Bimson, Roads & Maritime Services v Damorange Pty Ltd

ex tempore Judgment 1On 30 May 2014, I dismissed an appeal brought by the plaintiff, Paul Bimson under s 56(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), ("the Review Act"), against a sentence imposed on the defendants by the Local Court in a summary prosecution: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 (Bimson (No 1)). 2After I pronounced judgment dismissing the appeal, senior counsel for the defendants, Mr Hodgkinson SC, sought an order that the plaintiff pay his client's costs of the appeal. This application was resisted by counsel for the plaintiff, Mr Higgins. Mr Higgins submitted that this Court had no power to order costs on this appeal. To advance the matter I ordered the parties to file written submissions on costs which they duly did. 3As I will explain, there is no express provision of the Review Act conferring a power on this Court to order costs in an appeal of this kind. Nevertheless, in Cunningham v Cunningham (No 2) [2012] NSWSC 954 ("Cunningham (No 2)"), Button J held that s 23 of the Supreme Court Act 1970 (NSW) enabled the Court to order costs against a prosecutor who had unsuccessfully brought an appeal under Part 5 of the Review Act. His Honour reached the same conclusion in ACP v Munro [2012] NSWSC 1510. Justice Fullerton followed Cunningham (No 2) in Coffen v Goodhart [2013] NSWSC 1018 (at [12]). 4In his written submissions, Mr Higgins accepted that, as a matter of comity, I should follow those judgments unless I was satisfied they were "clearly wrong". Mr Higgins nevertheless submitted that they were clearly wrong. 5To address Mr Higgins' argument it is first necessary to describe some aspects of the relevant legislative regime in more detail. 6Part 3 of the Review Act deals with appeals and applications for leave to appeal to the District Court from convictions, sentences, and certain related determinations made by the Local Court in criminal proceedings. Sections 16(3) and 28(3) of the Review Act confer on the District Court an express power to make costs orders in respect of such appeals and applications for leave to appeal. 7Part 4 of the Review Act deals with appeals and applications for leave to appeal to the Land and Environment Court from convictions, sentences, and similar orders in relation to certain environmental offences dealt with by the Local Court. Again, ss 36(3), 46(2) and 49(4) of the Review Act confer a power on the Land and Environment Court to make orders for costs in respect of such appeals and applications for leave to appeal. 8Part 5 of the Review Act deals with appeals from convictions and sentences imposed by the Local Court direct to the Supreme Court. Division 1 deals with appeals and applications for leave to appeal by disappointed defendants. Division 2 deals with appeals and applications for leave to appeal by prosecutors. 9Within Part 5, the Supreme Court is expressly conferred with the power to award costs against a defendant or prosecutor who has had their application for leave to appeal dismissed (see s 54(3) and 58(3)). However, unlike Part 3 and Part 4, no express power is given to the Supreme Court to make an award of costs in respect of an appeal, even in circumstances where leave to appeal is granted. 10Part 6 of the Review Act is entitled "Provisions Common to All Appeals". It includes s 70 and s 72 which provide: "70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. ... 72 Orders for costs An appeal court that orders an appellant or respondent to pay costs: (a) (Repealed) (b) must state a time within which the costs or other amount must be paid." 11Each of s 28(3) and 49(4) of the Review Act, which confer powers on the District Court and the Land and Environment Court respectively to award costs in an appeal, are expressed to be "subject to s 70". However, none of the provisions empowering the making of an order for costs if an application for leave to appeal is refused are expressed to be subject to s 70 (see s 16(3), 46(2), 54(3) and 58(3)), even though some of those provisions clearly apply to prosecutors (see s 46(2) and 58(3)). 12In any event, s 72 of the Review Act clearly does not confer a power to award costs. Instead it simply assumes the existence of such a power. 