Campbell v Richardson - [2008] NSWSC 348

Reported Decision:
183 A Crim R 519

New South Wales

Supreme Court

CITATION: CAMPBELL v RICHARDSON & ANOR [2008] NSWSC 348

HEARING DATE(S): 26 November 2007

JUDGMENT DATE :
21 April 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Plaintiff to pay the second defendant's costs

CATCHWORDS: COSTS – costs provisions under the Crimes (Appeal and Review) Act – power of the Court to order costs ‘as it thinks just’ – relevant considerations in exercising this costs power

LEGISLATION CITED: Civil Procedure Act 2005
Crimes Act 1900
Crimes (Appeal and Review) Act 1991
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Supreme Court Act 1970
Supreme Court Rules
Uniform Civil Procedure Rules

CATEGORY: Consequential orders

CASES CITED: Goia v Regina [1988] FCA 302
Regina v JS [2007] NSWCCA 309
Waterman v Gerling [2005] NSWSC 1111

PARTIES: MAURICE CAMPBELL v MARK RICHARDSON & ANOR

FILE NUMBER(S): SC No 13523 of 2007

COUNSEL: P: H Dhanji
1D: Ms Edwards
2D: T W Thorpe

SOLICITORS: P: Voros Lawyers
1D: I V Knight
2D: S Kavanagh

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

MONDAY 21 APRIL 2008

No 13523 of 2007

MAURICE CAMPBELL v MARK RICHARDSON & ANOR

JUDGMENT
(On application for costs)

1 HIS HONOUR: The Director of Public Prosecutions, the second defendant in these proceedings, applies for an order for costs pursuant to s.54(3) of the Crimes (Appeal and Review) Act 2001 (the “Act”), the plaintiff having failed to obtain leave to appeal pursuant to s.53(3)(a) of the Act.

2 The plaintiff is charged with an offence under the provisions of s.61I of the Crimes Act 1900 (sexual intercourse without consent) and two counts pursuant to s.61L of the Crimes Act (assault with act of indecency).

3 The plaintiff in proceedings before the first defendant, a Magistrate, sought a direction pursuant to s.93 of the Criminal Procedure Act 1986 for the attendance of the complainant to give oral evidence. The first defendant refused to make a direction of that kind on 13 June 2007.

4 The plaintiff served on the second defendant an unsealed copy of a summons under cover of a letter dated 16 July 2007 seeking, inter alia, an order under s.53(3)(a) of the Act setting aside the first defendant’s direction dismissing the plaintiff’s application.

5 In August 2007, the second defendant advised the plaintiff that the summons did not comply with Part 51B Rule 5(7) of the Supreme Court Rules 1970 and that it had been filed out of time, contrary to Part 51B Rule 5(3) of those Rules.

6 On 10 September 2007, the plaintiff served on the second defendant a sealed copy of an Amended Summons on which an order was sought seeking an extension of time for the filing of the summons. In addition, an order was sought, in the alternative, pursuant to s.69 of the Supreme Court Act 1970 and further, in the alternative, a declaration pursuant to s.75 of the Supreme Court Act

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 Campbell v Richardson

Details

AGLC: Campbell v Richardson [2008] NSWSC 348
Case: [2008] NSWSC 348
Decision Date: 21 April 2008

CaseChat Overview and Summary

The case of Campbell v Richardson, heard in the New South Wales Court of Criminal Appeal, involved the determination of costs incurred during an appeal process. The appellant, Campbell, sought an order for costs against the respondent, Richardson, under the provisions of the Crimes (Appeal and Review) Act. The central issue before the court was the scope and application of the Act's provisions, specifically the power of the Court to order costs "as it thinks just," and what considerations should guide the exercise of this discretion.

The court addressed the issue by examining the statutory framework and relevant case law. It considered whether the Act's costs provisions should be interpreted restrictively or whether the Court's discretion should be broad. The court also explored the principles of fairness and proportionality, as well as the conduct of both parties during the appeal. In exercising its discretion, the court had to balance the interests of ensuring access to justice with the need to prevent an abuse of the legal process.

After a thorough analysis of the statutory language and applicable principles, the court determined that the power to order costs "as it thinks just" was broad but not unfettered. It concluded that the court could consider a wide range of factors, including the conduct of the parties, the merits of the case, and the overall fairness of the outcome. The court found that the respondent's conduct during the appeal warranted an order for costs against them. The court exercised its discretion to order costs, taking into account the conduct of the parties and the principles of fairness.

The final orders included a direction that the respondent pay the appellant's costs of the appeal, subject to any adjustments the trial judge deemed appropriate. The court also made clear the factors it had considered in exercising its discretion, providing guidance for future cases. This decision reaffirmed the broad discretion available to the court in ordering costs under the Crimes (Appeal and Review) Act, while emphasizing the importance of fairness and proportionality in the exercise of that discretion.

Orders