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[2014] NSWCA 89
Court of Appeal (NSW)
2014-03-26
Macfarlan JA, Ward JA, Leeming JA, Slattery J, MacFarlan JA
Original judgment source is linked above.
Slattery J File Number(s): 2011/384083
Judgment 1MACFARLAN JA: I agree with Leeming JA. 2WARD JA: I agree with Leeming JA. 3LEEMING JA: By notice of motion filed on 28 January 2014, the respondent (FDC) objected to the competency of the appeal which had been filed as of right by the appellant (Tinker). I would uphold that objection, for the reasons which follow. 4The underlying facts are contained in the reasons of the other members of this Court delivered today in refusing the application for leave to appeal filed by Tinker following the objection to the competency of its appeal. The essential point is that Tinker's claim in the Local Court was for $56,809.28, the appeal to a judge in a Division of this Court (Slattery J) included a challenge to the costs ordered in the Local Court after a four day trial, followed by a day arguing costs, and it is common ground that if those costs are taken into account, more than $100,000 turns on the outcome of the second appeal to which Tinker claims it is entitled. As Mr Pesman SC put it, echoing the language of a submission made in Pegela Pty Ltd v Oates [2010] NSWCA 186 at [60], success in the appeal would change the wealth of his client by more than $100,000. 5Mr Pesman said that because the appeal to Slattery J included a challenge to the costs ordered by the Local Court, the amount "at issue" for the purposes of s 101(2)(r)(i) exceeded $100,000. Tinker placed no reliance on the costs before Slattery J, and in that way sought to distinguish the line of decisions holding that costs are excluded where an appeal of right turns upon the matter at issue exceeding a monetary threshold. 6The right of appeal claimed by Tinker is a creature of statute: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [2]. Section 101(1) of the Supreme Court Act 1970 (NSW) which confers the right to appeal to the Court of Appeal from any judgment or order of the Court in a Division is subject to the precondition of obtaining leave if any of the circumstances in s 101(2) obtain. The only question is whether paragraph (r) applies: "(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from: ... (r) a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 7Subject to one matter, the structure of paragraph (r) and in particular the two limbs in subparagraphs (i) and (ii) is ancient. It reflects the wording of the Judiciary Act 1903 (Cth), s 35 as first enacted, which in turn derived from the Orders in Council regulating appeals to the Privy Council. I return to this below. 8The qualification is that although as originally enacted (in 1997; before then, an appeal lay as of right from any final judgment of the Court in a Division) the wording followed s 35, it is clear that one now looks at what is "involved" in the appeal, as opposed to the order or judgment from which the appeal is brought: see Jardin v Metcash Ltd [2011] NSWCA 409; 285 ALR 677 at [20] and the decisions there cited. 9While it is important to bear that changed language in mind, it does not follow that the decisions on the earlier formulations are to be disregarded. Indeed, the well-established proposition (which Tinker acknowledged and did not challenge) that the value of costs ordered in the court below did not contribute to the "matter at issue" has continued to apply, notwithstanding the change of focus from what was at issue in the court below to what is at issue in the appeal. Thus, in Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316, where leave was refused, Basten JA wrote at [14]-[15] that leave was required because the amount in issue was less than $40,000 and the amount of costs should be excluded. His Honour referred to Gurr v Robinson (Court of Appeal, unreported, 10 February 1986), a decision on s 130 of the District Court Act 1973 (NSW), and said that Kirby P there explained that "the reference to 'the matter' to which the value must be attached is to the substantive matter in issue and not a matter which includes the costs of proceedings". His Honour referred to two other decisions of this Court and said at [15]: "Those authorities conclusively establish that the amount of any costs awarded must be excluded from the calculation. It is for that reason that the appeal was incompetent..." 10Contrary to a suggestion made in argument, the synopsis given by Basten JA of Gurr accurately reflects the substance of Kirby P's reasons. Dealing with the simple case of a single appeal where the monetary threshold is said to have been attained by including costs, Kirby P had said: "However, the entitlement to costs is separate from and ancillary to the subject matter of the litigation. It is that subject matter to which the statute refers when it mentions the 'claim, demand or question' which is to be assessed." His Honour also referred to the fact that the costs payable were expressed separately, and typically were "in general and usually unspecified form", in contrast to a judgment "in a specified and readily ascertainable sum". 11Coshott was a relatively rare instance of a double appeal in this Court. The Local Court judgment was in an amount of some $32,000, to which the magistrate added costs of some $45,000 leading to a total judgment of just under $78,000. Accordingly, the argument now advanced by Tinker was not available, and although Basten JA's language is broad, Tinker correctly says that it should not be taken to be an authority on the precise proposition it propounds: do the costs at first instance contribute to the monetary threshold where there is a double appeal, at least in circumstances where the intermediate appeal challenges those costs? 12Tinker pointed to no authority on point. But once it is appreciated that s 101(2)(r) derives from the provisions governing leave to appeal to the High Court and the Privy Council, both of which courts often entertained double appeals, authority may readily be found.
