Kalejs v Minister for Justice & Customs

a non-transmissible right 15 The common law distinguished between rights, or causes of action, that were transmissible from the deceased to his or her legal personal representative and rights that were not. Prior to the English Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act") and to its legislative counterparts in other common law jurisdictions, it was generally accepted that actions in contract sounding in pecuniary damage, or actions on proprietary rights and the like, were transmissible, although generally actions in tort were not. The latter actions were subject to the doctrine expressed in the maxim, actio personalis moritur cum persona (i.e., a personal action dies with the person). This meant that a right of action for tort was brought to an end by the death of either party: see, e.g., Ryan v Davies Brothers Ltd (1921) 29 CLR 527 ("Ryan") at 532; and Harris v Lewisham and Guy's Mental Health NHS Trust [2000] 3 All ER 769 ("Harris") at 774. In the United Kingdom, the 1934 Act replaced the common law. A counterpart provision in Victoria is s 29 of the Administration and Probate Act 1958 ("the Victorian Act"). 16 Section 29(1) of the Victorian Act is in the following terms: Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate: Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other. This provision corresponds with s 1 of the 1934 Act in England. Section 29 of the Victorian Act may be rendered applicable to the present proceedings by s 79 of the Judiciary Act: cf Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168. 17 Section 29 of the Victorian Act, like its counterparts elsewhere, was passed to abolish the common law rule that actions in tort did not survive for the benefit of, or against, the estate of the deceased. Some judges have expressed the view, however, that this legislation is irrelevant to a question of the kind that arises in this case, namely, whether rights under statute are transmissible or not. 18 This view is implicit in the reasoning of the Full Court of this Court in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290. The Full Court held in Stephenson that a complaint made to the Commission under the Sex Discrimination Act 1984 (Cth) did not abate on the complainant's death. It reached that conclusion upon a proper construction of the statute under which the relevant rights arose. Although Stephenson did not concern an application for the curial enforcement of a right, the observations of Wilcox J (with whom Jenkinson and Einfeld JJ agreed), as to how a matter of this kind should be approached, are apposite to this case. His Honour stated at 296-7: I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a 'cause of action', as lawyers use that term, or a statutory proceeding. If the common law rules are irrelevant, it follows that s 2(1) of the Law Reform (Miscellaneous Provisions) Act is also irrelevant. Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is the equivalent of s 29(1) of the Victorian Act. 19 The Court of Appeal of the Supreme Court of New South Wales pursued a similar analysis in Fines. The Court of Appeal held in that case that a statutory right of appeal, again to an administrative tribunal, in a disciplinary case, which was capable of affecting a deceased teacher's financial entitlement, was transmissible to his legal personal representative. The teacher had died before the determination of the appeal. Mahoney JA stated at 388-9: The question whether statutory rights of this kind are to survive death depends upon the intention of the legislature; there does not appear to be any general or presumptive rule: see Jones v Simes (1890) 43 Ch D 607; Dean v Wiesengrund [1955] 2 QB 120 and the cases there referred to; see the discussion of an analogous question in Mayne v Jaques (1960) 101 CLR 169. Although in terms the right granted to him by the Act may be merely a right of appeal, the grant of that right carried with it the substantive rights, to salary, wages or allowances and the like, referred to in the Act: see, eg, Mayne v Jaques (at 171-172) per Fullagar J. … I see nothing in the terms of the Act or its purposes which leads to the conclusion that the legislature intended that, by the (accidental) fact of death pending the appeal, the right of a member of the teaching service and his family to have such remuneration should be taken away. An appeal might be pending for a significant time. During that time he might not be able to derive income. If a legislative intention is to be inferred, it is I think that the right to claim the discretionary allowance of this should continue notwithstanding his death. There are a number of cases in England where the courts have pursued the same kind of analysis in connection with the curial enforcement of statutory rights: see Rickless v United Artists Corporation [1988] QB 40 at 56 and Barder v Caluori [1988] 1 AC 20 at 37. 