Applicant v PYE

LEGISLATION CITED: criminal proceedings - application for costs made after summonses dismissed - slip rule

DATE OF JUDGMENT DELIVERY: 03/16/1999

PROSECUTOR M H Baird Solicitors: Crown Solicitors Office LEGAL REPRESENTATIVES: DEFENDANT P S Hastings QC and J E Robson Solicitors: McGirr James Hall & Associates

JUDGMENT: IN THE LAND AND Matter No: 50128 of 1997 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 16 March 1999

DIRECTOR-GENERAL OF THE DEPARTMENT OF LAND & WATER CONSERVATION Applicant

On 24 November 1998, in a reserved judgment, I found the defendant not guilty of two charges of clearing native vegetation without consent as required by State Environmental Planning Policy No 46 - Protection and Management of Native Vegetation , contrary to s 76(2) of the Environmental Planning & Assessment Act 1979 and constituting an offence under s 125 of that Act. I made a formal order that the summonses in both proceedings be dismissed. Although the judgment was delivered on 24 November 1998 the order was not entered and sealed until 26 November 1998.

The defendant now seeks an order that the prosecutor pay his costs. The defendant seeks in the alternative an order under Pt 10 r 7 of the Land & Environment Court Rules 1996 that the orders made on 24 November 1998 be amended by adding the following order:

The reserved judgment in this case was delivered at 9.30 am on 24 November 1998. It was not until later that day, however, that Mr P F T McGirr, solicitor for the defendant, raised the issue of costs. As outlined in the affidavit of Mr McGirr dated 10 November 1998, he spoke to my Associate on 24 November 1998 explaining that he had not read the judgment when it was handed down and requested that the matter be listed as soon as possible in order that the defendant might ask for costs. Mr McGirr subsequently spoke to the solicitor for the prosecutor on 24 and 25 November 1998 informing them that the defendant was seeking costs. It was not until 26 November 1998 that the order dismissing the summonses was sealed and entered.

Mr M H Baird, who appears for the prosecutor, submits that the Court does not have the power to make any order for costs. There is now a perfected order of the Court dismissing the summonses. The summonses having been dismissed, the process must be regarded as complete.

Mr Baird further submits that the sole power under which this Court may make an order for costs in its summary jurisdiction is under s 52 of the Land & Environment Court Act 1979, which is a specific provision relating to costs in such cases and which circumscribes the general power to make orders for costs found in s 69 of the Act.

Section 52(1) of the Land & Environment Court Act provides:

(a) convicts any person of an offence punishable in the summary jurisdiction of the Court;

(b) makes an order dismissing the charge for any such offence; or

(c) makes an order under section 556A(1) of the Crimes Act 1900, in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).

Mr Baird submits that since s 52 requires that any order for costs must be made in the conviction or order (as the case may be) and since no order for costs was made in the order dismissing the summonses, the Court is now unable to consider the question of costs. Mr Baird relies upon Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540, in which Smart J held, in relation to the equivalent section in the Justices Act 1902 (s 41A) that a magistrate does not have jurisdiction to make any order for costs unless a defendant makes application for an order for costs immediately upon the magistrate discharging the defendant: whenever an order for costs is made it must form part of the process of discharging the defendant.

Mr Baird further submits that the Court has no jurisdiction to make the alternative order sought by the defendant under the Land & Environment Court Rules , Pt 10 r 7 (the so-called "slip rule"). Neither, according to Mr Baird, does the Court have jurisdiction to set aside or vary the order under Pt 15 r 9 of the Court's rules. Mr Baird appears to accept that these rules may afford a power to set aside or vary an order and are thus exceptions to the common law rule that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside that judgment. As I understand Mr Baird's submission, however, such rules cannot override the specific provision in s 52 of the Act as to when and how costs are to be determined and paid. The cases in which the slip rule, for example, have been applied are not cases where a provision such as s 52 of the Land & Environment Court Act otherwise governs the making of such orders.

Mr P S Hastings QC, who appears for the defendant, accepts that the common law rule is that once a judgment of the Court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside that judgment. The general rule, however, admits to certain exceptions. One such exception at common law is the "slip rule" ( Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty (1993) 117 ALR 253 at 263-264, Full Court of Federal Court; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594).

Mr Hastings also relies upon Fosse v Director of Public Prosecutions (at 546-547) for a submission that the proceedings are not completed and must be regarded as still on foot for consequential purposes if there is an outstanding application for costs. In the present case, in view of the facts described by Mr McGirr and noted in paragraph 3 above, the application for costs was foreshadowed before the orders were sealed and entered, so that the proceedings are not yet completed.

Alternatively Mr Hastings relies upon Pt 15 r 9 of the Court's rules. That rule enables the Court to set aside or vary an order if ( inter alia ) the party in whose favour the order was made consents. The order dismissing the summonses is an order in favour of the defendant. Mr Baird, on the other hand, submits that the order benefits the prosecutor because, having been made, it prevents the making of an order for costs against the prosecutor under s 52 of the Act.

