Appellant v Respondent

1 These reasons concern an appeal under s 109 of the Magistrates' Court Act 1989 ('the Act') against final orders made by his Honour Mr B Braun, Magistrate, at Melbourne on 23 September 2014.

2 At the same time as the Notice of Appeal was filed, the appellant filed a summons for directions in accordance with r 58.10(1) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). Accompanying the Notice of Appeal and the summons was a short and somewhat deficient affidavit of Michael King, solicitor, in support of the appeal.

3 On the first return of the summons, the directions were adjourned (from 26 November 2014 to 28 January 2015). On 27 January 2015, the directions hearing set down for 28 January was adjourned to 27 February 2015. On 25 February 2015, the respondent filed submissions and a supporting affidavit of Jonathan Lyndon Risby, solicitor, of the St Kilda Legal Service Co-op Ltd. In that submission the respondent gave notice that, at the directions hearing on 27 February 2015, she would seek that the appeal be dismissed under r 58.10(8) of the Rules.

4 On 27 February 2015, the appellant was granted an adjournment for the purpose of considering the transcript of the proceedings which had just been obtained and exhibited to the affidavit of Kevin Dorey sworn 26 February 2015. The appellant had previously informed the respondent's solicitors that they had encountered delays in obtaining the transcript and wished their counsel to consider it before proceeding with the appeal. In those circumstances, it was appropriate to give the appellant the opportunity to obtain advice as it seemed to the Court that the Notice of Appeal as formulated did not raise questions of law thrown up by the proceeding in the Magistrates' Court. An order was made requiring the appellant to file and serve any proposed amended Notice of Appeal by 9 March 2015.

5 No such notice was filed by that date. On 11 March 2015, the appellant filed a proposed amended Notice of Appeal that completely replaced the question of law previously advanced with two new questions of law. It also replaced all the grounds of appeal with five completely new grounds of appeal.

6 For the reasons that follow, I have concluded that the appeal should be dismissed pursuant to r 58.10 of the Rules. I am satisfied that:

(a) the Notice of Appeal does not identify sufficiently, or at all, a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal; and

(c) to refuse leave would impose no substantial injustice.

7 The Notice of Appeal as filed put the question of law as:

Does a person who takes a transfer of a motor vehicle whether or not for consideration receive a possessory right over the motor vehicle which would entitle that person to bring an action in detinue or conversion in regards to that vehicle?

8 The grounds of appeal were three-fold. It was said that the learned Magistrate erred:

(a) in finding on the evidence before him that the transfer of the motor vehicle had not been for consideration;

(b) in holding that there was insufficient evidence to support the plaintiff's contention that the transfer of the motor vehicle had been for consideration;

(c) in holding that the plaintiff did not hold a possessory right over the motor vehicle that would entitle her to bring an action for detinue or conversion with regard to the motor vehicle.

9 The revised proposed Notice of Appeal now puts the questions of law as:

(a) Did the Learned Magistrate err in his construction of the agreement between the appellant and the respondent [this involved a typographical error and should have referred to Mr Steven Romas, the appellant's son]?

(b) Did the Learned Magistrate err in his conclusion as to what was required to support a possessory interest?

(a) the learned Magistrate erred in his interpretation of the contract and in concluding that the appellant did not have a possessory interest in the motor vehicle;

(b) the learned Magistrate erred in that he failed to take into account evidence that supported a possessory interest being held by the appellant;

(c) the learned Magistrate erred in finding [at transcript 14.1] that no evidence was given by which his Honour could find that a possessory interest was held by the appellant;

(d) the learned Magistrate erred in concluding [at transcript 14.7] that the appellant had to have previously taken possession of the motor vehicle before any possessory interest could be found to arise; and

(e) in circumstances where the learned Magistrate recognised the language difficulties that the appellant experienced in giving her evidence and the evidence nonetheless supported a finding that the appellant had a possessory interest in the motor vehicle, his Honour erred in that he placed undue weight on the pleading [at transcript 11.23] as opposed to the evidence that had been adduced in order to find that there was no possessory interest.

11 The affidavit of Mr King in support of the appeal (sworn on 23 October 2014) is required by r 58.09(1) to state the acts, facts, matters and circumstances relating to:

(b) the grounds set out in the Notice of Appeal; and

(c) if leave to appeal is needed, why leave to appeal should be given.

