Anthony, Ivan v Maxam Australia Pty Ltd

Court:Full Supreme Court
Docket Number:631/2012
Judge:Evans J, Tennent J, Porter J
Judgment Date:20 Nov 2012
Jurisdiction:Tasmania

[2012] TASFC 5

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Tennent and Porter JJ

631/2012

Anthony, Ivan
and
Maxam Australia Pty Ltd

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 ; Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558, applied.

Rodger v De Gelder [2011] NSWCA 97 , distinguished.

Aust Dig Procedure [426]

Magistrates Court (Civil Division) Act 1992 (Tas), s33.

Magistrates Court (Civil Division) Rules 1998 (Tas), rr32, 138, 139.

Aust Dig Procedure [548]

Procedure — Costs — Jurisdiction — General — Power to make an order on the rate or scale of costs payable following a notice of discontinuance.

Procedure — Inferior courts — Tasmania — Local courts — Orders in nature of certiorari — Exercise of discretion where clear that the impugned order was beyond power but other remedies not exhausted.

REASONS FOR JUDGMENT
FULL COURT
Evans J Tennent J Porter J
20 November 2012
1

The issue raised by ground (a) of the amended grounds of appeal was whether, following the filing and service of a written notice to discontinue an action pursuant to theMagistrates Court (Civil Division) Rules 1998, r32, the Magistrates Court (‘the Court’) had jurisdiction to make an order as to the basis or scale on which the costs payable by the party who filed the notice were to be assessed.

2

Rule 3provides:

‘32 Discontinuance of action

(1) A party may discontinue an action commenced by that party at any stage of the proceedings by notice in writing filed and served on any other party.

(2) Unless the parties agree otherwise, costs of the action are to be paid by the party discontinuing the action.’

3

InAnthony v Maxam Australia Pty Ltd and R v Registrar of the Magistrates Court of Tasmania at Burnie [2012] TASSC 42, Wood J found that following the filing of a notice of discontinuance the Court had jurisdiction to make an order that the costs payable in consequence of the discontinuance were to be paid on a solicitor and client basis. The appellant by his amended grounds of appeal challenged that finding.

4

In the proceedings that are the subject of this appeal, the parties did not ‘agree otherwise’ for the purposes of r32(2). Accordingly, upon the discontinuance of the action, the ‘costs of the action’ were payable by the discontinuing party.

5

In essence the appellant's challenge to her Honour's finding involved contentions that:

  1. • the filing of a notice of discontinuance ended a proceeding;

  2. • as to a proceeding that has ended the Court has no jurisdiction to make an order as to the basis or scale on which costs are to be assessed; and

  3. • the ‘costs of the action’ that are payable pursuant to r32(2) can be determined without a Court order specifying how they are to be assessed.

6

There are numerous authorities to the effect that the filing of a notice of discontinuance brings a proceeding to an end. The authorities include:Conybeare v Lewis 1880) 13 Ch D 469 (1879 – 1880) 13 Ch D 469; The Salybia [1910] P 25 at 26; ROFA Sport Management AG v DHL International (UK) Ltd [1989] 2 All ER 743 at 749; Fowler v Renmark and Paringa District Hospital Inc (1988) 51 SASR 50 at 507; Gupta v ACT [2011] ACTSC 154 at [4] – [5]; Re Criminal Property Confiscation Act 2000; Ex parte DPP (WA) (2002) 130 A Crim R 581 at [24] and Logan and Anor v Camm & Whitson [2008] QSC 255 at [27]. However, recognition that a notice of discontinuance brings a proceeding to an end does not mean that a court is thereby deprived of its jurisdiction as to costs. The effect of a notice of discontinuance on a court's power with regard to costs will depend upon the terms of the applicable statutory provisions.

7

The Magistrates Court is a court of record throughout the State, theMagistrates Court Act 1987, s3A(2). The court for the purposes of the Magistrates Court (Civil Division) Act 1992 is the Magistrates Court exercising its civil jurisdiction in the civil division, that Act, s3. It being an inferior court of record created by statute, it can have no powers, jurisdictions or authorities other than those authorised by statute, KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 par[22].

8

As observed by Professor G E Dal Pont,Law of Costs, 2nd ed, LexisNexis Butterworths, Australia, 2009, par6.4, the historical legacy with regard to the jurisdiction of a court to award costs dictates a starting point that, statute apart, a court lacks power to order costs, so that authority to do so must always be traced to a statutory provision. In this case, the Court's jurisdiction with regard to costs is to be found in the Magistrates Court (Civil Division) Act, s33(1), which provides:

‘(1) The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.’