20 An alternative approach to the question of the present kind is that adopted by the English Court of Appeal in Harris and, in Victoria, by Kaye J in Skene v Dale [1990] VR 605. In the former case, the English Court of Appeal held that a claim for pecuniary compensation for discrimination contrary to anti-discrimination legislation could survive the death of a complainant upon the basis that the claim was a "cause of action within the meaning of the 1934 Act": [2000] 3 All ER 769 at 774 per Stuart-Smith LJ and 776 per Mummery LJ (with Ward LJ agreeing with both). On this approach, the critical question would become whether any of the rights formerly vested in Mr Kalejs constituted a "cause of action" within the meaning of s 29 of the Victorian Act. This was also how Kaye J approached the matter in Skene v Dale at 612-614. 21 Ultimately, I do not think it matters which is the preferred approach. If, as a matter of statutory construction, the statutory right is not transmissible, then it is not a cause of action within the meaning of s 29(1) of the Victorian Act. 22 As a matter of statutory construction, it is, I think, patent that the rights invoked by the late Mr Kalejs were not of a transmissible kind. First, each of the decisions under review in the proceedings was a stage in the statutory process by which it was to be determined whether he would be extradited from Australia to Latvia: cf Cabal v United Mexican States (2001) 108 FCR 311 at 326-7 and 332. With his death, Latvia's request for extradition, which began the process, necessarily lapsed. When the request lapsed, then, for practical purposes at least, so did the administrative processes put in train under the Act in connection with it. Compare, in this regard, Healey v Williams (1985) 10 FCR 254 at 258 where Bowen CJ observed that an information would have lapsed on the death of a defendant had the magistrate made no decision on it prior to the defendant's death. With the death of Mr Kalejs, the decisions under review (whether pursuant to s 39B of the Judiciary Actor s 21(1)(a) of the Extradition Act) had no further purpose to serve and no future operation. The personal nature of the rights that the late Mr Kalejs invoked is manifest in the relief he sought. In the s 21(1)(a) proceeding, he sought orders that the Court quash the s 19 order and direct the magistrate to order him to be released: s 21(2) did not permit Mr Kalejs any other successful outcome. In the s 16 proceeding, he sought a declaration that the s 16(1) notice, which was given following Latvia's extradition request, was invalid and an injunction, or an order by way of mandamus, directing the Minister to exercise the power conferred by s 16(1) of the Extradition Act according to law. No-one now needs the relief sought in either proceeding. No-one is or will be any longer affected by the decisions under review. Apart from the question of costs, there is, therefore, no basis upon which it could be said that Mr Kalejs's estate and his legal personal representative has an interest in pursuing the proceedings. There is nothing that would support the view that, as a matter of construction, any right formerly enjoyed by the late Mr Kalejs is a transmissible one. Put another way, there is no "cause of action" that survives him within the meaning of s 29 of the Victorian Act. 23 Counsel for Ms Kalnins placed some emphasis on the fact that the late Mr Kalejs had died whilst the decisions in the two proceedings were reserved. In written submissions, reference was made to Hoskins v Thomson [1894] 10 WN(NSW) 121. In this case, two defendants were sued jointly on promissory notes. One defendant died before the hearing, but the hearing proceeded and judgment was delivered without the court being informed of the death. It was later held that the deceased's executors were entitled to receive the costs of the proceeding incurred in the deceased's lifetime, and that judgment for the deceased should be entered nunc pro tunc as at a date prior to his death. The report of argument referred to Turner v London and South-Western Railway Company (1874) LR 17 Eq 561, and the decision was, it seems, an application of that case. 24 Turner's case (and cases like Hoskins v Thomson and Ecroyd v Coulthard [1897] 2 Ch 554 that applied it) were decided before the 1934 Act in England replaced the common law. The decision in Turner was based on a statement in Chitty's Archbold's Practice, Queen's Bench, 10th Ed. 1858, p 1502; 12th Ed, p 1572 that: The Court will in general permit a judgment to be entered nunc pro tunc, where the signing of it has been delayed by the act of the Court. Therefore, if a party die after a special verdict, or after a special case has been stated for the opinion of the Court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for argument, or whilst the Court are considering their judgment, the Court will allow judgment to be entered up after the death nunc pro tunc in order that a party may not be prejudiced by a delay arising from the act of the Court. In Turner, the Vice-Chancellor, Sir Charles Hall, also relied on decisions in Collinson v Lister (1855) 20 Beav. 355, 52 ER 639 and Troup v Troup (1868) 16 WR 573. Both of these cases exemplified the proposition in Chitty. 25 The decisions in Turner and Ecroyd v Coulthard are of particular interest because in them the litigants died between the hearing and final judgment. At first blush, it might be supposed that they supported the proposition that where a party dies between the end of a hearing and before judgment, a decision can be given and judgment entered nunc pro tunc, i.e., as at the last day of the hearing when the deceased was alive. 