Wright v Keon-Cohen & Anor; Currie v Neesham & Anor; Danci v Duggan

[1992] HCATrans 342

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M59 of 1992

B e t w e e n -

MAXWELL AUSTIN JOHN WRIGHT

Applicant

and

JUDGE CHESTER STEWART
KEON-COHEN and THE DIRECTOR
OF PUBLIC PROSECUTIONS FOR THE

STATE OF VICTORIA

Respondent

Office of the Registry

Melbourne No M60 of 1992

B e t w e e n -

GRAHAM GEORGE CURRIE

Applicant

Wright 1 13/11/92

and

JUDGE THOMAS ANTHONY NEESHAM

and THE DIRECTOR OF PUBLIC

PROSECUTIONS FOR THE

COMMONWEALTH OF AUSTRALIA

Respondents

Office of the Registry

Melbourne No M61 of 1992

B e t w e e n -

GHEORGHE DANCI

Applicant

and

JUDGE JAMES THOMAS DUGGAN and

THE DIRECTOR OF PUBLIC

PROSECUTIONS FOR THE STATE OF

VICTORIA

Respondents

Applications for special leave

to appeal

MASON CJ
BRENNAN J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 1992, AT 3.02 PM

Copyright in the High Court of Australia

MR D. GRACE:	If the Court pleases, I appear on behalf of the applicants, Mr Wright and Mr Currie.
(instructed by Grace & Macgregor)

MR P.M. O'SHANNESSY: If the Court pleases, I appear on

behalf of the applicant, Danci. (instructed by

Grace & Macgregor)

Wright 2 13/11/92

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, on my own behalf

in the first and third matters. (instructed by the

Solicitor to the Director of Public Prosecutions for the State of Victoria)

MR M. ROZENES, QC: If it please the Court, I appear with my

learned friend, MR E.J. LORKIN, on my own behalf in

relation to the third matter of Currie.

(instructed by the Director of Public Prosecutions

for the Commonwealth of Australia)

MASON CJ:  The Registrar has certified that he has received

a letter from the Victorian Government Solicitor

advising that the first-named respondent does not

wish to be represented in these matters. Yes,

Mr Grace.

MR GRACE:  Thank you, Your Honour. It is submitted that

these applications for special leave raise for

consideration a question of law that is of public

importance and that the interests of the

administration of the criminal justice system

require consideration of this question by this

Court.

Although the primary issue is one of the

statutory interpretation of section 78A of the

County Court Act 1958, an ancillary issue is the

processes including the award of costs.

existence of and the parameters of the County

The criminal jurisdiction of the County Court

was first conferred upon it by section 7 of the

County Court (Jurisdiction) Act 1968 which inserted

section 36A into the County Court Act.

Section 36A(2) provides as follows:

Subject to sub-section (1) and unless otherwise expressly provided the County Court

shall have jurisdiction and powers with

respect to indictable offences and the trial ·-

thereof as fully and amply to all intents and

purposes as the Supreme Court of Victoria in

like matters and the general principles of

practice and procedure observed for the time
being in the Supreme Court of Victoria with

respect to the trial or determination of

indictable offences shall be adopted and

applied in the County Court.

It is submitted that the jurisdiction or power

of the County Court to award costs in its criminal

jurisdiction derives from two sources. The first

source is section 78A and the second source is the

Wright 13/11/92

own processes. inherent jurisdiction of the Court to govern its

McHUGH J:  But that is, if I might say so, almost a hopeless

proposition, is it not? Costs are the creation of

statute. There is no inherent jurisdiction to award costs.

MR GRACE:  Once the creation has occurred it is submitted,

Your Honour, that the inherent jurisdiction can

operate to award costs in any matter before the

court. Now, section 78A, it is submitted, provides

the necessary power. Regardless of whether it is

contended for by the respondents and by the to be restricted to just civil proceedings as is

judgments of the Full Court or not, the inherent

jurisdiction of the court, once that power is

given - - -

McHUGH J: What do you mean by "the inherent jurisdiction"?

After all, the Court of Kings Bench, the Court of

Exchequer Chamber, the Court of Common Pleas did

not have power to award costs at common law. Costs

are the creation of statute.

MR GRACE:  Once the power is there, it is submitted,

Your Honour, which is the case here in section 78A, then the court has inherent jurisdiction to award

costs.

MASON CJ: But how does the express grant of statutory power

create an inherent jurisdiction to award costs?

