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Byrnes v Barry

Byrnes v Barry

Case [2004] ACTCA 24 30 November 2004

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JIM BYRNES v PAUL BARRY and JOHN FAIRFAX PUBLICATIONS PTY LIMITED [2004] ACTCA 24 (30 November 2004)

APPEAL – costs – costs in criminal proceedings – costs awarded when Crown not a party.

COSTS – criminal cause or matter – private prosecution – Crown not a party – application for leave to prosecute defamatory libel – application dismissed – costs awarded – whether costs within power of Supreme Court – whether power to award costs in “criminal causes or matters” – whether contrary “practice” limiting power.

COURTS AND JUDGES – precedent – prior decisions of Court of Appeal of the ACT – prior decisions of Full Federal Court on appeal from the Supreme Court of the ACT.

WORDS AND PHRASES – “practice” – “criminal cause or matter”.

Defamation (Criminal Proceedings) Act 2001 (ACT), ss 29, 30

Supreme Court Act 1933 (ACT), s 23

Supreme Court Act 1935 (WA), s 37

Director of Public Prosecutions Act 1990 (ACT), s 8

Seat of Government Acceptance Act 1909 (Cth), s 5

Seat of Government (Administration) Act 1910 (Cth)

Australian Capital Territory (Self Government) Act 1988 (Cth)

Defamation Act 1901 (ACT), s 18

Defamation Act 2001 (ACT), s 43

Defamation (Amendment) Act 1909 (ACT)

Defamation Act 1901 (NSW)

Defamation Act 1912 (NSW)

Defamation Act 1958 (NSW), s 33

Defamation Act 1974 (NSW), s 50

Civil Law (Wrongs) Act 2002 (ACT), ch 5

Statute Law Revision Act 1883 (UK)

Supreme Court of Judicature Act 1873, ss 47, 71

Supreme Court of Judicature Act 1881, s 19

Supreme Court of Judicature Act 1890 (53 and 54 Vic c 44), s 5

Libel Act 1843, (6 and 7 Vic c 96), s 8

Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 50

Court of Petty Sessions Ordinance 1971 (ACT)

Federal Court of Australia Act 1976 (Cth), s 43

County Court Act 1958 (Vic), s 78A

Supreme Court Act 1986 (Vic), s 24

Supreme Court (Amendment) Act 2001 (No 2) (ACT)

Law of Libel Amendment Act 1888 (51 and 52 Vic c 64), s 8

Second Reading Speech to the Supreme Court Bill 1933

Byrnes v Barry and John Fairfax Publications Pty Limited(No 1) [2003] ACTSC 54

Shapowloff v John Fairfax & Sons Ltd (1966) 84 WN (NSW) 546

Ex parte O’Connor; Re Wright (1930) 47 WN (NSW) 193

Ex parte Pulbrook [1892] 1 QB 86

R v Scott (1993) 42 FCR 1

R v Goia (1988) 19 FCR 212

Perkins v County Court of Victoria [2000] 2 VR 246

R v Wright, Danci and Currie (1994) 77 A Crim R 67

Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159

Latoudis v Casey (1990) 170 CLR 534

Garnett v Bradley (1878) 3 App Cas 944

Corporation of Burford v Lenthall (1743) 2 Atk 551

Andrews v Barnes (1888) 39 Ch D 133

Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178

R v Beadle (1857) 7 EL and BL 492; 119 ER 1329

Statute of Marlborough (1267) 52 Henry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrnes v Barry

Details

AGLC: Byrnes v Barry [2004] ACTCA 24
Case: [2004] ACTCA 24
Decision Date: 30 November 2004

CaseChat Overview and Summary

In *Byrnes v Barry*, the parties were the appellant, Byrnes, and the respondent, Barry. The dispute concerned an appeal against a decision of the Supreme Court of Queensland.

The primary legal issue before the Court of Appeal was whether to grant leave to appeal.

The Court of Appeal granted leave to appeal.

