Turner v Kostoglou - [2005] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TURNER v KOSTOGLOU & ANOR
Judgment of The Honourable Justice Sulan
8 April 2005
LANDLORD AND TENANT - RENT - RECOVERY - DISTRESS FOR RENT
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal against a decision of a magistrate in relation to costs - whether the magistrate erred in refusing to disqualify herself on the grounds of perceived bias - whether the magistrate erred in ordering the appellant to pay costs calculated by reference to the scale for claims in excess of $80,000 - whether the magistrate erred in failing to apportion costs - appeal dismissed.
Landlord and Tenant Act 1936 (SA) s 24; Magistrates Court Act 1991 (SA) s 37(1); Magistrates Court (Civil Rules) 1992 (SA) r 106(1), r 106(7); Valuation of Land Act 1960 (Vic), referred to.
Kellett v Buchanan [1935] SASR 144; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Reg v Hore ex parte Brisbane City Council [1969] Qd R 75; Rex Tyre and Auto Services (Richmond) Pty Ltd v Country Roads Board [1979] VR 608; Southern Resources Ltd & Ors v Residues Treatment and Trading Company Ltd & Ors (1991) 56 SASR 455; Melbourne Auto Wreckers Pty Ltd v Country Roads Board, unreported, 26 May 1975, considered.

TURNER v KOSTOGLOU & ANOR
[2005] SASC 132
Magistrates Appeal

SULAN J: This matter has a long and involved history. It is unfortunate that the parties are yet again before the Court, appealing the decision of a magistrate’s order for costs. In order to understand how it has come about that there is an appeal against a costs order in the sum of $11,157.66, it is necessary to trace the history of the litigation between the parties and a third person, Mr Zollo, who was a party to earlier proceedings.
The issues to be determined
The appeal raises a number of issues. The appellant contends that the magistrate should have disqualified herself on the ground of perceived bias. She also alleges that the magistrate lacked jurisdiction to make an order for costs. The appellant submits that the order for costs should be set aside as the magistrate should not have ordered costs on an indemnity basis. I reject the appellant’s contentions for the following reasons.
Background
The respondents, Mr and Mrs Kostoglou, were the owners of premises at 355 Main North Road, Enfield. On 1 September 1998, they leased the premises to Mr Tennyson Turner, the husband of the appellant (“the 1998 lease”). Mr Turner is a bankrupt. The appellant carried on a business of selling art and craft from the premises.
Prior to the appellant commencing her business, Mr Turner and Mr Zollo had leased the premises as tenants-in-common. Mr Zollo is an artist, and had used the premises to exhibit and store his paintings. The term of the lease was for three years and commenced on 1 April 1995. Mr Zollo did not enter into the 1998 lease. Some of Mr Zollo’s artwork remained at the premises after the appellant commenced her business.
As at 22 February 2002, Mr Turner owed in excess of $30,000 to the respondents in rental arrears, payable under the 1998 lease. On that day, the respondents re-entered the premises and terminated the lease. Items of personal property were seized by the agent acting on behalf of the respondents, purportedly by way of distress for arrears of rent.
Section 24 of the Landlord and Tenant Act 1936 (SA) (“the Act”) provides:
(1)     When any claim is made by service of a declaration and inventory, by any person other than the immediate tenant, to or in respect of any agisted cattle or goods distrained, or threatened to be distrained, by any landlord for rent, any justice of the peace, upon complaint in writing by either the landlord of the claimant preferred before the sale of such goods under the distress (where the cattle or goods have been actually distrained) by the person making the claim, may –
(a)     issue a summons in the form in Schedule 5, or in a form to the like effect, directed as well to the landlord as to the person making the claim; and
(b)     in his discretion order such sale to be postponed until the summons has been disposed of.
(2)     Any two or more justices may adjudicate on such claim in a summary manner, and make an order in, or to the effect of, the form in Schedule 6, and such order as to costs to be paid by either party as to them shall seem just.
(3)     Service of the summons or order on a person authorised by the landlord to distrain shall be deemed service on the landlord, and service of the summons or order on a person who has made a claim on behalf of another shall be deemed service on the principal.
