FEDERAL COURT OF AUSTRALIA Kelly v Apps [2000] FCA 687 APPEAL – Magistrates Court Act 1930 (ACT), ss 207(2), 219B, 244, Part VII, Part XI Supreme Court Act 1933 (ACT), s 20 Latoudis v Casey (1990) 170 CLR 534 MICHAEL KELLY v ELISABETH MARY APPS A 1 of 2000 GALLOP, WILCOX and MARSHALL JJ CANBERRA 19 MAY 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 1 of 2000 DISTRICT REGISTRY BETWEEN: MICHAEL KELLY Appellant AND: ELISABETH MARY APPS Respondent JUDGES: GALLOP, WILCOX and MARSHALL JJ DATE OF ORDER: 19 MAY 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed; 2. The orders of the Supreme Court made on 22 December 1999 be set aside; 3. The proceedings be remitted to the Supreme Court of the Australian Capital Territory for further hearing in accordance with the reasons given; 4. The appellant pay the respondent's costs of this 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 A 1 of 2000 DISTRICT REGISTRY BETWEEN: MICHAEL KELLY Appellant AND: ELISABETH MARY APPS Respondent JUDGE(S: GALLOP, WILCOX and MARSHALL JJ DATE: 19 MAY 2000 PLACE: CANBERRA REASONS FOR JUDGMENT 1 WILCOX J: This is an appeal against a decision of Miles CJ given in the Supreme Court of the Australian Capital Territory and the proceeding before his Honour was an application to make absolute an order nisi made on 16 April 1999 by Higgins J. The paragraph (1) of the order nisi called upon the respondent, Elisabeth Apps, to show cause before the Australian Capital Territory Supreme Court why the decisions of the Magistrates Court should not be reviewed. The relevant decisions were decisions made by a Magistrate exercising summary jurisdiction under Part VII of the Magistrates Court Act 1930. That Part confers on the Magistrates Court jurisdiction to deal in a summary way with certain offences which are able to be prosecuted on indictment. 2 It is not necessary to go into the detail of the offences other than to say they involved a claim of defrauding the Commonwealth. The Magistrate acquitted Ms Apps of each of the charges and an application for an order for costs was then made. Her Worship heard argument about the application in terms of principle before considering the amount of any costs that ought to be put. At the conclusion of that argument she indicated a view that costs ought to be ordered, however, there was a difficulty about the quantum. 3 Mr Pilkinton, who appeared for Ms Apps, apparently handed a piece of paper to Mr Lalor who appeared for the prosecutor, the present appellant, Michael Kelly. The piece of paper apparently contained a figure but Mr Lalor was unable to deal with the matter of quantification at that time. Accordingly the Magistrate took the course of reserving the quantum of costs. She indicated that the matter could be restored to her list on forty-eight hours notice at a convenient time. 4 From what was said by the Magistrate it was obviously her hope that the parties would agree what constituted a reasonable figure for costs. Failing agreement, she was prepared to consider for herself the appropriate amount in the light of such submissions as were received. The Magistrate completed dealing with the matter on 12 March 1999. On that same day, she endorsed on the relevant bench sheets a note that the information was dismissed. 5 She also endorsed on at least one of them an addendum, that the prosecutor was to pay the defendant's costs, the quantum of costs was reserved, the matter to be restored on forty-eight hours notice. One of the informations had, in fact, been dismissed on an earlier date but nothing seems to turn on that fact. Section 244 of the Magistrates Court Act deals with orders for costs made by Magistrates in these terms: "Award of Costs The power of the court to award costs and the award of costs by the court shall be subject to the following provisions: (a) where the court makes a conviction or order in favour of the informant – it may in its discretion award and order that the defendant shall pay to the informant such costs as it thinks just and reasonable; (b) where the court dismisses the information, or makes an order in favour of the defendant – it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable; (c) the sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal; ..." 6 In the present case, there does not appear to have been a certificate of dismissal. The only order revealed to the Court is the order contained on the relevant bench sheets. As will be apparent from what I have said, they do not contain an operative order in relation to costs because there has been no quantum specified. When the order nisi came on for hearing before the Chief Justice, he dealt with the grounds of review by virtue of which the prosecutor contended that the Magistrate had erred in determining to dismiss the relevant informations. Judging by his Honour's reasons, this seems to have occupied the bulk of the hearing time. His Honour reached the conclusion that the Magistrate did not err in dismissing each of the informations. 7 He then turned to the matter of costs. A question arose as to whether the Supreme Court has power to review an order for costs. Section 219B itemises the matters in relation to which an appeal by way of order to review is available in the Supreme Court against a decision of the Magistrates Court. Paragraph (a) includes this item: "An order of the Magistrates Court dismissing an information dealt with by that court under Part 7 or 7A of this Act, or under section 477 of the Crimes Act." 8 As will be apparent from what I have said, the decision of the Magistrate dismissing the informations fell within this paragraph because she was dealing with the informations under Part 7 of the Magistrates Court Act. It is contended that the power to review which is contained in paragraph (a) - a power to order to review the order to dismiss the information includes power to review a costs order contained in the order dismissing the information. However, the Chief Justice took a different view about that matter. He thought that the Supreme Court did not have power to review the costs order. He set out reasons for that opinion in his reasons for judgment. Those reasons contain no reference to s 20 of the Supreme Court Act 1933 (ACT) to which I will come in a moment. 