12 Rule 58.09(2) requires that there shall be included as exhibits to the affidavit a copy of the order under appeal and a copy of any reasons given for the order, or the absence of exhibits shall be accounted for in the affidavit.

13 In fact, the affidavit of Mr King does not set out much of the acts, facts, matters or circumstances required to be set out by r 58.09(1). Moreover, it does not exhibit any reasons given for the order under appeal.

(a) the appellant's claim below was for wrongful detention or conversion of a motor vehicle, which the appellant alleged that she had provided to the respondent pursuant to a bailment, or wrongful detention of the proceeds of an insurance policy in respect of the vehicle;

(b) one of the respondent's defences to that claim was that the motor vehicle belonged to the appellant's son, who had transferred it to the appellant in order to defeat his creditors;

(c) at the conclusion of the trial before the Magistrate on 23 September 2014, his Honour ordered that the proceeding be dismissed and that the appellant pay the respondent's costs (with some exceptions);

(d) the judgment was given orally and there were no published reasons; and

(e) the appellant's solicitors had obtained an audio recording of the proceeding, and had 'ordered a transcription of the recording but it had not yet been received'.[1]

15 On 26 February 2015, Mr Kevin Dorey swore a short affidavit exhibiting a transcript of the Magistrates' reasons for decision.

16 The affidavit in support of the respondent's application to dismiss the appeal is sworn by Jonathan Lyndon Risby. The contents of this affidavit are detailed in the paragraphs below.

17 The St Kilda Legal Service was the solicitor for the respondent in the Magistrates' Court. Mr Risby was the solicitor with the care and conduct of the proceeding. Mr Risby summarised the claim made by the appellant and exhibited to the affidavit (exhibit JLR-1) the amended statement of claim.

18 In summary, the appellant claimed against the respondent that:

(a) she was the registered owner of the vehicle;

(b) she loaned the vehicle to the respondent on condition that the respondent pay for the registration and insurance of the vehicle;

(c) the respondent was involved in a motor vehicle accident while driving the vehicle, following which it was written off and the respondent claimed under the insurance policy and retained the proceeds; and

(d) the actions of the respondent constituted a wrongful detention or conversion of the vehicle or of the proceeds of the insurance, and the appellant was entitled to about $20,000 from the respondent - that is, the value of the vehicle, less insurance costs paid, plus legal costs.

(a) the vehicle was owned by the appellant's son (Steven Romas) with whom the respondent was in a romantic relationship at the time (but when the complaint was filed the relationship had ended);

(b) Steven Romas transferred the registration into the appellant's name in order to defeat his creditors - in particular, at some time in late-2011 or early-2012, Steven Romas placed his assets into the names of others in order to avoid paying child support to his former partner, Prue Hill;

(c) at no time did the appellant entrust the respondent with possession of the vehicle as bailee - in fact, 'any driving of the motor vehicle by her was pursuant to a licence granted to her by Steven Romas'. It was said that in about October 2011, Steven Romas told her to drive the vehicle instead of purchasing a vehicle for herself because he was unable to drive it because he had lost his driver's licence for refusing to undergo a blood test;

(d) there had been no demand by the appellant, as pleaded, for the respondent to turn the motor vehicle over to her;

(e) she obtained an insurance policy to cover the motor vehicle and the vehicle was damaged as a result of a deliberate violent attack on 1 July 2012, as a result of which the vehicle was written off;

(f) she claimed under the insurance policy and received a payout of about $19,000; and

(g) she made payments to Steven Romas between July 2012 and February 2013 in sums exceeding that amount.

20 Mr Risby attended the entirety of the hearing before the Magistrate, instructing Mr Robert O'Neill of counsel. He deposes that, in giving judgment on 23 September 2014, his Honour set out a number of reasons in support of his decision, including:

(a) the appellant provided no evidence of any payments made to Steven Romas for the vehicle, despite it being within her power to have tendered copies of bank statements recording such payments;

(b) the appellant gave evidence in an evasive manner and was not a credible witness;

(c) his Honour was satisfied on the balance of probabilities that Steven Romas owned the vehicle at all material times and kept possession of it;

(d) his Honour was satisfied on the balance of probabilities that the transfer of the registration of the vehicle from Steven Romas to the appellant was a sham transaction intended to put the vehicle out of reach of the Child Support Agency;

(e) his Honour rejected the evidence of the appellant that she was entitled to the vehicle at all, and held that there was no evidence that she had a possessory right to the vehicle.

