D'Adamo v Marchesi
[2007] WASC 282
•23 NOVEMBER 2007
D'ADAMO -v- MARCHESI [2007] WASC 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 282 | |
| Case No: | SJA:1062/2007 | 19 OCTOBER 2007 | |
| Coram: | HASLUCK J | 22/11/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Order that appeal was validly instituted Non-party to pay respondent's costs of appeal to be taxed if not agreed | ||
| A | |||
| PDF Version |
| Parties: | DAVID D'ADAMO RODNEY ANTHONY MARCHESI |
Catchwords: | Criminal law Jurisdiction, practice and procedure Extradition warrant Service and Execution of Process Act 1992 (Cth) Whether review of magistrate's decision as to invalidity of warrant was properly instituted by appeal pursuant to the Criminal Appeals Act 2004 (WA) Appellant discontinued appeal prior to hearing Dispute as to costs of proposed appeal and proceedings at first instance Whether court can make an award of indemnity costs Whether costs order against non-party to appeal appropriate Finding that a review of the magistrate's decision by way of appeal was properly instituted Order for non-party to pay respondent's costs in respect of the appeal only |
Legislation: | Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, s 14(1)(h), s 40(1)(l), s 40(1)(m), s 41(1)(e) Criminal Procedure Act 2004 (WA), s 128(2), s 128(3) Criminal Procedure Rules 2005 (WA), r 58(1), r 65, r 72, r 72(4), r 77 Director of Public Prosecutions Act 1991 (WA), s 10(1), s 10(2), s 11, s 14, s 17, s 20 Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AA Magistrates Court (Civil Proceedings) Act 2004 WA, s 6, s 25, s 25(2), s 25(3), s 25(7) Magistrates Court Act 1989 (Vic), s 28(1), s 28(5) Magistrates Court Act 2004 (WA), s 4 Misuse of Drugs Act 1981 (WA), s 33(2) Service and Execution of Process Act 1992 (Cth), s 82, s 83(8), s 83(10), s 86, s 86(1), s 86(4) Supreme Court Act 1937 (WA), s 37 |
Case References: | Aston v Irvine, Jenkins & Conway (1955) 92 CLR 353 Elliott v The Queen; Blessington v The Queen [2007] HCA 51 Grierson v The King (1938) 60 CLR 431 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Loveridge v Commissioner of Police for South Australia (2004) 146 A Crim R 84; [2004] SASC 195 Money Tree Management Services Pty Ltd v Deputy Commissioner for Taxation (No 2) [2000] SASC 63 Moyes v J & L Developments Pty Ltd (No 2) [2007] SASC 261 R v Murphy (1985) 158 CLR 596 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558 Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RODNEY ANTHONY MARCHESI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A NICHOLLS
File No : PE 42336 of 2007
Catchwords:
Criminal law - Jurisdiction, practice and procedure - Extradition warrant - Service and Execution of Process Act 1992 (Cth) - Whether review of magistrate's decision as to invalidity of warrant was properly instituted by appeal pursuant to the Criminal Appeals Act 2004 (WA) - Appellant discontinued appeal prior to hearing - Dispute as to costs of proposed appeal and proceedings at first instance - Whether court can make an award of indemnity costs - Whether costs order against non-party to appeal appropriate - Finding
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that a review of the magistrate's decision by way of appeal was properly instituted - Order for non-party to pay respondent's costs in respect of the appeal only
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, s 14(1)(h), s 40(1)(l), s 40(1)(m), s 41(1)(e)
Criminal Procedure Act 2004 (WA), s 128(2), s 128(3)
Criminal Procedure Rules 2005 (WA), r 58(1), r 65, r 72, r 72(4), r 77
Director of Public Prosecutions Act 1991 (WA), s 10(1), s 10(2), s 11, s 14, s 17, s 20
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71AA
Magistrates Court (Civil Proceedings) Act 2004 WA, s 6, s 25, s 25(2), s 25(3), s 25(7)
Magistrates Court Act 1989 (Vic), s 28(1), s 28(5)
Magistrates Court Act 2004 (WA), s 4
Misuse of Drugs Act 1981 (WA), s 33(2)
Service and Execution of Process Act 1992 (Cth), s 82, s 83(8), s 83(10), s 86, s 86(1), s 86(4)
Supreme Court Act 1937 (WA), s 37
Result:
Order that appeal was validly instituted
Non-party to pay respondent's costs of appeal to be taxed if not agreed
Category: A
Representation:
Counsel:
Appellant : Mr D Dempster
Respondent : Mr P J Haag
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Justine Fisher
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Case(s) referred to in judgment(s):
Aston v Irvine, Jenkins & Conway (1955) 92 CLR 353
Elliott v The Queen; Blessington v The Queen [2007] HCA 51
Grierson v The King (1938) 60 CLR 431
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Loveridge v Commissioner of Police for South Australia (2004) 146 A Crim R 84; [2004] SASC 195
Money Tree Management Services Pty Ltd v Deputy Commissioner for Taxation (No 2) [2000] SASC 63
Moyes v J & L Developments Pty Ltd (No 2) [2007] SASC 261
R v Murphy (1985) 158 CLR 596
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558
Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133
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- HASLUCK J:
Introduction
1 In these proceedings the appellant, David D'Adamo, sought to challenge a decision made on 26 July 2007 in the Magistrates Court at Perth.
2 The learned magistrate held that a warrant for extradition was invalid and consequently the respondent, Rodney Anthony Marchesi, had to be released pursuant to s 83(10) of the Service and Execution of Process Act 1992 (Cth).
3 It is now clear that the appellant will not proceed with his challenge to the decision, and in that regard a notice dated 15 October 2007 has been filed whereby the appellant purports to discontinue the proceedings. However, I am required to resolve a controversy between the parties concerning the costs of the present proceedings and the costs of the proceedings at first instance. The costs are substantial and this has meant that the parties have not been able to resolve that issue by agreement.
4 The matter in controversy obliges me to look closely at the nature of the extradition proceedings and the proceedings before me. However, for the time being, for ease of reference, I will continue to refer to the matter as an appeal and to the parties as the appellant and the respondent respectively, as if it were a matter brought before me by way of appeal pursuant to provisions of the Criminal Appeals Act 2004 (WA), being the position contended for by counsel for the appellant.
