Re Grinter;
[2004] WASCA 79 (S)
•11 JUNE 2004
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
TITLE OF COURT : THE FULL COURT (WA)
| CITATION | : | RE GRINTER; EX PARTE HALL [2004] WASCA 79 (S) |
| CORAM | : MALCOLM CJ |
STEYTLER J
MCKECHNIE J
| HEARD | : 22 APRIL 2004 | ||
| DELIVERED | : 22 APRIL 2004 | ||
| SUPPLEMENTARY | |||
| DECISION | : 11 JUNE 2004 | ||
| FILE NO/S |
| ||
| MATTER |
|
and
Application for a Writ of Prohibition against the JUSTICES comprising the COURT OF PETTY SESSIONS at Perth
EX PARTE
MATTHEW JAMES HALL
Applicant
| FILE NO/S | : | CIV 1901 of 2003 |
| MATTER | : | Application for a Writ of Certiorari against TREVOR CEDRIC GRINTER |
| and |
[2004] WASCA 79 (S)
Application for a Writ of Prohibition against the JUSTICES comprising the COURT OF PETTY SESSIONS at Perth
EX PARTE
BARRYMORE CHARLES DAVIS
Applicant
| FILE NO/S | : | CIV 1902 of 2003 |
| MATTER | : | Application for a Writ of Certiorari against TREVOR CEDRIC GRINTER |
| and | ||
| Application for a Writ of Prohibition against the Justices comprising the COURT OF PETTY SESSIONS at Perth | ||
| EX PARTE | ||
| SALMAT DOCUMENT MANAGEMENT SOLUTIONS PTY LTD (ACN 000 553 284) Applicant | ||
| FILE NO/S | : | CIV 1903 of 2003 |
| BETWEEN | : SALMAT DOCUMENT MANAGEMENT |
SOLUTIONS PTY LTD (ACN 000 553 284)
Plaintiff
AND
TREVOR CEDRIC GRINTER
First Defendant
RICHARD MONTGOMERY ANDERSON
Second Defendant
Catchwords:
Costs - Certiorari and prohibition - Appearance on behalf of Commonwealth
Director of Prosecutions as a Contradictor - Liability for costs
Legislation:
Justices Act 1902 (WA), s 102, s 104(3)
Rules of the Supreme Court 1971 (WA), O 56 r 7
Result:
Orders as to costs against Contradictor
Category: C
[2004] WASCA 79 (S)
Representation:
CIV 1900 of 2003
Counsel:
| Applicant | : | Mr M E Dean SC |
| Interested Party | : | Mr L R M Fletcher |
Solicitors:
| Applicant | : | Dwyer Durack |
| Interested Party | : | Commonwealth Director of Public Prosecutions |
CIV 1901 of 2003
Counsel:
| Applicant | : | Mr A R Beech |
| Interested Party | : | Mr L R M Fletcher |
Solicitors:
| Applicant | : | Tottle Partners |
| Interested Party | : | Commonwealth Director of Public Prosecutions |
CIV 1902 of 2003
Counsel:
| Applicant | : | Mr M B J Lee |
| Interested Party | : | Mr L R M Fletcher |
Solicitors:
| Applicant | : | Corrs Chambers Westgarth |
| Interested Party | : | Commonwealth Director of Public Prosecutions |
[2004] WASCA 79 (S)
CIV 1903 of 2003
Counsel:
| Plaintiff | : | Mr M B J Lee |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Interested Party | : | Mr L R M Fletcher |
Solicitors:
| Plaintiff | : | Corrs Chambers Westgarth |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Interested Party | : | Commonwealth Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Levy v The State of Victoria (1997) 189 CLR 579
Woodside Petroleum Pty Ltd v H & R – E & W Pty Ltd, unreported; SCt of
WA; Library No 980184; 9 April 1998
Case(s) also cited:
ASC v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Attorney General (WA) v Marquet [2003] HCA 67
City of Burnside v Attorney General (SA) (1994) 63 SASR 65
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Marquet v Attorney General (WA) (2002) 26 WAR 201
Re Boothman; ex parte Trigg [1999] WASC 102
Re McBain; ex parte Catholic Bishop's Conference (2002) 209 CLR 372
[2004] WASCA 79 (S)
MALCOLM CJ
MALCOLM CJ: These reasons relate to the question of costs in respect of these proceedings. On the morning of 22 April 2004, reasons for judgment were delivered. The question of the precise form of relief was dealt with later that day and submissions made. The Court, then constituted by Steytler and McKechnie JJ, made orders in terms of minutes submitted by counsel for the Commonwealth Director of Public Prosecutions.