The Act requires a person who distrains for rent to make an inventory of the goods distrained. That inventory must be delivered to the tenant, or some other person, residing at the premises. If distress is levied on goods being the property of a person other than the tenant, that person may serve upon the landlord a declaration that the tenant has no right of property or beneficial interest in the goods, and the goods are his or her property. A summons can issue to the landlord and the claimant, and any two justices can adjudicate on any competing claims in a summary way.
The appellant commenced proceedings in the Adelaide Magistrates Court against the respondents, pursuant to s 24 of the Act, seeking return of the property seized. Mr Zollo commenced similar proceedings in the Holden Hill Magistrates Court. He claimed that a substantial amount of the property which had been seized by the respondents’ agent was owned by him, and that neither Mr Turner nor the appellant had any interest in that property.
An order was made that the two actions be heard together. Both the appellant and Mr Zollo sought return of their goods. The actions were heard by the magistrate.
The appellant and Mr Zollo both gave evidence in support of their respective applications. The appellant’s case was that Mr Turner had transferred ownership of the property seized to her at the time that she occupied the premises. The magistrate heard evidence from Mr Turner. The magistrate did not accept the evidence. She concluded that the goods were jointly owned by the appellant and Mr Turner. As to the paintings of Mr Zollo, other than two paintings which were identified, the magistrate concluded Mr Zollo and Mr Turner were parties to a joint venture to sell Mr Zollo’s artwork.
The appellant and Mr Zollo further submitted that the distraint of goods was invalid, because it was excessive. The magistrate concluded that the distraint was not excessive. She dismissed both applications.
Mrs Turner appealed. A judge of this Court ordered that the respondent, Mr Zollo, be joined as an appellant. He concluded that the distraint was invalid because, at the time that the landlord sought to distrain, the lease had expired and distraint could not be effected after the expiration of the lease. He determined that the lease was terminated immediately before the distraint and the distraint was, therefore, unlawful. For the purpose of these reasons, it is not necessary to deal in detail with those proceedings. They were complicated by the fact that Mr Turner, who was by then a bankrupt, was not a party to them. The judge gave the Trustee in Bankruptcy an opportunity to be heard. Mr Turner did not intervene in the proceedings. The judge concluded that the magistrate did not have jurisdiction to entertain the application under the Act. It followed that the order dismissing the applications was correct, but for the wrong reasons. He found that the proceedings should have been dismissed because the magistrate lacked jurisdiction. He ordered each party to bear their own costs of the action in the Magistrates Court.
Mr and Mrs Kostoglou appealed to the Full Court. The Court concluded that the Magistrates Court did not have jurisdiction to entertain the applications of Mrs Turner and Mr Zollo. The Court was informed that the property had been returned and that the only outstanding question was in respect of the order that each party bear their own costs.
The Full Court was informed that the goods had been returned, and that there was no subject matter for the appeal except the costs. The Full Court concluded that the conduct of Mrs Turner and Mr Zollo at the trial caused unnecessary costs to be expended by the landlords. The Court concluded that Mrs Turner and Mr Zollo had brought the proceedings in the Magistrates Court, which lacked jurisdiction and, in the ordinary circumstances, it would be expected that an order for costs would be made against the party who commenced proceedings in a court that did not have jurisdiction.
The Full Court upheld the appeal against the orders for costs. Mullighan J, with whom Nyland and Anderson JJ agreed, said:
[42] For the reasons I have mentioned, the appellants [Mr and Mrs Kostoglou] should have their costs before the learned Magistrate. They succeeded on the merits. The respondent commenced the proceedings in that Court which did not have jurisdiction. Their conduct at the trial caused substantial waste of costs. Their assertion of invalidity of the distraint was on different grounds which were correctly rejected by the learned Magistrate.
…
[44] I would allow the appeal and set aside the order made by the learned Judge regarding costs of the proceedings in the Magistrates Court and order that the respondents pay the appellant’s costs of those proceedings. I would seek clarification from the parties as to when the goods were returned to the respondents, and then either confirm the decision of the learned Judge as to costs of the appeal or order that the respondents also pay the appellant’s costs of that appeal, depending upon when the goods were returned.
