AMBROSE V SANDFORD PTY LTD

The Supreme Court of the Northern Territory of Australia Kearney J.
2, 21 June 1989 at Darwin

APPEAL - Costs - general practice - departure
from - material considerations - duty of complainant to court - effect of seeking "guideline" judgment - Justices Act, s.177(2)(e)

COSTS - Appeal from magistrate - general practice­ departure from - material considerations - duty of complainant to court - effect of seeking "guideline• judgment - Justices Act, s.177(2)(e)

CRIMINAL LAW - Sentence - duty of complainant to court

PRACTICE AND PROCEDURE - Costs - general practice - departure from - material considerations - duty of complainant to court - effect of seeking "guideline" judgment - Justices Act, s.177(2)(e)

SENTENCE - Proceeedings for penalty - duty of com­ plainant to court

Cases followed:

Australian Conservation Foundation v Forestry Commission 81 ALR 166
McEwen v Siely (1972) 21 FLR 131
R v Anzac (1987) 50 NTR 6
White v Newton (1986) 71 ACTR 41
Lovering v Brough (1985) 36 NTR 59
Wesley-Smith v Balzary (unreported, Forster CJ,
8 September 1977)

Cases referred to:

Bierwirth v McMillan (1987) 44 SASR 385 McMillan v Bierwirth (1987) 31 A Crim R l Tenthy v Curtis (1988) 55 NTR 1

Counsel for the appellant Solicitors for the appellant

Counsel for the respondent Solicitors for the respondent

J.G. Stone
Australian Government Solicitor

R.A. Kimber Ward Keller

kea890lll
THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No.532 of 1988

IN THE MATTER of the Justices Act
AND IN THE MATTER of an
appeal from a sentence imposed by the Court of Summary Jurisdiction at Darwin
BETWEEN:

AMANDA MAY AMBROSE

Appellant AND:
SANDFORD PTY LTD
Respondent

CORAM:	Kearney J.

RULING ON COSTS
(delivered 21 June 1989)

For reasons published on 2 June, I allowed this appeal against the inadequacy of a fine of $1500 imposed on the respondent, and substituted a fine of $2000. Mrs Stone of counsel for the appellant then applied for the costs of the appeal. Mr Kimber opposed the application; he submitted that each party should bear its own costs. I rule today on the question of costs.

Section 177(2)(e) of the Justices Act provides that on appeal this Court may "make such ••• order		as		to	costs as	it	thinks	fit".		The discretion conferred may be accurately described	as	"unfettered",		but	as	Burchett J pointed out in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at p.169,	in	dealing		with	a
similar discretion -

"It	is	nevertheless	a judicial discretion, to be exercised in a principled way."

The settled rule of practice in this court as to the award of costs in appeals from penalties imposed by Courts of Summary Jurisdiction is that in the absence of special circumstances the statutory discretion to award costs is exercised in favour of the successful party. See generally the discussion of the authorities in Tenthy v Curtis (1988)
55 NTR 1, dealing with the discretionary award of costs by Courts of Summary Jurisdiction. In other words,  the exercise of the discretion in s.177(2)(e) is guided by a principle that costs generally follow the event; see Lovering v Brough (1985) 36 NTR 59 at pp.63-64. However, if some consideration is present which makes it unjust to award a successful appellant his costs, he should not be awarded them: see McEwen v Siely (1972) 21 FLR 131 at p.136.

As Miles CJ pointed out in White v Newton (1986) 71 ACTR 41, the usual practice of awarding costs to a successful appellant is not fixed and universal. That case involved a successful appeal by a defendant. I see no reason why his Honour's observation should not also apply to a successful appeal against penalty by a complainant under s.163(1) of the Justices Act, so that if there are considerations which make it unjust to award costs to such an appellant, the usual practice should not be followed.

In this case there are 2 considerations material to the question whether the appellant should be awarded costs. The first arose in the proceedings before the learned Magistrate, and the second in the appeal.

In the proceedings before his Worship the then counsel for the complainant/appellant handed up a copy of the decision in Bierwirth v McMillan (1987) 44 SASR  385. That was the decision of von Doussa J., at first instance. His Worship was aware that that case had gone on appeal to the Full Court and inquired of counsel:-

"In any event, the Full Court agreed with [von Doussa J], did they not, that his approach to [the penalty] was correct?"

Counsel for the complainant/appellant did not directly answer his Worship's query. He informed the

..

learned Magistrate that the Full Court decision (which was not handed up) suggested that the penalty should include "a deterrent factor". This information was misleading because it was ambiguous. His Worship noted that the complainant's submission was that a fine of $2455.82 should be imposed -

together ... with some additional thought it was appropriate to	impose aspect in the fine.••"

amount, if I a	deterrent

His Worship discussed the assessment of the penalty and said, inter alia:-

should I impose $3000 in adding an additional deterrent   factor   although I note that von Doussa J felt that there was already a deterrent factor in the statutory penalties provided under those particular provisions of the Act	" (emphasis mine)

Counsel for the complainant/appellant referred again to Bierwirth v McMillan (supra) and submitted that the penalty should be "2455.82 plus a deterrent factor".

His Worship imposed a fine of $1500 for reasons which he then gave. It is clear from Bierwirth v McMillan (supra) at p.394 that von Doussa J, in referring to the need for a deterrent factor in the fine, as his Worship observed, had in mind only personal deterrence and not general deterrence. The Full Court considered his Honour's approach

erroneous in this respect, in that the penalty imposed under s.221F(14) of the Income Tax Assessment Act 1936 (Cth) should provide both for personal and general deterrence; see McMillan v Bierwirth (1987) 31 A Crim R 1 at pp.18-19.

It can be seen that his Worship was misled into believing that the Full Court's approach to deterrence was the same as that of von Doussa J. This arose because counsel for the complainant/appellant did not hand up a copy of the Full Court decision relied on, or refer to the vital difference in the approach of the Full Court to the deterrent factor. This led to his Worship's decision, and thence to the appeal. The duty of counsel for a complainant on a question of penalty is akin to that of a Crown Prosecutor, as set out in R v Anzac (1987) 50 NTR 6 at pp.14-15.

The second consideration material to the award of costs is that on appeal Mr Trigg of counsel for the appellant stated that even if the appellant was unsuccessful she sought a judgment setting out guidelines to the proper approach to penalty in cases under s.221F(14). To some extent, therefore, as Mr Kimber submitted, the respondent had the misfortune that his case happened to be selected as an appropriate vehicle for the resolution of a point of law of general importance to the appellant.

In the light of both matters I consider that it would be unjust to award the costs of the appeal against the respondent. The appellant and respondent should respectively bear their own costs of the appeal. In the circumstances the appropriate order is: no order as to costs.

Order accordingly.

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