DPP v Norman

2. Judgment was handed down by me in this matter on 3 October 2003 whilst I was sitting on circuit at Warrnambool.[1]

5. The solicitor for the respondent, Mr Sharkey, attended the handing down of the judgment, but neither counsel briefed by him in the proceeding, nor any representative of the appellant was present at the time the judgment was delivered. I might add that this was not by any reason of discourtesy on the part of either but was in the interests of expediency in having the decision handed down as soon as possible. However, in the circumstances, I reserved the question of costs and invited the parties to submit in writing such submissions as they considered appropriate.

8. By letter dated 29 October 2003, the Office of Public Prosecutions submits that there is no reason why I should depart from the "usual practice" that the costs of the successful party be paid by the other party. Accordingly, the OPP seeks, on behalf of the appellant, that the respondent pay the costs of the appeal.

11. By a submission in writing forwarded to my Associate by letter dated 13 November 2003, the respondent submits that no order for costs should be made against him, and furthermore, it is submitted that I should make a recommendation that an ex gratia payment be made to the respondent by the Office of the Attorney-General. The appellant does not seek to respond to the submissions of the respondent.

14. The proceeding before me was an appeal brought under s.92 of the Magistrates' Court Act 1989 on a question of law from a final order of a Magistrate. The Magistrate had found a charge under s.49(1)(f) of the Road Safety Act 1996 proved but without convicting the respondent, had proceeded to fine him and cancel his licence for a period of six months. The basis of the successful appeal was that the Magistrate was in error as a matter of law in imposing such a penalty in circumstances where the offence committed by the respondent was a "subsequent offence" within the meaning of the Road Safety Act.

17. The first submission by the respondent as to costs, is that the appellant could have filed an appeal in the County Court against the sentencing order of the Magistrate pursuant to s.84(1) of the Magistrates' Court Act.

20. That submission is true, but no doubt the reason that the appellant chose to proceed in the Supreme Court was that the order made by the Magistrate raised a question of law which required to be determined. Indeed, on the appeal, counsel for the respondent informed me that a number of magistrates, and at least one County Court judge, had made orders similar to the order which was the subject of this appeal. Certainly it is not surprising in all the circumstances that the appeal was brought to the Supreme Court on a question of law under s.92 of the Magistrates' Court Act, rather than by way of a de novo appeal to the County Court under s.84(1) of the Magistrates' Court Act. Furthermore, in the circumstances where a question of law was raised by the order of the Magistrate it is inarguable, in my view, that the course taken by the appellant was the proper course. However, it is further submitted on behalf of the respondent that if the matter had proceeded by way of de novo appeal in the County Court, the unsuccessful respondent would have been entitled to make application for the grant of an indemnity certificate under the Appeals Costs Act 1998. That this is so, is apparent from a reading of s.15(1) of that Act, which specifically provides that if the Crown or the DPP appeals from an order of a magistrate under s.84 of the Magistrates' Court Act, the court may grant an indemnity certificate in respect of the respondent's costs of that appeal. However, neither that section of the Act nor any other section of the Act makes similar provision in respect of appeal to this court under s.92 of the Magistrates' Court Act.

23. It should be observed that s.19 of the Appeals Cost Act 1998 provides that an indemnity certificate may be granted by a superior court on a question of law if "a case is stated for the opinion or determination" of that court or if a question of law "is reserved in the form of a special case for the opinion of a superior court". However it is clear that that section does not permit the grant of an indemnity certificate in an appeal brought by the DPP under s.92 of the Magistrates' Court Act. An appeal under that section is a process of review of the correctness in law of a final order or judgment of the Magistrates' Court. A case stated is a process that enables a court or a tribunal in the course of proceedings before it to submit to a superior court for its opinion a question of law which arises from the facts stated in the case.[2] Likewise the reservation of a question of law in the form of a special case is quite different from an appeal.[3]

26. As the respondent submits, the previous Appeals Costs Act 1964 contained express power pursuant to s.13(1) thereof for the Supreme Court to grant an indemnity certificate to a respondent where an appeal against the decision of a court was successfully made to the Supreme Court on a question of law.

29. I have read the parliamentary debates to determine if any reason can be found to explain why the Appeals Costs Act 1998 makes no provision for a certificate to be granted to an unsuccessful respondent when an appeal is brought to this court on a question of law pursuant to s.92 of the Magistrates' Court Act. Unfortunately, such debates provide no explanation for why this should be so. Indeed, in her second reading speech the then Attorney-General said that the Appeals Costs Bill 1998 repealed the Appeals Costs Act 1964 and "replaces it with a new, simpler and clearer Act. In doing so, the Bill implements the government's justice policy objective of reforming the justice system so that it is accessible and efficient." It was said further that since its enactment in 1964 the previous Act had undergone a succession of amendments but had never been comprehensively reviewed as a consequence of which "The coherence of the Act has been undermined and anomalies have arisen". The Attorney-General said further that "The principal objective of this Bill is to address those inconsistencies and anachronisms to ensure that the underlying policies of the appeal costs scheme are properly reflected in the legislation. The basis for granting an indemnity certificate has been made simpler and more consistent under the Bill. The Bill provides that the decision to grant or refuse a certificate following a successful appeal is in the discretion of the court."

32. Regrettably, the Act does not give the court any discretion in the circumstances now before me. Whether or not the omission of the power to grant an indemnity certificate to the unsuccessful respondent in an appeal under s.92 of the Magistrates' Court Act on a question of law was a deliberate omission is most unclear. However, there does not appear to be any rationale for the omission. Indeed, it could well be argued that there is a stronger basis to grant the Supreme Court the discretion to award a certificate for indemnity for costs under the Appeals Costs Act in circumstances where the respondent is the respondent to a successful appeal on a matter of law, than where the respondent is the respondent to a successful appeal to the County Court. Section 85 of the Magistrates' Court Act provides that any appeal to the County Court under s.84 of that Act is to be conducted as a re-hearing. Thus the evidence placed before the Court could be quite different from that before the Magistrate on the original appeal. The arguments put before the County Court could be entirely different from those put before the Magistrate.

35. By contrast, decisions upon questions of law which are brought to this court pursuant to s.92 of the Magistrates' Court Act are binding upon lower courts and regularly involve matters of important public principle. Appeals brought to the County Court under s.84 of the Magistrates' Court Act rarely involve such matters. Accordingly, in the circumstances before me it is regrettable that I do not have the power to order that the respondent receive a certificate under the Appeals Costs Act 1998.

38. Taking into account all of the circumstances before me I do not think it is appropriate to order that the respondent pay the costs of the appeal brought by the Office of Public Prosecutions on behalf of the informant in this matter. It is apparent that the question of interpretation which arose in this proceeding was a matter of importance which required determination by this Court. The appropriate exercise of my discretion is to make no order as to costs.

41. I have been asked by the respondent to make a recommendation that the Attorney-General make an ex gratia payment in relation to this matter. I do not consider it is appropriate for me to make such a recommendation although the respondent is no doubt free to make such representations as he considers appropriate to the Attorney-General. That said, however, it does appear to me that consideration should be given to the question of whether the Appeals Costs Fund Act 1998 should be amended so as to ensure that in appropriate cases citizens who suffer financial loss by reason of a successful appeal brought to this court by the DPP on a question of law, should be entitled to compensation for the costs of the appeal.

[1] DPP v Norman [2003] VSC 369.

[2] Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VicRp 68; [1990] VR 780.

[3] See 0.34r2of the former R.S.C. and Duncan v Lambeth Borough Council [1968] 1QB 747.