DPP v Hore & Askwith

2. Certain matters relating to costs arising out of these two successful appeals were stood over for further submissions. I agree with the conclusions reached by Hansen, A.J.A. in the judgment to be delivered by him and with his conclusions for reaching them.

7. I have had the benefit of reading the reasons for judgment prepared by Hansen, A.J.A. in relation to the matters concerning costs arising out of these two appeals. I agree with the conclusions reached by his Honour, and with his reasons.

12. On 4 November 2004, this Court allowed an appeal brought by the Director of Public Prosecutions (on behalf of two police informants) against the judgment of a Trial Division judge who had dismissed with costs a Director's appeal, brought pursuant to s.92(1) of the Magistrates' Court Act 1989, from a magistrate's decision to dismiss charges under s.49(1)(f) of the Road Safety Act 1986 against two defendants. Although there were in fact two separate appeals, one in respect of each defendant, the cases raised the same point thus enabling the appeals to be heard together, as they had been in the Trial Division. This Court ordered in each case that the appeal be allowed with costs, that the orders of the learned Trial Division judge be set aside, that the appeal to the Trial Division be allowed with costs, that the order of the magistrate be set aside and the matter be remitted for rehearing and determination according to law.[1]

15. At the time, counsel for the respondent opposed the orders for costs on the basis that the case raised a matter of public importance. He did not submit that the Court lacked power to order costs. The Court considered that submission but determined that in the circumstances it was appropriate that the respondent pay the costs of the appeal to this Court and the Trial Division. Then, the matter of an indemnity certificate under the Appeal Costs Act 1998 ("the Act") was raised. Counsel for the respondent stated that on the authorities he considered that the Court could not grant a certificate. In order that counsel might have further time to consider the matter of the Court's power to grant a certificate the Court gave him leave to provide a written submission on that question.

18. Counsel provided an undated written submission on 24 November 2004.

21. The respondent's written submission advances two main arguments. First, that the respondent is entitled to an indemnity certificate because the appeal was a "civil proceeding" within the meaning of the Act. Secondly, that the costs orders were made without jurisdiction and, being unauthenticated, should be "recalled and dissolved." In fact, at the request of counsel for the respondent, the orders have not been authenticated. Doubtless counsel made that request because he wanted the Court to reconsider its decision on costs in light of the new argument he has raised on that matter in the written submission, and to which I refer below. In summary then, the first argument is properly raised pursuant to the leave granted, the second argument is raised without leave, contends that the Court lacked power to order costs and asks the Court to reconsider the matter of costs. The appellant has not provided an answering submission.

25. Section 4(1)(b) of the Act provides, relevantly, that an unsuccessful respondent to an appeal to this Court against the decision of a court in a "civil proceeding" may apply to the Court for, and the Court may grant, an indemnity certificate in respect of costs. However, unlike s.13(1) of the now-repealed Appeal Costs Act 1964, the current Act does not authorise the Court to grant a certificate to an unsuccessful respondent to an appeal from a decision in a criminal proceeding of the type under consideration in the present case. See Director of Public Prosecutions v Greelish (No. 2)[2] and Director of Public Prosecutions v Sher (No. 2).[3]

28. In his further written submission, counsel conceded that Greelish and Sher stood between his client and an indemnity certificate. That is consistent with and explains his position on the matter of a certificate on 4 November 2004. In his written submission, counsel stated that a certificate could only be granted if the present appeal were characterised as a "civil proceeding" within the meaning of s.4(1)(b) of the Act. To this end, he submitted that the present appeal was in fact a civil proceeding. I do not accept this argument. It is in direct conflict with Greelish, a decision of the Court of Appeal, which, with respect, I consider was correctly decided.

31. In Greelish a magistrate had dismissed a charge against the respondent under s.49(1)(e) of the Road Safety Act 1986. The Director's appeal to the Trial Division under s.92(1) of the Magistrates' Court Act 1989 was dismissed with costs. On further appeal, this Court allowed the Director's appeal with costs, set aside the order of the Trial Division and in lieu thereof allowed the appeal to the Trial Division with costs against the respondent. The respondent applied for an indemnity certificate under the present Act. In refusing the certificate, Phillips, J.A. stated the relevant question to be whether or not the appeal to the Court of Appeal was a "civil proceeding" which in turn depended on the proper characterisation of the appeal to the Trial Division from the Magistrates' Court.[4]

