Stanizzo v Complainant

[2013] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stanizzo v Complainant [2013] NSWCCA 295

Hearing dates:

14 November 2013

Decision date:

26 November 2013

Before:

Macfarlan JA at [1]
Latham J at [2]
R A Hulme J at [3]

Decision:

1. Extension of time to file notice of application for leave to appeal granted.

2. Leave to appeal granted.

3. The order for costs made in the District Court on 24 January 2013 is quashed.

Catchwords:

CRIMINAL LAW - inferior courts - District Court - jurisdiction - costs - power to award - criminal proceedings - subpoena issued by accused in criminal proceedings - failure of accused to attend hearing of motion to set aside subpoena - award of costs to respondent because preparation thrown away - nature of implied jurisdiction - power only where expressly conferred or necessarily implied - no express conferral of power to make costs in circumstances - consideration of common law prohibition against costs in criminal cases - no necessary conferral - order in excess of jurisdiction - order quashed

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
District Court Act 1973 (NSW)

Cases Cited:

Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
DPP v Deeks (1994) 34 NSWLR 523
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
R v Mosely (1992) 28 NSWLR 735

Category:

Principal judgment

Parties:

Vincent Francis Stanizzo (Applicant)
Complainant (First respondent)

Representation:

Counsel:
Mr C Waterstreet (Applicant)
Mr D Eardley (First respondent)
Solicitors:
Justice Lawyers
Downey's Lawyers

File Number(s):

2010/367199

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-01-24 00:00:00

Before:

Solomon DCJ

File Number(s):

2010/367199

Judgment

1. MACFARLAN JA: I agree with R A Hulme J.

1. LATHAM J: I agree with R A Hulme J.

1. R A HULME J: This is an application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against an order made in the District Court awarding costs to the respondent upon the setting aside of a subpoena issued on behalf of the applicant.

1. The applicant was the accused in criminal proceedings pending in the District Court at Sydney. The respondent was the complainant. As the offences included prescribed sexual assault offences nothing may be published that would identify her. Accordingly she is referred to by way of pseudonym in these proceedings.

1. The applicant requires an extension of time. The delay in filing the application was not gross and, although the explanation advanced by Mr Waterstreet of counsel was not entirely satisfactory, the granting of an extension was not opposed and in my view should be granted.

Proceedings in the District Court

1. A subpoena was issued on behalf of the applicant on 20 December 2012. It was returnable at 2pm on 24 January 2013 in the District Court at the Downing Centre, Sydney. It was directed to the respondent and called for the production of a wide variety of documents. The solicitors for the respondent filed a notice of motion seeking an order that the subpoena be set aside. It was returnable in the District Court at the Downing Centre at 10am on 24 January 2013.

1. On 24 January 2013, the motion came before his Honour Judge Solomon. There was an appearance by counsel for the respondent but no appearance for the applicant. The matter was stood in the list and when his Honour came back to the matter there was still no appearance by or for the applicant. His Honour then ordered that the subpoena be set aside. Counsel for the respondent made an application for costs. His Honour granted that application and ordered that the applicant pay the respondent's costs in the sum of $2365.

1. The solicitors for the applicant then filed a notice of motion seeking an order that the orders made on 24 January 2013 be set aside. That motion also came before his Honour Judge Solomon on 11 February 2013. His Honour concluded that he had no power to deal with it as the validity of the order that he made on 24 January 2013 was a matter for the Court of Criminal Appeal.

1. A notice of application for leave to appeal was filed in this Court on 11 March 2013.

Issue on the application

1. The proceedings involve a single issue: does the District Court in its criminal jurisdiction have power to make an order for costs to a successful applicant for the setting aside of a subpoena?

Determination

1. It was common ground, and I accept, that the District Court, as an inferior statutory court, has no inherent jurisdiction. It has only such powers as are expressly conferred upon it or as are necessarily implied from the express conferral of jurisdiction (the latter most commonly referred to as "implied" jurisdiction): John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at [24]; [28] per Spigelman CJ. The Chief Justice spoke (at [35]) of the question of whether a matter is within the implied jurisdiction being determined by a test of necessity and he referred (at [37]) to authority for the proposition that this test is a strict one.

1. It was also common ground, and I accept, that there is no express conferral on the District Court of a power to order costs in criminal proceedings as a consequence of the setting aside of a subpoena. Indeed the circumstances in which costs can be awarded in criminal proceedings in the District Court are significantly limited in accordance with the provisions of the District Court Act 1973 (NSW) and the Criminal Procedure Act 1986 (NSW). Accordingly it is necessary to determine the question whether a power to order costs upon the setting aside of a subpoena can be implied by a strict test of necessity.

1. In R v Mosely (1992) 28 NSWLR 735, it was not only confirmed that there was no express power for the District Court exercising its criminal jurisdiction to make an order for costs but it was also held that there was no implied power to do so. Gleeson CJ reviewed the common law which had long held that there was a general rule that orders for costs are not made in criminal proceedings (at 738-739).

1. In Mosely, a District Court judge had purported to apply s 6 of the District Court Act which authorised the making of orders or directions or granting leave to do something "on such terms and conditions (if any) as the Court thinks fit". The judge granted the Crown an adjournment of a criminal trial but ordered that it pay the costs of the accused. This Court held that this was done in excess of jurisdiction.

1. In DPP v Deeks (1994) 34 NSWLR 523, Kirby P reviewed statutory and common law sources on the subject of whether the District Court had the power to make orders for costs in its criminal jurisdiction and concluded (at 533):

"[N]o general power exists in the District Court to make an order imposing on the Crown (or its manifestation the DPP) or, for that matter, on the accused or any other person an obligation to pay professional costs."

1. Later, his Honour further observed (at 534) that there was a:

"... strong pre-supposition of the law of this country, based upon long history, that the power to award costs in criminal proceedings must, if it is to exist, be very clearly conferred."

1. The high point of the submissions for the respondent in favour of there being an implied power to make an order for costs in the circumstances pertaining to this case was the reference to Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, a decision of Hunt J (as he then was) sitting as a single judge in the Common Law Division. In that case it was held that a magistrate had a power to make an order for costs upon the setting aside of a subpoena.

1. The problem for the respondent is that that single judge decision has been overtaken by the decisions in Mosely and Deeks and for that reason should not be followed.

Conclusion

1. In the light of the two decisions of the Court of Appeal referred to above, the outcome of the present application is clear. There was no power available to his Honour Judge Solomon to make the order for costs in favour of the respondent when he granted her application on 24 January 2013 to set aside the applicant's subpoena. Accordingly I propose the following orders:

1. Extension of time to file notice of application for leave to appeal granted.

2. Leave to appeal granted.

3. The order for costs made in the District Court on 24 January 2013 is quashed.

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Decision last updated: 26 November 2013