Taylor v Adamson

[2001] NTSC 61

Taylor v Adamson [2001] NTSC 61

PARTIESEDWARD JAMES TAYLOR v PETER ADAMSON

TITLE OF COURT            SUPREME COURT OF THE   NORTHERN TERRITORY OF AUSTRALIA
JURISDICTION                 Interlocutory Application
FILE NUMBER                  394/01(20108073)
DELIVERED  26 July 2001

HEARING DATE               7 June 2001.

REASONS OF                   The Master

CATCHWORDS

PRACTICE – Northern Territory – costs – jurisdiction – proceeding not commenced
PRACTICE – Northern Territory – costs – discretion – public interest – application prior to trial

CASES FOLLOWED

G.I.O. of N.S.W. v Ivanoff 22 NSWLR 368

Oshlack v Richmond River Council 193 CLR 74

TAC v O’Reilly 28 MVR 327

REPRESENTATION
          Counsel:

Plaintiff  Mr Howse

Defendant  Mr Reeves, QC.

Solicitors:

Plaintiff  NAALAS

Defendant  Cridlands

Judgment category classification
Judgment ID number   mas012
Number of pages  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

94/2001(201008073)
  Between:
  EDWARD JAMES TAYLOR
  Plaintiff
  and
  PETER ADAMSON
  Defendant

MASTER COULEHAN: REASONS FOR DECISION

(Delivered 26 July 2001).

[1] The plaintiff commenced this proceeding by way of originating motion, seeking an order as to costs in a defamation proceeding not yet commenced.  The order sought is to the effect that, in the event that the defendant is successful in that proceeding, there be no order for costs against the plaintiff.  The broad ground for this unusual application is that the proposed proceeding is in the public interest, and the plaintiff should not be required to pay the defendant’s costs if he were unsuccessful.

[2] The plaintiff has proceeded by way of an interlocutory summons, in effect, seeking a final order.  The Master does not have jurisdiction to hear and determine the trial of a proceeding, except, inter alia, with the consent of the parties.  The parties have consented to my hearing and determining this proceeding.

[3] The plaintiff relies on the affidavit of Christopher Damien Howse affirmed 29 May 2001.  Mr. Howse is the solicitor for the plaintiff and the affidavit is based on his knowledge and belief.  There was an objection to this, insofar as the application was not an interlocutory application.  As the defendant’s consent to my hearing this application is not entirely consistent with this objection, I infer that it is intended that I deal with the application on the merits.

[4] There were also objections to admissibility on the grounds of relevance.  It is necessary to consider the substance of the evidence in dealing with these objections.

[5] The plaintiff is the Chairman of the Aboriginal Justice Advisory Committee (“AJAC”), which was established to advise the Northern Territory Government on the progress of the implementation of recommendations made by the Royal Commission into Aboriginal Deaths in Custody.  The plaintiff contends that aboriginals are over represented in custody and that this is a problem that requires urgent attention.

[6] The plaintiff complains of cavalier treatment of the AJAC by the Northern Territory Government, evidenced, it is said, by the refusal to sign a communique issued following a Ministerial Summit in July 1997, a letter from the Chief Executive Officer of the Office of Aboriginal Development in which he states that he is considering a recommendation to the Government that support for the Aboriginal Law and Justice Forum be discontinued and the subsequent withdrawal of support for that forum.

[7] The plaintiff also complains that it is difficult for indigenous people to have their grievances resolved.  Lack of money restricts access to the courts, and, it is argued, recourse to the Ombudsman is not taken, or is not effective.

[8] The proposed defamation proceeding arises out of a radio interview conducted on 12 April 2001. The plaintiff was interviewed as to aboriginal deaths in custody and he commented on the over representation of aboriginals in the jails and the failure of the Northern Territory Government to sign the communique and act to reduce the incidence of aboriginals in custody. The defendant was then interviewed, during which he defended the Government’s record and made the alleged defamatory allegations.

[9] The plaintiff considers it necessary to institute defamation proceedings in order to obtain redress, which he believes will improve relations between the Government and the AJAC and thus facilitate cooperation in an attempt to reduce the numbers of aboriginals in prison.  The plaintiff is prepared to waive damages and merely seeks an apology.

[10] The plaintiff has no money and has been unable to obtain funding.   It is asserted that the defendant will be indemnified by the Northern Territory Government and will have first class legal representation.

