R v Michael Ward and Stephen John Turnbull and Bruce Wayne Lewis; Ex Parte Hugh Campbell Macrea and Francis John Villiers [1987] ACTSC 73 (5 November 1987)

SUPREME COURT OF THE ACT

THE QUEEN v. MICHAEL WARD and STEPHEN JOHN TURNBULL and BRUCE WAYNE LEWIS;
Ex parte HUGH CAMPBELL MACREA and FRANCIS JOHN VILLIERS
S.C. No. 257 of 1987
Prerogative Writs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Prerogative Writs - motion to make absolute order for certiorari and mandamus - award of costs in the Magistrates Court - alleged constructive failure to exercise jurisdiction - principles governing grant of relief

McEwen v. Siely (1973) 21 FLR 131

Australian Coal and Shale Employees Federation and Anor v. The Commonwealth and Others [1953] HCA 25; (1956) 94 CLR 621

Hill v. Peel (1870) LR 5 CP 172

Scanes v. Commissioner of Police (1974) 3 ACTR 20

Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223

The Council of the City of Parramatta v. Pestell [1972] HCA 59; (1972) 128 CLR 305

Barton v. Berman and Anor (1981) NSWLR 63

Acuthan and Ors v. Coates and Ors (1986) 6 NSWLR 472

HEARING

CANBERRA
5:11:1987

ORDER

The order nisi for mandamus and certiorari be discharged.

DECISION

This is the return of an order nisi granted by Kelly J. on the ex parte application of the prosecutors on 12 March 1987 and directed to the respondents to show cause why writs of mandamus and certiorari should not issue in respect orders for costs made by the first respondent (the Magistrate) in the Magistrates Court of the Australian Capital Territory on 29 January 1987. Those orders were that the second respondent pay the first prosecutor's costs in the sum of $1,900, that the third respondent pay the second prosecutor's costs in the sum of $1,900, and that the first prosecutor pay the second respondent's costs in the sum of $1,000. The order nisi listed the following grounds:

(1) That the awards of $1,900.00 in each of charges

numbered CC 3544 and 3513 of 1986 were manifestly
inadequate to indemnify each of the said
applicants in respect of the costs incurred by him
defending the charges on a party and party basis.
(2) That in determining in the said charges numbered
CC 3544 and 3513 of 1986 that the applicants
should have the sum of $1,900.00 each for costs
the First Respondent failed to take into account
relevant considerations and/or took into account
irrelevant considerations and proceeded to assess
the costs in an arbitrary manner so as to fail to
exercise his discretion properly or at all and in
particular in assessing the said sums:
(i) Did not take into account the actual amount
of counsel fees and their itemisation charged
by counsel for the Applicants;
(ii) Did not take into account any itemisation of
work actually done by the solicitor for the
Applicants in relation to defence of the
matters and did not consider an appropriate
amount in relation to relevant items;
(iii) That he arrived at the figures in an
arbitrary manner and not in accordance with
ordinary principles governing the award of
costs.
(3) That in ordering costs in the manner aforesaid the
First Respondent was in error in law.
(4) That in ordering that the First Applicant should
pay the Second Respondent's costs in the sum of
$1,000.00 in charge number CC 3543 of 1986 the
First Respondent did not take into account
relevant matters and took into account irrelevant
matters and in doing so fell into error of law and
failed to exercise his discretion properly or at
all and in particular:
(i) Did not itemise and assess the amount of time
expended in relation to the charge by the
legal representative of the prosecution;
(ii) Awarded an amount that was well in excess of
any proper figure for costs for the time
actually involved;
(iii) Awarded that sum arbitrarily without recourse
to ordinary principles governing the award of
costs.

On the hearing of the return of the order nisi only ground 4 was pressed in support of the order being made absolute, but it was submitted that the other grounds were made out on the evidence and were relevant to the failure properly to exercise the costs discretion embraced in ground 4 above.

2. The first prosecutor was charged in the Magistrates Court, Canberra, with four offences, namely assaulting police, hindering police in the execution of duty, assisting with the conduct of an unlawful game, and acting in a manner of conducting a common gaming house. He was convicted of the offence of hindering police in the execution of duty, but otherwise the charges were dismissed.

3. The second prosecutor was charged in the same court with two offences, namely knowingly permitting an unlawful game to be played, being the owner of a place of public resort and being the keeper of a common gaming house. Both charges were dismissed.

4. All charges were heard together on 15 and 16 December 1986 when the Magistrate reserved his decision. Both prosecutors were represented by counsel and instructing solicitor. Judgment was delivered on 19 December 1986 when the Magistrate published his written reasons and reserved the question of costs with liberty to either party to apply to have the matters relisted on short notice. Accordingly the matter was listed for the presentation of submissions on costs on 29 January 1987. Having heard the submissions on behalf of the prosecutors and the second and third respondents, the Magistrate, adopting "a global approach", made orders that the second respondent pay the first prosecutor's costs on the charge of assisting with the conduct of an unlawful game (CC No. 86/3544) in the sum of $1,900; that the third respondent pay the second prosecutor's costs on the charge of being the keeper of a common gaming house (No. CC 86/3613) in the sum of $1,900; and that the first prosecutor pay the third respondent's costs in respect of the offence of hindering a police officer in the execution of his duty (No. CC 86/3543) in the sum of $1,000.

