Perkins v County Court of VIctoria & Ors [2000] VSCA 171

Perkins v County Court of VIctoria & Ors [2000] VSCA 171 - VSCA 2000 case summary — Zoe

[31]

It might be thought that cases on the right of appeal should not necessarily be applied to interpret a section conferring jurisdiction over costs; after all the purpose behind each section is very different and the reason which led the Master of the Rolls in 1892 to declare that the words of exception ("in any criminal cause or matter") should be given a wide meaning when the right of appeal was at stake are probably irrelevant to the granting of power over costs. But, if history is to be any guide, it is perhaps difficult to draw a distinction, given that in the Judicature Acts the wording was so similar in the two cases. Even more importantly, when in Victoria the Parliament copied much of s.50 of the Judicature Act 1925 as s.38 of the Supreme Court Act 1928, it may be taken to have used the expression "criminal cause or matter" in s.38(2)[70] with the meaning already accorded in cases such as Thompson, Medley, Marshall, and Watt: see also Ex parte Dunn, ex parte Aspinall[71] in which Cussen, J. dealt with an application for certiorari to quash a conviction by a court of General Sessions for criminal contempt, on the basis that the application for certiorari was a "criminal cause or matter" according to cases such as Woodhall and Marshall, and so was governed by s.25 of the Supreme Court Act 1890, a section dealing specifically with criminal procedure[72]. In other jurisdictions at least, the question of costs has been approached on the footing that cases determined on the right of appeal were applicable: see for example ex parte Osman[73] in the Queen's Bench Division; in Western Australia, Carter[74]; and in the Federal Court, Scott[75]. Contrast, however, Crittendon[76], in which Lowe and O'Bryan, JJ. ordered costs against the would-be appellant under s.32(1) of the Supreme Court Act 1928 when it was agreed (following Thompson, Marshall and Medley[77] to the effect that no appeal lay in a criminal cause or matter) that no appeal lay from an order that he be fined for contempt of court. The order for costs was put directly upon the basis that the purported appeal was none the less a proceeding within s.32(1) [78], their Honours making no mention of sub-s.(2).

[43]

In relation to proceedings in this Court affecting the exercise of summary jurisdiction by a magistrate (and hence an appeal to County Court after conviction), it is particularly difficult, I think, to discover the existence of a relevant practice that might aid the appellant. For years, in addition to a right of full appeal to the County Court after conviction, a defendant had the right to obtain this Court's review of a conviction for a summary offence by way of order to review[104]. Thus, in conjunction with a privative clause denying the litigant direct access to certiorari[105], this Court was empowered, under s.146 of the Justices Act 1890, to grant on the return of an order nisi the relief which otherwise might have been obtained by certiorari, mandamus, prohibition or habeas corpus and to award costs, albeit in a limited sum: s.148. The provisions for orders to review in the 1890 Act (ss.141 to 146 and 148) were replicated in turn in the Justices Acts of 1915, 1928 and 1958 (in the 1958 Act, see ss.155 to 162) and then in their successor, the Magistrates Court Act 1971 as amended by the Magistrates Courts (Jurisdiction) Act 1973 (see ss.88 to 95, contrast s.97), the limit on the amount of costs to be awarded (in s.94) being removed by the Magistrates' Court (Amendment) Act 1981 s.4. Whether subject or not to a limit on amount, costs were regularly awarded on orders to review[106], whether won or lost and whether civil or criminal, and, so far as I am aware, that practice has continued since the procedure by way of order to review was replaced in 1989 by a right of appeal to this court on a question of law only: Magistrates' Court Act 1989 s.92 (criminal) and s.109 (civil), Tran v. Magistrates' Court[107] per Batt, J.A. speaking for the Court. The source of this Court's power to grant such costs must now be s.24 of the Supreme Court Act 1986 since, unlike the Justices Act, the Magistrates' Court Act 1989 does not deal expressly with the costs of an appeal to the Supreme Court and the general law must apply. In Tran, the respondent responsible for putting the case in opposition to the appellant was not the Court itself but the informant; and as Tran demonstrates, costs can be ordered against an unsuccessful appellant (in both the Trial Division and the Court of Appeal) on an appeal after conviction in the Magistrates' Court[108].

[61]

After all, the Supreme Court Act 1986 is a comprehensive statute regulating the operation of the superior court of the State which has general jurisdiction; whereas the Judicature Act 1890 was a short, special Act containing only seven sections, three of which were fairly formal (ss.3, 6 and 7). Further, in the 1986 Act there are provisions which in terms relate to the Crown, including the Governor in Council (for example ss.40, 104, 105, 118 and 123); and in the Supreme Court Act 1958, as in previous enactments since the Judicature Act 1883, the rule-making power (which in the 1958 Act was to be found in s.25) extended expressly "to all proceedings by or against the Crown". Although this expression was dropped from s.25 in the 1986 Act[136] (presumably on the footing that it was no longer needed[137]), the Court was given the power to make rules in relation to any matter dealt with by the existing rules, so that implication might be thought to supply what hitherto had been express. In Carbonit Warrington, L.J. opined that that rule-making power which, in England too, extended expressly to proceedings by and against the Crown, did not, in itself, mean that the Court had power to award costs for or against the Crown, but I think that the width of the rule-making power in s.25 might assist on the question whether in the very same statute the immediate precursor to s.24 (which was s.32 in the 1958 Act), in regulating "the costs of and incidental to all proceedings in the Court", extended to proceedings to which the Crown was party: see the suggestion made by Wright, J. in R. v. Archbishop of Canterbury[138] that the words of the rule-making power were "prima facie wide enough to include a power to make provision for costs". Finally, the proceeding here in question was dealt with as an application under Order 56, and Order 56 was new to the 1986 rules in this State. The proceeding was thus created by the rules in the context of existing (or continuing) provisions such as s.24(1)[139], again marking a contrast with s.5 of the 1890 Act which was introduced to alter or to supplement an existing regime. But I say no more about it because the question whether s.24(1) binds the Crown does not arise in this case if, as I think, the informant was not the Crown.

At a glance

Court

Decision date

Before

Source

Judgment (255 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (2)