Byrnes v Barry - [2004] ACTCA 24

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 III c 6

Statute of Gloucester (1278) 6 Edward 1 c 1

Oshlack v Richmond River Council (1998) 193 CLR 72

R v Fletcher (1876) 2 QBD 43

Re Mills Estate [1886] 34 Ch D 24

Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203

London County Council v Churchwardens and Overseers of West Ham [1892] 2 QB 173

R v Steel (1876) 1 QBD 482

R v Steel (1876) 2 QBD 37

In re Fisher [1894] 1 Ch 450

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965

McEwen v Siely (1972) 21 FLR 131

The Queen v J (No 2) (1983) 80 FLR 106

In re Carbonit Aktiengesellschaft [1924] 2 Ch 53

R v Justices of County of London and London County Council [1894] 1 QB 453

R v Jones [1894] 2 QB 382

Ex parte Hughes; re Delalande (1923) 40 WN (NSW) 4

Ex parte Narme; Re Leong Wen Joe (1928) 45 WN (NSW) 78

Nguyen v Nguyen (1990) 169 CLR 245

Ex parte Schofield [1891] 2 QB 428

Ex parte Woodhall (1888) 20 QBD 832

Ex parte Pulbrook [1892] 1 QB 86

Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319

Costs: The Historical Perspective (1983) Queensland Law Society Journal 169-175 and 277-283

RW Quick; Costs: The Historical Perspective (1983) Queensland Law Society Journal 169-175 and 277-283

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No ACTCA 40-2003
No SC 530 of 2002

Judges: Crispin P, Connolly and French JJ
Court of Appeal of the Australian Capital Territory
Date: 30 November 2004

IN THE SUPREME COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY ) No ACTCA 40-2003

COURT OF APPEAL ) No SC 530 of 2002

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JIM BYRNES
Appellant

AND:PAUL BARRY
First respondent

AND:JOHN FAIRFAX PUBLICATIONS
PTY LIMITED

Second respondent

ORDER

Judges:  Crispin P, Connolly and French JJ
Date:  30 November 2004
Place:  Canberra

THE COURT ORDERS THAT:

leave to appeal be granted;

the appeal be dismissed with costs.

IN THE SUPREME COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY ) No ACTCA 40-2003

COURT OF APPEAL ) No SC 530 of 2002

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JIM BYRNES
Appellant

AND:PAUL BARRY
First respondent

AND:JOHN FAIRFAX PUBLICATIONS
PTY LIMITED

Second respondent

Judges:  Crispin P, Connolly and French JJ
Date:  30 November 2004
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P and CONNOLLY J:

This is an application for leave to appeal from a judgment of the Chief Justice given on 30 October 2003 in which he ordered the appellant to pay the respondents’ costs on an indemnity basis in respect of an unsuccessful application for leave to commence a prosecution against the respondents for defamatory libel under the Defamation (Criminal Proceedings) Act 2001 (ACT), (the Defamation (Criminal Proceedings) Act). The alleged defamatory libel was published on 10 August 2002 in the Good Weekend magazine, which forms part of the Sydney Morning Herald newspaper.

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 Court. This application was dismissed, with liberty being granted to the parties to make any application for costs. The substantive decision that leave should not be granted is not the subject of this appeal.

The respondents duly made application for costs, on an indemnity basis, and this application was successful before his Honour. The application for indemnity costs was brought on the basis that the application for leave never had reasonable prospects of success. His Honour, at [5] of his reasons (AB 26) said that –

the proceedings at no stage had any reasonable prospect of success and that, accordingly, a costs order on an indemnity basis is warranted if there is power to make it.

His Honour concluded that there was power to make the order.

The application for leave to appeal is brought solely against his Honour’s conclusion that there is jurisdiction to award costs on an application for leave to commence proceedings for defamatory libel under the Defamation (Criminal Proceedings) Act. The appellant’s case is that these proceedings were credible in nature and that there is no jurisdiction to award costs in criminal cases. The nature of the exercise of the costs discretion, if there was jurisdiction to award costs, is not put in issue in the appeal.

The Supreme Court’s power to award costs

The power of the Supreme Court to award costs is found in s 23 of the Supreme Court Act 1933 (ACT), which reads as follows -

23 (1) The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.
(2) Subject to any other law of the Territory (including rules of court), the court may determine -
(a)the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and
(b)by whom and to what extent such costs are to be paid.

(3) Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.

It is the appellant’s contention that an application for leave to commence proceedings for criminal defamation, which is the nature of the substantive application, is a criminal cause, and that the effect of s 23(3) is that costs may not be awarded in criminal proceedings.

It was common ground that an application for leave to commence proceedings for criminal defamation are criminal proceedings. Although this was originally put in issue, counsel for the respondents accepted that such applications have been held to amount to criminal proceedings, and that much is clear from the decision of Taylor J in Shapowloff v John Fairfax & Sons Ltd (1966) 84 WN (NSW) 546. His Honour there held (at 549) that an application for leave to commence a criminal proceeding pursuant to the Defamation Act 1958 (NSW) was “properly described as criminal proceedings”. He noted the earlier New South Wales authority to that effect in Ex parte O’Connor; Re Wright (1930) 47 WN (NSW) 193. These decisions themselves followed earlier 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.

We are satisfied that the application was a criminal proceeding. The appellant’s argument is that s 23(3) denies the Supreme Court any jurisdiction to award costs in criminal proceedings. The respondents’ argument is that the grant of jurisdiction to award costs in s 23(1) must be read on its terms as a broad grant of jurisdiction in all matters, civil and criminal, and that s 23(3) does not say that there is no jurisdiction to award costs in criminal matters, but rather that the broad grant of jurisdiction to award costs shall not “alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court”.

The respondents’ submissions in this Court follow those made successfully below, which were succinctly stated by his Honour at [7] of his reasons (AB 27) that -

... the “rule” concerning costs in criminal matters follows a practice that costs are not awarded in Crown proceedings for or against the Crown. That practice has no application to cases which, though criminal proceedings, do not involve the Crown as a party. There is, otherwise, they contend, no restriction on the power of the Court to order costs.

After reviewing the authorities, his Honour essentially adopted this view.

The question as to whether there exists jurisdiction to award costs in 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 headnote, be understood as standing for the contentions advanced by both sides in this appeal, for it is said that the Court decided that both “section 23 of the Act does not empower the Supreme Court to award costs in criminal proceedings”, and that “there is nothing in s 23 of the Act, or in any other statutory enactment, which enables an order for costs to be made for or against the Crown in right of the Australian Capital Territory, in either civil or criminal proceedings”. The true effect of the decision, of course, is to be found in the reasons and not in the headnote.

Scott was itself a Crown appeal, following a decision of a judge to award costs following the discontinuation of a criminal proceeding by the Crown. The appeal against the award of costs against the Crown was upheld by the Full Court of the Federal Court. Hill J stated (at 12) that -

In the absence of authority I would be of the view that s 23(1), if read alone, could be construed as conferring jurisdiction on the court to award costs in any criminal matter. It is, after all, expressed in quite general and unambiguous terms. However, subs (1) is to be read subject to subs (3) which preserves the practice of the court as to costs, presumably at the time the Supreme Court Act came into force, but in any event the practice from time to time followed in criminal causes or matters. Once subs (1) is read with subs (3) the generality of subs (1) is no longer of significance. For subs (3) which appears to presuppose that subs (1) would indeed apply to criminal cases but for subs (3), entrenches the then existing practice which is clearly stated in R v Goia (1988) 19 FCR 212. In that case, Forster and Pincus JJ giving the leading judgment of the court, said (at 213):
About the general rule as to costs in criminal cases, there can be no doubt “... in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown”; per Gallop J in R v J (No 2) (1983) 80 FLR 106 at 109; see also McEwen v Siely (1972) 21 FLR 131 at 135.

