Van Phuc Diep v Appeal Costs Board [2003] VSC 386

2 The applicant, Van Phuc Diep ("the applicant"), is a person who was charged with a number of serious drug offences and at the time when the decisions were made, was an inmate of Port Phillip Prison.

3 The respondent, the Appeal Costs Board ("the Board"), is a statutory body continued by the Appeal Costs Act 1998 ("the Act"). The Board comprises a number of persons appointed by the Attorney-General. A member holds office for a period of three years.[1] The Act repealed the Appeal Costs Act 1964.[2] The former Act established the Appeal Costs Board and the new Act continued it.[3] However, it is clear from both the 1964 and the 1998 Acts, that the Board is not a body corporate.

4 At the outset a question arises as to whether the Board can be joined as a party, because it is not a legal person. In Murphy v Obst,[4] a judicial review of a decision made by members of the Board pursuant to Order 56 of the Rules of Court was brought in the names of the members of the Board who made the decision as defendants. As the Board may from time to time comprise a number of different persons, the proper parties to the present proceeding must be the particular members of the Board who made the decisions which are sought to be reviewed.

5 The court raised the question whether the proceeding was a valid proceeding at the outset of the hearing. Since the named party was not a body corporate, and therefore not a legal person, the proceeding was irregular and the question is whether the proceeding is void. After some discussion with counsel, the court indicated that it would proceed with the review, and requested the parties to forward written submissions on the question. The court heard the review, and reserved its decision. The parties have since forwarded to the court submissions concerning the validity of the proceeding.

6 On 1 June 2001, the applicant was arrested on a number of serious drug charges some of which were indictable and hence to be heard by a jury. However, they could be heard summarily pursuant to s.53(1) of the Magistrates' Court Act 1989. A hearing date of the charges was fixed at a mention hearing for 19 July 2001. At that time it was anticipated by both prosecution and the applicant that the indictable charges would be heard summarily at the Dandenong Court. It was expected that all the charges would be heard together and they would be contested.

7 On 19 July 2001, the prosecutor informed the court that the indictable charges were too serious to be heard summarily and made application that they be transferred to Melbourne Magistrates' Court for inclusion "in the committal stream".

8 The magistrate acceded to the application and remanded the applicant in custody to appear at the Melbourne Magistrates' Court on 23 July 2001. It is clear that the magistrate formed the opinion that the indictable charges were not appropriate to be determined summarily. See s.53(1)(a) of the Magistrates' Court Act.

9 On 19 July 2001, Magistrate Bolster granted a certificate pursuant to s.17(1) of the Act. He certified that the proceeding was adjourned, that the court was satisfied the accused had necessarily incurred expense by reason of the adjournment, and that the reason for the adjournment was not attributable in any way to the act, neglect or default of the accused or his practitioners. He stated that the reason for the adjournment was

"MORE APPROPRIATE THAT MATTER BE DEALT WITH BY WAY OF COMMITTAL RATHER THAN SUMMARILY."

10 By letter dated 16 July 2002, Access Law, on behalf of the applicant, made application to the Board for a certificate for payment of the costs incurred. Accompanying the letter was a document called an "APPLICATION", signed by the applicant's solicitor, Gabriel Kuek of Access Law.

11 The document set out a number of facts, and after reciting what the magistrate had done, the document stated -

"The Certificate appears to have been erroneously made pursuant to s.17, instead of s.16 of the Appeal Costs Act. If the Board considers it necessary, application can be made to the learned magistrate to correct the error and to re-issue a certificate."

12 The claim made was that because the summary trial was according to the Application "discontinued" the applicant incurred expenses in the sum of $8,719.90 "being costs thrown away". Mr Kuek stated that additional legal work had to be undertaken for the committal and the costs amounted to $22,260.48.

13 Where an indemnity certificate is granted pursuant to s.16 on the basis that the criminal proceeding has been discontinued, the entitlement of the accused person to costs thrown away usually results in a substantial sum of costs compared with a certificate under s.17 which deals with the adjournment of a criminal proceeding. The former involves a wastage of costs of a proceeding whereas the latter is usually concerned with costs of the day wasted because of the adjournment. It was the contention of the applicant's solicitor that an error had been made by the magistrate and that the certificate should have been granted under s.16(1). The Board considered that question concluding that there was no basis for the grant of a certificate under s.16(1)(a) of the Act.

14 The committal proceeding was to commence on 2 August 2001 before Couzens M but he disqualified himself from hearing the matter on that date and adjourned it because there was no magistrate to deal with it. Magistrate Barberio granted a certificate under s.17(1) of the Act on 23 August 2001. The reason for the adjournment was noted as follows -

"THIS CERTIFICATE RELATES TO THE HEARING DATE 2nd AUGUST 2001 BEFORE COUZENS M. MR COUZENS DISQUALIFIED HIMSELF FROM HEARING OF THE MATTER ON THAT DATE AND RESERVED THE APPLICATION FOR AN ACF CERT, FOR THE SUBSEQUENT MAGISTRATE DEALING WITH THE MATTER."

