CAMPBELL v RICHARDSON & ANOR

Civil Procedure Act 2005 Crimes Act 1900 Crimes (Appeal and Review) Act 1991 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules

Goia v Regina [1988] FCA 302 CASES CITED : Regina v JS [2007] NSWCCA 309 Waterman v Gerling [2005] NSWSC 1111

PARTIES : MAURICE CAMPBELL v MARK RICHARDSON & ANOR

P: H Dhanji COUNSEL : 1D: Ms Edwards 2D: T W Thorpe

P: Voros Lawyers SOLICITORS : 1D: I V Knight 2D: S Kavanagh

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: The Director of Public Prosecutions, the second defendant in these proceedings, applies for an order for costs pursuant to s.54(3) of the Crimes (Appeal and Review) Act 2001 (the "Act"), the plaintiff having failed to obtain leave to appeal pursuant to s.53(3)(a) of the Act. 2 The plaintiff is charged with an offence under the provisions of s.61I of the Crimes Act 1900 (sexual intercourse without consent) and two counts pursuant to s.61L of the Crimes Act (assault with act of indecency). 3 The plaintiff in proceedings before the first defendant, a Magistrate, sought a direction pursuant to s.93 of the Criminal Procedure Act 1986 for the attendance of the complainant to give oral evidence. The first defendant refused to make a direction of that kind on 13 June 2007. 4 The plaintiff served on the second defendant an unsealed copy of a summons under cover of a letter dated 16 July 2007 seeking, inter alia, an order under s.53(3)(a) of the Act setting aside the first defendant's direction dismissing the plaintiff's application. 5 In August 2007, the second defendant advised the plaintiff that the summons did not comply with Part 51B Rule 5(7) of the Supreme Court Rules 1970 and that it had been filed out of time, contrary to Part 51B Rule 5(3) of those Rules. 6 On 10 September 2007, the plaintiff served on the second defendant a sealed copy of an Amended Summons on which an order was sought seeking an extension of time for the filing of the summons. In addition, an order was sought, in the alternative, pursuant to s.69 of the Supreme Court Act 1970 and further, in the alternative, a declaration pursuant to s.75 of the Supreme Court Act. 7 On 25 February 2008, I dismissed the amended summons and directed the parties to confer on a timetable to lodge written submissions on the question of costs. 8 The second defendant relied upon submissions dated 5 March 2008 and the plaintiff responded by way of submissions dated 26 March 2008.

Submissions 9 The second defendant relied upon the provisions of s.54(3) of the Act and as well as s.98 of the Civil Procedure Act 2005 and the provisions of Rule 42.1 of the Uniform Civil Procedure Rules 2005. 10 Both parties accepted that the Court has a broad discretion as to costs, whilst observing, of course, that the discretion is one to be exercised judicially. 11 The second defendant contended:-

• That it was for the plaintiff to establish a basis for any departure from the usual rule as to costs: Waterman v Gerling (Costs) [2005] NSWSC 1111.

• The Court was entitled to take into consideration the conduct of the plaintiff and, in this respect, its failure to ensure that the originating process complied with the relevant statutory rules. It was submitted that non-compliance by the plaintiff in this respect occasioned unnecessary delay and additional costs. That was a factor for the Court to take into account in the exercise of the discretion.

• That this was a case in which it would be fair and reasonable to make an order that the plaintiff pay the second defendant's costs of the proceedings. 12 The plaintiff, on the other hand, submitted that:-

• The present proceedings were criminal proceedings and that, accordingly, the "costs follow the event" rule was "not entirely appropriate" .

• It was for the second defendant to show that it is "just" for the second defendant to have costs awarded in its favour in criminal proceedings.

• That the second defendant had not demonstrated that it was just for a costs order to be made against the plaintiff referring, in particular, to the absence of any prejudice or disadvantage that was occasioned by the need for the filing of the amended summons and any delay.

• That the appeal proceedings "did not lack merit" . In this respect, reference was made to the criticism made as to the shortcomings in the analysis and expression of the reasons for decision by the first defendant as referred to in the judgment in these proceedings delivered on 22 February 2008 at [77].

• That it was relevant to take into account that the plaintiff had an alternative avenue of appeal to the Court of Criminal Appeal pursuant to s.5F of the Criminal Appeal Act 1912 . That section permitted, inter alia, an appeal against an interlocutory judgment, including committal proceedings, by leave and that in such proceedings no costs order is available: s.17 of the Criminal Appeal Act . The present appeal to a single judge of the Court, accordingly, involved a saving in costs by the plaintiff having brought the present proceedings under the Act.

• That on the basis of the presumption of innocence operating in favour of the plaintiff, he had "… a right to confront those that accuse him, upholding the presumption of innocence until and unless a jury verdict displaces that. The Plaintiff … in appealing against the decision of the Magistrate … attempted to confront his accusers" (paragraph 9 of the plaintiff's written submissions).

• The rule as to costs in criminal proceedings should inform the exercise of the discretion and that the principle, as stated in Goia v Regina [1988] FCA 302 at [12] should apply to the plaintiff, he being said to be a person of limited financial means. 13 It was submitted for the plaintiff, accordingly, that it was appropriate that there be no order for costs made.

Consideration 14 Although the plaintiff's amended summons sought relief in the alternative, I consider it is appropriate to consider this costs application in terms of s.54(3) of the Act rather than under the broad provisions in the Civil Procedure Act.