21 In his affidavit, Mr Risby also gives an account of the dealings between the parties' solicitors after the filing and service of the Notice of Appeal and the circumstances in which the first and second directions hearings were adjourned. In substance, the dealings between the solicitors reveal that the solicitor for the appellant was seeking both to have the audio recording of the Magistrate's reasons typed up and the advice of counsel regarding whether to amend the Notice of Appeal or to withdraw it. The solicitors for the respondent sent many communications to the solicitors for the appellant following up on progress of the transcription of the Magistrate's reasons for decision. It was not until after the delivery of Mr Risby's affidavit and the giving of notice to dismiss the appeal under r 58.10(8) that the appellant's solicitors, at the eleventh hour, filed the affidavit of Mr Dorey exhibiting a transcript of the reasons of the Magistrate.

22 There was considerably more detail provided by the respondent as to the delay on the part of the appellant in pursuing the appeal. In light of my decision to dismiss the appeal, I will not detail that delay, save in relation to the application of the respondent for indemnity costs.

23 Section 109 of the Act provides that a party to a civil proceeding in the Magistrates' Court may appeal to the Supreme Court on a question of law from a final order of the Court in that proceeding. The appeal must be instituted no later than 30 days after the day on which the order complained of was made, and there is no stay of any order unless the Supreme Court so orders. Any appeal must be brought in accordance with the Rules.

24 It is well established that an appeal under s 109 on a question of law must relate to a question that was involved in the making of the order.[2] The question of law must have been raised in the Court below, whether on the pleadings, by evidence or otherwise.[3]

25 The appeal under s 109 is an appeal strictly so called, and not in any sense a re-hearing.[4] As Kaye J noted in Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd: '[i]t is necessary for the appellant to be able to identify a relevant error of law made by the Magistrate before it is entitled to relief from this Court.'[5]

26 Thus, the Court is not entitled to interfere with the decision of a Magistrate unless it is satisfied that he acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues. There is a strong presumption in favour of the correctness of the decision appealed from, and the general rule is that the decision should be affirmed unless the Court is satisfied that the decision is clearly wrong.[6]

27 Rule 58.10 of the Rules prescribes the procedure for obtaining directions for the hearing of the appeal and, as well, includes the following sub-rule:

(8) The Associate Judge may dismiss the appeal if satisfied that -

(a) the Notice of Appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

28 A high degree of certainty must be present before an Associate Judge should act under r 58.10(8).[7] In Cohen v Accounts Control Management Services Pty Ltd, Vickery J accepted that, in applications under this rule, there are parallels with the operation of Order 23 of the Rules and the well-established observations of the High Court on the way in which summary dismissal applications ought to be approached.[8] Were an application made under Part 4.4 of the Civil Procedure Act 2010, the test would be whether the appeal had no real prospect of success. Be that as it may, nothing turns on the difference in this case because, for the reasons set out below, I am satisfied that the appeal is bound to fail.

29 The basis of the respondent's application for summary dismissal is that:

(a) the Notice of Appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal, or to refuse leave would impose no substantial injustice;

(c) the appeal is frivolous, vexatious or otherwise an abuse of process; and

(d) the materials relied upon by the appellant in support of the appeal are deficient.

30 Although the proposed Amended Notice of Appeal would remove the question of law in the original Notice, it is appropriate to deal with whether the question arises from, or was involved in, the Magistrate's decision so as to deal with all the possible questions, and because the question in the original Notice of Appeal bears on the questions in the proposed Amended Notice of Appeal. It is therefore desirable to deal with the grounds advanced in support of the question of law.

31 The respondent submitted that the question of law set out in the original Notice of Appeal did not arise in the case. The Magistrate found that no transfer of the ownership of the motor vehicle took place, and this was a question of fact based on the evidence before him. He found that the motor vehicle registration transfer from Steven Romas to the appellant was a sham transaction intended to put the vehicle out of the reach of the Child Support Agency. The Magistrate took into account that under s 9B of the Road Safety Act 1986, registration of a vehicle in the name of a particular person is not evidence of the title of the person. That section provides:

9B Register does not provide evidence of title

The register of vehicles maintained by the Corporation does not provide evidence of title to any motor vehicle or trailer.

