PARTIES:	PAULINE RHONDA SNELL

V

LEONARD DAVID PRYCE

TITLE OF COURT: JURISDICTION:

FILE NO: DELIVERED: HEARING DATES:

SUPREME COURT (NT}

APPEAL FROM COURT OF SUMMARY JURISDICTION

SC458 OF 1989

DARWIN 19 AUGUST 1992

21 and 22 JULY 1992

JUDGMENT OF:	ANGEL J

CATCHWORDS:

Costs - Recovery of costs - Self represented appellant successful on Justices Appeal ((1990) 99 FLR 213) - Neglected to apply for costs of proceedings in Court of Summary Jurisdiction and counsel's fees for drawing and settling the notice of appeal - Application and operation of the slip rule - Case of afterthought not oversight - Slip rule inapplicable

Justices Act (NT), s4, s77 and sl77(2}(e)

The Commonwealth v McCormack (1984) 155 CLR 273 at 277, applied
Gould v Vaggelas (1985) 157 CLR 215 at 275, applied
L Shaddock & Associates Pty Ltd v Parramatta City Council
(1982) 151 CLR 590 at 594-5, applied
Raybos Australia Pty Ltd v Tectran and Corp Pty Ltd [No. 2]
(1988) 62 ALJR 151 at 152, applied
Strand Nominees Pty Ltd v Pennywise Smart Shopping Aust Pty Ltd (unreported, NT Supreme Court, Asche CJ, 6 March 1991) followed
Eng Mee Yong v Letchumanan [1980] AC 331 at 341

'G

REPRESENTATION:
Counsel:
Appellant: Respondent:

c. Ford
Mancini

Solicitors:

Appellant: Respondent

Cridlands Solicitor for NT

Judgment category classification: Court Computer Code:
Judgment ID Number: Number of pages:

CAT A

ang92013

9

ang92013
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

JUSTICES APPEAL No. 458 of 1989

BETWEEN:
PAULINE RHONDA SNELL
Appellant

AND:
LEONARD DAVID PRYCE
Respondent

CORAM:	ANGEL J

REASONS FOR JUDGMENT
(Delivered 19 August 1992)

This is a summons, taken out pursuant to the slip rule (RSC 036.07) seeking certain orders as to costs.

The appellant successfully appealed to this court from a conviction in a Court of Summary Jurisdiction on a charge that between 18 February 1988 and 12 March 1988, at Darwin in the Northern Territory of Australia, she unlawfully abstracted confidential information from a computer with intent to use it to obtain an advantage for another, contrary to s222 of the Criminal Code (NT).	The appeal was heard on 12 December 1989.	The appellant appeared in person

on the appeal.	Judgment allowing the appeal and setting aside the conviction was delivered on 15 February 1990 - see (1990) 99 FLR 213.

The appellant was unsuccessfully represented by counsel in the Court of Summary Jurisdiction.	Counsel drew and settled her notice of appeal to this court.	The appellant now seeks orders for costs of the hearing in the Court of Summary Jurisdiction (including counsel fees) and counsel's fee to draw and settle the notice of appeal.		The appellant also seeks disbursements in respect of the filing and service of the notice of appeal.

The appellant's notice of appeal from the conviction did not seek any orders as to costs.	No mention of costs was made during the hearing of the appeal.	The appellant was not present or represented in court at the time judgment on the appeal was delivered, though her father was present in the well of the court.	No application was made at that time for costs of either the appeal or the costs of the trial in the Court of Summary Jurisdiction.		The order allowing the appeal and setting aside the conviction was authenticated pursuant to the Supreme Court Rules on 19 February 1990.

Mr Ford, who had appeared for the appellant on the summons, submitted that had an application for costs been made at the time of delivery of judgment, it would almost

certainly have been granted, at least for the costs of the trial where the appellant was represented.	He cited Latoudis v Casey (1990) 170 CLR 534.	He submitted that notwithstanding the authentication of the order allowing the appeal it was not too late to apply for costs.	He referred to the slip rule and to L Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590 at 594-5, The
Commonwealth v McCormack (1984) 155 CLR 273 at 277, and Raybos Australia Pty Ltd v Tectran & Corp Pty Ltd [No 2) (1988) 62 ALJR 151 at 152.

