Plaintiff v Second Respondent

1 The plaintiff seeks to review orders made in the Magistrates' Court at Frankston on 22 July 2014 under Order 56 of the Supreme Court (General Rules) 2005 ('Rules'). The order subject to review is an order for costs against the plaintiff arising out of the issuing by him of a witness summons in the context of his prosecution for a traffic violation. The trial of the proceeding was referred to me pursuant to r 77.05 of the Rules.[1]

2 On 14 November 2012 the plaintiff was detected by a traffic camera driving his motor vehicle at 108 km/h at Wellington Road Bridge on a section of the road named East Link. The alleged speed was 105 km/h. Upon receipt of the traffic infringement notice he elected to dispute the matter in Court. Subsequently he received a charge and summons returnable on 1 August 2013 at the Magistrates' Court at Frankston.[2]

3 The charge was that of exceeding the speed limit contrary to r 20 of the Road Safety Road Rules 2009. That gives rise to an absolute liability offence.[3] The brief of evidence served on the plaintiff under the Criminal Procedure Act 2009 ('CPA') included a Certificate under Section 83 of the Road Safety Act 1986 ('RSA') as evidence of compliance with the Road Safety (General) Regulations 2009 (rr 35, 36 and 37), and a Certificate of an authorised person under Section 83A of the RSA.

4 The Certificate under Section 83 of the RSA was signed by Pierre Philippeau, a testing officer of SGS Australia Pty Ltd ('SGS Australia').[4] This lead the plaintiff to issue a witness summons pursuant to r 24 of the Magistrates' Court Criminal Procedure Rules 2009 ('subpoena') directed to Mr Pierre Philippeau of SGS Australia for the production of twelve categories of documents relating to the testing, calibration and use of the traffic camera positioned at Wellington Road Bridge on East Link at Rowville, Victoria.[5]

5 On 29 August 2013, at a hearing of what appears to have been an application to set aside the subpoena, the Magistrate at Frankston, Mr FR Hodgens, set aside the subpoena and ordered the plaintiff to pay costs in the sum of $6,140.

6 The plaintiff applied to this Court for a judicial review of the orders made by Magistrate Hodgens pursuant to Order 56 of the Rules. In broad terms there were two decisions the subject of the review. First, the decision to set aside the subpoena. Secondly, the order as to costs. His Honour Justice T Forrest came to the following conclusions (so far as presently relevant):[6]

(a) The Magistrate committed no error of law that is apparent on the face of the record when he found the plaintiff did not have a legitimate forensic purpose for seeking production of the subpoenaed documents, and it was not manifestly unreasonable for him to so find. In consequence, the application for an order in the nature of certiorari quashing the decision to refuse the plaintiff's subpoena was dismissed;

(i) The Magistrate did not err in the exercise of his discretion under s 131(1) of the Magistrates Court Act 1989 ('MCA') when he awarded costs that were inconsistent with costs outcomes in cases prosecuted by the police and disproportionate to the criminality of the alleged offending; and

(ii) The costs order was not manifestly unreasonable;

The Magistrate constructively failed to exercise the jurisdiction conferred upon him by s 131(1) of the MCA in failing to consider relevant matters. Because matters that go to the principles of consistency and proportionality are relevant to the exercise of the discretion under s 131(1), these matters are mandatory considerations such that a failure to consider them will constitute jurisdictional error, and it was more probable than not that the Magistrate failed to consider them.

7 Accordingly, his Honour quashed the costs order of 29 August 2013 and directed the Magistrates' Court to rehear and determine the costs application according to law.

The Reasoning of T Forrest J Leading to Quashing the Costs Order

8 His Honour referred to the submissions of the parties, the source of the power as to costs (s 131(1) of the MCA), the principles applicable to appeals from the exercise of the costs discretion (which principles apply equally where a court exercises a supervisory jurisdiction)[7] and the principles of proportionality and consistency that ordinarily guide the judicial discretion to award costs. In this regard, he referred the decision of Osborne J (as he then was) in Hobsons Bay City Council v Viking.[8] His Honour dealt with and rejected the grounds to quash the costs order based on error of law and unreasonableness and dealt with the final successful ground - a failure to consider a relevant matter - as follows:[9]

As I have said, it was open to the presiding Magistrate to award costs in the sum that he did. It is nevertheless reasonable to expect that a Magistrate who imposes an award that is inconsistent with the total pecuniary outcome in cases prosecuted by the police and arguably out of all proportion to the offending would justify the award with more than the peremptory conclusion, "I am against you", or similar. The Magistrate might have referred to some relevant countervailing consideration or, equally, stated his opinion that the award was proportionate or that whilst it was disproportionate, proportionality was only one relevant factor in the mix. In my view it is more probable than not that a Magistrate who was entertaining making such an award and who understood that matters going to proportionality and consistency were relevant to the exercise of the discretion would have spoken to the submission or invited the first defendant to comment upon it. The Magistrate did not acknowledge the submission at all and moved seamlessly to conclude the issue adversely to the plaintiff.[10] In my view he cannot now complain that error is inferred against him.