Background
5 In August 2004 the respondent stood trial with another man in the District Court at Perth on a drugs conspiracy charge. It was alleged in the indictment that between 27 February 2001 and 13 March 2001 at Perth and elsewhere the two men conspired together to possess a prohibited drug, namely methamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) and s 33(2) of the Misuse of Drugs Act 1981 (WA).
6 During the course of the trial an issue was raised that the agreement allegedly comprising the conspiracy was made entirely in Victoria; there was no evidence of any form of communication between the two co-accused outside that state. I note in passing that, on the prosecution case, the object of the alleged venture was for the respondent to take delivery of certain cartons containing secreted quantities of methamphetamine in Perth.
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7 At the end of the prosecution case counsel for the respondent and the other defendant submitted that there was no case to answer upon the grounds that no offence was committed under the law of Western Australia.
8 In response to this plea and submissions as to other issues, the District Court upheld a submission of no case to answer upon the basis that the District Court of Western Australia had no jurisdiction to hear the matter. This ruling was later upheld by the Court of Criminal Appeal: Western Australia v Marchesi (2005) 30 WAR 359; [2005] WASCA 133.
9 The State of Western Australia then sought to take the matter further by making an application for special leave to the High Court. However, the application in question was dismissed with costs on 4 August 2006.
Further proceedings
10 It seems that the office of the Director of Public Prosecutions in the State of Victoria then gave consideration to commencing proceedings against the respondent in that state. A number of documents were handed up by consent at the hearing before me relating to the matter in question. The documents included a copy of a charge and warrant to arrest dated 18 July 2007 in which the informant was described as 'Sergeant David D'Adamo' and the respondent was named as the defendant.
11 The details of the subject charge in the charge and warrant to arrest were to this effect: that the respondent at Niddrie on 7 March 2001 did traffic a quantity of a drug of dependence namely 962 grams of methamphetamine. Reliance was placed upon s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
12 It is apparent from the charge and warrant to arrest that the informant had applied for the issue of a warrant to arrest on the following grounds:
Extradition of defendant from Western Australia to Victoria to answer the aforementioned charges.
13 The charge and warrant to arrest was directed to Western Australia Police Service Members and purported to be authorised by s 82 of the Service and Execution of Process Act. It was issued by the deputy registrar of the Magistrates Court of Victoria.
14 I note in passing that by s 82 of the Service and Execution of Process Act the person named in a warrant issued in a state may be apprehended in
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- another state by an officer of the police force of the state in which the person is found.
15 By s 83 of the Act, as soon as practicable after being apprehended, the person is to be taken before a magistrate of the state in which the person was apprehended. By s 83(8), if the warrant or a copy of the warrant is produced, the magistrate must order that the person be remanded on bail on condition that he appear at such time and place in the place of issue of the warrant as the magistrate specifies or that he be taken, in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant.
16 Section 83(10) of the Act provides that the magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid.
The validity of the warrant
17 On 26 July 2007, following a contested hearing, Magistrate Nicholls found that the charge and warrant of arrest issued in Victoria was invalid. It was common ground before me that the informant was represented at the hearing by Mr Dempster acting under instruction from the Director of Public Prosecutions in the State of Western Australia. The respondent was represented by an experienced counsel from Melbourne, Mr P Haag, acting under instruction from a solicitor in this state, Ms Justine Fisher.
18 In the course of discussion his Honour noted that, on the face of the charge and warrant to arrest, the deputy registrar in Victoria purported to be relying upon s 82 of the Service and Execution of Process Act (described in the learned magistrate's reasons as 'the Act'). However, the crucial question was whether the power to issue the charge and warrant to arrest was to be found in s 28 of the Magistrates Court Act 1989 (Vic).
19 Section 28(1) of the Magistrates Court Act provides that on the filing of a charge an application may be made for the issue of a summons to answer the charge or a warrant to arrest in order to compel the attendance of the defendant.
20 By s 28(5) a registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that it is probable that the defendant will not answer a summons, or has absconded or is likely to abscond, or a warrant is required or authorised by any other Act or for other good cause.
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21 It was against this background that the learned magistrate observed that the grounds referred to in the subject arrest warrant contained words which were clearly taken from s 28(5) of the Magistrates Court Act. His Honour then made these observations:
I accept that the Act is a Commonwealth Act designed to permit and recognise service and execution of warrants, summonses and court processes from one state to another state as described in submissions by Mr Haag, it permits state warrants to be effective nationally.
Mr Haag submitted that section 82 does not create or provide for the warrant to arrest. I agree with that submission.
Mr Dempster, for the state, said that the power to arrest arises from the Act. It does, in one state, if there is a warrant issued in another state. Mr Dempster submitted that the warrant was not - he said the warrant was not a warrant to arrest in Victoria. I'm not sure whether that is correct. There are additional words in this particular warrant, which are Western Australia Police Service members, but the rest of the warrant could be, on its face, what I would loosely call an ordinary warrant in Victoria. I simply don't know.
The power to issue the warrant by the deputy registrar, in my view, comes from section 28 of the Magistrates Court Act of Victoria and does not come from the Act. It is clear from reading section 28 of the Magistrates Court Act and clear from reading section 82 of the Act.
What may be the Victorian practice, as described by Mr Dempster, whatever it may be, does not make it correct at law. I therefore conclude, on the face of the warrant, it is invalid because section 82 does not and cannot authorise the issue of this warrant. I therefore make a finding that the warrant is invalid and, pursuant to section 83 subsection (10) I order the release of the defendant.
22 In other words, if I understand the reasoning correctly, his Honour held that the power to issue the warrant came from s 28 of the Magistrates Court Act of Victoria, but the Deputy Registrar purported to issue the warrant pursuant to s 82 of the Service and Execution of Process Act. That provision allows for a person named in a warrant issued in one state (in this case Victoria) to be apprehended in another state (in this case Western Australia) but it does not empower anyone to issue a warrant to arrest. Thus, the warrant in question was invalid.
