Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113

Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113 - VSCA 2004 case summary — Zoe

[10]

Ordinarily, an order is interlocutory unless it finally determines the rights of the parties in a principal cause between them, and whether that is the case is to be determined by the legal, not the practical, effect of the order.[4] In Hall and Hornsby v. Kaschke[5], for example, the impugned orders were not made in the principal cause, but in the context of an application that related to such a cause. In the first case, the impugned order was made in an application for an extension of time within which to institute proceedings against the Nominal Defendant. In the second case, the order in question related to pre-trial disclosure in the Magistrates' Court that was sought by the defendant who was charged with drink driving offences. A judge of the Supreme Court quashed the Magistrate's order that the informant deliver the instrument in question to the defendant, who thereupon sought to appeal against her Honour's decision. This Court decided that her Honour's order was ancillary to the proceeding in the Magistrates' Court, and was thus interlocutory.[6] In support of his argument that the impugned order in this case was a final order, Mr Clelland, for the appellant, relied on the observation of Callaway, J.A. in Hornsby[7]_,_made in the context of referring to a number of cases in which relief in the nature of certiorari was refused, that "[it] may well be that such refusal finally determined the rights of the parties in the principal cause...". Counsel claimed that this passage supported his argument that her Honour's decision had the effect of determining finally the rights of the parties on the costs question. This may well be the practical result of her Honour's order but, as I will explain later, that is not necessarily the position from a legal perspective. Counsel also relied on three other cases referred to by Callaway, J.A. in Hornsby. Insofar as his Honour referred to the observation of the President in Brygel v. O'Keefe[8], this observation was made by of obiter. As to the other two cases, it was not claimed in them that the orders refusing relief were interlocutory. Consequently, the issue now under consideration did not arise there for determination. In the circumstances, I consider that neither Hornsby nor Brygel, nor the other cases referred to by Callaway, J.A. in Hornsby, assist the appellant's case.

[16]

Mr Clelland had also argued that the costs order was final, and not interlocutory, because it was directed at a practitioner. Counsel said that so much was decided in Etna v. Arif[18]. In that case, after noting[19] that the compensatory object of Rule 63.23 was emphasised in a number of cases, Batt, J.A. observed that in one of the cases to which he referred "it was held that a judge had no discretion to make an order for costs against a solicitor personally unless there has been misconduct or negligence and that on that question there ought to be an appeal without leave". In the result, his Honour decided that such a costs order did not fall within s.17A(1)(b) of the Supreme Court Act 1986 and thus, leave was not required to appeal against it. But this aspect of his Honour's decision can be distinguished from the present situation for at least three reasons. First, unlike the position in Etna, here, as I have explained, the costs application was ancillary to, or formed part of, the "proceeding" for the setting aside of the subpoena, which was itself an interlocutory proceeding. Secondly, s.17A(1)(b) of the Supreme Court Act is irrelevant to the present application. Although, as I will explain later, s.25 of the Act is based on Rule 63.23, it is not clear that the underlying basis of that Rule, namely, the court's disciplinary jurisdiction over practitioners, necessarily carries over to s.25. In any event, in Etna, the question on which it was said there "ought to be an appeal without leave" was whether the costs order should have been made against the practitioner whose negligence went beyond "mere" negligence.[20] This question does not arise in the context of s.25 of the Act. As I explain later, for present purposes, the basis of an order under that provision is not whether there was gross, or other serious negligence on the part of the practitioner, but whether the impugned conduct, here the short-service of the subpoena, amounted to "default" within the meaning of s.25(2)(e) of the Act.

[17]

Thus, for the above reasons, I consider that her Honour's decision not to quash the costs order was interlocutory. It follows that, the appellant must obtain leave to appeal against that decision and in order to do so, must establish that the decision is attended with sufficient doubt and that substantial injustice would be caused if it were to stand.[21] Consequently, I turn to consider these matters and deal first with the question whether substantial injustice would arise if the decision were not overturned. As Murphy, J. said in Niemann[22], even if the decision is wrong, this is not alone sufficient to justify the granting of leave. It must be shown, in addition, to effect substantial injustice by its operation.[23] In BHP Petroleum Pty. Ltd. v. Oil Basins Ltd.[24], Fullagar, J. explained that what constitutes substantial injustice must depend upon all the circumstances of the case. In the present case, as the Chief Justice pointed out to the appellant's counsel in the course of argument, no material was put before us that could be said to show that her Honour's decision will result in substantial injustice if it were allowed to stand. As a way of meeting this obvious difficulty, counsel submitted that substantial injustice will arise from the fact that, if her Honour's decision were to remain, the order of the County Court judge would stand and that will continue to reflect adversely on the appellant's professional reputation. It seems to me, however, that this claim is inconsistent with the appellant's criticism of his Honour's view that the costs order was not punitive but was merely compensatory. In any event, I consider that there is nothing in the judge's reasons that amounts to an extensive criticism of the appellant's professional integrity. His Honour made it plain that he did not have to make a finding of gross negligence in order to make the costs order under s.25 of the Act. In all the circumstances, I am not persuaded that the appellant has made out this requirement for obtaining leave.

