Supreme Court New South Wales Medium Neutral Citation: DPP v Bignill [2015] NSWSC 870 Hearing dates: On the papers Decision date: 02 July 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Order the defendant to pay the plaintiff's costs of the proceedings. 2. Decline the defendant's application for a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: COSTS – plaintiff sought costs of successful appeal – s 60 Civil Procedure Act 2005 (NSW) not applicable to proceedings under Pt 5 Crimes (Appeal and Review) Act 2001 (NSW) – purpose of certificate under Suitors' Fund Act 1951 (NSW) – conduct of defendant relevant to exercise of discretion – defendant's application for certificate declined Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 4, 60 Crimes (Appeal and Review) Act 2001 (NSW) Pt 5 Road Transport Act 2013 (NSW) Sch 3 Suitors' Fund Act 1951 (NSW) s 6 Cases Cited: DPP v Bignill [2015] NSWSC 668 Gurnett v The Macquarie Stevedoring Co. Pty Ltd (No 2) (1956) 95 CLR 106 Latoudis v Casey [1990] HCA 59; 170 CLR 534 Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 R v Relton (Court of Criminal Appeal, unreported, 28 July 1994) R v West (1974) 3 PSR 1273 Category: Costs Parties: Director of Public Prosecutions (NSW) Thomas Mason Bignill Representation: Counsel: A Mitchelmore (Plaintiff) P Doherty SC/D Morgan (Defendant) Solicitors: Office of Director of Public Prosecutions (Plaintiff) Pinnacle Lawyers (Defendant) File Number(s): 2014/370632 Judgment Introduction 1. On 29 May 2015, I made orders allowing the plaintiff's appeal pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) against the dismissal of the charge against the defendant of drive with low range Prescribed Concentration Alcohol (PCA) (second or subsequent offence) in the Local Court: DPP v Bignill [2015] NSWSC 668 (the Principal Judgment). The plaintiff seeks an order that the defendant pay his costs of the proceedings. The defendant opposed an order for costs but submitted, in the alternative, that, if such an order were made, it would be appropriate that a certificate issue pursuant to s 6 of the Suitor's Fund Act 1951 (NSW). The plaintiff did not oppose the grant of a certificate. The parties' submissions 1. The plaintiff contended on the following bases that an order for costs ought be made in his favour: 1. Costs ought follow the event. 2. The defendant's representatives propounded (in the Local Court and in this Court) the construction of a deeming provision, cl 31(3), Sch 3 Road Transport Act 2013 (NSW), which I have found to be erroneous, on which the Magistrate based the decision to dismiss the charge. 3. The construction for which the defendant contended in the Local Court and in this Court was inconsistent with the plain meaning and evident purpose of the relevant legislation and at odds with the decision of the Court of Criminal Appeal in R v Relton (Court of Criminal Appeal, unreported, 28 July 1994, Meagher JA, Abadee and Blanch JJ) which authoritatively determined the point against the defendant. 1. The defendant did not contend that this Court did not have power to make the costs order sought by the plaintiff and accepted that the appropriate costs order was a matter of discretion. The defendant submitted on the following bases that the appropriate order was that there be no order as to costs: 1. The defendant has not been found guilty and is, accordingly, entitled to the presumption of innocence. 2. The maximum monetary penalty for low range PCA (second or subsequent offence) is $2,200. 3. Section 60 of the Civil Procedure Act 2005 (NSW) is relevant. It provides: "In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute." 1. The matter was, in substance, a "test case", the determination of which was in the public interest and provided a public benefit. Accordingly, the defendant ought not be obliged to pay costs. 2. The defendant is, in any event, liable for the not inconsiderable cost of his own legal representatives. 1. The plaintiff contended in reply that: 1. The matter did not warrant the description "test case" since the proper construction had already been authoritatively determined. 