O'Grady v Magistrates' Court
[2016] VSC 156
•15 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 05698
| INSPECTOR MICHAEL O'GRADY (VICTORIAN WORKCOVER AUTHORITY) | Plaintiff |
| v | |
| MAGISTRATES' COURT OF VICTORIA | First Defendant |
| CHRISTOPHER DONALDSON | Second Defendant |
| SHANNON GINN | Third Defendant |
| CHRISTOPHER STEVENS | Fourth Defendant |
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JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2016 |
DATE OF JUDGMENT: | 15 April 2016 |
CASE MAY BE CITED AS: | O'Grady v Magistrates' Court and others |
MEDIUM NEUTRAL CITATION: | [2016] VSC 156 |
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JUDICIAL REVIEW – Certiorari – Time limit for bringing application – Time running from date of order – Ascertaining when order made – Distinction between decision made and order – Whether order pronounced by court below – Significance of requesting draft formal orders - Supreme Court (General Civil Procedure) Rules 2015, rule 56.02(1), (2)
JUDICIAL REVIEW – Requirement to commence proceeding in 60 days – Extension only in ‘special circumstances’ − Strength of case for judicial review – Significance of applicant’s concession concerning the exercise of power sought to be quashed – Supreme Court (General Civil Procedure) Rules 2015, rule 56.02(3)
MAGISTRATES' COURT – Judgments and orders – What constitutes an order – When order made – Announcement of outcome on application – Whether to be construed as pronouncement of order − Significance of commensurate entry of order on court register by Magistrate – Magistrates’ Court Act 1989 s 18(5) − Magistrates’ Court General Civil Procedure Rules 2010, r 59.02, 59.08, 60.04 and 60.05
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Judd QC with Mr C P Young | Victorian WorkCover Authority |
| For the second, third and fourth Defendants | Mr A Halse | Lander & Rogers |
HIS HONOUR:
Under this Court’s rules of civil procedure, an application for judicial review ‘shall be commenced within 60 days after the date when the grounds for the grant of the relief or remedy first arose’: see rule 56.02(1). As for the meaning of ‘first arose’, rule 56.02(2) says —
Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
Under r 56.03 the Court cannot extend the 60 day time limit except in ‘special circumstances.’
The plaintiff seeks an order in the nature of certiorari to quash a costs order made by a Magistrate. Prosaic as that may sound, the issue in this case requires quite a dissertation and analysis, for as had to be acknowledged by the plaintiff in argument, there was a muddle in the conduct of the case below. Yet there is said to be a question of statutory construction and the powers of the Magistrates’ Court which gives the matter the quality of having general importance. For introductory purposes the preliminary question that has arisen can be stated pithily: was an order made by the Magistrate; and if so, when? The defendants contend an order for their costs (more precisely, for their expenses) was made by a Magistrate on 19 June 2015 in their favour, and this proceeding brought on 4 November 2015 for certiorari to quash that decision as being beyond power, was outside the 60 day time limit. The plaintiff says a result was announced on 19 June but an order was not made certainly; but as a ‘fall back’, he seeks an extension of time, in circumstances I shall explain later, so as to bring a case to say that the Magistrate had no power to make such an order. An extension of time is strongly opposed on the ground that the question of the Magistrate’s discretionary power to order costs and expenses was conceded unequivocally below by the plaintiff, and it was unjust and inimical to the law’s avowed pursuit of finality that the plaintiff can use judicial review to re-open a case and argue in a court of supervisory jurisdiction a point not put below.
This is no ordinary case. The dispute has arisen on a costs determination after a compulsory examination of witnesses under Part 4.3 of the Criminal Procedure Act for a prosecution of an employer under the Occupational Health and Safety Act for a fatal industrial accident to a worker. The parties to the prosecution are the informant (who acts under the auspices of the Victorian WorkCover Authority) and the indicted employer. An examinee may be an employee who was an eye witnesses to the incident giving rise to the prosecution or who can otherwise give relevant evidence about work practices and conditions and such matters. The examinations take may place after a charge-sheet has been filed against the employer and before any committal hearing. The issue concerns the power, or absence of it as the plaintiff seeks to now contend, of the Magistrates’ Court to order an informant to pay the costs and expenses of examinees who attend a compulsory examination hearing. More sharply defined, the question concerns the power to order an informant to pay an examinee’s expenses for seeking legal advice and having representation at the examination.
On 19 June 2015 —that is a most important date — the Magistrate said that ‘ … the reasonable cost of advice and representation to respond to the order to appear to give evidence is to be paid by the VWA’. The Magistrate did so on the basis, as accepted explicitly by senior counsel for the VWA in those proceedings, that the court had the discretionary power to make such an order under this special examination procedure. Then, in response from a suggestion from her Honour, the parties said they would draft the orders and submit them by 23 June 2015. They did not. They later said they were ’in discussions’ about the wording.
But then came a change of thinking by the VWA. On 10 September 2015 (and 60 days had passed by then), the informant had the case relisted before the same Magistrate to reopen the matter so as to enable him to contend that the Court did not have the statutory power (there being no common law power) to order costs or expenses for the examinees under this procedure.[1] The VWA contended that the Magistrate could re-open because an order had not yet been authenticated. That is how it was put. The terminology matters. The Magistrate refused to reopen, holding that orders had been made on the last occasion (19 June), and ‘the matter is finalised’. The Magistrate then ordered the VWA to pay the examinees’ costs of the failed application to reopen.
[1]The VWA had notified the defendants of their intention to reopen on 12 August 2015.
Fifty-five days later, on 4 November 2015, the VWA filed an originating motion under rule 56 seeking relief by way of certiorari to quash the costs order made on 10 September 2015 on the ground that the Court exceeded its jurisdiction. The motion did not seek judicial review of the discretionary refusal to reopen ― and I venture to say that would have had its problems. Nor does the motion seek to quash the decision that really matters, which is the decision on 19 June 2015 that the VWA had to pay the examinees’ legal expenses. A challenge to an order made on that day was well outside the 60 day time limit which expired on 19 August 2015. Yet, the grounds in the motion, which are not clear, seem to flow backwards to the Magistrate’s exercise of power on 19 June 2015, without saying so.
The second, third and fourth defendants (who I will now call the examinees) contend that an order for their legal costs and expenses was made on 19 June 2015. They produce a certified extract of the register which records an order having been made on that day. They say that is all there is to it; and the motion is well out of time under rule 56. The VWA’s riposte is that the entry is not conclusive, and what matters is whether an order truly was made on 19 June 2015. They say what occurred on 19 June was a statement of outcome or result, not the making of an order. As I will show, that was not how the matter was put on the application to reopen. Moreover, if an order was not made on 19 June 2015, then when was it made?
The tension calls for a detailed examination, as will follow. But I shall state at the outset my decision.