Hill J then had regard to the Second Reading Speech to the Supreme Court Bill 1933, which inserted the predecessor to s 23 in terms identical to the present provision. He said (at 13) that a perusal of this material –

indicates that subs (3) was moved as an addition to the bill in the Senate because subs (1) was capable of being interpreted as applying to costs in criminal proceedings. The mover of the amendment, Senator McLachlan, said (Senate, Hansard, p 3270):
As it is unusual to award costs in a criminal proceeding, and as it is not proposed that there should be any alteration in this respect, it is deemed desirable to make the position clear by express enactment.

It seems to us that this extrinsic material confirms the plain reading of s 23(3) as being intended to confirm a practice, rather than to deny the general jurisdiction to award costs conferred by s 23(1) in all criminal proceedings. Senator McLachlan stated that it is “unusual” to award costs in a criminal proceeding, not that there should be no power to so order in any circumstances.

Hill J concluded (at 13) that –

s 23 did not confer upon the court power to order costs against the Crown with the result that the appeal should be allowed.

Cooper J, in separate reasons, agreed that the appeal should be allowed, but adopted a broader form of words, stating (at 29) that s 23(1) and (2) “does not empower the court to award costs in criminal proceedings in the court”. The decision was of course in the context of a costs order against the Crown, and in his reasons his Honour also referred to the second reading material, saying (at 29) that –

... the clear legislative intent was to exclude costs in criminal proceedings ... and to leave the question of costs in criminal proceedings to stand in accordance with usual practice.

Miles J agreed with Cooper J, and did not advert in his concurrence to the broader position adopted by Cooper J. Some years earlier in Goia Miles J had directly addressed the question and said (at 219) that –

I conclude that whilst the jurisdiction of the Supreme Court to award costs is not limited so as to exempt the Crown from being made liable to an order for costs, the jurisdiction is not to be exercised in such a way as to alter the practice that an order for costs will not be made against or in favour of the Crown in relation to a criminal trial or sentence.

This is quite consistent with the approach adopted by Hill J in Scott.

In the proceedings below, his Honour took Scott and Goia as authority for the proposition that only “in criminal proceedings and matters ancillary thereto the rule of practice is that costs will not be awarded for or against the Crown” ([14] AB 28). It seems to us that this is all that Scott can be taken as authority for, and that to the extent that Cooper J’s remarks seem to go further and assert that there is no power to award costs in criminal cases generally, it goes further than was necessary to determine that case, which was a crown appeal against a costs order against the Crown, and must be seen as dicta.

The Victorian Court of Appeal has considered 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 costs in s 24(1) which is subject to s 24(2) which provides that “Nothing in this section alters the practice in any criminal proceeding.” Phillips JA, noted that there were conflicting views in Scott as to whether the ACT provision had the effect of totally excluding any jurisdiction to award costs in criminal proceedings generally, or applied only to preserve the practice that costs were not awarded against or in favour of the Crown in criminal proceedings. After an extensive review of the authorities in Australia and England his Honour concluded (at 259) that –

I think the preferable view is that the grant in s 24(1) of the power over costs should be taken as ample subject only to subs (2); and that subs (2) should be taken as doing no more than preserving “the practice in any criminal proceeding” in the sense that the jurisdiction conferred by subs (1) can be exercised only conformably with that practice. In this case the appellant claimed that the relevant practice in criminal proceedings was that flowing from the general rule, applicable in civil and criminal proceedings at common law, that the Crown neither gives nor receives costs.

The earlier views expressed by Brooking J in R v Wright, Danci and Currie (1994) 77 A Crim R 67 that the Supreme Court “had no power to order payment of costs either by or to the accused, whether the prosecution was for the Queen or a private prosecutor” must be seen to have been corrected by the Court of Appeal in Perkins.

A similar view has been reached by the Western Australian Court of Appeal. In Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 the Court had to consider an appeal against a costs order arising from a dispute concerning a subpoena in criminal proceedings. The Crown was not a party to that dispute or to the subsequent costs order. The statutory power of the WA Supreme Court to award costs was to be found in s 37 of the Supreme Court Act 1935 (WA) by way of a general grant of jurisdiction to award costs, subject to s 37(2) which provides –

Nothing in this section shall alter the practice in any criminal cause or matter, or in proceedings on the Crown side of the Court.

Malcolm CJ formed the view that the application to set aside a subpoena was both a proceeding in a criminal cause or matter and a proceeding on the Crown side of the court. He said that the practice referred to in s 37(2) was limited to awards of costs against or in favour of the Crown and that (at 176) –

... the practice not to award costs for or against the Crown in criminal proceedings was founded on the common law rule which, in turn, was based on the prerogative right of the Crown not to receive or pay costs.

In the absence of any practice limiting the award of costs where the Crown was not a party, his Honour formed the view that the costs order was properly made.

It seems to us that the prevalent view at appellate level around Australia, and in the United Kingdom, is that the broad grant of power to award costs extends to all matters, both civil and criminal, but in the ACT is subject to the qualification expressed in s 23(3) that it is not intended to alter the practice in criminal cases. That practice, it seems to us, is that costs are not awarded by or against the Crown. To the extent that Cooper J went further in Scott in asserting a total absence of jurisdiction to award costs in any criminal matters, as did Brooking J in Wright, we are of the view that these remarks are not authoritative. We think that the better view is that expressed clearly by Hill J in Scott, following Goia, and the views expressed by the Courts of Appeal in Victoria and Western Australia.

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) –

In Ex parte Jones (1906) 6 SR (NSW) 313 Darley CJ based the rule largely on the proposition that it was the duty of the police, once they saw that a prima facie case existed, to bring it before the court, rather than to make careful inquiry into the circumstances with a view to determining whether the defendant was guilty or not. His Honour observed at 316 -
[I]f the police find that they run the risk of being ordered to pay costs, they may hesitate to bring cases before the Court.

Although Mason CJ observed that this rationale was no longer compelling with modern prosecution guidelines, the underlying public policy that the Crown should not be deterred from bringing a matter before the court remains to support the practice that the Crown should generally not face an adverse costs order. In Goia, Forster and Pincus JJ noted that there is also a public policy rationale against ordering costs in favour of the Crown in criminal matters, saying (at 214) –

The rule as to costs in criminal proceedings is one of importance which considerably affects, for good or ill, the nature of criminal process in this country. An accused person, at least if legally aided or unrepresented, may put the Crown to proof without risking his or her assets.

While this demonstrates a sound public policy basis the practice against awarding costs against or in favour of the Crown in criminal proceedings, there is no such rationale for a general prohibition in private prosecutions. Indeed, it may be said that it would be anomalous if a party who felt that they had been defamed would be at risk of an adverse costs order if they launched ordinary civil proceedings, but could put the publisher to considerable cost and inconvenience by seeking to launch criminal defamation proceedings with no risk of an adverse costs order, particularly in a case such as the present where, on his Honour’s findings, which are not subject to appeal, he formed the view that the proceedings brought by the present appellant at no stage had any reasonable prospects of success.