[11] It is necessary that the plaintiff adduce much of this evidence in order to support the argument based on the public interest.  The evidence relating to alleged cavalier treatment does not establish such treatment, but it goes to the breakdown of relations between the AJAC and the Government, which is relevant to the public interest issue.

[12] The evidence relating to lack of recourse is somewhat different.  It does not appear to be relevant to the plaintiff’s situation because he does not appear to have sought alternatives to court proceedings.   What the plaintiff appears to be saying is that because recourse to the Ombudsman is not a viable option, there is no adequate opportunity for grievances to be heard, and it is thus all the more necessary that relations with the Government be improved.  This is relevant, but the alleged failure by the Ombudsman to employ an aboriginal is, at best, argumentative.  Paragraphs 55 to 57 (inclusive) will be struck out.

[13] The first question that arises is the jurisdiction to make an order for costs in a proceeding that has not been commenced.

[14] O.63.03(1) provides:
“(1) Subject to these Rules and any other law in force in the Territory, the costs of a proceeding are in the discretion of the Court.”

[15] O.63.04(1) provides:
“(1) The Court may exercise its power and discretion as to costs at any stage of a proceeding or after the conclusion of the proceeding.”

[16] The wording of these rules does not suggest that an order for costs may be made before the commencement of a proceeding.  On the contrary, the words “at any stage of a proceeding” and “at the conclusion of the proceeding” suggest that a proceeding must have been commenced at the time a costs order is made.

[17] It is argued on behalf of the plaintiff that O.63.03 may be read with O.4.08 which reads:
“In an urgent case the Court may, on the application of a person who intends to commence a proceeding and on his undertaking to commence the proceeding within such time as the Court directs, make an order which it might make if the applicant had commenced the proceeding and the application were made in the proceeding.”

[18] “Urgent” is defined in the Macquarie dictionary as “pressing; compelling or requiring immediate action or attention; imperative.”   There do not appear to be any circumstances to suggest that this is an urgent case under O.4.08, especially in relation to costs following the trial.

[19] I conclude that the Court has no jurisdiction to make the order sought.

[20] It may be of assistance if I considered the merits of the plaintiff’s application.

[21] The Court’s discretion to award costs is to be exercised judicially, but is otherwise unconfined (see Oshlack v Richmond River Council 193 CLR 74, 81.  The High Court did not resile from the general rule as to costs in favour of a successful party, provided it is understood that the rule should not be applied inflexibly, see pages 86 and 121 and also TAC v O’Reilly 28 MVR 327).  Matters for consideration may include not only the outcome of a proceeding, but also the parties’ conduct.   These matters are not likely to be fully ascertained until the proceeding is concluded.

[22] Reference was made to GIO of NSW v Ivanoff 22 NSWLR 368.   This was an appeal from an order permitting an amendment of a defence on terms that the defendant pay the plaintiff costs incurred after two days hearing.   At page 377, Mahoney J, with whom Priestley and Meagher JJ agreed, said:
 “…….If, at the end of, for example, a ten day hearing of the instant proceedings, the Office succeeded on the ground of fraud and the trial judge, because alone that issue had increased the time of the trial, gave the plaintiffs their costs of the last eight days, his order would be wrong and, it would be proper to infer, wrong because it was effected by a misunderstanding of the appropriate principles and considerations affecting the ordering of costs. His Honour has made an order which, in effect, provides for, or for the possibility of, such a situation. ……..I am of the opinion that it is wrong in principle to impose a term as to the costs of the trial in advance in a form which is unconditional and which fails to take account of the possible outcomes of the trial…….”.

[23] Following Oshlack, it may be doubted that such a principle could be rigidly applied, but Ivanoff illustrates the difficulties involved.

[24] It is not always easy to isolate the “public interest”.   As McHugh J suggested in Oshlack at pages 99-100, the concept involves inherent imprecision, and the defence of fair comment may also involve a matter of public interest.  This may be a defence raised in the proposed proceeding, which highlights the difficulty of resolving the question of costs in advance of the proceeding.

[25] Prima facie, the proposed proceeding is a personal claim.   It would be unusual to deny a successful defendant costs in such a proceeding.  The claim that the proceeding is in the public interest is based on the proposition that requiring an apology from the defendant will assist in improving relations between the AJAC and the Government and thus benefit aboriginals, but this does not necessarily follow. An apology is not a remedy available in defamation proceedings, and it is arguable whether an apology would result in improved relations.

[26] I conclude that it would not be appropriate to make an order for costs in advance and that the plaintiff’s application must be refused.