Conceding that there were unexplained passages of time between delivery of judgment and the application for costs, Mr Ford submitted that delay would only prevent an order being made if "something had intervened which would render it inexpedient or inequitable that it be made": Shaddock, (supra) at 597, Hatton v Harris [1892] AC 547 at 558 per Lord Herschell, at 560 per Lord Watson and at 564 per
Lord Macnaughten, and that here nothing had intervened which would render it inexpedient or inequitable to make an order for costs.

For the respondent, it was submitted that judgment having been delivered and authenticated and that no order for costs having been sought, and, even conceding that the question of costs is ancillary or incidental to judgment and within the slip rule and that delay of itself does not prevent the application of the slip rule, nonetheless,

having regard to the length of the delay, the absence of any proper explanation for the delay, and that even if on appeal a successful appellant normally may expect to be awarded the costs of appeal and trial, in the circumstances of this case no order for costs should be made.

Provision for the ordering of costs in Courts of Summary Jurisdiction is contained in s77 of the Justices Act.	Although that section has since been amended, at the time of the proceedings in the Court of Summary Jurisdiction it provided:

11(1) When the Court makes a conviction or order it may, if it thinks fit, in and by the conviction or order, adjudge that the defendant pay to the complainant or, in the case of an order of dismissal, that the complainant pay to the defendant, such costs as the Court thinks just and reasonable.

When the Court or a Justice has authority under this Act to grant any relief or indulgence to any party to any proceedings before Justices, and such authority includes a discretion as to the terms upon which the relief or indulgence may be granted, the Court or Justice may, in the exercise of its or his discretion, make an order for the payment of such costs by the party to any other party as it or he thinks just and reasonable, and the order shall be deemed to be, and be enforceable as, an order of the Court of summary Jurisdiction.
The amount so allowed for costs shall in every case be specified in the conviction or order."

On appeal the Supreme Court has power, inter alia, to make such further or other order as to costs or otherwise as it thinks fit:	Justices Act s177(2)(e).

Seizing upon reference to "complainant" in s77, counsel for the respondent submitted that a distinction should be drawn between summary offences and minor indictable offences.	Because s77 refers exclusively to "complainant", it was submitted that where, as here, a prosecution is based on an information, the legislature did not intend that a person who successfully defends such a matter in a Court of Summary Jurisdiction should be able to seek an order for costs.	However, I think it is clear that for the purposes of costs orders pursuant to s77 of the Justices Act, any distinction between information and complaint is irrelevant. Section 4 of the Justices Act defines complaint as including a charge of a minor indictable offence in the event that the Court of Summary Jurisdiction proceeds to dispose of such a charge summarily.	It is clear, I think, that s77 enables a Court of Summary Jurisdiction hearing and determining matters, whether on complaint or on information triable summarily, to award costs in appropriate cases, irrespective of whether the matter is brought on information or complaint.

The slip rule empowers this court to amend an order to include provision for costs which had not been asked for earlier: Raybos Australia Pty Ltd v Tectran Corp Pty Ltd [No 2]	(supra).	Although the judgment allowing the appeal was authenticated, it is, for the purposes of the slip rule and the consideration of the question of costs, not beyond recall: Shaddock (supra) at 594-5; Commonwealth v McCormack

5

(supra) at 277; Biala v Mallina Holdings Ltd (1989) 2 WAR
381 at 388-390, 397.	The slip rule is not available as a matter of course and is to be used 'sparingly':	Shaddock (supra) at 597, Gould v Vaggelas (1985) 157 CLR 215 at 275, and only where there is some error or slip or oversight or omission.	As Toohey J said in Raybos (supra) at 152:

"In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgrnent or order was announced.	But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing.	In that case the purpose of correction is not to give expression to the intention of the court at the time the judgrnent or order was pronounced	"

The appellant swore an affidavit in support of the application.	She was not cross-examined on the affidavit, other than as to when she asked her father to attend on the judgment.	At her trial the appellant was disbelieved on her oath (see (1990) 99 FLR 213 at 215) and her uncontested affidavit material is not necessarily to be accepted at face value, cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341.
In her affidavit the appellant deposes to, inter alia, the following:

11 5.		I was unable to afford legal representation on this appeal and was not granted legal aid so in the appeal I represented myself.	Mr McDonald of counsel kindly drew the Notice of Appeal for me.
I did not make submissions as to costs at the conclusion of the hearing of the appeal as I was confused and nervous and it did not occur to me to do so.
After the hearing of the appeal but before the decision on 15 February 1990, my husband and I left the Northern Territory and travelled to Goulburn in	ew South Wales seeking work.	Because

of the conviction neither I nor my husband was able to obtain work in the Territory.
At the time judgment was delivered in the appeal I was still in Goulburn and I asked my father to attend to take judgment on my behalf.	It did not occur to me to ask him to seek costs if I was successful.	My father attended to take judgment, but, he informs me, was not permitted to appear on my behalf as he lacked a written authority from me.
Within a fortnight after receiving the judgment in the appeal, I telephoned Mr McDonald from Goulburn and asked him if I could sue the government for compensation for convicting me.	By "compensation" I meant recompense for the embarrassment of the conviction, for my inability to obtain work while the conviction operated and also my legal costs of the trial and the appeal.	Mr McDonald advised me that to recover damages from the Government would be very difficult, especially as I was in New South Wales.	Although I considered that the expression "compensation" included legal costs I did not specifically discuss legal costs with
Mr McDonald during the telephone conversation nor did he refer to the question of costs in his advice to me.	I assumed that his advice in relation to damages applied equally in relation to costs.
Whilst in New South Wales I sought advice from a firm of solicitors of solicitors in Goulburn as to the recovery of compensation on being successful on the appeal.	I was still of the understanding that "compensation" included legal costs.	I asked the solicitors whether they would be prepared to act on my behalf in suing the Northern Territory Police Force for compensation.	The solicitors advised me that there was little that could be done in my case.	In my discussions with the solicitors I did not specifically raise the question of my entitlement to seek costs of the trial or of the appeal.
I also consulted an officer of the New South Wales legal aid service who advised me that I would need to apply to the Northern Territory Legal Aid Commission for a grant of aid.
In none of the conversations referred to in paragraphs 9, 10 and 11 did I advise the lawyer concerned that I had not in fact been awarded costs of the appeal and the trial.
The job situation in New South Wales became difficult and therefore my husband and I decided to return to the Northern Territory as soon as possible.	We did not return to the Northern Territory straight away as I was pregnant with my daughter and we could only return by car.
On my return ,to the Territory in July 1991, I

spoke again by telephone to Mr McDonald who told me that there was a chance I might recover my costs of the trial and the appeal.	This was the first occasion since the original hearing upon which I specifically discussed with a lawyer the prospect of recovering my legal costs.
In the period between the time of the hearing of the appeal and my conversation with Mr McDonald, none of the lawyers with whom I had discussed the question of my entitlement to compensation had mentioned to me the possibility of my recovering costs.	It was not until the conversation with
Mr McDonald that I realized I might be entitled to the costs of the trial despite having lost it.
Upon obtaining that advice from Mr McDonald in about August 1991 I sought legal aid to investigate the possibility of recovering costs. Legal aid was approved in September 1991 upon which I was referred to Messrs Cridlands to investigate the possibility.
I therefore humbly seek the exercise of this Court's discretion to grant me costs despite the length of time which has elapsed since the delivery of the judgment on the appeal."

The appellant's account for the failure to ask for costs either during the hearing of the appeal or subsequently indicates that, save until shortly prior to the issue of the summons, it was never her intention to seek costs.	such a	conclusion is consistent with the notice of appeal not mentioning costs.	This case, like Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (unreported Asche CJ 6 March 1991) is a case of afterthought rather than oversight.	There is an unexplained period before the appellant's return to the Northern Territory from New South Wales and between August 1991 and when the summons was finally taken out in June 1992.	It may be inferred that when the appellant left the Territory and went to NSW, she abandoned any prospect of seeking costs, even if one were to assume (which I do not) she formerly

harboured such a prospect.

On the facts here, the appellant has not proved error or omission or oversight such as to attract the slip rule.

If I err in this and the slip rule does apply, it is appropriate that I indicate I would nevertheless be disposed to exercise my discretion against any award of costs in favour of the appellant, fully recognising, as I do, that costs are compensatory and not awarded by way of punishment. There is no need to elaborate on the reasons for exercising the discretion adversely against the appellant; suffice it to refer to Letoudis v Casey (supra) at 544, 565-6, 569 and
Luciano v D G Pty Ltd and Evangalista (1980) 25 SASR 568,
and to notice the learned Magistrate's adverse finding as to the appellant's sworn testimony, the appellant's conduct giving rise to the prosecution (see (1990) 99 FLR 213 at
215) and the inordinate length of time spent in the lower court on issues ultimately resolved against the appellant.

The summons for costs is dismissed.