Buckett, B.J. v Beaumont, G.J
[1992] FCA 636
•03 SEPTEMBER 1992
Re: BRIAN JOHN BUCKETT
And: GORDON JOHN BEAUMONT; JIM GREISS; DIRECTOR OF PUBLIC PROSECUTIONS and
PAUL FALZON
No. N G181 of 1992
FED No. 636
Criminal Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)
CATCHWORDS
Criminal Law - federal offences - committal proceedings in State court - applicant discharged on some counts and committed on others - whether Local Court fell into reviewable error in formulating costs order against the informants.
Justices Act 1902 (NSW) ss. 41, 41A.
Latoudis v Casey (1990) 170 CLR 534 considered.
HEARING
SYDNEY
#DATE 3:9:1992
Counsel and solicitors Mr G. Giagios instructed by
for the applicant: Salmon Connolly and Co
Counsel and solicitors for Mr Lionel Robberds QC
the first respondents: instructed by the Director
of Public Prosecutions
Counsel for the second respondent: Mr Lionel Robberds QC
ORDER
THE COURT ORDERS THAT:
The Application be dismissed, with costs.
JUDGE1
This is a application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The decision maker was the third respondent, Mr Falzon LCM who on 17 March 1992 made a costs order in favour of the applicant and against the first respondents, the informants in committal proceedings against the applicant. The third respondent made a total award of costs of $5,300. The applicant contends that the exercise of the third respondent's discretion miscarried and that if the discretion had been properly exercised an award would have been made in a greater sum. One particular complaint is that the third respondent erred in law in refusing to award costs on an indemnity basis.
The third respondent was acting in the committal proceedings pursuant to s. 68 of the Judiciary Act 1903 which picked s. 41A of the Justices Act 1902 (NSW) ("the Justices Act"); see Thorp v Abbotto (1992) 106 ALR 239 at 241, 249-250. The relevant provisions of s. 41A of the Justices Act are sub-ss. (1) and (2). These read as follows: -
"41A. (1) The Justice or Justices -
(a) when making an order discharging a defendant as to the information then under inquiry; or
(b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged,
may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant such costs as to the Justice or Justices seem just and reasonable.
(2) The amount so allowed for costs shall in all cases be specified in the order requiring payment."
In understanding the course of events in the committal proceedings it is important to appreciate the effect of sub-s. 41(2) of the Justices Act, particularly the phrase "has committed an indictable offence" in sub-s. 41(2)(b). Sub-s. 41(2) states as follows: -
"41(2) When all evidence for the prosecution has been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices -
(a) if not of the opinion referred to in paragraph (b) - forthwith order the defendant to be discharged as to the information then under inquiry; or
(b) if of the opinion that, having regard to all the evidence before the Justice or Justices, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence -
(i) if the defendant is present - proceed as provided by subsections (4), (5) and (6); or
(ii) if the defendant is not present - proceed as provided by subsection (6)."
Sub-ss. (4), (5) and (6) provide for the taking of further steps leading to the committal of the defendant for trial.
On 8 April 1991, the hearing commenced of committal proceedings in relation to 3 charges against the applicant of receiving money which might reasonably be suspected of being proceeds of crime: Proceeds of Crime Act 1987, sub-s. 82(1). Other charges had earlier been withdrawn. The applicant had been arrested on 13 February 1990.
The hearing continued, with interruptions, until 5 September 1991. In all, the committal occupied some 19 hearing days and there were some 9 days in which the matter was before the court for mention, for bail, or for other purposes.
On 5 September 1991, the third respondent found no prima facie case in respect of the "receiving" charges and they were dismissed. However, the third respondent found that having regard to all the evidence before him the evidence was capable of satisfying a jury beyond reasonable doubt that the applicant had committed other indictable offences. These concerned not receiving, but aiding and abetting the disposition of money which might reasonably be suspected of being the proceeds of crime; see Crimes Act 1914, sub-s. 5(1). The third respondent, acting pursuant to sub-s. 41(1)(b) of the Justices Act, then proceeded as therein provided and the applicant was committed to trial on 3 counts of aiding and abetting; see Kolalich v Director of Public Prosecutions for the State of New South Wales (1991) 173 CLR 222 at 226.
Because the applicant was committed for trial for offences which were not identical in all respects to those with which he had been charged, s. 41A of the Justices Act gave to the third respondent a discretion to judge that the first respondents, the informants, pay to clerk of the court, to be paid to the applicant, such costs as to him seemed just and reasonable.