As we are of the view that the limitation on the general power to award costs only extends to the practice relating to criminal proceedings involving the Crown, it seems to us that, unless the appellant can establish a practice that costs are not awarded in criminal defamation applications, the appeal must fail. This was the approach adopted by Malcolm CJ in Carter, where the court concluded that there was no general prohibition against costs in criminal proceedings where the Crown was not a party, and could find no practice against awarding costs in respect of an application to set aside a subpoena. We are of the view that there is no general practice in respect of applications for leave to commence proceedings for criminal defamation. In Shapowloff v John Fairfax & Sons Ltd, Taylor J awarded costs. Against this, Mr Evatt was able to point to Ex parte O’Conner; Re Wright, where Halse Rogers J, having granted leave to commence criminal defamation proceedings, said at 194, “as this is essentially a criminal matter, there will be no order as to costs”. It seems to us that this does not establish any practice, and that, although Halse Rogers J declined to order costs, he did so on the misunderstanding, as we see the law, that there was a general prohibition on costs in criminal proceedings.

We are of the view that the Chief Justice correctly stated and applied the law when he said (at [25]-[26], ACTSC 84) that –

... it is clear to me that s 23(1) grants full power to this Court to order costs in any proceedings in the Court, civil or criminal. However, s 23(3) excludes from the apparently wide scope of s 23(1) criminal proceedings to which the Crown is a party….
[I]t seems to me that s 23(3) is not intended to and does not preclude a litigant in an application relating to a proposed private prosecution from being ordered to pay costs if unsuccessful.

The application for leave to appeal will be granted, but for the foregoing reasons the appeal will be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours President Crispin and Justice Connolly.
Associate:
Date: 30 November 2004

IN THE SUPREME COURT OF THE ) No ACTCA 40 of 2003
AUSTRALIAN CAPITAL TERRITORY ) No SC 530 of 2002

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JIM BYRNES
Appellant

AND:PAUL BARRY
First Respondent

AND:JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Second Respondent

Judges:Crispin P, Connolly and French JJ

Date: 30 November 2004
Place: Canberra

REASONS FOR JUDGMENT

FRENCH J:
Introduction

On 9 July 2003, Higgins CJ dismissed an application by Sydney property developer, Jim Byrnes, for leave to bring a private prosecution for criminal defamation against journalist, Paul Barry and publisher, John Fairfax Publications Pty Ltd (Fairfax). On 30 October 2003, his Honour ordered that Mr Byrnes pay the legal costs of Mr Barry and Fairfax in relation to his failed application. Mr Byrnes has applied to this Court for leave to appeal against the costs order.

In his submissions counsel for Mr Byrnes contended that the Supreme Court had no power to make a costs order because it related to a criminal cause or matter. Section 23 of the Supreme Court Act 1933 (ACT) confers on the Court a general power to award costs. But that power is subject to preserving the ‘practice’ that would otherwise be followed in any criminal cause or matter. Counsel for Mr Byrnes argued that that part of s 23 preserves a practice in which costs are not awarded in criminal matters, including private prosecutions. In my opinion there was no such ‘practice’ with respect to private prosecutions when s 23 was enacted. Indeed in respect of private prosecutions for criminal defamation there was, from the establishment of the Territory in 1909 until 2001, express statutory provision for the recovery of costs in such matters. Such provisions were also to be found in the laws of the other States and trace their ancestry back to the Libel Act 1843 (6 and 7 Vic c 96). For those reasons, set out at length below, I am of the opinion that s 23 did authorise the Court to award costs against Mr Byrnes in this case.

Factual and Procedural History

Jim Byrnes is a Sydney-based property developer, auctioneer and property appraiser. He is the sole director of Cromwells Auctioneers and Appraisers Pty Ltd and Regency Apartments Pty Ltd. On the weekend of 10 August 2002, the Good Weekend magazine published, by Fairfax, as a supplement in the weekend edition of the Sydney Morning Herald, carried an article about Mr Byrnes which was written by Mr Paul Barry. The article was entitled ‘Lucky Jim’. It was highly critical of Mr Byrnes describing him in one passage as ‘an absolute villain’. It referred, among other things, to his criminal record, his bankruptcy, his friendship with violent criminals and his tendency to resort to threats against those who would cross him.

On 19 August 2002, Mr Byrnes’ solicitors wrote to the Attorney General for New South Wales complaining about the article. They referred to civil litigation already underway against Fairfax for earlier publications, said to be defamatory of their client. They submitted to the Attorney General that the publication of August 2002 warranted criminal proceedings under s 50 of the Defamation Act 1974 (NSW) and sought the Attorney’s consent to institute those proceedings.

On 4 September 2002, the Attorney General wrote to Mr Byrne’s solicitor advising that the power to consent to proceedings for an offence against s 50(4) of the Defamation Act had been delegated to the NSW Director of Public Prosecutions and the matter had been referred to the Director. On 18 September 2002, the Director of Public Prosecutions wrote to the solicitors. He said that he was unable to agree that a prosecution under s 50 of the Defamation Act was justified. He declined to give his consent.

On 30 August 2002, Mr Byrnes had filed a notice of motion in the Supreme Court of the Australian Capital Territory naming Mr Barry and Fairfax as respondents. The motion sought leave, under s 30(1) of the Defamation (Criminal Proceedings) Act 2001 (ACT), for Mr Byrnes to commence a prosecution against them for defamatory libel. The motion was heard on 10 December 2002 and 25 February 2003. On 9 July 2003, Higgins CJ made the following orders:

1.The application for leave to commence proceedings be dismissed.
2.The question of costs be adjourned with liberty to apply on 2 days’ notice.

Following the receipt of written submissions, Higgins CJ made a further order, on 30 October 2003, that Mr Byrnes pay the costs of Mr Barry and Fairfax on an indemnity basis. On 20 November 2003, Mr Byrnes filed a notice of appeal against the costs order.

The Grounds of the Appeal

The single ground of appeal set out in the Notice of Appeal was strikingly uninformative and was in the following terms:

His Honour erred in awarding costs in criminal proceedings in contravention of s 23 of the Supreme Court Act.

The relief sought was that the costs order be set aside.

The Reasons for Decision to Refuse Leave to Proceed under the Defamation (Criminal Proceedings) Act 2001

There was evidence, before Higgins CJ, of the publication of the article complained of in the Good Weekend of 10 August 2002. There was also evidence that the relevant edition of the Sydney Morning Herald incorporating the Good Weekend was delivered to homes in the Australian Capital Territory (ACT). His Honour found that evidence existed which if accepted to the criminal standard of proof, would establish publication in the ACT of the edition of the Good Weekend of which Mr Byrnes complained. It was not disputed that Mr Barry and Fairfax could be shown to have respectively authored and published the material the subject of the complaint.

His Honour referred to Mr Byrnes’ personal history and achievements set out in Mr Byrnes’ own affidavit in support of the motion and to evidence of reactions of other persons to the circulation of the matter complained of. He noted that Mr Byrnes had complained of, and sued upon, previous publications by Fairfax. Mr Byrnes saw the article of 10 August 2002 as part of a ‘vendetta’ against him. This was a consideration relied upon to support the contention that damages would not be an adequate remedy. The Chief Justice referred to other publications by Fairfax in 1996, 1999, 2000, 2001 and 2002 and observed that they each made one or more defamatory imputations against Mr Byrnes. Mr Byrnes, he said, was portrayed as an ex-convict, an ex-bankrupt and as an unethical businessman.

