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

2. I agree with Buchanan, J.A. that this appeal should be dismissed for the reasons given by his Honour. That is subject to the question of costs below, which is the question I address. In the Magistrates' Court the defendant (the present appellant) was unsuccessful: he was convicted on more than one charge and ordered to pay costs. In the County Court, he succeeded in having his conviction on one charge overturned, but failed in respect of the other two. Again he was ordered to pay costs. An argument was adumbrated that that was error and that because of his partial success no order for costs should have been made in the County Court. The order for costs was plainly within the discretion conferred on the County Court judge under ss.85 and 86 of the Magistrates' Court Act 1989 and the argument is not now pursued that there was error in the manner of its exercise.

5. Before Harper, J., the appellant was again unsuccessful, his claim for judicial review under Order 56 of Chapter I of the Rules failing altogether. The application was dismissed and the appellant was ordered to pay costs, again in the exercise of discretion but this time under s.24 of the Supreme Court Act 1986. That reads:-

"(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid. (2) Nothing in this section alters the practice in any criminal proceeding."

9. On its face the jurisdiction thus conferred on the Court over costs was ample enough to justify the award of costs made by the judge in this proceeding for judicial review; the grant of power is in respect of the costs "of and incidental to all matters in the Court" and the appellant's application for judicial review was not per se a criminal proceeding. Brought under the Rules which regulate generally civil proceedings, the application is made by Originating Motion in which the applicant for relief is called the plaintiff and the respondent, the defendant. Under these rules relief, when granted, is no longer by the issue of a prerogative writ but by judgment or order for relief in the nature of (in this case) certiorari, and thus far there seems no reason to suppose that the costs of the application, when it proved unsuccessful, were not committed by s.24 to the discretion of the judge in the usual way.

12. It is now submitted on this appeal that the order for costs made by Harper, J. was made without jurisdiction. As I followed it, the argument ran like this: judicial review was being sought in respect of what were criminal proceedings in the County Court (as in the Magistrates' Court) and therefore the application under Order 65 should have been similarly characterised, according to R. v. Watt ex parte Slade[1] and Clarkson v. D.P.P.[2]; if so, s.24(1) conferred no jurisdiction over the costs of the proceeding because sub-s.(2) ensured that sub-s.(1) had no application; alternatively, the practice in criminal proceedings is such that no costs are awarded and, as that practice is expressly preserved by s.24(2), the judge had no power to award costs when he dismissed the application for judicial review. It was further contended that s.24(1) did not bind the Crown anyway and that, as the jurisdiction over costs in common law proceedings depended wholly upon statute and thus, in this case, upon s.24 of the Supreme Court Act, the judge lacked jurisdiction over costs, quite independently of the provision made by s.24(2) in relation to "any criminal proceeding". Thus, as argued, the question for us is not one of the exercise of the discretion below as is usually the case when an order for costs is challenged; in this instance the question is one of jurisdiction or power.

History of section 24

16. To understand the argument of the appellant it is necessary to delve into the history of s.24 of the 1986 Act. It is a history which, with that of its counterparts in other jurisdictions in Australia, has been much canvassed in recent years. Reference may be made in this connection to Latoudis v. Casey[3], Knight v. F.P Special Assets Ltd.[4], Burns Philp & Co. Ltd. v. Bhagat[5], Wright, Danci & Currie[6], Carter v. Managing Partner, Mallesons Stephen Jaques[7], R. v. Scott[8] and Oshlack v. Richmond River Council[9]. See also Quick on Costs paras.[2.270]ff. Briefly, unlike the Courts of Chancery which regularly exercised a general discretion over the costs of proceedings[10], the common law courts had no power in respect of costs save by statute. From the Statute of Gloucester 1278 onwards, specific provision for costs was made by statute from time to time, but the earliest attempt to make some general provision for costs lay in the rules scheduled to the Supreme Court of Judicature Act 1873, rules which were replaced before they came into effect by the rules appended to the Supreme Court Judicature Act 1875, which extended and amended the 1873 Act[11]. The next step is described by Dawson, J. in Knight[12]:-

"The rules scheduled to the Act [of 1875] were repealed by The Statute Law Revision Act 1883 (U.K.) (46 & 47 Vict. c.39) and new rules referred to as The Rules of the Supreme Court 1883 were made pursuant to s.19 of the Supreme Court of Judicature Act 1881 (U.K.) (44 & 45 Vict. c.68). Order 65, r.1 of these rules provided that, subject to the provisions of, among other things, the Judicature Acts and the rules of court, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, were within the discretion of the court or judge."[13]

20. In In re Mills' Estate; ex parte Commissioners of Works and Public Buildings[14] the Court of Appeal held that Order 65 rule 1 did no more than regulate the exercise of jurisdiction over costs to the extent that jurisdiction already existed: it did not confer any new jurisdiction. This led to the passing of the Supreme Court of Judicature Act 1890 (53 & 54 Vict. c.44) ss.4 and 5 of which read:

"4. Nothing in this Act shall alter the practice in any criminal cause or matter or in bankruptcy, or in proceedings on the Crown side of the Queen's Bench Division. 5. Subject to the Supreme Court of Judicature Acts, and the rules of court made thereunder, and to the express provisions of any Statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid."

24. In London County Council v. Churchwardens etc. of West Ham[15], Lopes, L.J.[16] was content simply to repeat and apply to ss.4 and 5 the approach taken in Mills' Estate to Order 65 rule 1. Lord Esher, M.R., too, saw Parliament as adopting in the new Act the limitation imposed on the rules in Mills' Estate, saying[17] -

". . . it seems to me obvious that the legislature in 1890, when they passed that Act, knew of the limitation on the generality of the words of Order LXV which had been put on them by the Court [in Mills' Estate], and adopted that limitation. The way they adopted that limitation was by using the general words of the order in s.5 of the statute, but also taking out from the generality of the words in s.5 the matters which are dealt with in s.4. The true construction of ss.4 and 5 is this, that s.5 is a general enactment, and s.4 has the effect of a proviso on the generality of the words in s.5."

Fry, L.J. was alone in appearing to approach the 1890 Act independently of what had gone before, saying that the construction adopted in Mills' Estate "may not hereafter be generally applicable" and that s.5 was probably intended to give jurisdiction to grant costs "if necessary", subject of course to s.4. This was the view that was to prevail thereafter. In West Ham, however, the Court held that any class of proceedings mentioned in s.4 was necessarily removed from the generality of s.5, with the result that s.5 must then be taken to have left altogether unaltered the practice "in proceedings on the Crown side of the Queen's Bench Division"; and as costs could not have been allowed in such proceedings before 1890, so they could not be allowed after it.

29. That conclusion was soon modified as in successive decisions thereafter the ambit of s.4 was narrowed (as I shall show in a moment in relation to proceedings on the Crown side of the Queen's Bench Division) and the intent of s.5 to confer jurisdiction, wherever necessary, was emphasised: see for example In re Fisher[18] (distinguished in Knight[19] by Mason, C.J. and Deane, J.) and R. v. Mansel-Jones[20]. Sections 4 and 5 became sub-ss.(2) and (1), respectively, of s.50 of the Supreme Court of Judicature (Consolidation) Act 1925 (U.K.), which provided the model for similar provisions in Australia: in Victoria, s.32 of the Supreme Court Acts of 1928 and 1958, and then the current s.24. The approach taken to s.5 in Fisher became the norm and s.50(1) of the 1925 Act in England, and consequently its counterparts in Australia, are commonly regarded as making comprehensive provision for costs, subject only to sub-s.(2): see for example Aiden Shipping Co. Ltd. v. Interbulk Ltd.[21], R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Osman[22], Knight v. F.P. Special Assets[23], Burns Philp & Co. Ltd. v. Bhagat[24] and Oshlack v. Richmond River Council[25].

32. One significant exception to that approach is in Wright, Danci & Currie where in Victoria the Full Court held that, quite independently of the saving in s.24(2) of the 1986 Act, s.24(1), like its predecessor s.5 of the 1890 Act, had never been intended to apply, and so did not apply, to trials on indictment or presentment[26]. On such trials in this Court, therefore, s.24 must be taken not to confer jurisdiction over the costs thereof; but otherwise s.24(1) should be read, I think, as conferring a general jurisdiction, according to its terms, over "the costs of and incidental to all matters in the Court". (That is of course subject to the appellant's submission that s.24 does not bind the Crown, a submission to which I return later.) At this stage I simply note that the generality of s.24(1) must have been behind the decision in Wright, Danci & Currie itself to grant in favour of the Director of Public Prosecutions and against the unsuccessful applicant the costs of the application in the Supreme Court for judicial review of the decision in the County Court to refuse costs upon an acquittal after trial.

On the Crown side of the Queen's Bench Division

36. Before turning to consider the express qualification on the operation of s.24(1) which is found in sub-s.(2), I look at the qualification first articulated in its precursor, s.4 of the 1890 Act. That section sought to preserve current practice in three areas. Bankruptcy is of no present relevance and may be left aside. Of the other two, I take first "the practice .. in proceedings on the Crown side of the Queen's Bench Division". In the Supreme Court Act 1935 (W.A.), this is reflected in the saving in s.37(2) of "the practice in proceedings on the Crown side of the Court"[27], but in Victoria there is no equivalent. None the less it is instructive to consider what the area of exception was under s.4 of the 1890 Act which became s.50(2) of the 1925 Act (U.K.).

