Liverpool City Council v Hodge and Anor. [2006] NSWLEC 21 | Case summary

JUDGMENT HIS HONOUR: 1 On 29 March 2005 I upheld Defence objections and summarily dismissed two summonses alleging offences against the Defendants under the Environmental Planning and Assessment Act 1979, s 125 (see (2005) NSWLEC 170). 2 Soon thereafter, I made the following costs orders in each of the proceedings: - 2. Subject to Order 3 the Prosecutor shall pay the costs of the Defendant in accordance with section 253(2) of the Criminal Procedure Act 1986. 3. Leave is granted to the Defendant to apply for a variation of the costs order within 7 days of the Court's decision on the reserved question of whether the Court has the power to order the assessment of costs on an indemnity basis. 3 It is to be noted that the costs order made in favour of each Defendant (which was not opposed by the unsuccessful Prosecutor) was expressed to be subject to the Court's determination on the disputed question as to whether the Court had the power to order that the costs be assessed on the indemnity basis. 4 In respect of that disputed question the Prosecutor had submitted that the Court lacked the power to order indemnity costs founding that submission on my earlier decision in Owen v Willtara Construction Pty Ltd (unreported 11 December 1998) where I held that the costs power conferred upon this Court by s 52 of the Land and Environment Court Act 1979 did not include the power to order the assessment of costs on an indemnity basis. 5 Senior Counsel for each of the acquitted Defendants submitted that the Court's power to order costs in criminal cases included the power to order costs to be assessed upon the indemnity basis. Their submissions drew attention to the changes in the legislation conferring the costs power in criminal proceedings that had occurred since the Court's decision in Owen v Willtara Construction Pty Ltd. 6 The sources of the relevant costs power vested in this Court when Willtara Construction was decided were (i) s 52 of the Land and Environment Court Act 1979 and (ii) cl 7A of the Land and Environment Court Regulation 1994 which were in the following respective terms: 52. (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 556A(1) of the Crimes Act 1900, 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. 7A. (1) This clause applies if no agreement between a prosecutor and defendant can be reached as to the amount of costs payable in accordance with a direction under section 52 of the Act. (2) The prosecutor or the defendant may apply to the proper officer of the Supreme Court in accordance with section 202 of the Legal Profession Act 1987 for an assessment of the whole of, or any part of, the costs referred to in a direction under section 52 of the Act. (3) The costs are to be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987. 7 The Land and Environment Court Act, s 52 was repealed (together with all other provisions of Division 5 of Part 4 of the Act) by the Justices Legislation Repeal and Amendment Act 2001 which came into force on 7 July 2003. That Act inserted a new s 41 into the Land and Environment Court Act (being the sole provision of Division 5 of Part 4) which provides - Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court's jurisdiction. 8 Part 5 of Chapter 4 of the Criminal Procedure Act contains detailed provisions in respect of the summary jurisdiction of the Supreme Court and of "other higher courts" (including this Court by dint of s 41 of the Land and Environment Court Act) including the following costs power contained in s 253: Court may order payment of costs (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. (1A) A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2). (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 It is apparent that the costs power vested in this Court by s 253 of the Criminal Procedure Act is expressed in virtually identical terms to the power previously conferred by s 52 of the Land and Environment Court Act. 10 However, there is a textual difference which the Defence submissions highlight, namely the current costs power includes an order that a party pay the other party "such costs as the court specifies" whereas the former provision included an order that a party pay the other party "costs of such amount as are specified". (Under each regime such a costs order was to be included in the Court's order convicting or acquitting the accused.) 11 In my judgment, this minor textual change does not carry the significance which the Defence submissions seek to attribute to it. The current statutory expression enabling the Court to order the payment of "such costs as the Court specifies" would, itself, require the specification of an amount of costs cf Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552 and Bunston v Rawlings (1982) 1 WLR 473 (cited in Caltex). The making of such an order is one of the two alternative means of exercising the statutory costs power. Properly construed, the power to make such an order does not provide the means for a different mode of assessing costs from the exclusive mode prescribed by subsection (2). Rather, it provides the means for specifying an amount of costs without the need for any assessment to be undertaken. 12 It is in circumstances where the amount of costs is not so specified in the costs order that a direction is given that the costs be determined in accordance with subsection (2) which prescribes the mode of assessment if no agreement is reached between the parties. 13 So far I have considered the former and current primary sources of the relevant costs power vested in this Court. It is also necessary to compare the position with the delegated legislation relevant to such a direction being made in the costs order that costs be determined in accordance with subsection (2). Subsection (2)(b) of the Criminal Procedure Act contemplates the existence of relevant "Rules". In fact, no such Rule was made by this Court following the repeal of s 52. Instead, the relevant delegated legislation remained the Land and Environment Court Regulation 2000, cl 8 (which had succeeded, but perpetuated, cl 7A of the 1994 Regulation) until it was replaced by Part 16 Rule 5 of the Rules of Court inserted by the Land and Environment Court Rules (Amendment No 16) 2005 which was made pursuant to the Court Act, s 74 and the Criminal Procedure Act, s 4(2) and which commenced on 7 October 2005. 14 The consequence of the foregoing comparison between the former and the relevantly current (ie when this case was argued) sources of the costs power vested in this Court in respect of criminal proceedings is that there is no material legislative (primary or delegated) change from that which applied when Willtara Constructions was decided except for the fact that the costs power is no longer sourced in the Land and Environment Court Act. 15 Here again, this difference was relied upon by the Defence submission to suggest a separate basis for distinguishing the decision in Willtara Construction because in that case I relied upon the differences in the express conferral by s 52 of the costs power in criminal proceedings and the express conferral by s 69 of the costs power in proceedings (other than criminal proceedings). 16 There is some superficial force in the Defence submission that the interpretation of the costs power conferred by s 253 of the Criminal Procedure Act is no longer influenced by that contextual consideration, ie the fact that express provision is contained in s 69(2)(c) of the Land and Environment Court Act 1979 for ordering that costs be assessed on an indemnity basis (cf the Supreme Court Act 1970 s 76(1)(c)). However, the fact that s 253 does not itself confer power to order costs to be assessed on the indemnity basis is not entirely uninfluenced by the fact that in the general costs power conferred upon this Court and upon the Supreme Court there is express power for ordering the assessment of costs on an indemnity basis as an alternative to the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 (which latter basis is the party/party basis). Although not forming part of the immediate context of s 253 of the Criminal Procedure Act the fact remains a legislative fact and an important fact of legislative history after the Legal Profession Act was amended in 1993 to provide a detailed system of assessments of costs orders by costs assessors. 17 Having carefully considered the Defence submissions I do not think my decision in Willtara Construction can be distinguished on the grounds relied upon. 18 Moreover, having reconsidered the question I am satisfied that the decision was correct and that the same result as was reached in that case is also applicable in the present case for substantially the same reasons. 19 The Defence submission urged that a further source of power to order costs to be assessed on the indemnity basis was the Court's inherent power or jurisdiction. However, I think that in the case of criminal proceedings the statutory costs power creates the true boundaries of the power and those boundaries are not to be extended by recourse to concepts of inherent or implied judicial power. Although the majority judgments in Latoudis v Casey (1990) 170 CLR 534 assimilated the exercise of a statutory power to order costs in summary criminal proceedings to the exercise of the general costs power in civil cases, the assimilation or analogy between costs orders in criminal proceedings and costs orders in civil proceedings was by no means complete, and the respective powers are by no means co-extensive. 20 In circumstances where the statutory costs power conferred upon this Court in civil proceedings expressly enables a costs order to be made for assessment on the indemnity basis (as does the costs power conferred upon the Supreme Court), the absence of such enabling in the current source of costs power in summary criminal proceedings is in my judgment, a significant legislative indicator that the costs power does not include the power to direct assessment on an indemnity basis. When there is added to that indicator the fact that the relevant delegated legislation providing for assessment adopts the "fair and reasonable" basis of assessment that is contained in Division 6 of Part 11 of the Legal Profession Act 1987 (currently perpetuated in the counterpart provisions of the Legal Profession Act 2004) the absence of power in s 253 of the Criminal Procedure Act to order costs to be assessed on an indemnity basis becomes an inevitable interpretive conclusion. (For a very recent detailed judicial exposition of the meaning and extent of an assessment of costs on a fair and reasonable basis see Bouras v Grandelis [2005] NSWCA 463.) 21 For all of the foregoing reasons, I hold that the Court, when making the costs order on 1 April 2005, did not have the power to direct the assessment of costs in criminal proceedings on an indemnity basis. 22 Accordingly, it follows that the costs order that I made on 1 April 2005 is no longer to be regarded as a provisional order and for completeness, I order that Order 3 made on 1 April 2005 in each proceeding be vacated.

Liverpool City Council v Hodge and Anor.

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