In the result, on the applications by Hall (CIV 1900 of 2003) and Salmat Document Management Solutions Pty Ltd ("Salmat") (CIV 1902 of 2003), orders were made by which orders nisi for a writ of certiorari issued against Trevor Cedric Grinter to quash his decision on or about 8 July 2003, whereby he issued summonses to examine witnesses, including a summons addressed to Barry Davis (to attend the Court of Petty Sessions in Perth on 31 July 2003) and Ken Pitt (to attend the Magistrate's Court in Melbourne to appear by way of video conference at the Court of Petty Sessions in Perth on 31 July 2003) to testify what each of them knew with respect to a complaint made by Richard Montgomery Anderson against the applicant and others at the Court of Petty Sessions Perth, be made absolute.
3 Salmat and Hall also obtained orders for writs of prohibition against
the Justices comprising the Court of Petty Sessions at Perth from proceeding further with the examination of any witness to a summons issued pursuant to s 102 of the Justices Act 1902. There was also an order for a writ of prohibition issued against the Justices from proceeding further with respect to committing Hall for trial pursuant to s 104(3) of the Justices Act be discharged.
4 Davis obtained an order for the order nisi for a writ of prohibition against the Justices to be made absolute. The order nisi for a writ of certiorari in his case was ordered to be discharged. Davis was also joined as a person interested in proceeding CIV 1900 of 2003 and CIV 1902 of 2003.
5 Orders were made for the filing and service of submissions as to
costs by the Commonwealth Director of Public Prosecutions as Contradictor by 30 April 2004, with submissions by any party in reply within a further seven days, with the question of costs, including reserved costs, being otherwise reserved.
[2004] WASCA 79 (S)
MALCOLM CJ
CIV 1902 and 1903 of 2003
6 By fax dated 24 May 2004 to my Associate, Salmat indicated that it
did not seek any order for costs in proceedings CIV 1903 of 2003. That proceeding has become unnecessary and the solicitors for Salmat have informed the Court that Salmat does not seek any order for costs in respect of those proceedings.
7 As to CIV 1902 of 2003, in the ordinary course, costs would follow
the event. The Director, however, contends that he was not a party to the proceedings and no relief was sought against him as Contradictor. It was submitted that he appeared for the purpose of providing contradictory argument for the benefit of the Court, in circumstances in which none of the parties against whom relief was sought proposed to address argument to the Court. It was also submitted that because no application was made at any time by any applicant to join the Director as a party to the proceedings and the Contradictor did not apply to be made a party, it followed that the Contradictor was before the Court as amicus curiae.
8 Counsel for the DPP did not announce an appearance as amicus curiae, but stated to the Court that in all of the matters "with my learned friend Mr Fletcher, I appear on behalf of the Commonwealth Director of Public Prosecutions".
9 That appearance was made upon the return of the order nisi for writs of certiorari or prohibition against Mr Grinter, the Court officer who caused the relevant summonses to be issued to the persons who subsequently obtained the orders nisi for certiorari and prohibition. In the context of proceedings for a prerogative writ, O 56 r 7 of the Rules of the Supreme Court 1971 (WA) provides that:
"(1) On the hearing of the application the Court shall hear any person who desires to oppose it, and appears to the Court to be a proper person to be heard, notwithstanding that he has not been served with the order nisi or notice of motion. (2) A person who is served with the order nisi or notice of motion or who is heard under this Rule, may, in the discretion of the Court, be ordered to pay costs."