Orders

Orders of the court

leave to appeal be granted;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Byrnes v Barry [2004] ACTCA 24

Most Recent Citation

CDirector of Public Prosecutions v Brady (costs) [2019] VSC 397

Cases citing this decision · 7 of 7 shown

Commonwealth Director of Public Prosecutions v Sanders
[2021] NFSC 1 Para 8

…In Byrnes v Barry & John Fairfax Publications Pty Ltd [2004] ACTCA 24; (2004) 150 A Crim R 471, the Court of Appeal of the Supreme Court of the Australian Capital Territory considered s 23 and whether there was no jurisdiction or power in the Court to award costs in criminal matters. Crispin P and Connolly J said…
Jakaj v Kinnane
[2020] ACTCA 19 Para 1

…In Byrnes v Barry [2004] ACTCA 24; 150 A Crim R 471, French J (as his Honour then was) said, at [67]:…
CDirector of Public Prosecutions v Brady (costs)
[2019] VSC 397 Para 1

…and expressly rejected the reasoning in Scott . Scott does not assist the CDPP in this case. [30] Byrnes v Barry & John Fairfax Publications Pty Ltd [2004] ACTCA 24.…
Boxx v Peden
[2017] ACTCA 39 Para 1

…The Court of Appeal in Byrnes v Barry [2004] ACTCA 24; 150 A Crim R 471 (“ Byrnes ”) held that s 23 of the Supreme Court Act granted full power to the Court to order costs in any proceedings in the Court, civil or criminal, except in criminal proceedings to which the Crown was a party.…
R v Richardson
[2016] ACTSC 22

…l, Minister for the Environment and Sustainable Development [2012] ACTSC 102 Attorney-General of Queensland v Holland (1912) 15 CLR 46 Byrnes v Barry [2004] ACTCA 24 Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 Financial Integrity Group…
Dudzinski v. Spender
[2008] QSC 54 Para 1

…An analysis of the history of the statute law relating to costs in England and Australia is to be found in the judgment of French J in Byrnes v Barry [2004] ACTCA 24 at para 52 and following and also in the joint judgment of Mason CJ and Deane J in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 182 and f…
R v JS (No 2)
[2007] NSWCCA 309

…ms, such as a power to make any order that the Court thinks fit, as encompassing a power to award costs. (See Proust v Blake supra and Byrnes v Barry [2004] ACTCA 24; (2004) 150 A Crim R 471 at [65]-[95].) No such provision has been identified in the present proceedings. Nor has any other power been identified to…

View all 7 citing cases →

Cases cited in this decision · 24 of 24 shown

R v Steel
[2020] NSWDC 950 Para 1

…ion for defamatory libel to recover costs from the prosecutor. A like provision applied in relation to private prosecutions in the ACT until 2001. In R v Steel (1876) 1 QBD 482, the Queens Bench Division rejected an application to review a taxation of costs on grounds related to the construction of the 1843 Act. Bl…
Jim Byrnes v Paul Barry and John Fairfax Publications Pty Limited
[2003] ACTSC 54 Para 1

…His Honour had dismissed the substantive application in a decision of 9 July 2003 ( Byrnes v Barry and John Fairfax Publications Pty Limited (No 1) [2003] ACTSC 54). The Defamation (Criminal Proceedings) Act requires a person wishing to commence a private prosecution for defamatory libel to obtain leave of the Cou…
Perkins v County Court of Victoria
[2000] VSCA 171 Para 1

…ered the question of whether costs may be awarded in criminal proceedings where the Crown is not a party in Perkins v County Court of Victoria [2000] 2 VR 246. The costs provision in the Supreme Court Act 1986 (Vic) follows a form not dissimilar to the ACT provision, with a broad grant of power to award cos…
Oshlack v Richmond River Council
[1998] HCA 11 Para 1

…7 in the Schedule to the 1873 Act and r 55 in the Schedule to the 1875 Amending Act. Gaudron and Gummow JJ said in Oshlack v Richmond River Council (1998) 193 CLR 72 (at 86):…
R v Scott
[1993] FCA 576 Para 1

…criminal matters has been considered by the Full Court of the Federal Court in appeals from this Court on two occasions in recent years, in R v Scott (1993) 42 FCR 1 and R v Goia (1988) 19 FCR 212. As counsel pointed out, the decision in Scott has been reported in such a way that it could, upon reading of the head…
Knight v FP Special Assets Ltd
[1992] HCA 28 Para 1