The matter was remitted to the magistrate to determine the quantum of costs.
The decision of the magistrate
Mr and Mrs Kostoglou sought the following orders:
1.That this matter be certified a complex action, pursuant to r 106(7) of the Magistrates Court Rules.
2.Directions and orders as to the taxation of costs.
3.Costs of the application.
4.Such further or other orders as the Court sees fit.
In his affidavit in support of the application, the solicitor for the respondents stated that the respondents intend to render a bill of costs to Mrs Turner and Mr Zollo, regarding the Magistrates Court proceedings. He submitted that the actions constitute a complex action, and sought certification of the action as a complex action.
An objection was lodged by the appellant on 6 September 2004. She contended that the Magistrates Court had no jurisdiction, as the Full Court had concluded that the Magistrates Court did not have jurisdiction to hear the original applications. She further contended that the issue before the Magistrates Court as to the ownership of goods did not render the matter a complex action. In the alternative, she submitted that no more than one day’s costs should be allowed in any event. She contended that the court had been alerted on the first day of trial that she and Mr Zollo claimed the distraint was illegal. She submitted that the length of the trial was substantially due to the lengthy cross-examination of witnesses by the respondents’ then counsel.
A further affidavit dated 23 September 2004 was filed by the solicitors for the respondents, to which they attached invoices of their charges and counsel fees, totalling the sum $11,157.66.
In support of the application before the magistrate, the respondent provided a table which set out the appellant’s costs of the magistrates proceedings, calculated on three different bases. The first was a routine scale claim of $20,000, the second a routine scale claim of $80,000, and the third being a complex scale claim of $20,000. The amounts calculated, which included the first day of trial and six subsequent days, plus solicitor’s costs, totalled $9,650, $16,300, and $13,140 respectively. The actual costs charged to the respondents totalled $11,157.66, which are the costs calculated on an indemnity basis.
Rule 106(1) of the Magistrates Court Rules 1992 provides:
106. (1)     Subject to these Rules or to an order of the Court, a successful party in an action (other than a minor civil action) is entitled on judgment to costs against an unsuccessful party, or any other party that the Court may order, in accordance with the following principles -
(a)     where judgment is in respect of an action for a sum of money -
(i)a successful plaintiff is entitled to costs on the relevant scale in the Third Schedule applicable to the sum actually recovered;
(ii)a successful defendant is entitled to costs on the relevant scale in the Third Schedule applicable to the sum claimed:
(b)     where judgment is in respect of any other action – a successful party is entitled to costs on the scale in the Third Schedule specified by the Court;
or
(c)     where the action involved unusual difficulty or intricacy, or other property cause exists – a successful party is entitled to costs on such percentage of the Supreme Court scale as the Court specifies.
Rule 106(7) provides:
(7)(a)      A party may, by notice in writing served on all other parties, certify that the nature of an action entitles the parties to costs on the relevant scale in the Third Schedule as a complex action and, unless any other party by notice in writing objects (including detailed reasons for the objection) within 21 days of the service of the notice, a party entitled to costs in the action is entitled to costs on the relevant scale as a complex action.
(b)     If a party so objects, the relevant scale may be determined by the judicial officer hearing the trial of the action.
(c)     In any other case, unless the Court orders otherwise, the relevant scale for a complex action will not apply.
The respondents contended before the magistrate that the matter involved questions of factual complexity, which included examination of the relationship between Mr Turner, the appellant and Mr Zollo, as to the occupancy of the premises, ownership of the goods and the business relationship between them. These matters were far from clear, as the arrangements had been poorly documented and the court was forced to rely upon evidence from the parties, which, it was submitted, was complex. Further, it was submitted that the matter was complex because Mr Zollo had placed a value of $2,000,000 on his artwork.
In the alternative, it was submitted that the court had a discretion to order costs on the routine scale applicable to a claim of $80,000, as there were claims that the value of the property the subject of the action exceeded $80,000. Further, and in the alternative, it was claimed that the court had a discretion to order indemnity costs because of the manner in which the appellant and Mr Zollo had conducted their respective actions. Their conduct had unduly lengthened the time taken to dispose of the claims.