9 After expressing the view, his Honour concluded his discussion of the matter of power by saying this: "Accordingly, there is no power in this Court under s 219B or otherwise to review the order of the Magistrate that the appellant pay the respondent's costs. The order nisi to review the decision must be discharged on that ground as it applies to Magistrate's order as to costs, well insofar as it is sought to make the order absolute with regard to the Magistrate's order as to costs." 10 His Honour then added a comment that: "In any event, it has not been shown that the Magistrate erred in exercising a discretion to order that the appellant pay the respondent's costs." 11 He referred to the principle laid down by the High Court of Australia in Latoudis v Casey (1990) 170 CLR 534 as stated by Mason CJ at 542. This principle is to the effect that: "It would not ordinarily be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge of the costs of the criminal proceedings." 12 The Chief Justice referred to what the Magistrate had said about this matter and, in particular, that: "In order to deprive the successful defendant of her costs, she would need to be satisfied that if her explanation had been put forward in an interview with Comcare, it would likely to have been accepted." 13 As she commented that it was quite clear it was not accepted in these proceedings. The Chief Justice went on, and I will set out paragraph 49 and paragraph 50 of his Honour's reasons. It will be noted that in paragraph 49, the Chief Justice expresses agreement with the Magistrate at the Magistrate's conclusion, although he disagrees with an assumption which he perceives her to have made. In paragraph 50, he refers to additional material which had been sought to be put before the Court: "49. The interview to which the Magistrate was referring appears to have been an interview that was proposed by Comcare which would have enabled Comcare to consider any explanation the respondent cared to give about the apparent falsity of the representations. I agree that the Magistrate seems to have assumed that which does not necessarily follow, namely that, because counsel for the prosecution contested that explanation eventually given before the Magistrate, when it was given for the first time, Comcare would necessarily have found the explanation unacceptable if it had been offered at an interview much earlier in time. Nevertheless it was open to the magistrate to take that aspect into consideration, and the Magistrate has not been shown to have been in error in doing so. No cause has been shown to review the Magistrate's order as to costs. 50. After the hearing of the appeal and pending the delivery of judgment, application was made on behalf of the appellant to file and rely upon an affidavit setting out further facts which had not been drawn to the attention of the Magistrate relating to the refusal of the respondent to be interviewed. Leave to rely on the affidavit was granted subject to a ruling on the Court's part to review the order for costs. Having decided in the meantime that there is no such power, I revoke the leave." 14 Well, we understand from what is being said to us from the bar table today, that this material consists of certain letters sent to Ms Apps which I would have said invited her to put before investigating officers, her side of the story. It is said that she failed to respond to this invitation and that this unreasonable contact should be taken into account when considering the matter of costs. 15 It is convenient to deal first with the question whether the Supreme Court had power to deal with the matter of costs in considering any application for an order absolute. I have some difficulty with the argument that s 219B covers such a case. It is true that s 219B(1)(a) refers to "an order of the Magistrates Court dismissing an information" and it is also true that by virtue of the s 244(c) any order for costs is supposed to be part of the order of dismissal. However, if one considers the context surrounding paragraph (a), it seems to me most unlikely that the legislature intended that the reference to the order would include a reference to a costs order. 16 The remaining paragraphs in s 219B are all concerned with orders or convictions, in other words, matters that go to culpability rather than matters concerning costs. However, I have formed the view that this does not mean that the Supreme Court lacked jurisdiction to deal with the matter of costs. During the course of argument reference was made to s 20 of the Supreme Court Act 1933 (ACT). That section is as follows: "Jurisdiction and powers of the Supreme Court (1) The court has the following jurisdiction: (a) all original and appellate jurisdiction that is necessary to administer justice in the Territory: (b) jurisdiction conferred by a Commonwealth Act or a law of the Territory. (2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal." 17 The words of paragraph (a) of subs (1) are extremely broad. They include all appellate jurisdiction that is necessary to administer justice in the Territory. 18 The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory. It cannot, I think, be disputed that the making of a costs order that ought not to have been made, or the failure to make a costs order that ought to have been made, is a wrong in the administration of justice in the Territory and that it is, therefore, appropriately the subject of the jurisdiction of the Supreme Court under s 20(1)(a). 19 It is true that the Magistrates Court Act itemises jurisdiction available under that Act that is committed to the Supreme Court. This function is performed by Part XI of the Act which is entitled "Appeals to the Supreme Court". Division 1 contains s 207 which is in the following terms: "Jurisdiction of the Supreme Court (1) The appellate jurisdiction of the Supreme Court with respect to decisions of the Magistrates Court under this Act (other than a decision under Part 10) extends to the hearing and determination of the following appeals and to no others, namely: (a) appeals to which Division 2 applies; and (b) appeals from decisions of the Magistrates Court by way of orders to review made in accordance with Division 3. (2) Nothing in this Part limits the operation of any other Act that makes provisions with respect to the appellate jurisdiction of the Supreme Court." 