It was clear that the DPP was within the category described by Brennan CJ in Levy v The State of Victoria (1997) 189 CLR 579 at 601 as:
[2004] WASCA 79 (S)
MALCOLM CJ
"…a non-party whose interests would be affected directly by a decision in the proceeding – that is, one who would be bound by the decision albeit not a party – must be entitled to intervene to protect the interest liable to be affected."
11 Brennan CJ also identified at 603 as in the same category a party
who would be entitled to be heard to ensure that all matters relevant to the consideration of the issues are canvassed before the Court. As Brennan CJ put it in Levy v The State of Victoria (supra) at 603 – 604:
"However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error which would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied: The "Killarney" (1862) Lush 427 at 435 [167 ER 188 at 193]."
12 In my opinion, it was open to any of the applicants to join the
Commonwealth DPP as a party to the proceedings. They did not do so. Neither was any objection raised when Mr Martin QC, immediately following the announcement by Mr Dean SC that he appeared for the applicant Hall, announced that:
"In that matter and, indeed, in all other matters, with my learned friend Mr Fletcher, I appear on behalf of the Commonwealth Director of Public Prosecutions."
13 There were no limitations or qualifications placed on the appearance,
in particular, it was not announced that Mr Martin and Mr Fletcher
appeared as amicus curiae.14 In my opinion, given the circumstances in which the unequivocal
appearance was announced in conjunction with the substantive role played on behalf of the Director as Contradictor, the Director being a person who was heard under the Rule, was liable, in the discretion of the Court, to be
[2004] WASCA 79 (S)
MALCOLM CJ
ordered to pay costs. The Director did not have in any of the proceedings
standing as amicus curiae.15 The Director was a proper Contradictor because he had a significant
interest in the proceedings although he was never joined as a party. I accept that submissions on his behalf were confined to matters of law and the proper construction of the relevant statutes. They were nonetheless substantive submissions in opposition to the applicants.
16 While I accept that his submissions were confined to matters of law
relating to the proper construction of the relevant statutes and the constitutional questions involved, these were the issues which were at the heart of the controversy agitated before the Court. It was, of course, the Director who was the party that caused the various summonses to be issued and invoked the relevant statutory provisions.
17 In these circumstances, I am of the opinion that it would be
appropriate to order that the Director pay the costs of each of the successful applicants in this Court. It also needs to be recognised, however, that the applicants did not succeed on all of the issues raised.
18 In Woodside Petroleum Pty Ltd v H & R – E & W Pty Ltd , unreported; SCt of WA; Library No 980184; 9 April 1998, the costs awarded were reduced to reflect the lack of success on some issues. In all the circumstances, I do not accept the submission that in CIV 1900 of 2003 the applicants' costs should be reduced by one-third to reflect the issues on which he was unsuccessful.
19 In CIV 1902 and CIV 1903 of 2003, while Salmat did not succeed in
obtaining relief to prevent the committal mentioned, it was not suggested that the Court should for that reason alone reduce any costs it might otherwise be minded to make in Salmat's favour. I would order that the Director pay Salmat's costs of the proceedings to be taxed.
CIV 1900 of 2003
20 In my opinion, the situation in the case of the application by Hall was
substantially the same as that of Salmat. For the same reasons, I would
order that the Director pay Hall's costs of the proceedings to be taxed.
CIV 1901 of 2003
21 In CIV 1901 of 2003, the applicant Davis brought his proceedings in
the wrong forum. His primary claim for relief was dismissed. The relief which was granted to him added nothing to the relief granted to the other
[2004] WASCA 79 (S)
MALCOLM CJ
STEYTLER J
applicants and his argument added nothing to the limited argument dealing with that relief. As against that, it was necessary for him to institute the proceedings to obtain the necessary relief.
22 Mr Davis obtained substantive relief by way of a writ of prohibition.
His argument was confined to the submission that the Judiciary Act did not pick up s 102 of the Justices Act. This argument was accepted by all members of the Court and was the basis of the decisions of both Steytler J at [79] – [80] and McKechnie J at [150] – [156] and [208].