The magistrate was advised that before the judgment of the Full Court had been handed down, all the goods, the subject of the distress, were returned to the appellant and Mr Zollo. It was submitted that the magistrate was functus officio, and the application should be referred to the Full Court, which was seized of the matter. It was further submitted that there was no application before the Magistrates Court to tax costs. The only application was to declare the matter a complex matter, and the magistrate should therefore not proceed to tax the costs. Mr Stathopolous, who appeared for the appellant, submitted that the magistrate should disqualify herself on the grounds that she had made adverse findings about the appellant’s credit and, therefore, there is an appearance of bias.
The magistrate declined to disqualify herself. She concluded that the effect of the submission was that any judicial officer who had made findings of credit against a party who had lost would be required to disqualify themselves in respect of an application for costs. She concluded:
I decline to disqualify myself for perceived bias. Mr Stathopoulos’s submission is flawed in that it would result in a requirement for all judicial officers who have made an adverse finding as to the credibility of a party to disqualify themselves from determining the costs of the action if requested to do so by the unsuccessful party. The question to be asked when a judicial officer is asked to disqualify him or herself is whether it had been established that it might reasonably be suspected by fair-minded persons that the judicial officer may not resolve an application with a fair and unprejudiced mind. (See R v Watsonex parte Armstrong (1976) 136 CLR 248 at p 264.)
The magistrate rejected the submissions that she was functus officio, and that the application was limited to determining whether or not the action was complex. She declined to refer the matter to the Full Court. She then proceeded to tax the costs.
Section 37(1) of the Magistrates Court Act 1991 provides:
Subject to this Act and the rules, costs in any civil proceedings will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
The magistrate concluded that the action involved unusual difficulty and intricacy in the context of a summary hearing. She referred to the fact that the hearing occupied over eight days, which was indicative of factual complexity. She concluded that the issues were more complex, because they were poorly documented and involved three parties. Questions relating to the occupancy of the premises and the ownership of many of the goods arose, and there was a need to examine the business relationship between Mr Turner and the appellant and Mr Zollo. She also noted that the hearing involved a valuation of the goods, as the appellant and Mr Zollo maintained that the distraint was invalid because it was excessive. She concluded that the routine scale for claims of $80,000 should apply.
The costs applicable on the scale determined by the magistrate totalled $16,300. The magistrate then referred to the defendants’ claim in the sum of $11,157.66, and concluded that as the quantum, using the routine scale for claims of $80,000, exceeded the actual amount of costs incurred by the respondents that the award of costs should be $11,157.66.
The appeal
The grounds of appeal allege that the magistrate erred in the following respects:
1.In continuing to hear an application for a declaration that the matter be categorised as a matter of complexity, on the ground that she should have disqualified herself on the grounds of perceived bias.
2.In ordering costs on a scale in the Magistrates Court, which was higher than was justified.
3.In allowing costs on an indemnity basis.
4.In failing to find that the costs should have been limited to the first day of the hearing only.
5.In ordering the appellant to pay costs of the respondents, in spite of the negligence and refusal of the court to allow the appellant to lead evidence of the unlawfulness of the conduct of the respondents.
6.In failing to deal with the time taken by another action heard at the same time, and in failing to apportion costs.
Bias
The appellant submitted that the magistrate, in refusing to disqualify herself on the grounds of perceived bias, was in error. In support of the submission of perceived bias, the appellant submitted that the magistrate was more than ordinarily friendly to counsel for the respondents in the original hearing. It was further submitted that the magistrate failed to find in the original hearing that Mr and Mrs Turner’s evidence was untruthful and that she rejected the written evidence of Mrs Turner. Counsel further submitted that the magistrate failed to recall Mr Turner and failed to receive supporting evidence from him. Counsel for the appellant further complained that the magistrate failed to hear Mr Zollo on his submission at the end of the trial, and failed to have regard to a decision of Master Rice in the District Court in respect of whether the distraint was lawful. It was further submitted that the magistrate erred in directing the appellant as to when and in what order witnesses were to be called by the appellant, that she incorrectly relied on statements from the bar table, and failed to observe that costs details submitted by the respondents contained matters totally unconnected with the issues in the Magistrates Court.

