Palmer v Haddad

Supreme Court of NSW|1999-12-08|Before: Simpson J, Act J

Background 2 In July 1998 Ms Palmer filed an application in the Local Court seeking an order under the De Facto Relationships Act 1984 for an adjustment of interests in property. On 21 July 1999 Ms E Wynhausen LCM, made an order in her favour in the amount of $25,000. Subsequently Ms Palmer applied for an order for costs but on 22 September Ms Wynhausen declined to make such an order. It is the refusal to make the order for costs which is the subject of the present proceedings. 3 The jurisdictional question raised by the respondent requires examination of the various statutory provisions governing proceedings of the kind instituted by Ms Palmer, the jurisdiction of the Local Court, and appeals therefrom to this Court.

The Legislative Framework 4 The provisions of three different statutes are relevant to the jurisdictional question, and it is convenient to refer to them at the outset.

Sub s (2) provides that a court may, in relation to an application under Pt 2 of the Act (the relevant part for present purposes): (a) make any order or grant any remedy or relief which it is empowered to make or grant under this or any other Act or any other law, and (b) make any order or grant any remedy or relief under this Part in addition to or in conjunction with making any other order or granting any other remedy or relief which it is empowered to make or grant under this Act or any other Act or any other law."

Absent from the Act is any express provision relating to rights of appeal from Local Courts exercising jurisdiction under the Act.

(ii) The Local Courts (Civil Claims) Act 1970 (" the Civil Claims Act ") 6 Part 4 of the Civil Claims Act is concerned with procedure in the commencement and conduct of actions or proceedings in Local Courts. Division 5 of Pt 4 deals with costs. S 34 confers a broad general discretion to a Local Court: "to determine by whom, to whom and to what extent costs are to be paid in or in relation to an action." 7 S 69 provides for appeals from the Local Court to this Court. Of specific relevance is sub s (2) which provides as follows: "A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom."

(iii) The Justices Act 1902 8 The Justices Act is also concerned with procedures in Local Courts. It is predominantly, although not exclusively, directed to criminal proceedings. The Act has been in force since 1902, and has been extensively amended on numerous occasions since that date. There are to be found in the Act many instances of provisions which show the signs of unparallel and uneven amendment, and its provisions do not always sit easily with one another or with the contemporary language of litigation. Much of the Act is still couched in the language of the early years of the century and has not much more than historical applicability. In particular, a number of the provisions of the Act are not easily read as relating to civil proceedings. It is therefore necessary to take a broad approach to construction of the Act. 9 Part 5 of the Act deals with appeals to this Court. S 104 is the particular provision that is presently relevant. In sub s (1) provision is made for appeals by defendants. In sub s (2) provision is made for appeals by "informants". Although the word "informant" is most commonly associated with criminal proceedings, it was accepted, in the present case, that, having regard to the definition of "informant" in s 101, and the provisions of s 53, Ms Palmer may, for the purposes of s 104(2), be seen as an informant. S 104(2), permits an appeal by an informant to this Court, on a ground that involves a question of law alone, but only in four categories of case. The four categories involve appeals against:

(a) orders made by magistrates that stay summary proceedings for the prosecution of offences;

(b) orders made by magistrates in summary proceedings dismissing informations or complaints;

(d) sentences imposed by magistrates in summary proceedings. 10 The respondent's argument on the jurisdictional question may be stated as follows:

Ms Palmer's appeal is not an appeal within s69(2) of the Civil Claims Act. This is because appeals permitted under that section are confined to parties to proceedings under that Act, and proceedings under the DFR Act are not proceedings under the Civil Claims Act. The authority for that proposition is Grubnic v Healy (1994) 18 Fam LR 617, a decision of Bryson J. His Honour held that a court hearing and determining an application under the DFR Act is exercising jurisdiction conferred directly by the DFR Act , and is not exercising jurisdiction conferred by the Civil Claims Act. Accordingly, parties to proceedings under the DFR Act are not parties to proceedings under the Civil Claims Act , which is an essential pre-requisite to the right of appeal conferred by s 69(2).

