Ballerini v Brown [2005] ACTSC 75 (5 August 2005)

Last Updated: 11 August 2005

BALLERINI v BROWN [2005] ACTSC 75 (5 AUGUST 2005)

APPEAL - appeal from Magistrates Court - exercise of discretion - costs.

JURISDICTION, PRACTICE AND PROCEDURE - jurisdiction - variation of costs order of magistrate - where Protection Orders Act 2001 (ACT) does not include costs orders as an appealable ground to the Supreme Court - Supreme Court Act 1930 (ACT), s 20 - the extent of the inherent powers of the Supreme Court - Kelly v Apps (2002) 98 FCR 101 applied.

Protection Orders Act 2001 (ACT), s 7, s 31, s 78, s 79, s 95, s 106, Part 6

Protection Orders Regulations 2002 (ACT), s 89

Magistrates Court Act 1930 (ACT), s 207

Supreme Court Act 1933 (ACT), s 20

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

Kelly v Apps (2000) 98 FCR 101

N R Pty Ltd v Kearney [2000] ACTSC 92 (24 October 2000), Miles CJ

B & H (2001) 118 A Crim R 120, Miles CJ

Vann v Palmer [2001] ACTSC 12 (22 February 2001), Crispin J

CD v Chief Executive Department of Education & Community Services (2000) 27 Fam LR 19, Crispin J

Rose v Snape [2000] ACTSC 115 (7 December 2000) Higgins J

FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000), Crispin J

FAI Properties Pty Ltd v Apostolopoulos (2002) 169 FLR 232

Harrison v Commissioner for Housing [2003] ACTSC 22 (11 April 2003) Connolly J

Jones v Commissioner for Housing for the Australian Capital Territory [2003] ACTSC 52 (30 June 2003) Connolly J

Director of Public Prosecutions (ACT) v McDowall (2002) 168 FLR 474

Commissioner for Housing v Ganas (2003) 175 FLR 337

Evans v Shiels (2004) 185 FLR 1

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351

R v Grassby (1989) 15 NSWLR 109

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 7 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )

) No. SCA 7 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JOHN BALLERINI

Appellant

AND: SUSAN BROWN

Respondent

ORDER

Judge: Gray J

Date: 5 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and no further order be made.

1. These proceedings, by way of appeal, arise from a decision by a magistrate that the applicant (the appellant in these proceedings) for an interim domestic violence order, who had applied for that order to be revoked, pay to the respondent to that order (and the respondent in this appeal) costs fixed at $1,300.00.

Background

2. On 16 November 2004, the appellant sought, against the respondent, to whom he had been married, an interim protection order under Part 6 of the Protection Orders Act 2001 (ACT) (Protection Orders Act) in respect of himself and the two children of the marriage. The application alleged behaviour of an offensive or harassing nature. At the time it appears that orders had been made in the Family Court granting access to the respondent. Even though the fact of the Family Court proceedings was disclosed on the appellant's application form for the domestic violence order, the contents of such an order were not, although reference was made to the date of the order and its Family Court number. Nevertheless, an order under the Protection Orders Act was made on 16 November 2004 granting an interim domestic violence order apparently without the existence of the Family Court order being raised as an issue.

3. That order was the subject of a contested hearing before a special magistrate when the matter next came before that court on 25 November 2004. The order made on that occasion was not before me, but I was informed from the Bar table that the order was extended to expire at 4.00pm on 10 January 2005. The order was also amended to insert a provision "except in accordance with any order made by the Family Court on Monday, 29 November 2004".

4. On 10 January 2005 there was to be a further "return conference" in the matter and, if necessary, a final hearing.

5. However, further proceedings in the Federal Magistrate's Court concerning the Family Court order between the appellant and the respondent resulted in an order being made on 20 December 2004 for the respondent to have supervised contact with the children. Apparently, as a consequence of the making of the order by the Federal Magistrates Court, the appellant proposed the withdrawal of his application for the protection order, on the respondent giving an undertaking about contact with the appellant. For present purposes, I assume that the offer was sent but not actually communicated to the respondent before the hearing day in the ACT Magistrates Court on 10 January 2005.

