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District Court 3 December 2007

Appeal of Joel Waller and Michael Hayes

[2007] NSWDC 349

Public order & justice offences
CRIMINAL LAW COSTS

Citation: Appeal of Joel Waller and Michael Hayes [2007] NSWDC 349
Court: District Court of New South Wales
Date: 3 December 2007
Judge(s): Cogswell SC DCJ

Background

Two young men were each charged with failing to wear a seatbelt, but the police had issued the Court Attendance Notices to the wrong people. Both defendants successfully defended the prosecutions in the Local Court and were acquitted. Each then applied for a costs order against the prosecutor, but the Magistrate refused both applications.

The two defendants appealed to the District Court, arguing they were entitled to challenge the Magistrate's refusal to award costs. The central question was whether that refusal fell within the appeal rights available under the Crimes (Appeal and Review) Act 2001.

  • Whether a Magistrate's refusal to award costs to a successful defendant constitutes an "order for costs made by a Local Court against a person" within the extended definition of "sentence" in s 3 of the Crimes (Appeal and Review) Act 2001.
  • Whether such a refusal therefore gives rise to a right of appeal to the District Court under s 11 of that Act.
  • Whether costs should be awarded against the unsuccessful appellants in the District Court appeal.

Decision

The appellants argued that the Magistrate's refusal to make a costs order was itself an "order for costs" within clause (e) of the definition of "sentence" in s 3 of the Act, thus triggering a right of appeal under s 11(1). The court rejected this argument, finding that the natural and ordinary meaning of the phrase "order for costs made by a Local Court against a person" does not extend to a refusal to make such an order.

The court drew on two Supreme Court decisions and one Court of Criminal Appeal authority in reaching that conclusion. In Murdoch v Petterson [2005] NSWSC 1359, Grove J had construed materially identical language and held that "the refusal to order that person to pay costs is not accommodated within the notion of costs against him or her." Cogswell SC DCJ respectfully agreed with that reasoning. The Court of Criminal Appeal's judgment in Director of Public Prosecutions v Roslyndale Shipping Pty Limited (2003) 59 NSWLR 210 further confirmed that a failure to make a costs order does not fall naturally within the idea of an order being "made" "against" a person.

The court acknowledged the earlier decision of Simpson J in Palmer v Haddad [2000] NSWSC 545, which had favoured a broader interpretation under a different statutory provision of the Justices Act 1902. However, that case was distinguished on the basis that it arose in a civil context and involved different statutory language. The court accepted that the result may appear uneven: a party against whom costs are ordered has a right of appeal, while a party who unsuccessfully sought costs does not. However, the clear language of the statute did not permit any other interpretation.

The appeal was dismissed under s 20(2)(c) of the Act. The prosecutor sought costs of approximately $1,600 against the appellants, but the court declined to make that order. Two factors weighed against it: the defendants had originally succeeded in the Local Court only because of what appeared to be a police error in issuing process to the wrong people, and the appeal itself raised a genuinely arguable point requiring analysis of three superior court authorities.

Orders Made

  • Appeals dismissed.
  • Application by the prosecutor for costs against the appellants refused.

Key Takeaways

  • A Magistrate's refusal to award costs to a successful defendant in summary proceedings does not constitute an "order for costs made by a Local Court against a person" within clause (e) of the definition of "sentence" in s 3 of the Crimes (Appeal and Review) Act 2001.
  • Under that Act, no right of appeal to the District Court arises from a refusal to make a costs order in favour of a successful defendant. The avenue for challenging such a refusal is an application for prerogative relief in the Supreme Court under s 69 of the Supreme Court Act 1970.
  • The District Court confirmed the approach taken in Murdoch v Petterson [2005] NSWSC 1359 and DPP v Roslyndale Shipping (2003) 59 NSWLR 210: in its natural and ordinary meaning, "order" does not encompass a refusal to make an order, and that meaning was not displaced by the statutory context here.
  • In dismissing the appeal, the court acknowledged an asymmetry in appeal rights: a party ordered to pay costs can appeal, but a party whose costs application is refused cannot. The court nonetheless held that the plain statutory language required that result.
  • Costs against unsuccessful appellants in District Court criminal appeals are not routinely awarded. Here, the court exercised its discretion under s 28(3) to refuse costs, taking into account both the circumstances that gave rise to the original prosecutions and the arguable nature of the appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 20, 28(3), 56, 70, 72
- Justices Act 1902 (NSW), s 104(2)(c)
- Criminal Appeal Act 1912 (NSW), ss 2, 5AA
- Supreme Court Act 1970 (NSW), s 69
- De Facto Relationships Act 1984 (NSW)

Cases:
- Palmer v Haddad [2000] NSWSC 545
- Murdoch v Petterson [2005] NSWSC 1359
- Director of Public Prosecutions v Roslyndale Shipping Pty Limited (2003) 59 NSWLR 210