On 16 March 1992 the third respondent received evidence and took submissions as to what would be an appropriate order under this provision. On 17 March 1992 the third respondent made the decision, the subject of the present application for an order of review under the ADJR Act. The Justices Act made no provision for an appeal on the merits by the applicant; see sub-s. 122(1).
The third respondent formed the view that it was just and reasonable that the informants pay what the third respondent considered to be the just and reasonable additional expense incurred by the applicant in meeting the receiving charges over and above the expense incurred in meeting the charges of aiding and abetting. On that footing, the third respondent determined that $5,000 was just and reasonable. He allowed $300 for the hearing on 16 and 17 March 1992, giving the total of $5,300.
The transcript of the proceedings on 16, 17 March 1992 shows that in making an order under s. 41A of the Justices Act, the third respondent gave most detailed and thorough consideration to the submissions which had been put to him.
It was submitted to this Court by counsel for the second respondent ("the DPP"), as it had been submitted below, that the reasoning in Latoudis v Casey (1990) 170 CLR 534, had no application to the exercise of the discretion conferred by s. 41A of the Justices Act. The High Court there was concerned with s. 97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vict). This authorised the court, when it dismissed an information, to order the informant to pay the defendant such costs as it thought just and reasonable. The High Court held that the magistrate's exercise of discretion had miscarried when he refused the defendant's application for costs, on the ground that the informant had acted reasonably in instituting the proceedings and that the defendant had caused suspicion to fall on him by, when he acquired the goods the subject of the charges of receiving and unlawful possession, failing to seek proof of ownership of them.
The matter was put as follows by one of the majority in the High Court, McHugh J at 569: -
"Consequently, a magistrate ought not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs."
It is true, as counsel for the DPP points out that the High Court was concerned with a provision applying not to committal proceedings but to the disposition of summary proceedings.
As a matter of binding precedent, the High Court decision did not address the task before the third respondent in the present proceedings when the occasion arose for the exercise of the discretion under s. 41A of the Justices Act. Insofar as a view contrary to what I have said is expressed in Director of Public Prosecutions v Sweeney (District Court of New South Wales, Herron D.C.J., 6 December 1991) I respectfully disagree with it.
However, the third respondent whilst saying he leant "towards the more general interpretation" of the applicability of the High Court decision, also said that, in any event, the decision was useful in determining the criteria which should or should not be considered in the matter before him. With that statement I would agree.
Consistently with what was said in Latoudis v Casey (at 565-6, 569) the third respondent in reaching his decision on the question of costs did so on grounds closely connected with the nature of the charges and the conduct of the committal proceedings. He pointed out that whilst the counts for receiving and for aiding and abetting did not cover the same ground, there was a considerable area in common between them. He said: -
"Mr Buckett, in my opinion, in expending moneys in his defence, would have (on a) balance of probabilities had to incur costs in the same manner for the disposition (of the aiding and abetting) charges as those for the receiving . . Whilst there may be some overlapping, that difference ought to be reflected in quantification of costs, rather than entitlement.
I rule that Mr Buckett is entitled to an award of costs but only to those costs which were justly and reasonably incurred by him in making legal submissions on the appropriateness of the receiving charge."
The third respondent later said that what he was interested in was "the additional expense".
In my view, no ground has been made out to show any miscarriage by the third respondent of the discretion reposed in him by s. 41A of the Justices Act.
I should, however, refer to two particular submissions for the applicant.
It was said that an award of costs should go against the informants and should have been made on an indemnity basis. Counsel for the DPP submitted that indemnity costs would be more than what might properly seem "just and reasonable" within the meaning of s. 41A. He submitted that this provision did not permit the making of such an order.
It is unnecessary to express any concluded view on that submission. This is because upon the materials before this Court no ground has been shown for disturbing the exercise of the discretion by the third respondent in making the limited order that he did, still less that there was any adequate foundation before the third respondent for the making of an order on an indemnity basis. See generally Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 100 ALR 568, in which, albeit in the setting of a civil case, there is a discussion of generally applicable considerations.
Finally, there was criticism of the decision of the third respondent not to make an allowance for both senior and junior counsel.
However, the third respondent referred to Stanley v Phillips (1966) 115 CLR 470. The Chief Justice there pointed out (at 479) that fees of more than one counsel should be allowed if the nature and circumstances of the case are such that the services of two counsel are required if the case is to be presented in such a manner that justice can be done between the parties. Earlier (at 478) Barwick C.J. said: -
"The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done: it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That of course he may do but not, in my opinion, at his opponent's expense."
The third respondent plainly had these precepts in mind in ruling as he did on this question.
In my view, no reviewable error on the part of the third respondent has been demonstrated by the applicant. The application should be dismissed with costs.
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