Higgins CJ accepted that the libel was a serious one and that a court could conclude that there was a strong prima facie case. It could also be concluded, although not necessarily, that there was malice. His Honour accepted that publication in the ACT did engage the jurisdiction of the Court to entertain the application but found no evidence of any significant reputation or business activity on Mr Byrnes’ part in the ACT. He found no evidence, or any likelihood, of any breach of the peace adverse to Mr Byrnes because of the publication. His Honour said:

There is nothing which requires that this Territory engage its criminal jurisdiction to protect its public interest in respect of this publication based on the reaction to it in New South Wales. Nor would it be appropriate, even if the public interest of New South Wales warranted leave in that State to prosecute there, that there should be a prosecution in this Territory.

The Chief Justice noted that there had been no application to the Director of Public Prosecutions of the ACT to prosecute Mr Barry or Fairfax. Once a prosecution was instituted the ACT Director of Public Prosecutions could take over the conduct of the proceedings and either continue or end them – Director of Public Prosecutions Act 1990 (ACT), s 8. His Honour thought it unlikely that the ACT Director of Public Prosecutions would take a view contrary to that of the Director of Public Prosecutions in New South Wales. The application for leave was dismissed. His Honour’s decision to dismiss the application for leave to proceed is not challenged in these proceedings.

Reasons for Judgment on Costs Order

The Chief Justice began his reasons for judgment on the costs order by observing that, as was apparent from a reading of his earlier reasons, the application had no merit whatever might be said as to civil proceedings in New South Wales founded on the same publications. He accepted two submissions made on behalf of Mr Barry and Fairfax, namely that:

(i)The alleged defamatory matter did not engage the public interest of the Australian Capital Territory.
(ii)An application to commence criminal proceedings in New South Wales had already been rejected, that being the jurisdiction with which the matter complained of had the most real connection.

He rejected their contention that the application was commenced to stifle further publications concerning Mr Byrnes rather than to vindicate the public interest. However, his Honour’s view that the public interest of the ACT was not engaged underpinned his conclusion that the proceedings had no reasonable prospects of success and that a costs order on an indemnity basis was warranted if there were power to make it.

Mr Byrnes argued that the leave application had engaged the criminal jurisdiction of the Court and that there was a ‘rule’ or ‘practice’ that no order for costs could be made at all. He relied upon subs 23(3) of the Supreme Court Act 1933 (ACT) and R v Scott (1993) 42 FCR 1 and said that the Court lacked power to make such an order.

Mr Barry and Fairfax argued that the so-called ‘rule’ concerning costs in criminal matters applied to a practice that costs are not awarded in Crown proceedings for or against the Crown. They said that such a practice had no application to cases which, though criminal proceedings, did not involve the Crown as a party. There was otherwise, they submitted, no restriction on the power of the Court to order costs.

The Chief Justice referred to authorities and s 23 of the Supreme Court Act which confers a general power to award costs subject to subs 23(3) which preserves the ‘practice’ in criminal causes and matters and in proceedings on the Crown side of the Court. He accepted that subs 23(3) confirmed, in criminal proceedings and matters ancillary to them, that costs would not be awarded for or against the Crown. The subsection was not intended to, and did not preclude a litigant in an application relating to a proposed private prosecution from being ordered to pay costs if unsuccessful. That, of course, did not address the question whether such an order ought to be made. It would usually be inappropriate to do so if the applicant for leave to prosecute had succeeded because the leave granted merely enabled proceedings to be commenced. They might ultimately fail. His Honour said, however:

That is not the present case. I have already noted that the application was so lacking in merit as to warrant an order for indemnity costs if the power to do so exists and no rule of practice forbids it.

Being so satisfied, his Honour ordered Mr Byrnes to pay the costs incurred by Mr Barry and Fairfax of and incidental to the proceedings on an indemnity basis.

Statutory Framework

At Federation the part of Australia that was to become the ACT and to contain the seat of government of the Commonwealth was part of the State of New South Wales. An agreement for the surrender by New South Wales to the Commonwealth of what was to become the ACT was made on 18 October 1909 and accepted by the Commonwealth by s 5 of the Seat of Government Acceptance Act 1909 (Cth). Section 6 of that Act continued ‘… all laws in force in the Territory immediately before the proclaimed day … until other provision is made.’ One of those laws was the Defamation Act 1901 (NSW). By s 4 of the Seat of Government (Administration) Act 1910 (Cth) the Act had effect in the Australian Capital Territory as if it were an ACT law. Under the Australian Capital Territory (Self Government) Act 1988 (Cth) that law, along with other former New South Wales laws in force in the ACT, was converted into an ACT enactment.

Section 18 of the Defamation Act 1901 (ACT) provided:

In case of any indictment or information by a private prosecutor for the publication of any defamatory libel –
(a)if judgment is given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the defendant by reason of such indictment or information; or
(b)if, upon a special plea to such indictment or information of the truth of the matters charged, the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea,
such costs to be taxed by the proper officer of the Court before which the said indictment or information was tried.

The Defamation Act 1901 (ACT) and the Defamation (Amendment) Act 1909 (ACT) were repealed by s 43 of the Defamation Act 2001 (ACT). Part 4 of that Act related to criminal proceedings and dealt with defamatory libel and other libels and related offences. There was no equivalent in the new Act of s 18 of the Defamation Act 1901 (ACT).

The substantive provisions of the Defamation Act 2001 (ACT) relating to civil proceedings were re-enacted as Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT). By Schedule 3 of that Act the provisions of the Defamation Act 2001 (ACT) dealing with civil proceedings were omitted leaving the remnant provisions dealing with criminal proceedings only. The Defamation Act 2001 was redesignated as the Defamation (Criminal Proceedings) Act 2001 (ACT). It is under that Act that the application for leave was made to Higgins CJ in the present case.

The Defamation (Criminal Proceedings) Act 2001 (ACT) provides in s 29 that a person ‘must not maliciously publish a defamatory libel (whether or not the person knows it is false)’. The section provides for a maximum penalty of 300 penalty units and imprisonment for three years or both. Section 30 of the Act provides:

(1)       A prosecution may only be begun with the order of a judge.
(2)       An application for an order may only be made on notice to the person accused.
(3)       The person accused must be given an opportunity of being heard against the application.

The Supreme Court Act 1933 contains a general provision conferring powers on the Court to make costs orders. Section 23 provides:

(1) The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.
(2) Subject to any other law of the Territory (including rules of court), the court may determine –
(a)the amount of costs of and incidental to proceedings in the court including the administration of an estate or trust; and
(b)by whom and to what extent such costs are to be paid.

(3) Nothing in this section shall alter the practice that would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.

The Contentions

It was submitted for Mr Byrnes that the power to award the payment of costs conferred by s 23(1) is subject to an express limitation. That limitation is imposed by s 23(3) which has the effect that costs may not be awarded in any criminal cause or matter or in proceedings on the Crown side of the court. Shortly put, his Honour had no power to make the order that he did. Counsel for Mr Barry and Fairfax advanced two contentions in their written submissions:

(1) The application for leave to commence a prosecution for criminal libel is not made in a criminal cause or matter within s 23 of the Act; and

(2) In any event the practice in criminal causes or matters referred to in s 23(3) is not to award costs where the Crown is a party to the proceedings. That limitation does not apply to private prosecutions.

At the hearing it was not disputed that the application was made in a criminal cause or matter. That proposition, as discussed later in these reasons, is correct. The issue between the parties reduced to whether s 23 of the Act authorises the award of costs in private criminal proceedings.