39. What was comprehended by the expression "the Crown side of the Queen's Bench Division" is described quite fully in Halsbury's Laws of England (1st edn, 1909) vol.10, "Crown Practice", Part III, pp.35-213 and, as one might expect, it comprised largely the issue of the prerogative writs of habeas corpus, quo warranto, mandamus, prohibition and certiorari. The effect of s.4 in saving the practice (that is, the practice as to costs) in such proceedings soon became limited quite significantly; for in 1894, in R. v. Justices of County of London[28], the Court of Appeal held that, although the common law courts, such as the King's Bench, had not themselves had jurisdiction to grant costs in relation to the writ of prohibition, other courts, such as Chancery, had had that power and upon the merging of the courts in the Supreme Court of Judicature all courts thereafter had the power that some only had had hitherto - a conclusion which was not regarded as inhibited at all by s.4. In time, the like reasoning was applied to habeas corpus (in R. v. Jones[29]) and then to certiorari, two other prerogative writs in respect of which the King's Bench had had no direct power over costs.

42. Before the Judicature Acts an applicant for certiorari had commonly been required to give a recognisance for costs and, if the application was finally unsuccessful, costs were exacted by means of that recognisance. At first it was thought that s.5 had not altered this position: R. v. Parlby[30]. Indeed in West Ham[31] it was held that on a case stated from Quarter Sessions in a licensing matter, there was still no power over costs on the ground that the procedure by way of case stated stood in place of the writ of certiorari. Yet once the Court of Appeal held in relation to prohibition that after the Judicature Acts all courts had the jurisdiction over costs that some only had previously possessed, the like result was adopted in 1906 with respect to certiorari in R. v. Woodhouse[32]. See also Quick on Costs para.[2.560] and Carter[33] per Malcolm, C.J., where a similar picture is painted concerning the writs of mandamus and quo warranto[34].

45. In short, by one means or another the qualification worked by s.4 of the 1890 Act and s.50(2) of the 1925 Act with reference to "the practice in proceedings on the Crown side of the Queen's Bench Division" seems to have become in time more apparent than real; and perhaps, although the exception is still found elsewhere in Australia, what I have just said about proceedings on the Crown side in England may explain the absence of any corresponding expression of qualification in this State: for when these provisions were first copied into the legislation in this State, s.32(2) of the Supreme Court Act 1928 referred only to "the practice in any criminal cause or matter". But whether or not that is the explanation of the absence of any reference in s.32 to the Crown side of the Court, that very absence indicates that there is now no ground for excepting from the operation of s.24(1) applications for prerogative relief generally. In other words, there is no reason in Victoria to suppose that the apparent breadth of s.32(1) of the 1928 Act or 24(1) of the current Act is qualified in respect of prerogative relief as s.4 of the 1890 Act sought to qualify s.5.

49. What, then, of the remaining qualification in s.4, the saving of "the practice . . . in any criminal cause or matter"? (This was faithfully repeated in s.32(2) of our 1928 Act, and the 1958 Act, and is reflected in s.24(2) of the 1986 Act in the current expression, "in any criminal proceeding".) In the Judicature Acts of 1873 and 1875 the expression "criminal cause or matter" was by no means unique and both "cause" and "matter" were defined[35] (as indeed they were defined too in our Supreme Court Acts of 1928 and 1958). In the 1873 Act s.71 preserved unaltered, subject to any rules of court, the practice and procedure "in all criminal causes or matters" and s.47 decreed that, despite the general right of appeal created by s.19 from the High Court of Justice to the Court of Appeal, there should be no such right of appeal from "any judgment of the said High Court in any criminal cause or matter"[36]. This last gave rise to a number of cases in which judges were plainly concerned to ensure that this limitation was ample and effective. For present purposes it suffices to mention that in 1888 Lord Esher, M.R. said in Ex parte Woodhall[37] that in s.47 the expression "criminal cause or matter" should "receive the widest possible interpretation"; and in 1943, in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government[38], Viscount Simon, L.C., building upon the opinion of Viscount Cave in In re Clifford & O'Sullivan[39], said in relation to an application for habeas corpus, which might or might not be sought in relation to imprisonment for crime, that it was "the nature and character of the proceeding in which habeas corpus was sought which provide the test" whether the application for the writ was or was not a "criminal cause or matter": see Williamson v. Director of Penal Services[40].

52. Thus, for the purpose of permitting or denying a right of appeal, the characterisation of a "criminal cause or matter" came to depend not just upon the type of application giving rise directly to the order from which it was sought to appeal, but also upon the "underlying proceeding" which had led to the application. Although an order upon the trial of a person on indictment was obviously an order in a criminal cause or matter, so too, it was held, was the decision on an application to stay the trial, or to adjourn it, or to grant bail pending re-trial: for example R. v. Foote[41]. Nor were the cases in England concerned (whether directly or indirectly) only with trials on indictment; see for example, R. v. Fletcher[42] (no appeal from the granting of certiorari to quash a summary conviction by justices for trespass in pursuit of game); R. v. Whitchurch[43] (no appeal from the granting of certiorari to quash the order of justices directing the defendant to fill up an ash pit so as no longer to be a nuisance); Ex parte Schofield[44] (no appeal from the refusal of mandamus to a stipendiary magistrate who, having made an order for the abatement of a nuisance under the Public Health Act 1875, had declined to state a case for the opinion of the High Court); R. v. Garrett, ex parte Sharf[45] (no appeal from the refusal of prohibition to a magistrate who was proposing to hear and determine a charge against the would-be appellants of knowingly making false statements to a consul to obtain passports) and O'Shea v. O'Shea[46] (no appeal from an order for attachment for criminal contempt in relation to a civil proceeding). There were many cases on the right of appeal[47] and some were no doubt difficult to reconcile with others; but the variations lay, I think, rather in the application of the general principle than in the principle itself.[48]

55. In Australia the pattern has been similar. Thus, in 1912, in R. v Watt, ex parte Slade[49], Cussen, J. said, in a passage relied upon by the appellant (and which anticipated what was to be said in Amand many years later):

"If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is in prison for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on."

In Western Australia, in Carter v. Managing Partner, Mallesons Stephen Jaques[50] the Full Court accepted that an application by third parties to set aside subpoenas directed to them at the instance of an accused for the production of documents at his trial upon indictment was a "criminal cause or matter"[51]; and in Victoria, when certiorari was sought after a series of convictions principally in the County Court, the like approach was approved by the Full Court in Clarkson v. D.P.P.[52] with respect to s.42 of the Supreme Court Act 1958. Like its predecessors (s.37 of the Supreme Court Act 1890 and s.42 of the 1928 Act), s.42 of the 1958 Act was similar to s.47 of the Judicature Act of 1873, but different in this respect: the Victorian ss.37 and 42 did not deny an appeal "in any criminal cause or matter" but e converso allowed an appeal only "in mixed or civil proceedings". As was observed in Watt[53], proceedings were regarded for this purpose as "either civil, or criminal, or mixed - i.e., partly civil and partly criminal"[54], but the result was much the same as in England: no appeal lay if the order in question was made in a cause or matter which could be properly characterised as criminal, and characterisation might turn not only upon the very proceeding in which the order was made but also upon the underlying proceeding to which the application for the order related[55]. In Williamson[56] the Full Court, applying Amand, held that no appeal lay from a judge's refusing a writ of habeas corpus upon the application of one found guilty of rape and sentenced therefor; such an order was made in a criminal cause or matter. See also Tait v. R.[57] (on an application after conviction for murder).

60. As in England, the cases on the right of appeal did not deny an appeal only when the case in this Court involved trial on indictment or presentment (whether directly or indirectly in the sense explained in Watt and Amand). Although where such a trial was at issue the limitation denying an appeal obviously operated, it was held to operate also where the case was altogether different. In Re Thompson[58] no appeal was held competent from an order of a single judge for attachment for contempt; see also In re Crittendon, ex parte Law Institute of Victoria[59] (but contrast LaTrobe University v. Robinson & Pola[60] where attachment was ordered for contempt in a civil proceeding). In Re Marshall[61] an appeal was denied from an order granting habeas corpus to discharge a prisoner arrested under the Fugitive Offenders Act 1881, and in Re Medley[62] no appeal lay when a writ of certiorari had been granted to quash the proceedings of the Court of Marine Inquiry, investigating a charge against a master of a vessel under s.183 of the Marine Act 1890. In Marshall, Madden, C.J. asked counsel, the then Mr. Cussen, whether the term "mixed" might not "apply to cases in Crown practice, e.g. prerogative writ of mandamus or prohibition", but that was not, I think, the view taken in judgment[63]. (Had it been otherwise, the present proceeding for judicial review under Order 56 might have been characterised as "mixed", not "criminal".) In McEwan v. Waldron (No.1)[64], the defendant, who had been convicted by a magistrate of failing to act honestly as a company director, appealed unsuccessfully to the County Court and then applied unsuccessfully to a judge of this Court for an order nisi calling upon the County Court judge to state a case for the Full Court. Following the decisions in Thompson, Medley, Marshall, Watt, Williamson and Tait, the Full Court held that no appeal lay to it because the judge's refusal of the order nisi was in a criminal matter.

