Victoria Legal Aid v County Court
[2002] VSC 506
•25 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6377 of 2002
| VICTORIA LEGAL AID | Plaintiff |
| v | |
| THE COUNTY COURT | First Defendant |
| and | |
| THE GATEHOUSE CENTRE | Second Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2002 | |
DATE OF JUDGMENT: | 25 November 2002 | |
CASE MAY BE CITED AS: | Victoria Legal Aid v The County Court | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 506 | |
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COSTS – application for certiorari quashing costs order – costs incurred in relation to an adjournment of subpoena – Crimes (Criminal Trials) Act 1999 section 25
Administrative Law Act 1978 – section 10
Appeal Costs Act 1998 – section 17
Crimes (Criminal Trials) Act 1999 – section 25
Supreme Court (General Civil Procedure) Rules 1996 – Rules 42.08(1), 56
Atlas v DPP [2001] 3 VR 211
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (QLD) Pty Ltd (1993) 117 ALR 253
Craig v South Australia (1995) 184 CLR 163
Etna v Arif [1999] 2 VR 342
Lianos v Inner and Easter Health Care Network [2001] 3 VR 136
Hansford v Judge Neesham (1994) 7 VAR 172
Pyramid Building Society (in liq) v Farrow [1995] 1 VR 464
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Clelland | Victoria Legal Aid |
| For the Second Defendant | Mr M J Corrigan | Howie & Maher |
HER HONOUR:
Introduction
In this proceeding, commenced by originating motion on 15 July 2002, the plaintiff seeks an order in the nature of certiorari under Order 56 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”) quashing the order of His Honour Judge Stott, a Judge of the County Court, made on 15 May 2002, directing the plaintiff (“VLA”) to pay the costs incurred by the second defendant (“Gatehouse”) in relation to the adjournment of a subpoena.
The Victorian Government Solicitor, acting for the first defendant (“the County Court”), notified this Court that his client did not intend to take an active role in the proceeding but would merely abide the decision of the Court save as to costs. It should be noted that section 4(1) of the County Court Act 1958 (“the County Court Act”) provides that:
A court shall be held in and for the State of Victoria styled “The County Court” . . .
The title “County Court of Victoria” given to the first defendant in the originating motion and other documents filed in this proceeding is thus incorrect.
The record in respect of which the relief is sought
Mr Corrigan, for Gatehouse, submitted that it was not open to the Court to grant relief in the nature of certiorari, because VLA had not complied with Rule 56.01(5). The relevant provisions of Order 56 are:
Order 56Judicial Review
56.01Judgment or order instead of writ
(1)Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.
.. .
(5)The Court shall not grant any relief or remedy in the nature of certiorari unless a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced or, if a copy is not produced, the non-production is accounted for to the satisfaction of the Court.
In Craig v South Australia[1] the High Court, comprising Brennan, Deane, Toohey, Gaudron and McHugh JJ, considered the circumstances in which certiorari would lie. As to the order of the District Court of South Australia which was there sought to be quashed, the Court said [2] :
In accordance with what this Court was informed is common local practice, no formal order was taken out. The closest thing to a formal record of the order is a note which appears on the back of the information and which is authenticated by the signature of the Clerk of Arraigns. That note records: “H/H orders a stay of proceeding until further order.”
It is apparent from what their Honours later said [3] that they regarded that note as legitimately part of “the record” for the purpose of the proceeding before them.
[1](1995) 184 CLR 163
[2]at 173-4
[3]at 183
Their Honours went on to say [4] :
The determination of the precise documents which constitute "the record" of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that "[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication" Hockey v Yelland 1984) 157 CLR 124 at 143, per Wilson J. It is clear from the context that Wilson J used the word "adjudication" in the sense of the actual order or ruling.
[4]at 182
Statutory prescription is provided in this State by section 10 of the Administrative Law Act 1978 (“the Administrative Law Act”), which reads:
10.Reasons to be part of record
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.
In Lianos v Inner and Eastern Health Care Network[5] the Court of Appeal in effect adopted the finding of JD Phillips J in Hansford v Judge Neesham[6] that section 10 was not limited in its operation to proceedings under the Administrative Law Act, but was available on an application under Order 56.