It follows from the above that I consider it to be more probable than not that the Magistrate did not turn his mind to the matters raised by the principles of proportionality and consistency.

9 The matter came on for re-hearing in accordance with the decision of T Forrest J before Magistrate Smith (Mr Hodgens having retired) on 22 July 2014. Magistrate Smith ordered the plaintiff to pay costs of the original hearing in the same sum as had been ordered by Mr Hodgens ($6,140) and in addition ordered the plaintiff to pay the costs of the rehearing in the sum of $1,500, making a total order for costs of $7,640.

10 Magistrate Smith delivered reasons for his decision. Insofar as those reasons are material to this application they are as follows:[11]

Now this is an application for costs by a witness who had successfully resisted a subpoena issued by Mr Agar in the Magistrates' Court in relation to a traffic matter. The traffic offence was a charge of speeding with a speed alleged not a significant amount above the posted limit. The offence would ordinarily carry a traffic infringement notice amount of about $160 or so.

Mr Russell appeared for the witness in the Magistrates' Court before Mr Hodgens to resist the subpoena. Mr Agar represented himself on that occasion as he has done so today. Mr Russell sought $8,400 in costs, Mr Hodgens awarded $6,400 but did not detail how he arrived at that figure. In particular, he did not mention having regard to the notions of proportionality and consistency.

Mr Agar appealed to the Supreme Court. That court did not allow the appeal on the subpoena issue and remitted the costs issue back to the Magistrates' Court for reconsideration. Unfortunately Mr Hodgens has now retired so the task of further considering the matter has come to me.

Mr Stafford for the witness sought that I make a costs order of a similar level to that made by Mr Hodgens. Mr Agar sought to resist this on two bases; firstly, he said that this is really costs being sought by the informant rather than the witness. He argued that as no finding of guilt had been made no award of costs could be made against him. I do not accept this argument. Mr Russell was briefed by Maddocks to represent the witness. At the hearing he presented arguments directed at resisting the subpoena, not at the issue of whether Mr Agar was guilty or not guilty of the offence. Ordinarily, an informant will not represent a subpoenaed witness and there is nothing in the transcript of the Magistrates' Court proceedings to suggest that Mr Russell was representing the prosecution and not the witness. It does appear from the transcript however that Mr Agar and the Magistrate both referred to Mr Russell as the prosecutor. This was clearly an error and it would have been desirable for Mr Russell to correct this during the course of those proceedings. But unfortunately he did not do so. However, the fact that Mr Russell was incorrectly called the prosecutor by both the Magistrate and Mr Agar at the Magistrates' Court hearing does not change who Mr Russell was representing or the nature of the hearing.

Costs in this case are sought pursuant to s 131 of the Magistrates' Court Act which gives the court a general discretion as to costs. Therefore the issue of a finding of guilt, or a lack of finding of guilt, is irrelevant.

The second bases used to resist costs in this matter is the issue of proportionality. That is, the fine for the offence he was charged with is relevantly modest and the costs order sought is a significant amount. Proportionality is a relevant consideration here. The costs order, if made in the sum sought, would be about 40 times the traffic infringement notice amount for the charge. Ordinarily in such cases, when contested, and prosecuted by the police, costs are awarded on finding of guilt usually in relation to the statutory amount of costs, in this case they would be $73.20.

I also have regard to consistency, and in most cases of speeding convictions the costs are, as indicated, modest. However, once subpoenas are issued, the costs can escalate significantly. Mr Agar, I expect, would know this as I understand from the transcript from the Magistrates' Court proceeding (page 2) that he has been involved in such subpoena issues before. Mr Agar does not appear to be arguing that the costs incurred by the witness are not properly incurred. Mr Russell was briefed, he claimed one day's preparation and one day for appearance, and the instructing solicitors sought $1,140 for their preparation. The Magistrate allowed $2,000 per day for Mr Russell rather than the $3,500 claimed and allowed the instructing solicitor's claim in full - it might have been $3,000.

I don't think it can be said that the costs sought by counsel or the solicitors were unreasonably high. The subpoena itself sought access to 12 categories of items, and each had to be argued separately. There was a good deal of preparation involved. Mr Russell is an experienced counsel and the fee charged is consistent with his level of seniority and his standing in the profession.

Mr Agar would have known that because of his previous experience with subpoenas. He would have known that once subpoenas are issued the costs would escalate well beyond the statutory costs usually awarded. Thus, although costs sought are not consistent with the run of mill speeding cases, this was not a run of the mill speeding case because subpoenas had been issued seeking access to documents held by a third party, that third party, the witness, has legitimately incurred significant cost in resisting successfully that subpoena.

Should I now not award those costs because they are many times the quantum of the likely fine should the prosecution succeed? If I don't award the costs it would be somewhat unfair, I think, to the witness. It should be borne in mind that these costs do not come at the end of a successful criminal prosecution. They are not in any way a penalty or a punishment. All of these considerations need to be weighed, there is no set formula.