…nes (1888) 39 Ch D 133 at 138 et ff (Fry LJ); Latoudis v Casey (1990) 170 CLR 534 at 557 (Dawson J); Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178 at 183 (Mason CJ and Deane J). The position in criminal proceedings was the position at common law – R v Beadle (1857) 7 EL and BL 492 at 502; 119 ER 1329 at 1333.…
Corporate affairs Commission (NSW) v Yuill
[1991] HCA 28 Para 1

…s, take as their starting point the ordinary and grammatical sense of the words used. As Gaudron J said in Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 (at 340):…
Latoudis v Casey
[1990] HCA 59 Para 1

…The rationale for the practice that costs were not awarded against or in favour of the Crown was set out by Mason CJ in Latoudis v Casey (1990) 170 CLR 534 where his Honour said (at 538) –…
Nguyen v Nguyen
[1990] HCA 9 Para 1

…of the States and the Full Court of the Federal Court do not regard themselves as strictly bound by their previous decisions – see Nguyen v Nguyen (1990) 169 CLR 245 at 268-269 and the cases there cited in the joint judgment of Dawson, Toohey and McHugh JJ. But as their Honours said (at 269):…
R v Goia
[1988] HCA 20 Para 1

…sidered by the Full Court of the Federal Court in appeals from this Court on two occasions in recent years, in R v Scott (1993) 42 FCR 1 and R v Goia (1988) 19 FCR 212. As counsel pointed out, the decision in Scott has been reported in such a way that it could, upon reading of the headnote, be understood as standing…
R v J
[1983] FCA 245 Para 1

…In The Queen v J (No 2) (1983) 80 FLR 106, the Full Court of the Federal Court dismissed a Crown appeal against a sentence imposed in the Supreme Court of the ACT, but also dismissed the successful respondent’s application for the costs of the appeal. The statutory power to award costs in the appeal derived from s 4…
Garnett v Bradley
(1878) 3 App Cas 944 Para 1

…Historically costs in the Common Law Courts of England were ‘entirely and absolutely creatures of statute’ – Garnett v Bradley (1878) 3 App Cas 944 at 962 (Lord Blackburn), 953 (Lord Hatherley) and 958 (Lord O’Hagan). The Chancery Courts on the other hand relied upon the inherent power of the Lord Chancellor and awarde…
[1986] AC 965
[1986] AC 965 Para 1

…he English equivalent of s 23(1) was held to be wide enough to support orders for costs against non-parties – Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965. In a passage from the judgment of Lord Goff in that case, cited with evident approval by Mason CJ and Deane J in Knight v FP Special Assets Pty Ltd (a…
[1892] 2 QB 173
[1892] 2 QB 173 Para 1

…ard of costs. Section 4 operated by way of a proviso on the generality of s 5 – London County Council v Churchwardens and Overseers of West Ham [1892] 2 QB 173 at 176 (Lord Esher). But plainly enough it ‘did not ... operate so as to exclude a power to award costs in respect of the matters specified in s 4 where pr…
[1892] 1 QB 86
[1892] 1 QB 86 Para 1

…ier English authority that an application for leave to commence an action for criminal libel is itself a criminal proceeding: Ex Parte Pulbrook [1892] 1 QB 86.…
119 ER 1329
119 ER 1329 Para 1

…ason CJ and Deane J). The position in criminal proceedings was the position at common law – R v Beadle (1857) 7 EL and BL 492 at 502; 119 ER 1329 at 1333.…
(1876) 2 QBD 43
(1876) 2 QBD 43 Para 1

…and procedure with respect to ‘Crown Cases reserved’. They did ‘no more than say that the practice shall remain the same’ – R v Fletcher (1876) 2 QBD 43 at 46. The saving was subject to change effected by the Scheduled Rules and Rules of Court.…
(1876) 1 QBD 482
(1876) 1 QBD 482 Para 1