26 An argument of this kind was considered and rejected by Connor J In the Marriage of Sims (1980) 50 FLR 286, following the reasoning in Foppoli v Public Trustee [1970] WAR 73, a decision of the Full Court of the Supreme Court of Western Australia. In Foppoli at 78-9, Burt J observed that: [T]he Tribunal was 'fortified' by Turner v London & South-Western Rail Co (1874), LR 17 Eq 561, and by Ecroyd v Coulthard, [1897] 2 Ch 554. In each of these cases a party, in one case the plaintiff and in the other the defendant, died after hearing and before judgment and in each case the judgment was dated as at the conclusion of the hearing in the sense understood by the Tribunal. These cases, however, were not dealing with causes of action which at common law did not survive and we have been referred to no case in which prior to the Law Reform (Miscellaneous Provisions) Actor its counterpart in other jurisdictions judgment in such a case has been antedated, so enabling it to be entered as at a date preceding the date of the death of the plaintiff and in this way outflanking the 'actio personalis' rule. Connor J made much the same point in Sims at 288-9 when he said: The real question in Foppoli's case was whether the cause of action survived for the benefit of the deceased's estate. If it did not then it would follow that judgment could not be entered nunc pro tunc. So far as this case is concerned the same question arises - namely whether the husband's cause of action survives for the benefit of his estate. This being the case I reject the submission that judgment can be given nunc pro tunc whether the cause of action survives or not. The approach adopted by the Western Australian courts accords with the reasoning adopted by the Full Court of this Court in Stephenson (and the other authorities mentioned in this connection). If, as I conclude, the right that the late Mr Kalejs sought to invoke in these two proceedings could not, as a matter of construction, survive for the benefit of his estate, then judgment should not be entered nunc pro tunc. There is no relevant prejudice suffered by anyone in this event because there is no-one who stands to gain by the proceedings. This latter consideration has proved important in Canada in relation to the rule in Turner: see, for example, Monahan v Nelson (2000) 186 DLR (4th) 193 and Hubert v DeCamillis (1963) 41 DLR (2d) 495.

no order as to costs 27 The object of the application, made on 5 December 2001 by Ms Kalnins, is, it was ultimately said, to secure the payment of an amount of costs from the Minister and Latvia. There is, as counsel for Ms Kalnins pointed out, authority for the proposition that a court may make an order as to the costs of a proceeding notwithstanding that it is brought to an end by settlement or some other extra-curial action, not by a judicial decision on the merits. See, for example, Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 per McHugh J; Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664 at 667-8; Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 286-7; Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641 at [11]-[15]; and South East Queensland Electricity Board v Australian Telecommunications Commission (G168 of 1987, unreported decision, Pincus J, 10 February 1989). Whether or not a court makes such a costs order depends on the particular circumstances. These authorities also establish that, if it appears that both parties have conducted the proceeding reasonably, a court, in the proper exercise of its discretion, will usually make no order as to the costs of the proceeding. Counsel for Ms Kalnins relied on these authorities and s 43 of the Federal Court of Australia Act 1976 to support his contention that the Court had power to award costs in connection with the proceedings in which the late Mr Kalejs was applicant, and that it should do so since the Minister and Latvia had not conducted them reasonably. 28 These authorities are, however, plainly distinguishable from the present case since they concern the parties' voluntary termination of litigation, and not the termination of litigation by reason of death. Notwithstanding this, I accept that there will be circumstances in which a court will have power to deal with issues of costs, notwithstanding the death of a party: cf Fines at 387 per Mahoney JA. The cases illustrate some of these situations, but none covers the present situation. 29 Although there have been some differences of judicial opinion, costs may, it seems, be recoverable, notwithstanding that a proceeding has been permanently abated by a party's death where an order for costs was obtained but not taxed before death: see Kelly v Kelly and Brown [1961] P 94; contrast Diamond v Diamond (1950) 51 SR(NSW) 84. Further, a legal personal representative may, it seems, continue an appeal against judgment and costs on a cause of action that would not have survived the death of the party against whom the costs order was made. The non-transmissible cause of action is taken to have merged in the judgment, giving rise to "a new, higher and different obligation … created by the judgment": see Ryan at 533. The High Court observed in Ryan at 534: The costs ordered to be paid by the plaintiff in the present case were not, of course, assets in his estate, but the order leads to the depletion of those assets in the hands of the executor. 