The application to revoke the interim protection order

6. On that day, the appellant proposed that the application be "withdrawn" notwithstanding that the respondent was not prepared to give the undertaking requested by the appellant. The respondent's solicitor then made an application for costs on behalf of the respondent.

7. The magistrate, before whom the matter came, took the step of ordering that:

... the Interim Domestic Violence Orders dated 16 November 2004 and 25 November 2004 [be] revoked and dismissed and cease to have any further force or effect.

He then entertained the respondent's application for costs and determined that the appellant pay the respondent's costs which he fixed in the sum of $1,300.00. The appellant seeks to appeal only from the magistrate's order as to costs.

8. Subsection 31(3) of the Protection Orders Act empowers the revocation of a protection order on the ground set out in that provision. The subsection provides:

A protection order (the original order) may be revoked if -

(a) the Magistrates Court is satisfied that the order is no longer necessary for the protection of the person it protects; or

(b) the applicant for the original order applies for the revocation.

The power granted only calls for the revocation of the order, not its dismissal or a declaration that it is of no further force or effect as the magistrate appeared to think it did. However, the flamboyance of the magistrate's order has some significance to the manner that he dealt with costs.

Costs

9. The question of costs under the Act is not the subject of a specific power; rather the relevant portion of s 106 deals with the matter in this way:

(1) The Executive may make regulations for this Act.

(2) The regulations may deal with the following:

...

(m) when costs may be ordered and how they may be recovered.

There is a provision in s 95 of the Act for recovery of third party expenses reasonably incurred on a finding that an application under the Act is "frivolous, vexatious or has not been made honestly". That provision, however, does not touch upon the question of costs as between the parties to such an application. Pursuant to the Protection Orders Act, the Protection Orders Regulations 2002 (ACT) provide a regime for costs. Section 89 of the Regulations is as follows:

(1) Each party to a proceeding on an application must bear the party's own costs.

(2) However, the Magistrates Court may order the payment of costs in a proceeding and, if it does, the court must fix the amount of the costs.

(3) Also, the Magistrates Court must not order the payment of costs on an application if regulation 16 (2) (Procedure if neither party appears) applies to the proceeding on the application.

(4) Costs under subregulation (2) are recoverable as if they were costs awarded under the Magistrates Court (Civil Jurisdiction) Act 1982.

The grounds for application for costs

10. It is also worthwhile noting that s 7 of the Protection Orders Act provides:

Procedures under this Act are to be as simple, quick and inexpensive as is consistent with achieving justice.

The proceedings on this aspect were anything but that. On what was an application for costs after the order had been revoked, the respondent's solicitor undertook an extensive re-canvassing of the decision of the special magistrate that had been given on 25 November 2004. Complaint was made about the special magistrate's willingness to extend the order in the face of the fact that the matter was also before the Family Court. The bona fides of the appellant in making the application were again questioned and every attempt was made to agitate issues that were or could have been put before the special magistrate. I would have thought that equally, the appellant could be critical of the procedure before the special magistrate where, despite his request that if the matter were to proceed on the merits, he wished his legal counsel to be present, he was nonetheless placed in the witness box by the special magistrate and an extensive cross-examination was permitted of him as to his motives and his bona fides in bringing the application. Notwithstanding this one-sided treatment, the appellant was successful before the special magistrate and the respondent should not have been permitted to re-agitate those matters before the present magistrate under the guise of a costs application. It may be noted that the Act specifically excludes the making of an interim order as an appealable decision under the Act (see s 78 of the Protection Orders Act later cited herein).

11. The application for costs concluded with a request for the costs of the application before the special magistrate and for the costs of fully preparing for the hearing of the matter before the magistrate. Apart from the complaint that the special magistrate should have not made the order that he did, no real reasons were advanced as to why the appellant should be responsible for costs. Further, the only reason advanced for saying that the notification that the appellant had given that the hearing before the magistrate would not proceed, was that the respondent's solicitor's office had not been open to receive the notification before the hearing date. Neither reason, in my view, could justify an application for costs in the circumstances where, generally, no award as to costs is contemplated.