2. Section 60 of the Civil Procedure Act is irrelevant as the Civil Procedure Act does not apply to an appeal under the Crimes (Appeal and Review) Act. Consideration The appropriate costs order 1. For the reasons given in the Principal Judgment, I consider that the question of construction that arose in the Local Court and in this Court on appeal was authoritatively determined by the Court of Criminal Appeal in R v Relton (to which the Magistrate was referred) and also in R v West (1974) 3 PSR 1273. Accordingly, the particular considerations that are germane to so-called public interest litigation or test cases (see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [20] per Gaudron and Gummow JJ) do not apply to the present case. 2. Parts 3 to 9 of the Civil Procedure Act apply only in relation to "civil proceedings": s 4(1), which are defined to mean, "any proceedings other than criminal proceedings": s 3(1). The definition of "criminal proceedings" includes "proceedings on an appeal against conviction or sentence": s 3(1). Proceedings under Part 5 of the Crimes (Appeal and Review) Act are thus "criminal proceedings". Accordingly, s 60 of the Civil Procedure Act (which is to be found in Part 6 of the Civil Procedure Act) has no application to proceedings under the Crimes (Appeal and Review) Act. 3. It is not to the point that the defendant has incurred costs with respect to his own legal representatives. What is of significance is that he has caused the plaintiff to incur costs by unsuccessfully opposing proceedings. The purpose of a costs order is to indemnify the successful party, not to punish the person against whom the costs order is made: Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 542-543 per Mason CJ. 4. Nor it is to the point that the defendant is, unless and until convicted, entitled to the presumption of innocence. 5. In all the circumstances, I am satisfied that the defendant ought bear the plaintiff's costs of the proceedings. Whether a certificate under the Suitors' Fund Act ought be granted 1. Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). This Court has power under s 6(1)(a) to grant a certificate under the Suitors' Fund Act. Although the purpose of such a certificate is not expressed in the Act, its purpose can be gleaned from a reading of the Suitors' Fund Act as a whole. In Gurnett v The Macquarie Stevedoring Co. Pty Ltd (No 2) (1956) 95 CLR 106, Dixon CJ considered the then recently enacted Suitors' Fund Act at 113. Having found that the High Court had power to grant a certificate under the Suitors Fund Act (Dixon CJ was in dissent on this point), his Honour considered whether a certificate ought be granted. His Honour said, at 113: "Very little light is to be obtained from the long title or the provisions of the Act as to the considerations which should govern the exercise of the discretion to grant a certificate. But since it does not arise except in the case of a successful appeal against a decision upon a question of law, it would seem that the purpose of the legislature was to relieve litigants of the burden of costs that might be imposed upon them by reason of erroneous decisions upon questions of law." 1. In the circumstances of that case, Dixon CJ would have refused the certificate and said further at 113-114: "I cannot see why, because in the result it turned out badly, the defendant should have a claim upon the discretion of the Court to certify for the recoupment of the costs out of a public fund." 1. In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P outlined the applicable principles that guide the interpretation of s 6. His Honour identified the purpose of the statute as: "the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from" 1. Although the Magistrate in the present case was referred to R v Relton by the police prosecutor and ought to have appreciated that the construction for which the defendant contended was foreclosed by R v Relton, the Magistrate was nonetheless led into error by the defendant's representative. Notwithstanding R v Relton (and the additional authority of R v West on which the plaintiff relied in this Court), the defendant nonetheless chose, in this Court, to oppose the setting aside of the Magistrate's order dismissing the charge and thereby caused the plaintiff to incur substantial additional costs over and above what would have been incurred had the appeal not been opposed. In these circumstances, the defendant was no hostage to fortune; rather, he ought be held to be responsible for what has occurred because he is bound by the conduct of his legal representative. 2. I do not consider it appropriate in these circumstances to certify for the (albeit limited) recoupment of the costs out of a public fund. Order 1. For the foregoing reasons I make the following order: 1. Order the defendant to pay the plaintiff's costs of the proceedings. 2. Decline the defendant's application for a certificate under s 6 of the Suitor's Fund Act 1951 (NSW). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2015