Baglin v JG

[2014] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation:	Baglin v JG [2014] NSWSC 902
Hearing dates:	29/05/2014
Decision date:	09 July 2014
Before:	Fullerton J
Decision:	Summons dismissed
Catchwords:	COSTS - application to set aside costs order made by magistrate - whether magistrate had jurisdiction to make an order for costs pursuant to s 69 of the Local Court Act following a "no jurisdiction" finding - meaning of "application proceedings" - implied power of the Local Court to award costs in application proceedings
Legislation Cited:	Civil Liability Act 2002 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW), Pt 5 Criminal Procedure Act 1986 (NSW) Legal Profession Act 2004 (NSW) Local Court Act 2007 (NSW), Pt 4 Supreme Court Act 1970 (NSW), ss 69, 75
Cases Cited:	Grassby v The Queen [1989] HCA 45; 168 CLR 1 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 Stanizzo v Complainant [2013] NSWCCA 295
Category:	Principal judgment
Parties:	Senior Constable Paul Baglin (Plaintiff) JG (1st Defendant) Local Court of NSW (2nd Defendant)
Representation:	Counsel: B Baker (Plaintiff) Submitting appearances (1st and 2nd Defendants) Solicitors: Crown Solicitor's Office (Plaintiff) Matouk Joyner Lawyers (1st Defendant) Crown Solicitor's Office (2nd Defendant)
File Number(s):	2014/78464
Decision under appeal	Jurisdiction: 9109 Date of Decision: 2013-12-17 00:00:00 Before: Buscombe LCM

Judgment

1. HER HONOUR: The plaintiff, a police officer, seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside a costs order made in favour of the defendant by Buscombe LCM. In the alternative, the plaintiff seeks declaratory relief under s 75 of the Supreme Court Act. The primary basis for the relief sought is that there was no jurisdiction to make the costs order.

1. There was no appearance for the defendant on the hearing of the summons. The defendant was, however, represented by senior counsel on the costs argument before the Magistrate where the question of jurisdiction to make the order was the sole issue in dispute.

1. In accordance with the established convention the Magistrate filed a submitting appearance.

Background

1. At the hearing of the plaintiff's application for orders under Part 5 of the Crimes (Forensic Procedures) Act 2000 (NSW) permitting him to carry out a forensic procedure, the learned Magistrate accepted the defendant's submission that the application notice under the Act was defective. It both failed to specify the type of forensic procedure sought to be carried out as required by s 24(2)(c) and sought mutually exclusive orders under ss 28 and 29. His Honour held that because the Act has as its object the impingement of fundamental common law rights, and because the Parliament has utilised mandatory language in s 26(2)(c) as to what constitutes an application for the purposes of the making of orders under the Act, a notice that does not comply with s 26(2)(c) will not engage the Court's jurisdiction.

1. His Honour found the application notice to be invalid and marked the papers "no jurisdiction".

1. The defendant applied for an order for costs. The plaintiff submitted the Court had no jurisdiction to make the costs order.

The legislation

1. There are no costs provisions in the Crimes (Forensic Procedures) Act. An application under that Act is however an "application proceeding" to which the provisions of Part 4 of the Local Court Act 2007 (NSW) apply. Part 4 of the Local Court Act deals with what is referred to as the "special jurisdiction" to deal with application proceedings. The costs provisions in the Criminal Procedure Act1986 (NSW) and those in the Civil Liability Act2002 (NSW) have no application to application proceedings.

The Magistrate's reasons

1. In the court below the defendant relied upon s 69 of the Local Court Act (within Part 4 of the Act) as the source of power to award costs. That section provides:

69 Costs

(1) The Court may award costs in application proceedings at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings. [Emphasis added.]

(2) The Court may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis.

(3) This section is subject to this Act, the rules and any other Act.

1. Section 43 defines "application proceedings" as:

... proceedings to which this Part [Part 4 of the Act] applies as referred to in section 44.

1. Section 44 provides:

44 Application of part

This Part applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than:

(a) criminal proceedings, or

(b) proceedings with respect to any matter for which jurisdiction is conferred on the Court by Part 3.

1. His Honour was not referred to either s 43 or s 44.

1. The plaintiff submitted that were his Honour made aware of both sections, and in particular that "application proceedings" are defined in s 43, he would have concluded that there was neither an express nor implied power to award costs pursuant to s 69 and would have refused the costs application. This conclusion is said to follow from the fact that his Honour found that no jurisdiction had been conferred on the Court by the application notice filed under the Crimes (Forensic Procedures) Act. In those circumstances, the plaintiff submitted, there was no "application proceeding" such as to invoke the jurisdiction to award costs under s 69, since it was not a proceeding with respect to "a matter for which jurisdiction is conferred on the Court by or under any other Act or law", as provided for in s 44.

1. Before moving to consider whether that submission is correct, in particular whether, contrary to the plaintiff's submission, the exercise of the jurisdiction to determine whether the Court had jurisdiction to hear and determine the application notice is "a matter for which jurisdiction is conferred on the Court by or under any other Act or law", I pause to note that the learned Magistrate was satisfied (correctly) that there was no inherent power in the Local Court to award costs, as to which his Honour said:

I do not consider that the above cases establish that an inferior statutory court such as the Local Court has an inherent power to award costs when it determines that an application before it is a nullity or that there is some general principle giving the court power. This court being an inferior statutory court only has those powers express or implied arising from relevant statutory provisions.