MR GRACE:  Because if the statutory power is suggested to be

restricted by any rules of practice or procedure

which may be adopted, for instance, from the

Supreme Court, the superior court in this instance, or restricted by the express terms of section 78A,

then the inherent jurisdiction would come into

place in that event to allow the court to control

abuses of its own process.

MASON CJ:  But it has already been put to you that the Court

of Queen's Bench did not have inherent jurisdiction

to award costs. How could the County Court have

such jurisdiction, unless it got it from statute?

MR GRACE:  Section 36A allows the County Court to adopt the

rules of procedure and practice adopted in respect

of the trial of indictable offences conducted in

the Supreme Court and to adopt those rules of

practice and procedure. Now, it is submitted that

the Supreme Court has inherent jurisdiction.

MASON CJ: Where does it get that inherent jurisdiction

from?

Wright 4 13/11/92

MR GRACE:	From section 24 of the Supreme Court Act.
McHUGH J:	To do what?
MR GRACE:	To award costs in all matters before the court.

Perhaps I will come to that shortly. But if I

could return to section 78A.

McHUGH J: But you are misusing the term "inherent

not an inherent jurisdiction. jurisdiction". That is a statutory jurisdiction,

MR GRACE:  Yes. Well, perhaps I could come back to that

issue at a later time when -

MASON CJ:	Why not deal with it now?
MR GRACE:	Your Honours, section 36A is express in its terms

when it refers to the practice and procedure to be

adopted by the County Court in the exercise of its
criminal jurisdiction. It refers to the powers

that the Supreme Court has. Now, it is submitted

that the Supreme Court certainly has powers to act

within its inherent jurisdiction to award costs in

criminal matters, and - - -

BRENNAN J:  Mr Grace, it is not talking about powers, it

speaks of "the general principles of practice and

procedure observed". Now, we have the testimony of

the judgments in this case that the practice and
the procedure observed in the Supreme Court is not
to grant costs in criminal cases. Why is that not

the end of it?

MR GRACE:  Because in the case of exceptional circumstances,

at the very least, a court should be able to

exercise jurisdiction -

BRENNAN J: It is not a question of "should", it is a

question of what is the practice and procedure

observed at the time being in the Supreme Court.

MR GRACE: With respect, Your Honour, it is submitted that

the question of practice and procedure is a

different concept to the existence of a power. For

instance, this Court itself, in the exercise of its

jurisdiction pursuant to the Judiciary Act in

respect of costs has, in certain cases, in certain
exceptional circumstances, perhaps, awarded costs

in criminal matters, and the case of Whitworth is

one such example. Perhaps I could refer the Court

to that decision.

BRENNAN J: For what purpose?

MR GRACE:  As an example where the normal rule that the

Crown neither receives nor pays costs has been

Wright 13/11/92

varied in practice by the Court with there being no
suggestion that there is no power as the basis for

the making of such order.

BRENNAN J:	Why are we concerned with power under 36A(2)?
MR GRACE:	Only by reason of the reference in that

subsection to the practice and procedure adopted in
the Supreme Court in the trials of indictable

offences.

BRENNAN J:  Have you anything to suggest that the practice

and procedure of the Supreme Court, observed in the

Supreme Court with respect to the trial of indictable offences includes the awarding of costs?

MR GRACE:  Yes.

BRENNAN J: What?

MR GRACE:  Section 545 of the Crimes Act 1958 of Victoria.

That gives an express power to any court trying an

indictable offence after conviction has occurred to condemn the convicted person to an order for costs.

BRENNAN J: Anything apart from that special statutory

provision?

MR GRACE:  No, not that I can point the Court to. If I

could refer the Court to its decision in Whitworth,

(1988) 164 CLR 500. It is a very short written

judgment. There the Court was considering an

application brought by the Crown for special leave

to appeal and the Court said this in its judgment

at page 501:

In this case the Crown sought special

leave to appeal against a judgment of the

Court of Criminal Appeal of Queensland which

set aside a conviction for murder and ordered

a new trial of the respondent.	The Court of
misdirection on the meaning and application of
Criminal Appeal found that there was a
s 304A of the Criminal Code (Q). The Crown's
application for special leave failed.

In Reg v Martin the Crown failed in an

application for special leave to appeal from a

decision of the Court of Criminal Appeal of

South Australia which set aside the conviction

of the respondent for manslaughter and ordered a new trial. In that case, the respondent not

being legally aided, the Crown was ordered to

pay the respondent's costs.