First, despite the VWA’s valiant attempts, I would construe the circumstances to say it is sufficiently certain that the Magistrate made a costs order on 19 June 2015. There was sufficient certainty, and objectively, that was the apparent intention and effect. It was something more than a statement of the result or the making of a provisional order. The result bespoke the order. It is not as if the matter called for conception of orders or working out of orders to effectuate the result. The invitation to prepare a ‘formal’ order does not derogate from the pronouncement of an immediately effective order.
Secondly, this opens up the question of an extension for special circumstances. The desideratum of finality is powerful. The VWA are looking for judicial review on a point which it conceded below even though it later tried to re-open. The concession is something that might disqualify ultimate discretionary relief for certiorari.[2] But the VWA say there is a question of general importance about the power of the Magistrates’ Court to order costs of legal representation in favour of examinees in this field of workplace prosecutions. Recent appellate authority has it that I ought not shy away from looking at the merits of the proposed appeal as factor to weigh up in the assessment of ‘special circumstances’: see Glass v Chief Examiner.[3] There is at least an arguable case , but according to Glass ‘Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.’[4]
[2]See Aronson and Groves Judicial Review of Administrative Action (5th ed), [12.250].
[3][2015] VSCA 127, [77].
[4]Above, at [71].
Questions of the legitimacy or availability of judicial power arouse a sense of importance. But weighing up all factors in the events that occurred, I have come to the view that the plaintiff’s case on special circumstances is not deserving. What prevails, in my assessment, is that the predicament as obtained was of the informant’s own making, and made by its concession on the very point on which review is being sought in circumstances where there was nothing to obscure the point. And, as I will show, the peculiarities of the case makes this an unsuitable vehicle to test the point about power, despite the concession. The point can be taken again if it arises, as is distinctly possible, on another occasion. Thus I see no real injustice in refusing an extension.
What follows is an account of the procedural complications, and the question of statutory interpretation concerning the Magistrate’s power.
The case below
This case concerns a prosecution of an employer by the VWA for offences under s 21 of the Occupational Health and Safety Act for failing to provide employees with a working environment that was safe and without risk to health. Under s 21(4) of the Act, such an offence is an indictable offence. The charges concerned an incident in which two employees were using a bed-borer machine in a pit in the course of their employment with the accused employer, a corporation. The state of tooling or the mechanism in the equipment is alleged to have caused a violent and unexpected movement of the borer which struck one of the employees and killed him.
There were two charges filed by the plaintiff as an inspector appointed under the Act. The charge sheet requested a committal hearing. This was therefore a criminal proceeding coming under the Criminal Procedure Act 2009. On 26 November 2014, the plaintiff applied for an order under s 104(1) of the Criminal Procedure Act 2009 for an order requiring four persons to attend the court for the purpose of being examined by or on behalf of the informant. Under s 104(2), the Magistrates’ Court may make such an order if satisfied it is in the interests of justice to do so. Such an application can only be made after a charge sheet has been filed against the accused and before any committal hearing commences. Under s 103(4) the informant must on the application advise the court of the following information —
(a)whether the person sought to be examined has been asked by the prosecution to make a statement and has refused to do so; and
(b)whether the informant is aware of whether the person sought to be examined has obtained legal advice concerning the proposed examination; and
(c)whether the person sought to be examine is or has been a suspect with respect of the matter to which the proposed examination relates; and
(d)whether the person sought to be examined has been made aware of the application; and
(e) any other information prescribed by the rules of court.
There were four examinees, namely: Christopher Donaldson and Christopher Stevens (who were part of a four man drilling team on the day before the incident); Shannon Ginn (who was in the pit with the deceased) and Brian Little (a site supervisor). The fourth examinee, Little, is not a defendant here. The examinees were asked to make a statement and refused to do so. None of them were suspects. On 18 December 2014 the Magistrate made an order for each of the examinees to attend the court on 25 February 2015 to be examined by the informant.
The examination did not proceed on the appointed date. On that day, and with inadequate notice to the informant, the examinees moved to have the orders for compulsory examination set aside under s 104(3) of the Criminal Procedure Act 2009. In essence they contended they were exposed to the risk of having to give incriminating evidence if they were ever charged with any criminal offence, even though the informant had informed the court that they were not suspects. Nevertheless, they said the risk was there, and there was an incursion into substantive rights.
The application to set aside the examination orders was adjourned to be heard by the Magistrate on 12 March 2015. After argument on later day, her Honour reserved her decision. The compulsory examination was adjourned to 15 May 2015.
On 17 March 2015 her Honour decided to refuse the application to set aside the examination orders. In essence her Honour was not persuaded there was, in reality, a risk of the examinees being charged but, in any case, viewed the protective provisions in s 128 of the Evidence Act as effective to maintain the privilege against self-incrimination. Despite the adverse result, the examinees sought their legal costs of their application. They did that under s 401 of the Criminal Procedure Act 2009 which says —
Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates’ Court are in the discretion of the court and the court has full power to determine by whom to whom and to what extent the costs are to be paid.
Their application for costs was based upon them having been brought compulsorily before the court. The seeds of an argument were put, which came to be visited later, that costs could be justified by analogical reasoning in Pyramid Building Society v Farrow[5] a civil subpoena case in this Court in which Byrne J held that costs would be allowed to a witness subpoenaed to attend court who incurred the costs of legal representation to challenge a subpoena on the grounds of the privilege against giving incriminating evidence provided they were reasonably incurred, and subject always to the favourable exercise of discretion. Any order was resisted by the VWA not on the basis of an absence of power but on the basis that as a matter of discretion no such order should be made here. The Magistrate deferred the question to a date after the conduct of the examinations. The examinations were fixed for 21 May 2015. The costs application was adjourned to 19 June 2015.
[5][1995] 1 VR 464.
For the hearing on 17 March 2015 there exists a certified extract of the entries made in the court’s register on 17 March 2015.[6] That extract, in standard form, has the heading ‘COURT ORDER’. Faithful to the transcript, the orders are set out in this way —
Application Refused.
APPLICATION TO SET ASIDE ORDER FOR COMPULSORY EXAMINATION REFUSED.
CHRISTOPEHR DONALDSON, CHRISTOPHER STEVENS, SHANNON GINN AND BRIAN LITTLE ATTEND MELBOURNE MAGISTRATES COURT ON 15 MAY 2015 FOR THE PURPOSE OF BEING COMPULSORILY EXAMINEDCOSTS APPLICATION BY THE FOUR APPLICANTS BE ADJOURNED TO 19 JUNE 2015 ANY FURTHER WRITTEN SUBMISSIONS WITH RESPECT TO THE COSTS APPLICAATION (sic) BE FILED AND SERVED ON ALL PARTIES BYU (sic) 30 MAY 2015
[6]See Exhibit ATZ-13.
