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Supreme Court 16 October 2007

HALPIN v DEPARTMENT OF GAMING AND RACING

[2007] NSWSC 815

Public order & justice offences
COSTS ABATEMENT OF APPEAL PROCEEDINGS NATURE OF PROCEEDINGS WHETHER CRIMINAL OR CIVIL STATUTORY INTERPRETATION

Citation: Halpin v Department of Gaming and Racing [2007] NSWSC 815
Court: Supreme Court of New South Wales, Common Law Division
Date: 16 October 2007
Judge(s): Hall J

Background

A hotelier was convicted by the Licensing Court of NSW on 6 October 2005 of contravening section 133(2) of the Gaming Machines Act 2001, which required licensees to ensure gaming machines on their premises remained connected to an authorised Central Monitoring System. The Licensing Court also ordered him to pay the prosecutor's costs of $12,000.

The hotelier appealed to the Supreme Court on a question of law, challenging both the conviction and the costs order. On 5 September 2006, the Supreme Court delivered judgment in his favour, finding that the gaming machine in question was in fact "connected" within the meaning of the Act and that no breach had occurred. However, before formal orders could be pronounced giving effect to that judgment, the appellant died in October 2006.

The question of what orders should follow fell to be determined after the appellant's death. His estate sought to have the conviction and costs order set aside, and also applied for costs in both the Licensing Court and the Supreme Court proceedings.

  • Whether the appeal had abated (that is, lapsed and become void) upon the death of the appellant before final orders were made
  • Whether the proceedings were criminal or civil in nature, and which procedural rules applied as a consequence
  • Whether the executor or administrator of the deceased's estate needed to be formally substituted as a party before the court could make any orders
  • Whether a costs order against the Department (as public prosecutor) was available under section 70 of the Crimes (Appeal and Review) Act 2001, and whether the statutory threshold for such an order was met

Decision

On abatement and the nature of the proceedings, the court accepted the defendant's submission that the appeal proceedings were criminal in nature. Section 3(1) of the Criminal Procedure Act 1986 defines "criminal proceedings" to include appeals against conviction, and the court found this definition effectively embraced the statutory appeal before it. Accordingly, the Uniform Civil Procedure Rules governing substitution of parties did not apply.

On the substitution of the estate as a party, the court held that formal substitution was not required in the circumstances. The substantive determination had already been made before the appellant's death: his conviction was wrongly entered. The court drew an analogy with the principle in Healey v Williams (1985) 64 ALR 140, where a magistrate was found entitled to make consequential orders following the death of a party, and concluded it was similarly entitled to make orders giving effect to its earlier judgment without a substituted party being appointed.

On costs against the Department under section 70, the court dismissed the estate's application. Section 70 of the Crimes (Appeal and Review) Act 2001 imposes a high threshold for awarding costs against a public prosecutor: the investigation must have been conducted unreasonably or improperly, or proceedings must have been initiated without reasonable cause or in bad faith, or the prosecutor must have unreasonably failed to investigate relevant matters, or other exceptional circumstances must exist. The court found that threshold was not met on the facts of this case.

On the substantive orders, the court confirmed that, notwithstanding the appellant's death, it was appropriate to give effect to the 5 September 2006 judgment by formally setting aside both the conviction and the $12,000 costs order made by the Licensing Court.

Orders Made

  • The conviction entered by the Licensing Court on 6 October 2005 against the plaintiff be set aside
  • The order made by the Licensing Court against the plaintiff for costs in the amount of $12,000 be set aside
  • The plaintiff's application for costs of the proceedings in the Licensing Court and in this Court is dismissed

Key Takeaways

  • Where a court has delivered judgment before a party's death but final orders have not yet been pronounced, the death does not necessarily prevent the court from making consequential orders to give effect to that judgment, particularly where the rights of the parties have already been determined.
  • Under section 3(1) of the Criminal Procedure Act 1986, "criminal proceedings" extends to appeals against conviction, meaning civil procedural rules (including those governing substitution of parties under the Uniform Civil Procedure Rules) do not automatically apply to such appeals.
  • Formal substitution of a deceased appellant's estate as a party is not invariably required before a court can make orders giving effect to a pre-death judgment, at least where the orders are purely consequential and confer no ongoing benefit on the estate beyond correcting a wrong conviction.
  • Section 70 of the Crimes (Appeal and Review) Act 2001 imposes a high threshold for costs orders against a public prosecutor: mere success on appeal does not suffice. The conduct of the investigation or prosecution must have been unreasonable, improper, lacking reasonable cause, made in bad faith, or attended by other exceptional circumstances.
  • A statutory appeal under the Gaming Machines Act 2001 to the Supreme Court on a question of law was characterised in this decision as criminal in nature, given that the underlying offence carried a financial penalty and proceedings for it were treated as summary proceedings before a Local Court.

Legislation and Cases Referenced

Legislation:
- Gaming Machines Act 2001 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 70
- Criminal Procedure Act 1986 (NSW), ss 3(1), 7
- Uniform Civil Procedure Rules 2005 (NSW)
- Government and Related Employees Appeal Tribunal Act 1980 (NSW)
- Judiciary Act 1903 (Cth)
- Justices Act 1902 (NSW)

Key Cases:
- Healey v Williams (1985) 64 ALR 140
- Sen v R (1991) 102 ALR 71
- Regina v Rowe [1955] 1 QB 573
- Regina v Jefferies [1969] 1 QB 120
- Re Collins (1973) 41 DLR (3d) 232
- Fosse v DPP [1999] NSWSC 367
- JD v DPP [2002] NSWSC 1092
- Caltex Refining Co Pty Limited v Maritime Services Board of NSW (1995) 36 NSWLR 552
- Bogeta v Wales (1977) 1 NSWLR 139
- Scruby v Hoggan (1954) 55 SR (NSW) 2