Madden v Wells
[2001] QDC 118
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- Unreported Judgment
- Madden v Wells[2001] QDC 118
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Madden v Wells[2001] QDC 118
Madden v Wells[2001] QDC 118
DISTRICT COURT | No 1 of 2001 |
APPELLATE JURISDICTION | |
JUDGE BOULTON | |
JAMES XAVIER MADDEN | Appellant |
and | |
CINDY FAYE WELLS | First Respondent |
and | |
GREGORY GORDON KIDD | Second Respondent |
and | |
IAN ROSE | Third Respondent |
TOOWOOMBA | |
DATE 20/06/2001 |
JUDGMENT
HIS HONOUR: This is an appeal against a decision of a Stipendiary Magistrate made 15 December 2000 whereby the appellant was ordered to pay certain costs in the form of witness expenses when there was no appearance by or on behalf of the defendant on that day. The present appellant had been the defendant's solicitor.
The appellant had appeared with the defendant on 29 August 2000 when the matter was set down for hearing on 27 October 2000. Subsequently the trial date was adjourned further to 15 December 2000. Written notice of the trial date was sent by the Court to the appellant and the defendant on 25 September 2000.
The appellant had also written to the defendant on 27 September 2000 notifying her of the trial date and requesting payment of the account. The letter concluded:
“We note that we can only appear for you if our accounts are paid, and look forward to receipt of that payment.”
Again, on 20 November 2000, the appellant wrote to the defendant requesting payment no later than the end of that week and with a similar warning as to the consequences of nonpayment. The appellant had no response.
The Stipendiary Magistrate had his clerk contact the appellant at 9.45 a.m. on 15 December 2000 when there was clearly going to be no appearance and was told of the absence of instructions. The appellant was instructed to send, by facsimile, a notice requesting leave to withdraw but that had not arrived by 10 o'clock a.m. and the Stipendiary Magistrate proceeded to convict and fine the defendant and made the abovementioned costs order against the appellant.
Two threshold questions arise concerning the appeal. Service of the notice of appeal is required to be effected pursuant to section 222 (2) (a) (i) of the Justices Act within a calendar month of the decision appealed against. That was not done. The second respondent was not served until 17 January 2001, two days late. The Stipendiary Magistrate was not served until 29 January 2001 (a fortnight late) and the first respondent served on 20 March 2001, approximately two months late.
Furthermore the recognizance was not entered into within the seven days required under section 222(2)(a)(ii). In fact, the recognizance was only provided on 23 March 2001.
The first respondent did not appear on the hearing of the appeal. It was pointed out in respect of service upon her that the appellant was unable to contact her and was refused information as to her whereabouts when contact was made with her mother. The first respondent ultimately came into the appellant's office on 20 March 2001 following an arrangement to do so and there accepted service of the appeal documents. In the circumstances it seems that despite the late service upon her it can only be explained by her own actions.
The second respondent to the appeal was represented by Mr Swanwick of counsel. In particular in so far as the non-compliance in regard to service was concerned, Mr Swanwick was instructed not to waive reliance on the issue. No point was taken on the issue by the other respondents and no action was taken by any of the respondents to strike out the appeal.
Mr Vize appeared on behalf of the Stipendiary Magistrate merely to abide the decision of the Court. Note was made of the fact that the appellant was not seeking any order for costs against the Stipendiary Magistrate in the event that the appeal succeeded.
The Justices Act provides in section 222(2A) that the Court has power to extend time for service on condition that:
“...the appellant cannot give notice under subsection 2(a), through no fault of the appellant... ”
The relevant period to be considered in determining an inability to serve the respondents to an appeal is considered in the case of GSA Industries (Aust) Pty Ltd v. Tully ( 1995 1 Qd.R. 607 at 609) where in the judgment of the Court of Appeal it is said in respect of a submission made on behalf of a respondent:
“First, he argued in effect that the word ‘is’ in the expression ‘if the appellant is unable’ refers to the time at which the application for an enlargement is made. Hence, Mr McKenna said, if the application is made after the time for service has expired the condition as to inability must necessarily be satisfied; that is so because the appellant, being out of time, is then unable to serve notice ‘as aforesaid’, which means among other things within due time. We reject this contention as it is clear that the condition of inability to serve refers to inability during and not after that time for service which the statute prescribes; after the word ‘is’ one implies ‘at the relevant time’ and it would be absurd to treat the condition as satisfied merely because the appellant applies for enlargement after the time for service of notice has expired.”