Although there is jurisdiction to award

costs against the Crown in a criminal case, it

Wright 6 13/11/92

is a long-standing practice not to award costs
when a convicted person successfully applies

for special leave to appeal or succeeds on

appeal. However, an application for special

leave to appeal by the Crown is an exceptional

proceeding and there is no reason why the

appropriate cases. jurisdiction should not be exercised in

And then the Court goes on to make an order for

costs.

Now, the power to award costs by this Court is

contained within the Judiciary Act and that is

section 26 which provides:

The High Court and every Justice thereof

sitting in Chambers shall have jurisdiction to
award costs in all matters brought before the

Court, including matters dismissed for want of

jurisdiction.

Now, that, of course, is a much abridged version of

what is contained in section 24 of the Supreme

Court Act of Victoria but it is submitted that that

is a similar section in respect of power and that

at least in exceptional circumstances a court does

have power to award costs.

Section 78A is in almost identical terms to

section 131 of the Magistrates Court Act 1989. It

will be recalled that this Court in Latoudis v

Casey considered the forerunner to section 131,

namely, section 97(a)(b) of the Magistrates Court

(Summary Proceedings) Act 1975. In that case, if I

could refer the Court to 170 CLR 534, at page 542,

Your Honour the Chief Justice, at the seventh line,

said this in respect of that particular section:

By conferring on courts of summary

jurisdiction a power to award costs when

proceedings terminate in favour of the

defendant, the legislature must be taken to have intended to abrogate the traditional rule
that costs are not awarded against the Crown.

And earlier, at page 538, Your Honour the

Chief Justice said this, in the first substantive

paragraph:

The old rule was that the Crown neither

receives nor pays costs (Attorney-General (Q)

v Holland; Ex parte Hivis; Re Michaelis,

notably in criminal proceedings. That rule
has been displaced. Indeed, it could not

survive once courts of summary jurisdiction

Wright 7 13/11/92

were given a statutory discretion to award

costs in criminal proceedings.

Section 78A(l), in its terms, does not

differentiate between civil and criminal

proceedings. It provides as follows:

The costs of and incidental to all proceedings

are in the discretion of the Court and the

Court may determine by whom and to what extent

the costs are to be paid.

McHUGH J: There is a real distinction between that section

and the section considered by the High Court in Latoudis v Casey, is there not, because the old

97(a) specifically empowered the court to order the

defendant to pay to the

informant or a complainant ..... such costs as

the Court thinks just and reasonable -

and vice versa.

MR GRACE:  Yes, it did. There is, however, a reference in

the judgment of	His Honour Justice Dawson at
page 547 of the	same judgment, half-way down the
page, where His	Honour says this:

The power of a magistrates' court to

award costs was at the time relevant to these

proceedings to be found ins 97(a) and (b) of

the Magistrates (Summary Proceedings) Act 1975

( Viet) -

and in brackets he says:

(see nows 131 of the Magistrates' Court Act

1989 (Viet) to a similar effect) -

Now, section 131 of the present Act is in

almost identical terms as section 78A. If I could

read section 131(1) to the Court. It reads as
follows - this is the Magistrates' Court Act 1989:	;

The costs of, and incidental to, all

proceedings in the Court are in the discretion

of the Court and the Court has full power to

determine by whom, to whom and to what extent

the costs are to be paid.

Now, that particular section has been interpreted

and there has not been any challenge to the

interpretation when it is used on a daily basis in

the Magistrates Court that it applies to not only defendants and police but also to the Director of Public Prosecutions when he takes over a

prosecution pursuant to his powers under the

Wright 8 13/11/92

Director of Public Prosecutions Act which empower

him to do just that.

It is further submitted that the words "all proceedings" in section 78A(l) must refer to all

civil and criminal proceedings when the Act is

taken in its proper context. The distinction made

by His Honour Mr Justice Brooking and His Honour

Mr Justice Tadgell in their reasons for judgment

between the words "proceeding", singular, and

"proceedings", it is submitted, is not valid.

BRENNAN J:	Mr Grace, one can understand the argument which you would wish to put about the generality of the
power to award costs and the construction that should be given to it if it were not for 36A(2). Now, how do you get over 36A(2), allowing the fact
that apart from that provision there is a general costs awarding provision in the Act and that that
might be construed as applying to criminal cases as
well as civil? But how do you get over 36A(2)?