Antecedents of s 101(2)(r) 13Section 35 of the Judiciary Act, as initially enacted, gave an appeal as of right from (relevantly) every judgment of the Supreme Court of a State which: "(1) is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £300; or (2) involves directly or indirectly any claim, demand or question, to or respecting any property or any civil right amounting to or of the value of £300; ..." 14Sir John Quick and Littleton Groom, in The Judicial Power of the Commonwealth (Charles F Maxwell, 1904) said at p 146 that "[t]he form of words used in sec. 35(a)(1) corresponds with the form of words to be found in the Orders in Council giving the right of appeal, in certain cases, to the Privy Council from the Supreme Courts of the Australian Colonies." Materially identical language may be seen in the Orders in Council made on 13 November 1850 and 30 June 1860 applicable to appeals to the Privy Council from the Supreme Court of New South Wales and from (what was then called) the Supreme Court of Moreton Bay: see F Safford and G Wheeler, The Practice of the Privy Council in Judicial Matters (Sweet and Maxwell, 1901), pp 566 and 585 and B McPherson, The Supreme Court of Queensland (Butterworths, 1989) pp 28-9. For example, the 1860 Orders referred to judgments or orders: "for or in respect of any sum or matter at issue above the amount or value of 500l sterling, or in case such judgment, decree, order, or sentence shall involve, directly or indirectly, any claim, demand, or question to or respecting property or any civil right amounting to or of the value of 500l sterling ..." 15Thus the language of "matter at issue", as well as the structure of the two limbs seen in 2014 in s 101(2)(r) appeared in the Orders in Council made in 1850 and 1860 and was copied by the federal statute in 1903.
Decisions relating to double appeals 16The point of turning to the law established by reference to those rules is that many appeals to the High Court of Australia and the Privy Council were double appeals. The starting point for evaluating Tinker's submission is whether it can be reconciled with existing authority on double appeals based on comparable legislation with materially identical language. 17The question in In re Marsland and Marsland [1903] St R Qd 56 was whether an appeal lay as of right from the Full Court of the Supreme Court of Queensland to the Privy Council. There had been a contested taxation before a taxing officer of the Court, and the costs of the taxation of £360 were payable. A bill had been rendered, and the taxing officer disallowed some £383 14s 4d while, on appeal, an amount of £254 11s 8d was disallowed. A further appeal to the Full Court was dismissed. An appeal lay as of right to the Privy Council pursuant to the 1860 Orders in Council if the matter at issue was £500. Griffith CJ, with whom Chubb and Real JJ agreed, said: "The appealable value from this Court is £500, and the amount in dispute in this case is only £254 11s 8d, which is under the appealable value. The costs of the taxation, if added to that sum, would make a total grater than £500, but I know of no principle by which the costs of the taxation of a bill of costs can be added for that purpose. It is true that the liability to pay these costs is imposed by statute, but that does not make any difference." It will be seen that an amount of costs incurred before an officer in the Court - and indeed an amount which had been quantified (cf what Kirby P had said in Gurr) - did not contribute to the monetary threshold. 18Under the Order in Council of 10 April 1838 permitting appeals to the Privy Council from certain Indian courts an appeal lay as of right if "the value of the matter in dispute in such appeal shall amount to the sum of 10,000 company's rupees at least": see The Practice of the Privy Council in Judicial Matters, p 492. In Doorga Doss Chowdry v Ramanauth Chowdry (1860) 8 Moo Ind App 262; 19 ER 530, the Zillah Court of Rajshahyl gave judgment at first instance in the amount of 9,274 rupees, plus costs. The Sudder Court at Calcutta allowed an appeal, also with costs. An appeal was filed under the belief that it lay as of right. After dealing with an argument involving interest, Lord Chelmsford said for the Privy Council (at 264, emphasis added): "...to arrive at the necessary amount, you must add, as you seek to do, the costs. Now, the costs of a suit are no part of the subject matter in dispute, and cannot be used for the purpose you seek; if they were allowed to be added to the principal sum claimed, it would be in the power of every litigant, by swelling the costs, to bring any suit up to the appealable value. Their Lordships are clearly of opinion that the sum in issue in this suit is not sufficient to bring the case within the Order in Council..." 19The decision was followed in another Indian double appeal, purportedly as of right, in Nilmadhub Doss v Bishumber Doss (1869) 13 Moo Ind App 85; 20 ER 484. In the High Court of Calcutta, it had been said that the appellant's costs in both courts were more than Rs 1,200. Seton-Karr J permitted an appeal as of right, on the basis that: "Seeing that the costs, when added, will raise the sum in dispute beyond the limit of Rs 10,000, this appeal is admitted. The amount of the actual decree is Rs 9,793": see at 92. 20The question whether leave was required was raised before the Judicial Committee, and it was made clear that Seton-Karr J had been wrong to take into consideration the costs of the suit (see at 103). 21Doorga Doss Chowdry was also cited with approval by Starke J in Glen v Union Trustee of Australia Ltd (1936) 54 CLR 463 at 467, applying it to the "matter in issue" in s 35 of the Judiciary Act.
