Jim Byrnes v Paul Barry and John Fairfax Publications Pty

[2003] ACTSC 84

JIM BYRNES v PAUL BARRY and JOHN FAIRFAX PUBLICATIONS PTY
LIMITED [2003] ACTSC 84 (30 October 2003)

DEFAMATION – Actions for defamation – costs – costs of action – Crown not a party to proceedings – applicant indemnify respondent.

Supreme Court Act 1933 (ACT) ss 23(1), 23(2) and 23(3)

Crown Proceedings Act 1992 (ACT)

R v Scott (1993) 116 ALR 703

Ex parte O’Connor; Re Wright (1930) 47 WN (NSW) 193

Shapowloff v John Fairfax & Sons Ltd (1966) 84 WN (Pt 1) 546

R v Goia (1988) 81 ALR 656

R v Whitworth (1988) 78 ALR 121

Watson v A-G (NSW) (1987) 8 NSWLR 685

R v Scott (1993) 116 ALR 703

McEwen v Seily (1972) 21 FLR 131

Latoudis v Casey (1990) 170 CLR 534

R v J (No. 2) (1983) 49 ALR 376

Attorney General for the State of NSW v John Fairfax Publications Pty Limited [1999] NSWSC 318

No. SC 530 of 2002

Judge:  Higgins CJ
Supreme Court of the ACT
Date:  30 October 2003

IN THE SUPREME COURT OF THE  )
  )  No. SC 530 of 2002
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:JIM BYRNES

Applicant

AND:PAUL BARRY

First Respondent

AND:JOHN FAIRFAX PUBLICATIONS PTY LIMITED ACN 003 357 720

Second Respondent

ORDER

Judge:  Higgins CJ
Date:  30 October 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The applicant pay the respondent’s costs of and incidental to these proceedings on an indemnity basis.

1. On 9 July 2003 I dismissed an application for leave to commence proceedings for criminal defamation against the respondents.

1. It will be apparent from a reading of my reasons for so doing that the application, in my view, had no merit, whatever might be said as to civil proceedings in New South Wales founded on the same publications.

1. The respondents sought costs on an indemnity basis against the applicant.

1. They founded that submission on the basis that the application never had any reasonable prospects for success as –

(i)The allegedly defamatory matter did not engage the public interest of the Australian Capital Territory.

(ii)An application to commence criminal proceedings in New South Wales had already been rejected, that being the jurisdiction with which the matter complained of had the most real connection.

(iii)The application was commenced to stifle further publications concerning the applicant rather than to vindicate the public interest.

1. I would not be prepared to find the third of those submissions established but the first two are valid as my reasons indicate.  They would, in my view, warrant a conclusion that the proceedings at no stage had any reasonable prospects for success and that, accordingly, a costs order on an indemnity basis is warranted if there is power to make it.

1. However, the applicant contends that the application is one engaging the criminal jurisdiction of this Court (the Crown side of the Court) hence no order for costs can be made, citing R v Scott (1993) 116 ALR 703, whether by reason of lack of power so to do or because of a settled rule of practice to the contrary.

1. The respondents in reply contend that the “rule” concerning costs in criminal matters follows a practice that costs are not awarded in Crown proceedings for or against the Crown.  That practice has no application to cases which, though criminal proceedings, do not involve the Crown as a party.  There is, otherwise, they contend, no restriction on the power of the Court to order costs.

CRIMINAL PROCEEDING

1. In Ex parte O’Connor; Re Wright (1930) 47 WN (NSW) 193 a successful application was made to prosecute for criminal libel. The question of costs was but briefly referred to by Halse Rogers J. He said at 194 –

In the circumstances, I grant the order for leave to prosecute, and as this is essentially a criminal matter, there will be no order as to costs.

1. Shapowloff v John Fairfax & Sons Ltd (1966) 84 WN (Pt 1) 546 involved an unsuccessful application for leave to prosecute a criminal libel.  Taylor J found the proceedings to be “criminal proceedings”, hence subpoenas could not be issued against the proposed accused in an endeavour to support that application.  On the question of costs, Taylor J stated, at 556 –

… The applicant is to pay the respondent’s costs, including their costs of setting aside the subpoenas …

1. It is clear that, whatever rule of practice is appropriate in criminal proceedings, that rule applies to applications to stay criminal proceedings, to change venue, to adjourn such proceedings, and to appeals both in respect of sentences and of trials in which guilt or innocence is determined.

1. That rule of practice was further considered in R v Goia (1988) 81 ALR 656, an appeal from this Court. It was pointed out by Forster and Pincus JJ that, in R v Whitworth (1988) 78 ALR 121, the court had indicated that the rule did not apply to unsuccessful applications by the Crown for special leave to appeal or on an unsuccessful appeal to the High Court.

1. Their Honours also referred, at 658-659, to Watson v A-G (NSW) (1987) 8 NSWLR 685 but preferred not to follow it. However, their decision that an application to stay criminal proceedings was included within the general rule was based not on an absence of power to award costs, but on the breadth of the general rule of practice concerning costs in criminal proceedings.