"...on what basis can the proceeding by way of appeal under s 92 of the Magistrates' Court Act be characterised as a "civil proceeding" within s 4? Obviously enough, in the Magistrates' Court the proceeding instituted and conducted against the respondent for the offence (and hence the proceeding underlying the appeal to the Trial Division) was a criminal proceeding. In 1912 in R v Watt; Ex parte Slade [1912] VicLawRp 43; [1912] VLR 225, Cussen J said that an application in the Supreme Court for habeas corpus was to be characterised or not as a "criminal cause or matter" according to the underlying subject matter, and so too in relation to applications for mandamus, certiorari and the like. More recently, in Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745 the Full Court held, applying Watt, that an application for certiorari in relation to a trial on presentment was a "criminal proceeding". On the basis of that reasoning, the appeal to the Trial Division under s 92 of the Magistrates' Court Act was a criminal proceeding because it was an appeal from the exercise of jurisdiction by the magistrate to deal summarily with an offence."

38. His Honour found further support for this view in the construction of the relevant provisions of the Magistrates' Court Act 1989. He noted that s.92 is found under Part 4 (entitled "Warrants and Criminal Proceedings") and that the section authorises an appeal to the Supreme Court only by a "party to a criminal proceeding" with the exception that an aggrieved informant's appeal must be brought in the name of the Director of Public Prosecutions, who brings the proceeding on the informant's behalf. See s.92(2) of the Magistrates' Court Act 1989. Similarly, s.109 of the Magistrates' Court Act 1989 gives a right of appeal on a question of law to parties to a "civil proceeding" in the Magistrates' Court. Whilst noting that the procedure governing appeals under both s.92 and s.109 is that found in O 58 of the Supreme Court (General Civil Procedure) Rules 1996, his Honour said that "it is surely only a matter of convenience that the procedures for both are aligned... the characterisation otherwise of the one as criminal and the other as civil, being established by the Act under which both rights of appeal are created, is not affected."[5]

41. In his written submission, counsel contends that an appeal under s.92 of the Magistrates' Court Act 1989 is a form of "statutory certiorari". He also refers to the statement of Phillips, J.A. in Perkins v County Court of Victoria[6] that "...the characterisation of a `criminal cause or matter' came to depend not just upon the type of application giving rise directly to the order from which it was sought to appeal, but also upon the `underlying proceeding' which had led to the application." However, neither this passage nor the unhelpful expression "statutory certiorari" assists the respondent. Courts have long applied a practical test to determine whether a proceeding is criminal or civil. It is clear that the "underlying proceeding" in this case was the criminal proceeding brought against each respondent in the Magistrates' Court. That is precisely what Greelish[7] decided and there is no reason to doubt its correctness.

44. As the appeal to this Court was not a "civil proceeding" within the meaning of the Act, it follows that this Court has no power to grant a certificate. The application for a certificate must be refused.

Did this Court have jurisdiction to make the costs order?

48. In my opinion the Court may decline to deal with this argument. It is beyond the scope of the leave granted to counsel to provide a further submission. Counsel for the respondent is seeking to re-argue the question of costs by raising an argument that he could have made, but did not, in opposing costs on 4 November 2004. Moreover the argument that there is no power to award costs is contrary to the acceptation by counsel on 4 November 2004 that the Court did have power to order costs.

51. In any case, I am not persuaded that this Court lacked jurisdiction to make both costs orders. On the contrary, there is a well established practice to make orders for costs on appeals of the present type. See Tran v Magistrates' Court of Victoria[8] and also Perkins v County Court of Victoria.[9] I also note the statement of the President in DPP v Korybutiak[10] where, following a successful appeal by the Director against a Trial Division judge's decision to dismiss a s.92 Director's appeal from a magistrate's decision, his Honour gave costs to the Director "in the normal fashion".

54. In my view the Court has the power, and indeed is accustomed, to make orders for costs on appeals of the present type. Accordingly, the respondent's submission should be rejected and the orders for costs should stand.

[1] [2004] VSCA 192

[2] [2002] VSCA 68; (2002) 5 VR 349

[3] [2000] VSC 350; (2000) 116 A Crim R 458

[4] [2002] VSCA 68; (2002) 5 VR 349 at 349-50 [2] per Phillips, J.A.

[6] (2002) 2 VR 246 at 253 [15].

[7] [2002] VSCA 68; (2002) 5 VR 349

[8] [1998] 4 VR 294 at 299 per Batt, J.A. (speaking for the Court which also comprised Kenny and Buchanan, JJ.A.).

[9] (2002) 2 VR 246 at 261 [28] per Phillips, J.A. (with whom Charles and Buchanan, JJ.A. agreed).

[10] [2004] VSCA 29 at [26]