1. The cases to which his Honour referred were the seminal authorities of which Grassby v The Queen [1989] HCA 45; 168 CLR 1 is the lead authority. (See, similarly, Stanizzo v Complainant [2013] NSWCCA 295 at [11]).

1. His Honour was satisfied he had power under s 69 to award costs following a "no jurisdiction" finding for the following reasons:

The term 'proceedings' as it appears in s 69 of the Local Court Act is not defined. In my opinion by implication the power to award costs in application proceedings extends to hearings where the issue of whether or not there is a valid application before a court is determined. I arrive at that conclusion for the following reasons. The phrase 'in application proceedings' is a phrase of generality in width and should be given a wide interpretation.

In my opinion the jurisdiction of this Court in application proceedings extends to determining whether or not it has jurisdiction to consider a particular application. There can be no doubt that this Court has jurisdiction to consider an application under the Crimes (Forensic Procedures) Act which is properly brought.

In my opinion, "in application proceedings", this Court has implied power to consider whether its jurisdiction has been properly invoked ... In my opinion, it would be unjust to give the provision a construction that would deny a successful respondent the ability to seek a costs order in such circumstances where if the applicant had been successful in the argument, a power to award costs existed.

1. He then addressed the question whether the Court should make an order for costs in the exercise of its discretion. He was satisfied that the fact that the Court Registry may have erroneously told the plaintiff to file an incorrect form was not a reason to deny the defendant costs to compensate him for the costs incurred in the proceedings. He ordered that the plaintiff pay the first defendant's costs of the proceedings as assessed under Div 11 of Pt 3.2 of the Legal Profession Act 2004 (NSW).

Submissions on the summons

1. On the summons the plaintiff submitted that it is unclear whether his Honour considered that the costs order was expressly authorised by s 69, or whether he considered that an award of costs was authorised by the exercise of the implied jurisdiction of the Local Court. On the one hand, his Honour referred to an "implication" that there was a power to award costs and, on the other hand, that the use of the term "in application proceedings" in s 69 is a phrase of generality and "should be given a wide interpretation", which is suggestive of his Honour's finding that s 69 expressly authorised the making of the costs order. The plaintiff submitted that on either interpretation his Honour was in error. The plaintiff submitted that upon finding that the Court had no jurisdiction to hear the application for orders under the Crimes (Forensic Procedures) Act, there were no "application proceedings" to which Part 4 of the Local Court Act applied capable of enlivening the express power in s 69 to award costs and no such power should be implied.

1. I am satisfied that submission must fail. It proceeds, in my view, on both a mischaracterisation of the proceeding in which his Honour determined he had no jurisdiction to make the orders and the false assumption that because his Honour marked the application notice "no jurisdiction" it was not an application proceeding for the purposes of s 69.

1. As to the first issue, the plaintiff submitted that in considering whether the Court had jurisdiction to make the orders sought under the application notice the Magistrate was simply exercising a jurisdiction every Court has to determine the limits of its own processes and that it is unnecessary to classify that jurisdiction as the exercise of jurisdiction of any particular kind. In my view, it is necessary to inquire as to the source of the jurisdiction exercised by the Magistrate when he was invited to decide (and did decide) whether the Court had jurisdiction to make the orders sought by the plaintiff. To avoid that question is to deflect inquiry into whether s 69 is a source of power to award costs in such circumstances.

1. An inquiry into the question of jurisdiction is not the exercise of inherent jurisdiction since the Local Court is an inferior court whose jurisdiction is limited (see Grassby, supra). The jurisdiction of the Local Court to decide whether it has jurisdiction (in this case to hear an application proceeding under Part 4 of the Local Court Act) must therefore be either express or implied. There is no express power in Divisions 2 or 3 of Part 4 (which deals with proceedings commenced by an application notice) for the Court to determine whether it has jurisdiction to hear the application for orders of a kind to which Part 4 refers. It follows that the jurisdiction his Honour exercised to determine whether the application notice invoked the Court's jurisdiction to hear the application under the Crimes (Forensic Procedures) Act (in application proceedings) must be implied. In Pelechowskiv Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 Gaudron, Gummow and Callinan JJ (at [50]) cited the judgment of Dawson J in Grassby as providing guidance on the limits or reach of a court's implied power:

... After referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour continued:

"It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental."

Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:

"whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction".

1. If the exercise of the power to determine whether the jurisdiction to hear an application proceeding has been properly invoked is to be implied (as I am satisfied it must be for the effective exercise of the power to hear application proceedings under Part 4 of the Local Court Act, a jurisdiction which is expressly conferred) it follows, that if in proceedings commenced by the filing of an application notice under s 45 of the Local Court Act there is a question whether the court has jurisdiction to make the orders sought in the notice (as was the case here), it also follows that is "a proceeding with respect to a matter for which jurisdiction is conferred on the Court by law" (in the language of s 44). On that construction, jurisdiction proceedings, so called, are also application proceedings attracting the costs power under s 69.

1. In summary, where there has been a successful challenge to the Court's jurisdiction in application proceedings to which Part 4 of the Local Court Act applies, the power to award costs in those proceedings is not implied. It is a power vested in the Court by the express terms of s 69 when read with ss 43 and 44.

1. Accordingly, while the learned Magistrate resolved to the view that costs should be awarded by a process of reasoning that did not include any reference to the definition of "application proceedings" in ss 43 and 44, I am satisfied that the order for costs in the defendant's favour was nonetheless properly made.

1. The plaintiff's summons is dismissed.

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Decision last updated: 17 July 2014