1,400.
It appears that the basis upon which his Honour made an order for costs is explained by his Honour in [136]. At [134], his Honour referred to the philosophy of Parliament embodied in s 38(5) of the MCA that costs ought not to be awarded in minor civil actions unless there are special circumstances justifying the award of costs (my emphasis). In his decision, his Honour did not refer to any form of words in the Rule which circumscribed the general costs discretion in the Rule.
The applicants also referred to a decision of Judge Tilmouth in Macerlean v Notfair Pty Ltd (No 3).[5] In that case, his Honour upheld the judgment of the magistrate and then considered questions of costs. His Honour discusses the operation of s 38(5) MCA, the operation of s 38(6) et seq MCA and the fact that the MCA is otherwise silent on the question of the costs of reviews. His Honour discussed the content of s 42G(2) DCA which is to be found within the Administrative and Disciplinary Division provisions of the District Court Act. Section 42G DCA is to be found within subdivision 2 of Part 6 DCA which contains special provisions pertaining to the civil jurisdiction of the District Court. Under s 42B DCA, the subdivision applies in relation to the appellate jurisdiction conferred on the court by another Act (called the special Act). My reading of subdivision 2 is that it operates in relation to appeals in the Administrative and Disciplinary Division. The relevant rules applicable to such appeals are to be found in 6DCR rr 281 – 300. Obviously enough, Rule 279A does not fall within those Rules. And my understanding of the operation of subdivision 2 of Part 6 is that it does not apply to minor civil reviews. The scheme for the conduct of minor civil reviews is to be found within s 38 MCA and 6DCR r 279A as I have set out above.
[5] [2013] SADC 113.
Judge Tilmouth then surveyed the operation of s 38 MCA and Rule 13(4) of Magistrates Court Rules 1992 concerning whether there may be representation in a minor civil action. In his decision in that review, his Honour made an order permitting representation of the applicant because there was proper reason to do so and allowed representation of the respondent because of the potential unfair disadvantage if the respondent was not then represented by a legal practitioner. At [11] of his judgement his Honour said as follows:-
[11] Once it is accepted that s 38(5) of the Magistrate Court Act prevails over the District Court Act on the subject of costs on review in the District Court, the consequence is that the ordinary “default” position that a successful party should obtain an order for costs pertains. Moreover Rule 6 DCR 279A(10)(g) of the District Court Civil Rules 2006 authorises the Court to “make an order for costs of the review”.
I am unable to identify how it could be said that s 38(5) MCA prevails over the District Court Act on the subject of costs on a review in the District Court. There is no doubt that s 38(5) MCA prevails over any other Act or law in relation to the question of costs of a minor civil action in the Magistrates Court. I have been unable to identify how it may be said s 38(5) MCA will apply to anything except the minor civil action itself. Allied to that section is the scale of costs for minor civil actions. Costs for getting up the case for trial and counsel fees are not to be allowed unless parties are represented by counsel or the court is of the opinion that there were special circumstances justifying the award of costs.
I am also unable to discern how it may be said that s 38(5) MCA will govern the exercise of the discretion under 6DCR r 279A(10)(g) which specifically and separately applies to minor civil reviews. My understanding of the last sentence of [11] of his Honour’s judgment is that his Honour was making a distinction between the operation of s 38(5) and 6DCR r 279A(10)(g). Ultimately, his Honour came to the view that the ordinary position that a successful party should obtain an order for costs pertains. I consider that this is a view that could be formed having regard to the content of 6DCR r 279A(10)(g).
In Macerlean, Judge Tilmouth made a lump sum order for costs in the exercise of his discretion. His Honour recognised that the lump sum amount that he allowed under the operation of 6DCR r 264(5)(c) was much less than would have been incurred but in the exercise of his Honour’s discretion that is the amount that he would allow. My understanding of his Honour’s decision is that he was there exercising his unfettered discretion on costs. Such an approach reflects the wording of the Rule.
A slightly different view of the operation of the MCA and District Court Rules was taken by Judge Brebner in his Honour’s decision in Honner v York Peninsula Council (No 2).[6] In that case, the applicant acted for himself before the magistrate. The respondent was represented by counsel. At the hearing of the review by mutual agreement, both parties were represented by counsel.