The award of costs under the Crimes (Appeal and Review) Act: s.54(3) 15 Section 53(3) of the Act provides, inter alia, for appeals by leave to this Court in respect of:- "(a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by a Local Court in relation to the person in summary proceedings" 16 Appeals may only be brought on a ground that involves a question of law alone: s.53(3). 17 Section 54 is concerned with the determination of applications for leave to appeal to the Supreme Court. By s.54(1), the Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. 18 Section 54(3) provides:- "If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just." 19 As Spigelman CJ observed in Regina v JS (No 2) [2007] NSWCCA 309 at [11], the Crimes (Appeal and Review) Act was originally only concerned with regulating appeals to, and review by, the Local Court, the District Court, the Land and Environment Court and single judges of the Supreme Court. Subsequent amendments added references to appeals to the Court of Criminal Appeal. The Act makes provision with respect to the question of costs in the case of appeals, inter alia, from the Local Court to this Court: s.54(3), s.58(3), s.59(2) and s.70. 20 As the Chief Justice stated in JS (supra) at [12], the detailed provisions in the Crimes (Appeal and Review) Act reflect the basic proposition that the power to award costs in a criminal case requires statutory authority. The Chief Justice observed at [13] that provisions empowering a court to award costs in a criminal case have been adopted in various contexts and that Courts have become more familiar with awarding costs in such cases. 21 In relation to s.54(3), the following matters are noted:-

(1) The provision does not by its express terms incorporate the "costs follow the event" principle where an application for leave to appeal under the Act is dismissed or leave to appeal is granted.

(2) In JS (supra), Spigelman CJ observed that the respondent in that case did not, correctly, suggest that there was any general rule in criminal cases that costs should follow the event and that a discretion, where it exists, to award costs must take into account the full range of relevant considerations.

(3) The power under s.54(3) is expressed in broad terms. The decision of the Court as to whether an order should be made and, if so, the terms of any order, are separate elements of the discretionary power. The power is to be exercised according to what the Court "thinks just" , that is, what, in the opinion or judgment of the Court, is "just" , having regard to the full range of relevant considerations.

(4) In determining whether it is "just" to make an order for costs, it is relevant, in my opinion, to bring to account whether the application raised or involved a question of law, the nature and importance of the question raised to the proceedings in the court below and the fact that the application was either unsuccessful or successful as the case may be. These are some, but not necessarily all the circumstances that I consider could bear upon the exercise of the discretion to order costs under the section. However, the broad terms of the section are not to be narrowed by any gloss being placed upon it. 22 It was argued in the present proceedings that the Magistrate erred in three respects which may be summarised as:-

(1) Failing to apply the test provided by s.93(1) of the Criminal Procedure Act in determining the issue of "special reasons" as to why the witness (the complainant) should, in the interests of justice, attend to give oral evidence in the committal proceedings.

(2) That the Magistrate erred in failing to give adequate reasons for refusing the application under s.93(1).

(3) That the Magistrate erred in failing to find the existence of special reasons as to why the witness (the complainant) should, in the interests of justice, attend to give oral evidence in the committal proceedings. 23 In the judgment dismissing the application for leave to appeal, reference was made to the basis or grounds on which the application had been argued before the Magistrate and to the fact that the reasons or purpose behind the application had not been identified. In consequence, there had been a failure to identify "special reasons" and any particular disadvantage that would result from the refusal to direct the complainant to attend to give evidence. 24 In the course of considering the matters raised on the application to appeal, reference was also made in the judgment delivered on 22 February 2008 to the absence of material establishing factual matters constituting "special reasons" and that this would have led the Magistrate to conclude that the contention that had been for the plaintiff, namely, that there was a real possibility that he would not be committed if the complainant was required to give evidence, was without foundation. I, accordingly, concluded that, considered in the context of the submissions made to the Magistrate, the basis of his decision was apparent. 25 Accordingly, there was no question of law raised by grounds summarised as 1 and 3 above. I have considered whether the shortcomings in analysis and expression of the Magistrate's decision is a factor that should weigh in the balance on the question of costs, in particular, whether those "shortcomings" were such as to influence the exercise of discretion under s.54(3). 26 Ground 2, summarised above, regarding adequacy of reasons, was considered in paragraph [76] to [82] of the judgment delivered on 22 February 2008. Whilst it was accepted that the Magistrate's reasons did not fully articulate the basis for his decision, it was ultimately determined that the issues that had been raised and argued before the Magistrate had been considered by him and, when considered in context of submissions that had been made, the basis for the decision was evident. 27 The application for leave to appeal was ultimately unsuccessful on all grounds. The costs principles that enable the Court to apportion costs against a successful litigant in relation to a distinct or severable issue or inquiry, accordingly does not arise in the present circumstances. The costs principles that apply in civil litigation, where a successful litigant has failed on a particular severable issue and the relevance thereto of the exercise of a court's discretion as to costs has recently been reviewed in BHP Billiton Iron Ore Pty Limited v National Competition Council (No 2) [2007] FCA 557 per Middleton J at [25] and [27]. 28 Whether or not the proceedings brought under s.53 of the Act in the present case can be considered to be "criminal proceedings" or not (a matter about which I do not express any concluded opinion), I have proceeded upon the basis that the proceedings in any event directly relate to or concern criminal proceedings. However, be that as it may, the Act has made specific provision empowering the Court to order costs in the proceedings such as the present and the application for costs must be determined in accordance with its provisions. 29 Ultimately, it was determined in the judgment of 22 February 2008 that no question of law had been raised by the application and it failed on all grounds. In determining whether and what order ought to be made as to costs, I have had regard to the way in which the application under s.91 of the Criminal Procedure Act was argued before the Magistrate, to the matters considered in the judgment of 22 February 2008 and to the particular matters relied upon in the plaintiff's submissions on the present application which are summarised above. I have concluded that, in all the circumstances, it is just that an order be made that the plaintiff pay the second defendant's costs of the application on a party/party basis, and, pursuant to s.54(3) of the Act, I so order.

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