This mode or means of stating the result or orders in court and then making a record on the court register as a ‘Court Order’ becomes very important when it comes to deciding if and when a later order was made for the purposes of this judicial review application.
The examinations occurred on 15 and 17 May 2015. The examinees were legally represented.
On 19 June 2015 the Magistrate heard submissions on the question of costs as previously adjourned. The examinees filed written submissions seeking an order that the informant pay ‘the reasonable costs and expenses of the proposed examinees including their wages and salaries together with their reasonable legal costs for advice and representation in relation to their claims for privilege against self-incrimination.’ They contended the Magistrates had the power to award the costs either under s 401 of the Criminal Procedure Act (see para 18 above) or under s 131 of the Magistrates’ Court Act which says —
(1) The costs of, and incidental to, all proceedings in the court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.
For their cost or expenses of legal representation at the examinations, the examinees also relied upon r 42.11 of the Magistrates’ Court Rules which concerns subpoenas. That rule empowers the court to order the issuing party to pay ‘the amount of any reasonable expense or loss incurred in complying with the subpoena…’ The examinees submitted there was no distinction in substance between the compulsory examination procedure and the coercive attendance of a third party on subpoena.
For the hearing on 19 June 2015, the VWA conceded that the Magistrate had a discretion to order the costs or expenses as sought. But, it sought to distinguish this special examination procedure from the costs of a subpoenaed party, and said the power to order ‘costs’ under s 131 of the Magistrates’ Court Act meant costs in the conventional sense of the costs of the litigation as between the parties, and not expenses as were being sought here. The hearing was transcribed, and it is not necessary to refer to the elements of the arguments in detail.
Her Honour then made an ex tempore ruling. It is necessary that I recite it completely. The first part deals with the costs of the hearing on 25 February 2015 which did not proceed because of the examinees’ late notice of their intention to apply to set aside the order to attend. Her Honour said (with my underlining)—
These proceedings are part of an investigation which was resulting from a prosecution of CML Infrastructure. The persons, Donaldson, Stevens, Ginn and Little are not parties. The times we are really interested in, other than the – they were not witnesses at the time of these proceedings. I made an ex parte order that they attend to be examined, that was in December, and they were to be examined and the order was that they attend to be examined on 25 February.
The examination could not proceed on that date. The witnesses led by Mr Little made application that the order be set aside, that that application was not known to the court and indeed not known to the VMA until the day before the matter was meant to be heard, in other words, on 24 February.
If it had been, it could have been set down before me, or it could have been adjourned to a date where I was available without the parties needing to attend. I also note the Magistrates’ Court Act now requires the court to take into account virtually efficiency and effectiveness and look at all matters. Ultimately that adjournment also impacted on other matters and other proceedings before the court.
It’s clear as to why the matter could not proceed on that day. It’s clearly attributed to the very late notification of the application. It troubled me that Mr Little had made that application and the other persons joined the application. However, they did not have to. If they had not joined the application they could have given evidence on that day while Mr Little’s matter could have been adjourned.
Accordingly, in my view those parties, Donaldson, Stevens and Ginn, should pay the costs of the VWA. The costs of course should be assessed and then three quarters of those costs paid by the persons before the court today. Dealing next with the costs of the 12th and 17 March being the hearing of the application to set aside the order to attend for examination, in my view those proceedings were very much in the nature of civil proceedings.
The core issue was whether a person should attend court to answer questions and I accept Mr Wraight’s submissions that there are public policy grounds that this should not be discouraged and in fact should be encouraged. The person’s rights are protected by the provisions against self incrimination once that person is before the court giving evidence.
Of course, it is different if those orders are sought and made frivolously. I found that that was not the case, that there were matters which could properly be asked even if those same matters resulted in certificates being granted that they not be required to be answered. Taking all the submissions into account and looking at the justice of it, in my view it is appropriate that that proceeding to resist the attendance at court is in the nature of civil proceedings and that accordingly, as Donaldson, Stevens, Ginn and indeed Little were unsuccessful, that the costs should follow, therefore that again three quarters of the costs of that day should be borne by those parties.
The final date and this was not a date where the VMA was seeking a costs order and if they had have been it would have patently – or patently it would have been unsuccessful. The characterisation of the persons at this stage is quite different and Mr Wraight conceded quite properly they are entitled to reasonable expenses and indeed, conceded they are entitled to advice and representation but said that should be obtained from a pro bono scheme, that is the usual course and barristers make themselves available to provide such advice on that basis.
I commend barristers for doing that and I commend that scheme. However, I do not accept that dependent on the charity of the Bar is sufficient in a case of this nature and when I say a case of this nature, this is a case that has been and no doubt will continue to be very hard fought and there are clearly forces mixed not necessarily in a legal sphere which impact upon these persons and most notably that they were employees potentially in a position of conflict, and pressure being brought to bear, and I am not suggesting improperly, but from CLM loyalties, to friends, the trauma of having witnessed what they witnessed and clearly by that point, as I say, it was a hard fought case and in my view dependence on a pro bono scheme is not appropriate and it is reasonable in those circumstances that they be represented, or represented at a reasonable cost by a solicitor of counsel of their choice.
Thus in the upshot, there were cross-orders for costs: the three examinees[7] pay 75% of the informant’s costs on 25 February, 12 March and 17 March 2015; and the informant pay the reasonable costs of legal representation of the three examinees at the examinations on 15 and 17 May 2015.
[7]Putting aside the fourth examinee, Little.
Immediately after the ruling, her Honour said ‘So the reasonable cost of advice and representation to respond to the order to appear to give evidence is to be paid by the VWA.’ Her Honour then asked counsel ‘As to the form of those orders, would you like to draft them yourselves so you’ve got something to work with?’ I mean no criticism, but it is not clear what her Honour meant by that. Counsel for the VWA asked and was given time to do that by 23 June 2015. Then counsel for the examinees sought and obtained clarification from her Honour that the costs ruling applied to cover the costs of the examinee Shannon Ginn (the eyewitness) for both 15 and 17 May, and for the costs of Donaldson and Stevens for 15 May 2015 ‘and the reasonable advice given’.
Rule 59.08 of the Magistrates’ Court General Civil Procedure Rules states –
(1)An order may be drawn up by a party and verified by the Registrar if a party so desires.
(2) Except where a special form of order is prescribed by these Rules, a certified extract from the Court record of any order is sufficient for any purpose for which an order is required.
Rule 60.04(1) provides that ‘Where a magistrate makes an order, he or she—(a) may sign the order; or (b) may direct that the order be drawn by a party and signed by the magistrate.’ Then, r 60.05 says the order is authenticated when signed by the person who constituted the court or ‘if the order is entered into a computerised data storage and retrieval system, when it is confirmed in that system’. Under r 59.02 of the Magistrates’ Court General Civil Procedure Rules, ‘An order made by the Court must, unless the Court otherwise orders bear the date and take effect on and from the day it is made.’
