Garde v Dowd

Court of Appeal (NSW)|2011-05-05|Before: Giles JA, McColl JA, Basten JA, Coll JA

Judgment 1GILES JA : I agree with Basten JA. 2McCOLL JA : I agree with Basten JA's reasons and the orders his Honour proposes. 3BASTEN JA : Mr Mark Dowd took proceedings under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the 2007 Act") for protective orders against Mr Paul Garde ("the applicant"). Mr Dowd ("the respondent") was successful in the Local Court and, following an appeal, in the District Court. The substantive orders are not the subject of the present proceedings. The only order which is challenged, pursuant to judicial review proceedings in this Court, is an order made in the Local Court that the applicant pay the respondent's costs "as agreed or assessed". The basis of the challenge is that the magistrate in the Local Court, having power to order payment of costs, could only do so by way of an order specifying the amount of costs payable. 4The applicant's argument, as originally set out in a statement under Uniform Civil Procedure Rules 2005 (NSW), r 6.12A, and in the original written submissions, failed to address a critical statutory provision. Relief was sought both in respect of the order of the Local Court and the subsequent order of the District Court confirming the order of the Local Court. That was based upon a misapprehension as to the law. Further, there were significant discretionary considerations militating against the grant of any relief, which were not addressed in the initiating documentation. These included uncertainty as to how much was at stake in monetary terms and why the argument presented as to the powers of the magistrate had not been raised before the magistrate, nor in the District Court, nor before the matter was referred for costs assessment, all those stages being completed before proceedings were commenced in this Court.

Procedural background 5The scope of the jurisdiction of this Court depends upon a proper understanding of the statutory scheme governing the proceedings below. 6The 2007 Act makes provision for orders imposing prohibitions or restrictions on a defendant where a complainant apprehends violence directed against him or her. The Act extends beyond domestic violence to cover apprehended personal violence involving persons not in a domestic relationship. The orders sought (and made) in the present case fell within the latter category and were "apprehended personal violence orders". An appeal from orders (including a costs order) made in the Local Court may be brought under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act ") to the District Court: 2007 Act, s 84(2). Such an appeal may be made in the same way as an appeal against conviction in the Local Court: s 84(3)(a). The Appeal and Review Act applies to the appeal: s 84(4). That provision would seem to engage s 18 of the Appeal and Review Act , which provides that an appeal against conviction "is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings", subject to the possibility of fresh evidence being given and witnesses being recalled in particular circumstances. 7The alternative possibility is that s 17, rather than s 18, is engaged, because the term "sentence" is defined in the Appeal and Review Act to mean, among other things, "any order for costs made by the Local Court against a person in connection with summary proceedings taken against the person"; see s 3(1), sentence, (e). Thus the appeal is "made" in the same way as an appeal against conviction, but because it is restricted to a costs order and a costs order is treated as a "sentence", the appeal must be dealt with in the District Court as an appeal against sentence. Pursuant to s 17 of the Appeal and Review Act , the appeal is still "by way of a rehearing", with an opportunity to call fresh evidence. 8If treated as a conviction appeal, the powers to be exercised by the District Court in determining such an appeal includes the power to set aside the orders made below or to dismiss the appeal: Appeal and Review Act , s 20(1). If treated as an appeal against sentence, the powers may be broader because they include the power to vary the sentence (including the costs order): s 20(2)(b). More generally, Part 6 of the Appeal and Review Act provides certain provisions common to all appeals and envisages that an appeal court may order that a conviction is "confirmed": s 68(1). No doubt it is necessary to make some adjustment to the operation of provisions in the Appeal and Review Act relating to appeals against conviction, in order to accommodate appeals from apprehended violence orders, although the regulations under the Appeal and Review Act anticipated by s 84(4) of the 2007 Act have not been made. Nothing turns on these matters in this case, as the Court is concerned only with the power to make an unquantified costs order. 9The exercise of jurisdiction under the Appeal and Review Act falls within the criminal jurisdiction of the District Court. In respect of that jurisdiction, s 176 of the District Court Act 1973 (NSW) provides: " 176 No proceedings in the nature of certiorari No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. 10It is accepted that the effect of this provision is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: see, eg, Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [133]-[134]. No greater intrusion on the powers of this Court would be constitutionally valid: Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 at [54]-[55]. Nor does the applicant in the present case seek to rely upon error of law extending beyond jurisdictional error. 11In this context it is relevant that the applicant seeks relief in respect of the orders of the Local Court. Such orders would be inappropriate. In Wishart v Fraser [1941] HCA 8; 64 CLR 470, the High Court held that it was not open to a defendant to challenge the conviction and orders of a magistrate where the conviction had been affirmed by a Court of Quarter Sessions (the predecessor to the District Court). As explained by Starke J in that case (at 478): "If the Court of Quarter Sessions had reversed the decision of the stipendiary magistrate, its judgment would have held 'the field to the exclusion' of the conviction by the stipendiary magistrate. And when Quarter Sessions affirmed the conviction, its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. ... That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary." 12This Court has applied that principle in circumstances where a convicted defendant appealed to the District Court and to the Supreme Court, in the latter seeking statutory prohibition, and sought to withdraw the proceedings in the District Court in order to allow the application in the Supreme Court to be determined. Although there was no hearing in the District Court, and the appeals were dismissed by consent, the orders dismissing the appeals and confirming the convictions and orders in the Local Court, were held to preclude any proceedings in the Supreme Court challenging the orders of the Local Court: Blacker v Parnell [1978] 1 NSWLR 616. 13In those circumstances, any attempt to challenge the orders as to costs made in the Local Court would be incompetent. It is therefore not necessary to consider the scope of any proceedings by way of judicial review in respect of the Local Court orders, unless and until the District Court order is set aside. 14That does not mean that the order made in the Local Court is irrelevant: if the order exceeded the jurisdiction of that Court, a challenge to the order made by the District Court, on the grounds of the same jurisdictional error, would be available. The question in the present case, is whether it should succeed.

