NSW Police v JG

Judgment 1On 22 November 2013 I delivered a judgment in which I held that the applicant's application for a forensic procedure order under the Crimes (Forensic Procedures) Act 2000 (the Act) was invalid and a nullity, and marked the application "no jurisdiction". 2The respondent has made an application that I order the applicant to pay the costs of the application. The relevant statutory provision governing costs in application proceedings is s 69 of the Local Court Act 2007 which provides as follows: (1) The Court may award costs in application proceedings at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings. (2) The Court may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis. (3) This section is subject to this Act, the rules and any other Act. 3In my opinion, given my findings that the application was invalid and a nullity, an issue arises as to whether there is any power to award costs under s 69 of the Local Court Act. In that regard I drew the parties' attention to the decision of James J in DPP v Goben [1999] NSWSC 696. The respondent sought to distinguish Goben and relied upon Proust v Blake (1989) 17 NSWLR 267, Markisic v Vizza [2002] NSWCCA 53, DPP (NSW) v Roslyndale Shipping Co Pty Ltd (2004) 148 A Crim R 341, and Sasterawan v Morris [2010] NSWCCA 91. 4I turn then to consider the authorities. 5In Proust v Blake an optometrist had been convicted of a regulatory offence by a magistrate. He commenced proceedings in the Supreme Court under s 112 of the then Justices Act 1902 seeking an order in the nature of prohibition. A single judge dismissed that application. The optometrist then filed a summons for leave to appeal to the Court of Criminal Appeal and leave was refused. He subsequently gave notice of an appeal to the District Court. When the matter came on before the District Court judge he stated a case under s 5B of the Criminal Appeal Act 1912 to the Court of Criminal Appeal. The issue that arose under the stated case was whether the appeal had been commenced within time and was competent. 6The Court of Criminal Appeal determined that the District Court appeal had not been filed within time and that the District Court had no jurisdiction to entertain it. The respondent in the Court of Criminal Appeal sought an order for costs which the applicant opposed. It was accepted that s 5B of the Criminal Appeal Act conferred a power on the Court to order costs in relation to a stated case by enabling the Court "to make any such order.....as it thinks fit". The applicant argued that as there was no appeal before the District Court, there was no stated case under s 5B, so that section could not be invoked to make an order as to costs. Samuels JA, with whom Campbell and Mathews JJ agreed, rejected the applicant's argument. 7Samuels JA said (at 271), In my view the argument is fallacious for the following reasons. First, while it is true that a consequence of the order that the appeal to the District Court was out of time is that that Court had no jurisdiction to entertain it, it does not follow that in some sense the proceedings in this Court are a nullity. In order to establish that the District Court acted without jurisdiction, it was necessary for the respondent to state a case to this Court on which it has succeeded. Secondly, it is clear law that the fact that a court has no jurisdiction to determine a matter does not prevent it from dealing with the costs of the proceedings in which its absence of jurisdiction isestablished: Pezet v Pezet (1946) 47 SR (NSW) 45 at 51; 63 WN (NSW) 238 at 240. This case was disapproved in Miller v Teale (1954) 92 CLR 406 but not in relation to the costs point. It follows that even if the result of this Court's determination was to declare that it had no jurisdiction to entertain the stated case (which it is not) there would still be jurisdiction to make an order for the costs of the proceedings which we have heard. 8It does not appear that Samuels JA's opinion as to the power to award costs in the circumstances under consideration was based upon a particular construction of s 5B. The observations are of a more general nature. It is also apparent that there was a stated case before the Court of Criminal Appeal. It was not a case where the Court of Criminal Appeal considered it had no jurisdiction to determine the stated case. In fact the contrary was the case, although there were comments made criticising the form of the stated case. 9In DPP v Goben, a magistrate had upheld an accused's submission that informations alleging certain offences were defective and were not cured by s 65 of the then Justices Act. The magistrate ordered that each information be dismissed and that the prosecution pay the accused's costs. In the Supreme Court the DPP argued that the costs orders were a nullity and that the magistrate, having correctly found that the informations were invalid, had no power to dismiss the informations. The DPP further argued that the magistrate should simply have marked the papers "no jurisdiction: struck out". On the DPP's argument, there was nothing to dismiss and the power to award costs only arose when informations were dismissed. 