Re Boothman

[1999] WASC 102

RE BOOTHMAN; EX PARTE TRIGG [1999] WASC 102

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 102
Published:	23/07/1999
Case No:	CIV:1060/1999	Heard:	27 JANUARY 1999
Coram:	OWEN J	Delivered:	27/01/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Application declined
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Parties:	JOANNE CYNTHIA TRIGG
Catchwords:	Suitor's Fund Order nisi for certiorari Costs certificate Whether proceedings by way of "appeal" Whether Court would have awarded costs "but for the provisions of some other Act or law
Legislation:	Suitor's Fund Act 1964 (WA)
Case References:	Basapa v Burton (1991) ASC 56,724 Ex Parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Re Burton; Ex parte Potomac Marine Services Pty Ltd; Library No 930274; 29 April 1993

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE BOOTHMAN; EX PARTE TRIGG [1999] WASC 102 CORAM : OWEN J HEARD : 27 JANUARY 1999 DELIVERED : 27 JANUARY 1999 PUBLISHED : 23 JULY 1999 FILE NO/S : CIV 1060 of 1999

MATTER : Application for Writ of Certiorari and Writ of Mandamus against KIERAN BOOTHMAN SM, Kalgoorlie Coroner

EX PARTE

JOANNE CYNTHIA TRIGG
Applicant

Catchwords:

Suitor's Fund - Order nisi for certiorari - Costs certificate - Whether proceedings by way of "appeal" - Whether Court would have awarded costs "but for the provisions of some other Act or law

Legislation:

Suitor's Fund Act 1964 (WA)

Result:

Application declined

(Page 2)

Representation:

Counsel:

Applicant : Ms K Vernon

Solicitors:

Applicant : Arthur Metaxas & Co

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

Basapa v Burton (1991) ASC 56,724
Ex Parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996

Case(s) also cited:

Re Burton; Ex parte Potomac Marine Services Pty Ltd; Library No 930274; 29 April 1993

(Page 3)

1 OWEN J: On 27 January 1999 the return of an order nisi for a writ of certiorari and a writ of mandamus came before this Court. The order nisi concerned a decision made by the Kalgoorlie Coroner ("the Coroner"), given on 8 January 1999 to release the body of Neville Benjamin Cook deceased, to his de facto wife, Ms Larnie Barrett. Although the application was heard ex parte notice of the application was served on both the Coroner and Ms Barrett. Prior to the hearing the court was advised by the Crown Solicitor's office that the Coroner intended to abide by the decision of this Court. Ms Barrett did not enter an appearance.

2 At the conclusion of the hearing I was satisfied that an error of law on the face of the record had been made. Orders were made that the order nisi be made absolute and a writ of certiorari be issued to the Coroner removing into this Court to be quashed the decision of the Coroner made on 8 January 1999. At the time of pronouncing the appropriate orders in relation to the writ the issue of a costs certificate under s 12A(2) of the Suitor's Fund Act 1964 ("the Act") was raised. At the time, I made an order that the costs of the application be reserved with liberty reserved to the applicant to bring in written submissions as to the applicant's entitlement to a certificate under s 12A(2) of the Act.

3 The applicant filed written submissions on 11 February 1999 seeking a costs certificate pursuant to s 12A(2) of the Act. The basis of the applicant's submissions is that an application for the writ of certiorari falls within the provision of s 12A(2) of the Act, being an "appeal" on a question of law in circumstances that the court would have, but for some other Act or law, ordered the costs of the appeal to be paid by the respondent.

4 Section 12A(2) of the Act provides:

"(2) Where after the coming into operation of the Suitor's Fund Act, 1971, an appeal on a question of law succeeds and the Court that allowed the appeal would, but for the provisions of some other Act or law, have ordered costs of the appeal, fixed or to be taxed, or some proportion thereof, to be paid by the respondent-

(a) that Court shall make a finding to that effect and shall specify the amount of costs it would have fixed or state that it would have directed them to be taxed, or what proportion of the taxed costs it would have ordered to be paid, as the case requires; and

(Page 4)

(b) the Supreme Court may, upon application made to it in that behalf, grant a costs certificate to the appellant and, if so, shall include in it the substance of the finding referred to in paragraph (a) of this subsection."

