Dudzinski v Spender[2008] QSC 54

SUPREME COURT OF QUEENSLAND

[1] The applicant, Mr Dudzinski, applied for leave to present an information against the respondent, a Judge of the Federal Court of Australia, which I refused on 12 March 2008 for reasons which were published that day. Mr Dudzinski thereupon sought to reopen his application for leave which was refused with reasons given at the time.

[2] Mr Porter, for the Judge, sought an order for costs to be assessed on the indemnity basis against Mr Dudzinski who opposed such an order being made. If made, he sought a stay pending initiating an appeal from my decision and pending the commencement of proceedings against the Commonwealth of Australia in this Court.

[3] The power to award costs must be found in some statutory enactment either explicitly or by necessary implication. An analysis of the history of the statute law relating to costs in England and Australia is to be found in the judgment of French J in Byrnes v Barry [2004] ACTCA 24 at para 52 and following and also in the joint judgment of Mason CJ and Deane J in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 182 and following.

[4] A general power to award costs in Queensland is in s 221 of the Supreme Court Act 1995 which provides:

“The Supreme Court shall have power to award costs in all cases brought before it and not provided for otherwise than by this section.”

[5] There is no reservation excluding the practice followed in any criminal proceedings which is to be found in, for example, s 23 of the Supreme Court Act 1933 (ACT) considered by the court in Byrnes v Barry. But s 221 is apt to be reduced in scope by particular provisions in particular legislation, Mason CJ and Deane J in Knight v FP Special Assets Limited at 183.

[6] The first place to look for any costs-ordering power in regard to an application for leave to bring a private prosecution is The Criminal Code 1899 and, in particular, Chapter 70 which concerns, inter alia, informations by private persons for indictable offences. Section 694, provides, relevantly, that if there is delay in bringing an accused person who has pleaded to a private information to trial or if the accused person is acquitted upon trial:

“the court, or the judge before whom the trial (if any) is had, may award costs to the accused person.”

Chapter 70 also provides for security for costs to be given by the private prosecutor before any information can be presented to the court in s 687, no doubt to secure the costs which may be awarded pursuant to s 694. As Mr Dudzinski pointed out in his opposition to a costs order being made against him, since leave has been refused, neither the situation envisaged by s 687 nor s 694 applies. However, they may inform the approach to the construction of s 221 of the Supreme Court Act 1995.

[7] The only other section in the Code which makes provision for costs is s 660 in Chapter 65 where costs may be ordered in circumstances where the victim of the indictable offence has sustained bodily injury, clearly, not here relevant.

[8] The Criminal Practice Rules 1999, in Chapter 5, provide for the procedure for bringing a private prosecution but it is silent about costs. The only provision about costs in those Rules concerns the costs of an application to narrow or set aside a subpoena to produce documents in Rule 34. This rule mirrors the observations of Mackenzie J in Re Ansett Australia Holdings Limited [1998] 1 Qd R 116,  when there was no such provision under the previous rules and his Honour felt compelled to follow the decision of the Full Court in R v His Honour Judge Kimmins, ex parte Attorney-General (1980) Qd R 524 about the ambit of the then Criminal Practice Rules 1900.

[9] Rule 4(2) of the Criminal Practice Rules 1999 provides:

“If these rules do not make provision or sufficient provision for a matter, the court may give the directions or rulings about the matter as the court considers appropriate.”

[10] Clearly r 4(2) is not a source of power for a costs order nor is it sufficient to “pick up” the Uniform Civil Procedure Rules about costs. Accordingly, there is no express power to order costs where an application for leave to present a private prosecution has been unsuccessful. It remains to be seen if the present legislative provisions can support the conclusion that there is.

[11] In 1999 significant changes were made to the procedural law in this State with the introduction of the Uniform Civil Procedure Rules 1999, the Criminal Practice Rules 1999 and amendments to the Supreme Court of Queensland Act 1991. By virtue of s 118B of the Supreme Court of Queensland Act 1991, the previous Rules of the Supreme Court and Criminal Practice Rules 1900 expired on 30 June 1999 and the new rules came into effect on 1 July 1999. Where there is any inconsistency between the Uniform Civil Procedure Rules and the Supreme Court Act 1995, by s 134 of the Supreme Court of Queensland Act 1991 the UCPR are to prevail to the extent of the inconsistency. Section 221 of the Supreme Court Act 1995 reproduced the former s 58 which first appeared  in the Supreme Court Act 1867.

