Buckett, B.J. v Beaumont, G.J.

[1992] FCA 841

JUDGMENT No. ... 8.k..!. ..,, l ...2. k

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG 737 of 1992

NEW SOUTH WALES DISTRICT REGISTRY )

GENERAL DIVISION j

BETWEEN :	BRIAN JOHN BUCKETT Applicant
AND :	GORDON JOHN BEAUHONT
AND JIM GREISS
First Respondents
DIRECTOR OF PUBLIC P R O S E C U T I O N S
( COMMONWEALTH)
Second Respondent PAUL FALZON L.C.M. Third Respondent

C O W :	WILCOX J
PLACE :	SYDNEY
DATE :	5 NOVEMBER 1992  RECEIVED

EXTEMPORE REASONS FOR J U ~

WILCOX J: This is an application for an order extending the time in which to appeal to a Fuli Court against a decision of a Judge of the court, Gummow J, dismissing with costs an application, under the Administrative Decisions (Judicial Review) Act 1977, for the review of a decision by the third respondent, Paul Falzon, in relation to the amount of costs to be awarded to the applicant following the hearing of committal proceedings against him. The first respondents to the present

application, Gordon John Beaumont and Jim Greiss, were the

informants in proceedings which came before the third

respondent. The second respondent is the Director of Public
Prosecution.

~t appears that the committal proceedings extended over some 19 hearing days. At the end of the committal proceedings the magistrate found no prima facie case in respect of the three charges originally made against the applicant; namely, all of them receiving money which might reasonably be suspected of being the proceeds of crime. However, the magistrate found that there was evidence capable of satisfying a jury beyond reasonable doubt that the applicant had committed other indictable offences; all of them aiding and abetting the disposition of money which might reasonably be suspected of being the proceeds of crime. He committed the applicant for trial on three counts of aiding and abetting.

Following this decision, the applicant made an
application to the magistrate for an order that the informants
pay his costs. The magistrate had a discretion to make such

The magistrate awarded to the applicant a total sum of $5,300. an order pursuant to s.41A of the Justices Act 1902 (NSW).

It appears that this sum comprised, firstly, $5,000, the amount which the magistrate considered to be the difference between the costs incurred by the applicant in defending the committal proceedings and the costs which he would have incurred had the committal proceedings been directed to the charges upon which he was ultimately committed for trial, and, secondly, $300 for costs of the application for costs.

As I have said, this decision was challenged in this
Court under the Administrative Decisions (Judicial ReviewL

m. It was, of course, necessary for the applicant to make

out a ground specified by that Act; essentially, to show some
error of law or procedure.

It appears from the judgment of Gummow J that the matter before him was debated primarily, if not entirely, by reference to the question whether the magistrate had erred in his consideration of the decision of the High Court of Australia in Latoudis v (1990) 170 CLR 534. His Honour held that the magistrate had not so erred.

Although Latoudis v Casey has been mentioned today, no substantial argument has been put to me that the magistrate misunderstood or misapplied that decision. In relation to it, I agree with Gummow J that the magistrate did not err. It

different situation to that involving the applicant. It arose should be noted that Latoudis v Casey dealt with a rather

out of an application for costs under the Victorian legislation following the dismissal of an information at summary trial before a magistrate. Notwithstanding that difference, the magistrate in the present case had regard to the general principles underlying Latoudis v Casey; namely, that there was a discretion to award costs in favour of a person against whom criminal proceedings had been

uneuc~cessfully brought; and that in determining what order ought to be made a magistrate ought not to be influenced by the fact that the informant acted in good faith in the public intcarest, or may have to meet the costs out of his or her own pocket. The magistrate applied these principles to committal proceedings, I think correctly. I see no misapplication of

- Latoudis v - or, perhaps more correctly, the principles

uncezlying that decision - in what occurred in the present
ca6e.

During the committal proceedings - or, at least, part of the committal proceedings - the applicant was reczssented by senior counsel, Mr E Shields QC.

UnToztunately, Mr Shields became seriously ill just before the he~ring before Gummow J and was unable to appear on that occ-asion. The application to Gummow J was argued by junior co~:nsel.

When Gummow J gave his decision a few days later Mr
Shields was still ill. Apparently junior counsal sugqested

un~aturally, he thought that this course should be discussed thst an appeal should be made to the Full Court. But, not

with Mr Shields. It was not until two weeks after the decision of Gummow J that the instructing solicitor, Mr Corii~olly, was able to speak to Mr Shields by telephone.