…famatory libel to recover costs from the prosecutor. A like provision applied in relation to private prosecutions in the ACT until 2001. In R v Steel (1876) 1 QBD 482, the Queens Bench Division rejected an application to review a taxation of costs on grounds related to the construction of the 1843 Act. Blackburn J…
[1894] 1 QB 453
[1894] 1 QB 453 Para 1

…r to award costs under s 5, those categories of cases specified in s 4. He referred to R v Justices of County of London and London County Council [1894] 1 QB 453 at 461 and R v Jones [1894] 2 QB 382 at 384, 385.…
[1894] 2 QB 382
[1894] 2 QB 382 Para 1

…egories of cases specified in s 4. He referred to R v Justices of County of London and London County Council [1894] 1 QB 453 at 461 and R v Jones [1894] 2 QB 382 at 384, 385.…
[1891] 2 QB 428
[1891] 2 QB 428 Para 1

…inal matters of the country, that Court being constituted for the hearing of appeals in civil causes and matters only’ – Ex parte Schofield [1891] 2 QB 428 at 432 (Bowen LJ). Lord Esher MR, who delivered the principal judgment, repeated at 431 what he had said in Ex parte Woodhall (1888) 20 QBD 832:…
(1888) 20 QBD 832
(1888) 20 QBD 832 Para 1

…891] 2 QB 428 at 432 (Bowen LJ). Lord Esher MR, who delivered the principal judgment, repeated at 431 what he had said in Ex parte Woodhall (1888) 20 QBD 832:…
(1876) 2 QBD 37
(1876) 2 QBD 37

…R v Steel (1876) 2 QBD 37…
Andrews v Barnes
(1888) 39 ChD 133 Para 1

…the satisfaction on one side or other on account of vexation’ – Corporation of Burford v Lenthall 2 Atk 551 (Lord Hardwicke); see also Andrews v Barnes (1888) 39 Ch D 133 at 138 et ff (Fry LJ); Latoudis v Casey (1990) 170 CLR 534 at 557 (Dawson J); Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178 at 183 (Mason CJ an…

Legislation cited in this decision · 27

Defamation (Criminal Proceedings) Act 2001 (ACT)
29, 30 3 mentions (from Para 1)
County Court Act 1958 (Vic)
78A 2 mentions (from Para 1)
Defamation Act 1901 (ACT)
18 2 mentions (from Para 1)
Defamation Act 1958 (NSW)
33 2 mentions (from Para 1)
Defamation Act 1974 (NSW)
50 2 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
43 2 mentions (from Para 1)
Law of Libel Amendment Act 1888 c.64
8 2 mentions (from Para 1)
R v Cook; ex parte Twigg
8 2 mentions (from Para 1)
Seat of Government Acceptance Act 1909 (Cth)
5 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
23 2 mentions (from Para 1)
Supreme Court Act 1935 (WA)
37 2 mentions (from Para 1)
Supreme Court Act 1986 (Vic)
24 2 mentions (from Para 1)
Supreme Court of Judicature (Consolidation) Act 1925 (UK)
50 2 mentions (from Para 1)
Supreme Court of Judicature Act 1873 (UK)
47, 71 2 mentions
Supreme Court of Judicature Act 1890 (UK)
5 2 mentions (from Para 1)
Australian Capital Territory (Self-Government) Act 1988 (Cth)
1 mention
Civil Law (Wrongs) Act 2002 (ACT)
1 mention (from Para 1)
Connair Pty Ltd v Frederiksen
1 mention (from Para 1)
Crown Proceedings Act 1958 (Vic)
1 mention
Defamation (Amendment) Act 1909 (ACT)
1 mention (from Para 1)
Defamation Act 1912 (NSW)
1 mention (from Para 1)
Director of Public Prosecutions Act 1990 (ACT)
8 1 mention (from Para 1)
Judicature Act 1873 (UK)
1 mention (from Para 1)
Judicature Act 1875 (UK)
1 mention (from Para 1)
Libel Act 1843 c.96
1 mention (from Para 1)
Seat of Government (Administration) Act 1910 (Cth)
1 mention (from Para 1)
Supreme Court Amendment Act 2001 (No 2) (ACT)
1 mention (from Para 1)