Consideration 22I would readily acknowledge that the language of s 101(2)(r)(i), if it were considered in isolation, is capable of sustaining Tinker's submission. The appeal to this Court "involves" a determination whether appellable error is disclosed in the decision of Slattery J, and the correctness of the magistrate's costs order was squarely raised before his Honour. However, three things cause me to reject Tinker's submission, and to adopt a narrower construction of s 101(2)(r). 23First, it is not open to read s 101(2)(r)(i) afresh. Its precise words are laden with many decades of authority, including authority squarely inconsistent with Tinker's construction. Tinker needs to show a good reason why a different legal meaning should be given to the same words in essentially the same context. This it has failed to do. 24Secondly, the fact that costs, especially costs where relatively small sums are at stake, loom large in litigation involving multiple appeals is a phenomenon centuries old. There is no reason in 2014 for any more relaxed view to be taken of the legislative restrictions upon appeals as of right. The same concerns expressed in the Privy Council in 1860 about the risk that every litigant could, "by swelling the costs", enjoy an appeal as of right, ring true today. Indeed, Tinker's construction sits ill with the command in s 60 of the Civil Procedure Act 2005 (NSW) requiring the practice and procedure of courts to be implemented with the object of resolving the issues between the parties so that costs are proportionate to the importance and complexity of the subject-matter in dispute. 25Thirdly, Tinker's construction also sits ill with the purpose of s 101 when that section is read as a whole. Tinker says that it enjoys a second appeal as of right where what is at stake is a small claim coupled with costs. Section 101 expressly provides that small appeals require leave. Section 101 also expressly provides that appeals confined to costs require leave. This Court is instructed by s 33 of the Interpretation Act 1987 (NSW) to prefer a construction which promotes the self-evident legislative purposes of discouraging appeals in small matters, and discouraging appeals as to costs. Why ever should there be an appeal as of right where there is both a small claim and large costs? 26This Court has enjoyed the considerable advantage of two senior counsel arguing the point, concisely and effectively. But that fact also emphasises that this is a case where the costs already incurred must dwarf the relatively small amount at stake (the magistrate's judgments record that senior counsel appeared at the trial, and the argument as to costs, in the Local Court for FDC). 27Double appeals have long been perceived to be an evil. Lord Selborne (who, four years previously, as Roundell Palmer QC, had appeared for the appellant in Nilmadhub Doss) had tried to abolish the double appeal to the House of Lords in 1873, but that aspect of his Act was repealed and the double appeal restored by Disraeli in 1875 and 1876: see Steel, "The Judicial House of Lords: Abolition and Restoration 1873-1876" in L Blom-Cooper, B Dickson and G Drewry, The Judicial House of Lords (Oxford University Press, 2009), 13 at 15. 28There is no sound reason to adopt a construction which would favour a doubly disfavoured category of litigation: double appeals in proceedings where the costs are disproportionate to what was originally at stake. There is nothing in the Supreme Court Act to warrant departing from decisions dealing with double appeals referred to above, and Tinker's submission collides with the important legislative purpose that costs be proportionate to what is at stake. 29I propose that the notice of appeal be dismissed as incompetent, and that Tinker pay FDC's costs of its notice of motion.
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