Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196

Land and Environment Court New South Wales

Medium Neutral Citation: Queanbeyan City Council v Kovacevic (No 2) [2015] NSWLEC 196 Hearing dates: 10 December 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Class 6 Before: Craig J Decision: Order that the Respondent, Mary Lucy Kovacevic, pay the costs of the Council in relation to her application for a stated case, such costs to be paid on an indemnity basis. Catchwords: COSTS – application for a stated case – s 5BA(2) Criminal Appeal Act 1912 –application withdrawn – motion seeking costs of withdrawn application – no proper basis to found stated case – order for indemnity costs Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules Cases Cited: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; 46 FCR 225 Environment Protection Authority v Riverina Australia Pty Ltd (No 2) [2015] NSWCCA 252 Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Talay v R [2010] NSWCCA 308 Category: Procedural and other rulings Parties: Queanbeyan City Council (Appellant) Mary Lucy Kovacevic (Respondent) Representation: Counsel: T To (Appellant) No appearance (Respondent)

Solicitors: Herring & Associates Lawyers (Appellant) No appearance (Respondent) File Number(s): 61062 of 2012

EX TEMPORE Judgment 1. On 25 September last I upheld an appeal by Queanbeyan City Council (the Council) from the decision of the Local Court at Queanbeyan, dismissing a prosecution brought by Queanbeyan City Council against Mary Lucy Kovacevic. I also made orders remitting the matter to the Local Court for determination according to law and ordered that Mrs Kovacevic pay the costs of the appeal (Queanbeyan City Council v Kovacevic [2015] NSWLEC 152). 2. In a short letter dated 14 October 2015 addressed to the Registrar of this Court, the solicitors acting for Mrs Kovacevic requested that four questions of law "be stated for the Court of Criminal Appeal for determination". The letter then framed the four questions that were thought appropriate for determination by that Court. The request for those questions to be stated was expressed to be founded upon s 5BA(2) of the Criminal Appeal Act 1912 (NSW). 3. The solicitors acting for Mrs Kovacevic were promptly advised that the draft of a "stated case" raising the proposed questions should be prepared, provided to the Court and to the Council (cf r 29, Criminal Appeal Rules). They were also advised that the application for a "stated case" would be listed for mention before me when the Council would also be afforded an opportunity to be heard in respect of that proposed stated case (Talay v R [2010] NSWCCA 308 at [11]). A draft of the "stated case" was subsequently received and the matter listed for mention before me on 28 October last. 4. On 28 October each party was represented by counsel. Mr To, who appeared for the Council, handed to me an outline of submissions he intended to make contending that s 5BA(2) did not afford any right in Mrs Kovacevic to request a "stated case" involving the submission of questions of law while s 5BA(1), if relied upon, could not be invoked because the appeal had already been determined and no request for submissions of such questions had been made to me prior to giving my determination. 5. The submissions foreshadowed by Mr To accorded with my own preliminary research, undertaken in preparation for the matter being listed before me. Indeed, before Mr To indicated his position I had made observations to the parties to similar effect in open court. Mr Buckland, who appeared for Mrs Kovacevic, stated that he had not then prepared argument directed to the competency of the "stated case" application. 6. Accordingly, I gave directions for the preparation and service of written submissions on behalf of Mrs Kovacevic directed to the competency of her application and fixed the application for hearing on 18 November 2015. 7. By letter dated 12 November 2015 addressed to the Court, the solicitors acting for Mrs Kovacevic stated that her application for a "stated case" was withdrawn. 8. When the matter was listed before me on 18 November, Mr To appeared for the Council and mentioned the matter on behalf of the solicitor acting for Mrs Kovacevic. Withdrawal of the application for a "stated case" was recorded at the request of both parties. The matter was then stood over for mention before me on 2 December 2015. The expressed purpose of the adjournment to that date was to enable the parties to discuss the question of costs. 9. On 2 December 2015, Mr To again appeared for the Council while Mrs Kovacevic appeared in person, although she stated that she still retained the solicitor who had been acting for her to date. Mr To informed me that no agreement on costs had been reached. Leave was then given to the Council to file a motion seeking the costs of the withdrawn application and the hearing of that motion was fixed for today. In accordance with the direction then given, the Council did file and serve its notice of motion on 4 December 2015. 10. When the matter was called for hearing today there was no appearance on behalf of Mrs Kovacevic. On the last occasion on which she had appeared she had arrived late, albeit having telephoned the Court Registry to indicate that she would be delayed. I adjourned for a short time in order to ensure that enquiries could be made as to whether there was any outstanding telephone message in the Registry of the Court and otherwise to afford a short opportunity for Mrs Kovacevic to have arrived in order to address the Council's notice of motion. Ultimately the hearing commenced at about 10.15pm when Mrs Kovacevic was called outside the Court but did not appear. 