Lawson v Gault [2002] FCAFC 308

FEDERAL COURT OF AUSTRALIA

Lawson v Gault [2002] FCAFC 308

APPEALS – costs – whether unsuccessful respondent is entitled to costs certificate – Court has a discretion to grant rather than a discretion to refuse costs certificate

Crimes Act 1900 (ACT) ss 99, 99A

Federal Proceedings (Costs) Act 1981 (Cth)s 6

Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1985) 58 ALR 373 considered

Richards v Faulls Pty Ltd [1971] WAR 129 referred to

CONSTABLE JOHN GERARD LAWSON v KATHRYN ANN GAULT

A 69 OF 2001

SPENDER & DOWSETT JJ

15 OCTOBER 2002

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A69 OF 2001

DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CONSTABLE JOHN GERARD LAWSON

APPELLANT

AND: KATHRYN ANN GAULT

RESPONDENT

JUDGES: SPENDER & DOWSETT JJ

DATE OF ORDER: 15 OCTOBER 2002

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be refused. 2. There be no order as to the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A69 OF 2001

DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CONSTABLE JOHN GERARD LAWSON

APPELLANT

AND: KATHRYN ANN GAULT

RESPONDENT

JUDGES: SPENDER & DOWSETT JJ

DATE: 15 OCTOBER 2002

PLACE: CANBERRA

REASONS FOR JUDGMENT THE COURT: 1 On 20 June 2002 the Court published its reasons for upholding an appeal from a decision of Crispin J sitting in the Supreme Court of the Australian Capital Territory. His Honour had allowed an appeal against findings by a magistrate that the respondent was guilty of certain offences of dishonesty. The respondent had appealed to the Supreme Court on numerous grounds, one of which was that the charges should have been brought pursuant to s 99A of the Crimes Act 1900 (ACT) rather than s 99 of that Act. Crispin J upheld the appeal on that ground without considering the other grounds of appeal. This Court reversed that decision, holding that the prosecutor had correctly relied upon s 99A. The matter was remitted to the Supreme Court for reconsideration. It should be noted that before the magistrate, counsel for the respondent conceded that the proceedings were properly brought pursuant to s 99A but asserted that it was inappropriate to do so in the circumstances of the case. 2 This Court did not dispose of the question of costs at the time at which it published its reasons. The parties were invited to make any submissions in writing. Neither party has sought an order for costs against the other, but the respondent has sought an order pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). That section provides: "(1) Subject to this Act, where a Federal Appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal (2) … (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) …" 3 The expression "Federal appeal" includes an appeal to the Federal Court from a judgment of the Supreme Court of a Territory. The question is whether or not this Court should certify that it would be appropriate for the Attorney-General to authorise such payment to the respondent. 4 The discretion is unfettered. In Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1985) 58 ALR 373 at 374, the Court (Smithers, Sweeney and Woodward JJ) said: "The unsuccessful respondent must satisfy the court … that it is appropriate in all the circumstances for a certificate to be granted, and the circumstances which could properly influence that decision are many and various." 5 The Court also endorsed the following observations concerning similar legislation made by the Full Court of the Supreme Court of Western Australia in Richards v Faulls Pty Ltd [1971] WAR 129 at 137-8: "The question is whether the power which is conferred upon the Court should be exercised. It is a discretionary power and the grant of the certificate follows upon and requires the exercise of the discretion. Hence it is a discretion to grant; it is not a discretion to refuse. Hence it is not the position, adapting to this case the words of the judgment of Latham CJ, Rich and Dixon JJ in Main v Main (1949) 78 CLR 636 at 643, that once facts are proved bringing the case within (the relevant section) a certificate should be granted unless the court thinks on discretionary grounds that the certificate should be withheld; on the contrary, the unsuccessful respondent to an appeal must show some ground calling for the exercise of the discretion in his favour and he does not do this merely by showing that the appeal has succeeded on the question of law …" 6 The respondent submits that because Crispin J upheld the appeal on one ground only, not dealing with the other grounds, and as a result of this Court's decision, she must now incur the costs of further proceedings in the Supreme Court. It is suggested that the measure of her financial disadvantage is the sum of $3,000. She also submits that it is relevant that the appeal was upheld on a point of law. 7 As we have observed in our reasons and again above, the respondent took different positions concerning the proper construction of s 99A before the magistrate and before Crispin J. It is not clear to us to what extent this change of position led his Honour to decide the appeal on such a limited basis, without disposing of the other grounds of appeal. In any event, it is clear that had the respondent adhered to the position adopted in the Magistrates Court, the matter would have been disposed of by Crispin J upon other grounds, and the present problem would not have arisen. The position adopted in the Magistrates Court has been vindicated by our decision. Any loss which the respondent has suffered has been brought about by the way in which her legal advisers have conducted the matter. That does not necessarily lead to refusal of the certificate, but it certainly does not strengthen the respondent's case. 8 The primary ground advanced in support of the application for a certificate is that the appeal was upheld on a point of law. The authorities establish that such a ground is not, by itself, necessarily enough to lead to a favourable exercise of the discretion. Having regard to all of the circumstances of the case, we do not think it appropriate to certify to the Attorney-General that he should authorise payment of the respondent's costs of the appeal. The application is refused. There will be no order as to the costs of the appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender and Dowsett.