[22]

I now turn to consider the appellant's argument that her Honour erred in accepting the submission that the County Court judge had the power to make the impugned costs order under s.25 of the Act. Mr Clelland first submitted that the judge had power under Rule 42.08(1) of the County Court Rules to order that the accused pay the respondent's costs of 1 October 2001. Unlike the Supreme Court, the County Court has no inherent jurisdiction over practitioners[32] and consequently, it has no power to order costs against a practitioner, unless such power is conferred on it by legislation. In civil proceedings, this power springs from Rule 63A.23 of the County Court Rules, but it is plain enough that this provision does not apply to criminal proceedings. Rule 14.01 of Chapter II of the County Court Rules provides, however, that Order 42 of Chapter I of the County Court Rules applies, with the necessary modifications, to any criminal proceeding in the County Court. This rule corresponds to Order 42 of the Rules of the Supreme Court and provides, inter alia, for the filing of a subpoena by a party to a proceeding so as to secure the attendance in court by the person named in the subpoena for the purpose of giving evidence or producing the required documents, or both. Rule 42.08 (1) empowers the court to order that the party which filed the subpoena pay that person for any expenses or losses incurred in complying with it, over and above the amount of conduct money. Thus, Mr Clelland argued, his Honour had the power to order, pursuant to this rule, that the accused pay the costs of 1 October 2001. But, even if the judge could have made such an order, and putting to one side the fact that no such order was sought, nothing turns on his Honour's power to make such an order because, as counsel agreed, his Honour's ability to make it did not mean that he was thereby precluded from making an order under s.25(1)(c), provided the relevant requirements of that provision had been satisfied.

[24]

In support of the argument that the respondent was not a "party" for the purpose of s.25(1)(c), Mr Clelland first pointed to numerous sections of the Act which use the word "party" to denote a named litigant. He said that this supported his claim that "party" in s.25 is limited to a named litigant. These provisions, however, are not helpful because the word "party" in them takes its meaning from the particular legislative context. Nevertheless, it is necessary to consider whether another section of the Act to which counsel did not refer, namely, s.24, which, unlike the other provisions to which reference has been made, is in the same Part of the Act as s.25, may throw some light on the meaning of "party" in s.25. Section 24 empowers the court to make orders as to costs in certain circumstances where a "party" has acted wrongfully. It seems clear enough from its terms that the word "party" in the section is confined to the named litigants, more specifically, the Crown and the accused. This is made apparent by sub-section (3), which provides that an order may be made against "(a) a party, whether the Crown or the accused...". As Mr Corrigan pointed out, "party" is effectively defined in that sub-section as the Crown and the accused. It does not necessarily follow, however, that the same meaning must be given to the word "party" in s.25. It seems to me that s.25 differs relevantly from s.24. Section 24 has its origin in s.19 of the Crimes (Criminal Trial) Act 1993. In particular, s.19(1)(a) of that Act was the forerunner of s.24(3)(a) of the 1999 Act. Section 25, on the other hand, was introduced into the legislation for the first time by the 1999 Act. Importantly, as was accepted by both parties, it essentially reproduced Rule 63.23. In light of that, it is instructive to ascertain whether "party" in Rule 63.23(1)(c) (which corresponds to s.25(1)(c) of the Act) is confined to the litigants named in the proceeding, or whether it extends to third parties such as the respondent in this case. In my view, the word "party" in this Rule includes participants in the proceeding such as the respondent. I say this for the following reasons.

[32]

I now turn to consider the appellant's claim that her Honour erred in failing to recognise that there was error on the face of the record. Such error, it was said, was constituted by the County Court judge making the costs order, purportedly under s.25 of the Act, notwithstanding that he considered it was not punitive in nature, but was compensatory. That a costs order against a practitioner is compensatory, notwithstanding that it is made in the disciplinary jurisdiction of the court, was recognised by Batt, J.A. in Etna[37]. Be that as it may, it is important to bear in mind what it is that her Honour actually decided in relation to this complaint. What the learned judge relevantly said was that, even assuming that the judge erred in law in rejecting the notion that the costs order was punitive, it was not an error of sufficient significance to justify the order sought in the originating motion. In my view, that aspect of her Honour's decision is also not attended with relevant doubt. The appellant pointed to Etna v. Arif and to Mifsud v. Chemplex (Aust.) Ltd.[38] as establishing that, before an order for costs can be made against the practitioner pursuant to Rule 63.26 and, therefore, under s.25(1) of the Act, it had to be established that the negligence was "gross", or at least greater than mere negligence, and the same concept applied, it was said, to the other wrongdoings specified in sub-s.(1) namely, "any other misconduct or default". The appellant's counsel agreed, however, that sub-s.(2) defined "default" in such a way that the appellant's conduct could be said to fall within sub-s.(2)(e). Counsel nevertheless argued that, because of what was said by Batt, J.A. in Etna and in White Industries (Qld) Pty. Ltd. v. Flower & A.B. Hart (a firm)[39], the default had to be of a gross or serious kind, being a concept that was apparently not accepted by the primary judge. But neither Etna nor Flower & Hart considered the operation of s.25(1)(c) of the Act, and, perhaps just as

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