Filipowski v Bak; Filipowski v Lucky Hill Shipping Panama SA

Criminal Procedure Act 1986 s 3, s 253, s 315, Sch 2 cl 26, cl 29 Justices Legislation Repeal and Amendment Act 2001 Land and Environment Court Act 1979 s 41, s 52 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 16 r 1, r 2, r 3 Legal Profession Act 1987 s 202 Legal Profession Regulation 2002 cl 55 Supreme Court Rules 1970 Pt 52, Pt 52A

CASES CITED: Environment Protection Authority v Truegrain Pty Limited [2003] NSWLEC 277

DATES OF HEARING: 10/08/2005 EX TEMPORE JUDGMENT DATE : 08/10/2005

PROSECUTOR A L Hill SOLICITORS Dibbs Barker Gosling LEGAL REPRESENTATIVES: DEFENDANTS G J Grogin SOLICITORS Ebsworth & Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Cowdroy J: On 1 September 2004, the Court delivered judgment in these proceedings and in each case ordered the defendant to pay the costs of the prosecutor as agreed or assessed. 2 The parties have been unable to agree upon the quantum of costs and accordingly the prosecutor has made application to the Supreme Court of New South Wales to have the costs referred to a costs assessor pursuant to the Legal Profession Act 1987 ("the LPA"). 3 The defendants oppose the proceedings being referred for assessment of costs to the Supreme Court. By notice of motion filed on 27 July 2005 the defendants seek orders referring the proceedings to the Registrar of this Court for assessment of costs.

Referral of costs under the Legal Profession Act 1987 4 The LPA makes provision for party/party costs to be assessed by the Manager, Costs Assessment or a delegate. Section 202 of the LPA relevantly provides:- (1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs

(2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division. (3) An application or direction under this section may not be made in relation to costs arising out of criminal proceedings in a court.

(4) Subsection (3) does not affect regulations made for the purposes of section 52 of the Land and Environment Court Act 1979 in connection with criminal proceedings in the Land and Environment Court.

5 Clause 55 of the Legal Profession Regulation 2002 sets out the procedure by which an application may be made and prescribes an approved form for the making of such application. The approved form indicates that application to the Manager, Costs Assessment is to be made through the Supreme Court.

Effect of repeal of section 52 of the Land and Environment Court Act

6 Section 52 of the Land and Environment Court Act 1979 ("the LEC Act") provided: (1) Where a Judge: (a) convicts any person of an offence punishable in the summary jurisdiction of the Court, (b) makes an order dismissing the charge for any such offence, or (c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence, the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2). (2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and defendant, or (b) if no such agreement can be reached, in accordance with the regulations.

(3) Regulations made for the purposes of this section may, without limitation, adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987 , with or without specified modifications.

(4) Any such regulation may: (a) confer or impose, or have the effect of conferring or imposing, jurisdiction or functions on any court or judicial officer, or (b) confer or impose, or have the effect of conferring or imposing, functions on any officer or costs assessor.

7 The Justices Legislation Repeal and Amendment Act 2001 repealed s 52 of the LEC Act and inserted a new s 41 into the LEC Act which states: Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court's jurisdiction.

8 Section 253 of the Criminal Procedure Act 1986 ("the CP Act") is contained in Pt 5 of Chapter 4 of the CP Act. Accordingly s 253 of the CP Act applies to proceedings in Class 5 of the Court's jurisdiction. Section 253 provides:- (1) A court may, in and by a conviction or order, order an accused person to pay to the prosecutor such costs as the court specifies or, if the conviction or order directs, as may be determined under subsection (2), if: (a) the court convicts the accused person of an offence, or (b) (Repealed) (c) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence. … (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. (3) Rules made for the purposes of this section may, without limitation, adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987 , with or without specified modifications.

(4) Any such rule may: (a) confer or impose, or have the effect of conferring or imposing, jurisdiction or functions on any court or judicial officer, or (b) confer or impose, or have the effect of conferring or imposing, functions on any officer or costs assessor.

9 Section 315 of the CP Act gives effect to Sch 2 of that Act which contains savings and transitional provisions. Part 7 of Sch 2 is entitled "Provisions consequent on enactment of Criminal Procedure Amendment (Justices and Local Courts) Act 2001 and Justices Legislation Repeal and Amendment Act 2001". Clause 29, contained in Part 7 of Sch 2, relevantly provides:- (1) Except as provided by this clause, a reference in any other Act or instrument: (a) to a repealed provision for which there is a corresponding provision in the amended Criminal Procedure Act, or to a renumbered provision, extends to the corresponding provision of the amended Criminal Procedure Act …

Clause 26 of Sch 2, also contained in Pt 7, relevantly includes the following definitions: "amended Criminal Procedure Act" means this Act, as amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. "repealed provision" means a provision of an Act that is repealed by one of the 2001 amending Acts. "2001 amending Acts" means the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 and the Justices Legislation Repeal and Amendment Act 2001. 10 Section 253 of the CP Act is in substantially the same terms as the repealed s 52 of the LEC Act. Accordingly s 253 of the CP Act is a "corresponding provision" to the repealed s 52 of the LEC Act. As a consequence, the reference in s 202(4) of the LPA to s 52 of the LEC Act is to be read as a reference to s 253 of the CP Act.