I am of the view that the $6,140 awarded by Mr Hodgens was a fair figure bearing in mind and balancing the competing issues of proportionality and consistency on the one hand, and fairness to the successful witness. I would probably myself have awarded the amount originally sought, $8,140, but as Mr Hodgens awarded a lesser sum I am not inclined to exceed that amount previously awarded by him because in my view to do so would cause Mr Agar to feel that he had not been fairly treated. In the circumstances therefore I make an award of costs in the sum of $6,140.

11 There was then argument as to the costs of the rehearing. It emerged that prior to the hearing Maddocks had written to the plaintiff proposing that the dispute be settled on the basis that the costs payable by the plaintiff be agreed in the sum of $2,500, which offer was rejected. The Magistrate said in relation to these costs:

As with the previous award made... the issue of proportionality and consistency... are relevant here, as is the issue of fairness to the witness who has incurred significant expense at being represented today. ...I am inclined to award the amount of $1,500 in costs today, for today's appearance, bearing in mind the issues that I had already indicated of consistency and proportionality, and of fairness to the successful witness. That makes a total quantum of costs of $7,640, and I award that accordingly.

12 There then took place an exchange between the plaintiff and the Magistrate as follows:

Magistrate: Now that being a civil debt of course, what do the parties want me to do? Simply award a stay of a month so that they can negotiate and make their own arrangements or what?

Mr Stafford: What do you say? [presumably to Mr Agar]

Mr Agar: I presume it's a debt to the State?

Magistrate: No, it's a civil debt it's - the - the award is not to the State, it is to the - the successful witness.

Mr Agar: Who's the informant, the policeman.

Magistrate: No, my understanding is that it's not the informant, it is the subpoenaed party, I have just been referring to them as the witness throughout these proceedings but the subpoenaed party was Pierre Philippeau of SGS Australia Pty Ltd.

Mr Agar: He wasn't the witness.

Magistrate: Beg your pardon?

Mr Agar: The witness was a policeman from the Traffic Camera Office and...

Magistrate: I beg your pardon, well, whoever the witness was, that I wasn't concerned about that. (sic)

Mr Agar: So...

Magistrate: It's a civil debt as I understand it. Is that your understanding?

Mr Stafford: Yeah, Your Honour it is, and the Traffic Camera - as I said to Your Honour when - previously this morning, the Traffic Camera Office were instructing my instructors. But to come back to the point about the civil debt, as I understand it that's correct Your Honour. There can be an order for that - a stay of one month and that amount to be paid to my instructors, and that can be listed and then there may be discussions between the parties to resolve that amount.....

Magistrate: Yeah. But no, to answer your question Mr Agar, ...my understanding of it is, no, it is not going to the prosecution as such, it is going to the witness.

13 I note that in relation to the ground of error of law on the face of the record, that although at common law the record is comprised of the extract from the Court's register disclosing the order made, the initiating document and the pleadings (if any),[12] s 10 of the Administrative Law Act 1978 (Vic) provides that any statement by a tribunal or inferior court of its reasons for decision, whether made orally or in writing, is taken to form part of the decision, and accordingly to be incorporated in the record.[13] In addition, the record may be expanded to include the transcript of the proceeding if in fact it is incorporated into the record by reference.[14] A reference in reasons for decision to evidence, or to the submissions of counsel, might thereby make the evidence or the submissions part of the record.[15]

14 In this case the transcript of the hearing, including Magistrate Smith's reasons for decision, was included without objection in the Court Book and relied on by both parties.

15 The plaintiff seeks an order in the nature of certiorari to quash the decision of Magistrate Smith. The plaintiff complains that in making the order for costs the learned Magistrate fell into error of a kind which is susceptible to judicial review. The plaintiff represented himself before this Court, as he did before Magistrate Hodgens, Justice T Forrest and Magistrate Smith.[16]

16 The jurisdiction of the Supreme Court on a Judicial Review application pursuant to Order 56 of the Rules is limited to supervising inferior courts and tribunals and does not entitle this Court to canvass matters that it would on an appeal. Judicial review is not concerned with the merits of the decision under review, that is, it is not concerned with whether the decision was fair or correct.[17]

17 An order in the nature of certiorari merely enables the quashing of an 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. If the decision is set aside, the Court leaves it to the inferior court or tribunal to hear the case again, and in a proper case may command it to do so.[18]

18 The plaintiff complains that the Magistrate erred -

(a) In determining that the costs had been incurred by the witness, Mr Pierre Philippeau of SGS Australia ('first ground');

(b) In determining that the application and costs were a civil matter ('second ground');

(c) In exercising his discretion under s 131(1) of the MCA ('third ground');

(d) In not considering s 131(2) of the MCA and the provisions of the Imperial Acts Applications Act 1980 ('IAA Act') with respect to fines and forfeitures to the Crown prior to conviction ('fourth ground');

(e) In stating that the primary error of the first ruling in costs was that the Magistrate did not provide reasons for the costs order ('fifth ground'); and

(f) In not taking into account the Supreme Court finding that the costs originally incurred were excessive, regardless of any reasons proposed ('sixth ground').