32 The respondent also submitted that the Magistrate found that Steven Romas owned the motor vehicle at all relevant times and kept possession of it. Because of these findings, there can have been no transfer of ownership to the appellant so that the question of law simply cannot arise. That is to say, having regard to the statement of the law to which I have referred above, the so called question of law in the original Notice of Appeal was not involved in the making of the order by the Magistrate.

33 The respondent's submission is, in my view, correct. It is trite law that the registration of a vehicle is not evidence of ownership of the vehicle. The transfer of the registration from Steven Romas to the appellant, therefore, did not necessarily transfer the ownership. And the finding of the learned Magistrate that the transfer of the registration was a sham puts an end to any question of whether such a transfer would have given the appellant a possessory right over the motor vehicle.

34 A further submission put by the respondent was that the appellant does not have an arguable case, and to refuse leave would impose no substantial injustice. This also follows from the factual findings of the Magistrate as to the ownership of the motor vehicle by Steven Romas, that it was at all times material in the possession of Steven Romas, and that the transfer of the registration was a sham. I agree with this submission as well.

35 In relation to the original grounds of appeal, the respondent submitted as follows:

(a) Ground 1 is misconceived and does not arise. His Honour found that there had been no transfer of the vehicle from Steven Romas to the appellant and so it was unnecessary to make a finding about whether the transfer had been for consideration. In any event, this appears to be a ground based on an attack on his Honour's factual findings and does not give rise to a question of law;

(b) Ground 2 is a restatement of ground 1 and the same submissions apply;

(c) Ground 3 is a challenge to a finding of fact and does not disclose a question of law.

36 The respondent also relied upon the fact that the appellant provided insufficient material in support of the Notice of Appeal, and in this regard referred to the decision of Kaye J (Snr) in Ramsay v LM Ericsson Pty Ltd.[9] That was a case under the old rules, in which an order nisi to review the decision or an order of a Magistrate had been granted by the Master and, on the return of the order nisi, the respondent contended that the material in support of the order did not satisfy the requirements of the rules.

37 The current Rules (r 58.09) require (so far as presently relevant) that the affidavit in support of the Appeal shall state the acts, facts, matters and circumstances relating to the order under appeal and the grounds set out in the Notice of Appeal, and exhibit the order of the Magistrate and the reasons for the order. In this case, the evidence that is lacking consists of a more complete statement of the acts, facts, matters and circumstances relating to those matters mentioned above. These are certainly lacking and the appeal is susceptible to being dismissed on the ground that the material in support of the order did not satisfy the requirements of the Rules. The affidavit material of the respondent, however, exhibits the pleadings before the learned Magistrate and gives an account of the circumstances. Although this material is not filed in support of the appeal, but in opposition to it, nevertheless it enables the Court to assess the merit of the appeal so as to see whether it has any prospects of success or whether, as I have concluded, it is hopeless. Further, shortly before the penultimate hearing, the appellant filed an affidavit exhibiting a transcript of the Magistrate's reasons.

38 In relation to the revised questions of law, the respondent submitted as follows:

(a) The first question does not arise. The Magistrate did not find that there was any agreement between the appellant and the respondent. Thus, he did not purport to construe any such agreement. He found at transcript 11.23-30 that there had been no transaction between the appellant and respondent directly on the appellant's own evidence;

(b) The second question of law also does not arise. The Magistrate accepted the appellant's submission as to what amounted to a possessory interest. His finding as a matter of fact is that the appellant had no interest in the vehicle at all. He rejected the appellant's evidence and the evidence of her son in support of the proposition that she had such an interest. He made a positive finding that the registration of the vehicle in the name of the appellant was a sham. In those circumstances, it made no difference what he considered, as a matter of law, was necessary to give rise to a possessory interest. That is because the asserted factual basis for such an interest had been rejected as a matter of fact.