[6] [2015] SADC 153.
His Honour considered the operation of s 42 DCA and in particular s 42G and s 42H DCA. His Honour referred to the operation of 6DCR r 279A and after also referring to the operation of s 38(6) MCA, his Honour identified that the MCA and the DCA were silent about the division of the court in which the reviews were to be conducted. His Honour held at [9] that it was plain from the wording of both s 42G and s 42H DCA that Parliament recognised that “…circumstances will arise where it would be contrary to the interests of justice to deprive the successful party to a minor civil review of their costs…” The respondent to the application for costs then relied upon the decision of Judge Beazley in Populus Lawyers. Judge Brebner considered that the circumstances of that case were fundamentally different and it did not provide any relevant assistance. His Honour did not refer to the “philosophy of Parliament” discussion in Populus at [134]. His Honour found that it was not to the point that the proceedings at first instance were conducted in a no costs or low costs jurisdiction.[7] His Honour was persuaded by the argument that as both parties were represented at the review following the provision of their mutual consent then both parties should be taken to have accepted that there would be a risk of costs being awarded against them and that this cost assessment would be according to the cost regime which applies to reviews. His Honour did not separately identify what cost regime applied to reviews and I will assume his Honour was there referring to the operation of 6DCR r 279A.
[7] viz Crown Marina Pty Ltd v City of Port Adelaide Enfield and Anor (No 2) [2012] SASC 121 at [13].
The submissions of Horlock were that, when properly read and construed in context, s 38 MCA has no relevance to the question of whether there should be an order for the costs of a minor civil review when the parties are both represented. Horlock then submitted that in the exercise of the discretion on costs, the content of s 38(4) and (5) are not required to be taken into account because those subsections relate to actions at first instance and not reviews, and further, both parties agreed that there should be legal representation: viz s 38(7)(a) and s 38(4)(a)(ii) MCA. Horlock also submitted that there is nothing within 6DCR r 279A(10)(g) which would displace the common law rule that costs should follow the event.[8] It is not necessary for me to comment further upon that submission but, to that extent at least, Horlock embraced the comments that fell from Judge Brebner in Honner that as the parties were represented by consent they each must be taken to have accepted that the matter required counsel, on both sides, and to have accepted the risk that (if unsuccessful) costs would be awarded against them according to the costs regime which applies to reviews.
[8] At common law there is no power to order costs and it is necessary for there to be a statutory power before such an order may be made: viz s 42 DCA. Any general rule that costs should follow the event is prescribed in the rules which qualify the court's discretion on costs: viz 6DCR r 263(1).
Horlock also criticised the approach of attempting to identify some philosophical approach within the relevant legislation and rules. Horlock relied upon the discussion of Mahoney JA in Tullamore Bowling and Citizens v Lander[9] where his Honour held as follows:-
…it is necessary to have in mind the role which policy can and may play in the construction of a statute.
It has become, if not common, at least fashionable to assert that courts cannot, or do not, give effect to policy in the construction of legislation. This, of course, is wrong. The courts have, in the interpretation of statutory materials, always sought to determine it and give effect to the policy of the legislation before them…
But in considering the effect to be given to policy in this regard, certain things must be borne in mind. First, there is a difference between policy and intention. The legislature may espouse a particular policy… And that policy may move it to enact legislation. But that which it intends the legislation to do will not necessarily be the full implementation of that policy. Except in special cases: cf Marks v Commonwealth (1964) 111 CLR 549 per Kitto J; that which the legislature enacts by its legislation is not policies but measures which carry policies into effect, to the extent to which, in the particular instance, it is intended that they be effected: see R v Bhagwin [1972] AC 60 at 82; R v Homes Secretary; ex parte Mahmood [1981] QB 58 at 61, 62. And therefore, for the most part, the courts are concerned, not with policy as such but with the intention of the kind to which I have referred.
