Sasterawan v Morris

Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) LEGISLATION CITED: Criminal Procedure Act 1986 (NSW) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Supreme Court Act 1970 (NSW) Supreme Court of Judicature (Consolidation) Act 1925 (UK)

Alexandroaia v R (1995) 81 A Crim R 286 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14 Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 House v The King [1936] HCA 40; 55 CLR 409 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 Lethlean (1995) 83 A Crim R 197 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 Markisic v Vizza [2002] NSWCCA 53 Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 CASES CITED : R v Barbaro (1992) 106 FLR 387 R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 R v BWM (1997) 91 A Crim R 260 R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 R v Matovski (1989) 15 NSWLR 720 R v JS (No 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10 Rich v Australian Securities and Investments Commission [2005] NSWCA 233; 54 ACSR 365 Robinson v Woolworths Ltd [2005] NSWCCA 426; [2005] 227 ALR 353 Salter v Director of Public Prosecutions [2009] NSWCA 357 Sasterawan v Morris [2008] NSWCA 70 Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 Steffan v R (1993) 30 NSWLR 633

PARTIES: Wahyu Sasterawan (Appellant) Judith Morris (Officer of Ministry of Transport) (Respondent)

COUNSEL: Mr J Berwick (Appellant) Mr P Bodor QC with Mr P O'Donnell (Respondent)

SOLICITORS: City Law Pty Ltd (Appellant) Smythe Wozniak (Respondent)

• 31 - IN THE COURT OF CRIMINAL APPEAL CCA 2005/7992

BASTEN JA RS HULME J SCHMIDT J

FRIDAY, 7 MAY 2010 SASTERAWAN v MORRIS Judgment 1 BASTEN JA: Pursuant to court attendance notices issued by the informant (Ms Morris) on 21 May 2004, the applicant (Mr Sasterawan) was charged with seeking to obtain a benefit through making or publishing a cabcharge document which had been altered, in contravention of s 178BB of the Crimes Act 1900 (NSW). He was convicted in the Local Court and appealed to the District Court. His first appeal to that Court resulted in the convictions being confirmed, but that determination was set aside by the Court of Appeal exercising powers of judicial review. 2 On 29 June 2009, the matter having been remitted to the District Court for rehearing, the Chief Judge gave leave, pursuant to s 19 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") for the prosecution to recall the witnesses who had given evidence before the Local Court. That application was not opposed at the time, and the matter was listed for three days before Sweeney DCJ, commencing on Tuesday, 17 November 2009. 3 On the first day of the hearing, various preliminary matters were attended to. Two witnesses were called by the prosecution to establish that a key prosecution witness, Ms Elizabeth Kim, was currently residing in Korea. On the second day, again after some preliminary discussion, the informant was called to give evidence on a voir dire in relation to the conduct of an interview conducted with the applicant, in the course of which he had made admissions. In the course of her evidence, a concern arose as to the state of her health. The prosecution sought an adjournment. Counsel for the applicant opposed an adjournment "of more than a day or so". Her Honour granted the adjournment and vacated the hearing of the matter. She directed that a new hearing date be fixed. The primary basis of the present application for leave to appeal challenged that order. 4 For reasons explained below, leave should be refused. The reasons include the absence of jurisdiction in this Court to consider the proposed appeal and the failure of the applicant to demonstrate an arguable basis for appellate intervention, supposing that the Court had jurisdiction. 5 The informant sought an order that the applicant pay her costs of the application to this Court. However, the Court has no power to make such an order in this case; further, if it did have power, no such order should be made.

Procedural history 6 The matter has a complex procedural history which may be summarised as follows. The charges related to cabcharge dockets provided to the applicant, then a licensed taxi driver, in June, July and October 2003. In each case the charge alleged that details completed on the docket by the applicant were false. The first matter involved the alteration of a fare from $6.15 to $136.15; the second, a fare altered from $7 to $70 and the third, a fare altered from $6 to $260. The applicant appeared before the Local Court on 29 March 2005, was convicted on each charge and fined $300 in respect of each offence. The applicant appealed to the District Court, pursuant to s 11(1) of the Appeal and Review Act. On 7 September 2005 his appeal was dismissed by Nicholson DCJ, pursuant to s 20(1)(b) of the Appeal and Review Act. 7 On 29 September 2005 the applicant filed a summons seeking leave to appeal to the Court of Appeal from the decision of the District Court. That application was misconceived. On 7 December 2005 a further summons was filed seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the decision in the District Court. Whilst those proceedings were still on foot, the applicant sought to have Nicholson DCJ state a case to this Court pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). 8 When the stated case was brought on for hearing in this Court, the summons for judicial review in the Court of Appeal was discontinued and was dismissed by consent. The questions raised on the stated case were answered adversely to the applicant: Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547. 9 Undaunted by the dismissal of the first summons for judicial review, on 27 July 2007 the applicant filed a further summons for judicial review seeking to have the decision in the District Court quashed. The Court granted that relief, holding that the reasons given by Nicholson DCJ were inadequate and constituted an error of law on the face of the record: Sasterawan v Morris [2008] NSWCA 70 at [50] (Tobias JA, Beazley JA and McClellan CJ at CL agreeing). A second, and apparently separate basis for setting aside the decision, was the failure of the primary judge to find that the applicant knew that each of the dockets was false in a material particular: at [62]. Thirdly, the Court concluded that the experienced primary judge had reversed the burden of proof: at [72]. 10 This application relates to the rehearing of the matter in the District Court.