63. By 1989 when Clarkson was decided_,_ the Supreme Court Act 1958 had been replaced by the 1986 Act which contained a wider provision for appeal in s.10 (a section which was first enacted in 1984[65] as an amended s.42 of the 1958 Act). Section 10 conferred a right of appeal generally from any determination of a single judge, subject, however, in the 1986 Act to an exception in s.14(3), to the effect that save as provided in Part VI of the Crimes Act 1958 no appeal lay from a determination of a single judge "made on or in relation to the trial or proposed trial of a person of indictment". In Clarkson[66] an appeal was permitted from the refusal of certiorari in relation to a trial on presentment on the ground, applying Boehm v. Director of Public Prosecutions[67], that because Part VI did not provide for an appeal in such a case, s.14(3) did not operate to bar the right of appeal otherwise conferred by s.10; but in Smith v. R.[68] Boehm was overruled so that Clarkson must now be taken to have been wrongly decided on this point. Nevertheless the difference remained between s.14(3) and the legislation before the 1986 Act (and indeed before the 1984 amendment to the 1958 Act). No longer could it be said in Victoria that no appeal lay in any criminal cause or matter; the exception to the general right of appeal created by s.10 was now only in relation to trial on indictment or presentment. Since 7 June 1995[69], the general right of appeal that used to be in s.10 of the 1986 Act is to be found in s.17(1) and the exception, which was formerly in s.14(3), is in s.17A(3). The exception can be of no consequence in a case such as this, where the right of appeal is from the refusal of judicial review in respect of an appeal in the County Court after summary conviction in the Magistrates' Court.

66. 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).

69. In Victoria, there is an added factor now, in the significant shift in the Act with respect to appeals - away from the old concept of denying an appeal in any criminal cause or matter and in favour of the more limited exception in relation to trial upon indictment or presentment. Untutored by authority, I should have thought that, as s.24(1) is dealing with "all matters in the [Supreme] Court", in s.24(2) the reference to "any criminal proceeding" meant a criminal proceeding in this Court. If so, s.24(2) would be properly confined along similar lines to the current exception, in s.17A(3), relating to appeals. But the argument that there should be such correspondence might be difficult to sustain in the face of the amendment which is now reflected in s.17A(3) and on the other hand the absence of any like amendment in s.24(2)[79]. Accordingly, in interpreting what is meant by a "any criminal proceeding" in s.24(2) it seems appropriate still to adopt the meaning attributed to that expression in the past, and in consequence that expression will encompass any proceeding which itself is criminal or, if not itself criminal, is an adjunct to an underlying proceeding which is "criminal" in the sense disclosed in the cases, even though those cases were decided on the legislation in an earlier form and mainly over the right of appeal.

72. It follows from what I have said that an application in this Court for the prerogative writ of certiorari, if directed to a magistrate after the trial by him or her of a summary offence, would have been characterised as a "criminal proceeding" because the underlying proceeding was obviously criminal. So too, an application for such relief if directed to the County Court on appeal from the magistrate; and in either case no appeal would have been permitted under s.42 of the Supreme Court Act (before amendment to s.42 in 1984 made the right of appeal more general). The same should be so, in my opinion, now that the application in the Trial Division is one for relief by way of judicial review under Order 56; in this case, relief "in the nature of certiorari". That simplification in procedure is not enough, I think, to affect what otherwise would have been the characterisation of the proceeding as "criminal" for the purposes of s.24(2) and accordingly I would accept the submission of the appellant that this proceeding in the Trial Division was a "criminal proceeding" within the meaning of s.24(2) of the 1986 Act. (As will be seen, that conclusion is less important than it might otherwise have been because of what I say next about the operation of that subsection.)

76. If, then, the proceeding before the Trial Division was a "criminal proceeding" within s.24(2), the next question is the effect of that subsection in qualifying the operation of sub-s.(1). What does it mean when s.24(2) says that "nothing in this section alters the practice in any criminal proceeding"? Different opinions have been expressed about this. One view, and that urged upon us by the appellant, is that sub-s.(2) excepts "any criminal proceeding" from the operation of sub-s.(1) altogether, with the result that sub-s.(1) cannot be said to confer any jurisdiction over costs in relation to a "criminal proceeding" within the meaning of sub-s.(2). This was the view taken by Cooper, J. as a member of the Full Federal Court in R. v. Scott[80], dealing with the equivalent provisions of the Supreme Court Act (A.C.T.) in which the general gift in s.23 of jurisdiction over costs is subject to sub-s.(3) which reads:-

"Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the Court".

To interpret this, Cooper, J. adopted the words of Lord Esher, M.R. and Fry, L.J. in West Ham[81] concerning ss.4 and 5 of the Act of 1890, to the effect that s.4 excluded from the grant of power in s.5 those categories of cases mentioned in s.4. In Victoria that would mean that s.24(1) could not confer jurisdiction over costs in "any criminal proceeding"; in the Territory it meant that s.23 could not be taken to confer such jurisdiction in any criminal cause or matter, or in any proceeding on the Crown side of the Court, civil or criminal.

81. Although in Scott Miles, J. expressed his agreement generally with Cooper, J., his Honour reserved for another day the question whether the Supreme Court had power to award costs on a bail application, not if the bail application was made in relation to a criminal trial in the Supreme Court, but if it was made while the applicant was in custody pending the determination of summary proceedings or the like. As the latter would presumably fall to be characterised as a "criminal proceeding" just as the former, the reservation of that question appears to me to keep open whether the grant of power generally over costs is always excluded if the proceeding can be characterised as a criminal cause or matter. Indeed, some five years previously, as a member of the Bench deciding R. v. Goia[82], Miles, J. had espoused a broader view of such provisions, saying that the first operated generally to confer jurisdiction over costs, but a jurisdiction which, by virtue of the second, was not to be exercised otherwise than conformably with the practice in criminal proceedings (meaning the rule that the Crown neither gives nor receives costs in criminal proceedings brought by it[83]). And this was the view of Hill, J., the third member of the Court, in Scott[84].

84. This second view of the qualification which, in this State, is found in s.24(2) of the 1986 Act puts better emphasis, it seems to me, on the wording of the provision which saves "the practice in any criminal proceeding": sub-s.(2) does not except from the operation of sub-s.(1) "any criminal proceeding", which is how the appellant would have us read it. I would reject that submission[85]. In Scott, Cooper, J. formed the contrary view by relying on the decisions of the Court of Appeal in relation to ss.4 and 5 of the Judicature Act 1890, in West Ham, the County of London case[86], Jones[87] and Woodhouse[88]; but I suggest, with respect, that those decisions do not justify the conclusion reached. In West Ham[89] Fry, L.J. did say that s.4 "excludes from the operation of the whole Act the particular class of proceeding which we have to deal with" (which in that case was "on the Crown side of the Queen's Bench Division"): it was held that, by virtue of s.4, the practice in such proceedings remained unaltered by s.5. But, as I have said[90], that view did not prevail. Indeed it was in the County of London case that the Court of Appeal emphasised that s.5 conferred a jurisdiction as to costs which did not exist before, enabling costs to be granted on an application for prohibition on the Crown side of the Queen's Bench Division, a decision which in Jones was applied and extended to habeas corpus and in Woodhouse to certiorari[91].

87. It seems to me, then, that proceedings on the Crown side of the Queen's Bench Division were not altogether excepted, by virtue of s.4, from the operation of the grant of power to award costs under s.5. I think the preferable view is that the grant in s.24(1) of the power over costs should be taken as ample subject only to sub-s.(2); and that sub-s.(2) should be taken as doing no more than preserving "the practice in any criminal proceeding" in the sense that the jurisdiction conferred by sub-s.(1) can be exercised only conformably with that practice. In this case the appellant claimed that the relevant practice in criminal proceedings was that flowing from the general rule, applicable in civil and criminal proceedings at common law, that the Crown neither gives nor receives costs[92]. That that rule was well-recognised long before the Act of 1890 is not in doubt. In Attorney General (Qld.) v. Holland[93] Griffith, C.J. spoke of the rule's being "generally accepted and recognised" in 1865, and he cited Moore v. Smith[94] decided in 1859. In 1852 in Lord Advocate v. Hamilton[95] Lord Brougham said: "I am exceedingly sorry that, according to an inflexible rule, we cannot give costs as against the Crown"; and just after the turn of the century, in R. v. Archbishop of Canterbury[96], Wright, J. referred to "the ancient doctrine that in matters at common law 'the Crown never paid nor received costs' as it is laid down by Lord Campbell C.J. in R. v. Beadle[97] (accord. R. v. Miles[98]; and see Lord Advocate v. Lord Dunglas[99]; Smith v. Earl of Stair[100]) ..'." See Robertson, Civil Proceedings by and against the Crown (1908) at 613.

91. That brings me to a consideration of "the ancient doctrine", the only foundation of a relevant "practice" relied upon by the appellant under s.24(2) to establish that there could be no costs awarded against him when Harper, J. refused his application for relief in the nature of certiorari. As given effect in criminal proceedings the rule, if such it still is, that the Crown neither gives nor receives costs was described thus by Forster and Pincus, JJ. in Goia at 213:-

"About the general rule as to costs in criminal cases, there can be no doubt `... in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown': per Gallop J in R v. J (No 2) [1983] FCA 228; (1983) 80 FLR 106 at 109; see also McEwen v. Siely (1972) 21 FLR 131 at 135. In R v. J Gallop J, with whose judgment the other members of the Full Court agreed, was dealing with an unsuccessful Crown appeal against sentence. The general rule as that case made clear, covers proceedings other than those in which the guilt or innocence of the accused is in question; it applies to appeals against sentence also. Further, it applies to applications for change of venue, and for adjournment, in criminal matters: R v. Kimmins; Ex parte A-G [1980] Qd R 524."

