ABBOTT -v- MAGISTRATE MALLEY [2012] WASC 420
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 420 | |
| Case No: | CIV:3330/2011 | 30 JULY 2012 | |
| Coram: | EM HEENAN J | 13/11/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
MAGISTRATE MALLEY
First Respondent
ELIAHU BERNSTEIN
Second Defendant
Catchwords:
Criminal Investigation Act - Application to determine claim of legal professional privilege over items seized under search warrant - Reference to Magistrates Court - Claim for inspection of seized items withdrawn by consent - Effect of consent…
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Details
- AGLC
- ABBOTT -v- MAGISTRATE MALLEY [2012] WASC 420
- Case
- [2012] WASC 420
- Decision Date
CaseChat Overview and Summary
The case involved a dispute between Abbott and Magistrate Malley, centred around the application of the Criminal Investigation Act. Abbott sought to claim legal professional privilege over certain items seized under a search warrant. The application for the claim was made to the Magistrates Court, but subsequently, the claim for inspection of the seized items was withdrawn by mutual consent of the parties. The court then made an order for costs in favour of the respondent, Magistrate Malley. Abbott subsequently sought a review of the costs order, challenging its validity and scope.
The legal issues before the court included whether the consent order, which resulted in the withdrawal of the claim for inspection, affected the court's power to order costs without a formal determination of the claim for privilege. Furthermore, the scope of review for the costs order was also considered. Specifically, it was questioned whether the court had the authority to review the costs order and, if so, what the limits of such a review were.
In determining these issues, the court held that the consent order did not preclude it from making a costs order in favour of the respondent. It further found that the court did possess the power to order costs without a formal determination of the claim for privilege, particularly in cases where the withdrawal of the claim is by mutual consent. The court also concluded that the scope of review for the costs order was limited to ensuring the order was not manifestly unjust or unreasonable. As the costs order was neither, the review was dismissed, affirming the order for costs in favour of Magistrate Malley.
The final orders of the court were that the application for review of the costs order was dismissed. The original order for costs in favour of Magistrate Malley remained in place, underscoring the court's authority in such matters and the limited scope of review for such orders.
The legal issues before the court included whether the consent order, which resulted in the withdrawal of the claim for inspection, affected the court's power to order costs without a formal determination of the claim for privilege. Furthermore, the scope of review for the costs order was also considered. Specifically, it was questioned whether the court had the authority to review the costs order and, if so, what the limits of such a review were.
In determining these issues, the court held that the consent order did not preclude it from making a costs order in favour of the respondent. It further found that the court did possess the power to order costs without a formal determination of the claim for privilege, particularly in cases where the withdrawal of the claim is by mutual consent. The court also concluded that the scope of review for the costs order was limited to ensuring the order was not manifestly unjust or unreasonable. As the costs order was neither, the review was dismissed, affirming the order for costs in favour of Magistrate Malley.
The final orders of the court were that the application for review of the costs order was dismissed. The original order for costs in favour of Magistrate Malley remained in place, underscoring the court's authority in such matters and the limited scope of review for such orders.
Orders
Orders of the court
Application for review dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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