13The Review Act was assented to on 19 December 2001 and commenced on 7 July 2003. At the time of the Review Act's commencement, s 76 of the Supreme Court Act 1970 (NSW) conferred on this Court a "full power to determine by whom and to what extent costs [were] to be paid", although this power was subject to that Act and the rules. Section 17 of the Supreme Court Act 1970 exempted those criminal proceedings specified in Schedule 3 from the operation of that Act. Proceedings under the Review Act were not so specified. Thus, at that time, s 76 clearly applied in respect of appeals under Part 5 of the Review Act. 14However, s 76 was repealed with effect from 15 August 2005. On that day, the Civil Procedure Act 2005 (NSW) (the "CPA") came into force. Broadly, s 98 of the CPA is the equivalent of s 76 of the Supreme Court Act. However, s 98 is found within Part 7 of the CPA. Parts 3 to 9 of the CPA only apply in relation to "civil proceedings" (s 4(1) CPA). Civil proceedings are defined to mean, "any proceedings other than criminal proceedings" (s 3(1)). The definition of "criminal proceedings" includes "proceedings on an appeal against conviction or sentence" (s 3(1)). Proceedings under Part 5 of the Review Act clearly answer that description. The result is that the power conferred by s 98 of the CPA has no application to proceedings under the Review Act. 15This leaves s 23 of the Supreme Court Act, as well as the Court's inherent or implied powers to the extent that it might be suggested they do not necessarily derive from s 23, as a possible basis for awarding costs. 16Section 23 provides: "The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales". 17In Australian Securities and Investments Commission v Sigalla (No 6) [2012] NSWSC 83; 291 ALR 391 ("Sigalla (No 6)"), White J held that s 23 was a source of this Court's power to award costs in proceedings in respect of charges of criminal contempt (at [31]). His Honour stated: "[28] The Court of Chancery exercised its inherent jurisdiction with respect to costs in cases of contempt. The usual rule was that after a party was committed to prison for contempt, upon purging his contempt he could obtain his discharge, but as a condition of the discharge the court could order payment of the costs of the contempt proceedings. The postponement of an order as to costs where a party was committed was "merely a rule of convenience". Costs were ordered in the court's inherent jurisdiction (Ex parte Van Sandau (1846) 1 Ph 605 at 609 - 610 ; 41 ER 763 at 764 - 765). There is no reason why the jurisdiction would not extend to the ordering of costs in cases which would now be characterised as criminal contempts. [29] The principal proceedings out of which the present charges of contempt arose were for orders under s 1323 of the Corporations Act. That is a wholly new statutory jurisdiction. In other words, the orders alleged to have been breached were not made in the exercise of a jurisdiction formerly exercised by the Court of Chancery. [30] Nonetheless, s 23 of the Supreme Court Act provides: '23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.' [31] It is necessary for the administration of justice that the court have power to make orders for costs in cases such as the present where, possibly because of legislative inadvertence, there is a lacuna. In my view, s 23 provides the necessary power to order costs by analogy to the Court of Chancery's inherent jurisdiction to order costs, including in contempt cases, in matters within that court's jurisdiction. [32] As noted at [23] above, I should correct what I said in ASIC v Sigalla (No 4) at [48]. On further consideration I would accept that in Sexton, the court had inherent jurisdiction pursuant to s 23 of the Supreme Court Act to make the order for costs that was made in that case, notwithstanding that it was not a jurisdiction that would have been exercisable in the Court of Chancery and notwithstanding that the courts of common law did not have such inherent jurisdiction. (The allegation in Sexton was contempt of court by interfering in the administration of justice by publicity that might tend to prejudice the conduct of a criminal trial.)" (emphasis in original) 18In Cunningham (No 2) at [15] to [16], Button J placed particular reliance on [32] from Sigalla (No 6) as authority for the proposition that the deployment of s 23 as a source of power to order costs was not limited to matters that were traditionally dealt with by a Court of Chancery. 19Mr Higgins contended that that aspect of the reasoning in Cunningham (No 2) was erroneous. He submitted that, "[f]undamental to White J's conclusion [in Sigalla (No 6)] was the analogy between the statutory jurisdiction to prosecute for contempt under s 1323 of the Corporations Act 2001 (Cth) and the Court of Chancery's inherent jurisdiction in contempt cases". 