95. There is no doubt about the existence of the practice of granting no costs upon the trial of an indictable offence: that practice is borne out every day. As indicated by Forster and Pincus, JJ. in the passage just quoted, the same practice probably obtains on an interlocutory application relating to such a trial[101], although the question has been raised, by Miles, J. in particular, whether the practice should apply before any indictment or presentment has been filed: see his Honour's dissenting judgment in Goia and the qualification on his concurrence with Cooper, J. in Scott (in which the rule was applied to deny an accused costs when the prosecution was discontinued after committal but before the filing of an indictment). There must also be a question in Victoria whether the practice is relevant on an application in this Court for judicial review in relation to a criminal trial in the County Court. In such a case there is an antecedent question whether prerogative relief or the like will go after trial upon indictment or presentment[102]. In Clarkson it was held only that the applicant had an arguable case for relief in the nature of certiorari and no costs were ordered. In Wright, Danci & Currie, however, where the power of the trial court to grant costs upon an acquittal was the only question canvassed on the application for judicial review, costs were ordered against the applicant when judicial review was refused.[103]

98. 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].

101. In McEwan v. Waldron (No.1)[109] which involved the procedure by way of case stated after a County Court judge had dismissed an appeal against conviction by a magistrate, the Full Court ordered costs against the would-be appellant when it held that, because the matter was "criminal", no appeal lay from the decision of a single judge refusing to order a County Court judge to state a case. The appellant submitted to us that that order for costs was made per incuriam, no doubt because the making of the order does tell against the existence of any "practice" to the contrary. But that there was no such practice to the contrary gains support from Ex parte Dunn, ex parte Aspinall[110], where certiorari was sought to quash a conviction by a court of General Sessions for criminal contempt, a conviction which Cussen, J. held was beyond power. In granting the relief sought, his Honour granted costs too (although it is not clear from the report against whom that order ran). His Honour said[111]:-

"I have had some doubt about costs, but the orders nisi ask for costs, and I find that in other cases in which objections have been taken in the same way costs have been allowed. I therefore follow the ordinary rule and give the victor his costs."

This was said in 1906, well before the inclusion of s.32 in the Supreme Court Act 1928 and so at a time when this Court's general power over costs resided in the rules[112]. It shows that that there was at least no "practice" to refuse costs where prerogative relief was sought to an inferior court for want of jurisdiction.

106. As for relief by way of judicial review in relation to the exercise of summary jurisdiction, reference may be made to Magistrates' Court v. Murphy[113] in which this Court dismissed an appeal from the order of a judge in the Trial Division granting relief in the nature of prohibition directed to a magistrate who without sufficient cause, it was held, was proceeding immediately to try a matter summarily, denying natural justice. The order for prohibition had been made at first instance with costs, and the appeal (which was by the Magistrates' Court, presumably standing for the magistrate) was dismissed. The three judges had different views about the disposition of the appeal and in the end this Court's order, that the appeal be dismissed with no order for costs, was made by consent of the parties. But the order for costs made in the Trial Division was left untouched; it was apparently not challenged specially and the making of that order at least tells against any "practice" to the contrary. Presumably, the application for prohibition would have been characterised, on the authorities already canvassed, as a "criminal proceeding" by reference to the underlying proceeding. But I need not pursue the question of a practice any further; for the appellant's claim to be free of any order for costs on this occasion fails at another point.

109. As I have said, the only practice relied upon as relevant is that which flows from the rule, if such it be, that the Crown neither gives nor receives costs in proceedings at common law. Yet the appellant cannot demonstrate that the Crown was a party at any level in the present proceedings. In the Magistrates' Court, the appellant was defendant and the informant had the carriage of the prosecution; in the County Court the appeal was between the same parties; and in the Supreme Court the appellant was plaintiff and the informant, defendant. The offences with which the appellant was charged in the Magistrates' Court were all of them offences under the Summary Offences Act 1966 and informations under that Act may be laid by a number of persons, including an employee of a municipal council as well as the police: see s.56[114]. Under s.22 of the Public Prosecutions Act 1994, so far as presently relevant, it is the function of the Director of Public Prosecutions "to institute, prepare and conduct on behalf of the Crown" proceedings in respect of any indictable offence and "to take over and conduct any proceedings in respect of any summary or indictable offence". It is also a function of the Director "to institute, prepare and conduct on behalf of the Crown or be party to" proceedings claiming any remedy in the nature of prerogative relief "in relation to a criminal proceeding". Yet the Director has not been involved in the present proceedings at any point[115], which in itself tells against the submission that the Crown was involved. It was not.

112. In McEwen v. Siely[116], Fox, Blackburn and Connor, JJ. said:

"The Crown is not a party in petty sessions, where the proceedings are commenced by information, usually laid by a police officer or other official. When a police officer lays an information, he does not act on behalf of the Crown: he acts on his own responsibility (see Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 C.L.R. 237, at p.303; R. v. Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 Q.B. 118, at p.136."[117]

That is not to say that, when a police officer lays an information, the officer is not performing a public duty; he or she is (as is emphasised in cases dealing with the costs of such proceedings[118]); but that alone does not make the officer the Crown. The distinction is marked, as Dixon, J. pointed out in Munday v. Gill[119], when he said:-

"There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject."

See also to like effect the judgment of Sholl, J. in R. v. Tween[120], where his Honour rejected a plea of estoppel on the ground that in the earlier summary proceedings against the accused the Crown had not been a party, so that the parties were not the same on his later trial on indictment. In Goia[121], the application was to stay the trial of the applicant for an indictable offence, but the application was made after committal and before the filing of the indictment. The majority, in holding that no costs could be ordered when the applicant succeeded on the application for a permanent stay, treated the matter as ancillary to the trial on indictment. Miles, J., dissenting[122], pointed out that the respondent to the application was not in fact the Crown, but the informant who had had the carriage of the committal. His Honour thought that the respondent ought to have been the Crown but, as it was not, he considered that costs could be granted.

119. In Latoudis v. Casey[123], the principle that the Crown neither gives nor receives costs was, of course, much referred to and in the context, it must be said, of informations for theft and the like which were being dealt with summarily. The discussion of the Crown's position, however, was only in the context that the rule, such as it was, had been altogether displaced[124] by the statutory provision made for costs in the Magistrates' Court (and of course, as Brooking, J. observed in Wright, Danci & Currie, there could be no power to make an order for costs against the Crown in a common law proceeding if a statute did not authorise it). Latoudis was concerned only with the exercise of the discretion over costs which was plainly conferred by the statute. Perhaps of more significance for present purposes is the proposition in the judgment of Mason, C.J.[125] that Crown privilege in respect of costs was abrogated by what was a general statutory provision relating to the costs of defendants in all proceedings, albeit in terms of unsuccessful informants as well as complainants. The possibility that even Crown privilege could be so displaced is, however, in line with the early case of Moore v. Smith[126].

122. It is convenient at this point to mention specifically three of those early cases. In R. v. Beadle[127] in 1857, there was a general Act governing procedure with no reference to the Crown and the Court held that the Crown was not intended to be bound. In Moore v. Smith in 1859, there was a general Act governing procedure which extended expressly to the Attorney-General, empowering him to order a case to be stated by way of appeal; and so the section relating to the costs of such appeals was held to extend to the Crown by necessary implication. In Thomas v. Pritchard[128]in 1903, the Court had the Summary Jurisdiction Acts under consideration. The Summary Jurisdiction Act 1848 had expressly exempted any Crown revenue proceeding. The Summary Jurisdiction Act 1879, on the other hand, applied expressly to Crown revenue proceedings, inter alia, and the express exemption in the earlier Act was repealed. Accordingly, it was held that the 1848 Act now bound the Crown, even as to costs, and an appeal by way of case stated was allowed from the refusal of a stipendiary magistrate to order costs when an information preferred by the appellant succeeded.

125. I describe those three cases, not to demonstrate how the Crown may be bound by s.24 of the Supreme Court Act (a point to which I shall return shortly) but because none of them, in my opinion, stands for the proposition that the informant, in a case such as this, is the Crown. All three cases involved Crown revenue proceedings, which nowadays would doubtless be governed by specific statutes. According to the authorised report of Thomas v. Pritchard, the prosecution was "by order of the Commissioners of Inland revenue" and the information was preferred and the prosecution conducted on behalf of the Crown"[129]. In Moore v. Smith the information "though nominally laid by the respondent, an excise officer, was `commenced and prosecuted by order of the Commissioners of Inland Revenue' which was `word for word the same as the recital of the information in Regina v. Beadle ...' "[130]. Comparable proceedings nowadays would presumably be governed by statutes such as the Customs Act of the Commonwealth or, in this State, the Land Tax Act, the Payroll Tax Act or the Stamps Act (whether or not in conjunction with some other statute such as the Taxation Administration Act). On the civil side, proceedings by the Crown to recover property or revenue have been regulated in Victoria since at least the Crown Remedies and Liabilities Statute 1865 (now the Crown Proceedings Act 1958 Part 1), and all these statutes make express reference to the Crown. This is a far cry from, and is in stark contrast to, a summary prosecution under the Summary Offences Act in which it would be rare, I think, to find the Crown - or its representative, the Director of Public Prosecutions - showing any interest at all.

128. In short I see no justification for supposing that the Crown was party to the present proceedings at any level. None of the cases I have considered seems to me to provide any support for the proposition that the informant, laying an information under the Summary Offences Act, is the Crown or has the advantage of the privileges of the Crown. In R. v. Archbishop of Canterbury[131] Wright, J. said that, even where departmental administration was concerned "there must often be litigation which does not directly affect any prerogative of the Crown and as to which no good reason can be assigned for the denial of costs to the successful party"; and in my opinion, no good reason can be assigned for treating the police officer who lays an information under the Summary Offences Act as the Crown. The informant had no such special position before the magistrate or on the appeal to the County Court; nor, in my view, did that change when judicial review was sought in the Supreme Court. It follows that the only so-called "practice in any criminal proceeding" which is relied upon by the appellant under s.24(2) has no application to these proceedings and it cannot avail the appellant in his seeking to avoid any order for costs that can otherwise be justified under s.24(1).

