DPP v Sher

Supreme Court of Victoria|2000-09-06|Before: Gillard J

APPEAL COSTS ACT 1998 - No jurisdiction to grant indemnity certificate in respect to appeal from Magistrates' Court in criminal matter.

On 23 June 2000 I delivered reasons and made orders in an appeal by the Director of Public Prosecutions from a decision made by a Magistrate dismissing two charges against Mr Jack Sher.

The DPP, representing the informant, appealed to this court pursuant to s.92 of the Magistrates' Court Act 1989.

I heard the appeal on 21 and 22 June this year and on the following day I upheld the appeal, set aside the orders made by the Magistrate and ordered that the two charges be remitted back to the Magistrates' Court for hearing. I also ordered that Mr Sher pay the appellant's costs of the appeal.

In accordance with the usual practice, Mr G. Hardy of counsel who appeared with Mr P. Billings for the respondent to the appeal sought a certificate under the Appeal Costs Act 1998.

A cursory examination of the Appeal Costs Act 1998 revealed that there appeared to be no power in this court, to grant a certificate of indemnity in respect to the costs in a criminal matter.

There was no doubt, under the Appeal Costs Act 1964 there was power and it was exercised often.

I stood the matter down to enable counsel to research the matter and I made contact with a representative from the Appeals Cost Fund. He indicated that there was no power under the Act to grant the certificate.

Upon resumption of the hearing I informed Mr Hardy of the position and informed him that I would make the orders in the appeal but grant liberty to the unsuccessful respondent to apply to me to seek a certificate under the Appeal Costs Act 1998 after counsel had had an opportunity to fully consider the issue.

Pursuant to that liberty to apply, Mr Hardy, through his instructing solicitor, has forwarded written submissions seeking the grant of a certificate.

In 1964 the Appeal Costs Fund Act was passed and it provided for the first time in this state a fund, which would indemnify the losing respondent to a successful appeal to this court from, inter alia, a Magistrates' Court decision (in those days, Courts of Petty Sessions) in respect to the costs of the appeal. It is clear from the provisions of the Act that an unsuccessful respondent to an appeal should not be out of pocket because of an error made in the court below.

The relevant provision was s.13(1) which provided -

"13(1) Where an appeal against a decision of a court - (a) to the Supreme Court; (b) to the High Court of Australia from a decision of the Supreme Court; (c) to the Queen in Council from a decision of the High Court of Australia given in an appeal from a decision of the Supreme Court; (d) to the Queen in Council from a decision of the Supreme Court - on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal." (Emphasis added).

"Appeal" was defined by s.2 to include "an order to review". When the Act was passed in 1964 the means of appealing from a decision of a Magistrate to the Supreme Court was by way of an order to review procedure pursuant to the Justices Act 1958.

Many orders granting indemnity certificates were made pursuant to that section in relation to successful appeals from a Magistrate to this court in both civil and criminal matters.

The certificate granted, entitled the respondent to the appeal to be paid out of the fund, an amount equal to the appellant's costs of the appeal he had to pay and also an amount equal to his costs.

The legislation ensured that unsuccessful respondents in appropriate cases would not be prejudiced by the wrong decision of, inter alia, a Magistrate. The grant of a certificate was a matter of discretion. The original Act was amended on occasions. The Government decided to review the Act.

As a result, a decision was made to repeal the Act and to re-enact it in an amended form.

The 1964 Act was repealed and replaced by the Appeal Costs Act 1998.

Section 1 set out the purpose of the new Act. It provided -

"1. The purpose of this Act is to re-enact, with amendments, the Appeal Costs Act 1964."

Section 45 repealed the Appeal Costs Act 1964.

The Act is divided into a number of parts. Part 2 concerns entitlement to payment in civil matters and Part 3 is concerned with entitlement in criminal matters.

Section 4 which is in Part 2 deals with an application by an unsuccessful respondent in an appeal to inter alia the trial division of this court in a civil proceeding.

The section is similar to section 13(1) of the old Act save that the success of the appeal is no longer confined to a question of law. In other words an unsuccessful respondent may obtain a certificate irrespective of what the basis is, for the successful appeal against him.

One compares that with the position concerning criminal proceedings.

There is no provision in Part 3 of the new Act which is similar to the old Section 13(1) or Section 4(1) of the new Act which deals with civil matters.

The right to apply for an indemnity certificate is indeed limited.

None of the sections which comprise Part 3 (Sections 14-18) give any entitlement to a certificate in the present appeal.

By way of comparison Section 13(1) of the old Act empowered this court to grant an indemnity certificate in an appeal in respect to both criminal and civil matters where the appeal succeeds on a question of law.

The comparison of the old and new Acts provides some support for the conclusion that it was the intention of Parliament that an indemnity certificate was no longer available in an appeal in a criminal matter from a magistrate to the Supreme Court.

Mr G. Hardy in his written submissions, submits that the court has power under s.19 of the new Act to grant an indemnity certificate.