Many of the allegations upon which the appellant relied were not supported by evidence. They were simply allegations contained in the outline of argument.
In Livesey v New South Wales Bar Association[1], the High Court considered whether two judges of the Court of Appeal in New South Wales should have been part of the coram considering an application to strike the appellant’s name off the roll of barristers. The appellant called two witnesses, who two members of the court, in other proceedings, had described as being witnesses without credit. The two judges had made findings adverse to the appellant in those previous proceedings.
[1] (1983) 151 CLR 288
Mason CJ, Murphy, Brennan, Deane and Dawson JJ, referred to the principle that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. The issue for determination in most cases is not whether the judge is actually biased, but whether the court considers that, in participating in the case, it might lead to a reasonable apprehension of pre-judgment or bias. The principle is applicable to whether a judge should embark upon the hearing or, if during the hearing, the judge somehow is placed in a position in which a reasonable person would apprehend bias on the part of the judge if he or she continued to hear the case. It commonly occurs that a judge will make findings of credit about witnesses, including plaintiffs and defendants, in an action. Furthermore, judges will make comments during the action, sometimes adverse to a party or the party’s witnesses. Judges will make rulings during the course of the proceedings, some of which are considered to be wrong or unfair by one of the parties.
Once a case has been decided, questions of costs will arise. In the usual case, costs follow the event. Often the judge is required to decide upon what basis costs should be awarded, whether a party is entitled to all the costs or only part thereof, and other questions relevant to quantum. The manner in which the case has been conducted may influence a judge in the exercise of his or her discretion as to the orders that are to be made. The fact that the judge may have made adverse findings against a party is not a basis for the judge being required to disqualify himself or herself from deciding questions of costs. The complaints about the manner in which the magistrate conducted the trial and the complaints about her rulings during the trial, even if substantiated, are not of such a nature or seriousness as to require this court to interfere on the ground of perceived bias.
There is nothing in the reasons of the magistrate to support the contention of perceived bias. The magistrate was critical of the case presented by the appellant. She did not accept the appellant’s or Mr Zollo’s evidence in a number of crucial areas, but that does not justify the contention that she could not hear and determine the costs argument. I reject this ground of appeal.
The magistrate lacked jurisdiction
The appellant contends that the magistrate did not comply with the Full Court order. It is submitted that, in hearing the respondents’ application that the trial be declared complex, the magistrate acted beyond the order of the Full Court. It is further contended that the magistrate should not have assessed the costs, as there was no application before her at the time.
The application before the magistrate sought orders that the matter be certified a complex action, pursuant to s 106(7) of the Magistrates Court Rules 1992 and sought directions and orders as to the taxation of costs.
In her notice of objection to the application, the appellant addressed the question that the magistrate should order no more than one day’s costs. Submissions were put as to the appropriate scale of costs to be applied. Submissions were made about the complexity of the case, and whether there were grounds upon which to make the order sought by the applicant.
Calculations were placed before the magistrate as to the quantum of costs which should be awarded. The magistrate was satisfied that, given the outlines and affidavits filed in support of each party’s position, the parties had had an opportunity to put full submissions before her to determine all outstanding questions relating to costs. The magistrate had sufficient material before her to determine that question. I reject the appellant’s submission that the application was limited to determining whether the action was complex.
The costs order
As it turned out, the magistrate made no determination that the matter was complex. Rather, she referred to the unusual difficulty and intricacy of the case. She concluded the issues were more complex because they were poorly documented and involved three parties. She referred to the hearing lasting eight days as being indicative of factual complexity. Rule 106(1)(c) provides that where the action involves unusual difficulty or intricacy or other proper cause exists, a successful party is entitled to costs on such percentage of the Supreme Court scale as the court specifies.
