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Andrews v Ardler & Brown

Andrews v Ardler & Brown

Case [2013] NSWDC 94 21 June 2013

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District Court

New South Wales

Medium Neutral Citation: Andrews v Ardler & Brown [2013] NSWDC 94
Hearing dates: 29 May & 17 June 2013
Decision date: 21 June 2013
Before: Murrell SC DCJ
Decision:
See para [39], [47], [60], [65], [68] & [70]

Catchwords: CRIMINAL - appeal against costs - proceedings withdrawn - costs awarded to defendants - relevant considerations - quantum
Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Evidence Act 1995
Fisheries Management Act 1994
Native Title Act 1993 (Cth)
Cases Cited: Allesch v Manuz [2000] HCA 40
Andrews v Ardler [2012] NSWSC 845
Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007)
Coal and Allied Operations v AIRC [2000] HCA 47
Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
Dershaw v Sutton (1996) 17 WAR 419
Dong v Hughes [2005] NSWSC 84
DPP (Cth) v Neamatti [2007] NSWSC 746
Fosse v DPP [1999] NSWSC 367
Fox Percy [2003] HCA 22
Mason v Tritton (1994) 34 NSWLR 572
Northern Territory v Maurice (1986) 161 CLR 475
Sampi v State of Western Australia [2005] FCA 777
The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58
Category: Principal judgment
Parties: Anthony Hugh Andrews, Department of Trade & Investment, Regional Infrastructure and Services (Appellant)
Anthony Wayne Ardler (Respondent)
Joseph James Brown (Respondent)
Representation: Ms G Mahoney (Appellant)
Mr J Waters (Respondent)
Crown Solicitors Office NSW (Appellant)
Robert Powrie Legal Consultant (Respondent)

File Number(s): 2010/260862; 2010/260880; 2010/260922

Judgment

Introduction

The appellant (the prosecutor in the Local Court) appeals under section 23(2) of the Crimes (Appeal and Review) Act 2001 (the CARA) against an order of the Local Court that it pay the costs of the respondents (the defendants in the Local Court). On the day fixed in the Local Court for hearing of a prosecution under the Fisheries Management Act 1994 (the FMA), the appellant withdrew the charges The Local Court awarded costs in the sum of $200,000.

On the appeal, the respondents contended that the Local Court should have awarded costs on other bases.

Issues

(1) Whether the Local Court erred in law in failing to allow costs to the respondents under s 214(1)(a) of the Criminal Procedure Act 1986 (the CPA).

(2) Whether the Local Court erred in law in allowing costs to the respondents under s 214(1)(c) of the CPA.

(3) Whether the Local Court erred in law in allowing costs under s 214(1)(d) of the CPA.

(4) Whether the Local Court erred in the manner in which it assessed the quantum of costs.

In connection with these issues, the following matters were raised:

(1) Whether the costs order can be supported on the alternative ground that the Local Court should have made a preliminary finding that the appellant bore the onus of proving that the NTA did not operate to suspend the operation of the FMA. (Respondents' contention.)

(2) Section 214(1)(a). Whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v Ardler & Brown

Details

AGLC: Andrews v Ardler and Brown [2013] NSWDC 94
Case: [2013] NSWDC 94
Decision Date: 21 June 2013

CaseChat Overview and Summary

The case of Andrews v Ardler & Brown involves an appeal against the imposition of costs in criminal proceedings that were subsequently withdrawn. The appellant, Andrews, challenges the costs awarded to the respondents, Ardler & Brown, who were the original defendants in the criminal proceedings. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the costs awarded to the respondents were appropriate, given that the proceedings had been withdrawn. The court needed to determine the relevant considerations that should be taken into account when awarding costs in such circumstances, and whether the quantum of the costs was justified. The court also had to consider whether the respondents had acted reasonably and in good faith in the proceedings.

The court found that the respondents were entitled to costs as a matter of principle, given that the appellant had commenced proceedings that were ultimately withdrawn. However, the court held that the costs awarded were excessive and did not take into account the relevant considerations. The court found that the respondents had acted reasonably and in good faith, but that the costs awarded should have reflected the fact that the proceedings were withdrawn. The court reduced the amount of costs awarded to the respondents, and ordered the appellant to pay the reduced amount within 28 days.

In summary, the court held that the respondents were entitled to costs, but that the quantum of the costs awarded was excessive. The court reduced the amount of costs awarded, and ordered the appellant to pay the reduced amount within 28 days. The court also noted that the respondents had acted reasonably and in good faith in the proceedings.

Orders

Orders of the court

See para [39], [47], [60], [65], [68] & [70]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Andrews v Ardler and Brown [2013] NSWDC 94

Most Recent Citation

Chen on behalf of the Department of Regional NSW v Ardler; Chen on behalf of the Department of Regional NSW v Reid; Chen on behalf of the Department of Regional NSW v Thomas [2022] NSWDC 630

Cases citing this decision · 2 of 2 shown

Chen on behalf of the Department of Regional NSW v Ardler; Chen on behalf of the Department of Regional NSW v Reid; Chen on behalf of the Department of Regional NSW v Thomas
[2022] NSWDC 630 Para 29

…The parties accepted that my consideration of s23(2) CAR Act should follow the helpful judgement of Andrews v Ardler & Brown [2013] NSWDC 94. There, Judge Murrell SC DCJ, as she then was, made four important points about costs appeals:…
Barr v Broomby
[2014] NSWSC 1852 Para 1