Basis of application for leave to appeal 11 By notice filed on 16 December 2009 the applicant sought leave to appeal from a judgment or order identified as "grant of adjournment of hearing of appeal". The judgment or order sought in place of that appealed against was "list appeal for hearing as soon as possible". The sole ground identified was that the judge "should not have granted adjournment of hearing". 12 At the time of lodging his application for leave to appeal, the applicant stated he was intending to apply for legal aid and appears not to have had legal representation. At some stage, not revealed in the evidence, the applicant obtained representation. On 18 February 2010 a solicitor acting for the applicant filed an amended application for leave to appeal. The order appealed against was again identified as the order of the District Court "to vacate the hearing and set the hearing down for hearing at another time". The orders sought in lieu thereof were as follows: 1 Leave granted to the respondent to take evidence from Ms Kim be revoked. 2 Leave granted to the respondent to take evidence from Ms Morris be revoked. 3 Leave be granted to the appellant to put on affidavit evidence regarding: (i) transcript of the proceedings in the District Court; and (ii) history of the proceedings in the District Court since the matter was returned from the Court of Appeal (April 2008).

The first two orders sought related to the proceedings in the District Court; the third appears to have been sought for the purposes of the hearing in this Court. 13 By notice of motion dated 8 March 2010, the applicant's solicitor sought leave to rely upon a second amended application for leave to appeal. This application, together with an affidavit in support, the transcript of the District Court hearings on 17 and 18 November 2009, the judgment of the District Court of the adjournment application and written submissions, were provided to the Court on the afternoon of 9 March 2010, namely the day before the hearing. 14 The second amended application identified the orders appealed against in the following terms: "1 The Court's order of 18/11/09 to vacate the hearing …; 2 The Court's order 18/11/09 that Ms Kim be able to give evidence by audio visual link; 3 The Court's order of 29/06/09 that leave be granted for the prosecution to call evidence from Miss E Kim." 15 Each of these orders was sought to be vacated and a further order was sought that the appeal to the District Court be allowed "for reason of want of prosecution on the part of the [informant]". Extension of time 16 Pursuant to the rules, the applicant required an order of the Court extending the time within which to seek leave to appeal, the prescribed period being 14 days from the date of the judgment or order below: Criminal Appeal Rules, r 5B. That time expired on 2 December 2009. Putting other factors to one side, and with knowledge that neither the appeal nor the further hearing in the District Court would take place before the end of 2009, an extension of time until 16 December 2009, when the first application was filed, would not have been inappropriate. 17 The amended application however was not filed until two months after the vacation of the hearing and, whilst not expressly challenging them, sought orders which would have revoked orders made on 29 June 2009. Such an application for extension would fall within quite a different category. 18 Finally, there was the motion seeking an extension of time to permit consideration of the second amended application, lodged with the Court on 9 March 2010. The first order challenged was that identified in the first application. The second concerned an order made unopposed on 18 November 2009. The third identified an order made on 29 June 2009. Further consideration will need to be given to the extensions of time required in respect of the second and third orders. Jurisdictional issues 19 Counsel for the applicant sought to identify the jurisdiction of the Court by reference, variously, to sub-ss 5F(1), (3) and (5) of the Criminal Appeal Act. These provisions read as follows: " 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court … … (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal … … (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 20 Neither of sub-ss (1) nor (5) provides the basis for an appeal. Indeed, in relation to sub-s (1), it might be thought surprising that s 5F applies at all to appeals in the District Court from convictions in a Local Court. Such proceedings would not ordinarily be understood as involving "the prosecution of offenders on indictment". However, the term "indictment" is defined to include "any information presented or filed as provided by law for the prosecution of offenders": Criminal Appeal Act, s 2(1). 21 There is a sense in which this definition reverses common usage, whereby an indictment is a sub-class of information: see, eg, Criminal Procedure Act 1986 (NSW), s 8 and John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 516-517 (Mason CJ, Deane and Dawson JJ), discussing the concept of quashing an information, within s 5C of the Criminal Appeal Act, which deals with both informations and indictments, perhaps inconsistently with the definition of "indictment". 22 It is sufficient to assume, without deciding, that an appeal to the District Court from a Local Court under Pt 3 (including s 11) of the Appeal and Review Act constitutes a proceeding "for the prosecution of offenders on indictment". That is sufficient, because the applicant must fail in seeking to bring himself within sub-s 5F(3). 23 The reference in sub-s (3) to "any other party" is by way of contrast with sub-s (2), which confers rights on the Attorney-General and the Director of Public Prosecutions. It is now beyond question in this Court that the words "interlocutory judgment or order" in sub-s (3) are not to be construed by "an analysis based on a dictionary definition of each of the words", but by reference to their substance and effect, within the statutory context and the general law principles applicable to a criminal trial: see R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [32]-[34] (Spigelman CJ, Dunford and Kirby JJ agreeing) and R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 303-304 (Gleeson CJ) referring to "the character and effect of the decision". 24 In Cheng, the Crown had sought to avoid a directed acquittal by seeking to bring an interlocutory appeal against a ruling by the trial judge that there was no case to answer, in circumstances where there was no general right of appeal from an acquittal. The Court denied the availability of an interlocutory appeal in that circumstance. At the other end of the scale, rulings which are capable of revision and may not directly affect the outcome of the case, including evidentiary rulings, have been held not to fall within the terms of s 5F(3): see, eg, Steffan v R (1993) 30 NSWLR 633. In Steffan, the reasoning of the Court commenced with the proposition that a judgment is "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court": at p 636A. Further, an order is "a command by a court that something be done (or not done)".

