Gee v Office of the Director of Public Prosecutions NSW

[2019] NSWSC 618

Supreme Court

New South Wales

Medium Neutral Citation:

Gee v Office of the Director of Public Prosecutions NSW [2019] NSWSC 618

Hearing dates:

24 May 2019

Decision date:

24 May 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) By consent, and pursuant to s 69 of the Supreme Court Act 1970 (NSW), set aside the decision of Day LCM made on 12 September 2018 at the Local Court at Orange to refuse a certificate under the Costs in Criminal Cases Act 1967 (NSW).

 

(2) By consent, order that the plaintiffs’ application for a costs certificate be remitted to the Local Court to be determined according to law.

 (3) Order that each party pay his or her own costs of the proceedings in this Court.

Catchwords:

COSTS – whether compromise as to plaintiffs’ secondary case entitles plaintiffs to their costs – definition of “event” in principle that costs follow the event – plaintiffs withdrew claim for principal relief shortly prior to hearing – no issue as to alternative relief – appropriate that each party pay own costs

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW) s 3
Crimes Act 1900 (NSW) ss 319, 323
Crimes (Appeal and Review) Act 2001 s 53(3)(b)
Local Court Act 2007 (NSW) s 70(1)(c)
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 42.1, 50.14

Cases Cited:

Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Category:

Principal judgment

Parties:

Vicki Gee (First Plaintiff)
Mark Gee (Second Plaintiff)
Director of Public Prosecutions (NSW) (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
T Jones (Plaintiffs)
B Baker (First Defendant)

  Solicitors:
Toby Tancred Solicitor (Plaintiffs)
Director of Public Prosecutions (NSW) (First Defendant)

File Number(s):

2018/308200

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Date of Decision:

12 September 2018

Before:

Day LCM

File Number(s):

2016/319872; 2016/319849

Judgment

Introduction

1. By summons filed on 9 October 2018, Vicki and Mark Gee (the plaintiffs) sought leave to appeal under s 70(1)(c) of the Local Court Act 2007 (NSW) against the decision of Day LCM made on 12 September 2018 refusing to grant a certificate to them (the Decision) pursuant to s 3 of the Costs in Criminal Cases Act 1967 (NSW) (the CCC Act). The Director of Public Prosecutions (NSW) (the DPP) is the first defendant. The Local Court, the second defendant, has filed a submitting appearance.

2. By amended summons filed on 7 May 2019, the plaintiffs sought relief under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act) and, in the alternative, under s 69 of the Supreme Court Act 1970 (NSW). The primary relief sought was that the Decision be set aside and that this Court grant a certificate to the plaintiffs pursuant to s 3 of the CCC Act.

3. The DPP indicated, in written submissions dated 17 May 2019, that he accepted that the Decision ought be set aside pursuant to s 69 of the Supreme Court Act on the basis of an error of law on the face of the record.

4. Ultimately, the plaintiffs accepted the DPP’s contention and the concession and did not press their appeal under the Local Court Act, which depended on there being an avenue of appeal pursuant to s 53(3)(b) of the CAR Act. The parties propose that I make orders by consent setting aside the Decision and remitting the plaintiffs’ application to the Local Court to be determined according to law.

5. The plaintiffs sought an order that the DPP pay their costs. The DPP resisted the order sought and contended that the appropriate order is that the parties bear their own costs of the proceedings.

6. As the principal relief sought is not opposed, it is not necessary to give detailed reasons for making the order. However, I am required to be satisfied that it is appropriate to order that the Decision be set aside and give reasons for making the order.

The facts and legislation relevant to setting aside the Decision

7. On 26 October 2016 each of the plaintiffs was charged with perverting the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). On 23 June 2017, following representations made to the DPP on their behalf, the s 319 charges were withdrawn and substituted with charges of doing an act with intent to influence witnesses contrary to s 323(a) of the Crimes Act.

8. The charges against the plaintiff were heard by Day LCM in the Local Court at Orange on 30 January 2018 and 30 May 2018. Proof of the charges depended on the evidence of Ms A, the principal witness for the prosecution. On 30 May 2018 Day LCM dismissed the charges and gave an ex tempore judgment in which he described Ms A as an “extremely unsatisfactory witness”.