30 A court may, depending on the relevant statute, have power to make a costs order in a case where a party dies after orders have been made regarding the substance of the matter but before an award of costs has been determined: cf Healey v Williams (1985) 10 FCR 254 where a costs order was made following the defendant's death after the defendant's discharge upon information. See also, in a different context, Rysak v Rysak and Bugajaski [1967] P 179 and Sugden v Sugden [1957] P 120. 31 In Henderson v O'Connell [1937] VLR 171, a case on which counsel for Ms Kalnins relied, the defendant, who was convicted and fined in a Court of Petty Sessions, obtained an order nisi requiring the informant to show cause why the conviction should not be set aside. The defendant died before the return of the order nisi. The informant consented to an order permitting the deceased's personal representative to continue the proceeding, although at the subsequent hearing he raised the question whether the proceeding had lapsed. Mann CJ observed, at 174, that: In my view the matter really comes down to this point, whether there is any succession to any right here at all to justify the appearance of the executor or administrator as a person aggrieved, and that ultimately depends upon whether the fine imposed in Petty Sessions is a Crown debt which it would be the duty of the personal representatives to pay from the estate of the deceased. That in turn depends upon whether the fine imposed by the justices is a matter of record - in other words, whether a Court of Petty Sessions is, or is not, a Court of record: whether the mere production of the record of the order is conclusive evidence that the deceased defendant is a debtor to the Crown. 32 The matter involving the deceased came before the Court with another order to review brought by a different defendant against the same informant and raising the same point for the Court's determination. Whilst his Honour subsequently made the orders absolute and set aside the convictions in both matters, he ordered that there be only one set of costs for the two cases. In this connection, his Honour said at 178: There will be only one set of costs and I propose to make them for the two cases. Substantially there is only one set of costs, and in so far as there may have been some inconsiderable costs incurred before the death of the first defendant I do not propose to make an order for those … . I have some doubt whether the representative who has appeared to argue the case for the deceased defendant is a person aggrieved by the conviction within the meaning of sec. 150 of the Justices Act 1928. 33 Henderson v O'Connell is plainly distinguishable from the present case since it turned in part on the existence of a fine upon conviction, and, even so, bearing in mind the passage at 178, it provides little support for the application for costs made by Ms Kalnins. 34 None of these authorities address the difficulty that arises in this case, where, prior to death, there is as yet no order on any substantive issue or as to the costs to be borne by one party or another. Where the subject of the proceeding is a non-transmissible right and a claimant dies before the court has made a decision on the merits, or before any award of costs in favour of one party or other has been made, then, so it seems to me, the court is not only precluded from delivering judgment on the merits but also from making an order as to costs. If there is no-one who can properly be substituted for the deceased claimant since the rights that he sought to pursue are non-transmissible, then, there is no-one who is capable of reviving the action in order that an application for costs might be made. Put another way, in this circumstance, a deceased's personal representative has no legal interest in the proceeding and, therefore, no right to apply for a costs order in his favour. Alternatively, it is sometimes said that the courts will not permit an action to be revived for the sole purpose of an application for costs. 35 This latter approach accords with that of Levine J in Stead v Foster (Supreme Court of New South Wales, 4 September 1998, Butterworths Unreported Judgments BC 9804491). After referring to a passage in Daniell's Chancery Practice, at pp 1409-10 to the effect that a court would not permit a suit to be revived for the purpose of deciding a question of costs only, his Honour observed, at [16]: It would appear from this that actions cannot be revived for the purposes of an application for costs alone. It appears to me a fortiori where the action, as a personal one, cannot be revived at all. As I noted above, there have been no orders for costs in the proceedings and certainly none has been taxed or assessed, so there can be no revival of the action on that footing. As appears from p 1427-p 1430 in Daniell's Chancery Practice, interesting questions may arise where