20This submission misconceives the nature of the proceedings in Sigalla (No 6). Section 1323 of the Corporations Act does not confer jurisdiction on this Court to prosecute for contempt of anything. Section 1323 was the source of this Court's powers to make the orders in the substantive proceedings against Mr Sigalla. Mr Sigalla was prosecuted for contempt in this Court because he allegedly contravened those orders. The source of the Court's power to hear the charges was its inherent jurisdiction as a Superior Court of Record. 21Mr Higgins' principal contention was the line of reasoning that led to the outcome in Cunningham (No 2), "blur[red] the distinction between jurisdiction and power". He contended that the phrase "jurisdiction" as used in s 23 is a reference to "subject matters with which the Court is authorised to deal" whereas the extent of a Court's power "will depend upon the terms of the statute bringing into existence, any other relevant statute, and upon the inherent jurisdiction of the court", citing Toohey J in St Justins Properties v Rule Holdings Pty Limited (1980) 40 FLR 282 at 284. Mr Higgins further contended that s 23 of the Supreme Court Act does not confer or amplify the Supreme Court's "implied powers", and that there is no implied power to award costs in criminal proceedings. He submitted that neither "s 23 of the Supreme Court Act nor the Law Reform (Law and Equity) Act [1972 (NSW)] enlarged or amplified the implied powers of the Supreme Court in its criminal jurisdiction". 22There are a number of difficulties with these contentions. 23First, in the context of a discussion of s 23 of the Supreme Court Act, to rely on a strict distinction between the concept of "jurisdiction" in the sense asserted by Mr Higgins' submission and the Court's "power" to act does not advance the matter (see Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 80 ALJR 1100 at [5] per Gleeson CJ, Gummow, Hayne and Crennan JJ) ("Batistatos"). A review of the cases that invoke or refer to s 23 reveals that it is often relied on as either the source of, or at least the basis for, various powers exercised by the Court to control its own processes including making ancillary-type orders such as the power to award security for costs (Rajski v Computer Manufacturer & Design Pty Limited [1982] 2 NSWLR 443) ("Rajski"), to set aside or issue subpoenas (Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573), or to stay proceedings as an abuse of process (Batistatos at [135] per Kirby J. In my view, in this context it matters little whether s 23 is read as simply being a confer of a grant of jurisdiction in the sense of just being an authority to decide or extends to conferring authority to exercise various powers. Even if the former were correct, then the grant of the relevant jurisdiction would also carry with it the so-called inherent or implied powers (Batistatos id). 24Second, Mr Higgins' suggestion is inconsistent with Sigalla (No 6). In Sigalla (No 6) at [32] White J concluded that the costs order made by this Court against the prosecutor in Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 352 ("Sexton") was supported by s 23 of the Supreme Court Act. Sexton was a failed prosecution in this Court for an alleged contempt of the District Court by reason of the publication of material relevant to a jury trial pending in that court. In Sexton, this Court was not exercising a jurisdiction traditionally exercised by Courts of Chancery. 25Third, once it accepted, as it must, that s 23 either in its own right, or carrying with it inherent or implied power, authorises the awarding of costs, then there is no warrant for confining that power to only those cases in which traditionally a Court of Chancery would make such an order. As I have stated, s 23 is often invoked in a context when the Court is considering its power to control its own processes or make ancillary orders. There is no reason to conclude that it has any greater reason to make such orders when hearing cases that were traditionally heard by Courts of Chancery compared with other cases. 26In Rajski (at 447), Holland J reviewed the history of the exercise of jurisdiction or power of Courts of Chancery to award costs. His Honour ultimately concluded (at 447) that it was "to be taken as having been established that the power [to award costs] was part of the inherent jurisdiction of the Court notwithstanding the existence of ancient statutes on the subject". 