J BY HIS LITIGATION GUARDIAN MAXWELL BERNARD VARDANEGA v AUSTRALIAN CAPITAL TERRITORY [NO 2]

[2011] ACTSC 36 (11 March 2011)

PRACTICE AND PROCEDURE – costs – person under a disability – litigation guardian – responsible for costs of proceedings personally – indemnity by plaintiff.

PRACTICE AND PROCEDURE – parties – person under a disability – minors – litigation guardian – desirability of advising court when minor reaches majority.

CRIMINAL LAW AND PROCEDURE – sentence – stay on appeal – whether applicable to habeas corpus proceedings – no automatic stay – Magistrates Court Act 1930 (ACT) s 216.

CRIMINAL LAW AND PROCEDURE – bail – implied power to discharge a person from bail.

Legal Profession Act 2006 (ACT)

Magistrates Court Act 1930 (ACT), Pt 3.10, ss 216, 207, 222, 226, 208, Divs 3.10.2, 3.10.2A, 3.10.3, 3.10.4

Bail Act 1992 (ACT), s 57AA

Legislation Act 2001 (ACT), s 180

Court Procedures Rules 2006 (ACT), rr 277, 3506

J by his litigation guardian Vardanega v Australian Capital Territory [2009] ACTSC 170

In Re Cobbett (1845) 14 M & W 175

Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203

R v Jones [1894] 2 QB 382

R v Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506

R v Oregan; Ex parte Oregan (1957) 97 CLR 323

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Rhodes v Swithenbank (1889) 22 QBD 577

Steeden v Walden [1910] 2 Ch 393

Stephenson v Geiss [1998] 1 Qd R 542

Bligh v Tredgett (1851) 5 De G & Sm 74

Baile v Baile (1872) LR 13 Eq 497

NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247

Al Mousawy by his tutor Dodds v Howitt-Stevens Constructions Pty Ltd [2010] NSWSC 1398

Feeney v Pieper [1964] QWN 23

Brown v Weatherhead (1844) 4 Hare 122

Thomas v Quarmby (1982) 63 FLR 402

R v Superintendent of the Belconnen Remand Centre; Ex parte Diamond (ACTSC, Miles CJ, SC 1243 of 1986, 15 August 1986, unreported)

No. SC 1065 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 11 March 2011

1. On 18 December 2009, I made orders in these proceedings as follows:

1. The title to the proceedings be amended to show J by his litigation guardian Maxwell Bernard Vardanega as plaintiff and the Australian Capital Territory as defendant.

2. The habeas corpus order be discharged and the application dismissed.

3. The parties have leave to bring in short minutes of order as to any ancillary orders that they consider should be made consistent with the reasons for judgment delivered in this matter.

See J by his litigation guardian Vardanega v Australian Capital Territory [2009] ACTSC 170.

2. I directed also that the submissions on any further orders should be made on or before 5 February 2010.

3. The defendant did provide detailed and helpful submissions by that date. No submissions were received from the plaintiff or his litigation guardian. Regrettably, this was not followed up and I am not sure of the reason for that. As a result, the matter languished until an officer of the ACT Government Solicitor inquired of the progress of the matter.

4. Despite efforts to ascertain whether, despite the long delay, the plaintiff or his litigation guardian wish to make any submissions, it has not been possible to obtain a clear response. In the circumstances, I propose to proceed to make final orders.

Costs

5. The defendant submitted that the result of order 2 is that the plaintiff has been wholly unsuccessful in the action and that, accordingly, the defendant should ordinarily have its costs.

6. Originally, no costs were awarded in habeas corpus proceedings. Baron Alderson said in In Re Cobbett (1845) 14 M & W 175 (at 176) “costs are never given in such cases”. See also Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 (at 214) per Brooking J.

7. That position has now changed and, at least by 1894, it was accepted that there was a power to order payment of costs in habeas corpus proceedings: R v Jones [1894] 2 QB 382 (at 385, 386). In Australia, it is now clear that a court has power in proceedings for a habeas corpus writ or order to make an order for costs: R v Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506 (at 519); R v Oregan; Ex parte Oregan (1957) 97 CLR 323 (at 334).

8. Of course, in this case, the plaintiff, who was a minor at the time of the proceedings, was represented by a litigation guardian. Following the common law, r 277 of the Court Procedures Rules 2006 (ACT) provides that a litigation guardian is personally liable for any costs payable by a plaintiff if he or she were not under a disability. See Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 114); Rhodes v Swithenbank (1889) 22 QBD 577 (at 578). Of course, the litigation guardian is entitled to be indemnified for such costs by the plaintiff, if he or she has the means: Steeden v Walden [1910] 2 Ch 393 (at 399); Stephenson v Geiss [1998] 1 Qd R 542 (at 558).

