Musashi Pty Ltd v Foody [1999] VSC 82

5. I note from the transcript of the proceeding on that occasion that I referred to a previous decision of my own, without recalling its detail or its name, in respect of an application pursuant to Order 56 reviewing a decision of a Tribunal and as to whether or not an Order 56 application of that kind was within the definition of "Appeal" in s.2 of the Act. In s.2, "Appeal" is defined as follows:

"'Appeal' includes an appeal on a question of law an order to review, a case stated for the opinion or determination of a superior court on a question of law and a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial and any other proceeding in the nature of an appeal."

9. The only basis upon which this proceeding could be regarded as an appeal within that definition would be if it is "any other proceeding in the nature of an appeal".

12. In Aboriginal Hostels Ltd. v. Kirkland Fisher and The Residential Tenancies Tribunal (unreported, 14 October 1997) I considered the issue now before me in the context of an Order 56 application to quash a decision of the Residential Tenancies Tribunal on the basis of its wrongful assumption of jurisdiction to hear the dispute arising under the Rooming Housing Act 1990. I concluded in that case that an Order 56 proceeding directed to the setting aside of a determination by that Tribunal was a proceeding in the nature of an appeal for the purposes of s.2 of the Act, thereby leading me to granting an indemnity certificate pursuant to s.13(1) of the Appeals Costs Act 1964 in respect of the costs ordered to be paid by the unsuccessful respondent to the plaintiff in the Order 56 proceeding. In that case there was a question whether the Tribunal was a court for the purposes of s.2, an issue which does not here arise. The second issue was whether or not the appeal, assuming it to be an appeal, succeeded on a question of law. There was no doubt in that case that there was a question of law and in my judgment there is no doubt in this case that the issue was a question of law (although of necessity there were ample issues of fact as well) as there was involved the question of the applicability and construction of s.110 of the Magistrates' Court Act. I do not propose in dealing with the matter before me this day to repeat the detail of what I said in my previous decision but I naturally both rely on and reiterate my reasons and conclusions in connexion with the present matter. I note that I stated as follows, in respect of the definition of "Appeal" contained in the Act,

"Clearly, this definition is considerably wider than the notion of an appeal stricto sensu, a matter which occasions no surprise in view of the legislative intention to protect against the hardship of bearing costs individuals who become exposed to such costs where an inferior court or tribunal is found to have erred in law (Blackall v. Trotter (No. 2) [1969] VicRp 115; [1969] V.R. 946, 947)."

16. In De Costa v. Cockburn Selbridge & Training Co. Pty. Ltd. (1971) 24 C.L.R. 192, an appeal was described as: "The formal proceeding by which an unsuccessful party seeks to have the formal of a court set aside or varied in his favour by an appellate court." (201-202) I noted further in my reasons -

"The Order 56 procedure selected by the plaintiff is a procedure customarily adopted in respect of the review of decisions of tribunals of this kind from which there is no direct appeal to the court, so long as the process attracts relief lying within Order 56."

As I have already indicated, there was no direct appeal to this Court because the decision was not a final decision. Although the matter was put to me on the basis of quashing the order of the Court on the basis of an error of law on the face of the record, the matter was also argued on the basis of jurisdictional error on the basis that there no power to order the re-hearing by the Court of a matter in which the order made by the Court was by consent.

21. As in Fisher's Case, the respondent Foody had nothing to do with the selection by the plaintiff of proceedings of this kind by way of judicial review. I do not take the view the plaintiff had any other procedure by which the review of the magistrate's decision might have been pursued as none of the other procedures lying with the definition of "appeal" within the Act seemed to be applicable.

24. The Appeals Costs Act has been repealed by Act No. 87 of 1998 but the effective sections of the new Act are not in force until 1st April 1999. Thus this proceeding is not a "new" proceeding under the transitional provisions. The indemnity certificate aspect is therefore governed by s.13 of the 1964 Act.

27. Section 13(1) of the Act confers upon the Supreme Court a discretion to grant to a respondent to an appeal an indemnity certificate in respect of the appeal. Although Mr. Foody was unrepresented, he in effect made application to me to be relieved from the costs of this proceeding and the costs of the Magistrates' Court hearing if they were to be ordered, which I treat as being an application by him within s.13(1). I propose to exercise my discretion in the respondent's favour. Whilst I am not prepared to deny the plaintiff's its costs, I propose to treat Mr Foody's application as one for an indemnity certificate under s.13 and I propose to grant such a certificate.

30. The complex history of the proceedings is set out in short form in my reasons, including the view I have formed that the respondent is something of a "victim" for reasons to which I adverted and because the consent given to the order made by the Magistrates' Court in 1992, whilst real and effective, and a major legal stumbling block to his success, was given because, according to him, he was misled by the lawyers then acting for him with respect to his right to have any order made by consent set aside. There are, as my reasons show, also other questions of law of some importance. These matters were raised both in the Magistrates' Court and before me. In my view, all the conditions necessary for the grant of a certificate have been established and accordingly I propose to grant the respondent a certificate within s.13(1) of the Act with respect to the plaintiff's costs of this proceeding. I also order that that certificate entitle the respondent to be paid a sum equal to the respondent's costs of this proceeding, although, since he was unrepresented, it would seem that those costs may be confined to such costs as were incurred in relation to affidavits, exhibits and the cost of time lost in attending the proceedings. I note that s.14 of the Act in respect of sub-s.(1) paragraphs (a) and (b) entitles the respondent by virtue of a certificate to be paid an amount equal to the plaintiff-appellant's costs ordered to be paid and actually paid by or on behalf of the respondent. Thus, unless the respondent Foody actually pays the plaintiff's costs of this proceeding, he will not be able to recover those costs by way of an indemnity certificate unless the Board makes a direction in accordance with paragraph 14(2). The plaintiff is entitled to seek payment of the plaintiff's costs allowed by the Appeals Costs Board to the respondent under the certificate direct to the plaintiff. It will be in the respondent's interests to have some contact with the Appeal Costs Board concerning these matters, if he continues to be unrepresented. Accordingly, I make the following orders in this proceeding:

1. That the decision of the Magistrates' Court of Victoria of 19th November 1998 setting aside the order of the Magistrates' Court of 1st September 1992 and ordering a re-hearing be quashed and set aside, and the order of the Magistrates' Court of 1st September 1992 (No. D01348770) be restored.

2. That the respondent pay the plaintiff's costs of this proceeding and the plaintiff's costs of the Magistrates' Court proceedings determined on 19th November 1998.

3. I grant the respondent an indemnity certificate under s.13(1) of the Appeals Costs Act 1964 in respect of the plaintiff's costs of this proceeding and the respondent's costs of this proceeding. I grant to the respondent a stay of 60 days in respect of the payment of the plaintiff's costs referred to but order that the certificate under s.13(1) be issued forthwith dated this day.