Power to make costs orders 15The statutory scheme with respect to costs orders in relation to proceedings under the 2007 Act is undesirably complex. That Act itself provides: " 99 Costs (1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section. (2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 ." 16Other aspects of s 99 are not presently relevant: it is, however, necessary to go to the provisions of the Criminal Procedure Act 1986 (NSW) to which reference is made in that section. The provision of the Criminal Procedure Act , relevant for present purposes, reads as follows: " 215 When costs may be awarded to prosecutor (1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person: (a) such professional costs as the court considers just and reasonable, (b) court costs .... (2) The amount that may be awarded under subsection (1)(b) for court costs is: (a) the filing fee for a court attendance notice, or (b) such other amount as the court considers to be just and reasonable in the circumstances of the case. (3) The order must specify the amount of costs payable." 17At the centre of the applicant's case was the contention that s 215(3) rendered it necessary for any valid costs order that the amount of the costs be specified. Accordingly, so it was contended, an order for costs "as agreed or assessed" was invalid. 18The statutory chain does not, however, end there. It is necessary to consider the operation of s 353(4) of the Legal Profession Act 2004 (NSW), which was amended by Schedule 2 of the 2007 Act to read: " 353 Application for assessment of party/party costs (1) A person who has paid or is liable to pay ... 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. ... (4) An application or direction under this section may be made in relation to an application for and the issue of an apprehended violence order within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 ." 19Section 353 does not, in terms, authorise the Court determining proceedings under the 2007 Act to make an order for the payment of an unspecified amount of costs. Nevertheless, it assumes that such orders can be made. If the applicant is correct, they cannot, because they are precluded by s 215(3) of the Criminal Procedure Act . There are two possible solutions of this dilemma. First, it may be inferred that s 353(4) was made under a misapprehension as to the costs regime applicable under the 2007 Act and has no operation. The alternative solution is to read s 99 of the 2007 Act as picking up the terms of s 215 (and other provisions in the Criminal Procedure Act that may be relevant in a particular case) and applying them in relation to apprehended violence order proceedings, only so far as they are otherwise applicable and not inconsistent with provisions of the 2007 Act. On the latter approach, s 215(3) is not picked up because to do so would be inconsistent with the terms of the Legal Profession Act , as amended by the 2007 Act. Nor, it may be added, are those aspects of s 215(1) picked up which duplicate the power-conferring function of s 99(1). The provision which is central to the determination of costs (as referred to in s 99(2)) must be s 215(3), because it provides that the court must specify the amount of the costs. 20The applicant proposes a third approach, which involves giving limited operation to ss 215 and 353(4). Section 215(1), it was submitted, does not operate with respect to uncontested proceedings because it confers a power to make an order "at the end of summary proceedings". By contrast, it was said that s 353(4) applies only to uncontested proceedings, because it refers to an application for assessment of costs in relation to "an application for and the issue of an apprehended violence order", without reference to any hearing or contest. While the language of s 215(1) may exclude interlocutory costs orders, there is no linguistic or policy support for the restriction to contested orders. Further, the power to award costs in the present case arose from s 99(1) of the 2007 Act and not from s 215(1) at all. Similarly, although the language of s 353(4) might have been simpler, neither linguistic nor policy arguments support the entirely artificial construction that it only applies to uncontested proceedings. 21The applicant separately submitted that it was not true to say that unless an order for costs to be assessed could be made pursuant to s 99 of the 2007 Act, s 353(4) would be entirely otiose. Rather it might have work to do with respect to a costs order made by a Local Court in the exercise of an inherent power to control abuses of court procedure. This argument is without substance. It would read down the operation of the provision so as not to apply to the express statutory power, but only to some inchoate unspecified power. Neither rational policy nor linguistic considerations provide any support for such an approach. 22The second approach identified above is supported by two main considerations. First, it does not render the provision of the Legal Profession Act entirely otiose, even if enacted on the basis of a misapprehension. Nor does it render s 215(3) otiose, because s 215 is a provision of general application in relation to summary criminal proceedings and its usual operation is unaffected by this issue. 