39 Having regard to the findings of fact made by the learned Magistrate relating to the transaction between the appellant and her son being a sham, his finding that the appellant's son owned the motor vehicle at all material times and, importantly, kept possession of it, and his finding that the appellant's evidence was evasive and she was not a credible witness, there is no arguable case on appeal and to refuse leave would impose no substantial injustice.

40 The respondent's submissions in relation to the new grounds of appeal (with some comments by me in parentheses), are as follows:

(a) Ground one: Contains two separate complaints: error in the construction of the alleged contract,[10] and an error in relation to the finding that the appellant did not have a possessory interest in the vehicle. In relation to the first aspect, the finding that there was no contract between the appellant and Steven Romas in relation to the vehicle is a complete answer to this ground. In relation to the second aspect, the complaint is a factual one in the circumstances and does not give rise to any question of law. It is a bare statement that does not set out what the error allegedly was. (In any event, there was no evidence accepted by the Magistrate that supported any interest, possessory or otherwise, in the vehicle. In saying this, I proceed on the basis that the registration of the vehicle in the name of the appellant does not provide evidence of title to the vehicle. The Magistrate clearly proceeded on the same basis);

(b) Ground two: This ground is improper without setting out what the evidence was that the Magistrate failed to take into account. In any event, there is no foundation for it. The Magistrate rejected the evidence of the appellant and her son, and made positive findings explaining why he gave no weight to the fact that the vehicle was registered in the name of the appellant. There was no other evidence to support the proposition advanced;

(c) Ground three: There are two possible interpretations of the Magistrate's statement that there was no evidence on the basis of which he could find a possessory interest. The first is that, given his other factual findings, in particular on credit, his Honour was saying that there was no other evidence sufficient to support a possessory interest. If so, he was plainly correct. The second is that, hypothetically, even if he accepted all the evidence of the appellant and her son, he still would not have been able to find a possessory interest. If that is the correct interpretation of the reasons, it is irrelevant to the appeal whether it was correct or not. The Magistrate did not make those findings of fact and so whether or not he would have come to a different conclusion of law on the basis of different factual findings cannot arise;

(d) Ground four: This ground is based on a wrong understanding of the reasons for judgment. The Magistrate made no such finding. At the point in the transcript identified, he was simply listing and dealing with factors that might have supported such a possessory interest. Whether or not the appellant had ever had physical custody of the vehicle or the keys was one such factor, and the Magistrate was correct to have regard to it;

(e) Ground five: This ground is difficult to understand. If it is based on the proposition that the evidence supported the finding that the appellant had a possessory interest in the motor vehicle, it is unsustainable in light of the findings referred to above. The remainder of the ground is an attack on the Magistrate's fact finding, and does not relate to a question of law. In any event, the Magistrate's factual conclusion in relation to the appellant's credit depended on several factors and is unimpeachable.

41 The submissions of the appellant in support of the new questions of law and grounds of appeal, and in answer to the respondent's submissions, were difficult to follow. Doing the best I can, they were to the following effect (with my comments in parenthesis):

(a) The Magistrate did not take into account the evidence of the appellant [at T 6.23-29] that she was the owner of the car. (This seemed to be in support of ground 2. The statement referred to is conclusory as it is, and was a statement that even her counsel had difficulty extracting from her. It does not provide any substantive evidence of title to the vehicle in the face of the findings of the Magistrate to which I have already referred - rejecting her evidence [Transcript 11.9-11] and concluding the transfer of the registration was a sham [Transcript 13.4-14]);

(b) The Magistrate had erred in concluding that, for the appellant to have possessory rights over the vehicle, she needed to previously have taken possession of it (ground 4) [Transcript 14.7]. (In fact, what the learned Magistrate said demonstrates that ground 4 is without merit. His Honour said:

...There was a good deal of discussion about possessory interests and I should simply and quickly say that no evidence was given to me by which I can find even a possessory interest in favour of Ms Romas. There were no words used to give rise to such an interest in any discussions she claims to have had with her son, and the facts indicate she never took possession of this vehicle, albeit that one piece of evidence - a very, very small piece of evidence - given by Mr Romas suggests he gave her the keys, which entirely conflicts with both the evidence of Mr and Ms Romas, which is that he was, at all times, to have possession of this vehicle, she saying for his use in the business, to help him save it, although he had a business vehicle, a utility, and therefore in circumstances which lead me to reject his evidence about giving her the key.