5 The applicant must persuade me of three things. First, that the application for a prerogative writ is an "appeal" as that term is used in the section. Secondly, that the "appeal" involves a question of law. Finally, that but for some Act or law preventing the court from doing so, the court in these particular circumstances would have ordered the costs of the appeal or some proportion of the costs to be paid by the respondent. If the applicant can show that its application satisfied these elements then under s 12A(2)(a) the court will make a finding to that effect. It is not until the court makes the necessary finding under s 12A(2)(a) that the grant of a certificate can be made. However, unlike the finding required in s 12A(2)(a), a decision by the court to grant a certificate under s 12A(2)(b) is discretionary.

6 The first issue to be dealt with is whether the return of an order nisi for a writ of certiorari is an "appeal" within the meaning of the Act. The applicant submits that pursuant to s 3 of the Act an appeal "includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law, an order to review granted under s 197 of the Justices Act 1902, and any other proceedings in the nature of an appeal". Counsel for the applicant cited Ex Parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 as authority for the proposition that a proceeding in the form of a return of an order nisi for a writ of certiorari is an "appeal" as so defined.

7 I confess to having considerable doubt as to whether the return of an order nisi for a writ of certiorari is an "appeal" within the meaning of s 3. In Ex Parte Jurasthe Full Court made absolute an order nisi for a writ of certiorari against a medical assessment panel. There the panel did not appear, but simply advised the Court that it would abide its order. Neither had there been any appearance from the party in whose favour the panel decided the claim heard by it. An application before the Full Court was made under s 12A(2) of the Act upon the same basis as was raised in this case. The view that a proceeding before the Full Court for a writ of certiorari could be described as an "appeal" within the definition of s 3 of the Act was expressed by Murray J at 15 :

(Page 5)

"In my opinion, the return of an order nisi for a writ of certiorari is an appeal within the meaning of the definition contained in the Act, s3. Where the writ is issued, the proceeding by which it was obtained results in the quashing of the order for decision which is the subject of those proceedings. The proceeding before the Full Court may therefore be seen as a process by which, in the limited way which the issue of a writ of certiorari allows, the decision of the tribunal or administrative authority in question is reviewed and its judgment or decision set aside. Such a proceeding is, in my opinion, one properly described as being" in the nature of an appeal".

8 His Honour went on to decline to grant a certificate on other grounds, to which I shall refer shortly. The other members of the court, Franklyn and Owen JJ, expressly declined to decide the issue because it had not been fully argued. The decision is, therefore, not a binding authority.

9 I am not aware of any other decision since Juras that has dealt with the question whether the return of an order nisi is an "appeal" under s 3. This application has been argued ex parte andI do not think thatthese are the appropriate proceedings for the question to be decided finally. However for the purpose of this application (without deciding the point) I am prepared to follow the view expressed by both Murray J in Juras and White AJ in Basapa v Burton (1991) ASC 56,724 that proceedings by way of prerogative writ constitute an "appeal" as defined in the s 3 Act.

10 The second question is whether the applicant has been successful on the return of the order nisi for certiorari in relation to "a question of law". In my view the applicant satisfies this requirement. It was clear from the reasons that I published in this matter that the Coroner in reaching the decision he did, failed to apply the common law principle that if a person has named an executor and that person is ready willing and able to arrange for the burial of the deceased's body, that person has the right to do so. That, it seems to me, is a question of law.

11 The final question to be resolved is whether this is a case in which, but for the provisions of some other Act or law, I would have ordered the costs of the appeal to be paid by the respondent. This was the basis for the Court's decision to decline the s 12A(2) applications in both Jurasand Basapa. In my view the applicant is confronted with similar difficulties here.