The Power to Award Costs – A Creature of Statute

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 awarded costs not from any statutory or delegated authority ‘... but from conscience and arbitrio boni vari, as to 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 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.

The first statutes to authorise the award of costs in common law litigation were the Statute of Marlborough (1267) 52 Henry III c 6 and the Statute of Gloucester (1278) 6 Edward 1 c 1. Initially costs could be ordered only in favour of a successful plaintiff but later statutes broadened the powers of the courts to allow orders to be made in favour of a successful defendant – see generally RW Quick; Costs: The Historical Perspective (1983) Queensland Law Society Journal 169-175 and 277-283.

The Supreme Court of Judicature Act 1873 (UK) and its amending Act in 1875 conferred a broad discretion upon the High Court of Judicature established by those Acts to award costs. The authority to do so was found in Rules of Court set out in Schedules to the Acts – r 47 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):

The introduction of r 47 by the 1873 legislation marked the prevalence of equity practice and procedure with respect to costs over the brutal simplicities which had attended such matters in the Courts of Common Law.

Rule 55 required that costs should follow the event unless otherwise ordered for good cause. The Rules of Court thus scheduled were subject to change by the judges. Section 71 of the 1873 and s 19 of the 1875 Act continued pre-judicature practice and procedure in ‘criminal causes and matters ... including the practice 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.

Rule 62 in the Schedule to the 1875 Act expressly saved procedure in criminal cases:
Nothing in these Rules shall affect the practice or procedure in any of the following causes or matters –
Criminal proceedings
Proceedings on the Crown side of the Queens Bench Division
Proceedings on the revenue side of the Exchequer Division
Proceedings for Divorce or other Matrimonial Causes.
This Rule was inserted ‘for greater caution, lest some of the rules should be supposed to have changed the practice in criminal cases’ – R v Fletcher at 46.

The Rules scheduled to the 1875 Act were repealed by the Statute Law Revision Act 1883 (UK) and new rules made under s 19 of the Supreme Court of Judicature Act 1881 (UK). Under r 65 of the new Rules costs were in the discretion of the Court subject to the Judicature Acts and the Rules of Court. However, in 1886 the Court of Appeal held in Re Mills Estate [1886] 34 Ch D 24, that the scope of the power had not been altered by these rules. They simply regulated its exercise.

To overcome the effects of the decision in Re Mills a broad power to award costs was conferred directly by s 5 of the Supreme Court of Judicature Act 1890 (53 and 54 Vic c 44). That section and other provisions of the 1890 Act, which related to motions for new trials and for judgment and extended the rule-making power to cover them, were to be read in the light of s 4:

Nothing in this Act shall alter the practice in any criminal cause or matter or in bankruptcy or in proceedings on the Crown side of the Queens Bench Division.

Section 4 preserved existing ‘practice’ in criminal causes or matters or proceedings on the Crown side against any alteration which might otherwise flow by reason of the 1890 Act.

The history and judicial exegesis of ss 4 and 5 was considered in the context of ‘criminal causes or matters’ in R v Wright, Danci and Currie (1992) 77 A Crim 67; R v Scott (1993) 42 FCR 1 at 27-28 and in Perkins v County Court of Victoria (2000) 2 VR 246. Mention should also be made of Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 where the relevant history was considered in a case concerned with the power of the Court to award costs against non-parties. There are differences in some of the approaches taken in these cases relating to the scope of s 5. It is common ground in all of them however, that s 5 of the 1890 Act was intended to confer a broad discretion in relation to the award 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 prior to the passing of the Act of 1890 there was a power to grant costs in respect of such matters.’ – per Cooper J in Scott at 28.

By way of example, apposite in the present case, s 8 of the Libel Act 1843 (6 and 7 Vic c 96) allowed a successful defendant to a prosecution on indictment or information 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. Blackburn J said in the course of his reasons (at 484):

Before the passing of this Act the defendant had at common law no right to recover costs from the prosecutor of a criminal information...

The Court of Appeal dismissed an appeal against the decision of the Queens Bench Division on the basis that it lacked jurisdiction as the appeal was in a criminal cause or matter – R v Steel (1876) 2 QBD 37.

Sections 4 and 5 of the 1890 Act were replicated in s 50(2) and (1) respectively of the Supreme Court of Judicature (Consolidation) Act 1925 (UK) which provided a template for similar provisions in Australia.

The expansive character of the power conferred by s 5 was emphasised in the judgment of the Court of Appeal in In re Fisher [1894] 1 Ch 450. Kay LJ said of s 5 (at 453):

It is an enabling section enlarging the jurisdiction of the Court; giving it jurisdiction where it had not jurisdiction before in respect of costs.

If there were a provision in the former Judicature Acts or in the Rules of Court or an express statutory provision limiting the jurisdiction of the Court, the Act was to be read subject to that limitation because of the opening words of s 5 (at 453):

... but it also means that the Court is to have a discretion where the former Acts are silent as to costs.
Phillips JA observed in Perkins that the approach taken in Fisher became the norm and that:
…consequently its counterparts in Australia, are commonly regarded as making comprehensive provision for costs, subject only to subsection [50](2).

The discretion conferred by the 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 (at 191), Lord Goff said:

It is strange that courts should think it right to impose, by way of implication, a limit upon a wide statutory jurisdiction.
See also Burns Philp & Co v Bhagat which followed Aiden Shipping.

The evolution of the authority of courts in the United Kingdom and Australia to award costs moved from narrow to broad powers subject to limits imposed by reference to ‘practice’ in criminal and Crown proceedings ante-dating the grant of the powers. That evolution occurred through a combination of statutory change and judicial exegesis of the statutes. But it is the words of the statutes which are paramount. It is now necessary to turn specifically to those words in s 23 of the Supreme Court Act 1933 (ACT).

The Power of the Supreme Court of the ACT to Award Costs in Criminal Matters

As in all statutory construction, the point of departure in construing s 23 of the Supreme Court Act must be the ordinary words of the section read in the context of the statute in which they appear and having regard to their purpose.

The identification of ‘practice’ relevant to s 23(3) raises two issues. The first is the meaning of the word ‘practice’. The second is the point in time by reference to which its content is to be determined.

The ordinary meaning of the word ‘practice’ in its application to the law is defined in the Second Edition of the Oxford English Dictionary (1989) as ‘the method of procedure used in the law-courts’. This refers back to a definition in Tomlins Law Dictionary of 1809 of ‘Practice of the Courts’ as:

…the form and manner of conducting and carrying on suits or prosecutions at Law or in Equity, civil or criminal …; according to the principals of Law and the rules laid down by the several courts.
The definition applicable to the law fits within the wider concept of ‘practice’ as:
A habitual way or mode of acting; a habit, custom; (with pl.) something done constantly…

Neither the ordinary meaning of the word ‘practice’ nor its context in s 23(3) justifies its application to a mere absence of power to award costs. The fact that at common law parties could not have recovered their costs in criminal causes or matters is not a matter of ‘practice’ particularly applicable in connection with those matters. There was no power to award costs in any matter other than by statute. The inherent powers of the Court of Chancery are not relevant to this appeal and in any event would seem to have been subsumed in the broad powers conferred on the High Court of Judicature as they were on the Supreme Courts of the Australian States and Territories.

