Healey v Williams

[1985] FCA 573

Re: BRIAN JOHN HEALEY
And: JONATHAN STEWART WILLIAMS, KENNETH BRUCE HENDERSON
No: G96 OF 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.

CATCHWORDS

Administrative Law - judicial review of magistrate's decision in committal proceedings - defendant discharged under para.41(6)(a) Justices Act (1902) - defendant then dies prior to making of an order under s.41A Justices Act that informant pay defendant's costs - whether power under s.41A exerciseable following death of defendant - principles governing exercise of discretion under s.41A considered.

HEARING

SYDNEY.
#DATE 15:11:1985

ORDER

The application be dismissed.

The applicant, Brian John Healey, pay to the respondent, Kenneth Bruce Henderson, his costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 to review a decision of the first respondent Jonathon Stewart Williams made on 4 April 1985 as presiding magistrate hearing committal proceedings between the applicant Brian John Healey a member of the Australian Federal Police who was the informant and the late Tina Wong, then a defendant in those proceedings. The decision was that the informant, Mr. Healey, pay the defendant, Miss Wong's, costs in the sum of $24,000 in default 12 months hard labour.

1. There were nine charges against the late Tina Wong concerning offences relating to importation, possession and supply of heroin. The hearing of evidence adduced by the Informant, Mr. Healey, commenced on 4 March 1984 and the hearing of this evidence and addresses ended on 20 March 1984, on which date Mr. Williams stated that he had formed the opinion under par.41(2)(b) of the Justices Act 1902 that the evidence was capable of satisfying a jury beyond reasonable doubt that the late Tina Wong had committed the nine offences referred to. From 20 March to 22 March 1985 Mr. Williams heard evidence from the late Tina Wong and witnesses called on her behalf and addresses. On 22 March 1985 at a late hour of the day Mr. Williams stated that he was satisfied in respect of the opinion set out in para.416)(a) in respect of Miss Wong and further stated that he discharged her in respect of the informations presently under consideration by him. He indicated he would give his reasons for his decision on Wednesday 27 March 1985. Counsel for Miss Wong asked for some time to be made available on the Wednesday to deal with an application he would make at that time for costs.

2. On 23 March 1985 the defendant Tina Wong died. On 27 March 1985 Mr. Williams gave his reasons for his decision discharging her and he then heard the application for costs. Counsel who previously appeared for Miss Wong then appeared instructed by the administrator of her estate. Mr. Williams gave his decision on costs on 4 April 1985.

3. The application to review the decision on costs as originally lodged also sought review of the finding and decision of Mr. Williams of 22 March 1985 under para.41(6)(a), but this was not pursued at the hearing before me.

4. The grounds of the application to review the decision on costs were that Mr. Williams improperly exercised his discretionary power under s.41A of the Justices Act 1902 in making the order for costs in that he took irrelevant considerations into account and failed to take relevant considerations into account in the exercise of his said power.

5. It was sought at the hearing to add a further ground to the effect that Mr. Williams was not authorised by s.41A to make the order for costs because Tina Wong had died before that order was made and the proceedings had thereupon abated.

6. Counsel for Kenneth Bruce Henderson the second respondent who was the administrator of the estate of Miss Wong opposed the grant of leave to make this amendment. However, I gave leave to amend the application by adding this ground.

7. Mr. Williams the first respondent was not represented at the hearing before me. He filed an appearance submitting to such order as the Court might make except as to costs.

8. I turn now to the questions raised by this application in respect of s.41A. This section is in the following terms:
   
   

"41A. (1) The Justice or Justices making any order discharging a defendant as to the information then under inquiry may in and by such order adjudge that the informant shall pay to the clerk of the court to be by him paid to the defendant such costs as to such Justice or Justices seem just and reasonable.

(2) The amount so allowed for costs shall in all cases be specified in such order.

(3) The provisions of sections 82, 83 and 84 relating to orders for the payment of costs shall, mutatis mutandis, apply to and in respect of orders for the payment of costs made pursuant to this section."

1. It is convenient to deal first with the question whether, by reason of the death of Miss Wong on 23 March 1985, Mr. Williams lacked power to make the order for costs of 4 April 1985.

2. Under s.41A the power of the Justice to order costs is linked to and dependent upon his making an order discharging a defendant as to the information under inquiry. His power is "in and by such order" to adjudge that the informant shall pay such costs. They are to be payable to the Clerk of the Court to be paid to the defendant. Courts and Justices are familiar with the fact that orders may have several parts. Different parts of an order may be pronounced on or may operate from different dates. In the case of a long and complex committal proceeding such as that of Miss Wong, it may be expected that the presiding Justice would wish to hear argument upon and to give consideration to the questions whether an order for costs should be made and, if so, what should be the amount specified in the order (see sub-s.42A(2)). It may well happen that this cannot be done on the same day as the pronouncement of the decision to discharge the defendant. But it still remains part of the process of ordering the discharge.