[5][2001] 3 VR 136
[6](1994) 7 VAR 172
The materials relevantly before the Court in the present application comprised:
the originating motion issued on 15 July 2002;
a copy of a handwritten record of the order of His Honour Judge Stott made on 15 May 2002, attested by His Honour’s Associate, and exhibited to an affidavit by an officer of the plaintiff, who deposed that it had been provided to him by the Registrar of the County Court as a record of the court file (see the passages from Craig referred to at [4] above); and
His Honour’s statement of his reasons for his decision, delivered on 15 May 2002, verified by an affidavit of the solicitor for the plaintiff.
I am satisfied that those materials constitute the record in respect of which relief is sought in this proceeding, and that they comply with Rule 56.01(5). Accordingly, I have jurisdiction to deal with the application.
The facts
The relevant events are set out in the affidavit of Ms Ellyard, the solicitor for VLA, and the exhibits thereto. In 2001 VLA was acting for a person referred to in this proceeding as RL in his trial on charges of incest and indecent act. On Friday 28 September 2001 VLA took out a subpoena duces tecum, returnable on the following Monday, 1 October 2001, against the Director of Gatehouse for the production of all records and/or files held by Gatehouse in relation to the two complainants. Gatehouse is apparently an emanation of the Royal Children’s Hospital, and was established in 1987 in accordance with State government policy to provide support services for victims of sexual assault. In her affidavit of 2 October 2001 exhibited to Ms Ellyard’s affidavit, (“the Director’s affidavit”) Ms Hogan, the Director of Gatehouse, deposes that counselling services were provided by Gatehouse to both of the complainants, and a relevant file was held by it.
Ms Ellyard deposes that:
On Monday 1 October 2001 counsel for Gatehouse appeared to indicate opposition to the subpoena and to seek an adjournment of the argument until the following day. . . . HH Judge Stott granted the adjournment. VLA’s records indicate that on that day there was no application for costs.
That passage does not state clearly whether the adjournment affected the whole trial, or merely the argument as to the subpoena. However, it appears from the submissions made to His Honour on 15 May 2002 and His Honour’s reasons for his order made that day, when read together as a whole, that the whole trial was adjourned.
On Tuesday 2 October the Director’s affidavit was filed, opposing the issue of the subpoena on the grounds of public interest immunity, and referring to the importance of confidentiality as a basis of the relationship of counsellor and client. With the consent of both parties, His Honour inspected the file, as the first stage of dealing with the matters raised by the service of the subpoena, in accordance with the procedure approved by Bongiorno J in Atlas v DPP [7] . Having perused the documents in the file, His Honour ruled:
. . . the Gatehouse Centre file does not include any material which in my view could have the potential to assist the accused or to assist in any defence or to assist in achieving fairness of his trial and having read the contents I can discern no potential legitimate forensic purpose which justice would require the release of the file to at least Ms Randozzo who appears for him for her examination.
The subpoena was set aside.
[7][2001] 3 VR 211 at [67] to [69]
Gatehouse sought costs of the adjourned day of 1 October 2001 only. In response, His Honour made an order (“the original order”) in the following terms:
In the circumstances, I think justice between the parties so far as this application is concerned, will be met if I grant to the Royal Children’s Hospital Gatehouse Centre, a certificate pursuant to the Appeal Costs Act, in respect of its attendance at court on 1 October 2001.
On 8 October 2001 RL was acquitted on all counts.
On 13 May 2002 the solicitors for Gatehouse wrote to VLA, referring to the grant of the certificate under the Appeal Costs Act 1998 (“the Appeal Costs Act”) by His Honour and continuing:
We believe that our client, the Gatehouse Centre, is ineligible for payment under the Appeal Costs Act in which case, we will apply to His Honour for an Order for costs against the VLA. You may recall the adjournment arose as the result of short service. Please note that this matter has been listed for a mention before His Honour on Wednesday 15 May 2002 at 10:00 a.m.
The relevant provision of the Appeal Costs Act is section 17, which reads:
17.Application for indemnity certificate if criminal proceeding adjourned
(1)If -
(a)the hearing of any criminal proceeding is adjourned; and
(b)the reason for the adjournment was not attributable in any way to the act, neglect or fault of a party accused or convicted of an offence to which the proceeding relates (whether that party is a defendant, appellant or respondent in the proceeding), or that party's legal practitioner; and
(c)that party pays, or is ordered to pay, any additional costs as a consequence of the adjournment -
that party may apply to the court for, and the court may grant, an indemnity certificate in respect of that party's own costs of the adjournment.
