Application of Neil Harold Pearson

[1999] NSWSC 611

CITATION:	Application of Neil Harold Pearson [1999] NSWSC 611
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70016/98
HEARING DATE(S):	26/3/99
JUDGMENT DATE:	23 June 1999
PARTIES :	Neil Harold Pearson
JUDGMENT OF:	Wood CJatCL

COUNSEL :	I. Bourke for Applicant P. Roberts for Australian Government Solicitor N. Abadee for Attorney General of NSW
SOLICITORS:	R. J. Benson for Applicant P. Swinton (Australian Government Solicitor) Crown Solicitors (NSW)
CATCHWORDS:
DECISION:	Order - Chief Executive Officer of Customs to pay the Applicant's costs of the preliminary objection to jurisdiction

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70016/98

WOOD CJ at CL

WEDNESDAY 23 JUNE 1999

APPLICATION OF NEIL HAROLD PEARSON

Re: COSTS

1 HIS HONOUR: Following my determination that I had jurisdiction to entertain the application which was brought under S 474D of the Crimes Act 1900, a question arises as to the costs occasioned in relation to the objections that were raised in that regard. 2 The primary objection to jurisdiction was taken by the Australian Government Solicitor on behalf of the Chief Executive Officer of Customs (“Customs”), who prosecuted Mr Pearson and Neil Pearson & Company Pty Limited. Following the service of notices under S 78B of the Judiciary Act, the Attorney General for New South Wales (“The Attorney”) intervened. There was no other intervention. I adopted the course of listing the matter for oral argument, because of the importance of the issues raised in the written submissions received, and its potential application to a range of similar prosecutions, brought under federal laws and determined, at first instance, either summarily in Local Courts, or upon indictment in the District Court or Supreme Court. 3 After handing down my decision, an order for costs in relation to the preliminary issue was sought by the applicants. 4 This application was pressed in reliance upon S 76 of the Supreme Court Act 1970, which relevantly provides:

“76(1) (a) Costs shall be in the discretion of the Court,
(b) the Court shall have full power to determine by whom and to what extent costs are to be paid, and
(c) …
(2) In subsection (1) the expression costs includes:
(a) Costs of or incidental to proceedings in the Court, including the administration of estates and trusts,
(b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and
(c) …”

5   It was resisted by Customs which contended that I had no power to award costs for the reasons that:

(a) the application was not a “proceeding” in the Court within the meaning of S 76 of the Supreme Court Act, and that

(b) if they were proceedings then the Chief Executive Officer of Customs was not a “party” to them.

6 It is clear from the terms of S 76(1) that the Court has a wide power to order costs. Moreover, as noted in my earlier judgment, the expression “proceedings” has been given a wide meaning, and includes any step in an action. The power to order costs in relation to preliminary or interlocutory stages of a proceeding is established: Parker v Parker (1992) 16 Fam LR 458. 7 I am of the view that an application under S 474D of the Crimes Act 1900 comfortably fits within the legislative framework that permits costs orders to be made in relation to proceedings, or to any step in them. The purpose of the application was to have the matter referred to the Court of Criminal Appeal Act to be dealt with as an appeal under the Criminal Appeal Act 1912. The application was in my view properly to be regarded as a proceeding in the Court, being an “application … to the Supreme Court” permitted under Statute. Determination of an objection going to my jurisdiction to make such a referral was, at the least, a matter incidental to those proceedings. 8 This disposes of the first ground of objection. 9 I am unable to accept that by the course taken, Customs is not a party to the proceeding. Not only was it the prosecuting authority upon whom, in accordance with practice, notice was given of the application, but it has actively intervened not only to contest the application on jurisdictional grounds, but also to advance reasons why, on the merits, it should be refused. It is simply not accurate to assert, as was done, that the appearance of Customs was “to assist the Court” on the jurisdictional question. Its opposition was positive as is demonstrated by the submissions in writing that were provided. At the least, it submitted to the jurisdiction, in order to argue the question of jurisdiction. 10 In any event, the jurisdiction to make costs orders under analogous legislation (S58 of the Supreme Court Act 1867 (Qld)) has been held not to be confined to the parties to proceedings: Knight v FP Special Assets Limited (1992) 174 CLR 178. 11 Having failed in its jurisdictional objection, which extended well beyond the constitutional question, the pressing of which has occasioned the applicants in additional costs, I see no reason why an order for costs should not be made against Customs. 12 The Attorney submitted that any costs order made against him could be made only as provided by S78A(2) of the Judiciary Act 1903. That Section is in the following terms:

“(1) The Attorney-General of the Commonwealth, and the Attorney-General of a State may, on behalf of the State, intervene in proceedings before the High Court or any other federal court or any court of a State or Territory, being proceedings that relate to a matter arising under the Constitution or involving its interpretation.
(2) Where the Attorney-General of the Commonwealth or of a State intervenes in proceedings in a court under this section, the court may, in the proceedings, make such order as to costs against the Commonwealth or the State, as the case may be, as the court thinks fit.”

13   The submissions of the Attorney were limited to the constitutional question identified in my earlier reasons. There is no usual principle that costs follow the event for constitutional interveners as is indicated by a series of recent decisions of the High Court in:

Egan v Willis (1998) HCA 71

Re East ex party Nguyen (1998) HCA 73

Northern Territory v GPA0 (1999) HCA 8

Bass & Permanent Trustee Co Ltd (1999) HCA 9

Telstra Corporation v Worthing (1999) HCA 12

Abebe v The Commonwealth (1998) HCA 14

14   In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, the High Court said at 311:

“It is only in special circumstances that it is appropriate for the Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party have been increased by the intervention. However, it appears to us that such special circumstances exist in the present case. As has been said, it was the Commonwealth which obtained the removal of the cause into this Court so that it could intervene and challenge the correctness of the answers favouring the respondent. It has failed in that challenge.”

The special circumstance there identified is not present here.

15   In Leroy v Victoria (1997) 189 CLR 579 and Lange v Australia Broadcasting Commission (1997) 189 CLR 520, costs orders were made, it would seem, by reference to fact that the submissions made by the interveners extended the time taken for the hearing. Similar considerations, relating to the additional exposure of the applicant or plaintiff, for costs attributable to intervention, appear to rest behind the decision in Australia Postal Commission v Dao (No.2) (1986) 6 NSWLR 497 to order costs against interveners. 16 In the present case the intervention by the Attorney did not relevantly extend the hearing, or occasion additional costs to the applicants. The constitutional point had already been taken by Customs, and I would regard the intervention by the Attorney to have been of assistance in clarifying and dealing with that issue. 17 Accordingly, and in the absence of special circumstances, I consider it appropriate to follow the more usual practice of not making an order against the Attorney. 18 The formal order I make is that Customs pay the applicant’s costs of the objection to jurisdiction.

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