20 Subsection (2) is important in the present context because it specifically states that nothing in Part XI limits the operation of any other Act which, of course, must include the Supreme Court Act that makes provisions with respect to the appellate jurisdiction of the Supreme Court. 21 Division 2 goes on to itemise the matter that may go to the Supreme Court by way of appeal and Division 3, which contains s 219B already mentioned, deals with orders to review. The important point for present purposes, it seems to me, is that there is a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act and the Magistrates Court Act specifically states that nothing in Part XI is to cut down jurisdiction conferred under other legislation. I see no reason for the Court to construe s 20(1)(a) in a narrow way. It is obviously intended as a salutary provision to enable justice to be done by the Supreme Court. 22 If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of s 20(1)(a) of the Supreme Court Act. In my view, the Court should hold that the Chief Justice did have jurisdiction in this matter in relation to costs. If the Chief Justice's reasons for judgment had stopped at the end of paragraph 49, I think I would have been inclined to the view that that being the situation the current application should simply be dismissed. 23 One could easily justify that conclusion by saying that although the Chief Justice erroneously thought that he lacked power to deal with costs, he expressed a clear view in paragraph 49 that he would not in any event have exercised that power. It would follow that the error did not affect the order made by his Honour. However, paragraph 50 cannot be overlooked. What seems to have happened is that reference was made to the letters sent to Ms Apps but they were not before the Chief Justice at the time of argument. 24 He was disposed to receive the letters and gave leave to rely on the affidavit subject to a ruling on the matter of costs. It was only because of his view about power, subject to a ruling on the Court's power in relation to costs was only because of the view he took about power, that he revoked the leave to rely on the affidavit and, therefore, he did not give consideration to those letters. It would be unfair to the appellant if we were to simply confirm his Honour's judgment on the basis that he agreed with the Magistrate's exercise of discretion without there being any opportunity for the Chief Justice to have taken into account, as he said he would have done but for his view about power, the letters which are said to indicate that the Magistrate's view about costs ought not to be confirmed. 25 This being the situation, it seems to me that the appropriate course for the Court to take is to uphold the appeal and remit the matter to the Supreme Court for reconsideration in the light of this Court's orders. This will mean that the formal orders made by the Chief Justice will need to be set aside. However, we have been informed by counsel for the informant that there will be no re-agitation of the matter of culpability which his Honour has already decided and has not been the subject of any application in this Court. 26 The question that the Chief Justice will need to consider is what view he takes about the question whether there should be a costs order having regard to the material already before him and the material in the affidavit if he is disposed to receive it into evidence and any other evidence that he is disposed to receive consequentially upon that affidavit. If his Honour takes the view that there ought to be a costs order there will be a question of quantification. It may be possible for the parties to agree on the appropriate amount. If so, there would be no need for the matter to go further. 27 Whether the Chief Justice should undertake the quantification exercise in lieu of any agreement or whether this is a matter that should be remitted to the Magistrate for consideration is, of course, a matter for the Chief Justice's consideration. We have been informed by senior counsel for the appellant that his client accepts that it is appropriate that he pay the costs of the appeal, notwithstanding the result, and accordingly I would favour an order that the appeal be allowed and that the orders made by Miles CJ on 22 December 1999 be set aside, that the matter be remitted to the Chief Justice for further consideration and that the appellant pay the costs of the appeal. 28 GALLOP J: I am grateful to Wilcox J for having so eloquently and extempore expressed reasons which result in the orders that he proposes. I agree with what he said and have nothing to add. 29 MARSHALL J: I agree generally with the reasons for judgment of Wilcox J, although I do not consider it necessary to determine whether or not jurisdiction is conferred under s 219B of the Magistrates Court Act 1930 to review a costs order in the circumstances of this matter. In my view s 207(2) of the Magistrates Court Act, when read with s 20(1)(a) of the Supreme Court Act 1933, gave the Supreme Court relevant jurisdiction on the question of costs. I agree that the matter should be remitted to Miles CJ of the Supreme Court to deal with the aspect of the order to review which is referable to costs. I also agree with the order proposed by Wilcox J. 30 GALLOP J: The orders of the Court are that the appeal is allowed, the orders of the Supreme Court made on 22 December 1999 are set aside. It is further ordered that the proceedings be remitted to the Supreme Court of the Australian Capital Territory for further hearing in accordance with the reasons given and by consent it is ordered that the appellant pay the respondent's costs of this appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop, Wilcox and Marshall JJ. Associate: Dated: 26 May 2000 Counsel for the Appellant: Mr D Fagan SC with Mr G Lalor Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: Mr S Pilkinton Solicitor for the Respondent: Porter Parkinson & Bradfield Date of Hearing: 19 May 2000 Date of Judgment: 19 May 2000