Whether the Crown is bound by s.24

132. That disposes of all the contentions put on behalf of the appellant in relation to costs, save one: that s.24(1) does not "bind" the Crown. I suppose that that must mean, when the order for costs has been made against an individual party not the Crown, that the statute does not relate at all to proceedings brought by or against the Crown; but once it has been decided that the informant is not the Crown that submission cannot avail the appellant, any more than can the rule that the Crown neither gives nor receives costs. The two principles may be interwoven as Brooking, J. demonstrated in Wright, Danci & Currie, but neither is of any assistance to the appellant here.

135. On what has been said thus far, the question whether the Crown is bound by s.24 does not call for decision: aliter perhaps, if I am wrong in my conclusion that the informant is not the Crown. As at present advised, I am inclined to the view that s.24(1) does bind the Crown, accepting, as I do, that s.24(1) does not extend to trials upon indictment or presentment. In so deciding in Wright, Danci & Currie, Tadgell, J. referred to s.5 of the Judicature Act 1890 as not binding the Crown "in the absence of a statutory provision from which it might be inferred that it did bind the Crown or circumstances such as those referred to by Lord Macnaghten in Johnson [1904] A.C. 817 at 824 by reference to which the Crown ought to be bound".[132] In support, his Honour referred to In re Carbonit A.G.[133], and more particularly to what was said by Pollock, M.R.[134] and by Warrington, L.J.[135], but arguably, at least, what was said then about s.5 of the 1890 Act does not apply nowadays to s.24 of the Supreme Court Act 1986, given the very different context.

138. 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.

142. My conclusions are therefore as follows. For the reasons I have given:

(1) Section 24(1) of the Supreme Court Act 1986, which is the source in this case of the jurisdiction over costs exercised below, extends to this proceeding in the Trial Division for judicial review under Order 56 in respect of the hearing and determination in the County Court of an appeal from the Magistrates' Court after conviction.

(2) The operation of s.24(1) to confer jurisdiction over costs is, however, subject to s.24(2) and this proceeding in the Trial Division is a criminal proceeding in the relevant sense, according to cases which, in the main, have considered the right of appeal in a criminal proceeding.

(3) Subsection (1) does not cease to apply to a proceeding which is a "criminal proceeding" within the meaning of sub-s.(2). It operates still to confer jurisdiction over costs, but the jurisdiction must not be exercised otherwise than conformably with any relevant practice in criminal proceedings.

(4) The only practice relied upon by the appellant was that the Crown neither gives nor receives costs. That practice operates regularly upon the trial of indictable offences and probably in interlocutory proceedings relating to such trials, but query whether it has any application to a proceeding in which judicial review is sought under Order 56.

(5) The practice relied upon has no application to the present proceedings because the Crown was not a party, nor did it intervene, at any level. The informant was not the Crown.

It follows that the appellant's submission that no order for costs should have been made in the Trial Division must be rejected. Harper, J. had jurisdiction to make such an order and no attack has been made upon the exercise of his discretion. Thus, for these reasons and for the reasons given by Buchanan, J.A. I think that this appeal must be dismissed. It should be dismissed with costs.

148. In the light of that conclusion, I add one final comment. If the foregoing analysis is correct, the meaning and operation of s.24 of the Supreme Court Act 1986 are to be gathered, at least in part, from a history which goes back beyond the Judicature Acts. That seems to me quite unsatisfactory in the year 2000, especially as it is s.24 which confers on the Court a general jurisdiction over costs. It might be helpful therefore if Parliament were to reconsider this aspect of the Act with a view to its possibly making two amendments to the statute: the first, by including a provision similar to that in s.3(1) of the Supreme Court Act 1970 (N.S.W.) -

"Subject to this and any other Act, the Crown is bound by, and has the benefit of, this Act and the rules"[140] -

and the second, by substituting for the expression in s.24(2) "the practice in any criminal proceeding" something along these lines: "the practice on or in relation to the trial or proposed trial of a person on indictment or presentment", those being the words which are now in s.17A(3), circumscribing the right of appeal.

154. I agree with Buchanan, J.A. that this appeal should be dismissed, and, subject to what follows, for the reasons given by his Honour. I also agree with Phillips, J.A. that Harper, J. had power to order costs against the appellant, for the reasons he gives.

157. In substance, the argument for the appellant was that he could only have been guilty of resisting the police if they were acting in the course of their duty. The appellant's only relevant resistance was to his being handcuffed with his hands behind his back. It was submitted that police arresting a suspect have no right, merely because they are making an arrest, to handcuff the prisoner. The right to arrest only arises, so it was submitted, if something additional is shown. In the absence of such an additional circumstance, the arresting police, in seeking to handcuff the appellant, were not acting in the course of their duty. And if the judge was satisfied of the existence of such an additional circumstance, his Honour was obliged, so it was said, to state in his reasons the facts giving rise to that critical additional circumstance.

160. As to these propositions I require no persuasion that there is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to

determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner's escaping; or committing some further offence; or endangering the safety of persons or property.[141] If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.

164. Having said so much, I agree with Buchanan, J.A. that the circumstances described by the County Court judge as warranting the conclusion that the appellant be handcuffed do not disclose error of law, and the judge, from whose decision there was no appeal, was not required to detail the steps by which he proceeded from the facts stated to his final conclusion. In all the circumstances I agree with Buchanan, J.A. that no error has been disclosed which can attract relief in the nature of certiorari.

169. On 23 December 1996 in the Magistrates' Court at Prahran the appellant was convicted on a charge of offensive behaviour, contrary to the provisions of s.17(1)(d) of the Summary Offences Act 1966, and on two charges of resisting police officers in the execution of their duty, contrary to the provisions of s.52(1) of the Act. The appellant was placed on a good behaviour bond. He then appealed to the County Court. After a re-hearing the judge dismissed the charge of offensive behaviour and found the charges of resisting police in the execution of their duty proven. He, too, placed the appellant upon a good behaviour bond.

172. 47 The appellant then brought a proceeding in the Supreme Court in the form of an originating motion seeking an injunction and relief by way of mandamus and certiorari. Harper, J., who heard the case, treated the proceeding as an application pursuant to Order 56 of the Supreme Court Rules, so that he was able to entertain the claims for relief by way of mandamus and certiorari, but not the claim for an injunction.

175. The offences arose from an encounter between the appellant and two police officers, the second and third respondents, early in the morning of 17 January in a street in Hawthorn. The respondents, who were patrolling in a police van, encountered the appellant clothed only in a woman's dress which he had on inside out and which was open at the front. The County Court judge found that "the appellant was in a highly agitated and upset state ... his appearance was dishevelled and unusual. He was wearing a woman's dress and make-up, he had been consuming intoxicating liquor and was to some extent under the influence." He said:

"I find that the arresting police believed on reasonable grounds that an offence had been committed. I also find that the police believed on reasonable grounds that the apprehension of the appellant was necessary for ensuring the appearance of the appellant before a court of competent jurisdiction."

179. The reasonable beliefs found by the judge were relevant because of ss.458(1)(a)(i) and 462 of the Crimes Act 1958, which provide that any person may arrest another person found committing an offence or so behaving that the first person believes on reasonable grounds that the other person is guilty of an offence, where the first person believes on reasonable grounds that the arrest of the other person is necessary to ensure the appearance of the offender before a court of competent jurisdiction or to preserve public order or to prevent the continuation or repetition of the offence or the commission of a further offence or for the safety or welfare of members of the public or of the offender. His Honour relied upon only the first of the reasons justifying arrest.

182. It was contended on behalf of the appellant that the County Court judge erred in law in respect of three issues. The first was whether the police were acting in the execution of their duty when they were resisted by the appellant. Counsel for the appellant submitted that handcuffing a person who has been arrested is only justified in order to prevent escape, the commission of a further offence or the continuation of an offence[142], and no such necessity was present in this case. The second issue was whether the prosecution had established the element of mens rea. It was submitted on behalf of the appellant that there was no intent to resist arrest as the appellant resisted the placing of handcuffs on his wrists behind his back because he wanted to use his hands to keep the dress closed and preserve his decency. The third issue was whether the police believed on reasonable grounds that it was necessary to apprehend the appellant to ensure his appearance at court. Counsel for the appellant submitted that no such necessity was demonstrated in this case.

185. In attempting to establish that the decision of the County Court judge was vitiated by error the appellant faced difficulties posed by the limitations to which relief in the nature of mandamus and certiorari is subject.

188. The proceedings in this Court were not by way of appeal from the County Court judge. The principal relief claimed was in the nature of certiorari, which limited the Supreme Court to quashing the order of the County Court judge on one or more of a number of well-settled grounds. The jurisdiction was described by Brennan, Deane, Toohey, Gaudron and McHugh, JJ. in Craig v. South Australia[143] in the following terms:

"[Certiorari] is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing ... of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error ..., failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record' ... Where the writ is sought on the grounds of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

192. In the decision from which the appeal to this Court has been brought Harper, J. concluded that the reasons of the County Court judge disclosed no error of law and his decision was not vitiated by any jurisdictional error. Although the submissions made to this Court differed from those made by Harper, J. in certain respects, in my opinion his Honour's conclusions were correct.

