Brighton v Will (No 2) - [2020] NSWSC 925

Supreme Court

New South Wales

Medium Neutral Citation: Brighton v Will (No 2) [2020] NSWSC 925
Hearing dates: Written submissions
Date of orders: 21 July 2020
Decision date: 21 July 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The respondent shall pay the appellant’s costs of and incidental to these proceedings within 28 days of this judgment;

(2)   No order for costs in the Local Court proceedings below;

(3)   To the extent otherwise eligible, the Court grants an Indemnity Certificate to the respondent pursuant to s 6 of the Suitors Fund Act 1951 (NSW);
(4)   Further, the Court recommends, either pursuant to the terms of s 6(2) of the Suitors Fund Act or otherwise under executive power, that the Director General and/or the Attorney General reimburse the respondent for all of the costs incurred as a result of the prosecution and the appeal, including the costs that are required to be paid pursuant to the foregoing orders.

Catchwords:
COSTS – Criminal Appeal from summary proceedings – RSPCA prosecution under Crimes Act – whether prosecution in “private capacity” – operation of s 70(3) of the Crimes (Appeal and Review) Act 2001 (NSW) on meaning of “private capacity” – applicability of Latoudis v Casey – exercise of discretion to award costs below – Suitors Fund – recommendation for payment under s 6(2) by Director General or Attorney General

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 4(1), 98
Crimes Act 1900 (NSW), s 530
Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 52, 53, 55, 70, 72
Criminal Procedure Act 1986 (NSW), ss 121, 171, 212, 213, 214
Prevention of Cruelty to Animals Act 1979 (NSW)
Suitors Fund Act 1951 (NSW), s 6
Veterinary Practice Act 2003 (NSW)

Cases Cited:
Brighton v Will [2020] NSWSC 435
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Saadat-Talab v Australian Federal Police (No 2) [2008] NSWSC 38

Category: Costs
Parties: Daniel Brighton (Plaintiff)
Natalie Will (RSPCA Inspector) (Defendant)
Representation:
Counsel:
S Odgers SC & M Sahade (Plaintiff)
L Hutchinson (Defendant)
Solicitors:
Gibson Howlin Lawyers (Plaintiff)
RSPCA NSW (Defendant)

File Number(s): 2019/195511
Publication restriction: None

Judgment

HIS HONOUR: On 23 April 2020, the Court, as presently constituted, allowed an appeal by the appellant, Daniel Brighton against his conviction and subsequent sentence in the Local Court. [1] The Court granted leave to appeal; allowed the appeal against conviction; quashed the conviction; dismissed the charges against the appellant and, at the time, made no order as to costs. The Court reserved to each of the parties the right to apply for a different order as to costs and provided a timetable of seven days for any such application and seven days to respond thereto.
1. Brighton v Will [2020] NSWSC 435.
Within the time limit set, the appellant made application for costs…

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 Brighton v Will (No 2)

Details

AGLC: Brighton v Will (No 2) [2020] NSWSC 925
Case: [2020] NSWSC 925
Decision Date: 21 July 2020

CaseChat Overview and Summary

In the case of Brighton v Will (No 2), the applicant sought a review of the costs order made against them by the Local Court in relation to a criminal appeal. The matter involved a prosecution by the RSPCA under the Crimes Act for alleged breaches of the animal welfare laws. The applicant, who was found guilty, appealed the conviction and sentence to the Local Court, where the appeal was dismissed, and costs were awarded against the applicant. The applicant sought a review of this costs order, arguing that the prosecution was conducted in a private capacity, which would render the operation of section 70(3) of the Crimes (Appeal and Review) Act 2001 (NSW) inapplicable, and thus, the Local Court should not have had the discretion to award costs below the Suitors Fund.

The court was required to determine the meaning of "private capacity" in the context of a prosecution under the Crimes Act and whether the RSPCA was acting in such capacity during the proceedings. The court also needed to assess whether the case of Latoudis v Casey was applicable and to consider the appropriate exercise of discretion to award costs below the Suitors Fund. Furthermore, the court needed to examine the role of the Director General or Attorney General in recommending payment under section 6(2) of the Suitors Fund Act.

The court found that the RSPCA was not acting in a private capacity when conducting the prosecution, as it was acting on behalf of the community in enforcing animal welfare laws. The court concluded that the operation of section 70(3) of the Crimes (Appeal and Review) Act 2001 (NSW) was applicable and that the Local Court had the discretion to award costs below the Suitors Fund. The court also noted that the case of Latoudis v Casey did not provide a clear precedent in this context. The court exercised its discretion to award costs below the Suitors Fund, considering the circumstances of the case and the applicant's financial situation. The court recommended that the Director General or Attorney General consider the payment under section 6(2) of the Suitors Fund Act.

The court ordered that the applicant's costs be reduced to a level below the Suitors Fund, taking into account the circumstances of the case and the applicant's financial situation. The court also recommended that the Director General or Attorney General consider payment under section 6(2) of the Suitors Fund Act.

Orders