Hogan v Rigby (No 2) - [2020] NTSC 28

CITATION:Hogan v Rigby (No 2) [2020] NTSC 28
PARTIES:HOGAN, Gavin
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 41 of 2019 (21825347)
DELIVERED ex tempore:               28 May 2020
HEARING DATE:  22 May 2020
JUDGMENT OF:  Hiley J
CATCHWORDS:

COSTS – Appeal from Local Court – Power to order costs under s 177(2)(e) of the Local Court (Criminal Procedure) Act 1928 – Principles regarding award of indemnity costs – Whether appropriate to order indemnity costs – No wilful disregard of known facts or clearly established law – Indemnity costs refused – Costs ordered on the standard basis.
Local Court (Criminal Procedure) Act 1928 (NT), s 163, s 177
Local Court (Criminal Procedure) Regulations 2016 (NT), r 5
Supreme Court Rules 1987 (NT), r 63.25, r 63.27
BAE Systems Australia Ltd v Rothwell (2013) 275 FLR 244, Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, Hogan v Rigby [2020] NTSC 25, Jones v R (1989) 166 CLR 409, Laminex Group Pty Ltd v Catford [2018] NTSC 56, Nilsen NT PL v Delta Electrics [2020] NTCA 6, Singh v The Queen [2019] NTCCA 8, Thyer v Whittington (No 2) [2018] NTSC 31, referred to.
Michael Grant, Presidian Legal Publications, Civil Procedure Northern Territory (Update 14).
REPRESENTATION:
Counsel:
Appellant:L Nguyen
Respondent:  N Loudon
Solicitors:
Appellant:-
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Hil2007
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Hogan v Rigby (No 2) [2020] NTSC 28

No. LCA 41 of 2019 (21825347)
BETWEEN:

GAVIN HOGAN

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered ex tempore 28 May 2020)
Introduction