15 Application was made to the Board for a certificate of payment of the costs in the letter dated 16 July 2002 in respect of that indemnity certificate.

16 Three members of the Board considered the two applications and made decisions which were conveyed to the applicant's solicitors, by letter dated 30 September 2002. The letter stated, omitting the formal parts -

"In regard to the above application, the Appeal Costs Board has resolved to issue a certificate (copy enclosed) authorising a payment, the breakdown of which is as follows:

The Financial Management Branch of the Department of Justice has been directed to send a cheque for the above amount to your office."

17 Attached to the letter was the Certificate of the Appeal Costs Board which was signed by "H. Obst," who was described as the Chairman of the Board.

18 On 30 October 2002, Access Law filed two affidavits seeking an order for review pursuant to s.4 of the ALA of the decisions made in respect of both indemnity certificates. One affidavit was sworn by the applicant and the other by his solicitor, Gabriel Kuek. The respondent to the application was named as "APPEAL COSTS BOARD". The application was adjourned. At that time the applicant's solicitors did not have the reasons for the decision and a request was made on 31 October 2002 for the reasons pursuant to s.8(1) of the ALA. On 6 December 2002 the applicant's lawyers received a copy of the reasons. The reasons are dated 6 December 2002 and are signed by Howard Obst Chairman, and Leonie Thompson and Anthony Hooper QC as members.

19 On 28 January 2003, Master Wheeler granted an order for review and stated that the decisions for review were those made on 20 September 2002 by "the Appeal Costs Board constituted by Howard Obst, Leonie Thompson and Anthony Hooper". The Master set out the grounds and ordered the Respondent to show cause why the decisions should not be reviewed.

20 The ALA was passed in 1978. It gave the right to certain persons affected by a decision made by a tribunal to apply for an order to review. The terms "decision", "person affected", and "the Tribunal" were all defined by s.2 of the Act. An important feature of the Act was the statutory requirement found in s.8 that a tribunal must if requested to do so furnish a statement of its reasons for the decision. By reason of s.10 the reasons form part of the record.

21 The powers of the court on the return of an order for review are set out in s.7 and it provides -

"The court may discharge the order or may exercise all or any of the jurisdiction or powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect to a decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of a decision but shall not exercise any other jurisdictional power or grant any other remedy." (Emphasis added).

22 The nature of the jurisdiction of this court under the Act was considered by the Full Court in Monash University v Berg and Ors.[5] There is no doubt that one of the objects of the Act was to overcome some of the technical aspects of the prerogative writ jurisdiction of the court, but equally it is clear the Act did not alter the jurisdiction which the court has at common law to supervise the decision making process of an administrative body. An order for review is not an application for a judicial review pursuant to Order 56 of the Rules of Court. Nevertheless, the court exercises the same common law supervisory jurisdiction that it has in respect of judicial review. That jurisdiction is limited.

23 The ALA has effected a number of changes to the law. First, it set up a procedure designed to eliminate the complexities involved in applications for the grant of prerogative writs and similar remedies;[6] it liberalised the principles concerning locus standi,[7] thirdly, it required the body in question to give reasons for the decision which would be incorporated into the record,[8] and finally, it eliminated the effect of privative provisions in any statute designed to exclude the jurisdiction of the court.[9] The principles were discussed in Monash University v Berg,[10] and Masters v McCubbery.[11]

24 Nevertheless, save for these changes the ALA did not change the common law jurisdiction of this court to supervise decisions made by tribunals. The supervisory controls are maintained by ensuring that the tribunal is kept within jurisdiction and that in performing the jurisdiction, it observes the law.

25 Whether the changes effected by the ALA to the common law jurisdiction of this court could be described as going to jurisdiction or are merely procedural, the actual jurisdiction of considering and determining a review is the common law supervisory jurisdiction of this court - see Kuek v Victoria Legal Aid.[12] An application pursuant to the ALA is regulated and controlled by the Act and must strictly comply with the Act. See Keller v Bayside City Council.[13]

26 The ALA specifies the types of decisions subject of the review, the person having the right to bring an application for review, and which tribunals are subject to the review.[14]

27 In my opinion, a decision by the Board is a decision which falls within the definition in s.2. Further, the applicant is a person affected within the meaning of the same section. The same section defines "Tribunal" as meaning "a person or body of persons ... who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."

28 Counsel for the Board did not suggest that the Board was not a "tribunal" within the meaning of s.2. In Murphy v Obst, supra, the proceeding attacking the decision made by members of the Board was by way of judicial review pursuant to Order 56 of the Rules of Court. However, the present application has been brought pursuant to the ALA and by reason of s.2 of the Act, the question arises whether the members of the Board making the decision constitute a tribunal.