The saving of practice and procedure in criminal causes and matters which was to be found in s 71 of the Judicature Act 1873, and r 47 of the Schedule to that Act, in s 19 of the Judicature Act 1875 and r 62 of the Schedule to that Act and in s 4 of the Judicature Act 1890, was general in its application. It referred to all aspects of practice and procedure in those matters which, but for their saving, might have been altered by the Judicature Acts or rules made under them. The saving provisions were not directed in terms to the power to award costs. To the extent that criminal causes or matters involved the Crown, there was a long-standing ‘rule’ that the Crown neither pays nor receives costs. Where a statutory power to award costs was concerned, that might be seen as no more than the expression of the construction or presumption against the application of such power to the Crown. Indeed, that was one basis upon which Cooper J (with whom Miles J agreed) held that the Court had no power to award costs against the Crown in Scott’s case (at 29-30). Absent a statutory power at common law there was no such ‘rule’. There was simply an absence of power.

The words ‘practice … in any criminal cause or matter’ that appear in s 23(3) appear in a narrower context than their historical usage. They appear in a section about costs. But their ordinary meaning and their history import something more than the mere absence of power.

The Parliamentary history indicates that subs (3) was included as an amendment, moved by Senator McLachlan who said (Senate Hansard p 3270):

As it is unusual to award costs in a criminal proceeding, and it is not proposed that there should be any alteration in this respect, it is deemed desirable to make the position clear by express enactment.

The words of the mover of a statutory provision in the parliament are not to be read as the words of the statute itself. It is quite consistent with the use of the word ‘unusual’ in Senator McLachlan’s speech and of the existing principle that costs were not awarded in favour of or against the Crown in criminal proceedings, to so confine them.

This Court was referred to a number of cases relevant to the content of the alleged ‘practice … in criminal causes or matters’ in relation to costs. A brief review of those cases follows.

In McEwen v Siely (1972) 21 FLR 131, three judges of the Supreme Court of the Australian Capital Territory setting aside a summary conviction awarded costs of the proceedings in the Court of Petty Sessions to the successful appellant. There was an express power to make such an order under the Court of Petty Sessions Ordinance 1971 (ACT). In discussing how that power should be exercised, their Honours noted that ‘the Crown is not a party in Petty Sessions, where the proceedings are commenced by an information, usually laid by a police officer or other official’ (at 134). Their Honours also referred to ‘… firmly-established practice in the trial of indictable offences in the Supreme Court of the Australian Capital Territory that the Crown neither asks for costs nor pays them’ (at 135).

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 43 of the Federal Court of Australia Act 1976 (Cth) which contained no equivalent of s 23(3) of the Supreme Court Act. Gallop J (Toohey and Davies JJ agreeing) nevertheless applied the ‘general rule is that in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown’ (109). It had never been the practice of appellate courts to award costs for or against the Crown in appeals against sentence. In so saying his Honour allowed that costs could be awarded against the Crown in an appropriate case. His Honour observed that nothing in the Federal Court of Australia Act replaced generally accepted principles in criminal matters. He identified as one of those generally accepted principles (at 108):

… that a private informant who is unsuccessful either as the moving party or as the respondent to a successful appeal will be liable to be mulcted in costs except in certain circumstances.

But the appeal before the Federal Court had not been brought by an unsuccessful informant, private or official, it was brought by the Crown.

Toohey J, who agreed with Gallop J, added the comment that (at 107):

… in considering whether the Crown should bear the costs of an unsuccessful appeal against sentence, it may be relevant to consider not only the conduct of the proceedings before the sentencing judge, but also the proceedings before the appellate court. There may be cases where an appeal is so lacking in merit or so devoid of any principle that the Crown should bear the costs of the successful respondent. But this is not such a case and the ordinary rule should prevail.

In R v Goia (1988) 19 FCR 212, the Full Court of the Federal Court allowed an appeal against an order made by the Supreme Court of the ACT that the Crown pay the costs of the accused in a case in which the indictment had been stayed. Forster and Pincus JJ jointly held that on the basis that costs were not awarded for or against the Crown in criminal proceedings. Their Honours referred, at 215, to the ‘firmly established practice’ identified in McEwen v Siely. Miles J dissented holding that while the Crown was not exempt from liability for an order for costs (at 219):

… the jurisdiction is not to be exercised in such a way as to alter the practice that an order for costs will not be made against or in favour of the Crown in relation to a criminal trial or sentence.

In R v Wright, Danci and Currie (1994) 77 A Crim R 67, the Full Court of the Supreme Court of Victoria considered whether a person acquitted of charges in the Victorian County Court could recover costs. The successful accused placed reliance upon a general costs power in s 78A of the County Court Act 1958 (Vic) whereby the costs of and incidental to ‘all proceedings’ were ‘in the discretion of the Court’. There was no saving of practice and procedure in criminal matters as in s 24(2) of the Supreme Court Act 1986 (Vic) or s 23(3) of the Supreme Court Act 1933 (ACT).

In tracing the legislative history of ancestral English provisions, Brooking J, with whom Fullagar J agreed, said that s 5 of the Judicature Act 1890 (at 72):

… was… not passed with the intention of conferring power to award costs in trials for indictable offences which was unknown to the common law and which had been the subject of numerous statutory provisions enacted over a very long period of time.

It was ‘never suggested’ by the textbooks of the time that s 5 applied to criminal prosecutions. In any event, s 4 provided the answer to any such suggestion. Although it referred to ‘practice’, costs and the power to award them were ‘frequently treated as a matter of practice or procedure’ (at 72). By parity of reasoning his Honour concluded that s 24 of the Supreme Court Act (Vic) did not apply to criminal trials. And although s 78A of the County Court Act 1958 was general, it was ‘highly unlikely that Parliament, in enacting s 78A, intended to confer on the County Court a power to award costs which the Supreme Court lacked’ (at 73).

Although he expressed his fundamental proposition in very broad terms, Brooking J did not advert to the case of private prosecutions or official prosecutions not brought in the name of or on behalf of the Crown. The case before him concerned the power of the County Court to award costs in the trial of an indictable offence. The question of summary jurisdiction with police or other official complainants and the question of private prosecutions did not arise.

Tadgell J, in a separate judgment, did not find it necessary to say that the County Court had no jurisdiction to award costs in any criminal proceeding. He was satisfied that it did not have power to do so in the cases before the Court. In his reasons for judgment he observed that s 5 of the Judicature Act 1890 would not have applied to the costs of a trial on indictment because it did not bind the Crown. In that respect his Honour relied upon In re Carbonit Aktiengesellschaft [1924] 2 Ch 53 at 66 and 69-70. He observed that the circumstances of the case before the Full Court were (at 80):

… not at all to be equated with those where an informant, expressly or by necessary implication, becomes potentially liable for costs in summary proceedings, or on appeal from such proceedings, or where the Crown becomes liable for costs as a litigant under, for example, the Crown Proceedings Act 1958 (Vic).

R v Scott was a Crown appeal against an order for costs in favour of an accused who had been committed for trial but whose prosecution did not proceed. The DPP presented a nolle prosequi. Allowing the appeal, Cooper J, with whom Miles J agreed, held that the power to award costs conferred by s 23(1) and (2) did not bind the Crown (at 34):

There is nothing in s 23 of the Supreme Court Act or in any other section, which as a matter of necessary implication enables me to hold that the Crown in right of the Australian Capital Territory in either civil or criminal matters is bound to pay or entitled to receive costs. The right to receive costs from the Crown must be found elsewhere in some statutory enactment.