The appellant has sought costs pursuant to s 177(2)(e) of the Local Court (Criminal Procedure) Act 1928 (NT) on an indemnity basis. The appellant succeeded on ground 2 and subsequently withdrew the other grounds: 1, 3, 4 and 5.[1]
In my reasons for allowing the appeal on ground 2 I point out that there would have been no utility in spending the additional time and costs associated with pursuing those grounds on the adjourned date. The hearing had not been completed within the allocated time. However, I had already heard full argument on grounds 3, 4 and 5 and the appellant’s argument in relation to ground 1, and had read the written submissions in relation to that ground. There would have been no utility in spending that additional time and incurring the costs of going into that second day unless one or other of those grounds would have succeeded and resulted in an acquittal of the appellant. That was the point really raised by the High Court in Jones’ case.[2] It is very unlikely that a successful ground would have resulted in acquittal.
The appellant has sought indemnity costs against the respondent. As a general rule costs are to be awarded in favour of a successful party. Whilst the respondent has not argued against the awarding of costs in favour of the appellant, counsel for the respondent submitted that the quantum of the costs should be similar to those costs prescribed by reg 5 of the Local Court (Criminal Procedure) Regulations 2016 (NT).
The Court has a wide discretion in relation to costs. Relevant to the present matter are a number of possibilities. The Court could award:
(a)costs on an indemnity basis – as defined in r 63.27 of the Supreme Court Rules 1987 (NT);
(b)costs on a standard basis – as defined in r 63.25 of the Supreme Court Rules;
(c)costs on a basis similar to that set out under reg 5 of the Local Court (Criminal Procedure) Regulations; or
(d)a lump sum – of the kind awarded in Thyer v Whittington (No 2).[3]
In Thyer v Whittington (No 2) Grant CJ discussed the relevant principles regarding costs orders in appeals to this Court brought under s 163 of the Local Court (Criminal Procedure) Act. That case concerned an application for costs by the respondent prosecutor where the appeal brought by the accused was unsuccessful.
After noting and applying the general rule that a successful litigant is entitled to costs his Honour awarded the respondent a lump sum of $1500. That was based upon his Honour’s general understanding of costs in the Local Court jurisdiction informed by the scale described under reg 5 of the Local Court (Criminal Procedure) Regulations. His Honour also concluded, and with respect I agree, that the quantum of costs was not constrained by ss 177(2A) and (2B) of the Local Court (Criminal Procedure) Act. His Honour referred to the scale prescribed by reg 5 of the Local Court (Criminal Procedure) Regulations as “at least some reference or benchmark for this type of matter.”[4]
However, as I have noted, that matter concerned an award of costs in favour of the successful respondent / prosecutor against the unsuccessful appellant / accused. Before discussing and using the scale prescribed by reg 5 as a benchmark, his Honour had referred to the fact that ordinary people with limited resources should not be deterred from bringing an appeal by the prospect of them having to pay costs to a successful respondent who happened to be a prosecutor by facing a potential liability of having to pay costs that would normally be awarded under the scales applicable to Supreme Court cases. Accordingly, his Honour used the scale prescribed by reg 5, which generally fixes a lower quantum for costs in the Local Court, as a benchmark for awarding costs in favour of a successful prosecutor.
As I have said, this is not such a case. Here the accused was successful and is seeking costs against the unsuccessful prosecutor. I accept that the accused would have limited resources and the respondent would have the normal resources available to Crown prosecutors. Such an imbalance of resources has some relevance in the present case, just as it did, but perhaps for the opposite reason, in Thyer v Whittington (No 2).
The original notice of appeal relied on a single ground – that the finding of guilt was unsafe and unsatisfactory. Ground 2 was added at a later stage, as were grounds 3, 4 and 5. Ultimately, I was able to dispose of the appeal because I was satisfied that ground 2 was made out, and that the matter should be remitted for rehearing. Counsel for the appellant had submitted that I should acquit the appellant rather than remit the matter for rehearing. I rejected that submission.
I had also formed the tentative view that grounds 1, 3 and 5 were unlikely to succeed, but ground 4 might succeed if the High Court upholds the decision of the majority in Singh v The Queen.[5] Even if any of those grounds were to succeed there is little doubt that I would have remitted the matter for rehearing, rather than acquitting the appellant.
In the course of her submissions regarding indemnity costs counsel for the appellant focused on four main points:
(a)the conduct of the police and prosecutor in failing to produce the Statutory Declaration at the hearing before the Local Court;
(b)alleged poor conduct on the part of police and prosecutors in other matters, particularly in bush courts;
(c)the conduct of the respondent in responding to the appeal; and
(d)costs incurred by the appellant in paying for his lawyer to conduct his appeal and for travel to Darwin to provide instructions.
The principles regarding the awarding of costs on an indemnity basis have been discussed in numerous cases. They are conveniently set out in the judgment of Blokland J in Laminex Group Pty Ltd v Catford (Costs)[6] particularly at [8] – [11].
At [8] of Laminex, her Honour referred to the discussion by Riley CJ (as he was then) in BAE Systems Australia Ltd v Rothwell,[7] including his Honour’s repetition of the well-established principle that there must be some special or unusual feature in a particular case for indemnity costs to be awarded.[8]
In BAE Systems, Riley CJ had gone back to a number of well-known authorities including the decision of Shepherd J in Colgate-Palmolive Company v Consumers.[9] His Honour gave a number of examples of circumstances where indemnity costs may be ordered, including: where a party has pursued a matter which, on proper consideration, should have been seen to be a hopeless case; or where there was an undue prolongation of the case by groundless contentions.
At [9] of Laminex, Blokland J also referred to the judgement of Mildren J in that same decision of BAE Systems where his Honour said:
The exercise of the discretion to order costs over and above the ordinary is exceptional, usually reserved for cases where the losing party has been engaged in unmeritorious, or deliberate or high-handed or other improper conduct, such as to warrant the Court showing its disapproval and, at the same time, preventing the successful party being left out of pocket.[10]
Her Honour then referred back to the decision of Shepherd J in Colgate[11] where his Honour talked about other examples such as: where there had been allegations of fraud where the person making the allegations knew them to be false; where there was misconduct that caused loss of time to the court; and where proceedings were commenced or continued for some ulterior motive or in “wilful disregard of known facts or clearly established law”.[12]
Her Honour also referred to the commentary in Grant on Civil Procedure, where the author, now the Chief Justice, referred to cases where proceedings had been continued by a party in “wilful disregard of the known facts or clearly established law”, or if a litigant properly advised should have known it had no chance of success.
In the present matter, Ms Nguyen, counsel for the appellant, referred to a decision on the papers in Nilsen NT PL v Delta Electrics [2020] NTCA 6 where Mildren AJ also referred to the “wilful disregard of known facts or clearly established law exception” to the normal rule regarding costs being payable on the standard basis.
Turning back to the four points raised by the appellant outlined above at [11]. I do not consider relevant the conduct of police or prosecutors in other matters. To order indemnity costs in this matter for that reason would be to impermissibly punish the respondent for matters that have absolutely nothing to do with the present case and about which I know nothing.
Nor do I consider of much relevance the fact that the appellant decided to travel to Darwin for the purposes of instructing his lawyer and appearing in court. Indeed it is very rare that a party to an appeal attends an appeal when represented by a lawyer.
In relation to the proceedings in the Local Court, the conduct of the prosecutor was not wilful. Although he should have been aware of the Statutory Declaration and should have sought and produced it to defence counsel, those failures were inadvertent. Further, had defence counsel been more alert at the time, or indeed, had the appellant informed his counsel that he had made a Statutory Declaration, defence counsel could have requested the prosecutor to obtain and produce the Statutory Declaration.
In relation to the respondent’s conduct of the appeal, it is fair to say that I have rejected some of the contentions advanced, particularly insofar as they seemed to be directed at avoiding responsibility on account of the fact that defence counsel could have requested the prosecutor to obtain and produce the Statutory Declaration. However, counsel did concede that the onus had been on the prosecutor to obtain and produce the Statutory Declaration, but contended that I should dismiss the appeal by finding that no substantial miscarriage of injustice occurred. As matters transpired I was unable to be satisfied that no substantial miscarriage of justice incurred. Accordingly, I allowed the appeal and remitted the matter to the Local Court.
I do not consider that there were circumstances in the present matter that warrant the ordering of indemnity costs. I do consider however that the successful appellant should be awarded costs on the standard basis as defined in r 63.25 of the Supreme Court Rules.

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[1]Hogan v Rigby [2020] NTSC 25.

[2] Jones v R [1989] HCA 16; 166 CLR 409.

[3] [2018] NTSC 31 (Thyer v Whittington (No 2)).

[4] Thyer v Whittington (No 2) at [27].

[5] [2019] NTCCA 8.

[6] [2019] NTSC 3 (Laminex).

[7] [2013] NTCA 3; 275 FLR 244 (BAE Systems).

[8]BAE Systems at 252.

[9][1993] FCA 801; 46 FCR 225 (Colgate).

[10] BAE Systems at 264.

[11]At 233-234.

[12] Laminex at [10].