11 Subsection (2) of s 253 of the CP Act provides that:

(2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. In the present case no agreement has been reached and therefore subs (2)(b) of s 253 of the CP Act applies. 12 Section 3 of the CP Act defines "rules" as follows:- "rules" means rules made for the purposes of a court to which the relevant provision applies.

13 The words "a court to which the relevant provision applies" in s 3 of the CP Act could include a number of courts as the CP Act has application to numerous courts administering criminal jurisdiction. Each Court may have adopted its own set of rules for the purposes of s 253(2)(b) of the CP Act. Clearly each Court is to apply its own rules pertaining to costs in its criminal jurisdiction. If s 3 is not construed in this way a Court, in the assessment of costs in criminal matters, may be faced with a selection of differing rules made by different jurisdictions.

14 The Land and Environment Court has adopted rules concerning costs in its jurisdiction namely Pt 16 of the Land and Environment Court Rules 1996. The Court is satisfied that such rules constitute "the rules" for the purposes of s 253(2)(b) of the CP Act.

The effect of Pt 16 of the Land and Environment Court Rules

15 Part 16 of the Land and Environment Court Rules 1996 ("the LEC Rules") provides:- 1. This Part applies subject to the Legal Profession Act 1987 and the regulations made thereunder. 2. In case where taxation or assessment of costs is required of the Court the Registrar and Assistant Registrar are to be the taxing officers. 3. In assessing and allowing costs payable by or any party under an order of the Court, the Registrar or Assistant Registrar are to act in accordance with Pts 52 and 52A of the Supreme Court Rules 1970, so far as those Parts can apply.

16 Both Pt 52 and Pt 52A SCR relate to the assessment of costs.

17 Part 16 r 2 of the LEC Rules requires the taxation of costs to be undertaken by the Registrar or Assistant Registrar and Pt 16 r 3 provides the basis on which costs are to be assessed by the taxing officers of this Court.

18 The prosecutor submits that Pt 52 and Pt 52A are incorporated into the LEC Rules and relies upon the decision in Environment Protection Authority v Truegain Pty Limited [2003] NSWLEC 277.

19 Had it been the intention that Pts 52 and 52A were to be incorporated into the LEC Rules, it would have been a simple matter for the Pt 16 of the LEC Rules to so provide. Instead, Pt 16 merely provides that the Registrar or Assistant Registrar is to "act in accordance" with Pts 52 and 52A SCR. Such reference is insufficient to constitute an incorporation of Pts 52 and 52A SCR into the LEC Rules. Further, because Pts 52 and 52A SCR make provision for costs to be assessed other than by the Registrar or Assistant Registrar of this Court, they are inconsistent with Pt 16 r 2 of the LEC Rules. Such inconsistency reinforces the Court's finding that Pts 52 and 52A are not incorporated into Pt 16 of the LEC Rules.

20 In Truegrain, Talbot J said:- Part 16 of the Land and Environment Court Rules 1996 provides that in assessing and allowing costs the Court and the Registrar and Assistant Registrar as taxing officers are to act in accordance with Pt 52 and Pt 52A of the Supreme Court Rules 1970 ("the SC Rules") so far as those Parts can apply. The Court is satisfied that Pt 52A of the SC Rules are relevant rules for the purpose of s 253(2)(b). Those rules provide machinery for the determination of the quantum of the prosecutor's costs.

21 The exact basis on which his Honour considered that Pts 52 and 52A SCR were "relevant rules" is not apparent. Irrespective, for the reasons provided above, I respectfully depart from his Honour's conclusions that Pt 52 and 52A SCR are "rules" to be applied in this Court for the purposes of s 253 of the CP Act.

22 It follows that the rules which prevail for the assessment of costs in Class 5 proceedings in this Court are the LEC Rules and accordingly by Pt 16 r 2 the Registrar or Assistant Registrar is the appropriate taxing officer.

1. That costs awarded in favour of the prosecutor on 1 September 2004 in matter 50085 of 2002 be assessed by a Registrar of this Court.
2. That costs awarded in favour of the prosecutor on 1 September 2004 in matter 50086 of 2002 be assessed by a Registrar of this Court.
3. No order for the costs of this motion.

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