Issue concerning costs
23 Having ruled that the subject charge and warrant to arrest was invalid, the learned magistrate was then invited by counsel for the respondent to award costs in favour of the respondent.
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24 Counsel for the respondent submitted that the application for extradition was in the nature of an administrative procedure and should be characterised as civil proceedings. It was put to his Honour that he had power to award costs pursuant to the Magistrates Court (Civil Proceedings) Act 2004 (WA).
25 I note in passing that by s 25 of that Act the Magistrates Court may order a party to a case to pay the whole or a part of another party's costs in the case. By s 25(7) the amount of any costs to be paid is to be determined by the court unless the parties concerned agree on the amount.
26 It appears from the transcript of the hearing at page 7 that his Honour was not necessarily persuaded that he should proceed in that manner. He was minded to reserve the question of costs so that 'it will just lay on the table indefinitely then unless someone raises it and it comes back again'.
27 Thus, the learned magistrate ordered that pursuant to s 83(10) of the Service and Execution of Process Act the accused be released and 'the question of costs be reserved'.
Subsequent events
28 The appellant decided to challenge the ruling made by the learned magistrate. There is a controversy between the parties as to whether the proceedings before the magistrate should be characterised as civil or as criminal proceedings and as to whether the proper course was followed in seeking to challenge the decision.
29 However, for the sake of an orderly narrative it will be useful to begin by referring to the reasoning underlying the steps taken on behalf of the appellant to challenge the magistrate's decision.
30 Section 86(1) of the Service and Execution of Process Act provides that if an order has been made under s 83 of the Act, the apprehended person or a person to whom the warrant was directed may apply to the Supreme Court of the state in which the order was made for review of the order.
31 Section 86(4) provides that:
Service of the notice of application on the respondent must be effected in the same way as service of a notice of an appeal to the Supreme Court of the State in a criminal proceeding.
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32 The effect of related provisions is that the review is to be by way of rehearing. The Supreme Court may confirm, vary or revoke the order. If the order is revoked, the Supreme Court may make a new order. For the purposes of a review, the Supreme Court of a state is not bound by the rules of evidence.
33 On the appellant's case before me, such an application is governed by the Criminal Appeals Act 2004 and the Criminal Procedure Rules 2005.
34 In that regard counsel for the appellant placed reliance upon O 81B r 4 of the Rules of the Supreme Court 1970 (WA) which provides that 'the Criminal Procedures Rules 2005 apply to and in respect to reviews and appeals under pt 5 of the Act'; that is, the Service and Execution of Process Act. It was said that this brought into play pt 14 and pt 15 of the Criminal Procedure Rules 2005.
35 Part 14 of the Criminal Procedure Rules refers to that part of the Criminal Appeals Act concerning appeals from a court of summary jurisdiction. It sets out the rules governing an appeal of that kind. Rule 77 (which lies within pt 15) provides that pt 14 of the Criminal Procedure Rules, with any necessary changes, applies to an application under s 86 for a review of an order made under s 83 of the Service and Execution of Process Act.
Legislative framework
36 As I have indicated, there is an issue in this matter as to whether it was permissible or in order for the appellant to challenge or seek a review of the learned magistrate's decision that the subject charge and arrest warrant was invalid by instituting an appeal pursuant to provisions of the Criminal Appeals Act and Criminal Procedure Rules.
37 Accordingly, it will now be useful to take a closer look at the legislative framework within which this matter must be dealt with and at provisions bearing upon the duties and powers of magistrates in Western Australia.
38 Section 4 of the Magistrates Court Act 2004 (WA) provides that a court of record called the Magistrates Court of Western Australia is established. By s 6(1) a magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including that Act and other written laws.
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39 By s 9 the Magistrates Court of Western Australia has the jurisdiction conferred on it by this Act and by other written laws. Section 10 provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act 2004 (WA). I will look at that statute later.
40 The court's criminal jurisdiction is set out in s 11 of the Magistrates Court Act. The court has jurisdiction, inter alia, to hear and determine a charge of a simple offence or an offence that can be dealt with summarily. By s 11(2)(e) the court has jurisdiction to deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction. The jurisdiction is to be exercised subject to the Criminal Code (WA) and the Criminal Procedure Act 2004.
41 In exercising its criminal jurisdiction, the court is said to be a court of summary jurisdiction. By s 13, the court, in exercising its jurisdiction, is to decide all questions of fact and law.
42 The Criminal Procedure Act 2004 deals in pt 3 with prosecutions in courts of summary jurisdiction and in pt 4 with prosecutions in superior courts. Part 5 contains provisions applicable to any prosecution.
43 Part 6 contains miscellaneous provisions including s 86 whereby the Governor may make regulations prescribing any matter that is necessary or convenient to be prescribed for giving effect to the purposes of the Act. More particularly, by s 86(2)(c) regulations may prescribe how applications to a court under this Act or another written law must be made and conducted.
44 I note in passing that, by s 3 of the Act, a 'case' means a prosecution, or any proceedings in a court that involve its criminal jurisdiction.
45 The Criminal Procedure Rules 2005 set out a variety of procedural rules concerning the commencing and discontinuing of prosecutions and the resolution of pretrial and trial matters. They provide also for matters arising under the Sentencing Act 1995 (WA), the Juries Act 1957 (WA), the Criminal Appeals Act 2004 (WA) and the Service and Execution of Process Act (Cth).
46 Part 14 of the Criminal Procedure Rules commences with the heading: Criminal Appeals Act 2004 Part 2 Division 2 rules. I note in passing that pt 2 of the Criminal Appeals Act concerns appeals from courts of summary jurisdiction. Division 2 concerns appeals to a single judge of the Supreme Court. By r 58(1) of the Criminal Procedure Rules
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- an appeal is defined to mean an appeal, or an application for leave to appeal, under the Criminal Appeals Act 2004 pt 2 div 2.
Overview
47 Put shortly, then, in the present case, the appellant was of the view that a decision or order made under s 83 of the Service and Execution of Process Act concerning the validity of a warrant to arrest, as in the present case, can be related to and should be characterised as a criminal proceeding.