MR GRACE:  Perhaps one way may be this, Your Honour: prior

to the enactment of section 78A, there was clear

power existing in the County Court to award costs

in civil proceedings. There was no doubt as to the

existence of that power, and that power can be

found in a lot of provisions of the Act and also of

the rules which were promulgated pursuant to

section 78. There was no reason to introduce

section 78A into the Act to give to the County

Court a power to award costs in civil proceedings.

That power had been there from time immemorial in

respect of the County Court. So that the only

purpose, it is submitted, for the introduction of

that particular section into the County Court Act

is to give the power to award costs in all

proceedings, including civil and criminal

proceedings.

If one looks at the express terms of

section 36A, it says - there is, in fact, a saving

provision which says this:  -

Subject to sub-section (1) and unless otherwise expressly provided -

Now, it is submitted that those words "unless

otherwise expressly provided" is - - -

BRENNAN J: That governs what follows:

the County Court shall have jurisdiction and

powers with respect to -

et cetera. And then there is another second limb

to the subsection:

Wright 13/11/92

and the general principles of practice and

procedure observed ..... shall be adopted and

applied in the County Court. -

The intent is clear enough, is it not, that the

County Court was being given jurisdiction which the

Supreme Court previously exercised? There were

qualifications on the vesting of the jurisdiction	and the jurisdiction, once vested, was to be
exercised by the County Court in the same manner as the Supreme Court had exercised it. It that not the plain meaning of 36A(2)?

MR GRACE:  It is submitted that that is not the meaning that

has necessarily been adopted by a majority of the

Court. judges of both the County Court and the Supreme

BRENNAN J: Reading it now, can you see any other

construction to place upon it?

MR GRACE: That the later provision of section 78A, the

later enactment, it is submitted, overrides the

intent of the provisions of section 36A in respect

of this limited issue.

BRENNAN J:  I can understand that argument. You say there

is an implied repeal?

MR GRACE:  Yes. Getting back to this issue as to whether

the judges of both courts believe they have the

power, one needs only to consider the Pre-Trial

Criminal Procedure Rules 1989 of the County Court

and the similar rules in existence in the Supreme

Court whereby a majority of the judges of both

courts have promulgated rules allowing for costs to

be awarded in the criminal jurisdiction of the

court albeit only against solicitors.

Now, His Honour Mr Justice Brooking in his

reasons for judgment attributed the application of

that power to merely the exercise by the Supreme
Court and County Court of jurisdiction over	-
officers of the court in a disciplinary type of
vein.
However, this Court, most recently, in the case of Knight v F.P. Special Assets Limited,
(1992) 66 ALJR at page 560 held otherwise. In that
case, it will be recalled, the Court considered the question whether the Supreme Court of Queensland
has jurisdiction pursuant to its Act and rules to
make an order for costs against the receivers of
companies which were the unsuccessful parties in proceedings, the receivers themselves not being
party to those proceedings.

Wright 10 13/11/92

In the course of their joint judgment,

Their Honours-the Chief Justice and Justice Deane,

reviewed previous instances of orders being made

against non-parties including solicitors.

McHUGH J: But, accepting in your favour that 78A is wide

enough to allow a county court to order costs in

any proceedings, civil or criminal, why is not a

sufficient answer to your case to say that as long

as the practice and procedure of the Supreme Court
of Victoria is not to order costs in criminal

proceedings~ then by virtue of 36A(2) a county
court is required to follow the Supreme Court

practice?

MR GRACE:  Because that, with respect, Your Honour, would

unduly fetter the discretion of the court in

appropriate circumstances to award costs.

McHUGH J: If it does it is as a result of the legislative

intention to be seen in section 36A(2).

MR GRACE: It is not contended, as I understand, that the

Supreme Court would not have the inherent power to award costs.

McHUGH J:  It has nothing to do with inherent power. Assume

in your favour that if 36A was not in the Act, 78A

would be wide enough to enable the County Court to

order costs against the Crown in criminal
proceedings, but 36A directs the County Court, on
the trial of an indictable offence, to apply the

general principles of practice and procedure

observed for the time being in the Supreme Court of

Victoria.

MR GRACE: Well, the only answer I can give and which I have

previously given is that that relates to practice

and procedure and not to the existence of power or

jurisdiction. It is the existence of power

and - - -

McHUGH J: Costs have always been regarded as a quite

fundamental question of practice and procedure.

