John Holland Pty Ltd v Wallis [No 2]
[2022] WASC 398
•24 NOVEMBER 2022
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. 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's contentions
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; or
3.Section 14(1)(h) of the Criminal Appeals Act 2004 (WA).
Before turning to those provisions, I will repeat part of what I set out in the substantive judgment as to the nature of review orders.
Review Orders
Section 36 of the Magistrates Court Act is a statutory judicial review power.[3] Section 36(1) provides:
[3] Rayney v AW [2009] WASCA 203 [27] (McClure JA, as her Honour then was; Buss JA, as his Honour then was, and Newnes JA agreeing).
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error, or it must be an error of law on the face of the record.[4]
[4] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9]. As to what a jurisdictional error is, see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court.
By s36(4) of the Magistrates Court Act, if a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[5]
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
[5] Section 36(4) of the Magistrates Court Act.
The potential power sources
Section 37 of the Supreme Court Act and Order 56A rule 6
Section 37 of the Supreme Court Act provides:
37.Costs
(1)Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
(2)Nothing in this section shall alter the practice in proceedings in relation to the prerogative and criminal jurisdiction of the Court.
Order 56A rule 6 of the Rules of the Supreme Court provides:
6.Final order, making and service of
(1)If the Court makes an order under section 36(4), the Court may include an order as to costs or may adjourn the question.
(2)If the Court makes an order under section 36(4), the order must be served on -
(a)the Court officer concerned; and
(b)any other person who the Court orders to be served.
The applicant submits that '[t]he broad nature of these powers to award costs would capture the costs of the Magistrates' [sic] Court Proceeding'.[6]
[6] Applicant's Costs Submissions [5(a)].
I do not accept this.
Section 37 of the Supreme Court Act refers to 'the costs of and incidental to all proceedings in the Supreme Court'.
The word 'incidental' can bear different meanings.[7] It can mean:[8]
a.happening or likely to happen in fortuitous or subordinate conjunction with something else; or
b.incurred causally and in addition to the regular or main amount: incidental expenses.
[7] The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources and Another[2007] FCAFC 175; (2007) 166 FCR 154 [46].
[8] The Macquarie Dictionary Online (and set out in the First Respondent's Submissions on Costs filed 15 November 2022 (First Respondent's Costs Submissions) [13]).
When coupled with 'to', the phrase 'incidental to' ordinarily means 'liable to happen in connection with; naturally appertaining to'.[9]
[9] The Wilderness Society [46] - [52] and the Macquarie Dictionary Online.
The applicant submits that the breadth of the meaning of 'incidental' can be seen by the express reference to 'the administration of estates and trusts' in s 37. I accept that those words suggest that s 37 was not intended to be narrowly construed. However, I do not accept that those words suggest that the phrase 'incidental to' was not intended to bear its ordinary meaning.[10]
[10] As to the principles of statutory construction, see Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85]. See also Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
In Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 3],[11] Allanson J provided some examples of where costs may be 'of and incidental to' the proceedings. His Honour said:[12]
… The power of the court pursuant to s 37 of the Supreme Court Act 1935 (WA) is as to 'the costs of and incidental to all proceedings in the Supreme Court'. There may be cases where an order for incidental costs is sought because there is uncertainty whether the order would extend to particular items if merely expressed as the costs of the application: see, eg, Warley Hospital Inc v Attorney-General for the State of Victoria [2011] VSC 145. There have been cases where an issue has arisen whether certain costs are 'of and incidental to' the proceedings, such as the costs of a private mediation: Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S); or the costs of conferral: Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 (S).
[11] Frigger v Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 3] [2014] WASC 24.
[12] Frigger [36].
In my view, the costs of the Magistrates Court proceedings cannot be characterised as liable to happen in connection with or naturally appertaining to the proceedings in this Court (or, to use the similar definition of 'incidental' in the Macquarie Dictionary Online, 'happening or likely to happen in fortuitous or subordinate conjunction with something else').
In addition, I do not consider that those costs can be characterised as 'incurred causally and in addition to the regular or main amount: incidental expenses' (being the second definition of 'incidental' in the Macquarie Dictionary Online).
Accordingly, in my view, I do not have the power to make an order in relation to the costs of the Magistrates Court proceedings under s 37 of the Supreme Court Act.
Order 56A r 6 of the Rules of the Supreme Court adds no additional power. It simply permits the question of costs to be postponed.
Section 36 of the Magistrates Court Act
Section 36(4) of the Magistrates Court Act provides:
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
This power enables the Court to make an order 'which follows logically or of necessity from a prior substantive order'.[13]
[13] Rayney [33].
The applicant submits:[14]
In circumstances where this Court has quashed the Magistrates' [sic] Court Proceeding on the basis that the First Respondent was not properly authorised to commence them, it is logical that an order would follow for the First Respondent to pay the Applicant's costs.
[14] Applicant's Costs Submissions [5(b)].
I do not accept this. If the applicant had been successful in its Dismissal Application at first instance, it could not have been awarded costs because it would not have been a 'successful' accused within the meaning of the Official Prosecutions Act. It would be illogical if it could obtain those costs following the Review Application.
In oral submissions, the applicant submitted that it was a necessary consequential order because the applicant has no other way to get its costs of the Magistrates Court proceedings. I do not accept this submission. Again, if the applicant had been successful in its Dismissal Application at first instance, it could not have been awarded costs. It is not a necessary consequential order to the quashing of the magistrate's decision that I make an order that Mr Wallis pay the applicant's costs of the Magistrates Court proceedings.
Accordingly, in my view, I do not have the power to make an order in relation to the costs of the Magistrates Court proceedings under s 36 of the Magistrates Court Act.
Section 14(1)(h) of the Criminal Appeals Act
The final source of power postulated by the applicant is s 14(1)(h) of the Criminal Appeals Act. Section 14(1)(h) provides:
14.Supreme Court's powers on an appeal
(1)In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction;
The applicant submits that I ought to 'treat these proceedings as an appeal within the meaning of the Criminal Appeals Act'.[15]The applicant refers to cases in which judicial review proceedings were regarded as appeals when determining the question of costs in superior courts across multiple jurisdictions.[16]
[15] Applicant's Costs Submissions [6].
[16] Applicant's Costs Submissions [7].
The cases referred to by the applicant in which judicial review proceedings were regarded as appeals when determining the question of costs involved legislation which defined an 'appeal' to include 'proceedings in the nature of an appeal'.[17] There is no equivalent expansion of the meaning of 'appeal' in the Criminal Appeals Act. By s 4 of the Criminal Appeals Act, 'appeal' is defined as 'an appeal under this Act or an application for leave to appeal under this Act'. Review proceedings brought under the Magistrates Court Act are neither.
[17] See First Respondent's Costs Submissions [25].
By its terms, the power in s 14(1)(h) only arises when the Court is deciding an appeal. I am not.[18] I have decided an application for a review order.
[18] And see Smolarek v Roper [2009] WASCA 124 (S) [6] (Wheeler, Pullin and Newnes JJA).
Accordingly, in my view, I do not have the power to make an order in relation to the costs of the Magistrates Court proceedings under s 14(1)(h) of the Criminal Appeals Act.
I would dismiss the applicant's application for those costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
24 NOVEMBER 2022
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