Application of Neil Harold Pearson - [1999] NSWSC 611

CITATION: Application of Neil Harold Pearson [1999] NSWSC 611

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 70016/98

HEARING DATE(S): 26/3/99

JUDGMENT DATE:
23 June 1999

PARTIES :

Neil Harold Pearson

JUDGMENT OF: Wood CJatCL

COUNSEL : I. Bourke for Applicant
P. Roberts for Australian Government Solicitor
N. Abadee for Attorney General of NSW

SOLICITORS: R. J. Benson for Applicant
P. Swinton (Australian Government Solicitor)
Crown Solicitors (NSW)

CATCHWORDS:

DECISION: Order - Chief Executive Officer of Customs to pay the Applicant's costs of the preliminary objection to jurisdiction

1
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70016/98

WOOD CJ at CL
WEDNESDAY 23 JUNE 1999

APPLICATION OF NEIL HAROLD PEARSON
Re: COSTS

1 HIS HONOUR: Following my determination that I had jurisdiction to entertain the application which was brought under S 474D of the Crimes Act 1900, a question arises as to the costs occasioned in relation to the objections that were raised in that regard. 2 The primary objection to jurisdiction was taken by the Australian Government Solicitor on behalf of the Chief Executive Officer of Customs (“Customs”), who prosecuted Mr Pearson and Neil Pearson & Company Pty Limited. Following the service of notices under S 78B of the Judiciary Act, the Attorney General for New South Wales (“The Attorney”) intervened. There was no other intervention. I adopted the course of listing the matter for oral argument, because of the importance of the issues raised in the written submissions received, and its potential application to a range of similar prosecutions, brought under federal laws and determined, at first instance, either summarily in Local Courts, or upon indictment in the District Court or Supreme Court. 3 After handing down my decision, an order for costs in relation to the preliminary issue was sought by the applicants. 4 This application was pressed in reliance upon S 76 of the Supreme Court Act 1970, which relevantly provides:

“76(1) (a) Costs shall be in the discretion of the Court,
(b) the Court shall have full power to determine by whom and to what extent costs are to be paid, and

(c) …
(2) In subsection (1) the expression costs includes:

(a) Costs of or incidental to proceedings in the Court, including the administration of estates and trusts,
(b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal, and

(c) …”

5 It was resisted by Customs which contended that I had no power to award costs for the reasons that:

(a) the application was not a “proceeding” in the Court within the meaning of S 76 of the Supreme Court Act, and that
(b) if they were proceedings then the Chief Executive Officer of Customs was not a “party” to them.

6 It is clear from the terms of S 76(1) that the Court has a wide power to order costs. Moreover, as noted in my earlier judgment,…

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.

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Details

Case: [1999] NSWSC 611
Decision Date: 23 June 1999

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Criminal Division, the case of Neil Harold Pearson involved a challenge to the jurisdiction of the court under Section 474D of the Crimes Act 1900. The applicant sought to have a matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The Chief Executive Officer of Customs, who prosecuted Mr Pearson, objected to the court's jurisdiction, leading to an application for costs under Section 76 of the Supreme Court Act 1970.

The legal issues before the court were whether the application for costs was a "proceeding" within the meaning of Section 76 and whether the Chief Executive Officer of Customs was a "party" to those proceedings. Customs argued that the application was not a proceeding in the court and that it was not a party to the proceedings. The applicant, however, contended that the application was properly regarded as a proceeding in the court, and any step in the proceedings was subject to a costs order. The court found that the application for costs fit within the legislative framework permitting costs orders in relation to proceedings.

The court reasoned that the application to refer the matter to the Court of Criminal Appeal was indeed a proceeding in the court, and determining the objection to jurisdiction was incidental to those proceedings. The court further determined that Customs was a party to the proceeding, as it was the prosecuting authority and had actively contested the application. The court rejected Customs' jurisdictional objection and found it appropriate to make an order for costs against Customs.

The final order was that the Chief Executive Officer of Customs pay the applicant's costs of the objection to jurisdiction. The Attorney General of New South Wales' intervention did not extend the hearing or occasion additional costs to the applicants, so no order was made against the Attorney General.

Orders