10James J accepted the DPP's argument. His Honour at [51] stated: I accordingly conclude that the Magistrate, having decided that the informations were invalid, had no jurisdiction to proceed any further and had no jurisdiction to make orders under s80 of the Justices Act dismissing the informations and should simply have struck out or quashed the informations. It might not matter what language the Magistrate used, provided, if the Magistrate used the word "dismissed", it was clearly understood that the Magistrate was not exercising the statutory power under s80 to "dismiss" an information. 11Goben concerned the commencement of criminal proceedings which, as I referred to in my primary judgment, is distinguishable from the matter I am dealing with. More importantly, however, the statutory provision which governed the Court's ability to award costs in Goben was dependent upon there being an information that was capable of being dismissed. The power to award costs under s 69 of the Local Court Act is not expressed to be contingent upon an application being dismissed. It is expressed as arising "in application proceedings". 12In Markisic v Vizza, the Court of Criminal Appeal determined that the appeal to it was incompetent and had no jurisdiction to hear the appeal. The Court also expressed the opinion that the trial judge had been correct in his conclusion that he had no jurisdiction to consider the charges contained in the appellant's amended summons. In considering the appeal concerning the costs order that the judge at first instance had made, Stein JA, with whom the other judges agreed, stated: [26] There is ample authority that where a court enquires as to whether it has jurisdiction in a given matter, there is power to order costs. 13In considering the costs of the proceedings in the Court of Criminal Appeal, after referring to Proust v Blake, Stein JA said: 30 Where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and, therefore, a jurisdiction to deal with the costs of the proceedings, see authorities cited at p 13 of submissions filed on behalf of the 2nd, 6th, 7th and 9th respondents. 31 While the proceedings purport to be brought under the Act, they in fact were not so brought, and s 17(1) has therefore no power to awarding costs of the court. 32 The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at 503; R v Barbaro (1992) 106 FLR 387 at 389; and Director General, Department of Community Services v Houdek [1999] NSWSC 1031. The dichotomy between implied and inherent powers matters not in this context. 14In Markisic, the Court of Criminal Appeal determined that s 17 (1) of the Criminal Appeal Act had no application as it had no jurisdiction to consider the appeal that was before it, and proceeded to make an order for costs of the proceedings. Section 17 of the Criminal Appeal Act provided that the Court of Criminal Appeal had no power to award costs on the "hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act". 15In DPP v Roslyndale Shipping Company Pty Ltd (2004) 148 A Crim R 341 the respondent had pleaded guilty to an offence in the Land and Environment Court. The sentencing judge dismissed the charge under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. The DPP appealed to the Court of Criminal Appeal and also submitted that he should have been awarded costs by the sentencing judge. The appeal was unsuccessful and was dismissed with costs. The DPP sought to re-open the proceedings under s 43 of the Crimes (Sentencing Procedure) Act to correct what he said was an error in the awarding of costs in the appeal proceedings. 16The DPP was successful in having the matter re-opened. Studdert J, with whom Spigelman CJ and Hulme J agreed, said: 12 It was submitted by the respondent that although the Court determined it had no jurisdiction to determine the costs issue, it did not necessarily follow that it could not award costs relating to this issue. I accept that an order for costs may be made in an appropriate case notwithstanding an absence of jurisdiction to grant relief that is sought: see Proust v Blake (1989) 17 NSWLR 267 and Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53. In the latter case Stein JA, with whom the other members of the court agreed, said at para 30: "Where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and, therefore, a jurisdiction to deal with the costs of the proceedings..." 