I am told by counsel for the examinees that, in the interests of efficient despatch, magistrates compose and type the orders into their Court’s data system whilst on the Bench. Consistent with that, there is before me in evidence a certified extract signed by the Registrar of the Magistrates’ Court, dated 18 November 2015. This extract was obtained by the examinees’ solicitors on 18 November 2015 as part of the preparation of affidavit material in opposition to this application. The extract says that the Court made the following entries in the register on 19 June 2015 —
COURT ORDER
Application Granted.
STEVENS DONALDSON AND GINN PAY THREE QUARTERS OF THE COSTS OF VWA THROWN AWAY ON 25/2/2013
STEVENS DONALDSON AND GINN PAY THREE QUARTERS OF THE COSTS OF VWA 12 AND 17 MARCH
VMA PAY THE LEGAL COSTS OF THE PERSONS REQUIRED TO ATTEND FOR EXAMINATION FOR THE DAYS THEY WERE REQUIRED TO ATTENDCOUNSEL TO DRAFT FORMAL ORDERS AND SUBMIT TO COURT BY 23 JUNE 2015
This document speaks for itself. It states the orders made. Yet curiously, but faithful to the transcript, it says counsel ‘to draft formal orders’. But this document is a certified extract of an order in the Court register, and, under the rules it is sufficient for any purpose for which an order is required. And, as I comprehend rule 60.05(b) it is also authenticated because it is part of the data retrieval and storage system. The provenance of the register is s 18 of the Magistrates’ Court Act. Section 18(1) obliges the principal registrar to ‘cause a register to be kept of all the orders of the Court and of such other matters as are directed by this Act or the Rules to be entered in the register’. Section 18(5) says with my underlining —
A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.
The parties did not consult each other to prepare ‘formal orders’, although there was correspondence on the matter between 23 June and 31 July 2015. There was a dispute over what attendances, and by whom, and on what dates, costs could be sought or to which the cost order would apply. It is to be remembered there were cross orders for costs.
Then on 12 August 2015 this came from the VWA to the examinee’s lawyers (with my underlining)—
On review of the transcript of the costs application on 19 June 2015, WorkSafe have concerns that Her Honour does not have the power to make the Orders she proposes to make. As you would be aware, the Magistrate did not identify in her ruling the source of the power relied upon to order that the informant pay the reasonable legal expenses of the examinees.
There are no statutory provisions in Chapter 4 of the Criminal Procedure Act or in rule 44 or 45 of the Magistrates’ Court Criminal Procedure Rules that expressly empower the Court to order that the informant pay an examinee’s expenses. It is WorkSafe’s position that neither s 401 of the Criminal Procedure Act or section 131 of the Magistrates’ Court Act supply the Court with the power necessary to make the orders.
I am instructed to make application to have the matter re-listed before Magistrate Robertson, before she makes her final orders, and seek to make supplementary submissions to the Magistrates’ Court about the absence of power in the Court to make orders for reasonable legal expenses of an examinee.
The statement that the Magistrate did not identify the source of power is disobliging. There was no issue about power. The VWA conceded to the Magistrate there was a general discretion to order the examinees costs or expenses. Further, on its face there is a troubling incongruence here as seized on by the examinees: the VWA gets its costs against the examinees on their failed challenge to the orders as the ordinary consequence of costs following the event in civil procedure; the VWA seeks to then question the legality of the order by which it pays the examinees’ expenses of the examination, having previously conceded the Court’s power to make such an order.
This brings me to events that occurred on 10 September 2015. This is especially important because the originating motion in which the informant seeks judicial review isolates an order made by the Magistrate on that day. Before the court convened on that day, the informant filed written submissions. Those submissions stated (with my underlining) —
1.The informant seeks leave to reopen the hearing on 19 June 2015 to submit that the Court has no power to make an order that he pay the reasonable legal expenses of the persons the subject of orders for compulsory examination made under s 106 of the Criminal Procedure Act 2009.
2.No orders have been made, authenticated or entered following the hearing and ruling by 19 June 2015. Accordingly, the Court has power to reconsider its decision and to withdraw or vary the ruling made [authorities cited]. The submission the informant seeks leave to make is one that concerns the power of the court to make the orders sought and so leave should be granted for that submission to be made.
The submission went along the following lines. There is no common law power to award costs to a witness. A witness can only recover expenses if that is expressly provided for by statute or rules of court. Any statutory provisions and any rules about the payment of expenses of a witness compelled to appear under a witness summons or a subpoena in civil or criminal proceedings do not apply to a person ordered to attend the court for a compulsory examination hearing under Part 4.3 of the Criminal Procedure Act. And, the submission went, there are no statutory provisions or rules that expressly empower the court to order the informant to pay an examinee’s expenses for a compulsory examination hearing under Part 4.3 and thus, the court had no power to order the informant to pay the reasonable legal expenses of the examinees. The submission finished: ‘the court should vary its ruling accordingly and refuse the application by the persons examined for the informant to pay their expenses.’
One can see the predicament here. That application was predicated upon a ‘reopening of the hearing’ and a variation of the court’s ‘ruling’ on 19 June 2015. But, the examinees contended then, and maintain, that an order was made on 19 June 2015 and the informant was looking to re-argue the costs application that had already been determined by order.
The transcript of what occurred on 10 September 2015 is in evidence. This too requires close attention. The first action was for senior counsel for the VWA to acknowledge that the parties had not ‘formulate[d] some formal orders to reflect what Your Honour had ruled [i.e., on 19 June 2015].’ Then, senior counsel stated (with my underlining) –
In the interim though, Your Honour, it came to our attention that there is another point in this matter which perhaps should have been raised and wasn’t, and in our respectful submission it is an important point that’s come to the attention of the VWA and we should submit that as a statutory body, a regulatory body, it’s incumbent upon us to bring it to the court’s attention.
Now by coincidence because those orders were not authenticated we would seek leave to at least raise the point with Your Honour and with Your Honour’s leave take you through that point… it’s a relatively simple point we make. It relates discretely to the order in relation to the order Your Honour made of payment of legal expenses in relation to examinees under this section or this part of the Act.
The discourse moved between reference to a ‘ruling’, an ‘order’ and ‘authentication’ of an order. They are all different things and interchangeable usage was, as acknowledged before me, confusing. Senior counsel continued —
And we would argue while Your Honour did order that and we come here seeking leave to reopen, of course we do but because those orders were not authenticated and entered into the court record that you do have power to reconsider the decision, to withdraw that ruling or vary it.