19 These grounds raise both jurisdictional error and error on the face of the record.

20 The plaintiff maintains that it was the informant, as an interested party, who objected to the production of the documents the subject of the subpoena. Magistrate Hodgens accepted the informant's arguments and set aside the summons. The costs originally awarded were awarded in favour of the informant as represented by Mr Stephen Russell of counsel. The plaintiff referred to extracts from the transcripts of the hearing before Magistrate Hodgens where the Magistrate noted in response to a question from the plaintiff that Mr Russell acted on behalf of the informant,[19] and where Mr Russell clearly applied for costs to be paid to the informant for his appearance and presentation of the matter.[20]

21 The plaintiff also pointed to the transcript of the hearing before Magistrate Smith in relation to the question of who sought the order for costs. In addition to the passages set out above at paragraph 12, which took place after the reasons for decision, the plaintiff pointed to a passage that preceded the reasons and reveals the source of the Magistrate's view that it was the 'witness', that is the subpoenaed person, in whose favour the costs were ordered to be paid. In the course of the hearing before Magistrate Smith the following exchange[21]ook place:21

Magistrate: Are the costs that are being sought in relation to the costs of the prosecution, or the costs of the witness who was going to produce the documents, attending at court and resisting the subpoena?

Mr Agar: Mr Russell wasn't representing SGS Australia.

Mr Stafford: We, Your Honour, the costs being sought are the costs of the witness. The witness, as in the costs of representing that witness, not the costs...

Magistrate: Yeah, and who was representing the witness?

Mr Stafford: Mr Russell.

Magistrate: Okay.

Mr Stafford: And he was instructed by Maddocks Lawyers, and there is, just to be clear about it, there is an interest through the Traffic Camera Office in relation to the representation of these witnesses for the purposes of their subpoena arguments. So the witness is represented, instructed by the Traffic - and Camera Office instructs Maddocks Solicitors to represent the witness but it's the witness who - the witness who is being represented but they're represented by the Traffic Camera Office.

...

Mr Agar: So I just want to make it quite clear that Mr Russell was representing the informant. He clearly said that in court, he indicated the informant, the informant was a male and the informant is listed as Kathleen McCabe so there's a little bit of confusion over who Mr Russell was representing, and who the witness was and why the witness was there and had to be represented. The - although the Magistrate did find I didn't have a legitimate forensic purpose, I did note that Justice Forrest felt that I did and stated so in his ruling, so - but the nature of the appeal was such that he couldn't overturn that particular decision.

Magistrate: Yeah, I understand that.

[Emphasis added]

22 The plaintiff submitted that the Magistrate had clearly committed an error on the face of the record, and one which vitiated his decision, by considering the costs question as if they were to compensate the 'witness' rather than the informant.

23 The first defendant submitted that it was clear at all times that the costs were being sought for representing the informant on the successful challenge to the subpoena issued by the plaintiff and the subsequent return of that matter before the Magistrates' Court at Frankston seeking those costs. Although the learned Magistrate indicated that he was making the costs order to compensate the subpoenaed party, it was clear that the order was to compensate the party that was successful in opposing the subpoena issued by the plaintiff. This misunderstanding does not vitiate the order that was made. It was submitted that this was made clear by the exchange that I have set out above at paragraph 12 above.

24 Clearly Magistrate Smith has proceeded on a misunderstanding of the identity of the person who is the beneficiary of the order as to costs. There is clearly an error on the face of the record, as the first defendant acknowledged. The question is whether that error vitiates the decision, and warrants the decision being quashed.

25 As outlined in paragraph 10 above, Magistrate Smith appears at first blush to given some weight to the character of the person in whose favour the costs order was sought.

26 When the Magistrate turned to a consideration of the appropriate costs, however, he turned his attention to the principles of proportionality and consistency in a way unaffected by the character in which the successful person appeared, whether informant or 'witness'.

27 In my view these reasons are equally apt to a consideration of the costs payable to the informant. It was an interlocutory hearing before the prosecution of the offence charged where the matter before the Court was somewhat out of the usual run of speeding case because subpoenas had been issued seeking access to documents held by a third party. It is not surprising that the Department of Justice and Regulation (on behalf of the Traffic Camera Office) had briefed Maddocks, solicitors, who had briefed Counsel. The matter at hand was the often difficult question of whether a person has a legitimate forensic purpose to request a subpoena be issued. Given that the costs are by way of compensation, it makes no difference to the underlying factors relevant to the question of the quantum of costs that they are expended by the witness or the informant.

