Carter v Wall [No. 2]

[2003] NSWLEC 94

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Reported Decision: (2003) 126 LGERA 310

Land and Environment Court

of New South Wales

CITATION:

Carter v Wall [No. 2] [2003] NSWLEC 94 revised - 27/08/2003

PARTIES:

PROSECUTOR
Peter Carter

DEFENDANT
Verna Wall

FILE NUMBER(S):

50135 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Costs :- Class 5 proceedings - application pursuant to leave to apply in respect of costs - extent of judicial discretion under s 52 of the Land and Environment Court Act 1979 - whether court functus officio - whether s 6 of the Fines Act applies to s 52 of the Land and Environment Court Act 1979 - prosecutor's application for moiety of fine - failure to apply through inadvertence during hearing - application of slip rule.

LEGISLATION CITED:

Courts Legislation Amendment Act 1997
Courts Legislation Amendment Act 1998
Fines Act 1996, s 3 (d), s 3(e), s 4, s 6, s 122
Fisheries Management Act 1994, s 205(2), s 277(1)(c)
Land and Environment Court Act 1979, s 21(gb), s 52, s 53, s 69
Land and Environment Court Regulation 2000, cl 8
Legal Profession Act 1987, s 202
Land and Environment Court Rules 1996, Pt 10 r 7

CASES CITED:

Attorney General of the Commonwealth of Australia v The Queen and Others (1956) 95 CLR 529;
Carter v Wall [2002] NSWLEC 124;
Cristel v Cristel [1951] 2 KB 725 ;
Director-General Department of Land & Water Conservation v Pye (No 2) [1999] NSWLEC 45;
Environmental Protection Authority v Taylor (No 4) (2002) 120 LGERA 414;
Kirby and Others v The Queen and Others (1956) 95 CLR 529;
L. Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta [No 2] (1983) 151 CLR 590;
Roughley and Others v The State of New South Wales and Another (1928) 42 CLR 162;
The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1955-1956) 94 CLR 254;
Wentworth v Woollahra Municipal Council (Hutley, Glass, and Mahoney JJA, New South Wales Court of Appeal, 31 March 1984, unreported)

DATES OF HEARING:

17/04/2003

DATE OF JUDGMENT:

06/16/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms N. Sharp (Barrister)

SOLICITORS
Crown Solicitor

DEFENDANT
Mr J. Maston (Barrister)

SOLICITORS
Pickering Priestley

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50135 of 2001

Cowdroy J

16 June 2003

PETER CARTER

Prosecutor
v

VERNA WALL

Defendant

Judgment

Introduction

1 By notice of motion filed 17 February 2003 (“the motion”) the defendant applied to the Court to re-list these proceedings pursuant to the liberty granted by the Court in its judgment delivered on 22 August 2002. Such liberty was confined to the issue of costs.

2 The purpose of the motion is to challenge the quantum of the costs which the prosecutor seeks to recover from the defendant.

History of the application

3 The defendant entered a plea of guilty to a charge brought against her under s 205(2) of the Fisheries Management Act 1994 (“the Fisheries Act”) for harming marine vegetation in a protected area without a permit issued by the Minister of Fisheries. The prosecutor in such proceedings was a delegate of New South Wales Fisheries.

4 The prosecution was deemed class 5 proceedings by virtue of s 21(gb) of the Land and Environment Court Act 1979 (“the Court Act”) combined with s 277(1)(c) of the Fisheries Act.

5 The proceedings were heard on 11 July 2002, and judgment was reserved. The prosecutor applied for an order for its costs, to which no objection was raised.

6 Judgment was delivered on 22 August 2002. The defendant was convicted of the offence and a penalty of $10,000 was imposed: see Carter v Wall [2002] NSWLEC 124. Whilst the judgment was being delivered but before any orders were made, the defendant made an application instanter for an order that any question relating to costs be reserved. The Court was informed that correspondence concerning the quantum of the prosecutor’s costs had been received by the defendant subsequent to the hearing but before judgement was delivered. Such correspondence claimed costs of approximately $49,000 which was considered by the defendant to be excessive. The oral application for such leave was not opposed.

7 Accordingly the formal orders of the Court were stated at par 24 of the judgment as follows:-

Orders

24. The Court makes the following orders:-

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $10,000.

3. The defendant is ordered to fence the land in accordance with the agreed specifications set out in Schedule "A" hereto and the fence is to be maintained for a period of five years.