29 The twin rules of natural justice are the requirement of an unbiased tribunal making decisions, and secondly, the obligation to give the person affected by the decision an opportunity to be heard after notice was given to that person of matters relevant to the decision making process.

30 The Appeal Costs Board has been operating since 1964. It rarely hears applicants seeking payment pursuant to indemnity certificates granted under the Act. But the members are obliged to perform their functions impartially.[15] There is a requirement of an impartial tribunal. In my opinion, the members of the Board performing the functions under the Act and making decisions constitute a tribunal within the meaning of the Act. It follows that a decision can be the subject of a review under the ALA.

31 The jurisdiction under the ALA is the same jurisdiction exercised by the court pursuant to Order 56 of the Rules of Court, and the court in exercising the jurisdiction is concerned with the legality of what was done by the tribunal and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas on a review, it is whether the decision was made in accordance with the law. This court on an application under the ALA is not concerned with whether the decision was fair or correct.

32 What the applicant seeks is an order quashing the decisions made in relation to both certificates by the members of the Board which comprised a single certificate signed by Mr H. Obst, Chairman of the Board, and an order that the members of the Board reconsider the decision in accordance with the law. To that extent the applicant is seeking an order equivalent to an order for certiorari. The jurisdiction to obtain such an order is restricted and was discussed by the High Court in Craig v South Australia.[16]

33 It is important to emphasise that judicial review is not concerned with the decision itself but with the decision making process. This court must confine itself to the jurisdiction question and not treat the application as an appeal. See Chief Constable of North Wales Police v Evans [17] and R v District Court; ex parte White.[18] Also see the observations of Denning LJ in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw.[19]

34 The High Court in Craig's case,[20] identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record. This court is concerned to ensure that the members of the Board acted within jurisdiction and that in performing the decision making process, they complied with the law. The High Court drew a distinction between administrative tribunals and inferior courts at p.176 and set out examples of error by a tribunal.

35 There is no doubt that members of the Board had the jurisdiction to determine the amount payable pursuant to the indemnity certificates. It must therefore follow that the attack pursuant to this order for review must be confined to an error of law in the exercise of the jurisdiction.

36 There is a preliminary question that must be considered, namely, the effect of the naming of a body which is not a legal entity as the respondent to the proceeding. Is the proceeding a nullity? Is it possible to cure the defect?

37 It has been held that the procedural requirements of ss.3 and 4(1) are mandatory. See Keller v Bayside City Council[21] and Kuek v Victoria Legal Aid and Others.[22] There is no power in the ALA to extend time. The provisions must be strictly complied with.

38 Under ss.3 and 4(1), a person affected by a decision, who seeks to review it, must comply with two essential pre-requisites, namely -

(i) That the application to the Supreme Court for an order for review must be made not later than 30 days after the giving of the notification of the decision (or the reasons if requested), and

(ii) seek and obtain an order calling on the tribunal or the members thereof and also any person interested in maintaining the decision to show cause why the same should not be reviewed.

39 If an order for review is made calling upon only one party, whether it be the tribunal or the party seeking to maintain it, it has been held that the order must be discharged. See Gordon v Bloomer[23] and Apperley v Cooper.[24] In each of those cases, there was a failure to call upon the additional party to show cause. The cases were discussed by Fullagar J in Charalambous v Carideo.[25] In that latter case, an order for review was granted under the Act in March 1985 directed to the party seeking to maintain the decision. Some 20 months later an ex parte application was made to the Master who made an order amending the original order for review by directing that it also apply to the tribunal. The order was made pursuant to Order 28, Rule 11, of the old Rules of Court, which was the slip rule. It was submitted that the proceeding was a nullity ab initio and that there was no power to amend. Fullagar J[26] stated that in his opinion orders for review could be amended under the slip rule. He stated that the slip rule could apply provided that the original application was seeking an order calling on both the requisite parties and provided that any application for amendment under the slip rule was made within the original period of 30 days. His Honour declined to permit the respondent to the review to raise the question as to the validity of the proceeding at a late stage and accordingly rejected the preliminary objection. In my opinion, his observations concerning the application of the slip rule were obiter dicta. See observations of Batt J in Keller v Bayside City Council.[27]

40 In Keller v Bayside City Council, Batt J considered the question whether the failure to join the actual decision maker could be cured by amendment under the Supreme Court Rules. His Honour held that although the Rules of Court applied, the proceeding was void. His Honour referred to the failure to comply with the provisions of the ALA as going to jurisdiction. In Kuek v Victoria Legal Aid and Ors, supra, the court stated that it was inappropriate to refer to the defect as going to jurisdiction.[28]

41 In my opinion, the Rules of Court do apply to the present proceeding. That was the view of Fullagar J in Charalambous v Carideo and Batt J in Keller v Bayside City Counsel.[29] In my opinion, Rules 36.01 and 36.07 apply to a proceeding brought pursuant to the ALA. I would respectfully query whether Fullagar J was correct in Charalambous v Carideo[30] when he stated that in his opinion an application of the slip rule had to be made within the original period of 30 days. To so confine the application of the slip rule, robs it of much of its content. If an error was made by the court at any time as Rule 36.07 provides, then in my view it should be correctable at any time subject to the exercise of discretion.