28 In the course of his reasons in Agar v McCabe,[22] T Forrest J observed:

The first defendant argued Hobsons Bay could be distinguished on the limited basis that it was an appeal from conviction and not an interlocutory stage in that criminal proceeding. In my view this distinction is unjustified. Osborn J's concern was with total outcomes of the criminal justice system and the outcome at an interlocutory stage of a criminal proceeding will at the very least form a part of that total outcome. The nature of the application, including the identity of the applicant party, may be a relevant countervailing consideration when the Court turns its mind to consistency and proportionality of costs, but that is all.

29 The fact that, in his Honour's view, the costs of the interlocutory stage of the criminal proceeding form a part of the 'total outcome' applies in this case as it applied in the case before his Honour. If in the course of determining the costs of the totality of the proceeding the Magistrate took into account the principles of proportionality and consistency, then it is not possible to say that the exercise of the discretion has effectively miscarried because the Magistrate considered the question in relation to the witness when he should have considered in relation to the informant. In each case, the costs falls to be considered as a part of the total outcome.

30 The matters relevant to the review of the exercise of a discretion as to costs were canvassed by T Forrest J in Agar v McCabe.[23] The matters include that:

(a) There is a strong presumption in favour of the correctness of a discretionary judgment, especially where that discretion concerns the award of costs;

(b) It is irrelevant that an appellate court might have exercised the discretion differently - what is necessary is that the decision was clearly wrong;

(c) The presumption in favour of the correctness of the decision may be overcome where there is identifiable error. This may occur where the discretion is exercised capriciously or for an improper purpose, where the Court takes into account an extraneous or irrelevant matter or fails to take into account a relevant matter, acts upon a wrong principle or exercises the discretion on the basis of a mistaken fact or assumption; and

(d) Where the error is said to be one of quantum a court will only interfere in an extreme case, that is, where the result is so unreasonable or plainly unjust that the exercise of the discretion has effectively miscarried.[24]

31 The error in this case is the identity of the applicant party. As His Honour T Forrest J said, this may be a relevant countervailing consideration when the Court turns its mind to consistency and proportionality of costs, but that is all. When the reasons of the Magistrate are viewed as a whole, the error in the identity of the party in whose favour the order is made is not critical to the reasoning he employs. He considers the costs order sought in the context of the whole prosecution, taking into account the ultimate level of the penalty for the purposes of considering the principle of proportionality, and what usually happens in like matters for the purposes of considering the principle of consistency.

32 Justice T Forrest remarked in his reasons in Agar v McCabe[25] that proportionality and consistency are only two of the many considerations that guide the costs discretion and provided they are taken into account it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached.[26] In this case the principles were taken into account, along with other matters relevant to the exercise of the discretion. The fact of the error as to the identity of the applicant party does not, in my view, render his decision liable to an order in the nature of certiorari.

33 In any event, the grant of certiorari is discretionary.[27] Aronson & Groves, in Judicial Review of Administrative Action (5th Ed, 2013), review the authorities at chapter 12.15. Considerations that are relevant to the exercise of the discretion include-

(a) The utility of the relief that is sought and the conduct of the applicant;[28] and

(b) The public interest that there should be an end to litigation.[29]

34 The error that is revealed on the face of the record in this case is not, for the reasons I have given above, so fundamental to the decision as to warrant setting it aside on this ground. Further, there have been two determinations of the costs of resisting the plaintiff's subpoena. A third will, in my view, result in the administration of justice being brought into disrepute. The Magistrate was guided in his decision by the relevant principles and by fairness to the party opposing the subpoena, who was put to greater expense than otherwise would be the case by the unilateral action of the plaintiff having the subpoena issued. In this case, whether that is the informant or the witness, the relevant considerations are the same and the expense is the same.

35 The plaintiff submitted that the power conferred by s 131 of the MCA did not extend to proceedings under the CPA. In any event that section did not authorise an award of costs to the Crown. Section 401 of the CPA provided the source of power and that section also does not authorise an award of costs to the Crown. An award of costs to the informant is an award of costs to the Crown. Contrary to the reason of the Magistrate, that does not make the order a 'civil matter'.

36 The first defendant submitted that the plaintiff has misunderstood the exchange referred to above at paragraph 12 between the Magistrate and the plaintiff, which was meant to ascertain how the costs order would be enforced. Whilst fines would be enforced by the Registrar of the Court once any stay had expired, a civil debt would not be enforced without further correspondence from the party requesting its enforcement. As in all cases of civil debt, the amount can be varied by negotiation by the parties or other arrangements made to have the amount paid by instalments. The plaintiff accepts that the order was made by the Magistrate under s 131 of the MCA and not under the CPA. The classification of the costs order as a civil order has no impact on the decision of the Magistrate to make the costs order. Section 131 of the MCA is a wide power and there is no reason to limit its ambit in the way advanced by the plaintiff. The power exists under both s 131 of the MCA and s 401 of the CPA.

37 It is tolerably clear from the terms of s 131 of the MCA itself that it is capable of application to civil and criminal proceedings:

(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) Subsection (1) applies unless it is otherwise expressly provided by this or any other Act or by the Rules or the regulations.