Finally, Mr Hastings submits that an alternative power exists under the Costs in Criminal Cases Act 1967. Such power may be exercised after the defendant is acquitted or discharged (s 2). The Costs in Criminal Cases Act is not circumscribed by s 52 of the Land & Environment Court Act because the form of relief is different (being a certificate as opposed to an order) and an order under s 52 is directed to a party whereas a certificate under the Costs in Criminal Cases Act is directed to the Director-General of the Attorney-General's Department.

Part 10 r 7(1) of the Court's rules (the "slip rule") is as follows:

"7(1) If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error."

Part 10 r 7(1) of the Court's Rules is in the traditional form of a slip rule (see, for example, the Supreme Court Rules Pt 20 r 10; the High Court Rules Order 29 r 11). In L Shaddock & Associates Pty Ltd v Parramatta City Council , Mason ACJ, Wilson and Deane JJ said (at 594-595):

"Order 29, r 11 is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court 'at any time to correct an error in a decree or order arising from a slip or accidental omission' (see Milson v Carter (1893) AC 628 at p 640). In terms, the rule provides, inter alia, that 'an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons'. The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative (see Fritz v Hobson (1880) 14 ChD 542 at pp 561-562; Chessum & Sons v Gordon [1901] 1 KB 694 at 698; In re Inchcape (Earl) [1942] Ch 394, at pp 397-398; Coppins v Helmers & Brambles Constructions Pty Ltd [1069] 2 NSWR 279, at pp 281-282; Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300, at p 304; [1973] 1 All ER 569, at p 571). This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v Carter [1893] AC at p 640; Fritz v Hobson (1880) 14 ChD, at p 560).

In Shaddock the High Court held that the slip rule was available to correct the inadvertence of counsel who had previously forgotten to apply for an order for interest before perfection of the order.

In Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1988) 62 ALJR 151, 77 ALR 190, the Court granted an application to amend an earlier order, dismissing a summons, by adding an order that the applicants on the summons pay the costs of the respondents to that summons. It appeared that costs had not been sought at the time of dismissal of the summons because of the inadvertence of counsel. Toohey J said (at 152), after referring to Shaddock :

"In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced: Coppins v Helmers & Brambles Constructions Pty Ltd [1969] 2 NSWR 279. That is the situation which has arisen here. None of the cases so far mentioned was concerned with a failure to ask for the costs of a successful proceeding. However In re Inchcape (Earl of) [1942] Ch 394 was such a case and Morton J held that a rule comparable to O29, r 11 empowered the court to amend an order to include provision for costs which had not bee asked for earlier. So too was Rowe v Delfs [1966] WAR 49 where Hale J varied an earlier order by including a certificate for the cost of transcript which counsel had omitted to ask for.

I am satisfied then that the Court is empowered to grant the relief which the respondents seek. I am also satisfied that it is appropriate to make an order amending the order made on 6 November 1987 by including provision that the applicants pay the respondents' costs of that summons. In the ordinary course a successful party is entitled to costs: Ritter v Godfrey [1920] 2 KB 47 at 52-53, 60-61. There are no considerations prevailing that would warrant departing from the established rule."

There is no doubt that s 52 of the Land & Environment Court Act is a specific provision relating to the making of orders for costs in the summary criminal jurisdiction of the Court. It thus circumscribes the general power to make orders for costs in s 69 of the Act. It requires the making of any order for costs in and by the conviction of a person of an offence, or in and by the making of an order dismissing the charge for any offence, or in and by the making of an order under s 556A of the Crimes Act 1900 in respect of any offence ( Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 87 LGERA 188 at 200; Environment Protection Authority v Alkem Drums Pty Ltd (1996) 93 LGERA 83; Environment Protection Authority v Associated Dairies Pty Ltd, Bignold J, 15 June 1998, unreported).

There is nothing in s 52, however, which suggests that any order made under sub-s (1) is not subject to the common law rule known as the "slip rule", of which Pt 10 r 7 of the Land & Environment Court Rules is an example. As noted by the Full Court of the Federal Court in Caboolture Park Shopping Centre (at 263) and by the High Court in Shaddock (at 594-595) the rule is a rule of the common law. Moreover, as was said by Mason ACJ, Wilson and Deane JJ in Shaddock (at 594) and by Toohey J in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (at 152) the rule extends to authorise an omission resulting from the inadvertence of a party's legal representative. As further noted by Mason ACJ, Wilson and Deane JJ in Shaddock (at 595), the rule is available regardless of whether the order has been drawn up, passed and entered.

I am, of course, bound by the two judgments of the High Court to which I have referred. I therefore hold that orders made in the summary criminal jurisdiction of this Court are subject to the slip rule. In particular, the slip rule extends to the power of the Court to make orders for costs under s 52 of the Land & Environment Court Act .