42 When the procedural steps are analysed, it is in my opinion clear that a mistake was made in the application and order made.

43 The applicant's solicitor did make the ex parte application to court within the 30 days' period as required by s.4(1). This court's jurisdiction is invoked by the ex parte application being made to the court. The only necessary party was the decision maker. There was no-one else who had an interest in maintaining the decision concerning payment under the indemnity certificates. The decision maker was the Board constituted by the members. It is clear in my opinion that the applicant was seeking an order against the Board comprising the members who made the decision which was adverse to him and which he alleged was wrong. In my view, that was the clear intention of the ex parte application made to Master Evans.

44 In accordance with the usual practice, an application made within time is adjourned for consideration outside the 30 days' period. This complies with s.4(1) because it is the application that must be made within the time limit. It follows that the two prerequisites were complied with and if there was an error, it was an error concerning the proper description of the decision maker. Master Evans actually adjourned the application twice and it came on for hearing before Master Wheeler on 28 January 2003. The court's jurisdiction was enlivened pursuant to the Act and the second step in the procedure was the making of the order for review. It is clear that it was the intention both of the applicant and the Master that the decision the subject of the review was that made by "the Appeal Costs Board constituted by Howard Obst, Leonie Thompson and Anthony Hooper" as the body of the order makes clear. The error was an error in the title to the proceeding. This was a case where the applicant, intending to sue the decision maker, made a mistake as to the description of the decision maker and who constituted it.

45 In my opinion, the slip rule applied. It is now well-established that the slip rule should not be narrowly confined in its application. It provides -

"36.07 The court may at any time correct a clerical mistake in a judgment or order or an error arising in the judgment or order from any accidental slip or omission."

46 It is now well-established that the rule covers errors made not only by the court but on the part of a party's legal representative. See L. Shaddock and Associates Pty Ltd v Parramatta City Council (No. 2)[31] and Gould v Vaggelis.[32]

47 The applicant intended to review the decision made by the Board comprising the three named members. That was also the intention of the court. That is very clear from the terms of the order made by Master Wheeler. In my view there was a mistake, and it concerned the naming of the respondent.

48 In my opinion, the error is curable and I am prepared to make an order to give effect to the clear intent of the parties and the court.

49 Master Wheeler, on 28 January 2003, granted an Order for Review and stated the grounds upon which it was sought to review the decisions. There are many grounds, but on the review Mr Nash QC, who appeared for the applicant, confined his submissions to two general areas. It is convenient to state the submissions in the form of grounds, namely -

(i) That the members of the Board erred in concluding that a certificate under s.16(1) of the Act would not have been granted because the criminal proceeding had not been discontinued within the meaning of the Act. It was contended that the true nature of the proceeding on 19 July 2001 was in fact a discontinuance of a criminal proceeding.

(ii) That the members of the Board denied the applicant natural justice by failing to raise with the applicant's solicitor certain factual matters which the Board assumed and it was submitted incorrectly assumed. It was contended that the members of the Board should have given the applicant's solicitor the opportunity to make representations in relation to certain factual matters that the members of the Board took into account in considering whether a certificate under s.16(1) of the Act could and should have been granted.

(iii) That the applicant was denied natural justice by the members of the Board who it is contended should have informed the applicant's solicitor that they had no power to deal with an application to treat the certificate as a certificate under s.16(1) and should have informed the applicant's solicitor to make application to the Magistrates' Court to amend the indemnity certificate given under s.17(1) on 19 July 2001.

50 Although the original grounds raised questions as to the amounts allowed by the members of the Board, in the end Mr Nash did not seek to argue that the members of the Board had erred in their determination. In my opinion, it would not have been open to the applicant to review those decisions because the members of the Board clearly had the jurisdiction to make the determination and any attack upon the amounts allowed would be an attempt to review the merits of the decision which would not be open on a review.

51 Before considering the three grounds raised by Mr Nash, it is appropriate to briefly outline the scheme of the Act.

52 Part 5 of the Act deals with the Board, membership, terms of appointment, payment of its members, its functions and proceedings before it. Its functions are set out in s.21. Relevantly to the present matter, s.21 provides -

(a) to assess and determine applications for payment made under this Act; and

(b) to approve forms for the purposes of this Act; and

(c) to issue certificates in respect of applications for payment made under this Act; and

(d) as the Board thinks fit, to conduct proceedings in respect of applications for payment made under this Act."