The Magistrate's ruling on costs

12. The magistrate's ruling on the question of costs discusses, but makes no findings as to the respondent's attitude and approach when he made the application in November 2004. This is despite the argument that was forcefully put on the part of the respondent that the appellant's motives in making the application were to thwart and frustrate the power of the Family Court. Nor was any finding made as to the argument put on behalf of the appellant that there was no other available recourse open to him but to seek orders from the ACT Magistrates Court. As I have said, the issue of the appellant's motives was an issue in contest when the special magistrate extended the order. No real justification was given as to why the issue should be re-litigated. In any event, the fact is that the magistrate did not conclude adversely to the appellant in relation to that issue and, accordingly, the issue gave no cause for an award of costs against the appellant. The magistrate's ruling then concluded:

Any order for costs is subject to section 89 of the Protection Orders [Regulation] and the Magistrates (Civil Jurisdiction) Act and the general order is usually under section 89 and each party bear its own costs. But the Magistrates Court may order a determination of costs and fix the exact amount. In normal events, and I cannot see why this would not apply, the costs should follow the event and I propose to make an order that the applicant pay the respondent's costs. I have listened to counsel's arguments on this matter and it seems to me the appropriate order would be for an order of costs to be paid by the applicant in the sum of $1300.

... I should say in making that conclusion, I've had regard to the submissions made by [the respondent's solicitor] that his costs on 25 November were $850 and on 10 January this year an amount $1850 when he travelled from Wollongong and with his client from Sydney on this day and in the exercise of my discretion I've tried to reach an equitable figure. ...

13. The magistrate's reasoning is fundamentally flawed. If the general order is that each party bear the party's own costs (as s 89 of the Regulations provides), costs do not follow the event. The fact that the Magistrates Court has the power to order a determination of costs does not effect this premise. Further, the costs sought were awarded to the respondent partly in respect of a matter in which the respondent could not be described as having been successful. The application was to be revoked. There was no dismissal on the merits or declaration that the proceedings were a nullity as the magistrate had earlier declared. The award of costs against a party who had successfully applied to have revoked the order that the party had obtained would not be an award of costs that follow the event. The magistrate's reduction of the costs claimed by approximately one half does not effect that fact.

Conclusion

14. This case provided no occasion for the magistrate to order the payment of costs and the order should not have been made.

The competency of the appeal

15. The respondent took the point that the appeal to this court from an order for costs was not competent. Section 79 of the Protection Orders Act provides for an appeal to the Supreme Court against an "appealable decision" by a person a party to the proceeding in which the decision was made. Section 78 of the Act sets out what are appealable decisions:

The following decisions under this Act are appealable:

(a) the making, amending or revoking of a protection order, other than an interim order or emergency order, by the Magistrates Court;

(b) the refusal of the court to make, amend or revoke a protection order, other than an interim order or an emergency order;

(c) ...

16. As I have earlier pointed out, the Protection Orders Act makes no provision for costs. The provision for them is made by the Regulations. I do not consider that the making of an order for costs can be said to be integral to an order revoking the protection order so as to be an appealable decision for the strict application of the definition under the Act if the definition were to be strictly applied.

17. However, in my view, the situation in this case is indistinguishable from that before the Full Court of the Federal Court in Kelly v Apps (2000) 98 FCR 101. That case concerned an order for costs in proceedings before a magistrate exercising jurisdiction under the Magistrates Court Act 1930 (ACT) where this court had jurisdiction to entertain an appeal against the substantive determination but not necessarily a costs application associated with that determination.

18. In that case, Wilcox J referred to s 20 of the Supreme Court Act 1933 (ACT). Section 20 provides:

(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 if it has concurrent jurisdiction with another court or tribunal.

19. After citing the section, Wilcox J said:

The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory. It cannot, I think, be disputed that the making of a costs order that ought not to have been made, or the failure to make a costs order that ought to have been made, is a wrong in the administration of justice in the Territory and that it is, therefore, appropriately the subject of the jurisdiction of the Supreme Court under s 20(1)(a).