…
We, upon reflection, after the ruling it came to our attention that there really is no power of this court to order legal expenses of witnesses under this division of the Act. And tracing that through, through the various Acts, Rules and Regulations there is, we say, simply no power to do that.
Then, as it appears to me there seems to be an acknowledgement for the VWA that orders were already made, because I do not see anywhere an argument put forward that orders were not made. Rather, senior counsel kept saying that orders had not been authenticated. But an order can be made even if not authenticated. Indeed an order can be pronounced and unwritten from the Bench. This, incidentally, brings to mind questions of the sort that were raised in the High Court of Australia in Autodesk v Dyason[8] about the power of a court (apart from orders made by the High Court as an ultimate court of appeal) to reopen a case for argument after orders had been made but not entered. But this formed no part of the argument below, or before me. Unaided by submissions, I say no more that this: the gist of Autodesk is that jurisdiction does not exist to set aside a judgment already pronounced merely because the unsuccessful party wishes to contend on further argument the court would be satisfied it had reached the wrong conclusion.
[8](1993) 176 CLR 300.
Senior counsel before the Magistrate continued with this important statement (with my underlining) —
And so Your Honour may hear our argument, give us leave to hear it, and rule accordingly one way or the other. Or if Your Honour is of the view that you have given those orders and that’s where the court wants to conclude the matter, then that is open also. But we would submit that it is incumbent at least upon us to bring it to the court’s attention.
Before the Magistrate, counsel for the examinees contended it was not necessary for a court order to be authenticated ‘in the way that would be understood in a superior court’ and that the court’s pronouncement on 19 June 2015 was clear. He submitted that the court’s earlier request for a formulation of orders was unnecessary as there was clarity in the court’s pronouncement and there was no point that needed clarification or some slip or mistake that needed correction.
Her Honour then proceeded to decide the application saying —
This is the application for leave to reopen a hearing. This court has a duty to dispose of matters expeditiously, a section that was added in to the Magistrates’ Court Act in relatively recent times. The intent is that matters are finalised. There has to be a reluctance to grant leave to reopen in this court where fresh matters wish to be raised in an argument. The orders that I made were made after hearing extensive argument of high quality from competent counsel.
The orders were intended to finalise the gravamen of the applications for costs. This is an interesting argument that perhaps should have been raised but has not been raised, it was not raised at the time, there is no reason why it could not have been raised at the time.
In my view the orders have been made and the matter is finalised. I am aware this may give rise to an appeal of the case stated and the recording of these reasons will be released to the practitioners for the parties if requested.
The Magistrate’s refusal based on the public interest in maintaining the finality of litigation has strong authoritative support. In Metwally v University of Wollongong the High Court said unanimously[9] —
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[9](1985) 50 ALR 58, 70, 71.
“I know what’s coming” the Magistrate said irresistibly as counsel for the examinees then rose. He sought the costs of the application to reopen, on an indemnity basis. Her Honour made an order for costs of the examinees for the reopening application but not on an indemnity basis. Although her Honour had decided that an order had been made previously, senior counsel for the VWA then handed up the draft orders that the court had asked for on the earlier hearing. The Magistrate said they reflected the ‘orders made on 19 June’. Nothing became of that.
There is before the court a Certified Extract signed by a Registrar that on 10 September 2015 the court made this entry in the register on an ‘Application For A Special Mention Hrg’ —
COURT ORDER
Application Refused.
THE COSTS OF SHANNON GIN, CHRISTOPHER STEVENS AND CHRISTOPHER DONALDSON ARE TO BE PAID BY THE VICTORIAN WORKCOVER AUTHORITY
IN THE EVENT THAT COSTS CANNOT BE AGREED THE MATTER BE LISTED AT THE COSTS URT (sic)
As this case descended into great detail, I pressed senior counsel for the VWA on the significance of the handing up of the proposed orders to the Magistrate on 10 September 2015. As I understood the submission, there were two steps. First the informant was, on 10 September, seeking to reopen ‘the matter’ and not seeking to ‘reopen an order’ because, on the informant’s argument, no order had been made because it was subject to formal orders being produced by the parties. As a second step, it was submitted that once the proposed orders were received by the Magistrate and acknowledged to be ‘suitable’, that was the first date that the matter was ‘finalised’. If ‘finalised’ means orders made, the certified extract of the orders made on 10 September 2015 shows nothing of the sort.
This leads to the oddity of the originating motion which looks to be quashing the Magistrate’s order on 10 September 2015. But that order concerns, and concerns only, the costs payable on the failed application to reopen. Yet, the grounds of review look back to the court’s power to order an informant to pay the legal expenses incurred of an examinee under a compulsory examination order. I am afraid to say this adds to the muddle. The informant says, having handed up the proposed orders, the relevant matter was ‘finalised’ on 10 September, but is not saying the relevant order was therefore made that day. The motion says —
RELIEF OR REMEDY SOUGHT
An order in the nature of certiorari to quash the order made by the Magistrates’ Court of Victoria on 10 September 2015 in proceeding number E13636867 that “The costs of Shannon Gin, Christopher Stevens and Christopher Donaldson are to be paid by the Victorian Workcover Authority”.
GROUNDS
1.In making the order, the Magistrates’ Court of Victoria exceeded its jurisdiction because it had no power to order that the informant pay the expenses incurred by a person the subject of a compulsory examination order mad under s 104 of the Criminal Procedure Act 2009.
2.Alternatively, if the Magistrates’ Court had power to order that the informant pay the expenses incurred by a person the subject of a compulsory examination order, the Court erred in ordering the informant to pay those expenses where:
a.the Court failed to take into account that in the ordinary course such expenses are not recoverable and any expenses should be borne by the person the subject of the order as a burden of citizenship; and
b.the persons the subject of the compulsory examination orders did not provide a basis for satisfying the Court that these examinations were outside the ordinary course.
Was an order made on 19 June 2015?
Counsel for the informant submits no order was made on 19 June 2015. It was submitted to be a ruling, not an order. The argument goes:
(a) the fact that a court states an intended result does not equate to the making of an order;
(b) there needs to be a finalisation of the relevant matters by the formal pronouncement or giving of orders (for example, by pronouncing orders in terms of minutes);
(c) the transcript on 19 June 2015 and the certified extract of the same date ‘both make it clear that the matter was not finalised and that formal orders would not be made until counsel had drafted orders and submitted them to the Court’.
What is awkward is that the Magistrates’ Court record (to which certiorari looks ultimately) as shown in the certified extract manifests an order, and is treated under the rules as a court order, but itself says ‘Counsel to draft formal orders’.
