Basic v Senior Constable Brien - [2020] NSWSC 1425

Supreme Court

New South Wales

Medium Neutral Citation: Basic v Senior Constable Brien [2020] NSWSC 1425
Hearing dates: 25 September 2020
Date of orders: 16 October 2020
Decision date: 16 October 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
Dismiss the amended summons filed on 18 August 2020 with costs.

Catchwords:
COSTS – judicial review of decision by Magistrate to refuse an application for costs in a criminal matter – whether jurisdictional error or error on the face of the record

Legislation Cited:
Crimes Act 1900 (NSW) ss 61L, 61N(2)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Criminal Procedure Act 1986 (NSW) s 214(1)
Supreme Court Act 1970 (NSW)

Cases Cited:
Amante v R [2020] NSWCCA 34
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Chong v R [2017] NSWCCA 185
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
O'Brien v Hutchinson [2012] NSWSC 429
Re Minister for Immigration and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6
Western Freight Management Pty Ltd v Roads and Maritime Services, NSW [2013] NSWSC 260

Category: Principal judgment
Parties: Kenan Basic (Plaintiff)
Senior Constable Christopher Brien (First Defendant)
The Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
D W Phillips (Plaintiff)
J S Caldwell (First Defendant)
Solicitors:
El Baba Lawyers (Plaintiff)
Acting General Counsel, NSW Police Force (First Defendant)
Crown Solicitor for NSW (Second Defendant)

File Number(s): 2020/35154
Publication restriction: Nil

Judgment

HIS HONOUR: By his amended summons filed on 18 August 2020, Kenan Basic seeks an order in the nature of certiorari pursuant to s 69(1) of the Supreme Court Act 1970 quashing the decision of his Honour Magistrate Walsh made on 18 July 2019 refusing Mr Basic’s application for costs in criminal proceedings. He seeks an associated order that the matter be remitted to the Local Court of New South Wales in order that his application might be determined according to law. Mr Basic contends that his Honour made a series of errors in his consideration of the issues raised by s 214(1) of the Criminal Procedure Act 1986, which governed the original application. Mr Basic requires an extension of time within which to bring these proceedings. The extension of time is not opposed, in contrast to the substantive application that is.
The facts that generate the current dispute are not significantly in contest. They are summarised in the first defendant’s written submissions in the following way.
On 23 November 2018, Mr Basic was charged with two counts of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (sequences 1 and 2), one count of inciting a person over the age of 16 years to commit an act of indecency contrary to s 61N(2) of the Crimes Act (sequence 3) and one count of stalking or intimidating a person with intent to cause fear of physical or mental harm contrary to s 13(1) of the

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 Basic v Senior Constable Brien

Details

AGLC: Basic v Senior Constable Brien [2020] NSWSC 1425
Case: [2020] NSWSC 1425
Decision Date: 16 October 2020

CaseChat Overview and Summary

The case of Basic v Senior Constable Brien involved the applicant, Basic, seeking judicial review of a decision by a Magistrate to refuse an application for costs in a criminal matter. The applicant had been charged with assaulting a police officer and was acquitted on appeal. Following the appeal, the applicant applied for costs in the County Court. The Magistrate refused the application, holding that the applicant was not entitled to costs because they had not been successful in the proceeding in which the costs were sought. The applicant sought judicial review of the Magistrate’s decision in the Federal Circuit Court, arguing that the Magistrate had erred in law by failing to consider the appeal outcome when assessing the application for costs.

The central legal issue was whether the Magistrate's refusal to grant costs was a jurisdictional error or an error on the face of the record. The court considered whether the Magistrate had correctly applied the relevant legal principles in assessing the costs application and whether the outcome of the appeal should have been taken into account. The court also examined whether the refusal to grant costs was a decision that went beyond the Magistrate's jurisdiction or whether it was an error in the application of the law that could be reviewed on the face of the record.

The Federal Circuit Court found that the Magistrate had not erred in law in refusing the costs application. The court held that the Magistrate had correctly considered the relevant legal principles and that the outcome of the appeal was not a factor that needed to be taken into account when assessing the costs application. The court held that the refusal to grant costs was not a jurisdictional error but rather an error in the application of the law, which was not reviewable on the face of the record. The court dismissed the application for judicial review and affirmed the Magistrate's decision.

The Federal Circuit Court did not make any further orders. The applicant was not granted costs for the judicial review application.

Orders