John Holland Pty Ltd v Wallis [No 2] - [2022] WASC 398

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JOHN HOLLAND PTY LTD -v- WALLIS [No 2] [2022] WASC 398
CORAM:   ARCHER J
HEARD:   21 NOVEMBER 2022
DELIVERED          :   21 NOVEMBER 2022
PUBLISHED           :   24 NOVEMBER 2022
FILE NO/S:   CIV 2150 of 2021
BETWEEN:   JOHN HOLLAND PTY LTD
Applicant
AND
CRAIG ROBERT GEORGE WALLIS
First Respondent
MAGISTRATE THOMAS RUSSELL HALL
Second Respondent
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Interested Party

Catchwords:

Costs following quashing of the magistrate's decision on an application for a review order - Whether Supreme Court has the power to award the costs of the proceedings in summary court - Supreme Court does not have the power

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h)
Criminal Procedure Act 2004 (WA), s 67
Magistrates Court Act, s 36
Official Prosecutions (Accused's Costs) Act 1973, s 3, s 4
Rules of the Supreme Court 1971 (WA), O 56A r 6
Supreme Court Act 1935 (WA), s 37

Result:

Application for costs of the proceedings in the Magistrates Court dismissed

Category: A

Representation:

Counsel:

Applicant	:	K Kumar
First Respondent	:	J Solliss
Second Respondent	:	No appearance
Interested Party	:	J Solliss

Solicitors:

Applicant	:	Sparke Helmore Lawyers
First Respondent	:	Commonwealth Director of Public Prosecutions
Second Respondent	:	State Solicitor's Office
Interested Party	:	Commonwealth Director of Public Prosecutions

Case(s) referred to in decision(s):

Ashwin v Housing Authority [2019] WASC 144
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 3] [2014] WASC 24
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
John Holland Pty Ltd v Wallis [2022] WASC 358
Mohammadi v Bethune [2018] WASCA 98
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Smolarek v Roper [2009] WASCA 124 (S)
The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another [2007] FCAFC 175; (2007) 166 FCR 154

ARCHER J:

(This judgment was delivered extemporaneously on 21 November 2022 and has been edited to correct infelicities in language and grammar, add formatting, and include complete references)

Introduction

On or about 31 January 2019, the applicant, John Holland Pty Ltd, was charged with an offence against s 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act). The prosecution notice was signed by the first respondent, Mr Craig Wallis.
On 26 July 2021, the applicant applied to the Magistrates Court for an order that the prosecution be dismissed or stayed permanently on the basis that the prosecution notice was invalid (Dismissal Application). The applicant asserted that Mr Wallis was not authorised to commence the prosecution.
The Dismissal Application was heard by the second respondent, his Honour Magistrate Hall, on 21 September 2021.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 398
Decision Date: 24 NOVEMBER 2022

CaseChat Overview and Summary

In this case, John Holland Pty Ltd was the applicant seeking costs related to a review application and proceedings in the Magistrates Court, while Mr Wallis was the respondent opposing the costs order. The matter before the Supreme Court involved determining whether the court had the jurisdiction to award costs in relation to the proceedings in the Magistrates Court following the quashing of the magistrate's decision. The legal issues the court had to decide were whether the Supreme Court had the power to award the costs of the proceedings in the Magistrates Court and, if so, from which sources of law this power might derive.

The applicant argued that the Supreme Court had the power to award costs from several sources, including section 37 of the Supreme Court Act 1935 (WA), Order 56A rule 6 of the Rules of the Supreme Court 1971 (WA), section 36(4) of the Magistrates Court Act, and section 14(1)(h) of the Criminal Appeals Act 2004 (WA). The applicant submitted that the Official Prosecutions (Accused's Costs) Act 1973 (WA) did not preclude an accused who is not "successful" from recovering costs but merely prescribed the entitlement of a "successful" accused. The court considered these submissions and ultimately concluded that the Supreme Court did not have the power to award the costs of the proceedings in the Magistrates Court. The court found that the Official Prosecutions Act provided the relevant framework for costs and did not extend to non-successful parties. Additionally, the other potential sources of power identified by the applicant were not applicable or sufficient to confer the requisite jurisdiction.

The court's reasoning was grounded in statutory interpretation and the specific provisions of the relevant Acts. The court found that the Official Prosecutions Act did not provide for costs to non-successful parties and that other sources of power did not confer the jurisdiction to award such costs. Consequently, the court dismissed the applicant's claim for costs of the proceedings in the Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Dismissal Application was heard by the second respondent, his Honour Magistrate Hall, on 21 September 2021. His Honour dismissed the Dismissal Application (Decision). On 1 November 2021, the applicant applied to this Court for a review order of the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application). The applicant asserted, in effect, that the learned magistrate ought to have found that Mr Wallis was not authorised to commence the prosecution. On 8 November 2022, I published my reasons for finding that Mr Wallis was not authorised to commence the prosecution and that the proceedings should be quashed.[1] [1] John Holland Pty Ltd v Wallis [2022] WASC 358. The applicant seeks its costs of the Review Application and of the proceedings in the Magistrates Court. Mr Wallis asserts that I do not have the jurisdiction to make a costs order in relation to the proceedings in the Magistrates Court. I agree. What follows are my reasons. The applicant accepts that the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Official Prosecutions Act) is not a source of such a power. However, the provisions of that Act are relevant to the sources of power that the applicant contends exist. Section 67(1) of the Criminal Procedure Act 2004 (WA) provides that, subject to the Official Prosecutions Act and s 67 of the Criminal Procedure Act, a successful party to a prosecution is entitled to the party's costs. Section 5 of the Official Prosecutions Act provides that, subject to that Act, a successful accused is entitled to his or her costs. Section 4(2) of the Official Prosecutions Act defines when an accused is 'successful', including an accused who is acquitted or whose conviction is set aside. It was common ground that John Holland was not a 'successful' accused within the meaning of s 4(2) and was therefore not entitled to its costs under the Official Prosecutions Act. Section 3 of the Official Prosecutions Act relevantly provides:3.Application(1)Except as otherwise provided by this section, this Act applies notwithstanding the provisions of or under any other Act, or of or under any rule of court practice.(2)To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the accused prevails.… The applicant submits that the Official Prosecutions Act does not preclude an accused who is not 'successful' from still recovering its costs: it simply prescribes the entitlement of a 'successful' accused.[2] I accept this. However, as the applicant acknowledges, the power must be found in some source.[2] Applicant's Outline of Submissions as to Costs filed 10 November 2022 (Applicant's Costs Submissions) [4(a)]. The applicant submits that I have the jurisdiction to make the costs order from a number of sources:1.Section 37 of the Supreme Court Act 1935 (WA) and Order 56A rule 6 of the Rules of the Supreme Court 1971 (WA);2.Section 36(4) of the Magistrates Court Act; or3.Section 14(1)(h) of the Criminal Appeals Act 2004 (WA).

Ratio Decidendi

Legal Principle Established

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