Determining whether or not an order was made is not a linear equation. It depends on what was said and on the circumstances. And it is not as if the question involves putting invidiously a magistrate or a judge to the test of seeing if he or she has measured up to some legal standard. At a broad level, I will of course accept there is a difference between the statement by a court of an outcome or a result and the making of an order. That is, the statement of the result does not necessarily equate or, more precisely, necessarily constitute the pronouncement of an order. But it may. So much depends on the nature of the matter for judgment or order and construing what was said and its effect. There will be instances where the result or the ruling or the decision will bespeak the order. There will be other instances where the result is of a nature that the effectuation of that result by precise orders requires a formulation of those orders by counsel (for approved by the Court), before it can be said that an order was made or pronounced. There will be situations, such as for example a decision to grant an interim or interlocutory injunction where the order is made when it leaves a magistrate’s lips even if it is done in expectation of ‘formal orders’ perhaps more fuller or precise in manner or form but no different in effect. Thus the order, albeit ‘informal’, is nevertheless effective and binds the parties the moment it is made or given orally; and any later formalisation is only that.[10]
[10]See Williams, Civil Procedure Victoria, [59.02.5].
I think the word ‘finalise’ as used in the informant’s submissions is best avoided. It is thought to be jargonistic.[11] I can accept the proposition that there needs to be enough to show there was a pronouncement of orders. But it may be a pronouncement in effect. The requirement that it be a formal pronouncement as a matter of punctilious conduct or verbiage is, I think, problematic and unreal in the day to day work of the courts. There needs to be some form of pronouncement in a way to reveal objectively that an order is being made; that is, judicial authority has been exercised to compel someone to do something or to confer something. It might not take much. It is hardly a matter of prescription but common experience has it that a judge or magistrate may put it in various ways say ‘I order that … ‘; or ‘I propose to order that … ‘; or ‘Subject to minutes being produced, I have in mind ordering that … ‘. More pertinently in this case, certainly in the despatch of ordinary interlocutory type work or costs disputes at the tail end of a matter, the pronouncement of an order might be far less formal but nevertheless clear enough to certainly deal with the dispute. Here the words were ‘… the reasonable costs of advice and representation … is to be paid by the VWA.’ I do not see uncertainty there.
[11]See Garners Dictionary of Legal Usage (Third Ed).
Is there a test? A test of intention (that is, intention to be discerned objectively according to what the magistrate said) was not embraced by counsel for the informant. It was said to be a test of certainty. I took that to mean: could it be said with certainty that the magistrate had made an order? That submission and that test rests on the invitation by the Magistrate to submit ‘formal’ orders.
The only authority to which I was taken on the question was a decision of the Court of Appeal of the Northern Territory in Trippe Investments Pty Ltd v Henderson.[12] That case concerned a challenge to an appeal as incompetent for being out of time. The trial judge having reserved judgment in the action, published a 35 page document headed ‘Reasons for Judgment’. At the conclusion of those reasons the trial judge said —
I refuse the remedies sought by the plaintiffs. The defendants are not entitled to any damages. There will be declarations along the lines sought by the defendants in their further amended defence. I will hear counsel as to the precise terms of those declarations and as to any other machinery orders which ought to be made to enable the delivery of the remainder of the 1985 shortfall to be made to the plaintiffs by the defendants. I will hear counsel as to costs.
[12] (1990) 72 NTR 18.
The proceeding was stood over for minutes to be brought in and for argument on costs. The hearing did not resume until about four months later. On the resumption of the hearing, draft minutes were presented to the trial judge, and discussed. In that discussion, a mild reference was made to ‘any questions of appeal’ in the context where the judge said ‘…Where you’ve got a decision but no formal orders have been made’.[13] The Court of Appeal’s judgment discloses this statement by the trial judge on that occasion, with my underlining[14] —
[13] At 19.
[14] At 19-20.
Yes. All right. I just mention that because we don’t seem to be at the stage where we finalised the matter completely. In this matter I delivered the reasons for judgment on 21 July 1989. At that time I refused the remedies which were sought by the plaintiff and held that the defendants were not entitled to any damages and indicated that there would be declarations along the lines sought by the defendants in their further amended defence but there were obviously then questions of detail to be worked out and I therefore said I would hear counsel as to the precise terms of the declarations and as to any other machinery orders which ought be made to enable the delivery of certain cattle to be made to the plaintiffs by the defendants. I also indicated I would hear counsel for costs.
The matter came back before me this morning and counsel for the defendant has provided me with draft minutes of orders as to the terms of the declarations to be made. …
I am looking at those draft orders and, with the assistance of counsel, I am satisfied that the appropriate ones could be made and there will therefore be orders in the terms of para 1 of the draft minutes initialled by me, dated today and placed upon the court file.
Under the rules of the Northern Territory Supreme Court, a notice of appeal has to be filed and served within 28 days ‘after the material date’. The rules define material date to provide where relevant:
(a) …
(b) in the case of any other judgment in a proceeding – the date of entry;
(c) in the case of an order in a proceeding – the date on which the order was made;
(d) …
(e) in the case of any other decision – the date on which the decision is pronounced or given;
(f) …
The majority of the Court, Nader ACJ and Angel J, held that on the first occasion, the judge did no more than state the intended result, and judgment was formally and finally pronounced or given on the second occasion. Their Honours seemed to be applying an intention test, saying[15] —
The learned judge, having delivered his reasons for judgment and having stood the proceedings over for minutes to be brought in and for argument on costs, it cannot be said that judgment was given or pronounced until those matters were finalised. It is true that on 21 July 1989, His Honour said he refused the remedy sought by the appellants and that the respondents were not entitled to damages. It is also true that the draft minutes presented to His Honour and dealt with by him on 23 November 1989 did not mention those matters. However having regard to what took place on 23 November 1989, and in particular His Honour’s remarks on that occasion … it is apparent that His Honour did not intend to finalise anything on the former occasion. … It seems to us that on 21 July 1989, His Honour did not more than state what he then intended to be the result, i.e. what he did was provisional only. But having stood the action over, it was open to him to return on 23 November 1989 with a different view [citation omitted]. And, it was only when His Honour pronounced the orders in terms of the minutes, i.e. on 23 November 1989, that judgment was formally and finally pronounced or given in respect of all parts of the proceedings other than the unresolved dispute over the $9,000.
[15] At 22.
Kearney J dissented. His Honour considered that there was on the first occasion ‘a pronouncement of final judgment in the clearest of terms’. His Honour applied paragraph (e) of the definition of ‘material date’ to determine that the first occasion was the ‘date on which the decision is pronounced or given’.
It could be said that Trippe Investments turns on the particular procedural rule. But from the majority judgment, I think there is support for the formulation of a test of intention; that is, was there an evident intention to make a final order, or was it a case of the Court doing no more than stating the outcome or the intended result so that nothing was final, but only provisional. As it turned out, in Trippe Investments, the fact is that on the second occasion the trial judge pronounced orders in terms of minutes eventually produced. Thus, it seems to me Trippe is an example where there was a statement of the result; the result called for preparation of minutes that stated the precise terms of declaratory relief and the machinery orders for the delivery of chattels; and the judge stating that no formal orders had been made. Those facts satisfy an intention test, or for that matter, the certainty test as posited by the informant.
