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:
Solicitors:
S Odgers SC & M Sahade (Plaintiff)
L Hutchinson (Defendant)
Gibson Howlin Lawyers (Plaintiff)
RSPCA NSW (Defendant)
File Number(s): 2019/195511 Publication restriction: None
Judgment
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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.
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Within the time limit set, the appellant made application for costs…
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- AGLC
- Brighton v Will (No 2) [2020] NSWSC 925
- Case
- [2020] NSWSC 925
- Decision Date
CaseChat Overview and Summary
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
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Background
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