DIRECTOR OF PUBLIC PROSECUTIONS v YALDA

We were informed today that reasons were given by the Magistrate, Mr Rustin, for his decision not to award costs. The operative order therefore was that the informations were dismissed. The Magistrate declined to make an order for costs in accordance with the statute.

An appeal was brought to the District Court in reliance upon s 122 of the Justices Act. It is clear, and counsel for the first Opponent has franklyacknowledged it, that the purpose of such an appeal was to seek to ventilate de novo the issue relating to costs. We have not considered in any detail whether an alternative means by way of a case stated was available to challenge the refusal to make an order for costs.

The claimant appeared by counsel before his Honour Judge Horler, QC, ADCJ, and took the point that s 122 of the Justices Act did not confer jurisdiction to entertain the appeal. His Honour recorded the competing submissions in a judgment given on 12 January 1998, said that he had jurisdiction, and indicated that because of the exigencies of heavy lists he would provide detailed reasons subsequently. I do not understand or read the judgment as indicating any present reasons and I am not aware that any subsequent reasons were provided. This summons was then brought, challenging the jurisdiction of the District Court to entertain the purported appeal.

Mr Conomos, who appears for the first Opponent - the second opponent submitting to the jurisdiction of the Court - has, in written submissions, indicated that s 122 is the provision relied upon and has advanced the submission that in declining to make an order for costs, the Magistrate was making an order, and in particular, was making an order which, in the opening words of s 122, 'otherwise punished' the claimant.

Reference is made to the decision in R v Recorder of Oxford, Ex parteBrasenose College (1970) 1 QB 109, but that is a case that deals with a very different situation and in my view does not cast any light upon what is an issue that does not appear to have been considered previously.

What is clear is that the District Court has no appellate jurisdiction with respect to the Local Court other than is given by statute. One then comes back to s 122. In my view it is just not possible to conjure out of a refusal to make an

order for costs a construction that the Magistrate was doing an act falling within s 122 and in particular 'otherwise punishing' the litigant before the Magistrate.

We were invited to interpret s 122 liberally and to provide a remedy for a lacuna. Section 122 has been around for a long time. It has been amended from time to time as deficiencies have been discovered. I do not think it would be part of the proper exercise of the judicial function to be as liberal as the invitation implies. The section clearly does not apply to this situation. In my view the claimant is entitled to the remedy sought and I would propose orders in accordance with paras 1, 3 and 4 of the summons. Do you seek costs Mr Cogswell?

MASON P: And would propose 1, 3, 4 and 5 of the summons.

Mason P. Does the Suitors" Fund apply? Has anybody considered that?

CONOMOS: No it does not apply your Honour but I will have a look at it and if it does we will mention the matter.

MASON P: We are now returning to the matter of Yalda.

CONOMOS: Does your Honour have the second volume of the Supreme Court practice there?

CONOMOS: Could I ask you to turn to 7228 which is on the bottom, or para 10,677 of the Suitors" Fund Act. s 6 says, 'If an appeal ... of the appeal.' And then the learned author at 7231 deals with the word appeal and he states, "This includes an ... 1 NSWLR 607)', and so forth.

So it seems your Honours that I was wrong in the view that I formed. The relief sought by the claimant in these proceedings was pursuant to that body of law now contained in the Supreme Court Act, predominantly around s 69 and it maybe that the subject procedure coming to the Court of Appeal as it has, that it's in the words of a nature of an appeal.

MASON P: Have you had a chance to look at that case to see how they got from point A to point B? It's not by virtue of some definition provision is it?

CONOMOS: No I didn't think so. Your Honour, there is a definition of the word appeal in that Act and it's not exhaustive. It uses the word 'includes'. It says, 'Includes any motion ... of an appeal.' I suppose that begs the question in many ways but I am indebted to your Honour, the President.

MASON P: I think what I am inclined to do is to say that we will note the application. I will have a look at those cases and if satisfied that it is appropriate in the light of those cases to make an order, an order will be made with reasons given. I will assume unless we do not hear further from you, by lunch time, that you have said all you want to say and you will have to be bound by what my further researches reveal.

CONOMOS: I wouldn't dissent from that and the first Opponent realises that.

MASON P: Mr Cogswell, there is nothing you wish to say?

URJ DIRECTOR OF PUBLIC PROSECUTIONS v YALDA (Mason P) 3

MASON P: We will also make an order that the opponent have a certificate under the Suitors" Fund Act. It would appear that the expression 'appeal' in s 6 of that Act has been construed as extending to an application for prerogative relief.

So in addition to the orders pronounced there will be an order that the first opponent have a certificate under the Suitors" Fund Act.

Solicitors for the Ist opponent: PAPANICOLAOU and ANTONIOU Solicitors for the 2nd opponent: SUBMITTING