Section 19 comprises the whole of Part 4 which is headed -

"PART 4 - INDEMNITY CERTIFICATES IN CASES STATED"

"19(1) If in any proceeding - (a) the case is stated for the opinion or determination of a superior court on a question of law; or (b) a question of law is reserved in the form of a special case for the opinion of a superior court - any party to that proceeding other than the party who is or represents the Crown, may apply to a superior court for, and the court may grant, an indemnity certificate in respect of the costs that the party has incurred in respect of the proceeding on the case stated."

Section 19(3) imposes a monetary cap on the amount payable pursuant to an indemnity certificate of $50,000 (or any other amount that is prescribed).

Section 3(1) defines "case stated" as meaning -

"(a) A case stated for the opinion or determination of a superior court on a question of law; or (b) a question of law reserved in the form of a special case for the opinion of a superior court."

Mr Hardy submits that the appeal given pursuant to s.92 of the Magistrates' Court Act, when read in the light of the procedure set out in Order 58 of the Rules of Court establishes that the appeal is a proceeding in which a case is stated for the opinion of the court on a question of law or is a proceeding where a question of law is reserved in the form of a special case for the opinion of a superior court.

The definition in Section 3(1) of "case stated" does not enlighten the reader of the Act what is meant by case stated for the opinion of a superior court or a question of law in the form of a special case for the opinion of a superior court.

However the definition of "appeal" also found in Section 3(1) of the Act clearly indicates that it is something different to an appeal.

The word is defined as including "an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated."

The only avenue available to a party to a criminal proceeding to appeal to this court is by way of Section 92 of the Magistrates' Court Act 1989. The appeal must be from a final order and must be on a question of law. - See Section 92(1).

There is nothing in the Magistrates' Court Act 1989 which gives any other right of appeal to this court from a Magistrates' decision in a criminal matter. Further there is no procedure in the Magistrates' Court to state a case or reserve a question of law in the form of a special case for the opinion of the court.

The Magistrates' Court Act 1989 makes it clear that what this court is dealing with is an appeal from a final order on a question of law.

The procedures known as a case stated for the opinion of a superior court on a question of law and a question of law reserved in the form of a special case for the opinion of a superior court have been known to the law for many years.

Legislation in the past has authorised courts to state facts in the form of a special case for the opinion of the Supreme Court. By way of example Sections 145 - 147 of the Justices' Act 1928.

A considerable body of case law grew up concerning stating a case. See for example R v Rigby [1956] HCA 38; (1956) 100 CLR 146, Bailey v Victorian Soccer Federation [1976] VicRp 2; (1976) VR 13 and R v Assange (1997) 2 VR 247.

There has been much discussion about the principles regulating the contents of cases stated and the fact that a court is not at liberty to draw inferences from the facts stated unless there is some statutory power to do so.

Sections 446-450A of the Crimes Act 1958 empower various courts to reserve questions of law to the Court of Appeal, and to state a case. In an appeal from a Magistrates' Court to the County Court in a criminal matter the court may in its discretion reserve a question of law for the Court of Appeal. - See Section 446(1) of the Crimes Act 1958.

In my opinion when Parliament passed the new Appeal Costs Act, it intended the procedures, of case stated and reservation of a question of law in the form of a special case, to mean the procedures which had been established through legislation many years ago and which are clearly different to an appeal. This conclusion is further reinforced by the definition of appeal in Section 3 of the Act.

There is legislation in this State, by way of example the Crimes Act, which empowers Courts to state a case or reserve a question of law for consideration of the Court of Appeal. Accordingly, Section 19 of the new Act would apply in those circumstances.

It follows that Section 19 is confined to those special procedures and does not relate to an appeal from a Magistrate to this court under Section 92 of the Magistrates' Court Act.

Further, it is clear that Parliament intended by reason of its failure to re enact the old Section 13(1) in the new Act in criminal matters to exclude the jurisdiction to grant a certificate to a respondent to an appeal in a criminal matter from the Magistrates' Court to this court.

Section 92 of the Magistrates' Court Act gives the right of an appeal to a party in a criminal proceeding in the Magistrates' Court to this court. The right is a right of appeal and it does not empower the Magistrates' Court to state a case or refer a question of law to this court.

Mr Hardy seeks to rely upon the provisions of the Rules of this Court to show that the appeal is in the form of a case stated or the reservation of a question of law in the form of a special case for the court.

In my opinion Section 19(1) of the Appeal Costs Act 1998 is concerned with the inferior court taking the step of stating a case or reserving a question of law and does not cover the situation where the Master on an appeal by reason of the procedure laid down identifies questions of law for consideration of the court.

What initiates the appeal before this court is the application to the Master pursuant to the rules. It could not be said that the Master in identifying the questions of law for consideration is stating a case for determination by a superior court. The Master is indeed an officer of this court and is not and could not be considered to be stating a case for the opinion of a superior court.

The determination of the issue comes down to what Parliament intended in passing the new Act and in my opinion it is clear based upon the history of the previous legislation and the wording of the new Act that parliament intended that the court should not have the power to grant a certificate in relation to an appeal from a Magistrate to this court in a criminal matter.

It follows that the application for a certificate under the Appeal Costs Act 1998 by the unsuccessful respondent Mr Jack Sher fails.

Appeal Costs Act 1964

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