injunctions, committal orders and orders appointing receivers have been made in proceedings which subsequently abate and cannot be revived. These would seem to be the sort of incidental matters to which Mahoney JA was alluding [in Fines at 387] and which the Court may be required to consider, even after the abatement of an action. After referring to various limited exceptions to the rule that a court will not make orders in an action that has abated, his Honour concluded, at [20]: I am satisfied upon the authorities above that in this case the action abated upon the death of the plaintiff. As a defamation action, it is incapable of being revived by the remaining parties or the executrix of the deceased plaintiff. The purported attempt by the plaintiff's solicitor to relist the matter with a view to discontinuance was nugatory given the abatement. In my judgment, the abatement of the proceedings in circumstances where they cannot be revived deprives the Court of jurisdiction to entertain an application for costs as made by the first defendant purportedly in the abated action or by freshly originated process. 36 The Court made orders reserving the costs during the course of these proceedings until the determination of the matter, but these orders did not confer any right on the late Mr Kalejs other than the right to ask the Court subsequently to give him these reserved costs. Whether he would have succeeded on this application would probably have depended upon his success on the merits. It is, however, unnecessary and unproductive to speculate on this matter further: cf Keena v Keena (1969) 13 FLR 444 at 448. 37 I reject the submission of counsel for Ms Kalnins that there is anything in the terms of s 43 of the Federal Court of Australia Act to warrant the conclusion that this Court has power to award costs in these proceedings. Whilst the discretion conferred by s 43 is a wide one (which must be exercised judicially) and extends to proceedings that are dismissed for want of jurisdiction, there is nothing within s 43 to warrant the view that the power conferred upon it extends to awarding costs in the circumstances already outlined. The power conferred by s 43 is to award costs in a proceeding that is relevantly on foot (even if the court lacks jurisdiction to determine it) to a person who has a right in law to claim them from another, in the matter before the court. There is nothing to support the proposition that a person may recover costs under s 43 in order to augment the funds in a deceased's estate which may have been greater than they are had the deceased not incurred expenses in litigation in his lifetime, in circumstances where no right formerly enjoyed by the deceased has survived his death. It follows from this that I would dismiss the application made by counsel for Ms Kalnins. 38 For the reasons given, it is strictly unnecessary to deal with the further submission made by counsel for Ms Kalnins that the Minister and Latvia should be ordered to pay the costs of the proceedings of the late Mr Kalejs upon the basis that "the conduct of the Minister and of Latvia in continuing the proceedings was not reasonable". There was an affidavit sworn on 4 December 2001 by Daniel Donato Caporale, a solicitor employed by the Office of the Commonwealth Director of Public Prosecutions, which was acting for Latvia in the proceedings, that sought to deal with some of the matters raised in this regard. I note that some of the issues raised by the two proceedings were far from straightforward. I also note that the Extradition Act sets out the process that governs extradition from this country to another, including the decisions that must lawfully be made before a person can be surrendered in response to an extradition request. The Minister was obliged to comply with this regime in so far as it applies to the Minister. Considerations of the kind mentioned by counsel for Ms Kalnins (such as age and infirmity) fell to be considered in accordance with that process. During the course of the process (which had not concluded when Mr Kalejs died) his legal representatives drew the relevant decision-maker's attention to these considerations. For example, Mr Kalejs made more than one application to the Minister to exercise the power conferred by s 17(1) of the Extradition Act in his favour, by directing the magistrate to order the discharge of the recognizances on which bail was granted. The Minister declined to do so, and Mr Kalejs did not challenge these decisions on any application for review. When application for bail was made to me on 29 May 2001, I granted bail because of the late Mr Kalejs's advanced age and the evidence concerning his medical condition, and because there seemed to me little risk that he would abscond if he were granted bail. This course was not opposed by Latvia, which appeared upon that date. Bearing in mind all the circumstances of the case, not all of which I have specifically mentioned, I doubt that any party to these proceedings could be said to have acted so unreasonably as to justify an order for costs of the kind sought by Ms Kalnins (assuming that the Court had power to award costs which it does not).

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