Monday 1 March 2004
BRERETON v HIGGINS
Judgment
1 GILES JA: We have come to the conclusion that leave to appeal should be refused. Normally on leave applications the reasons given when an application is refused are quite brief. In the circumstances of this case my own reasons, which I will now give, are perhaps longer than normal. It is I think appropriate in the rather unusual circumstances of this case.
2 The opponent was the plaintiff/cross-defendant and the claimant was the defendant/cross-claimant in proceedings in the District Court. On 6 May 2003 Gibson DCJ gave leave to discontinue the claim and the cross-claim and ordered that the parties each pay his or her own costs. This is an application for leave to appeal so far as her Honour declined to order that the opponent pay the claimant's costs of the claim. It has been heard as an appeal so that, if leave to appeal be granted, a further hearing will not be necessary.
3 The background can be briefly stated.
4 The opponent and the claimant lived in a de facto relationship from mid-1996 to mid 1999. Their parting was not amicable, and there was hostility which was manifested amongst other ways in litigation.
5 On 8 May 2001 the opponent brought proceedings against the claimant for an adjustment of property in his favour under the Property (Relationships) Act 1984 and for the return of some tools and equipment. In the amended statement of claim filed on 23 August 2001 the claim to return of the tools and equipment was deleted. The adjustment sought payment of $250,000, which may have been the jurisdictional limit or may have represented someone's genuine assessment. The opponent relied principally upon his contribution to the development, manufacture and marketing of an agricultural implement called the Echidna, as to which the claimant was said to have the intellectual property, but he also relied on financial contributions to the benefit of the claimant and his performance of maintenance and improvement activities on the claimant's properties.
6 On 21 September 2001 the claimant filed a cross-claim for an adjustment of property in her favour by payment of $50,000, relying on financial contributions to the benefit of the opponent and her performance of homemaker duties.
7 Both parties were legally represented in this litigation. They filed extensive affidavit evidence, and the judge described the litigation as combative.
8 On 30 October 2002 the opponent filed a notice of motion seeking leave to discontinue his claim on the basis that each party pay his or her own costs. The basis of his application was, put loosely, that the Echidna was not worth fighting over because it had been ascertained that the claimant did not have any intellectual property rights to it, and that the opponent had regained possession of his tools and equipment. The application was heard by O'Connor DCJ on 4 November 2002. It was dismissed, and directions were given for the filing of further evidence by both parties.
9 Gibson DCJ said in her reasons that she was not provided with a copy of O'Connor DCJ's judgment, and did not know what was put to his Honour and what his Honour considered to be relevant or irrelevant in making the order. It was common ground, however, that O'Connor DCJ had not been prepared to give leave to discontinue otherwise than on the basis that the opponent pay the claimant's costs of his claim. This apparently was not acceptable to the opponent, hence the proceedings continued.
10 The proceedings were set down for hearing before Gibson DCJ for three days commencing on 6 May 2003. By this time the opponent was unrepresented. The judge said that she had read the file. She was plainly, and rightly, concerned that the parties could be litigating disproportionately to what was at stake, particularly given the opponent's earlier application for leave to discontinue. Her inquiries of the parties and considerable debate brought the position that the opponent again applied for leave to discontinue on the basis that each party pay his or her own costs, and the claimant applied for leave to discontinue the cross-claim (whether or not on the basis that the opponent pay her costs of the cross-claim being something to which I will return).
11 It then became apparent that each party was prepared to discontinue in any event, with costs to be as determined by the judge. The essential question for the judge was costs. The judge referred to evidence that the claimant's costs to that time, apparently her solicitor/client costs, were approximately $90,000. The judge gave lengthy reasons, at the conclusion of which she made the order that each party pay his or her own costs.
12 It was accepted that the claimant had to show error of principle of the kind spoken of in House v The King (1936) 55 CLR 499 at 504-5. It is not easy to distil from the judge's reasons the grounds on which she made the order. In the concluding paragraph of her reasons she said that she did so "having regard to smallness of the claim, the history of the litigation and indeed all of the factors I have referred to". It is best, I think, to concentrate on the four respects in which the claimant submitted there was error of principle.
13 The claimant first submitted that the judge erred in exercising her discretion in a manner different from the exercise of discretion by O'Connor DCJ. She submitted that there had not been a material change in circumstances from the time of the application dismissed by O'Connor DCJ, and that the only exercise of discretion open to her Honour was to require that the opponent pay the claimant's costs.
14 In her reasons the judge noted that O'Connor DCJ's order was interlocutory, and described it as capable of variation. She said -
"It is often said that when an application is brought afresh there should be significant additional material before the Court. This is sometimes referred to as the principle in Brimand v Honeysett [ Brimaud v Honeysett Instant Print Pty Ltd , McLelland J, 19 September 1988, unreported] an unreported decision of McClelland J which can be found at the back of the Supreme Court Practice. Clearly that is the case here, in the matter was listed before me for hearing and additional material, including the status of the cross-claim, which was not an order that was sought by the plaintiff, and which was not the subject of any formal notice of motion by the defendant, is also before me.
In any event, the proceedings were vacated by agreement and stood over for hearing in this sittings, and I note that it was set down indeed for three days. By this stage the plaintiff was representing himself."
15 The claimant held back from submitting that the judge should have held that it was an abuse of process for the opponent to renew his application to discontinue on the basis that each party pay his or her own costs. The submissions were essentially directed to the absence of any change in circumstances of the kind described by her Honour. In the view that I take, it is not necessary to go into those submissions.
16 In the debate to which I have referred the judge put to counsel for the claimant that she "would have additional information that his Honour wouldn't have", and that she might not share the view taken by O'Connor DCJ and could vary his Honour's order. The response was, "Your Honour is certainly open to do that". Much later in the debate her Honour asked counsel for the claimant whether he submitted that she was bound by O'Connor DCJ's decision and could not look behind it, and the response was that "great credence has to be given to the views of his Honour Judge O'Connor".
17 There was an immediate difficulty in that counsel was unable to provide her Honour with a copy of the judgment of O'Connor DCJ, which made it difficult to give credence to his views or to identify the material circumstances which lead his Honour to the order he made and thus any change in circumstances. The point is, however, that from these exchanges in the course of submissions it was acknowledged that her Honour was not obliged to follow the view taken by O'Connor DCJ. Indeed, it seems to me that it was acknowledged that there had been at least sufficient change in circumstances that the principles found in cases such as Nominal Defendant v Manning (2000) 15 NSWLR 139 and National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 did not require more than the giving of credence to the views of O'Connor DCJ, those views not being fleshed out by availability of his Honour's reasons.
18 In those circumstances it seems to me that as a matter of discretion it would not be appropriate to grant leave to appeal from the judge's costs decision so far as complaint is sought to be made that her Honour departed from the earlier exercise of discretion.
19 The claimant secondly submitted that the judge took into account an irrelevant consideration in the reliance she placed on Pt 39A r 12 of the District Court Rules as a matter relevant to the exercise of her discretion.
20 The judge came to Pt 39A r 12 as one of what she called "three areas of the law that are relevant". Under rule 12 as it then stood a plaintiff in an action which could have been brought in the Local Court, but was brought in the District Court, who recovered less than $10,000 was not entitled to costs unless the Court certified that there was a sufficient reason for bringing the action in the District Court.