9. Following the dismissal of the charges, the plaintiffs sought a certificate under s 3 of the CCC Act, the relevant provisions of which are as follows:

“2   Certificate may be granted

(1)  The . . . Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a)  where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned. . .

. . .

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

. . .

3   Form of certificate

(1)  A certificate granted under this Act shall specify that, in the opinion of the Court or . . . Magistrate granting the certificate:

(a)  if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b)  that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.”

10. The plaintiffs’ application was heard and determined by Day LCM on 12 September 2018. In refusing the plaintiffs’ application for a costs certificate, his Honour said:

"It was clear to me that [the prosecutor] did not expect the situation which confronted him. I formed the view that because of [Ms A's] treatment, her recollection was either non-existent or unreliable... It became evident that the prosecution must fail because of [Ms A's] unreliability."

11. His Honour then referred to, but did not set out, s 3 of the CCC Act. His Honour referred to Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 (Kanan) at 264 which he said indicated that “one way of testing whether a proceeding was instituted without reasonable cause was to ask whether on the facts apparent to the applicant at the time of instituting the proceedings there was no substantial prospects of success”. Magistrate Day stated that Kanan provided a “useful analytical tool in looking at whether the proceedings were commenced unreasonably.”

12. His Honour said, in conclusion:

"Having regard to the existence of [Ms A's] statements it seems to me that it was reasonable to commence the proceedings. The Crown cases against [the plaintiffs] failed because [Ms A] was incapable of or unwilling to remember events combined with the relevant memory refreshing statement not satisfying the need for it to be fresh in her mind when the statement was made. There was nothing to suggest that the Director of Public Prosecutions expected these developments and indeed the progress of the trial before me clearly demonstrated her memory failure was unexpected.”

13. His Honour determined that, in these circumstances, the reasonableness requirement in s 3 of the CCC Act was not met and dismissed the plaintiffs' application for a costs certificate.

Consideration of whether the Decision should be set aside

14. In deciding whether to grant a certificate under s 3 of the CCC Act, the magistrate applied the wrong test. His Honour was required, by s 3, to consider whether “if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.” The reasons of the magistrate which are extracted above indicate that the magistrate considered that the question of reasonableness ought be determined on the basis of matters known to the prosecutor before the prosecution was instituted. Thus, the magistrate took out of account matters which emerged in the course of the hearing, and, in particular, the unreliability of Ms A as a witness.

15. As his Honour applied the wrong statutory test, the Decision must be set aside for error of law on the face of the record and jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (McHugh, Gummow and Hayne JJ).

The plaintiffs’ application for an order for costs of the proceedings

16. The plaintiffs, for whom Mr Jones appeared, submitted that, as they had been successful in obtaining the relief claimed, the general rule that costs ought follow the event should apply: UCPR, r 42.1.

17. Ms Baker, who appeared for the DPP, contended that the plaintiffs had failed to obtain the primary relief they sought, that this Court grant a costs certificate to them, and that therefore they ought not to be adjudged to have “succeeded”. Further, and in the alternative, she submitted that a costs order ought not be made in the plaintiffs’ favour, having regard to their conduct of the proceedings.

The procedural history of the proceedings in this Court

18. In order to address these submissions, it is necessary to set out in some detail the procedural history of the proceedings in this Court.

19. As referred to above, the plaintiffs in their original summons filed on 8 October 2018 sought leave to appeal under s 70 of the Local Court Act, which relevantly provides:

“70   Appeals

(1)  In relation to any order arising from an application notice:

. . .

(c)  an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001,

in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.”

20. At the first directions hearing on 18 October 2018, the DPP raised the question whether the summons was properly brought under s 70(1)(c) of the Local Court Act. At that directions hearing the plaintiffs were directed to file an affidavit in accordance with Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.14 by 4 December 2018. The proceedings were listed for further directions on 11 December 2018.

21. On 28 November 2018 the plaintiffs filed an affidavit pursuant to UCPR, r 50.14 sworn by the plaintiffs’ solicitor which exhibited the material from the court below germane to the proceedings in this Court. The material included the transcript of proceedings, the application for costs certificates and the reasons of the magistrate for dismissing the charges and refusing to grant the costs certificate.