MR GRACE:  Yes, but they must be fundamentally based upon a

power and although the practice may be that the

Crown neither receives nor pays costs, regardless

of the existence of section 545 of the Crimes Act
or any other provision, the fact that the existence
of the power is there, in my submission, provides

the court with jurisdiction, in appropriate cases,

to make orders.

If I could postulate this example,

Your Honours: what if, in a trial of an accused

person on indictment, a police officer committed

Wright 11 13/11/92

the most blatant perjury and had perpetuated that perjury throughout the course of the proceedings,

from the Magistrates' Court right up to the County

or Supreme Court for the trial. The trial judge,

upon discovery of this perjury, stopped the

proceedings and directed an acquittal. In those

circumstances, it is submitted that the court, in the interests of justice, would want to indemnify the accused person for the costs involved with the

defence by him of the criminal charges. To hold

that the court would not have that power, in my

respectful submission, would be to unduly fetter

the jurisdiction of the court.

That is one example which restrictive

operation of section 36A would result. What is

sought to establish is that there is a power and

there is jurisdiction to be exercised, albeit only

perhaps in exceptional circumstances, but that it

nevertheless does exist. I do not know if I can

assist the Court any further.

MASON CJ: Yes, Mr O'Shannessy.

MR O'SHANNESSY:  If the Court pleases. I will just come

directly to that question concerning

section 36A(2). It is submitted, Your Honours,

that that section has the purpose and effect of, in

the event of there being a hiatus in the provisions
of how the County Court was to work or an absence

of any other power, it was to turn to the Supreme

Court power and adopt those practice and

procedures. It is submitted that section 36A(2) was intended to be, in the event of a hiatus, an

empowering provision, one widening the powers and

practices of the County Court where there was an

absence of the power to deal with the particular

issue that had arisen.

It is submitted that it was not intended to

limit the powers of the County Court as they were

otherwise described in the Act.

McHUGH J:  Is not the difficulty with that submission that

78A is a general provision and 36A is a special

provision relating to the criminal jurisdiction of

the County Court and, therefore, you would give

effect - you would read down the general power in

accordance with the special provision?

MR O'SHANNESSY:  Your Honour, I have no quarrel with what

Your Honour says about the reading down of a power

between a specific and a general provision but my

submission rests on the purpose of section 36A,

that it was to deal with the position where through

lack of foresight or omission by the draftsman or

by parliament's mind, there was a matter that arose

Wright 12 13/11/92

that had not been provided for in the County Court

Act and the procedure~ therein and hence, in that circumstances, in addition to the powers otherwise laid down, the County Court could then, in addition

to the powers otherwise laid down in other specific

parts of the Act, turn to the practice and

procedures of the Supreme Court to overcome that

problem. That is essentially all I can add to what

Mr Grace has said about that.

MASON CJ: Thank you, Mr O'Shannessy.

MR O'SHANNESSY: It is submitted, Your Honours, that the

issue raised by this case that it is of general

important application is how a conflict between the

meaning discernible from a statute's legislative

history and the literal meaning of the statute is

to be resolved. Mr Justice Brooking, in his

analysis, which concluded at pages 38 and 39 of the

history of the sections concerned with here, found

that the predecessors of these sections was

sections 4 and 5 of the English 1890 Judicature Act

which he recites at page 36, did not include any

provision in regard to criminal trials. His

decision placed great weight upon that

circumstance.

It is submitted that such an approach is

incorrect and in conflict with statements of this

Court and, in particular, I would rely upon

passages of this Court in Hills v Heeking - - -

MASON CJ: But, Mr O'Shannessy, what you are now putting

does not go to this difficulty that is presented by

36A(2).

MR O'SHANNESSY:	No, Your Honour.
MASON CJ:	I think you ought to approach the matter on the footing that at the present moment the Court sees very considerable difficulty in the argument you
present by reason of the presence of 36A(2). -

MR O'SHANNESSY: Perhaps, Your Honour, I would address that

problem by a different direction and that is,

Your Honour, apart from the primary submission that

section 78A can stand by itself and award costs in

criminal proceedings irrespective of the County

Court, it is submitted, Your Honour, that the

section in the County Court Act, section 24(1), of

itself awards power to award costs in criminal

matters, and that subsection (2) which refers to the practice is, in fact, concerned with how the

discretion that had previously existed before that

section being enacted was to be exercised. In that

context, I would seek to take the Court to the

predecessors of section 24(1) which, Your Honours,

Wright 13 13/11/92

was introduced into Victoria for the first time in

the consolidation of 1928 and, previously, the

power to costs was differently expressed.