In addition, the appellant contended in argument that this passage reveals that the learned Magistrate failed to take into account the evidence given by the appellant that she owned the vehicle in determining whether she had a possessory interest. As I said, this does not provide any substantive evidence sufficient to give rise to any interest in the vehicle.);

(c) The learned Magistrate had placed undue weight on the pleadings [Transcript 11.23] as opposed to the evidence that had been adduced in order to find there was no possessory interest (ground 5). (On closer examination, this ground lacked any merit at all. At the passage in question in the transcript, the Magistrate had commented:

There is absolutely no satisfactory explanation for the way this case was pleaded, which asserts at all times that there was some sort of transaction between Ms Romas directly with Ms Green. That was not her evidence. In fact, she was desperately trying to make out her rights and title as a bailor on a very different arrangement and with a different person, namely her son.

This shows quite clearly that there was no basis for the ground advanced as ground 5. The language difficulties experienced by the appellant were clearly taken into account by the Magistrate and due allowance was made by him for those difficulties.[11] It emerged that, despite these difficulties, there was a real problem with the appellant's evidence in a number of respects, including that she was non-responsive to questions put to her).[12]

42 In my view, the submissions of the respondent are correct in every respect. The Questions of law do not arise from the decision or are not questions of law at all that were involved in the decision. The grounds of appeal are misconceived, for the reasons given by the respondent and for the further reasons referred to by me in my comments.

43 The respondent applies for indemnity costs and relies on two letters that followed the delivery of each Notice of Appeal, as well as the submissions made as to the hopelessness of the appeal.

44 By letter dated 5 November 2014, the respondent acknowledged the receipt of the original Notice of Appeal and summons, and informed the appellant that the appeal was misconceived. It was asserted in the letter that the grounds of appeal were manifestly hopeless and did not arise out of the Magistrate's decision, or would not lead to any different result. The respondent offered to consent to the withdrawal of the appeal with no order as to costs. The offer was open for 14 days. The letter set out in some further detail the reasons why the grounds did not arise out of the decision. Those reasons were a shortened version of the submissions made by the respondent, as referred to above. The letter concluded that, should the offer not be accepted, the respondent would rely upon it in support of an application for indemnity costs.

45 By letter dated 11 March 2015, the respondent acknowledged receipt of the proposed amended Notice of Appeal served that day. Again, the respondent set out its view that the appeal was misconceived, and that the grounds and questions of law were either manifestly hopeless, did not arise out of the Magistrate's decision, or would not lead to any different result. The appellant was informed that the respondent intended to request that the appeal be dismissed pursuant to r 58.10(8) of the Rules. The letter went to some length to set out the critical findings made by the Magistrate and gave reasons why the questions of law and the grounds were misconceived, hopeless and/or did not arise out of the decision. As with the previous letter, the respondent reserved its rights to seek indemnity costs in the event that the appeal was dismissed.

46 The applicable principles are not in doubt. The Court has a wide discretion in relation to the costs of the proceeding. I need not refer to all the authorities that bear upon that proposition. It is necessary only to refer to a few cases concerning the circumstances in which indemnity costs may be ordered by the Court. First, there is the classic statement of Sir Edward Woodward in Fountain Selected Meats (Sales) Pty Ltd v Int Produce Merchants Pty Ltd,[13] which is worth setting out as follows:

I believe that it is appropriate to consider awarding 'solicitor and client' or 'indemnity' costs, whenever it appears that an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.

47 The proposition advanced by Woodward J has been referred to in countless cases, and expanded upon according to the circumstances of the particular matter. Amongst the many cases dealing with this subject is the decision of Harper J in Ugly Tribe Co Pty Ltd v Sikola.[14] One of the factors that was set out by Harper J in that judgment that may weigh in favour of an order for indemnity costs was that the proceeding had been commenced or continued in wilful disregard of known facts or clearly established law.

48 In Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3),[15] Croft J made an order for indemnity costs where the plaintiff failed on all critical issues to such an extent that the proceeding was hopeless and bound to fail, and there was an element of collateral purpose in the bringing of the proceedings.