Although Ms Palmer may properly be seen as an "informant" for the purposes of s 104(2) of the Justices Act and therefore a person entitled to the benefit of the appeal rights so provided, she cannot bring herself within any of the four categories of appeals authorised by that sub section. Only sub paragraph (c) could be seen as remotely applicable, and the language used - "an order for costs" - could not reasonably be stretched to accommodate a refusal to make a costs order. 11 I am not persuaded that sub paragraph (c) should not be interpreted to encompass "an order in relation to costs", including an order refusing an application for costs, an interpretation which would be wide enough to accommodate Ms Palmer's appeal. Although I am conscious that such a construction may be seen to put some strain on the language used by the legislature, there are good reasons why it nevertheless should be adopted. Firstly, as I have pointed out above, the Justices Act is primarily focussed upon criminal proceedings, and amendments over the years have not really accommodated the expanding civil jurisdiction of the Local Court. Notwithstanding that, civil proceedings do come within its ambit, and the language used has to be given a sensible and practical construction appropriate to those proceedings. More fundamentally, to interpret the paragraph as narrowly as the respondent contends would have the result of attributing to the legislature an intention to create unbalanced rights for no apparent principled reason. An informant against whom an order for costs is made would have a right of appeal, but an informant who unsuccessfully sought a costs order would not. Such a capricious intention should not be attributed to the legislature unless the clear words of the legislation so demand. In my view they do not. 12 No reason in principle why such a distinction should be drawn has been proposed. The true explanation for the apparent anomaly, in my view, is that Pt 5 is, as I have already observed, primarily directed to criminal and not civil proceedings. 13 Counsel for the respondent relied upon the decision of the Court of Appeal in Director of Public Prosecutions v Youbert Yalda, unreported, 6 October 1998, to support the contention that "an order for costs" does not include a refusal to make an order for costs. I cannot accept that Yalda is authority for the proposition. In Yalda, which was an application for prerogative relief in the Court of Appeal following an appeal from a magistrate to a District Court judge, it was contended that a refusal, in criminal proceedings, to make an order for costs in favour of a successful defendant amounted to the defendant being "otherwise punished" within the meaning of s 122 of the Justices Act as that section then stood. That proposition was rejected. That case does not stand as authority for the proposition that the phrase "an order for costs" in s 104(2) cannot be construed so as to encompass an order refusing an application for costs. 14 I have also considered whether the application for costs should be treated as separate and distinct from the application under DFR Act. As I have noted above, the DFR Act contains no provisions expressly related to costs, but the provisions which I have extracted (s 38(1)(k) and s 38(2)) are capable of being employed for the purpose of authorising an order for costs. On the other hand, the Civil Claims Act does contain such express provisions. However, even if it could be said that the magistrate's uncontested power to award costs derived not from the DFR Act, but from the Civil Claims Act, that would not make Ms Palmer a party to proceedings under the Civil Claims Act. The proceedings to which she was a party were the proceedings brought under the DFR Act. A costs application is not a separate proceeding. Accordingly, unless s 104(2)(c) is construed as I have concluded it should be construed, there is no avenue by which Ms Palmer could appeal to this Court. For the reasons I have already given, that is, the assumption that the legislature did not intend to act unjustly or capriciously, and the need to interpret the Justices Act in a way that is relevant and applicable to civil proceedings as well as criminal, I am satisfied that the sub paragraph confers a right of appeal in the present circumstances. 15 I therefore conclude that this Court is possessed of jurisdiction to determine Ms Palmer's appeal. It is quite clear that the appeal is limited to a ground that involves a question of law alone. The jurisdiction exercised by the magistrate in relation to costs was entirely discretionary. The principles relating to appeals concerning the exercise of discretion are well known and need no further elaboration: see House v R (1936) 55 CLR 499. In order to demonstrate error of law Ms Palmer relied principally upon the convention, sometimes incorporated into legislation, that, in the ordinary case "costs follow the event" and that a successful litigant is ordinarily entitled to expect that costs will be awarded in his, her or its favour. That convention may be, and I accept that it is, generally accepted, but it does not amount to a rule of law or anything approaching a rule of law. Departure from a convention so well established and widely accepted would ordinarily be accompanied by an explanation for the departure, and the absence of such an explanation might more readily be seen as a circumstance warranting a conclusion that the exercise of the discretion miscarried, although such a conclusion would not necessarily follow. But the magistrate did provide an explanation. She observed that the discretion was very wide and then said: "Certainly there is, one would assume, and continues to be a discrepancy between the financial positions of the parties, and that was certainly a matter that was taken into consideration with respect to the Court reaching the decision that it did, in awarding that amount to the applicant. In all the circumstances the Court does not consider that it is necessary to make an order with respect to costs in order to do justice in the matter, and the court declines to make an order as to costs." 16 The first part of this passage is a little ambiguous but it may be that the magistrate intended to convey that she had in mind the costs incurred by Ms Palmer in the application when she assessed the amount by which she adjusted the parties' property interests. Such an interpretation of her reasons being available, I do not think Ms Palmer has succeeded in establishing error of law. 17 The appeal is dismissed with costs.

Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Palmer v Haddad [2000] NSWSC 545 revised - 7/09/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12552/99 HEARING DATE(S) : 8 December 1999 JUDGMENT DATE : 19 June 2000

(1994) 18 Fam LR 617

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