3. Had Miss Wong died before pronouncement of the order discharging her from the information under inquiry, I apprehend the magistrate would have been unable to order her discharge because the information would have "lapsed". I find the word "abatement" somewhat awkward when used in relation to committal proceedings. Being unable to order discharge he would have lacked power under s.41A to order costs.

4. However, in the events which happened he pronounced an order discharging Miss Wong on 22 March and adjourned the matter to 27 March to give his reasons and to hear argument on costs. He gave his reasons on 27 March and heard argument on costs. He then gave his reasons for ordering costs and pronounced that part of his total order on 4 April.

5. It does not appear to me that the death of Miss Wong on 23 March terminated the power of the magistrate to complete his order. Her death did not affect the information nor in a practical sense did it render inoperative, as it were, the issue of costs. Miss Wong had over lengthy proceedings incurred indebtedness for legal costs. Any indebtedness in this respect would fall upon her estate. Her legal personal representative would have an obvious interest in the making of an order for costs.

6. Section 41A itself seems to contemplate that in the case of any order (i.e. an order in any circumstances) discharging a defendant as to the information under inquiry in committal proceedings, the Justice may in and by that order adjudge the payment of costs. Once the order discharging the defendant is made and the matter is still before the Justice there would seem to be nothing in the words of the section to preclude the exercise of his discretion as to costs in the event of the defendant's death. The clerk of the court to whom any costs ordered are to be paid, will still be there to receive them. It is true that s.41A contemplates that the clerk will pay them "to the defendant". It may be argued that if the defendant is dead, it is not possible for the clerk literally to do this. Indeed, if, after costs had been ordered and in fact paid to the clerk, the defendant died before the costs were paid to him a corresponding difficulty of literal compliance with s.41A would arise. But there would seem to be no difficulty in such a case in holding that the clerk could obtain a good receipt from any duly authorised person representing the defendant, whether alive or dead. It appears to me that in circumstances such as the present the power to make the order for costs continued with the Justice notwithstanding the death of the defendant and the interest of the defendant which was involved passed to her legal personal representative.

7. I was referred to Henderson v O'Connell (1937) V.L.R. 171 at pp.174-175; Hodgson v Lakeman (1943) 1 Q.B. 15; Regina v Rowe (1955) 1 Q.B. 573; Regina v Jefferies (1969) 1 Q.B. 120; and, Bogeta Pty. Limited v Wales (1977) 1 N.S.W.L.R. 139 at p.147. Although helpful as to the effect of death of a party upon criminal proceedings or appeals none of these cases is precisely in point.

8. Reference was also made to Diamond v Diamond (1950) 51 S.R. 84. This was a case where a decree nisi for dissolution of marriage was made on the husband's petition which contained an order that the wife's taxed costs be paid by the petitioner. The decree nisi became absolute on 5 September 1949, that is to say the marriage was then dissolved. On 13 September 1949 the husband died. In the judgment of the Court reference was made to the "general rule" stated in Beaumont v Beaumont (1938) p.39 at p.48 -
   
   

"The very foundation of the suit has gone, as there is no longer a nexus between the two spouses seeing that the marriage has been dissolved by the husband's death."

It was held that the suit having gone the order for costs also abated. I find this puzzling in the light of the fact that in that case the marriage was not dissolved by the husband's death. At the time he died there was no marriage in existence. The suit was over. A final order had been made and come into effect. All that remained was to implement it.

1. In the judgment (at p.91) it is said -
   
   

"Without the continued existence of both spouses there could be no valid decree for the dissolution of the marriage, and no other consequential relief."

1. But there was a valid decree for dissolution of the marriage and it had become absolute. It is difficult to see how the later death of either spouse could retrospectively invalidate the decree absolute. Certainly such a result might involve an unpleasant surprise for any party who had remarried in the interim. If applied to the present case, this would appear to produce the extraordinary result that the proceedings for committal would "abate" upon the subsequent death of the defendant and there would be no valid discharge.

2. In the present case, as I have said, if the defendant had died during the committal proceedings before an order discharging her under sub-s.41(6) had been made, the information would have lapsed by reason of the death. No order for costs could then have been made under s.41A. The administrative inquiry or proceedings would have come to an end.

3. But here the informations were no longer operative after the order on 22 March 1985 was made discharging the defendant. Death on 23 March 1985 could not cause the informations to lapse. They were no longer on foot. The administrative "proceedings" were still on foot for consequential purposes. Did they "abate" by reason of the death? I see no reason why they should. In my opinion the Justice still had power to deliver his reasons, to hear argument on costs, to adjourn the proceedings, to make an order for costs under s.41A and to deliver his reasons for that order.

4. I turn to the original ground upon which the decision of Mr. Williams under s.41A was attacked. This ground is that he improperly exercised his discretionary power under s.41A in making the order for costs in that he took irrelevant considerations into account and failed to take relevant considerations into account.