ShLelds apparently gave some preliminary advice, but he had not. then seen the reasons for judgment of Gummow J. Un5erstandablyt in the circumstances, his advice was only tentative. It was not until 29 September - that is, 26 days after the decision of Gummow J and after the expiration of the 21 day time for appeal which applies in this Court - that Mr Shields was able to confer with the solicitor. On that occasion he apparently advised an appeal. Very shortly thereafter, Mr Connolly prepared the present application for extension of time.

The circumstances which I have recounted are unfortunate. I have not heard counsel for the respondents to the present application, so what I am about to say is subject to anything that might have been said by him; but, so far as I can see, there would be no prejudice to the respondents if time for appeal was extended.

The power to extend time is given by s.25(2) (b) of the Federal Court of Australia Act 1976. It is a power which may be exercised by a single Judge of the Court. Subsection (2) also deals with applications for leave to appeal against an interlocutory judgment. The course taken in such cases is to consider not only the circumstances, but also whether there is an arguable case on the appeal. I think I should approach

the present application in the same way. If there is a reasonable argument to the effect that the declsion of Gummow J was incorrect, then, in the absence of prejudice and having regard to the unfortunate circumstances in which the applicant got out of time, it would be reasonable to grant the extension sought. On the other hand, if I reach the conclusion - as indeed I have that there is no merit in the appeal, it would be a miscarriage of discretion for me to grant leave.

During the course of argument I endeavoured to ascertain from counsel what was the error, reviewable under the Administrative Decisions (Judicial Review) Act, committed by the magistrate. As I have indicated, the emphasis before ~ummow J was on Latoudis v but this does not seem to be now pressed.

Two matters were identified by counsel. The first of them he expressed by saying that, in considering what order for costs ought to be made, the magistrate erred by looking at the matter by reference to the proceedings upon which he committed the applicant for trial and ignoring the fact that he had discharged the applicant from the charges which were originally brought.

In relation to that criticism, my view is that it is had discharged the applicant from the charges originally incorrect. It is clear that the magistrate appreciated that he brought; that was the very foundation of the jurisdiction

under s.4A of the Justices Act which he was asked to exercise, and which he did exercise. Had he not discharged the applicant from the original charges, there would have been no question of a costs order. Moreover, in determining the quantum of the costs, the magistrate specifically referred to the difference between the costs incurred in relation to the original charges and the costs that would have been incurred had the matter been confined to the charges upon which the applicant was ultimately committed. It seems to me impossible to say that the magi:trate ignored the fact that he had discharged the appliceoc from the original charges.

Perhaps it w6s intended by counsel, in this ground, to include a propositiofl which was put at one stage; that, in considering the proper exercise of discretion under s.41Al the magistrate was bound to disregard the fact that he had in fact committed the trial on t-ubstituted charges and to look only at the fact that he had refused to commit on the original charges.

It seems to ne that this proposition is untenable. Section 41A gives a discretion to the magistrate which he is required to exercise in the light of the whole of circumstances. It would be wholly unreal (and wrong) for the magistrate to disregard the fact that, at the end of the committal proceedings, the person had in fact been committed,

albeit on different charges.

The second ground argued by counsel was that the decision of the magirtrate was so unreasonable that no reasonable person could come to it. It was said that $5000 was an extremely small mount, having regard to the length of the committal proceedinks and the fact that the applicant was represented by senior ac.1 junior counsel and a solicitor.

I would agree with this submission if the $5,000 was intended to compensate the applicant for the whole of his expenses at the committal proceedings. But the magistrate made it abundantly clear that this was not his intention, and that he was only intending to allow for the difference between the costs of the two sets of charges. It is true that the magistrate did not specify how he calculated the figure of $5,000. It would have been very difficult for him to have done this. A judgment on a matter such as this is basically a matter of impression.

It may be that the magistrate can be legitimately criticised for allowing an insufficient amount. On the other hand, some may feel that he allowed too much. But it is impossible to say that the amount is so unreasonable that, having regard to the way in which the magistrate approached the matter, no reasonable person could award $5,000.

In my opinion the proposed appeal is totally without merit. I think that it has no prospect of success and that	the appropriate course is for me to refuse the application for
extension of time to appeal. I do so.	I order that the

applicant pay the respondents' costs of the application.

I certify that this and the preceding seven (7) pages

are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.

Associate: c"* Dated: 5 November 1992

APPEARANCES

Counsel for the Applicant:	G Giagos
Solicitors for the Applicant:	Salmon Connolly & CO
Counsel for the First and
Second Respondents:	H Poberezny
Solicitors for the First
and Second Respondents:	Commonwealth Director of Public Prosecutions
Dates of hearing:	5 November 1992