53 The section provides what the Board is empowered to do.

54 It becomes seized of the authority to determine an application for payment by reason of an indemnity certificate granted by a court of law. Under s.16(1) if the hearing of any criminal proceeding is discontinued and the reason for the discontinuance is not attributable to the accused or his practitioner and a new hearing or trial is ordered, a court may grant an indemnity certificate "in respect of that accused's own costs of the discontinued proceeding." If the court does grant an indemnity certificate pursuant to that sub-section then the Board is authorised to consider and determine the amount payable.

55 Section 17(1) deals with the hearing of any criminal proceeding which was adjourned. The court may grant an indemnity certificate "in respect of that party's own cost of the adjournment" if the reason for the adjournment was not attributable to the conduct of the accused or his legal practitioner.

56 It follows that before the Board is authorised to do anything, it is necessary for a court to grant an indemnity certificate. Sections 16(2) and 17(2) make it clear that a court may only grant an indemnity certificate "if it is satisfied that the reason for the discontinuance (or the adjournment)" was as set out in sub-s.(1)(b) of s.16 or 17. That is, the reason for the discontinuance or adjournment was not attributable to the conduct of the accused or his legal practitioner. In considering ss.16(2) and 17(2) one must also note the provisions of s.37 which provides -

"(1) No amount is to be paid under this Act otherwise than in accordance with the certificate of the Board.

(2) The Board must not issue a certificate for the payment of any amount under this Act unless it is satisfied that the payment is authorised by this Act and that the provisions of this Act and the regulations in relation to a claim for the payment have been complied with."

57 It is an interesting question whether the Board could refuse under s.35(2) to issue a certificate for payment when a court has granted an indemnity certificate. As presently advised I think it would be within the power of the Board to refuse a payment if the Board was satisfied that the grant of the certificate was not authorised by the Act. In the present case, the members of the Board accepted the view that since the certificates had been granted they should deal with them and did so.

58 Once an indemnity certificate is granted under s.16 or 17, the party granted the certificate may make application to the Board. The provisions of s.16(3) and s.17(3) are in somewhat similar terms although the outcome of an application to the Board is different according to whichever sub-section applies. It is only necessary to set out s.17(3) in order to make clear what the Board is authorised to do. Section 17(3) provides -

"(3) A party granted an indemnity certificate under sub-s.(1) is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the adjournment that have been incurred that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party."

59 The sub-section makes clear what the applicant is entitled to be paid after the grant of an indemnity certificate, namely, its own costs of the adjournment that had been incurred. The costs must be reasonably incurred, and thirdly, the costs must not have been paid by any other party.

60 What in fact happens is a written application is sent to the Board enclosing the indemnity certificate granted, together with evidence of the amount of costs.

61 Once application is made then s.35(2) applies and the Board is required to issue a certificate on being satisfied of the matters set out in s.17(3).

62 Under s.36 the Board has the power to correct a certificate issued by it but that is a certificate for payment. Section 36 does not empower the Board to correct any error in relation to the grant of an indemnity certificate.

63 Mr Nash submitted that the Board was in error when it considered the question of whether a certificate should have been granted under s.16(1). In fact, the members of the Board considered this question and came to the conclusion that no such certificate could have been granted by the magistrate.

64 It was submitted by Mr Tracey QC, who appeared with Dr Emerton for the respondent, that the Board had no authority to consider the question and accordingly what it did was of no moment and of no effect. It was submitted that the complaints made by Mr Nash therefore could not be considered on this review. But in any event it was submitted that the complaints had no merit.

65 The reasoning of the members of the Board can be briefly summarised in relation to this question. Before doing that it is necessary to set out ss.16 and 17 of the Act.

"Application for indemnity certificate if criminal proceeding discontinued 16 (1) If -

(a) the hearing of any criminal proceeding is discontinued; and

(b) the reason for the discontinuance was not attributable in any way to the act, neglect or fault of an accused or that accused's legal practitioner; and

that accused may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of that accused's own costs of the discontinued proceeding.

(2) The court may only grant an indemnity certificate under sub-section 91) if it is satisfied that the reason for the discontinuance was as set out in sub-section (1)(b).

(3) An accused granted an indemnity certificate under sub-section 91) who pays, or is ordered to pay, any additional costs as a consequence of the order for a new hearing or trial is entitled to be paid by the Board, on an application made to it by the accused in the approved form, an amount equal to the accused's own costs of the discontinued proceeding that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party.