4. The defendant pay the prosecutor's costs of these proceedings as agreed or taxed.

5. Exhibits be returned.

Competency of the Motion

8 The prosecutor submits that the motion should be dismissed because it does not fall within the grant of liberty to apply in these proceedings. The prosecutor says that the defendant’s motion seeks to amend and thereby appeal the order relating to costs. The prosecutor relies on Wentworth v Woollahra Municipal Council (Hutley, Glass, and Mahoney JJA, New South Wales Court of Appeal, 31 March 1984, unreported). In such decision, Hutley JA at p 4 observed “what can be done pursuant to the liberty to apply is extremely limited” and did not encompass the setting aside of orders which had been perfected.

9 The Court has obtained the transcript of the delivery of judgment on 22 August 2002. The transcript records the orders, as follows:-

(4) The defendant to pay the prosecutor’s costs of the proceedings as agreed or taxed.
(5) The Court will make the following order in relation to costs: Liberty to apply is granted in respect of any question arising out of the order for payment of the prosecutor’s costs.

10 The motion does not seek to set aside the order for costs. The defendant is merely exercising her right to make submissions relating to “any question” arising out of the costs order. Accordingly the Court is satisfied that the motion is within the leave reserved.

The Court’s power to award costs

11 Section 52 of the Court Act grants the Court power to make an order for payment of costs in class 5 proceedings. Section 52 relevantly provides:-

s 52 Judge may order payment of costs

(1) Where a Judge:

(a) convicts any person of an offence punishable in the summary jurisdiction of the Court,

(b) makes an order dismissing the charge for any such offence, or

(c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).

(2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined:

(a) by agreement between the prosecutor and defendant, or

(b) if no such agreement can be reached, in accordance with the regulations.

(3) Regulations made for the purposes of this section may, without limitation, adopt all or any specified provisions of Division 6 of Part 11 of the Legal Profession Act 1987 , with or without specified modifications.

12 Clause 8 of the Land and Environment Court Regulation 2000 (“the Regulation”) provides:-

8 Determination of costs if no agreement between prosecutor and defendant


(1) This clause applies if no agreement between a prosecutor and defendant can be reached as to the amount of costs payable in accordance with a direction under section 52 of the Act.

(2) The prosecutor or the defendant may apply to the proper officer of the Supreme Court in accordance with section 202 of the Legal Profession Act 1987 for an assessment of the whole of, or any part of, the costs referred to in a direction under section 52 of the Act.

(3) The costs are to be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

Defendant’s submissions

13 The defendant submits that the Court must apply s 6 of the Fines Act 1996 (“the Fines Act”) when making an order pursuant to s 52 of the Court Act. Section 6 of the Fines Act provides:-

s 6 Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

14 “Fine” is relevantly defined in s 4 of the Fines Act as follows:-

(1) For the purposes of this Act, a fine is:

(f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or

15 The defendant alleges that the prosecutor is a “law enforcement officer” for the purposes of the Fines Act. Section 3(d) and (e) of the Fines Act provides that a “law enforcement officer” includes:-

(d) a public serv a nt,

(e) an officer or employee of a statutory body representing the Crown,

16 Accordingly the defendant submits that the Court is required to apply the Fines Act. The defendant submits that since “fine” includes costs, by virtue of s 4(1)(f) of the Fines Act, the means of the defendant must be assessed as required by s 6 of such Act. It follows that such assessment is to be made before any fine can be imposed. Applying s 6(a) of such Act the defendant submits that a relevant consideration for the Court includes the fact that the defendant is the recipient of a widow’s pension, and that the defendant’s benefit from the estate of the late Mr Clarence Leeson, which is referred to in Carter v Wall at par 17, is uncertain.

17 The defendant submits that matters relevant to s 6(b) of the Fines Act include the information available to the Court at the date of conviction of the amount of costs of the proceedings claimed by the prosecutor, which are estimated at $49,000. Such amount, with the penalty of $10,000 already imposed by the Court for the offence, would result in a total “fine” for the purposes of the Fines Act in the sum of $59,000. The defendant submits that such amount is unreasonable and disproportionate to the maximum penalty of the offence, being $22,000.

Prosecutor’s submissions

18 The prosecutor submits that the defendant must satisfy two requirements to succeed in its motion. The defendant must first establish that s 6 of the Fines Act has application. If s 6 of such Act is found to apply, the defendant must then demonstrate the validity of her submissions.