That is, of course, the situation here.

20. The decision in Kelly v Apps has been the subject of considerable judicial comment in this jurisdiction. It has been considered as enabling an expansive view to be taken of this court's jurisdiction, for example, N R Pty Ltd v Kearney [2000] ACTSC 92 (24 October 2000), Miles CJ; B & H (2001) 118 A Crim R 120, Miles CJ; Vann v Palmer [2001] ACTSC 12 (22 February 2001), Crispin J; CD v Chief Executive Department of Education & Community Services (2000) 27 Fam LR 19, Crispin J and possibly Rose v Snape [2000] ACTSC 115 (7 December 2000) Higgins J.

21. Reservations as to the extent to which s 20(1)(a) of the Supreme Court Act 1933 (ACT) might apply to the Court's jurisdiction, particularly where statutory considerations may have the effect of limiting that jurisdiction, have also been expressed: FAI Properties Pty Ltd v Nationwide Travel Canberra Pty Ltd [2000] ACTSC 82 (6 October 2000), Crispin J; FAI Properties Pty Ltd v Apostolopoulos (2002) 169 FLR 232; Harrison v Commissioner for Housing [2003] ACTSC 22 (11 April 2003) Connolly J; and Jones v Commissioner for Housing for the Australian Capital Territory [2003] ACTSC 52 (30 June 2003) Connolly J.

22. Both Higgins J in Director of Public Prosecutions (ACT) v McDowall (2002) 168 FLR 474 and Crispin J in Commissioner for Housing v Ganas (2003) 175 FLR 337 have had occasion to consider Kelly v Apps and the further effect of s 48A of the Australian Capital Territory (Self Government) Act 1988 (Cth) might have on this court's jurisdiction. In Evans v Shiels (2004) 185 FLR 1, Connolly J gave his reasons for not following Kelly v Apps in the case before him so as to require him to hold that a grant of general jurisdiction did not itself create appeal rights from inferior courts.

23. In the case before me, I can see considerable difficulty in distinguishing the application of the decision in Kelly v Apps. Factually, the decision under challenge, in both that case and this, relates to a cost order made by a magistrate in circumstances where the appellate jurisdiction of this court is limited by the statute under which the magistrate is exercising jurisdiction. As was concluded in Kelly v Apps, and as I have concluded in this case, the magistrate's decision is clearly wrong and I also take the view that it should not, in justice, be allowed to stand.

24. At the risk of adding yet another layer of judicial comment to a topic that continues to invite judicial exposition, I comment that the only point that might justify any distinction that this case might have from Kelly v Apps is the fact that there is no counterpart to a provision like s 207(2) of the Magistrates Court Act 1930 (ACT) which provides:

Nothing in this Part [dealing with appeals] limits the operation of any other Act that makes provisions with respect to the appellate jurisdiction of the Supreme Court.

25. That possible point of distinction would need to be considered in light of the general expressions in Kelly v Apps and the further consideration that s 20 of the Supreme Court Act would appear to encompass whatever may be the content of a Supreme Court's inherent supervisory jurisdiction over inferior courts and tribunals. As to that jurisdiction, see the reference to it in John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363 and the discussion and cases referred to by the NSW Court of Criminal Appeal in R v Grassby (1989) 15 NSWLR 109 at 116 et seq.

26. During the hearing, I had already expressed the tentative view that I would be bound to follow the Full Court of the Federal Court in such a case with such a similar factual circumstance unless I could be persuaded to the contrary. This matter was canvassed generally with counsel appearing for the parties. Particularly having regard to the amount involved and the tentative conclusions that I had expressed to them, the parties asked that I not make any order other than that of upholding the appeal and that I publish my reasons. I now do so.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 5 August 2005

Counsel for the appellant: Ms L Crebbin

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr W Sharwood

Solicitor for the respondent: Autore & Associates

Date of hearing: 9 May 2005

Date of judgment: 5 August 2005