23 It was submitted on behalf of Mr Davis that the application for the
issue of a writ of certiorari, being one of the two forms of relief sought, which was dismissed on jurisdictional grounds was not a sufficient basis to decline to make any costs order in favour of Mr Davis. As counsel for Mr Davis submitted, the argument about jurisdiction was raised at a very late stage. It occupied a very small fraction of the argument. It did not preclude the obtaining by Mr Davis of substantive relief.
24 The fact that other applicants succeeded in obtaining relief which
substantially overlapped with that sought by Mr Davis was not a sufficient reason to refuse him an award of costs. As was submitted by his counsel, Mr Davis was properly an applicant on behalf of whom both written and oral submissions were made. Counsel for Mr Davis filed comprehensive written submissions. His oral submissions sought to avoid repetition of those already made on behalf of the other applicants. In my opinion, his substantial success in relation to his submissions should be reflected by an appropriate order for costs. In his case, I would order that he be entitled to 80 per cent of his costs to be taxed.
STEYTLER J: In applications CIV 1900 of 2003 and CIV 1902 of 2003 Matthew Hall ("Hall") and Salmat Document Management Solutions Pty Ltd ("Salmat") were respectively successful in obtaining orders by which orders nisi for a writ of certiorari were made absolute. These orders nisi had been issued against Trevor Cedric Grinter to quash his decision on or about 8 July 2003, whereby he issued summonses to examine witnesses, including the applicant in CIV 1901 of 2003, Mr Barrymore Davis ("Davis"), to testify what each of those witnesses knew with respect to a complaint made against the applicant and others at the Court of Petty Sessions. Salmat and Hall also obtained orders for the issue of writs of prohibition against the Justices of the Court of Petty Sessions at Perth prohibiting them from proceeding further with the examination of any witness pursuant to a summons issued, in respect of the complaint, under s 102 of the Justices Act 1902. Orders were made discharging orders nisi for the issue of writs of prohibition against the Justices restraining them
[2004] WASCA 79 (S)
STEYTLER J
from proceeding further with respect to the committal of Hall and Salmat
for trial pursuant to s 104(3) of the Justices Act.26 In proceeding CIV 1901 of 2003 Davis succeeded in obtaining an
order making absolute an order nisi for a writ of prohibition to be issued against the Justices in respect of the witness summons served upon him, but, in his case, an order nisi for the issue of a writ of certiorari against Mr Grinter, quashing his decision to issue a witness summons against Davis, was discharged on jurisdictional grounds. An order was made joining Davis as a person interested in proceedings CIV 1900 of 2003 and CIV 1902 of 2003.
27 Orders were also made for the filing and service of submissions as to
costs by each of the applicants and by the Commonwealth Director of Public Prosecutions ("DPP"), as Contradictor. Those submissions having been filed, the Court is required now to decide what orders should be made in respect of costs.
28 The submissions advanced on behalf of the DPP sought to categorise
him as an amicus curiae in these proceedings. He was said to be so because he was not a party to the proceedings and no relief was sought against him and because the sole purpose of his appearance had been to provide contradictory argument for the benefit of the Court in circumstances in which none of the parties against whom relief was sought proposed to address argument to the Court.
29 I am not persuaded that the DPP is correctly so categorised in these
proceedings. At no time did he ever seek leave to appear as an amicus. Nor did he ever suggest that he was an amicus. Rather, he sought to defend his view, expressed in the course of the proceedings and prior to them, that the position taken up by the various applicants, as ventilated in these proceedings, had no merit.
30 In the course of the various applications for orders nisi, the contention was made on behalf of the DPP that he had a right to be heard, more particularly in circumstances in which the effect of the various applications, if successful, would be to interfere in criminal proceedings. On the return of the applications before the Full Court, no limitation or qualification was placed on the appearance on behalf of the DPP and nor was any objection made to that appearance.
31 In these circumstances, it seems to me that the DPP's appearance
might better be categorised as having been one pursuant to the provisions
[2004] WASCA 79 (S)
STEYTLER J
of O 56 r 7(1) of the Rules of the Supreme Court 1971 (WA). That rule
reads as follows:
"(1) On the hearing of the application the Court shall hear any person who desires to oppose it, and appears to the Court to be a proper person to be heard, notwithstanding that he has not been served with the order nisi or notice of motion."
32 The DPP undoubtedly desired to be heard on the hearing of the
application and was, equally undoubtedly, a proper person to be heard. The interests of his office were directly affected by the relief sought in the proceedings and that, of itself, was sufficient to entitle him to intervene: Levy v The State of Victoria (1997) 189 CLR 579 at 601. While it is true that the submissions advanced on behalf of the DPP were confined to matters of law, and were of considerable assistance to the Court, that, of course, cannot of itself result in his being categorised as an amicus when, in truth, he was an intervenor advancing or protecting the interests of his office. It follows, by virtue of the provisions of O 56 r 7(2), that the Court has a discretion to order him to pay the costs of his unsuccessful opposition.
That brings me to the question whether he should be ordered to pay
those costs.
34 So far as the applicant Hall is concerned (CIV 1900 of 2003),
counsel for the DPP submitted that, because Hall was not successful in having all of his submissions accepted by a majority of the Court, and in attempting to restrain the committal mention under s 104 of the Justices Act, there should be a reduction of the costs awarded in his favour or some award in favour of the DPP in respect of the costs of the issues upon which he failed. While it is true that some of the contentions advanced on Hall's behalf were not accepted by the majority, that was because the majority took the view that it was unnecessary to consider them. In my opinion, that provides no basis for depriving Hall of his costs or any part of them, least of all in circumstances in which those contentions were accepted, in large measure, in the judgment of the Chief Justice. Nor, in my opinion, does it matter that Hall did not obtain an order restraining the committal mention under s 104 of the Act (an issue which took up little time at the hearing of the application). The fact remains that he was substantially successful in his application.
[2004] WASCA 79 (S)
STEYTLER J
35 So far as Salmat is concerned, the only point raised on behalf of the
DPP in proceeding CIV 1902 of 2003 was that Salmat did not succeed in obtaining relief to prevent the committal mention. However, the DPP did not suggest that the Court should, for that reason alone, reduce any costs award it might otherwise be minded to make in its favour. In my opinion, Salmat having been substantially successful in its application, it is appropriate, in the exercise of a discretion, to award it the whole of its costs of the application.
36 I should add that, while Salmat had also commenced other, related,
proceedings under number CIV 1903 of 2002, those proceedings were not aired before us and Salmat did not seek any order for costs in respect of them.
37 That leaves the applicant Davis. Counsel for the DPP submitted that,
because Davis had brought his claim for the issue of a writ of certiorari in the wrong forum and had consequently failed in that claim, and because such relief as was granted to him added nothing to that which had been granted to the other applicants, there should be no order as to costs in his favour.
38 While it is undoubtedly a relevant consideration that Davis failed in
his jurisdictional argument, the point was raised against him only at the last minute and took up a comparatively small amount of time. Davis was otherwise successful in having his arguments accepted by the Court and the fact that arguments advanced on his behalf, and the relief accorded him, overlapped the arguments and relief in the other applications provides no reason for denying him his costs.
39 In these circumstances, it seems to me that an appropriate exercise of
discretion would be one which awarded to Davis 80 per cent of his costs, the reduction being made as a result of his failure on the jurisdictional issue.
CONCLUSION
40 It follows that, in application CIV 1900 of 2003, I would order that
Hall is entitled to an order for the payment of his costs of the application by the DPP, such costs to be taxed. I would make a similar order in favour of Salmat in application CIV 1902 of 2003. In application CIV 1901 of 2003, I would order that Davis is entitled to have 80 per cent of his costs paid by the DPP, such costs to be taxed. In each case the order for costs should encompass any reserved costs.
[2004] WASCA 79 (S)
MCKECHNIE J
MCKECHNIE J: For the reasons given by Malcolm CJ and Steytler J, I agree with the orders they propose.
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