9

As can be seen, s33(1) places no temporal limit on the Court's jurisdiction with regard to costs in relation to a proceeding. It is notorious that the most common situation in which a costs order is made is after the outcome of a proceeding when it is possible to determine the extent to which the parties have succeeded or failed. Accordingly, in the absence of some clear basis for concluding otherwise, there is no justification for implying into s33(1) a limitation to the effect that an order for costs cannot be made after a proceeding has come to an end, whether by reason of an adjudication or a discontinuance.

10

More significantly, it is simply not possible to construe r32 as providing that the effect of a notice of discontinuance is to deprive the court of its jurisdiction to make an order as to the scale or basis upon which costs are to be assessed. In fact, the contrary is the case. That this is so becomes apparent when rr138 and 139, together with Sch1 are read in conjunction with the phrase ‘costs of the action’ used in r32. Rules 138 and 139 are as follows:

‘138 Entitlement to costs

(1) Unless the Court orders otherwise, a successful party in an action is entitled on judgment to costs against an unsuccessful party in accordance with this rule and rule 139.

(2) If judgment is in respect of an action for a sum of money -

(a) a successful claimant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum actually recovered; and

(b) a successful defendant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum claimed.

(3) If judgment is in respect of an action other than for a sum of money, a successful party is entitled to costs on the applicable scale in Schedule 1 as determined by the Court.

(4) Each item in Schedule 1 is inclusive of costs for all incidental and necessary activity and advice.

(5) Costs are not allowed for any item not listed in Schedule 1.

(6) An assessment officer may determine that a lesser amount than that specified for any item listed in Parts 1 and 2 of Schedule 1 is allowed.

(7) If a scale of costs in respect of a particular action is not specified in Schedule 1, the Court, on the application of a successful party or at the request of a registrar, may fix an appropriate scale of costs.

(8) If the Court considers proper cause exists, the Court may order that a successful party is entitled to costs on a solicitor and client basis.

139 Complex action

(1) The Court, on the application of a party, may order that an action is a complex action.

(2) If the Court makes an order under subrule (1), a successful party is entitled to costs on the scale specified in Part 2 of Schedule 1.’

11

We will not set out Sch1 — Costs and Expenses —in its entirety. Suffice it to say that Sch1 Pt1 relates to ‘routine actions’ and details items of work for which costs are recoverable at a rate which depends upon whether the amount involved did not exceed $10,000, exceeded $10,000 but did not exceed $20,000, or exceeded $20,000. Part 2 relates to ‘complex actions’ and is similar to Pt 1 save that the rate recoverable for some items of work is higher.

12

As is made plain by r138(1), the rules do not purport to circumscribe the Court's power with regard to costs. That power includes the power to fix or control the quantum of an order for costs. Nonetheless, insofar as rr138 and 139 envisage the following range of potential orders for costs, they are informative.

13

A successful claimant's costs of an action for a sum of money may be:

  1. • in a routine action, costs on the relevant scale specified in Sch1, Pt1, applicable to the amount actually recovered; r138(2)(a); or

  2. • in a complex action, costs on the relevant scale specified in Sch1, Pt2, applicable to the amount actually recovered, r138(2)(a), and r139; or

  3. • costs on a solicitor and client basis, r138(8).

14

A successful defendant's costs of an action for a sum of money may be:

  1. • in a routine action, costs on the relevant scale specified in Sch1, Pt1, applicable to the sum claimed in the action, r138(2)(b); or

  2. • in a complex action, costs on the relevant scale specified in Sch1, Pt2, applicable to the sum claimed in the action, r138(2)(b), and r139, or

  3. • costs on a solicitor and client basis, r138(8).

15

On an action other than for a sum of money, the successful party may be entitled to costs on the applicable scale in Sch1 as determined by the Court, r138(3). On an action in respect of which no scale of costs is specified in Sch1, on the application of a successful party or at the request of a registrar the Court may fix an appropriate scale of costs, r138(7). Consistent with these provisions and r138(8) a wide range of orders could be made on an action of the nature referred to.

16

The above shows that following the filing of a notice of discontinuance, in many instances, before the costs can be assessed it will be necessary for the Court to make an order specifying the basis for their assessment. This will be so in relation to...

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