13 It was decided in Markisic that whilst the proceedings purported to be brought under the Criminal Appeal Act, they were not so brought and accordingly s 17(1) did not apply to prevent an order for costs being made (see para 31 of the judgment of Stein JA). 14 In Markisic the court determined that the appeal was an abuse of process and that the court had an implied or inherent power in those circumstances to order the appellant to pay the respondent's costs. It proceeded to do so. 15 The respondent has submitted that the appellant's challenge on the question of costs being beyond jurisdiction amounted to an abuse of process. I do not accept that submission. There was otherwise an appeal properly brought in this court and the lengthy written submissions presented by the appellant on the hearing of the appeal on the costs issue were indicative of no lack of bona fides in the pursuit of that issue. Moreover, this Court did not determine that in such pursuit there was abuse of process. This is not a case like Markisic where the court held that it had been made plain to the appellants that the Court of Criminal Appeal did not have jurisdiction to entertain the appeal on foot but the appellants still persisted with it: see the judgment of Stein JA at para 33. 17The decision in Markisic has been criticised and restricted in terms of its application, in Sasterwan v Morris [2010] NSWCCA 91. In that case the appellant had been convicted in the Local Court of offences under s 178BB of the Crimes Act 1900. He appealed his convictions to the District Court which confirmed the convictions. He then was successful in having the determination in the District Court set aside in the Court of Appeal in judicial review proceedings, and the matter was remitted to the District Court. When the matter came on for hearing, the District Court judge, on the prosecutor's application, vacated the hearing date and granted an adjournment. The appellant sought to appeal that decision to the Court of Criminal Appeal. 18The Court of Criminal Appeal found it had no jurisdiction to consider the appeal. The prosecutor sought an order for costs in the Court of Criminal Appeal arguing that the Court had an inherent or incidental power to make orders for payment of costs where proceedings were an abuse of the process of the Court. The prosecutor relied upon Markisic. 19Basten JA was specifically critical of the decision in Markisic; see his Honour's observations at [42] to [44]. At [45] his Honour relevantly said: It is one thing to say that an administrative decision purportedly made under a statutory power, but tainted by jurisdictional error, is not a decision "under [the] Act" so as to obtain the protection of a privative clause - see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [81] - it is quite another to say that an application purportedly invoking the jurisdiction of this Court under the Criminal Appeal Act, but which is held to fall outside the jurisdiction, does not involve "an appeal ... under this Act". 20Also, relevantly, at [47] his Honour said: If Markisic has any vitality, it has no application in the present case. The case has turned upon the scope of an interlocutory appeal under s 5F(3), by construction of the phrase "interlocutory judgment or order". The application before the Court is an application for leave to appeal pursuant to that provision. It is an application under the Criminal Appeal Act, whether it be successful or not. The fact that it has proved unsuccessful because of the proper construction of the Act does not mean that the application was not brought under the Act, nor that the proceedings which have been held to determine whether or not leave should be granted are not proceedings preliminary to or incidental to the proposed appeal. The rejection of leave has taken place in the exercise by the Court of its implied jurisdiction to determine whether it has jurisdiction. That is the exercise of a jurisdiction conferred (by implication) by the Act. The application which sought to invoke that jurisdiction is an application under the Act. Therefore the prohibition in s 17 operates and no order for costs can be allowed to the successful party. 21RS Hulme J did not consider the argument in relation to costs but agreed with Schmidt J's orders disposing of the appeal. Schmidt J on the costs issue said as follows at [81]: In this case the appeal was disposed of on the basis of a refusal of leave. The leave application was certainly a hopeless one, but that is not a basis on which a costs order may be made under this statutory scheme. The applicant's jurisdictional argument was also problematic, but the view that it was such that it could properly be described as involving no application for leave to appeal at all, is not open in this case. 22The Court of Criminal Appeal was therefore of the opinion s 17 of the Criminal Appeal Act prevented any order for costs being made.