19 The prosecutor submits that s 52 of the Court Act grants the Court two options when making a costs order. Section 52(1) of such Act allows the Court to specify the amount of costs in the conviction or alternatively order that costs be determined under s 52(2). The prosecutor contends the word “determined” in s 52(1) is significant because it indicates that if the Court orders that costs be determined pursuant to s 52(2), no discretion remains in respect of costs. Rather, costs are assessed pursuant to s 52(2) of the Court Act namely by agreement as provided by s 52(2)(a) or in accordance with the regulations (s 52(2)(b)). In this event the Judge is functus officio in relation to costs. A Judge has no power to consider the means of the defendant to pay the prosecutor’s costs, and s 6 of the Fines Act accordingly has no application.

20 The prosecutor says that the same conclusion is reached if s 6 of the Fines Act is analysed. Such section is only applicable where a discretion is to be exercised by the Court. This does not apply where a direction is made pursuant to s 52(2) of the Court Act.

21 The prosecutor also submits that the Fines Act only applies to the Court Act to the extent that the Court Act expressly provides. If the Legislature intended that s 52 of the Court Act be read in conjunction with s 6 of the Fines Act, the Legislature would have made such provision similar to that made in s 53 of the Court Act. The prosecutor says that s 53 of the Court Act indicates that the Legislature only chose the Fines Act to apply insofar as the enforcement of the payment of penalties.

22 The prosecutor additionally contends that applying s 6 of the Fines Act in the manner proposed by the defendant would lead to absurd results. The prosecutor says that the defendant’s construction of such provision and the broad definition of “law enforcement officer” would mean that in any court for proceedings for an offence, the court would have to consider the offender’s means before fixing the amount of any fine.

Findings

23 Section 69 of the Court Act gives the Court a broad discretion to award costs. However, s 69(9) of such Act provides that such section does not apply to class 5 proceedings. Accordingly s 52(1) of the Court Act is the only statutory provision which enables the Court to make orders for costs in class 5 proceedings.

24 Section 52 of the Court Act provides that if the charge is established against the defendant the Court may order the defendant to pay to the prosecutor such costs as are specified in the conviction or order (s 52(1)(a), s 52(1)(c)). If the charge is dismissed, the prosecutor may be ordered to pay costs (s 52(1)(b)).

25 Section 52 enables the Court to order the defendant to pay the costs as are specified in the conviction or order, “or if the conviction, or order so directs, as may be determined under subsection (2)” [emphasis added]. Section 52(2) “provides that the costs so payable are to be determined” [emphasis added] by agreement (s 52(2)(a)), or if no agreement is reached, “in accordance with the regulations” (s 52(2)(b)). Such determination is made without the exercise of any judicial discretion.

26 Section 52(2), 52(3) and 52(4) were inserted into the Court Act by the Courts Legislation Amendment Act 1997 and the Courts Legislation Amendment Act 1998. Previously the Judge was the sole determiner of costs under a provision similar to s 52(1) of the Court Act.

27 Additionally, since the operation of s 6 of the Fines Act is predicated upon the exercise of a discretion such section has no application. Once s 52(2) of the Court Act is invoked, no discretion resides in the Court to assess costs.

28 From these considerations, the Court concludes that s 6 of the Fines Act has no application to the assessment of costs in class 5 proceedings under s 52 of the Court Act. If s 6 of the Fines Act applied to class 5 proceedings, it would require the Court to assess the costs which an accused might be ordered to pay before assessing the appropriate penalty, since the definition of “fine” includes costs (s 4(f)). If s 6(a) of the Fines Act were applicable, the Court would be required to have an agreement or assessment of costs conducted before any assessment of a fine would be made. Such process would discourage prosecutions and be inconsistent with the provisions of s 52 of the Court Act, which provides for a conviction or order to be entered, and thereafter for costs to be agreed or assessed.

29 The Court’s order made on 22 August 2002 was made pursuant to s 52(2) of the Court Act. As a result of such finding, it follows that the Court is bound to give effect to the statutory process provided in s 52(2) of the Court Act. In the absence of agreement between the parties as to costs, the parties’ costs are to be assessed pursuant to s 202 of the Legal Profession Act 1987. The Court is now functus officio in respect of the quantum of costs.

30 Section 53 of the Court Act provides that any money ordered to be paid “as a penalty or for costs” may be enforced in accordance with the Fines Act. Two matters arise from the interpretation of s 53. Firstly, if the Fines Act were applicable generally to the assessment of costs in class 5 proceedings, the inclusion of s 53 would be unnecessary. The inclusion of such a specific provision suggests that the Legislature did not intend the Fines Act to apply to the assessment of costs or fines in respect of class 5 proceedings. Such finding is made in accordance with a rule of statutory construction, expressio unius exclusio alterius, that is the express mention of one is the exclusion of the other: see Roughley and Others v The State of New South Wales and Another (1928) 42 CLR 162 per Higgins J at p 198; Attorney General of the Commonwealth of Australia v The Queen and Others; Kirby and Others v The Queen and Others (1956) 95 CLR 529 at p 538. In The Queen v Kirby and others; Ex parte Boilermakers’ Society of Australia (1955-1956) 94 CLR 254 the majority of the High Court of Australia applied such rule to clarify the drafters’ intention of the Commonwealth Constitution Chapter III and said at p 270:-

The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted from early in the development of the principles of interpretation: 1 Plow 113 [75 ER 176].