48 According to counsel for the appellant, the combined effect of s 86 of the Service and Execution of Process Act and various provisions of the Rules of the Supreme Court, the Criminal Procedure Rules and the Criminal Appeals Act was that any review of the decision was to be conducted as if it were an appeal to a single judge of the Supreme Court from a court of summary jurisdiction.
49 Accordingly, pursuant to this view of the matter the appellant proceeded to file and serve a Notice of Appeal dated 31 July 2007 in the manner allowed for by the Criminal Appeals Act and the Criminal Procedure Rules. The grounds of appeal were described as follows:
1. The learned Magistrate erred in finding that the warrant issued by Deputy Registrar Stainwell on 18 July 2007 was not authorised by s 82 of the Service and Execution of Process Act.
Appeal procedure
50 It will now be useful to say more about the appeal procedure from courts of summary jurisdiction in Western Australia. As indicated in earlier discussion, the principal point of reference in that regard is the Criminal Appeals Act. I note in passing that by s 3 of that Criminal Appeals Act, the Act is to be read with the Criminal Procedure Act 2004 (WA).
The Criminal Appeals Act
51 Section 6 of the Criminal Appeals Act lies within div 1 of pt 2 of the Criminal Appeals Act. It provides that unless the contrary intention appears a 'decision' of a court of summary jurisdiction means any of the following, that is, a judgment entered under the Criminal Procedure Act 2004 s 128(2)or s 128(3); a decision ordering a permanent stay of a prosecution; a decision to convict or acquit an accused of a charge; a sentence imposed or order made as a result of a conviction or acquittal;
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- the refusal to make an order that might be made as a result of a conviction or acquittal; a decision as to costs.
52 For present purposes, it is material to note that the definition of 'decision' does not include any decision or ruling or order as to the validity of a warrant issued by an authority designated as such in pt 5 of the Service and Execution of Process Act or as to the validity of any warrant.
53 Section 7 of the Criminal Appeals Act concerning the right of appeal lies within div 2 of pt 2 of that Act. It provides that a person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to the Supreme Court against the decision. By s 7(3) certain decisions of a court of summary jurisdiction cannot be the subject of an appeal including a decision to commit or not to commit an accused for trial or sentence and a decision as to bail. By s 7(4) except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction.
54 Section 9 of the Criminal Appeals Act provides that the leave of the Supreme Court is required for each ground of appeal. Leave is not to be given unless the Supreme Court is satisfied that the ground has a reasonable prospect of succeeding.
55 By s 10 an appeal under this division must be commenced and conducted in accordance with this division and rules of court. The appeal is to be commenced by lodging an application for leave to appeal that sets out the grounds of the appeal within 28 days after the date of the decision unless the Supreme Court otherwise orders. The exhibits in the case must be given to the Supreme Court by the court of summary jurisdiction.
56 Section 14 of the Criminal Appeals Act deals with the Supreme Court's powers on an appeal. These include a power 'in deciding an appeal' to dismiss or allow the appeal or to set aside or vary the decision of the court of summary jurisdiction. Section 14(1)(h) provides that the Supreme Court may make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction. By s 14(1)(i) the Supreme Court may make any other order it thinks fit.
57 By s 15 the decision of the Supreme Court has effect as if it were the decision of the court of summary jurisdiction, and may be enforced accordingly.
58 These provisions must be read in conjunction with certain additional provisions set out in pt 4 of the Criminal Appeals Act which are applicable to any appeal; that is, appeals from courts of summary jurisdiction or
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- appeals from a single judge to the Court of Appeal pursuant to pt 2, or appeals from superior courts pursuant to pt 3.
59 For present purposes, it is not necessary to deal with these further provisions at length. However, importantly, by s 40(1)(l) an appeal court may 'exercise any power that the Supreme Court may exercise in a civil case'.
60 Further, by s 40(1)(m) an appeal court may issue any warrant or document, and make any order, that is necessary to give effect to its decision on the appeal or that may be necessary as a result of the discontinuance or dismissal of the appeal.
Criminal Procedure Rules
61 I mentioned in earlier discussion that the Criminal Procedure Rules 2005 contain provisions not only governing various pretrial and procedural matters but also bearing also under various issues arising under related statutes such as the Criminal Appeals Act.
62 Further, I mentioned in earlier discussion that pt 14 of the Rules covers issues arising under the Criminal Appeals Act pt 2 div 2; that is, appeals from courts of summary jurisdiction.
63 Thus, by r 65 an appeal is to be commenced by lodging an appeal notice in the prescribed form containing the grounds of appeal.
64 Rule 72 provides that the appellant may discontinue an appeal by lodging and serving a Form 26 (Discontinuance Notice). By r 72(4), unless a judge orders otherwise, an appellant who discontinues an appeal must pay the respondent's costs in respect of the appeal which must be taxed if they are not agreed.
65 Importantly, for present purposes (as I noted in earlier discussion), r 77 (which lies within pt 15) provides that pt 14 of the Criminal Procedure Rules (concerning appeals from courts of summary jurisdiction) applies to an application under s 86 of the Service and Execution of Process Act for a review of an order made under s 83 of that Act 'with any necessary changes'.
66 This brings me to the submissions of the appellant concerning the status of the proceedings before me, being proceedings which were instituted by the appellant's notice of appeal dated 31 July 2007.
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Submissions of the appellant
67 The appellant's notice of appeal purports to have been issued pursuant to the Criminal Appeals Act 2004 pt 2 in the manner and form prescribed by that Act.
68 For example, the document includes a Notice to the respondent to this effect:
If you want to take part in this appeal you must lodge a Form 22 under the Criminal Procedure Rules 2005 within 7 days after you are served with this notice and serve it on the appellant.
69 Counsel for the appellant contended that a review of the learned magistrates' decision as to the invalidity of the warrant was properly instituted by the appeal notice dated 31 July 2007, having regard to the provisions of the Service and Execution of Process Act and Criminal Appeals Act mentioned earlier, because a review by way of an appeal against a decision in criminal proceedings was expressly provided for by the legislative framework in question.