Second, that to which effect is to be given, as policy or intention, must be that of the legislature and not that of the individual judge or, a fortiori sections of the community interested in furtherance of particular forms of aspects of that policy. It is the constitutional assumption that legislation embodies the will of the community. The function of the judge is to give effect to that will, whatever view he (or she) may take of the values which it embodies.
I do not mean by this that there is no room for a judge’s view on policy… but unless the legislation be thus, or unless there be overriding issues of established public policy, the judge’s view of policy do not prevail over the intention of the legislature as expressed by the words that it has used.
And third, the policy and intention of the legislature is to be taken from the legislation which it has indicated. “…there is nothing more dangerous and fallacious in interpreting a statute than first of all to assume that the legislature had a particular intention and then, having made up one’s mind what that intention was, to conclude that the intention must necessarily be expressed in the statute and then proceed to find it”: Richardson v Austin (1911) 12 CLR 463 at 470 per Griffiths CJ. This is particularly so where views on policy may differ or whether form in which a particular policy is to be implemented is, as in the present Act, the result of an accommodation of differing interests and principles. In such cases, it is in my opinion important that the judge take both policy and the intention of the legislature from the language which it has used.
[9] (1984) 2 NSWLR 32 at 52.
I accept the submission of the respondent. I am unable to identify any basis within the wording of 6DCR r 279A or in the operation of s 38(6) – (9) inclusive MCA to indicate that there is some overriding philosophical approach to be taken to the question of costs in a minor civil review where both parties have been represented by counsel. I am unable to discern within the wording of 6DCR r 279A(10(g) any intention to fetter the costs discretion in these circumstances. The discretion must be exercised judicially and that will involve questions of fact in each case.
To say more than that would be to prescribe considerations to be taken into account in the exercise of the discretion. Courts, correctly, are loathe to take any step that may limit such a broad discretion. I agree with the submissions of Horlock that in the ordinary course costs will follow the event. In this action, there will be an order for costs in favour of Horlock.
There is then a further issue for resolution namely the amount of the costs. Horlock seeks an order for a lump sum amount of costs pursuant to 6DCR r 264(5)(c). There was no opposition to the court making such an order. Referring again to the wording of 6DCR r 279A(10)(g) I have an unfettered discretion as to the amount of lump sum costs. The relevant principles that guide the exercise of my discretion here are as follows:-
1. The discretion must be exercised judicially and upon sufficient evidence which would allow me to make a proper assessment of a lump sum which is fair to all parties;[10]
2. General discretions are not to be unnecessarily fettered but the approach should be to promote the interests of justice in the circumstances of the particular case;[11]
3. In circumstances where recovery of the full cost may be questionable I may use a broad brush approach which is required to be fair to all parties;[12]
4. I must be satisfied that I am able to so properly fix a lump sum for costs and in particular I may take into account costs paid as well as any discounts which I think are appropriate.[13]
[10] Smoothpool v Pickering [2001] SASC 131.
[11] Eat Media Pty Ltd v Mulready Media Pty Ltd (No 2) (2010) 267 ALR 573.
[12] Harrison v Schipp (2002) 54 NSWLR 738.
[13] Charitopoulos v DJH Crowd Management (No 2) [2009] SASC 241; Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd (2008) 249 ALR 371.
The overall themes of these stated principles is that I am required to act judicially and to adopt an approach which is fair to the parties.
I have come to a decision that I am in a position to fix a lump sum amount for costs. I have done so taking into account the whole of the considerations set out above. I have received the submissions of Horlock in relation to costs incurred and the costs order claimed (in the amount of $25,000) and I have had full regard to the factual circumstances of the way in which the matter came before the Magistrates Court and then to the mediation and then to the magistrate whose decision was under review.
In my decision in this matter I have identified the high level of animus between the parties and the unreasonableness on both sides. The principal issue here was the conduct of the mediation and whether the court was in a position to make an order effectively rescinding ab initio the mediation agreement. Other issues then developed from that issue.
I consider that the appropriate order for costs on the appeal is that the applicants pay Horlock the amount of $7,500 inclusive of interests and disbursements. This order takes into account the issue of costs reserved by her Honour Judge McIntyre of this court that I have resolved in favour of the applicants and the costs of this application.
I so order.
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