[12] Order 91 r 1 of the Rules of the Supreme Court provided:

“Subject to the provisions of the Judicature Act and these Rules, the costs of and incidental to all proceedings in the Court … shall be in the discretion of the Court or Judge…”

The High Court in FP Special Assets concluded that this rule meant that s 58 was left without any work to do, per Mason CJ and Deane J at 184. The present rules about costs are in Chapter 17A of the Uniform Civil Procedure Rules. Those rules apply to “costs payable … under an Act, these rules or an order of the court”, rule 678. Rule 680 provides that a party “to a proceeding” cannot recover any costs of the proceedings from another party other than under the UCPR or an order of the court.

[13] By rule 680 costs may be awarded at any stage of a proceeding.  Rule 689 expresses the generally recognised rule about costs, namely:

“Costs of a proceeding, including an application in the proceeding, are in the discretion of the court but follow the event unless another order is more appropriate.”

[14] A “proceeding” is what was formally encompassed by “action, cause or matter”, Supreme Court of Queensland Act 1991, s 130. The Judicature Act 1867 (now repealed) defined “matter” to “include every proceeding in the Court not in a cause”, s 1. The question is whether proceedings of the kind brought by Mr Dudzinski are proceedings within the purview of the Uniform Civil Procedure Rules concerning costs. In R v His Honour Judge Kimmins, ex parte Attorney-General Douglas J with whom W B Campbell and Andrews JJ agreed, concluded in respect of a differently worded rule in the Criminal Practice Rules 1900 that the Rules of the Supreme Court were not imported unless specifically identified as being called in aid. That rule provided:

“In the application of the Rules of the Supreme Court to proceedings in its Criminal Jurisdiction, the term ‘cause’ shall be deemed to include any prosecution or other proceeding.” Order 1 r 1.

[15] Mackenzie J in Re Ansett accepted this conclusion of the Full Court in Re Kimmins that the rules of civil procedure did not apply to criminal practice except where the Criminal Practice Rules themselves called in aid the Rules of the Supreme Court as in O 4 r 4 which concerned the way in which an appearance must be entered to a private information requiring it to be in the same manner as an appearance to a writ of summons in an action. The Full Court had held that the power to award costs was contained in s 58 of the Supreme Court Act so that any argument based on O 91 was irrelevant.  This cannot stand in light of the High Court’s analysis in FP Special Assets. There the Court concluded that O 91 “covered the field” about costs so that there was “no work for section 58 to do”. Mackenzie J in Ansett accepted that this meant that s 58 was, in effect, a dormant provision and could not be employed to award the costs to the successful party in an application to set aside or narrow a subpoena in criminal proceedings.  The same may be said of s 221 vis-à-vis the UCPR.

[16] It is anomalous that the Code provides for the costs of an unsuccessful private prosecution yet does not in terms do so for an unsuccessful application for leave.  Gaudron J in FP Special Assets, agreeing with Mason CJ and Deane J, said at 205:

“It is contrary to long-established principle and highly inappropriate that the grant of power to a court ... should be construed as subject to a limitation not appearing the words of that grant. ...  The necessity of the power to be exercised judicially tends in favour of the most liberal construction ...”.

[17] Such an observation might lead to an ample reading of s 221 of the Supreme Court Act 1995 such as to fill the omission in either the Code or the Criminal Practice Rules.  However, the UCPR and the Criminal Practice Rules are not materially different from the Rules of the Supreme Court and the previous Criminal Practice Rules 1900 to distinguish the clear statement of the Full Court in Re Kimmins by which I am bound.  Furthermore, the legislature was alerted to the need for some express provision for the costs of a successful third party to a subpoena application and included a rule when the Criminal Practice Rules were reissued in 1999.  It did not make provision for costs to be awarded to a successful respondent to a leave application for a private prosecution although making provision for the procedure.  Against that background it would be adventurous to imply a power to award costs in such a circumstance.  A minor amendment to s 686 of the Code could correct this anomaly.

[18] I therefore conclude that there is no power to award costs against Mr Dudzinski in respect of his failed application for leave.  If the Court had the power I would have exercised it to order costs on the indemnity basis because the application was doomed to failure with no evidence to support the application as well as numerous appellate decisions which supported the decisions of the Judge.

[19] The order therefore is that there be no order as to costs.