In Rex Tyre and Auto Services (Richmond) Pty Ltd v Country Roads Board[2], Gobbo J considered the phrase “unusual difficulty” in the context of an application under the Victorian Valuation of Land Act 1960, that a claim for compensation be determined by the Supreme Court, rather than the Land and Valuation Board of Review. He referred to and adopted an unreported decision of Barber J in Melbourne Auto Wreckers Pty Ltd v Country Roads Board, (unreported 26 May 1975), in which His Honour adopted the ordinary dictionary meaning of the word “unusual” as “out of the common, remarkable or exceptional”. His Honour added to those words “not often occurring”.[3] I adopt the approach of Gobbo J. The resolution of issues in this case was made more difficult because of the way in which the case was presented and argued. The issues involved a determination by the magistrate about the ownership of the goods, the subject of the action. These questions were essentially factual. They required a consideration of some facts which were complex. Although the magistrate referred to the action as being unusually difficult, her decision to order costs on the scale of $20,001 to $80,0000 for a routine action was also based upon the claim that the value of the goods exceeded $80,000.
[2] [1979] VR 608
[3] Ibid at 609-610
Section 24(2) of the Act provides that the Court may make such orders as seem just. Applications under s 24 do not always turn on the value of the goods seized but, in many cases, the issue will be ownership. The value of the goods is just one factor to be considered. The magistrate determined to apply the scale for claims of $80,000. She had regard to the values claimed by the applicant and Mr Zollo. She also had regard to the length of the case, and to the various issues required to be determined. The Act provides that claims should be determined in a summary manner. This action was made complicated by the manner in which it was conducted by the appellant. The magistrate was justified in adopting the scale for claims of $80,000. She allowed eight days in all. It is not disputed that the total hearing time, although over an eight-day period, totalled seventeen hours and forty-nine minutes. The respondent sought costs for four days. In the circumstances, this was not unreasonable. It explains the difference between the scale costs of $16,300 and the amount claimed of $11,157.66.
In Southern Resources Ltd & Ors v Residues Treatment and Trading Company Ltd & Ors[4], the Full Court considered the approach of an appellate court to an appeal against an order for costs. The Court said:
The argument in support of the appeal clearly acknowledges the wide discretion of the trial judge on questions of costs with which an appellate court ought not generally to interfere. The appellants have to show that the discretion was so unreasonable or unjust as to require the appellate court to substitute its own discretion: see Norwest Refrigeration Services Pty Ltd v Baine Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 176 per Brennan J.[5]
[4] (1991) 56 SASR 455
[5] Ibid at 480
In Kellett v Buchanan[6], the case involved an appeal against a costs order made in a court of summary jurisdiction. Napier and Piper JJ and Reed AJ said:
We think that the order of the learned Judge was right upon grounds which may be briefly stated. The Magistrate was authorized by sec 77 of the Justices Act 1921 to allow such costs as he thought “just and reasonable”. This is a matter involving discretions, and on appeal to the Supreme Court the order will not be disturbed, unless some error of principle or irregularity in the proceedings is disclosed or it appears that the amount is manifestly excessive or inadequate. But it may be desirable to add that appeals upon questions of this kind are not encouraged, and will not be countenanced, unless some substantial injustice is disclosed.[7]
[6] [1935] SASR 144
[7] Ibid at 146
The court observed that in using the term “just and reasonable” the legislature was emphasising the discretionary nature of the power that is conferred.
The appellant has not demonstrated an error in principle, or an irregularity in the proceedings.
In calculating the costs as she did, it cannot be said that the magistrate’s discretion miscarried. It was appropriate to fix the sum at $11,157.66, having regard to the principle that costs can be no more than on an indemnity basis, if calculation on the scale exceeds that to be awarded on an indemnity basis.