A costs determination of the elementary sort that was before the Magistrate here, does not in my view fall into the category of an outcome that then requires thought to be given to the precise form or content of the order. It was not provisional. It was as definite as an ordinary costs order needed to be. Nor in my view was there anything to ‘finalise’. I think there is something awkward in the reference in the order repeating the expectation of ‘formal orders’. It is not as if there was a need or a practice for the Magistrate to receive and sign a standalone order which is then placed on the Court file. To the contrary, the modus operandi was for the Magistrate to record on the day the orders made. Thus, whatever the aberration there, I think the statement in the transcript and in the certified extract that counsel was to draft formal orders does not mean no order was made until draft formal orders were submitted and approved by the Court. I do not think it right to assert that there is no order until it is formally made. I would hold there is enough in the circumstances, and having regard to the subject matter, to construe what the Magistrate said on 19 June as being the pronouncement of an order. The invitation to draft and submit formal orders does not mean, therefore, that the pronouncement is not effective as an order. That also means by operation of the rules to which I have referred, the certified extract is by law sufficient for any purpose for which an order is required. In turn that means, and I would hold, the originating motion was not commenced within time.
Are there special circumstances to justify an extension of time?
‘Special Circumstances’
As the order was made on 19 June 2015 any application for judicial review was required to be filed by 20 August 2015. By the time the matter was relisted for argument on 10 September 2015 the 60 day time limit had expired. It is significant, as the examinees submitted, that even after the magistrate refused to re-open the matter, the originating motion was not filed for another 55 days.
The VWA submits the following special circumstances:
(a) its failure to commence proceedings within 60 days of 19 June is readily explained because it had a reasonable view that ‘final orders’ had not been made on 19 June 2015 and sought to re-open within 60 days;
(b) it has an arguable case, and the examinees do not contend otherwise;
(c) there is no prejudice to the examinees;
(d) the public interest of finality must be weighed against the public interest of the proper construction of statutes and the powers of the Magistrates’ Court;
(e) the Court ought not take a severe view of the VWA’s change of position because once it formed the view there was a question about power, the VWA alerted the examinees and raised it with the Court.
The examinees’ submissions rested substantially on the public interest of finality particularly on a discretionary question of costs, and the distinct fact that the VWA had conceded unequivocally the magistrate’s power, and was now seeking on judicial review to set aside orders which would involve arguing the question at first instance on a judicial review application. This fed the submission that of paramount concern in weighing up the justice of the situation was the public interest in finality. Reliance was placed upon statements in D’Orta-Ekeniake v Victoria Legal Aid[16] that a ‘central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.’[17] To similar effect, there was reliance upon statements made in Aon Risk Services Australia Ltd v Australian National University[18] that the arguability of new claims may not be sufficient to displace the delay, the stress, cost and effort that this protracted case has already experienced and the stress on the examinees who are employees of the indicted company. In that regard, there is the perceived injustice in the VWA having the benefit of costs orders against the employees left undisturbed whilst the VWA attempts out of time to challenge the legality of the costs decision in their favour on a point conceded below.
[16](2005) 214 ALR 92; [2005] HCA 12.
[17]At [34].
[18](2009) 258 ALR 14, [2009] HCA 27.
The examinees submitted that an attempt to demonstrate that the magistrate’s power was non-existent, and therefore the decision was wrong, cannot constitute a special circumstance within the meaning of the rule. They relied on Denysenko v Dessau.[19] In that case, Beach (B W) J said —
If one was to hold that an erroneous decision by a magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. “Special” when used in this connection must mean something unusual, uncommon, exceptional or extraordinary. There is nothing unusual, uncommon, exceptional or extraordinary in a judicial officer, whether he or she be magistrate or judge, making an error of fact or law in a particular case. Indeed, one’s experience is to the contrary. The circumstances which must be special must relate to a plaintiff’s failure to commence a proceeding in time, not the decision sought to be reviewed.
[19][1996] 2 VR 221, 224.
Subsequent authorities have not taken that view. In 2004, the Court of Appeal in Mann v Medical Practitioners Board of Victoria[20] said the phrase ‘special circumstances’ is deliberately flexible and was designed to encompass cases which might not easily be anticipated by more prescriptive words. The flexibility means that special circumstances are to be determined by reference to all of the circumstances of the case, and the characterisation of those circumstances. The rule is no longer regarded as limited to the circumstances to those connected with the reasons for delay. More pertinently the Court said —
… the existence of a manifest or strongly arguable case of administrative or legal error may be a relevant consideration. Thus a manifest excess of jurisdiction might in some cases amount to special circumstances. As to this however, … an error in a decision did not automatically result in special circumstances for if it did there would be little point to the 60 day time limit in the rule.
[20][2004] VSCA 148, [57], [72].
This approach has been applied by judges of this Court at first instance.[21] The Court of Appeal revisited the question recently in Glass v The Chief Examiner,[22] and said —
The circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension. One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to the factor. Whilst it is not necessary or desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.
[21]See Lazarevic v Victoria Police [2015] VSC 13, [40]; Wilson v Building Commission of Victoria [2015] VSC 629, [54].
[22][2015] VSCA 127.
In Glass the Court also considered the question, in an application for leave to appeal a refusal of an extension of time under order 56, whether an applicant should be permitted to argue a point not argued below. The Court affirmed the ordinary principle that litigants are bound by the way they conduct their cases at first instance and it is not open to a party who has elected not to pursue a particular course at trial to argue on appeal points not taken originally. And it matters not whether the failure to run the argument was deliberate or due to inadvertence.[23] This brings into play notions of expediency and the interests of justice and the desirability for finality, as well as the effect of the Civil Procedure Act. In Glass the Court viewed the failure to take the point below as relevant to the question whether leave to appeal should be granted. In that case, taking into account the weakness of the merits of the underlying substantive case and the failure to take the point below came to inform the exercise of discretion to refuse leave to appeal from a refusal to extend the 60 day time limit.
[23]At 78.
Although I am not deciding the question concerning the magistrate’s power, Glass says I cannot shy away from the task of analysing and describing the strength of the case. Much time was necessarily spent on the hearing of this application exposing the various statutory provisions, and their interrelationship, concerning the magistrate’s power to order costs. I have already touched on the argument. Section 131 of the Magistrates’ Court Act 1989 is a typical provision giving the Court an unfettered discretion to determine by whom, to whom and to what extent the costs are to be paid. In speaking of ‘costs’ that may be regarded, so the argument goes, as meaning the costs of the proceeding in the ordinary sense as between the disputants. But, the VWA now wants to contend, not expenses in the present context.