(2A) In exercising its discretion under subsection (1) in a proceeding, the Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the Court is satisfied resulted in prolonging the proceeding.

(2B) The Court must not make an order awarding costs against a party in the exercise of its discretion under subsection (1) on account of any unreasonable act or omission by, or on behalf of, that party that the Court is satisfied resulted in prolonging the proceeding without giving that party a reasonable opportunity to be heard.

(2C) If the Court determines to award costs against an informant who is a police officer, the order must be made against the Chief Commissioner of Police.

(3) If -

(a) a charge-sheet containing one or more charges is filed with a registrar; and

(b) no filing fee is payable because of an exemption contained in the regulations; and

(c) the accused is convicted of one or more of the alleged offences and is ordered to pay a fine -

the Court must order the accused to pay by way of costs, in addition to the amount of the fine and any other costs, the amount of the filing fee that, but for the exemption, would have been payable.

(4) This section and section 132 apply to a purported proceeding in the Court which is beyond the jurisdiction of the Court as if the purported proceeding were within jurisdiction.

38 The CPA includes similar provisions. Section 401 provides:

(1) Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates' Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.

(2) In exercising its discretion under subsection (1) in a criminal proceeding, the Magistrates' Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the court is satisfied resulted in prolonging the proceeding.

(3) If the Magistrates' Court strikes out a charge under section 14(3), the court may award costs against the informant.

(4) This section and section 410 apply to a purported proceeding in the Magistrates' Court which is beyond the jurisdiction of the court as if the purported proceeding were within jurisdiction.

(5) If the Magistrates' Court determines to award costs against an informant who is a police officer, the order must be made against the Chief Commissioner of Police.

39 Sub-sections 131(2C) and (3) make clear that the wide terms of the power include making orders in criminal proceedings. Other provisions of Part 7 of the MCA, of which ss 131 forms a part, refer to matters which are relevant only to criminal proceedings.[30]

40 There is nothing in s 401 of the CPA, nor in any other provision of that Act to which I have been taken, that derogates from the general powers conferred by s 131 of the MCA. Section 401 merely duplicates some of the provisions of s 131.[31] Other parts of s 131 are wider and go further than the provisions of s 401.[32]

41 There are other features of the provisions as to costs in the Magistrates' Court Act that are different to those in the CPA. They include s 131A of the MCA which enables the Court to order the costs be 'assessed, settled, taxed or reviewed' by the Costs Court. In Brown v Glen Eira [No 2],[33] Daly AsJ considered an argument that the CPA was the sole source of power of the Magistrates' Court in criminal proceedings, so that there was no power to make an order under s 131A of the MCA in respect of a costs order in a criminal matter (where an accused had been successful). Her Honour concluded that the powers conferred, and the procedures introduced, by the CPA are not intended to derogate from the powers conferred by the MCA.[34] I gratefully adopt her Honour's reasoning.

42 The fact that Magistrate Smith dealt with the order as if it were a civil order for costs is 'neither here nor there'. That is, of itself it makes no difference to the decision to which he came.

43 I therefore find no jurisdictional error in the power exercised by the Magistrate and refuse to quash the decision on this ground.

44 The plaintiff submitted that this is clearly a criminal matter and that the Magistrate erred by awarding costs to the Crown prior to conviction. As a representative of the Crown, the informant has no right to claim costs against the defendant prior to conviction as set out in the IAA Act. In particular he refers to the following:

[1688] I William and Mary Sess. II (Bill of Rights) c II

And thereupon the said lords spiritual and temporal, and commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties, declare:...

12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

45 The plaintiff referred me to the decision of Bell J in Antunovic v Dawson[35] in which his Honour conveniently explains some of the background to the Bill of Rights and the operation of the IAA Act. In doing so his Honour noted that the operation of the ancient Imperial statutes under the IAA Act is subject to contrary legislation.[36] Otherwise, the decision concerns the writ of Habeas Corpus and throws no light on the ambit of the operation of clause 12 of the Bill of Rights.

46 The first defendant submitted that that the provisions of the IAA Act are not an express provision falling within s 131(2) of the MCA. There are many examples of statues that entitle courts to award costs at interlocutory stages of criminal proceedings: see for example sections 404 and 331 of the CPA. In any event the award of costs does not constitute either a fine or a forfeiture within the meaning in this part of the Bill of Rights.

47 It is clear that the Bill of Rights applies in Victoria by virtue of s 8 of the IAA Act. [37] It is also clear that that the operation of clause 12 of the Bill of Rights is subject to contrary legislation.[38]

48 This ground as advanced by the plaintiff turned on an assertion that an order for the payment of costs constituted either a fine or forfeiture within the meaning of cl 12 of the Bill of Rights. In my view there is no warrant for this interpretation. The award of costs in a criminal proceeding in respect of an interlocutory skirmish is not properly characterised as either a fine or a forfeiture. The purpose of a costs order is to compensate the successful party for the costs incurred, and not to punish the unsuccessful party. That purpose is a guide to the exercise of the discretion.[39]. In any event, it is sufficient to say that the Parliament has specifically authorised the court to make an order as to costs in such proceedings (under s 131 of the MCA in this case) and that is contrary legislation to which this provision from the Bill of Rights is subject.