11. The circumstances that I have earlier outlined identify the factual basis upon which the Council founds its application for costs. In essence, it relies upon the circumstance that the application for a "stated case" was always doomed to fail. That, so it is submitted, is the consequence of the provisions of s 5BA of the Criminal Appeal Act. 12. It will be remembered that the application for the "stated case" was expressly founded upon the provisions of s 5BA(2). The subsection provides: "(2) At the request of a person who was the appellant in an appeal referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of." 1. It ought readily to have been apparent to those advising Mrs Kovacevic that her application for a "stated case" on a question of law did not engage the provisions of subs (2). She was not the appellant in the appeal to this Court, being the appeal referred to in subs (1). Although subs (1) was not identified as the source of power to request the submission of questions for determination by the Court of Criminal Appeal, had the subsection been invoked it would not have assisted Mrs Kovacevic. That subsection enabled an application for a "stated case" on a question of law to be sought provided the request so to do was made before the appeal was finally determined. 2. As I have earlier recorded, there was no application for a submission of questions of law to the Court of Criminal Appeal in the course of the hearing. As a consequence, subs (1) could not have assisted the application for a "stated case" in the circumstances that occurred. 3. At first glance the entitlement to seek costs, in the events that have occurred, is not readily apparent, although the justice of the case would certainly warrant the making of such an order. Section 49(4) of the Crimes (Appeal and Review) Act 2001 enables the Court to make an order for costs in connection with an appeal brought under that Act to this Court. While that Act was the foundation for the appeal brought by the Council in the appeal that I determined, on one view, the provisions of that Act were spent when I made the Orders that I did on 25 September last. 4. The Council submitted that an alternate source of power to award costs in the present circumstances lies in the provisions of or flows from the provisions of the Criminal Appeal Act. Had a "stated case" been lawfully requested and determined, there is no question but that the Court of Criminal Appeal would have had a power to order costs to either party. So much is made clear by decisions of that Court, as is apparent from the decision in Environment Protection Authority v Riverina Australia Pty Ltd (No 2) [2015] NSWCCA 252. In that case the Court observed that while s 17 of the Criminal Appeal Act proscribed the making of an order for costs against either party in an appeal, the "stated case" procedure was not one that fell within the rubric of "appeal". As a consequence, the Court determined that a power to award costs remained. 5. I am satisfied that there is power to order costs, if for no other reason than flowing from the capacity of the Court to control its own process and also to address the question that came before it in a way that is consistent with the way in which the Court of Criminal Appeal could have addressed the question had the hearing proceeded to finality. Alternatively, the power also arises under s 49(4) of the Crimes (Appeal and Review) Act, the application being an incident of the appeal do this Court under that Act. 6. The events that occurred in relation to the request for a "stated case" are such that it is appropriate that an order for costs be made in favour of the Council. There was no basis in law upon which the request could be sustained. The entitlement to make that request could only be founded upon statute. No common law right for that request is available. The provisions of s 5BA are the only statutory provisions upon which the application to this Court could possibly be founded. As I have stated, those provisions, on any rational interpretation of them, could not found the request first made on 14 October last. The subsequent withdrawal of the request was, I infer, an acknowledgement of that consequence. 7. Not only does the Council seek an order for costs generally but seeks that the order be made on an indemnity basis. It relies upon the circumstances to which I have referred to support that contention. That is, it relies upon the circumstance that the application for a "stated case" was doomed to failure, there being no proper basis upon which it could be founded. The conduct of those advising Mrs Kovacevic, when confronted with the statutory provisions and the jurisprudence that attended their proper understanding, followed by the withdrawal of the request, rather supports the inference that the application was ultimately seen by them to be without legal foundation. 8. Applying observations of the kind reflected in Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; 46 FCR 225 at 233-234, I am persuaded that this is an appropriate case in which to make an indemnity costs order. 9. The order that I make therefore is as follows: 1. Order that the Respondent, Mary Lucy Kovacevic, pay the costs of the Council in relation to her application for a stated case, such costs to be paid on an indemnity basis.