BRENNAN J:  We are not concerned, are we, with the existence

of power? We are concerned about the manner of its

exercise and the problem which has heen put to you

is that allowing the existence of a power as ample

as you choose to submit it to be, none the less,

when it comes to a case of the exercise of the

power in cases to which 36A(2) applies, you are

governed by the practice and procedure of the

Supreme Court.

MR O'SHANNESSY:  I understand what Your Honour says or, at

least, I hope I do. In answer to that, what I want

to say to Your Honour is this: the practice in the

Supreme Court at the time of - putting aside the

issue of whether the Supreme Court has power to
award costs against the Crown in favour of a

successful accused, it clearly had power to award

costs against the accused in favour of the Crown,

the entire costs of the prosecution and it is

common ground that notwithstanding that section

being introduced in 1878, the circumstances of it

ever being exercised are extremely rare and what it

is submitted is that by that reference to

"practice" in section 24(2) and then "practice" in

36A(2) is that the legislation, when it introduced

the criminal jurisdiction, previously the Court of

General Sessions, in 1968, into the County Court

Act - amalgamated those two courts - was careful

that a statutory re-enactment of that power did not

interfere with how the discretion as to costs in

criminal matters was being otherwise exercised, it

being common ground that the power was almost

never - and no one appears to be able to find any

record of it in Victoria of that power being

exercised against an accused, but none the less it

was there.

What it is submitted that means is that

parliament was saying it is up to the courts to
develop that discretion as to powers.	Then what is

important, it is submitted, Your Honours, is that
this Court's important pronouncements in Latoudis v

Casey as to where there is a power to award costs, that that discretion should not be limited and that the general principle behind that discretion must

be indemnification.

BRENNAN J: What do you understand to be meant by the words

"observed for the time being in the Supreme Court"?

MR O'SHANNESSY:  In section 36A(2)?

BRENNAN J: 36A(2).

Wright 14 13/11/92

MR O'SHANNESSY:  That the exercise of the discretion as to

any powers shall be in accordance with how that

discretion is exercised in the Supreme Court.

BRENNAN J: For the time being.

MR O'SHANNESSY: For the time being - as at that time, and

that it was not meant to cast in stone in both courts or, certainly, in the County Court, the exercise of the discretion as it would have been
exercised in 1968 in the Supreme Court.

BRENNAN J: At the time at which these cases arose, what was

the manner in which the Supreme Court exercised its

power with respect to the awarding of costs?

MR O'SHANNESSY:  It did not award costs either way in

criminal matters.	I might also say, Your Honour,
at - - -

BRENNAN J: Well, it if did not, then why does it not fall

precisely within those words in 36A(2)?

MR O'SHANNESSY:  May I say, Your Honour, application one way

or the other ordinarily was not made either and

that it was a practice and a discretion that was

exercised, only because it was never tested or

applied. There is a difficulty, in my submission,

in saying that the practice of the court was never

to award costs one way or the other when the

experience of the court was never to hear an

application one way or the other. A matter that

should bear on that discretion is the principles

laid down by this Court in Latoudis v Casey.

MASON CJ:  Mr O'Shannessy, I think you have put everything

that could possibly be put and perhaps a little

more besides.

MR O'SHANNESSY:  I have no further matters, if the Court

pleases.

MASON CJ:  The Court need not trouble counsel for the respondents.

The Court is not persuaded that these

applications have sufficient prospects of success

to warrant the grant of special leave to appeal.

Ifs. 78A of the County Court Act 1958 (Viet.) does confer power to award costs against the Crown

in criminal proceedings, the exercise of that power

is nevertheless subject to and regulated by the

provisions of s. 36A(2) of that Act.

The applications for special leave to appeal

are therefore refused.

Wright 15 13/11/92

MR BONGIORNO:  I seek costs on behalf of the respondents in

the first and third matter, Your Honour.

MR ROZENES:	I seek costs in relation to the second matter.
MASON CJ:	Can you say anything about that, Mr Grace and

Mr O'Shannessy?

MR GRACE:	No, Your Honour.
MR O'SHANNESSY:	No, Your Honour.
MASON CJ:	The applications are refused with costs.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

13/11/92

Wright 16