Further, in respect of the words “through no fault of his own” the Court at page 610 applied a liberal interpretation saying;
“As to the second point, we would add that authority is to be found supporting a liberal reading of the requirement of inability to serve, in similar contexts: Leeder v. The Mayor, etc., of the Town of Ballarat East [1908] V.L.R. 214 at 218, 219, 223, 226; Carrington v. McColl [1948] V.L.R. 304 at 307. The question: how much difficulty in achieving service is necessary to establish inability to server does not arise here.”
The matter was further considered in the Court of Appeal in the unreported decision in Double Time Pty Ltd v. Detective Senior Constable Ryan and Anor [2001] QCA 57 at paragraphs 10 and 11 in the following terms:
“It is however difficult, adopting current approaches to statutory interpretation, to see why any failure to meet procedural requirements of section 222 should necessarily deny the District Court jurisdiction to entertain such an appeal.
Take, for example, an intending appellant's failure to serve a notice of appeal within time, thereby not complying with section 222(2)(a)(i). Because especially of the power of the District Court to extend time for service (section 222(2A)), such non compliance would be better regarded as an irregularity, and one which could be waived. Of course absent service, and absent waiver, the appeal would not however proceed.”
The Affidavit of the Appellant reveals that he was only served with the Costs Order within a day or so of closing the office for the Christmas holidays. During the holidays he drove from the Gold Coast to Oakey to file the Appeal. He returned to work on 15 January. It appears that the Second Respondent was also on holidays until 15 January and the Third Respondent until 29 January.
I turn to the second point concerning the late provision of the recognizance. The recognizance is to be entered into within seven days after service of the notice of appeal on the other party and the clerk of the Court pursuant to section 222(2)(a)(ii). I have already pointed out that the appellant did not provide the recognizance until 23 March 2001, and obviously that again was out of time.
Such a failure has again been considered by the Court of Appeal in Double Time referred to above. Such a late compliance is again described as an irregularity and the jurisdiction of the Court to hear the matter is still on foot. At paragraphs 13 and 14 of the judgment the Court said:
“... the better view is that the Court in such cases retains its jurisdiction with the issue of whether and how the proceedings are to be progressed depending on the exercise of judicial discretion.
The trend of modern authority would be to regard this applicant's late compliance with section 222(2)(a)(ii) as an irregularity enlivening such a discretion in the Court whether or not to proceed, and not such as to deny the Court jurisdiction.”
The Court of Appeal pointed out in that case that although there had been substantial delay no prejudice had occurred to the other party and said that the appeal plainly should have proceeded. There is no prejudice demonstrated in the current appeal.
No application has been made by any of the respondents to the current appeal to seek the dismissal of the appellant's appeal for non-compliance, either in respect of service or in respect of the entering into the recognizance.
Mr Swanwick, on behalf of the second respondent, made a further threshold submission. He contended that the second respondent was not a person concerned in upholding the Stipendiary Magistrate's decision as to costs.
However, in the event that the costs order against the appellant is set aside the only party to the appeal that would be left to bear the costs would be the prosecution. The prosecution had incurred the original expense of bringing the witnesses. It may indeed not be a large amount involved, but that is not the point. In my view the second respondent was correctly joined.
Again the Court of Appeal in Double Time adverted to such a consideration in paragraph 6 of the unreported judgment. The following observation is made:
“The provision thereby itself delineates who should be considered respondents, and therefore ‘parties’ to the appeal. As the beneficiary of the decision, the person directly prejudiced were it to be overturned, Mr Chiwei, was on any reasonable view ‘concerned in upholding’ the decision, and that of course explains why the applicant served him with the notice of appeal. Mr Chiwei must be regarded as a party to the appeal to the District Court.”