70 In other words, r 77 of the Criminal Procedure Rules, counsel for the appellant contended, expressly provides that an application for a review of an order made by a magistrate pursuant to s 83 of the Service and Execution of Process Act (for example, that a warrant is invalid) is to be treated as an appeal from a court of summary jurisdiction in respect of a criminal proceeding.
71 This was said to be consistent with the meaning of 'criminal proceeding' set out in s 3 of the Service and Execution of Process Act which encompasses not only a prosecution for an offence but also a proceeding that 'is related to or associated with a prosecution for an offence'.
72 Further, counsel submitted, the appeal had been discontinued in the manner expressly allowed for by the Criminal Procedure Rules. This meant, having regard to r 72 concerning discontinuance, that it was open to the court to order that the appellant pay the respondent's costs in respect of the appeal, such costs to be taxed in the absence of agreement. However, it was not open to the court to make an order for indemnity costs of the kind sought by the respondent.
73 Counsel submitted also that as to the costs of the summary proceedings these should properly be dealt with by the Magistrates Court pursuant to the order reserving costs previously made. It was true that
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- s 14(1)(h) of the Criminal Appeals Act permitted the court to award costs in respect of the appeal but this only applied where the matter had been disposed of on appeal. The rules contained a specific provision concerning costs namely, r 72(4), where the appeal had been simply discontinued.
74 Counsel submitted that the civil concept of indemnity costs did not arise in the present case which concerned criminal proceedings. Further, and in any event, there had been no improper or unreasonable conduct on the appellant's side which would justify an order for indemnity costs.
Submissions of the respondent
75 Counsel for the respondent submitted that the decision made by the learned magistrate was not one which required him to make a determination as to the rights of the parties or to make any ruling that could be regarded as resolving the matters in issue. It followed that his ruling was in the nature of an administrative decision. Further, it followed from this that the proceedings before him could not be characterised as criminal proceedings. They were civil proceedings.
76 This meant that an appeal purporting to be brought pursuant to provisions of the Criminal Appeals Act was misconceived. Moreover, and more particularly, it was apparent from s 6 of the Criminal Appeals Act that the right of appeal was limited to decisions of the kind specified in that provision which did not include a decision about the validity of a warrant.
77 It followed from this analysis, counsel for the respondent contended, that any challenge to the magistrate's decision ought to have been instituted by the appellant pursuant to those provisions and rules concerning the civil jurisdiction of the Magistrates Court. This had not been done and the notice of discontinuance was a nullity, with the result that r 72(4) of the Criminal Procedure Rules had no application.
78 On this view of the matter, the proper course was for the court to make an order dismissing the putative appeal. The court should then, in respect of a civil proceeding, exercise the broad power allowed to it by s 37 of the Supreme Court Act 1935 (WA) to award costs in favour of the appellant.
79 It was said further that in the circumstances of the present case, where the appellant was simply a police officer, and the initial proceedings, and the purported appeal, had essentially been undertaken by
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- the Commissioner of Police in Victoria it would be appropriate for an order for costs to be made against that party notwithstanding that the Commissioner was not a party to the present proceedings.
80 In that regard, counsel for the respondent relied upon decided cases to the effect that the power to award costs is often broad enough to permit an award of costs to be made against a non-party.
81 For example, in Knight v FP Special Assets Ltd (1992) 174 CLR 178 the High Court held that, where the relevant rule of court simply provided that the costs of and incidental to all proceedings were to be in the discretion of the court, the discretion was not confined to the parties to the proceedings.
82 Mason CJ, Deane and Gaudron JJ observed that where a party to litigation is an insolvent person or man of straw, a non-party who has played an active part in the conduct of the litigation, and who has an interest in the subject of the litigation, is liable to have an order for costs made against him if the interests of justice require that to be made.
83 Reasoning to the same effect is to be found in decisions such as Money Tree Management Services Pty Ltd v Deputy Commissioner for Taxation (No 2) [2000] SASC 63 and, more recently, Moyes v J & L Developments Pty Ltd (No 2) [2007] SASC 261.
84 For the time being, I will put to one side an additional argument relied upon by counsel for the respondent which was said to establish that the present appeal was a nullity, being an argument based upon certain provisions of the Director of Public Prosecutions Act 1991 (WA).
85 Counsel for the respondent then went on to assert that if costs were to be awarded to the respondent upon the basis just mentioned an order for indemnity costs should be made having regard to conduct by the appellant and his advisers which was said to be improper or unreasonable in respect of an appeal that had no prospect of success. The facts and matters relied upon in that regard are referred to in the affidavit of Justine Troy Fisher sworn 19 October 2007.
86 In order to understand these submissions fully, it will now be useful to take a closer look at the civil jurisdiction of the Magistrates Court and to examine s 37 of the Supreme Court Act.
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The civil jurisdiction of the Magistrates Court
87 Section 6 of the Magistrates Court (Civil Proceedings) Act 2004 provides that the court has jurisdiction to deal with various matters such as a claim for a debt or a claim to recover possession of personal property. Certain forms of claim are specifically included such as a claim in which the title to land is in question or a claim for damages for libel or slander.
88 Section 25 of the Act provides that the court may order a party to a case to pay the whole or a part of another party's costs in the case. By s 25(2) a successful party is entitled to an order that the whole of its costs in the case be paid by the unsuccessful party, unless the court considers there is good reason not to make such an order. By s 25(3) an order may be made in a case even if the case is outside the court's jurisdiction.
89 Section 25(7) provides that the amount of any costs to be paid is to be determined by the court unless the parties concerned agree on the amount.
90 By s 40(1) a party to a case that is not a minor case may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case or the judgment of the Magistrates Court in the case provided the appeal is commenced within 21 days. The appeal is to be conducted in accordance with the rules of court made by the District Court.
91 By s 42 a party to an appeal made to the District Court may appeal to the Court of Appeal against the District Court's judgment on the appeal.
92 By s 43(7) the appeal court may give any judgment and make any order that the Magistrates Court could have given or made and may make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court.
93 Finally, before leaving the review of the statutory provisions, I must refer to s 37 of the Supreme Court Act concerning costs. It reads as follows:
(1) Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom
- or out of what estate, fund, or property, and to what extent such costs are to be paid.
