Rosa Colosimo, Trading As Octopus Worldwide Media Enterprises v Milton Black [1986] ACTSC 78 (25 August 1986)

SUPREME COURT OF THE ACT

ROSA COLOSIMO, trading as OCTOPUS WORLDWIDE MEDIA ENTERPRISES v. MILTON BLACK
S.C. No. 1428 of 1985
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Davies J.(1)

CATCHWORDS

Practice and Procedure - appeal from discretionary order as to costs - successful application in Magistrates Court - stay of execution of judgment - costs awarded to unsuccessful party - conduct of proceedings - conduct of parties prior to institution of proceedings

Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT) s. 238

Bostock v Ramsey Urban District Council (1900) 2 QB 616

Merry v Nickalls (1873) 8 LR ChApp 205

Cooper v Cooper (1876) 2 ChD 492

HEARING

CANBERRA
25:8:1986

ORDER

The appeal be dismissed with costs.

DECISION

This is an appeal from a discretionary order as to costs. For the appeal to succeed, it must be shown, not that the Court itself may have come to a different view if the matter had been before it in the first instance, but that the Magistrate made an error either of fact or of principle or that his discretion so miscarried that it can be seen that he was in error.

2. The proceeding before the learned Magistrate was an application for a stay of execution pending the outcome of the respondent's application, which was then on foot in the Magistrates' Court in Melbourne, for an order that the judgment obtained against the respondent in that Court and subsequently registered in the Territory be set aside. When the matter first came before the learned Magistrate, he made an order by way of stay. At the time of the hearing before him, the application to set aside had been refused in the Magistrates' Court but there was on foot an appeal from that decision to the Supreme Court of Victoria. The learned Magistrate granted the stay pending an affidavit as to the result of the proceedings in the Supreme Court. It was ordered that the respondent's solicitor file an affidavit as to the result within 14 days.

3. After the appeal to the Supreme Court had been dismissed, the matter was again brought on before the learned Magistrate. The only order that he was requested to make at that point of time was an order as to the costs of the proceedings before him. His discretion as to costs was a wide discretion. Section 238 of the Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 (ACT) provides that the costs in any proceedings, including the costs in any interlocutory matter, shall be paid or apportioned between the parties in such a manner as the Court in its discretion orders, or, if the Court does not make an order as to payment or apportionment, shall follow the event.

4. I take it from that provision that, if no order had been made, the costs would have gone in favour of the respondent who had successfully applied for a stay of execution.

5. Notwithstanding that the discretion is a wide one, it may not be exercised arbitrarily. It may take into account the conduct of the proceedings and also the conduct of the parties prior to the institution of the proceedings. As was said by Lord Justice A.L. Smith in Bostock v Ramsey Urban District Council (1900) 2 QB 616 at 622, the discretion may take into account the whole circumstances of the case and everything that led to the action.

6. There are general principles that guide the Court in these matters, and one of the principles to be taken into account is the principle which was referred to by Mr L. Watts, who appeared for the appellant, namely, the principle that a person who asks for a favour ought generally to pay the costs of obtaining that favour. Mr Watts properly referred to Merry v Nickalls (1873) 8 LR ChApp 205, and Cooper v Cooper (1876) 2 ChD 492.

7. I agree with Mr Watts to the extent that, had there been no other relevant factors to take into account, it would have been proper for the Magistrate to have ordered that the respondent who sought the stay of execution pay the costs of obtaining that stay. However, the learned Magistrate took into account matters that had occurred prior to the institution of the application for the stay, matters that had occurred between the parties which necessitated the making of that application.

8. I have been informed that his Worship's reasons were as follows, and I quote :

"Because of tactics, hasty action on behalf of the

plaintiff's solicitors the respondent should pay
the applicant's costs."

His Worship took into account action on the part of the appellant's solicitors, action that had been hasty and had necessitated the bringing of the proceedings for a stay, which proceedings as I say were successful and almost inevitably must have been successful. His Worship ordered that the appellant pay the costs of the stay proceedings.

9. It was put by Mr Watts that there was no material before the Magistrate to justify that view of the facts. However, the material before the Magistrate included two pieces of information which were relevant. The first was that there had been no notification given of the default judgment when it was made and the entry of judgment had been a surprise to the respondent's solicitors. Secondly, there was an affidavit from the solicitor for the respondent which included the following information given to him by his agent in Melbourne. I quote the agent's information:

"We have a hearing set for Tuesday, 18 December
1984 and Mrs Bondolino has known about that for
more than a month. In fact she has had the papers
for over a month and I spoke to her by telephone
prior to that."

Perhaps that affidavit may have been objected to as being hearsay, though the proceeding was a proceeding for a stay and not a proceeding for a substantive order. The affidavit was not in fact objected to and there was no answering affidavit put before the Magistrate. On that footing the Magistrate was entitled to act on the basis of that affidavit and therefore to conclude that the registration of the judgment and the application for a warrant of execution which took place on 4 December 1984 occurred after the solicitors for the appellant were aware of the making of the application to have the judgment set aside.

10. It therefore seems to me that there was a basis upon which a magistrate could properly have concluded that the proceedings were brought about by hasty action on behalf of the appellant's solicitors. That being the case, it seems to me that there was no error in the decision of the Magistrate. I cannot say that the Magistrate's decision ran so against principle and the facts of the matter that his discretion miscarried.

11. For these reasons the appeal must be dismissed with costs.