City & Country Insurance Brokers Pty Ltd v Webster & Anor [2000] QSC 8

SUPREME COURT OF QUEENSLAND CITATION: City & Country Insurance Brokers Pty Ltd v Webster & Anor [2000] QSC 008 PARTIES: CITY & COUNTRY INSURANCE BROKERS PTY LTD ACN 055 774 251 (Applicant) v COLIN WEBSTER, STIPENDIARY MAGISTRATE (First Respondent) and BRIAN WILLIAMS, STIPENDIARY MAGISTRATE (Second Respondent) and: MARK EDWARD TOOVEY (Third Respondent) FILE NO: No. 6187 of 1999 DIVISION: Trial Division DELIVERED ON: 24 January 2000 DELIVERED AT: Brisbane HEARING DATE: 28 and 29 October 1999 JUDGE: Helman J. ORDER: Application dismissed CATCHWORDS: PROCEDURE – application for costs against Magistrate COUNSEL: Mr A. M. Hoare for applicant Mr S. A. McLeod for the first and second respondents SOLICITORS: MacGillivrays for the applicant Crown Solicitor for the first and second respondents [1] HELMAN J: On 11 October 1999 I made a prerogative order that the judgment entered for the third respondent against the applicant for $5,092.00 in the Small Debts Court at Brisbane on 30 April 1999 be removed into this Court and that the judgment be quashed. I had heard submissions on behalf of the applicant and the third respondent concerning whether that relief should be granted, but none from the first and second respondents who had indicated that they would submit to any order made. The prerogative order was made because an error of the first respondent resulted in a denial of natural justice to the applicant. I published my reasons for reaching that conclusion on 11 October 1999. The applicant then made -- 1 of 2 -- 2 an application for an order for costs against the first respondent but foreshadowed the possibility that it would not proceed with that application. Accordingly I adjourned the application for costs to a date to be fixed. The applicant did decide to proceed with the application and on 28 and 29 October 1999 I heard argument on it from Mr Andrew Hoare on behalf of the applicant and Mr Scott McLeod on behalf of the first respondent. [2] This was not an application under s. 49 of the Judicial Review Act 1991, but rather an application under the rules of Court: see s. 49(4). Mr McLeod did not argue that an application under the rules of Court could not be made, and see on that subject the discussion of Shepherdson J in Re Heilbronn and Small Claims Tribunal of Queensland (1994) 2 Q.A.R. 12 at pp. 17-19. Mr McLeod conceded that there was power to make the order sought, but argued that in the circumstances it should not be made. [3] It is well accepted that an order for costs will be made against a magistrate only in very exceptional circumstances. Such an order is reserved for flagrant cases of serious misconduct, corruption, gross ignorance, or perversity: Ex parte Blume; re Osborn (1958) 58 S.R.(N.S.W.) 334, at p. 339; Sankey v. Whitlam [1997] 1 N.S.W.L.R. 333, at p. 363 per Hutley J.A.; Re Heilbronn and Small Claims Tribunal of Queensland, at p. 18; El Deeb v. Magistrates Court of South Australia (1999) 72 S.A.S.R. 596, at p. 598 per Doyle C.J. with whom Bleby and Martin JJ. agreed; Re Boothman; ex parte Trigg [1999] W.A.S.C. 102; and Robinson v. Paterson & Anor [1999] V.S.C. 60 at para. 115. [4] There is, of course, a wide discretion on the matter of costs, but the practice I have referred to provides guidance for deciding how the discretion should be exercised in an individual case: El Deeb v. Magistrates Court of South Australia at p. 599 per Doyle C.J. [5] The first respondent made a serious error, but in doing so he was not guilty of misconduct, corruption, or gross ignorance – and it was not suggested on behalf of the applicant that he was. Mr Hoare submitted however that it was a case of perversity. While the mistake was one difficult to understand, it was not in my view so egregious as to fall in the category of the very exceptional circumstances warranting the making of an order of the kind sought. Furthermore, it is a relevant circumstance in my view that in conducting the proceedings before him his Worship did not have the assistance of qualified legal practitioners. [6] The application will be dismissed. -- 2 of 2 --