- (2) Nothing in this section shall alter the practice in proceedings in relation to the prerogative and criminal jurisdiction of the Court.
General observations
94 Counsel for the respondent sought to persuade me that the proceedings before the magistrate could not be characterised as criminal proceedings because they could not, and did not, lead to a conviction or acquittal of an offence.
95 This meant in turn that the ruling whereby the magistrate determined that the subject warrant was invalid could not be regarded as a 'decision' of a court of summary jurisdiction within the meaning attributed to that term by s 6 of the Criminal Appeals Act.
96 Section 7 of the Criminal Appeals Act appears to confine the right of appeal to the Supreme Court under that Act to a person who is aggrieved by a 'decision' of a court of summary jurisdiction. It followed from all of this, counsel contended, that the proceedings before me, which had purportedly been brought as an appeal to a single judge pursuant to the Criminal Appeals Act and pt 14 of the Criminal Procedure Rules, were misconceived.
97 According to counsel for the respondent, the proceedings before the learned magistrate were civil proceedings with the result that, in the absence of any clear prescription in s 86 of the Service and Execution of Process Act as to how the review allowed for by that provision was to be conducted, the matter was governed by the rules concerning appeals from the civil jurisdiction of the Magistrates Court.
98 However, as the matter had been brought before the Supreme Court, albeit in an irregular manner, it was open to a single judge of the Supreme Court pursuant to s 37 of the Supreme Court to award costs against the appellant, as the party who had decided not to pursue the purported appeal, in respect of the proceedings in both the Magistrates Court and the Supreme Court.
99 At a first glance there appears to be some force in these contentions. In Loveridge v Commissioner of Police for South Australia (2004) 146 A Crim R 84; [2004] SASC 195 White J held that the function exercised by a magistrate under s 83 of the Service and Execution of Process Act is administrative in nature.
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100 White J observed also at 39 that in exercising the right to review pursuant to s 86 of the Service and Execution of Process Act, the Supreme Court is exercising judicial power. See Aston v Irvine, Jenkins & Conway (1955) 92 CLR 353.
101 This line of reasoning appears to be consistent with other decided cases in which it has been found necessary to characterise the exact nature of powers being exercised by a magistrate.
102 For example, in R v Murphy (1985) 158 CLR 596 the High Court observed at 616 that traditionally committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights.
103 However, the High Court observed also at 614 and 616 that the relationship between committal proceedings and the trial of an indictable offence is such that they are part of the matter which the trial ultimately determines. It follows that to make provision for the conduct of committal proceedings is incidental to the investing of a state court with jurisdiction to try an indictable offence against the law of the Commonwealth. Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of an indictment and trial by jury.
104 When I apply these observations to the present case, it strikes me that, contrary to the submissions of counsel for the respondent, it may not necessarily be decisive that the proceedings before the magistrate, being administrative in their nature, were not criminal proceedings, for it emerges from the reasoning of the High Court that an administrative function can be so closely linked to the institution of criminal proceedings as to be incidental to the investing of a state court with jurisdiction to deal with matters arising under a Commonwealth statute. Indeed, it is significant that by s 3 of the Service and Execution of Process Act a 'criminal proceeding' means not only a prosecution for an offence but also a proceeding that is related to or associated with an offence.
105 Moreover, it is important to keep in mind that an appeal, or a facility for a review in the nature of an appeal, is not a common law remedy the scope of which may ultimately be determined by reference to the essential nature of the proceedings sought to be challenged. A right of appeal or review depends entirely upon the language used in the statute or instrument providing the right: Grierson v The King (1938) 60 CLR 431.
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- It is well settled that it is the terms of the statutory grant of a right of appeal which determine its nature: Elliott v The Queen; Blessington v The Queen [2007] HCA 51 at [7].
106 All of this suggests to me that even though the magistrate's ruling in the present case can properly be characterised as an administrative decision, a characterisation of that kind need not, of itself, prevent an appeal against the decision being treated as an appeal arising out of criminal proceedings. This is because the function being performed, albeit administrative, is related to or associated with the prosecution of an offence. The crucial question is whether, upon a close examination of the relevant provisions, it emerges that the matter is to be dealt with as if it were an appeal of that kind.
107 In the present case, the relevant provisions strongly suggest that the review allowed for by s 86 of the Service and Execution of Process Act is to be treated as being in the nature of an appeal to the Supreme Court in a criminal proceeding. Section 86(4), in dealing with service of the notice of application, contains words to this effect:
Service of the notice of application on the respondent must be effected in the same way as service of a notice of an appeal to the Supreme Court of the State in a criminal proceeding.
108 The definition of 'criminal proceeding' in the Service and Execution of Process Act, as I pointed out a moment ago, is broad enough to embrace a ruling as to the validity of the subject warrant; that is, it is a proceeding related to or associated with the prosecution of an offence. Further, O 81B r 4 of the Rules of the Supreme Court provide for the Criminal Procedure Rules to apply to a review under pt 5 of the Service and Execution of Process Act, being a review of the kind sought in the present case. Rule 77 of the Criminal Procedure Rules goes on to provide expressly for an application for a review to be advanced as an appeal against a decision of a court of summary jurisdiction in the manner allowed for by the Criminal Appeals Act and pt 14 of the Rules 'with any necessary changes'.
109 I am conscious also that the submissions of the respondent did not contain any persuasive explanation as to the basis upon which it might be open to a single judge of the Supreme Court to disregard the provisions just mentioned which appear to contemplate that an application for review is to be treated as an appeal arising out of a criminal proceeding.
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110 Counsel for the respondent stood principally upon his contention that the magistrate was dealing with civil proceedings. He argued that the Service and Execution of Process Act was intended to 'cover the field' concerning reviews, and, being Commonwealth legislation dealing with civil proceedings, the jurisdiction in question could not be modified or supplemented by rules of court in this state which were inconsistent with the Commonwealth legislation.
111 To my mind, this line of argument is not persuasive. First, for the reasons I have given, the provisions of the Service and Execution of Process Act clearly contemplate that an administrative function related to or associated with criminal proceedings can, for procedural purposes, if the matter is reviewed, be treated as a criminal proceeding.
