Kerr v Colley [2002] VSC 209

5. Such an appeal being by way of re-hearing the primary judge heard all of the evidence and, on 3 August 2001, delivered a judgment in which he upheld the plaintiff's appeals in respect of each of the charges of which he was convicted in the Magistrates' Court. It appears that he did so on the basis that the prosecution had not discharged its onus of proving beyond reasonable doubt that the plaintiff did not act in self defence.

8. Following the upholding of the plaintiff's appeal his counsel sought an order for costs. The primary judge refused to make that order.

11. By an Originating Motion filed in this Court on 26 September 2001, pursuant to Order 56 of the Supreme Court Rules, the plaintiff seeks judicial review of the primary judge's decision to refuse to order costs in his favour. In the Originating Motion he seeks orders that the primary judge's order refusing his costs be quashed and that his application for costs be remitted to the County Court for hearing and determination according to law. The orders sought were opposed by the first defendant; the second defendant adopting the customary position of abiding by the order of this Court.

14. In his affidavit in support of the motion the plaintiff deposed to the primary judge having upheld his appeal from the Magistrate and then deposed as follows:-

"10. To the best of my recollection the exchange between my barrister and the learned Judge was as follows:

"Mr Lavery said: 'In the circumstances Your Honour I am instructed to make application for the appellant's costs.'

Mr Lavery said: 'Well Your Honour in these circumstances where the appellant has succeeded on the appeal he is entitled to make the application.'

His Honour said: 'Do I have to stop you with the exhibit.'

Mr Lavery said: 'Seriously Your Honour, my client has incurred substantial expense in the running of this matter. The matter could have proceeded by way of committal and trial and amongst my client's reasons for having the matter proceed as a summary hearing were firstly that the overall expense would be expected to be lower if it proceeded that way and secondly that there was a prospect that he could recover his costs if the matter be proceeded successfully by way of summary contest. As it turns out my client has effectively incurred roughly the same costs as he would have done had he run the matter through a committal and a trial and in my submission it would be unfair if he were now denied his costs.'

His Honour then said: 'You're not getting your costs."

Almost immediately after this His Honour adjourned the court. Exhibited hereto and marked with the letters "GHK6" is a certified copy of the decision of the County Court at Warrnambool delivered on 3rd August 2001."

25. In an affidavit filed on behalf of the first defendant, counsel who appeared to prosecute on the appeal, Mr Damien Maguire, said: -

"8. In respect of the (sic) Paragraph 10 of the Plaintiff's Affidavit, I recall that on at least two occasions, his Honour indicated that he was not prepared to make an order for costs and told Counsel that he should not press the issue."

29. Having regard to Mr Maguire's affidavit and the fact that it did not take issue with para 10 of the plaintiff's affidavit and the fact that the first defendant did not seek to cross-examine the plaintiff on that affidavit I approach this matter on the basis that the plaintiff's version of the hearing and determination by the primary judge of the plaintiff's application for costs as set out in his affidavit is factually correct.

32. It was accepted between counsel on the hearing of the Originating Motion that "the exhibit" referred to in para 10 of the plaintiff's affidavit was a piece of wood with which the plaintiff was alleged to have carried out the assaults of which he had been convicted by the magistrate.

35. Section 78A County Court Act 1958 confers upon the County Court the common discretion as to costs such as is found in many statutes conferring jurisdiction to hear and determine various forms of legal proceeding.[1] The discretion is said to be conferred in respect of "all proceedings" and is, accordingly, applicable to the County Court in the exercise of its appellate jurisdiction pursuant to s. 83 Magistrates' Court Act 1989. Thus, upon the primary judge upholding the plaintiff's appeal the exercise of the discretion conferred by s. 78A arose for consideration.

38. In Latoudis v Casey[2] the High Court considered the exercise of the discretion conferred by s. 97(b) of the Magistrates' (Summary Proceedings) Act 1975 which authorised the Magistrates' Court, when it dismissed an information or complaint, to order the informant or complainant to pay to the defendant such costs as the Court thinks just and reasonable. In that case Mason CJ (at 542) said:-

"In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. . . . It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs."

42. Toohey J agreed in similar terms (at 565). McHugh J, who concurred in the result, did so in these terms (at 569):-

"Likewise, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution. Consequently, a magistrate ought not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings."

46. Finally, Dawson J who, with Brennan J dissented, held that the mere acquittal of a defendant ought not to result in an order for costs being made in his favour against a police informant. Thus, his Honour held, the magistrate was entitled, in the exercise of his discretion, to refuse to award costs in favour of the appellant. However, in reaching this conclusion he observed:-

"In summary proceedings no less than in other criminal proceedings, the prosecution must prove its case beyond reasonable doubt. In many cases defendants quite properly escape conviction without having positively established their innocence. However, to differentiate cases of that kind from those in which a defendant has established his innocence, and not merely raised a doubt, by making an order for costs against the informant in the one case but not the other, would be invidious and inconsistent with the presumption of innocence. Moreover, to award costs to a defendant against whom a charge has been proved on the balance of probabilities (but not beyond reasonable doubt) does not seem to be an appropriate exercise of discretion. Such a practice might subtly erode the standard of proof in criminal cases in order to avoid the granting of costs to a defendant who is probably guilty."

50. Mr Nash QC, who appeared with Mr J Lavery for the plaintiff put the plaintiff's case on a number of different bases. He submitted that the primary judge had disposed of counsel's application for costs in a peremptory way thereby depriving the plaintiff of procedural fairness. In the alternative he submitted that in failing to give reasons for his refusal of the plaintiff's application the Judge committed an error of law manifest on the face of the record, having regard to the extended meaning of "the record" imported into Victorian law by s 10 Administrative Law Act 1978.[3]

53. I have considerable doubt as to whether the primary judge deprived the plaintiff of procedural fairness by peremptorily dismissing his application for costs. His counsel put the application, together with reasoned argument. There is no suggestion that he was actually stopped from doing so by the Judge. Indeed, he continued to put his argument after the judge had expressed his view of the matter somewhat colourfully by asking counsel whether he would have to be stopped with "the exhibit".

56. Whilst it is undoubtedly true that in the exercise of his discretion the primary judge was entitled to refuse the plaintiff's application for costs, if he did so because the plaintiff had only just been successful on his appeal his reason would bespeak a wrongful exercise of the costs discretion in terms of what the High Court said in Latoudis v Casey[4] He would have given weight to an irrelevant consideration. The absence of reasons thus frustrates any enquiry as to whether the discretion was properly exercised

59. Want of reasons has been said to amount to an error of law where the absence of reasons would frustrate a right of appeal[5]. Although we are not concerned here with rights of appeal, where the absence of reasons renders it impossible for this Court to examine the exercise of the primary judge's discretion there must be an error of law. To hold otherwise would mean that a party seeking judicial review would be worse off when a primary decision maker withheld his or her reasons for a particular decision that where they were able to be examined. The case for the absence of reasons being an error of law is even stronger where the concept of error on the face of the record provides a much wider ambit to judicial review by reason of the existence of the statutory extension of the meaning of "the record" as exists in this State. In Pettitt v Dunkley[6] the New South Wales Court of Appeal characterised a failure to give reasons as an error of law because the primary judge "has not properly fulfilled the function which the law calls upon a judicial person to exercise". Where reasons are required to enable the exercise of a discretion to be examined a failure to provide them must constitute and error of law.

62. In the instant case the primary judge had an obligation to consider the plaintiff's application for costs in light of the principles in Latoudis v Casey.[7] If the reason for his rejection of the plaintiff's application for costs was obvious from surrounding circumstances his failure to articulate his reasons may not have amounted to an error of law. His decision would have been able to be explained, in its own terms, as being either consistent or inconsistent with the law. However, here, where the decision reached by the primary judge invites speculation that he might have reached that decision contrary to the principles laid down in Latoudis v Casey he had an obligation to explain why he considered it appropriate in the exercise of his discretion to refuse the plaintiff his costs.

65. As the failure to give reasons is an error of law manifest on the face of the record, the plaintiff is entitled, in the absence of discretionary considerations rendering such a course inappropriate, to have the order of the primary judge removed into this Court and quashed by an order in the nature of certiorari. No discretionary considerations were advanced by Mr Rapke QC for the first defendant as to why that order should not be made in this case. It is appropriate that the plaintiff's application for costs be remitted to the County Court to be decided according to law.

(1) That the Order of the County Court at Warrnambool of 3 August 2001 constituted by his Honour Judge Hart whereby the plaintiff's application for costs against the first defendant was dismissed be removed into this Court and quashed;

(2) That the plaintiff's application for costs be remitted to the County Court to be heard and determined according to law; and

(3) That the first defendant pay the plaintiff's costs of this proceeding to be taxed.

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CERTIFICATE

I certify that this and the 6 preceding pages are a true copy of the reasons for Judgment of Bongiorno of the Supreme Court of Victoria delivered on 31 May 2002.

DATED this 31st day of May 2002.

[1] eg. s.24 Supreme Court Act 1986.

[2] [1990] HCA 59; (1990) 170 CLR 534

[3] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 181.

[4] [1990] HCA 59; (1990) 170 CLR 534

[5] Agresta v Agresta [2002] VSCA 23 per Buchanan JA at 8 and cases there cited.

[6] [1971] 1 NSWLR 376 at 382.

[7] [1990] HCA 59; [1990] 170 CLR 534.