Turner v Wheeler (No 2)

This is a decision on costs following my decision in Turner v Wheeler [2016] NSWSC 345 handed down 31st March 2016. That decision concerned an application for the grant of leave to appeal from an interlocutory order of a of Queanbeyan Local Court magistrate on 2nd April 2015 refusing Ms Turner’s application to withdraw her plea of guilty in respect of 26 of 84 counts of larceny by a servant contrary to s 156 Crimes Act 1900 (NSW).

I found in favour of the plaintiff, Ms Turner, leave was granted; the appeal was allowed; the decision to refuse Ms Turner’s application to withdraw her pleas of guilt set aside; and the matter remitted for re-determination. I made a costs order in the following terms:

There is disagreement between the parties as to the appropriateness of this form of order. I adjourned the matter to permit learned counsel to provide written submissions on the issue.

Counsel for the defendant Mr McGorey argues that I am not empowered to make an order in the form set out at [2] above. He argues that as these proceedings are criminal rather than civil proceedings, an order as to costs cannot be made under s 98 of the Civil Procedure Act 2005 (NSW). He further argues that neither am I empowered, for the same reason, to order an assessment of costs under s 353)(3) Legal Procession Act 2004 (NSW) (Repealed) but which continues to apply to proceedings such as these commenced before 1st July 2015: cl 59 Legal Profession Uniform Law Application Regulation 2015. Rather, the power as to costs is derived from s 55(3)(a) and s 72 Crimes (Appeal and Review) Act 2001 (NSW). The latter provision requires a time stipulation for payment is to be specified in costs order made under the Act. There is no express power to refer the matter to a costs assessor.

Section 3 of the Civil Procedure Act defines “criminal proceedings” as “proceedings against a person for an offence (whether summary or indictable)” and then goes on to enumerate a non-exhaustive list of such proceedings, including, inter alia, committal proceedings. Civil proceedings are defined as “any proceedings other than “criminal proceedings”. Mr McGorey submits that the appeal before the court is an appeal from an interlocutory order made in summary criminal proceedings, and is therefore caught by the definition of “criminal proceedings”.

Ms Kluss for the plaintiff argues that the proceedings before this Court are separate from the criminal proceedings before the Local Court. The proceedings in this court were initiated by way of summons, the matter listed in the Civil Division and furthermore are interlocutory- not a process enumerated under s 3 as a type of processes caught within the definition of ‘criminal proceedings’. Ms Kluss further relies upon the decision of Hall J Ward v Zimmer (No 2)[2015] NSWSC 1097, at [25]:

With all due respect to learned counsel, the submission put forward is not supported by this passage. The words of Hall J were directed towards a question of whether the conduct of a party in the proceedings before the Local Court bore upon the decision as to costs of the appeal to the Supreme Court. Whilst it is true that the current proceedings are managed and heard in the civil list of the Common Law Division of the Supreme Court, this is more an accident of practice or, perhaps, history. The list of types of proceedings in s 3 furthermore is not exhaustive. The omission of this specific type of appeal from the definition is inadequate to support the argument that appeals from interlocutory orders in summary criminal proceedings are not therefore criminal proceedings.

The proceedings below are criminal proceedings, and in my judgment an appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act is also a criminal proceeding as defined by s 3 Civil Procedure Act. These current proceedings are criminal proceedings. The proper source of the power to order costs is therefore, as argued by Mr McGorey, s 55(3)(a) of the Crimes (Appeal and Review) Act, subject to s 72.

Before turning to these provisions, in deference to the arguments of counsel it is convenient to say something about another source of a power to order costs in these proceedings brought to my attention by counsel: s 23 of the Supreme Court Act 1970 (NSW); see Bimson, Roads & Maritime Services v Damorange Pty Ltd (No. 2) [2014] NSWSC 827 at [3] and [35]. For the reasons given below, it is not necessary to further consider this provision in this case.

Section 55(3)(a) provides that the Court may make such order as it thinks fit when determining an appeal. This power has been construed to include a power to order costs. When considering the power to award costs in criminal proceedings, Spigelman CJ in Regina v JS (No 2)[2007] NSWCCA 309; 179 A Crim R 10 at [12]- [13] held:

Section s 55(3)(a) then empowers the Court to order costs when disposing of an appeal. The question remains whether this includes a power to order a costs assessment. To my mind, s 55(3)(a) must be read with s 72 Crimes (Appeal and Review) Act which, materially, is in the following terms:

Section 353 of the Legal Profession Act 2004 is in the following terms:

Ms Kluss of counsel argues that while s 72 requires that the order must specify a time for payment, it does not necessarily follow that an order for costs ‘as agreed or assessed’ is inappropriate. She relies upon the decision of Button J in Cunningham v Cunningham (No 2) [2012] NSWSC 954 following Brereton J in Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5; 84 NSWLR 51. Both decisions consider s 72 of the Act. In applying that provision, Brereton J at [130] said:

With respect to my learned colleagues who think differently, I am not convinced that I am empowered to order an assessment of the costs of these proceedings. The right to have disputed costs assessed is an express statutory right confined by the terms in which it is granted. The terms of s 353 dealing with party and party of the Legal Profession Act make clear that it is not merely an adjunctive power to a statutory power to award costs found elsewhere. In terms it does not apply to criminal proceedings, it does not apply here therefore, and counsel have not identified any other head of power which is applicable.

I do not except that, as a matter of interpretation, as Mr McGorey argued, s 72 Crimes (Appeal and Review) Act requires an appeal court to specify the amount of costs payable when pronouncing a costs order. On the other hand as a matter of practicality there being no access to the costs assessment regime, any dispute about the amount of ordered costs can only be resolved by a court order for lump-sum payment. I will grant liberty to apply in the event that the parties are unable to reach agreement. The power of the court to fix the amount of costs is implicit in its power to award them.

The broad ancillary powers contained in s 55(3) Crimes (Appeal and Review) Act and the plenary power conferred by s 23 of the Supreme Court Act, do not operate as proverbial blank cheques authorising orders contrary to the express provisions of applicable legislation. Section 72 of the Crimes (Appeal and Review) Act provides for a specific form of a costs order stipulating a time within which costs are to be paid. Section 353 Legal Profession Act provides for the resolution of disputes about party and party costs by costs assessment but it specifically excludes cases such as the one before me from the regime it establishes. Neither s 55 nor s 23 authorise an order for costs to be assessed contrary to the express terms of s 353.

I therefore make the following orders: