Kelly v Apps [2001] ACTSC 27 (4 April 2001)

Last Updated: 4 May 2002

Michael Kelly v Elizabeth Apps [2001] ACTSC 27 (4 April 2001)

CATCHWORDS

APPEAL - appeal from Magistrates Court to Supreme Court against order for costs - further appeal to Federal Court - matter remitted to Supreme Court - whether Supreme Court has power to receive further evidence in exercise of appellate jurisdiction under s 20(1)(a) of Supreme Court Act 1933.

JURISDICTION - Supreme Court - whether original and appellate jurisdiction under s 20(1)(a) of Supreme Court Act 1933 concurrent with that of Federal Court - extent of current jurisdiction.

JURISDICTION - appeals from Supreme Court - jurisdiction of High Court - whether concurrent with that of Federal Court.

Magistrates Court Act 1930, s 214, s 219B, s 219F

Supreme Court Act 1933, s 20(1), s 20(2), s 20(3)

Constitution Act 1975 (VIC), s 85(1)

Supreme Court Act 1970 (NSW), s 22

Federal Court of Australia Act 1976 (Cth), s 24(1), s 24(2), s  27

Australian Capital Territory (Self Government) Act 1988 (Cth), s 48(3), s 48A(1)

Kelly v Apps [2000] FCA 687

Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1997) 189 CLR 51

The Inherent Jurisdiction of the Court (1983) 57 ALJ 449

Eastman v R [2000] HCA 29

Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342

Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38

O'Neill v Mann [2000] FCA 1180, 101 FCR 160

Eastman v R [2000] HCA 29

No SCA 18 of 1999

Judge: Miles CJ

Supreme Court of the ACT

Date: 4 April 2001

IN THE SUPREME COURT OF THE )

) No SCA 18 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL KELLY

Appellant

AND: ELISABETH APPS

Respondent

ORDER

Judge: Miles CJ

Date: 4 April 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appellant pay the costs of the respondent before the Magistrate and the costs of this application for costs.

1. This is an application for costs following a successful appeal to the Federal Court against my ruling on 22 December 1999 that there is no power in this Court to review an order for costs made by the Magistrates Court upon the dismissal of an information. When the application for review was before me the power was sought to be invoked by the provisions of s 219B of the Magistrates Court Act 1930 (the Magistrates Court Act). The Federal Court agreed that that section does not confer a power to review a costs order made by a magistrate consequent upon a dismissal of an information but held that an alternative source of power is to be found in s 20(1)(a) of the Supreme Court Act 1933 (the Supreme Court Act). The section in full is as follows:

"(1) The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.

(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal."

2. The appeal to the Federal Court was allowed and the matter was remitted to this Court for further considerations in accordance with the reasons given: Kelly v Apps [2000] FCA 687.

3. I indicated when I gave the ruling that even if there was the power I would not have made the order for review. I gave reasons for that conclusion. I also revoked leave previously granted to the appellant to rely on further evidence by way of affidavit, since I had come to the view in the meantime that there was no power to review the Magistrate's order for costs. The Federal Court held that, as there is power under s 20(1)(a) to review, I should reconsider the further evidence.

4. Wilcox J, with whom Gallop J firmly agreed, said:

"26. The question that the Chief Justice will need to consider is what view he takes about the question whether there should be a costs order having regard to the material already before him and the material in the affidavit if he is disposed to receive it into evidence and any other evidence that he is disposed to receive consequentially upon that affidavit. If his Honour takes the view that there ought to be a costs order there will be a question of quantification. It may be possible for the parties to agree on the appropriate amount. If so, there would be no need for the matter to go further.

27. Whether the Chief Justice should undertake the quantification exercise in lieu of any agreement or whether this is a matter that should be remitted to the Magistrate for consideration is, of course, a matter for the Chief Justice's consideration. ..."

5. When the matter came back to me for determination, both counsel took the view that the Court has power to receive further evidence in an appeal pursuant to s 20(1)(a). On that basis, Mr Pilkinton for the respondent, tendered an affidavit sworn by the respondent on 2 November 2000. As I was not clear about the power to receive the affidavit evidence, the tender was accepted subject to a ruling on the power.

6. Whilst it could be argued (it was not) that appellate jurisdiction under s 20(1)(a), that is to say, jurisdiction to determine appeals in order to administer justice, is, if not unlimited, then of maximum scope and width, it seemed to me that the powers that may be invoked in the exercise of that jurisdiction may not be so wide. I also gave consideration to the allied question whether the appellate jurisdiction under s 20(1)(a) is limited to appeals properly so called, that is, appeals "in the strict sense". If the appellate jurisdiction is so limited, an appeal by way of rehearing, and a fortiori an appeal de novo, in which this Court may receive further evidence, would be outside the scope of s 20(1). However, "appeals" in the latter category are more properly characterised as proceedings in original jurisdiction (see below).

7. There is further reason for a limited approach to s 20(1)(a) implicit in the terms of s 20(2), since it could hardly be thought that it was intended that jurisdiction beyond that necessary to administer justice in the Territory could be conferred by a Commonwealth Act or Territory law.

8. The first decision I have to make therefore is whether the affidavits previously admitted into evidence by leave, pursuant to s 219F of the Magistrates Court Act, which leave I later revoked, may be, and, if so, should again be admitted into evidence.

9. Mr Lalor for the appellant, submitted that an appeal pursuant to s 20(1)(a) is a hearing de novo and that the Court has power to admit any evidence it likes, although the power "is not to be exercised willy-nilly." Mr Pilkinton for the respondent submitted that whether or not the appellate jurisdiction conferred by s 20(1)(a) is confined to an appeal "in the strict sense" the decision to revoke leave to admit the affidavit was not set aside by the Federal Court. He submitted, in the alternative, that if the appellant was permitted to rely on the affidavit, then in fairness the respondent should be able to do likewise. However, the latter submission is not supported by the terms of the relevant order of the Federal Court. That order was that the orders of the Supreme Court made on 22 December 1999 be set aside. The order revoking leave is to be found in [50] of the reasons for judgment published on 22 December 1999, although the order revoking leave was not included in the summary of orders set out for convenience on a separate page accompanying the reasons, nor in the orders that were formally entered on 12 January 2000.

10. The submissions do not avoid difficult and complex questions about the nature of the judicial power of the Territory. It is not easy to determine the limits of appellate jurisdiction under s 20(1)(a). There does not appear to be similar legislation elsewhere in Australia. The Supreme Court of Victoria has conferred on it "unlimited jurisdiction ... in or in relation to Victoria ... in all cases whatsoever": Constitution Act 1975 (VIC), s 85(1). Similarly, the Supreme Court of New South Wales has conferred on it "all jurisdiction which may be necessary for the administration of justice" in the State: Supreme Court Act 1970 (NSW), s 22. However, there is a view that this is the same jurisdiction as the Supreme Court of NSW possessed previously by virtue of 4 George IV c 96 and the third Charter of Justice of 1823: see Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1997) 189 CLR 51 and K Mason, The Inherent Jurisdiction of the Court (1983) 57 ALJ 449.

11. The notion of unlimited jurisdiction at first instance is familiar enough, if not precisely clear, or precisely accurate, in a federation. However it does not sit easily with the other familiar principle that appellate jurisdiction has to have a statutory basis. The supervisory power exercised at common law by way of prerogative writ, which may be invoked essentially to curb an excess of jurisdiction or to correct an error of law by inferior courts or tribunals, is original and not appellate jurisdiction: Eastman v R [2000] HCA 29, per McHugh J.

12. Whatever be the case elsewhere, it appears that s 20(1) is intended to ensure that this Court has jurisdiction to do justice whether at first instance or appellate level. Does it follow that, if justice requires the reception of further evidence in the exercise of the appellate jurisdiction, then the Court has power to admit it? Such a power is conferred on other courts by common statutory provisions, for example the Magistrates Court Act, ss 214 and 219F and the Federal Court of Australia Act 1976 (Cth), s  27.

13. The High Court has pronounced upon these matters on many occasions when considering the limits of its own appellate jurisdiction, most recently in Eastman v R [2000] HCA 29.

14. In that case McHugh J said at [105] - [106]:

"105 Authority for an appellate court to receive further evidence must come from a grant of legislative power in addition to a mere grant of appellate jurisdiction. It does not come from the simple grant of appellate jurisdiction because an appeal is the right of entering a superior court to redress the error of the court below and whether that court erred is to be determined on the materials before it. The power to receive further evidence is usually expressly granted but it may be implied where the appeal is stated to be one by way of re-hearing. There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal. Furthermore, where a court is given jurisdiction to hear "appeals" but with power to re-hear the matter or to take new evidence, it is not exercising appellate jurisdiction in its true sense. In such cases, as Jessel MR pointed out in Quilter v Mapleson, the jurisdiction exercised by the appellate court is an amalgam of appellate and original jurisdiction.

106 Most appellate courts today are given a statutory power to receive further evidence on appeal. In some cases, if the appeal is by way of re-hearing, it may be possible to infer an implied power to receive further evidence. When such a power is conferred, expressly or inferentially, the "appellate" court decides the case on all the facts as it finds them to exist as at the date of hearing. But the court is not exercising appellate jurisdiction in its true sense."

15. There are conflicting decisions of the Federal Court about whether an appeal under s 24 of the Federal Court Act is an appeal in the strict sense (Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342) or an appeal by way of rehearing (Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38).

16. It should also be recognised that s 20(1) of the Supreme Court Act reflects s 48A(1) of the Australian Capital Territory (Self Government) Act 1988 (Cth), (the Self Government Act) which provides as follows:

"1. The Supreme Court is to have all original and appellate jurisdiction that is necessary for administration of justice in the Territory.

2. In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

3. The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal."

17. Finn J has decided at first instance that the Federal Court has concurrent original jurisdiction with this Court in some civil matters: O'Neill v Mann [2000] FCA 1180, 101 FCR 160. His Honour's decision stimulates consideration of the possibility that this Court has concurrent appellate jurisdiction with that of the Federal Court for the purpose of appeals from judgments or orders of a single judge exercising original jurisdiction. Having regard to the provisions of s 48A of the Self Government Act as well as s 20(1) of the Supreme Court Act, since s 24(1) of the Federal Court Act does not purport to confer exclusive appellate jurisdiction on that Court. Section 24(1) is subject to "any other Act"which would include the Self Government Act. Furthermore, both s 48(3) of the Self Government Act and s 20(3) of the Supreme Court Act contemplate jurisdiction concurrent as between this Court and other courts. Appeals from this Court to the Federal Court may be by-passed by the grant of special leave by the High Court under s 24(2) of the Federal Court Act, although there does not appear to be any example of this having occurred. Leave under s 24(2), however, does not appear ever to have been granted. It may be that the High Court would be reluctant to grant leave unless intermediate appeal rights had been exhausted. The result appears to be that there is nothing that excludes either this Court or the Federal Court from exercising concurrent original jurisdiction in civil claims at those arising under the common law and laws continued in the Territory concurrent appellate jurisdiction in appeals from judgments or orders of a single judge.

18. These difficult questions do not appear to have been raised in the Federal Court appeal which resulted in the orders of 22 December 1999 being set aside. The orders of the Federal Court and the remarks of Wilcox J quoted above imply that there is power to receive further evidence. The reference to evidence which I may be "disposed to receive" implies that I have the power to receive and the discretion whether or not to receive further evidence. I proceed on that basis.

19. The affidavit referred to in paragraph 41 of my reasons for judgment on 22 December 1999 is that of Geoffrey Charles Arthur Fenwick sworn 7 September 1999. Leave to rely on that affidavit was given on 14 September 1999 and leave was revoked on 22 December 1999. The Federal Court set aside the order revoking leave to rely on that affidavit. I therefore accept the submission of Mr Pilkinton that it follows that the result is that leave is resuscitated. The affidavit of Mr Fenwick goes to show that he was a Human Resource Management Consultant and acted on behalf of the respondent in relation to redundancy and compensation matters. In that capacity he sent a faxed letter to Comcare on 18 February 1997. That letter stated that the respondent had been approached by Comcare for an interview. The interview had been fixed for 19 February 1997, but that the respondent would not be able to attend because of minor surgery to be undertaken earlier on the same day. Mr Fenwick requested certain information before any subsequent interview was arranged. Mr Fenwick received a reply from Comcare dated 19 February 1997 in which Comcare expressed concern about the veracity of statements and claims made by the respondent in relation to her compensation claims. It stated that she was under investigation. The letter went on to invite the respondent to be interviewed formally, if she so wished, to be given the opportunity of being informed of the material against her and to make any comment or explanation she wished. The letter further stated that the interview would be voluntary, the respondent could decline to answer any specific questions or make a statement, and that she could be accompanied by a friend or relative or be legally represented. Again no date or time was fixed for the proposed interview.

20. Mr Fenwick forwarded a copy of the Comcare letter of 19 February 1999 to the respondent the following day. He subsequently ceased to act for her and suggested she consult a solicitor.

21. In view of the admission of Mr Fenwick's affidavit, leave, if it was necessary, was granted to the respondent to rely on her affidavit sworn 2 November 2000. She swore that she never saw the correspondence to which Mr Fenwick referred until the letters were raised "in the application to review." She gave details of conversations in which Comcare refused to supply her with the information she wanted and indeed accused one officer of making remarks of a harassing nature. She further said that she was advised by her solicitor not to attend Comcare for interview until she received in writing some inkling of what the case against her was about, which she never received.

22. Neither deponent was called for cross-examination.

23. On this unsatisfactory state of the evidence I am not convinced that I ought take a different view about costs from that which I took on 19 May 2000. I do not repeat what I said there. It is to be taken to be incorporated in these reasons to the extent that it is applicable. The appellant has not shown that the respondent brought the proceedings on herself. The usual practice follows. The appellant informant was unsuccessful and should pay the costs of the respondent before the Magistrate and the costs of this application for costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 4 April 2001

Counsel for the appellant: Mr. G. Lalor

Solicitor for the appellant: Commonwealth Director of Public Prosecutions

Counsel for the respondent: Mr. S. Pilkinton

Solicitor for the respondent: Porter Parkinson & Bradfield

Date of hearing: 13 November 2000

Date of judgment: 4 April 2001