195. In an attempt to establish a basis justifying the grant of relief in the nature of certiorari in respect of the first and third issues, it was submitted on behalf of the appellant that there was error on the face of the record in that the County Court judge's reasons did not contain findings of fact which established that it was necessary to handcuff the appellant in order to prevent his escape or the commission or continuation of a criminal offence or that it was necessary to apprehend the appellant to ensure his appearance at court.

198. The submission was founded upon the proposition that a judicial tribunal is obliged in law to state reasons for its decisions. The notion that such a duty exists is of comparatively recent origin, and appears to be the product of the introduction of appellate courts and the decline of jury trials. Statements of the need for reasons to be given in order to prevent the frustration of the right of appeal were made with increasing frequency as the twentieth century progressed.[144] In Pettit v. Dunkley[145] it was held that a trial judge's failure to give reasons constituted an error of law. Moffit, J.A., with whom Manning, J.A. agreed, linked the duty to the right of appeal, saying:

"I do not think there is any judicial duty to state reasons except so far as such duty can be related to a right of appeal."[146]

The remaining member of the Court, Asprey, J.A., holding that the want of reasons constituted an error of law, similarly relied on the effect which want of reasons had upon a right of appeal, but he also rested his opinion on wider ground, speaking of "the function which the law calls upon him as a judicial person to exercise."[147] In Public Service Board of New South Wales v. Osmond[148] Gibbs, C.J. referred to Pettit v. Dunkley saying that "The decision in that case that the failure to give reasons was an error in law may have broken new ground."[149] In Housing Commission of N.S.W. v. Tatmar Pastoral Co.[150] Mahoney, J.A., referring to Pettit v. Dunkley, said that a statement of reasons may be necessary to enable a party to exercise his right of appeal. He went further, saying:

"But, in my opinion, the requirement that reasons be given should not be limited to a case where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process."[151]

204. There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision.[152] That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal[153], although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling[154], and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons' rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles.[155] Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision.

207. In the present case there was no right of appeal from the County Court judge's decision. Counsel for the appellant submitted that reasons were required to be given in order to facilitate the exercise of his power to bring proceedings for judicial review. If that were so, reasons would be required to be given for every administrative decision subject to judicial review, yet, as the High Court held in Public Service Board of New South Wales v. Osmond, there is no general rule which requires reasons to be given for administrative decisions, even those liable adversely to affect a person's rights or interests.[156]

210. It was submitted on behalf of the appellant that the failure of the County Court judge to give reasons for his decision constituted a breach of the rules of natural justice, and thus there was a basis for granting relief in the nature of certiorari. In Public Service Board of New South Wales v. Osmond Gibbs, C.J. said:

"The rules of natural justice are designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made."[157]

In one way or another the rules of natural justice are concerned with the requirement that decisions affecting the rights of citizens shall be reached only after a fair hearing. That will occur if the tribunal observes the rule audi alteram partem and its members are not interested in the subject matter of the hearing: nemo debet esse judex in propria sua causa. [158] In my view the requirements of natural justice do not extend to the form in which the decision is pronounced.

215. In Garrett v. Nicholson[159] the Full Court of Western Australia considered the reasons for decision of a magistrate and held that they were sufficient to enable an appellate court to consider and determine whether or not the magistrate's judgment was erroneous. Owen, J., repeating what he had said in an earlier case, added:

"In Wright v. Australian Broadcasting Commission the court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give a relevant reason in circumstances which deprive a party of an effective right of appeal conferred by statute. To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford the litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful."[160]

219. With respect, I do not think that the rules of natural justice or procedural fairness are entirely synonymous with fairness in a general sense so that any act or omission by a tribunal which comes within the ambit of the somewhat amorphous word "unfair" will be treated as a breach of a rule vitiating the tribunal's decision. If it is a rule of natural justice that a tribunal must give reasons for its decisions, it is unlike the rules hitherto recognized as rules of natural justice in that it is subject to exceptions and qualifications, and does not apply to all the decisions of tribunals bound by the established rules. Thus a court's decision to award costs against a party may not require reasons[161], nor may a decision in a purely procedural application involving only the exercise of a discretion[162], although the court is obliged to hear the party against whom the order is made if the party wishes to be heard.

222. In my view, the suggested rule of natural justice that decisions must be supported by reasons extends the rules beyond the regulation of the manner in which decisions are made. To date the rules of natural justice have been limited to ensuring the fairness of the procedure leading to a decision and have not been concerned with the fairness of the decision resulting from the procedure. Notwithstanding the view of Deane, J. that the rules of natural justice require decisions to be based on probative and relevant material[163]

, the High Court has emphasised the procedural nature of the rules of natural justice.[164] In my view a requirement that adequate reasons be furnished for decisions relates to the fairness of decisions rather than the fairness of the procedure leading to decisions.

227. Accordingly, I am not prepared to say that any deficiency in the reasons of the County Court judge in the present case entails the result that the decision must be set aside. In any event, assuming that reasons were required to render the decision valid, in my opinion the appellant has not established that adequate reasons were not given. The judge who heard the proceeding reviewing the decision of the County Court judge made the same assumption and concluded that the reasons were adequate.

230. The County Court judge's comments upon the handcuffing of the appellant were confined to the following statement:

"It was appropriate in my view that he should be handcuffed because of his own actions."

The judge had earlier described the police observing the appellant running with his dress streaming behind him, his made-up face, his dishevelled appearance and his highly agitated and emotional state. Those appeared to be the circumstances which the County Court judge held warranted the conclusion that it was appropriate that the appellant be handcuffed. While one might debate the correctness of the conclusion, I do not consider that there was any error of law in the manner in which the judge expressed his reasons. In my view the judge was not required to detail the steps by which he proceeded from the facts he stated to his final conclusion.

235. The degree of detailed reasoning required of a tribunal depends upon the nature of the determination, the complexity of the issues and whether the issues are ones of fact or of law or of mixed fact and law, and the function to be served by the giving of reasons. As to the last matter, reasons which are required to enable a right of appeal on questions of fact to be exercised might not be required if an appeal is limited to questions of law. In Soulemezis v. Dudley Holdings Pty. Ltd the applicant appealed against the finding made in the Compensation Court of New South Wales that she was "fit for work" after a particular date, contending that the judge committed an error of law in failing to give any or sufficient reasons for that finding. The right of appeal was given only in respect of a question of law. It was held that the duty to give reasons for a decision in respect of a finding of fact from which no appeal lay was sufficiently satisfied by the giving of grounds for the finding without detailed reasoning in support of the findings. McHugh, J.A. said:

"While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact."[165]

In the present case the judge said that the justification for handcuffing the appellant lay in his actions. The grounds for his decision appear, for he described those actions. Similarly, the judge's stated findings as to the appellant's appearance and actions reveal the grounds for his finding that the police believed on reasonable grounds that it was necessary to arrest the appellant to ensure his appearance before a court. Again, while different views might be held as to whether the finding was correct, the judge did express adequately the basis of his finding.

240. The appellant's attempt to attack the decision of the County Court judge for want of reasons was rendered difficult by the form of the proceeding challenging the decision. The extent of the duty to give reasons will depend upon the way in which the case has been conducted. A judge may properly limit himself to determining facts which are in issue and dealing with the points which have been taken and the submissions made in relation to them.[166] The court conducting a judicial review by way of certiorari is limited to the record of the court or tribunal subject to the review. The evidence and the submissions made to the County Court judge can be considered only if they emerge from the record of the County Court and, as will be seen, the record extends no further than the judge's reasons.

243. In an affidavit in the Supreme Court proceeding the appellant deposed:

"Despite the fact that I had made no attempt to escape, the two police then commenced to handcuff me. It was apparent that they wished to handcuff me with my hands behind my back. If my hands were removed from the front of me where my hands were holding the dress - which I had run out of the house without buttoning up - together across my front, and in particular in front of my genitalia which would otherwise have been exposed."

This material was relied upon to found the submission that the element of mens rea had not been established, for the appellant resisted the placing of handcuffs on his wrists behind his back only in order to keep his hands free to hold the front of his dress to prevent the exposure of his genitalia.

248. It was submitted that there was error on the face of the record in that the County Court judge did not canvass the question of intent. I doubt the correctness of the assumption underlying the submission, that the state of mind deposed to by the appellant precluded the formation of the requisite intent. A person's motive, in the sense of his ultimate reason for acting, is in general irrelevant to criminal liability.[167] Even if it could be said that the appellant's conscious object was not to resist arrest, he must have been aware that what he was doing was likely to impede the police, but nevertheless persisted. The appellant's mens rea was at least constituted by recklessness.[168]

251. In any event the submission can only succeed if the material in the affidavit is taken into account. The general rule is that the reasons of a tribunal are not part of the record.[169] The rule, however, must yield to statute. In Hansford v. Judge Neesham[170] J.D. Phillips, J. held that the effect of s.10 of the Administrative Law Act 1978 was that the record for the purposes of certiorari included any statement by an inferior court, whether made orally or in writing, of its reasons for decision.[171] In the present case the reasons themselves do not disclose any issue as to mens rea. The question of motive and the facts used to found the appellant's argument emerge only from the matters deposed to in the affidavit.

254. The facts in this case were straightforward and in a small compass. There does not appear to have been any issue as to the relevant principles of law. In my opinion the findings stated by the County Court judge did adequately disclose the basis on which he founded his ultimate conclusions and the law which he applied in doing so. In my opinion Harper, J. was correct in dismissing the proceeding.