(4) For the purposes of this section, if in a criminal proceeding the presiding judge or magistrate directs that the proceeding be discontinued without ordering a new hearing or trial but with a view to another hearing or trial based on the same facts, or facts of a similar character, being conducted against the accused, a new hearing or trial is deemed to have been ordered.

Application for indemnity certificate if criminal proceeding adjourned 17 (1) If -

(a) the hearing of any criminal proceeding is adjourned; and

(b) the reason for the adjournment was not attributable in any way to the act, neglect or fault of a party accused or convicted of an offence to which the proceeding relates (whether that party is a defendant, appellant or respondent in the proceeding), or that party's legal practitioner ; and

(c) that party pays, or is ordered to pay, any additional costs as a consequence of the adjournment;

that party may apply to the court for, and the court may grant, an indemnity certificate in respect of that party's own costs of the adjournment.

(2) The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that the reason for the adjournment was as set out in sub-section (1)(b).

(3) A party granted an indemnity certificate under sub-section 91) is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the adjournment that have been incurred that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party.

(4) For the purposes of this section, a criminal proceeding is deemed to have been adjourned if the court hearing the proceeding, the informant or the Director of Public Prosecutions (as the case may be) notifies the party accused or convicted of an offence (whether that party is a defendant, appellant or respondent in the proceedings) to which the proceeding relates or their legal practitioner that a date has been fixed for the hearing of the proceeding, and the proceeding is not listed for hearing on that day."

66 Section 17(1)(c) was repealed on 19 June 2002. It can be seen that there is a marked difference in effect between a s.16(1) indemnity certificate and one under s.17(1). A certificate under s.17(1) is granted when a criminal proceeding is adjourned and the costs recoverable pursuant to the certificate are the party's own costs of the adjournment. However, where the certificate is granted under s.16(1) it is granted on the basis that the criminal proceeding is discontinued and the indemnity certificate entitles an accused to his own costs of the discontinued proceeding. As a general rule, costs payable pursuant to a certificate under s.16(1) would be far greater than costs payable under a s.17(1) certificate.

67 In the present matter, the learned magistrate in respect of the first hearing granted an indemnity certificate pursuant to s.17(1) of the Act. When the applicant's solicitor made application to the Board for payment he asserted that the certificate appeared to have been erroneously made pursuant to s.17 instead of s.16 of the Act. Accordingly, he claimed a substantial sum of money for costs thrown away in respect to an alleged discontinued proceeding.

68 The members of the Board in fact considered the question whether or not an error had been made and whether the certificate should have been and could have been granted under s.16(1).

69 The Board in its reasons referred to the letter from the applicant's solicitor which referred the Board to its power under s.36 of the Act to correct errors. Having noted that the solicitor suggested that an error had occurred in that the certificate was incorrectly issued under s.17(1) instead of s.16(1) the Board then considered and determined that issue.

70 Having summarised the facts, namely, that the prosecutor informed the magistrate that the matter should not be dealt with summarily, the Board went on to say -

"So far as the use of the word `discontinued' is concerned, this would not appear to be an appropriate description of what occurred, in that the magistrate appears to have declined to hear and determine the proceedings summarily, not being of the opinion that the charges were appropriate to be determined summarily as required under s.53(1)(a) of the Magistrates' Court Act 1989. This was no doubt a prospect or `risk' that the applicant took on when the listing for a hearing and determination summarily was `booked in' at the contest mention hearing held on 21 June 2001. As his consent to such a course was necessary [see s.53(1)(b)], it must be inferred that he supported, if not instigated, such a course. In the Board's view costs expended by the applicant in attempting to have the proceedings dealt with summarily are simply part of the normal costs incurred by an accused in defending himself. It no doubt being considered advantageous by most accused persons to obtain, if they can, the disposal of their proceedings summarily in the Magistrates' Court rather than in the higher court, where greater costs and penalties apply."

71 The Board observed that no application was made for an order for costs against the informant. The Board noted that the applicant took his chances of having the proceeding heard and determined summarily and failed in that attempt. The Board concluded -

"There was no basis for the grant of a certificate under s.16(1)(a) of the Appeal Costs Act 1998 in the circumstances."

72 The Board stated that no summary hearing had in fact commenced because the magistrate must form an opinion under s.53(1)(a) of the Magistrates' Court Act 1989 and accordingly there was no hearing that could be said to have been discontinued. The Board noted there was nothing in the Act to provide an indemnity to a disappointed applicant for the disposal of indictable offences summarily.

73 It is pertinent to observe that the Board went on to state that the resultant adjournment that followed was "somewhat fortunately for Mr Diep" made the subject of a certificate granted under s.17(1)(a) of the Act.

74 The Board does have power to correct errors. . Section 36 provides -

"36. The Board, on its own initiative or at the request of the person in respect of whom the Board has issued a certificate, may correct the certificate if it contains -

(a) a clerical error or accidental slip or omission; or

(c) an evident material mistake in the description of a person or thing."

