Supreme Court New South Wales Medium Neutral Citation: RSPCA NSW (Inspector Milton) v Elliott (No 2) [2012] NSWSC 1016 Hearing dates: Written submissions Decision date: 31 August 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. Ms Elliott bear the plaintiff's costs, as agreed or assessed. 2. Ms Elliott is granted a certificate under the Suitors' Fund Act 1951. Catchwords: PROCEDURE - costs - Suitors' Fund Act 1951 - certificate granted Legislation Cited: Civil Procedure Act 2005 Prevention of Cruelty to Animals Act 1979 Suitors' Fund Act 1951 Uniform Civil Procedure Rules 2005 Cases Cited: CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575 RSPCA NSW (Inspector Milton) v Elliott [2012] NSWSC 585 Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180 Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 176 Category: Costs Parties: Courtney Louise Milton, RSPCA NSW (Plaintiff) Johanna Elliott (First Defendant) The Honourable G Bartley LCM (Second Defendant) Representation: Counsel: Mr P Bodor QC and Mr M Gallagher Mr J Sheller and Mr G O'Mahoney (First Defendant) Solicitors: Solicitors: Smythe Wozniak Legal (Plaintiff) Greg Walsh & Co (First Defendant) File Number(s): 2011/318960 Publication restriction: None Judgment 1By judgment delivered on 1 June 2012, I upheld the plaintiff's appeal from a decision of the Local Court dismissing charges laid against Ms Elliott and remitting the matter for rehearing (see RSPCA NSW (Inspector Milton) v Elliott [2012] NSWSC 585). This judgment is concerned with the costs of that appeal. 2Ms Elliott seeks an order that each party bear its own costs and if the Court is not minded to depart from the usual order, that an order be made in her favour under the Suitors' Fund Act 1951. The plaintiff opposes any departure from the usual order. 3Ms Elliott's application was pressed on three bases. Firstly, that the Court upheld the appeal on grounds that were not raised in the summons, nor explored in written or oral argument; secondly that the proceedings were in the nature of a test case; and thirdly, that the plaintiff was a public authority and she an ordinary litigant, who had acted responsibly in the proceedings, which raised issues of public importance. 4There is no question that the Court has a discretion under s 98 of the Civil Procedure Act 2005 and Rule 42.1 of the Uniform Civil Procedure Rules 2005, to depart from the usual order, if that is what justice demands in the circumstances. 5For Ms Elliott reliance was placed on what was decided in Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 176 at [60] - [75]. That was a case where there were an inordinate number of grounds of appeal and where a difficulty was raised with the parties by the Court, immediately after the case was called; where the Court then adjourned to enable the parties to consider their position; where the respondents persisted in their support of the trial judge's decision, with the oral argument proceeding and supplementary written submissions in regard to the issue raised by the Court, later being made. 6This was quite a different case. While I said in the earlier judgment that the summons could have been better drafted, it raised the question of the proper construction of the defined term 'person in charge' used in s 5 and s 8 of the Prevention of Cruelty to Animals Act 1979, and its application to the relevant factual findings. The plaintiff's case was that an error of law had resulted from his Honour's misunderstanding of the decision of Greg James J in Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180, as to the proper construction of that term and its application to the facts. 7The case put for Ms Elliott was that there had been no error of law; his Honour was bound to apply the decision in Song v Coddington; it was correctly applied; and that accordingly, the appeal would be refused. 8It is not accurate to say that the decisive issues on which the appeal turned were not raised in argument. The appeal was concerned with his Honour's understanding of what was decided in Song v Coddington. The plaintiff's case was that his Honour misunderstood and misapplied the decision in Song v Coddington, which bound him, with the result that he had erred as to the proper construction of the term 'person in charge'. 9I concluded that contrary to the view which his Honour reached, Greg James J did not construe the words used in paragraph (b) of the definition, 'a person who has the animal in the person's possession or custody, or under the person's care, control or supervision' as meaning a person who has the 'ability to engage in the physical disposition of the animal'. 10The parties addressed various submissions as to how what Greg James J had said should be understood, both in oral and written submissions. At the hearing, they variously adressed each other's written submissions and I raised with them questions which I had, as to what was lying between them. In the judgment, the issues lying between the parties were resolved by an analysis of what Greg James J had actually decided. 11That resulted in a conclusion that the appeal had to be upheld, because the construction of the section for which Ms Elliott had successfully contended below was not correct, his Honour having proceeded on an incorrect understanding of what had been decided in Song v Coddington. 12Those are not circumstances in which there may justly be any departure from the usual order as to costs. 13This was also not a test case. It was an appeal from Ms Elliott's aquittal of 23 charges laid under s 5(3)(c) and s 8(1) of the Act. It was common ground below that his Honour was bound by the judgment in Song v Coddington as to the proper construction of the defined term 'person in charge', used in those sections. They joined issue over how the judgment should be understood and applied to the facts in Ms Elliott's case, given what was there concluded. On appeal the plaintiff succeeded in establishing that the construction which his Honour had accepted was wrong. 14Reliance was placed on CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, to submit that the Court should refrain from ordering costs in favour of the plaintiff. There the view was taken at [81], that the challenge to the decision in 'Sullivan v Gordon before the primary judge (which was inevitably rejected), in the Court of Appeal (which was not surprisingly repelled) and in this Court (which has succeeded) made this case a test case, designed to resolve a conflict amongst the intermediate appellate courts of the States and the Australian Capital Territory'. That was a matter in which the plaintiff had no interest, apart from the particular litigation, but the respondent was a large and recurrent litigant, pursuing the proceedings with a view to vindicating long-term commercial interests which it and related companies had had in mined asbestos and manufactured and supplied asbestos-based products 15This was clearly not such a case. 16The appeal did not concern the conduct of a public authority in the discharge of its powers and obligations under the Act, as was also submitted for Ms Elliott. The plaintiff is a charitable organisation. The legislation provides for approval of such organisations. Such approval authorises them to prosecute offences under the Act.. 17The proceedings below turned on whether or not Ms Elliott was 'a person in charge' of certain greyhounds. The proper construction of that term is fundamental to certain offences which the Act creates in relation to people's in treatment of animals. His Honour's misunderstanding of an earlier decision in which the proper construction of the term was considered, did not make this appeal a test case, even though the decision given was no doubt an important one to the plaintiff, given its role in the administration of this legislation. 18In the circumstances it must be concluded that no basis for a just departure from the usual order as to costs has been established. Suitors' Fund Act 1951 19There is no question that in the circumstances the Court has a discretion under s 6 of this Act to order that Ms Elliott have a certificate in respect of the plaintiff's successful appeal form the decision of the Local Court, the appeal having been in respect of a question of law. In Robinson v Zhang [2005] NSWCA 439; (2005) 158 A Crim R 575, Basten JA observed that '[w]here the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warrant withholding a certificate in the exercise of the Court's discretion.' (see at [38]). There do not appear to be such circumstances here. 20Accordingly, it is appropriate in the circumstances which have arisen that I order that Ms Elliott have such a certificate. Order 21For these reasons I order that: 1. Ms Elliott bear the plaintiff's costs, as agreed or assessed. 2. Ms Elliott is granted a certificate under the Suitors' Fund Act 1951. ********** 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. Decision last updated: 31 August 2012