23Secondly, this approach is supported by the legislative history. The predecessor to the 2007 Act was Part 15A of the Crimes Act 1900 (NSW). As originally enacted, s 353(4) of the Legal Profession Act made reference to Part 15A of the Crimes Act . In enacting the 2007 Act (which commenced on 10 March 2008), the Legislature expressly identified the need to amend s 353(4) to omit reference to "Part 15A of the Crimes Act 1900 " and insert instead "the Crimes (Domestic and Personal Violence) Act 2007 ": the 2007 Act, Sch 2.16. 24There may be some equivocal linguistic support for this conclusion in the terms of s 99(2) itself. It refers to costs being "determined in accordance with" the relevant provisions of the Criminal Procedure Act . Those provisions do a number of things, including imposing conditions on the circumstances in which costs can be awarded, which do not mirror the terms of s 99: see Constable Redman v Willcocks [2010] NSWSC 1268. However, relevantly for present purposes, s 215 both sets a standard ("just and reasonable" costs) and, separately, identifies the body by which they must be determined (namely the court making the order). These are separate elements, the one not flowing from the other: see Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552 at 563-564 (Sully J, Grove and Studdert JJ agreeing). In any event, there would be work for s 215 to do (namely setting the relevant standards) even if it were not to identify the party to undertake the task. 25The countervailing approach is as follows: first, s 353(4) does not purport to confer a power to award costs, nor to impose or remove conditions from any power that does exist. Its purpose is to provide a mechanism for assessing costs in circumstances where a court or tribunal has made a relevant order. Secondly, the attempt to select those parts of s 215 which can operate, consistently with the Legal Profession Act , from those which cannot, violates the express terms of s 99. The reference in s 99 to a specific Division of the Criminal Procedure Act , is apt to pick up a mechanism for the determination of costs as well as the relevant standard: see s 215(1) and (2). 26To give s 353(4) any operation with respect to awards of costs under the 2007 Act will cause additional difficulties of construction because the standard for assessment in s 215 ("just and reasonable") may differ from the standard to be applied generally by a costs assessor, as identified in the Legal Profession Act , s 364. 27Apart from the last mentioned matter these considerations are not without force. They all illustrate the pitfalls which accompany the drafting technique of picking up provisions from other legislation. Very few (if any) extra words would have been required to spell out in s 99 the method of determining costs, bearing in mind s 353(4) of the Legal Profession Act . Had that been done, it may be assumed that the present difficulty would not have arisen. However, it is necessary to reconcile the potentially conflicting provisions, even if there had been inadvertence to the terms of s 215(3) of the Criminal Procedure Act . The 2007 Act, being the later Act, and also the one having a specific operation, as compared with the generality of s 215, should prevail. Importantly, that conclusion reads s 99(2) of the 2007 Act consistently with s 353(4) of the Legal Profession Act as amended by the 2007 Act itself. It thus achieves internal consistency within the provisions of the 2007 Act. A construction of s 99(2) which renders s 353(4) entirely otiose should be rejected. 28It is not necessary to decide the test to be applied by a costs assessor.

Conclusions 29The applicant's argument has failed and the proceedings must therefore be dismissed. The respondent has been brought to this Court unsuccessfully and, understandably, seeks an order for costs. In the ordinary course, that should follow. 30A countervailing consideration in respect of costs is that the difficulty encountered in resolving this case is very much a consequence of an inappropriate drafting technique, giving rise to complexity and confusion in an area in which members of the public have, as the 2007 Act recognises in its objects, a powerful interest in there being simplicity, transparency and certainty. Nor is this the sole difficulty in construing s 99 and interacting provisions. A different, though related, problem confronted Davies J in Redman . As his Honour noted at [19]: "The incorporation of parts of the Criminal Procedure Act into s 99 results in the provisions of s 99 and the provisions of Division 4 sitting very uneasily together." 31At a time when the respondent was not represented, the Attorney sought to be heard as amicus. Although the respondent obtained representation, the Court accepted the written submissions of the Attorney, without objection from the parties. It seems unlikely that the costs of the respondent were affected by that step. The argument of the respondent, supported by the Attorney-General, having prevailed, the applicant should bear the costs of the proceedings. 32I propose the following orders: (1) Application dismissed. (2) Applicant to pay the First Respondent's costs in this Court.

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Legal Profession Act 2004(NSW)

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