Perkins v County Court of Victoria & Ors
[1998] VSCA 91
•28 October 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 8385 of 1997
DAVID ANTHONY PERKINS
Appellant
v
THE COUNTY COURT OF VICTORIA and ORS
Respondents
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[APPLICATION ON SUMMONS]
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JUDGES: CALLAWAY and BUCHANAN, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 21 August 1998 and 4 September 1998 DATE OF ORDER: 28 October 1998 MEDIA NEUTRAL CITATION: [1998] VSCA 91
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APPEAL - Security for costs - Whether costs would be awarded if appeal unsuccessful -
Whether a "criminal proceeding" - Supreme Court Act 1986, ss.16, 24(2).
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APPEARANCES: Counsel Solicitors For the Appellant(Respondent) Mr. J. O'Bryan Kuek & Associates For the Second and Third Ms R. Carlin P.C. Wood, Solicitor for Respondents (Applicants) Public Prosecutions
CALLAWAY, J. A.:
The appellant was arrested in the early morning of 17th January 1996. He was subsequently found guilty on three charges in the Magistrates' Court. He appealed to the County Court pursuant to s.83(1) of the Magistrates' Court Act 1989. That court found the appellant guilty on two charges of resisting the police in the execution of their duty contrary to s.52(1) of the Summary Offences Act 1966. The appellant filed an originating motion in the Supreme Court seeking judicial review and other relief in relation to the decision of the County Court. The applications comprised in the originating motion came on for hearing before Harper, J. on 22nd to 25th June 1998. On 26th June 1998 his Honour ordered that the applications be dismissed. It is against that order that the present appeal is brought.
The respondents are the County Court and the two policemen who arrested the appellant. The County Court is, of course, taking no active part in the appeal but the second and third respondents filed a summons on 5th August 1998 seeking security for their costs. The summons came on for hearing before us on 21st August 1998, when its further hearing was adjourned to 4th September 1998. On the latter date Mr. O'Bryan appeared for the appellant and Ms Carlin for the second and third respondents.
The principles applicable to security for costs were not in dispute. It is apparent from what I have already written that the appellant has had several "days in court". The course of the proceedings so far was one of the four points on which Ms Carlin relied, referring in support of her argument to Lucas v. Yorke (1983) 50 A.L.R. 228 at p.229. The other matters were the appellant's alleged impecuniosity, which was not contested, and the facts, as counsel submitted, that the appeal raised no matter of public importance and disclosed no reasonable prospect of success.
Mr. O'Bryan's principal contention was that security for costs should not be ordered because the appellant would not be ordered to pay the costs of the appeal even if it proved unsuccessful. In the first place, it was submitted that this was a "criminal proceeding" within the meaning of s.24(2) of the Supreme Court Act 1986 and the basic common law principle to which Dawson, J. referred in Latoudis v. Casey (1990) 170 C.L.R. 534 at p.557 applied, namely that in criminal proceedings the Crown neither pays nor receives costs. (See also p.538 per Mason, C.J. and p.567 per McHugh, J.) Secondly, even if the Court had power to award costs against the appellant, it should not do so as a matter of discretion, because the appeal was a criminal and not a civil matter in the sense examined in Clarkson v. Director of Public Prosecutions [1990] V.R. 745. It was conceded that costs had been awarded below and that a similar, but much less extensive, argument had been rejected.
Section 131(1) of the Magistrates' Court Act provides that the costs of, and incidental to, all proceedings in that court are in the discretion of the court and that the court has full power to determine by whom, to whom and to what extent the costs are to be paid. The section goes on to provide, among other things, that sub- s.(1) applies unless it is otherwise expressly provided by statute or by the rules or regulations made under the Act and that, if the court determines to award costs against an informant who is a member of the police force, the order must be made against the Chief Commissioner of Police. See also sub-s.(3) and Derwent v. Dickens [1993] 1 V.R. 557 at p.567.
The position in the Supreme Court is different. Section 24(1) provides that, unless otherwise expressly provided by statute or by the rules, the costs of, and incidental to, all matters in the court are in the discretion of the court and that the court has full power to determine by whom and to what extent the costs are to be paid. That is similar to s.131(1) and (2) of the Magistrates' Court Act, but sub-s.(2) provides that nothing in s.24 "alters the practice in any criminal proceeding". (The immediate predecessor of s.24(2) was s.32(2) of the Supreme Court Act 1958, which was to the same effect: see the definitions of "cause" and "matter" in s.3.) It was that difference that was the foundation of Mr. O'Bryan's first submission.
In Latoudis v. Casey, which concerned summary proceedings before a magistrate in which the defendant was successful, after referring to the basic common law principle mentioned in para. 4 above, Dawson, J. continued:
"In equity from an early date, there was the fullest power to order a defeated party to pay costs, but it was only gradually, and by statute, that any such power found its way into the common law: see, e.g., the Statute of Malborough 1267 ... (52 Henry III c.6) and the Statute of Gloucester 1278 ... (6 Edward I c.1); Holdsworth, History of English Law, 3rd ed. (1945), vol. IV, pp.536-637."
His Honour then considered the position following the Judicature Acts. The important point for present purposes is that both criminal proceedings and the proceedings for judicial review referred to in Rule 56.01 are common law proceedings, so that, if costs are to be awarded, there must be a statutory warrant for doing so.