His Honour also expressed the wider view that ‘s 23(1) and (2) of the Supreme Court Act does not empower the Court to award costs in criminal proceedings in the Court’ (at 29). He said that s 5 of the Judicature Act 1890 had not applied to criminal causes or matters. He referred to the discussion of the relationship between ss 4 and 5 of the 1890 Act in London County Council v Churchwardens and Overseers of West Ham and subsequent decisions in the Court of Appeal following the West Ham decision. The view he took of their effect was that s 4 of the Act excepted, from the operation of the grant of power 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.

His Honour quoted from the Hansard record relating to the enactment of subs (3) in s 23 and concluded that ‘… the clear legislative intent was to exclude costs in criminal proceedings’ from ss 23(1) and (2) and to leave the question of costs in criminal proceedings to stand in accordance with the usual practice. That is to say, as his Honour made clear, any power to award costs in criminal proceedings had to be found elsewhere. He relied upon the similar conclusion reached by Brooking and Fullagar JJ in R v Wright, Danci and Currie.

Cooper J did not advert to the case of a private prosecution nor to the case of a summary prosecution to which the Crown was not a party. Nor did he refer to McEwen v Siely or The Queen v J.

Miles J agreed with Cooper J contrary to the view he had expressed in dissent in R v Goia. His Honour referred to the arraignment of the accused on indictment and the consequent enlivening of the jurisdiction of the Supreme Court to make binding decisions about the progress and conduct of the trial. He said (at 3):

There can be little doubt that such decisions are made in a ‘criminal cause or matter’ and that … [subs (3)] … prevents the Court from making any order for costs in that cause or matter.

Hill J agreed with Miles and Cooper JJ that the appeal should be allowed. Absent authority his Honour would have been of the view that s 23(1) read alone could be construed as conferring jurisdiction on the Court to award costs in any criminal matter. However subs (3) preserved the practice of the Court as to costs ‘presumably at the time the Supreme Court Act came into force, but in any event the practice from time to time followed in criminal causes or matters’ (at 12). Subsection (3) entrenched the existing practice which was that stated in R v Goia. His Honour then referred to the Hansard debate relating to the introduction of subs (3) and said (at 13):

Whatever view one takes as to the significance of any derogation of Crown prerogative, the clear construction of subs (1) and (2) of s 23 is that costs are not to be awarded in criminal proceedings.

This general conclusion supported the narrower finding that s 23 did not confer upon the Court power to award costs against the Crown.

Perkins v County Court of Victoria involved an appeal against a decision of a Supreme Court Judge dismissing an application for judicial review of a County Court decision which had dismissed an appeal against two convictions in the Magistrates Court. The Supreme Court Judge ordered that the appellant pay the costs of the proceedings in the Supreme Court. The appeal to the Court of Appeal was dismissed.

Relevantly to the costs question, s 24(1) of the Supreme Court Act 1986 (Vic) provided that the costs of and incidental to ‘all matters in the Court’ was ‘in the discretion of the Court and the Court has full power to determine by whom and to what extent costs are to be paid.’ Section 24(2) provided:

Nothing in this section alters the practice in any criminal proceeding.

The Court held that the Supreme Court had power to award costs in the judicial review proceedings. The only ‘practice’ in ‘criminal proceedings’ invoked by the appellant was the practice that the Crown neither gives nor receives costs in criminal proceedings. The Crown was not a party to the proceedings so that ‘practice’ relied upon had no application.

Phillips JA reviewed the history of costs provisions from the Statute of Gloucester through the Judicature Acts of 1873, 1875, 1890 and 1925 with particular reference to ss 4 and 5 of the 1890 Act. His Honour said that s 24(2) did not exclude from the scope of the costs power in s 24(1) ‘any criminal proceeding’ (258). He did not accept the construction propounded by Cooper J in Scott’s case. His Honour said (at 259):

I think the preferable view is that the grant in s 24(1) of the power over costs should be taken as ample subject only to subs (2); and that subs (2) should be taken as doing no more than preserving ‘the practice in any criminal proceeding’ in the sense that the jurisdiction conferred by the subs(1) can be exercised only conformably with that practice.

His Honour dealt with the appeal by reference to the appellant’s submission that the relevant practice was that the Crown neither gives nor receives costs (259). In the light of that narrow foundation for the appellant’s argument the case was shortly disposed of on the basis that the Crown was not a party to the proceedings in the Magistrates Court or the County Court and that in the Supreme Court the appellant was plaintiff and the informant the real defendant (262). His Honour said (at 265):

... the only so called ‘practice in any criminal proceeding’ which is relied upon by the appellant under s 24(2) has no application to these proceedings and it cannot avail the appellant in his seeking to avoid any order for costs that can otherwise be justified under s 24(1).
Charles JA and Buchanan JA, agreed with Phillips JA on the costs question.

In Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, an accused person in criminal proceedings before the Supreme Court of Western Australia procured the issue of subpoenas duces tecum which were set aside. Costs were awarded against the accused. The accused appealed against the costs order and the Full Court held that the Supreme Court had the power to make the order notwithstanding that it was in a criminal cause or matter. Section 37(2) of the Supreme Court Act 1935 (WA) was substantially identical to s 23(3) of the Supreme Court Act 1933 (ACT).

Malcolm CJ, with whom Franklyn and Rowland JJ agreed, accepted the submission that s 37(2) referred only to the practice of refusing to award costs in favour of or against the Crown. His Honour said (at 179):

There was and is no evidence of any relevant practice. It is no answer to say, … that the absence of any evidence of the practice establishes that the practice is not to award costs in such a case as the present.

In my opinion, the approach taken in Perkins and Carter is to be preferred to the widely stated propositions about the costs power in criminal proceedings adopted in Wright and Scott. The latter two were cases in which an order for costs was sought against the Crown. Although the Courts found that the relevant statutes did not apply to authorise costs in any criminal case, that view was wider than necessary to decide the cases which could have been disposed of solely on the basis that they did not authorise costs against the Crown.

The case of summary prosecutions to which the Crown was not a party and the case of private prosecutions were not considered except by Tadgell J in Wright. In Scott no reference was made to the distinctions drawn in respect of relevant practice in such cases in the judgments in McEwen v Siely and The Queen v J. In my respectful opinion, Scott’s case does not offer authoritative guidance on the question of private prosecutions or official prosecutions to which the Crown is not a party.

There is a second question whether the term ‘practice’ used in s 23(3) has a fixed historical reference or is in any sense ambulatory. No doubt an argument could be constructed that having regard to its ancestry the subsection picks up the historical content of ‘practice’ referred to in its statutory ancestors. If the latter be the case, then it could hardly be contended that the ‘practice’ referred to in subs 23(3) militates against the award of costs in private prosecutions for criminal libel. There was an express power to award costs in such cases in England from 1843. And as already outlined in the statutory framework there was an express power to award costs in private prosecutions for criminal defamation in the Australian Capital Territory from its creation in 1909 until 2001. The ‘practice’ in such cases in 1933 was clear. There were similar provisions in other States and examples of costs decisions on the merits in applications for leave to bring private prosecutions in respect of criminal defamation.