112 Second, in the absence of a clear prescription in the Commonwealth Act as to how a review is to be conducted, it cannot be said that the Commonwealth legislation has covered the field. For the reasons I have given, it is consistent with that legislation for state provisions concerning appeals from courts of summary jurisdiction to be utilised.
Conclusion
113 Having regard to the observations I have just made, I am of the view that a challenge to the magistrate's ruling by way of the review allowed for by s 86 of the Service and Execution of Process Act is to be instituted and advanced as an appeal against the decision of a court of summary jurisdiction in the manner allowed for by the Criminal Appeals Act.
114 This view of the matter is provided for expressly by O 81B r 4 of the Rules of the Supreme Court and by r 77 of the Criminal Procedure Rules. The latter allows for the appeal procedure concerning a court of summary jurisdiction to be followed 'with any necessary changes'. Section 3 of the Criminal Appeals Act provides that the Act is 'to be read with' the Criminal Procedure Act.
115 To my mind, these provisions, considered in combination, allow for the magistrate's ruling in the present case to be treated as a decision of a court of summary jurisdiction which can be the subject of an appeal under pt 2 of the Criminal Appeals Act.
116 It follows from these observations that, in my view, the review in the present case was correctly instituted by the appellant's Notice of Appeal dated 31 July 2007. It follows also that it was therefore open to the
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- appellant to discontinue the appeal by filing and serving the Notice of Discontinuance dated 15 October 2007.
117 Further, it follows from these findings that the costs of the appeal are to be dealt with by r 72(4) of the Criminal Procedure Rules, (being a provision directed specifically to discontinuance) which provides that, unless a judge otherwise orders, an appellant who discontinues an appeal must pay the respondent's costs in respect of the appeal which must be taxed if they are not agreed.
118 I do not consider that I have power to make any order concerning the costs of the proceedings before the magistrate because a power of that kind, as indicated in earlier discussion, only arises if the appeal proceeds to a hearing at which final orders are made bearing upon the outcome in the court of first instance. That did not happen in this present case. Moreover, the only order made by the magistrate was that the costs be reserved. It will, therefore, be necessary for the parties to return to the magistrate for any further order as to costs in respect of the proceedings before him.
Further matters
119 I must now digress to deal with another issue raised by counsel for the respondent, being a matter I touched upon in earlier discussion. It was said that it was not open to counsel for the appellant, Mr Dempster, being counsel acting under instruction from the Director of Public Prosecutions in the State of Western Australia ('DPP'), to initiate an appeal with the result that the purported appeal was a nullity.
120 Counsel for the respondent submitted that the functions of the DPP in this state are set out in pt 3 of the Director of Public Prosecutions Act 1991 (WA). By s 10(1) the functions of the Director are performed on behalf of the state. By s 10(2) where any aspect of the investigation and prosecution of an offence is the subject of a national co-operative scheme or of an inter-governmental arrangement, the Director shall have regard to and seek to give effect to that scheme or arrangement, its objectives and the policies being pursued under it, in the performance of the functions of the Director.
121 Section 11 provides that it is the function of the Director to commence and conduct the prosecution of any offence. By s 13 it is a function of the Director to bring and conduct, or to conduct as respondent, any appeal or further appeal relating to a prosecution. By s 14 it is a function of the Director to take steps to secure the extradition to Western
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- Australia of any person required to answer any charge of an offence or to serve a sentence imposed in Western Australia.
122 Counsel for the respondent submitted that the extradition function specified in s 14 of the Act is limited to steps for securing extradition to Western Australia. Section 10(2) does not apply to an extradition proceeding because it is confined to 'an offence', being an offence against a law of the state or against a law of the Commonwealth or against a law of the United Kingdom if the offence is triable in this state.
123 Section 17 of the Act provides that it is a function of the Director to provide assistance in this state in respect of a corresponding function of a corresponding public officer; that is, a public officer having corresponding functions in the jurisdiction of another state. By s 18 it is a function of the Director to conduct any proceedings that are connected with or arise out of a function of the Director or otherwise to do anything that is incidental or conducive to the performance of a function of the Director.
124 Section 20 of the Act provides that the Director has power to do all things that are necessary or convenient to be done for the purpose of performing functions of the Director.
125 Counsel for the respondent submitted that the DPP's functions and powers were limited to assisting Directors of Public Prosecutions in other states. However, the DPP in this state was not empowered by s 17 or any of the related provisions to providing assistance to or legal representation for the subject appeal to a member of the police service in Victoria.
126 During the course of the hearing before me a document was handed up by consent of counsel with a view to clarifying the background to the present appeal. This was a faxed letter dated 23 July 2007 on the letterhead of the Office of Public Prosecutions in Victoria to the Director of Public Prosecutions in Western Australia, Mr Robert Cock.
127 The author of the letter explained that he was writing 'on behalf of Mr Paul Coghlan QC Vic DPP'. Mr Cock's assistance was sought in relation to extradition proceedings against Mr Marchesi which were listed for hearing at the Perth Magistrates Court on the following day, being Tuesday, 24 July 2007. The author of the letter noted that the application was adjourned from last Friday as the defence wanted to challenge the extradition on the basis that it was an abuse of process.
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128 The author went on to explain that Mr Marchesi and his co-accused had been previously acquitted of an alleged conspiracy to sell drugs on the basis that no offence had been committed in Western Australia. It had therefore been decided that they ought to be presented for trial in Victoria. It was said further that Mr Marchesi was arrested in Western Australia and the Victorian police informant, Sergeant David D'Adamo, had commenced extradition proceedings against Marchesi.
129 The letter concluded as follows:
Given the challenge to the extradition application Sergeant D'Adamo has asked if a crown prosecutor can represent him in this application. Accordingly, Mr Coghlan would be pleased if you can appoint a crown prosecutor to assist in this application.
Sergeant D'Adamo will be travelling to Perth this afternoon and can be contacted on mobile.
Thank you for your assistance in this matter.