257. I agree with Phillips, J.A. that Harper, J. had power to order costs against the appellant. Accordingly, I would dismiss the appeal.

[1] [1912] VicLawRp 43; [1912] V.L.R. 225 and 241-2 per Cussen, J.

[2] [1990] VicRp 65; [1990] V.R. 745 at 747 per Murphy, J.

[3] [1990] HCA 59; (1990) 170 C.L.R. 534

[4] [1992] HCA 28; (1992) 174 C.L.R. 178

[5] [1993] VicRp 13; [1993] 1 V.R. 203

[6] (1992) 77 A.Crim.R. 67

[7] (1993) 11 W.A.R. 159

[8] [1993] FCA 398; (1993) 42 F.C.R. 1 (116 A.L.R. 703)

[9] [1998] HCA 11; (1998) 193 C.L.R. 72

[10] Even, it would seem, when the Crown was a party; for example, when the Attorney-General participated in a suit concerning charity: Moggridge v. Thackwell [1803] EngR 572; (1803) 7 Ves.Jun. 36 at 88, 35 E.R. 30 at 35; Robertson, Civil Proceedings by and against the Crown (1908) 621-2.

[11] Oshlack at 95 per McHugh, J. See also Garnett v. Bradley (1878) 3 App.Cas. 944 at 954 per Lord Hatherley.

[13] O.65 r.1 (Eng.) was copied into the 1884 Rules of Court made in Victoria under the Judicature Act 1883 (Vic.); see also and compare r.3 of the August 1884 Rules which was to govern proceedings commenced after 30 June 1884 and before 1 January 1886: Hamilton's Judicature Act 1883, pp.312, 452. (For the making of the 1884 rules in Victoria see Hamilton, pp. 67-68, D.C.T. v. Carpenter [1959] VicRp 68; [1959] V.R. 470 at 472.) A rule similar to O.65 r.1 continued to appear in Victoria through successive versions of general rules of court until those rules were significantly recast in 1986, with effect from 1 January 1987.

[14] (1886) 34 Ch.D. 24

[15] [1892] 2 Q.B. 173

[20] (1894) 70 L.T. 845

[21] [1986] A.C. 965

[22] [1988] 3 All E.R. 173

[23] [1992] HCA 28; (1992) 174 C.L.R. 178

[24] [1993] VicRp 13; [1993] 1 V.R. 203

[25] [1998] HCA 11; (1998) 193 C.L.R. 72

[26] In Wright, Danci & Currie (1992) 77 A.Crim.R. 67 the question for determination was the ambit, not of s.24(1) of the Supreme Court Act, but of s.78A of the County Court Act 1958. It was held that s.78A, like its counterpart s.24(1), could never have been intended to apply to criminal trials (meaning trials on presentment or indictment). As their Honours observed, in this Court that conclusion may not be important because, even if s.24(1) did apply to criminal trials, s.24(2) operated to save the existing practice as to costs in such matters; but s.78A of the County Court Act contained no such express saving and hence the need to construe that provision with particular care.

[28] [1894] 1 Q.B. 453

[29] [1894] 2 Q.B. 382

[30] [1889] W.N. 190

[31] [1892] 2 Q.B. 173

[32] [1906] 2 K.B. 501 at 540-7

[34] As to quo warranto, see also s.31 of the Supreme Court Act 1928.

[36] This was save for error of law on the face of the record.

[37] (1888) 20 Q.B.D. 832 at 835

[38] [1943] A.C. 147 at 156

[39] [1921] 2 A.C. 570 at 580

[40] [1959] VicRp 34; [1959] V.R. 205 at 206

[41] (1883) 10 Q.B.D. 378

[42] (1876) 2 Q.B.D. 43

[43] (1881) 7 Q.B.D. 534

[44] [1891] 2 Q.B. 428

[45] [1917] 2 K.B. 99

[46] (1890) 15 P.D. 59

[47] See Stroud's Judicial Dictionary (5th edn, 1986) "criminal cause"

[48] See, for example, the discussion of some of the cases in Carter at 172-174 per Malcolm, C.J.

[49] [1912] VicLawRp 43; [1912] V.L.R. 225 at 242

[50] (1993) 11 W.A.R. 159

[51] See also Day v. Grant [1987] Q.B. 972.

[52] [1990] VicRp 65; [1990] V.R. 745 at 747-9

[53] [1912] VicLawRp 43; [1912] V.L.R. 225

[54] [1912] V.L.R. at 240 per Hodges, J. See also Smith v. R. [1994] HCA 60; (1994) 181 C.L.R. 338 at 344.

[55] [1912] V.L.R. at 241-2 per Cussen, J.

[56] [1959] VicRp 34; [1959] V.R. 205

[57] [1963] VicRp 74; [1963] V.R. 547 at 549-550

[58] [1893] VicLawRp 52; (1893) 19 V.L.R. 286

[59] [1958] VicRp 19; [1958] V.R. 101

[60] [1973] VicRp 67; [1973] V.R. 682 at 688

[61] (1901) 27 V.L.R. 205

[62] (1902) 28 V.L.R. 475

[63] 27 V.L.R. especially at 208 per Madden, C.J., speaking for the Court.

[64] [1976] VicRp 49; [1976] V.R. 495

[65] The amendment was made by the Supreme Court (Amendment) Act 1994 (Act No.10075) s.4. The amended s.42 was considered in R. v. Kean & Mills [1985] VicRp 21; [1985] V.R. 255; see Smith v. R. [1994] HCA 60; (1994) 181 C.L.R. 338 at 344-5.

[66] [1990] VicRp 65; [1990] V.R. 745 at 750

[67] [1990] VicRp 43; [1990] V.R. 494

[68] [1994] HCA 60; (1994) 181 C.L.R. 338

[69] In consequence of the restructuring of the Supreme Court to create the Court of Appeal, achieved by the Constitution (Court of Appeal) Act 1994, Act No.109 of 1994.

[70] This expression had appeared in the Supreme Court Act 1890 (Vic.) and it appeared again in the 1928 Act (for example, s.23).

[71] [1906] VicLawRp 100; [1906] V.L.R. 584

[73] R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Osman [1988] 3 All E.R. 173

[74] (1993) 11 W.A.R 159

[75] [1993] FCA 398; (1993) 42 F.C.R. 1

[76] [1958] VicRp 19; [1958] V.R. 101

[77] As to which see paragraph 17, above.

[78] Contrast Parramatta City Council v. Gestetner Pty. Ltd. [1979] 2 N.S.W.L.R. 160 at 163 where Rath, J. refers the power to order costs against a party who has wrongly invoked the jurisdiction of the Court to the inherent power of a superior court; see also Quick on Costs para.[2.70]

[79] See also s.5 which, subject to any express enactment to the contrary and the rules of court, saves "the practice and procedure in all criminal proceedings", the precursor to which was surely s.71 of the Judicature Act 1873.

[80] [1993] FCA 398; (1993) 42 F.C.R. 1 especially at 26-29

[81] [1892] 2 Q.B. 173

[82] (1988) 19 F.C.R. 212 (35 A.Crim.R. 473)

[84] [1993] FCA 398; 42 F.C.R. 1 especially at 12

[85] The submission appears to be inconsistent, too, with the approach taken by Lowe and O'Bryan, JJ. in Crittendon, that an order for costs could be made against a would-be appellant, although the appeal was incompetent because it was in a "criminal" cause or matter: see paragraph 19, above.

[86] [1894] 1 Q.B. 453 at 461

[87] [1894] 2 Q.B. 382 at 384, 385

[88] [1906] 2 K.B. 501 at 540 ff.

[92] Affleck v. R. [1906] HCA 2; (1906) 3 C.L.R. 608 at 630 per Griffith, C.J.

[93] [1912] HCA 26; (1912) 15 C.L.R. 46 at 49

[94] [1859] EngR 276; (1859) 1 El & El 597, 120 E.R. 1034

[95] (1852) 1 Macq. 46 at 55

[96] [1902] 2 K.B. 503 at 571-2

[97] [1857] EngR 427; (1857) 7 El. & Bl. 492, 119 E.R. 1329

[98] [1797] EngR 510; (1797) 7 T.R. 367, 101 E.R. 1024

[99] (1842) 9 Cl. & F. 173, 8 E.R. 381

[100] [1849] EngR 888; (1849) 2 H.L.C. 807, 9 E.R. 1300

[101] In Rozenes v. Beljajev [1995] VicRp 34; [1995] 1 V.R. 533, Rozenes v. Judge Kelly [1996] VicRp 20; [1996] 1 V.R. 320 and D.P.P. v. Judge G.D. Lewis [1997] 1 V.R. 391 the Crown challenged rulings made in the course of criminal trials in the County Court. Declaratory relief was granted in each case, but, so far as is disclosed in the report of the case, no order was made for costs; quite possibly none was sought.

[102] see Clarkson especially at 751-3

[103] See also D.P.P. v. Deeks (1994) 34 N.S.W.L.R. 523 at 535-6.

[104] First, the procedure was by way of case stated: see the Justices of the Peace Statute 1865 s.150. The procedure by way of order to review was introduced by the Justices of the Peace Act 1887 s.150-161 and replicated in its successor, the Justices Act 1890 s.141-152.

[105] Justices Act 1890 s.139

[106] Latoudis v. Casey was decided on the legislation in place in Victoria before the Magistrates' Court Act 1989 replaced the old procedure of order to review, legislation which expressly authorised an award of costs on the return of the order nisi. I suppose the same was so in Yanner v. Eaton [No.2] (1999) 74 A.L.J.R. 376, especially note 1.