5. On the return of the order nisi the Magistrate appeared by counsel and submitted to the jurisdiction.

6. On the hearing of the application for costs on 29 January 1987 the prosecutors were represented by their solicitor who put submissions to the Magistrate on the general principles relating to the exercise of a discretion to award costs where criminal charges had been dismissed. He referred to the well known case of McEwen v. Siely (1973) 21 FLR 131.

7. The Magistrate interrupted those submissions and indicated to the solicitor that he was basically concerned with the amount of the costs rather than the prosecutors' right to an order for costs in the circumstances. The Magistrate then gave the prosecutors an opportunity to address him on the amount of costs to be awarded. It was conceded on behalf of the prosecutors that the third respondent was entitled to an order for costs in relation to the successful prosecution of the second prosecutor for hindering police in the execution of duty. The submission was that it would be reasonable to award costs in the ratio of five-sixths to the prosecutors in respect of the charges which they had successfully defended, and one-sixth to the third respondent in respect of the successful prosecution of the second prosecutor.

8. The solicitor for the prosecutors then outlined from the bar table some incomplete detail of the prosecutors' costs including counsel's fees and totalling $7,806. No details of the second prosecutor's costs were put before the Magistrate. In fixing the amount of the costs payable to each prosecutor, the Magistrate allowed fee on brief to counsel at $900 and refresher at $600. Otherwise he allowed instructing solicitors' fees of $1,000, conferences $600, costs incurred in research $500 and witnesses' fees at $200. On the return of the order nisi no complaint was made on behalf of the prosecutors that these figures were not just and reasonable in all the circumstances. The grievance urged on behalf of the prosecutors was the arbitrary fixing of the sum of $1,000 for costs relating to the conviction for hindering police in the execution of duty.

9. The power of the Magistrate to award costs is set out in s.244(1) of the Magistrates Court Ordinance 1930. It gives the court power to award and order such costs "as it thinks just and reasonable".

10. It was submitted on behalf of the prosecutors that in awarding the sum of $1,000 on behalf of the prosecutors the Magistrate had made a decision which was ultra vires as no reasonable authority could have come to the decision reached. It was further submitted that in the circumstances the Magistrate had failed to exercise his jurisdiction or that there had been a constructive failure to exercise jurisdiction.

11. Counsel for the prosecutors relied upon Australian Coal and Shale Employees Federation and Anor v. The Commonwealth and Others [1953] HCA 25; (1956) 94 CLR 621 where Kitto J. discussed the proper attitude of a court of appeal to any judgment given in the exercise of a discretion. He said at p.627:

"I shall not repeat the references I made in Lovell v.
Lovell [1950] HCA 52; (1950) 81 CLR 513, at pp.532-534 to cases of the
highest authority which appear to me to establish that
the true principle limiting the manner in which
appellate jurisdiction is exercised in respect of
decisions involving discretionary judgment is that
there is a strong presumption in favour of the
correctness of the decision appealed from, and that
that decision should therefore be affirmed unless the
court of appeal is satisfied that it is clearly wrong.
A degree of satisfaction sufficient to overcome the
strength of the presumption may exist where there has
been an error which consists in acting upon a wrong
principle, or giving weight to extraneous or irrelevant
matters, or failing to give weight or sufficient weight
to relevant considerations, or making a mistake as to
the facts. Again, the nature of the error may not be
discoverable, but even so it is sufficient that the
result is so unreasonable or plainly unjust that the
appellate court may infer that there has been a failure
properly to exercise the discretion which the law
reposes in the court of first instance: House v. The
King [1936] HCA 40; (1936) 55 CLR 499, at pp 504, 505."

And later, Kitto J. cited a passage from Hill v. Peel (1870) LR 5 CP 172:

"Where a principle is involved, the Court will always
entertain the question, and, if necessary, give
directions to the master; but, where it is a question
of whether the master has exercised his discretion
properly, or it is only a question as to the amount to
be allowed, the Court is generally unwilling to
interfere with the judgment of its officer, whose
peculiar province it is to investigate and to judge of
such matters, unless there are very strong grounds to
shew that the officer is wrong in the judgment which he
has formed".

The above passage from Australian Coal and Shale Employees Federation and Anor v. The Commonwealth and Others, supra, was applied by Fox J., as he then was, in Scanes v. Commissioner of Police (1974) 3 ACTR 20 at 25.

12. In Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, Lord Greene M.R. referred to the exercise of the power to review discretionary acts. He said that the law recognises certain principles upon which discretion must be exercised and within certain limits the discretion is an absolute one and cannot be questioned in any court of law. The exercise of discretion must be a real exercise of discretion and it must be exercised reasonably. Unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that will attract the supervision of the courts. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the person exercising the discretion.