130 At the hearing before me concerning the costs of the appeal, counsel for the appellant submitted that this letter amounted to a request for co-operation and assistance of the kind allowed for by the provisions of the Director of Public Prosecutions Act (WA). It is a function of the Director in this state to provide assistance in respect to the corresponding function of a corresponding public officer in another state. It was against this background of this and related communications that Mr Dempster represented the appellant at the proceedings before the magistrate and, pursuant to further instructions, initiated the appeal.
131 Counsel for the appellant accepted that in reality the party standing behind the appellant, namely, David D'Adamo, was the Victorian Chief Commissioner of Police and that this might have a bearing upon an award of non-party costs.
132 I am of the view, and so find, that in responding to the request for assistance mentioned earlier the Director of Public Prosecutions in this state was acting in accordance with his statutory functions and within the power allowed to him by s 20 of the Act to do all things that are necessary or convenient to be done for the purpose of performing the functions of the Director. Accordingly, I do not consider that the appeal can be characterised as a nullity due to an alleged non-compliance with provisions of the Director of Public Prosecutions Act. It follows that as to the question of costs nothing turns upon this issue.
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Further issues as to costs
133 I have held that the appeal in question was properly instituted. However, as a consequence of the appeal being discontinued, the respondent is entitled to recover costs against the appellant pursuant to r 72(4) of the Criminal Procedure Rules whereby an appellant who discontinues must pay the respondent's costs in respect of the appeal, unless a judge orders otherwise. The costs must be taxed if they are not agreed.
134 It emerges from earlier discussion that where a discretion is allowed to a court to make an order in respect of costs, it will be open to the court to make an order for costs against a person whether that person is formally a party to the proceedings or not. Such an order may be made where the non-party has played an active part or has an interest in the subject matter of the litigation. Nevertheless, the power to award costs against non-parties is to be exercised with caution and restraint, and the circumstances in which it will be just to do so will be rare and exceptional: Money Tree Management Services.
135 Counsel for the appellant appeared to accept in the course of argument that the Victorian Commissioner of Police was the party standing behind the appellant, and was a party with a significant interest in the conduct and outcome of the extradition proceedings. Indeed, counsel had indicated that in the event of it being possible to agree consent orders, there would have been no objection to an order for costs being made against the Victorian Chief Commissioner of Police.
136 In these circumstances, bearing in mind that, for the reasons I have given, I am empowered to deal only with the costs of the appeal, I consider that it is appropriate in the circumstances of this case for an order to be made against the Victorian Chief Commissioner of Police.
137 This leaves outstanding the submission made by counsel for the respondent that costs should be awarded upon an indemnity basis.
138 The decided cases concerning indemnity costs for the most part arise in the context of commercial litigation. In Re Malley SM; Ex parte Gardner [2001] WASCA 83, being a case involving an application for a writ of certiorari directed to a mining warden, McKechnie J observed that a special costs order of this nature will only be made in exceptional circumstances. However, as the case before him was not a case where the applicant, properly advised, should have known his case was manifestly
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- unarguable, with no chance of success, it was not a case where a special order was appropriate.
139 It seems that an order for indemnity costs may also be made against non-parties who sought to advance their own interests by behaving dishonestly in the litigation: Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558 at 560.
140 In the absence of a statutory provision or clear authority bearing upon the point, there is room for argument as to whether the provision in r 72(4) allowing for an award of costs upon discontinuance of an appeal empowers me to make an award of indemnity costs. The considerations which govern the conduct of commercial litigation in the case management era are not necessarily the same as the matters to be kept under notice in regard to an appeal from orders made in the course of criminal proceedings, or a procedure for review related to or associated with criminal proceedings.
141 On the other hand, it can be argued that the power to award costs upon discontinuance pursuant to r 72(4) is supplemented by s 41(1)(e) of the Criminal Appeals Act which permits the court, for the purposes of dealing with an appeal, to exercise any power that the Supreme Court may exercise in a civil case. To my mind, this is the more convincing view, and I therefore consider that I have power to award indemnity costs, if such an award can be justified.
142 This brings me back to the circumstances of the present case. As I have indicated, I am of the view that I can deal only with the costs of the appeal. As to those costs, notwithstanding the facts and matters referred to in the affidavit of Justine Fisher, I do not consider that there is any or any untoward or unreasonable conduct upon the part of the appellant sufficient to justify an award of indemnity costs.
143 I have found that the appeal was validly instituted. The appellant was obliged to approach the court for leave to appeal. On 17 August 2007 orders were made by McKechnie J for the application for leave and the appeal to be argued at one time. It does not appear to me that the ground of appeal relied upon was manifestly untenable or without foundation because ultimately the case turned upon an ambiguity in the completion of a printed form, and there was room for argument about what exactly was being asserted.
144 It follows that, in my view, the appellant cannot be said to have unnecessarily prolonged the proceedings or created unnecessary expense.
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- Notice that the appeal would be discontinued was faxed to the solicitor for the respondent on the afternoon of 15 October, being several days prior to the listed hearing date. The respondent and his advisers had sufficient time to consider their position.
Summary
145 In summary, I consider, and so find, that the appeal was validly instituted by the Notice of Appeal dated 31 July 2007. I consider that the appeal was brought to an end by the filing and serving of the appellant's Notice of Discontinuance dated 15 October 2007, without any further order being required.
146 I am of the view that the power to award costs upon discontinuance allowed for by r 72(4) of the Criminal Procedure Rules is a discretionary power which enables the court to award costs against a non-party. Such an order is justified in the circumstances of the present case. I have not been satisfied that this is a case in which an award of indemnity costs should be made.
147 In the circumstances of the present case, where the appeal was brought to an end by discontinuance, the court is not empowered to make an order in respect of costs concerning the proceedings in the Magistrates Court. Bearing in mind that the costs in the Magistrates Court were reserved, it will therefore be necessary for the parties to the appeal to return to the magistrate in order to obtain any further orders in that regard.
148 It follows from these various findings that the order to be made in respect of the appeal is that the Victorian Chief Commissioner of Police is to pay the respondent's costs of the appeal to be taxed if not agreed. I will hear from the parties as to whether any further orders or directions are required.
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