Dee Why Auto Clinic and Anor v Roads and Maritime Services (No 2)

1. [1]

   In this matter I delivered judgment on 12 April 2017: Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377.

2. [2]

   On that occasion I upheld an appeal brought by the plaintiffs against a decision of his Honour Magistrate Bradd in the Local Court, in which his Honour had concluded that the second plaintiff was not a fit and proper person to hold an authority to operate an Authorised Inspection Station, the business of such Inspection Station having being carried on by the second plaintiff under the name of the first plaintiff.

3. [3]

   Although a number of grounds of appeal were pleaded, the primary complaint of the plaintiffs, and the fundamental basis upon which the case was conducted, was that the reasons given by his Honour were inadequate. For the reasons more fully set out in my judgment, I accepted the submissions advanced by counsel for the plaintiffs in that respect. At the time of delivering judgment, I also made an order dismissing a notice of motion (“the motion”) filed by the plaintiffs. The circumstances leading to that order are set out in my judgment at [12].

4. [4]

   When delivering judgment I gave the parties the opportunity to provide written submissions as to costs.

5. [5]

   On 19 April 2017 I received written submissions on behalf of the plaintiffs. The defendant’s position was set out in a written outline dated 18 April 2017. On 20 April 2017 I received further submissions from the solicitors for the plaintiffs. This resulted in yet further submissions being filed on behalf of the defendant. It must be said that the approach of each of the parties to the question of costs has been less than succinct.

Submissions of the plaintiffs

1. [6]

   The submission of the plaintiffs was that I should make orders that:

2. [7]

   It should be noted that as to (ii), I have already made an order that the decision of the Magistrate be set aside.

3. [8]

   It was submitted on behalf of the plaintiffs that in terms of the proceedings before this Court, costs should follow the event. It was submitted that r. 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) reflected that principle, and that there were no circumstances which justified a departure from it.

4. [9]

   In terms of the orders sought in respect of the proceedings in the Local Court, it was submitted that following the decision of the Magistrate, the licences of the plaintiffs were cancelled by the defendant, leading to a position where, for a period of approximately 6 weeks, the second plaintiff was out of work and not able to generate any income. This, it was said, resulted in a “huge financial hardship” being imposed upon the second plaintiff. It was submitted that these circumstances justified a departure from the general rule that the costs of the Local Court proceedings should be resolved after the matter is determined to finality in the Local Court.

5. [10]

   As far as the costs of the motion are concerned, it was submitted that those representing the plaintiffs had advised the defendant shortly prior to the commencement of the hearing (which was said to be the earliest possible opportunity) that the motion would not be pressed. It was submitted that because no hearing time had been taken up in dealing with the motion, no prejudice had been visited upon either party, and that each party should bear its own costs.

Submissions of the defendant

1. [11]

   Counsel for the defendant submitted that in circumstances where the remittal of the proceedings to the Local Court may not result in a different outcome, and in circumstances where the necessity for the matter to be remitted to the Local Court was not the fault of the defendant, orders should be made that:

2. [12]

   In the alternative, it was submitted that orders should be made that:

3. [13]

   The defendant’s written submissions of 20 April 2017 set out what was said to be the background to the decision of the plaintiffs not to proceed with the motion. That history was entirely unsupported by any evidence.

The costs of the motion

1. [14]

   Rule 42.1 of the Rules is in the following terms:

2. [15]

   The plaintiffs filed the motion, supported by an affidavit of the second plaintiff, seeking to adduce further evidence at the hearing of the appeal. At the commencement of the hearing, I was informed that the motion was no longer pressed.

3. [16]

   Whether or not any hearing time was taken up in dealing with the motion is not to the point. That does not mean that the defendant did not incur costs in addressing it prior to being told that it was not going to be pressed. There is no reason why the costs of the motion should not follow the event. Nothing advanced on behalf of the plaintiffs justifies a departure from the general rule set out in s. 42.1.

The costs of the proceedings before this Court

1. [17]

   The submissions made on behalf of the defendant raised, in a somewhat oblique fashion, whether the defendant was entitled to a certificate pursuant to the Act. The alternative proposal set out in the defendant’s submissions of 18 April 2017 incorporated an order that the defendant, if qualified, be granted such a certificate in respect of any costs awarded against it in respect of the proceedings before this Court. In response, the solicitor for the plaintiffs submitted that the defendant was not so eligible. The further submissions received on behalf of the defendant stated that the defendant “(did) not assert that it is entitled to a certificate”. Having made that observation, and in circumstances where one version of the defendant’s proposed orders sought the issue of a certificate, the defendant’s submissions essentially ignored the issue.

2. [18]

   Section 6 of the Suitors Act is in (inter alia) the following terms:

3. [19]

   Section 13 of the Interpretation Act 1987 (NSW) (“the Interpretation Act”) provides (inter alia):

4. [20]

   Section 13A of the Interpretation Act provides:

5. [21]

   The defendant is constituted pursuant to s. 46 of the Transport Administration Act 1988 (NSW) which is in the following terms:

6. [22]

   It follows that by virtue of s.13A(1)(a) of the Interpretation Act, the defendant has the status of the Crown. Having regard to s. 6(7)(a) of the Suitors Act, the defendant is not entitled to an indemnity certificate.

7. [23]

   As to the broader question, the simple fact is that the plaintiffs were successful in the proceedings before this Court. There is no justification whatsoever that no order to be made as to the costs of the proceedings, nor is there any justification to limit the amount of costs so awarded. The defendant chose to oppose the relief sought by the plaintiffs and was unsuccessful in doing so. There is no basis upon which to depart from the general rule that costs should follow the event in respect of the proceedings before this Court.

The costs of the Local Court proceedings

1. [24]

   As I have noted in [9] above, in support of the submission that the defendant should pay the entirety of their costs of the Local Court proceedings, reference was made to the hardship suffered by the second plaintiff as a consequence of the orders made by the Magistrate. That is irrelevant to the determination that I have to make as to costs. In any event, it was open to the plaintiffs, upon the decision being delivered by the Magistrate, to immediately commence proceedings in this Court and seek a stay of the Magistrate’s decision.

2. [25]

   As things presently stand, and noting that the matter is to be remitted to the Local Court, the final rights of the parties have not been determined. The general rule is that where a new trial is ordered the costs of the first trial will follow the event of the new trial: Brittain v Commonwealth of Australia (No 2) [2004] NSWCA 427 at [21] and following per McColl JA (Handley and Tobias JJA agreeing). Although there is not to be a new trial in this matter as such, the general rule is nevertheless applicable.

3. [26]

   In Brittain, having cited the general rule, McColl JA went on to say (at [30]):

4. [27]

   As her Honour recognised, there may be circumstances which justify a departure from the general rule: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15; Brownlie v Overend [1979] VR 283. However nothing put to me on behalf of the plaintiffs justifies such a departure in the present case.

ORDERS

1. [28]

   Accordingly I make the following orders:

   1. (1)

      The plaintiffs are to pay the defendant’s costs of the plaintiffs’ notice of motion of 23 February 2017 as agreed or assessed.

   2. (2)

      The defendant is to pay the plaintiffs’ costs of the proceedings before this Court as agreed or assessed.

   3. (3)

      The costs of the entirety of the proceedings in the Local Court are to be determined by the Magistrate at the conclusion of such proceedings before him.