22. Correspondence ensued between the parties between 5 and 10 December 2018. At the further directions hearing on 11 December 2018, the DPP indicated that s 70 did not confer a right of appeal and that judicial review under s 69 of the Supreme Court Act 1970 (NSW) was the appropriate avenue for relief. By consent, the matter was stood over to 18 December 2018 for further directions.

23. On 17 December 2018 the plaintiffs’ solicitors served a draft amended summons in which the plaintiffs claimed primary relief under s 53 of the CAR Act and alternative relief under s 69 of the Supreme Court Act. Section 53 of the CAR Act relevantly provides:

“53   Appeals requiring leave

. . .

(3)  Any person against whom:

. . .

(b)  an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.”

24. In the draft amended summons, the plaintiffs continued to press their claim that this Court grant a certificate to the plaintiffs pursuant to s 3 of the CCC Act. The alternative ground, which invoked this Court’s jurisdiction under s 69 of the Supreme Court Act, was as follows:

“In the alternative, the Plaintiffs’ Appeal lies under section 69 of the Supreme Court Act and the matters pleaded at paragraphs 1 to 6 herein constitute justiciable and reviewable jurisdictional error on the part of the court below that would attract the inherent supervisory jurisdiction of this Court.”

25. At the directions hearing on 18 December 2018, the Registrar listed the matter for hearing on 24 May 2019 and directed the plaintiffs to file and serve an amended summons by 21 January 2019 and written submissions by 8 April 2019. Neither of these dates was complied with. The DPP’s solicitor contacted the plaintiffs’ solicitors on a number of occasions to enquire when an amended summons would be filed and when written submissions would be served.

26. On 17 April 2019 the plaintiffs’ solicitor emailed the DPP’s solicitor advising that they would be seeking to have the matter re-listed to seek an extension of time to file the amended summons and provide written submissions.

27. The matter was listed for further directions on 24 April 2019. Orders were made by consent which required the plaintiffs to file and serve their submissions by 3 May 2019 and the DPP to file his submissions by 17 May 2019.

28. When the plaintiffs’ submissions were not filed by 3 May 2019, the DPP’s solicitor contacted the plaintiffs’ solicitors to enquire when they would be filed and served and when the amended summons would be filed. The DPP’s solicitor also informed the plaintiffs’ solicitors that the DPP considered that relief under s 53 of the CAR Act was not available.

29. The amended summons and the plaintiffs’ written submissions were filed on 7 May 2019 and served on 8 May 2019. The amended summons was in the same form as the draft served on 17 December 2018. It included, by way of claim for principal relief, a prayer for this Court to grant a certificate under the CCC Act. Their claim for relief pursuant to s 69 was, as in the earlier draft, put in the alternative.

30. On 17 May 2019, the DPP filed and served his submissions in accordance with the direction made on 24 April 2019. In written submissions, the DPP accepted that relief ought be granted pursuant to s 69 of the Supreme Court Act. However, the DPP contended that relief was not available under the CAR Act on two bases: first, that a decision made by a magistrate whether to issue a costs certificate under s 3 of the CCC Act following dismissal of charges is not “an interlocutory order . . . made by the Local Court in summary proceedings”; and, secondly, that relief ought be refused as a matter of discretion because the magistrate had not actually exercised his discretion and that, in these circumstances, it would be inappropriate for this Court to exercise the discretion.

31. On 20 May 2019 the plaintiffs’ solicitors sent an email to the DPP indicating that relief under the CAR Act was pressed. They sought the DPP’s consent to the granting of a costs certificate by this Court and an order that the DPP pay the plaintiffs’ costs of the proceedings in this Court.

32. On 21 May 2019 the DPP sent an email in response indicating that the DPP did not consent to orders under the CAR Act or the making of a costs order. Later that day, the plaintiffs’ solicitors wrote to the DPP indicating that the plaintiffs no longer pressed their claims for relief under the CAR Act and were content with an order setting aside the Decision and an order remitting the matter to the Local Court.

Consideration

33. In order to have the Decision set aside, the plaintiffs were required to commence proceedings in this Court. The original summons was accepted to be incompetent as it claimed relief under s 70 of the Local Court Act, which was inapplicable. Had the plaintiffs formulated their claim for relief by reference to s 69 of the Supreme Court Act, rather than s 70 of the Local Court Act, there is no reason to suppose that the DPP would not have consented to the making of an order to set aside the Decision. The DPP has consistently opposed an order that this Court grant a certificate to the plaintiffs pursuant to s 3 of the CCC Act or any other relief under the CAR Act. The DPP has, however, been concerned that the proceedings in this Court proceed on a correct juridical basis.

34. The parties agreed that it was not appropriate for me to make any determination of whether the Decision was amenable to an appeal under s 53 of the CAR Act, or, if so, the prospects of success of the claim for relief under that section. The reason for this is that there has not been a contested hearing on the question and such resolution is generally inappropriate in circumstances where parties, in this case the plaintiffs, have decided to agree to a compromised position rather than proceed with the substantive hearing.

35. Mr Jones submitted that the plaintiffs were entitled to their costs in circumstances where the DPP could readily have ascertained from an early stage that the Decision ought be set aside on the basis of jurisdictional error. He contended that the DPP ought to have indicated, prior to 17 May 2019, that they would not oppose such an order being made under s 69 of the Supreme Court Act. He contended that, had the DPP made such an indication in a timely way, many of the plaintiffs’ costs could have been avoided.

36. The general rule is that costs follow the event: UCPR, r 42.1. It is important, in applying the general rule, to identify the relevant “event”. In the present case, what the plaintiffs sought, and what they pressed, from the time of filing the original summons on 9 October 2018, was an order that this Court grant a certificate under s 3 of the CCC Act. The plaintiffs indicated for the first time on 20 May 2019 that they no longer sought such relief. This occurred four days before the hearing on 24 May 2019, which had been allocated by the Registrar on 18 December 2018. As soon as they indicated that they were prepared to accept what the DPP had offered, namely that the DPP would consent to an order setting aside the Decision, there was no longer any need for a contested hearing.

37. Although, for the reasons given above, the plaintiffs’ acceptance of the DPP’s offer cannot be construed as a concession by them that the claim for relief under the CAR Act could not have succeeded, it is significant that the claim for primary relief, which had been pressed for so long, was withdrawn shortly prior to the final hearing.

38. I do not consider the DPP to have been in any way dilatory in making such an offer. As far as the DPP was concerned, the plaintiffs were, until 20 May 2019, claiming primary relief which the DPP contended was not available as a matter of law. Although the DPP has obligations as a model litigant, these obligations do not require it to make an offer to consent to alternate relief, when the primary relief is opposed. I accept that, had the plaintiffs received the DPP’s submissions earlier, the plaintiffs would have incurred fewer costs since they would have decided not to press the primary relief earlier. However, it was the plaintiffs’ responsibility to comply with the directions of the Court and they failed to do so in respect of the filing of the amended summons and the written submissions. The DPP was not entitled to assume that the draft amended summons which was served on 17 December 2018 represented the plaintiffs’ position when the plaintiffs refrained for almost six months from filing it and breached directions for filing their written submissions.

39. Had the plaintiffs filed a summons seeking no more than an order under s 69 of the Supreme Court Act that the Decision be set aside, I infer that the DPP would have consented to the order shortly after the affidavit under UCPR, r 50.14 had been served. All parties would, in that event, have incurred significantly fewer costs. For most of the period for which the proceedings were on foot the “event” for which the plaintiffs contended was an order granting them certificates under s 3 of the CCC Act. They have failed in that application by reason of their decision not to press for such relief or for any of their other claims under the CAR Act. That they have “succeeded” in obtaining their alternative relief, which was not opposed, does not convert their failure on the balance of the proceedings into an outcome which can fairly be regarded as successful for the purposes of costs.

33. For the reasons above, I consider it to be appropriate to order that each party pay his or her own costs.

Orders

41. For the reasons given above I make the following orders:

1. By consent, and pursuant to s 69 of the Supreme Court Act 1970 (NSW), set aside the decision of Day LCM made on 12 September 2018 at the Local Court at Orange to refuse a certificate under the Costs in Criminal Cases Act 1967 (NSW).

2. By consent, order that the plaintiffs’ application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) be remitted to the Local Court to be determined according to law.

3. Order that each party pay his or her own costs of the proceedings in this Court.

**********

Decision last updated: 28 May 2019