Healey v Commissioner of Taxation

[2006] NSWSC 1148

CITATION:	Healey v Commissioner of Taxation [2006] NSWSC 1148
HEARING DATE(S):	In written submissions only.
JUDGMENT DATE :	2 November 2006
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J at 1
DECISION:	Each party to pay his or its own costs of and incidental to the proceedings, including the costs associated with dispute on costs. ; Otherwise, proceedings dismissed.
CATCHWORDS:	CRIMINAL LAW - COSTS OF APPEAL - appellant successful on grounds not directly raised - Magistrate excluded a relevant matter from exercise of discretion - error in law - challenge to jurisdiction of the Court to award costs against Commonwealth - Local Court matter not yet reached final determination - costs on appeal distinguished from costs on trial - costs need not necessarily follow the event - each party to pay own costs
LEGISLATION CITED:	Judiciary Act 1903 (Cth) Costs in Criminal Cases Act 1967 (NSW) Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Crimes Act 1914 (Cth)
CASES CITED:	Healey v Commissioner of Taxation [2006] NSWSC 853 Solomons v District Court of NSW (2002) 211 CLR 119 Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 Wickstead v Browne (1992) 30 NSWLR 1
PARTIES:	Gregory Harrison Healey Commissioner of Taxation
FILE NUMBER(S):	SC 12764/06
SOLICITORS:	A: Ms Joanna Brouwer R: Mr T Saunders (CDPP)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	741/2006
LOWER COURT JUDICIAL OFFICER :	Lulham LCM
LOWER COURT DATE OF DECISION:	17 May 2006

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

THURSDAY, 2 NOVEMBER 2006

12764/2006 HEALEY v COMMISSIONER OF TAXATION (No. 2)

JUDGMENT

1 HIS HONOUR: On 22 August 2006, the Court as presently constituted determined an appeal by Gregory Harrison Healey against a judgment of a Magistrate, His Honour Lulham LCM, given on 17 May 2006. The judgment of 22 August 2006 (Healey v Commissioner of Taxation [2006] NSWSC 853) granted the appeal, quashed the orders made and remitted the original application to the Local Court to be dealt with in accordance with law. I reserved to the parties any application they wish to make on the question of costs. This judgment deals with costs.

2 The plaintiff, by written submissions, sought costs of and incidental to the proceedings in this Court subsequent to the handing down of the August judgment.

3 I do not intend to summarise the August judgment. It is sufficient for my purposes to note that the appeal was successful on grounds not directly raised by the plaintiff, being that the Magistrate excluded from his exercise of discretion a relevant matter and thereby erred in law and vitiated the discretion exercised.

4 The defendant opposes the award of costs and does so on the basis of the discretion of the Court and also on the basis of the jurisdiction of the Court. The jurisdictional argument relies upon the judgment of the High Court in Solomons v District Court of New South Wales (2002) 211 CLR 119. That judgment, confirming a judgment of the Court of Appeal of the Supreme Court, determined that the provisions of the Judiciary Act 1903 (Cwth) do not render applicable the Costs inCriminal Cases Act 1967 (NSW) to a trial and acquittal in a New South Wales state court on an indictment charging offences under law of the Commonwealth.

5 The prosecution of the plaintiff in the Local Court by the defendant, which prosecution was continuing at the time of the appeal, was, of course, not a trial on indictment and, as yet, there has been no acquittal or otherwise. The costs that are being sought are the costs of the appeal under the Crimes (Local Courts Appeal and Review) Act2001.

6 There are a number of distinguishing features between the entitlement to costs on such an appeal and the right of a trial judge to order costs on trial and acquittal. Apart from the more subtle distinctions, costs of an appeal of this kind are dealt with, at least in part, by s 98 of the Civil Procedure Act2005 (previously s 76 of the Supreme Court Act) and by s 70 of the Crimes (Local Courts Appeal and Review) Act2001; they are not dealt with by the Costs inCriminal Cases Act1967.

7 Interesting as the jurisdictional issue is, it is unnecessary for me to determine it. As the defendant in this proceeding points out, and as is stated above, the appeal succeeded on a point that was not raised in the court below or on appeal in this Court. The learned Magistrate allowed an amendment by the Commissioner of a highly technical nature. The Commissioner had inadvertently misspelt the name of the defendant. The Magistrate did so under the provisions of s 15C of the Crimes Act 1914 (Cwth). The plaintiff argued in the appeal proceedings that s 15C was inapplicable. I rejected that argument. However, as earlier indicated, I took the view that the Magistrate was too narrow in determining the matters that could be taken into account in the exercise of the discretion reposed in the Local Court.

8 In remitting the matter back to the Local Court, I made it clear that the Magistrate was able to take into account certain matters and, once he did, may come to the same view as originally taken. These are matters of discretion in areas of practice and procedure.

9 Given the nature of the matter and the fact that the plaintiff succeeded on a ground not argued in the court below or on appeal, it is within the discretion of this Court that any order for costs would not necessarily follow the event: Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17 at 24; Wickstead v Browne (1992) 30 NSWLR 1 at 19.

10 In the exercise of the discretion of the Court, I order that each party pay its or his own costs of and incidental to the proceedings, including the costs associated with this dispute on costs. Otherwise, the proceedings are dismissed.

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