25 Reference has been made on occasion to the analogous approach to construction identified in the Commonwealth v Mullane [1961] HCA 28; 106 CLR 166, dealing with the jurisdiction of the High Court under s 73(ii) of the Constitution to hear appeals from "all judgments, decrees, orders and sentences …". That case concerned the effect of a certificate provided by a Medical Board in respect of a claimant for workers' compensation. The primary judge had ruled upon the effect of the certificate, giving reasons for considering that the certificate was not conclusive against the worker. The High Court (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ) stated at 169: "If the County Court had ruled against the employee who appealed to the County Court, the County Court might have dismissed that employee's appeal and that would have been an order. It might on the other hand have decided not then and there to dismiss his appeal but to hear more about it by way of explanation, or to enable another tribunal to pass judgment on the view which the learned judge adopted. What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling; there was no determination. It was something done in the course of the hearing. … It did not, in our opinion, amount to a judgment, still less to a decree; it did not amount to an order and certainly not to a sentence. It is outside the terms of s 73 of the Constitution and this appeal has no foundation in any curial order which is appealable." 26 That decision was relied on in Bozatsis, at 303, and has also been relied upon to exclude appeals against rulings on the admissibility of evidence: see Lethlean (1995) 83 A Crim R 197 at 205-206 (Sheller JA, Allen and Hulme JJ agreeing). It has been said that whether a decision or ruling constitutes a "judgment or order" turns on whether there is an operative judicial act: Salter v Director of Public Prosecutions [2009] NSWCA 357 at [14] (Spigelman CJ, McColl and Campbell JJA agreeing), dealing with s 53(3) of the Appeal and Review Act. 27 The phrase "interlocutory judgment or order" is also to be found in s 101 of the Supreme Court Act, dealing with the subject matter of appeals to the Court of Appeal. Leave is required in relation to an appeal from an interlocutory judgment or order: s 101(2)(e). (The precursor to this provision was s 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act 1925 (UK), which referred to appeals from "any interlocutory order or interlocutory judgment".) Under that provision, rulings as to evidence given in the course of a trial, while concededly interlocutory, have been held not to give rise to a judgment or order which may be the subject of appeal: see Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14 at p 3(5) (Mahoney P, Meagher JA agreeing); Rich v Australian Securities and Investments Commission [2005] NSWCA 233; 54 ACSR 365 at [19]-[25].

28 Clearly, the term "judgment" in s 5F is not being used in its broadest colloquial sense to encompass all that might be included in the reasons given by a court for taking a particular course. No doubt the term "interlocutory" envisages a judgment or order which is less than the final determination of the proceedings, disposing of the rights of the parties. In civil jurisdiction, whether a judgment or order is interlocutory or final may depend upon looking either to the legal effect or to the practical effect of the order. Although the former approach is that adopted in construing s 101 of the Supreme Court Act, it does not follow that that approach is necessarily the sole approach appropriate with respect to s 5F of the Criminal Appeal Act. Both approaches have been treated as relevant in this context where, as explained by Gleeson CJ in Bozatsis, it is "the character of the question, and the effect of the decision" that distinguishes a judgment or order from an incidental ruling made in the course of proceedings: 97 A Crim R at 303. Thus, an order staying proceedings may be appellable under s 5F, even though the basis of the order was, in effect, a ruling that evidence was or was not admissible. A ruling on evidence, standing alone, lacks finality; it may be varied in the course of the trial. However, once an order staying proceedings is made, the relevant element of finality is established. In the latter circumstance, the order may be challenged and, consequentially, any decision or ruling on which it was based. 29 Before leaving the question of statutory construction, it should be noted that the language of s 5F(5) extends beyond judgment and order and includes "decision or ruling". That is because the scope of the appeal conferred, as of right, on the Attorney-General and the Director of Public Prosecutions extends to "any decision or ruling on the admissibility of evidence", subject to a presently irrelevant limitation: s 5F(3A). The terms of sub-s (5) are clearly intended to pick up that extended operation of the right of appeal in circumstances which do not include a case such as the present, where the only right is to seek leave under sub-s (3). 30 While the precise scope and operation of s 5(3) may not be readily discernable from its terms, its application in practice will usually be clear. Relevantly for present purposes, it cannot operate with respect to an adjournment of proceedings, which does not constitute a stay, but is granted for the purpose of allowing the proceedings to continue at an appropriate time. 31 It remains to consider whether the section extends to an order permitting a witness to give evidence by audio visual link, or an order permitting the prosecution to call evidence from a particular witness, being an order pursuant to s 19 of the Appeal and Review Act. 32 There are two antecedent issues in relation to these orders, before any issue of jurisdiction arises. The first is whether the applicant should be permitted to rely upon the second amended application for leave to appeal provided to the Court on 8 March 2010; the second is whether any such direction or order was made, as alleged, on 18 November 2009. However, assuming they were resolved in favour of the applicant, there would nevertheless be no jurisdiction under s 5F. 33 Although not referred to by the parties, it appears to have been assumed by this Court in Alexandroaia (1995) 81 A Crim R 286 (Hunt CJ at CL, Grove and Dunford JJ) that an appeal would lie under s 5F in respect of the refusal by the trial judge of an adjournment, on the application of the accused. The jurisdictional issue may have been obscured by the fact that the trial judge granted leave to appeal under s 5F. However, the issue not having been addressed, the judgment is not authority for the proposition that such an appeal lies. 34 Once it is accepted, in accordance with authority such as Steffan, that no appeal can lie under s 5F from a ruling as to the admissibility of evidence, it must follow that a ruling as to the manner in which a witness can give evidence does not constitute an interlocutory judgment or order. 35 It is also unlikely that a direction that a person attend and give evidence, made pursuant to s 19 of the Appeal and Review Act, could constitute an interlocutory judgment or order. However, the proper characterisation of an order may depend upon the circumstances in which it is given. The orders made by the District Court under s 19 were made long before the present circumstances arose, namely on 29 June 2009. The orders were not opposed by the applicant. If circumstances have now changed (a suggestion which was not articulated in a comprehensible form before this Court) the proper course for the applicant was to seek to reopen those directions in the District Court. That was not done. The challenge in this respect having been raised expressly for the first time on 18 February 2010, by way of a proposed amendment, should not be permitted. Accordingly, leave should be refused to permit the amendment of the summons to include orders (1) and (2) identified in the amended application for leave to appeal referred to at [12]. Similarly leave should be refused to allow an amendment to include the third order identified in the second amended application, referred to at [14] above. In relation to orders (1) and (2) sought in the second amended application it is appropriate to grant an extension of time within which to challenge the additional orders, being identified as orders made on 18 November 2009, but reject leave to appeal, on the ground that neither falls within the scope of the Court's jurisdiction under s 5F(3).