[107] [1998] 4 V.R. 294 at 299-300

[108] For example, costs were granted in both the Trial Division and the Court of Appeal, apparently without objection, in Norton v. Morphett (Court of Appeal 31 October 1995, unreported) and Nguyen v. Hoekstra (Court of Appeal 3 March 1998, unreported) to which we referred by the parties.

[109] [1976] VicRp 49; [1976] V.R. 495

[110] [1906] VicLawRp 100; [1906] V.L.R. 584

[113] [1997] 2 V.R. 186

[114] Compare Greenwood v. Leary [1919] VicLawRp 14; [1919] V.L.R. 114.

[115] Contrast Hoi v. Larkman (19 February 1997, unreported) an appeal to this Court under s.92 of the Magistrates' Court Act 1989 after summary conviction. The appeal was dismissed in the Trial Division with costs and so too an appeal to the Court of Appeal. Special leave to appeal was refused by the High Court on 14 November 1997 (M12 of 1997). Costs were not granted because no application for costs had been foreshadowed. Gaudron, J. spoke in terms of its being inappropriate in the particular circumstances (not generally) "to award costs in favour of the Crown", but by then the Director of Public Prosecutions had taken over the matter and the Crown was involved.

[116] (1972) 21 F.L.R. 131 at 134

[117] See also A-G (N.S.W.) v. Perpetual Trustee Co. (Ltd.) [1955] HCA 9; (1955) 92 C.L.R. 113 (J.C.); and contrast Konrad v. Victoria Police [1999] FCA 988; (1999) 165 A.L.R. 23.

[118] For example, Lewis v. Utting; ex parte Utting [1985] 1 Qd.R. 423 at 442 per Carter, J. (with whom Campbell, C.J. and Mattews, J. agreed generally), Latoudis v. Casey 170 C.L.R. at 538 per Mason. C.J., at 544-5 per Brennan, J., at 559 per Dawson, J., at 567 per McHugh, J.

[119] [1930] HCA 20; (1930) 44 C.L.R. 38 at 86-7

[120] [1965] VicRp 89; [1965] V.R. 687 at 697-8

[121] (1988) 19 F.C.R. 212

[123] [1990] HCA 59; (1990) 170 C.L.R. 534

[124] 170 C.L.R. at 538 per Mason, C.J. See also Ex Parte Hivis (1933) 50 W.N. (N.S.W.) 90 at 92.

[125] 170 C.L.R. at 542. See also Acuthan v. Coates (1986) 6 N.S.W.L.R. 472 at 480 per Kirby, P.

[126] [1859] EngR 276; (1859) 1 El & El 597, 120 E.R. 1034

[127] [1857] EngR 427; 7 El & Bl 492, 119 E.R. 1329

[128] [1903] 1 K.B. 209

[130] 1 El. & El. at 599, 120 E.R. at 1034, arguendo

[131] [1902] 2 K.B. 503 at 572

[136] Compare Constitution Act 1975 s.85(3).

[137] For example, it is expressly provided by s.25 of the Crown Proceedings Act 1958 that in civil proceedings by and against the Crown under Part II of that Act the rights of the parties shall as nearly as possible be the same as in a proceeding between subject and subject.

[139] Compare Re Duff [1918] VicLawRp 65; [1918] V.L.R. 426, especially at 429 per Cussen, J.

[140] Wentworth v. Attorney-General (N.S.W.) [1984] HCA 70; (1984) 154 C.L.R. 518 at 528.

[141] See Kumar v. Minister for Immigration [1991] FCA 130; (1991) 28 F.C.R. 128, per Lockhart, J. at 130-131, and the cases there cited.

[142] Kumar v. Minister for Immigration [1991] FCA 130; (1998) 28 F.C.R. 128 at 130-1; R. v. Stafford (1976) 13 S.A.S.R. 393 at 401.

[143] [1995] HCA 58; (1995) 184 C.L.R. 163 at 175-6.

[144] Donovan v. Edwards [1922] VicLawRp 10; [1922] V.L.R. 87 at 88; Brittingham v. Williams [1932] VicLawRp 35; [1932] V.L.R. 237 at 237-40; Romilly v. Romilly (1934) 50 T.L.R. 386; Ex p. Powter (1945) 45 S.R.(N.S.W.) 1 at 4; Carlson v. King (1947) 64 W.N.(N.S.W.) 65 at 66; De Iacovo v. Lacanale [1957] E.R. 553 at 557-9; Lock v. Gordon [1960] V.R. 185 at 187.

[145] [1971] 1 N.S.W.L.R. 376. See also Sun Alliance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8.

[147] At 382. In Flannery v. Halifax Estate Agencies Ltd. [1999] EWCA Civ 811; [2000] 1 All E.R. 373, the Court of Appeal said that the rationale of the duty to give reasons for a judicial decision had two principal aspects. The first was that fairness required that the parties should be left in no doubt why they had won or lost and that was especially so since without reasons the losing party might be deprived of an available appeal. The second was that performance of the duty was more likely to result in a decision soundly based on the evidence.

[148] (1986) 159 C.L.R. 656 at 668.

[149] At 668. In Penfold v. Penfold [1980] HCA 4; (1980) 144 C.L.R. 311 the Court noted Gibbs, C.J.'s remark, but expressed no view upon the point. In that case it was held that the absence of reasons for findings supporting an order for costs did not in itself indicate that a judge had erroneously exercised his discretion to award costs, notwithstanding that costs were in issue.

[150] [1983] 3 N.S.W.L.R. 378.

[151] At 386. Cf. R. v. Arnold [1998] VSCA 34; [1999] 1 V.R. 179 at 181-3 per Phillips, J.A.

[152] See Hockey v. Yelland [1984] HCA 72; (1984) 157 C.L.R. 124 at 143 per Wilson, J.

[153] See Cropp v. T.A.C. [1998] 3 V.R. 357 at 376 per Charles, J.A.; Wright v. Australian Broadcasting Commission [1977] 1 N.S.W.L.R. 697; Palmer v. Clarke (1989) 19 N.S.W.L.R. 158; Lloyd v. Faraone [1989] W.A.R. 154, at 163-4 per Malcolm, C.J.; Stojkovski v. Fitzgerald [1989] W.A.R. 328. In QBE Insurance Ltd v. Switzerland Insurance Workers Compensation (NSW) Ltd. [1996] HCA 1; (1996) 134 A.L.R. 433, the New South Wales Court of Appeal had dismissed a cross-appeal without considering the only ground of appeal on which the cross-appellant relied. The High Court set aside the order of the Court of Appeal and remitted the cross-appeal to be re-determined by that Court.

[154] See Wightman v. Johnston [1995] V.R. 637; Waribay Pty.Ltd. v. Minter Ellison [1991] VicRp 78; [1991] 2 V.R. 391 at 402 per Young, C.J. and Kaye, J.

[155] See D.P.P. v. Suckling [1999] VSCA 190 at [5-6] per Tadgell, J.A.

[156] The method by which the Court of Kings Bench kept justices within their jurisdiction by requiring them to state all the matters that enabled their decisions to be effectively policed by means of the writ of certiorari, which was described by Jordan, C.J. in Ex parte Lovell; re Buckley (1938) 38 S.R.(N.S.W.) 153 at 165-7, has not been generally applied to tribunals subject to the writ.

[158] There is some authority for a third rule, that decisions must be based upon logically probative and relevant material. Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 C.L.R. 321 at 368 per Deane, J.; Mahon v. Air New Zealand [1983] UKPC 29; [1984] A.C. 808 at 820-821; Minister for Immigration and Ethnic Afairs v. Pochi [1980] FCA 85; (1980) 31 A.L.R. 666 at 687-690 per Deane, J.; R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 Q.B. 456 at 488 per Diplock, L.J.

[159] [1999] WASCA 32; (1999) 21 W.A.R. 226. See also Matzebula v. Vandeklashorst [2000] WASCA 141.

[162] Capital and Suburban Properties Ltd. v. Swyscher [1976] Ch. 319 at 325 per Buckley, L.J. See also Apps v. Palet (1987) 11 N.S.W.L.R. 350 at 356 per McHugh, J.A. (as he then was).

[163] See the cases referred to in fn [[].

164] Kioa v. West [1985] HCA 81; (1985) 159 C.L.R. 550 at 583-585 per Mason, J. and 622 per Brennan, J.; Attorney-General v. Quin (1990) 170 C.L.R. 1; Australian Broadcasting Tribunal v. Bond above, at 356-457 per Mason, C.J., 365 PER Brennan, J. and 387 per Toohey and Gaudron, JJ.

[165] At 282. See also Sun Alliance Assurance Ltd. v. Massoud, above, at 19. In Kiama Constructions Pty. Ltd. v. Davey (1996) 40 N.S.W.L.R. 639 at 657, Meagher, J.A. said of the reasons given by a trial judge that they "... may be brief, but the steps in his reasoning are apparent and indicate no error of law".

[166] See Soulemezis v. Dudley Holdings Pty. Ltd. at 270 per Mahoney, J.A.

[167] R. v. McKay [1957] VicRp 79; [1957] V.R. 560 at 562; Hyam v. D.D.P. [1975] A.C. 58 at 73.

[168] See Leonard v. Morris (1975) 10 S.A.S.R. 529 at 531 per Bray, C.J.

[169] See Craig v. South Australia, above, at 180-3.

[171] See also Flynn v. D.P.P. [1998] 1 V.R. 322 at 334-7 per McDonald, J. and Thompson v. Judge Byrne [1998] 2 V.R. 274 at 280 per Charles, J.A.