The express mention of the Fines Act in s 53 therefore precludes the implication of the Fines Act applying to s 52 of the Court Act. Accordingly, the Fines Act has no application to the assessment of costs in class 5 proceedings.

31 Such conclusion accords with that of Lloyd J in Environment Protection Authority v Taylor [No 4] (2002) 120 LGERA 414, who, after noting the definition of “fine” in s 4 of the Fines Act, and in s 53 of the Court Act said at p 424:-

Moreover, s 53 of the Court Act provides that any order for costs may be enforced in accordance with the Fines Act . That section does not apply the Fines Act so far as the quantum of any order for costs made under the Court Act is concerned. It merely refers to the way in which an order for costs already made may be enforced.

32 Secondly, the terminology in s 53 of the Court Act draws a distinction between “penalty” and “costs”, which is inconsistent with the definition of “fine” contained in the Fines Act. “Fine” as defined in such Act, includes both fine and costs.

33 The leave that was granted to apply in respect of costs does not permit the Court to interfere with the assessment process when an order has been made that the costs be paid by the defendant. The utility of such leave is limited only to applications for implementation of the earlier orders. In Cristel v Cristel [1951] 2 KB 725 Somervell LJ explained the term “liberty to apply” and said at p 728:-

Prima facie, certainly, it does not entitle people to come and ask that the order itself be varied.


The leave granted to the defendant would permit an application to be made for postponement of such costs, or for payment by instalments, or similar orders. The Court rejects the defendant’s submission that it can make an order under s 52(1) of the Court Act allowing the prosecutor’s costs but in an amount that does not exceed the maximum penalty of the relevant offence, or otherwise limiting the costs.

Prosecutor’s Notice of Motion

34 By notice of motion dated 15 April 2003 the prosecutor seeks an order that it is entitled to a moiety of the fine pursuant to s 122 of the Fines Act, and for an order that half of the fine payable by the defendant be paid to it.

35 Section 122 of the Fines Act provides:-

s 122 Payment of share of fine to prosecutor

(1) This section applies where:

(a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b) the prosecutor is not a police officer.

(2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

(3) For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

36 No submissions have been made by the defendant in opposition to the prosecutor’s motion. However, the Court can only make the order sought if it possesses jurisdiction.

37 The prosector has tendered evidence which establishes that as a result of an oversight he failed to apply for such an order at the conclusion of the hearing. The prosecutor relies upon the slip rule contained in Pt 10 r 7 of the Land and Environment Court Rules 1996 (“the Court Rules”) to correct such error. Such rule provides:-

7 Correction of judgment, order or certificate

(1) If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error.

(2) Rules 4, 5 and 6 do not apply to a correction made under subrule (1).

38 Although there has been no error by the Court, the benefit of a rule to the same effect was extended to a legal adviser who inadvertently forgot to apply for an order for interest before an order was perfected: see L. Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta [No 2] (1983) 151 CLR 590 at p 594. In Director-General Department of Land & Water Conservation v Pye (No 2) [1999] NSWLEC 45 it is apparent that this Court would have adopted a similar approach to Pt 10 r 7 of the Court Rules.

39 The Court finds that the omission to seek the order now applied for has arisen as a result of inadvertence. Applying the principle propounded by the High Court of Australia in Shaddock, the Court will grant the order sought, on the basis that the prosecutor is the delegate of New South Wales Fisheries.

Orders

40 The Court orders:-

1. The order made on 22 August 2002 that the defendant pay the costs of the prosecutor as agreed or failing an agreement as taxed pursuant to s 52(2) of the Land and Environment Court Act 1979, is confirmed.

2. The defendant’s notice of motion dated 17 February 2003 be dismissed;

3. The defendant pay the prosecutor’s costs of the notice of motion dated 17 February 2003.

4. The prosecutor is entitled to a moiety in the fine payable by the defendant and pursuant to s 122 of the Fines Act 1996, half of the fine payable by the defendant be paid to the prosecutor, as delegate of New South Wales Fisheries.

5. Each party pay its own costs of the prosecutor’s notice of motion dated 15 April 2003.