75 The power is given to correct errors where the Board has issued a certificate. The Board, when an indemnity certificate is granted by a judicial officer, then grants a certificate for payment pursuant to s.21(c). In my opinion, s.36 does not permit the Board to correct any alleged errors made by a judicial officer in the grant of a certificate of indemnity under the Act.

76 In my opinion, that is a short answer to this review. The Board did not have any power to consider and determine whether the s.17(1) indemnity certificate granted on the first occasion should have been granted under s.16(1) of the Act and amend it. The Board's reasoning in this regard is of no effect and accordingly the applicant fails in so far as the review seeks to question what the members of the Board did in respect to the application by the applicant's solicitor, that an error had been made and should be corrected.

77 As the parties debated the issues before me it is appropriate for me to briefly summarise my decision with respect to the question. In my opinion, the Board's reasoning was correct. What occurred before the magistrate on the first occasion was not the discontinuance of a criminal proceeding. The applicant was charged with seven offences. Three of the offences were indictable offences. They had to be heard by a judge and jury. The other four charges had to be heard by a magistrate. By reason of s.53(1) of the Magistrates' Court Act 1989 certain indictable offences may be heard summarily before a magistrate. When the matters came on first before the magistrate, they were a mixture of indictable offences and offences that must be heard summarily. If the court is of the opinion that a charge which is indictable is appropriate to be determined summarily and the defendant consents to a summary hearing then the indictable offence is heard summarily. It was evidently anticipated that that course would be followed. However, despite what an informant or an accused may think, the indictable offences are not determined summarily unless the court "is of the opinion that the charge is appropriate to be determined summarily". See s.53(1)(a). When the matter came on before the magistrate, the prosecutor opined the view that it was not appropriate that the indictable charges should be determined summarily and accordingly no order was made pursuant to s.53(1) that the indictable offences should be triable summarily. The procedure to follow where an indictable offence is to be triable summarily is set out in s.54 of the Act. As no order was made pursuant to s.53(1) of the Magistrates' Court Act 1989, the proceeding at the commencement of the hearing before the magistrate was the same proceeding which was adjourned for a committal mention on a later date. On no view could it be said that the proceeding has been discontinued. In my opinion, the members of the Board were clearly correct when they decided that there was no basis for the application of s.16(1) to the proceeding that occurred before the magistrate on 19 July 2001.

78 Since writing the above, my attention has been drawn to a decision of my brother Smith in Dan Causovski v Mark Delahunty and Anor[33] by Mr Nash on behalf of the applicant. His Honour observed, at paragraph 17 -

"The Magistrates' Court remained seized of the matter, a matter that had been commenced by charge and summons and was merely transferred to the committal process, a change of procedure but not a new proceeding."

79 Assuming that the applicant was able to rely upon this ground, in my view it would not have been made out. The magistrate could not have granted a certificate under s.16(1) of the Act.

80 Mr Nash's second ground alleges a denial of natural justice by members of the Board by their failure to raise with the applicant's solicitors certain factual matters which the Board assumed in considering the suggestion that an error had been made and the wrong certificate granted. As the Board did not have power to consider and determine whether the certificate should have been granted under s.16(1), this ground is not open on the review. However, the parties made submissions on the question.

81 The first factual complaint was that the Board, after referring to s.53(1)(b) of the Magistrates' Court Act, said that since the applicant's consent was necessary it must be inferred that he supported if not instigated such a course. It was submitted that the Board should not have made that assumption, and should have made enquiries of the applicant's solicitor. In my opinion, the submission has no merit. Indeed, the matter could not be heard summarily until the defendant consented. In my view, it was clearly an inference open to the members of the Board and did not require the Board to give an opportunity to the applicant's solicitor to be heard on the assumption. It was not a necessary assumption to the decision made. There was no denial of natural justice.

82 The second factual point was that the Board inferred that the magistrate appeared to have declined to hear and determine the proceeding summarily in not being of the opinion that they were appropriate to be determined summarily under the section in the Act.

83 It was submitted that the applicant's solicitor should have been invited to consider that factual matter and that the Board made an inappropriate assumption. Even if a prosecutor raised the matter, in the end, under s.53(1)(a) the magistrate had to form the opinion. It must be inferred that since the magistrate refused to hear the matter summarily that he had formed that opinion. The conclusion is inescapable. There was no denial of natural justice.

84 Finally it was put that the Board inferred that since the matter had been listed for a proceeding on 19 July 2001 for hearing and determination summarily it would appear that that was a matter of choice made by the accused person and his legal representatives in an attempt to have the proceeding determined in the Magistrates' Court. It was again said that the applicant's solicitor should have been invited to comment on that observation. In my view, there was clearly an inference open to the Board on the factual matters before it. This is also an inescapable conclusion.