13. A useful statement of the circumstances in which a court will interfere with the exercise of a discretion is recited by Gibbs J., as he then was, in The Council of the City of Parramatta v. Pestell [1972] HCA 59; (1972) 128 CLR 305 at 327. He said:

"For obvious reasons therefore, the legislature has left
it to the council to form its opinion as to whether a
particular work is of special benefit to a portion of
the area. A court has no power to override the
council's opinion on such a matter simply because it
considers it to be wrong. However, a court may
interfere to ensure that the council acts within the
powers confided to it by law. If, in purporting to
form its opinion, a council has taken into account
matters which the Act, upon its proper construction,
indicates are irrelevant to its consideration, or has
failed to take into account matters which it ought to
have considered, the opinion will not be regarded as
validly formed. Even if the council has not erred in
this way an opinion will nevertheless not be valid if
it is so unreasonable that no reasonable council could
have formed it (see Associated Provincial Picture
Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at
pp 228-229 and 233-234, and see also Bankstown
Municipal Council v. Fripp (1919) 26 CLR at p 403)."

14. Two recent decisions of the Court of Appeal in New South Wales exemplify the correct approach to the supervisory role of superior courts by way of prerogative writs. In Barton v. Berman and Anor (1981) NSWLR 63 the court had to consider the refusal of a Magistrate to award costs to defendants in committal proceedings when those committal proceedings had been dismissed on account of the withdrawal of the informations. The power to award costs was provided by s.41A(1) of the Justices Act 1902 which gave a discretion to adjudge that the informant pay to a defendant discharged as to an information under inquiry "such costs as . . . seem just and reasonable. At p.71 Hope J.A. said:

"(18) What is certain is that not every mistake of law
justifies the grant of relief. Mandamus is not a form
of general appeal on questions of law. The mistake of
law must be one which shows that the determination
arrived at in the purported exercise of jurisdiction is
'nugatory and void' (11b), so that 'the ostensible
determination is not a real performance of the duty
imposed by law upon the tribunal' (11c). Expressions
used or quoted by Jordan CJ in Ex parte Hebburn Ltd; Re
Kearsley Shire Council (3a) illustrate the nature of
these mistakes. They include mistakes which lead a
tribunal 'to misunderstand the nature of the
jurisdiction which it is to exercise'; to apply 'a
wrong and inadmissible test'; to 'misconceive its
duty'; 'not to apply itself to the question which the
law prescribes'; and 'to misunderstand the nature of
the opinion which it is to form'. To these
illustrations there can be usefully added his statement
in Ex parte Howells; Re McCulloch (5a) that to
establish a constructive failure to exercise
jurisdiction, 'it would be necessary to show that (the
Tribunal) based its decision upon a misunderstanding of
the question which it was invested with jurisdiction to
decide, or upon matters entirely extraneous and foreign
to that question: . . .' He went on to describe mistakes
falling within this description as 'fundamental'."

Hutley J.A. said at p.75:

"The decision of the magistrate can only be reviewed if
he fails to consider the question, and this is not
established by proving unsatisfactory or illogical
reasoning, by failure to mention some piece of evidence
which the applicant may consider important, or by
giving what may seem to the court undue weight to some
piece of evidence. It is only if it can truly be said
that the magistrate did not consider the question which
he was required to consider that this Court can make an
order."

15. It is true that in the present case the Magistrate did not articulate the basis upon which he fixed the sum of $1,000. But his failure to give reasons and to express all of the relevant considerations does not amount to a breach of duty justifying the invocation of the powers of this court. Only if the Magistrate refused to listen to submissions before giving a decision could it be said that there has been a failure to perform a duty (paraphrasing Hutley J.A. at p.76).

16. Barton v. Berman and Anor was cited with approval by a Court of Appeal differently constituted in Acuthan and Ors v. Coates and Ors (1986) 6 NSWLR 472.

17. It is sufficiently apparent from the record of the proceedings before the Magistrate on 29 January 1987 that in awarding the sum of $1,000 to the third respondent in respect of his legal costs, the Magistrate took account of the fact that the third respondent was represented by solicitor alone, the hearing of all informations lasted two days, the prosecutor's solicitor had been awarded the sum of $1,000 for instructing solicitor's fees, $600 for conferences (which included the sum of $200 to counsel for conference fee) and $500 for costs incurred in research. In all the circumstances there has not been a failure to exercise jurisdiction or such an exercise of jurisdiction as to render an unreasonable or absurd result. The amount awarded for the third respondent's costs is about one-quarter of that awarded to the prosecutors and that fraction does not seem to me to be in any way disproportionate to the prosecutors' costs.

18. The Magistrate did not misconceive his duty and did not fail to apply himself to the question of costs. There was a real performance of his duty based upon relevant considerations and without taking into account extraneous and irrelevant matters.

19. The order nisi for mandamus and certiorari is discharged. I shall hear counsel on the question of costs of this application.