1. Miles J, though in dissent, pointed to then s 15, now s 23, of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), conferring a general power as to the award of costs but stating –

Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the Court.

1. I therefore accept that s 23(3) of the Supreme Court Act confirms that the rule referred to in R v Goia (supra) and confirmed in R v Scott (1993) 116 ALR 703 is that in criminal proceedings and matters ancillary thereto the rule of practice is that costs will not be awarded for or against the Crown. Indeed, in that latter case, Cooper J construed s 23 so that it “does not empower the court to award costs in criminal proceedings”. (p 729)

1. Cooper J went on to hold that s 23(1) and (2) did not bind the Crown. That consideration is not relevant to the position of this applicant, a prospective private prosecutor.

1. It is implicit in the finding that the terms of s 23(1) and (2), absent (3), if they bound the Crown, would derogate the prerogative right of the Crown not to pay costs.

1. The proceedings which would follow from leave being granted, would have been a private information alleging criminal libel.  If that had been dismissed in the Magistrates Court, either on committal or on an ordinary hearing, the defendant(s) would, in all probability, be awarded their costs (see McEwen v Seily (1972) 21 FLR 131; Latoudis v Casey (1990) 170 CLR 534).

1. I note that Hill J in R v Scott (supra) at 713-4, construed s 23(1) of the Supreme Court Act in the following terms –

In the absence of authority I would be of the view that s 23(1), if read alone, could be construed as conferring jurisdiction on the court to award costs in any criminal matter. It is, after all, expressed in quite general and unambiguous terms. However, subs (1) must be read subject to subs (3) which preserves the practice of the court as to costs, presumably at the time the Supreme Court Act came into force, but in any event the practice from time to time followed in criminal causes or matters.  Once subs (1) is read with subs (3) the generality of subs (1) is no longer of significance.  For subs (3), which appears to suppose that subs (1) would indeed apply to criminal cases but for subs (3), entrenches the then existing practice which is clearly stated in R v Goia (1988) 19 FCR 212; 81 ALR 656.

1. His Honour referred also, with approval, to the statement by Gallop J in R v J (No. 2) (1983) 49 ALR 376, at 379 –

… in criminal proceedings brought by the Crown, costs will not be awarded in “favour of or against the Crown”.

1. It is plain that there are two pre-conditions for costs to be awarded against the Crown.  The first is that the Court be invested with power to award costs in such matters so as to revoke the effect of the Crown’s prerogative conferring immunity from such an order.  In the ACT the Crown Proceedings Act 1992 makes the Crown, in proceedings to which the Act applies, liable for (inter alia) costs as if it was an ordinary litigant. 

1. But, as Cooper J noted at 730 –

There is no statutory enactment … which would empower the Supreme Court to award costs against the Crown in matters arising in the exercise of its criminal jurisdiction.

1. It is apparent to me that the essential reason for setting aside the costs orders in Goia and Scott was that they were made in criminal proceedings to which the Crown was a party.

1. Ordinarily, only the Crown can invoke the criminal jurisdiction of the Supreme Court.  This case involved one of the few exceptions to that rule.

1. So also is the case of invocation of the power to punish criminally for contempt – costs were awarded on dismissal of a summons for contempt in Attorney General for the State of NSW v John Fairfax Publications Pty Limited [1999] NSWSC 318. However, there does not seem to have been any argument as to that issue.

1. In my view, whether or not the latter case would fall within the provisions of s 23(3), if brought in this Court, it is clear to me that s 23(1) grants full power to this Court to order costs in any proceedings in the Court, civil or criminal. However, s 23(3) excludes from the apparently wide scope of s 23(1) criminal proceedings to which the Crown is a party. The majority in Goia would include a bail application in that category.

1. Whether or not that is so, it seems to me that s 23(3) is not intended to and does not preclude a litigant in an application relating to a proposed private prosecution from being ordered to pay costs if unsuccessful.

1. That does not address the issue as to whether such an order ought to be made.  It would usually be inappropriate to do so if the applicant for leave to prosecute has succeeded because the leave granted merely enables proceedings to be commenced.  They may ultimately fail.

1. That is not the present case.  I have already noted that the application was so lacking in merit as to warrant an order for indemnity costs if the power to do so exists and no rule of practice forbids it.

1. As I am so satisfied there will be order that the applicant pay the respondent’s costs of and incidental to these proceedings on an indemnity basis.

   I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

   Associate:

   Date: 30 October 2003

Counsel for the Applicant:  Mr C Evatt

Solicitor for the Applicant:  Colquhoun Murphy

Counsel for the 1^st and 2^nd Respondents:  Mr Robert Glasson

Solicitor for the 1^st and 2^nd Respondents:  Sparke Helmore

Written submissions received from Applicant:      5 September 2003  

Written submissions received from 1^st and
2^nd Respondents:   3 September 2003 and 16 September 2003

Date of judgment:  30 October 2003