In Ex parte Hughes; re Delalande (1923) 40 WN (NSW) 4, the Prime Minister of the day, William Morris Hughes, sought leave to institute a criminal prosecution under s 14 of the Defamation Act 1912 (NSW) for publication of a libel in the Daily Mail of 15 December 1922. The publication complained of alleged that he had been complicit in the sale of strategic land in New South Wales to Japanese interests. James J, refusing the application, held that the libel was unlikely to provoke a breach of the peace and that Mr Hughes should be left to his civil remedy in damages. He said (at 6-7):

Looking through the article, it seems to me to contain vulgarisms such as “William Mushi Hughesi San”, which might very well have been left out, and which certainly do not add to the dignity of the paper. It is not the class of article that should have been published in an honourable newspaper claiming and aspiring to a position of rank and influence in the community. For these reasons I think I must dismiss the application, and I will do so without costs.

The implication seems to have been that the Court declined to award costs because the publication in question was a vulgar piece.

In Ex parte Narme; Re Leong Wen Joe (1928) 45 WN (NSW) 78, a member of the Chinese National Party applied for leave to prosecute a former member who had been expelled from the party and published a libellous pamphlet about the applicant. Davidson J, after discussing the principles governing the grant of leave in such cases and the facts of the case, said (at 80):

The application is therefore granted, and there is no order as to costs.

A refusal to award costs in a threshold application when the merits of the charge awaited a determination would have been understandable as an exercise of discretion. Indeed Higgins CJ expressed that view in his reasons for judgment on the costs order in the present case.

In Ex parte O’Connor; Re Wright (1930) 47 WN (NSW) 193, Halse Rogers J granted leave and said (at 194):

In the circumstances, I grant the order for leave to prosecute, and as this is essentially a criminal matter, there will be no order as to costs.

To the extent that this judgment may be taken to have involved a finding that there was no power it appears to have overlooked the Defamation Act which provided for costs in private prosecutions for defamation. In Shapowloff v John Fairfax & Sons Limited (1966) 84 WN (Pt 1) (NSW) 546, on the other hand, Taylor J refused an application for leave to prosecute brought under s 33 of the Defamation Act 1958 (NSW) and said (at 556):
The application is therefore dismissed, the applicant is to pay the respondents’ costs, including their costs of setting aside the subpoenas, and I certify this is a proper case for the attendance of senior counsel in chambers.

In my opinion, it has not been demonstrated that there is any ‘practice’ against the award of costs in relation to private prosecutions for defamation which might exclude the application of ss 23(1) and (2). Given the existence of a long standing statutory power to award such costs at the time when the Supreme Court Act 1933 was enacted it could be said that there was a ‘practice’ that such costs would be awarded.

The Effect of Prior Decisions of the Full Federal Court on Appeal from the Supreme Court of the Australian Capital Territory

This case has raised the question about the way in which the Court of Appeal of the Australian Capital Territory should deal with a submission that a prior decision of the Full Federal Court on appeal from the Supreme Court should not be followed.

The Full Court of the Federal Court was the Court to which appeals from the Supreme Court of the Australian Capital Territory were taken until the enactment of the Supreme Court (Amendment) Act 2001 (No 2) (ACT). The amendments to the Supreme Court Act 1933 (ACT) effected by that Act provide that, when exercising its appellate jurisdiction under the new Pt 2A, the Supreme Court is to be taken as the Court of Appeal. While not institutionally distinct from the Supreme Court, the Court of Appeal so defined has assumed the appellate jurisdiction previously conferred on the Federal Court. It therefore stands in the direct line of succession to the Federal Court in relation to the exercise of the appellate jurisdiction of the Supreme Court.

It is well established that the Courts of Appeal and Full Courts 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):

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.

In my opinion the decisions of the Federal Court on appeal from the Supreme Court should be treated in the same way by this Court as its own prior decisions. The justification for so doing is self evident in terms of continuity in the exercise of the appellate jurisdiction of the Territory and predictability and consistency in the administration of justice in the Territory.

In this case that approach has application in relation to the decision of the Full Federal Court in Scott which I respectfully regard as having come to the correct result on the basis that s 23 does not authorise an award of costs against the Crown in criminal trials. The wider proposition which emerges from the judgments in that case, that s 23 does not authorise the award of costs in any criminal matters, I do not think is correct. It is not necessary for present purposes to go further than to say that s 23 will authorise the award of costs in private prosecutions for defamation including applications for leave to bring such prosecutions. The question of private prosecutions generally and summary prosecutions by officials and police officers not conducted in the name of or on behalf of the Crown, need not be resolved in this case.

Whether the Proceedings Below were in a Criminal Cause or Matter

Despite what appeared on the application for leave to appeal and the written submissions, it was not disputed at the hearing that the proceedings before Higgins CJ were in a criminal cause or matter. It is nevertheless appropriate to consider whether what amounted to a concession on that point was properly made.

The term ‘criminal cause or matter’ was used in s 47 of the Judicature Act 1873 to qualify by exclusion the general appellate jurisdiction conferred by s 19 of that Act on the Court of Appeal in respect of judgments of the High Court. Its object was that ‘... the Court of Appeal should not interfere in criminal 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:

... the clause of s 47 in question applies to a decision by way of judicial determination of any question raised in or with regard to proceedings, the subject-matter of which is criminal, at whatever stage of the proceedings the question arises.

By application of that authority, albeit in a different context, the Court of Appeal held that an appeal would not lie against an order under s 8 of the Law of Libel Amendment Act 1888 (51 and 52 Vic c 66) allowing a prosecution for criminal libel to be commenced against a newspaper publisher – Ex parte Pulbrook [1892] 1 QB 86. The Court rejected the contention that the application for leave was a step prior to the commencement of criminal proceedings.

Applications for leave to commence criminal libel proceedings have been regarded in Australia as criminal causes or matters. In O’Connor, Halse Rogers J relied upon that characterisation to refuse an order for costs, albeit he did so without reference to the provisions of the Defamation Act relating to costs in private prosecutions. So too in Shapowloff v John Fairfax & Sons Ltd, Taylor J set aside subpoenas issued by the applicant for leave to prosecute on the basis that the application was a criminal proceeding (at 549):

It is true that there is yet no prosecution initiated and there cannot be a prosecution by this applicant until leave has been given. However, the whole basis of the applications is that the respondents have each of them committed criminal acts in publishing defamatory matter of the applicant.

Taylor J referred to Ex parte Pulbrook and Ex parte O’Connor.

The concession was properly made that the application before Higgins CJ, being an application for leave to commence a criminal prosecution for defamatory libel, was a proceeding in a criminal cause or matter within the meaning of s 23(3) of the Supreme Court Act 1933 (ACT).

Conclusion

For the preceding reasons, in my opinion, while the application for leave to appeal should be granted, the appeal should be dismissed.

In so saying, I wish to add that in my opinion s 23(3) as presently framed generates more uncertainty than it should. It is consistent with principles of representative democracy that those who are subject to the law, those who invoke it and those who apply it, are entitled to expect that it means what it says. That is why courts, in the interpretation of laws, 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):

... that rule is dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.

A statute which can only be interpreted by reference to historical materials and complex and sometimes conflicting judicial analysis is not apparently consistent with those principles. In my respectful opinion there could be some benefit derived from legislative reconsideration of s 23(3).
I certify that paragraphs numbered 29 to 112 are a true copy of the Reasons for Judgment herein of the Hon Justice French.
Associate:
Date: 30 November 2004

Counsel for the Appellant: Mr C Evatt

Solicitor for the Appellant: Ken Cush & Associates

Counsel for the Respondent: Mr G Reynolds SC with Mr R Glasson

Solicitor for the Respondent: Sparke Helmore

Date of hearing: 5 August 2004

Date of judgment: 30 November 2004