I am satisfied that the appellant's non-compliance with time should be dispensed with and the appeal therefore resolved on the substantive issues.
The prime contention of the appellant relates to section 157 of the Justices Act. That section relevantly provides:
“In all cases of summary convictions and orders including such a conviction for an indictable offence, the Justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.”
It is submitted by Mr Carrigan, who appears on behalf of the appellant, that the appellant does not come within the meaning of the term “defendant” within section 157 of the Act. Mr Carrigan goes on to refer to several decided cases where the question of awarding of costs against non-parties has been considered.
In Knight v. FP Special Assets Ltd [1992] 174 CLR 178 the High Court of Australia considered section 58 of the Supreme Court Act 1867 (Qld) and Order 91 Rule 1 of the Rules of the Supreme Court. That case concerned receivers of a company which was in liquidation.
Mason CJ and Deane J, in their joint judgment, referred to what was said in the House of Lords in Aiden Shipping Ltd v. Interbulk Ltd 1986 A.C. 965. The provision under consideration in that case concerned a United Kingdom statute in the following terms:
“Subject to the provisions of this or any other Act and to rules of Court, the costs of and incidental to all proceedings..., including the administration of estates and trusts, shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.”
Mason J and Deane J went on to observe:
“Their lordships held that there was no justification for implying a limitation on the power to the effect that costs could only be ordered to be paid by parties to the proceedings. Lord Goff of Chieveley (with whom the other members of the House of Lords agreed) remarked (74):
‘It is strange that courts should think it right to impose, by way of implication, a limit upon a wide statutory jurisdiction.’”
At page 192 the following observations were made:
“For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.”
Knight was applied in the Supreme Court of Queensland in a decision of Shepherdson J in Naomi Marble and Granite Pty Ltd v. FAI General Insurance Company Limited (No. 2) reported in 1999 1 Qd. R. 518 at page 543. After considering that case, Shepherdson J observed:
“The “interests of justice” referred to by the Chief Justice and Deane J must in my view be considered bearing in mind:
- (a)the circumstances of the particular case; and
- (b)the prima facie general principle that costs orders are only made against a party to the litigation.
Obviously, if a costs order is to be made against a nonparty, the circumstances of the case must be such as to take the case beyond the general principle and, in the interests of justice, require the making of such an order. Dawson J has used the adjective “exceptional” to describe such a case.”
In White Industries (Qld) Pty Ltd v. Flower & Hart (a firm) 156 ALR 169 Goldberg J in the Federal Court of Australia ordered costs against a firm of solicitors. Although he does not appear to refer to the decision in Knight, he found at page 170:
- “(vi)A solicitor may be liable to a costs order where his or her conduct amounts to an abuse of process of the Court. The concept of abuse of process in this context involves a party using Court proceedings and procedures for a purpose unrelated to the objectives which the Court process is designed to achieve.
Williams v Spautz (1992) 174 CLR 509; 107 ALR 635, considered.
- (vii)An allegation of fraud made by a solicitor in a pleading when there is no factual basis for it is sufficient to constitute a serious dereliction of duty or serious misconduct which will enliven the jurisdiction to order costs against the solicitor.
Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 210, applied.”
The present case falls well short of abuse of process and it must be noted that the statutory power of the Magistrates Court to award costs under section 157 of the Justices Act is far more constrained than that in the Supreme Court provisions to which I have referred.
There is no justification for construing the power to award costs against a defendant so widely as to include a party's solicitor. In particular instances it might be open to argue that the inherent power that every Court has to control its process and prevent abuse of that process might include such a power to award costs but it is not necessary to go down that path.
This situation was no more than a case of a solicitor whose client was failing to give instructions and pay an outstanding account. When it became clear that the client was not going to comply with requests, the solicitor should have notified the Court and sought leave to withdraw. It could not be suggested that the omission to do so was in any way deliberate and out of disrespect for the Court. It was of the nature of an oversight and would certainly have called for an appropriate explanation and expression of regret.
The appeal, therefore, should be allowed. I note that the appellant does not seek the costs of the appeal against any of the respondents to the appeal and, consequently, I make no order as to the costs of the appeal.