Merits: nature of appeal 36 The applicant approached the merit of his case by adopting the principles identified in House v The King [1936] HCA 40; 55 CLR 409 at 504-505 with respect to the exercise of a discretionary power, such as the imposition of a sentence. That approach has the support of this Court in Alexandroaia at 290. In R v BWM (1997) 91 A Crim R 260, Hunt CJ at CL suggested that appeal pursuant to s 5F was "not by way of rehearing": at 267. Those remarks were not supported by Gleeson CJ nor Hidden J in BWM. The nature of the appeal has been further considered by this Court in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [11]-[13]. It is not a matter which requires further consideration in this case.

Lack of merit of proposed appeal (a) vacation of hearing 37 As explained by Schmidt J, the first order challenged, namely the vacation of the hearing and the adjournment to a date to be fixed, was comfortably within the scope of the discretionary power available to the trial judge and exercised by her. 38 Even if an appeal were available against the 'orders' made on 18 November 2009, this challenge would fail. (b) manner of taking evidence 39 The second question concerns the order with respect to the taking of evidence from Ms Kim. After the adjournment was granted, counsel for the informant asked that her Honour make an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW): Tcpt, 18/11/09, p 50 (40). Counsel for the applicant did not oppose the application and her Honour ordered accordingly that Ms Kim be able to give evidence by audio visual link: p 51 (10). 40 Absence of objection will, at the very least, render an appeal against the making of an order or direction difficult. In this Court, counsel for the applicant argued that, once the matter had been adjourned, he had no basis for objection. In other words, the appeal against that order was entirely consequential on the appeal against the vacation of the hearing. The logic underlying that submission was obscure: Ms Kim was not present at the November hearing, because she was overseas, and her evidence would presumably have had to be taken by audio visual link at some stage in any event. Accordingly, assuming jurisdiction, leave to appeal against the order would be refused because the appeal could not be sustained on the merits.

(c) proposed dismissal of appeal in District Court 41 The ultimate purpose of the proceeding in this Court appears to have been to obtain an order that the appeal to the District Court be allowed, for want of prosecution by the informant. This proposed challenge was misconceived on a number of grounds. Apart from any other issue, no such point was agitated before Sweeney DCJ and her Honour did not make a ruling on such an application. Accordingly, there is nothing which resembles an interlocutory judgment or order from which leave to appeal could be sought.