(2)The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that -
(a)the reason for the adjournment was as set out in sub-section (1)(b); and
(b)the party has necessarily incurred additional costs as a consequence of the adjournment.
(3)A party granted an indemnity certificate under sub-section (1) is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the adjournment that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party.
(4)For the purposes of this section, a criminal proceeding is deemed to have been adjourned if the court hearing the proceeding, the informant or the Director of Public Prosecutions (as the case may be) notifies the accused or their legal practitioner that a date has been fixed for the hearing of the proceeding, and the proceeding is not listed for hearing on that day.
That section provides for a certificate to be granted only to “a party accused or convicted of an offence to which the proceeding relates”. It was not in issue at the hearing on 15 May 2002 that Gatehouse was not such a party, and accordingly was not entitled to a certificate under that section. After hearing submissions for both Gatehouse and VLA, His Honour made an order under section 25 of the Crimes (Criminal Trials) Act 1999 (“the Criminal Trials Act”), which is the order here under review. That provision reads, so far as relevant:
25.Costs liability of legal practitioner
(1)If a legal practitioner for a party in a criminal proceeding to which this Act applies, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by undue delay or negligence or by any other misconduct or default, the court may order that -
(a)all or any of the costs between the legal practitioner and the client be disallowed or that the legal practitioner repay to the client the whole or part of any money paid on account of costs; or
(b)the legal practitioner pay to the client all or any of the costs which the client has been ordered to pay to any party; or
(c)the legal practitioner pay all or any of the costs payable by any party other than the client.
(2)Without limiting sub-section (1), a legal practitioner is in default for the purposes of that sub-section if any proceeding cannot conveniently be heard or proceed, or fails or is adjourned without any useful progress being made, because the legal practitioner failed to -
(a)attend in person or by a proper representative; or
(b)file any document which ought to have been filed; or
(c)file any document in court which ought to have been filed; or
(d)be prepared with any proper evidence or account; or
(e)otherwise proceed.
His Honour’s reasons for making the order of 15 May 2002 read in part:
I can find no reason why the [Criminal Trials] Act would not apply to a criminal trial where a legal practitioner causes a delay in it by reason of short service of a subpoena on a party from whom (in this case) he wanted to obtain documents. And I reject the submission that the Act does not apply in the circumstances of this case. When one looks at s. 25 in particular, there is no reference to gross negligence as appears in some of the cases, either under the County Court Rules, the County Court Act or the Legal Professional Practice Act to which I have been referred. . . .
[After referring to section 25(1)(c) of the Criminal Trials Act]:
Here, it was the legal practitioner who issued and served the subpoena late. It did cause delay and there has been no explanation as to why, in view of the notice that the practitioner had, the subpoena was not served in a timely fashion. I reject the notion that to order costs in these circumstances is punitive against the practitioner; it is merely designed to be compensatory to the party who had the unnecessary attendance on 1 October 2001. Accordingly, I propose to order that [VLA] pay to [Gatehouse], or its solicitor, the costs incidental to attendance by that party at court on 1 October 2001.
Jurisdictional error
Mr Clelland for VLA submitted that His Honour had acted in excess of jurisdiction in making the order under review.
He submitted first that His Honour was functus officio at the time when that order was made. He relied on the judgment of the Full Court of the Federal Court in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd[8] as authority for the common law rule that once a judgment of the court has been passed and entered (in this jurisdiction read ”authenticated”), the court lacks power to make an order which alters or sets aside that judgment.
[8](1993) 117 ALR 253
However, there is no material before me from which I could find that the original order was authenticated. It is evidenced before me by a copy of a handwritten note in similar form to that described in [8] above. Further, it is common ground that the original order was beyond power and a nullity. I am satisfied that His Honour could not be regarded as functus officio at the time of making of the order of 15 May 2002 and that submission accordingly fails.
Mr Clelland’s next submission was that section 25(1)(c) of the Criminal Trials Act did not empower His Honour to make a costs order in relation to a subpoena. That provision enables the making of an order, in the circumstances there set out, in favour of a “any party” other than the client of the legal practitioner against whom the order is made. The word “party” is not defined in section 25 or elsewhere in the Criminal Trials Act.