85 In my opinion, the Board did not deny natural justice to the applicant and even assuming this ground was open to argue on this review, in my opinion it has no substance.

86 Finally, it was submitted that the applicant was denied natural justice because the Board should have told his solicitor that they had no power to deal with the application to treat the certificate as one made under s.16(1) and should have told the applicant's solicitor to return to the Magistrates' Court to amend the indemnity certificate which was given on 19 July 2001.

87 In his application attached to the letter dated 16 July 2002 to the Board, the applicant's solicitor asserted the following -

(i) The Certificate appears to have been erroneously made pursuant to s.17, instead of s.16 of the Appeal Costs Act. If the Board considers it necessary, application can be made to the learned magistrate to correct the error and to re-issue a certificate."

88 The application went on to make a claim for the fees incurred by the defendant in the committal proceeding. It is then asserted that due to the discontinuance of the summary trial the defendant incurred expenses in the sum of $8,719.90 being costs thrown away. In the covering letter, Mr Kuek wrote -

"We enclose the following documents for the consideration of the Board:

1. Application pursuant to s.16 of the Appeal Costs Act for the costs relating to the certificate of 19.7.01."

89 In a later letter, Mr Kuek drew attention to s.36 of the Appeal Costs Act to correct errors.

90 It is said that the members of the Board denied the applicant natural justice, because the members of the Board should have told Mr Kuek that the Board did not have power to reconsider the certificate and that he should return to the Magistrates' Court to correct the error, if it was an error.

91 The applicant's solicitor, Mr Kuek, is a barrister and solicitor practising in this State. He made the application to the Board. He raised the question whether an error had been made in granting a certificate of indemnity under s.17. Later he drew attention to the correction provisions of s.36 of the Act. He now asserts that the Board should have told him what the legal position was. That was his job in advising the applicant. He had to make a decision as what was appropriate to do in the circumstances. If in doubt, he had access to members of the Victorian Bar to advise him. It was not appropriate that he should request the Board to give him legal advice. As things turned out, members of the Board erroneously decided that they could consider the matter. To suggest that that is a denial of natural justice misunderstands the concept. The point has no merit and the ground fails. Too often members of the profession in this State seem to think that it is appropriate to approach tribunals and judicial officers for advice on what they should or should not do. In my view, in some cases that is improper. Clients employ solicitors to advise them. This is performance of the retainer. If the solicitor has doubts about the legal position there are members of the Bar who could provide the necessary assistance at an appropriate fee. In my view, it is ridiculous to suggest that some board, tribunal or judicial officer denies natural justice if a member of the legal profession seeks to obtain legal advice from them which is not forthcoming. Natural justice is grounded in procedural fairness. Refusal by a tribunal to respond to a legal question where there is no obligation to do so, is not a denial of procedural fairness.

92 The only other ground which was faintly argued was concerning the amounts of the certificates. However, the attacks seem to be directed to the merits which would not be open on the review. There is no suggestion that the Board did not carefully consider the applications and properly discharge its jurisdiction in relation to the determinations.

93 It follows that the order for review fails and it is discharged with costs.

94 Subject to submissions by counsel I propose to make the following orders -

(i) That the name of the respondent in the proceeding be amended to read -

"Appeal Costs Board constituted by Howard Obst, Leonie Thompson and Anthony Hooper".

(ii) That the order for review made by Master Wheeler on 28 January 2003 is discharged;

(iii) That the applicant pay the respondents' costs including reserved costs.

[4] [1996] VICSC 11; [1996] 2 VR 613.

[5] [1984] VicRp 30; [1984] VR 383.

[11] [1995] VICSC 209; [1996] 1 VR 635 at 640 and 653.

[12] [1999] VSCA 44; (1999) 2 VR 331 at 336.

[13] [1996] VicRp 23; [1996] 1 VR 356.

[16] [1995] HCA 58; (1995) 184 CLR 163 at 175-6.

[17] [1982] UKHL 10; [1982] 1 WLR 1155 at 1173.

[18] [1966] HCA 69; (1966) 116 CLR 644 at 655.

[19] [1951] EWCA Civ 1; [1952] 1 KB 338 at 346.

[21] [1996] VicRp 23; [1996] 1 VR 356.

[22] [1999] VSCA 44; [1999] 2 VR 331.

[23] Unreported decision of Beach J delivered 5 February 1986.

[24] Unreported decision of King J delivered 5 August 1986.

[25] [1988] VicRp 63; [1988] VR 604 at 606-7.

[28] See Tadgell JA at 336 and Ormiston JA at 338.

[31] [1982] HCA 59; (1982) 151 CLR 590 at 594.

[32] [1984] HCA 68; (1985) 157 CLR 215 at 274-6.

[33] [2003] VSC 345.