Director of Public Prosecutions v Sabranksy (No 2)

[2002] VSC 159

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6685 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Alan Donald Mooney)	Appellant
v
SUSAN SABRANSKY	Respondent

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JUDGE:	Kellam J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2002
DATE OF JUDGMENT:	7 May 2002
CASE MAY BE CITED AS:	DPP v Sabranksy (No. 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 159

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Practice and procedure – costs - appeal from decision of Magistrates' Court – appeal dismissed as incompetent – appropriate costs order.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. McArdle QC	Solicitor for Public Prosecutions
For the Respondent	Mr G. Hardy	George Schifter Johannson & Co

HIS HONOUR:

1. The appeal brought in this matter by the Director of Public Prosecutions on behalf of the informant in relation to an order made in a Magistrates' Court criminal proceeding was dismissed by me on 30 April 2002 as being incompetent (see [2002] VSC 143). I found the appeal to be incompetent on the basis that the order of the Magistrate which was sought to be appealed was not a final order and thus not amenable to appeal pursuant to s.92 of the Magistrates' Court Act 1989.

1. The respondent, through her counsel, Mr Hardy, submits that the respondent's costs should be paid by the appellant and, furthermore, that

" …  The guidelines of the Court of Appeal endorse the conclusion that the order for costs should be as between solicitor and client."

1. This latter submission is based upon the order made by the Court of Appeal in Sher v DPP [2001] VSCA 110, 120 A Crim R 585.

1. Mr McArdle QC, who appears on behalf of the appellant and who does not contend other than that the appellant should pay the costs of the respondent, nevertheless submits that because the argument that the order of the Magistrate was not a final order was not raised prior to the hearing before me, costs should be payable only up to the point of the application made before the Master pursuant to Part 3 of Order 58 of the rules.  Furthermore, the appellant opposes an order for costs to be taxed as between solicitor and client. 

1. A short summary of the history of the proceedings is appropriate.  The order of the Magistrate was made on 3 August 2000.  Subsequent thereto and pursuant to Rule 58.07 an application was made by the appellant to a Master for an order under Rule 58.09.  On 11 September 2000 the application came on for hearing before Master Wheeler.  Consistent with the usual process, the respondent did not appear on this occasion.  However, the matter was adjourned by the Master to 27 November 2000, and on 1 December 2000 the Master granted the application and made directions.  Subsequent upon service of the order of the Master dated 1 December 2000 the respondent, on 8 February 2001, filed a summons returnable before the Master on 1 March 2001, seeking to have the order set aside or waived pursuant to Rule 58.11.  Mr Hardy of Counsel appeared for the respondent on 1 March 2001.  Mr Hardy made a number of submissions in relation to the question of law to be referred to the Court in consequence of which Master Wheeler amended the question of law which had been stated by him by way of order dated 1 December 2000. Mr Hardy made no submission before Master Wheeler that there was any issue as to the jurisdiction of the Court. 

1. The matter came on before me on 26 July 2001. Written submissions were provided to me by both the appellant and the respondent at the commencement of the hearing of the proceeding. Neither of those written submissions referred to the issue of whether or not the order made by the Magistrate was a final order within the meaning of s.92 of the Magistrates' Court Act.  However, at an early stage in the hearing before me, Mr Hardy informed me that he relied upon a submission that the order of the Magistrate was not a final order.  In the circumstances, and in order to save the parties time and cost, it was decided that the hearing should proceed and that the preliminary issue as to whether or not the order of the Magistrate was a final order would be decided at the completion of the hearing. 

1. No doubt, had the issue of whether or not the order made by the Magistrate was a final order been agitated before Master Wheeler, he would have determined the matter.  However, it does not appear to me that costs should be awarded to the appellant only up to the date of the order made by the Master.  First, it must be remembered that there is no obligation for a respondent to appear before a Master.  The respondent appeared before the Master, pursuant to Rule 58.11, seeking to vary the question of law to be referred and, furthermore, seeking to strike out affidavit material upon which the appellant relied.  There are no pleadings in an appeal from the Magistrates' Court and thus, the respondent is not required to state any defence.  Whilst it is true that had the issue of whether or not the order of the Magistrate was a final order been raised earlier in this proceeding, costs may well have been reduced, it does not appear to me that the respondent intended to "ambush" the appellant or to seek a forensic advantage by the late raising of the issue.  Rather, it appears to me, that the point in question occurred to counsel for the respondent a short time before the hearing commenced before me.  Clearly, the matter did take the appellant by surprise, as Mr McArdle sought and was granted permission to respond to the matter by way of written submission.  However, in all the circumstances before me, it appears to me to be appropriate for an order to be made that the respondent's costs of the proceeding be paid by the informant. 

1. Mr Hardy submits that the costs order should be on a solicitor‑client basis.  I reject the suggestion that the decision in Sher v DPP can be said to be a "guideline".  In my view, it is clear that the order for costs on a solicitor‑client basis made in that case depended upon the facts of the case.  In Bass Coast Shire Council v King [1997] 2 VR 5 at 29, the learned President of the Court of Appeal warned against reference to other cases for the purpose of establishing inflexible guidelines which should be determinative of the manner in which the Court's discretion is to be exercised. It is clear, in my view, that the authorities which deal with this issue recognise that, although ordinarily the Court will order that the unsuccessful party pay the costs of the successful party on a party and party basis, it may order that the costs be paid on a solicitor‑client basis where it is satisfied that there are "special" or "unusual" aspects of the case which bring it out of the ordinary. See PCRZ Investments Pty Ltd v National Golf Holdings Ltd & Anor [2002] VSCA 24. In my view, there is nothing special or unusual about the case currently before me and accordingly, it is appropriate that I order that the respondent's costs of this proceeding be taxed as between party and party. I propose to order that such taxed costs be paid by the informant, Adam Donald Mooney. I note that s.131(2)(c) of the Magistrates' Court Act 1989 requires that if the Magistrates' Court determines to award costs against an informant who is a member of the Police Force, the order must be made against the Chief Commissioner of Police. That section, of course, refers only to costs of proceedings in the Magistrates' Court. I assume, however, that notwithstanding the fact that no such provision applies to an appeal from the Magistrates' Court to this Court, the Chief Commissioner of Police will nevertheless be responsible for the payment of the costs ordered to be paid by the informant.

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