27In Rajski, Holland J also concluded that the Court's inherent jurisdiction not only authorised the making of orders for costs but also authorised the making of orders for security for costs (at 447). There is nothing to suggest that post-"fusion" this power was confined to only cases that could be heard prior to "fusion" by a Court of Chancery. To the contrary, one of the cases cited by Holland J in Rajski was a post-Judicature Act case heard in the Kings Bench division (JH Billington Limited v Billington [1907] 2 KB 106). 28In my view the correct analysis in such cases is that the power to award costs was the relevant exercise of a Chancery jurisdiction. The matter that has changed since the pre-Judicature Act period is that the Court that has that power, which in this case is this Court, now hears a broader range of cases including non-Chancery cases. I can think of no reason why in those circumstances that power cannot be exercised in an appropriate case, even in a case that would not previously have been determined by Court of Chancery. 29However, one limit on s 23 can be identified. The section does not confer authority on the Court to rewrite or second-guess a legislative scheme. Thus, if it was apparent from a legislative scheme that it was intended that there be no costs awarded in proceedings conducted under it, then s 23 would not authorise such an award of costs in the face of that intention. 30It is not necessary to decide whether s 23 extends as far as allowing a "lacuna" in the legislative scheme to be filled (cf Sigalla (No 6) at [31]). In this case I do not accept that it was mere legislative inadvertence that led to there being no provision in the Review Act addressing whether the Supreme Court could award costs in respect of an appeal under Part 5. Instead, it seems to me that the legislative choice was to leave that topic to the Supreme Court so that it could exercise such other powers to award costs that it may have. 31At the time the Review Act came into force, the Supreme Court's power to award costs was specifically addressed by former s 76 of the Supreme Court Act. However, for the reasons I have already explained, that was not the only source of power that the Court had to award costs in respect of cases within its jurisdiction. The legislative choice to leave the matter to the Supreme Court and such powers that it had in respect of costs, also extended to embrace powers other than s 76, including those that may inure in s 23 or which can be otherwise be described as inherent or implied powers. 32By contrast, the District Court had no equivalent to either s 76 or s 23 of the Supreme Court Act. The only part of the District Court Act 1973 (NSW) that applies to criminal proceedings is Part 4, and it says nothing about costs (see District Court Act, s 7). For that reason, it was no doubt necessary to expressly address that Court's power to award costs in appeals under Part 3 of the Review Act. 33Otherwise, I note that the Land and Environment Court Act 1979 (NSW) previously contained a provision equivalent to former s 76 of the Supreme Court Act, namely s 69 of the Land and Environment Court Act. However, the Land and Environment Court Act did not, and still does not, have any equivalent to s 23 of the Supreme Court Act. 34It follows that I am not persuaded that Cunningham (No 2) was clearly wrong. To the contrary, and with respect, I consider that Button J was correct to conclude that s 23 of the Supreme Court Act, or at least the inherent or implied powers that flow from the conferral of jurisdiction in those terms, enables this Court to award costs in respect of appeals under Part 5 of the Review Act. 35There remains to be considered the manner of the exercise of that power. This case is not affected by s 70. Instead, the Court retains a discretion which cannot be exercised arbitrarily or capriciously but is otherwise unconfined (see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [22] per Gaudron and Gummow JJ). There is no doubt that, in the exercise of that discretion, the success of one party is a significant factor (see Latoudis v Casey [1990] HCA 59; 170 CLR 534; McCarthy v New South Wales Racing Appeals Tribunal [2014] NSWSC 798 at [47]ff). 36It is unnecessary to describe the power further. The plaintiff was unsuccessful in his appeal. The only basis for intervention that was established was a legal error on part of the Local Court that the plaintiff caused (Bimson (No 1) at [86] ff). There was otherwise nothing identified which would disentitle the defendants to an order for costs. In these circumstances, there is no proper outcome other than to order the plaintiff to pay the defendant's costs of the proceedings. I so order.