He referred to Pyramid Building Society (in liq) v Farrow[9] where Byrne J was concerned with an application for an order under Rule 42.08(1) of the Rules, which reads:
[9][1995] 1 VR 464
42.08 Conduct money insufficient to meet expense and loss
(1)Where a person named not being a party reasonably incurs in complying with a subpoena expense or loss substantially exceeding the amount of any conduct money given, the Court may order that the party who filed the subpoena pay to that person an amount in respect of that expense or loss.
His Honour said [10] :
Although it was not put in argument before me, I note in passing that the Supreme Court Act 1986 section 6(1) defines "party" as including "every person served with notice of or attending any proceeding, whether named on the record or not". Section 23 of the Interpretation of Legislation Act 1984 provides that:
Where an Act confers power to make a subordinate instrument, expressions used in a subordinate instrument made in the exercise of that power shall, unless the contrary intention appears, have the same respective meanings as they have in the Act conferring the power as amended and in force for the time being.
Prima facie, then, it would seem that the word "party" as used in Rule 42.08(1) has the same meaning as in the Supreme Court Act. If, however, this is correct, a consequence would be that the act of attending a proceeding in response to a subpoena would make that person a party and therefore disentitle that person from claiming any loss or expense under that rule. Such an interpretation would deprive the rule of any utility and I conclude that the statutory definition of "party" does not apply to it. Although the witnesses before me were intimately involved in the subject matter of the litigation, they are not parties for the purposes of the rule.
[10]at 466-467
Mr Clelland relied on that passage as authority for the proposition that a person who attended at a criminal trial merely as a witness called on subpoena was not a “party” in that proceeding and therefore section 25(1)(c) did not empower the making of an order against such a person. However, it is clear from the passage cited that that decision relates to the meaning of “party” only as it occurs in Rule 42.08, and turns on the interrelation between the definition of “party” in the Supreme Court Act 1986 (“the Supreme Court Act”) and that Rule. His Honour was not laying down a principle applicable to the meaning of “party” in all circumstances. The Supreme Court Act has no relevance to the interpretation of section 25 of the Criminal Trials Act.
Mr Clelland then referred to Etna v Arif[11] in which the Court of Appeal was concerned with Rule 63.23(1) of the Rules, which at the relevant time was, for present purposes, to the same effect as section 25(1) of the Criminal Trials Act (although not identical in its terms). Batt JA, with whom Charles and Callaway JJA agreed, said:
I consider that “negligence” in par. (1) connotes more than “mere” or “tortious” negligence: some kind of professional impropriety or “gross” negligence is required . . . [12]
Mr Clelland submitted that that interpretation was necessarily applicable to Section 25(1), and submitted that the late filing and service of the subpoena did not amount to professional impropriety or gross negligence so as to justify the making of an order under that provision.
[11][1999] 2 VR 342
[12]at [79]
However, Rule 63.23(2) section 25(2) was, at the relevant time, also in effectively the same terms as section 25(2), and Batt JA went on to say [13] :
For the avoidance of doubt, I make it clear that nothing that I have said about the interpretation of para. (1) is intended to derogate from the express provisions of para. (2). That paragraph, it may be noted, fastens upon the word “default” in para. (1) rather than the word “negligence”.
[13]at [83]
I am satisfied that the late filing and service of the subpoena fell within section 25(2), so as to empower Judge Stott to make the order under review on the basis set out in the passage from His Honour’s reasons which is cited at [15] above. Whatever the purpose for which Gatehouse required the adjournment, a matter on which there is some dispute, His Honour was entitled to find, as he did, that it was the short service of the subpoena which had caused the delay. When an application is made to a court for an adjournment in order to prepare a response to a document which has been served late on the person making the application, the fact of late service will always be a significant factor in the mind of the court considering that application.
Error on the face of the record
Mr Clelland submitted that it was an error on the face of the record for His Honour to “reject the notion that to order costs in these circumstances is punitive against the practitioner” [14] . He relied on the statement of Batt JA in Etna [15] that:
It is established that an order that a solicitor personally pay costs is not an order “as to costs only” which are in the discretion of the court, but rather is an order in the disciplinary jurisdiction of the court (even though the main object of the order may be compensatory).
[14]see [15] above
[15]at [69]
However, assuming without deciding that that was an incorrect statement of the law by His Honour, it was not an error of sufficient significance to justify the making of the order sought.
The other submissions of Mr Clelland under this head have already been dealt with in the context of jurisdictional error.
Conclusion
For these reasons, the application of the plaintiff is dismissed.
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