Costs 42 The prosecutor sought an order for payment of her costs in this Court on the basis that the Court had an inherent or incidental power to make orders for payment of costs where proceedings were an abuse of the process of the Court. Reliance was placed on the decision of this Court in Markisic v Vizza [2002] NSWCCA 53. In that case, Stein JA (with whom Dowd and Barr JJ agreed) found that the appeal to the Court was incompetent: at [16]. The background involved an application in the Common Law Division, purportedly invoking the summary jurisdiction of the Supreme Court, to deal with offences, both under Commonwealth law and under State law. The trial judge had found the Court to be without jurisdiction to consider such complaints. On appeal, the respondents sought an order for payment of their costs, which gave rise to a question as to whether this Court had power to make such an order. It was common ground that, pursuant to s 17 of the Criminal Appeal Act, this Court had no power to award costs on the "hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act". The Court in Markisic accepted that it had jurisdiction to determine whether its jurisdiction had properly been invoked. Its conclusion that the proceedings fell outside its jurisdiction meant, the Court held, that although "the proceedings purport to be brought under the Act, they in fact were not so brought": at [31]. The proceedings not having been brought "under the Act" the prohibition in s 17(1) was held not to apply. The Court further concluded that, because it had implied power to control abuse of its processes, it also had implied (or inherent) power to order the applicants to pay the respondents' costs: at [32]. 43 None of the authorities relied upon to support this conclusion dealt with the Criminal Appeal Act, nor did any deal with a statutory regime which contained an express prohibition on the award of costs to either side. Two cases, Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 and R v Barbaro (1992) 106 FLR 387 each involved the costs of an application to set aside a subpoena which was shown to be an abuse of process. Each of the four authorities relied on involved a question of the power of the court making the order as to costs, but none supported the proposition that an application purportedly made in relation to a statutory jurisdiction, but found to fall outside the jurisdiction, was not an application "under" the relevant Act. 44 Indeed, the circumstances of the authorities support a contrary conclusion to that reached in Markisic. An application in this Court to set aside a subpoena as oppressive and an abuse of process, in respect of a pending appeal, would appear to involve proceedings preliminary or incidental to the appeal. The fact that the ground on which the subpoena might be set aside was described as "an abuse of process" would not take the matter outside the terms of s 17. 45 It is one thing to say that an administrative decision purportedly made under a statutory power, but tainted by jurisdictional error, is not a decision "under [the] Act" so as to obtain the protection of a privative clause - see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [81] - it is quite another to say that an application purportedly invoking the jurisdiction of this Court under the Criminal Appeal Act, but which is held to fall outside the jurisdiction, does not involve "an appeal … under this Act". 46 The Court was not taken to any case in which the principle in Markisic had been applied. By contrast, the analysis undertaken by Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed) in R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 casts significant doubt on the scope, if not the legitimacy, of the principle. After referring to the fact that the Court is a statutory court, but has such "incidental statutory powers" as may, by implication, arise from the express conferral of jurisdiction upon and grant of powers to it (at [3]), the Chief Justice continued: "[4] The Respondent submitted that, subject only to s 17 of the Criminal Appeal Act 1912 , … this Court's power to award costs is 'generally at large'. This submission should be rejected. It is necessary to identify an express or implied statutory power to make such an order. [5] At a time when the powers conferred on this Court were to be found only in the Criminal Appeal Act 1912 , this Court held that it 'has no powers except those conferred upon it by that statute'. … Subsequently, other statutes have conferred powers on this Court. … The Respondent has failed to identify any relevant statutory provision. [6] As part of its implied jurisdiction this Court has power to control abuse of its process and, as an incident of that power, may order a person who has abused that process to pay the other party's costs, at least where s 17 of the Criminal Appeal Act does not apply. (See Markisic … at [31]-[33].) … … [16] The Respondent contends that the present case is not a proceeding 'under this Act' and, accordingly, s 17 has no direct application. This submission should be rejected. The words 'under this Act' appear within a distinct clause between the commas immediately before the word 'or' and after the word 'Act'. As a matter of grammar the words 'under this Act' refer to the words 'proceedings preliminary or incidental thereto'. … [17] It may be the case that when the Criminal Appeal Act 1912 was first enacted all appeals to this Court proceeded pursuant to that Act. However, the Act regulated the general procedure of this Court and is, generally, readily adaptable to the conferral of appeal rights to this Court under other legislation. The reference to 'an appeal' does not, as a matter of textual analysis, need to be restricted to an appeal solely under the Criminal Appeal Act itself and should not be. The procedural provisions of the Act, including s 17, should be applied to any scheme pursuant to which appeals are brought to this Court. (As distinct from proceedings which cannot be called an appeal at all, as in Markisic ….)" 47 If Markisic has any vitality, it has no application in the present case. The case has turned upon the scope of an interlocutory appeal under s 5F(3), by construction of the phrase "interlocutory judgment or order". The application before the Court is an application for leave to appeal pursuant to that provision. It is an application under the Criminal Appeal Act, whether it be successful or not. The fact that it has proved unsuccessful because of the proper construction of the Act does not mean that the application was not brought under the Act, nor that the proceedings which have been held to determine whether or not leave should be granted are not proceedings preliminary to or incidental to the proposed appeal. The rejection of leave has taken place in the exercise by the Court of its implied jurisdiction to determine whether it has jurisdiction. That is the exercise of a jurisdiction conferred (by implication) by the Act. The application which sought to invoke that jurisdiction is an application under the Act. Therefore the prohibition in s 17 operates and no order for costs can be allowed to the successful party.

(1) Extend time within which to seek leave to appeal, limited to the following orders made on 18 November 2009 - (a) "the hearing is vacated and a new hearing date is to be fixed"; and (b) "that Ms Kim be able to give evidence by audio visual link".

(2) Otherwise dismiss the motion for an extension of time. (3) Refuse leave to appeal under s 5F(3) of the Criminal Appeal Act .

(4) Refuse the respondent's application for an order for costs of the proceedings in this Court.

49 RS HULME J: The circumstances that have led to the proceedings in this Court are set out by Basten JA and Schmidt J and I need not repeat them. 50 Having had time to reflect on this matter, my preferred view is that the Court should refuse the extensions of time sought, applications to file amended documents and leave to appeal upon the ground that the substantive orders sought to be set aside were not opposed, or so obviously within the proper exercise of the judges who made them, or both, that any challenge to those orders is futile. The passage of time is another ground for concluding that the challenge to the order made on 18 November 2009 adjourning the proceedings is futile. 51 The order sought that the proceedings be dismissed for want of prosecution was not sought in the District Court so it could be made by this Court only if the Applicant succeeded in successfully challenging the orders made below. Hence this prayer is also doomed to failure. 52 These conclusions make it unnecessary for me to pursue many of the matters referred to in the reasons for judgment of my siblings. However I agree with both of them that no order for costs can be made. 53 For a variety of reasons, not the least of which was that many of the documents relied on by the Appellant were filed and served on the afternoon before the hearing in this Court - after the Respondent's submissions were filed - the hearing in this Court on 10 March last proceeded in a somewhat disorganised fashion. There were no orders extending time or allowing the Applicant to file documents but at the conclusion of argument for the Appellant on the issues other than costs, Basten JA observed:-

"The court need not trouble you, Mr Bodor (counsel for the Respondent). It intends to refuse leave to appeal in this matter. We will reserve our decision." 54 It seems to me that implicit in that observation is that the Court would grant any necessary extensions of time sought and permit the Notice of Motion of 8 March 2010 and the Second Amended Application for Leave to Appeal to be filed. In these circumstances it seems to me that the orders proposed by Schmidt J best meet the situation. I agree with them. 55 SCHMIDT J: By a notice filed on 16 December 2009 pursuant to s 5F of the Criminal Appeal Act 1912, the applicant sought leave to appeal Sweeney DCJ's grant of an adjournment of the District Court's hearing of an appeal from his conviction in the Local Court of offences under s 178BB of the Crimes Act 1900. That notice was later sought to be amended by a document filed in February 2010, by which the applicant also sought leave to appeal decisions earlier reached by Chief Judge Blanch in the District Court pursuant to s 19 of the Crimes (Appeal and Review) Act 2001, granting the respondent leave to call evidence from a Ms Morris and a Ms Kim. The application for leave to appeal was finally sought to be pressed pursuant to a second amended application for leave to appeal, by which the applicant sought orders that:

1 The Court's order of 18/11/09, that the hearing be vacated, be vacated

2 The Court's order of 18/11/09, that leave be granted to the Respondent to take evidence from Ms Kim by video link, be vacated

3 The Court's order of 29/06/09, that leave be granted to the Respondent to call evidence from Ms Kim, be vacated

5 The appeal to the District Court be allowed, in respect of each or all of the three charges, for reason of want of prosecution on the part of the Respondent

6 Leave be granted to the Applicant to put on affidavit evidence regarding:

(i) transcript of the proceedings in the District Court; and

(ii) history of the proceedings in the District Court since the matter was returned from the Court of Appeal (April 2008)

7 Costs 56 The respondent did not oppose leave to amend the application for leave to appeal being granted, but in written submissions filed before the applicant's submissions were filed, submitted that the Court had no jurisdiction to entertain the appeal and that the appeal should thus be dismissed with an order for costs. Having heard the applicant the Court was satisfied that the leave sought had to be refused and did not call on the respondent, other than as to costs. 57 There is a substantial background to these proceedings, conveniently explained by Tobias JA in Sasterawan v Morris [2008] NSWCA 70:

2 On 10 March 2004 the first opponent, Ms Judith Morris (the Prosecutor) issued a Court Attendance Notice (the Notice) returnable before the Local Court at Parramatta on 21 May 2004. The Notice alleged that on three occasions in 2003 Mr Sasterawan, the claimant, altered a Cabcharge docket with intent to obtain a financial advantage contrary to the provisions of s 178BB of the Crimes Act 1900 (NSW). The charges were heard in the Local Court on 29 March 2005 when the claimant was convicted on each charge and fined $300 in respect of each offence.

3 On 7 April 2005 the claimant appealed to the District Court against his conviction in the Local Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act ). Nicholson DCJ (the primary judge) dismissed that appeal pursuant to s 20(1)(b) of that Act on 7 September 2005.

4 The claimant ultimately issued a summons in this Court seeking relief pursuant to ss 69(1) and (3) of the Supreme Court Act 1970 (the SC Act ) by way of an order quashing the decision of the primary judge on the grounds of jurisdictional error and error of law appearing on the face of the record. It is that summons with which the Court is now concerned.

The steps taken by the claimant after the decision of the primary judge

5 Acting for himself and without the benefit of legal advice, on 29 September 2005 the claimant filed in the Court of Appeal a summons for leave to appeal from the decision of the primary judge. That application was misconceived, there being no right of appeal, with or without leave, to this Court from his Honour's decision under the Review Act . Upon appreciating that error, on 7 December 2005 the claimant filed in this Court a further summons seeking relief in the nature of certiorari pursuant to s 69 of the SC Act (the first s 69 summons). An amended summons was filed on 18 April 2006 (the amended first s 69 summons).

6 As a consequence of obtaining legal advice the claimant, prior to any hearing of the amended first s 69 summons, requested the primary judge to state a case to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (the CA Act ). On 16 March 2007, three questions of law were stated for the opinion of that Court, which ultimately answered them contrary to the submissions of the claimant on 28 June 2007: Sasterawan v Morris [2007] NSWCCA 185.

7 When the matter came before the Court of Criminal Appeal it was necessary for the claimant to obtain an extension of time within which to submit the questions of law raised by the stated case as s 5B(2) of the CA Act required that such questions of law be submitted not later than 28 days after the end of the appeal proceedings in the District Court.

8 At this stage, the Court had not disposed of the claimant's amended first s 69 summons. It is recorded by Basten JA, with whom Grove and Hidden JJ agreed, in his judgment in the Court of Criminal Appeal (at [9]) that at the commencement of oral argument before that Court, counsel for the claimant handed up a Notice of Discontinuance relating to the proceedings in the Court of Appeal. His Honour then dismissed the amended first s 69 summons in exercise of his power as a single judge of appeal under s 46 of the SC Act .

9 As I have indicated, the Court of Criminal Appeal rejected the submissions of the claimant, with the result that the decision of the primary judge stood.

10 On 27 July 2007 the claimant filed a further summons in this Court pursuant to s 69 of the SC Act that was first amended on 8 October 2007 and further amended on 5 December 2007 (the second s 69 summons). Although a third amended summons was filed, the claimant relied only on his second amended summons before this Court. It relevantly sought the following orders: · that the time for the filing of the summons be extended to 27 July 2007 pursuant to Pt 51 r 5 of the Supreme Court Rules ; · that the judgment of the District Court be sent up to the Court of Appeal to be quashed. · that the matter be remitted to the District Court for rehearing.

11 However, an extension of time was not required for the filing of the second s 69 summons as such a summons is an originating process in respect of which there is no relevant statutory time limit within which it must be filed. Of course, any question of delay in seeking relief under s 69 will be relevant to the exercise by the Court of its discretion to grant such relief, where grounds have otherwise been demonstrated. 58 The Court of Appeal concluded that errors of law by the primary judge on the face of the record had been established; that the orders made in the District Court proceedings on 7 September 2005 should thus be quashed and the proceedings remitted to the District Court for rehearing.