49 The plaintiff effectively conceded that upon a closer analysis it was not correct to say that Magistrate Smith had stated that the primary error of the ruling of Magistrate Hodgens was that he did not provide reasons for the costs order, as is apparent from the reasons set out above at paragraph 9.

50 The first defendant submitted that it was clear from the reasons of Magistrate Smith that he understood the reasoning of T Forrest J and applied the principle from that case correctly to the determination of the costs that the plaintiff should be required to pay.

51 In my view there is no error in the reasons for decision of Magistrate Smith of the kind referred to here. The Magistrate specifically referred to the fact that Mr Hodgens had not indicated whether he had taken into account the principles of proportionality and consistency. In any event any error of this kind is not one that undermines in any way the reasoning of Magistrate Smith so as to warrant quashing his order.

52 The plaintiff submitted that in awarding costs Magistrate Smith had compounded the original error (of Magistrate Hodgens) with respect to consistency and proportionality. In relation to consistency, he submitted that breaches of the Road Safety Rules with respect to speeding fines, together with actions associated with the production of documents related to the brief of evidence, are normally prosecuted by a police officer. The decision of the informant to engage private counsel to make representations to the court introduced a significant inconsistency in costs. In relation to proportionality, he submitted the costs awarded are disproportionate to the criminality in issue.

53 Both the consistency and proportionality matters combined, the plaintiff submitted, to create a situation where the penalty applied to the plaintiff is a more severe punishment than is appropriate or proportionate to the offence which it is alleged he has committed. In this regard he referred both to the decision of T Forrest J in Agar v McCabe[40] and to the decision to which T Forrest J referred to in the course of that case, namely, Bay City Council v Viking Group Holdings Pty Ltd.[41]

54 The first defendant submitted that although T Forrest J had stated that the previous costs order could be said to be severe and arguably unfair, he confirmed that he was not satisfied that the order for costs was so unreasonable or unjust that the Magistrates' discretion miscarried. T Forrest J said in this regard:[42]

I am not satisfied, however, that the costs order was so unreasonable or plainly unjust that the discretion has miscarried. I take the view that it was open to the Magistrate in this case to make a costs order that did not allow senior-junior counsel his legal fees. Equally, in my view, it was open to him to do so. Proportionality and consistency are only two of the many considerations that guide the costs discretion and provided they are taken into account it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached.[43]

55 In conclusion, the first defendant submitted that Magistrate Smith applied the law correctly in reaching his decision.

56 I agree that Magistrate Smith applied the law as referred to by T Forrest J and took into account the relevant considerations, including the principles of proportionality and consistency, in arriving at his decision. That another judicial officer may comment that the level of the costs was severe or unfair to the plaintiff does not mean that the costs were so unreasonable in the Wednesbury[44] sense as to reveal error. Given the purpose of an order for costs is to compensate and not punish, it is necessary and desirable to view any order as to costs from a balanced perspective, looking both at the party to be compensated and to the party who is to pay. It may be that from the plaintiff's perspective the costs are 'severe' and 'arguably unfair'. That necessarily results from concentrating on the impact of the order upon the payer, and the offence with which he is charged, rather than also to taking into account the interests of the person to be compensated. It may be true that the principle of proportionality requires that the impact of such an order on the accused is to be taken into account. But nothing in the authorities suggests that the other considerations are to be subjugated to that principle.

57 The passage from the reasons of T Forrest J referred to above is ample demonstration that (provided the relevant considerations that guide the costs discretion are taken into account) it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached. This is not an appeal where my judgment is substituted for the judgment of the Magistrate.

58 The only error made by the Magistrate was to approach the exercise of the costs discretion on the footing that the costs were payable to the witness, the person subpoenaed to produce documents, rather than the informant. When the reasons of the Magistrate are viewed as a whole, the error in the identity of the party in whose favour the order is made is not critical to the reasoning he employs. As the reasons of T Forrest J required, he considers the costs order in the context of the whole prosecution, taking into account the ultimate level of the penalty for the purposes of considering the principle of proportionality, and what usually happens in like matters for the purposes of considering the principle of consistency.

59 Proportionality and consistency are only two of the considerations that guide the costs discretion and provided they are taken into account it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached. In this case the principles were taken into account, along with other matters relevant to the exercise of the discretion.

60 The fact of the error as to the identity of the applicant party does not, in my view, render his decision liable to an order in the nature of certiorari. For these reasons, and because the grant of an order in the nature of certiorari is discretionary, notwithstanding the error made by the Magistrate, I am not persuaded that it is appropriate to quash the order and to remit it once again for re-hearing. In addition to the factors to which I have referred, there is a clear public interest in this debate over the costs of the subpoena ending here and now.

61 For these reasons I will dismiss the plaintiff's application. I will hear the parties as to the costs of the proceeding.

[1] Order of J Forrest J made 21 September 2015.

[2] Affidavit of Carl Paul Agar sworn 24 September 2014 ('Agar Affidavit'), exhibit CPA-1, Charge Sheet and Summons.

[3] Kearon v Grant [1991] VicRp 25; [1991] 1 VR 321; Agar v McCabe [2014] VSC 309, [3]; [2014] VSC 309; (2014) 67 MVR 81, 85 [3].

[4] A testing body accredited in the field of electrical testing by the National Association of Testing Authorities, Australia.

[5] The witness summons was tendered as Exhibit 'A' at the trial of the proceeding.

[6] Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81, 103-104 [92]-[95].

[7] Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81, 99 [72].

[8] [2010] VSC 386 ('Hobsons Bay').

[9] Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81, 103 [91].

[10] The plaintiff's submissions on the costs issue were confined to the principles of consistency and proportionality. The Magistrate waited for the plaintiff to conclude and then asked, of the informant, "where are the costs to be paid?".

[11] Transcript of Proceedings, Agar v McCabe (Magistrates' Court of Victoria, Magistrate Smith, 22 July 2014) 10-12. I have corrected some of the punctuation, omitted internal corrections and paragraphed the passages.

[12] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 182.

[13] Thompson v Judge Byrne (1998) 2 VR 274, 280; The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] VSCA 37; (1999) 2 VR 203, 209; Kuek v Wellens [2002] VSCA 31, (2002) 35 MVR 543, 545 [14].

[14] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 181-2.

[15] Sidebottom v County Court of Victoria [2001] VSC 18; (2001) A Crim R 574.

[16] The second defendant, the Magistrates' Court of Victoria, informed the Court that it did not intend to appear in the proceeding but would abide the decision of the Court in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.

[17] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; see also, by way of example, Stojanoski v Northern Meat & Poultry Supplies Pty Ltd [2001] VSC 229, [30]-[33] (Gillard J); Velissaris v The Magistrates' Court of Victoria [2013] VSC 23, [12] (Macaulay J).

[18] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) 30 VR 141, 155 [60].

[19] Agar Affidavit, Exhibit CPA-5, transcript page 4, line 6.

[20] Ibid. transcript page 42, line 21 - 23.

[21] Court Book, p.120, line 106 to p.121, line 126.

[22] [2104] VSC 309; (2104) [2014] VSC 309; 67 MVR 81, 100 [79].

[23] [2104] VSC 309; [2014] VSC 309; (2014) 67 MVR 81, 99 [71].

[24] Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627; House v R [1936] HCA 40; (1936) 55 CLR 499, 504-505; Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178.

[25] [2104] VSC 309; [2014] VSC 309; (2014) 67 MVR 81, 101 [83].

[26] Torney v Victoria Legal Aid [2010] VSC 631, [25]; Hobsons Bay [2010] VSC 386, [19].

[27] Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482, 517-8; Coles v Wood [1981] 1 NSWLR 723, 724, 727; Victoria Legal Aid v County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686, 691 [9].

[28] Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 5th ed, 2013) [12.280-12.300].

[29] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; (2004) 21 VAR 429.

[30] S 126(1)(d) and (e) empower the Court to close proceedings to the public in proceedings involving charges in relation to a sexual offence; s 126A empowers the court to bind over an accused to keep the peace; s 127 refers to "informants" and "plaintiffs", and "accuseds" and "defendants"; ss 133 and 134 deal with contempt proceedings; and s 140 empowers the Governor-in-Council to make regulations with respect to a wide range of matters, including regulations governing bail justices and fees and charges under the Infringements Act 2006.

[31] S 131(2A) and s 401 (2), are substantially the same; s 131(2C) and s 401 (5) are substantially the same; s 131(4) and s 401(4) each confer jurisdiction on the Magistrates' Court in relation to costs of a proceeding that is beyond its jurisdiction, and do so in much the same terms.

[32] S 401 has no counterpart to s 131(2), (2B) and (3).

[33] [2012] VSC 273.

[35] [2010] VSC 377; (2010) 30 VR 355.

[37] Port of Portland Pty Ltd v State of Victoria [2009] VSCA 282; (2009) 27 VR 366, 375 [41], fn 25; Antunovic v Dawson [2010] VSC 377; (2010) 30 VR 355, 364 [33].

[39] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 563 (Toohey J, Mason CJ agreeing), 567 (McHugh J); Ohn v Walton (1995) 36 NSWLR 77, 79.

[40] [2014] VSC 309; (2014) 67 MVR 81.

[41] [2010] VSC 386.

[42] Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81, 98 [83].

[43] Torney v Victoria Legal Aid [2010] VSC 631, [25]; Hobsons Bay [2010] VSC 386, [19].

[44] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.