Hanna and Anor v Horler and Anor Hanna v Horler and Anor [1999] NSWSC 1159 (30 November 1999)

Last Updated: 2 December 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Hanna & Anor v Horler & Anor Hanna v Horler & Anor [1999] NSWSC 1159

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12050/99

11963/99

HEARING DATE{S): 18 October 1999

JUDGMENT DATE: 30/11/1999

PARTIES:

Nadi Hanna & Anor v Lilian Horler & Anor

Nader Kryollos Hanna v Lilian Horler & Anor

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Ms L Horler

COUNSEL:

12050/99 - M A Bradford - Plaintiffs

C P O'Donnell - 2nd Defendant

11963/99 M Lawler - Plaintiff

C P O'Donnell - 2nd Defendant

SOLICITORS:

11963/99 Hanna & Associates - Plaintiff

I V Knight - Defendant

12050/99 - Tress Cox & Maddox - Plaintiff

I V Knight - Defendants

CATCHWORDS:

ACTS CITED:

Crimes Act 1914 (Cth)

Justices Act 1902

Local Courts Act 1982

Suitors Fund Act 1951

DECISION:

Entitlement to relief established by plaintiffs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SIMPSON J

Tuesday 30 November 1999

12050/99

11963/99

Nadi HANNA & ANOR v Lilian HORLER & ANOR

Nader Kryollos HANNA v Lilian HORLER & ANOR

Judgment

HER HONOUR :

1 Division 1 of Pt 4 of the Justices Act 1902 ("the Act") governs committal proceedings before magistrates. S 41A(1) relevantly provides:

"(1) The Justice or Justices:

(a) when making an order discharging a defendant as to the information then under inquiry, ...

may ... adjudge that the informant shall pay ... such costs as to the Justice or Justices seem just and reasonable."

Sub s (2A) precludes the award of costs unless certain specified circumstances are made out. It is the scope of the power conferred by sub s (1) that is the question at issue in these proceedings.

Background

2 The three plaintiffs (Nadi Hanna and Ulysses Crosson in matter No.12050/1999 and Nader Hanna in matter No.11963/1999) were charged on information with numerous offences against the Crimes Act 1914 (Cth). Committal proceedings pursuant to the s 41 Justices Act 1902 commenced on 18 May 1998 before Mr D Kearney, Magistrate, and proceeded thereafter through approximately twenty days of hearing. On 17 September Mr Kearney determined under s 41(2) of the Act that, having regard to all the evidence before him, the evidence was capable of satisfying a jury beyond reasonable doubt that each defendant had committed an indictable offence (or offences).

3 Shortly after that, in circumstances upon which it is unnecessary to elaborate, Hulme J of this Court, pursuant to s 134 (now repealed) of the Act ordered Mr Kearney to disqualify himself from further hearing the committal proceedings against Nader Hanna. He expressly "reserve(d) to the magistrate who hears any further committal proceedings against [Mr Hanna] in ... respect of the charges ... costs of the proceedings before [Mr Kearney] which have occurred since 16 September 1998". The incident which gave rise to the order for disqualification occurred on 16 September.

4 On 30 September, in compliance with Hulme J's order, Mr Kearney did disqualify himself from further hearing of the proceedings against Nader Hanna. It was an inevitable consequence that he also disqualified himself in relation to the charges against the other then defendants (present plaintiffs). All charges were then listed before the first defendant in the present proceedings, Ms L Horler, Magistrate. By agreement between the parties the transcript of evidence and the exhibits that had already been taken and tendered before Mr Kearney were put before Ms Horler; but witnesses whose credit was substantially in issue were recalled for further cross-examination, presumably to enable Ms Horler to make her own judgment upon their reliability.

5 It appears that none of the parties regarded the decision made by Mr Kearney under s 41(2) as binding on Ms Horler, and on 19 May she proceeded to make her own determination on that matter, which determination was to the same effect as that made by Mr Kearney. Evidence in the defence case was called and submissions made over a further period of about five days. Not being of the opinion that, on the basis of all the evidence, there was a reasonable prospect that a jury would convict any defendant of an indictable offence, Ms Horler ordered that the defendants be discharged (s 41(6)).

6 Ms Horler then considered applications for costs made on behalf of all discharged defendants. Being satisfied of the necessary matters for which s 41A(2A) provides, she ordered the informant to pay the costs of the proceedings that had taken place before her. She declined to make such an order in relation to the proceedings that had taken place before Mr Kearney. Her reason for doing so was that she considered that the proceedings that had been conducted before her constituted "a different committal" to those that had been conducted before Mr Kearney, and that she lacked jurisdiction to make an order in relation to the costs of the previous committal.

7 It is this conclusion that the plaintiffs now challenge. They argue that, on the proper construction of the relevant provisions of the Act, Ms Horler did not lack jurisdiction to make the order sought. The Director of Public Prosecutions (Cth) ("the DPP"), who is the second defendant, appeared to oppose the orders sought. A submitting appearance was filed on behalf of Ms Horler.

8 Because of recent amendments to those provisions of the Act that enable review of Local Court decisions in this Court, there is some uncertainty as to the precise avenues available to the plaintiffs, and the precise form of orders that should be made should I accept the substance of the plaintiffs' argument, that the magistrate's jurisdiction to award costs extended to awarding costs in relation to the proceedings that have taken place before Mr Kearney. Counsel for the DPP accepted that, if the magistrate was in error, it would be appropriate for this court to exercise whatever jurisdiction it has to make orders enabling that error to be corrected. Accordingly, rather than take up time with an arid argument as to the applicable provisions, the parties sensibly agreed that I should decide the question of substance in the hope that, should the plaintiffs be successful, they will endeavour to reach agreement as to the consequential orders to be made.