5. It will be noted that s.41A is silent on the question what considerations must or must not be taken into account. Reference was made to Cilli v Abbott (1981) 53 F.L.R. 108 indicating that where under the general provisions in Justices Acts costs may be awarded either way in favour of an informant or a defendant, they will generally follow the event. Reference was also made to McEwen v Siely (1972) 21 F.L.R. 131 and Hamdorf v Riddle (1971) S.A.S.R. 298. It was argued for Mr. Healey that this was not so under s.41A where an order may be made only one way. It was submitted the correct approach was that set forth in Barton v Berman (1980) 1 N.S.W.L.R. 63 in the judgment of Hope J.A. who (at p.74) said:
   
   

"Section 41A gives a right to a discharged defendant to make an application for costs against the informant. It does not give him a prima facie right to costs, or place some onus on the informant to justify their refusal. The discretion is as clearly an absolute and unfettered one as it is a judicial one. It follows that it must be exercised for reasons connected with the case, and not for extraneous or foreign reasons. I would respectfully agree with the conclusion of the Victorian Full Court in Puddy v Borg (1973) V.R. 626 at 629 that any deterrence that the making of an order for costs might have on police in bringing proceedings is an irrelevant or extraneous consideration in deciding whether to make an order under a section such as s.81 of the Justices Act; and, in my opinion, it is equally irrelevant or extraneous in deciding whether to make an order under s.41A. But the question which the magistrate has to decide is whether to make or not to make an order for costs; it is not simply whether, for some reason, he should decline to make an order. The fact that the defendant has been discharged gives the Court jurisdiction. That the defendant has qualified to make the application is, of course, a relevant circumstance, but it does not give rise to any presumption that he should get an order. Nor do I think that the proper approach, or the relevant considerations, would be the same in respect of applications under s.41A as apply in civil cases."

1. I am of the opinion that this statement by Hope J.A. correctly sets forth the approach to be adopted in applying s.41A.

2. Counsel for Mr. Healey argued that Mr. Williams had departed from this approach and was in error in the manner in which he applied the section. He pointed particularly to two statements by Mr. Williams in his reasons for judgment of 4 April 1985. The first is as follows:
   
   

"It seems to me that where there has been a discharge under s.41(6) after the hearing of evidence for the prosecution and the defence then a defendant ought not as a general principle suffer the additional opprobrium of not having costs awarded in his or her favour. This does not mean that costs should necessarily be granted to a successful defendant in cases where a successful informant is unable to recover costs, but there should to my mind be strong reasons why costs should not be awarded."

The second statement is towards the end of his reasons where Mr. Williams said:

"Weighing all the opposing considerations, it seems that the balance is in favour of making an order for costs. Even if the considerations counter balanced each other, I would still in my discretion order costs in this case on the basis of the general principle I referred to earlier."

The argument for Mr. Healey was, in effect, that Mr. Williams had really decided the matter upon the general principle which he stated in the first passage I have quoted and that this was an erroneous exercise of the discretion conferred by s.41A. Certainly the general principle stated is somewhat more favourable to a defendant who is an applicant for costs than the approach stated in Barton v Berman. However, as Counsel for Mr. Henderson argued, it is necessary to read the whole of Mr. Williams' reasons. When this is done it will be seen that he in fact adopted the Barton v Berman approach in making his decision. He referred to the statement at the beginnning of these reasons where Mr. Williams said:

"It is not disputed that I have power under s.41A. to award costs, and it seems clear from the law as stated in Barton v Berman, (1980), 1 N.S.W.L.R. 63, particularly at page 74, the discretion I have is absolute and unfettered, but to be exercised judicially. The defendant has been discharged,, not acquitted, as suggested, I have no power to acquit anyone that is a jury's function. But the discharge founds the jurisdiction, the defendant has made an application and is qualified to so do. That raises no presumption that an order should be made. As stated by his Honour Mr. Justice Hope at page 74, "the question which the Magistrate has to decide is to make or to not make an order for costs". His Honour further stated "that to apply the civil approach to costs was not the proper way to apply s.41A."

Counsel referred also to the remarks following the statement of "general principle" which has been quoted. Mr. Williams went on to say: "I now deal with the present matter before me". He then proceeded to review in some detail the circumstances bearing on the question whether an order for costs should be made. It was not suggested by Counsel for Mr. Healey that any particular circumstances referred to by Mr. Williams were irrelevant. Nor was it suggested that Mr. Williams omitted to consider any particular circumstances which were relevant. This was so notwithstanding the two grounds stated in the application for the order of review.

1. At the end Mr. Williams said, as has been quoted:
   
   

"Weighing all the opposing considerations it seems that the balance is in favour of making an order for costs."

It does not appear to me that his approach has been shown to be erroneous. It is true that he went on to say -

"Even if the considerations counter balanced each other, I would still in my discretion order costs in this case on the basis of the general principle I referred to earlier."

But this is simply what he would have done but did not do, upon a stated contingency. I do not see how that can invalidate the exercise of his discretion.

1. No challenge was offered as to the amount which was
   ordered for costs.

2. Finally, it should be pointed out that my task under the
   Judicial Review Act is not to decide what I would have done were I called upon to exercise the discretion under s.41A. I express no view about that. The discretion is conferred upon the Justice not upon me. My task is to see whether the Justice acted according to law in the relevant respects. I think he did. The application is dismissed with costs.