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Court of Criminal Appeal 23 November 1999

WILLTARA CONSTRUCTIONS v OWEN

[1999] NSWCCA 390

Other
CRIMINAL LAW APPEAL CRIMINAL APPEAL ACT SS5AA, 5AB LAW REFORM

Citation: Willtara Constructions v Owen [1999] NSWCCA 390
Court: Court of Criminal Appeal, New South Wales
Date: 23 November 1999
Judge(s): Sully J, Hulme J, Sperling J

Background

Willtara Constructions Pty Limited was tried before Bignold J in the Land and Environment Court on a charge of causing, permitting, or allowing the disposal of waste at a Chatswood building site. Following a ruling that the charge was duplicitous, the prosecution elected to rely on the "allowing" limb only. On 3 September 1998, Bignold J dismissed the summons.

The respondent then sought costs under s 52 of the Land and Environment Court Act 1979. On 11 December 1998, Bignold J dismissed that application and ordered that each party bear its own costs.

Willtara Constructions then appealed to the Court of Criminal Appeal, seeking to have the costs order set aside and a costs order made in its favour under ss 5AA and 5AB of the Criminal Appeal Act 1912.

  • Whether the Court of Criminal Appeal had jurisdiction to entertain an appeal by a party that had been acquitted but had not been ordered to pay costs
  • Whether the phrase "each party bear its own costs" in Bignold J's order constituted an order "against which" costs were made within the meaning of ss 5AA and 5AB of the Criminal Appeal Act 1912
  • Whether ss 5AA and 5AB, as presently framed, adequately address the range of costs outcomes that may arise in summary criminal proceedings

Decision

The Court raised the jurisdictional question on its own motion at the hearing's outset, without it having been flagged in any written submissions. Having formed a clear view on that point, the Court heard no oral argument on the substantive costs issue.

Hulme J, delivering the leading judgment, held that ss 5AA and 5AB of the Criminal Appeal Act 1912 limit appeals to persons either convicted of an offence or against whom an order to pay costs has been made. Willtara Constructions fell into neither category: it had not been convicted, and no order for costs had been made against it.

Hulme J further reasoned that the expression "each party bear its own costs" did not transform into a costs order against Willtara Constructions. That phrase did no more than reflect the dismissal of the notice of motion and could not be read as an order binding Willtara Constructions in favour of, or enforceable by, its own solicitors, who were not parties to the proceedings.

Accordingly, the appeal was dismissed as incompetent. Sperling J agreed and added an observation that refusing a costs application may produce as much injustice as granting one, noting that the present case may be an example. His Honour renewed a strong recommendation, endorsed by the full Court, that the legislature amend ss 5AA and 5AB to remedy two identified deficiencies.

Orders Made

  • The appeal is dismissed as incompetent.

Key Takeaways

  • Under ss 5AA and 5AB of the Criminal Appeal Act 1912, the Court of Criminal Appeal's jurisdiction to entertain an appeal from the Land and Environment Court's summary jurisdiction is confined to persons convicted of an offence or against whom an order to pay costs has been made.
  • A direction that "each party bear its own costs" does not constitute an order for costs made "against" the unsuccessful applicant for costs; it operates only as a reflection of the dismissed motion.
  • No order for costs made against a party's own solicitors can be inferred from such a direction, because those solicitors are not parties to the proceedings before the trial court.
  • The Court of Criminal Appeal renewed a prior recommendation from Histollo Pty Ltd v Director General of National Parks and Wildlife Services (1998) 45 NSWLR 661 that s 5AA be amended to permit an appeal for error rather than by way of rehearing, and added a further recommendation that the provision also be amended to address the gap in costs appeal rights revealed by this case.
  • The full Court endorsed Sperling J's observation that the current statutory framework carries the potential for injustice where a successful defendant is denied costs but has no avenue of appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
- Land and Environment Court Act 1979 (NSW), s 52

Cases:
- Histollo Pty Ltd v Director General of National Parks and Wildlife Services (1998) 45 NSWLR 661