Section 37 of the Supreme Court Act 1890 provided for an appeal in civil and mixed matters. In R. v. Watt; Ex parte Slade [1912] V.L.R. 225 the Treasurer of the State refused to obey a writ of mandamus requiring him to perform a statutory duty. The prosecutor gave notice of motion to have him attached for disobedience and the Treasurer gave notice of appeal. The motion for attachment was referred to the Full Court, so that both matters came on for hearing at the same time. Their Honours held that an appeal did lie because, in the particular circumstances of the case, the proceeding giving rise to the appeal was civil in character.
Cussen, J. said at pp.241-242:
"The cases are not, I think, in a very satisfactory condition, but the difficulties that arise on reading them may, I think, to a certain extent be solved by the following considerations. In some of the cases it will be found that the decision turns on the question whether the principal matter which is then directly under consideration is itself a criminal or a civil matter. Take, for example, those cases where there has been an interference with the administration of justice by some publication in a newspaper. The Court in those cases has held that the substantial matter is the interference with the course of justice, and that nothing turns on the question whether that interference took place in connection with a civil case then pending. In other cases the proceeding directly under consideration may be said, in some respects, to be equivocal. Such are cases of habeas corpus, mandamus, certiorari, and matters of that kind. In these cases you may have to look back to see whether the matter directly under consideration is not merely subordinate or ancillary to some prior and more substantial matter, and whether the decision one way or the other, in the matter directly under consideration, does or does not affect the proceedings on, or in connection with, the other and more substantial matter. If you find it does affect the prior matter, whether a proceeding in Court or not, which itself is criminal, then it may be held, and it has been held in many cases, that the proceeding directly under consideration is a criminal matter. There are numerous examples of that class of case in the books, and I think it is that class of case which gives rise to the most difficulty. In both classes it is the substance and not the form which determines the ultimate decision. If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is in prison for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on." (Emphasis added.)
That passage was applied by the Full Court in Clarkson v. Director of Public Prosecutions at p. 749 en route to a conclusion that the appellant's applications for certiorari and habeas corpus were each proceedings of a criminal nature and themselves criminal matters. Another application was civil in character but, in the exercise of the Court's discretion, no costs were awarded even in relation to that application: see p.761.
Criminal proceedings in the Magistrates' Court used to come to the Supreme Court by means of an order to review. That procedure has been replaced by an appeal on a question of law pursuant to s.92 of the Magistrates' Court Act. Just as costs were frequently awarded on orders to review (see, for example, Durston v. Mercuri [1969] V.R. 507 at p.514), so they are frequently given on appeals under s.92. The statutory warrant for the practice is not immediately apparent. In Endresz v. Whitehouse, reported on a different point at (1995) 83 A.Crim.R. 138, when the High Court refused special leave to appeal from the decision of Hansen, J., their Honours refused to award costs, even though they were not resisted by the unsuccessful applicant, on the ground that the application was in a criminal proceeding.
The starting point here is not, however, the proceeding in the Magistrates' Court but the appeal to the County Court pursuant to s.83(1) of the Magistrates' Court Act. Section 85 provided that that appeal was to be conducted as a re-hearing and s.86(1)(a) obliged the learned County Court judge to set aside the order of the Magistrates' Court. Section 86(1)(b) and (c) authorized his Honour to make any order that he thought just which the Magistrates' Court made or could have made and to exercise any power which that court exercised or could have exercised, but the orders made on the appeal are to be regarded as orders of the County Court: see s.86(2).
It was the decision of the County Court in respect of which judicial review was sought. The proceeding in that court was a criminal proceeding. Applying the emphasized sentences in the passage from Cussen, J.'s judgment quoted in para. 9 above, there is much to be said for the view that the application for judicial review was also a criminal proceeding and that the appeal to this Court is of the same character.
Mr. O'Bryan's primary submission is therefore quite strongly arguable, but I do not think it should be ruled on by the Court as presently constituted. There is a widespread perception, if not a practice, to the contrary. Compare McEwan v. Waldron (No. 1) [1976] V.R. 495 at p.500. The point should be decided, after full argument, by a court of three taking into account the whole range of proceedings, civil in form, whereby criminal proceedings in the County Court and the Magistrates' Court come to the attention of the Trial Division or the Court of Appeal. See, for example, Rozenes v. His Honour Judge Kelly [1996] 1 V.R. 320, in which the Director of Public Prosecutions sought no order as to costs, and Director of Public Prosecutions v. His Honour Judge G.D. Lewis [1997] 1 V.R. 391, where similarly, I assume, no order for costs was sought. It should be observed, however, that those were applications on behalf of the Crown in relation to trials on presentment.
For the present application for security for costs to be re-argued before a court of three would not conduce to the orderly and expeditious exercise of the jurisdiction and powers of the Court of Appeal. I am authorized by the President to say that his Honour concurs in that view: see s.16 of the Supreme Court Act. Whilst I think that Ms Carlin's other submissions have some force, they are outweighed by the injustice that would be done to the appellant if Mr. O'Bryan's principal contention were ultimately accepted. We are entitled to notice that the applicants for security will almost certainly be indemnified by the Crown. Compare Latoudis v. Casey at pp.538, 543 and 563.
For these reasons I would refuse the application but reserve the costs with a view to their being dealt with by the court that hears the appeal.
BUCHANAN, J. A.:
I agree with the orders composed by Callaway, J.A. for the reasons he has
stated.
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