(Page 6)

12 The difficulty is that the applicant must show, putting aside any restrictions at law on the Court in relation to its power to award costs, that the "appeal" against the decision of the Coroner was a matter in which the Court normally would have ordered the respondent to pay the costs of the appeal. The starting point is the common law principle that costs should not be awarded against a judicial or quasi-judicial officer who has acted judicially and under the honest belief that the act was within jurisdiction. This is especially so where the officer has not appeared to oppose and has agreed to abide the decision of the court. Counsel for the applicant submits that this is the restriction which, had it not been in place, the court would have followed the general rule and ordered the respondent to pay the costs of the appeal. The general rule is, of course, that costs normally follow the event. The applicant submits that apart from the application of this common law principle, there is no other reason why the general rule should not apply.

13 The applicant's submission relies on the proposition that the court's reluctance to award costs against a judicial officer arises from the application of a common law principle which prevents it from doing so. As such the applicant contends that this common law principle can be defined as "some other Act or law" in terms of s 12A(2) of the Act. Once the operation of this principle is removed from a court's consideration by the express words" but for any other Act or law" the applicant contends that there is nothing preventing the court from applying the general rule and ordering costs against the respondent.

14 I am not sure that the submission properly appreciates the basis of the jurisdiction of the court in relation to costs. By virtue of its inherent jurisdiction and under O 66 of the Rules of the Supreme Court, the court is given a general and unfettered discretion in relation to costs, subject only to express restrictions imposed by law. The fact that a court will not normally award costs against a judicial or quasi judicial officer in the circumstances I have described may, in some circumstances, be the result of the operation of law. But it may also be, and I think it would be in this case, the result of a decision of the court to exercise its discretion in that way. Although it would be unusual it is always open to a court to exercise its discretion by making a costs order, particularly where the behaviour of the respondent involves some misconduct, serious incompetence or other element, which calls for strong disapproval or censure of the Court : Basapa.

15 There is another problem here. Who is the "respondent" against whom a costs order might otherwise have been made? If prerogative writ

(Page 7)

proceedings are truly an "appeal" or something "in the nature of an appeal" it would seem strange that a decision maker is to be regarded as a "respondent". The other possibility is that the respondent is the person in whose favour the decision maker pronounced the order. Again, they might both be respondents. This is not a case where any questions arise in relation to the behaviour of the Coroner in making the decision he did. The Coroner was required to make a decision between two genuine competing claimants. There was an obvious urgency in the subject matter of the decision and it called for expeditious resolution. In making the order nisi absolute I found that the Coroner had failed to apply the correct legal principle and as a result found in favour of the wrong claimant. However, there is no suggestion the Coroner reached his decision due to misconduct, serious incompetence or other similar element on his part which would call for disapproval or censure by this Court. It seems to me there is a close correlation between the situation here and that which confronted the Full Court in Juras. There, the court indicated that it would not have exercised its discretion to award costs in favour of the applicant and against the respondents. In that case Murray J said at 16:

"…in my opinion this Court should not exercise its discretion so to award costs in favour of the applicant….

But in my opinion, so to conclude is not to say that the Court 'would but for the provisions of some other Act or law " have ordered costs to be paid. The court does not decline to award costs because of any rule of law. It does so as an exercise of discretion, taking the view that there are reasons why the ordinary rule that the successful party should have its costs, should not be applied: see Supreme Court Act 1935 (WA), s37 and the Rules of the Supreme Court 1971, O66 r1. The court is not precluded by law from ordering the payment of costs. It has the power to so but in the exercise of its discretion considers that no such order should be made."

16 In the circumstances of this case, and leaving the actual result to one side, there was nothing inappropriate in the conduct of the Coroner in reaching the decision he did. There is nothing in the circumstances which would have caused me to exercise my discretion so as to impose a costs order on the Coroner. That leaves Ms Barrett. There is nothing in the materials before the Court to suggest that Ms Barrett, as a de facto widow, did anything more than lay claim to the deceased's body for burial purposes. She did not, for example, make submissions or call evidence that might have contributed to the error of principle which, on my
(Page 8)

findings, the Coroner made. Nor did she appear at, or seek to maintain the Coroner's decision in, the hearings before the Court. Again I can see nothing in the circumstances which would have caused me to award costs against Ms Barrett.

17 I am not prepared to make the finding required of the court by s 12A(2)(a) of the Act or to grant the applicant the costs certificate which the court is empowered to grant.