In the present case it is clear from the evidence of Mr McGirr that the failure of the defendant to seek an order for costs when the reserved judgment was delivered was solely the result of his inadvertence. It is also clear from Mr McGirr's evidence that he foreshadowed the seeking of an order for costs both to the prosecutor's solicitor and to the Court before the Court's orders were sealed and entered. The facts thus fall squarely within the parameters for the implementation of the rule as explained in Shaddock and in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd . These facts are sufficient to distinguish the present case from Fosse v Director of Public Prosecutions . If the defendant is otherwise entitled to an order for costs then, in my view, the slip rule enables such an order to be now made.

There is, apart from the slip rule, the alternative power in the Court to set aside or vary a perfected order, namely the power under Pt 15 r 9 of the Court's Rules. That rule relevantly provides:

"9. The Court, may, on terms, set aside or vary an order in any of the following cases -

(a) if the order has been made in the absence of a party, whether or not the absent party is in default of appearance of otherwise in default, and whether or not the absent party had notice of the motion for the order;

(b) if notice of motion for the setting aside or variation is filed before the signing and filing of the minute of the order under rule 4;

(e) if the order does not reflect the intention of the Court;

(f) if the party in whose favour the order was made consents."

In the present case the party in whose favour the order was made, namely the defendant, consents to the order being varied so as to include an order for costs. Mr Baird submits that the prosecutor, not the defendant, is the person in whose favour the order was made: the order benefits the prosecutor because it prevents the making of an order for costs under s 52. I do not agree with Mr Baird's submission. The defendant was charged with two serious criminal offences. The prosecutor was seeking convictions. The prosecutor was unsuccessful. The order that was made was an order dismissing the summonses. The order was thus clearly one which was in favour of the defendant. As in the case of the slip rule, if the defendant is otherwise entitled to an order for costs, I would be prepared to invoke this rule for the purpose of making such an order. I do not have to do so, however, because the slip rule alone is a sufficient basis upon which to make any order for costs to which the defendant may be entitled.

If I am wrong in holding that either or both of the abovementioned rules enables the Court to make an order for costs as now sought by the defendant, then I would be prepared to exercise the Court's powers under the Costs in Criminal Cases Act 1967. That Act enables the Court or Judge, in any proceedings relating to any offence, whether punishable summarily or upon indictment, to grant to a defendant a certificate under that Act where the defendant, after a hearing on the merits, is acquitted or discharged (s 2). Again, however, I do not have to resort to that Act since the slip rule is alone a sufficient basis upon which to make an order for costs in the present case.

Having found that there is jurisdiction to make an order for costs it is necessary to turn to the merits of the application for costs. The relevant principles which govern the making of orders for costs in criminal proceedings are explained in Latoudis v Casey (1990) 170 CLR 534.

"In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs … It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs."

"I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged defence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor."

"If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense, in defending the charge."

28. Toohey J refers to a situation where it may be just and reasonable to refuse costs. He states (at 565):

"If a defendant has been given the opportunity of explaining his or her version of the events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs."

"This has nothing to do with the right to silence in criminal matters. A defendant or prospective defendant is entitled to refuse an explanation to the police. But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award for costs, when an explanation might have avoided the prosecution."

"The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings."

Mr Baird, on behalf of the prosecutor, submits that the defendant in this case withheld relevant information which, he submits, had it been divulged was material information which would have determined whether there was to be a prosecution. Mr Baird further submits that because the defendant did not answer a questionnaire which the prosecutor sent him, the defendant falls within the exception in Latoudis and should not be awarded costs.

The defendant was not, however, under any obligation to answer the questionnaire sent to him by the prosecutor. A defendant has a right to silence, especially in criminal a proceeding. Not withstanding this, in a letter dated 15 September 1997 the defendant's solicitor responded in a general way to the questionnaire sent to him by the prosecutor. Mr McGirr stated:

"We refer to a questionnaire which you furnished to our client. Rather than answer in a detailed fashion, we are instructed that there are being carried out farming works … on an area that was cleared before August 1995 being prior to SEPP 46 being introduced and that the regrowth was less than ten years of age . Our client understands that the land was grassland and that there existed the right to continue developing country on which the regrowth was under ten years of age and upon which work had been commenced and nearly completed prior to the introduction of SEPP 46." (The emphasis is mine.)

It is apparent from this letter that the defendant did inform the prosecutor that the land cleared was regrowth of less than ten years of age and as such the defendant falls within an exception under cl 11 of the State Policy, as I found.

Accordingly, I reject the prosecutor's submission that the defendant withheld relevant information from the prosecutor. Although the defendant did not respond to the detailed questionnaire, he did provide an explanation of the clearing to the prosecutor.

In these circumstances there is no reason why the successful defendant should not be awarded his costs. The general principle that costs follow the event should be applied in this case. There was nothing in this case which indicates that the defendant falls within the exception to that general principle, described in Latoudis . I am therefore of the opinion that the prosecutor must pay the defendant's costs.

I certify that this and the preceding 14 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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