49 In this case, although there were allegations of the existence of a collateral purpose, those allegations were not substantiated. However, the presence of the letters of offer that followed each of the Notices of Appeal, setting out the reasons why the appeal must fail, provides a rational and persuasive reason for concluding that the appellant should have been, if properly advised, aware at all material times of the hopelessness of the appeal. It is similar to the circumstance facing a party to whom a Calderbank letter has been sent. In this case, the first letter that followed the delivery of the original Notice of Appeal made it clear that the respondent was willing to agree to a withdrawal of the appeal with no order as to costs if that was done before, in effect, any further expenses was incurred. So, from the time of receipt of the first of the letters (5 November 2014), the appellant was on notice and could have withdrawn the appeal without any further expense being incurred. That is, in effect, from the time of the commencement of the appeal.

50 It follows, in my view, that the two elements that exist in this case warrant an order for indemnity costs against the appellant from the commencement of the appeal. Those two elements are:

(a) The appeal was commenced or continued in circumstances where the appellant, properly advised, should have known that she had no chance of success. There is thus a presumption that it was commenced or continued for an ulterior motive or because of some wilful disregard of the known facts or the clearly established law;

(b) The sending of the letters of offer, particularly the letter of 5 November 2014, which stands in much the same position as a Calderbank letter.

51 In addition to these matters, the respondent submitted that an examination of the circumstances in which a number of adjournments of the appeal had taken place showed (by reference to a chronology and the affidavit of Mr Risby) that the appellant had delayed in obtaining a transcript of the learned Magistrate's reasons. These delays were occasioned in part by the inadvertence of the appellant's solicitors to obtain a transcription of the audio recording of the Magistrate's reasons, which had not been requested until about 22 January 2015,[16] despite the affidavit of Mr King asserting at a much earlier point that it had been requested. There was no other explanation for the delays and, in any event, they cannot be laid at the feet of the respondent. They are entirely due to action or inaction on the part of the appellant or her solicitors, it is unclear which.

52 For these reasons, I have concluded that it is appropriate to order the appellant to pay the respondent's costs of the appeal, including the reserve costs, on an indemnity basis.

53 Counsel for the appellant submitted that I should fix the costs incurred by the respondent. The respondent's solicitors are the St Kilda Legal Service Coop Ltd and claim no legal costs on her behalf. The only costs claimed are those incurred by counsel briefed to appear. Mr O'Neill submitted a table of his actual costs, which, after adjusting for the order previously made in favour of the appellant on 27 February 2015 (that the appellant pay the respondent's costs of the adjournment fixed at $3,850), amount to $14,200. I have reviewed the costs and consider them to be reasonable and within the scale of costs set out in the Rules. Accordingly, I will fix the costs payable by the appellant at the figure of $14,200. This does not affect the previous order made in favour of the respondent.

(a) the Notice of Appeal does not identify sufficiently, or at all, a question of law on which the appeal may be brought; and

(b) the appellant does not have an arguable case on appeal, or to refuse leave would impose no substantial injustice.

55 Accordingly, the appeal is dismissed with costs.

[1] In fact the transcription had not been ordered, see below at paragraph 51.

[2] Wong v Carter [2000] VSCA 53 (19 April 2000), Barton v Estate Agents Licensing Authority [1998] 1 VR 164, 170-1 (Brooking JA).

[3] Emer v Queen Victoria Women's Centre Trust [1999] VSC 115 (23 April 1999).

[4] Carter v Reid [1992] VicRp 22; [1992] 1 VR 351, 363 (Hedigan J).

[5] [2011] VSC 661 (16 December 2011) [43].

[6] Urban No. 1 Co-op Society Ltd v Kilavus [1993] VicRp 69; [1993] 2 VR 201.

[7] Cohen v Accounts Control Management Services Pty Ltd [2009] VSC 618 (4 December 2009) [4].

[8] See, eg, General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ).

[9] [1989] VicRp 35; [1989] VR 383.

[10] The solicitor for the appellant explained in making submissions that there is a typographical error in this ground. It should refer to a contract between the appellant and the appellant's son, Steven Romas.

[13] [1988] FCA 202; (1988) 81 ALR 397, 401.

[14] [2001] VSC 189 (14 June 2001) [7].

[15] [2012] VSC 399 (14 September 2012).