The failure to apportion costs between the appellant and Mr Zollo
The appellant complains that the magistrate failed to deal with the time taken in each action, and that she failed to apportion costs between the appellant and Mr Zollo. The two actions were heard as if they were one action. Both the appellant and Mr Zollo gave evidence. The magistrate and the parties treated the two actions as one action. Evidence called by the appellant was relevant to the claim of Mr Zollo. Mr Turner and the appellant gave evidence which was relevant to Mr Zollo’s claim. Mr Zollo gave evidence which was relevant to the appellant’s claim. The magistrate ordered that both Mr Zollo and the appellant be liable for the costs of the respondent, to be taxed. Both Mr Zollo and the appellant appealed. They were each represented by the same solicitor and counsel. The appeal was conducted as if they were joint parties in one action. Similarly, the appeal to the Full Court was conducted by one counsel, representing both the appellant and Mr Zollo, and was conducted as if they were joint appellants. They were both represented by the same solicitor.
In making the order for costs, the magistrate awarded a total of $11,157.66 in respect of both actions. The order in each action was that the plaintiff pay the defendants’ costs in the sum of $11,157.66. She did not distinguish between the appellant and Mr Zollo. The respondents can choose from whom they recover their costs, so long as they do not recover in total more than the amount awarded.
In Reg v Hore ex parte Brisbane City Council[8], fourteen appeals were heard together in the Local Government Court. The appellants were represented by the same firm of solicitors and the same counsel. The appellants were successful. The taxing officer considered each item in respect of each bill. He aggregated the total allowances in respect of certain items, and included the aggregate sum on the first bill. He allowed nil on all the other bills. The effect of the order was that on one bill certain items were allowed at greatly in excess of the Supreme Court scale. Proceedings were issued by the Council seeking orders by way of certiorari and mandamus that the taxing officer should show cause why writs should not be issued to quash the taxation on the grounds that the taxing officer erred in failing to apportion costs between the fourteen appellants. In the alternative, an order was sought to show cause why the taxing officer should not be directed to reconsider and review his taxation in accordance with the Rules of the Supreme Court. The motions were refused.
[8] [1969] Qd R 75
The Full Court considered that the effect of the taxing master’s order was to lump each appellant’s costs into one order which did not exceed the total amount allowable if each bill had been taxed separately. The result was that if the bill was paid, that would satisfy each of the fourteen claims. It was for the appellants to apportion the total amount recovered between themselves. The court determined it was permissible and appropriate to consider the fourteen claims together and make a global award.
In his judgment, Hoare J referred to a number of authorities, the effect of which were that if two parties bring separate proceedings which are substantially identical and one attorney is engaged, then separate costs and charges should only be allowed where it can be established that separate time has been spent. If there were attendances and other matters which were, or ought to have been done at one and the same time in both cases, only one allowance should be made. He referred to a number of authorities where the court was concerned to ensure that there was no double charging, and to ensure that, where parties had a common interest and engaged the same counsel, they should not be entitled to recover costs twice. He concluded that where there were a number of appeals involving precisely the same points, it would be quite unrealistic to allow a full fee on brief on each appeal and comparable solicitor’s costs. He said:
Depending on the particular circumstances, in such a case both in respect of the fee on brief and refreshers, I should think that a normal full fee should not be allowed on each separate appeal. On the other hand, I should think that usually it would be equally incorrect to allow only a total fee of an amount appropriate to one appeal only. Generally speaking (and again depending on the circumstances) it would appear appropriate that some moderate increase be made in the proper fee from one appeal and an apportionment of the total among all appeals would, I think, be quite justified. It seems to me that a similar approach would be the correct one on relevant items of solicitor’s costs.[9]
[9] Ibid at 91
If the actions, in effect, were run as one action, then generally there will be only one order for costs. There may be a small allowance for additional work done because there were two actions.
It was open to the magistrate to make one global order against each Mr Zollo and the appellant. The question of how the two parties against whom the order has been made apportion those costs between them is a separate question. It may have to be referred to the taxing master, if agreement cannot be reached.
The respondents can only recover the one amount of $11,157.66, and counsel for the respondents has accepted that is the position. It is a matter for the respondents to determine from whom they seek to recover the costs.
The effect of the magistrate’s order was to treat the liability for costs as joint and several. It was open to her to take this approach. She had a discretion. This Court is loathe to interfere, unless it can be shown that there has been a miscarriage of justice. No such miscarriage has been demonstrated.
The appeal is dismissed.