The adjournment of the District Court hearing 59 The matter was listed for hearing for 3 days. It commenced before Sweeney DCJ on 17 November 2009. On 18 November a prosecution witness became unwell and on the application of the respondent, the hearing was vacated, over the applicant's objection. The matter was listed for mention on 27 November, so that a new hearing date could be fixed. 60 From the respondent's submissions it appears that there was no appearance for the applicant that day. The further hearing was then fixed for 22 February 2010. The applicant later sought to have that date vacated on the basis that his solicitor had forgotten to attend the mention on 27 November and that the February date was not convenient to his counsel. The further hearing is now fixed for 10 May 2010. 61 The applicant's complaint was that Sweeney DCJ acceded to the adjournment application made after the respondent's counsel conferred with the witness and advised the Court that she did not reside in Sydney; that her doctor also did not live in Sydney; and that it generally took her a few days to get an appointment. In those circumstances, the applicant opposed an adjournment of more than a day or so. Her Honour adjourned the proceedings to a date to be fixed, concluding that the interests of justice required the adjournment 'and not for one day, because Ms Morris, as I understand it, simply cannot get an appointment within that time and that would not achieve anything.' 62 This, it was argued for the applicant, involved the Court dealing with the application in circumstances where there was no evidence before the Court as to the relevant matters and where the Court had mistaken the critical facts. In those circumstances the leave sought would be granted and the order made vacated. The futility of the order sought in relation to the vacation of the hearing was acknowledged, but nevertheless still pressed.

The evidence of Ms Kim and the final disposition of the appeal 63 It was explained for the applicant that the crux of the appeal related to the respondent being granted leave to call evidence from Ms Kim by way of video link. She was a crucial witness who had been subpoenaed to give evidence by the respondent, but adequate arrangements for her presence at the hearing had not been made. Before the trial she had moved overseas. In the circumstances of the adjournment of the hearing, the applicant did not oppose the respondent's application to call evidence from Ms Kim by video link. 64 It was nevertheless the applicant's case on appeal that the result of the District Court improperly exercising its discretion to adjourn the hearing indefinitely was manifest unfairness. This permitted the respondent to call Ms Kim's evidence by video link. If the adjournment had been only for a day or so, the respondent would not have had the opportunity to call such evidence from Ms Kim. 65 In those circumstances the orders sought in respect of Ms Kim would be made, as well as an order that the applicant's appeal to the District Court be allowed, thereby finally determining the proceedings in that Court in favour of the applicant.

Leave to appeal refused 66 Section 5F of the Criminal Appeal Act provides: 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 . 67 As was acknowledged for the applicant, the order sought in these proceedings in respect of the adjournment of the hearing in the District Court was plainly futile. It is an order which this Court would not contemplate making. In Alexandroaia v R (1995) 81 A Crim R 286 the Court had to consider an appeal brought under s 5F by a defendant whose adjournment application had been refused. The appeal was refused, without the question of leave being considered, the Court observing at 290:

Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. ( Conroy v Conroy (1917) 17 SR 680 at 682) An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. (Ibid (at 684); Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (1964) 82 WN (Pt1) 125 at 127). There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. ( House v The King (1936) S5 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 573 at 532-534; Rodgers v Rodgers (1964) 114 CLR 608 at 619-620) An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. ( Regina v O'Donoghue (1988) 34 ACrimR 397 at 401) If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made. ( Maxwell v Keun [1928] 1 KB 645 at 653; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (at 127); Bloch v Bloch (1981) 37 ALR 55 at 58-59, Walker v Walker [1967] 1 WLR 327 at 330) 68 In this case no error was shown. Her Honour was entitled to proceed on the basis of the position put to her for the respondent about the witnesses' situation, without objection from the applicant. There was no complaint made that the respondent ought to have led evidence as to the matters advised in relation to the witnesses' residence, that of her doctor and that it would take her some days to obtain an appointment. It is too late to advance the complaint now sought to be made on appeal in relation to this issue. 69 Even if her Honour's view of the facts had been mistaken, that would not necessarily result in leave being granted. In R v Matovski (1989) 15 NSWLR 720 at 723 Gleeson CJ, with whom Lee CJ at CL and Grove J agreed, observed that :

For my part it seems to me that the reasons for the learned judge disclose no error of principle, assuming the view of the facts which he took to be correct. It has not been suggested that the view which the learned trial judge took of the facts is not one that was possibly open to him, the submission is simply that his Honour got the facts wrong.

I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made. Accordingly, it is not appropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal. Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than one of the persons mentioned in s 5F(2). The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed. 70 In this case the complaint is not factual error, but an absence of evidence as to those facts. In the circumstances there can be no question that the conclusion reached as to the adjournment was well within her Honour's discretion. Her Honour was entitled to reject the position urged for the applicant in determining what justice demanded in the situation which had presented itself. 71 As to the leave sought in relation to Ms Kim's evidence, as it was explained for the applicant, this hinged on the success of the appeal in respect of the adjournment. No case for granting leave to appeal from the decision of Chief Judge Blanch was pressed on any basis other than the consequences, in the particular circumstances, of the adjournment having been granted by Sweeney J. That, as a matter of justice between the parties, cannot be a proper basis for granting the applicant leave to appeal his Honour's decision to grant the respondent leave to call evidence from Ms Kim on the hearing of the appeal from the Local Court. 72 As to the leave granted to call Ms Kim's evidence by use of video link, it may not be overlooked that s 5F(3) of the Criminal Appeal Act confines the leave which the applicant might seek of this Court to 'interlocutory judgments or orders' of the District Court. The section does not permit an appeal to this Court in relation to procedural rulings or directions made during the course of a hearing, such as that involved in permitting Ms Kim to give her evidence by video link. Under the Evidence (Audio and Audio Visual Links) Act 1998 that was a matter for the District Court's directions in the particular circumstances of the case before it. That direction is not amenable to review under s 5F of the Criminal Appeal Act. 73 While s 5F(5) of the Criminal Appeal Act refers to the Court's powers in respect of a 'decision or ruling', that is a reference to the provision made in s 5F(3A), which gives the Attorney General or the Director of Public Prosecutions the right to appeal against any decision or ruling on the admissibility of evidence. The applicant is given no such right under s 5F(3), much less a right to seek leave to appeal in respect of a direction as to the manner by which particular evidence is to be received. 74 Finally, it was argued that the order sought finally disposing of the proceedings was available to be made under s 5F(5) of the Criminal Appeal Act. It is doubtful that the section envisaged such relief being granted in circumstances where there is no judgment or order of the District Court, which is sought to be made the subject of an appeal. The practical result of the order would be to uphold the appeal, without a hearing on the merits by way of rehearing by the District Court, as envisaged by the Crimes (Appeal and Review) Act. That does not appear to be an order contemplated by s 5F of the Criminal Appeal Act. Given however, that such an order would plainly only be entertained if the applicant succeeded in obtaining the orders sought in respect of the adjournment and Ms Kim's evidence, it is unnecessary to consider this question further.