The argument looks to other provisions that refer to expenses, which the VWA seeks to contend are referable to the special procedure under which these examinees were compelled to give evidence. Under s 43 of the Magistrates’ Court Act the Court may issue a type of witness summons described as a summons to give evidence. Section 43(6) in effect requires the giving of conduct money to the person to whom a witness summons is directed. Section 43(9) states that nothing in that section ‘derogates from the power of the Court to certify that a witness be paid his or her expenses of attending before the Court’. That says nothing expressly about the costs of a witness to have legal representation.
Rule 42.11 of the Magistrates’ Court General Civil Procedure Rules 2010 concerns costs and expenses of compliance with a subpoena in civil proceedings. This appears to be in addition to the witness summons procedure under the Magistrates’ Court Act maybe to cover production of documents as well. That too says nothing expressly about the costs of a subpoenaed witness to have legal representation. The rule says:
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2) If an order is made under paragraph (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.
(3) An amount fixed under this Rule is separate from and in addition to –
(a) any conduct money paid to the addressee;
(b) any witness expenses payable to the address.
What about a subpoena in criminal proceedings? Under s 336 of the Criminal Procedure Act 2009 —
A party to a criminal proceeding may apply for the issue of a subpoena in accordance with the rules of court or a witness summons in accordance with the Magistrates’ Court Act 1989, as the case requires.
Part 8.4 of the Criminal Procedure Act deals specifically with costs in criminal proceedings. Division 2 of that part under the heading of ‘Costs in summary proceedings and committal proceedings’ provides in s 401(1) —
Unless otherwise expressly provided by this or any other Act or by the rules of court, the costs of, and incidental to, all criminal proceedings in the Magistrates’ Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.
That was the section on which the examinees relied below, and conceded by the informant. The assumption seems to have been that the expression ‘the costs of, and incidental to, all criminal proceedings’ applied to the compulsory examination process that occurred here and covered not just costs in the ordinary sense inter partes but also the legal expenses of the examinees.
In this case, the examinees attended under a coercive order made under a special procedure in Part 4.3 of the Criminal Procedure Act on the application of an informant who satisfied the Court that it was in the interests of justice that they attend court to be examined. They were not ordered to attend court in response to a witness summons, or a subpoena in civil proceedings. So, as the argument goes, rules and costs rules referable to those forms of legal process cannot be the source of power.
There is nothing in Part 4.3 that concerns the question of the costs and expenses of an examinee in attending a compulsory examination. With one exception, there is nothing in that Part which expressly at least equates the order to attend a compulsory examination with a summons to give evidence. The exception appears in s 105(3) which says:
Section 134(1) of the Magistrates’ Court Act 1989 (contempt of court) applies to a person ordered to attend the Magistrates’s Court under s 104(1) as if –
(a) the person had been summoned as a witness and had been given or tendered any conduct money required to be given or tendered; and
(b) the order were a summons.
There are cautions in the authorities about the use of the canon of statutory construction that an expressed reference to one matter indicates that other matters are excluded. The point for the present limited purposes is that in a specific legislative procedure for a particular form of compulsory examination, the only express affiliation of a notice to attend for compulsory examination and a witness summons under the Magistrates’ Court Act is for the purposes of incorporating the statutory law of contempt ― and nothing else.
I shall not go any further with an exposure of the argument. It is a matter of statutory construction. The essence of the VWA’s contention is that an order to attend for compulsory examination under Criminal Procedure Act is not the same as a witness summons or a subpoena in civil or criminal proceedings. Because there is no common law power to award costs to a witness, and because there is no express provisions under the legislation and the rules that apply to this case, then, so the argument goes, the Court had no statutory power to order the informant to pay the reasonable legal expenses of the examinees here.
The examinees, fastening very much on how this matter was conducted by the informant below and concentrating on the question on whether an order was made on 19 June 2015, did not concern themselves much with the merits of the argument on power. But on that question, relying on Knight v FP Special Assets Ltd,[24] submitted that the words of the discretionary power to award costs under s 131 of the Magistrates Court Act or s 401 of the Criminal Procedure Act should be given their full meaning, in which case, the power was not confined to the parties in the proceedings and could be exercised in favour of non-parties and could extend to expenses. They are saying there is no reason to exclude the power; the question was whether the expenses were reasonably incurred, and that is a matter for discretion in each case.
[24](1992) 178 CLR 178, 205 (per Gaudron J).
As can be seen, this is not a case of a manifest lack of power. I do not say the informant’s argument is weak. There is a real question there; just as there would be counter arguments about the unsatisfactory or unintended results of the construction for which the VWA contends. But the problems for the informant in this trying case are manifold. The point was conceded below. I will accept the VWA acted promptly when it discovered the point but that makes a virtue of a necessity. On losing the reopening application, when the 60 day period after 19 June had well passed, it then took another 55 days to file an originating motion which, as I have had to expose, is wrong-headed. None of this is designed to embarrass anyone, but to plainly expose in this, a court of supervisory jurisdiction, how the matter was conducted and to assess if special circumstances exist and where the justice of the situation lies.
It is tempting to think that the legitimacy of the exercise of judicial power is a consideration that outweighs the informant’s conduct of the case below and the need for finality. If a point has a general importance then that may lead to a favourable exercise of discretion where it might not otherwise be granted. If the question is one that not infrequently arises in a type of proceeding which is quite common, then it may be regarded as better to correct the error before it comes entrenched. These sorts of considerations arise on leave to appeal applications.[25] But I do not think that such a consideration applies here. This was an exercise of discretion on costs in some very peculiar circumstances, including a concession that the Magistrate had the power to make it, and the cross-costs order that was made against the examinees. It does not therefore stand as a type of precedent if and when an application is ever made under the special procedure for an order for the payment of an examinee’s legal expenses. Put another way, this case is hardly a suitable vehicle to test a question said to be of general importance. On the next occasion this point arises, the point can be argued anew.
[25]See for example recently Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [19].
I find arguments in this case about an absence of prejudice to the examinees as unconvincing or lessened by broader considerations. In this protracted case, visited with problems not attributable to anything done or not done by the examinees, I accept that in the weighing up of factors, the decisive consideration in the exercise of discretion is the need for finality and the holding of a party to the conduct of its case.
For those reasons, having held that an order was made by the Magistrate on 19 June 2015 (and therefore the motion is out of time under order 56) I order that: (1) The application for an extension of time is refused; and (2) The originating motion is dismissed.
If there is a dispute whether costs should follow the event, the Court will reconvene to hear submissions on costs. In that regard, I ask that the parties to notify my Associate as soon as possible.
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