Murfet v Crawford (No 2)

[1991] TASSC 156

Serial No B42/1991
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Murfet v Crawford (No 2) [1991] TASSC 156; B42/1991

PARTIES:  MURFET, Kevin Geoffrey
  v
  CRAWFORD, Mark Anthony

FILE NO/S:  LCA 16/1991
DELIVERED ON:  16 August 1991
JUDGMENT OF:  Slicer J

Judgment Number:  B42/1991
Number of paragraphs:  12

Serial No B42/1991
List "B"
File No LCA 16/1991

KEVIN GEOFFREY MURFET v MARK ANTHONY CRAWFORD (NO 2)

REASONS FOR JUDGMENT  SLICER J

16 August 1991

1. In this case, I upheld a motion to review a sentence imposed on the applicant, pursuant to s110 of the Justices Act 1959. I then proceeded to exercise my own discretion in relation to the imposition of a penalty. In doing so, I was exercising jurisdiction given under the Justices Act and my powers were determined by that statute. I gave consideration to the evidence and materials adduced which had been brought before the justice and reviewed the order so far as it related to the grounds set forth in the notice. I then made orders pursuant to powers given by the operation of s110(b)(i).

1. I then asked counsel if there were any further submissions. There were none. Counsel for the applicant did not seek an order for costs. It transpired that she had forgotten to so do. Several days later I was informed by different counsel, that the applicant wished to seek an order for costs. After a preliminary discussion, in which I raised the question of jurisdiction, the matter was adjourned for argument.

1. At the resumption of the hearing of the application for costs, counsel who had originally appeared on the hearing, again appeared and made submissions in support of the application. Her submission was dependent upon the line of reasoning set out by Underwood J in The Electrolytic Zinc Company Limited of Australasia Limited v Fisher, Tasmanian unreported No 31/1989. I agree with his decision in which he was dealing with an appeal pursuant to the provisions of the Workers Compensation Act 1988. His Honour held that a court has a discretion to recall an order before it has been perfected by its entry into the record of the court. He adopted with approval the comments of Jenkins J in Re Harrisons Share under a Settlement [1955] 1 All ER 185 at 192:

"When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed. This control must be used in accordance with his discretion exercised judicially and not capriciously. "

1. In this case, however, jurisdiction is held by virtue of the Justices Act 1959. No argument was addressed to me by counsel for the applicant in relation to any limitations of jurisdiction caused by the statute. Counsel for the Crown expressly, and quite properly, made no submissions in opposition to the application.

1. Section 110(g) of the Act provides for power to:

"(g)make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a determination of the cause or matter on the merits; ....".

1. In R v Hall [1988] Tas R 74, Underwood J held that the jurisdiction of the court exists solely by virtue of the Justices Act 1959. In doing so, he rejected an attempt to invoke the inherent jurisdiction of the court and said at p76:

"Once the motion to review was determined and the order made, the court was functus officio with respect to the matter ...".

1. That approach is consistent with the one followed by the English authorities referred to in the decision of the House of Lords in S v Recorder of Manchester [1971] AC 481. I agree with his Honour's approach in Hall (supra) and add that there is no inconsistency between his two decisions. The question then is dependent upon the meaning of the exercise of power under s110. The effect of an order made under that section is immediate. For example, a person would be released from or taken into custody immediately upon the making of an order and before a formal order was taken out. However, it is unlikely that an order for the payment of a fine (with time to pay) could be enforced without the taking out of a formal order. I am told by both counsel that in the majority of cases, the Crown is responsible for the taking out of the formal order. Thus, any ambiguities, formal defects or disputed terms could be referred back to the judge who had determined the motion to review. An example of that process is provided in O46, r10 of the Rules of the Supreme Court.

1. The provisions relating to the requirement of taking out an order in proceedings of this nature are set out in r.5 of the Justices (Control of the Supreme Court) Rules 1965 which provide:

"5       Where on a motion to review, or an appeal –

(a)the party moving or appealing is successful, that party;

or

(b)the party moving or appealing is unsuccessful, the person concerned in upholding the order of the justices or the formal order of the Court,

shall –

(c)ensure that final order of the Court is drawn up and entered forthwith;....".

I suspect that this rule is honoured more in its breach than observance. In this case, no final order has been drawn up and entered.

Rule 9(2) provides that –

"Order 80 of Rules of the Supreme Court 1965 apply with necessary modifications, to and in respect of the taxation of costs."

Order 80 is extensive in its application covering provisions for security, payment by solicitors, and includes costs of motions not disposed of (O80 r13). Order 80, r29, requires a party seeking a r28 order (Table B costs) to make an application immediately after judgment, but there are no other limiting provisions. Indeed, r30(2) gives extensive discretionary powers to the court to make provisions for costs.

1. Halsbury's Laws of England, 4th Ed Vol37, para713 states:

"Costs may be dealt with by the court at any stage of the proceedings or after their conclusion ....."

although that wide proposition is probably solely dependent upon the terms of the English O62, r4(i).

1. However, in the case of Adam & Harvey Ltd. v International Maritime Supplies Co Ltd [1967] 1 All ER 533, an application made pursuant to RSC, O20, r11, was entertained by the Court of Appeal. That application was to correct an order in the terms "Appeal allowed with costs" so as to add the words "in any event". It would appear that jurisdiction can be maintained.

1. Accordingly, I hold that I have jurisdiction up until a final order is taken out. I am therefore able to grant the order sought and in doing so, exercise my discretion in favour of the applicant although, I point out that forgetfulness of counsel will not always receive a favourable exercise of discretion.

1. The order is that the respondent pay the applicant's costs of the motion to review up until the date of judgment namely, 1 August 1991.