9. That does not apply, however, if the plaintiff comes of age during the currency of the proceedings and prior to the order for costs being made and adopts the proceedings as his or her own. The older cases suggested that the plaintiff then became responsible for the whole costs (Bligh v Tredgett (1851) 5 De G & Sm 74 (at 77); 64 ER 1024 (at 1026)) and that the litigation guardian becomes a mere surety (Baile v Baile (1872) LR 13 Eq 497 (at 508)). This seems to be the current approach as set out in NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247, though Sackville J did seem to suggest (at 257) that there may be an argument that the litigation guardian might still be responsible for the costs of the proceedings up to the date when the plaintiff gained his or her majority. See also support for the general rule in Al Mousawy by his tutor Dodds v Howitt-Stevens Constructions Pty Ltd [No 2] [2010] NSWSC 1398 (at [32]).

10. Although the plaintiff attained his majority after the proceedings had been reserved for judgment, there is no material to suggest that he has adopted the proceedings. It would appear that, as an officer of the court (Rhodes v Swithenbank (at 579), adopted in Dey v Victorian Railways Commissioners (at 113)), the litigation guardian may have had a duty to inform the court of the plaintiff attaining his majority or, at least, it would have been prudent and desirable to do so: Feeney v Pieper [1964] QWN 23; NSW Insurance Ministerial Corporation v Abualfoul (at 254-5). The litigation guardian’s authority in the litigation ceases at that time: Feeney v Pieper; Brown v Weatherhead (1844) 4 Hare 122; 67 ER 586; NSW Insurance Ministerial Corporation v Abualfoul (at 254).

11. It does not seem to me that the fact that a party is under a disability or that a litigation guardian has been appointed for that party is a relevant consideration of, ordinarily, any significance when a court is considering the question of costs.

12. In this case, however, the defendant, despite these submissions, does not seek an order as to costs. In deference to the careful and helpful submissions of Mr D Jarvis, counsel for the defendant, I have nevertheless set out above what I consider the position to be in respect of the liability for costs.

Other orders

13. As noted in J by his litigation guardian Vardanega v Australian Capital Territory (at [50]), J was released on bail by me. As also noted, there was no stay of the sentence while the proceedings were being heard and a question arose as to whether, therefore, the sentence had now expired. See [56] and [76].

14. The defendant seemed to submit in earlier submissions that Pt 3.10 of the Magistrates Court Act 1930 (ACT), which regulates Criminal Appeals from the Magistrates Court, might arguably be said to encompass applications for habeas corpus. If that were so, then s 216 of that Act, which stays the execution of enforcement of a sentence until the appeal is concluded, might apply to such proceedings, it was said.

15. I reject that contention. In the first place, the jurisdiction of the Supreme Court is specified in s 207 of the Act to apply to specified circumstances set out in Div 3.10.2, 3.10.2A and 3.10.3. None of them is apt to include an application for habeas corpus.

16. It is true that s 222 of the Act, which provides for limits to the release from custody of applicants for habeas corpus where there is a defect or error in a committal order, and s 226, which permits the court to grant bail when a person is “brought up by a habeas corpus order”, are both included in Div 3.10.4 which is entitled “Criminal appeals – other than provisions” but I do not think that this is sufficient to cast doubt on, or create ambiguity in, the clear terms of s 207 which sets out the extent of the appellate jurisdiction of the Supreme Court to the three Divisions mentioned in [16] “and to no others”. In addition, there are other provisions in Div 3.10.4 which are not really directly about appeals in the rest of the Part.

17. Secondly, it is clear that, though in certain circumstances a person held in custody pursuant to a lawful order of imprisonment can be granted a writ of habeas corpus (Thomas v Quarmby (1982) 63 FLR 402 (at 405)), this is confined to the position where, as was alleged here, the term of the imprisonment had expired. Otherwise, it is correct to say as a matter of law that habeas corpus may not be used as a substitution for an appeal against conviction or sentence: R v Superintendent of the Belconnen Remand Centre; Ex parte Diamond (ACTSC, Miles CJ, SC 1243 of 1986, 15 August 1986, unreported) p3.

18. Finally, and perhaps most compellingly, s 216, which imposes the automatic stay of execution pending appeal, is expressed to be limited to “an appeal to which this division applies”, namely Div 3.10.2. None of the appeals specified in s 208, which sets out the appeals to which that division applies, is or could be construed to mean an application for habeas corpus.

19. Thus, unless the defendant had sought a stay of the sentence, there was no interruption to the sentence during the pendency of the hearing of these proceedings. Such a stay may be ordered under r 3506 of the Court Procedures Rules.

20. No stay was sought or granted in this matter. Thus, the sentence originally imposed has by now expired. There is, accordingly, no question of J being returned to custody as a result of the orders I made on 18 December 2009.

21. Technically, J’s bail is probably still current. There is no longer any need for it. Strangely, the Bail Act 1992 (ACT) makes no express provision for a court to discharge a person from bail as, indeed, it makes no express provision for bail to be revoked if, say, bail or a condition of it has been breached. I would assume that there must be some implied or inherent power to do either of these.

22. Such an implied or inherent power is not affected by the abolition in s 57AA of the Bail Act of the inherent power of the Supreme Court to grant bail, for the discharge or revocation of bail is not a grant of bail.

23. If express power is needed, it may be found in s 180 of the Legislation Act 2001 (ACT).

24. Accordingly, I will make orders in accordance with these reasons.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate: