Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Appeal costs fund - Definitions - "Appeal" - Application to quash decision of justice to issue witness summons.

Appeal Costs Fund Act 1968 (Tas), s2.

Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41, referred to.

Judgment Number: [2009] TASSC 57

CIVIL AVIATION SAFETY AUTHORITY v ROGER ILLINGWORTH

1 This is an application for an order granting an indemnity certificate under the Appeal Costs Fund Act 1968, s8.

2 Mr Edwards and Mr Sarunic ("the accused") have been indicted on charges under the Civil Aviation Act 1988 (Cth). Although they were committed for trial some time ago, arrangements were made for a justice of the peace to take the depositions of further witnesses pursuant to the Justices Act 1959, s69A, as continued in force by s147 of that Act. Those proceedings were listed to commence on 27 July 2009. Earlier in July, the solicitors for the accused procured the issue of two witness summonses by a justice of the peace. They were addressed to the Commonwealth Director of Public Prosecutions ("the DPP") and the proper officer of the Civil Aviation Safety Authority ("CASA"). They commanded the production of a quantity of documents. The DPP and CASA applied for orders quashing the decisions to issue the witness summonses, and orders setting the summonses aside. I dealt with those applications as matters of urgency. The applicants and the accused were represented by counsel but the respondent had not been served. I took the view that, in the context of s69A proceedings, the Justices Act, s44, did not empower a justice to issue a witness summons for the production of documents by a custodian of documents who was not otherwise a witness or potential witness in the proceedings in his or her own right. I made orders quashing the determinations, setting aside the witness summonses, and ordering the accused to pay CASA's costs. As a result of the costs order, counsel for the accused applied for an indemnity certificate under the Appeal Costs Fund Act.

3 Under s8(1)(a)(ii) of that Act, an indemnity certificate may be granted where an "appeal" to the Supreme Court from a decision of a "person from whose decision there is an appeal to a superior court" succeeds.

4 The word "appeal" is defined in s2 of that Act as follows:

"'appeal' includes a motion to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial, and any other proceeding in the nature of an appeal".

5 The only part of that definition that could possibly apply in this case is that referring to "any other proceeding in the nature of an appeal". Was CASA's application a "proceeding in the nature of an appeal"? When a justice of the peace decides to issue a witness summons, is he or she a "person from whose decision there is an appeal to a superior court", bearing in mind that any proceeding in the nature of an appeal amounts to an appeal?

6 In Ex parte Qantas Airways Limited, re Horsington [1969] 1 NSWR 788, the New South Wales Court of Appeal considered the situation where a justice has the power to receive a complaint and issue a summons initiating proceedings against a defendant. It was held that in that situation a justice may refuse to issue the summons, and has a discretion upon which a judicial mind must be brought to bear.

7 In Holland v Sammon (1972) 4 SASR 1 at 3, Walters J considered the position of a justice who was asked to issue a witness summons under legislation similar to ours, and said the following:

"But the power to issue a summons under the section should not be exercised lightly. In issuing such a summons, a Justice of the Peace is not acting administratively, but is performing a judicial function. I think, therefore, that before signing the summons, he should take reasonable precautions to satisfy himself, by statements made by the party applying for the summons, that the evidence intended to be adduced of the proposed witness has some relevance and probative value in relation to the issues which the court will be called upon to determine."

8 The relief sought by CASA was an order in the nature of certiorari pursuant to the Supreme Court Rules 2000, r627(2)(a). Although the Judicial Review Act 2000, s43, now prohibits the issue of a writ of certiorari, r627(2)(a) has survived the commencement of that legislation: Tasman Quest Pty Ltd v Evans [2003] TASSC 110; (2003) 13 Tas R 16 at 21.

9 Proceedings for writs of certiorari, mandamus and habeas corpus have been held to be proceedings "in the nature of an appeal" within the meaning of the definition of "appeal" in s2: R v Watling; ex parte Pearson (1998) 7 Tas R 404; R v Director of Corrective Services; ex parte Forrest [2001] TASSC 21; (2001) 10 Tas R 141.

10 The Acts Interpretation Act, s8A(1), requires that, in the interpretation of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object. The purpose of the Appeal Costs Fund Act was explained by Burbury CJ in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41 at 43, as follows:

"The general purpose of the statute no doubt is to cast the burden of legal costs incurred by an unsuccessful respondent to an appeal onto litigants generally (through the statutory levies made on their originating process) where through no fault of such a respondent the lower court, in which he succeeded, has gone wrong in law and that error is corrected on appeal. The legislature has apparently adopted the view that this risk of litigation (ie the risk of a judge or magistrate erring in law) being a risk common to all litigants, it is just that the cost of correcting such errors in law (so far as the fund extends) should be borne by all litigants."

The Act has subsequently been amended so that an indemnity certificate is available whenever an appeal succeeds, whether as a result of an error in law or otherwise.

11 I think it is clear that Parliament intended the legislation to apply when a wrong adjudicative decision has been made in contested legal proceedings and corrected as the result of an appeal or similar proceeding. However a decision by a justice of the peace to issue a witness summons is not an adjudicative decision that determines any sort of contested proceeding. I therefore think that the costs of any sort of application to quash such a decision, or to set aside a witness summons, fall outside the scope of the intended operation of the Appeal Costs Fund Act. In other words, the application by CASA was not a proceeding in the nature of an appeal, and therefore does not fall within the definition of "appeal" in s2.

12 If I am wrong as to that, and if I do have a discretion to grant an indemnity certificate to the accused in respect of CASA's costs, there are good reasons why I should not take that course. This is a case in which a citizen holding office as a justice of the peace was presented with a six-page witness summons that would appear to anyone to be the product of a lot of work by someone with a high degree of legal professional skill. Justices of the peace are usually lay people, and they cannot reasonably be expected to identify irregularities in impressive-looking legal documents like the summons in question. There was nothing on the face of it to suggest that it related to s69A proceedings, or to suggest that it was irregular. The solicitors for the accused were in a better position to determine whether a justice of the peace would have the power to issue the summons than most justices of the peace would be. I therefore think the legal advisors of the accused should be regarded as bearing a far greater degree of responsibility for the irregular issue of the witness summons than the justice who issued it. Another relevant factor is that the solicitors for the accused could have sought copies of the documents to which the summons relates by making a freedom of information request, or by requesting them from the prosecutor.

13 For these reasons, the application for an indemnity certificate is refused.