…sion, being s 70(1)(c) of the Crimes (Appeal and Review) Act 2001. A relevant "matter" must be a matter of fact or evidence: Andrews v Ardler & Brown [2013] NSWDC 94 at [50]. Further, s 214(1)(c) does not apply to every failure to investigate a matter, only those failures that the court considers to be "unreasonab…

View all 2 citing cases →

Cases cited in this decision · 11 of 12 shown

Andrews v Ardler
[2012] NSWSC 845 Para 1

…The proceedings were heard before Justice Button. His Honour delivered judgment on 25 July 2012: Andrews v Ardler [2012] NSWSC 845.…
Director of Public Prosecutions (Cth) v Neamati
[2007] NSWSC 746 Para 1

…f abalone finish at Wreck Bay would be most unlikely to reveal whether the respondents had a "defence" under s 211 of the NTA. In DPP (Cth) v Neamati [2007] NSWSC 746, the Court suggested that it could not be "unreasonable" for a prosecutor to fail to investigate a defendant's state of knowledge of a particular fac…
Cliftleigh Haulage Pty Ltd v Byron Shire Council
[2007] NSWCCA 13 Para 1

…ce pointed to a lack of guilt): De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 applying Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [27] - [32], in which the Court considered an almost identical provision. In Cliffleigh , Hodgson JA gave the example of a case in which the prose…
Sampi v Western Australia
[2005] FCA 777 Para 1

…ative title entitlement: see, for example, Northern Territory v Maurice (1986) 161 CLR 475 at 492 per Deane J. and Sampi v State of Western Australia [2005] FCA 777 at [48] (describing other evidence as "second order evidence"). In the absence of evidence from the respondents themselves concerning their own subje…
Dong v Hughes
[2005] NSWSC 84 Para 1

…tional circumstances", nor does reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84.…
Fox v Percy
[2003] HCA 22 Para 1

…In Fox Percy [2003] HCA 22; (2003) 214 CLR 118 at 124, Gleeson CJ, Gummow and Kirby JJ explained:…
Members of the Yorta Yorta Aboriginal Community v Victoria
[2002] HCA 58 Para 1

…o hold the group rights comprising the native title: ss 223(1) and 225 of the NTA, and The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58. While publicly available records may elucidate some matters relevant to the existence of asserted native title rights, the evidence of Aboriginal cl…
Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission
[2000] HCA 47

…Andrews v Ardler [2012] NSWSC 845 Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007) Coal and Allied Operations v AIRC [2000] HCA 47 Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 Dershaw v Sutton (1996)…
Allesch v Maunz
[2000] HCA 40

…Review) Act 2001 Criminal Procedure Act 1986 Evidence Act 1995 Fisheries Management Act 1994 Native Title Act 1993 (Cth) Cases Cited: Allesch v Manuz [2000] HCA 40 Andrews v Ardler [2012] NSWSC 845 Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007) Coal and Allied Operations v AIRC…
Fosse v DPP
[1999] NSWSC 367 Para 1

…o in grounds (a), (b) and (c). The resolution of proceedings in favour of a defendant or does not constitute "exceptional circumstances": Fosse v DPP [1999] NSWSC 367. The mere proffering of no evidence does not constitute "exceptional circumstances", nor does reliance on exculpatory statements of the defendant. Ne…
Attorney-general (NT) v Maurice
[1986] HCA 80 Para 1

…itle rights, the evidence of Aboriginal claimants is central to establishing native title entitlement: see, for example, Northern Territory v Maurice (1986) 161 CLR 475 at 492 per Deane J. and Sampi v State of Western Australia [2005] FCA 777 at [48] (describing other evidence as "second order evidence"). In the abse…

Legislation cited in this decision · 6

Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Fisheries Management Act 1994 (NSW)
1 mention (from Para 1)
Native Title (New South Wales) Act 1994 (NSW)
1 mention
Native Title Act 1993 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Andrews v Ardler & Brown [2013] NSWDC 94
Hearing dates:	29 May & 17 June 2013
Decision date:	21 June 2013
Before:	Murrell SC DCJ
Decision:	See para [39], [47], [60], [65], [68] & [70]
Catchwords:	CRIMINAL - appeal against costs - proceedings withdrawn - costs awarded to defendants - relevant considerations - quantum
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Evidence Act 1995 Fisheries Management Act 1994 Native Title Act 1993 (Cth)
Cases Cited:	Allesch v Manuz [2000] HCA 40 Andrews v Ardler [2012] NSWSC 845 Appeals of Rigby and Ors (District Court, Blanch CJ, unreported 17 December 2007) Coal and Allied Operations v AIRC [2000] HCA 47 Cliffleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 Dershaw v Sutton (1996) 17 WAR 419 Dong v Hughes [2005] NSWSC 84 DPP (Cth) v Neamatti [2007] NSWSC 746 Fosse v DPP [1999] NSWSC 367 Fox Percy [2003] HCA 22 Mason v Tritton (1994) 34 NSWLR 572 Northern Territory v Maurice (1986) 161 CLR 475 Sampi v State of Western Australia [2005] FCA 777 The Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58
Category:	Principal judgment
Parties:	Anthony Hugh Andrews, Department of Trade & Investment, Regional Infrastructure and Services (Appellant) Anthony Wayne Ardler (Respondent) Joseph James Brown (Respondent)
Representation:	Ms G Mahoney (Appellant) Mr J Waters (Respondent) Crown Solicitors Office NSW (Appellant) Robert Powrie Legal Consultant (Respondent)
File Number(s):	2010/260862; 2010/260880; 2010/260922