Costs 75 Section 17 of the Criminal Appeal Act relevantly provides: 17 Costs of appeal (1) On the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side. 76 The respondent's case was that the applicant was not exercising any right of appeal provided by the Criminal Appeal Act and that accordingly, s 17 did not govern the question of costs. The respondent argued that the appeal should have been brought by way of stated case under s 5B, in which event costs could have been awarded (see Robinson v Woolworths Ltd [2005] NSWCCA 426; [2005] 227 ALR 353 at [55] per Basten JA (with whom Barr J and Hall J agreed). 77 The respondent sought an order for costs against the applicant, relying on the power to award costs discussed in Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53. There the respondent made plain to the applicant that the Court of Criminal Appeal did not have any jurisdiction to entertain his appeal and that costs would be sought against him. Still he persisted. The Court found that it had no jurisdiction, because the applicant had no right to bring the proceedings at all and a costs order was made against him. It was observed by Stein JA with whom Dowd and Barr JJ agreed:

28 In their written submissions the respondents' seek costs of the proceeding before the Court of Criminal Appeal. Section 17 of the Act provides that no costs shall be allowed on either side on the hearing or determination of an appeal, but this does not mean that the Court of Criminal Appeal has no jurisdiction to make orders for costs, see, for example, cases stated under s 5B.

29 In Proust v Blake (1989) 17 NSWLR 267 Samuels JA stated [at 272]: It is clear law that the fact that a court has no jurisdiction to determine a matter does not prevent it from dealing with the costs of the proceedings in which its absence of jurisdiction is established: Pezet v Pezet (1946) 47 SR (NSW) 45 at 51; 63 WN (NSW) 238 at 240. This case was disapproved in Miller v Teale (1954) 92 CLR 406 but not in relation to the costs point. It follows that even if the result of this court's determination was to declare that it had no jurisdiction to entertain the stated case (which it is not) there would still be jurisdiction to make an order for the costs of the proceedings which we have heard.

30 Where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and, therefore, a jurisdiction to deal with the costs of the proceedings, see authorities cited at p 13 of submissions filed on behalf of the 2nd, 6th, 7th and 9th respondents.

31 While the proceedings purport to be brought under the Act, they in fact were not so brought, and s 17(1) has therefore no power to awarding costs of the court.

32 The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at 503; R v Barbaro (1992) 106 FLR 387 at 389; and Director General, Department of Community Services v Houdek [1999] NSWSC 1031. The dichotomy between implied and inherent powers matters not in this context.

33 In this matter it was made plain to the applicants that the Court of Criminal Appeal did not have any jurisdiction to entertain their appeal and that costs would be sought against them. Notwithstanding, they have persisted in the appeal and the court has found that it has no jurisdiction.

34 The respondents have been caused costs and expense in order to respond to the appeal and they are entitled to their costs from the applicants. The costs awarded by McClellan J and by this court are compensatory and are not awarded as a punishment of the applicants. 78 The respondent here complained that the fact that the appeal was incompetent had been raised for the applicant's assistance in the proceedings before the Registrar on 11 February, but the applicant elected to pursue his appeal notwithstanding the jurisdictional difficulty. In those circumstances, it should be awarded the costs incurred in responding to the appeal. 79 In Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 Spigelman CJ, with whom Basten JA and Hislop J agreed, had to consider a costs application in another case where the Court's implied power to award costs identified in Markisic was relied on. The order sought was refused, Spigelman CJ observing at [34] - [36]:

34 With respect to the application of MMK and MRK, the submissions did not identify in any respect what it was that could have constituted an abuse of process sufficient to invoke the implied power affirmed by this Court in Markisic .

35 The most that could be said was that, in view of the jurisdictional issue on which the Applicant has failed, the proceedings were at all times hopeless. Indeed the original submissions filed in support of the application failed to recognise in any way the jurisdictional issue that has proven to be decisive.

36 Nevertheless, a successful jurisdictional objection is not enough to justify a finding of abuse of process for the purpose of making a special order as to costs. 80 In R v JS (No 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10, Spigelman CJ, with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed, again considered the Court's implied power to award costs, observing at [17] that the type of proceedings with which Markisic was concerned, were 'proceedings which cannot be called an appeal at all'. 81 In this case the appeal was disposed of on the basis of a refusal of leave. The leave application was certainly a hopeless one, but that is not a basis on which a costs order may be made under this statutory scheme. The applicant's jurisdictional argument was also problematic, but the view that it was such that it could properly be described as involving no application for leave to appeal at all, is not open in this case. 82 In those circumstances it follows that like in Re Application by John Fairfax Publications Pty Ltd, there can be no costs awarded in the respondent's favour, given the provisions of s 17 of the Criminal Appeal Act.

Order 83 For these reasons the orders I would propose are: (i) Grant leave to the Applicant to file the Second Amended Application for Leave to Appeal, dated 5 March 2010 and extend time accordingly.

11/05/2010 - amendment made to catchwords - Paragraph(s) The words 'interlocutory orders' added after 'challenge to'

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