9 The first argument advanced on behalf of the plaintiffs depended upon the agreement between the parties as to the procedures to be adopted before Ms Horler, as a result of which Ms Horler was provided with the transcript and exhibits from the proceedings before Mr Kearney. That agreement, it was argued, meant that the proceedings before Ms Horler should not be seen as separate proceedings, but as a continuation of those before Mr Kearney. In other words, the whole of the proceedings amounted to a single committal presided over consecutively by two different magistrates. Counsel for the DPP sought to gain some support for this submission from s 3 of the Act, which defines "committal proceedings" as

"a hearing before a Justice or Justices for the purpose of deciding whether a person charged with an offence should be committed for trial or for sentence, and includes any proceedings that are preliminary thereto or ancillary thereto."

10 There were two aspects of this definition from which counsel for the DPP sought to gain comfort. The first was a reference to "a hearing before a Justice or Justices". Counsel argued that this suggests that the legislature envisaged the possibility of single committal hearing divided between two magistrates. This cannot be accepted. The Act is littered with references to proceedings before "a Justice or Justices". It appears that there are still occasions on which a Local Court may be constituted by two or more Justices of the Peace: see, for example, the Local Courts Act 1982, s 8; it is unnecessary to detail the numerous references in the Act to a court constituted by two or more Justices of the Peace, or to the conducting of committal proceedings by an inquiry so constituted.

11 The second part of the definition relied upon by the plaintiffs was the final words, by which there are included in the definition of committal proceedings "proceedings that are preliminary thereto or ancillary thereto".

12 I do not think this argument, either, can be accepted. The simple fact is that the proceedings which took place before Mr Kearney were themselves "committal proceedings", (although they were never completed) and were not preliminary or ancillary to committal proceedings. In my opinion the argument put on behalf of the plaintiffs derives no support from the definition.

13 Nor do I accept that the agreement between the parties as to the procedure to be adopted changed, or was capable of changing, the nature of the jurisdiction being exercised by Ms Horler. Her task was to hear, under s 41, the committal proceedings. The manner in which the evidence was put before her was a procedural matter on which the parties were free to reach agreement in order to limit the time necessary for the hearing. That does not make proceedings commenced before Ms Horler a continuation of proceedings that had commenced before Mr Kearney. The fact that neither the parties nor Ms Horler apparently considered her to be bound by the s 41(2) decision of Mr Kearney adds strength to that conclusion.

14 Counsel for the DPP relied upon the decision of the Full Court of this Court in R W Miller and Co v Wilson (1932) 32 SR (NSW) 466. In that case a trial commenced before a jury of four. It was necessary to discharge one member of the jury, and the parties agreed to proceed with only three. The three remaining members of the jury were unable to reach a unanimous verdict, and the trial judge accepted a majority verdict of two of the three jurors. That verdict was declared a nullity. The court held that, where statute provided for trial by a jury of four, trial by a jury of three was not a trial by a duly constituted court. Counsel urged that, following that decision, I should conclude that the proceedings before Mr Kearney were a nullity.

15 In my opinion Miller v Wilson does not advance the argument at all. The proceedings before Mr Kearney were not a nullity; they were proceedings before a properly constituted court until the events of 16 September, as a result of which Mr Kearney was required to disqualify himself, and, indeed, until he did disqualify himself. It may have been also appropriate to set aside the s 41(2) order he had made, and, in the absence of the agreement between the parties, Ms Horler would not have been bound by any rulings on evidence or other decisions he had made. But that does not mean that the proceedings were a nullity, and even if they were, it does not mean that the fact of their occurrence should be entirely ignored for the purpose of costs orders.

16 In my opinion the answer to this question lies in a simple analysis of s 41A(1). That section provides for an award of costs following an order discharging a defendant "as to the information then under inquiry". The magistrate is empowered to order the payment of "such costs as ... seem just and reasonable". In my opinion there is nothing in that section which deprives the magistrate of the power to award costs which include the costs of an aborted hearing. They are the costs relevant to the prosecution of the information on which the defendants have been discharged.

17 Such a construction has the advantage of being consonant with notions of ordinary justice. If the position adopted by the DPP were correct, the plaintiffs, no matter how deserving, would be disentitled to any costs orders in relation to the proceedings before Mr Kearney, because the power to award costs can only be exercised by a justice "when making an order discharging a defendant..." (or, pursuant to sub para (b), when committing a defendant for trial..."). That is, the order for costs can only be made on the completion of the committal proceedings. Since, by reason of Hulme J's order, Mr Kearney was precluded from completing the committal proceedings, he was disempowered in relation to costs. To hold that defendants in those circumstances had no avenue of recovering costs would lead to an unjust verdict.

18 Counsel for the DPP did argue that the plaintiffs would not, on his argument, be left entirely without the prospect of recovering costs, in that it would be open to them to make an application under the Suitors Fund Act 1951. In my opinion this is no answer. Inter alia, even assuming that s 6A(1)(c) would apply to the present circumstances, a certificate of the judicial officer before whom the proceedings were conducted is required and payment of costs lies within the discretion of the Director General of the Department of the Attorney General and is subject to a prescribed cap (see s 6A(16)). That is a less valuable right than the right to apply under the Act.

19 In my opinion the plaintiffs have established their entitlement to relief. It will be necessary for the parties to bring in short minutes of order accordingly.

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LAST UPDATED: 02/12/1999